Thursday, June 25, 2015

The Constitutional Concerns in the Supreme Court's Fair Housing Act Case

The Court's closely divided opinion in Texas Department of Housing and Community Affairs  v. Inclusive Communities Project, Inc., centers on the issue of whether the Fair Housing Act, 42 U. S. C. §3601 et seq., authorizes disparate impact (as distinguished from disparate treatment) claims.  Writing for the Court, Justice Kennedy held that it does.  Kennedy's statutory construction largely rests on interpretations of two precursor discriminatory statutes: Title VII (regarding employment) and the ADEA (prohibiting age discrimination).  It also rests on Congress's 1988 amendments to the FHA which seemingly ratified the availability of disparate-impact liability. 

751px-Fair_housing_protest,_Seattle,_1964Dissenting, Justice Thomas argued that the recognition of disparate-impact in Title VII by the Court in Griggs v. Duke Power (1971), was incorrect then and that error should not be repeated.  In the primary dissent, by Justice Alito, and joined by Thomas, Scalia, and Chief Justice Roberts, the Court's opinion in Griggs is less disparaged.  Instead, Alito argues that Griggs does not support the disparate impact interpretation of FHA, and that nothing in the FHA itself supports such an interpretation.  Moreover, the dissent argues that disparate impact liability will have "unfortunate consequences" of increasing liability, echoing the dissent's graphic opening "No one wants to live in a rat's nest." 

While a statutory interpretation question, Kennedy's opinion for the Court contains two important constitutional law matters.

First, the Court states that disparate-impact liability "has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity."  Statistics are insufficient because there may be valid interests being served by the housing developers "analogous to the business necessity standard under Title VII" and thus "a defense against disparate-impact liability."  Additionally, there must be a "robust causality requirement": "racial imbalance" without a specific link to the defendant's policy or policies causing the disparity cannot be sufficient.  These "safeguards" are necessary lest FHA enforcement "set our Nation back in its quest to reduce the salience of race in our social and economic system."

Second, should a court find a disparate-impact violation of FHA, the remedies a court can order must be constitutional:

Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that “arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e].” Ibid. If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means. See Richmond v. J.A. Croson Co., 488 U. S. 469, 510 (1989) (plurality opinion) (“[T]he city has at its disposal a whole array of race- neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races”). Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions.

While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion. Cf. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 789 (2007) (KENNEDY, J., concurring in part and concurring in judgment) (“School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; [and] drawing attendance zones with general recognition of the demographics of neighborhoods”). Just as this Court has not “question[ed] an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the [promotion] process,” Ricci, 557 U. S., at 585, it likewise does not impugn housing authorities’ race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patterns. When setting their larger goals, local housing authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the outset.

[ellipses in original].

Thus, Kennedy for the Court reiterates the so-called "affirmative action" cases that would be used to measure any remedies ordered for a finding of racial discrimination.  Justices Ginsburg, Breyer, Sotomayor, and Kagan, who joined Kennedy's opinion here, might not subscribe entirely to those views given their other opinions on race and equal protection.  

[image: Fair Housing Protest, Seattle 1964, via]

June 25, 2015 in Cases and Case Materials, Courts and Judging, Equal Protection, Opinion Analysis, Race | Permalink | Comments (1)

Monday, June 22, 2015

Supreme Court Decides Raisin USDA Program is an Unconstitutional Taking

The United States Supreme Court's opinion in Horne v. Department of Agriculture (USDA)
decisively declares the USDA's "California Raisin Marketing Order," under which a percentage of a grower's crop must be "put in reserve" is unconstitutional under the Fifth Amendment's Takings Clause. 

This regulatory program, under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., regarding raisins, is similar to other USDA programs and thus could have wide application. 

Sunmaid-recipe-booksBy resisting the program on behalf of "farmers," the Hornes have become "outlaws" or heroes of sorts. This is the second time that the Hornes have been to the Supreme Court: Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for a taking. 

Today, again reversing the Ninth Circuit, the Court held that a taking did occur and that the Hornes were entitled to just compensation under the Fifth Amendment.  Only Justice Sotomayor dissented from this conclusion, but Justices Breyer, Ginsburg, and Kagan did not join Chief Justice Roberts's opinion for the Court regarding the determination of "just compensation."

Relying on a Magna Carta provision regarding corn as well as on colonial history, Chief Justice Roberts's opinion for the Court concludes that the Fifth Amendment's Taking Clause applies with equal force to personal property as to real property.  Any distinction between real and personal property might be relevant in a regulatory takings case, but the Court stressed that this is a "clear physical taking": "Actual raisins are transferred from the growers to the Government."  (Whether this happens in a physical seizure was debated in the contentious oral argument and made another appearance in a to-and-fro between the Court's opinion and Sotomayor's dissent).  For the Court, growers thus lose "the entire 'bundle' of property rights in the appropriated raisins."  Dissenting, Justice Sotomayor disagrees that it is the entire bundle and thus disputes this conclusion.  Given this physicality, it is irrelevant for the Court that the USDA could achieve the same ends through a regulatory taking (such as prohibiting the sale):

A physi­cal taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

The Court also rejected the notion that because the USDA program reserved a contingent interest in the raisins for the growers that this relieved the government duty to pay just compensation. 

