Constitutional Law Prof Blog

Second Amendment Incorporated Against the States?

The United States Supreme Court has granted certiorari today on the question of whether the Second Amendment should be incorporated against the states, a question left open by D.C. v. Heller.

UPDATE: NYT article here; WaPo article here.

The case is McDonald v. Chicago.  The Seventh Circuit opinion, authored by Judge Easterbrook, is worth reading in full.  It's not widely available and so is reproduced here:

Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894). The district judge thought that only the Supreme Court may change course. 617 F. Supp. 2d 752, 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).

Cruikshank,  Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court's "selective incorporation" approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils. (Nordyke applied the second amendment to the states but held that local governments may exclude weapons from public buildings and parks.) Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with Maloney, which followed our own decision in Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982).

Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court's holdings even if the reasoning in later opinions has undermined their rationale. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989). Cruikshank, Presser, and Miller have "direct application in [this] case". Plaintiffs say that a decision of the Supreme Court has "direct application" only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions   deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices,   the Court's decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.

Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." 128 S. Ct. at 2813 n.23. The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold "that the Second Amendment applies only to the Federal Government." The Court added that "Cruikshank's continuing validity on incorporation" is "a question not presented by this case". Ibid. That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.

State Oil Co. v. Khan, 522 U.S. 3, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145, 88 S. Ct. 869, 19 L. Ed. 2d 998 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977)) demolished Albrecht's intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht's rationale had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs' lights, we should have treated Albrecht as defunct and reached what we deemed a better decision. Instead we pointed out Albrecht's shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, "for it is this Court's prerogative alone to overrule one of its precedents." 522 U.S. at 20. See also, e.g., Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 163 L. Ed. 2d 14 (2005).

What's more, the proper outcome of this case is not as straightforward as the outcome of Khan. Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this. See Akhil Reed Amar, America's Constitution: A Biography 390-92 (2005) (discussing how the second amendment relates to the privileges and immunities clause). The prevailing approach is one of "selective incorporation." Thus far neither the third nor the seventh amendment has been applied to the states--nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth. How the second amendment will fare under the Court's  selective (and subjective) approach to incorporation is hard to predict.

Nordyke asked whether the right to keep and bear arms is "deeply rooted in this nation's history and tradition." Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). It gave an  affirmative answer. Suppose the same question were asked about civil jury trials. That institution also has deep roots, yet the Supreme Court has not held that the states are bound by the seventh amendment. Meanwhile the Court's holding that double-jeopardy doctrine is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (concluding that it is enough for the state to use res judicata to block relitigation of acquittals), was overruled in an opinion that paid little heed to history. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). "Selective incorporation" thus cannot be reduced to a formula.

Plaintiffs' reliance on William Blackstone, 1 Commentaries on the Laws of England 123-24, for the proposition that the right to keep and bear arms is "deeply rooted" not only slights the fact that Blackstone was discussing the law of another nation but also overlooks the reality that Blackstone discussed arms-bearing as a political rather than a constitutional right. The United Kingdom does not have a constitution that prevents Parliament and the Queen from matching laws to current social and economic circumstances,  as the people and their representatives understand them. It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868. See Nicholas Quinn Rosenkranz, Condorcet and the Constitution, 59 Stan. L. Rev. 1281 (2007). Blackstone also thought determinate criminal sentences (e.g., 25 years, neither more nor less, for robbing a post office) a vital guarantee of liberty. 4 Commentaries 371-72. That's not a plausible description of American constitutional law.

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining  what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back--in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law 10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense  might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety--whether guns deter or facilitate crime  is a an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)--but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people's hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate. See Clark v. Arizona, 548 U.S. 735, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006) (state may reformulate, and effectively abolish, insanity defense); Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987) (state may assign to defendant the burden of raising, and proving, self-defense).

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes  a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."); Crist v. Bretz, 437 U.S. 28, 40-53, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978) (Powell, J., dissenting) (arguing that only "fundamental" liberties should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to "incorporate" the second amendment are for the Justices rather than a court of appeals.

