Constitutional Law Prof Blog

Confirmation - Justice Souter IS retiring at the end of this term

I previously blogged that Justice David Souter's failure to hire law clerks for the coming term lead some to speculate that he might be retiring from the Court.  Tonight, that speculation ended, as both NPR and the New York Times reported that the Justice will retire at the conclusion of this term.  However, he plans to remiain active on the Court until a successor can be appointed and confirmed. 

Please watch this space for more information on the nomination and confirmation proceedings.  Finally, thank you, Justice Souter, for your service on the Court.

NLS

ACLU's Ben Wizner Talks About Mohamed v. Jeppesen, Extraordinary Rendition, and State Secrets

ACLU attorney Ben Wizner, lead counsel in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its role in the CIA's extraordinary rendition program, took time today to talk with me by phone about the case, the state secrets privilege, and the significance of the Obama administration's reassertion of the Bush administration's sweeping state secrets arguments.  (The Ninth Circuit handed down an important decision yesterday denying the government's state secrets claim.) 

Our full interview--about 17 minutes on an MP3 file--is available here.  Here are some highlights:

On the Scope of the State Secrets Privilege, According to the Government's Theory:

BW: Well, the state secrets privilege is an evidentiary privilege.  It was established and defined by the Supreme Court in a case called United States v. Reynolds in 1953, and in that case the Supreme Court said that it’s a privilege that belongs to the government, that can be invoked essentially during discovery and at trial.  And the purpose of the privilege is to block disclosure of state secrets and military secrets the use of which would harm national security.  What we’ve seen in the last six, seven years in particular is the mutation of that evidentiary privilege into a kind of broad immunity doctrine.  And so instead of, in our case and others, asserting the privilege with respect to specific evidence, the Bush administration and then the Obama administration asserted the privilege with respect to the entire lawsuit.  There was no evidence in dispute in the Jeppesen case, because Jeppesen had not even answered our complaint.  There had not been a single discovery request.  And so the state secrets assertion was made on the basis of a self-serving affidavit by Michael Hayden, the head of the CIA.  And I say self-serving, because you have here a remarkable doctrine that at least according to the Bush administration before this Ninth Circuit opinion allowed the CIA to engage in torture and then have the CIA itself--the perpetrators themselves--go into court and demand dismissal of a case based on secrecy grounds before there had even been a request for evidence.  And that’s why, as you say, this doctrine really had evolved or mutated beyond any recognition.  And what the Ninth Circuit’s decision did yesterday was it restored the state secrets privilege to a rule to its origin as a rule of evidence and not a doctrine of immunity

On the Differences Between El-Masri and Mohamed:

SDS: Ben, you mentioned the El-Masri case out of the Fourth Circuit about a year and a half ago.  What’s the difference between the El-Masri case and the Mohamed case, the Jeppesen case, that came down yesterday, that accounts for the dramatic difference in the opinions in the two different circuits.

BW:  Well, in one sense, the timing I think is significant.  The Ninth Circuit had the benefit of seeing just how broadly or over broadly the Bush administration had been invoking this privilege over the last several years in a wide variety of cases.  But I think fundamentally the right answer to your question is that the Fourth Circuit got the law wrong, and the Ninth Circuit got the law right.  And I don’t know that there is a better way of putting it than that.  But by the Fourth Circuit’s reasoning, the case would have had to be dismissed even if El-Masri had been a U.S. citizen and not a foreign citizen, even if the events had taken place in Minneapolis and not Macedonia, and even if Mr. El-Masri had been assassinated by the CIA and not just kidnapped and tortured by them.  What the Ninth Circuit said yesterday is that the government really wanted to cordon off entire categories of CIA conduct and shield them entirely from judicial review and that that was a serious violation of separation of powers.  Unfortunately, I think that that’s precisely what the impact of the Fourth Circuit decision is in the Fourth Circuit. 

On the Significance of the Ninth Circuit's Decision Yesterday in Mohamed: 

SDS: [Two differences stand out between El-Masri and Mohamed.  First, the Ninth Circuit in Mohamed seemed keenly attuned to the separation-of-powers concerns underlying the state secrets privilege in a way that the Fourth Circuit in El-Masri was not.  Second, the Fourth Circuit in El-Masri seemed to conflate the "Totten privilege" and the "Reynolds privilege," where as the Ninth Circuit separated them.]

BW:  . . . Your second point deserves some elaboration.  There is a narrow doctrine—justicaibility doctrine—that derives from the Totten case in 1875.  The Supreme Court has considered this doctrine in two cases, both of those cases involved precisely the same fact pattern: an alleged former spy, who allegedly had been promised some kind of lifetime of monetary support who was suing the United States for enforcement of that contract, and the Supreme Court has ruled unequivocally that secret espionage contracts can’t be enforced.  Now the government in the El-Masri case and in this case was trying to take that doctrine and essentially say that it rendered non-justiciable any case in which the plaintiffs allege an espionage agreement between various parties.  Now of course in our case we allege that the United States was working together with this company Jeppesen Dataplan.  But of course our clients were not parties to any kind of contract.  And the idea that they could be kept out of court on some kind of contract theory always seemed like a stretch, but the Fourth Circuit really muddled that doctrine I think a fair amount.  As we’ve said in our brief, perhaps if Jeppesen were suing the United States for payment on its rendition work, the Totten doctrine might apply.  But even there probably not, because this was not an espionage contract, and the services that Jeppesen performed for the CIA in connection to the rendition program are not different from the services of whatever company made the blindfolds, or the shackles, or the paper shredders for the CIA in connection with their rendition and torture program.  And so I think the Ninth Circuit really did a service to the country and to the case law by really clarifying those different strands of authority.

