Constitutional Law Prof Blog

Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case

Federal Judge Jeffery White in San Francisco has substantially denied the motion to dismiss the civil complaint filed by Jose Padilla against John Yoo, formerly of the DOJ, now on leave from UC-Berkeley (Boalt Hall).

In a 42 page opinion (download here), Judge White begins rather grandly:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).
The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect.

However, the judge soon provides a detailed recitation of the allegations of the complaint and then engages in a closely reasoned opinion relying on United States Supreme Court precedent as well as numerous Ninth Circuit cases.  Judge White acknowledges the separation of powers issues in this Bivens complaint, and interestingly has this comment about Yoo's argument for absention:

Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power. Thus, the question posed by the present motion is whether an alternative branch of government, under the circumstances, should be tasked with prescribing the scope of relief available to Padilla.

Order at 22. 

Judge White also denies Yoo's claim of qualified immunity,  including the claim that there is insufficient causation (linking the memos to the actions against Padilla).

 The Judge's Order denies the motion to dismiss "as to all claims with the exception of the claim for violation of Padilla’s rights under the Fifth Amendment against compelled self-incrimination."  The Judge granted Yoo's motion because "there is no allegation in the complaint before this Court that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case," and thus  "he has not stated a claim for violation of the Self-Incrimination Clause of the Fifth Amendment." Order at 37.  Padilla has leave to amend this allegation by July 10.  Yoo has twenty days to file his responsive pleading.

This is an opinion worth reading, just as this case will be worth watching as it proceeds.

RR

DOJ Defends DOMA

The Obama Administration has filed its Motion to Dismiss a challenge to DOMA in the US District Court for the Central District of California.  Despite the possibility that Obama would leave DOMA undefended from various challenges  (last discussed here), the Obama Administration's 54 page memorandum (download here) is a vigorous defense.  Here's the Argument outline:

I.    This Court Lacks Jurisdiction Over Plaintiffs' Claims Against
the United States Because the State Court Lacked Jurisdiction 

II.     Plaintiffs' Claims and Allegations Against the United States
Must Be Dismissed for Lack of Standing
        A. The Case or Controversy Requirement of Article III
        B. Plaintiffs Lack Standing to Challenge DOMA's Reservation
of the States' Authority Regarding Recognition of
Same-Sex Marriages Performed in Other States .
        C. Plaintiffs Lack Standing to Challenge the Definitions
of "Marriage" and "Spouse" Under Federal Law
        D. Plaintiffs Cannot Establish Standing to Seek Certain
Sweeping Relief Requested in Their Complaint 

III. DOMA Is a Valid Exercise of Congress's Power
under the Full Faith and Credit Clause
        A. Section 2 is Consistent With Common Law Conflicts Principles
        B. Section 2 Was Enacted Under Congress's Authority to Prescribe
the "Effect" of One State's Acts in Other States

IV. DOMA Cannot Be Said to Violate an Asserted "Right to Travel"

V. DOMA Is Consistent with Equal Protection and Due Process Principles
        A. Federal Courts Have Unanimously Upheld the Constitutionality of DOMA
        B. DOMA Does Not Impinge Upon Rights That Have Been Recognized as Fundamental
        C. DOMA Does Not Rest on a Suspect Classification
        D. DOMA Satisfies Rational-Basis Review

VI. DOMA Does Not Violate the Right to Privacy
VII. DOMA Cannot Be Said to Infringe Upon any Rights of Speech
VIII. DOMA Cannot Be Said to Infringe Upon any "Right" under the Ninth Amendment

The use of two precedents are especially interesting.  First is the argument regarding Loving v. Virginia:

There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little  difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11.  No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a . . . purpose" to discriminate against either men or women. [citation omitted].  In upholding the traditional definition of marriage,numerous courts have expressly rejected an alleged analogy to Loving. See, e.g., Kandu, 315 B.R. at 144 ("[T]he Supreme Court did not hold [in Lawrence] that same-sex couples constitute a suspect or semi-suspect class under an equal protection analysis."); Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999) (rejecting claim that "defining marriage as the union of one man and one woman discriminates on the basis of sex"); Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d at 187; see also Dean, 653 A.2d at 362-63 & n.2 (Steadman, A.J., concurring) ("It seems to me to stretch the concept of gender discrimination to assert that it applies to treatment of same-sex couples differently from opposite-sex couples.").

Memo at 42.  Another interesting aspect is Obama Administration's distinction of Romer v. Evans:

unlike the Colorado amendment struck down in Romer, DOMA is rationally related to legitimate government interests and cannot fairly be described as "born of animosity toward the class of persons affected." Romer, 517 U.S. at 634. DOMA simply preserves longstanding federal and state policies that have afforded protections and privileges to a traditional form of marriage, while simultaneously recognizing the right of States to extend such protections and privileges to same-sex marriage. Under our federalist system, preserving the autonomy of state and federal governments to address evolving definitions of an age-old societal institution is itself a legitimate governmental interest. Moreover, because DOMA protected "the ability of elected officials to decide matters related to homosexuality," including their right to recognize same-sex marriage, it plainly was not born solely as a result of animosity towards homosexuals.

Memo at 35.

