Wednesday, July 4, 2012
Judge Marcia Cook (S.D. Fl.) last week ruled in Wollschlaeger v. Farmer that the Florida's law restricting health care providers from asking whether a patient owns a firearm violates free speech. The ruling permanently enjoins the state from enforcing four provisions of the act and from disciplining health care providers who violate them. We posted on the case previously--when Judge Cook granted a preliminary injunction--here.
The ruling is a blow to state efforts to restrict health care providers from talking and asking patients about gun ownership. But the ruling makes clear that any worries about discrimination against gun owners was based on only the thinnest actual evidence. (In other words, the law protected against something that didn't exist--at least in any widespread, systematic way.) Thus, this case isn't a ruling on a clash between First and Second Amendment rights--because the state failed to show that there was any real interference with Second Amendment rights driving the law. This is a pure free speech case, and the state's stated interests just don't hold up.
A group of doctors and health care providers brought the case challenging Florida's ban--which prohibits doctors and health care providers from talking or asking patients about firearms ownership. The plaintiffs claimed that the law chilled their speech about preventive health issues. Judge Cook agreed. The state's biggest problem, according to Judge Cook, was that it didn't show that the law was tailored to meet any particular problem--that the state failed to show that there was any widespread infringement on the right to bear arms or any widespread discrimination against gun owners by health care providers.
Florida Statutes 790.338 provides:
(1) A health care practitioner . . . or a health care facility . . . may not intentionally enter any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or to the safety of others.
(2) A health care practitioner . . . or a health care facility . . . shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient. Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.
. . .
(5) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.
(6) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.
After ruling that the plaintiffs had standing to challenge these four provisions of the law, and that the challenge was ripe, Judge Cook ruled that these provisions violated the First Amendment. She wrote that the provisions were content-based restrictions on speech, subject to strict scrutiny; that they were a ban on (especially protected) truthful, non-misleading speech; and that the state's interests didn't stand up.
The state said that it had interests in protecting patients' Second Amendment rights, protecting patients' access to health care in the face of discrimination (against those who own firearms), protecting patients' privacy rights, and regulating professionals.
But Judge Cook ruled that the state couldn't show any widespread infringement on patients' Second Amendment rights, access, or equal treatment. The law was based entirely on a handful of anecdotes. Moreover, the law itself contains protections for patients--for example, allowing them not to answer questions about firearms ownership. The state's interests, Judge Cook ruled, were therefore insufficient to withstand strict scrutiny analysis.
They were also insufficient to withstand a less rigorous balancing under Gentile v. State Bar of Nevada, a case setting the free speech bar lower when a state seeks to regulate a lawyer's speech.
Judge Cook also ruled that two clauses were unconstitutionally vague: "relevant to the patient's medical care or safety, or the safety of others"; and "unnecessarily harassing." Those phrases, she said, do not give sufficient guidance to health care providers as to what speech is covered and what speech is not.
July 4, 2012 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness, Second Amendment, Speech, Standing | Permalink | Comments (1) | TrackBack (0)
Friday, June 8, 2012
Wedding ceremonies on Hawai'ian beaches may be the stuff of some fantasies, but they may also require permits from the state as any other commercial activity on state land would. In its opinion in Kaahumanu v. Hawai'i Department of Land and Natural Resources, the Ninth Circuit upheld Hawai'i's permitting scheme, except to the extent it allowed the state to alter the permits once issued.
The permitting scheme applies to ceremonies all state-owned beaches, even if there are three people at the wedding, if the officiant is receiving compensation. It prohibits tables, chairs, tents, and strictures demarcating the area, while allowing flowers, leis, chairs for the elderly/infirm, and "unamplified musical instruments including a conch shell."
The Ninth Circuit's unanimous panel opinion easily found that one of the plaintiffs, a wedding and events professional association, had standing, and quickly proceeded to the gravamen of the constitutional claim.
As the court expressed it, the First Amendment challenge posed three questions:
- First, do wedding ceremonies constitute “speech” protected by the First Amendment?
Second, what is the nature of the forum?
Third, are the challenged restrictions on commercial weddings permissible in the forum?
The Hawai'i Department of Land and Natural Resources (DLNR) contended that weddings were not speech at all and thus excluded from First Amendment protection. Applying the "particularized message" expressive conduct test from Spence v. Washington, 418 U.S. 405 (1974), the court had "no difficulty" concluding that wedding ceremonies were protected expression: "The core of a wedding ceremony’s “particularized message” is easy to discern, even if the message varies from one wedding to another."
The forum issue was not so easily resolved - - - and indeed, remained unresolved. The panel seemed hesitant to render an opinion that might be used in other contexts. Moreover, while the DLNR contended that "all unencumbered state beaches are nonpublic forums" and the plaintiffs contended that "they are all traditional public forums," the court ruled that Hawai’i’s unencumbered state beaches were not so easily categorized. Instead, the beaches "vary from heavily trafficked beaches to isolated beaches accessible only by foot or watercraft," and on the present record, it was "difficult to put all of Hawai’i’s unencumbered state beaches into a single forum category." Thus, the court assumed - - - without deciding - - - that "unencumbered state beaches in Hawai’i are, as Plaintiffs contend, a traditional public forum." Thus, the panel stated it would assess the validity of all regulations "that we uphold under the most exacting test for restrictions on forum access." On the contrary, the panel assessed the particular provisions of the regulation that it did not uphold under the most lenient standard. The panel summarized its First Amendment holding thusly:
In sum, we hold that DLNR’s regulation requiring a person to obtain a permit for commercial weddings on unencumbered state beaches is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits. We hold that the limitation on accessories, insurance requirement, and the indemnification/hold-harmless clause also satisfy the tra- ditional public forum standard. However, we hold invalid the grant of discretion to DLNR to revoke, or add terms to, a per- mit under the least exacting standard of review for a nonpublic forum.