As Wizner suggests, we've seen a kind of "Totten creep," best illustrated by the Fourth Circuit's decision in El-Masri.  And, as Wizner says, the implication of El-Masri is that the government could immunize itself from any claim simply by asserting the privilege and supporting it with a single "self-serving" affidavit.  This stretches the state secrets privilege far beyond the scope set in either Totten or Reynolds. 

 

As Wizner suggests later in the interview, the Obama administration's reassertion of the Bush administration's position occured against the backdrop of the debate about investigating and prosecuting agents, contractors, officials, and lawyers who engaged in or authorized torture.  The administration's decision whether to appeal, too, will likely be informed by this debate.  But the state secrets privilege will outlive this debate, and the Obama administration would do well not to press an unreasonably expansive privilege merely to immunize a private contractor (or government official) from suit. 

 

Moreover, the Ninth Circuit ruling is consistent with the administration's stated commitment to openness and transparency, with its commitment to a more measured use of the state secrets privilege, and with legislation now pending before Congress. 

 

Its next move in Mohamed will give us an even stronger indication of how it balances these considerations.

 

SDS

 

Voting Rights Case - ANALYSIS of Oral Argument

The Court held oral argument today in Northwest Austin Municipal Util. District 1 v. Holder, in which one of the two issues is the constitutionality of the Voting Rights Act of 1965:

Whether, under the Court's consistent jurisprudence requiring that remedial legislation be congruent and proportional to substantive constitutional guarantees, the 2006 enactment of the §5 preclearance requirement can be applied as a valid exercise of Congress's remedial powers under the Reconstruction Amendments when that enactment was founded on a congressional record demonstrating no evidence of a persisting pattern of attempts to evade court enforcement of voting rights guarantees in jurisdictions covered only on the basis of data 35 or more years old, or even when considered under a purportedly less stringent rational-basis standard.

In the oral argument, transcript here, there was much discussion about the Congressional evidence, about whether or not "things" have changed in terms of race relations, and about geographic distinctions.

Near the beginning of the argument, Justice Souter responded to Gregory Coleman, arguing for the Appellant utility district:

SOUTER:  Your argument is largely based on the assumption that things have significantly changed and that therefore Congress could not by whatever test we use extend the -- extend section 5. But what we've got in the record in front of us -- I don't have a laundry list to read, but I mean, we've got I think at the present time a 6-point -- a 16-point registration difference on Hispanic and non-Hispanic white voters in Texas. We've got a record
of some 600 interpositions by the -- by the Justice Department on section 5 proceedings, section 5 objections, over a period of about 20 years. We got a record that about two-thirds of them were based on the Justice Department's view that it was intentional discrimination. We've got something like 600 section 2 lawsuits over the same period of time. The point that I'm getting at is I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say that
they have radically changed to the point that this becomes an unconstitutional section 5 exercise within Congress's judgment just seems to me to -- to deny the empirical reality.

Transcript at 15-16.   A bit later, Coleman addresses the flaws in the Congressional fact-finding by pointing to the distinctions between jurisdictions: "What Congress didn't do," he argued, "is look at specific noncovered jurisdictions" and compare them to covered jurisdictions.

Neal K. Katyal, Deputy Solicitor General, argued that the Congressional process was a model:

Congress's reauthorization in 2006 was the paradigmatic attempt of what to do in Congress. It didn't redefine a rate, nor did it cast aspersions at Supreme Court doctrine. Rather, it took that doctrine seriously, both this Court's teachings with respect to the Voting Rights Act specifically, as well as the -- as the scope of the Congress's Reconstruction enforcement powers, and arrived at a considered judgment. After 16,000 pages of testimony, 21 different hearings over 10 months, Congress looked at the evidence and determined that their work was not done.

Transcript at 27.  Coleman had quite a different portrait of Congressional action, stating, in a response to Justice Ginsburg that "it is important for the Court to understand and to consider the fact that Congress really thumbed its nose at the Court in terms of rejecting the constitutional concerns that the Court raised" in previous cases.  Transcript at 64.  

Most Court observers, ConLawProfs, and Con Law students predict that Justice Kennedy will be the deciding Justice, so his comments merit special attention.  In considering the Congressional scheme in which some jurisdictions are covered and others are not, Kennedy focused on the disparity amongst states:

Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other. And does the United States take that position today?

Transcript at 34.   Later, Justice Roberts phrased a very similar question differently:

So is it your -- is it your position that today southerners are more likely to discriminate than northerners?

Transcript at 48. 

This is the last oral argument of the term, with a decision expected in late June.

RR

Con Law issues in Education (and Clerkships)

My co-blogger wrote about the recent decision on Women's Studies at Columbia University.  There are other stories involving education - particularly legal education - that may have Con Law implications.  (Or, are simply interesting to anyone interested in Con Law.)

First, Above the Law reports a story out of Cardozo Law School that raises some gender equity issues.  A female student at the school has alleged that the process for electing the journal's editorial board is biased, as the journal's board is comprised entirely of males, despite a nearly equal number  - and seemingly equally qualified group - of female candidates.

Second, a Jewish student group is petitioning the Department of Justice to intervene on its behalf in a high school moot court competition.  The students are protesting the fact that the competitition as scheduled will force them to compete on the Sabbath.  Other than the obvious First Amendment issue, the students are alleging discrimination.  Moreover, there is an issue as to whether the competition is put on with public funds.  (Like many moot court events, its final rounds are held in a public courthouse). 

Finally, and loosely tied to education, is the issue of racial diversity in the ranks of Supreme Court law clerks.  Justices Thomas and Breyer addressed the issue while presenting the Court's budget before Congress.  When pressed on the issue, both Justices noted progress, but for different reasons.  Justice Thomas said that he had difficulty find qualified candidates - especially "Blacks and Hispanics" - while Justice Breyer said, "I don’t have to make an outreach to get the good [minority] candidates."  At the end, both justices agreed, ""This is not an area where the Court is resistant to change. ... Your questions have not fallen on deaf ears."