 

This Motion to Dismiss and the legal arguments in the Memo are sure to garner attention, especially given Obama's (previous?) relationship with the LGBT community and progressive groups.  There is already a solid analysis on AmericaBlog.

RR

Secretary of State Clinton is Constitutional, says OLC

The Office of Legal Counsel opined in a little noticed (even non-noticed?) memo on May 20, 2009, that legislation designed to roll back a salary increase for an executive office can ensure compliance with the Emoluments Clause (or the Ineligibility Clause), if the rollback occured before a Senator or Representative was appointed to that office.

The memo, written by Acting Assistant AG David Barron, means that the OLC judged President Obama's appointment of then-Senator Clinton to be Secretary of State, and the salary rollback for that office that immediately preceded her appointment, to be consistent with the Constitution.  This kind of rollback has become known as the "Saxby fix," after Senator William Saxby, Nixon's pick for AG, who would have run afoul of the Clause but for a pre-appointment salary rollback for that office.  I previously posted on the issue here and here.

The Clause, Article I, Sec. 6, cl. 2, states that

[n]o 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 OLC wrote that the words "shall have been encreased" have two possible meanings:

Under the first interpretation, "shall have been encreased" means "shall have ever been encreased."  The Clause thus would call for a series of "snapshots": if at any time during the term of a member of Congress the emoluments of an office are higher than at another time, the emoluments have "encreased" during the member's congressional term . . . .  The alternative interpretation is to read "shall have been encreased during such time" as "shall have been encreased on net during such time," thereby prohibiting the appointment of a congressional member to an office only when the emoluments of the office are greater at the time of appointment than they were at the start of the member's term.

Without a "plain meaning" of the Clause, the OLC looked at drafters' and ratifiers' understandings, the purpose of the Clause, and the history of the application of the Clause and judged them all to point toward the "on net" interpretation.

In so opining, the OLC rejected the opposite conclusion in a 1987 OLC memo (attached to the recently issued memo in the link above).

It's a little surprising that the recent memo went unnoticed for two reasons.  First, the issue got a lot of attention prior to Clinton's appointment. 

But more: This memo is conspicuous in that it's the only OLC memo issued by the Obama administration that appears on the DOJ web-site.  We know the OLC has been hard at work in the first months of the Obama administration.  For an administration committed to openness and transparency, we might expect more of this work to be more available.

SDS

Obama's Moves on Guantanamo

The Obama administration made two significant moves in the last few days that signal its seriousness about closing Guantanamo and finding alternative ways--other than military tribunals--to deal with remaining detainees.  The moves come less than a month after President Obama announced somewhat more detailed plans for dealing with detainees.  I posted on the speech here and here.

In the first move, the administration negotiated an agreement with the Pacific island nation of Palau to take the Chinese Muslims, the Uighurs, detained at Guantanamo Bay.  The U.S. pledged $200 million in development aid to Palau, although the administration denied that the funds represent a quid pro quo.  The NYT reports here.

This move is a closing chapter in the saga of the Uighurs, who were ordered released into the U.S. last fall by a federal judge after concluding that they were not "enemy combatants."  The D.C. Circuit overturned the order, ruling that federal courts lack authority to order the detainees' release into the U.S.  The rulings left the Uighurs in limbo: The U.S. lacked authority to continue to detain them, but the administration refused to release them into the U.S. (and the federal courts couldn't order this), and no other country would take them (except for China, where the government believed they would be persecuted or executed).  Even if Palau doesn't take all 17 Uighurs, its acceptance of some will make it easier for the administration to find a home for others.

In the second move, the administration transferred Guantanamo detainee Ahmed Khalfan Ghailani to the Southern District of New York for criminal trial.  Ghailani pleaded not guilty to charges that he conspired in the 1998 bombings of U.S. Embassies in Kenya and Tanzania.  The NYT reports here.

The moves are a significant signal of the administration's seriousness to close Guantanamo and find alternative ways to deal with detainees, because both come with potential political costs.  The Uighurs, found to be non-combatants in every possible way and by every possible tribunal and official, have somehow been framed as ultra-dangerous threats to the U.S. and its citizens by some.  And detainees generally have been considered too dangerous for the Article III courts by many. The administration's willingness to stand up to these concerns and potential political costs that come with them suggest that it's serious about its Guantanamo efforts.

SDS

Another Cert. Petition Urging Second Amendment Application to States

Individual plaintiffs, the Second Amendment Foundation, and the Illinois State Rifle Association filed a petition today asking the Supreme Court to reverse last week's Seventh Circuit ruling and apply the Second Amendment individual right to bear arms to the states.  (Alan Gura, the attorney who represented the respondents last term in D.C. v. Heller, filed the cert. petition.)

The NRA filed a cert. petition in the case last week.

Both petitions argue that the case presents a good opportunity for the Supreme Court to resolve a split in the circuits and set its incorporation doctrine right. 

But while the NRA argues primarily for "selective incorporation" via the Fourteenth Amendment's Due Process Clause, Gura's brief forcefully argues for incorporation via the Privileges or Immunities Clause--and, necessarily, for overruling the Slaughterhouse Cases:

More critically [than resolving the circuit split], it is never too late to undo an error as grievous as that contained within The Slaughter-House Cases.  Opportunities to correct such mistakes should be seized when they present themselves.