RR

Equal Access to Justice in California

The California Assembly earlier this month passed a bill, AB 590, to direct court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income parties in "civil matters involving critical issues affecting basic human needs . . . ."  Under the pilot project, "proposals to provide counsel in child custody cases should be considered among the highest priorities for funding, particularly when one side is represented and the other is not."  The LA Times on Friday encouraged the governor to sign the bill.

In passing the bill, the legislature made several key constitutional findings, including these: 

The doctrine of equal justice under the law is based on two principles.  One is that the substantive protections and obligations of the law shall be applied equally to everyone, no matter how high or low their station in life.  The second principle involves access to the legal system.  Even if we have fair laws and an unbiased judiciary to apply them, true equality before the law will be thwarted if people cannot invoke the laws for their protection.  For persons without access, our system provides no justice at all, a situation that may be far worse than one in which the laws expressly favor some and disfavor others.

Many judicial leaders acknowledge that the disparity in outcomes is so great that indigent parties who lack representation regularly lose cases that they would win if they had counsel.  A growing body of empirical research confirms the widespread perception that parties who attempt to represent themselves are likely to lose, regardless of the merits of their case, particularly when the opposing party has a lawyer, while parties represented by counsel are far more likely to prevail. . . .

Equal access to justice without regard to income is a fundamental right in a democratic society.

The U.S. Supreme Court has never gone so far.  The Supreme Court has treated claims for civil counsel under the procedural due process test in Mathews v. Eldridge.  The Court in Mathews determined the constitutionally mandated process by balancing the litigant's interest, the government's interest, and the risk that the process used would lead to an erroneous deprivation.

The leading case on the civil right to counsel is Lassiter v. Department of Social Services.  In Lassiter, the Court rejected a poor litigant's claim for appointed counsel in a termination-of-parental-rights case.  The Court ruled that poor litigants have a right to appointed counsel in civil cases only when the Mathews factors weigh so heavily in favor of appointment as to overcome a presumption that there is a right to appointed counsel only when personal freedom is at stake.  (The Lassiter Court created this presumption; it nowhere existed as such in the Court's cases.)

Federal constitutional claims for civil right to counsel have always run up against Lassiter and its presumption.  But litigants have successfully won a state constitutional right to counsel in several states under state due process and equal protection principles. 

California, through its majoritarian processes and not its courts, now is poised to add itself to the growing list of states that recognize a constitutional civil right to counsel. 

For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site. 

SDS

Books of Note: Brandeis Biography

The new biography of Justice Louis Brandeis by Melvin I. Urofsky is excerpted in the NYT today here.  There are also several reviews:  The Boston Globe Review is here;   Adam Liptak's review for the daily NYT is here;  Alan Dershowitz's glowing review in the Sunday NYT Book Review here.  Dershowitz describes Brandeis with a contemporary flair:

Today, Brandeis is seen by liberals as their patron saint because of his views on speech, privacy, liberty and social welfare, yet conservatives claim him as well, because of his commitment to judicial restraint. In many ways he defies labeling. He demonstrated through his judicial decisions that a living constitution, responsive to changing needs, is not incompatible with a modest view of the role of judges. He rejected judicial activism in favor of allowing legislatures — the voice of the people — to expand rights and extend protections to the most vulnerable. He said of the Supreme Court that “the most important thing we do is not doing.”

This was, of course, easier to say in his day, when legislatures, for the most part, were more progressive than courts.

At more than 950 pages, the biography promises to be comprehensive.   In the excerpt, Urofsky notes that Brandeis was not an introspective man, making the biographer's efforts at portraying Brandeis' inner life rather difficult.  But given Brandeis' active and multiple careers, there is certainly much to interest readers.

RR

The Constitutional Rights of the Elderly: Saturday Evening Review

A person's constitutional rights may be curtailed simply because she or he attains the age of sixty-five. 

This is the startling conclusion of Outliving Civil Rights, 86 Washington University Law Review 1053 (2009), by Professor Nina Kohn (pictured below) of Syracuse University College of Law. 

