Sunday, February 9, 2014
Sexual Orientation Change Efforts Ban: Petition for Certiorari After Ninth Circuit Declines En Banc Review
Recall that the Ninth Circuit upheld the California statute in Pickup v. Brown in August 2013. The panel concluded that on the continuum between speech and conduct, California's SB 1172 landed on conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech." Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.
The Ninth Circuit has issued an opinion and rejected en banc rehearing over a dissent by Judge O’Scannlain, joined by Judges Bea and Ikuta. The dissenting opinion began with a forceful "issue statement" worthy of an oral argument:
May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about.
Interestingly, the original panel - - - Judge Susan Graber, joined by Chief Judge Alex Kozinski and Judge Morgan Christen - - - included an amended panel opinion accompanying the denial of the en banc rehearing. This amended panel opinion adds two passages that discuss United States Supreme Court precedent on the "conduct" issue with which the dissenters disagreed.
First, Judge Graber adds a brief discussion [in italics below] before the more detailed discussion of Ninth Circuit precedent:
The first step in our analysis is to determine whether SB 1172 is a regulation of conduct or speech. “[W]ords can in some circumstances violate laws directed not against speech but against conduct . . . .” R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47, 62 (2006). The Supreme Court has made clear that First Amendment protection does not apply to conduct that is not “inherently expressive.” Id. at 66. In identifying whether SB 1172 regulates conduct or speech, two of our cases guide our decision: National Association for the Advancement of Psychoanalysis v. California Board of Psychology (“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
Second, and more substantially, the amended opinion includes a discussion of Holder v. Humanitarian Law Project upon which the dissenting opinion relied, as well as expanding the reliance on Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”):
Plaintiffs contend that Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), supports their position. It does not.
As we have explained, SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship. The statute does not restrain Plaintiffs from imparting information or disseminating opinions; the regulated activities are therapeutic, not symbolic. And an act that “symbolizes nothing,” even if employing language, is not “an act of communication” that transforms conduct into First Amendment speech. Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2350 (2011). Indeed, it is well recognized that a state enjoys considerable latitude to regulate the conduct of its licensed health care professionals in administering treatment. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (“Under our precedents it is clear the State has a significant role to play in regulating the medical profession.”).
In sharp contrast, Humanitarian Law Project pertains to a different issue entirely: the regulation of (1) political speech (2) by ordinary citizens. The plaintiffs there sought to communicate information about international law and advocacy to a designated terrorist organization. The federal statute at issue barred them from doing so, because it considered the plaintiffs’ expression to be material support to terrorists. As the Supreme Court held, the material support statute triggered rigorous First Amendment review because, even if that statute “generally functions as a regulation of conduct . . . as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” Humanitarian Law Project, 130 S. Ct. at 2724 (second emphasis added).6 Again, SB 1172 does not prohibit Plaintiffs from “communicating a message.” Id. It is a state regulation governing the conduct of state-licensed professionals, and it does not pertain to communication in the public sphere. Plaintiffs may express their views to anyone, including minor patients and their parents, about any subject, including SOCE, insofar as SB 1172 is concerned. The only thing that a licensed professional cannot do is avoid professional discipline for practicing SOCE on a minor patient.
This case is more akin to FAIR II. There, the Supreme Court emphasized that it “extended First Amendment protection only to conduct that is inherently expressive.” 547 U.S. at 66 (emphasis added). The Court upheld the Solomon Amendment, which conditioned federal funding for institutions of higher education on their offering military recruiters the same access to campus and students that they provided to nonmilitary recruiters. The Court held that the statute did not implicate First Amendment scrutiny, even as applied to law schools seeking to express disagreement with military policy by limiting military recruiters’ access, reasoning that the law schools’ “actions were expressive only because the law schools accompanied their conduct with speech explaining it.” Id. at 51, 66. Like the conduct at issue in FAIR II, the administration of psychotherapy is not “inherently expressive.” Nor does SB 1172 prohibit any speech, either in favor of or in opposition to SOCE, that might accompany mental health treatment. Because SB 1172 regulates a professional practice that is not inherently expressive, it does not implicate the First Amendment.
It's fair to say that these passages - - - incorporating United States Supreme Court cases - - - are intended to communicate to the Supreme Court Justices why the Ninth Circuit panel opinion does not merit review.
A split in the circuits does not seem likely. A New Jersey federal judge upheld the similar New Jersey statute prohibiting sexual conversion therapy under similar rationale.
Thursday, January 30, 2014
RFRA, the Religious Freedom Restoration Act, is at the center of the upcoming and increasingly contentious cases of Conestoga Wood Specialties Corporation v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc. to be heard by the Court on March 25, involving religious-based challenges to the contraception “mandate” of the Affordable Care Act by corporations and corporate shareholder/owners. RFRA, 42 USC § 2000bb–1, provides that
(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and(2) is the least restrictive means of furthering that compelling governmental interest.
Passed by Congress in 1993, RFRA's purpose was to change the Court's interpretations of the First Amendment. RFRA's findings explicitly state that :
(4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.
The United States Supreme Court found that RFRA was unconstitutional as exceeding Congressional power under the enforcement clause of the Fourteenth Amendment in City of Bourne v. Flores. Thus, RFRA cannot constitutionally be applied to state laws.