Brief at 29 (emphasis added). 

The Slaughterhouse Cases, of course, read the Privileges or Immunities Clause unduly narrowly, leaving that clause all but empty and surely no vehicle for applying the Bill of Rights to the states.  Without the Privileges or Immunities Clause--the most obvious vehicle for incorporation, and the clause that the Fourteenth Amendment framers and ratifiers assumed would operate as a vehicle for incorporation--the Court used the Due Process Clause and a process called selective incorporation.  Under the selective incorporation approach, the Court looks to whether a claimed right is sufficiently important and historically grounded to apply to the states.

But the Slaughterhouse Cases' narrow reading of the Privileges or Immunities Clause is widely regarded as a mistake.

Gura's brief--and the work of Seventh Circuit amicus Constitutional Accountability Center--seek to set this right.  The move to overturn the Slaughterhouse Cases pits the original understanding and original intent of the Fourteenth Amendment (which suggests that the Privileges or Immunities Clause was designed to incorporate fundamental rights against the states) against the long-standing selective incorporation practice of the Court (which uses the Due Process Clause as the vehicle for incorporation).

This is a bold move, in the sense that selective incorporation under the Due Process Clause is probably the path of lesser resistance.  (Gura argues this, as well.)

But it's also a move that could effect a sea change in the way we understand national citizenship and the way we protect fundamental rights--enumerated and unenumerated--against the states.

SDS

Sotomayor Senate Hearings - July 13

"The Senate Judiciary Committee has set a date for the start of nomination hearings on Judge Sonia Sotomayor to be associate justice of the Supreme Court: July 13."   So reports the Washington Post here.
Other outlets are reporting the same date based on Senator Patrick Leahy's statement.

There has been much activity surrounding the nomination and many news, opinion, and analysis pieces in web, print, and other media sources.   Good collections can be found at Library of Congress, Sotomayor for Justice, Justice for Justice Sotomayor, and Center on Latino & Latina Rights and Equality (CLORE) at CUNY Law School. 

We've previously uploaded and discussed responses to Senate Questionnaire, which will be a basis for the Senate Hearings, here.

update: The ACLU Report summarizing "the civil liberties and civil rights record" of Sotomayor is available here. On page 4 (of 88 pages), the ACLU Report states:

Because Judge Sotomayor’s opinions are so fact-based and rarely stray far from well-established
precedents, they are often difficult to characterize as either liberal or conservative.  It is worth
noting, however, that Judge Sotomayor has not written about many of the hot button topics that
often dominate public discussions about the Supreme Court.  Despite a lengthy judicial tenure,
her opinions have not directly addressed a wide range of issues that frequently appear on the
Supreme Court’s docket, including abortion, gay rights, presidential power, and the death
penalty.  

RR

Wydra and Gans on Privileges and Immunities, Incorporation, Second Amendment

I spoke this afternoon with Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, and David Gans, Director of the Constitutional Accountability Center's Human Rights, Civil Rights, and Citizenship Program, about their work on the Fourteenth Amendment Privileges or Immunities Clause, incorporation of the Bill of Rights, and the Second Amendment.

The full interview is here.  (24 minutes, mp3 file.)

I've covered the CAC's excellent work on these issues here, here, and here.  Wydra and Gans filed an amicus brief in NRA v. City of Chicago, the Seventh Circuit's decision last week declining to apply the Second Amendment to the states.  (My post is here.)  Gans and CAC founder and President Doug Kendall wrote The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. 

Their argument--that the Privileges or Immunities Clause of the Fourteenth Amendment incorporates fundamental rights--has been very much in play in the three circuit court cases since D.C. v. Heller on Second Amendment incorporation.  One issue I was particularly interested in: How does incorporation under the Privileges or Immunities Clause change the landscape for fundamental rights protection against the states?  Answer: Listen to the interview, or see below.

Here are some highlights:

On the Gem:

Gans: The story of the Gem and of the Privileges or Immunities Clause is that this was the center piece of the Fourteenth Amendment and was designed to be the place where the constitution protected substantive fundamental rights against state incursion.  The name comes from one of the framers, who said the Fourteenth Amendment is going to be the Gem, because it puts the Declaration of Independence in the Constitution.  The idea was that the inalianable rights mentioned in the Declaration would be protected against the states in the Gem, and it would embody those protections of liberty and equality that had been flagrantly violated in the years leading up to the Civil War.  Sadly the Supreme Court in the 1870s wrote the Privileges or Immunities Clause out of the constitution in the Slaughterhouse Cases and left it to protect a very narrow set of rights and excluded from the protection all the substantive fundamental rights that we view as the heart of liberty.  And so the mission of the Gem was to show the framers’ vision that the Privileges or Immunities Clasue was meant to protect substantive fundamental rights, including both rights that were explicitly enumerated in the Bill of Rights and a pretty wide set of rights that were viewed as fundamental but weren’t specifically enumerated . . . and to show how Slaugeterhouse decimated this original meaning of the Privileges or Immunities Clause.   

On Second Amendment Incorporation: 

SDS: And so does that mean that the Privileges or Immunities Clause is a cleaner vehicle for incorporation . . . and if so by what standard do we measure incorporation under the Privileges or Immunities Clause?

