Constitutional Law Prof Blog

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.

 

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RR
[bold emphasis added]

Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional

The "Sister Wives" family, made popular by a reality television show, have filed a complaint in federal district court in Utah challenging the constitutionality of Utah's polygamy statute. 

Represented by Jonathan Turley (h/t for complaint), the case garnered press including from NPR even before the lawsuit was filed.

Standing seems easily established.  Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired. 

 

 

The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage.  Indeed, Corey Brown, the sole male, is legally married to only one of the women.  This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly: 

(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Section 2 of the statute provides that bigamy is a felony of the third degree.

 The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.

Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause.  For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along." 

Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation. 

One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002).   Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.

Gordon discusses the history behind the case of  Reynolds v.  United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated.  But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."

On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.

As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.

RR

Candidate Has Standing to Challenge Section 5

A three-judge panel of the D.C. Circuit ruled on Friday that a political candidate has standing to lodge a facial challenge against Congress's authority to reauthorize Section 5 of the Voting Rights Act--the preclearance requirement that has become a target in litigation since Congress reauthorized it in 2006.

The case, LaRoque v. Holder, grows out of a citizen referendum in Kinston, North Carolina, that changed city elections from partisan to nonpartisan.  Kinston lies within a jurisdiction covered by Section 5 of the VRA, so the city council had to gain Justice Department preclearance before implementing the referendum.  DOJ declined to preclear, concluding that "[r]emoving the partisan cue in municipal elections [would], in all likelihood, eleminate the single factor that allows black candidates to be elected to office."  The city council declined to seek de novo review of the referendum by a three-judge district court, thereby effectively nullifying it.

Several Kinston residents, including John Nix, a resident who declared his candidacy for city council in the 2011 elections, sued, lodging a facial challenge against Congress's authority under the Fourteenth and Fifteenth Amendments to reauthorize Section 5. 

Nix, the subject of the court's standing analysis, is a registered Republican, but prefers to run in the referendum-approved nonpartisan election, because, he says, it'll make it cheaper and easier for him to run, and he's more likely to win.  The district court dismissed for lack of standing.

The D.C. Circuit reversed.  It ruled that Nix alleged sufficiently concrete and particularized injuries (that the partisan election will make it tougher for him to get on the ballot and less likely that he'll win), sufficient causation (because the city council's decision not to implement the referendum was the result of DOJ's enforcement of Section 5), and sufficient redressability (because a ruling that Section 5 exceeds congressional authority would allow the city council to implement the referendum).

The court also ruled that Nix had prudential standing, citing the Supreme Court's recent decision Bond v. United States and ruling that Nix isn't precluded from suing just because he "challenge[d] a law that he claims 'upset[s] the constitutional balance between the National Government and the States.'"  Op. at 24.

The court remanded the case to the district court to consider the merits of Nix's claim--whether reauthorization of Section 5 exceeds congressional authority, an issue the Supreme Court dodged in its 2009 ruling, Northwest Austin Municipal Utility District Number One v. Holder, but has remained an issue in litigation since.

SDS

Second Circuit Rules "Prostitution Pledge" Unconstitutional

The Second Circuit today in a 2-1 opinion held unconstitutional the so-called prostitution pledge for government AIDS/HIV funding unconstitutional in Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction v.   United States Agency for International Development.

The prostitution pledge - - - actually an anti-prostitution pledge - - - is in Section 7631(f) of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. providing that no funds “made available to carry out this Act . . . may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution.”   The Act also has a provision, unchallenged in this case, that prohibits funds made available to carry out the Act being used to “promote or advocate the legalization or practice of prostitution or sex trafficking.”   The case was returning to the Second Circuit after being remanded to the district court judge, and the Circuit opinion affirmed the district judge’s finding that Section 7631(f) was an unconstitutional condition on the receipt of funding.  The panel easily found that the plaintiffs had standing.

The panel concluded that the provision, as construed and implemented by the Defendant/Appellant agencies, falls well beyond what the Supreme Court and this Court have upheld as permissible conditions on the receipt of government funds.  The panel reasoned that Section 7631(f) does not merely require recipients of Leadership Act funds to refrain from certain conduct, “but goes substantially further and compels recipients to espouse the government’s viewpoint.” 

 The panel rejected the government agencies’ expansive argument that all government funding requirements are insulated from constitutional constraints.  Instead, the panel carefully considered Regan v. Taxation With Representation, 461 U.S. 540 (1983), FCC v. League of Women Voters of California, 468 U.S. 364 (1984); Rust v. Sullivan, 500 U.S. 173 (1991) and Services Corp. v. Velazquez, 531 U.S. 533 (2001), as well as the Second Circuit Velazquez and LSC-funding cases.  In distinguishing these cases, the panel stated:

 the Policy Requirement does not merely restrict recipients from engaging in certain expression (such as lobbying (Regan), editorializing (League of Women Voters), abortion-related speech (Rust), or welfare reform litigation (the LSC cases), but pushes considerably further and mandates that recipients affirmatively say something—that they are “opposed to the practice of prostitution,” 45 C.F.R. § 89.1. The Policy Requirement is viewpoint-based, and it compels recipients, as a condition of funding, to espouse the government’s position.

The panel further distinguished Rust by stating that "the Rust Court expressly observed that “[n]othing in [the challenged regulations] requires a doctor to represent as his own any opinion that he does not in fact hold.”"  Rather," the grantee’s staff could remain “silen[t] with regard to abortion,” and, if asked about abortion, was “free to make clear that advice regarding abortion is simply beyond the scope of the program.”"  Unlike under these regulations where the plaintiffs "must represent as their own an opinion—that they affirmatively oppose prostitution—that they might not categorically hold."

Judicial conclusions of unconstitutional conditions that violate the First Amendment have become relatively rare.  The panel clarified that its holding is narrow:

We do not mean to imply that the government may never require affirmative, viewpoint specific speech as a condition of participating in a federal program. To use an example supplied by Defendants, if the government were to fund a campaign urging children to “Just Say No” to drugs, we do not doubt that it could require grantees to state that they oppose drug use by children. But in that scenario, the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.

The panel also noted that the mandated viewpoint was not universal: "the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate," in which "the differences are both real and substantive."  By requiring the espousal of the government's position, the program prohibited important political speech.

