Constitutional Law Prof Blog

The Sunday Reader: Pierce (on Calabresi and Yoo) on the Unitary Executive

Professor Richard Pierce, Jr. (Geo. Washington), recently posted Saving the Unitary Executive Theory From Those Who Would Distort and Abuse It: A Review of The Unitary Executive, by Steven G. Calabresi and Christopher Yoo on ssrn.  The piece is forthcoming in the Penn Journal of Constitutional Law.

I came across Pierce's review soon after I finished Calabresi and Yoo's book.  It seems odd to blog on a review--a kind of review of a review--but Pierce adds plenty to Calabresi and Yoo's work.  And as a leading admin scholar, he complements the book well, adding a needed dose of political reality to the constitutional theory.  His "review" is really more a response--and a good one.  I highly recommend Pierce's review (and, oh yes, the book).

Pierce starts by acknowledging Calabresi and Yoo's important contributions to the literature on unitary executive theory.  First, they "rescue" it from the Bush administration, which has used it "to support outlandish claims of presidential power that are unrelated to the unitary executive theory."  Calabresi and Yoo reground the unitary executive in the President's power over the executive branch.  Pierce:  "the Vesting Clause of Article II confers on the President plenary power over policy making by all Executive Branch agencies and officials."  Second, they trace the unitary executive theory across presidents from Washington to George W. Bush and argue that all forty-three presidents acted in accordance with it. 

Here's where Pierce's piece becomes more an important response and complement to the book than merely a review of it.

Pierce sets out three disagreements with Calabresi and Yoo.  First, he argues that the President does not have the power "to veto a decision made by an executive officer to whom Congress has delegated the decision."  Instead, the President's "only recourse is to remove the officer."  Pierce:

I believe instead that, when Congress has lawfully vested decision making power in an executive branch officer, e.g., the Secretary of Health and Human Services or the EPA Administrator, that executive branch officer is the only person who can make the decision.

Moreover, removal will rarely be necessary, because executive officers have good political reasons, entirely independent of the removal power, to act in accordance with the President's policy preferences.  And removal will often be unduly costly:

The difference between the power to veto and the power to remove is not subtle.  If a President could veto a decision of an executive branch officer, he undoubtedly would do so with some frequency and often at little political cost.  By contrast, removing an officer is always costly.  Frequently, the cost of removal is so high that a President reluctantly acquiesces in a decision with which he strongly disagrees in order to avoid incurring the high cost of removing the executive branch officer who made the decision.

Thus politics often obviates the need for removal; and in any event removal is limited by politics.

Second, Pierce argues that statutory "for cause" limits on the President's removal power do not infringe upon the unitary executive.  In fact, they are "not important."  Why?  As mentioned above, officers have independent political reasons to act in accordance with the President's policy preferences, thus making removal largely unnecessary.  Pierce:

[Even o]n the unusual occasion when an officer feels so strongly about a policy issue that the president is unable to persuade the officer to act in accordance with the president's policy preferences, I do not believe that the legal requirement that the president must state a cause for removing the officer has any effect at all on the president's ability to use the threat of removal as an added inducement to the officer to act in accordance with the president's policy preferences.

As for broad statutory limits on the removal of employees:  They don't matter to the President's ability to control policy, because employees don't make policy.

Finally, Pierce argues that the only constitutional problem with independent agencies is the statutory limit on the President's appointment power, not the "for cause" limit on the removal power:

The statutes that establish "independent agencies" limit the president's appointment power by providing that no more than a bare majority of the Commissioners can be members of the same political party.

Read Pierce's review along with the book; it's a healthy complement and valuable critique.

SDS

Saturday Evening Review

This week's article is by Marius Pieterse, an Associate Professor of Law at the University of Witswatersrand, Johannesburg, South Africa, published in the South Africa Journal of Human Rights.

Entitled Indirect Horizontal Application of the Right to Have Access to Health Care Services, the article provides a compelling argument about the relationship between health care and constitutional rights, a subject that has been preoccupying me since the "conversation" I moderated as announced on the ConLawProf blog here.  Professor Pieterse's argument, however, is not simply that health should be a constitutional right; the South African Constitution in section 27(1) explicitly provides the right of everyone to have access to health care services.  Instead, Pieterse is taking the next step in a constitutional law scheme that not only guarantees socio-economic rights such as "health care" but also eschews the state action doctrine, so that private parties are also responsible for ensuring "rights."  Yet despite the progressiveness of the SA Constitution, it is subject to judicial interpretation and "reality" - - - in this schema, "common law" doctrines such as medical malpractice have constitutional implications.