Wydra: [The Second Amendment cases are] possibly one of the cleanest cases for incorporation under the Privileges or Immunities Clause because we have such clear and voluminous history that shows that the framers of the Fourteenth Amendment were particularly concerned that one of the privileges or immunities of citizenship that the new amendment would be protecting would be the individual right to keep and bear arms against state infringement.  And the history shows, as we set  forth in our amicus brief [in the Seventh Circuit case], that this desire to protect the right to bear arms for individuals in the wake of Reconstruction was motivated in large part because the framers of the Fourteenth Amendment wanted to make sure that the newly freed slaves and their northern allies would have the means to protect themselves, their families and their property against the former rebel militias in the South, which were attempting to disarm freedman and unioinists and perpetuating violence against them.  This is why we feel like the Second Amendment cases really do present a unique opportunity to get the scholarly consensus and work that we’ve set forth in the Gem before the Court and hopefully try to put the court’s Privileges or Immunities jurisprudence back on the right track . . . that the court takes this opportunity to right the wrongs of Slaughterhouse.

 

On Fundamental Rights Incorporation:

 

SDS: And so you’ve argued, as I understand your argument, that the rights in the Bill of Rights are incorporated or ought to be incorporated via the Privileges or Immunities Clause.  What additional rights then would be incorporated that perhaps the court has found as a matter of due process or even that the court hasn’t found as a matter of due process?  What rights are we talking about here?

Gans:  the set of rights in many ways might stay the same [as under the Due Process Clause].  [T]he right to bodily integrity was very important . . . the right of personal security . . .  In terms of the so-called right to privacy cases protection of family integrity was hugely important to the framers partially because of the legacy of slavery marriage was impossible, families were destroyed, and making sure that the newly freed slaves were protected in those family rights was extremely important . . .  .

SDS: Fundamentally do you think individual rights practice and individual rights that are protected by the Fourteenth Amendment will change [if the Privileges or Immunities Clause becomes the vehicle for incorporation]?

Wydra:  The rights that are protected currently would only be strengthened, and we think that that is not insignificant; that is actually a very important development if the court were to restore the Privileges or Immunities Clause.  And perhaps just as important the court would be restoring a portion of our constitution that was intended to preserve substantive fundamental rights and would be giving power back to this important provision of our Constitution; and providing coherence to the constitutional rights protection is no small thing.  We think that it [would] help us ground discussions of [what unenumerated rights are protected] so that they will be productive. 

 

On Incorporation Standards under the Privileges or Immunities Clause:

 

SDS: What would we look to to determine what rights that are unenumerated the Privileges or Immunities Clause protects?

Gans: One . . . what counts as a fundamental right under history and tradition would be a relevant source.  Two, there’s a pretty rich history from reconstruction that informs it in terms of what are the rights that the framers of the Fourteenth Amendment cared about [e.g., the right to bear arms].  And you could make a similar point about uneumerated rights.  The value added in the Privileges or Immunities Clause is the idea that when you’re a citizen of the United States, that comes with a wide array of substantive rights--the rights to participate in society--and right now that’s lost.

 

On Citizenship:

 

SDS:  Using the Privileges or Immunities Clause of the Fourteenth Amendment is a validation of federal citizenship that seems to have been stripped away at the Slaughterhouse Cases and never really fully restore.

Wydra: Yes, I think that’s right, and it brings up an interesting point about the Seventh Circuit decision in this case where they raise a point at the end of the opinion about the principle of federalism trumping whatever individual right to keep and bear arms in self-defense that there might be.  The principle of federalism is extremely important, and one of the crown jewels of our constitutional order is this vibrant federalism, but the Fourteenth Amendment stands directly contrary to that argument.  The states are wonderful laboratories of democracy, but the Fourteenth Amendment stands for the proposition that certain fundamental rights are not subject to local experimentation, that they are protected by the federal government against state infringement.

 

SDS

Court denies cert. petition on "Don't Ask, Don't Tell" Military Policy

The United States Supreme Court issued its order today denying the petition for a writ of certiorari in PIETRANGELO, JAMES E. V. GATES, SEC. OF DEFENSE, ET AL., Case No. 08-824 (at page 6 of Order) which challenged the "don't ask, don't tell policy."   The First Circuit, Cook v. Gates, 528 F.3d 42, 103 Fair Empl.Prac.Cas. (BNA) 826 (1st Cir. 2008), upheld the policy against due process, equal protection, and first amendment challenges, ultimately deciding that

constitutional challenges presented in this case are all aimed at a federal statute regulating military affairs. Although the wisdom behind the statute at issue here may be questioned by some, in light of the special deference we grant Congressional decision-making in this area we conclude that the challenges must be dismissed.

One Judge on the three-judge panel, Saris, a district judge sitting by designation, dissented on the first amendment issue.  The petition for certiorari presented the following questions:

Whether 10 U.S.C. § 654 and its regulatory scheme (collectively “Don't Ask, Don't Tell”) violate due process, equal protection, and free speech.

Whether, even in the Military, the prejudice of group A against group B may be a legitimate basis for the government to deny equal benefits to group B. Specifically, whether the prejudice of heterosexual service members against homosexuals is a legitimate basis for the Government to exclude homosexuals from the Military.

Whether the District Court and the Court of Appeals improperly refused to hear plaintiffs' chill/overbreadth claim and their as-applied equal-protection claim.

However, it seems these questions will have to wait for another case - - - or perhaps executive and legislative action.  For our previous discussions of Don't Ask, Don't Tell, see here, here, and here. Interestingly, this denial is garnering more news coverage than the Caperton opinion issued by the Court today, discussed below.

RR

Due Process Requires Judicial Recusal: Caperton v. Massey Coal Analysis

The United States Supreme Court, in a 5-4 opinion issued today, has held that "in all the circumstances of this case, due process requires recusal."  The case involves Justice Brent Benjamin, now the Chief Justice of the West Virginia Supreme Court of Appeals (pictured below). 

As previously discussed here, the Court had certified the question as: 

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60% of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment.

The Court reversed the West Virginia Supreme Court in perhaps a predictable split given the oral argument (discussed here): KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined.  ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.  SCALIA, J., filed a dissenting opinion.

For the Court, Kennedy poses the issue as "“under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be ade­quately implemented,” citing Withrow v. Larkin, 421 U. S. 35, 47 (1975).   Applying that standard, he writes that "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case."

We con­clude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

Opinion at 14.  The Court  addresses the "floodgates" argument by reasserting that the facts before the Court are "extreme by any measure,"  Opinion at 17, but Roberts' dissenting opinion lists a series of 40 numbered issues (often with multiple questions) which illustrate both "floodgates" rhetoric and "slippery slope" rhetoric including:

(question 20) Does a debt of gratitude for endorsements by newspa­pers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias?  How would we measure whether such support is disproportionate? 

and

(question 34) What about state-court cases that are already closed? Can the losing parties in those cases now seek collat­eral relief in federal district court under §1983?  What statutes of limitation should be applied to such suits?

The Court's opinion reaffirms that due process establishes the minimum requirements and that state codes of judicial conduct may adopt more rigorous recusal standards, Opinion at 19.

RR

Sotomayor Resources through Library of Congress

The Library of Congress has a great resource on Sotomayor with great links here.

RR (with thanks to Bridget Crawford at Feminist Law Professors).

Constitutional Challenges as Facial or As-Applied: Robson's Saturday Evening Review

The Roberts Court has been less than favorable to facial challenges to statutes' constitutionality, preferring the more limited approach of an as-applied challenge to statutes' constitutionality. On this, both Luke Meier and Caitlin Borgmann agree.  And both consider the Roberts Court approach problematical.  However, they advance different solutions.

Luke Meier, in Facial Challenges and Separation of Powers, available on ssrn, forthcoming in Indiana Law Review, argues that "federal courts are constitutionally compelled to consider the constitutionality of a statute on its face when the power of Congress to pass the law has been challenged."  Relying primarily upon INS v. Chadha and Clinton v. New York, Meier contends the confused doctrine regarding facial vs. as-applied challenges should be inapposite whenever the challenge concerns power rather than infringements of rights.  As Meier notes, "the Supreme Court’s analysis in Chadha and Clinton were relied on by the American Bar Association’s Task Force on Presidential Signing Statements in condemning the practice of Presidential signing statements," in response to an increase of signing statements under President George W. Bush.  Meier extends this reasoning to judicial decisions:

the principles of Chadha and Clinton, standing alone, condemn the Court’s practice of invalidating particular applications of a statute as beyond Congress’s power. The essence of the Chadha and Clinton holdings is that the Constitution provides a very specific framework for the process of making laws which will govern the constituents’ conduct. This process involves various different political checks to ensure that various political viewpoints are represented. As a result of these various viewpoints being expressed, most legislation is the compromise of various competing interests. As the Court clearly stated in Clinton when considering the line-item veto, allowing the executive branch, pursuant to a line-item veto, to alter the product of this delicate balancing warps the “finely wrought” process delineated in the Constitution. A new law, the provisions of the statute which the President will enforce, is substituted for the old law, which was the statute as voted on by both Houses of Congress and signed by the President. There is no reason this principle should not apply with equal force to judicial activity under Article III as it does executive activity under Article II in executing the laws. When the Court, in a case such as [Tennesse v. ] Lane, [carves out a specific application of the Title II “reasonable accommodations” requirement, and presumably strikes down other applications of the law, it creates a new law, which was not passed by both Houses of Congress and was not signed by the President.

Id. at 28.  It is a compelling argument and certainly worth consideration.  However, as Meier admits, it addresses only a portion of the facial vs. as-applied problem.

Caitlin Borgmann, in Holding Legislatures Constitutionally Accountable Through Facial Challenges, available on ssrn, and forthcoming in Hastings Constitutional Law Quarterly, argues that the "traditional view of statutes as embodying constitutional and unconstitutional applications is unhelpful and misleading when such statutes deliberately or recklessly infringe individual rights."  Borgmann contends that the "The legislative process is an adversarial one that is not conducive to neutral fact-finding, especially when controversial or minority rights are at issue."  She concludes that

Laws that infringe individual rights out of open defiance of clear constitutional precedents, or because of inattention to the facts, are fundamentally flawed and thus prime candidates for total invalidation. Only the threat of complete invalidation in appropriate cases will motivate Congress and state legislatures to make good on their obligation to uphold the U.S. Constitution. And the Court will not make good on its own obligation to protect individual rights unless it once again embraces facial challenges.

