Constitutional Law Prof Blog

Washington Judge Defers to State AG in Health Reform Challenge

Washington Superior Court Judge Sharon S. Armstrong denied the plaintiffs' motion for a preliminary injunction, or in the alternative for a permanent injunction and mandamus, in Mackey v. McKenna, the state court suit by a group of Washington women against the state attorney general challenging the state AG's role in the Affordable Care Act litigation now at the Supreme Court.

As we posted, a group of Washington women sued state AG Rob McKenna seeking a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate.  The plaintiffs claimed that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place--in other words, to sever the mandate.  Yet he joined the state in the multi-state suit challenging the entire ACA, and the plaintiffs' position in that case that the mandate was not severable.  The plaintiffs said that this violated his professional duties to Washingtonians.

Judge Armstrong rejected the argument.  She wrote:

Had Attorney General McKenna taken the formal legal position that only severability could protect the interests of the State of Washington and its citizens, and then filed contrary briefing in the federal courts, he would have violated his ethical duty to faithfully represent the interests of the State of Washington and its residents, would have improperly relinquished control over his role in the litigation to other attorneys general, and filed an erroneous brief to the U.S. Supreme Court.

But here the court found that statements by McKenna contrary to his litigation position were merely "political statements by an elected official," and were thus "issues to be addressed in the political realm."  In the end, Judge Armstrong wrote that the court "lacked authority to second-guess the attorney general's legal strategy in the health care reform litigation, whatever the wisdom of his legal strategy."

The ruling is hardly a surprise.  The case was a stretch to begin with, and even the plaintiffs' requested relief wouldn't have changed the picture at the Supreme Court.  It was really about holding AG McKenna accountable for his statements, and his actions.  Judge Armstrong was clear: Any holding-to-account should go through the ordinary political process, not the courts.

SDS

CFP: AALS ConLaw Section

Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
 
The Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.

The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
 
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.

The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
 
Deadline Date for Submission: August 1, 2012
 
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT pepperdine.edu.

RR 

Second Circuit Upholds NY's Kosher Law

New York has had kosher fraud or kosher labeling laws since 1915. 

The present statute, the Kosher Law Protection Act of 2004 essentially provides:

1. that any food establishment that sells or offers for sale food prepared on its premises or under its control that is represented as kosher post a kosher certification form on the premises;
2. that any individual packaging a product which is sold or offered for sale as “kosher” or “kosher for passover” label these products as such;
3. that any person selling both kosher and non-kosher products post a window sign indicating that both kosher and non-kosher products are sold there;
4. and that any individual certifying a food product as kosher file his or her identifying information with the Department of Agriculture, and if that individual is certifying non-prepackaged food as kosher, he or she must also file a statement of his or her qualifications for providing such certification.

This 2004 revision is the result of previous litigation in which the precedessor statute was declared unconstitutional by the Second Circuit as violating the Establishment Clause.  Applying Lemon, the Second Circuit had found that the law caused excessive entanglement and both advancing and inhibiting religion.

However, in today's opinion in Commack Self-Service Kosher Meats, Inc. v. Hooker, the Second Circuit upheld the 2004 Kosher Protection Act, affirming the district judge.  The plaintiffs, Commack Self-Service Kosher Meats - - - who had also instigated the previous litigation - - - argued that the 2004 Act violated both the Establishment Clause and the Free Exercise Clause.

The Second Circuit applied the well-known Lemon test - - - from Lemon v. Kurtzman - - - and repeatedly stressed the fact that "kosher food" is not primarily a religious commodity.  Moreover, in deciding the "secular purpose" prong, the Second Circuit found it important that unlike the prior version, the 2004  Kosher Act does not adopt a definition, interpretation or standard for the term “kosher.”  As for endorsement, again, the Second Circuit distinguished the prior Act: there is no preference in the 2004 Act for one sacred text over another; it only requires labeling. 

The panel also rejected the Free Exercise claim.  The plaintiffs argued that the labeling requirements were excessive and burdened the free exercise of their non-Orthodox religion.  The court, however, found that the law was a neutral one of general applicability and the state's interest in preventing fraud is served by the statute.

Thus, it seems that the state learned from its earlier experience with the Kosher Law to craft a statute that may seem religious, but survives First Amendment challenges under the religion clauses.

RR
[image: historic wine label via]

Yoo Gets Qualified Immunity, Ninth Circuit Rules

The Ninth Circuit ruled today in Padilla v. Yoo that former Office of Legal Counsel attorney John Yoo is entitled to qualified immunity from a civil suit brought by Jose Padilla and his mother Estela Lebron for constitutional violations and torture while Padilla was detained as an enemy combatant.

The ruling means that the case will be dismissed, unless Padilla and Lebron appeal to the full Ninth Circuit or to the Supreme Court--and they agree to hear the case.  The ruling reverses the lower court ruling in the case and aligns with the recent Fourth Circuit ruling dismissing a similar case (but for different reasons, discussed below).

The three-judge panel ruled unanimously that at the time of Padilla's detention it was not clearly established that his treatment violated his constitutional rights, and that it was not clearly established that his treatment amounted to torture. 

As to constitutional rights, the court said that the outcome was dictated by the Supreme Court's ruling in Ashcroft v. al-Kidd (2011):

Significant here, under the second prong, a "Government official's conduct violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" . . .  "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate."  The Court emphasized that "[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions" and admonished us "not to define clearly established law at a high level of generality."

Op. at 4524 (quoting Anderson v. Creighton (1987)).  The court said that there was no judicial precedent squarely on point, and Padilla's argument--that a reasonable official would have known that he was entitled to the same constitutional protections as an ordinary prisoner or a suspect--defined the clearly establish right at too high a level of generality, in violation of al-Kidd.

As to torture, the court said that it wasn't clearly established at the time of Padilla's detention that his allegations rose to the level of torture (although it was clearly established that a U.S. citizen in military custody could not be tortured).  The court surveyed international and domestic cases on torture and concluded that Padilla's allegations didn't obviously amount to torture. 