As Pieterse argues in his conclusion:

I believe that there is significant unexplored potential for the actualisation of socio-economic rights through their indirect horizontal application. This is so, first, because of the fairly extensive body of common law principles applicable to the doctor-patient relationship and other ‘special relationships’ from which socio-economic obligations may flow. These rules often present a detailed and context-sensitive legal  framework for the elaboration and enforcement of private socio- economic obligations and allow for the granting of effective remedies to individuals whose interests have been adversely affected by other private entities’ non-compliance with these obligations. In many instances, the current state of common law already gives effect to constitutional socio-economic guarantees in this respect, or requires only minimal developments or shifts in application in order for it to do so. Secondly, South African courts are likely to be more comfortable with the evaluative and remedial paradigms associated with common law development than with the direct application of socio-economic rights. This is because South African legal culture, like legal cultures in most liberal democracies, tends to be skeptical of direct judicial involvement in socio-economic matters but accepts the judicial development of common law rules, in accordance with prevailing societal morality, as uncontroversial. Common law therefore not only offers a wide array of potential remedies that may amount to adequate reparation for  infringements of socio-economic rights, but also provides the ideal  environment for an exploration of their horizontal dimensions.

.... the legal consequences of justiciable  socio-economic rights may extend beyond the effects of asserting concrete, positive claims against states in public law litigation. Since meaningful access to socio-economic amenities is often dependent on the assertion of and compliance with socio-economic claims within private relationships, the actualisation of justiciable socio-economic rights also requires the transformation of those aspects of private law that regulate such relationships. Moreover, since it cannot be denied that the effects of poverty and associated socio-economic deprivation transcend the public and private spheres, it is essential that the legal tools occupied with the alleviation thereof do the same.

 

The article appears at 23 South Africa Journal of Human Rights 157 (2007) and is available on the SAJHR website for issue 23:1 here.  Definitely worth reading as we think about a "right" to health care in the US.

RR

Right to Counsel in Home Foreclosures

NPR reports that legal aid programs are unable to keep up with the rising demand for legal representation in home foreclosure cases, raising questions about the right to counsel in such cases.  NPR:

Everyone accused of a crime is entitled to a lawyer, whether they can afford one or not.  But in civil cases, such as home foreclosures, there is no right to an attorney.

Is this true under the federal constitution?  As a matter of Fourteenth Amendment procedural due process, the Court ruled in 1981 in Lassiter v. Department of Social Services that civil litigants had no categorical right to counsel.  The Lassiter court held that such claims would be subject to the procedural due process balancing test in Mathews v. Eldridge, and that anything short of a personal interest in physical liberty would almost certainly fail to support a constitutional right to counsel.  These cases--and the Court's later right-to-counsel jurisprudence--suggest that NPR is right:  "in civil cases . . . there is no right to an attorney."

But a growing movement--call it the "Civil Gideon Movement"--is challenging this conclusion.  In cases where important interests like housing are at stake, civil litigants, lawyers, and institutions like the ABA are pressing for a categorical right to counsel.

And they've seen some success.  Several state constitutions now recognize a categorical right to counsel in certain civil cases (like deprivation of parental rights proceedings, where the interest in parenthood is quite high), and many states provide a right to counsel to civil litigants in certain cases by statute. 

The issue provides a nice case study in-progress in organized movements to promote constitutional and policy changes.  As is so often the case, the states provide some of the most interesting fodder. 

Here are some resources.  The National Coalition for a Civil Right to Counsel--a well organized effort that includes attorneys, advocates, and academics--has been at the forefront of the civil right to counsel effort; link to the Coalition web-site here.  The American Bar Association resolution urging a civil right to counsel is here.  The Brennan Center page on civil right to counsel is here.

SDS

Al-Marri at the Supreme Court

The Supreme Court took no action on Al-Marri v. Pucciarelli at its conference on Tuesday.  We may get more information next week.  I've posted on this here, here, and here; the NYT editorialized in favor of cert. and in favor of al-Marri.

Al-Marri, a legal U.S. resident, was detained for over five years as an enemy combatant after his initial arrest on criminal charges.  A fractured full Fourth Circuit upheld his detention.

The case raises important issues that go well beyond al-Marri.  The NYT editorial says it well:

The [Fourth Circuit] made clear that its ruling upholding the president's power to detain enemy combatants applies equally to American citizens.  If the ruling stands, presidents would be able to throw out due process, habeas corpus and other basic constitutional and statutory rights for anyone they declared to have terrorist ties.