The Court also found that the USDA mandate to reserve raisins as a "condition" for engaging in interstate commerce effected a per se taking.  In reaching this conclusion, the Court rejected the Ninth Circuit's observation that the growers could grow other crops or use the grapes differently - - -

“Let them sell wine” is probably not much more comfort­ing to the raisin growers than similar retorts have been to others throughout history.

The Court also reached this conclusion by distinguishing other takings cases and other products. Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984) is inapplicable because "raisins are not dangerous pesticides; they are a healthy snack."  Leonard & Leonard v. Earle, 279 U. S. 392 (1929) is likewise inapposite because "Raisins are not like oysters: they are private property— the fruit of the growers’ labor—not “public things" such as oysters that belonged to the state under state law.

The majority [corrected] of the Court determined that the "just compensation" owed to the Hornes is the fair market value of the raisins, the subject of the fine imposed by the USDA: $483,843.53.   Justice Breyer (and Ginsburg and Kagan), disagreeing with this conclusion, would remand the matter for a determination.  It is not that Justice Breyer disagrees that this was the amount of the fine, but that he disputes that this is the actual fair market value absent the taking.  In other words, the raisin reserve program operated to increase the cost of raisins.  Thus, without the program benefit, the raisins in reserve may have been worth much less that the amount fined, or even, Justice Breyer suggests, nothing at all.  He contends that the question of evaluation was not properly briefed before the Court.  For the Chief Justice, however, "This case, in litigation for more than a decade, has gone on long enough."

[image: 1916 California Sun Maid Raisin Recipe Book via]

June 22, 2015 in Fifth Amendment, Opinion Analysis, Supreme Court (US), Taxing Clause | Permalink | Comments (2)

Court Strikes Warrantless Hotel Registry Searches

The Supreme Court today struck a Los Angeles city ordinance that required hotels to make available their guest records "to any officer of the Los Angeles Police Department for inspection . . . ." But at the same time the ruling specifically allows the city to require hotel owners to keep and retain a guest registry and says that officers can search it if they only get a warrant (even just an ex parte administrative warrant), or satisfy an established exception to the Fourth Amendment warrant requirement.

In short, the ruling in Los Angeles v. Patel only requires officers to jump through a hoop--an important hoop, to be sure, but perhaps only a minimally challenging hoop--before reviewing hotel records.

Still, the sharply divided ruling is a clear victory for Fourth Amendment enthusiasts for two reasons. For one, the ruling requires precompliance review of some sort in the ordinary case. This means that in most cases a neutral decisionmaker would review an officer's request to search the records before the search. For another the ruling underscores the fact that challengers can bring a facial case under the Fourth Amendment.

Justice Sotomayor wrote for the Court, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Sotomayor wrote that the LA ordinance violated the Fourth Amendment on its face. In particular, she said that ordinance authorized an extra-judicial administrative search (with no prior judicial approval and no probable cause requirement), and that kind of search requires the subject to "be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." The Court explained why that's important:

Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.

Although the Court recognized that it never really defined "precompliance review," the ordinance allowed no review and therefore violated the Fourth Amendment on its face. The Court said that the ordinance has to provide a hotel owner at least an opportunity for precompliance review; but because it didn't, it violated the Fourth Amendment.

The Court emphasized "the narrow  nature of our holding," saying that nothing in today's ruling prevents the city from requiring hotel owners from maintaining a guest registry with certain information, or authorizing the police to access that registry with appropriate Fourth Amendment protections, or under established Fourth Amendment exceptions.

Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justice Alito. Justice Scalia argued that a warrantless hotel records search was not unreasonable in every application (as required for a facial challenge), because hotels are closely regulated and therefore the government has more leeway in conducting warrantless administrative searches under New York v. Burger.

Justice Alito also dissented, joined by Justice Thomas. Justice Alito argued that the Court overreached with its facial ruling, that there are (at least) five applications of the ordinance that satisfy the Fourth Amendment, and that the Court's ruling means that LA can never enforce its "116-year-old requirement that hotels make their registers available to police officers."

June 22, 2015 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Court Sets Objective Standard for Pretrial Detainee Civil Rights Action

The Supreme Court ruled today in Kingsley v. Hendrickson that a pretrial detainee need only show that an officer's use of force was objectively unreasonable--and not subjectively unreasonable, a higher standard--in order to prevail on an excessive force claim. The ruling reverses the Seventh Circuit, which affirmed a trial judge's jury instruction that set the bar at the higher subjective standard, and remands the case for an application of the lower objective standard.

The ruling means that a pretrial detainee's burden in an excessive force claim is lower than the standard upheld by the Seventh Circuit. That's good news for pretrial detainees who bring civil rights claims. But the Court was quick to say that a detainee still has other hurdles to jump--including qualified immunity.

Justice Breyer wrote for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Breyer wrote that the trial court's jury instruction based on a subjective standard--that "[e]xcessive force means force applied recklessly that is unreasonable in light of the facts and circumstances [and]  [d]efendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff's safety . . . ."--should have been been based on an objective standard--that "the force purposely or knowingly used against him was objectively unreasonable."

Justice Scalia wrote the principal dissent for himself, Chief Justice Roberts, and Justice Thomas. Justice Alito also dissented, arguing that the case should be dismissed as improvidently granted.

June 22, 2015 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Thursday, June 18, 2015

Sign Ordinance Violates First Amendment: Court Decides Reed v. Town of Gilbert

A unanimous Court, albeit with separate opinions, concluded that the extensive municipal signage regulations violated the First Amendment in Reed v. Town of Gilbert.