NLS

Standing, Feminism, and Women's Studies at Columbia University

The lawsuit by Roy Den Hollander against Columbia University's Institute for Research and Gender at Columbia University has provoked a spate of media coverage including the most recent NYT article reporting on the dismissal of the lawsuit.  With a bit of tinkering, this litigation could be adapted to a constitutional law examination with any number of issues.

Magistrate Judge Kevin Fox recommended dismissal of the complaint based upon standing.  Fox's order, available at 2009 WL 1025960, provides:

The amended complaint alleges the plaintiffs have been harmed by: (1) the existence of the Women's Studies program at Columbia, as it discriminates against male students and causes harm to males by propagating negative information regarding males; and (2) the absence of a Men's Studies program at Columbia that would focus on issues relevant to males and “counter” the information taught through Columbia's Women's Studies program.

The plaintiffs' alleged injury, which is purportedly based upon the content of, or the discriminatory impact flowing from, the Women's Studies program at Columbia, is not an “injury in fact,” since the plaintiffs do not allege they enrolled in a Women's Studies course(s) at Columbia that caused them to suffer a direct injury occasioned by firsthand exposure to the content of the Women's Studies course(s), or that they were discriminated against, by being denied the opportunity to participate in Columbia's Women's Studies program.

In support, the Magistrate Judge cites Moose Lodge No. 107 v. Irvis, 407 U .S. 163 (1972) (finding that the plaintiff lacked standing to challenge the Moose Lodge's racially discriminatory membership policy, because he never applied for membership).   The Magistrate's discussion signals the equal protection issue lurking here.  Of course, had the analysis proceeded further, Moose Lodge would also be pertinent to deciding the state action issue, given that Columbia University is not a public university. 

The District Judge, Lewis Kaplan, adopted the Report and Recommendation in his Order.  Although brief, Judge Kaplan's Order made three additional points.  First, Judge Kaplan rejected the notion that Magistrate Fox should have recused himself because he is a graduate of Columbia University.  Second, Judge Kaplan considered an objection to the Magistrate's description of the action as being brought pro se.  As Kaplan noted, this is not true as a "purely technical matter" since Hollander is an attorney and the second plaintiff in the case, but even if true such an argument "betrays a remarkable instinct for the capillaries" given that the pro se designation actually worked to Hollander's benefit under the more liberal pleading rules afforded pro se litigants.  Third, Kaplan stated:

Finally, although the Magistrate Judge did not reach the merits, it bears noting that plaintiffs’ central claim is that feminism is a religion and that alleged federal and state approval of or aid to Columbia’s Institute for Research on Women & Gender therefore constitute a violation of the Establishment Clause of the First Amendment.  Feminism is no more a religion than physics, and at least the core of the complaint therefore is frivolous.

In his final paragraph, the judge labels the claim "absurd" and dismissed the case.

RR

Second Circuit clears NYC Mayor Bloomberg's run for a Third Term

The Second Circuit has issued its opinion  in 09-0331-cv, Molinari v. Bloomberg, affirming the district court's rejection of challenges to Mayor Michael Bloomberg seeking a third term, despite previously approved term limits.  As the Second Circuit noted,

At issue in this litigation is an amendment to the Charter of the City of New York, entitled Local Law 51, which was passed by the City Council and signed into law by Mayor Michael R. Bloomberg on November 3, 2008.  It provides that Members of the City Council, the Mayor, Public Advocate, Comptroller and Borough Presidents are eligible to serve a maximum of three consecutive terms in office. It amends sections 1337 and 1338 of the City Charter, which previously provided for a maximum of two consecutive terms for these officials and which were enacted by a city-wide referendum in 1993.

The challenge raised several claims: a First Amendment claim that by amending the 1993 Voter Initiative through City Council legislation, the defendants discourage voters from participating in the referendum process in the future; a substantive due process claim that by passing legislation with the sole purpose of extending their own political careers and entrenching incumbents, the defendants violated the Fourteenth Amendment, as well as two state and local claims, based on laws mandating referendum as the mechanism to enact legislation regarding term limits,  and the City Charter’s conflict of interest provisions.

The court’s analysis of the substantive due process claim merits some discussion.  The Second Circuit panel writes:

Let us be clear. It is indisputable that, as a result of Local Law 51, several Members of  the City Council who voted for it and were ineligible to run for reelection under the previous term limits law will now be able to seek reelection in the City’s November 2009 election. Some, perhaps even many, of these incumbents may be elected to a third term. Nevertheless, Local Law 51 neither interferes with a fundamental right nor singles out a suspect classification. Accordingly, it is subject to rationality review.

Opinion at 34.  It isn't clear how the panel is using "suspect classification" in its due process analysis.  However, applying rationality review, the panel states:

Here, the City’s purported reason for enacting Local Law 51 is to provide the voters with an opportunity to elect experienced public officials in a time of financial crisis. It is beyond dispute that extending New York City’s term limits to three consecutive terms is rationally related to that legitimate objective. The fact that defendants also may have been motivated by political reasons – the desire to remain in office and in positions of seniority – is inconsequential under our substantive due process analysis.

Id.

The due process analysis and the opinion as a whole demonstrate how difficult it can be to prevail on constitutional (or other) claims against legislative action that is objected to as "self-serving."  While the Second Circuit opinion does not discuss "political questions" as a prudential (or Article III) restraint, such values are deeply embedded in the opinion.

RR

Today is Equal Pay Day!

This is an issue worth mentioning in a Con Law blog as it definitately has constitutional implications, and may soon inspire Congressional action.  First, a few facts:

- Equal Pay day is always on a Tuesday because a woman has to work from Monday of one week through the Tuesday of the following week to earn what her male counterpart earns Monday through Friday in one week.

- Equal Pay day is always a Tuesday in April because that is how long a woman must work to match her male counterparts wages from the previous year.