The case also raises (yet again) the broader question why the government can't simply try folks like al-Marri in Article III courts, where he was originally charged.  The administration says that Article III courts can't provide the necessary secrecy for its confidential evidence.  But even ignoring the well tested protections for confidential evidence in Article III courts--in camera review, e.g.--the evidence that we've seen in these cases has not been particularly revealing of anything, including the detainees' guilt.  This is becoming increasingly clear in the habeas cases; see my post here.

We'll continue to cover developments in al-Marri.

SDS

Government Supports Voting Rights Act Extension

The Solicitor General filed a motion to affirm a three-judge district court's ruling that appellant Northwest Austin Municipal Utility District was ineligible to bailout of Section 5's preclearance requirements under the VRA and that Congress had authority to reauthorize Section 5.  SCOTUSblog has the motion here, analysis here; Election Law @ Moritz has all the lower court filings here.  (Thanks to both.)  The 2006 reauthorization act is here.

On the constitutional question--whether Congress had authority to reauthorize Section 5 of the VRA under the Fourteenth and Fifteenth Amendments--the SG argued that Congress had authority both because Section 5 is "proportional and congruent" to the discrimination it found (under City of Boerne v. Flores) and because Section 5 is a "rational means to effectuate the constitutional prohibition of racial discrimination in voting" (under South Carolina v. Katzenbach).  Thus the Court need not decide which standard--"proportionality and congruence" or "rational basis"--applies.  The SG:

Based on its meticulous review of the factual record, the three-judge district court correctly held that, under either Katzenbach or the City of Boerne standard, the reauthorization of Section 5 was a permissible exercise of Congress's authority under the Fifteenth Amendment and therefore is constitutional on its face.  Appellant argues that this Court should grant plenary review to clarify which of those legal standards courts should use in evaluating Congress's exercise of its Fifteenth Amendment authority.  That issue does not warrant this Court's review here, however, because the three-judge district court correctly determined that the reauthorization of Section 5 was constitutional under [either standard].

A good part of the motion argues that the legislative record fails to support the reauthorization, against appellant's claims to the contrary.  For example, appellant argues that Section 5 was originally designed to prevent "gamesmanship," whereby covered jurisdictions used changes in voting practices to evade judgments invalidating earlier practices, and that the legislative record on reauthorization failed to show that gamesmanship was a continuing problem.  But the SG argues that, while some jurisdictions engaged in gamesmanship, gamesmanship was "only one aspect of the larger failure of traditional legislative bans on discrimination in voting," and that Section 5 preclearance procedures were prompted by the "cumbersome nature of case-by-case adjudication of voting cases."  "In other words, the propensity of some States covered by Section 5 to engage in teh type of gamesmanship described was only one aspect of the larger failure of traditional legislative bans on discrimination in voting."  Moreover, the lack of gamesmanship in the legislative findings only "demonstrates that Section 5 has been doing its job."

This kind of argument--focusing on the specific material in the legislative record and holding it up against the particular provisions of the VRA reauthorization--dominates the SG brief, suggesting that the SG anticipates some scrutiny by the Court of the legislative record.  Check out pages 12 to 22 of the motion for more.

The SG also argues that the "limiting features" of the reauthorized VRA ensure its "proportionality and congruence" to the evil it seeks to address.  But these tailoring provisions have withstood judicial scrutiny in the past.  Check out pages 22 to 32 of the motion for more.

We'll keep an eye on the case for you.

SDS

Florida "homosexual" adoption ban unconstitutional - again

Circuit Judge Cindy Lederman held Florida's bar to "homosexuals" adopting children unconstitutional.  The ban, a product of Anita Bryant's "Save Our Children" Campaign in the late 1970s, has been challenged numerous times, with trial judges finding it unconstitutional, see Family Law Professor Blog here and here.

Lederman, known for her innovative work with children (NPR profile here), held that the ban did not meet the rationality standard and granted the adoptions.   The state will reportedly appeal.

Copy of opinion, In re Gill, as pdf here.   More information on the case is available on the ACLU website here, including a link to a You Tube video.

RR

D.C. Court Rejects Detainee Habeas Petition

Judge John D. Bates of the U.S. District Court for the District of Columbia yesterday rejected detainee Omar Khadr's habeas petition.  Khadr is a 22-year old Canadian held at Guantanamo Bay; he has been in U.S. custody since age 15.

Khadr was previously designated an "enemy combatant" by a Combat Status Review Tribunal.  He is scheduled for a military commission trial for war crimes in January. 