So the short answer to the question "Is RFRA unconstitutional" is "yes," with a "but" quickly added. But RFRA still applies to the federal government. Or so we assume?
That underlying assumption is questioned by an amicus brief filed in Hobby Lobby on behalf of Freedom from Religion Foundation, et. al., by ConLawProf Marci Hamilton. Hamilton - - - who argued for the City of Bourne in Bourne v. Flores - - - argues that RFRA is similarly unconstitutional as applied to the federal government. The brief argues that the "plain language" of the statute
establishes that Congress was aggrandizing its power by taking over this Court’s power to interpret the Constitution. On its face, therefore, RFRA is not an ordinary statute, and is in violation of the separation of powers and Art. V. Moreover, the only class of beneficiaries for these extreme rights against constitutional laws is religious, which violates the Establishment Clause. No matter how much one pretends that RFRA is “just a statute,” it is in fact an unconstitutional enactment.
Lyle Denniston of SCOTUSBlog, writing over at Constitution Daily, notes that the argument that RFRA is unconstitutional
has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it. The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.
Given that the opposing parties have not raised the issue of RFRA's constitutionality, and seem to agree on that aspect of the case (if on little else), the Court might take it upon itself to solicit another amicus brief on this issue, similar to the manner in which the Court appointed ConLawProf Vicki Jackson to argue that BLAG had no standing in Windsor v. United States. That may seem highly unlikely, but stranger things have happened.
Thursday, January 23, 2014
Last Term, the United States Supreme Court's First Amendment docket was decidedly light. This Term, there are many First Amendment (and quasi-First Amendment) issues before the Court.
Recall last Term's First Amendment case - - - Agency for International Development v. Alliance for Open Society - - - the "prostitution pledge" case - - - which we discussed here. The relatively brief 15 page majority opinion authored by Chief Justice Roberts over a dissent by Justice Scalia (joined by Thomas). The opinion resolved a split in the circuits and added a doctrinal clarification (or perhaps merely a wrinkle) to compelled speech/ unconstitutional conditions doctrine, but cannot fairly be called a landmark case.
This Term, there is a bounty of First Amendment cases before the Court.
In alphabetical order, they include:
- Conestoga Wood Specialties Corporation v. Sebelius & Sebelius v. Hobby Lobby Stores, Inc. Perhaps the most contentious cases this Term are these religious-based challenges to the contraception “mandate” of the Affordable Care Act. The cases (and similar cases pending throughout the federal courts) involve the Religious Freedom Restoration Act, which is intertwined with First Amendment Free Exercise principles and doctrine. Our discussion of the grant of certiorari is here, with links to the circuit court opinions; and a survey of recent commentaries is here. Oral argument is scheduled for March 25.
- Harris v. Quinn
The well-established rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities) is the subject of this First Amendment challenge in the employment context of home health care providers. Our extensive coverage of the issues is here. Oral arguments were held January 21 and our analysis is here.
- Lane v. Franks
The Eleventh Circuit summarily applied Garcetti v. Ceballos in this First Amendment challenge to an alleged retaliatory termination of a public employee for revealing misconduct and testifying at the criminal trials of a former state senator. Our discussion of the grant of certiorari January 17 is here.
- McCullen v. Coakley
This is a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics. The First Circuit had rejected both the facial and as-applied challenges. Oral arguments were held January 15 and our analysis is here.
- McCutcheon v. Federal Election Commission
This campaign finance case is a First Amendment challenge to the aggregate limits under the Bipartisan Campaign Reform Act, or BCRA, which cap the total amount that a contributor can give to candidates, political parties, and political committees. Oral arguments were held October 8, 2013 and our analysis is here.
- Susan B Anthony List v. Driehaus
This case is a challenge to an Ohio election law prohibiting false statements. As we explained when the Court granted certiorari earlier in January, the case involves both the First Amendment and Article III, with the Sixth Circuit having determined that the case was not ripe and thus not reaching the First Amendment challenge.
- Town of Greece v. Galloway This case is an Establishment Clause challenge to New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian. The Second Circuit had held that the town council's practice "impermissibly affiliated the town with a single creed, Christianity." The Solicitor General filed a brief supporting the town. Oral arguments were held in early November and our analysis is here.
- United States v. Apel
Whether or not the First Amendment is relevant in this case involving a protest outside military installation is part of the issue. The Ninth Circuit did not reach the First Amendment issue, but decided the case on the particularities of statutory interpretation and the property in question, reversing the defendant's conviction. At the oral argument in early December, ConLawProf Erwin Chemerinsky, arguing for Apel, consistently raised the First Amendment and was consistently rebuffed, as we discussed here.
- Wood v. Moss
Whether or not the First Amendment is relevant in this case (as in Apel, above) is also an issue. The central arguments involve qualified immunity, but questions of viewpoint discrimination arise given that there were different "protest zones" for pro-Bush and anti-Bush demonstrators. Oral argument is scheduled for March 26, 2014.
ConLawProfs teaching First Amendment this semester have much that could be incorporated in their courses regarding this Court's Term. And First Amendment watchers, scholars, and practitioners may see some important changes.
Sunday, January 19, 2014
The United States Supreme Court has granted certiorari in Lane v. Franks, a case involving a public employee's First Amendment rights in the context of retaliation and raising questions about the interpretation of Garcetti v. Ceballos.
The Eleventh Circuit affirmed a summary judgment in favor of the employer, Central Alabama Community College in a brief opinion on its summary calendar, without oral argument, and designated the opinion "do not publish." But the Eleventh Circuit opinion nevertheless provides some very compelling facts.
Edward Lane was a probationary employee of the community college's program for at-risk youth, CITY. When he assumed his duties, he found that then-state representative Suzanne Schmitz was listed on CITY's payroll but was not reporting for work and had not otherwise performed tangible work for the program. He was warned by the college officials not to terminate the state representative, but he did so anyway. She filed a lawsuit challenging her termination, but more importantly, she was also being investigated by the FBI for fraud. Lane testified before a federal grand jury and -- pursuant to a subpoena -- testified at Schmitz's subsequent federal criminal trials in 2008 and 2009 for mail fraud and fraud involving a program receiving federal funds.
As an aside, a different Eleventh Circuit panel in 2011 reversed Schmitz's convictions for fraud regarding receiving federal funds because of prosecutorial misconduct, but affirmed her convictions for mail fraud. She is no longer in prison.
Meanwhile, Edward Lane, like all 29 probationary employees of CITY, was laid off in 2009 due to "budget cuts." However, Franks, as college president, then rescinded all the layoffs except two, including Lane.
Lane sued alleging a First Amendment violation. The district judge determined that Lane's speech was made pursuant to his official duties as CITY's Director, not as a citizen on a matter of public concern. The Eleventh Circuit had no trouble stating it reached the same conclusion.
Although the Eleventh Circuit was seemingly not troubled, interpretations of Garcetti have caused some consternation in the circuits. Recall the arguable circuit split between Bowie v. Maddox, from the DC Circuit (foreclosing the employee's claim) and Jackler v. Byrne, in the Second Circuit, allowing the employee's claim. The Court denied certiorari to these cases two years ago.
Stephen Bergstein, over at "Wait A Second!" has an excellent discussion of the legal landscape, including other cases that stress the employee's right to testify at trial, and the importance of the Court's grant of certiorari.
Certainly Lane v. Franks raises vexing issues of the First Amendment rights of employees after Garcetti and possible First Amendment protections for "whistleblowers." It is difficult to believe that misconduct by a state representative is not a "matter of public concern" although Lane obviously came by his knowledge in the course of his employment.
Wednesday, January 15, 2014
The United States Supreme Court heard oral arguments today in McCullen v. Coakley regarding a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics. Recall that the First Circuit had rejected both a facial and as-applied challenge to the statute. While the statute is a "time, place, manner" statute similar to others that had been upheld, throughout the arguments it often seemed as if the statute was being more than strictly scrutinzed.
The oral arguments evidenced several definitional disagreements. A pronounced dispute was the characterization of the actors and actions covered by the statute. Throughout his argument on behalf of the petitioners, Mark Rienzi described the activity as "peaceful, consensual conversations" and as "counseling." When Jennifer Grace Miller, representing the state of Massachusetts opened her argument by characterizing the activities of the petitioners as "protest" or abortion, Justice Scalia quickly interrupted, accusing her of distortion. Instead, he insisted, the petitioners "want to talk to the women who are about to get abortions and try to talk them out of it." For Scalia, the case is a "counseling case, not a - - - not a protest case." Later in the argument, he came back to the point:
I -- I object to you calling these people protestors, which you've been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors?
This definitional disagreement arose a number of times, implicating the issue of whether the state had other, less restrictive, means to accomplish its goals. Justice Kennedy asked Ian Gershengorn, Deputy Solicitor General of the United States, supporting the state of Massachusetts, how many federal prosecutions there had been in Massachusetts, to which Gershengorn replied that the federal FACE Act is a "very different statute" aimed at "murder, arson, and chaining to doorways." Such definitional issues also implicated the activity being regulated by the statute as speech based on content or even viewpoint.
Importantly, the state action before the Court is a statute rather than an injunction, a point made apparent several times. The record before the Massachusetts legislature as well as analogies to other types of buffer zones - - - Justice Alito seemed especially preoccupied with labor - - - was an important focus. Justice Kagan raised protests around slaughterhouses by animal rights activists, noting to Mark Rienzi that it was raised in his brief for Petitioners, and saying that while he might have meant it to be "terrible," her reaction was that it might be sensible: "Just have everybody take a step back."
But how far back? The question of "why 35?" was explicitly asked by Justice Kagan of Jennifer Miller arguing for the state. Comparisons to the courtrrom space littered the arguments. Justice Ginsburg translated the distance into time, asking Mark Reinzi how long is one in the buffer zone. He replied, about "7 to 10 seconds":
JUSTICE GINSBURG: There's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds.
MR. RIENZI: I respectfully disagree on that last point, Your Honor. The evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on the Petitioners' ability to reach their audience. So if someone happens to be walking from the same side of the zone that you're standing on, you may have a shot.
Not surprisingly, Justice Thomas maintained his usual practice of foregoing verbalizing questions. More surprisingly, perhaps, Chief Justice Roberts did not ask any questions. His final "Thank you, counsel," provided no clues to his future deliberations on the case.
Friday, January 10, 2014
Supreme Court Grants Certiorari in Susan B Anthony Fund v. Driehaus on Ohio's Prohibition of False Election Statements
The United States Supreme Court granted certiorari today in Susan B Anthony Fund v. Driehaus raising an issue of ripeness with the First Amendment issue in the background.