RR
[image:Title page and frontispiece of Harris's List of Covent Garden Ladies (1757 – 1795) - a directory of prostitutes in Georgian London, via]

 

Federal Judge Enjoins Georgia's Immigration Statute

Georgia's House Bill 87, the "Illegal Immigration Reform and Enforcement Act of 2011" is similar to efforts by other states to control immigration, including the Indiana statute enjoined a few days ago and most notably Arizona.

A motion for preliminary injunction sought relief on three sections of the statute scheduled to take effect on July 1, 2011, but a federal judge has enjoined its enforcement in a 45 page opinion (and additional appendix).

The plaintiffs contended that HB87 violates the Fourth Amendment, the Fourteenth Amendment's due process and equal protection clause, and Article IV privileges and immunities clause right to travel.  The district judge rejected all of these arguments, as well as rejecting the State's argument that the individual and organizational plaintiffs lacked standing.

However, the district judge found favor with the arguments that the provisions of HB87 under consideration were preempted by federal law and therefore violative of the Supremacy Clause.

Section 8 of HB 87 authorizes local law enforcement officers to investigate a suspect’s illegal immigration status and, if the officer determines the suspect has violated federal immigration law, detain and arrest the suspect without a warrant. The judge stated: "Congress, however, has already addressed the circumstances in which local law enforcement personnel may enforce federal civil immigration law" in statutes that "clearly express Congressional intent that the Attorney General should designate state and local agents authorized to enforce immigration law."  Indeed, the district judge noted, "Congress has provided that local officers may enforce civil immigration offenses only where the Attorney General has entered into a written agreement with a state," or "where the Attorney General has expressly authorized local officers in the event of a mass influx of aliens."

Section 7 of HB87 creates three criminal violations: (1) transporting or moving an illegal alien in a motor vehicle; (2) concealing, harboring or shielding an illegal alien from detection;  and (3) inducing, enticing, or assisting an illegal alien to enter Georgia.  The judge distinguishes Chamber of Commerce v. Whiting, decided by the United States Supreme Court in May, in which the Court held that federal law did not preempt an Arizona statute providing for suspension and revocation of business licenses for entities employing unauthorized aliens. Unlike in Whiting, the judge found that the state and federal provisions were not parallel: the state law prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia.  The federal law's corresponding “inducement” provision prohibits inducing an alien to “come to, enter, or reside in the United States.” "Once in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state."  Moreover, the judge reasoned that the Arizona statute in Whiting "imposed licensing laws specifically authorized by a statutory savings clause, HB87 imposes additional criminal laws on top of a comprehensive federal scheme that includes no such carve out for state regulation."

The judge therefore found both sections 7 and 8 to be sufficiently constitutionally suspect to support a preliminary injunction. 

The judge also had some observations on Georgia's articulated necessity for regulating immigration:

The widespread belief that the federal government is doing nothing about illegal immigration is the belief in a myth. Although the Defendants characterize federal enforcement as “passive,” that assertion has no basis in fact. On an average day, Immigration and Customs Enforcement officers arrest approximately 816 aliens for administrative immigration violations and remove approximately 912 aliens, including 456 criminal aliens, from the United States. (Declaration of Daniel H. Ragsdale ¶ 5) (Attached for convenience as Appendix B). In 2010, immigration offenses were prosecuted in federal court more than any other offense. U.S. SENTENCING COMMISSION–2010SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 11-12 (2010).  Of the 83,946 cases prosecuted under the federal sentencing guidelines, 28,504, or 34% involved immigration offenses. Id. In 2010, of 81,304 criminal cases prosecuted in federal court, 38,619 (47.5%) were non-United States citizens. It is true that there are thousands of illegal immigrants in Georgia that are here because of the insatiable demand in decades gone by for cheap labor in agriculture and certain industries such as construction and poultry processing. The federal government gives priority to prosecuting and removing illegal immigrants that are committing crimes in this country and to those who have previously been deported for serious criminal offenses such as drug trafficking and crimes of violence. (Declaration of Daniel H. Ragsdale ¶¶ 16-28.) To the extent that federal officers and prosecutors have priorities that differ from those of local prosecutors, those priorities are part of the flexibility that “is a critical component of the statutory and regulatory framework” under which the federal government pursues the difficult (and often competing) objectives, of “protecting national security, protecting public safety, and securing the border.”

 

 

The federal district judge is Thomas Thrash formerly a LawProf at Georgia State.  The case is sure to be appealed to the Eleventh Circuit.

RR
[image: Cutters at Turpentine Farm in Georgia via]

Indiana Immigration Law (SEA 590) Enjoined by Federal Judge

Indiana has joined several other states, most notably Arizona, in passing statutes intended to regulate immigration.  The Indiana statute, SEA 590 set to become effective July 1, has been partially enjoined by a federal district judge in a 39 page Order

The judge enjoined both provisions challenged by plaintiffs:

• Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies.
• Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The opinion considers standing issues, as well at the standards for preliminary injunction, but found both sections 19 and 18 unconstitutional and enjoined their enforcement.

As to section 19, the judge found it troubling under both pre-emption and Fourth Amendment principles.  On pre-emption, the judge stated that :

Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.

As to the Fourth Amendment issue, the judge noted that the State conceded that "nothing under Indiana law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony."   Section 19 expressly provides that state and local enforcement officers 'may arrest' individuals for conduct that all parties stipulate and agree is not criminal."   While the State argued that the statute would only be enforced in circumstances in which the officer had a "separate, lawful reason for the arrest," the judge found that construction "fanciful" and would " in effect, read the statute out of existence."  The judge thus found the statute violative of the Fourth Amendment.

On section 18, the judge similarly considered pre-emption, but also an equal protection and due process challenge.   On pre-emption, the treaty power was also implicated, and planitiffs argued that the provision interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations.  The State rejoined that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an "internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation."  The judge reasoned that the provision targeted "only one form of identification – CIDs issued by foreign governments" and moreover, regulated CIDs "in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions."   With regard to equal protection, the judge cited United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), noting that this "targeting" was a "bare desire to harm a politically unpopular group."  Thus, the judge found this provision unconstitutional as well.

The District Court Judge, Sarah Evans Parker (pictured above) was appointed to the bench by president Ronald Regan in 1984; an interesting profile of the judge, with video interviews, appeared earlier this year from Indiana Business Journal. 

RR

The Tenth Amendment, Standing, and Criminal Conviction: Bond v. US Opinion

In a unanimous opinion the Court reversed the Third Circuit and held that a defendant has standing to raise a Tenth Amendment claim. 

The case involves the criminal conviction of Carol Anne Bond for a violation of 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court. 

As we noted in our discussion of the oral argument, this is no ordinary criminal appeal is evinced by the appearance of  Michael R. Dreedben, as Deputy Solicitor General, Department of Justice, "on behalf of the Respondent, in support of the Petitioner.”   If this is a case in which even the United States - - - who after all, prosecuted Ms. Bond - - - agrees with the defendant, then why is this case in the United States Supreme Court?  The problem is the Third Circuit opinion, which held that Bond does not have standing to raise a Tenth Amendment challenge to the statute and the split amongst the circuits of the issue.  The third Circuit stated it was “persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.”

The standing rules at issue - - - the prudential rules rather than the Article III standing rules - - - are distilled in a single sentence from Tennessee Elec. Power Co. v. TVA, 306 U. S. 118 (1939): "“As we have seen there is no objection to the Authority’s operations by the states, and, if this were not so,the appellants, absent the states or their officers, have no standing in this suit to raise any question underthe amendment.”   Id. at 144.   In Bond, the Court states that the "sentence from Tennessee Electric that we have quoted and discussed should be deemed neither controlling nor instructive on the issue of standing as that term is now defined and applied."

The Court further notes:

There is no basis to support the Government’s proposed distinction between different federalism arguments for purposes of prudential standing rules. The princi-ples of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York, 505 U. S., at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U. S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases.

Ginsburg wrote "separately to make the following observation. Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law."

As Supreme Court opinions go, this one is relatively brief.  It clarifies standing doctrine without changing the landscape.

RR

No Backdoor Standing to Challenge Emissions Waiver

The D.C. Circuit ruled on Friday that the Chamber of Commerce and the National Automobile Dealers Association (NADA) lacked associational standing to sue the Environmental Protection Agency to block its waiver of greenhouse gas emissions standards to California and other states.  The court thus dismissed the case.

The plaintiffs' petition challenged the EPA's waiver, which allowed California and other states to adopt and enforce greenhouse gas emissions standards that exceeded the EPA's own standards.  (The Clean Air Act prohibits states from adopting more restrictive standards but allows the EPA to grant waivers.)

But last April, the EPA and the National Highway Transportation Safety Administration jointly issued a national program of greenhouse gas emissions and fuel economy standards for marketing years 2012 through 2016.  The standards grew out of an agreement with the agencies, the State of California, and major automobile manufacturers.  Under the agreement, California amended its regulations to deem compliance with the national standards compliance with its own standards for these years.  (For years 2009 through 2011, California adjusted its standards to make compliance somewhat easier.)

As a condition of the agreement, major auto manufacturers and their trade associations agreed not to sue to contest the new national standards or the California waiver.

But that agreement (alone) didn't stop the Chamber of Commerce and NADA to challenge the regs and waiver on behalf of auto dealers.

The D.C. Circuit nevertheless ruled that they lacked standing.  (The Chamber failed to allege that one of its members was affected and therefore lacked associational standing.  NADA, however, identified allegedly injured members.)  As to the years 2009 through 2011, the court ruled that the NADA failed to alleged with sufficient determinacy that manufacturers would adjust the "mix" of vehicles offered to dealers in waived states (thus affecting the dealers' sales) and that manufacturers would necessarily raise the price of vehicles (also affecting sales).  Part of NADA's problem was that Ford planned to raise its emissions standards on its own, even before the EPA granted California's waiver, thus undercutting any causation and redressibility.  (The two dealers that provided affidavits in support of standing sold Ford cars.)

As to years 2012 through 2016, the court wrote that Ford planned to up its own standards, independent of federal regulation, and that the case was moot.  Why moot?  Because starting in 2012, manufacturers will have to comply with federal standards, and compliance with those standards will also satisfy California under the 2010 agreement.  In other words, manufacturers will have to meet the federal standards, anyway, and their meeting the exact same California standards cannot possible harm dealers.

SDS

Standing to Challenge Residency Requirement for Guns

The D.C. Circuit ruled on Friday that a U.S. citizen residing in Canada has standing to challenge the federal law prohibiting a non-resident from buying a gun.

18 U.S.C. Sec. 922(a)(9) makes it unlawful for "any person . . . who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes."  The ATF form Firearms Transaction Record Part I--Over the Counter, requires gun purchasers to give their state of residence.  (See Question 13 on the form.)

The plaintiff in the case, Stephen Dearth, alleged that he lives in Canada and no longer maintains a residence in the U.S.  He says that he tried twice to purchase a gun, but was foiled when he could not provide an answer to Question 13.  He sued for declaratory and injunctive relief.

The government argued that Dearth couldn't show a continuing harm: It never denied his application; Dearth didn't claim a right to a "permit" or "license" by the government; and Dearth stated no firm plans to visit the U.S.

The court rejected these arguments.  It held that Dearth's inability to complete the application was harm enough (even if the government didn't ever deny the application), and that Dearth's claim of a right to possess a gun was sufficient (and that there's no requirement that Dearth claim a right to a permit or license).  It also held that Dearth's claims that he intends to visit his friends in the U.S. and to store his guns at his relatives' home in the U.S. satisfied the requirement in Lujan v. Defenders of Wildlife, 504 U.S. at 564, that a prospective injury be sufficiently "actual or imminent" (and not a "some day" intention).

SDS

Seventh Circuit Rules No Standing to Challenge Presidential National Day of Prayer Proclamation

In a succinct Opinion authored by Chief Judge Easterbrook in Freedom From Religion Foundation v. Obama, the Seventh Circuit has held that the organization does not have standing to challenge the Presidential Proclamation of a National Day of Prayer.  The Opinion's appendix notably includes Obama's Proclamation as Appendix B and a Proclamation by George Washington as Appendix A. 

As we discussed, last year District Judge Barbara Crabb declared the proclamation of a national day of prayer unconstitutional: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."