Kohn argues that although well-intentioned, state statues meant to protect the elderly have "serious —and potentially unjustifiable—civil rights implications for the seniors they are designed to protect."   She contends that some state actions

limit older adults’ substantive due process rights by criminalizing certain forms of consensual sexual behavior; others undermine older adults’ informational privacy rights by requiring the doctors, attorneys, priests, or other confidants to report suspected abuse or neglect to the state. 

Kohn compelling argues that Lawrence v. Texas should be applicable to statutes which prohibit elder sexual "abuse."  (at 1094).  She is arguing, of course, that the definition of "abuse" is overbroad and includes much consensual activity. "Criminalizing consensual sexual conduct by the aged or frail is also [as in Lawrence] demeaning and stigma-creating. Already, older persons find themselves stereotyped as sexless. Indeed, sexual activity by older adults is apt to be perceived as abnormal or even pathological."  She continues:

Laws that criminalize sexual activity with older adults—laws that deem their sexual partners to be felons— further entrench this stereotype of sexuality on the part of older people as perverse.  

Elder sexual protection statutes also create collateral consequences that are analogous to those that burdened the liberty interests of Texas homosexuals in Lawrence. Persons convicted under the Texas anti- homosexual conduct statute faced collateral consequences, including inclusion in criminal registries and negative consequences for future employment.  Collateral consequences are also significant in elder abuse cases, although somewhat less direct. Persons convicted of sexual abuse of older adults are increasingly likely to be barred from working with or caring for the elderly. The “abused” adult may face unwanted protective action such as involuntary isolation from the “abuser” or involuntary removal from a shared accommodation with the “abuser.” In addition, as discussed earlier, persons investigated as victims of elder abuse are highly likely to be institutionalized as a result and are also at disproportionate risk of having their right to make personal choices eliminated through the imposition of a guardianship.

(at 1098).

Kohn makes clear that her ultimate objective is less a blueprint for constitutional challenges to elder-protection laws than a rethinking of the paternalistic approach of such laws.  She notes that elder abuse laws have most often been modeled on child-abuse laws (at 1108).   (And while the courts have been explicit about the lesser constitutional rights of minors, they have not been willing to generalize substandard constitutional status for the elderly).  She suggests that a better model is domestic violence. Id.  (Although it might be argued that violence against women policies have not always accorded women full constitutional status).

RR

Sotomayor's first interview

On C-Span on video here.  The newest Justice describes the call from President Obama, the drive to Washington, D.C., and preparing for her first speech.

RR

Is an Individual Health Insurance Mandate Constitutional?

David Rivkin and Lee Casey this week argued in a Wall Street Journal opinion piece that the mandatory insurance provision in Senator Baucus's health reform bill is unconstitutional. 

The argument goes like this: 

1.  Congress lacks authority under the Commerce Clause to require individuals to purchase insurance, because a "health-care mandate would not regulate any 'activity.'"  The authors reference United States v. Lopez and Gonzales v. Raich.

2.  Because Congress can't do it under the Commerce Clause, Baucus (and other supporters of an individual mandate) have called it a tax.  (Baucus's bill refers to the penalty for failure to insure an "excise tax," to be administered and collected by the IRS.)

3.  But this "excise tax" is plainly a penalty, pushing the bounds of the Supreme Court's Taxing Clause jurisprudence.  The authors:  "The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care."

The authors are wrong on two counts.  First, an individual mandate is almost certainly the kind of economic activity that the Court would uphold under Congress's Commerce Clause authority under Raich, Lopez, and United States v. Morrison.  These cases allow Congress to regulate activities that have a "substantial effect" on interstate commerce, and they look to the commercial nature of the activity and to the connection between the activity and interstate commerce (among other considerations).  An individual mandate is almost surely commercial in nature--in requiring folks to buy health insurance, it requires a commercial exchange.  Rivkin and Casey argue that the mandate is not commercial in nature, because it's triggered simply by "being an American."  This may be true, but it misses the point of the regulation: It requires Americans to engage in a commercial exchange.  This is the definition of commerce.