The background of the case involves "Obamacare," the pro-life/anti-choice Susan B Anthony (SBA) Fund, Congressperson Steve Driehaus (pictured) and Ohio statutes that prohibit false statements in campaigns.
As the Sixth Circuit, explained, during the 2010 campaign, the SBA List wanted to put up a billboard in then-Congressman Driehaus's district criticizing his vote in favor of the Act. The planned billboard read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it.
On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement statute. The first states that "[n]o person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials . . . shall knowingly and with intent to affect the outcome of such campaign . . . [m]ake a false statement concerning the voting record of a candidate or public official." Ohio Rev. Code § 3517.21(B)(9). The second section prohibits posting, publishing, circulating, distributing, or otherwise disseminating "a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate." Id . § 3517.21(B)(10).
The Sixth Circuit held that the claim was not ripe, reasoning that it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review." There was no hardship to SBA because its speech was not chilled, according to the Sixth Circuit: the only speech involved was the billboard and SBA List's president appeared on television and promised to "double down" to make sure its message flooded the congressperson's district.
Thus, the Sixth Circuit did not reach the First Amendment issue regarding Ohio's prohibition of false speech. On this issue, the Court's opinion holding unconstitutional the criminalization of false statements in the federal "Stolen Valor" Act in its 2012 opinion in United States v. Alvarez is sure to assume center stage. The Court will decide if there should be another chance to consider whether falsity should be categorically excluded from First Amendment protections of speech.
Monday, January 6, 2014
Here's the entire text:
The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.
Note that Justice Sotomayor as the Circuit Justice referred the decision to the full Court, an expected but not necessarily routine process.
The Tenth Circuit itself had denied the properly filed emergency motion for stay, concluding it was not warranted and specifically noting that of the four factors governing a stay pending appeal, two - - - the likelihood of success on appeal and the threat of irreparable harm if the stay is not granted - - - are "most critical, and they require more than a mere possibility of success and irreparable harm, respectively."
The Tenth Circuit also directed expedited review.
The United States Supreme Court's stay thus halts the entering into of same-sex marriages which have been proceeding since the District Judge's order on December 20, but has no effect on the legality of the same-sex marriages entered into during that period.
Thursday, January 2, 2014
Federal District Judge Upholds Most of New York's SAFE Act Against Second Amendment Challenge, Striking Some Provisions
In an opinion rendered on December 31, Judge William M. Skretny declared several provisions unconstitutional but upheld most of New York's SAFE Act in New York State Rifle and Pistol Association v. Cumo.
Judge Skretny, Chief Judge of the United States District Court for the Western District, sitting in Buffalo, applied intermediate scrutiny under the Second Amendment, drawing on the "post- Heller rulings that have begun to settle the vast terra incognita left by the Supreme Court." He concluded that the SAFE Act's definition and regulation of assault weapons and its ban on large-capacity magazines further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights. However, he concluded that the seven-round limit did not satisfy intermediate scrutiny both on the governmental interest and the means chosen.
The plaintiffs also challenged ten specific provisions of the SAFE Act as void for vagueness and thus violative of due process:
- “conspicuously protruding” pistol grip
- threaded barrel
- magazine-capacity restrictions
- five-round shotgun limit
- “can be readily restored or converted”
- the “and if” clause of N.Y. Penal Law § 265.36 g muzzle “break”
- “version” of automatic weapon
- manufactured weight
- commercial transfer
The judge found three unconstitutional - - - the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) - - - concluding that these provisions were vague and "must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited."
The opinion also rejects the dormant commerce clause challenge to the provision of the SAFE Act that effectively bans ammunition sales over the Internet and imposes a requirement that an ammunition transfer “must occur in person.” The government had argued that the challenge was not ripe given that the section does not go into effect until January 15, 2014, but Judge Skretny decided the question was one of mere "prudential" ripeness and that the claim should be decided. Applying well-established dormant commerce clause doctrine, the judge found first that the SAFE Act did not "discriminate" against out of state interests and moving to the "balancing test" under Pike v. Bruce Church, Inc. (1970), the "incidental effects on interstate commerce" were not "excessive in relation to a legitimate local public interest."
Judge Skretny's 57 page opinion is scholarly and closely reasoned with specific findings. Yet the Second Amendment issues certainly reflect the fact that there are no established standard for judicial scrutiny of the regulations of the "right to bear arms. Recall that the Fifth Circuit's use of intermediate scrutiny in NRA v. AFT (regarding a federal restriction applying to persons less than 21 years of age) and in NRA v. McCraw (regarding Texas restrictions also applying to persons less that 21 years of age) are both being considered on petitions for writs of certiorari by the United States Supreme Court. Sooner or later, some sort of analytic framework for deciding Second Amendment issues will be established by the Court. Until then, federal judges are left to navigate what Judge Skretny called the "vast terra incognita" of Second Amendment doctrine.
January 2, 2014 in Courts and Judging, Dormant Commerce Clause, Due Process (Substantive), History, Interpretation, Opinion Analysis, Ripeness, Second Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, December 30, 2013
As we discussed earlier this month, two federal district judges have reached opposite conclusions regarding the constitutionality of NSA surveillance as revealed by Edward Snowden. In Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Both of these opinions have brought renewed attention to the 1979 “pen register” case - - - Smith v. Maryland - - - which involved the application of the Fourth Amendment’s protection against “unreasonable searches and seizures” to a then new, and now outmoded, technology that could ascertain the number a phone was dialing. As footnote 1 of Smith explained, “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” It is "usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line" to which it is attached.”
In Smith, the Court looked to its “lodestar” 1967 decision in Katz v. United States (involving a telephone booth) and determined that there was no “search” under the Fourth Amendment because the person invoking the constitutional protection did not have a reasonable or legitimate expectation of privacy. For the majority in Smith this lack of an expectation of privacy was based on a consumer’s understanding of telephone technology: telephone subscribers know that the telephone company receives their transmitted telephone number (that is how the call is completed) and can record that number (perhaps for a long distance charge). And even if a consumer does not subjectively understand this, any expectation of privacy that such circumstances did not occur would not be legitimate.
Now Smith v. Maryland has become a “lodestar” decision of its own. Judge Richard Leon's decision in Klayman extensively analyzed the opinion, eventually concluding that “the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.” To the contrary, Judge Pauley, granting the government's motion to dismiss in ACLU v. Clapper essentially used Smith as the opinion's guiding light.
But perhaps the choice is not as stark as whether Smith is steady in the Fourth Amendment skies. Looking at Justice Blackmun’s opinion in Smith, he illuminates the two prongs of Katz:
as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' "—whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances.5
[citations omitted]. Perhaps importantly, the passage ends with a footnote:
Situations can be imagined, of course, in which Katz' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper.
Law Prof Josh Blackman, over at his blog, has revealed the sources of this footnote - - - apparently necessary to address Justice Stevens’ concerns about a totalitarian regime that would make any expectation of privacy by individuals not reasonable or legitimate. Josh Blackman reproduces the correspondence showing that Stevens asked for the footnote and got it, eliminating his need for a separate concurrence.
Apparently, Justices Stewart, Marshall, and Brennan, who did dissent, had concerns that were not so simply assuaged.
Nevertheless, it’s interesting to deliberate footnote 5 in light of the extent to which Edward Snowden’s revelations about the extent of surveillance have been greeted as confirmatory and predictable rather than as shocking and outrageous. And perhaps footnote 5 might become as important as other constitutional footnotes as we (re)consider what the expectations of privacy in a constitutional democracy should be.
[image: time-lapsed image of Polaris, the North Star, via]
Friday, December 27, 2013
Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata
In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.
The judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.
The tone of the opinion is set by Judge Pauley's opening:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse ﬁlaments connecting al-Qaeda.
As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment. For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:
Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s ﬁnding that a person has no subjective expectation of privacy in telephony metadata. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.
For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy. The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.
The absence of any Fourth Amendment claim means that there is not a First Amendment claim. Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.
Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion. In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue. Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide." Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon. Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.
December 27, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, Opinion Analysis, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, December 23, 2013
In an opinion today in Obergefell v. Kasich, federal Judge Timothy Black (pictured) of the Southern District of Ohio issued a permanent injunction against a particular enforcement of Ohio's limitation of marriage to opposite sex couples.
Recall that in July, less than a month after the United States Supreme Court's decision in United States v. Windsor declaring DOMA unconstitutional, Judge Black enjoined Ohio's DOMA-type provisions (both statutory and in the state constitution) involving the recognition of a marriage that occurred out of state in an especially sympathetic situation involving a dying person.
In today's opinion, Judge Black - - - as he did in his previous opinion and as Judge Robert Shelby did in his opinion declaring Utah's ban on same-sex marriage unconstitutional - - - used Justice Scalia's dissent in Windsor as support:
In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether states could refuse to recognize other states’ same-sex marriages would come quickly, and that the majority’s opinion spelled defeat for any state’s refusal to recognize same-sex marriages authorized by a co-equal state. As Justice Scalia predicted: “no one should be fooled [by this decision] ... the majority arms well any challenger to a state law restricting marriage to its traditional definition ... it’s just a matter of listening and waiting for the other shoe [to drop].” Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting).
The challenge before Judge Black is an as-applied-one relating to a specific couple, a death certificate, and an out of state marriage.
On the due process challenge, Judge Black concluded that "Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process rights of the parties to those marriages because it deprives them of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process procedural protection whatsoever."
On the equal protection challenge, Judge Black used a Carolene-type analysis to conclude that sexual orientation classifications merited heightened scrutiny. However, he also decided that the Ohio marriage ban failed to satisfy even rational basis, both because animus was not a legitimate interest and because the non-animus legitimate interests asserted had no rational connection to Ohio's marriage recognition ban of same-sex couples.
Although the final injunction is limited to this particular couple and relates to the death of one of the partners, its reasoning could undoubtedly apply in a facial challenge.
Wednesday, December 4, 2013
Oral Arguments in United States v. Apel: The Military Facility Protest Case as Raising First Amendment Issues
The Court heard oral arguments today in United States v. Apel, an application and First Amendment challenge to 18 U.S.C. § 1382 regarding trespassing on a military base, in light of a pre-existing order barring Apel from Vandenberg Air Force Base in California. There is a dispute whether the property in question is actually part of the military base and the Ninth Circuit reversed the conviction against Apel, as we discussed in our preview here.
Assistant Solicitor General Benjamin Horwich began by arguing that the statute clearly makes it a crime for a person to "reenter a military base after having been ordered not to do so by the commanding officer" and that the Ninth Circuit erred by adding a requirement that the defendant "must be found in a place that, as a matter of real property law, is within the exclusive possession of the United States." Justice Ginsburg quickly noted that the Air Force manual and a JAG opinion had added those criteria, but Horwich argued those sources were advisory rather than binding. The entirety of Horwich's initial argument was directed towards the characteristics of the properties in question, including a discussion of easements.
Indeed, only with Erwin Chemerinsky's argument on behalf of Apel is the subject of the First Amendment broached. Chemerinsky begins his argument making the constitutional link:
This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone. For decades, every lower Federal court, and, for that matter, the United States itself, interpreted 18 United States Code Section 1382 to apply only if there's exclusive Federal possession. Any other interpretation would raise grave First Amendment issues.
While the specter of unconstitutionality to direct statutory interpretation is not rare - - - think of the use of equal protection in the oral argument in last term's Baby Veronica case for example - - - Chemerinsky struggled to direct some Justices attention to the First Amendment. When Chemerinksy echoed Justice Ginsburg's previous mention of Flower v. United States (1972), Justice Kennedy injected that Flower was a First Amendment case and then repeated this observation, telling counsel to concentrate on the statutory argument. Soon thereafter, Justice Kennedy admonished Chemerinsky ,"You're back on the First Amendment case." And then:
JUSTICE SCALIA: You keep sliding into the First Amendment issue, which is not the issue on which we granted certiorari. We're only interested in whether the statute applies.
MR. CHEMERINSKY: But, Your Honor, in interpreting the statute, it must be done so as to avoid constitutional doubts. That's why the First Amendment comes up. Also, of course, as this Court repeatedly has held, Respondent can raise any issue that was raised below to defend the judgment, which is also why the First Amendment is here.
But Your Honor -
JUSTICE SCALIA: You can raise it, but we don't have to listen to it.
Arguments continued about easements, functional possession, and exclusive possession, and a question from Justice Breyer including the fact that he had "looked at the Google maps."
But then a similar colloquy about the relevance of the First Amendment occurred:
MR. CHEMERINSKY: And this goes to Justice Kennedy's question earlier if we are talking about an easement. An easement that is created for a public road inherently has free speech rights attached to it. In fact, many lower court cases have always said an easement for a public road includes the right to use it for speech purposes. That is very different than an easement that exists for purposes of a utility.
JUSTICE SCALIA: It seems to me a First Amendment argument and not an argument that goes to the scope of Section 1382.
MR. CHEMERINSKY: No, Your Honor, because you need to interpret the statute to avoid the constitutional issues. If you interpret the statute to allow excluding speech on this public road easement in the designated protest zone, then interpreting the statute that way would raise grave First Amendment issues.
JUSTICE SCALIA: So you are saying we should read the statute to say it only applies when it doesn't violate the First Amendment. Of course we'd read it that way.
MR. CHEMERINSKY: Of course, you should read it that way.
JUSTICE SCALIA: But not because it has anything to do with the scope of authority of the government. It's what the government can do. I -- I don't know how to read that, that text, in such a way that it will avoid all First Amendment problems. There is no way to do that.
MR. CHEMERINSKY: I disagree, Your Honor. I think that the reason that every lower court and the United States government itself have read "military installation" as exclusive possession is that otherwise it would raise First Amendment problems.
It was on Horwich's rebuttal that the fact that there is a designated protest area, from which Apel's ban is at issue, became clarified. Justice Kagan asked Horwich to explain the "history of this First Amendment area," to which he replied that it was pursuant to litigation settlement, although he was unable to answer Kagan's follow up question about the type of litigation.
On the whole, it's doubtful that the Court will render an opinion in Apel destined for First Amendment treatises or casebooks. On the other hand, any opinion will surely be written in the shadow of First Amendment doctrine and theory.
Monday, December 2, 2013
Protesting near a military facility such as the Vanderberg Air Force Base in California can be fraught, but contours of the First Amendment as well as the actual property are before the United States Supreme Court in United States v. Apel, to be argued December 4.
The Ninth Circuit per curium opinion subject to the certiorari grant is very brief and does not address the constitutional issue:
Appellant John Apel, who was subject to a pre-existing order barring him from Vandenberg Air Force Base, was convicted of three counts of trespassing on the base in violation of 18 U.S.C. § 1382. After his convictions became final in district court, we decided United States v. Parker, 651 F.3d 1180 (9th Cir. 2011). Parker held that because a stretch of highway running through Vandenberg AFB is subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," the federal government lacks the exclusive right of possession of the area on which the trespass allegedly occurred; therefore, a conviction under 18 U.S.C. § 1382 cannot stand, regardless of an order barring a defendant from the base. 651 F.3d at 1184.
However, the Ninth Circuit does specifically "question the correctness of Parker," the case upon which it is relying. In Parker, the defendant also raised First Amendment issues, but the panel decided the case on the powers of jurisdiction over the relevant strip of land.
Complicating matters is that the site where Apel was arrested is the fact that not only was Apel on a road that was under concurrent jurisdiction of federal, state, and county governments, but, according to his brief, was also in the area "set aside" for public protests.
Apel has been protesting near the Vanderburg Air Force for 14 years. Here's some great reporting on the background of the case from Scott Fina at the Santa Barbara Independent.
Sunday, December 1, 2013
While the Guy Fawkes mask is identified with the Occupy movement and with "Anonymous," it has reportedly been adopted by at least one protestor against health care reform - a Florida protestor who was also a police officer carrying a hand gun.
As we've previously discussed, First Amendment challenges to the criminalization of wearing a mask have not been very successful, but there are definitely valid constitutional arguments.
For ConLaw Profs drafting exam questions, this could be an interesting issue, especially if it were integrated into the other challenges to the PPACA, such as the recent grant of certiorari in Hobby Lobby and Conestoga Wood, including Judge Rovner's hypotheticals.
More about the arrest and Florida statutory scheme is here.
Tuesday, November 26, 2013
As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.
In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause. The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.
The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both. First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion. Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.
For ConLaw Profs, here are some useful links: A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here; a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here, ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here, a discussion of the district judge's opinion in Hobby Lobby is here, a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.
[image: Supreme Court Justices by Donkey Hotey via]
November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 19, 2013
In a 5-4 decision in Planned Parenthood of Greater Texas v. Abbott, the United States Supreme Court has refused to vacate the Fifth Circuit's stay of the district judge's injunction against the enforcement of the abortion restriction law known as Texas HB 2, that had been the subject of the well-publicized filibuster by state senator Wendy Davis.
The Court's Order was accompanied by two opinions. In the first, a concurring opinion authored by Justice Scalia and joined by Justices Thomas and Alito, the four factors for a stay are laid out:
(1) whether the State made a strong showing that it was likely to succeed on the merits,
(2) whether the State would have been irreparably injured absent a stay,
(3) whether issuance of a stay would substantially injure other parties, and
(4) where the public interest lay.
Justice Scalia's relatively brief opinion is primarily a refutation of the dissenting opinion, arguing that the
dissent would vacate the Court of Appeals’ stay without expressly rejecting that court’s analysis of any of the governing factors. And it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably un- constitutional. Reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case. But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards— which do not include a special “status quo” standard for laws affecting abortion.
The dissent, written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan, argued that the Fifth Circuit's issuance of the stay was "demonstrably wrong" in its application of the standards for issuing a stay based on six reasons:
- the district judge's order maintained the status quo that existed in Texas prior to the hospital admitting privileges requirement;
- the Fifth Circuit's stay disrupted that status quo, so that a "significant number of women seeking abortions" will be affected and that the "longer a given facility remains closed, the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional;"
- the Fifth Circuit agreed to expedite its consideration, again favoring the status quo;
- the balance of harms tilts in favor of the applicants;
- the "underlying legal question—whether the new Texas statute is constitutional—is a difficult question" that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit's ultimate decision;" and
- there was not a significant public interest consideration.
Given the four Justices who joined the dissent, it is clear that the decision not to vacate the stay was 5-4, although Justice Kennedy and Chief Justice Roberts did not join Justice Scalia's concurring opinion.
The restrictive abortion statute passed by Texas has been deeply divisive and the Court's decision demonstrates that the members of the Court are likewise deeply divided.
Tuesday, November 12, 2013
The United States Supreme Court routinely rejects petitions for writs of certiorari, so today's denial in Pruitt v. Nova Health Systems is not especially noteworthy. Nevertheless, given the Oklahoma Supreme Court's decision in 2012, which we discussed here, holding that Oklahoma's abortion law requiring an ultrasound was unconstitutional because of Planned Parenthood v. Casey, 505 U.S. 833 (1992), does seem meaningful.
Its meaning is compounded by the Court's dismissal of the writ as improvidentally granted in Pruitt's companion case, Cline v. Oklahoma Coalition for Reproductive Justice, in which the Court certified a question to the Oklahoma Supreme Court regarding the interpretation of the abortion statute.
Thus, it seems as if the Court presently has no inclination to reconsider Casey.
Wednesday, November 6, 2013
Oral Arguments in Town of Greece v Galloway: Can the Town Council Ask Those Attending to Bow Their Heads and Pray?
The Court today heard oral arguments in Town of Greece v. Galloway regarding a New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian.
unanimous panel opinion of the Second Circuit held that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and violated the First Amendment's Establishment Clause. The case has attracted much attention - - - a great PBS video is here - - - and in a move that surprised some, the Obama Administration filed a brief in support of the town.
Doctrinally, the arguments centered on an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer. The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer. Among the many references to Marsh in the argument and its reliance on history is this one with (ConLawProf) Douglas Laycock, representing the challengers to the prayer, after some laughter:
JUSTICE KENNEDY: I mean, I'm serious about this. This involves government very heavily in religion.
MR. LAYCOCK: Well, government became very heavily involved in religion when we decided there could be prayers to open legislative sessions. Marsh is the source of government involvement in religion. And now the question is how to manage the problems that arise from that.
JUSTICE ALITO: Well, Marsh is not the source of government involvement religion in this respect. The First Congress is the source.
MR. LAYCOCK: Fair enough. The tradition to which Marsh points.
JUSTICE ALITO: The First Congress that also adopted the First Amendment.
Yet another possible distinction from Marsh is the Town of Greece town council is a "hybrid" body which has administrative function and persons appearing before it who are seeking specific relief, as well as being local. Justice Ginsburg complimented the Deputy Solicitor General, who argued as amicus curiae, supporting the Town of Greece, for being "quite candid" about this quality and stating that it would be proper to have "certain checks" in that setting. But the nature of those checks preoccupied the arguments. Does it matter how far the prayer and the "hearing" are separated in time? Should there be guidelines for those giving the prayers - - - and how much does this involve (entangle) the government in religious matters? Does it matter if the attendees are asked to show their hands if they personally feel in need of prayer? (To which Justice Scalia interjected, "That's not a prayer.") Additionally, there was little satisfaction with either the coercion or endorsement tests, and the (in)famous Lemon test made no appearance at all.
For some Justices, prayer as practiced in the Town of Greece council meetings seemed deeply troubling. For example, Justice Kagan quickly interrupted Thomas Hungar, arguing on behalf of the town:
JUSTICE KAGAN: Mr. Hungar, I'm wondering what you would think of the following: Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side. The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case.
During his rebuttal argument, Mr. Hungar's attempt to demonstrate the town was not sectarian in its prayer was less than successful for Justice Sotomayor:
MR. HUNGAR: Thank you, Mr. Chief Justice.
First I would like to correct one factual misimpression, the assertion that only non-Christian prayer-givers delivered the prayer after 2008. It's not in the record, but the official web site of the Town of Greece shows that at least four non-Christian prayer-givers delivered prayers thereafter in 2009, '10, '11 and '13.
JUSTICE SOTOMAYOR: Counsel.
MR. HUNGAR: I'm sorry?
JUSTICE SOTOMAYOR: One a year.
MR. HUNGAR: I'm sorry, Your Honor?
JUSTICE SOTOMAYOR: Four additional people after the suit was filed.
MR. HUNGAR: Yes, Your Honor.
JUSTICE SOTOMAYOR: One a year.
MR. HUNGAR: Approximately.
JUSTICE SOTOMAYOR: How often does the legislature meet?
HUNGAR: Once a month.
And on the sectarian line . . . . .
Tuesday, November 5, 2013
The oral arguments in Bond v. United States today evoked both the use of chemical weapons in the ongoing conflict in Syria and the understandings of the farmers of the Constitution regarding the power given to the Executive, with "Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The treaty at issue is the Chemical Weapons Convention, but also at issue is the Chemical Weapons Implementation Act.
Carol Anne Bond was convicted of a crime in violation of the Act, 18 U.S.C. § 229(a). But the fact that she is not a "terrorist," but rather a venegful woman in a love triangle, has caused much consternation. While the international arms-control agreement 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.
It's not the first time that Carol Anne Bond has been before the United States Supreme Court. Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit.
On remand, the Third Circuit rejected Bond's argument to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress‟s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution." Bond argued that "legal trends since the Supreme Court‟s 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation." The Third Circuit found that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention." The Supreme Court (again) granted the petition for certiorari.
In a nutshell, Bond's prosecution under a federal law for what seems a state (local) crime raises issues of federalism not unlike the issues the Court has confronted regarding the power of Congress to criminalize guns in school zones (Lopez) or marijuana (Raich). But the invocation of these cases at the beginning of Paul Clement's argument on behalf of Carol Anne Bond brought a clarification from Justice Scalia that the Court did not take the case to decide any Commerce Clause question. Instead, the focus must be on the Treaty power and whether a treaty can alter constitutional structures, namely federalism.
Later, Justice Alito returned to these cases as well as Section 5 (of the Fourteenth Amendment) to pose a question to the Solicitor General about the Treaty power as circumventing the Court's limitations, and interestingly demonstrating a familiarity with scholarly articles:
JUSTICE ALITO: Whenever -- when this Court has issued decisions in recent years holding that there are some limits on Congress's power, cases like Lopez and Morrison and City of Boerne, there have been legal commentators who have written articles saying that could be circumvented to -- through the use of the treaty power. Do you agree with that?
The Solicitor General eventually answered that it depended on "whether the treaty is a valid exercise of the treaty power."
The limiting construction of the statute proposed by Paul Clement - - - war-like use of the chemicals as includable within federal power - - - proved problematic at times. The Solicitor General argued that this was "one of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful and warlike uses." On the other hand, the lack of a line other than valid treaty also proved problematical.
The Solicitor General often summoned originalist principles to support the primacy of a ratified treaty. Justice Kagan in her questioning of Paul Clement suggested that all properly ratified treaties must be constitutional:
Because there's clearly a treaty power that does not have subject matter limitations. And, indeed, if you go back to the founding history, it's very clear that they thought about all kinds of subject matter limitations and James Madison and others decided, quite self-consciously, not to impose them. So where would you find that limitation in the Constitution?
MR. CLEMENT: I would find that limitation in the structural provisions of the Constitution and the enumerated powers of Congress. And I would say that it would be very -
JUSTICE KAGAN: But this isn't an enumerated power. The enumerated power is the treaty power. So you have to find a constraint on the treaty power. Where does it come from?
MR. CLEMENT: Well, I think where that it would come from, again, is the structural provisions of the Constitution.
Monday, November 4, 2013
Here's a terrific exploration in video form of the decision and its impact on Pasadena, Texas, by Kali Borkoski of SCOTUSBlog.
This short clip would be an excellent in-class introduction to the issues - - - and could be updated depending on the outcome of the local election.