Reversing the lower court, the Seventh Circuit did not find sufficient injury to confer standing:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles. It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome. Here again is the proclamation’s only sentence that explicitly requests citizens to pray: “I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, grace, and protection as we meet the challenges before us.” But let us suppose that plaintiffs nonetheless feel slighted. Still, hurt feelings differ from legal injury. The “value interests of concerned bystanders” (United States v. SCRAP, 412 U.S. 669, 687 (1973)) do not support standing to sue.

Further, the Seventh Circuit noted:

                    If this means that no one has standing, that does not change the outcome.

Judge Williams wrote separately to concur but express some concerns with the "majority's reasoning and the uncertainty of the Supreme Court's precedent."   Specifically, Judge Williams rejects the majority's reliance on Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), a challenge to the "under God" phrase in the Pledge of Allegiance, by a noncustodial father.  As Williams notes, it was Newdow's custodial status and not the "feelings of exclusion" that foreclosed Newdow's standing.  Additionally, Williams contends:

 The Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases. As the Ninth Circuit recently noted, the Court has
decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government, including cases involving a creche in a county courthouse, a creche in a public park, the Ten Commandments displayed on the grounds of a state capitol, the Ten Commandments displayed at a courthouse, a cross displayed in a national park, prayer in a football game, school prayer, a moment of silence at school, Bible reading at a public school, and a religious invocation at graduation. [citation omitted].  In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs.  “To ignore the import of those cases for the standing analysis, one would have to believe the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial cases unnecessarily and inappropriately.

Judge Williams continues by noting that "as recently as last week, the Court stated in Arizona Christian School Tuition Organization v. Winn that even though it had decided a number of Establishment Clause cases on the merits that appeared to be in tension with its decision to find no standing in the case before it, those cases were not dispositive because they did not address the threshold standing question."

In Hein v. Freedom from Religion Foundation decided in 2007 by the Supreme Court, the organization was similarly denied standing in its suit against faith-based funding.

RR

[image: Old Woman in Prayer by Nicholas Maes circa 1656  via]

Footnote of the Day: Tradition

In Arizona Christian School Tuition Organization v. Winn, decided this week, a deeply divided Court  reversed the Ninth Circuit's finding that an Arizona statute providing a tax credit to be used for education at religiously-funded schools violated the Establishment Clause.  The Court held that the taxpayer plaintiffs lacked standing.

In Justice Kagan's dissenting opinion, joined by three other Justices, she uses the word tradition" in footnote 10:

On this traditional view of the harm to taxpayers arising from state financing of religion, the Plaintiffs here can satisfy not only Article III’s injury requirement, but also its causation and redressability requirements. The majority’s contrary position, ante, at 15–16, stems from its miscasting of the injury involved; once that harm is stated correctly, all the rest follows. To wit: The Plaintiffs allege they suffer injury when the State funnels public resources to religious organizations through the tax credit. Arizona, they claim, has caused this injury by enacting legislation that establishes the credit. And an injunction limiting the credit’s operation would redress the harm by preventing the allegedly unlawful diversion of tax revenues. The Plaintiffs need not, as the majority insists, show that this remedy would “affect . . . their tax payments,” ante, at 16, any more than the taxpayer in Flast had to establish that her tax burden would decrease absent the Government’s funding of religious schools. As we have previously recognized, when taxpayers object to the spending of tax money in violation of the Establishment Clause (whether through tax credits or appropriations), “aninjunction against the spending would . . . redress [their] injury, regard-less of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 348–349 (2006).

In the text accompanying this footnote, Kagan cites a portion of DaimlerChrysler as "describing how the Flast Court’s understanding of the Establishment Clause’s history led the Court to view the alleged “injury” as the expenditure of ' "tax money" in aid of religion.' "   Dissenting Opinion at 19.

Moreover, Kagan's discusses some specific history and tradition relevant to the Establishment Clause: the famous statement by James Madison (pictured left) in Memorial and Remonstrance that governments should not “force a citizen to contribute three pence only of his property forthe support of any one establishment.’”  This is quoted by the Court, but Kagan disputes the majority's reliance:

And finally, James Madison provides no comfort to today’s majority. He referred to “three pence” exactly because it was, even in 1785, a meaningless sum of money; then, as today, the core injury of a religious establishment hadnaught to do with any given individual’s out-of-pocket loss.

Dissenting Opinion at 18.  Whenever the majority in Winn considers “tradition”  it does so in the text; the Court’s opinion does not possess any footnotes.  Justice Kennedy, writing for the Court, most explicitly invokes "tradition" by stating:

The concept and operation of the separation of powers in our National Government have their principal foundation in the first three Articles of the Constitution. Under Article III, the Federal Judiciary is vested with the“Power” to resolve not questions and issues but “Cases” or “Controversies.” This language restricts the federal judicial power “to the traditional role of the Anglo-American courts.” Summers v. Earth Island Institute, 555 U. S. 488, ___ (2009) (slip op., at 4). In the English legal tradition, the need to redress an injury resulting from a specificdispute taught the efficacy of judicial resolution and gavelegitimacy to judicial decrees. The importance of resolving specific cases was visible, for example, in the incremental approach of the common law and in equity’s considerationof exceptional circumstances. The Framers paid heed to these lessons.

Opinion at 4.

The role of “tradition” in recent Supreme Court cases is the subject of a new article, Constitutional Traditionalism in the Roberts Court by Louis J. Virelli III, Professor at Stetson University College of Law, draft available on ssrn, forthcoming in Pittsburgh Law Review.  Virelli considers the role of “tradition” in standing cases, as well as in other constitutional areas such as the dormant commerce clause, and the Fourth, Sixth, and Fourteenth Amendments. While Virelli discusses  “tradition” as a theoretical concept, his goal is not to enter the ideological fray, but instead his main project is an empirical one.   What does the Court actually say about tradition?  Using a dataset of the first five years of decisions from The Roberts Court, starting October 1, 2005, he searched for all cases that that contain the term “constitution” and at least one of the following  “tradition-related” terms:  “tradition,”  “culture,” “custom,” “heritage,”  or “history” with a yield of 222 entries.    He shows that some form of traditionalism was relied upon in approximately 44% of the cases decided by the Roberts Court.   