Moreover, the individual mandate is closely related to interstate commerce.  The whole argument for an individual mandate is to get health care consumers to internalize their costs, and not spread them to the larger interstate economy.  A health insurance mandate is almost certainly within Congress's Commerce Clause powers, whether Congress calls it an "excise tax" or something else.

Second, Rivkin and Casey misunderstand the Taxing Power.  Congress can adopt an excise tax to an end that is within its other constitutional powers, as here.  But even if Congress is acting outside its other articulated powers, the Court has interpreted the Taxing Power quite broadly, all but eliminating any distinction between a "penalty" and revenue-producing "tax."  See United States v. Kahriger (upholding a federal tax on gambling under Congress's Taxing Power) (overturned on other grounds).

The Supreme Court may be on a path to limiting congressional authority under the Commerce Clause, the Taxing Clause, or any clause.  But even so, the individual mandate all too squarely falls within the recent and settled jurisprudence. 

We've posted on similar constitutional issues in the health care reform debate here, here, and here.

SDS

The "New" State Secrets Privilege: What Changed, and What Didn't

Attorney General Eric Holder yesterday announced new policies and procedures for the administration's invocation of the state secrets privilege.  The DOJ press release is here; Holder's memo for department heads is here.  (Thanks to Walt Kendall for the heads-up.)

Recall that the Obama administration surprisingly reasserted the same sweeping state secrets privilege that the Bush administration asserted in the Ninth Circuit case challenging the former administration's extraordinary rendition program, Mohammed v. Jeppesen Dataplan, Inc. The administrations intervened in the case to move for dismissal on the pleadings, asserting that the state secrets privilege--a constitutional privilege, they argued, and not a mere evidentiary privilege--prevented the courts from entertaining the complaint.  When a three-judge panel of the Ninth Circuit ruled against the Obama administration this spring, the administration filed for en banc review.  (My interview with Mohammed's ACLU attorney Ben Wizner is here.)

The administration has asserted or reasserted this version of the privilege in about a dozen cases.  (Here's my post on one.)  Congress had its own ideas, here and here.

In the wake of all this, Holder's memo yesterday sought to rein in the government's use of the privilege.  Holder's memo establishes new internal procedures for DOJ review of administration assertions of the state secrets privilege, sets a new standard for internal review, and specifically rules out the use of the privilege in certain circumstances. 

More particularly, the memo requires the assistant AG to recommend invocation in any particular case, a review committee to approve that recommendation, and then the AG to sign off.  (This is presumably in addition to the asserting agency head sign off, under U.S. v. Reynods.)  The memo also says that the DOJ will defend an assertion only after a "sufficient showing that assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense or foreign relations."  And the memo rules out assertions to conceal illegalities, to prevent embarrassment, to restrain competition, and to prevent delay of information that would not cause harm to national security.  Finally, the memo provides for regular reports to Congress on assertions of the privilege.

But the memo doesn't specifically back off the administration's re-assertion of the Bush administration argument that the privilege has a basis in the Constitution--that it's compelled by separation-of-powers principles and by the president's Article II authorities.  This extraordinary and novel claim, argued the Bush and Obama administrations in the Mohammed case, elevated the privilege to constitutional status and insulated it from judicial review.  Under this view, the administration alone could assert the privilege to dismiss a case on the pleadings, and the court couldn't even second guess the assertion. 

Holder's memo does not disavow this position.  If anything, it supports it.  The memo focuses on "information" dangerous to national security--and not "evidence" dangerous to national security--thus suggesting that Holder views the the privilege as something more than a mere evidentiary privilege (as in U.S. v. Reynolds).  That "something more," supported by both administrations in Mohammed, was a categorical constitutional privilege, as suggested by Totten v. United States.  The administrations have used the Totten version of the privilege as the basis for motions to dismiss on the pleadings.  (For more on this, see my postwith my interview with Ben Wizner.) 

Moreover, the memo rules out seeking full dismissal of a case "when doing so is necessary to protect against the risk of significant harm to national security."  But this should always have been the administration's standard for moving for complete dismissal of a case.

