Constitutional Law Prof Blog

Judge Rules Al Odah Detainable

Judge Kollar-Kotelly (D.D.C.) ruled last week that the government met its burden of proving that Fawzi Khalid Abdullah Fahad Al Odah is lawfully detained under the standard proffered by the Obama administration as modifiedby the D.C. District.  The court just released Judge Kollar-Kotelly's unclassified memorandum opinion today.

The case is perhaps most notable as the oldest of the pending Guantanamo habeas cases.  Al Odah filed his habeas petition on May 1, 2002, over six years before the Supreme Court ruled in Boumediene v. Bush that the privilege of habeas extended to detainees at Guantanamo Bay.

Consistent with the plurality's ruling in Hamdi v. Rumsfeld, Judge Kollar-Kotelly granted the parties' motion to rely on hearsay evidence, but denied the government's motion "to have its evidence admitted with a presumption of accuracy and authenticity."  And consistent with Judge Bates's ruling earlier this year, she partially adopted the government's definition of its detention authority, ruling out that portion of its proffered definition that would have allowed it to detain individuals who only "substantially supported" enemy forces or have "directly supported hostilities" in aid of enemy forces.

From the Conclusion:

Upon consideration of the entire record, the Government has submitted evidence showing that some individuals traveled to Afghanistan using the same route as Al Odah and that they were traveling to Al Farouq; that AK-47 training was an early part of the Al Farouq training program; that Al Farouq was evacuated shortly after September 11, 2001, when trainees were sent north toward Kabul, Jalalabad, or the Tora Bora mountains; and that the individual who transported Al Odah from the Afghnistan-Pakistan border to a camp outside of Kandahar was likely a trainer at Al Farouq.  Through Al Odah's admissions, the Government has also submitted evidence that Al Odah was brought to a camp outside of Kandahar (where Al Farouq was located) on or around September 10, 2001; that he received on day of training on an AK-47; that he was shortly thereafter evacuated and directed to travel north to Logar (a province just south of Kabul); and that he eventually traveled to Jalabad and the Tora Bora mountains.  In contrast, Al Odah has identified evidence in the record suggesting that the description Al Odah provided to an interrogator of the camp that he visited did not match the physical description of Al Farouq.  After weighing all of the evidence in the record, the Court finds that the camp to which Al Odah was transported by [redacted] was more likely than not Al Farouq.  When this evidence is considered in the context of Al Odah's travel north at the direction of [redacted], and Al Odah's subsequent activities described above, the Court finds that it is more likely than not that Al Odah became part of the forces of the Taliban and al Qaeda.

SDS

Beauty and Equality: Saturday Evening Review

Appearances are not merely a matter of aesthetics, but also of law and politics.  That's the argument of Deborah Rhode in The Injustice of Appearance, 61 Stanford Law Review 1033 (2009).

 

After documenting the emphasis on attractiveness, including matters of weight, Rhode tackles the legal arguments.  She states that the "clearest argument for banning discrimination based on appearance is that it offends principles of equal opportunity and individual dignity."  Id. at 1048.  Additionally, another

reason for prohibiting discrimination based on appearance is that it reinforces group disadvantages. As constitutional scholars including Cass Sunstein and J.M. Balkin have argued, practices that systematically stigmatize and subordinate groups prevent members from developing their full capacities. The perpetuation of hierarchies also jeopardizes perceptions of fairness and legitimacy on which well-functioning democracies depend. Like many other forms of discrimination, prejudice based on appearance compounds the disadvantages of already disadvantaged groups, particularly those based on class, gender, race, ethnicity, disability, and sexual orientation.

Id. at 1052.  Her third and final rationale supporting the argument for prohibiting appearance discrimination is "that it restricts individuals’ right to self-expression."  Id. at 1058.   One of her arguments refuting criticisms is that there is an

assumption that prejudice based on appearance is more natural and harder to eradicate than other forms of bias. In fact, considerable evidence suggests that in-group favoritism—the preferences that individuals feel for those who are like them in salient respects, such as race, sex, and ethnicity—are also deeply rooted.  Plessy v. Ferguson, the shameful 1896 Supreme Court decision that affirmed “separate but equal” racial policies, was built on the assumption that segregation was a natural desire. Yet that desire has proven open to change, partly through legal interventions. A half-century ago, a majority of Americans surveyed thought that the Supreme Court’s ruling in Brown v. Board of Education prohibiting school segregation had “caused a lot more trouble than it was worth.” Today, only 11% share that view and  the ruling is widely regarded as one of the Court’s finest moments.