Khadr's habeas petition claimed that his military commission lacked authority to try him, because the MCA does not confer personal jurisdiction to try minors.  Moreover, he claimed his detention as an enemy combatant was illegal, because under U.S. law and the law of war a minor cannot be a "member," "affiliate," or "associate" of a group like al Qaeda.  Finally Khadr argued that even if he can be detained he must be transfered to a rehabilitation facility, because he was a child soldier when captured.

Judge Bates rejected the petition for two reasons.  On the first two claims, Judge Bates ruled that Councilman required abstention, see Schlesinger v. Councilman at 758 (holding "that federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted"), and that Khadr did not satisfy the status-based exception to Councilman abstention, because his claims were statutory, not constitutional.  See Councilman at 759 (holding that the pre-Councilman cases giving rise to the exception "concerned not only the military court's jurisdiction, but also whether Art. I Congress could allow the military to interfere with the liberty of civilians"--a constitutional claim that the military courts were ill-equipped to deal with).

Judge Bates ruled that Congress, under the MCA, stripped the courts of jurisdiction to hear Khadr's third claim--a claim based on 2241(e)(2) of the habeas statute--and distinguished Boumediene.  The Court:

Although Boumediene declared that section 2241(e) is unconstitutional, it did not specify what portion of the statute, if any, remains in effect.  Becasue section 2241(e)(1) purports to strip courts of jurisdiction to hear "an application for a writ of habeas corpus," and Boumediene held that those detained as enemy combatants are entitled to "challenge the legality of their detention" through constitutional habeas, it is clear that, at a minimum, subsection (e)(1) was invalidated. . . . 

[But claims] relating to "conditions of treatment or confinement" fall squarely within the jurisdictional bar of section 2241(e)(2), and by excluding such claims from the scope of its analysis the Supreme Court appears to have left that subsection undisturbed. . . .

Judge Bates ruled that Khadr's claim was an (e)(2) claim, not an (e)(1) claim, because Khadr sought transfer to a rehabilitation facility, not complete release:

As petitioner states clearly in his reply brief, he "has not moved for complete release, but only release from adult detention and placement in a rehabilitation or reintegration program . . . ."  Thus, to find that petitioner's challenge evades section 2241(e)(2)'s continuing jurisdictional bar, the Court must conclude that a request for a remedy that stops short of outright release is nonetheless a core habeas claim.

Judge Bates ruled that it is not and thus rejected Khadr's petition.  (Judge Bates's opinion, of course, does not prohibit Khadr from raising his claims at his commission trial and on direct appeal.)

This is now the third time that this court classified habeas petitions as (e)(2) petitions and thus rejected them, in the course reading Boumediene not to extend to them.  In the two previous cases, petitioners requested an on-base transfer and a blanket--more clearly requests that related to conditions of confinement.  Khadr's claim for placement in a rehabilitation program is different, and Judge Bates's ruling seems to push the (e)(2) category.

We'll keep you posted on developments.

SDS

Pardon Powers

Last week, we reported about the speculation regarding the persons that might be the object of an eleventh-hour presidential pardon.  The current president has, as expected, used his pardon power to show mercy on individuals convicted of crimes.  Less expected is the fact that the persons pardoned had committed fairly minor offenses and were not in any (obvious) way connected to the Beltway.  However, there are still eight weeks left in the Lame Duck presidency, so anything could happen.  There are still a number of prominent wrongdoers seeking pardons.

NLS

Second Circuit on Extraterritorial Application of Fourth Amendment Warrant Requirement

A three-judge panel of the Second Circuit upheld the district court's denial of one defendant-appellant El-Hage's motion to suppress evidence obtained overseas in the criminal case arising out of the 1998 embassy bombings in Nairobi and Dar es Salaam.  El-Hage was a naturalized U.S. citizen.  The NYT reports here. 

The panel upheld the denial of El-Hage's motion to suppress evidence collected in a search of his Nairobi home and through surveillance of his telephone lines, holding that "the Fourth Amendment's requirement of reasonableness--and not the Warrant Clause--governs extraterritorial searches of U.S. citizens" and that these searches were reasonable.

This was the Second Circuit's first crack--indeed, any circuit's first crack--at the extraterritorial application of the Fourth Amendment's warrant requirement.  (The court held that the extraterritorial application of the Fourth Amendment's reasonableness requirement was "well settled.") 

In ruling that the warrant requirement did not apply extraterritorially, the court relied heavily on U.S. v. Verdugo-Urquidez:  "[In that case], seven justice of the Supreme Court endorsed the view that U.S. courts are not empowered to issue warrants for foreign searches."

Moreover

First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search. . . .

Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own. . . .

Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation. . . .

Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches . . . .

The panel also rejected appellants' Fifth Amendment claims and other arguments in two separate rulings.  Extraterritorial application was not an issue in those rulings.

SDS

D.C. Circuit Hears Arguments in Uighur Case

A three-judge panel of the D.C. Circuit heard arguments today in the Uighur case.  The issue: Whether the lower court can order the Uighurs released from Guantanamo into the United States.  I posted on this previously here and here.  SCOTUSblog reports on today's arguments here; the Blog of the Legal Times reports here.

Much of the argument centered on Shaughnessy v. Mezei (holding that an alien at Ellis Island, on the "threshold of initial entry" into the U.S., could be excluded without a hearing based on secret evidence related to national security), suggesting that the panel may see this in terms of authority over immigration and the range of Mezei, and not in terms of inherent or statutory (AUMF) executive authority to detain.  (Arguments on these latter points worked their way into the case at earlier stages, but Judge Urbina rejected them.)

The government's brief is here; the Uighur brief is here; the Law Professor amicus brief (dealing with Mezei) is here.  (Thanks to the Center for Constitutional Rights for collecting these documents.)

SDS

The Sunday Reader: Bagenstos on the Spending Clause

Professor Sam Bagenstos (Wash. U., visiting at Michigan) recently posted Spending Clause Litigation in the Roberts Court on ssrn.  (The article will come out in the Duke Law Journal in December.)  Bagenstos--who has written several very good articles on civil rights, with a focus on disabilities--produced an excellent review, a useful typology, and a rich analysis that draws on both judicial politics and constitutional law on the Spending Clause.  I highly recommend this piece.

Bagenstos's core thesis is that the Roberts Court is likely to limit Congressional Spending Clause authority indirectly--"through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes"--and not, as some expected, directly.  Bagenstos:

To the extent that the Roberts Court has a conservative agenda, and the liberal welfare and civil-rights state continues to be built on conditional spending legislation, the Court will have a strong incentive to limit that legislation.  But the Court is not likely to do so in the way some hoped and some feared the Rehnquist Court would--by imposing direct limitations on the kinds of legislation Congress has the power to pass under the Spending Clause.  Rather, the Court is likely to act indirectly--through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes.  Those doctrines have a strong pedigree in existing law, and they are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power.

Bagenstos thus argues that "the paradigm case for the Roberts Court's restriction of the spending power is not likely to be United States v. Butler," but rather the more recent Arlington Central School District v. Murphy (holding that the IDEA, as Spending Clause legislation, could not impose obligations on states unless Congress provided "clear notice.")

To get there, Bagenstos first argues that direct limitations on the Spending Clause--the "general welfare" limitation, the "nexus" limitation, and the "coercion" limitation--have no real teeth, and that they are unlikely to limit the Spending Clause under the Roberts Court.

He next argues that indirect limits will resonate much more with a conservative Roberts Court.  Here Bagenstos distinguishes between a "strong contract theory"--"that conditions on federal spending are not 'law,' but merely contractual obligations--and "weak contract theory"--"the requirement that federal spending legislation give states clear notice of the conditions"--and argues that "the Court is nearly certain to continue to implement the weak contract theory, and there is a chance (though not a big one) that it will adopt the strong contract theory."  Bagenstos's argument here is both political and doctrinal, thus offering a rich analysis and prediction on the near future of the Spending Clause.

You can read this piece for a good predictive constitutional argument with imortant policy implications.  Or you can read this piece for its analysis of the judicial politics of the Roberts Court and the Spending Clause.  Or you can simply read it for a useful typology and excellent review of Spending Clause doctrine and scholarship.  Whatever your interest, I highly recommend it.

SDS

Clinton and Emoluments

There's some buzz in the blogosphere about whether Senator Clinton's nomination to be Secretary of State will run up against the Emoluments Clause.  (NYT reports here that Obama offered, Clinton accepted.)

The Emoluments Clause (Art. 1, sec. 6, cl. 2)--designed to prevent opportunistic and corrupt office-seeking--states:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . .

The problem here is that the Secretary of State's salary increased in January 2007, the same month Clinton began her current term.  Calvin Massey at The Faculty Lounge explains here.

Even if the Emoluments Clause poses a barrier to Clinton's appointment, there is a fix: Congress could simply lower the salary to its 2006 level.  This happened at least twice before: When Nixon nominated Senator William Saxbe to be AG; and when outgoing President George H.W. Bush approved a salary decrease to allow Senator Lloyd Bentson to serve as Treasury Secretary in the Clinton administration.  WaPo reports here.

Nareissa also posted on the issue in yesterday's Teaching Assistant.

SDS

Saturday Evening Review: The Takings Clause

This year, like last, I debated whether or not to include the Fifth Amendment's  "Takings Clause" in the Constitutional Law syllabus.  On the one hand, the cases make fascinating reading and teaching; they connect to larger issues of constitutional rights, constitutional interpretation, and the balances between legislative (and regulatory) action and judicial role.  On the other hand, the cases often rely on understandings extraneous to a constitutional law courses - property notions (e.g., ownership of airspace) or other complex arrangements ( e.g., escrow accounts maintained by lawyers and the interest such accounts earn). And this year, like last, I decided to include the takings class, although I decided to streamline the materials and cover - in one 90 minute class - both the difficult issue of regulatory takings (a bit less difficult after Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)) and the issue of public use as demonstrated by Kelo v. City of New London, Ct., 545 US 469 (2005).

If you likewise debate whether or not to cover the takings clause, this week's scholarly review is worth considering.  Jeffrey Gaba, in his article, Taking Justice and Fairness Seriously: Distributive Justice and the Takings Clause, 40 Creighton L. Rev. 569 (2007), provides one of the more compelling arguments for including the takings clause in any constitutional law course. 

This is not to say Professor Gaba's explicit task is urging  constitutional law professors to include the subject in our courses - - - Gaba teaches Environmental Law at SMU Dedman School of Law and doesn't mention course coverage.  Rather,  Gaba  is arguing that the philosophical issue of distributive justice (of interest, Gaba states, to "philosophers from Aristotle to Star Trek's Mr. Spock"), is converted into an issue of constitutional law by the Court's taking clause jurisprudence.   

As he states in the conclusion:

For good or ill, the concept of the Takings Clause as a principle of distributive justice arises from the Supreme Court's own statements. The Supreme Court has made and repeated the claim that the Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
At a minimum, the Court should be aware of the consequences that follow from such a view.
Viewed through the lens of distributive justice, takings analysis gains a sharper focus on those factors that are relevant to assessing the “fairness” of imposing costs on the few to benefit the many. The logical implication of this view is a takings test which is no more clear or certain in application than the current muddle. Additionally it expressly requires the courts to engage in social and philosophical judgments that many would say are beyond their competence (used both in the sense of judges' institutional role and their intelligence). Perhaps most significantly, it suggests a limited role for the judiciary in policing the social judgments of legislators and could confine the Takings Clause, along with the Due Process Clause, to a limited role.

Id. at 593-4 (footnotes omitted).

Gaba's article is brief, but has a very good overview of the theories of distributive justice - - - thankfully rather quickly replacing Star Trek's Mr. Spock with Nobel Laureate Amartya Sen.   For the most part, he seems to assume a reader's familiarity with takings clause doctrine, using it facilely to demonstrate his theoretical points.   He does, however, provide what he calls the "two dirty little secrets" of the Takings Clause:

First, there is virtually no historical evidence on the intent that lay behind the adoption of the Taking Clause in the Fifth Amendment. Second, it was not until 1922 that the Supreme Court, in what was an extraordinary act of judicial activism, claimed that the Takings Clause acted to limit government regulatory authority.

Id. at 571.

Gaba's piece does not include a discussion of Kelo and "public use," but his observations about regulatory takings jurisprudence are easily extended.   Highly readable and insightful, I'm putting this article in my course notebook to remind me why the takings clause is an important, if often difficult, unit on the constitutional law syllabus.

RR

Fourth Circuit Denies Jefferson's Speech or Debate Claim

The Fourth Circuit upheld the lower court's denial of Congressman William J. Jefferson's motion to dismiss a pending indictment for multiple schemes in which he allegedly received bribes in exchange for his promotion of products and services to officials in Africa.  The NYT Topics Page is here.

After the E.D. Va. grand jury returned the indictment, charging Jefferson with two counts of conspiracy and fourteen substantive offenses, Jefferson moved to dismiss, claiming that prosecutors presented testimony of his former and current staffers in violation of the Speech or Debate Clause.  U.S. Const. art. I, sec. 6, cl. 1.  The district court denied the motion, and a Fourth Circuit panel (Judges Niemeyer, King, Duncan) upheld.

The Fourth Circuit case is here.  Check out page 8 for the staffers' testimony, and pages 16 to 26 for the analysis of the Speech or Debate Clause.  And here's U.S. v. Brewster, the Court's leading case.

The court rejected Jefferson's argument that any mention of Speech or Debate material in a grand jury proceeding requires dismissal of all charges.  The court distinguished U.S. v. Swindall, the 1992 Eleventh Circuit case, because "[t]he government . . . used legislative activities to prove an element of [Swindall's] perjury offenses."  Not so here: "Jefferson has not contended that the Indictment references his legislative acts, or that a successful prosecution will require the government to prove such acts."

The court went on to quote Judge Butzner in the Fourth Circuit U.S. v. Johnson: "Bias of a grand jury may be manifested in several ways, but it has not been held to arise from the receipt of incompetent or constitutionally impermissible evidence."  Thus in Jefferson, "[b]ounded by such precedent, we are likewise not entitled to review the grand jury record in Jefferson's case--the Indictment simply does not question any legislative acts."

SDS

The Teaching Assistant

Hello fellow profs!  The semester is winding down, but it's not over yet!  And, as you will see, there is no shortage of interesting stories to report.

The Executive

First, a brief stop at Guantanamo Bay.  SCOTUSBlog reports that the case managment order that D.C. District Judge Thomas Hogan entered last week is being challenged by the Justice Department.  In other Gitmo news, another district judge ordered that five Bosnia prisoners at the prison by the Bay be released "forthwith."

Second, will the outgoing president use his Article II powers to issue pardons?  In a funny - yet informative - article - Slate lists the possible pardon subjects, their transgressions, and ranks the likelihood of each person's pardon using a scale of one to four "get out of jail free" cards.  (Scooter Libby receives four cards!)  However, Senator Russ Feingold (D-WI) argues in a Salon.com posting that even if the President has extensive pardon powers, he should not pardon anyone alledged to be involved in his administration's possible criminality.  The Senator states, "If President Bush were to pardon key individuals involved in the misdeeds of his administration, from warrantless wiretapping to torture to the firing of U.S. attorneys for political reasons, the courts would be unable to address criminality, or pass judgment on the legality of some of the president's worst abuses."   

Third, is Hillary Clinton constitutionally eligible to serve as Secretary of State?  If so, will she be paid the same amount as her predecessor?  The answers are apparently yes and no.   This story is a fun reminder about the minutia of the Constitution.

Equal Protection

The Wall Street Journal reports that equality in the legal workplace still needs some work.  The number of women in large firms tends to dwindle as the partnership year approaches.  Moreover, women in the firms typically earn less than their male counterparts.

The state of New Jersey has settled a claim against the matchmaking/dating site eHarmony.com.  The New Jersey suit argued that eHarmony violated state anti-discrimination laws by failing to provide match-making services to same sex couples.  eHarmony has agreed to provide comparable services, albeit on a different, specialized site.   

On the subject of same sex marriage, the VC reports that the District of Columbia may introduce a bill to legalize same sex unions in the District next year.  Slate has a great Q & A on Prop 8 and other same sex marriage issues.  Also, marriage is not the only equality issue concerning gays and lesbians at this time.  There are many other issues of equality that will be pursued during the Obama administration.

And finally, on the topic of the District and Equal Protection of the "one person, one vote" kind, apparently the President Elect plans to bring back the "Taxation without Representation" license plates for the presidential limo.  The President Elect is apparently a proponent of Congressional voting rights for the District.  I'm sure that's a change everyone in D.C. can beleive in.

See you next week friends!

NLS 

Court Orders Five G-Mo Detainees Released on Habeas

Judge Richard J. Leon of the U.S. District Court for the District of Columbia today ordered five Algerians released from Guantanamo Bay after nearly seven years of detention.  Judge Leon ruled that a sixth was lawfully detained as an "enemy combatant."  All six brought habeas claims (under Boumediene) challenging their status as "enemy combatants" and thus challenging their continued detention.  NYT reports here.

Judge Leon's ruling is here.

As is now familiar, the government argued that it could detain petitioners as "enemy combatants" pursuant to the Authorization for Military Force and the President's Commander-in-Chief powers.  The question for the court thus turned on whether the government showed, by a preponderance of the evidence, that petitioners were in fact "enemy combatants."

The government's evidence against them?  Slim, to say the least.  The court:

To support its claim that petitioners had a plan to travel to Afghanistan to engage U.S. and allied forces [and therefore were detainable "enemy combatants"], the Government relies exclusively on the information contained in a classified document from an unnamed source.  This source is the only evidence in the record directly supporting each detainee's alleged knowledge of, or commitment to, this supposed plan.  And while the Government has provided some information about the source's credibility and reliability, it has not provided the Court with enough information to adequately evaluate the credibility and reliability of this source's information. . . .  Because I cannot, on the record before me, adequately assess the credibility and reliability of the sole source information relied upon, for five of the petitioners, to prove an alleged plan by them to travel to Afghanistan to engage U.S. and coalition forces, the Government has failed to carry its burden with respect to these petitioners.  Unfortunately, due to the classified nature of the Government's evidence, I cannot be more specific about the deficiencies of the Government's case at this time.