The ruling aligns with the recent Fourth Circuit ruling in essentially the same case, although for different reasons.  The Fourth Circuit ruled in Lebron v. Rumsfeld that special factors counseled against the case and that Padilla had other avenues of relief (habeas), thus defeating Lebron's Bivens claim.

SDS

Update: Fifth Circuit Grants Emergency Stay in Texas Planned Parenthood Case

The Fifth Circuit, in a brief order from Judge Jerry Smith, has issued a stay of Judge Yeakel's preliminary injunction in  Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs.

  As we discussed yesterday, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.

UPDATE here

RR

 

Greenhouse on Ginsburg on Gender on Coleman v. Maryland: Worth Reading

The inimitable Linda Greenhouse has a provocative column entitled "Women's Work" which takes up the continuing relevance of gender politics - - - and a gender divide - - - on the Supreme Court.  Her subject is the Court's 5-4 opinion last month in Coleman v. Court of Appeals of Maryland.

Coleman's consitutional issue involved the Eleventh Amendment, which may at first blush seem an odd grounding for gender equality, until one recalls cases such as Nevada Department of Human Resources v. Hibbs (2003).  As Greenhouse reminds us, Rehnquist's opinion for the majority in Hibbs was rather suprising.  Not only did it reverse the Court's trend to "diss Congress" (as Ruth Colker and  James Brudney so evocatively phrased it in their terrific 2001 article), but also construed Congressional intent in the Family Medical Leave Act (FMLA) as addressing  “the pervasive sex-role stereotype that caring for family members is women’s work.” 

Greenhouse states she'd "love to know" how Rehnquist would have decided Coleman, involving the self-care provision of FMLA.  She criticizes Kennedy's opinion for the Court as ignoring the legislative history that Ginsburg so meticulously discussed in the dissent and that was central to Hibbs. (Of course, one might also recall that Kennedy also dissented in Hibbs).

And, while we are used to thinking about a "liberal" v. "conservative" split on the Court, Greenhouse highlights another split: "the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority."  

One of those five men in the majority is Alito, who one might recall, replaced Justice O'Connor.  O'Connor joined the majority in Hibbs, so perhaps it is reasonable to believe that she would have joined Ginsburg's view regarding the importance of sex-role stereotyping in the FMLA, extended to the self-care provision.

But one might also recall that before Justice Alito, there was nominee Harriet Miers.  One wonders how she might have voted.

RR
[image: WWII government poster via]

Private Attorney Retained for Government Investigation May Seek Qualified Immunity

A unanimous Supreme Court ruled on Tuesday in Filarsky v. Delia that a private person temporarily hired by the government to perform an internal investigation may seek qualified immunity from a civil rights suit arising out of his investigation.  The ruling sends the case back to the lower courts to determine whether the private person, Filarsky, is actually immune under qualified immunity principles.

The case arose out of a strangely aggressive investigation of a relatively minor incident.  Delia, a City of Rialto (Cal.) firefighter, missed work after becoming ill on the job.  When the City became suspicious (after someone saw Delia buying building supplies) it initiated an internal investigation and hired Filarsky, a private attorney, to conduct it.  As part of the investigation, Filarsky asked Delia to allow fire department officials to enter Delia's home to take a look at the unused building materials.  When Delia refused, Filarsky ordered him to bring the materials out of his home for the officials to see.

Delia sued the City, the fire department, City officials, and Filarsky for civil rights violations under Section 1983.  The lower courts granted qualified immunity to all individual defendants, but the Ninth Circuit ruled that Filarsky didn't qualify--because he was a private attorney, not a City employee.

Chief Justice Roberts wrote for a unanimous Court.  He applied the familiar test--looking to the general principles at common law in 1871, when Congress passed Section 1983, and the reasons that the Court has extended immunity under Section 1983 suits--and concluded that Filarsky could claim qualified immunity.

Chief Justice Roberts wrote that lines between government employment and private practice weren't so clear for attorneys in 1871, and that private attorneys often performed government functions, and vice versa.  As a result, "it should come as no surprise that the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities."  Op. at 8.  And "[i]ndeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself."  Op. at 10.  Moreover, the principal reason for qualified immunity, avoiding "unwanted timidity" in performance of public duties, applied equally to Filarsky.  Thus, Chief Justice Roberts wrote, Filarsky could claim qualified immunity.

Justice Ginsburg wrote a concurrence, emphasizing that the lower courts now have to determine whether Filarsky's conduct violated a "clearly established" right--and therefore whether he's actually immune.  Justice Sotomayor wrote a concurrence, saying that this case doesn't mean that all private individuals working temporarily for the government may claim qualified immunity, or that they all may not.  According to Justice Sotomayor, "[t]he point is simply that such cases should be decided as they arise, as is our longstanding practice in the field of immunity law."

SDS

Texas Court Issues New District Maps

The Western District of Texas issued new legislative district maps late yesterday after the Supreme Court sent the case back to the Texas court last month.  (Thanks to txredistricting.org for the maps.)

Recall that the Supreme Court in Perry v. Perez vacated the Texas district court's maps that were drawn while Texas's preclearance case under Section 5 of the Voting Rights Act was pending in the D.C. court.  The per curiam Supreme Court said that the Texas court should defer to the Texas legislature's maps unless they stand a "reasonable probability" of failing Section 5 preclearance.

In response, the Texas court reissued maps late yesterday.  Here's what the Texas AG had to say about it:

The new interim maps issued late today are a substantial improvement from maps previously issued by the San Antonio court.  As a result of the U.S. Supreme Court's unanimous, clear direction to the district court, these new interim maps more accurately reflect the decisions of elected Texas legislators.

In light of the State's legal arguments, the San Antonio court only modified the Legislatively enacted plan in response to alleged Voting Rights Act violations--while leaving virtually all other districts as they were drawn by the Legislature.  In doing so, the court properly rejected the demands by some plaintiffs to draw drastic and overreaching interim maps.