Id. at 1069-1070 (citations omitted).  Rhode's point is that law can affect societal change (and she provides other examples).  She is not arguing that appearance should be a suspect or even quasi-suspect classification for equal protection purposes.  However, she does provide a concluding section on "Directions for Reform," including a research agenda and calls for activism, including state and local action.

I first saw a mention of this article on Feminist Law Professors in an entry from Ann Bartow.  Thanks to Ann, I've read an engaging thought-provoking piece.  And it might even be the basis of a Constitutional Law hypothetical in next week's class.

RR 

Congressional Participation in the Reagan Centennial Commission

The Office of Legal Counsel recently posted its April 21, 2009, analysis and advice on the question whether congressional seats on the Ronald Reagan Centennial Commission violated the Appointments Clause, the Ineligibility Clause, and separation of powers.  The memo itself is unremarkable, but its analysis is reflected in President Obama's signing statementon the Act, specifically disavowing the Act's plain intended role for congressional members of the Commission. 

If ever a signing statement were appropriate, this may be it.  The statement is plain and transparent.  The President reported his objections to Congress.  The statement promotes the congressional purposes of the Act, while carefully carving out its obvious constitutional problems.  And given the nature of the Act, nobody is likely to object. 

But still, the timing of the OLC opinion (after House passage, but before the first reading in the Senate--presumably with time to amend the Act, as recommended by the OLC) raises the core question about Presidential signing statements: Should a President unilaterally rewrite portions of legislation that passed both houses of Congress?

The Commission, established by Pub. L. 111-25 and which includes members of Congress appointed by congressional leaders, shall

(1) plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;

(2) provide advice and assistance to Federal, State, and local governmental agencies, as well as civic groups to carry out activities to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;

(3) develop activities that may be carried out by the Federal Government to determine whether the activities are fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth; and

(4) submit to the President and Congress reports [on the Commission's activities].

The OLC opined that Commission members are "officers," and that congressional appointment therefore violates the Appointments Clause.  And because congressional members would be both members of Congress and officers "under the Authority of the United States," the Act violated the Ineligibility Clause.  Finally, congressional members would have important executive functions under the Act--a violation of the anti-aggrandizement principle.

OLC recommended amending the Act to give the Commission authority merely to advise and recommend activities to an executive officer--a plain and simple recommendation before the bill even received its first reading in the Senate.  But the OLC's suggestion did not work its way into the final version passed by both houses and signed by the President.  Instead, the President, President Reagan's signing statement on a similar commission in 1983, wrote,

I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibiliity Clauses of the Constitution.

The statement is transparent, pragmatic, even quite useful in promoting the broader goals of Congress in creating the Reagan Commission.  But it also perpetuates the practice that a President can unilaterally rewrite legislation merely by claiming a constitutional objection upon signing.

SDS

Administration to Continue Extraordinary Renditions

The Obama administration plans to continue to use extraordinary renditions but pledges to monitor them closely to ensure that the rendered aren't tortured, reportsthe NYT.

But if the administration has its way, we'll never know if rendered detainees are tortured, or whether they're rendered at all.  That's because the administration has adopted the Bush administration position in the extraordinary rendition cases that the state secrets privilege prevents the courts from hearing claims by formerly rendered plaintiffs.  Under the administrations' view, the courts must dismiss these cases on the complaints, because the government can't even acknowledge the existence (or not) of the program.  The Obama administration reiterated this position in the Ninth Circuit case Mohammed v. Jeppesen Dataplan and challenged the panel ruling rejecting its claim.  That challenge is now pending.  (More here.)

The statement by administration officials that the Obama administration will continue the program seems to fly in the face of its assertions before the Ninth Circuit that the program is so secret that it cannot even answer a complaint.

The statement came the same day that AG Eric Holder appointed a prosecutor to examine CIA abuses of detainees, as described in the just released 2004 CIA Inspector General's report.  Holder is apparently interested in pursuing only those who acted outside of the OLC's legal advice (which itself gave a broad license to interrogators). 