The panel opinion also briefly referred to the plaintiffs' freedom of religion arguments, rejecting them because that while the regulation may have an incidental effect on specific religious "implements or physical symbols," this does not "render it impermissible." Seemingly, a more specific as-applied challenge, perhaps also stating a RLUIPA claim, might be taken more seriously.
Additionally, the court rejected the Equal Protection and Due Process claims: while recognizing that the "right to marry" is a fundamental right, the DLNR’s "regulation of commercial weddings on unencum- bered state beaches does not impinge on the right to marry."
Wednesday, June 6, 2012
Yet another opinion has held section 3 of DOMA, the Defense of Marriage Act, unconstitutional.
Coming on the heels of the First Circuit's opinion issued last week, today's opinion by federal district judge for the Southern District of New York, Barbara Jones, in Windsor v. US reached the same conclusion that section 3 of DOMA does not pass rational basis. In November 2010, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada. Windsor sought a refund of estate taxes paid because the marriage was not recognized by the federal government and argued that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection. The New York Attorney General filed an amicus brief in support of Windsor.
Judge Jones' opinion rehearses grounds that are becoming quite familiar, and while she cites and quotes the First Circuit's opinion in Massachusetts v. HHS, she does not substantially rely upon it.
Instead, Judge Jones does not stress the heightened rational basis standard for legislation based on animus, but concluded that the Congressional interests support DOMA did not pass the threshold of being "legitimate." Judge Jones specifically considered the additional interest advanced by BLAG (supporting DOMA) that Congress intended to approach "same-sex marriage with caution." Judge Jones did not quite say that this was not a legitimate interest, but did conclude that "whatever the social consequences of this legal development" that is same-sex marriage "ultmately may be, DOMA has not, and cannot, forestall them."
Of particular interest to New York constitutional scholars, Judge Jones confronts Hernandez v. Robles, the 2006 decision by New York's highest court that rejected a constitutional claim against barring same-sex marriage. Yet this is in the context of Windsor's standing to raise the claim as to the 2009 tax year. As Jones notes, subsequent executive and legislative action in New York has disavowed that stance in 2009, rendering BLAG's reliance on the case to show a lack of injury "unpersuasive."
DOMA, it can certainly be said, has had its constitutionality seriously cast into doubt, yet again.
Tuesday, May 22, 2012
Judge Katherine B. Forrest (SDNY) ruled last week that the detention authority in the National Defense Authorization Act likely violates free speech. Judge Forrest granted the plaintiffs' motion for a preliminary injunction in Hedges v. Obama and thus enjoined enforcement of Section 1021.
The case is notable in that the government could easily have side-stepped the whole thing: It simply could have taken the position that the plaintiffs, based only on their affidavits and testimony, did not fall within Section 1021. This would have taken away the plaintiffs' standing (as Judge Forrest noted) and undermined the suit. (The government need not have said anything about whether the plaintiffs would have been covered by Section 1021 if additional evidence arose.) But it refused, suggesting that it keeps open the possibility that Section 1021 could apply to a remarkably wide swath of individuals, notwithstanding the President's efforts to limit it upon signing the NDAA. More on this below.
The ruling is the first against the controversial detention authority in the NDAA. The section at issue, Section 1021, defines a detainable person broadly (and vaguely, as it turns out) and apparently authorizes indefinite detention. The Section, titled Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force, provides:
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described under subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
But President Obama, upon signing the NDAA, issued a signing statement that said that Section 1021 did nothing to existing government detention authority under the AUMF and that the Section was therefore unnecessary. In short, according to the President, Section 1021 changed nothing. As to indefinite detention, the President wrote: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."
Moreover, while the White House issued a policy directive that included procedures for detention under Section 1022 (relating to military custody of foreign al-Qaeda terrorists), it issued no such directive on Section 1021--further suggesting that, in its view, nothing changed.
A group of writers, reporters, and activists brought suit, claiming Section 1021 could be interpreted to include them based on their reporting and writing on terrorist groups, including al-Qaeda, and terrorist activities; that they feared detention under Section 1021; and that Section 1021 chilled their further speech. They said that Section 1021 was overbroad and vague in violation of the First Amendment.
Judge Forrest agreed. In a lenghty and careful ruling, she wrote that the plaintiffs had standing, and that Section 1021 likely violated the First Amendment based on its overbreadth and vagueness.
The ruling was based as much on the govenrment's stubborn position that it couldn't rule out detaining the plaintiffs based on their affidavits and testimony as it was based on the law. The government refused to say that the plaintiffs wouldn't be detained under Section 1021 based on their affidavits and testimony, even though it also said that the plaintiffs' fears of detention were unreasonable. And in a remarkable set of exchanges, reproduced in the opinion (at pages 31 to 34), government lawyers were unable to define phrases like "substantially support" or "directly support," or to give examples, or to assure the court that these plaintiffs, based on their affidavits and testimony alone, would not be subject to detention under Section 1021.
Outside the government's inability to define terms, give examples, or say whether the plaintiffs would be detainable, the court was also concerned about the lack of mens rea in Section 1021--an authority that it viewed as criminal-like, because of the potential for physical detention. The problem is that a person could violate Section 1021 without intending to, even without knowing. This, it said in addition to the government's inability to define key terms, rendered the Section unconstitutionally vague, in violation of due process.
The court said the government's position was strongest on the definition of "associated forces"--a phrase that the government said is rooted in the laws of war. But even so, "that does not resolve plaintiffs' concerns since they each testified to activities with or involving individuals or organizations that are 'associated forces' as defined by the Government." Op. at 55-56. The plaintiffs had the better of the case on "substantially," "direct," and "support."
If the government maintains its positions, keeping its options fully wide open under Section 1021, it's hard to see how an appeals could could rule any differently in this case.
May 22, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Music, Opinion Analysis, Standing, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, May 10, 2012
Judge Colleen Kollar-Kotelly (D.D.C.) ruled today in Wildearth Guardians v. Salazar that Wildearth lacked standing to challenge the Bureau of Land Management's rejection of its petition to recertify the Powder River Basin in Wyoming as a "coal production region" and thus, according to Wildearth, to limit the environmental impact of coal mining in the Basin.
The ruling ends Wildearth's efforts to get the BLM to recertify the basin, at least unless Wildearth refiles, or appeals and (as seems unlikely) wins.
The case grew out of Wildearth's petition to the BLM to recertify the Basin as a "coal production region." The BLM had earlier decertified the region, thus allowing land to be leased in the Basin for coal production by application. Wildearth claimed that leasing-by-application diminished competition and prevented the BLM from analyzing and addressing the environmental impacts of coal leasing in the Basin. It petitioned the BLM to recertify the Basin as a "coal production region."
The BLM declined to recertify, and Wildearth sued.
Judge Kollar-Kotelly ruled that Wildearth lacked standing, because a favorable result in the case wouldn't necessarily redress its alleged harms. In particular, she wrote that even if the court granted Wildearth's requested relief--to vacate BLM's decision and to remand to the BLM for reconsideration--the BLM might nevertheless re-decide not to recertify. Moreover, even if BLM were to recertify, it might set a coal leasing ceiling at a high level that wouldn't redress Wildearth's aesthetic and recreational harms. "The central point is this: the denial of WildEarth Guardians' petition and the recertification of the Powder River Basin are many, many steps removed from the injuries identified by Plaintiffs." Op. at 18.
Judge Kollar-Kotelly also rejected Wildearth's arguments for procedural standing (because Wildearth did not plead that the BLM omitted a procedural requirement before denying its petition) and informational standing (because nothing required the BLM to disclose the relevant information, even if they won the case).
Thursday, April 26, 2012
Judge Ursula Ungaro of the Southern District of Florida has permanently enjoined the Executive of Order of controversial Florida Governor Rick Scott (pictured in caricature at right) requiring drug testing of all prospective state employees and random testing of all state employees in her opinion in AFSCME v. Scott.
Scott's fondness for drug-testing has not fared well in the federal courts. His previous efforts to have all public entitlement recipients drug-tested was similarly enjoined as unconstitutional last year. In this opinion, Judge Ungaro distinguishes the drug-testing policies that were upheld under the Fourth Amendment as being tailored to address a specific, serious problem. "In contrast, the rationale for the Governor’s policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace." Judge Urango stated that his "explanation of the EO’s concern with public safety offers a particularly telling example of the speculative nature of the public interest behind the testing policy," quoting from the brief that:
Even a desk-bound clerk may become violent with other employees or the public, may present a danger when driving in a car in the workplace parking lot, or may exercise impaired judgment when encountering any of the myriad hazards that exist in the workplace environment (from stacks of heavy boxes, to high staircases, to files in high shelves, to wet floors, to elevators and escalators.)
For Judge Ungaro, "the Governor’s safety rationale for the EO essentially relies on the Governor's common sense belief that because illegal drug use exists in the general population, it must also exist among state employees." Common sense as articulated by the state's governor is not weighed heavily in evaluating a drug-testing program, unsupported by any individualized suspicion, that is "judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."
The judge also rejected the Governor's analogy to financial disclosure statements by government employees: "the Governor’s reasoning is hardly transparent and frankly obscure."
Before reaching the substantive Fourth Amendment claim, the judge carefully considered the standing of AFSCME, a union, to bring the action. Governor Scott argued that the union did not suffer an "injury in fact" because only the individuals who actually have a Fourth Amendment right are injured, not an association. However, the judge found convincing the union's argument that it would have to devote considerable energy to representing individual union members selected for testing and will have to devote similar energies to engage in collective bargaining on the issue, deflecting its energies from other issues. Moreover, the judge found the union had associational standing to assert the rights of its members. As to new hires, who are not union members, the judge found that the new hires could be union members by the time of the testing, and that new hires included union members who were applying for transfers or promotions.
This well-crafted opinion is certainly a blow to Governor Scott's controversial and somewhat breezy approach to law. Rather than appeal to the Eleventh Circuit, perhaps Scott will attempt a more carefully crafted Executive Order.
[image: Caricature of Governor Rick Scott by DonkeyHotey via]
Friday, April 6, 2012
The Second Circuit's opinion today in Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc. denies Article III standing to the nonprofit Disability Advocates, Inc (DIA) in its suit against various state agencies and the governor of New York pursuant to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
The panel found that because DAI was a contractor to supply services, it did not meet the requirement for associational standing. Although in a footnote, the panel clarified that this was not necessarily true in all cases:
Our holding does not stand for the proposition that all organizations contracted to provide protection and advocacy within a P&A system [under the Protection and Advocacy for Individuals with Mental Illness Act] necessarily lack standing. We do not reach the question of whether some such contractors can fulfill the statutory requirements under § 10805 and meet the constitutional threshold established under Hunt [ v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)]. We hold simply that, in the circumstances presented here, DAI has not met its burden to establish constitutional standing.
We reject the argument that merely because DAI lacks standing to assert this claim on its own, it cannot fulfill its legislative responsibility to “pursue . . . legal . . . remedies to ensure the protection of individuals with mental illness.” 28 U.S.C. § 10805(a)(1)(B); see United States Br. 66. In circumstances where P&A contractors cannot bring suits “in their own right” because of constitutional standing requirements, they may provide representation to individuals with mental illness and litigate those cases in the names of those individuals. That contractors such as DAI must satisfy the minimum requirements of constitutional standing does not foreclose access to the federal courts for those organizations or the individuals whose interests they are intended to serve.
In addition to holding that DAI lacked standing, the Second Circuit held that "the intervention of the United States after the liability phase of the litigation had concluded was insufficient to cure the jurisdictional defect created by DAI’s lack of standing." The panel relied upon civil procedure rules regarding jurisdiction, even as it noted that precedent established "a district court’s discretion to treat the pleading of an intervenor as a separate action in order to adjudicate the claims raised by the intervenor even if the underlying claim was jurisdictionally deficient." The panel found that discretion was not warranted here because the United States intervened too late: "the District Court decided important questions of fact and law based entirely on the presentation of a plaintiff who lacked standing. The fact that the United States later “adopted” those findings and conclusions cannot remedy the absence of jurisdiction at trial and in pretrial proceedings."
The panel concluded with its observations about judicial economy - - - as well as its opinion on the merits, or, at least the remedy:
In reaching this conclusion, we are mindful of the possibility that this litigation will continue, inasmuch as the United States—whose standing is not disputed—has represented that, in the event of a dismissal on the basis of standing, it would re-file the action and submit the same evidence at a subsequent trial. Individual plaintiffs with standing could, of course, pursue further litigation as well, either in conjunction DAI or on their own. We are not unsympathetic to the concern that our disposition will delay the resolution of this controversy and impose substantial burdens and transaction costs on the parties, their counsel, and the courts. Should that situation arise, we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution.
Although we are not presently required to consider the issue of remedy, we do have concerns about the scope of the proposed remedy. If this controversy continues, and if the renewed litigation reaches the remedial phase, the parties and the District Court will have another opportunity to consider an appropriate remedy.
The court's "concerns" send a clear message about the merits of the case, which have for the present been expressed as dicta and otherwise collapsed into discretionary judgements regarding standing and procedural rules.
[image: Vincent Can Gogh, Corridor in the Asylum, circa 1889 via]
Sunday, March 25, 2012
The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.
At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000). Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.” HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds.
Only two organizations bid for the role of “independent contractor,” both of which are religious organizations. The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB). This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.” This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility. It stated it would require an assurance form all subcontractors regarding compliance.
Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million.
The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.
On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.
On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.” The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.” Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.
Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion:
“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.” That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.
The case is sure to be appealed.
Wednesday, March 14, 2012
The D.C. Circuit ruled in Coalition for Mercury-Free Drugs v. Sebelius that the plaintiff-organization lacked standing to force the FDA to ban the mercury-based preservative thimerosal from vaccines.
The case grows out of the Coalition's petition to the FDA and subsequent suit seeking an order forcing the FDA to ban thimerosal-preserved vaccines. The FDA moved to dismiss for lack of standing; the D.C. District dismissed; and the D.C. Circuit affirmed.
The D.C. Circuit ruled that the FDA did not force any member of the Coalition to take thimerosal-preserved vaccines--instead, the FDA only allowed them--and therefore no Coalition member could show actual and imminent harm.
The Circuit court also ruled that doctor-members did not have standing based on reputational harm, because the FDA did not force them to prescribe or to use thimerosal-preserved vaccines. (Those doctors could have used thimerosal-free vaccines.)
Finally, the court rejected the plaintiff's claim that the FDA's policy of allowing thimerosal-preserved vaccines made thimerosal-free vaccines prohibitively expensive. The court said that the plaintiffs could still reasonably obtain thimerosal-free vaccines, even if their price went up slightly becuase of the policy allowing thimerosal-free vaccines, and therefore no Coalition member alleged a sufficient injury based on lack of access to thimerosal-free vaccines.
Friday, February 17, 2012
A broad statute banning persons convicted of certain sex offenses from accessing "social media" has been held unconstitutionally overbroad under the First Amendment in Doe v. Jindal, by Judge Brian Jackson, Chief Judge of the Middle District of Louisiana.
Louisiana Revised Statute §14:91.5, passed in 2011, provides that the "using or accessing of social networking websites, chat rooms, and peer-to-peer networks by a person who is required to register as a sex offender and who was previously convicted" of specified crimes involving minors. The penalties are severe:
(1) Whoever commits the crime of unlawful use or access of social media shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.
(2) Whoever commits the crime of unlawful use or access of social media, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.
The federal judge first found that John Doe and James Doe had standing to challenge the act. In construing the overbreadth challenge under the First Amendment, the judge looked to the Court's recent pronouncements in US v. Stevens, and similarly found that the statutory ban reached a substantial number of unconstitutional applications. The judge noted that the statute reached many commonly read news and information sites and interpreted the offense to be completed once a user accessed the website, whether intentionally or by mistake. The judge found the definition of "chat room" particularly problematic, as its ban would reach "the website for this Court."
While the state's interest in protecting children was undoubtedly "legitimate," the statute was not sufficiently precise or narrow.
As Louisiana officials consider an appeal to the Fifth Circuit, the legislature might also consider statutory revision.
[image: "Facebook man" via]
Tuesday, February 7, 2012
The Ninth Circuit panel has rendered its opinion in Perry v. Brown, on the constitutionality of California's Proposition 8 that prohibited same-sex marriage, affirming 2-1 Judge Vaugn Walker's extensive opinion based on the trial (our recap here) the videotapes of which will not be released as the Ninth Circuit ruled recently.
The Ninth Circuit Judges on panel, Stephen Reinhardt (middle), NR (Randy) Smith (right, and Michael Hawkins (left) disagreed on the major constitutional issue.
The panel was unanimous that the proponents had standing and that Judge Walker's opinion should not be vacated on the basis of his sexuality. The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional. Judge Smith, dissented as to the constitutionality of Proposition 8, arguing that it was rationally related to a legitimate government interest.
MORE ANALYSIS HERE.
Wednesday, February 1, 2012
In what the First Circuit calls the "second chapter" of challenges to the constitutionality of Maine's registration and disclosure laws regarding election-related advocacy, the court in National Organization for Marriage [NOM] v. McKee, essentially reaffirms its opinion last August in a case by the same name (and now to be known as NOM I). The cases stem from the hard-fought same-sex marriage ballot initiative in Maine in 2009. NOM II involves both NOM and American Principles in Action [APIA], although the court expressed doubt regarding APIA's standing as to some of the claims, and the principle arguments revolve around NOM.
The unanimous panel decision, authored by Judge Kermit Lipez, focuses on the "only substantively distinct issue" raised by this appeal as contrasted to NOM I: the constitutionality of the definition of "contribution" in the "ballot question committee" [BQC] provision, Me. Rev. Stat. tit. 21-A, §1056-B. The court concludes that the BQC provision, like the PAC provision at issue in NOM I survives the constitutional challenge.
The court quickly disposed of the First Amendment claims, on the basis of NOM I, but paid more attention to the assertion that the term "contribution" was unconstitutionally vague as a matter of due process, and that any reliance on subjective beliefs of a contributor were likewise void for vagueness. At issue were email communications such as:
"You can fight back! Can you help defend marriage in Maine and across the country, by donating $5, $10, or even, if God has given you the means, $100 or $500?"
The panel found that Maine can constitutionally require parties to determine whether or not a "reasonable listener would understand their advocacy as an invitation to contribute to a specific ballot question campaign"- - - such as that in Maine - - - based upon the specific earmarking words of the solicitor, in this case NOM.
The court engaged in such reasoning after specifically faulting the appellants' attorneys for poor lawyering in terms of the as-applied challenges:
Appellants, however, do not address in their brief the vagueness problem with respect to donations received following any specific communication they distributed or proposed. Rather, they assert in conclusory language that subsections B and C of section 1056-B "are unconstitutionally vague as applied to most of Plaintiffs' speech." They make glancing reference to the content of the emails, noting that "some of NOM's solicitations mentioned Maine," and query whether, as a result of those mentions, donors' knowledge of the Maine ballot measure would be enough to make their donations covered "contributions" and NOM a BQC. They do not explain why they were unable, or would be unable, to link particular contributions received to their advocacy efforts on the Maine referendum, focusing their arguments instead on the language of the statute generally.
Thus, appellants are not only unable to bring a facial vagueness challenge to section 1056-B, but their failure to develop their as-applied challenges also would allow us to reject those claims summarily if we were so inclined. [citations omitted]. Given the importance of the issues raised, however, and the resources expended by all parties in this extensive litigation, we choose to explain why their vagueness contentions would in any event be substantially, if not entirely, unavailing. [citations omitted].
As the panel succinctly stated, it saw "no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination."
While NOM's attorney has reportedly vowed to take the case to the United States Supreme Court, there seems to be little here that would merit a grant of a writ of certiorari.
However, with the same-sex marriage issuepossibly again on the ballot in Maine in 2012, there may certainly be more litigation.
February 1, 2012 in Campaign Finance, Due Process (Substantive), Elections and Voting, First Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Sunday, January 15, 2012
Republican Presidential Candidate Rick Perry has appealed from the district court's order denying his First Amendment claim for a preliminary injunction.
In the emergency motion for injunction pending appeal, Perry's attorneys argue that the requirements for laches - - - lack of diligence by plaintiff and prejudice to defendant - - - were not satisfied.
[image: Governor Rick Perry, 2006, via]
Saturday, January 14, 2012
In the opinion in Perry v. Judd (with Gingrich, Huntsman, and Santorum as intervenors), Judge John Gibney of the Eastern District of Virginia denied the motion for preliminary injunction seeking to allow the Republican candidates on the ballot on the grounds of laches.
Perry and the other candidates not on the ballot argue that the Virginia process violates the First and Fourteenth Amendments. Virginia Code, §24.2-545(B), requires that the required petitions be "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth." Additionally, the provision gives the State Board authority over the petition process: the Board has mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary.
In considering the First Amendment merits of the challenge, the judge found the Supreme Court's 1999 decision in Buckley v. American Law Foundation "instructive," especially regarding Virginia's requirement that the petition circulator be a resident of Virginia (as part of the "eligible voter" requirement). While the Virginia requirement is less restrictive, it nevertheless "limits the number of voices who can convey the candidates' messages, thereby reducing 'the size of the audience [the candidates] can reach.' " (Opinion at 16). Applying strict scrutiny to this political speech, the judge was "skeptical" that the state's proferred interest (the ability to subpoena petition circulators) was compelling.
On the other hand, the judge found the statute's 10,000 signature requirement would likely survive First Amendment scrutiny. He reasoned that such a number - - - 0.2% of the state's registered voters and 0.5% of the voters who voted in the last statewide election - - - cannot be seriously argued to be "unduly burdensome." In further support, he noted that six Republican candidates complied with the same rules four years ago for the 2008 primary election.
The judge's opinion conducts a separate analysis for laches - - - noting that it is an affirmative defense - - -rather than including it within the standards for preliminary injunction. (Recall that the last two factors of the established four-factor test are whether the equities tip in the movant's favor and whether the injunction is in the public interest.) Laches as an affirmative defense to equitable relief is well-established; as relief for a First Amendment violation, less so. However, considering the requirements of lack of diligence and prejudice to the respective parties, Judge Gibney found that the Candidates were not diligent - - - they should have "brought in an army of out-of-state circulators" as soon as possible (July 1 for Huntsman, Santorum, and Gingrich; August 13 for Perry who did not declare his candidacy until that date).
The judge rejected the candidates' argument that they did not have standing until the State Board rejected their ability to appear on the ballot. The Board rejected their claim because they did not have the 10,000 required signatures. But Judge Gibney essentially states that they should have disregarded (or perhaps challenged) the petition circulator qualification that arguably prevented them from obtaining the 10,000 signatures well before failing to obtain the 10,000 signatures. As Judge Gibney phrases it, the candidates "slept on their rights to the detriment of the defendants."
Thus, had the candidates "filed a timely suit," the judge would have granted a motion on the residency required and allowed non-residents to gather signatures, the candidates would have presumably been able to obtain 10,000 signatures, and Perry, Huntsman, Santorum, and Gingrich would be on the Virginia presidential Republican primary ballot.
Although an appeal seems likely, as of now, Virginia Republicans will have a choice between Ron Paul and Mitt Romney.
[image: Republican Candidates, 2012, via]
January 14, 2012 in Association, Current Affairs, Elections and Voting, Federalism, Fifteenth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 3, 2012
The Civil Unions Law, Act 1, of Hawai'i became effective January 1, 2012.
In the last days of 2011, several religious groups sued for a Temporary Restraining Order (TRO) to stop the Act's implementation and prevent any enforcement against them. In a relatively brief opinion, federal district judge J. Michael Seabright denied the TRO in Emmanuel Temple v. Abercrombie.
The complaint seeking the TRO alleged that because Act 1 does not have a "religious exemption," the plaintiffs could suffer a First Amendment injury. However, the judge found that the claim was not justiciable because the plaintiffs lacked standing and their challenge was not ripe, noting that in many cases the "injury in fact" prong of the standing analysis coincides with an inquiry regarding ripeness.
The judge found that any threat of enforcement of Act 1 against the plaintiffs was "highly speculative." A number of unforseeable events would have to occur:
- A couple would have to ask plaintiffs to use a particular facility of theirs - - - which presumably would have to be a "public accomodation" - - - for a civil union made possible by Act 1;
- Plaintiffs would have to wrongly refuse based upon a protected ground;
- The couple, having been denied, would have to file a complaint with the Hawaii Civil Rights Commission;
- The state authorities would have to decide to proceed against plaintiffs.
The judge found it was equally speculative that a couple, having been denied, would chose to file a judicial action rather than an action with the Commission.
For ConLawProfs starting the semester with Article III justiciability, this could be the basis of a great class problem.
Situating the case outside that doctrinal framework, it is an example of religious groups filing federal actions against same-sex relationship recognition, as in New York, despite that state's religious exemption in the statute.
Further, it is yet another incident in the saga of same-sex marriage in Hawai'i; a good review and the latest litigation by same-sex couples challenging the civil union law for not providing marriage is here.
[image: Kahaluʻu Fishpond seawall and wedding chapel, Oahu, Hawaii, on National Register of Historic Places, via]
January 3, 2012 in Cases and Case Materials, Equal Protection, First Amendment, Fourteenth Amendment, Gender, Religion, Ripeness, Sexual Orientation, Standing, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 28, 2011
The Ninth Circuit ruled last week in Drake v. Obama that a group of plaintiffs lacked standing to challenge President Obama's qualifications to be President under Article II, Section 1, on the ground that he is not a "natural born Citizen." The ruling affirms the earlier district court ruling, although for somewhat different reasons.
The case involves six categories of plaintiffs. Here's what the court said, one group at a time:
Active Military Personnel. The court ruled that an active duty officer failed to allege sufficiently concrete harm when he claimed that his failure to obey orders from President Obama, his Commander in Chief, would result in disciplinary action against him. Instead, the court said, the alleged harm is speculative, and easily avoidable: "he can obey the orders of the Commander-in-Chief." Op. at 11.
Former Military Personnel. The court ruled that this group's claim--that it could be called back into duty and subject to orders of President Obama--was "far too speculative and conjectural." Op. at 12.
State Representatives. The court held that state representatives, who claimed that they could be harmed because "receipt of funds from any officer without legal authority [like President Obama, under their theory] would be complicity in theft or conversion," also claimed a far too speculative harm. Op. at 13.
Federal Taxpayers. The court ruled that taxpayers generally do not have standing.
Relatives of President Obama. The court ruled that plaintiff Kurt Fuqua failed to allege an injury in fact based only on his familial relationship to President Obama. The fact that he's family does not bolster his otherwise standing-less claims.
Political Candidates and Electors in the 2008 Election. The court ruled that plaintiffs Alan Keyes and Wiley Drake, the Presidential and Vice Presidential candidates, respectively, of the American Independent Party, a write-in candidate for President, and a certified California elector all lacked standing based on their allegation that they were denied a fair competition for the presidency. The court recognized that some courts, including the Ninth Circuit, have recognized something like "competitive standing." But here the plaintiffs' complaint came in only after President Obama was officially sworn in as President. The court said that after President Obama was sworn in, the plaintiffs were no longer candidates in the 2008 general election, and they have no alleged any interest in running against President Obama in the future. (In contrast, the district court assumed, without deciding, that political candidates had some form of "competitive standing," but that they lacked redressability, because the federal courts could not grant their requested remedy--ousting President Obama--without running afoul of the political question doctrine and separation of powers.)
The court also rejected the plaintiffs' quo warranto claims, ruling that those claims have to be brought in the D.C. district and by the Attorney General or the U.S. Attorney for D.C. It's no excuse that those officers have declined to bring a quo warranto case.
Finally, the court rejected the plaintiffs' novel FOIA and RICO claims.
Thursday, November 17, 2011
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
The short answer from the California Supreme Court today is "Yes." Or, as the conclusion to the court's opinion in Perry v. Brown states:
when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
It takes the court some 60 pages to reach this conclusion in an unanimous opinion written by the new Chief Justice Cantil-Sakauye, with an additional 7 page concurring opinion by Justice Kennard. Kennard wrote to "highlight the historical and legal events that have led to today‘s decision and to explain why I concur in that decision," and reiterated her position that is it is the judicial role to decide whether "excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution‘s equal protection guarantee." On the contrary, the main opinion de-emphasized Proposition 8: "the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter."
The California Supreme Court states that "past official proponents of initiative measures in California have uniformly been permitted to participate as parties — either as interveners or as real parties in interest — in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored," and without any specific showings. The opinion, it seems, could have ended there but the California Supreme Court stated it felt it was "useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding." Although the opinion emphasized that its "discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts," certainly its analysis will be carefully considered by the Ninth Circuit.
The court's major analytic attention, however, was devoted to matters of state constitutional law focused on the initiative process. In these cases, non-state actors have had the ability to defend the initiative from challenges. Additionally, the court noted that "even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public officials to be permitted to participate as formal parties in a court action to assert the public‘s or the state's interest in upholding or enforcing a duly enacted law."
If the Ninth Circuit fully credits the California Supreme Court's opinion and finds it sufficient to confer Article III standing, the court will proceed to the merits and review Judge Walker's opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) that Proposition 8 violates the Constitution.
[image: Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall via].
Saturday, October 22, 2011
United States District Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, dismissed the counterclaims filed by Arizona and Governor Jan Brewer in a 22 page Order late Friday.
Arizona's Count One, failure and refusal to achieve and maintain “operational control” of the Arizona-Mexico borde, Count Three, abdication of statutory responsibilities (enforcement of the federal immigration laws), and Count Four, declaratory relief regarding State Criminal Alien Assistance Program (“SCAAP”) reimbursement obligations were each denominated as "statutory claims."
The constitutional counterclaims - - - Count One, the failure and refusal to protect Arizona from invasion and domestic violence under Article IV, Section 4 and Count Five, declaratory relief under the Tenth Amendment - - - were analyzed as subject to issue preclusion given Bolton's previous order, but the Judge also further considered the claims. As to the "invasion and domestic violence" counterclaim, Judge Bolton found that the claim was nonjusticiable because it was a political question and cited the "six factors" from Baker v. Carr (1962):
 a textually demonstrable constitutional commitment of the issue to a coordinate political department;
 a lack of judicially discoverable and manageable standards for resolving it;
 the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
 the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
 an unusual need for unquestioning adherence to a political decision already made;
 the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Bolton emphasized the lack of "judicially discoverable and manageable standards" for determining what constituted an invasion and domestic violence.
Regarding the Tenth Amendment counterclaim, Judge Bolton found that Arizona was not being "comandeered" :
Arizona does not point to any federal immigration policy that mandates or compels
Arizona to take any action. The complained of expenditures arise entirely from Arizona’s
own policy choices and independent constitutional obligations and are not incurred as a result
of any federal mandate. These state costs do not give rise to a claim under the Tenth
While the ruling was not unexpected, it further focuses attention on the petition for writ of certiorari filed by Arizona and Jan Brewer, seeking review of the Ninth Circuit opinion which upheld Judge Bolton's preliminary injunction against SB1070.
Thursday, October 20, 2011
Judge Reggie B. Walton (D.D.C.) ruled today in Kucinich v. Obama that ten members of the United States House of Representatives lack standing to sue President Obama for violating the War Powers Clause of the Constitution and the War Powers Resolution for the President's commitment of U.S. forces to Libya without explicit congressional consent. We previously posted on the issue here (OLC memo concluding that the President has authority without congressional consent); here, here, and here (congressional responses to the administration's campaign in Libya); here (administration's answers on claims that it lacks authority without congressional consent); and here (Kucinich's case).
Judge Walton wrote that the group lacked both legislative standing and taxpayer standing. Legislative standing is foreclosed by Kucinich v. Bush, a similar case from the same court in 2002 by the very same lead plaintiff--a fact not overlooked by Judge Walton, who wrote with some frustration that this case was a waste of the court's time. Taxpayer standing is foreclosed by basic taxpayer standing principles and the fact that the plaintiffs can't shoehorn it into the narrow exception in Flast v. Cohen. Judge Walton didn't even get to the administration's argument that this also a nonjusticiable political question.
The ruling is hardly a surprise. But, as Judge Walton noted, it obviously doesn't mean that Congress lacks a check on the President. It can still use its power of the purse, its oversight power, the Senate's advice-and-consent power to hold up appointments (a power it's demonstrated some competence wielding), and, ultimately though unlikely, its impeachment power.