We apparently don't have a written opinion from the Texas court yet, and we can't see exactly how it applied the "reasonable probability" standard--and therefore whether Texas succeeded in forging a new path around Section 5 preclearance.

SDS

Fourth Circuit Rejects Padilla's Civil Claims

A three-judge panel of the Fourth Circuit yesterday rejected Jose Padilla's civil claims against Donald Rumsfeld and other high-level government officials growing out of his designation as an enemy combatant and his military detention.  The ruling, Lebron v. Rumsfeld, is at least in part in tension with a recent Seventh Circuit ruling (now on appeal to the en banc Seventh Circuit, and discussed below) and two recent district court rulings--one from the Western District of Washington and the other from the District of Columbia.

Padilla sued the officials for constitutional violations under Bivens and for violations of the Religious Freedom Restoration Act.  He sought declarations that his designation and detention were unconstitutional and that the policies that led to his treatment were unconstitutional, an injunction against future designations and detentions, and nominal monetary relief.  The district court rejected his Bivens and RFRA claims, and ruled that he lacked standing for injunctive relief.

The Fourth Circuit affirmed.  The panel applied the two-part framework in Wilkie v. Robbins (2007) and ruled (1) that special factors counseled against a Bivens remedy and (2) that Padilla had alternative forms of relief.  The panel said that separation-of-powers principles counseled against a Bivens remedy, in particular: military matters like this are the province of the political branches, and the courts lack the expertise and risk upsetting the military command structure and intelligence gathering activities.

The panel also said that Padilla had other forms of relief, in particular habeas.

The ruling on special factors and separation of powers is in tension with similar recent rulings by the Seventh Circuit and two district courts.  Thus in Vance v. Rumsfeld a three-judge panel of the Seventh Circuit ruled that separation-of-powers principles like those at issue here did not stand in the way of the plaintiffs' Bivens remedy.  The U.S. District Court for the District of Columbia ruled similarly in Doe v. Rumsfeld.  Both cases involved U.S. citizen plaintiffs (like Padilla)--an important point of distinction for the Seventh Circuit panel, which distinguished Ali v. Rumsfeld (D.C. Cir. 2011) and Arar v. Ashcroft (2d Cir. 2009), both of which rejected Bivens claims of aliens.  (We posted on the cases here.)

The Western District of Washington extended Vance and Doe just last month in Hamad v. Gates.  That court ruled that separation-of-powers principles did not counsel against a Bivens claim of an alien.  The court ruled that alienage didn't matter for the special factor analysis.

The ruling on alternative relief is not so obviously in tension with Vance and Doe.  The plaintiffs in those cases were U.S. citizens detained overseas at Camp Cropper, without available access to habeas.  (Whatever one thinks about the Fourth Circuit's ruling that habeas as a reasonable alternative to a Bivens claim in the Wilkie calculus, the plaintiffs in Vance and Doe didn't even have that.)

The panel ruling in Vance was vacated and is now on appeal to the en banc Seventh Circuit.  Oral arguments are set for February 8.

The Fourth Circuit also ruled that the defendants enjoyed qualified immunity against Padilla's RFRA claim, because it wasn't clearly established that RFRA would apply to military detention.

Finally, the court ruled that Padilla lacked standing on his claim for injunctive relief.  It ruled that Padilla couldn't show that he'd be subject to re-designation or re-detainment, and, in any event, it won't happen for a long time: He's now facing more than 17 years on resentencing in his criminal case.

SDS

 

Second Circuit Upholds NYC's "Pay-to-Play" Campaign Finance Law

The Second Circuit rejected a First Amendment challenge to New York City's laws which seek to prevent so-called "pay-to-play" schemes that link campaign contributions to city contracts. 

In a panel opinion rendered last week in Ognibene v. Parkes, authored by Judge Paul Crotty, a district judge sitting by designation, and with two concurring opinions, the Second Circuit upheld the law.  The challenged provisions were those that

• limit campaign contributions by individuals and entities that have business dealings with the City (from the generally applicable limit of $4,950 to $400 for mayor, comptroller, and public advocate, with similar schemes and reductions for borough presidents and members of city council);
• exclude such contributions from matching with public funds under the public financing scheme; and
• expand the prohibition on corporate contributions to include partnerships, LLCs, and LLPs.

The district judge had upheld the city laws in 2009, but the Second Circuit now had to consider both Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) and  Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).  Ultimately, the panel found that neither case altered the district judge's conclusion.

As to Citizens United, the panel opinion rejected the appellants' attempt - - - through "selective and misleading quotes" from Citizens United - - - to broaden Citizens United and obliterate the Supreme Court's "clear distinction between limits on expenditures and limits on contributions."  (at 18).  For the panel, Citizens United "confirmed the continued validity of contribution limits, noting that they most effectively address the legitimate governmental interest, identified by Buckley [v. Valeo], in preventing actual or perceived corruption." 

More contentious, however, was the nature of the actual or perceived corruption required.  As the panel opinion noted, although "Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption," citing Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).  Judge Debra Ann Livingston concurred separately to disagree with any notion that improper influence was a form of corruption that could be constitutionally addressed.   However, the panel lauded the city's fact-finding about corruption and the perception of corruption, stating both that the city need not wait until the "dog" actually bit before enacting legislation (at 27) and that there were actual recent "scandals involving exchanges of money for favors," (at 31 n.15 citing news reports).  

Having found the government interests sufficient, the panel opinion then analyzed whether the provisions were closely drawn.  The panel opinion rejected the argument that the provisions were poorly tailored because they were not "indexed for inflation" and because they discriminated based upon viewpoint.   The viewpoint argument was largely based upon the exclusion of nonprofits such as neighborhood associations from the city law, but the panel stated that appellants never specified the viewpoint, and that neighborhood associations (for example) did not have a unified viewpoint.

The panel also rejected the challenge to the matching funds provision, distinguishing Bennett, and found that the entity ban, including not only corporations but partnerships, was sufficiently closely drawn.

Judge Guido Calabresi's interesting concurring opinion merits a close and full read.  Beginning with a Biblical passage, Calabresi states his disagreement with the Supreme Court's belief in the majority opinion in Citizens United that a government antidistortion interest (to "level the playing field") is inconsistent with the First Amendment.  Instead, courts should recognize that interest in the same manner that they recognize the validity of noise ordinances:

If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue. In much the same way that anti-noise ordinances help to prevent megaphone users from drowning out all others in the public square, contribution limits can serve to prevent the wealthiest donors from rendering all other donors irrelevant—from, in effect, silencing them.

Moreover, the problem with the loudness of the megaphone in the public square

is not just that it drowns out the voices of others, but also that it misrepresents, to an outside observer, the relative intensity of the speaker’s views. That is, even if the megaphone user cares little about the issue being discussed, his voice gets heard above all others, while the voices (and intensity of feelings) of those who care passionately about the issue (and shout their beliefs at the top of their lungs) seem small in comparison. The one speaker’s relative loudness— along with the other speakers’ relative softness—obscures the depth of each speaker’s views, thereby degrading the communicative value of everyone’s message.

Calabresi's opinion articulates some of the same criticisms of campaign financing that animate the Occupy Wall Street movement.  He concludes by criticizing the Supreme Court's lack of deference to the legislature and essentially suggesting that the Court's activism (although he does not use that term) will be eventually ameliorated, whether through a "constitutional amendment or through changes in Supreme Court doctrine."

RR
[image: "Charging Bull" on Wall Street]

Ron Paul and The Federal Reserve

With Ron Paul reportedly becoming a "serious contender" in the presidential primary, there is renewed attention to his views on the Federal Reserve as "dishonest, immoral, and unconstitutional," encapsulated in his campaign slogan, "end the fed. " 

An extended video, Fiat Empire, now about 6 years old, is a good introduction to the issues. 

The argument supporting the unconstitutionality of the Federal Reserve can be summed up in the phrase "the poster child of unconstitutional private delegation," cited to John Hart Ely in Timothy Canova's article, Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence, available on ssrn.  Section 4 of the article is a great overview and argument regarding the Federal Reserve.  (I assigned this section last semester in Constitutional Structures in conjunction with Free Enterprise Fund v. PCOAB which Canova also discusses, and showed a short clip from Fiat Empire; it was well-receoved by students.)

As Canova notes, concerns about the Federal Reserve arise both from the "populist libertarian right" and the "populist progressive left" :  When "Representative Ron Paul, a Republican libertarian from Texas, introduced a bill to subject the Federal Reserve to an audit by the Government Accountability Office (GAO)" it was "cosponsored on the left by such Democratic and progressive Congressmen as Dennis Kucinich from Ohio and Alan Grayson from Florida." 

Canova and others, including Joseph Stiglitz, Jeffrey Sachs, and Robert Reich have been named experts on a panel advising a United States Senator to "develop legislation to restructure the Fed and tighten rules on conflicts of interest, ensure that the Fed fulfills its full-employment mandate, increase transparency, protect consumers and reduce income inequality."  That Senator is Bernie Sanders, Independent-Vt.   And while Paul and Sanders may agree on some aspects of the Federal Reserve, they seem to be very far apart on health care reform.

RR

Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?

Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues. 

Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."

The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.  

More information, including registration information is here.  The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18. 

RR

Seventh Circuit Allows Torture Suit Against Rumsfeld to Move Forward

A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.

If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward.  (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.)  The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens.  (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)

Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail.  The meaty opinion seems carefully tailored to withstand any appeal.

In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it.  The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity.  The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy.  In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war.  Here's a flavor of what the court said on that point:

The unprecedented breadth of defendants' argument should not be overlooked.  The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone.  The defendants' theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom.  We disagree and conclude that the plaintiffs may proceed with their Bivens claims.

Op. at 43.

Judge Minion wrote in dissent that the court improperly extended Bivens to this case--a case in which "United States citizens alleg[ed] torture while held in an American military prison in an active war zone."  Op. at 81.

This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld.  We'll watch for appeals.

SDS

[Image: Anonymous, Execution, Wikimedia Commons]

Revisiting Flores-Villar: Collins and Kerber

As we contemplate the Court's last term, one of the more cryptic cases is Flores-Villar.  The Court's per curiam decision is one of those unsatisfying conclusions: "The judgment is affirmed by an equally divided Court. JUSTICE KAGAN took no part in the consideration or decision of this case."

The Ninth Circuit opinion had upheld the federal statutory scheme which requires a citizen father to have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. In the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth and it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

In a recent speech, Justice Ginsburg alluded to Flores-Villar as one "only two of the 78 argued cases" last term that "ended in an even division" possible because of Kagan's recusal. (The other case, also resulting an affirmance of the Ninth Circuit, was Costco v. Omega, involving a copyright issue).

Kristin Collins and  Linda K. Kerber (pictured right and the author of the wonderful book, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship), have an interesting discussion of Flores-Villar in Dissent Magazine.

Collins and Kerber observe:

In our own political moment, these words—citizenship, naturalization, alien—are highly charged and often misused. That they were so slippery in the Court’s deliberations in Flores-Villar may be a sign of how slippery they have become in public conversation. No one in the courtroom that day could have been unaware that the birthright citizenship clause of the Fourteenth Amendment—one of the key bulwarks of American liberty, enacted following the Civil War to make sure that southern states recognized African Americans as citizens—is being energetically attacked in legislatures throughout the nation. The attack is linked to suspicion of undocumented migrants, stereotypically visualized as pregnant women entering from Mexico to take advantage of the fact that their “anchor babies” would be citizens. In Flores-Villar, another gender-based stereotype survived: the unmarried father who plays no role in his child’s upbringing. But, in reality, neither of these stereotypical parents was present. Instead, we had an American father who brought his newborn son home to the United States to raise him there. The important differences between stereotypes and real people, and between immigration and citizenship, seem to have blurred for half of the Court.

They also predict that Flores-Villar is not the last the Court will see of this issue:

Three times in thirteen years the Supreme Court has heard arguments on the question of whether mothers and fathers may be treated differently in determining whether their children are American citizens. Given the equivocal result in Flores-Villar and the importance of what is at stake, there will no doubt be a fourth time. We must now wait patiently to see what a full Court—one on which Justice Kagan need not recuse herself—might do.

RR

Justice Ruth Bader Ginsburg: On the 2010 Term

Justice Ginsburg's talk on the Court, presented at the Otsego County Bar Association of New York,  July 22, 2011, is worth reading. Here is an edited version of the written transcript.  The transcript includes footnotes and citations (omitted below), including to the oral argument statements and cases. 

 The edited version continues after the jump, with Ginsburg discussing constitutional law cases such as Snyder v. Phelps, Arizona Christian School Tuition Organization v. Winn,  Chamber of Commerce v. Whiting, and Arizona Free Enterprise Club v. Bennett. Ginsburg "explains" the fact that three of these cases are from Arizona, and makes her most provocative statement on the Court's term regarding Arizona Free Enterprise Club v. Bennett.  She also mentions the reality of three women Justices on the Court.

 

I will present some comments on the Supreme Court Term just ended, the 2010-2011 Term. Early in the Term, the Justices sat for a new photograph, as they do every Term the Court'scomposition changes. Elena Kagan, former Solicitor General, and before that, Dean of the Harvard Law School, came on board last summer, and has just completed her first year as a member of the Court. She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions. The junior Justice, in the first few rounds, tends to get opinion writing assignments in cases neither controversial nor of greatest interest. Displaying her good humor and wit, Justice Kagan opened the announcement of one of her opinions for the Court with this line: "If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee."

Lawyers and law professors alike pay close attention to the questions Justices pose at oral argument. The 2010-2011 Term was rich in that regard. Questions from the bench ranged from the historical: "[W]hat [did] James Madison th[ink] about video games[?]" to the practical: "[I]sn't ... evidence always .. . destroyed when ... marijuana [once possessed by a suspect] is ... smoked? Isn't it being burnt up?"

Colleagues have been fearful: "Does al-Qaeda know all this stuff?", occasionally philosophical: "[W]hy are you here?" "[W]hy are we all here?", and sometimes openly exasperated: "I know your client doesn't care. But we still have to write [an opinion]. So what['s] the answer?" Queries ran from the natural: "Is the snake covered?" to the unnatural: "[W]here is the 9,OOO-foot cow?" to the supernatural: ''What do you think about Satan?"

Justice Jackson famously commented that the Court is "not final because [it is] infallible, [it is]infallible only because [it is] final." Some musings from the bench last Term bear out that wisdom: "I don't know what I'm talking about," "Is that the best you can find on the other side, ... something I once wrote in a case?" You may not be surprised to learn that I uttered none of the just-recited lines. For, as the New York Times reported, based originally on an empirical study by a former law clerk of mine, when it comes to oral argument,I am-quote-" the least funny Justice who talks." From the foregoing samples, you may better understand why the Court does not plan to permit televising oral arguments any time soon.

Turning to the Term's work, I will report first on our docket. Argued cases numbered 78, the same number as the two preceding Terms. Per curiam opinions in cases decided without full briefing or argument numbered only five, consistent with the 2008-2009 Term, but considerably fewer than last Term. One petition was dismissed post-argument as improvidently granted, and another was remanded before argument in light of a recent development bearing on the question presented. Justice Kagan's recusal in more than one-third of the argued cases generated speculation that the Court would all too often divide 4 to 4; in fact, only two of the 78 argued cases ended in an even division. When that happens, we announce that the judgment we took up for review is affirmed by an equally divided Court. We state no reasons and the disposition does not count as precedent. (A third case last Term was evenly divided only as to threshold jurisdictional issues; and after affirming without opinion the lower court's exercise of jurisdiction, the Court rendered a unanimous decision on the merits of the controversy.)

The Court split 5-4 (or 5-3 with one Justice recused) in 16 of the opinions handed down in argued cases. In comparison to that 20% sharp disagreement record, we agreed, unanimously, on the bottom-line judgment more than twice as often, in 33 (or over 40%) of the decisions. And in more than half of those, 18 of the 33, opinions were unanimous as well.

I will next mention six headline-attracting decisions. Two significant class action cases were among them. The first, AT&T Mobility LLC v. Concepcion,concerned the enforceability of fine-print

 

 

 

arbitration provisions in consumer contracts. Representatives of a putative class of mobile phone users filed suit against AT&T, their service provider, arguing that the company had engaged in fraud by charging sales tax on phones advertised as "free." The service contract's arbitration provision prohibited class actions. The lower courts held the provision unconscionable and allowed the case to proceed on a class basis. The Supreme Court reversed in a 5-4 decision. The majority held that the plaintiffs must pursue their claims, if at all, in individual arbitrations. State unconscionability law, the Court concluded, stood as an obstacle to the objectives of the Federal Arbitration Act. The FAA's purpose, the majority urged, is to enforce private agreements and encourage efficient dispute resolution. State law calling for non-consensual class arbitration, the majority felt, would interfere with fundamental attributes of arbitration. I was among the dissenters. In consumer actions of this kind, the dissenters observed, due to the small amount of damages each plaintiff could claim, the real choice was often between class litigation, or no suit at all.