Holder's memo represents a significant change in the procedures and internal checks on the government's assertions of the state secrets privilege.  It also includes a new, meaningful oversight role for Congress.  But less clear is what, if any, substantive changes it reflects in the administrations' most sweeping position on the privilege--that it has a constitutional (and not merely evidentiary) basis.

SDS

Senate Vacancies and the 17th Amendment

A group of Illinois voters last week argued their case to the Seventh Circuit that Illinois law providing for the appointment by the governor of a person to fill a vacant U.S. Senate seat runs afoul of the Seventeenth Amendment.  The oral argument, about 33 minutes, is here.

The case arose in response to former Governor Blagojevich's appointment of Roland Burris to fill out Barack Obama's Senate term.  (I posted on this at the time here, here, here, and here.)  Blagojevich appointed Burris pursuant to Illinois law, which states:

When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

10 ILCS Sec. 5/25-8.  Governor Quinn, Blagojevich's replacement, made no attempt to revoke or alter the appointment, and he didn't call for a special election.  Indeed, under the plain language of 5/25-8, the next election would be in November 2010--the "next election of representatives in Congress," and, coincidentally, the date on which Obama would have faced re-election (because his term ended in 2011).

Plaintiffs in Judge v. Quinn argued that Illinois law violated the Seventeenth Amendment, which states:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

U.S. Const. Amend. XVII.  The plaintiffs argued that Illinois law failed to provide for a special election to fill the rest of Obama's term.  The regular election next November doesn't qualify, they argued, because that election is the regular election for the Senate seat.  (Curiously, they argued that a special election on election day 2010, right along with the regular election, would satisfy their demands.  Illinois used a similar special election in the primaries to replace former House Speaker Dennis Hastert when he resigned.  But it's not clear what plaintiffs would gain from this process.)  Plaintiffs argued that their position is most consistent with the spirit of the Seventeenth Amendment, which, they say, is that the people should elect their (regular) Senator, even if the legislature may authorize the governor to appointment a (temporary) Senator. 

Judge Grady (N.D. Ill.) rejected the claim and ruled on the plain language and earlier interpretations of the Amendment that Illinois's procedure "does not violate plaintiffs' right under the Seventeenth Amendment to vote in the direct election of their Senator."  (Grady examined Valenti v. Rockefeller, the case dealing with New York's procedure for filling the vacancy created by Senator Robert Kennedy's assassination.  A three-judge panel upheld New York's procedure--which was similar to the Illinois law--and the Supreme Court summarily affirmed, without an opinion.  Grady held that Valenti and cases interpreting it "squarely contradict plaintiffs' textual interpretation, pursuant to which they argue that Illinois cannot "forgo a special election in favor of a temporary appointment." (citations omitted, emphasis in original).)

Massachusetts handled things differently.  That state set a special election for January 19 (with primaries on December 8) to replace Senator Kennedy.  The Massachusetts legislature just today passed legislation providing for gubernatorial appointment of a Senator until that time.  (The Massachusetts House passed a resolution conveying its sense that the appointee should not run in the January 19 election.)

Is the Massachusetts procedure, providing for a true special election by the people, more consistent with the text and purpose of the first clause of the Seventeenth Amendment?  Perhaps.  But this isn't to say that Illinois's procedure violates the Seventeenth Amendment.  On the contrary, Illinois is well within the plain text and scant judicial interpretations of the second clause of the Seventeenth Amendment.  The Judge plaintiffs' concession that even a special election on election day 2010 (right along with the regular election), and two years after the vacancy, illustrates their extreme position based on a strained reading of the text.

SDS

New York Lt.-Governor Appointment now ruled CONSTITUTIONAL

The New York Court of Appeals (New York's highest court) has ruled today by a vote of 4-3 that Governor Paterson's appointment of a lieutenant governor is constitutional, opinion available here.  The Court is reversing the lower court opinion holding the appointment unconstitutional (our previous discussion here).

RR

Undoing Iqbal

Tony Mauro at the National Law Journal reports today that plaintiffs' groups are moving to reverse Ashcroft v. