Constitutional Law Prof Blog

Virginia Election Lawsuit "on hold"

The Richmond Times-Dispatch at inrich.com reports that the NAACP has withdrawn its motion for a preliminary injunction that was previously discussed on ConLawProfBlog here.

According to the article by reporter Tyler Whitley, 

The election in Virginia will proceed as planned Tuesday without reallocating voting machines and extending polling hours.

But the NAACP, which filed suit against Gov. Timothy M. Kaine and the State Board of Elections, will monitor events on Election Day, and it will proceed with its lawsuit if long lines discourage people from voting, State Sen. Henry L. Marsh III, the attorney for the NAACP, said yesterday.

In federal district court in Richmond, the NAACP had sought an injunction to force the state to add equipment and extend the hours.

But it withdrew that motion yesterday before Judge Richard L. Williams was to consider it. "It was too difficult to get the issue resolved in time for Tuesday," Marsh said.

Stay tuned for further updates.

RR

Midnight Regulations

The Washington Post reports today that the Bush administration in its waning days is "working to enact a wide array of federal regulations, many of which would weaken government rules aimed at protecting consumers and the environment."  This notwithstanding White House Chief of Staff Josh Bolton's May 9 memo setting a June 1, 2008, deadline for proposed new regulations, "[e]xcept in extraordinary circumstances."  (Thanks to OMB Watch for the link.)  The issue is nonpartisan:  The article mentions a similar scramble--but to regulate, not deregulate--in the final days of the Clinton administration.

Here's some more material on Midnight Regulations (and good fodder for discussions on the unitary executive theory, separation of powers, and, well, plain old politics):  Commentary by OMB Watch's ED Gary Bass is here; a discussion on NPR affiliate WAMU's Diane Rehm Show is here; ABC News reports here.

SDS

FDA Staff Objected to Preemption

The House Oversight and Government Reform Committee released a report and supporting documents yesterday showing that career FDA staff objected to FDA drug labelling requirements preempting state consumer lawsuits against drug manufacturers.  (See my related post, Backdoor Preemption, here.)  The WSJ reports here; LA Times reports here.

The release comes just before the Supreme Court hears oral arguments in Wyeth v. Levine on Monday.  SCOTUSWiki collects the briefs--including an impressive array of amicus briefs--here.  (Thank you.)

The Committee posts its report and collects the documents here.  These documents illustrate the behind-the-scenes legal, political, and bureaucratic back-and-forth over preemption and other issues, offering a fascinating case study in how we get a claim of preemption via regulation in a case like this.  I recommend especially the report's Executive Summary, the Supporting Documents for Section A, and the Supporting Documents for Section E.

SDS

Colorado's "Personhood" Amendment

NPR reported yesterday that Colorado's ballot includes a measure that would amend the state constitution to define "personhood" as beginning at the moment of conception.  The ballot language is here.  (Colorado is the only one of several states where similar measures were proposed to gain enough signatures to put this on the ballot.)

If this should pass, the state constitutional amendment would raise serious federal constitutional questions, to say nothing of the many practical questions.  From NPR's report:

Jessica Berg, a professor of law and bioethics at Case Western Reserve University, says the amendment could lead to some bizarre situations--such as counting fertilized eggs in the state census and pregnant drivers using the HOV lanes.

The measure has received some surprise opposition.  The Colorado Catholic Conference opposes it, because it fears a backlash from the courts:  Courts would strike down the measure and, in the process, reaffirm current abortion laws.  Perhaps the Conference remembers the result of Colorado's last effort to curtail federal constitutional rights by state constitutional amendment: Romer v. Evans.

SDS

The State Secrets Privilege

Professor Amanda Frost (American U. WCL) and Justin Florence (O'Melveny & Myers and G-town Center on National Security and the Law) recently released an American Constitution Society Issue Brief titled Reforming the State Secrets Privilege.  The Brief traces the history of the State Secrets Privilege, argues that the Bush administration has asserted the privilege to an unprecedented degree, and offers advice on the privilege to a new administration.  (I previously linked to this Brief, among others, in a post on ACS recommendations for a new administration.)

Frost and Florence's Brief provides an excellent review of the privilege, tracing it from Reynolds, to Totten and Tenet v. Doe, and through the more recent cases (three mentioned below).  The Brief is all the better because it examines the privilege--and recommends changes--with reference to the bureaucratic and political landscapes within which the privilege operates.  The Brief and related materials discussed and linked below well supplement a standard casebook presentation of the privilege.

Frost and Florence argue that the Bush administration's practice "represents a marked change not only in the number of assertions of the privilege, but also in the degree to which it is aimed at restricting access to the courts."  They give two examples: assertion of the privilege in cases challenging extraordinary rendition; and assertion in cases challenging the NSA's warrantless wiretapping.

As to extraordinary rendition, the Second Circuit case Arar v. Ashcroft, the case of the wrongfully detained Canadian, provides good fodder for discussions of the privilege in litigation and the administration's arguments in support of the privilege.  The Center for Constitutional Rights collects the litigation documents here.  (Thank you.)  See especially the government's letter and supporting documents to the district judge asserting the privilege.  (The Arar case is headed for an en banc Second Circuit hearing in December.)  Also take a look at the plaintiff's brief here and here (pages 10-17 of the brief, not the pdf) in El-Masri v. Tenet, the Fourth Circuit extraordinary rendition case.

As to the NSA program, the Eastern District of Michigan and Sixth Circuit cases in ACLU v. NSA provide good materials on the privilege.  The ACLU collects all the litigation documents here and here.  (Thank you.)  These docs give an especially good sense of the arguments: the complaint; district Judge Taylor's ruling on the privilege and standing (see especially pages 3-15 on the privilege); the government's brief on appeal (especially pages 16-19 of the brief, not the pdf); the plaintiff's brief on appeal (especially pages 64-65 of the brief, not the pdf); and the Sixth Circuit's ruling (especially pages 3 and 6 for the privilege as it relates to plaintiffs' standing).

Congress has also gotten involved.  Bills were introduced in both the Senate and the House to regulate the use of the privilege.  These are well worth a look, along with Frost and Florence's recommendations, for examples of operational ways to regulate the use of the privilege.

For more, check out Frost's The State Secrets Privilege and Separation of Powers and Robert M. Chesney's State Secrets and the Limits of National Security Litigation.

SDS

"Lower" Federal Courts

As Con Law Professors during an election season, many of us are asked to appear on panels variously titled "What's at Stake for The Court," depending upon who wins the Presidential and other elections.  While focus on the United States Supreme Court seems inevitable, I always try to broaden the perspective to include all the federal courts.  An article today in The New York Times by Charlie Savage (available here) makes the point succinctly with regard to appellate courts:

[T] he appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year — half what it considered a generation ago.

Savage's article is entitled "Appeals Courts Pushed to Right by Bush Choices," but also includes district court judges in some of its analysis.  Savage contends:

On Oct. 6, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts - Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.  . . . .And Mr. Bush’s appointees have found allies in like-minded judges named by Mr. Bush’s father and Reagan.

The article profiles several Court of Appeals judges, including former ConLaw Prof Mike McConnell.

RR

 

(Pre)Election lawsuit - Virginia

As the Washington Post has reported, the NAACP has sued Virginia officials claiming violations of the state and federal constitutions in failing to be prepared for voting on November 4.

The complaint is here.  (Thanks blacknell.net).

Essentially, the complaint alleges that there are insufficient numbers of voting machines in districts primarily populated by racial and ethnic minorities, thus denying potential voters equal protection and due process.

As Mark Blacknell (of blacknell.net), an attorney and blogger, states:

The question, then, is whether Virginia’s done enough to prepare for 2008.  And honestly, I have no idea.  The numbers of new voter registrations in Virginia are certainly huge, and every bit of experience I’ve had indicates that actual turnout will match those numbers.  The unknown, for me, is what local registrars have done.  In Northern VA, you can hear elections officials encourage in-person absentee voting in order to avoid the crush of voters they expect.  This is something I’ve never heard from local officials before, and it  indicates to me that they’re worried about capacity to handle turnout.  Then the very same officials will turn around and say that they’ve got everything covered for election day.

It does look like there will be many equal protection and due process arguments, in courts and classrooms, as well as in the press, in the near future.

RR

D.C. District Defines "Enemy Combatant"

Judge Richard Leon of the D.C. District issued an order yesterday defining "enemy combatant" in Boumediene v. Bush, the habeas case ordered by the Supreme Court in its opinion last term of the same name.  Judge Leon drew from the DoD's 2004 definition used by the CSRTs that for these very six detainees.

From the Order:

It is our limited role to determine whether definitions crafted by either the Executive or the Legislative branch, or both, are consistent with the President's authority under the [AUMF] and his war powers under Article II of the Constitution.  And, if the definitions are consistent with the Constitution and the AUMF, we must interpret the meaning of the definition as it applies to the facts in any given case.  Because, in the end, regardless of what definition is used, it will be a mixed question of law and fact as to whether the Government has met its burden of proof.

And the definition:

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces, that are engaged in hostilities against the United States or its coalition partners.  This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Judge Leon said that this definition "was . . . in effect, blessed by Congress when, in response to the Supreme Court's Hamdan v. Rumsfeld decision, it drafted and passed the [MCA]."

Lyle Denniston at SCOTUSBlog reports that the DoD's 2004 definition was used in 550 CSRTs, and that fewer than 50 found the detainee not to be an enemy combatant.

SDS

Mo. Court Enjoins Enforcement of Halloween Sex Offender Statute

Judge Carol Jackson of the Eastern District of Missouri enjoined enforcement of two key provisions of Missouri's law regulating activities of registered sex offenders on Halloween.  (The NYT story is here; the Sex Crimes Blog rounds-up the various state Halloween sex offender restrictions here.)  This offers a timely and interesting case study of the vagueness doctrine.

The Missouri statute reads as follows:

1.  Any person required to register as a sexual offender . . . shall be required on October thirty-first of each year to:

(1)  Avoid all Halloween-related contact with children;

(2)  Remain inside his or her residence between the hours of 5 p.m. and 10:30 p.m. unless required to be elsewhere for just cause, including but not limited to, employment or medical emergencies;

(3)  Post a sign at his or her residence stating, "No candy or treats at this residence"; and

(4)  Leave all outside residential lighting off during the evening hours after 5 p.m.

Plaintiffs--John and Jane Does, who were convicted of statutory rape and who are currently caretakers of children--challenged the act as void for vagueness under the Due Process Clause of the Fourteenth Amendment (among other constitutional claims).  The complaint is here.  (Thanks to Courthouse News Service.)

Judge Jackson ruled that the plaintiffs were likely to succeed on their challenges to the first two sections, but not the last two sections, under the vagueness doctrine.  Her memo and order are here.

SDS

Challenge to Oklahoma Abortion Law

The Center for Reproductive Rights is challenging an Oklahoma Law designed to place more stringent requirements on doctors performing abortion procedures. 

Prior to the current law, Oklahoma required that all abortion patients be required to provide their "voluntary and informed" consent to the procedure.  Additionally, women were required to be notified, twenty-four hours in advance of the procedure, that an ultrasound could be made available, as well as print and internet materials detailing the development of the fetus at a particular point.

Oklahoma Senate Bill No. 1878 changes the existing law regarding ultrasounds in several ways.  First, it would require an ultrasound at least one hour prior to the abortion procedure.  Second, it would require that ultrasound to be performed by the physician who is to perform the abortion or "a certified technician."  Third, the doctor or technician must "display the ultrasound images so that the pregnant woman may view them" and explain to the patient in detail what is being shown on the ultrasound, including "the presence of cardiac activity" and "the presence of external members and organs."

What are the legal ramifications?  There are several.  First, the clinic challenging the provision states that it already performs an ultrasound on each pregnant woman for the purpose of determining the gestational age of the fetus.  The difference here is that the ultrasound would be required to be made available for viewing.  Only three other states have such a requirement at this time.  However, the New York Times quotes Elizabeth Nash, public policy associate with the Guttmacher Institute, as stating that Oklahoma law is "unique"  in its apparent intent that the pregnant woman actually view the ultrasound images. 

Second, the statute imposes the ultrasound requirement with no exceptions for rape, incest, or the health of the mother.  In fact, Governor Brad Henry (Dem.), vetoed the bill for this reason.  However, his veto was overridden by the legislature. 

Third, only doctors may perform the ultrasound under the new law.  The clinics state that normally, the nursing staff will perform this function, leaving the doctors to attend to other matters.  They state that it will be very difficult to comply with this law, unless the term "certified technician" is interpreted to include nurses.

This law is scheduled to take effect on Nov. 1.  We'll keep you posted on the developments.  In the meantime, a few teaching points:

1.  Students should note that the case is brought solely under state law, and alleges violations of the Oklahoma state consitution, but not the federal constitution.  In my experience, I have found that students frequently underestimate how relevant state constitutions are in "real life" practice settings.  This case should serve as a useful reminder of that reality.

2. If the challenge were brought under the federal constitution, how would Casey apply?  Arguably, proving a woman with more information is not such a bad thing.  Moreover, the Court's support of waiting periods and other actions giving the state the opportunity to influence women would seem to indicate that they might not have a problem with ultrasounds being offered.  However, what about requiring the woman to view the material?  The statute does say that a woman can "avert her eyes" during the prodecure, but if a woman knows beforehand that she does not want a child, is this a case of mere information, or severe overreaching?  Emily Bazelon of Slate has an interesting discussion of how a woman in such a position might feel.

3.  My initial thoughts are that the fact there is no exception for rape, incest, or health, could be problematic.  However, how would the recent decision in Gonzales v. Carhart affect this analysis?  Arguably, Gonzales attempted to distinguish Steinberg rather than overrule it, and as such does not stand for the proposition that health exceptions are no longer required.  But the question remains: Has Gonzales opened the door to laws such as Senate Bill 1878?

4.  Finally, if the clinics are truly unable to provide a doctor-performed ultrasound for each patient, would that be an undue burden?  The answer there, I think, is not as clear, as most of the cases focus on an undue burden to the patient, rather than whether regulations on doctors would make it more difficult to provide the services.  It should be noted that in the state of Oklahoma, there are only three abortion providers.  That's three for the entire state.  Should practicality enter the analysis?

NLS

The Sunday Reader: Pitts on on Crawford's Numbers

One of the biggest problems with the plaintiffs' case in last term's Crawford v. Marion County Election Board--the Indiana voter-id case--was their lack of concrete evidence.  The plaintiffs lodged a facial challenge to Indiana's voter-id requirement, but the record did not show the number of voters affected, the burdens on those affected, or anything particular about difficulties faced by indigent voters or voters with a religious objection to being photographed for a government id. 

In short, the plaintiffs purused an aggressive facial challenge, but they failed to develop a supporting record.  As a result, the Court had little trouble upholding the id requirement.

As we move towad the election, with several states enforcing voter-id laws like Indiana's law, we're witnessing a second round of litigation.  But this time successful plaintiffs will have to come better armed:  Plaintiffs who want to win will have to produce the numbers.  And on the other side, states will be well served in figuring out what those numbers mean.

Professor Michael Pitts (Indiana U. School of Law, Indianapolis) just posted a piece on ssrn that moves us in an important step in this direction.  In Empirically Assessing the Impact of Photo Identification at the Polls Through an Examination of Provisional Ballots, forthcoming in the Journal of Law and Politics, Pitts reports on his empirical research into just how many people "actually appear at a polling place on election day but . . . lack photo identification." 

Pitts tirelessly surveyed officials in Indiana's 92 counties after the 2008 primaries on these four questions:

How many total provisional ballots were cast at the primary election?

How many total provisional ballots cast at the primary election were ultimately counted?

How many provisional ballots were cast at the primary election because the prospective voter did not have a valid identification?

How many provisional ballots cast at the primary election because the prospective voter did not have a valid identification were ultimately counted?

Pitts collected the answers and compared them to written records from more than half the counties to confirm the officials' answers.

The results?   

[A]n estimated 2,770 total provisional ballots were cast with an estimated 399 (14%) of those provisional ballots being cast because the prospective voter lacked valid photo identification.  Also at the primary election, an estimated 752 (27%) of the total provisional ballots were ultimately counted while an estimated 78 (20%) of photo identification-related provisional ballots were ultimately counted.

Pitts notes that these data may well provide fodder to both sides:  Plaintiffs will argue that they show that individuals without ids were denied the vote, while the state will argue that they "prove the minimal impact photo identification has on the electorate as a whole" and, in any event, that denied voters were properly denied the vote.

He also suggests that this kind of study is just the tip of the iceberg in voter-id cases:  Much more data need to be collected before we can reasonably get our arms around the magnitude and extent of the hassles and any wrongful disenfranchisement.  This is the plaintiffs' lesson from Crawford.

Pitts's piece is an important first step in developing the data.  And like any empirical work, his piece offers a refreshing opportunity to read scholarship in a different tradition.  But the article offers much more than just numbers:  Pitts, a legal scholar, ties his empirical work to the legal issues quite well, demonstrating clearly how his empirical work has constitutional relevance. 

Pitts's article sets us (in academia) and plaintiffs (in litigation) on the right course.  I hope that we'll see more of this kind of work around voter-id laws and other voting requirements, and, on the other side, on quantifying states' actual interests in preventing voter fraud.  (The Court took this interest for granted in Crawford, despite the scant evidence of actual voter fraud produced by the state.)

Pitts's article is thoughtful, relevant, and important to the development of the academic literature and the litigation.  I highly recommend it.

SDS

Saturday Evening Review

This Saturday evening's article is Rosalie Berger Levinson, Reining In Abuses Of Executive Power Through Substantive Due Process, 60 Florida Law Review 519 (2008).

I have a definite soft spot for constitutional law scholarship that bridges the conventional divide between "rights" and "structures" - - - a divide many of us believe is more artificial than real.  So when I saw an article entitled "Reining In Abuses Of Executive Power Through Substantive Due Process," I put it on my "must read" list.   I'd like to suggest you put it on your list as well.  Executive power continues to be a "hot topic" and Levinson provides a rarely discussed perspective.

Here is the first line:

Substantive due process is one of the most confusing and most controversial areas of constitutional law.

Not original, but always a necessary reminder.  And it makes a nice quote to start class discussions of substantive due process.

Yet Levinson's argument is not so simple.  After a nod to the reasons for the confusion and controversy, Levinson links the due process clause to the Magna Carta through a quote by the former Chief Justice Rehnquist in Daniels v. Williams, 474 US 327, 331 (1986).  And then Levinson begins to sail.  For she is not about to merely rehearse the confusions and controversies of substantive due process.  She means to demonstrate its usefulness as a tool. 

Here's the "roadmap" section of the article:

This Article asserts that courts should recognize substantive due process as a meaningful limitation on arbitrary abuses of executive power and that victims of such abuse should not be relegated to the vagaries and increasing hurdles of state tort law. Part II of this Article briefly summarizes the origins and development of substantive due process as a limitation on legislative, judicial, and executive power. Part III critiques the positions adopted by federal appellate courts regarding substantive due process as a limitation on executive power. Finally, Part IV addresses separation of powers and federalism concerns, and suggests ways for government employees, arrestees and detainees, students, and landowners to use substantive due process as a meaningful restraint against misuse of executive power.

60 Fla. L. Rev. at 524.

For me, two aspects of this article stand out.   First, I am appreciative of Levinson's treatment of the so-called "lower courts" treatment of the issues.  Although I would have preferred more discussion of the circuit court cases in the text rather than the notes, the footnotes make fascinating reading.  They also provide a wonderful survey of due process argument possibilities, useful for in-class problems and other teaching materials.

Second, the combination of cases involving government employees, arrestees and detainees, students, and landowners provides ways of thinking about due process generally while exploring different doctrinal pathways.  Levinson keeps the cases distinct, yet the overlap and reverberations are obvious. 

Levinson's argument that the due process clause can be - - - and should be - - - used to curb executive power.  "There is no justification," she writes, for a restrictive construction of the substantive due process when "a plaintiff can establish that government officials have abused their power by arbitrarily depriving her of a property or liberty interest within the historically broad meaning of those terms."  Id. at 587. 

Of course, many will disagree and raise many justifications - - - which is what makes the substantive due process clause so "controversial."  But Levinson provides a compelling argument worth consideration by ConLaw Profs as well as by litigators.

The article is available on Westlaw and Lexis. 

RR

Detention of Legal Residents in U.S.

A sharply divided Fourth Circuit ruled en banc this summer in Al-Marri v. Pucciarelli that the President had authority under the AUMF to detain a foreign citizen legally residing in the U.S. as an enemy combatant, but that the government failed to provide Al-Marri sufficient process to challenge his designation as an enemy combatant (thus violating principles in Hamdi). 

This is a wonderful problem to supplement casebook materials on military detention: The several--and lengthy--opinions from Fourth Circuit judges in this novel case offer thorough discussions and competing understandings of both the canonical cases and the most recent cases in the war on terrorism.  And the parties' arguments set out the constitutional positions.  (The Brennan Center for Justice collects all the case materials here; thank you.)  For the best of the parties' arguments, check out Al-Marri's original complaint, Al-Marri's Fourth Circuit brief, the government's opposition brief, and Al-Marri's cert. petition.

For a different take, you might check out a couple amicus briefs in support of cert. filed just this week.  SCOTUSblog reports on amicus filings in the case here.  (Thank you.)  First, former Attorney General Janet Reno, former federal judges, and former U.S. Attorneys and DOJ lawyers argued that the U.S. criminal justice system is perfectly capable of dealing with those accused of plotting or engaging in terrorism.  The institutional arguments in this brief well complement the constitutional issues at the Fourth Circuit.  From the brief:

In this extraordinary case, the Fourth Circuit has held that the government has the power to arrest and imprison indefinitely anyone in the United States whom the government suspects of being a potential terrorist, without the normal procedural protections found in the criminal justice system.  Most disturbing, the Fourth Circuit's decision applies fully to United States citizens; under the Fourth Circuit's rationale, American citizens may be imprisoned indefinitely merely upon the suspicion of being linked in some way to potential terrorism.

This unprecedented expansion of Executive authority within the borders of the United States is not only at odds with more than 200 years of history, but it is wholly unnecessary.  The United States criminal justice system is well-equipped to prosecute those accused of planning or committing terrorist acts . . . .

In another amicus, con law professors argued that the Court needs to address unresolved issues of Executive authority in the war on terrorism.  This, too, complements the constitutional issues at the Fourth Circuit, and, as law prof amicus briefs often do, provides an excellent review of the constitutional issues.  From the brief:

In its few prior decisions related to the war on terrorism, the Court has not yet addressed these crucial questions of Executive authority and individual liberty, and its guidance on those issues is needed.  Such guidance is necessary both to afford the Government guideposts as to the appropriate scope of its detention authority and to provide it with the option to seek additional legislation if needed.  A decision of the Court is likewise essential for Petitioner to determine whether his indefinite detention without trial is warranted and to avoid prejudice should there ultimately be further proceedings on remand to the district court.