October 20, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Foreign Affairs, News, Opinion Analysis, Separation of Powers, Standing, War Powers | Permalink | Comments (1) | TrackBack (0)
Wednesday, October 5, 2011
On Monday the Court heard oral argument in Reynolds v. United States on whether a sex offender convicted, sentenced, and released before the federal Sex Offender Registration and Notification Act passed had standing to challenge the Attorney General's interim rule under SORNA that SORNA's registration requirements applied to pre-enforcement offenders. The following argument review is cross-posted at SCOTUSblog; the argument preview on SCOTUSblog is here.
We knew going into oral argument this week that the statute at issue in Reynolds v. United States was hazy. After all, what does it mean for Congress to authorize the Attorney General to “specify the applicability of” the registration requirements for pre-enforcement sex offenders under the federal Sex Offender Registration and Notification Act (SORNA)? There seems to be no precedent for this kind of delegation, and any interpretation raises significant problems. But even as the argument on Monday highlighted these ambiguities and problems, it also revealed the factors that the Court will balance to navigate them, and suggested the likely result.
On the one side, the Court seemed acutely aware that Reynolds’s preferred interpretation – that as a pre-enforcement offender, he was subject to SORNA’s registration requirements only after the Attorney General issued regulations – raised serious potential constitutional problems. In particular, the Court recognized that Reynolds’s interpretation means that SORNA delegates to the Attorney General the complete and awesome authority to determine whether registration applies at all to pre-enforcement offenders. Counsel for the government put it this way: According to Reynolds, the Attorney General has complete control over the light switch. Thus by Reynolds’s reckoning, SORNA veers toward a violation of the non-delegation doctrine and separation-of-powers principles. Chief Justice Roberts and Justice Ginsburg both raised this issue, but Justice Scalia put perhaps the finest point on it:
My problem is that it’s very strange. I find it very strange to leave it up to the Attorney General whether something will be a crime or not. It will be a crime if the Attorney General says so and it won’t be a crime if he doesn’t. I mean, especially leave it up to the Attorney General, for pete’s sake; he’s the prosecutor. You know, it will be a crime if the prosecutor thinks it is and it won’t be a crime if the prosecutor thinks it isn’t. I don’t know of any parallel, and I think it’s sailing close to the edge of constitutionality.
And there’s another, practical problem: Under Reynolds’s interpretation, SORNA would create a registration vacuum for pre-enforcement offenders, at least until the Attorney General “specified the applicability of” its registration requirements. That’s because, according to Reynolds, state registration doesn’t satisfy SORNA registration, and SORNA itself does not require pre-enforcement offenders to register. Thus SORNA wouldn’t touch pre-enforcement offenders until the Attorney General acted. But some Justices suggested that this kind of vacuum would frustrate congressional purpose – to unify the national registration of sex offenders and to re-locate and register those many offenders that were lost under previous state and national registration schemes. Counsel for the government argued that this approach unnecessarily and wrongly complicates registration; instead, state registration (which was mandatory for Reynolds himself, and which he skipped) also satisfies SORNA’s requirements for pre-enforcement offender registration. There was some sympathy for this more simple approach on the bench, underscoring this practical problem with Reynolds’s position.
But on the other hand, the government’s position – that SORNA itself requires pre-enforcement offenders to register, irrespective of any regulation from the Attorney General – has its own problems. For one, it would have been easy for Congress to do this with plain language in the statute; but it didn’t. In fact, as Justice Sotomayor pointed out, Congress rejected an alternative version of the bill that would have plainly required pre-enforcement offenders to register. (Justice Sotomayor was careful to remind us that not all of her colleagues would be persuaded by this kind of legislative history.)
Moreover, the government’s understanding of the Attorney General’s authority – the “safety valve,” as counsel called it – may have gone too far. Justices Scalia and Kagan both seemed taken aback by the government’s claim that the Attorney General’s authority to “specify” the requirements would allow the Attorney General to entirely exempt all pre-enactment offenders from SORNA’s registration requirements. This seems to swing from Reynolds’s position too far the other way.
Finally, and perhaps most importantly, the government’s interpretation leads to confusion, even incoherence, between SORNA’s requirement for initial registration and its requirement for keeping registration current for pre-enforcement offenders. In a lengthy exchange between Justice Breyer and counsel for the government, sometimes joined by Justices Scalia and Kagan, the Justices suggested that the government’s position could leave some pre-enforcement offenders without any idea what the law required and no way to comply. Counsel for the government, assisted at one point by Chief Justice Roberts, argued that SORNA’s structure suggested otherwise and that its criminal provision was tailored around these problems.
If the argument is any prediction, the Court will likely balance worries about an unconstitutional construction that undermines legislative purpose (if it adopts Reynolds’s interpretation) against concerns that SORNA’s registration requirements are incoherent for some pre-enforcement offenders and that SORNA gives too much power to the Attorney General to nullify registration (if it adopts the government’s understanding). For a majority on this Court, this balance probably favors the government: the government’s position both avoids a constitutionally questionable interpretation of the statute and would read SORNA to sweep in all pre-enforcement offenders – a read that seems more natural in light of SORNA’s overall structure, and a read that is consistent with a plausible understanding of congressional purposes.
But even this wouldn’t necessarily close the case. Reynolds raised an alternative argument that he still would have standing to challenge the Attorney General’s interim rule, even if SORNA itself required him to register. This is because the Attorney General issued the rule without notice and comment, which would have allowed Reynolds to persuade the Attorney General why he should be exempted from the registration requirements under the rule. Because the interim rule did not exempt him, he has standing to challenge it. This seems a too-clever turn to have any real traction, but it serves as a useful final reminder that this is one dodgy statute.