Id. at 48.  Clearly, her argument applies not only to federal statutes, but to state statutes as well.  She also advocates a sort of sliding scale based implicitly (it seems to me) on equal protection principles:

The constitutional norms that call for decisive judicial action in the face of laws that unconstitutionally infringe important individual rights may warrant a different approach in the context of laws that are rights-protective. When the majority acts altruistically, that is, against its own interests or in order to protect rights, the courts‘ duty to protect individuals from majoritarian power is at its low ebb. The legislature is by definition not motivated by bias or hostility toward such rights, and there is little danger that a pretextual purpose will be offered to disguise animosity or prejudice toward an unpopular group. This may be true, for example, when Congress attempts to protect vulnerable or powerless individuals from state oppression.

Id. at 47.

Neither Borgmann nor Meier are the first to note issues with the Roberts Court's tendency to prefer the narrower as-applied challenge, and both engage with the substantial scholarship on the problem.  Offering different, but certainly compatible solutions, their articles are worth reading not only by scholars and students, but also by attorneys challenging a statute's constitutionality.

RR

Equal Protection Issue in NH Same-Sex Marriage Bill

Professor Tony Infanti over at Feminist Law Professors blog has noted that the new New Hampshire same-sex marriage bill signed into law this week does have a constitutional issue other than DOMA-type problems, which we discussed here.

The new law provides:

457:4 Marriageable. No male below the age of 14 years and no female below the age of 13 years shall be capable of contracting a valid marriage that is entered into by one male and one female, and all marriages contracted by such persons shall be null and void. No male below the age of 18 and no female below the age of 18 shall be capable of contracting a valid marriage between persons of the same gender, and all marriages contracted by such persons shall be null and void.

By providing different "age of consent" laws for entering into marriage with a person of one's same sex than with a person of the "opposite" sex, the state of New Hampshire is obviously making a classification subject to equal protection analysis. 

Such differential age requirements are not unknown in non-marriage contexts.  In the United States, some states have so-called "Romeo and Juliet" statutes which exempt from criminalization "statutory rape" cases in which the parties are close in age, but do not similarly exempt the parties if they are of the same-sex.   For an excellent recent article, see Michael Higdon, Queer Teens And Legislative Bullies: The Cruel And Invidious Discrimination Behind Heterosexist Statutory Rape Laws, 42 UC Davis L. Rev. 195 (2008), who discusses the most well known case, State v. Limon, 122 P.3d 22, 24 (Kan. 2005), as well as other cases and statutes.   And in other nations, the decriminalization of homosexual sodomy often left intact differential age of consent statutes - the higher age required for same-sex activity.

It will be interesting to see if the NH age differential will be challenged.

RR

Spending Clause, Unconstitutional Conditions, and Women's Health

What will health care reform mean for women?  If spending clause jurisprudence remains the same, the net result might be (further) infringement on women's constitutional rights.  

Nicole Huberfeld, a scholar and conlawprof who teaches and writes in both constitutional law and health care (including health care finance), has authored a new article which argues there is a "disconnect" between individuals (especially women) and the spending programs intended to benefit them.   Conditional Spending and Compulsory Maternity is available on ssrn and forthcoming in Illinois Law Review.

Huberfeld argues:

South Dakota v. Dole facilitated a disconnect that analytically separates the individual from the conditional spending program, a divide that has allowed Congress to impinge on individual rights when it could not otherwise do so using other enumerated powers. At a micro-level, the Court’s decisions have allowed government to burden the privacy right to obtain abortion by withholding funds in public healthcare programs. At the macro level, the power to place conditions on spending has created an end-run that has been quite successful, as exhibited by the multiple pure funding statutes and conscience clause funding statutes that result from the Court’s decisions in McRae and Maher. . . .

Currently, underlying doctrines such as the greater includes the lesser theory and the positive/negative rights theory tend to ignore the reality of the modern government, which wields influence through benefits. . . . . for now at least, the Dole test can facilitate drawing such boundaries if all of its elements are actively analyzed by the Court. The current focus on the federal-state relationship does not protect individuals in federal healthcare programs, nor does it particularly protect states. Though individual rights have not appeared to be particularly important to the majority of the Roberts Court, protecting the states through active federalism doctrine may be. . . . .  Congress can change this trend, in a microcosm, by eliminating the Hyde Amendment and other pure funding statutes as well as by balancing conscience clause funding statutes. Conscience clause funding statutes in particular would become potentially unconstitutional under a revitalized Dole regime, as the ability to affect private-pay patients through federal spending truly pushes the envelope of the spending power.

Huberfeld's analysis of Dole is especially compelling; it would be helpful to students looking at applications of Dole.  Her conclusion that the Roberts Court would be less friendly to constitutional challenges than Congress will be to eliminating limits on funding statutes remains to be seen.