- According to the ACLU, "Women who work full time still earn, on average, 78 cents for every dollar men earn, according to the U.S. Census Bureau. For women of color, the numbers are worse. In 2008, African-American women earned only 63 cents and Latinas only 52 cents for each dollar earned by a white male."

The interested groups propose the passage of the Paycheck Fairness Act.  The draft bill states that the legislation is needed because the discrimination "has been spread and perpetuated, through commerce and the channels and instrumentalities of commerce, among the workers of the several States;" burdens commerce and the free flow of goods in commerce;" and "may deprive workers of equal protection on the basis of sex in violation of the 5th and 14th amendments."

We'll continue to monitor the legislative developments.

NLS

Arlen Specter - Switch In Time Nets Fifty-Nine (Senate Seats)

In case you were wondering about the legal and/or constitutional implications of a party switch by an imcumbent, I recommend James S. Wrona & L. Francis Cissna, "Switching Sides: Is Party Affiliation a Tie that Binds?, 28 Ariz. St. L.J. 735 (1996).   The article does a good job of outlining the possible issues that could be raised by constituents, and well as the Constitutional arguments a Represenative or Senator might offer in defense of such arguments.  

NLS

Equal - Fred Strebeigh's History of Women and Law

Strebeigh's new book, Equal: Women Reshape American Law, published by WW Norton, might be a good book to recommend to students entering law school or students preparing for their first Constitutional Law course.   The book has been getting some good press, but this analysis from Michael O'Donnell's review in the April 27 issue of The Nation gives one pause:

Notably absent from the book is any significant discussion of abortion rights, which in this country have largely been won in courts rather than legislatures. Some readers, viewing reproductive freedom as the most fundamental of women's rights, may see the omission as a major oversight, although Strebeigh may simply have wanted to avoid retelling a familiar story. On the conceptual level, though, Strebeigh's decision makes sense: much of the constitutional discussion in the book centers around the Fourteenth Amendment's straightforward equal protection clause, whereas abortion rights are based on the murkier and more malleable due process clause--which, on its face, says nothing about abortion. Many important legal advances, including abortion rights but also, lately, protections for gays and lesbians, would wobble less today if they rested on the sturdier foundation of equal protection, with its relatively clear textual guarantee. Leaving aside abortion law allows Strebeigh to avoid having to untangle legally (as opposed to politically) knotty problems.

Certainly, whether or not the equal protection clause is "straightforward" is debatable.  Also debatable is the question whether equality or the reshaping of American law should be discussed in a book without some attention to abortion or other reproductive rights.

RR

Ninth Circuit Rejects Administration's State Secrets Claim

A three-judge panel of the Ninth Circuit today rejected the Obama administration's claim that the state secrets privilege required dismissal of the plaintiffs' entire lawsuit at the pleading stage.  The plaintiffs in the case, Mohamed v. Jeppesen Dataplan, Inc., sued a private corporation for cooperating with the government in extraordinary rendition and torture; the government intervened to assert the state secrets privilege as a basis for complete dismissal.  In an early test of the Obama administration's positions on government transparency and the state secrets privilege, the Obama administration re-asserted the same position advanced by the Bush administration: The state secrets privilege required complete dismissal of the suit.

The Ninth Circuit flatly rejected this claim, in an opinion teeming with separation of powers considerations. 

The Ninth Circuit rejected each of the administration's theories.  As to the Totten version of the privilege (from Totten v. United States), the court held thatcomplete dismissal requires a secret agreement or contract between the plaintiff and the government such that the very fact of the lawsuit would reveal a government secret--a reading that limits Tottento its facts.  Here, there was no such secret agreement or contract between the plaintiffs and the government.  Instead, the agreement was between the defendant and the government (as intervenor, not a party).  The court thus treated the contract not as the very object of the suit (which might trigger the Totten privilege) but rather merely as a piece of evidence in the suit.  This, according to the court, is not enough to trigger the Totten privilege; at most, it would trigger the Reynolds privilege.

As to the Reynolds privilege (from United States v. Reynolds), the court rejected the government's claim that the privilege required the dismissal of the entire case.  Instead, the Reynoldsprivilege is an evidentiary privilege--i.e., it might protect certain secret evidence, but it does not wholesale protect information.  And it cannot prevent a litigant from trying to persuade a jury of facts, even if it might under certain circumstances protect secret evidence.

Finally, the court rejected the government's FOIA claim.  The government here tried to equate "classified" material (under FOIA) with "secret" material (under the privilege).  The court flatly rejected this approach, recognizing the different purposes of FOIA and the state secrets privilege, and the perverse incentive to over-classify that attends this approach.

The government's claims in the case--under the Bush administration, then under the Obama administration--were bold and sought an expanded privilege.  Each of the three arguments would have enlarged the privilege beyond all previous scope and would have given the President much greater power to control information and to direct the outcome of cases that even merely touch upon issues of national security.  The Obama administration's re-assertion of the Bush administration's positions is squarely at odds with its claims of increased transparency and more principled use of the state secrets privilege.  But it seems perfectly consistent with its claims in Jewel v. NSA, the Northern District of California case challenging the NSA's "dragnet surveillance."

Given the administration's motion and aggressive position in Jewel, an appeal in Jeppesen seems likely. 

SDS

Do the Torture Memos Undermine the Administration's State Secrets Claim?

The ACLU filed a letter with the Ninth Circuit arguing that the recently released torture memos undermine the administration's state secrets claim in the case challenging the Bush administration's extraordinary rendition program, Mohamed v. Jeppesen Dataplan.

The ACLU argues that the release of the memos leaves no secrets in the case.  But this wouldn't be the first time that the government argued state secrets when the program at issue had already been revealed; here's my post on the Obama administration's (re)invocation of the privilege in the NSA "dragnet surveillance" case in the Northern District of California.

And moreover: We don't know fully what other secrets--other than the torture techniques revealed in the memos--might have been involved in the rendition program.  There very well might be other things that the government wants to keep quiet.

The Obama administration's response to the letter may give us one more clue as to how serious the administration is in reevaluating its use of the state secrets privilege.

SDS

Vladeck on Boumediene and Access to the Courts

Professor Stephen Vladeck (AU/WCL) recently posted his excellent article, Boumediene's Quiet Theory: Access to Courts and the Separation of Powers, on ssrn; it's also forthcoming in the Notre Dame Law Review.  This is a thoughtful and engaging piece, characteristic of Vladeck's other related work; I highly recommend it.

Vladeck's article is about Boumediene v. Bush, a case that left plenty of unanswered questions about overseas habeas for aliens, extraterritorial application of other constitutional provisions, and the status of detainees' habeas claims based on the conditions (and not just the fact) of executive detention--issues that are now working their way through the federal courts and getting (at least) their fair share of scholarly attention.

Vladeck, refreshingly, takes Boumedienein a different direction.  Rather than focusing on these plainly open questions, Vladeck addresses a subtler point in the case: Justice Kennedy's invocation of separation-of-powers principles that drive the Court's ruling on that ultimate of all privileges that protects access to courts, habeas corpus.  Here's Vladeck's turn:

In this respect, Justice Kennedy's separation-of-powers focus is reminiscent less of his opinions in the other war-on-terrorism cases than of his majority opinion in Legal Services Corp. v. Velazquez, where the Court struck down part of a federal statute that prohibited legal aid lawyers who received federal funding from challenging the validity of existing welfare laws.  Although the VelazquezCourt concluded that the spending restriction violated the First Amendment, Justice Kennedy emphasized that such analysis was bolstereed by the "severe impairment of the judicial function" such a restriction might otherwise effect.  In both cases, Justice Kennedy thereby suggested that the injury the statute inflicted upon the role of the courts was at least relevant, if not central, to the constitutional analysis. . . .

At least where habeas corpus is concerned, the purpose of judicial review, in Kennedy's view, appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants.

This separation-of-powers approach is inconsistent with the modern, individual rights approach to access questions.  But Vladeck shows, through exhaustive analysis, that in adopting a separation-of-powers approach Kennedy resuscitated a motivating principle of the Court's earlier access cases:

With respect to the constitutional right of access to the courts, the early cases, especially Ex parte Hull, "appear[] to have been motivated more by notions of federalism and the power of the federal courts than [by] the rights of prisoners." . . .

From Brandeis's perspective, it was the protection of judicial supremacy--of the courts' prerogative to "say what the law is"--that required the protection of a litigant's substantive access to the courts, and not the other way around.  Thus, at their origins, judicial recognition of both physical and substantive access claims was rationalized at least largely by the courts' need to protect themselves.

So what does this mean for access in the wake of Boumediene?  Two things, argues Vladeck:

First, Boumediene's separation-of-powers approach will put on "sounder footing . . . the notion that the denial of access raises constitutional concerns whenever it interferes with judicial resolution of viable claims, whether or not the claim ultimately proves meritorious."  Boumediene itself is a clear example of this:  Kennedy "disaggregatedthe access-to-courts question from theadequacy-of-the-process question, suggesting that it was neither necessary nor sufficient, in resolving whether the [CSRTs] provide an adequate substitute to habeas corpus, to ask whether their procedures comported with due process."  If the Court ruled otherwise--linking the constitutional question to the merits--"it could only have answered the Suspension Clause question on a case-by-case basis."  The upshot:   The political branches have less leeway to restrict access; and "the courts' 'jurisdiction to determine their jurisdiction' may be inadequate in close cases where resolving the merits of the preclusion of review requires resolution of complicated and necessarily case-specific questions of fact."

Moreover, the separation-of-powers approach may well result in a right to Article III federal judicial review in non-habeas cases, even where the individual rights approach would not support it, if Congress were ever to give state courts or administrative agencies final word on questions of federal law.  Vladeck:

More generally, it might be impossible to understand the current structure of our judicial system, and the limits on how it might be altered, without appreciating the separation of powers concerns that arise when tribunals other than the Article III courts are in a position to have the final say--and when access to the Article III courts is denied.

I highly recommend this very thoughtful piece.

SDS

The Teaching Assistant

Hello!  There a a variety of stories that may be of interest this week.  Let's begin, shall we?

Constitutional History

Over at the Faculty Lounge, Al Brophy has a post discussing the extent and nature of the Founder's Christianity, and the implications that may have on our constitutional interpretation.

The NYT reports that some in California - including the governor - are considering revising the state constitution. Sandy Levinson at Balkinization has more, and suggests that if constitutions are being revised, the federal one could use some attention as well.

Equal Protection

From the Feminist Law Professors blog, a link to an article from the Chronicle of Higher Education questioning whether the tenure system is inherently biased against women.  The article also lists some of the efforts suggested to address the real and percieved inequities. 

Again turning to California, events in San Francisco have once again put Proposition 209 in the spotlight.  The measure prohibited California government entities from using racial or gender preferences.  Jerry Brown, Former California Governor and current Attorney General, opined that the measure was unconstitutional, as it "by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so."

The Executive

The torture scandal is dominating the news about the executive branch as of late.  This week, two first hand accounts are definately worth reading.  First, a former Marine recounts his experiences as a "student" at the military's "torture school" - SERE.  His conclusion? "The school, which all pilots and special-forces soldiers attend, unintentionally serves to legitimize the use of torture by U.S. personnel in the field."   Second,  a former FBI agent recounts his experiences with torture tactics in the field.  He states, "There was no actionable intelligence gained from using enhanced interrogation techniques . . . that wasn’t, or couldn’t have been, gained from regular tactics."

Finally, in a story related to the two above, on Slate.com, Yale Con Law scholar Bruce Ackerman proposes the abolition of the Office of White House Counsel and the OLC.  Ackerman argues that these offices did not always exist, and that "Obama should return to the traditional system in which presidents depended on the Justice Department for their legal advice."  Moreover, Ackerman asserts that the current legal structure "made their abuses [that led to the torture memo scandals] not just possible but predictable." 

That's all for this weekend.  See you next time!

NLS

Australian Constitutional Law: Saturday Evening Review

There are many terrific articles and books on Australian Constitutional Law.  Yet as I prepared for the public conversation with Justice Michael Kirby, recently retired from Australia's High Court, I found two invaluable sources that are worth reading - and rereading.

The first work is Inside the Mason Court Revolution: The High Court of Australia Transformed by Jason L. Pierce, an American political science professor specializing in constitutional law.   Published in 2006, I read the book when it first appeared, but the book remains timely because the problems of judicial roles, constitutional decision-making, and so-called judicial "activism" have not been resolved.  Pierce's methodology includes extensive interviews with judges and others in the legal elite (which in Australia generally means a person bearing the title QC - Queen's Counsel - after his [and very occasionally her] name).  The second chapter has a very useful overview of the Australian legal system - - - I would recommend it to any legal scholar working on Australian law.

Moreover, while focusing very specifically on Australia and discussing particular decisions and particular jurists, much of what Pierce theorizes has relevance in the United States context.  Apart from the introductory chapter, Pierce is not writing a comparative constitutional law volume.  Yet perhaps because of his American training, Pierce's discussion have resonance.  Thus, I think it is a good book for legal scholars working on judicial politics in the US context as a way of testing one's theorizing in a less familiar doctrinal landscape.

The second is the work of Australian law professor Reg Graycar, previously discussed here.  I found her newest piece appearing on ssrn here, co-authored with Professor Jenny Jane Morgan.  As the abstract announces:

  In 2009, Australia is debating whether to have a national bill of rights and remains one of the last western democracies that has not yet legislated for (or indeed constitutionally entrenched) some form of human rights law. Nor is there any guaranteed right to 'equality'. Nonetheless, as feminist legal scholars, our work has been centrally concerned with issues of equality. We argue that equality is deeply implicated as a value in the Australian legal system, despite the absence of some formal instrument or constitutional guarantee.

 This discussion asks, perhaps controversially, whether there might be some advantages that flow from that lacuna. Does an absence of formal rights protection leave room for flexibility and for more creative responses for those who have been left outside the mainstream of the legal community? We explore some of the traditional critiques of rights discourses and the persistence of formal equality as the preferred model. We then interrogate these issues by reference to two case studies: first, the recognition of lesbian and gay familial relationships and secondly, in the context of the law governing the regulation of abortion.

Graycar (pictured left) and Morgan (right), authors of the exceedingly popular and useful The Hidden Gender of Law,  pose questions about constitutional structures, specifically the absence of a Bill of Rights or of an equality provision.  It is an issue that is not unfamiliar to American constitutional scholars - - - especially those considering originalism or the Ninth Amendment - - - albeit in a different guise.  Graycar and Morgan explore the notion that an absence of constitutional "rights" might actually work toward a greater realization of those rights in the hotly-contested debates surrounding sexual freedom issues such as same-sex relationships and abortion.  And in comparison with US doctrine, their conclusions are certainly worth consideration.

As summer approaches - - - at least here in the northern hemisphere - - - and many constitutional law profs will be traveling and engaging in comparative constitutionalism, anyone going to Australia should certainly take a look at Inside the Mason Court Revolution, any work by Reg Graycar and Jenny Morgan, and the career and work of Justice Michael Kirby.

RR

D.C. Circuit Dismisses British Detainees' Constitutional Tort Claims

A three-judge panel of the D.C. Circuit ruled on Friday that federal officials were entitled to qualified immunity and that Boumediene v. Bush (holding that the Suspension Clause applies to aliens at Guantanamo Bay) did not mean that the Fifth and Eighth Amendments also extended to aliens detained at Guantanamo Bay.  The court thus again affirmed the lower court's dismissal--this second affirmance coming only after the Supreme Court instructed the Circuit to reconsider its first affirmance in light of Boumediene.

The ruling represents a set-back for alien detainees claiming that officials violated the Constitution at Guantanamo Bay (or any other location over which the U.S. exerts anything less than complete sovereignty). 

The court "rest[ed] [its] decision on remand" on the officials' qualified immunity.  It ruled that the officials enjoyed immunity, because the asserted rights were not "clearly established" at the time of the alleged violation.  Why not?  Because at the time neither the D.C. Circuit nor the Supreme Court "had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights."  Rasul, at 6.  (The court reached the "clearly established" prong before the "constitutional rights" prong in its discretion under the Supreme Court's ruling early this year in Pearson v. Callahan.) 

The court rejected the petitioner's argument under the Insular Cases that "fundamental personal rights" extend to "unincorporated" territories: Those cases involved only territories over which the U.S. maintained "complete sovereignty," and which "Congress governed . . . pursuant to its Art. IV, Sec. 3, power to regulate 'Territory or other property belonging to the United States.'"  "Neither factor applies to Guantanamo."  Rasul, at 9. 

Therefore, because the rights were not "clearly established" at Guantanamo, officials were entitled to qualified immunity.

With regard to Boumediene's effect on the case, the petitioners sought to extend the Supreme Court's reasoning on the Suspension Clause to the Fifth and Eighth Amendments.  Petitioners thus argued that Boumedieneprescribed a functional, multi-factor approach to determine the extraterritorial application of the Fifth Amendment Due Process Clause and the Eighth Amendment Cruel and Unusual Punishment prohibition (in addition to the Suspension Clause).  

The argument was not unreasonable, especially given the Supreme Court's remand to the Circuit and its instruction to reconsider the case in light of Boumediene.  But the D.C. Circuit rejected it, limiting Boumediene to the Suspension Clause:

The Court [in Boumediene] acknowledged that it had never before determined that the Constitution protected aliens detained abroad and explicitly confined its constitutional holding "only" to the extraterritorial reach of the Suspension Clause.  The Court stressed that its decision "does not address the content of the law that governs petitioners' detention.  With those words, the Court in Boumediene disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause. . . .

Rasul, at 4. 

The court's ruling on qualified immunity may help insulate it from further review: The court's reading of Boumediene and the Insular Cases may offer the full Circuit and the Supreme Court a comfortable basis upon which to deny review.  On the other hand, the Supreme Court, in instructing the Circuit to reconsider in light of Boumediene, may have intended a more seriously consideration of the arguments on Boumediene and Boumediene's application to the Fifth and Eighth Amendments.  If so, we might expect more on appeal.

SDS

D.C. District Sides with Government on Standard of Detention

Judge Reggie B. Walton (D.D.C.) yesterday issued a memorandum opinion in a consolidated case of Guantanamo detainees that adopted the Obama administration's recently suggested and refined standard of detention for detainees at Guantanamo Bay.  (I previously posted on this here and here.)

In an opinion that expressed frustration that the law regarding the President's detention authority is still unsettled, Judge Walton ruled that the AUMF provided the President with authority to detain individuals at Guantanamo Bay and that the President's suggested standard of detention comported with the law of war.

Judge Walton's opinion suggests that the important difference between the Bush administration's standard for detention and the Obama administration's standard is the Obama administration's elimination of the phrase "enemy combatant," which, in turn, was based upon the Obama administration's analysis of its authority under the laws of war.  (Recall that the Obama administration merely replaced a standard that authorized the detention of an individual who "supports" an enemy organization with a standard that authorizes the detention of an individual who "substantially supports" an enemy organization.)  Walton:

The petitioners' reliance on the standards governing international armed conflict is understandable given the government's longstanding justification of its detention of the petitioners on the grounds that they were "enemy combatants."  This term has meaning under the Geneva Conventions only insofar as it is construed as a subset of "prisoner of war" status, which the Third Geneva Convention defines at length. . . .  Status as a "combatant" is actually a privilege--"the right to participate in hostilities"--to be earned through fidelity to the requirements of Article 4.

At least for those petitioners detained due to their associations with terrorist organizations like al-Qaeda, there is little question that such individuals fail to satisfy these requirements. . . .

Thus, under the combatant/civilian distinction formerly drawn by the government, the petitioners would appear to fall under the rubric of "civilians."  And as civilians, the petitioners would not be subject to military force "unless and for such time as they [took] a direct part in hostilities."

But the government no longer seeks to detain the petitioners on the theory that they are "enemy combatants" . . . .

Gherebi, at 34-37.  Instead, the government may detain members of an enemy force in a transnational conflict:

And the absence of any language in Common Article 3 and Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be. . . .

Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy's armed forces to go to and fro as they please so long as, for example, shots are not fired, bombs are not exploded, and planes are not hijacked.  Consistent with Common Article 3 and Additional Protocol II [and as authorized by the AUMF], the President may detain anyone who is a member of the "armed forces" of an organization that "he determines planned, authorized, committed, or aided" the 9/11 attacks, as well as any member of the "armed forces" of an organization harboring the members of such an organization.

Gherebi, at 38-43.

SDS

Is the EPA Undemocratic?

In the wake of the Environmental Protection Agency's decision last Friday to propose to find that greenhouse gases endanger public health and welfare, some are claiming that the EPA is undemocratic.

For example, Jonah Goldberg wrote in today's Chicago Tribune that the EPA's decision resulted from a double dose of anti-democratic behavior:  The least democratic branch, the Supreme Court, permitted a "politically autonomous" agency, the EPA, to regulate greenhouse gases.  When the EPA proposed to regulate them on Friday, then, the decision "choked" democracy.

This of course ignores the Clean Air Act, legislation that was passed by the most democratic branch and specifically authorizes the EPA's decision.  The Clean Air Act requires that the EPA

shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . . which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare.

42 U.S.C. Sec. 7521(a)(1).  The EPA under the Bush administration refused to make such a judgment, and, as a result, failed to act.

State and local governments--democratic and accountable--joined in a suit against the EPA, and the Supreme Court in 2007 in Massachusetts v. EPA ruled that the Clean Air Act required the EPA to form a judgment related to whether air pollutants "cause or contribute to air pollution . . . reasonably . . . anticipated to endanger public health or welfare," and not some other judgment (say a political judgment). 

The EPA, after forming an appropriate judgment under the Clean Air Act, found that greenhouse gases contribute to air pollution and are reasonably anticipated to endanger public health and welfare.  It issued its proposed rule on Friday and opened up a 60-day period for public comment.

In short: The most democratic branch passed legislation; democratic state and local governments joined a suit to ensure that the legislation was enforced; they won; and the enforcing agency opened a democratic public comment period before finalizing its rule.

Just what about this process "chokes" democracy?

The problem with Goldberg's claim is that it reduces a serious argument about separation of powers and democratic accountability to a mere political ploy.  There may be--or even certainly is--plenty to criticize about the legislative process leading to the Clean Air Act, the way the Supreme Court made its decision, or the likely lack of real impact that any one person might have on the proposed rule through the notice and comment period.  But Goldberg's indiscriminate claim that the EPA "choked" democracy sweeps far too broadly and in the process mocks--and thus devalues--an otherwise important point about democracy.