The second major-league class action case was Wal- Mart v. Dukes. Current and former employees sued Wal-Mart, alleging gender discrimination in discretionary pay and promotion decisions, in violation of Title VII (the nation's principal antidiscrimination in employment law). On behalf of themselves and a nationwide class of some 1.5 million female workers, the named plaintiffs sought declaratory and injunctive relief for the class, and backpay for each class member. Federal Rule of Civil Procedure 23-the Rule governing class actions-controlled. Two questions were raised concerning the Rule's application. First, the Court considered Rule 23(a)(2)'s requirement that a party seeking class certification identify "questions of law or fact common to the class." Next, the Court took up Rule 23(b)(2), the subcategory of class actions permitting certification when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The plaintiffs contended that Rule 23(a)(2)'s gateway "commonality" requirement was met upon showing rudderless managerial discretion to set pay and award promotions, a company culture rooted in sex-role stereotyping, statistics alleged to demonstrate that pay and promotion disparities could be explained only by gender discrimination, and anecdotal evidence of individual instances of disparate treatment. A 5-4 majority concluded that the plaintiffs could not even pass through the 23(a) gateway, because millions of discrete employment decisions were called into question. On that issue, I wrote for the four dissenters. The requisite commonality was satisfied, I explained, by this phenomenon: Managers were overwhelmingly male, and they tended, perhaps unconsciously, to favor people who looked like themselves. As a graphic example, I noted that women did not appear in numbers in symphony orchestras until a curtain was dropped, so that the auditioners could not tell whether the applicant was male or female.

The Court was unanimous, however, on the second issue raised in Wal-Mart. Rule 23(b)(2), under which the plaintiffs sought certification, was designed for cases in which injunctive or declaratory relief is prime. For the would-be class in Wal-Mart, we concluded, the driving issue was backpay. Therefore, Rule 23(b)(3)- which generally governs when monetary relief is sought-controlled. But the plaintiffs quite deliberately declined to invoke that portion of the Rule, involving, as it does, more exacting procedural requirements.

The next top-billed case I will discuss, Snyder v. Phelps, attracted constant coverage in the media,reportorial, photographic, and editorial. The case concerned the First Amendment rights of the Westboro Baptist Church, a small congregation engaged in expressive activity many would rank as outrageous: Church members picket military funerals to communicate the congregation's belief that God hates the United States for its tolerance of homosexuality. Church members picketed in proximity of the funeral of Marine Lance Corporal Matthew Snyder, a young man killed in the line of duty in Iraq. Snyder's father sued the congregation, asserting various state law tort claims, including intentional infliction of emotional distress. The content of the picketers' signs, however offensive, plainly related to issues of public concern and could not be categorized as addressing, dominantly, concerns of a private character. We held that the First Amendment shielded the church from tort liability for picketing in the vicinity of Snyder's funeral. Our judgment invalidated a jury's two million dollar punitive damages award. The First Amendment, we reminded, protects even the most hateful views. Justice Alito's heart-felt dissent underscored the incomparable distress suffered by the Snyder family. Although no member of the Court joined him, his opinion aligned with the views of many Court-watchers, including one of the nation's newest-retired Justice Stevens recently told the Federal Bar Council he "would have joined [Justice Alito's] powerful dissent."

With Justice O'Connor's retirement and Chief Justice Rehnquist's passing, no member of the Court hails from Arizona. Perhaps counterbalancing that loss, Arizona was disproportionately represented among frontrunning and closely contested cases argued last Term. One of the 5-4 decisions, Arizona Christian School Tuition Organization v. Winn, presented this question: Did Arizona taxpayers have Article III standing to challenge a newly installed tax credit, allowed for contributions to school tuition organizations, which, in turn, use the contributions to provide scholarships to students attending private schools-most of them, as one might expect, religious schools. Justice Kennedy, writing for the majority, distinguished what many (including me) considered the controlling precedent, Flast v. Cohen, and held that state taxpayers lacked standing. Justice Kagan's forceful dissent-- - her first - - - was joined by Justice Breyer, Justice Sotomayor, and me.

Another headline case, Chamber of Commerce v. Whiting, asked whether federal law preempts an Arizona statute that authorizes suspension or revocation of the business license of any employer found to have knowingly or intentionally employed an undocumented alien. In a 5-3 decision, the Court ruled that Arizona's law was not preempted by the extensive federal regulation of the field.

Perhaps the most consequential case from the Grand Canyon State was the last opinion announced on the Court's last sitting day of the 2010-2011 Term. In Arizona Free Enterprise Club v. Bennett, the Court addressed a First Amendment challenge to an Arizona campaign-finance law. Under the State's law, a candidate for state office who accepts public financing could receive additional state funds tied to the campaign spending of opposing, privately-financed candidates and of independent expenditure groups supporting those candidates. Five past and future candidates for Arizona state office and two independent expenditure groups challenged Arizona's matching funds law. They argued that the State's law constrained them from exercising their First Amendment rights. In a 5-4 decision, the Court agreed, holding that Arizona's matching funds scheme substantially burdens political speech and is not justified by a compelling state interest. In a powerful dissent summarized from the bench, the Court's junior Justice stated the opposing view, with which I agree in full. All the democracy money can buy, I believe, is not what the First Amendment orders.

We have already granted review in 42 cases for the 2011-2012 Term, a pace slightly ahead of last year. So far, no State stands out on next year's docket as Arizona did last Term. One might argue that if Arizona's experience in the 2010-2011 Term is an indication that the absence of a home-state Justice increases the Court's readiness to grant review, the converse may also be true. If so, my home State, New York, is most securely situated. With Justices now bred in four of New York City's five boroughs, should another vacancy arise, Staten Island jurists should stay close to their phones.

Last year, in remarks addressed to the Second Circuit's Judicial Conference, I noted my joy that we would soon have three women on the Court. I am now delighted to report that not once this Term has an advocate called me Justice Sotomayor or Justice Kagan, and the same holds true for my junior colleagues. We sit left, right, and center of the bench and, as transcripts of oral argument show, Justice Scalia is getting a run for his title as the Justice who asks the most questions.

 

***

RR
[bold emphasis added]

July 4: Declaration of Independence in the Supreme Court Term 2010-2011

The signing of the Declaration of Independence on July 4, 1776, is the genesis of the "Fourth of July" holiday.