Virelli also provides an empirical portrait of the individual Justices in terms of their use of “tradition-related” language and provides some wonderfully illustrative bar graphs.  The Justice most likely to resort to tradition?  Not surprisingly, it is Justice Scalia.  The Justice least likely?  Perhaps more surprisingly, Justice Thomas.   Justice Kennedy, author of the majority opinion in the just-decided Winn, is third, after Scalia and Roberts.  Justices Sotomayor and Kagan are not included in years of the analysis, but the analysis includes Justices Stevens and Souter, with Souter not being as much of a traditionalist in the Roberts Courts years as he seemed to be earlier.

Perhaps in a future project, Professor Virelli will illuminate the intersection between traditionalism and footnotes?

RR

[image: James Madison, 1818, Portrait in the White House Collection, via]

No Standing in Establishment Clause Challenge: Arizona Christian School Tuition Organization v. Winn Opinion Analysis

The Court issued its 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, reversing the Ninth Circuit's finding that the Arizona statute violated the Establishment Clause by holding that the challengers lacked standing.

In his concurring opinion, Justice Scalia identifies the "struggle" between the majority and dissent as being whether the challenge to the Arizona tuition tax credit falls within the narrow exception of Flast v. Cohen, 392 U.S. 83 (1968).  For Scalia (joined by Thomas), this struggle is unnecessary because the "misguided" decision of Flast v. Cohen should be repudiated.

The Arizona provision at issue in Winn allows a tax credit for a contribution to school tuition organizations, STOs, many of which are religious. 

Writing for the Court, Justice Kennedy quickly sets the tone by noting that the challengers "sought intervention from the Federal Judiciary."  In further description of the facts, Kennedy notes that while the challengers "may be right that Arizona’s STO tax credits have an estimated annual value of over $50 million," the Arizona Christian School Tuition Organization is also right that "the STO program might relieve the burden placed on Arizona’s public schools," and the "result could be an immediate and permanent cost savings for the State." 

Kennedy thereafter analyzes the requirement of particularized injury:

Even assuming the STO tax credit has an adverse effect on Arizona’s annual budget, problems would remain. To conclude there is a particular injury in fact would require speculation that Arizona lawmakers react to revenue shortfalls by increasing respondents’ tax liability.[citation omitted].  A finding of causationwould depend on the additional determination that any tax increase would be traceable to the STO tax credits, as distinct from other governmental expenditures or other tax benefits. Respondents have not established that an injunction against application of the STO tax credit would prompt Arizona legislators to “pass along the supposed increased revenue in the form of tax reductions.”

Thus, the injury must be economic, give that the "STO tax credit is not tantamount to a religious tax or to a tithe and does not visit the injury identified in Flast." 

Kagan, writing for the four dissenting Justices, argues that there is little, if any, difference between appropriations and tax expenditures:  "Cash grants and targeted tax breaks are means of accomplishing the same government objective," and taxpayers who "oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other."

Kagan criticizes the Court's opinion as offering a "road map —more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge":

Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging Flast in this way, today’s decision damages one of this Nation’s defining constitutional commitments. “Congress shall make no law respecting an establishment of religion”—

Kennedy's Opinion for the Court ends by appealing to the prospect of a different type of damage and constitutional commitment: limited judicial power.

Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagreeswith them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts mustbe more careful to insist on the formal rules of standing,not less so. Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress’ power to change. The present suit serves as an illustration of these principles. The fact that respondents are state taxpayers does not give them standing to challenge the subsidies that [Arizona statute] §43–1089 allegedly provides to religious STOs. To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-or-controversy limitation on federal jurisdiction imposed by Article III.

 RR

[image via]

Government Files Opening Brief in Florida Health Reform Appeal

The government on Friday filed its opening brief in Florida v. HHS, the appeal before the Eleventh Circuit of Judge Vinson's (N.D. Fla.) ruling that federal health reform is unconstitutional.  (Thanks to the ACA Litigation Blog for the link to the brief.  Recall that Judge Vinson ruled that the individual health insurance mandate was unconstitutional, that it was not severable from the rest of the Affordable Health Act, and that the entire Act was therefore unconstitutional.  Our last post on the case is here.)

The government's core arguments are by now familiar; there are no major surprises.  There's just one new piece to the appeal, based on Judge Vinson's sweeping ruling: The government argues that his ruling that the entire Act is unconstitutional (because the individual mandate is not severable) goes too far, and that he fails to address several plaintiffs' lack of standing.  (These arguments begin on page 55 of the brief.)

Here are the point-headings from the Table of Contents:

I.    The Minimum Coverage Provision Is a Valid Exercise of Congress's Commerce Power.

    A.    The minimum coverage provision regulates the way people pay for health care services, a class of economic activity that substantially affects interstate commerce.

        1.    The minimum coverage provision regulates the practice of obtaining health care services without insurance, a practice that shifts substantial costs to other participants in the health care market.

        2.    The minimum coverage provision is essential to the Act's guaranteed-issue and community-rating insurance reforms.

    B.    The minimum coverage provision is a necessary and proper means of regulating interstate commerce.

        1.    The provision is plainly adapted to the unique conditions of the health care market.

        2.    Congress can regulate participants in the health care market even if they are not currently "active" in the insurance market.

        3.    The minimum coverage provision regulates economic activity as part of a broad regulation of interstate commerce, and bears no resemblance to the statutes in Lopez and Morrison.

II.    The Minimum Coverage Provision Is Also Independently Authorized by Congress's Taxing Power.

III.    The District Court Impermissibly Departed from Controlling Doctrine in Declaring the Affordable Care Act Invalid in Its Entirety and in Awarding Relief to Parties Without Standing.

SDS

 

Fourth Circuit Rejects Challenge to Qui Tam Seal Provision

A divided three-judge panel of the Fourth Circuit on Monday rejected the ACLU's First Amendment challenge to the False Claims Act requirement that qui tam complaints be sealed for 60 days (or more), until the United States decides to intervene.

The FCA allows private citizens (known as qui tam relators) to file suit on behalf of the United States and to share in any recovery from defendants who committed fraud on the government.  But qui tam complaints go under seal for 60 days (or more) while the government decides whether to intervene in the case, and qui tam relators are gagged from discussing their complaint (but not the underlying alleged fraud).

The ACLU, OMB Watch, and the Government Accountability Project all brought suit against AG Eric Holder, alleging that the qui tam seal requirement violated the public's First Amendment right of access to judicial proceedings, violated the First Amendment by gagging qui tam relators from speaking about their complaints, and violated separation of powers by infringing upon the courts' inherent authority to decide on a case-by-case basis whether to seal qui tam complaints.

The majority disagreed.  Judge Dever (E.D.N.C.), sitting by designation, wrote that the government has a compelling interest in the integrity of ongoing fraud investigations, and that the seal requirement is narrowly tailored to serve that interest because (1) the seal requirement is time-limited to balance the government's investigatory needs against the need for public access to court documents, (2) the seal provision mandates judicial review after 60 days, and (3) the seal requirement limits the qui tam relator only from discussing the complaint, not the underlying fraud.

Judge Dever wrote that the plaintiffs lacked standing as "willing listeners" to challenge the gag rule, and that the seal provision does not violate separation of powers because it's an appropriate subject of congressional legislation and doesn't intrude on the constitutional role of the judiciary.

Judge Gregory argued in dissent that the overly rigid 60-day seal requirement interferes with the "transparency [that] remains central to combating waste and fraud."  Op. at 23.  Judge Gregory argued that the requirement neither served a compelling government interest nor was narrowly tailored.

SDS

Amnesty and Other Organizations have Standing to Challenge Constitutionality of FISA Amendments, Second Circuit Holds

A panel of the Second Circuit has reversed the district judge's summary judgment against plaintiffs who claimed that a portion of the FISA Amendments Act of 2008 ("FAA") amending the Foreign Intelligence Surveillance Act of 1978 (“FISA”), is unconstitutional.  

In a 63 page opinion, the panel in Amnesty International, USA v. Clapper considered the plaintiffs fears of being monitored by the government electronic surveillance authorized by FAA section 702 targeting  non-United States persons outside the United States for purposes of collecting foreign intelligence.  The unanimous opinion, written by Gerald Lynch and joined by Judges Guido Calabresi and Robert Sack, rejected the contentions of the government that the plantiffs' fears were too speculative. 

The panel articulated the relationship between the plaintiffs' fears and the concrete acts that the plaintiffs were taking to circumvent the government's surveillance:

If the plaintiffs can show that it was not unreasonable for them to incur costs out of fear that the government will intercept their communications under the FAA, then the measures they took to avoid interception can support standing. If the possibility of interception is remote or fanciful, however, their present-injury theory fails because the plaintiffs would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely  potential harm. Any such costs would be gratuitous, and any ethical concerns about not taking those measures would be unfounded. In other words, for the purpose of standing, although the plaintiffs’ economic and professional injuries are injuries in fact, they cannot be said to be “fairly traceable” to the FAA – and cannot support standing – if they are caused by a fanciful, paranoid, or otherwise unreasonable fear of the FAA.

Opinion at 28-29.  The panel found it a significant distinction from Lyons v. City of Los Angeles (the "choke-hold" case) that FAA is a statute and not a government practice:

This case is not like Lyons, where the plaintiff feared injury from officers who would have been acting outside the law, making the injury less likely to occur. Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute. The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security. [citations omitted]. That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur.

Opinion at 38-39.  In addition to Amnesty, the plaintiff organizations include Global Fund For Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, and Washington Office on Latin America. The panel concluded that

the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored. Either way, the FAA directly affects them.

Opinion at 52.  Thus, unless the finding of standing reaches the United States Supreme Court, the plaintiffs will proceed to the merits of their arguments that the FAA violates the First and Fourth Amendments, as well as being violative of the separation of powers and beyond the powers of Congress and the Executive.

RR

[image: Spy Museum in Washington, DC via]

The Tenth Amendment, Standing, and Criminal Conviction: Bond v. US Oral Argument

The Court heard oral argument today in Bond v. United States which involves the criminal conviction of Carol Ann Bond for a violation of 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court. 

That this is no ordinary criminal appeal is evinced by the appearance of  Michael R. Dreedben, as Deputy Solicitor General, Department of Justice, "on behalf of the Respondent, in support of the Petitioner.”   If this is a case in which even the United States - - - who after all, prosecuted Ms. Bonds - - - agrees with the defendant, then why is this case in the United States Supreme Court?

The problem is the Third Circuit opinion, which held that Bond does not have standing to raise a Tenth Amendment challenge to the statute:  Noting that there was a split in the circuits on the issue, the court stated it was “persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.”

There is little doubt that Bond has standing to raise the issue of whether the federal statute exceeds federal power, either under the Commerce Clause or the Treaty Power, but much more ambiguity regarding the Tenth Amendment Claim.   Yet this prompts the query of the real difference between a Congressional lack of enumerated power argument and a Tenth Amendment argument, a subject that preoccupied the Court at first. 

Justice Alito, however, posed a goldfish hypothetical, addressing the breadth of the underlying statute:

JUSTICE ALITO: . . . . Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?

MR. DREEBEN: I'm not sure, Justice Alito. I will assume with you that it is. The statute -

JUSTICE ALITO: If she possesses a chemical weapon.

MR. DREEBEN: I'm not sure that vinegar is a chemical weapon.

JUSTICE ALITO: Well, a chemical weapon is a weapon that includes toxic chemicals. And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's -- that's a chemical weapon.

After a bit of vinegar discussion, Justice Ginsburg asked if the argument had veered into the merits, to which Dreeben replied, "A lot further than I had intended, Justice Ginsburg. . . ."

Appointed to argue for the opinion below, Stephen McAllister crystalized the issue quite quickly:

The relevant standing doctrine in this case is the prudential rule against third-party standing. No one disputes here that the Petitioner has Article III standing. One of the difficulties in the case is that the only case that mentions specifically standing in this context is the Tennessee Valley Authority case [Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939)] and it clearly says if it is in fact a Tenth Amendment claim, unless you have a State official or the State, there is no standing.

Yet Roberts replied, "Pretty harsh, if we're talking about prudential standing, to deny that to a criminal defendant, isn't it?"