RR

DOMA is unconstitutional says Larry Tribe

Quoting Larry Tribe, Con Law Prof, Huffington Post reports that Tribe has stated:

"I certainly agree (a) that Section 3 of DOMA is unconstitutional, at least as applied to couples like those who are currently challenging it in federal court here in Massachusetts.... I'm not at all reluctant to have it known that I think the equality component of the Fifth Amendment's Due Process Clause forbids the federal government to deny same-sex spouses benefits identical to those that it would grant to opposite-sex spouses when the spouses are "married" under the law of their state -- that is, when the spouses were married and reside in states where the law forbids a distinction between same-sex and opposite-sex marriage and rejects the DOMA definition of 'marriage.'"

The HuffPo piece by Emma Ruby-Sachs notes that Tribe "hired Obama as a research assistant in his first year of law school."   The implication is that Obama is influenced by his former conlawprof?  One might also look at Professor Obama's 1996 Con Law exam "feedback" regarding a lesbian issue, discussed here. 

The DOJ has until June 29 to decide whether or not to defend the DOMA challenge, discussed here.  The federal government's stance on the lawsuit is being closely watched.  Obama is being criticized for not keeping his campaign promises to LGBT Americans.  Obama's most recent statement on LGBT issues, blogged here, is also being criticized as insufficient as well as too radical. 

DOMA was signed by then-President Bill Clinton in 1996 (pictured below).

RR

Judge Richard Arnold Biography

Polly Price's biography of Judge Richard Arnold of the Eighth Circuit Court of Appeals (1980 - 2004) has just been published, introduction available on ssrn.

Price describes her book's subject thusly: "As a college student in the 1950s, Arnold had deep misgivings about Brown v. Board of Education as a constitutional matter. Yet he would later preside over the Little Rock school desegregation cases with a firm commitment to federal protection of civil rights and institutional reform. In this book I examine desegregation and other pressing federal court issues in the closing decades of the twentieth century, including the death penalty, abortion, free speech, and voting rights."

The Judge's work drew praise from both Justice Ginsburg (who wrote the book's forward) and Justice Scalia.   The examination of the work of federal appellate judges (as well as federal trial judges) needs more examination and this book looks to be an excellent contribution.

RR

Supreme Court Justice Ideological Profiles

Calculating ideologies is an occupation (some might say an occupational hazard) of political scientists.  According to well known political scientists Andrew Martin and Kevin Quinn, on their website here,

Measuring the relative location of U.S. Supreme Court justices on an ideological continuum allows us to better understand the politics of the high court. In addition, such measures are an important building blocking of statistical models of the Supreme Court, the separation of powers system, and the judicial hierarchy.

Their  "The Ideological History of the United States Supreme Court, 1937 - 2007," provides a graphic representation (with some interactive features and downloadable) of their analysis of the "liberal" and "conservative" ideologies of United States Supreme Court Justices. 

Who is the bluest (most liberal) judge? 

Who is the reddest (most conservative) judge?

There is also a link to a video analysis of "Souter's Leftward Drift."

Of course, for some Constitutional Law Professors, the ascription of "liberal" and "conservative" ideologies and outcomes is not easily reducible to numbers.  While there may be a more-or-less agreed upon assignment of conservative/liberal ideologies in a case such as Roe v. Wade, other cases on the website's timeline such as Boy Scouts of America v. Dale and Kelo v. City of New London may be subject to more dispute. 

RR

Sotomayor's Responses to Senate Judiciary Committee Questionaire

Sotomayor's answers to the "Questionnaire for Judicial Nominees" is available on the United States Senate Committee on the Judiciary here.  It's 173 pages, not including the numerous appendices. It provides a wealth of information for Sotomayor researchers.

For example, question 11c (page 15 of the Questionnaire) states:

List all conferences, symposia, panels, and continuing legal education events you have attended after having been confirmed to the district court. For each event, provide the dates, a description of the subject matters addressed, the sponsors, and whether any funding was provided to you by the sponsors or other organizations.

Sotomayor provides a thirty page chart of her activities - - - it seems she judged a great number of moot court competitions at NYC area law schools.   Another question seeks copies of all "speeches or talks delivered by you, including commencement speeches, remarks, lectures, panel discussions, conferences, political speeches, and question-and-answer sessions."  Sotomayor provides these in the appendices, including another chart of her various talks.

Question 13 seeks citations and information about her judicial decisions.  There is a voluminous list and details, with one of the more interesting aspects being her choice of the ten "most significant" opinions and her descriptions.

Question 26 provides a window into the nomination process.  When asked to "Describe your experience in the entire judicial selection process, from beginning to end (including the circumstances which led to your nomination and the interviews in which you participated) . . . ." Sotomayor responds:

I was contacted by Gregory Craig, White House Counsel, on Monday, April 27, 2009, with respect to the possibility of a future Supreme Court vacancy. Between that date and the present, I have had frequent telephone conversations with Cassandra Butts, Deputy White House Counsel, including near daily phone calls after Justice Souter on May 1, 2009 announced his intention to resign at the end of the current Supreme Court term. On May 14, 2009, I was interviewed in person at my office by Leslie Kiernan, an attorney at Zuckerman Spaeder LLP. I was interviewed by telephone on Saturday, May 16 by Gregory Craig, Cynthia Hogan, Counsel to the Vice President, Ron Klain, Chief of Staff to the Vice President, David Axelrod, Senior Advisor to the President, Daniel Pfeiffer, White House Deputy Communications Director and Cassandra Butts. I was interviewed on Thursday, May 21, 2009 by members of the Administration including Gregory Craig, Cassandra Butts, Associate Counsel to the President Susan Davies, Chief of Staff Rahm Emanuel, David Axelrod, Ronald Klain, and Cynthia Hogan. Finally, I was interviewed by the President on May 21, 2009, and by the Vice President by telephone on Sunday, May 24, 2009. I have also had numerous phone conversations with different groupings of the individuals listed above. Other individuals have at times participated in these conversations, including Trevor Morrison, Associate Counsel to the President, Alison Nathan, Associate Counsel to the President, and Diana Beinart, Tax Counsel.