SDS

Jawad Released from Guantanamo, Transferred to Afghanistan

The U.S. Department of Justice announced today that the government transferred Mohammed Jawad from Guantanamo Bay to Afghanistan.  At the time of his detention, Jawad was the youngest detainee at Guantanamo.  The government held him for over seven years before he got caught between the Bush administration's military commission system and the Obama's administration's efforts to revamp it.  Last month, Judge Huvelle (D.D.C.) lambasted the government for its treatment of Jawad at a hearing in his habeas case.  (I posted on the extraordinary hearing here.)  Most recently, the government filed a notice that it would no longer treat Jawad as detainable.

SDS

Miller's Legal Educator Blog Census

Professor Colin Miller (John Marshall, Chicago) recently posted his 2009 Legal Educator Blog Census on the Evidence Prof Blog.  Miller's Census picks up where Prof. Daniel Solove (GW) left off and tell us "which legal educators are blogging and where the blogosphere is headed."  Check out this excellent resource.

SDS

Thinking Pegagogy: Saturday Evening Review

As many of us prepare for the start of a new semester, we are thinking about pedagogy in our courses and our institutions.  One article on the "must read" list for any professor taking the pedagogical project seriously is Morrison Torrey's contribution to a recent Symposium in Harvard Civil Rights-Civil Liberties Law Review entitled Radical Proposals to Reform Legal Pedagogy.   Torrey's "radical proposal" is the title of her article: Actually Begin To Satisfy ABA Standards 211(A) and 212(A): Eliminate Race And Sex Bias in Legal Education.

To this end, Professor Torrey (pictured above), has some concrete suggestions, including the physical space of the classroom itself:

Make classrooms welcoming. Every large, first-year classroom that I have ever been in has portraits of old, white men hanging on the walls. What exactly is the message being conveyed beyond the fact that “success” is for old, white men? What did the men in the portraits actually accomplish? Did they use the law to make the world a better place?

She also suggests that law schools

Require a first-year course that is centered on issues of subordination and privilege. All students, not just a self-selected few, must be exposed to critical exploration of equality and the role the law plays in challenging or perpetuating discrimination.

For those of us who teach Constitutional Law in the first year, certainly the ConLaw course might fulfill her prescription.  Moreover, she writes that "all teachers should be encouraged to address race and gender issues in all of their classes," a suggestion that seems easy (and perhaps inevitable?) in Con Law. 

Additionally, Professor Torrey has two suggestions worth considering as ConLaw Profs think about our teaching: eliminating the so-called "Socratic Method" for class "discussion" AND providing interim feedback.  

Torrey's brief article, available at 43 Harv. C.R.-C.L. L. Rev. 615 (2008), could spur some reconsideration by experienced ConLaw Profs and provide some innovative ideas for new professors.  Certainly, not everything Torrey recommends is within the power of individual professors, including eliminating grades or the sequencing of courses.  However, the article - - - as well as the other articles in this Symposium issue - - - make worthwhile reading as we prepare to enter our classrooms again.

RR

CALI Lessons for Constitutional Law

Preparing your syllabus?  Don't forget to consider adding or mentioning CALI - - - the Center for Computer-Assisted Legal Instruction - - - lessons to your course. 

For example, there is a new lesson that might be appropriate to kick-off the semester on everyone's favorite case, Marbury v. Madison (full disclosure: I am the author), as well as many other topics to engage students in interactive learning throughout the course.

The CALI website has moved and is now at: http://www.cali.org.  There is a Constitutional Law section, but depending upon a particular syllabus, topics in Federal Courts might also be relevant.

RR

New York: Lt-Governor Appointment Unconstitutional

A New York appellate court has just ruled that Governor Paterson's appointment of Richard Ravitch as Lieutenant-Governor is unconstitutional.   (For background on New York's state constitutional turmoil, see our previous discussion here).  

In Skelos v. Paterson, available here, the Appellate Division, Second Department, succinctly stated the issue as "whether the Governor has the authority, acting entirely on his own, to select and appoint an otherwise qualified individual to fill a vacancy in the office of the Lieutenant-Governor."  The court concluded that "the Governor simply does not have the authority to appoint a lieutenant-governor, that his purported appointment of Mr. Ravitch cannot be reconciled with an unambiguous and contrary provision in the State Constitution, and that no considerations of the State's financial difficulties or of political strife in the Senate allow us to find authority for Mr. Ravitch's appointment where none exists."  (Opinion at 9).  This result is not surprising given the reports from the oral arguments, as in the New York Times yesterday here.