Later, Roberts again raised the relevance of the criminal context of the case and reiterated the enumerated powers/Tenth Amendment relationship:

CHIEF JUSTICE ROBERTS: . . . . it seems to me we've had a lot of discussion this morning about whether this is an enumerated powers claim or a Tenth Amendment claim. They really do kind of blend together, and it seems to me awfully difficult to put on a criminal defendant the responsibility to decide whether this is going to be an enumerated powers claim or this is going to be a Tenth Amendment claim. The basic principles do kind of merge together, and why does it make -- again, why does it make that much of a difference and why do you put the burden on the defendant to parse the claim one way or another, since I assume they can make pretty much all the same arguments under an enumerated powers [argument] . . . .

The Court’s opinion can be expected to address whether or not a criminal defendant has prudential standing to raise a Tenth Amendment claim and presumably provide guidance on what difference that makes when the defendant can raise a (lack of) enumerated powers claim.

Meanwhile, the mix of underlying facts and constitutional theory have commentators such as Dalia Lithwick and Garrett Epps writing excellent pieces worth sharing with students in Constitutional Law.

 

RR

Another Health Care Reform Challenge Dismissed

Judge Keith Starrett (S.D. Miss.) today dismissed a challenge to the individual health insurance mandate in the federal Affordable Care Act.  The case, Bryant v. Holder, involved private Mississippians who do not possess any form of health insurance and who have no desire or intention to purchase it under the mandate.  Judge Starrett ruled, consistent with at least 14 other courts (only four have reached the merits, dividing 2-2), that the plaintiffs lacked standing in their challenge to the ACA under the Commerce Clause, the Takings Clause, the Due Process Clause, and the Tenth Amendment.  (See below on the Tenth Amendment claim.)  We posted most recently on standing in ACA challenges here; we posted most recently on other aspects of ACA challenges here.

Judge Starrett ruled that the plaintiffs failed to allege a "sufficiently impending" injury to support standing:

Plaintiffs' First Amended Petition contains insufficient allegations to establish that they will certainly be "applicable individuals" who must comply with the minimum coverage provision. For example, Plaintiffs did not allege any facts which, if true, would certainly establish that they would not be subject to the provision's religious exemption.  Plaintiffs simply alleged that they will be subject to the minimum essential care provision--a bare legal conclusion which the Court may not accept as true.  They did not include any factual allegations--other than their citizenship--to establish that they will be considered "applicable individuals" according to the provision's terms.

Furthermore, it is not certain from Plaintiffs' allegations that, in the event they were considered "applicable individuals," they would incur the tax penalty for non-compliance.  Their First Amended Petition contains insufficient allegations to establish that they will not be subject to one of the exemptions to the penalty. . . .

Op. at 19 (citations omitted).

Judge Starrett also ruled that Plaintiff Bryant, the State Lieutenant Governor but appearing in his "private and individual capacity here," lacked standing to challenge the ACA under the Tenth Amendment.  In short, Judge Starrett ruled that Bryant's claim alleging an injury to the "sovereign interests of the state of Mississippi" sought to vindicate the rights of a third party, in violation of the third-party standing rule.  Op. at 21-22. 

The Supreme Court will take up a private individual's standing to assert a Tenth Amendment claim later this month in Bond v. U.S.  That case involves a criminal defendant's standing to lodge a Tenth Amendment challenge to federal law. 

Judge Starrett gave the plaintiffs 30 days to amend their complaint.

SDS

 

Do Prop 8 Proponents Have Standing to Appeal?

A three-judge panel of the Ninth Circuit today asked the California Supreme Court whether proponents of Proposition 8, the same-sex marraige ban, have standing to appeal the district court's ruling that Prop 8 is unconstitutional.  (The panel also upheld the district court's denial of a motion to intervene in the case by a County, its Board, and its Deputy Clerk.  We covered that ruling here.)

Plaintiffs in the case did not originally include Prop 8 proponents as defendants.  But the district court permitted them to intervene and file an answer.  The district court then ruled that Prop 8 was unconstitutional and enjoined its enforcement by the named defendants.  The proponents appealed, but the named defendants did not.  The Ninth Circuit asked the parties to brief the question whether proponents had standing to appeal, and, after briefing, now ask the California Supreme Court whether California law confers standing to appeal upon proponents of a proposition.  Here's the certified question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure 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.

Op. at 2.

The Ninth Circuit is understandably gun shy on the question: they've false-started before.  The prior case involved Arizona's "English only" constitutional amendment (by ballot initiative).  As in this case, the district court in that case ruled the amendment unconstitutional, and state officials declined to appeal.  Supporters of the measure appealed, however, and the Ninth Circuit ruled that they had standing.  The Supreme Court in Arizonans for Official English v. Arizona "expressed grave doubts whether [ballot initiative supporters] have standing under Article III to pursue appellate review," but vacated on other grounds. 

Back to the Prop 8 case, the Ninth Circuit wrote in its certification to the California Supreme Court,

Having been granted intervention in the district court is not enough to establish standing to appeal; "an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III." . . .  States, however, "ha[ve] the power to create new interests, the invasion of which may confer standing."

Op. at 7-8 (quoting Diamond v. Charles). 

Thus ruling under Arizonans for Official English and Diamond v. Charles that the proponents' Article III interest could be established under state law--but also finding no definitive state authority that said proponents possessed a particularized interest--the Ninth Circuit certified the question to the California Supreme Court.

If proponents don't have a state-law interest (and therefore lack standing to appeal), the Ninth Circuit may lack jurisdiction to hear the case.  The district court ruled Prop 8 unconstitutional, and nobody with standing has yet come forward to appeal.  The Ninth Circuit stayed the district court injunction, and the parties predictably disagree about the legal status of Prop 8 if the Ninth Circuit ultimately has no jurisdiction to hear the appeal.

SDS

County, Board, Deputy Clerk Lack Standing to Intervene in Prop 8 Appeal

A three-judge panel of the Ninth Circuit ruled today that the County of Imperial, its Board of Supervisors, and a Deputy Clerk for the County lacked standing to appeal on the merits the district court order holding Proposition 8, the same-sex marriage ban, to be unconstitutional.  We most recently posted on the case here; our post on the district court ruling is here. 