SDS

Election News from NYC

With all the other election news in the news, perhaps you've missed this tidbit from the Big Apple:
our city council has voted to abolish term limits to allow the current mayor, Michael Bloomberg, to run for his third term, as will a number of other city officials. 

The problem?  The voters of NYC voted for two-term limits in 1993 and 1996. 

The legal strategies?  Multiple.  According to a New York Times article, two lawsuits have already been filed and more are contemplated.  One strategy will undoubtedly concern equal protection and racial classifications - - - term limits have worked to allow more racial minorities to be elected to city positions.  There will also be strategies under the state constitution and city charter.  As the NYT article reported:

“We’re all gearing up for a herculean fight,” said Norman Siegel, a civil liberties lawyer. Last week, he and 16 other lawyers and academics met at a law firm in downtown Manhattan to brainstorm, debate and define the best legal strategy to fight the term limits change.

Not everyone agrees that the term-limits change should be challenged: a NYT editorial on Wednesday urged the city counsel to change the term-limits law that had been approved by the voters.  While those with longish memories will recall that Mayor Rudolph Giuliani unsuccessfully argued that he should be allowed to run for a third term post-September 11, 2001, it seems that the man New Yorkers call "Mayor Mike" or even "Millionaire Mayor Mike" has succeeded where Giuliani failed. 

Although the courts might change that.

RR

The Teaching Assistant

Hello fellow law teachers!  Let's see what's out there for the week of October 19 . . .

The ACLU blog has a first-hand account from Ms. Jessica Lenahan describing her experiences with domestic violence.  The relevance to your class?  Ms. Lenahan was formerly known as Jessica Gonzales, the plaintiff in Gonzales v. City of Castle Rock.  Although she lost her claim in the Supreme Court, she is now alleging that the actions of the city violated her international human rights.  This is a good story to share with your students to let them know: 1) real people are behind these cases; 2) international law can be a valuable alternative source of rights; and 3) creative lawyers should find alternatives, even when they think all paths have exhausted.

Over at the Legal Times, Robert Levy of the Cato Institute has an interesting piece entitled, "Is the Bailout Constitutional?"  Levy begins by questioning the Congressional authority for the bailout, arguing that it is beyone Congress' commerce clause powers.  I, for one, think this is problematic for two reasons.  First, the analysis overlooks the fact that the United States banking industry almost assuredly has an impact on interstate commerce.  Second, having read EESA in its entirety, it seems clear to me that the legislation is predicated upon Congress' spending powers, which are far broader than those granted by the Commerce Clause.  However, I think Levy is on surer footing when he states that even if Congress posseses the authority to act, there are serious issues of delegation raised by the statute as written.  However, given the Court's reluctance to invalidate a statute for lack of an "intelligible principle" for the past 75 years or so - up to an including Whitman - it's unlikely that the Court will agree with Levy.  However, he is absolutely correct to raise the question, especially in light of the impact that EESA will have on our economy and our day to day lives.

In Supreme Court news, USA Today ran an interesting story about Former Justice Sandra Day O'Connor's talk at a legal forum in Mexico City.  Among the highlights: 1) her reluctance to express any regret over the widely decried decision in Bush v. Gore.  She stated that independent journalists had confirmed the result through their own recounts, and she has "stopped losing sleep" over the outcome; 2) her strong defense of Planned Parenthood v. Casey and the role of stare decisis in law. According to O'Connor,  "a Supreme Court ruling should be overturned only when historical or social conditions surrounding an issue have changed — not simply because of a change in the court's makeup;" 3) her defense of the decisions from the Court in Hamdi, Hamdan, and Boudendine, which granted significant rights to persons held as enemy combatants in Guantanamo Bay. 

Over at concurring opinions, Danielle Citron has a piece about agency activity prior to a presidential transition.  While you might think that agency activity would be reduced during the lame duck portion of a presidency, Professor Citron notes that a forthcoming article by Professor Anne Joseph O'Donnell indicates that such activity increases, rather than decreases, immediately before a president's departure.

Finally, over at the Volokh Conspiracy, Johnathan Adler reports that the Sixth Circuit has announced a dormant commerce clause decision that distinguishes the Court's decision in Granholm v. Heald.   A link to the Sixth Circuit case as well as excerpts of the relevant cases can be found in Adler's article.

That's all for this week.  Happy Teaching!

NLS

A Fresh Start for a New Administration

The ACS hosted a panel discussion and released a package of proposals for a new administration to reform everything from DOJ civil rights enforcement to legal advice for the president to government secrecy.