The court's state constitutional analysis was relatively brief:

Section 3 of article XIII of the State Constitution provides in pertinent part that "[t]he legislature shall provide for filling vacancies in office." Pursuant to that authority, the Legislature enacted Public Officers Law §§ 41, 42, and 43. Section 41 authorizes the Legislature to appoint a person "to fill" a vacancy in the office of Attorney General or Comptroller. Section 42 provides for the filling of vacancies in certain other offices, with a specific exception for the "offices of governor or lieutenant-governor" (Public Officers Law § 42[1]). The Governor here relies entirely on Public Officers Law § 43 which, as a catch-all provision, reads in pertinent part: "If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election." The plain language of this statute indicates that the vacancy in the elective office in question is to be "filled," not by a gubernatorial appointment, but "by an election," and that the Governor's appointee merely "execute[s] the duties [of the vacant office] . . . until the vacancy [is] . . . filled." Thus, Public Officers Law § 43 does not authorize the Governor to fill a vacancy, but only to appoint a person to execute the duties of the vacant office until the vacancy is filled by election. Public Officers Law § 43, therefore, provides no authority for the Governor's purported appointment of Mr. Ravitch to fill the office of lieutenant-governor. Moreover, the statute cannot be constitutionally applied even to support an appointment of Mr. Ravitch to execute the duties of the office of lieutenant-governor. 

Article IV, section 6, of the Constitution provides that, where a vacancy occurs in the office of lieutenant-governor, "the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy." Thus, under the Constitution, until the vacancy in the office of the lieutenant-governor is filled, the temporary president of the Senate is charged with the responsibility of "perform[ing] all the duties of lieutenant-governor" (NY Const, art IV, § 6). "Executing" the duties of the lieutenant-governor, as provided in the statute, cannot mean something different from "performing" the duties of the lieutenant-governor, as provided in the Constitution. It could not have been within the contemplation of the drafters of the Constitution and the statute that, upon a vacancy in the office of the lieutenant-governor, there would be two caretakers—one, the temporary president of the Senate, who would "perform" the duties of the office, the other, an appointee of the Governor, who would "execute" the duties of the office.

In our view, therefore, Public Officers Law § 43 cannot be constitutionally applied with respect to a vacancy in the office of lieutenant-governor because it does not authorize the Governor to fill the vacancy and it would permit an appointee of the Governor to do what the Constitution mandates be done by the temporary president of the Senate. 

The court gave Governor Paterson (pictured below) leave to appeal, and certified the question to the New York Court of Appeals (NY's highest court). 

Thus, New York's state constitutional turmoil and political uncertainty enters a new phase.

RR

New Comparative Con Law Blog

The U.S. Institute of Peace and the Comparative Constitutions Project recently launched their new Comparative Constitutions blog, available at www.comparativeconstitutions.org.  According to their announcement,

The blog will feature regular content covering new developments on comparative constitutional issues around the world.  There will be regular coverage of and commentary on new articles, publications, and events on comparative constitutional themes, and contributors will provide insight into major developments around the world--from Afghanistan to Zimbabwe.

The Comparative Constitutions blog is part of a larger web-site project, ConstitutionMaking.org, which collects an impressive array of materials on comparative constitutionalism and constitutional design.

The blog is already quite active.  Take a look.

SDS

Rove and Miers to Testify Publicly?

House Judiciary Committee Chairman John Conyers intends to call on former Bush administration officials Karl Rove and Harriet Miers to testify publicly before the Committee this fall regarding the politicized firing of U.S. attorneys, reports Jason Leopold of The Public Record.

Conyers just last week released transcripts of Rove's and Mier's private interviews with the Committee, conducted in June and July, and related documents.  The transcripts and documents, including scores of e-mails, provide an unprecedented look at the processes that led to the firings.

Conyers's call for public testimony, and Rove's and Mier's expected refusal, would reopen the dispute about Rove's and Mier's claimed immunity and the Committee's contempt case against them.  (Recall that the Committee filed for contempt after Rove and Miers refused to comply with subpoenas.  The parties agreed to stay the litigation "until at least the completion of the [private] interviews.")  The agreement between the Committee and Rove and Miers starts on page 4 of Rove Exhibit 1.

We previously posted on the dispute here, here, and here.

SDS

State Constitutions and Health Care: Saturday Evening Review

Close to a third of state constitutions include a reference to health, yet as Professor Elizabeth Weeks Leonard of University of Kansas observes, there is little scholarly attention paid to health and health care under state constitutions.  In her article, State Constitutionalism and the Right to Health Care, posted on ssrn available here, Leonard first situates her subject in the federal constitutional landscape; she concludes that the "U.S. Constitution, in text, purpose, structure, and policy provides little support for a federal health care right" (at 21), but also concludes that federalism allows states much leeway with regard to health rights.   She focuses on seven states: Michigan, New York, North Carolina, Mississippi, South Carolina, Montana, and New Jersey.  In addition, she considers what she calls "trends" focusing on both vulnerable groups (mentally ill, indigent, and imprisoned populations), as well as specific types of health (including environmental health and abortions).   Her two appendices are a great source of information on state constitutional provisions and provide a quick overview.

 

Leonard does not conclude that state constitutions are necessarily the source of rights to health and health care.   In her "prescription" section, she is very pessimistic about the possibility of "universal" health care under either state or federal models, even as she notes that the Massachusetts health insurance reform "now serves as a comprehensive model for federal reform" (at 69).   She contends that

Health is central to state governance, whether it is explicitly recognized in the constitution or inextricably intertwined with other state laws and values.  Therefore, ardent advocates of health care rights should not be troubled by the absence of constitutional guarantees of health in the U.S. or separate state constitutions.  The multiple deficiencies in the country’s health care system to provide essential health care to individuals inevitably will, and already are, receiving attention.  Exactly how those concerns will be addressed can only benefit from the views of the public, expressed through their state constitutions.

(at 71).   As an overview of the right of health and health care under the federal and state constitutions, Leonard's article makes a timely contribution.  ConLawProfs could certainly use this article as the basis for a teaching unit or problem (or even exam question) in a constitutional law or state constitutional law course.

RR

Secret Lives of SCOTUS Justices?: Saturday Evening Review

Not yet updated to reflect the newest SCOTUS Justice, Secret Lives of the Supreme Court, published in 2009 and subtitled "What Your Teachers Never Told You About America's Legendary Justices," is a bit too scattered for engrossing beach/cabin/summer reading, but suitable for forays while waiting for a ferry or an airplane - - - and anticipating the start of the academic year. 

There are moments of judicial interpretation in Secret Lives, none of which would be startling to a conlaw prof or good student, and passages of political intrigue, most of which are familiar.  Yet I'll admit I somehow missed Chief Justice Burger's views on the Second Amendment, voiced in a 1991 interview: he believed the Second Amendment was a "fraud, I repeat the word fraud, on the American public" and despite his supposed law and order orientation, advocated for strict gun control laws (p. 174). However, such insights are obviously not the point of a book entitled Secret Lives.  As advertised, the largest share of the book concerns the more personal predilections of the justices.   

The historical material does put some of our present notions into perspective.  A Justice who probably suffered from Alzheimers?  A Justice who flubbed the administration of the Presidential oath?  A Justice who was rumored to be gay?  A Justice believed to be the "most devout Catholic" ever to sit on the Court?  According to this book, the answers are not (only?) members of the Rehnquist or Roberts Courts. 

For those interested in more contemporary matters, it might be worthwhile to know that Rehnquist's name translates to "reindeer twig" in Swedish and that Roberts seems to have disliked recently deceased pop-icon Michael Jackson.  And if you want to know Scalia's favorite pizzeria, Kennedy's favorite Shakespeare play,  Ginsburg's favorite mystery authors, and Breyer's favorite "old-time radio program" as well as Stevens' daily lunch and Thomas' cars and vanity license plate, then this is certainly a book worth a look.

In the next edition, one presumes there will be unexpected revelations about Sotomayor.  Perhaps we will finally learn her favorite ice cream flavor; a detail the confirmation hearings seemed to have neglected.

RR