The ruling leaves open whether the Ninth Circuit can hear the appeal on the merits: It's not clear that there is anyone with standing who will defend Prop. 8 on appeal.  (The Ninth Circuit panel asked the California Supreme Court in a separate Order Certifying a Question whether Prop. 8 proponents have standing to appeal.  We'll cover that in a separate post.)

The panel ruled today that the County, Board, and Deputy Clerk did not satisfy the standards for intervention as of right or permissive intervention.

As to intervention as of right under Federal Rule of Civil Procedure 24(a)(2) (requiring a district court to permit intervention for anyone who, among other things, "claims an interest relating to the property or transaction that is the subject of the action"), the court ruled that none had a "significant protectable interest" at stake.  The Deputy Clerk had no interest, because she did not have the powers and duties of the Clerk's office.  (Those belonged to the Clerk, not the Deputy Clerk.)  Her claimed interest in the case, its effect on the Clerk's performance of her legal duties, was therefore not the Deputy Clerk's interest; it was the Clerk's interest.  The Board had no interest, because it "plays no role with regard to marriage."  Op. at 10.  (Marriage is a state concern, not a "municipal affair."  Id.)  The County's "direct financial interest" was waived, Op. at 11, because the County failed to raise it at the district court.

As to permissive intervention under Federal Rule of Civil Procedure 24(b)(1)(B) (permitting, but not requiring, a district court to grant intervention by a litigant who has "a claim or defense that shares with the main action a common question of law or fact"), the Ninth Circuit deferred to the district court's judgment denying intervention.  The Ninth Circuit ruled that the County, the Board, and the Deputy Clerk would introduce no new evidence or arguments into the case, and that their "only expressed interest in the case--ensuring appellate review of the constitutional claims--was one that they could not fulfill because they would lack standing to appeal [the district court's judgment]."  Op. at 13.  (The court ruled that the movants' particular interest here would require them to have Article III standing to appeal the merits of the constitutional holding below.  That they did not have: the court ruled on intervention as of right that they lacked any significant protectable interest; and they therefore lacked Article III standing.)

Judge Reinhardt issued a separate concurrence, explaining the significance of the ruling and putting it in a larger context.  Judge Reinhardt concurrence is well worth a read for its plain-spoken explanation of the court's ruling today.  He also takes issue with the trend toward technicalization and proceduralism of federal litigation (with the resulting limits on access to the federal courts) and the way the plaintiffs litigated the case.  (He argues that the plaintiffs could have avoided the whole standing mess by suing a broader set of defendants.)  He also questions why the movants couldn't find a Clerk, not a Deputy Clerk, to move to intervene; the result may have been different.

(Judge Reinhardt also issued his more lengthy explanation of why he declined to recuse himself.  Recall that Prop. 8 proponent moved for recusal based on Judge Reinhardt's spouse's views and positions as ED of the ACLU/SC.  Judge Reinhardt explained that his "wife's views, public or private, as to any issue that may come before this court, constitutional or otherwise, are of no consequence.  She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa).  I share that view . . . ."  Op. at 3.)

SDS

Court Dismisses Targeted Killing Case

Judge John D. Bates (D.D.C.) today dismissed Nasser Al-Aulaqi's case on behalf of his son, Anwar Al-Aulaqi, to stop the administration from killing his son.  Anwar is a U.S. citizen tagged by the Obama administration as a terrorist and targeted for extrajudicial killing.  We most recently posted on the case here.

The 83-page opinion in Al-Aulaqi v. Obama concludes that Nasser lacks standing, failed to allege a violation of the Alien Tort Statute, and that the case raises non-justiciable political questions.  (Judge Bates declined to rule on the administration's state secrets claim.)  The ruling does not address the merits--except to say that that the case is "unique and extraordinary."

Judge Bates ruled that Nasser lacks standing as next-friend or under third-party-standing rules.  According to Judge Bates, Nasser failed to explain why Anwar could not appear in court himself and failed to show that he would be truly dedicated to Anwar's best interests.  (Judge Bates wrote that "no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities"--even, apparently, if he is subject to killing or indefinite detention as a terrorist if he shows up.  Judge Bates also ruled that Nasser did not show that Anwar even wanted to bring this case--and therefore Nasser did not show that he was representing Anwar's best interests.)  Moreover, Nasser did not allege a sufficient harm--loss of his relationship with his son--to support third-party standing.

Next Judge Bates ruled that Nasser failed to satisfy the requirements of the Alien Tort Statute--both that he suffered a legally cognizable tort that rises to the level of a customary international law norm, and that the U.S. waived sovereign immunity.  As to the former, Judge Bates ruled that a threatened extrajudicial killing is not a violation of customary international law (even if an actual extrajudicial killing is).  Moreover, this case has a complicating factor: an alien (Nasser) brings the case on behalf of a citizen (Anwar).  The ATS doesn't allow for this.  As to the latter, the U.S. has not waived immunity.

Finally, Judge Bates ruled that the case is barred by the political question doctrine.  Resolution of the case would require the court to delve into complicated issues of foreign affairs and national security, and therefore the court must abstain.

The opinion recognizes the importance and the complicated and troubling nature of the case--on both sides.  (It starts with a series of questions like this: "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen for death?"  And this: "Can a U.S. citizen--himself of through another--use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for 'jihad against the West,' and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?"  Good questions, indeed.)  But it doesn't address these, at least not directly.  Instead, it dismisses the case largely on non-merits issues.  In so doing, the court leaves the substantive questions for the political branches--here, the executive alone.  In short, under this opinion there doesn't appear to be a way that a U.S. citizen could safely challenge an ordered extrajudicial killing through the U.S. courts: Upon revealing her- or himself, she or he would almost certainly be killed or detained (indefinitely).  (If the latter, she or he could challenge the detention by way of habeas, but could apparently not challenge the ordered killing.)  This apparently leaves unchecked power in the hands of the executive to order killings of anyone, including U.S. citizens, it deems a terrorist. 

Recognizing the "drastic nature" of the government's power, Judge Bates tried to limit the ruling in two ways--limiting the political question analysis to the facts, and declining to rule on the state secrets privilege.  But in the end, the holdings on standing, the ATS, and even the political question doctrine mean that targets of extrajudicial killings have no real way to challenge the government in the courts.

SDS