Recall from oral arguments that the town's regulations generally required a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.”  The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.” Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town Gilbert signregulation as content neutral.

Reversing the Ninth Circuit, Justice Thomas, writing for the Court, concluded that the Sign Code was content-based and did not survive strict scrutiny.  The Sign Code provision is content-based because, simply put, to determine if a sign is a "Temporary Directional Sign" one must determine whether the sign "conveys the message of directing the public" to an event.  It does not matter, Thomas writes for the Court, that the content may seem neutral:

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. *** In other words, an innocuous justification cannot transform a facially content- based law into one that is content neutral.

Once the Court decided there the regulation was subject to strict scrutiny, there was little doubt that the town would not be able to satisfy the standard.  Thomas assumed that the proffered governments interests of aesthetics and traffic safety were compelling, but quickly determined that that the manner in which they were being served was far from narrowly tailored. Instead, the regulations were "hopelessly underinclusive."

The concurring opinions take on the issue raised in oral argument about the constitutionality of any town's attempt to regulate signage.  Justice Kagan's concurring opinion, joined by Justice Ginsburg and by Breyer (who also has a separate concurring opinion) - - - but not by Justice Alito, who has his own brief concurrence, joined by Kennedy and Sotomayor (who also join the Thomas's opinion for the Court)- - - argues that strict scrutiny is not appropriate for all sign ordinances.  Kagan states:

Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms,  I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley. The second is to ensure that the government has not regulated speech “based on hostility—or favoritism— towards the underlying message expressed.” R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.

She instead argues that the "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive."  But it was evident that even the concurring Justices  did not view the Town of Gilbert's signage regulations as entirely reasonable.

June 18, 2015 in First Amendment, Fourteenth Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Court Decides Specialty License Plate is Government Speech in Sons of Confederate Veterans License Plate

In a closely - - - and interestingly - - - divided opinion today in Walker v. Texas Sons of Confederate Veterans, the Court's majority decided that Texas's specialty license plate program is government speech and therefore rejected the First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.

Justice Breyer delivered the Court's opinion, joined by four Justices, Ginsburg, Sotomayor, Kagan, and - - - Thomas.  The dissenting opinion by Justice Alito was joined by Chief Justice Roberts, Scalia, and Kennedy.  And while Justice Breyer has become known for his appendices, this opinion has a simple one: the image of the rejected Sons of Confederate Veterans plate.  Meanwhile, Alito's dissenting opinion has a more extensive appendix; it includes the images of 58 specialty plates that Texas has approved.

No-pix-license-plate-021413As was evident in the oral arguments, and is frequently the case in First Amendment speech controversies, there was a definite choice of doctrine at stake.  Recall that the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination.  The Court today not only rejected that view, but it rejected the applicability of any forum analysis.  Instead, the Court applied the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) finding that there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.  This was raised at numerous points in the oral arguments and echoes the opinion of Judge Jerry Smith who had dissented in the Fifth Circuit's divided opinion.  Breyer did note that there were some aspects of Summum that were not exactly parallel, such as the permanence of the monuments in Summun, the opinion states that this was important because the public parks in Summun are traditional public forums, which is not the case for license plates.

And as for that other and most famous license plate case, Wooley v. Maynard (1977), the Court's majority opinion distinguished Walker because "compelled private speech is not at issue."  And indeed, if there is any compulsion of conveying ideological messages to be protected against here, it is that of the state being compelled to "include a Confederate battle flag on its specialty license plates."

Justice Alito's dissenting opinion has at its base a common-sense disagreement.  Noting the proliferation of specialty plates, supported by his Appendix, he asks:

As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?

Thus, he argues that what Texas has done by selling space on its license plates is to create a "limited public forum."

Walker v. Sons of Confederate Veterans could have wide-ranging effect. Does it give unfettered discretion to governments to decide license plate matters given that it is now government speech?  Consider that the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; that the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; and that a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld. 

Additionally, recent controversies about advertising on public transport, as in New York, the Sixth Circuit and Ninth Circuit,  could be reconceptualized after Walker v. Sons of Confederate Veterans.

June 18, 2015 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (2)

Wednesday, June 17, 2015

Second Circuit Gives Detainee Case Against Ashcroft, Mueller the Go-Ahead

The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.

The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.

Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."

The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.

The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."

The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.

The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.

Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.

The court concluded:

The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.

Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.

Judge Reena Raggi dissented.

June 17, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Monday, June 15, 2015

Does Immigration Marriage Case Foreshadow Same-Sex Marriage Case?

In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband.  Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage.  Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due.  Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.

So what might this mean for Obergefell?  Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell.  On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case.  Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history.  While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage?  Perhaps.  But perhaps not.  Consider this:

Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Govern­ment here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases estab­lishing a right to marital privacy.

Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest.  The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage.  In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.

So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."

418px-Henri_Rousseau,_dit_le_Douanier_-_The_Wedding_Party_-_Google_Art_Project
Henri Rousseau, "The Wedding Party," circa 1905, via

June 15, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Family, Gender, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0)

The Supreme Court on Marriage, Procedural Due Process, Terrorism, and Immigration: Kerry v. Din

The Court today issued its closely divided opinion in Kerry v. DinOn this 800th anniversary of Magna Carta, both the plurality opinion by Justice Scalia and the dissenting opinion by Justice Breyer referenced the great charter's protection of what the Constitution's Fifth Amendment termed "due process of law." In Din, the due process rights of a citizen who obtained preferred immigration status for her spouse are at stake. Certainly the case is important in the immigration context, but how important might it be as a harbinger of the Court's impending decision in the consolidated same-sex marriage cases, Obergefell v. Hodges, argued in late April?  What Kerry v. Din might say about Obergefell is discussed here.