RR

Warrantless Wiretapping Case Dismissed, Appeal Planned

Judge Vaughn R. Walker (N.D. Cal.) yesterday dismissed the plaintiffs' claims in the consolidated cases against telecommunication providers for cooperating in the Bush administration's warrantless wiretapping program based on a section of the FISA Amendments Act of 2008 that grants immunity to private telecoms from civil liability for assisting in the program.

In dismissing the case, Walker rejected the plaintiffs' several constitutional arguments that the immunity provision violated separation-of-powers principles, the First and Fourth Amendments, and due process.

Strongest among these was the claim that the immunity provision violated the nondelegation doctrine.  Plaintiffs argued that the immunity provision granted the Attorney General unfettered discretion in determining which cases to dismiss--that the Act lacked an "intelligible principle" to guide the AG's exercise of authority.  See Whitman v. American Trucking Assn, 531 U.S. 457, 473-74 (2001) (holding that the Clean Air Act's directive to the EPA to set air quality standards at a level "requisite to protect public health from the adverse effects of the pollutant in the ambient air" was "well within the outer limits of our nondelegation precedents" and provided a sufficiently "intelligible principle" for the agency).  (The immunity provision here prohibits civil actions when the AG "certifies" that a defendant-telecon cooperated, but the Act doesn't provide standards for the AG in exercising discretion to file in any particular case.)

Walker rejected the nondelegation argument, Slip Op. at 20-33, writing that the immunity provision "is not a broad delegation of authority to an administrative agency like the Clean Air Act or the Sentencing Reform Act; rather, its subject matter is intentionally narrow or 'focused' in scope."  Slip Op. at 32.  Moreover, "no form of rulemaking is at issue," and "'the shared responsibilities of the Legislative and Executive Branches in foreign relations may permit a wider range of delegations than in other areas.'"  Slip Op. at 33 (quoting Owens v. Republic of the Sudan, 531 F. 3d 884, 893 (D.C. Cir. 2008)). 

Despite upholding the immunity provision, Walker's ruling reflected concern with its scope.  On

[The immunity provision] appears to be sui generis among immunity laws: it creates a retroactive immunity for past, completed acts committed by private parties acting in concert with governmental entities that allegedly violated constitutional rights.  The immunity can only be activated by the executive branch of government and may not be invoked by its beneficiaries.  [The provision] also contains an unusual temporal limitation confining its immunity protectiosn to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007.

Slip Op. at 10.  And on nondelegation:

Congress could in this manner have included language in [the immunity provision] specifically directing the Attorney General to undertake review and to submit to the court the specified certifications.  The absence of a congressional charge to the Attorney General in [the immunity provision] is all the more surprising for the fact that numerous other provisions of [the Act] contain directives to the Attorney General and other agency heads . . . .

Slip Op. at 31.

Walker dismissed the case without prejudice, because the immunity expired on January 7, 2007, and left the door open for an amended complaint (albeit with a higher pleading standard):

The court believes that the Attorney General has adequately and properly invoked [the immunity provision's] immunity to the extent that the allegations of the master consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007.  The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-more-stringent pleading standards applicable in federal courts (see, e.g., Ashcroft v. Iqbal (citation omitted)), to allege causes of action not affected by the Attorney General's successful invocation of . . . immunity.

The Electronic Frontier Foundation and the ACLU have already said they'll appeal to the Ninth Circuit.

Neither Walker's ruling nor the immunity provision should affect the companion suit against the government, Jewel v. NSA, because immunity only extends to private telecoms.  (I discussed the state secrets privilege in that case, with links to the pleadings, here.)

NH same-sex marriage becomes law

New Hamphsire Governor John Lynch has  just signed a bill into law allowing same-sex marriage in the state.  The article from the NH Union-Leader has links to the language of the bills.

As a legislative act, there are no obvious constitutional issues.  However, given that NH is the sixth state to recognize same-sex marriage - - - or perhaps the sixth "and a half" if one not only counts  Massachusetts, Maine, Vermont, Iowa, Connecticut, but also the same-sex couples in California whose marriages are recognized - - - there are increasing issues regarding federalism and full faith and credit.  The federal DOMA is already being challenged by same-sex couples in Massachusetts discussed here, and there is substantial scholarship about possible constitutional challenge discussed here.

And, for what it is worth, former vice-President Dick Cheney has been giving his opinion that same-sex marriage should be allowed as a matter of state law.

RR

Sotomayor Resource

Those doing research might find a new website advocating for Sotomayor helpful:  http://sotomayorforjustice.com.
 

RR