SDS

It's Time to Work Out a Coherent Basis for Incorporation

David Gans, the Director of the Human & Civil Rights Program at the Constitutional Accountability Center, argued earlier this week that Monday's Ninth Circuit Second Amendment case gets us closer to working out a coherent basis for incorporation of the Bill of Rights via the Fourteenth Amendment Privileges or Immunities Clause (and not the Due Process Clause).  Gans:

The Nordyke opinion moves our country a big step closer to a historic opportunity for the Supreme Court to finally recognize that Slaughter-House was wrong when written, and restore the Privileges or Immunities Clause to its rightful place.

Gans and CAC founder and President Douglas Kendall published an important report late last year tracing the history of the P or I Clause and arguing that it, not the Due Process Clause, was originally (and still is) the proper basis for incorporation.  They also filed an amicus brief making this argument in the Seventh Circuit Second Amendment case.

Gans's post is an excellent analysis of this component--incorporation via P or I--of the Ninth Circuit decision.  But I'll add to Gans's post this:  The Ninth Circuit's narrow, almost too clever rejection of P or I as a basis of incorporation is itself a clear illustration of the disarray in incorporation jurisprudence and a strong argument for clarifying incorporation doctrine by using the much simpler, more obvious, and historically correct vehicle of the P or I Clause.

This is what I mean.  The Ninth Circuit rejected the P or I Clause as the basis for incorporation by turning to its own prior ruling on the issue in Fresno Rifle.  The Ninth Circuit in that case rejected Second Amendment incorporation, but it didn't specify the clause--P or I, or Due Process--upon which it rejected incorporation.  So the Nordyke panel looked more closely at Fresno Rifle and discovered that Fresno Rifle relied upon Cruikshank and Presser--two cases that "involved direct application and incorporation through the Privileges and Immunities Clause, but not incorporation through the Due Process Clause."  Thus, the Nordyke panel said, Fresno Rifle was really a rejection of incorporation via P or I.  The Nordyke panel made Fresno Rifle into the Ninth Circuit's Slaughterhouse, or at least its Cruikshank and Presser.

This is exactly the kind of analytical gymnastic--building bad case cleverly upon bad cases--that, at the Supreme Court, led to the "current disarray" of Fourteenth Amendment jurisprudence.  Saenz v. Roe (Thomas, J., dissenting).

This is more than just critique of the Ninth Circuit's approach.  It's also a prudential argument--to complement Gans and Kendall's originalism and textual arguments--to work out a coherent basis for incorporation now. 

If the Ninth Circuit needs to make this kind of clever maneuver to incorporate via Due Process--and to avoid incorporation via P or I--isn't it time for the Court to overturn Slaughterhouse and incorporate via the much cleaner P or I?

SDS

Senate Committee Report on Detainee Treatment

The Senate Armed Services Committee yesterday released its report on the treatment of detainees in U.S. custody, concluding that torture was approved by cabinet and other high-level officials in the Bush administration.

The report (pp. 119-129) tells the story of the early OLC torture memos, senior military lawyers' strong objections to those memos, and DoD General Counsel Haynes's instruction to Air Force General Counsel Walker that the DoD working group convened to recommend interrogation policy consider the OLC legal analysis in the March 14, 2003, memo "authoritative" and directed that it "supplant the legal analysis being prepared by the Working Group action officers."

The March 14, 2003, OLC memo concluded that detainee interrogation arose out of the President's Commander-in-Chief authority, and that federal criminal statutes that interfered with the President's power to authorize the conduct of interrogations were unconstitutional.  The upshot: "In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy."  March 14, 2003, OLC memo at 5.

The memo was highly criticized by senior military lawyers and by the working group, because, among other reasons, most of the recommended interrogation techniques in the group's final report (the "stoplight chart"), which conformed to the OLC analysis, amounted to violations of the UCMJ, domestic criminal law, and international law.  Rear Admiral Jane Dalton addressed the violations of international law:

[T]here was a column originally . . . in the spotlight chart, that was labeled "Customary International Law."  So one of the things we were supposed to assess was whether or not the techniques were consistent with customary international law.  The stoplight chart had all 36 techniques green under customary international law because the OLC opinion and thus the Working Group report maintained that customary international law did not impose any constraints on the actions. . . .  That green column was absolutely wrong legally . . . it was embarassing to have it in there, and one of my comments to the report was . . . You need to delete that column entirely because it's embarassing to have it in there and it's not reflective of the law.

Report at 126. 

Rumsfeld apparently knew about concerns of senior military lawyers:

According to DoD General Counsel Jim Haynes, the Secretary of Defense met with participants of the Working Group and was aware of concerns reflected in the comments made by the senior military lawyers.

Report at 128.

Even after the OLC withdrew the March 14, 2001, memo (along with the August 1, 2002, "Bybee" memo)--and notified DoD that it was withdrawn because it contained "serious errors"--DoD apparently continued to rely on it or some similar authority:

Notwithstanding the late December direction from the head of the OLC that DoD could not rely on the March 14, 2003, OLC memo, a March 26, 2004 memorandum for the record suggested that [redacted].  The frequent flyer program involved moving a detainee every few hours from one cell to another to disrupt their sleep.  [Redacted.]

Report at 147.

There is a difference, of course, between having legal authority to do something and actually doing it.  The Committee report is most critical of senior Bush officials for actually doing it--for authorizing torture of detainees. 

But this section of the report--roughly from pages 119 to 147--is also critical of the OLC lawyers for concluding that DoD had legal authority and of Haynes and Rumsfeld for their disregard of senior military lawyers' objections to the OLC memos. 

In the end, there's not much in this section of the report that we didn't already know.  But coming in the wake of the release of the previously classified OLC torture memos last week, this report may provide additional momentum for those calling for investigation and prosecution of former OLC attorneys Yoo and Bybee.

SDS

Quick Hit - Interesting Take on the Ricci Case and Equal Protection

If you are at all interested in the Ricci case, please take a moment to read this posting by Deborah Hellman which discusses the Ricci case, but also critiques some of the underlying assumptions in equal protection jurisprudence.  It's definately worth your time!

NLS