596px-Charles_W._Hawthorne_-_Young_man_and_woman
Charles Hawthorne, "Young man and woman in a dark, moody landscape," 1915, via 

In Kerry v. Din, a naturalized citizen, petitioned to have her husband, Berashk, classified as an “immediate relative” entitled to priority immigration status, and although this was approved, Berashk’s visa application was denied under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the consular officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed a complaint in federal court which was dismissed.  The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

In the plurality opinion joined by Chief Justice Roberts and Justice Thomas, Justice Scalia has harsh words for Din's claim of any right of "life, liberty, or property" to which due process would attach.  It is "absurd" and nothing in the caselaw "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection."  He characterizes her right as one to live in the United States with one's spouse, and concludes that such a right fails the Washington v. Glucksberg test requiring that any implicit right be "deeply rooted in this Nation's history and tradition."  Indeed, he argues that the history is exactly the opposite and discusses laws that mandated women "take the nationality of her husband on marriage."  While noting that modern " equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Justice Kennedy, joined by Justice Alito, firmly rejects Justice Scalia's conclusion: "Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse." Instead, Kennedy concludes that the "Court need not decide that issue," for "even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute's terrorism bar."  For Kennedy and Alito, the citation of the statute seemingly satisfies all the process that is due.

Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argues that there is a liberty interest flowing from the Due Process Clause itself and from the statutory scheme establishing immigration preferences.  In his critique of the plurality opinion, Breyer reminds readers that it "is not controlling."  He discusses a number of cases in which the Court has recognized liberty interests, perhaps most compellingly Goss v. Lopez (1975), involving students' interest in attending school and not being suspended, and which the plurality opinion seeks to distinguish. Regarding the "process due," Breyer notes that a statement of the reasons for a government action is an essential part of due process and one that a recitation of the statute in this case cannot satisfy given that it contains "dozens" of reasons.  Moreover, the government offered no factual basis. He argues:

The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.

Thus, the dissenters would recognize both the liberty interest of a spouse in her partner's visa denial and that procedural due process requires something more than the recital of a statute; Kennedy and Alito find that the statutory referral is sufficient process; and the plurality finds that there is no liberty interest of a spouse in her partner's visa denial.  It's a fragmented set of conclusions and its predictive value for the same-sex marriage cases raises some interesting possibilities.

June 15, 2015 in Due Process (Substantive), Opinion Analysis, Procedural Due Process, Supreme Court (US), Travel | Permalink | Comments (0)

Daily Reads: On the 800th Anniversary of Magna Carta

According to the usual history, "On June 15, 1215, in a field at Runnymede, King John affixed his seal to Magna Carta. Confronted by 40 rebellious barons, he consented to their demands in order to avert civil war."  The civil war was not successfully averted, but the document has come to symbolize principles of liberties and rights, including as a precursor to the United States Constitution. 

After-restoration-lImportant daily reads to celebrate the anniversary include:

    The document itself, with its specific items regarding freemen, property, writs, and the memorable "No-one is to be taken or imprisoned on the appeal of woman for the death of anyone save for the death of that woman’s husband."

    A good overview is from the BBC magazine, which points outs that most of its provisions applied only to ""Free men" who in 1215 accounted for less than half the population; the rest were serfs, to whom the charter did not apply, as well as women and children.

    ConLawProf Tom Ginsburg's Op-Ed in the New York Times entitled "Stop Revering Magna Carta," in which he argues that the Magna Carta's current status rests on a series of misunderstandings.

    The current celebrations and controversies in "England" including not only commemoration by Queen Elizabeth, but statements by Prime Minister Cameron that Great Britain must "restore" its dedication to "human rights" as evinced in Magna Carta by secession from the European Court of Human Rights and Human Rights Act.

 

June 15, 2015 in Comparative Constitutionalism, History, International, Interpretation | Permalink | Comments (1)

Sunday, June 14, 2015

Sixth Circuit Rejects Establishment Clause Claim Despite Bible Verse on Students' Report Cards

Reversing the district judge, a panel opinion of the Sixth Circuit in Smith v. Jefferson County Board of School Commissioners found that there was no Establishment Clause violation when a Tennessee public school board contracted with a "religious institution," Kingswood Schools, Inc.,  to provide "alternative-school" services for students suspended or expelled from their "ordinary schools."  The county school board entered into the contract because of a funding shortfall and over seven years paid Kingswood, 1.7 million dollars; the arrangement ended when the county resumed providing alternative-school services.

395px-Nave_window,_St._Patrick's_Cathedral,_Harrisburg_Historic_District
"But Jesus called them unto him, and said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God" Stained glass mage via

The majority's opinion by Judge Julia Smith Gibbons, coupled with a separate concurring opinion by Judge Alice Batchelder, illustrates the disarray of Establishment Clause doctrine.   Yet both the majority and concurring opinion settle on the "endorsement test" and find it is not satisfied.  Specifically, the majority considered the "voluntary assemblies" as well as whether the  "Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school- improvement plan" constituted endorsement.  As the majority described:

Students were required to submit a weekly family-feedback form—signed by their parents—in order to advance within the day program. That form contained the following quote from the Gospel of Luke: “Jesus . . . said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God.” Parents were also required to sign report cards, which contained the same Biblical text. Kingswood’s director testified that the scripture—from the Gospel of Luke—could be interpreted as an invitation into the kingdom of God. The same passage appeared, accompanied by crosses, on the school’s Easter 2006 letter. The letter claimed: “Kingswood School is unique because we offer children a Christian environment of love and encouragement. . . . Kingswood remains one of the few places where children in need can get help in a Christian environment. We are a non-profit faith based ministry . . . .”

Those who sought out the 2005 Annual Report saw that it contains a picture of the chapel and says that each child will receive Christian religious training, and that emphasis is placed upon “instilling in each child a personal faith in God, and the assurance of the saving grace of Jesus Christ.” The “school improvement plan,” completed before the Jefferson County contract and still in effect afterward, stated the belief that schools must provide for “spiritual growth” in order to serve the “‘whole’ student.”

The Kingswood website also contained some religious references. It claimed, for example, that “Kingswood has survived independently by remaining true in faith to the principles of a Christian education without being bound to the doctrine of a particular denomination or sect’s control.” It states that the school will take care of a child’s “spiritual and religious life,” although it will not compel a student to adopt any particular religious doctrine. The website refers to Kingswood as a “Christian charity,” and explains its “Methodist-rooted beginnings.” It says that the school “has observed a Christian approach that has remained inter- faithed and unaffiliated with a particular Christian denomination.”

In its analysis, the court characterizes the Christian language as "de minimus" and concludes that a "reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County."  The arrangement saved taxpayer money and the court found it noteworthy that no parents or students complained.  Instead, it reiterates that the complaint was by teachers of the public school who were terminated.  The complaint was originally dismissed for lack of standing; the Sixth Circuit reversed en banc in 2011.  The concurring opinion goes further and calls the case an "employment-contract dispute masquerading as an Establishment Clause case." 

Yet the Establishment Clause disarray is not attributable to the procedural posture or the application of the so-called "endorsement test," but to questions about the test to be applied.  According to the majority, there are "three main jurisprudential threads": the Lemon test; the endorsement test as a refinement of Lemon; and the "historical practice" test as articulated in Town of Greece v. Galloway, the closely-divided 2014 decision by the United States Supreme Court upholding a town council's prayer.  The majority finds the historical practice test inapposite, but the concurrence argues for its application.

Interestingly, the court majority distinguishes Doe v. Elmbrook School District, in which the Seventh Circuit en banc found that an Establishment Clause violation existed when the school held graduation ceremonies in a church. The United States Supreme Court denied certiorari in Elmbrook, over a dissent by Justice Scalia (joined by Justice Thomas), arguing that the lower court's opinion is "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway. In her concurrence, Judge Batchelder essentially agrees with Justice Scalia. Judge Batchelder asks whether the school board's "contract would be historically acceptable to the Framers," seemingly assumes that it would be, and then would engage in a "fact-sensitive" inquiry regarding coercion.  Judge Batchelder characterizes the biblical references as "innocuous," so presumably she would not find them coercive.

Yet bible verses on mandatory student correspondence that must be signed by parents on a weekly basis does seem to raise the specter of coercion - - - even if no parents or students of the "alternative-school" complained.

 

June 14, 2015 in Courts and Judging, Establishment Clause, Federalism, First Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Friday, June 12, 2015

D.C. Circuit Vacates Military Commission Conspiracy Conviction

The D.C. Circuit today vacated the conspiracy conviction by military commission of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacks. The court said that the conviction for inchoate conspiracy--a charge that's not an offense under the international law of war--violated the Article III power of the judiciary "by authorizing Executive Branch tribunals to try the purely domestic crime . . . ."

The ruling is a victory of Bahlul and a blow to the government in conducting military commissions. In short, the case says that the government's charge in a military commission must be recognized as violation of the international law of war, and that Congress lacks authority to define an otherwise domestic crime as an international law of war in order to vest a military commission with authority to convict for its violation.

But while the ruling is significant, it's almost certainly not the last word on this case that's already gone up and down the judicial hierarchy. In particular: It's gone en banc at the D.C. Circuit before, and seems likely to go en banc again, if not farther, to the Supreme Court.

The court ruled first that Bahlul's structural challenge (that his conviction violated Article III) was not waivable, and that the court could therefore hear it--and to hear it de novo--even though he didn't raise it below.

The court went on to say that while the government could conduct law-of-war military commissions under Ex Parte Quirin, Quirin and its progeny limit the charges to "offenses against the law of war." But the court held that inchoate conspiracy isn't one of those offenses, that even the government agreed that it isn't, and that Congress didn't have power to define it as such: "Congress cannot, pursuant to the Define and Punish Clause, declare an offense to be an international war crime when the international law of war concededly does not." The court held that because conspiracy is only a domestic offense, and not an international law offense, the Bahlul's conviction by military commission (an Article I tribunal, not an Article III court) impermissibly intruded into the Article III role of the courts.

The court rejected the government's arguments that historical practice and the Necessary and Proper Clause (augmenting the Define and Punish Clause) did the trick.

Judge Tatel, concurring, explained why he joined the en banc court when it previously said that the Ex Post Facto Clause did not prevent Congress from granting military commissions jurisdiction over conspiracy, but now joined Judge Rogers in saying that separation-of-powers did:

The answer is the standard of review. The en banc Court came down the way it did, and I voted the way I did, because al Bahlul had forfeited his [previous] ex post facto challenge by failing to raise it before the Commission, so our review was for plain error. Applying that highly deferential standard, the Court concluded that it was "not 'obvious that conspiracy was "not . . . triable by law-of-war commissions" at the time al Bahlul committed his crimes.

But the court reviewed Bahlul's structural challenge de novo. And "[i]n my view, whether Article III prohibits military commissions from trying conspiracy turns on what Ex Parte Quirin says and what Hamdan does not"--that "the law-of-war exception is exclusively international," and does not include domestic crimes.

Judge Henderson wrote a lengthy dissent, arguing that the majority's approach to Congress's power to define the international law of war would restrict Congress to only what the international community has said, and, worse, by the judiciary's reckoning:

My colleagues contend--as a matter of constitutional law, not simply comity--that the Congress cannot authorize military-commission trials unless the international community agrees, jot and tittle, that the offense in question violates the law of war. And the contend of international law is to be determine by--who else?--the Judiciary, with little or no deference to the political branches.

June 12, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)

Thursday, June 11, 2015

Crossroads GPS Has Standing to Defend FEC Non-Action

The D.C. Circuit ruled last week in Public Citizen v. FEC that Crossroads GPS, a conservative 501(c)(4) organization, has standing to intervene as a defendant in the on-going litigation involving the FEC's decision not to pursue Public Citizen's complaint against Crossroads GPS.

The case grows out of Public Citizen's complaint to the FEC that Crossroads GPS violated federal election law by failing to register as a political committee, despite "raising and spending significant amounts of money to influence the 2010 congressional elections." The FEC Office of General Counsel recommended that the FEC "find reason to believe" that Crossroads GPS violated FECA, but the FEC divided 3-3 on moving forward. Because the FEC needs four votes to move forward, it dismissed the complaint.

Public Citizen then sued the FEC in federal district court--the complaint is here--and Crossroads GPS moved to intervene as defendant. The district court denied the motion, ruling that Crossraods GPS didn't have standing, but the D.C. Circuit reversed.

The court said that Crossroads GPS has standing on the theory that an adverse court decision would mean that Crossroads GPS would again be subject to enforcement proceedings at the FEC:

In short, the favorable FEC ruling provides Crossroads--as most favorable agency actions would--with a significant benefit, similar to a favorable civil judgment, and precludes exposure to civil liability. Were Crossroads to lose that beneficial ruling, it would return to the position of a respondent subject to enforcement proceedings before a federal agency. Crossroads understandably claims this loss would amount to concrete injury.

The court said that "even where the possibility of prevailing on the merits after remand is speculative, a party seeking to uphold a favorable ruling can still suffer a concrete injury in fact."

The court rejected the argument that the FEC would adequately represent Crossroad's interests, because the FEC's General Counsel recommended moving forward in the first place.

The ruling doesn't say anything on the merits of Public Citizen's claims against the FEC. It only adds a new dimension to the case.

June 11, 2015 in Campaign Finance, Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Monday, June 8, 2015

President Has Sole Power of Recognition, Says Supreme Court

The Supreme Court ruled today in Zivotofsky v. Kerry that the President has exclusive power of recognition of foreign sovereigns, and that a congressional attempt to force the President to recognize sovereignty over Jerusalem (by Israel) impermissibly intrudes on the President's power.

The ruling is a decisive win for the presidency over Congress in the area of recognition of foreign sovereignty. It also puts an end to this highly politicized case involving U.S. recognition of sovereignty over Jerusalem.

Recall that Congress enacted legislation requiring the State Department to put "Israel" as the country-of-birth on a passport of any U.S. citizen born in Jerusalem, upon the request of the passport applicant. President George W. Bush signed the legislation, but with a signing statement saying that this was unconstitutional. The State Department has long had regs that say that only "Jerusalem" (and not "Israel") go on the passport of a U.S. citizen born in Jerusalem, so as not to tilt the balance toward one side on the sensitive question of who has sovereignty over Jerusalem.

Our argument review is here.

Justice Kennedy wrote the Court's opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy said that the text and history of the Reception Clause (giving the President power to "receive Ambassadors and other public Ministers") gives the President alone authority to recognize foreign sovereigns. He wrote that the text and purpose of Section 214(d) of the Foreign Relations Authorization Act--which required the State Department to list "Israel" as the country-of-birth for a U.S. citizen born in Jerusalem, upon the passport applicant's request--intruded on that authority.

US-Passportcover

Justice Breyer filed a concurring opinion; Justice filed an opinion concurring in part and dissenting in part; Chief Justice Roberts filed a dissent (joined by Justice Alito); and Justice Scalia wrote a dissent (joined by Chief Justice Roberts and Justice Alito).

We'll have more analysis and review later.

June 8, 2015 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, June 5, 2015

Clean Air Act Survives Federalism Challenges

The D.C. Circuit this week upheld a key authority of the EPA for enforcing the Clean Air Act against federalism and congressional authority challenges. The per curiam ruling rejected other challenges to EPA action, as well, and means that the case is dismissed. The ruling leaves intact the EPA's authority to designate geographic areas as noncompliant with the Clean Air Act and to take certain enforcement actions.

The federalism challenge in the case, Mississippi Commission on Environmental Quality v. EPA, sought to exploit the plurality's ruling in NFIB, where the Court held that Obamacare's Medicaid expansion couldn't condition a state's entire Medicaid grant on the ACA's Medicaid expansion. But the court rejected that argument, easily distinguishing Medicaid expansion and the EPA's actions here, as described below.

The case tested EPA's authority to designate certain geographic areas as noncompliant with the Clean Air Act's National Ambient Air Quality Standards. A variety of plaintiffs lodged complaints, but only two, Wise County, Texas, and the Texas Commission on Environmental Quality, raised constitutional claims. They argued that the EPA's designation of Wise County as a nonattainment area violated the Tenth Amendment and due process, and exceeded congressional authority under the Commerce Clause.

The court rejected these arguments. The court ruled that the Clean Air Act "authorizes the EPA to promulgate and administer a federal implementation plan of its own if the State fails to submit an adequate state implementation plan." The court said that's not commandeering, because the federal government isn't requiring the state or state officers to implement the federal plan.

The court also ruled that the Clean Air Act's sanctions for noncompliance--re-direction of a portion of federal highway funds to federal programs that would improve air quality--were not unduly coercive under NFIB. That's because they don't come close to the size of a state's federal Medicaid grant, and because it wasn't a new program that came as a surprise to the states. Indeed, the condition has been on the books (and states have taken advantage of it) for decades.

The court said that the Clean Air Act's delegation of authority to the EPA to designate areas as noncompliant is well within Congress's Commerce Clause authority. The court said that dirty air blows across state lines, causing a substantial effect on interstate commerce, and that the activities in Wise County that led to the dirty air themselves have a substantial effect on interstate commerce.

Finally, the court rejected a due process claim that the EPA administrator for Region 6 was biased. The court said that the administrator's past professional activities and statements did not rise to the level of an "unalterably closed mind" or an inability or unwillingness "to rationally consider arguments."

As mentioned, the court rejected other arguments against the EPA's authority, too, mostly under the APA.

June 5, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Federalism, News, Spending Clause, Tenth Amendment | Permalink | Comments (0)

Wednesday, June 3, 2015

New York Court Allows Bar Admission for "Undocumented" Immigrant

A New York appellate court has held that an "undocumented" immigrant can be admitted to the state bar and the practice of law in its opinion in In the Matter of Application of Cesar Adrian Vargas.

Vargas
Cesar Vargas via

The court considered whether Vargas (pictured right), an "undocumented" immigrant who does posses documents authorizing him to be in the United States and to work under the Deferred Action for Childhood Arrivals (DACA) policy, could be admitted to the New York bar.  The court determined that under state law he could.  Importantly, the court also determined that pursuant to the Tenth Amendment, this state law should prevail.

The statutory landscape is somewhat complex.  As the court explains most succinctly:

[The issue is] whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses.  This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.


We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government.  Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York.  

In essence, the court holds that a federal statute cannot constitutionally require that only a legislative enactment of a state will satisfy the statute's opt-out provision. 

While the court noted that it is "unusual" for a state court to pass judgment on the constitutionality of a federal statute, it is not unprecedented. 

The court found that the Tenth Amendment is implicated because "although Congress has left the ultimate determination whether to extend public benefits, including professional licensure, to the states, it has, at the same time, prescribed the mechanism" - - - exclusively legislative - - - "by which the states may exercise that authority."  But in New York,  the legislature has "determined that the state judiciary is the sovereign authority vested with the responsibility for formulating the eligibility qualifications and processes governing the admission of attorneys and counselors to the practice of law."  Thus, the court concludes that the legislative limitation in the federal statute "cannot withstand scrutiny under the Tenth Amendment."

The court analogized to Gregory v. Ashcroft (1991) in which the United States Supreme Court relied on the Tenth Amendment to reject a federal age discrimination claim by state judges to Missouri's mandatory retirement age of 70.  

Although Gregory addressed the state’s interest in determining who holds office, the State of New York has no less an interest in determining which of its branches of government is empowered to exercise the discretion authorized by section 1621(d) to determine who may be licensed as an attorney and counselor-at-law.  Indeed, the role of New York courts in regulating attorneys is deliberate, well-considered, and time-tested.  There are sound reasons why, in New York, the responsibility for attorney admissions is vested in the state’s judiciary rather than in other branches or departments of government.  As Judge Benjamin Cardozo declared nearly 90 years ago, an attorney is “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”

The court then cites the "variety of rules governing the admission and conduct of attorneys" that the New York  judicial branch formulates and oversees: the Rules of Professional Conduct;  the State Board of Law Examiners;  the 50-hour pro bono requirement for new attorney admissions;  the licensure of legal consultants; the admission of counsel pro hac vice;  the payment of biennial attorney registration fees;  the parameters of attorney advertising;  the requirements for attorney-client retainer agreements;  and the imposition of discipline upon attorneys who violate the state’s ethics rules.

For the court, the "ability, indeed the right, of the states to structure their governmental decision-making processes as they see fit is essential to the sovereignty protected by the Tenth Amendment."  Thus, the federal statute cannot limit the decision regarding noncitizen licensure to only one branch of a state's government.

While equal protection and other constitutional arguments were raised in the case, the court's interpretation of the federal statute and its own conclusion regarding the applicant's suitability for bar admission obviated consideration of those arguments.

[full disclosure: Vargas is a graduate of CUNY School of Law].

June 3, 2015 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Tenth Amendment | Permalink | Comments (1)

Monday, June 1, 2015

Should the Supreme Court Grant Certiorari to Federal Courts Declaring State Laws Unconstitutional?

Dissenting in a denial of certiorari today in County of Maricopa, Arizona v. Lopez-Valenzuela, Justice Thomas, joined by Justice Scalia, argued that the Supreme Court should review decisions by lower federal courts invalidating state "constitutional provisions."  At issue in Lopez-Valenzuela is Arizona's "Proposition 100" a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for certain serious felony offenses if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the charge. 

Magician_Raphael_1825
"A magician raising a ghost" circa 1825 via

The Ninth Circuit en banc held the measure unconstitutional as violative of due process, over dissents by Judges Tallman and O'Scannlain.

Justice Thomas notes that

Congress historically required this Court to review any decision of a federal court of appeals holding that a state statute violated the Federal Constitution. 28 U. S. C. §1254(2) (1982 ed.). It was not until 1988 that Congress eliminated that mandatory jurisdiction and gave this Court discretion to review such cases by writ of certiorari. See Pub. Law 100-352, §2, 102 Stat. 662.

More provocatively, Justice Thomas implicitly evokes the "Ghost of Lochner" by pointing out that the Ninth Circuit's decision rested on substantive due process grounds and quoting from West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937) and Nebbia v. New York, 291 U. S. 502, 537–538 (1934), which specifically disapproved Lochner v. New York (1905). 

For Justice Thomas, the Court's refusal to grant certiorari is "disheartening," : "there are not four Members of this Court who would even review the decision below."  (Note that Justice Alito also dissented, although he did not join Justice Thomas's opinion, for a total of three Justices who would have granted certiorari). 

For Justice Thomas, the Court's "indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds."

June 1, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Federalism, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)

Supreme Court Dodges First Amendment Issue in Facebook Threats Case

In its highly-anticipated opinion in Elonis v. United States seemingly involving the First Amendment protections for threatening language posted on Facebook, the Court deflected the constitutional issue in favor of statutory interpretation. 

No-facebookRecall that while the question presented in the certiorari petition focused on the First Amendment and pointed to a split in the circuits regarding an application of Virginia v. Black, 538 U.S. 343 (2003) to a conviction of threatening another person: did it require proof of the defendant’s subjective intent to threaten or whether it is enough to show that a “reasonable person” would regard the statement as threatening.  However, the Court's Order granting certiorari instructed:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

And at oral argument, much of the discussion delved into common law and Model Penal Code doctrine, even as these were intertwined with First Amendment considerations. 

Today's opinion, authored by Chief Justice Roberts, disentangles the First Amendment from the analysis.  It concludes that as a matter of statutory interpretation, the instructions to the jury that guilt could be predicated on a "reasonable person" standard merited reversal. 

Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”

However, whether or not that mental state could include "recklessness" was not decided by the Court.  Chief Justice Roberts's opinion for the seven Justice majority, specifically disagreed with Justices Alito and Thomas, who each wrote separately, regarding the suitability of reaching the "recklessness" issue.  Roberts wrote:

In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it.

Moreover, although the Court  may be “capable of deciding the recklessness issue,” (quoting the opinion of ALITO, J.), Roberts wrote that "following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly."

Here is the Court's First Amendment "discussion":

Given our disposition, it is not necessary to consider any First Amendment issues.

Justice Alito would reach the First Amendment issue and hold that a recklessness standard would comport with the First Amendment.  Justice Thomas, dissenting, would affirm the Third Circuit's "general intent" standard and hold that Elonis' statements were "true threats" unprotected by the First Amendment.

Interestingly, Chief Justice Roberts's opinion does include extensive quotes from the postings, including Mr. Elonis's reference to "true threat jurisprudence."  It does not, however, include some of the more problematical sexual language.

June 1, 2015 in Courts and Judging, Criminal Procedure, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (1)

No Clearly Established Right to Suicide Prevention Procedures

The Supreme Court ruled today that there was no clearly established right to proper implementation of adequate suicide prevention procedures in a prison. The per curiam ruling in Taylor v. Barkes means that the commissioner of the Delaware Department of Correction and a prison warden enjoyed qualified immunity against a claim by the family of a deceased prisoner that they failed to supervise and monitor a private contractor's intake screening and medical treatment of the suicidal prisoner. The family's civil rights case against the commissioner and warden is therefore dismissed.

The case involved a prisoner who had a history of psychiatric treatment, medication, and suicide, but who was not designated for any special suicide prevention measures pursuant to the intake protocol. After intake, the prisoner called his wife and told her he was going to kill himself. Officers observed the prisoner awake and behaving normally the next morning, but later that morning the prisoner hanged himself with a bed sheet.

The family sued the commissioner and warden for violation of the Eighth Amendment. But the Court's ruling today says that the prisoner had no clearly established right to proper implementation of an adequate suicide prevention protocol. As a result, the defendants enjoyed qualified immunity, and the case is dismissed.

June 1, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Amar, Kendall on Law of the Land

Check out this conversation between the Constitutional Accountability Center's Doug Kendall and Akhil Amar on Amar's new book The Law of the Land: A Grand Tour of Our Constitutional Republic.

 

June 1, 2015 in Books, News, Scholarship | Permalink | Comments (0)