Drafted by Thomas Jefferson, the document itself (or what we have come to consider the document but is actually a 1823 transcription) is on view at The National Archives, which has extended hours this weekend. The text is also available on the National Archives website.

 

This past term, the Declaration of Independence figured in two United States Supreme Court opinions, both decided late in the term and both in the opinion for the Court.

In Stern v. Marshall, discussing the bankruptcy courts, Justice Roberts writing for the Court included a reference to the Declaration:

Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges. The colonists had been subjected to judicial abuses at the hand of the Crown, and the Framers knew the main reasons why: because the King of Great Britain “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” The Declaration of Independence ¶ 11. The Framers undertook in Article III to protect citizens subject to the judicial power of the new Federal Government from a repeat of those abuses.

The Court concluded that the bankruptcy court - - - a federal but non-Article III court - - - lacked constitutional power to adjudicate a final order on a state law claim.

In Borough of Duryea, Pa. v. Guanieri, regarding the First Amendment right to petition, Justice Kennedy, writing for the Court, also referred to the Declaration.  After discussing the Magna Carta, the Petition of Right (1628), and practices in England, the opinion noted:

The Declaration of Independence of 1776 arose in the same tradition. After listing other specific grievances and wrongs, it complained, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” The Declaration of Independence ¶ 30.

Nevertheless, the Court rejected the right to petition under the First Amendment as the basis of a claim for relief for the original plaintiff.

RR

 

Sixth Circuit Upholds Individual Health Insurance Mandate

A three-judge panel of the Sixth Circuit today upheld the individual health insurance mandate in the federal Patient Protection and Affordable Care Act (ACA) under Congress's Commerce Clause authority.  The ruling affirmed District Judge Steeh's earlier ruling in the case, Thomas More Law Center v. Obama.

The panel split on a couple issues.  Here are the highlights of the opinion:

Commerce Clause Authority: Two of the three judges, Judge Martin and Judge Sutton, agreed that Congress has authority under the Commerce Clause to enact the individual mandate.  But they agreed for slightly different reasons--see below.  Judge Graham disagreed.

Regulating Action versus Regulating Inaction: Given the play this distinction has received in litigation and in public debates, this is the most important--and most interesting--part of the case.  All three judges agreed that there's no constitutional line between activity and inactivity--and that there's therefore no per se restriction on Congress regulating inactivity.  While they agreed on this point for slightly different reasons, they all seemed to agree (at least) that the text of the Constitution does not support the distiction.  Beyond that, they had just slightly different reasons for rejecting the distinction, mostly focusing on how it doesn't square against the Court's Commerce Clause precedents and how it's unworkable in practice.

Outside the Market: Judges Martin and Sutton agreed, again for different reasons, that those who decline to purchase health insurance are nevertheless part of the market--the market for national health care--because they self-insure for the cost of health care services.  Judge Graham disagreed.  He wrote that those who self-insure (and again, the "inactivity" didn't give him a constitutional bother), are not a part of the relevant market--the market for health insurance. 

Taxing Authority: Judges Sutton and Graham agreed that the tax penalty goes beyond congressional authority under the General Welfare Clause.  Judge Sutton wrote at length detailing why.  Judge Martin (like Judge Steeh below) didn't reach this issue, because he concluded that the Commerce Clause adequately supported the individual mandate.

In all, the three opinions well reflect the array of arguments in this case (and in other cases, and in the public debate).  Between the three, they reflect a spectrum--with Judge Martin ruling most clearly that Congress had authority under the Commerce Clause, Judge Martin ruling the same way but with a shade greater caution, and Judge Sutton ruling against.

SDS

Torture Suit Against Rumsfeld Dismissed

A three-judge panel of the D.C. Circuit ruled on Tuesday in Arkan v. Rumsfeld that former Secretary of Defense Donald Rumsfeld enjoyed qualified immunity against the plaintiffs' Bivens claims that he formulated and implemented policies of torture at Abu Ghraib and other military facilities in Iraq and Afghanistan in violation of their Fifth Amendment Due Process and Eighth Amendment rights.  The ruling follows the Circuit's earlier ruling in Rasul v. Myers (Rasul II) and together with that case makes it nearly impossible for an alien plaintiff to bring a constitutional claim against a government official for torture at an overseas facility.  (The case may be closer for torture at Guantanamo Bay, however.)

 

The panel ruled unanimously that it was not clearly established in 2004, the time of the actions, that the Fifth and Eighth Amendments applied to aliens detained abroad:

As it was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens detained at Guantanamo Bay--where the Supreme Court has since held the Suspension Clause applies--it plainly was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens held in Iraq and Afghanistan--where no court has held any constitutional right applies.

Op. at 14. 

The question--whether it was clearly established that Rumsfeld's actions violated the Constitution--is one of two questions courts ask to determine whether an official enjoys qualified immunity.  See Saucier v. Katz; Pearson v. Callahan.  The other question is whether the actions actually violated the Constitution.  The Supreme Court in Pearson held that courts may consider the questions in either order; and if a court rules that it wasn't clearly established at the time, the official gets qualified immunity regardless of whether the actions actually violated the Constitution. 

The panel here considered the former question first--whether it was clearly established at the time--and declined to rule on the other question.  The panel wrote that deciding whether the actions actually violated the Constitution would have been an academic exercise and potentially harmful to prevailing defendants, because it may prevent them from appealing. 

The Supreme Court recently ruled in Camreta v. Greene that a defendant who gets qualified immunity because a right isn't clearly established can nevertheless appeal to the Supreme Court, which has statutory jurisdiction to take an appeal "of any party."  The Court didn't rule on whether a "prevailing" defendant can also appeal to a circuit court, but the panel here seemed to think not.  In any event, the panel here certainly could have ruled on whether Rumsfeld's actions actually violated the Constitution: Pearson allows it; and under Camreta, Rumsfeld clearly could have appealed that to the Supreme Court (assuaging the panel's concern about lack of appealability).  (A principal reason for a court to rule on whether an action actually violates the Constitution is to give officials guidance about their future behavior--what's constitutional, and what's not.)

The upshot is that we don't have a ruling on whether Rumsfeld's actions actually violated the Fifth and Eighth Amendments--and therefore no "declaratory" judgment one way or the other, and no guidance for officials in the future.

The panel also ruled that prudential considerations--that cases like this against military officials would disrupt the war effort--also counseled against a Bivens claim.  The analysis here was sparse, but it puts belts over the suspenders to ensure that no like cases move past a motion to dismiss.

(The panel split 2-1 on whether the plaintiffs could bring an Alien Tort Statute claim.  The majority said no: The ATS claim transforms into a Federal Tort Claims Act claim, because Rumsfeld's actions were "incidental to [his] legitimate employment duties."  Op. at 20.  As an FTCA claim, the plaintiffs had to exhaust administrative remedies.  They didn't, so the case is dismissed.  Judge Edwards, in a lengthy dissent disagreed.)

SDS

D.C. Circuit Rejects Omar's "Refashioned" Habeas Claim

A three-judge panel of the D.C. Circuit ruled Tuesday in Omar v. McHugh that an American citizen held in military custody in Iraq has no right to judicial review of conditions in Iraq, the country where he is to be transferred.  The majority thus rejected his habeas petition; Judge Griffith, in concurrence, would have reached the merits and rejected them.

Petitioner Omar is the same Omar who was part of Munaf v. Geren, the 2008 Supreme Court case holding that federal courts may not exercise habeas jurisdiction to enjoin the government from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign for criminal prosecution.  In Munaf, Omar argued that he would be tortured if transferred to Iraqi authorities, that he therefore had a right under "the substantive component of the Due Process Clause" against transfer, and that the courts had the authority and duty to enforce that right by inquiring into his likely treatment if transferred.  The Court rejected these arguments.

Omar came back with new statutory and constitutional arguments, but the D.C. Circuit rejected them, as well.  Omar argued the Foreign Affairs Reform and Restructing Act of 1998 (FARR), which implements Article 3 of the Convention Against Torture, granted him a right to judicial review.  But the court ruled that the FARR provides judicial review of conditions in the receiving country only in the immigration context, for aliens seeking judicial review of removal, and not for military transferees like Omar.  (The REAL ID Act of 2005 made the limited scope of judicial review even clearer.)  The majority thus ruled that neither the FARR nor the REAL ID Act provided for judicial review here.

As to the Constitution, Omar argued that habeas alone gave him the right to judicial review (whereas the Munaf Court held only that he had no right under habeas and due process), and that he has a substantive due process right to judicial review (whereas the Munaf Court held only that he had no procedural due process right), among other arguments.  The court rejected them all, writing that his attempts to distinguish Munaf failed, that his attempts to craft a right out of constitutional and statutory combinations failed, and that the tradition of habeas in like circumstances cut against him.  ("Those facing extradition traditionally have not been able to block transfer based on conditions in the receiving country. . . .  Similarly, military transferees traditionally have not been able to raise habeas claims to prevent transfer based on conditions in the receiving country."  Op. at 11.)  The majority thus rejected Omar's habeas claim (although it reminded us that Congress could extend habeas and craft judicial review of conditions in a receiving country for military transferees (in addition to the already existing right for alien transferees), if it wanted).

Judge Griffith would have granted habeas and heard the merits, because "the FARR Act 'trigger[s] constitutional habeas' by giving Omar a colorable claim that his transfer to Iraqi authorities would be unlawful.  When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful."  Griffith, concurring, at 1.  But Judge Griffith nevertheless would have denied relief:

Omar cannot be "return[ed]" to Iraq for a simple reason: "he is already there."  The U.S. military arrested him in Iraq, and he was subsequently convicted in an Iraqi court for violating Iraqi law.  He now seeks to use the FARR Act to prevent the Iraqi authorities from bringing him to justice, which would effectively "defeat the criminal jurisdiction of a foreign sovereign."  Because there is nothing in the FARR Act to suggest that Congress could have intended such a result, I concur in the majority's judgment.

Griffith, concurring, at 8 (citations to Munaf omitted).

SDS

Lawmakers Sue President to Stop Military Operations in Libya

A bipartisan group of House lawmakers led by Rep. Dennis Kucinich (D., Ohio) today sued the President and Secretary of Defense to stop U.S. military operations in Libya.  The complaint in Kucinich v. Obama alleges that the President exceeded his authority under Article II, violated congressional power to declare war under Article I, violated the War Powers Resolution, and misused federal funds in violation of Articles I and II.  The Plaintiffs seek declaratory relief that the President's actions are unconstitutional and injunctive relief to stop the U.S. military operations in Libya.  Here's the press release.  We previously posted on constitutional issues involved in U.S. military efforts in Libya here, here, and here.



In related news, the White House today released a Letter from the President on the War Powers Resolution.  The Letter, which updates Congress on a variety of different engagements, sets out the administration's position on the Libyan campaign--that this isn't a "war."  Check it out:

As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council . . . U.S. military forces commenced operations on March 29, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. . . .  By April 4 . . . the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition's efforts. . . .  With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.

 Here's what the complaint says about some of these points, including the U.N. Security Council resolutions, which were a large part of the OLC's analysis on why the President had authority to wage the Libyan campaign:

74.  A U.S. resolution does not abrogate or change the obligation of President Obama to obtain a declaration of war under Article I, Section 8, Clause 11 of the Constitution. 

75.  The Obama administration has denied that the Libyan operations aare at a war and, on March 24, 2011, White House Spokesman Jay Carney stated that the administration had defined these combat operations as "a time-limited, scope-limits military action."

76.  "Time-limited, scope-limited" military actions are not referenced in the U.S. Constitution or the constitutional convention debates.

SDS