Here are some highlights:

Janet Reno and Geoffrey M. Klineberg, What Would Jackson Do? Some Old Advice for the New Attorney General

Senator Edward M. Kennedy, Restoring the Civil Rights Division

Dawn E. Johnson, All the President's Lawyers: How to Avoid Another "Torture Opinion" Debacle

Devon Chaffee, Rehabilitating the U.S. Ban on Torture: A Call for Transparent Treatment Policy

Amanda Frost and Justin Florence, Reforming the State Secrets Privilege

Geoffrey R. Stone, On Secrecy and Transparency: Thoughts for Congress and a New Administration

David C. Vladeck, The Emerging Threat of Regulatory Preemption

These are all excellent complements to classes and casebook readings in these areas.

SDS

Kaplan and Hannapel on the Office of Special Counsel

Elaine Kaplan, former Special Counsel, and Tim Hannapel, former Deputy Special Counsel, released an ACS Issue Brief titled Reinvigorating the U.S. Office of Special Counsel: Suggestions for the Next Administration.  The Brief offers an excellent overview of the Office of Special Counsel and, as the title suggests, solid, practical recommendations for change from two veterans of the Office.

The Brief deals primarily with the history, policy, and politics of the Office--with special mention of the controversies under Scott Bloch--but it also offers something for those of us teaching appointment (and removal) power, separation of powers, and the unitary executive theory.  The authors explain:

The Office of Special Counsel is a uniquely independent Executive Branch agency.  While there are a number of boards and commissions within the Executive Branch that are composed of individuals who may not be removed by the President except for cause, we are unaware of any other agency led by a single individual (in this case, the Special Counsel) who does not serve at the pleasure of the President.  Congress mandated that the Special Counsel be appointed by the President, with Senate confirmation, to serve a five-year term, removable "by the President only for inefficiency, neglect of duty, or malfeasance in office."  Like the now-defunct "independent counsels" appointed under the Ethics in Government Act of 1978, these limitations on the President's authority were imposed by Congress because OSC's work may put it at odds with officials in high-level positions in other Executive Branch agencies.

For arguments why the Special Counsel violates separation-of-powers, see Christopher Yoo, Stephen Calabresi, and Anthony Colangelo's article, The Unitary Executive in the Modern Era, 1945-2004, espcially pages 693-94, where the authors discuss the Reagan administration's constitutional objections to the 1988 Whistleblower Protection Act.  (I highly recommend Yoo and Calabresi's relatively new book, The Unitary Executive: Presidential Power from Washington to Bush, which expands and elaborates on much in their earlier articles.  I'll review the book in a future post.)

The Special Counsel offers a wonderful case study in appointment, removal, separation of powers, and the unitary executive theory.  Kaplan and Hannapel's Brief is an especially useful complement to constitutional lessons, because it focuses on the practical, policy, and political side of the Office.

SDS

Government Drops War Crimes Charges in Military Commissions

The NYT reports today that the government has dropped war crimes charges against five detainees--including Binyam Mohamed, a former British resident accused in the dirty bomb case--and changed course in its case against six Algerian detainees--including Lakhdar Boumediene--allegedly tied to a Sarajevo embassy bomb plot.

The article, also referencing Jose Padilla's case, does a nice job setting out the government's litigation strategy in these cases to avoid judicial scrutiny of its detention, treatment, and military trial policies and procedures.  (Check out Colonel Morris's "pighead" comment, below.  Perhaps the government learned a lesson from Hamdan.)

Here are the highlights:

[In dropping the charges, Mohamed's] lawyers argued Tuesday that the government was trying to avoid having to answer his accusations [that the government tortured him]. . . .

The Pentagon's decision to dismiss the cases comes after the former prosecutor, Colonel Vandeveld, said in a military commission filing that he had ethics questions about prosecution procedures for notifying the defense about information favorable to detainees.  He called the procedures "appalling" and "incomplete and unreliable."

[Defending the government's decision] Colonel Morris said it was better to review cases "than the opposite, which is show yourself to be so pigheaded that you would stick to the way you originally charged a case" instead of reevaluating it. . . .

For several years, the Bush administration has shifted its legal approach at pivotal moments in legal confrontations over its detention policy--transferring detainees on the eve of hearings and abandoning legal arguments.

"Every time they get near a court they try and figure out a way to avoid court review or evade a decision that has come down," said Michael Ratner, the president of the Center for Constitutional Rights, which has coordinated detainees' cases.

In the Algerians' case, the government did not plan to introduce any evidence about the embassy bomb plot, according to their lawyer.  The case will be heard in district court in Washington as soon as next week.

SDS

State Constitutional Law- Election Day 2008 provisions

Election day means not only voting for candidates but voting on specific provisions.  By my count, more than 35 states have ballot measures in the upcoming election.   According to the National Conference of State Legislatures, Ballot Update, as of October 15, 2008,

a total of 152 questions have qualified for statewide ballots.  59 of these are citizen initiatives -- most of the rest were referred to the ballot by state legislatures or, in the case of Florida, the state's Taxation and Budget Reform Commission.  Three are questions automatically referred by state constitutions, asking voters if they want to hold a constitutional convention.

Most of the time, the initiative or referendum process is governed by a state's constitution.  Citizen initiatives, as the name implies, are placed on the ballot after a requisite number of signatures, and would seem to be the model of direct democracy, although certainly they have been subject to criticism.

Is there a difference - - - or should there be one - - - depending on whether the citizen initiative, or the referendum  referred to the ballot by the legislature, would result in a statute or in a constitutional amendment?

Indeed, on the ballot in November in Colorado is Referendum O, referred to the ballot by the legislature, that concerns citizen initiatives and the resulting laws.  It lowers the number of signatures required when the result would be a statute and makes it more difficult for the legislature to amend that statute.  However,it would make it more difficult to amend the state constitution by increasing the number of signatures and imposing a geographical diversity requirement for signatures.   

Recall that Colorado was the source of Amendment Two, which prohibited the state from enacting any laws or policies "whereby homosexual, lesbian, or bisexual" classifications would entitle a person to make a claim of discrimination or protected status - - - the United States Supreme Court declared this provision unconstitutional under the Fourteenth Amendment's equal protection clause in Romer v. Evans, 517 U.S. 620 (1996).   And in Colorado this year, 8 of the 10 initiatives on the ballot would seek to amend the state constitution.  They include provisions that would ban affirmative action, change the definition of 'person' in the Colorado Constitution to include any fertilized egg, embryo or fetus, and prohibit automatic union dues deductions from public employee payrolls.

Interestingly, many of the otherwise excellent sources for state ballot measures do not first categorize ballot measures by whether they would result in statute or constitutional amendment.  Instead, the process by which a measure appeared on the ballot - - - citizen initiative or legislative referendum - - - is a prominent classification.   The topic of the measure is also obviously an important feature. 

Nevertheless, there are several excellent websites that will assist a Con Law Professor in keeping track of the 152 questions on the ballot in November.  In addition to National Conference of State Legislatures, Ballot Update, The Initiative and Referendum Law Institute at the University of Southern California Ballotwatch is excellent, as is the wiki ballotpedia.   Less "objective" but with a truly stellar set of maps is Ballot Initiative - - - the interactive map has pop-ups for each state and there is a set of 11 maps for download on "key" issues with great color. 

One key issue is, as in years past, is same sex-marriage.  California's Proposition 8 would change the California Constitution to eliminate the right of same-sex marriage as found by the California Supreme Court in In Re Marriage Cases, 183 P.3d 384 (Cal. 2008), by defining marriage as limited to one man and one woman.  Florida's Amendment 2 would change the Florida Constitution to define marriage as limited to one man and one woman and also provide "no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."  Arizona's Proposition 102, sponsored by the state legislature, would amend the Arizona Constitution to provide that only a union of one man and one woman be recognized. 

For Con Law and other professors, state constitutional law issues provide not only an opportunity for hypotheticals and scholarship, but also for academic activism.   The UC-Davis website has a model page offering faculty experts on five of California's ballot propositions and the initiative process itself.  What's great about this page is that it not only "lists" faculty experts, but provides their point of view.  So for example, we learn that our colleague Diane Marie Amann who teaches ConLaw at UC-Davis does not support Proposition 4 (parental notification and waiting period for minors seeking abortions) and says "contrary to the assertions of some proponents, Proposition 4 would not help prevent sexual predation" and there "is virtually nothing in the text that aims at that goal."

Unfortunately - - - or fortunately -- - here in New York, I have little chance for academic activism on  a ballot proposal.  Our sole proposal is entitled " Civil service exams" and is described as a "Legislative amendment that makes technical change in condition allowing veterans advantage in exam."  Although perhaps I should do some more research....

RR

Update on the Uighurs

Lyle Denniston at SCOTUSblog reports that the D.C. Circuit (in a 2-1 split) granted the government's motion to stay pending appeal Judge Urbina's order to release the Uighus into the U.S.  (See my previous posts on the Uighurs under the Executive Authority tag.)  Check out Judge Roger's dissent, especially at page 2 (of the opinion, not the pdf file), which addresses the likelihood of success on the merits of the government's arguments, including the government's separation-of-powers argument--that the political branches have "plenary power over immigration"--which Judge Rogers calls "inadequate and untrue," a "misstate[ment] of the law."

Denniston also reports on the Uighurs' petition for en banc review here.

Thanks to Lyle Denniston and the team at SCOTUSblog for posting the order and petition and for staying on top of this.

SDS