(We've seen government source documents before.  Here's the Mobbs Declaration in Hamdi; here's the Mobbs Declaration in Padilla.)

I've previously posted on this case here and here.

SDS

Corporations as "persons" - The South Africa Con Court

The Constitutional Court of South Africa  issued a judgment of interest to Americans struggling with notions of  corporate rights as "persons" under the Constitution, especially the Fourteenth Amendment.  In Weare and Another v Ndebele NO and Others (Case CCT15/08, 18 November 2008), the Court considered the constitutionality of a state government prohibition on corporations holding betting licenses.   

As the Media Summary provides:

The case arises out of an agreement between the applicants. Betting World (Pty) Ltd carries on the business of bookmaking in eight of South Africa’s nine provinces. It does not do so in KwaZulu-Natal [a state in the nation of South Africa] because section 22(5) of the Ordinance provides that juristic persons – companies like Betting World – may not hold licences to engage in bookmaking in the province. Only natural persons, such as Mr Weare, are permitted to hold these licences in KwaZulu-Natal. In other provinces, both juristic and natural persons may hold licences. In terms of the agreement, Mr Weare was to sell to Betting World, conditionally, the bookmaking business he operates under his licence.  The authorities in KwaZulu-Natal took the view that the agreement violated section 22(5), whereupon the applicants challenged the constitutionality of the section.

***
In a unanimous judgment written by Van der Westhuizen J, the Court held that section 22(5) did not breach the right to equality before the law protected by the Constitution. The regulation of gambling represented a legitimate government purpose. Different practical considerations might indeed apply to the regulation of juristic persons and natural persons, and so it was not irrational to treat the two differently in the interests of regulation. The fact that reform was being considered, and that an allegedly better policy might exist, did not show that the current law was irrational. Furthermore, the section did not amount to unfair discrimination.

The opinion is available as a pdf here. 

RR

Federalist Society: Supreme Court Retrospective

The Federalist Society published a special edition of Engage, its practice group journal, dedicated to a Supreme Court retrospective.  The full journal is here.

Pieces of particular interest:

Ronald A. Cass, The Supreme Court's Standing Problem, page 4

Daniel E. Troy & Rebecca K. Wood, Federal Preemption at the Supreme Court, page 7

Thomas W. Merrill, Judicial Deference to Agency Action, page 16

Nelson Lund, Justice Kennedy's Stricter Scrutiny and the Future of Racial Diversity Promotion, page 20

Robert A. Levy, Anatomy of a Lawsuit: District of Columbia v. Heller, page 27

William E. Thro, Respecting the Democratic Process: The Roberts Court and Limits on Facial Challenges, page 54

SDS

California Prop 8 goes to Cal S Ct

The California Supreme Court has agreed to hear the challenges to Proposition 8, amending the state constitution to define marriage as limited to one man and one woman. 

The LA Times story is here.

The SF Chronicle story is here and states:

The court agreed today to review two related arguments by opponents of Prop. 8 - that the measure exceeds the legal scope of a ballot initiative by allowing a majority to restrict a minority group's rights, and that it violates the constitutional separation of powers by limiting judicial authority.

The justices also asked for arguments on whether Prop. 8, if constitutional, would nullify 18,000 same-sex weddings performed between when the court's marriage ruling took effect in mid-June and Nov. 4. Attorney General Jerry Brown, who will defend Prop. 8 as the state's chief lawyer, contends those marriages are legal, but sponsors of the initiative disagree.

The justices asked for written arguments to be submitted by Jan. 21. The court could hold a hearing as early as March, with a ruling due 90 days later.

Previous discussion on ConLawProf blog here.

RR

Senate Judiciary Committee Report on Contempt Resolutions

The Senate Judiciary Committee just released a report (with minority views) to accompany the resolutions finding Karl Rove and Josh Bolton in Contempt of Congress for failing to appear and testify before the Committee in its investigation into the politicized dismissal of nine U.S. Attorneys.

The Committee web-site has a time-line of events, with links; the Committee Report is here.  The section on Executive Privilege (section V. of the Report) starts on page 13; separation-of-powers issues run throughout.

I posted on similar issues in the House investigation and Committee on the Judiciary v. Miers and Bolton here.

SDS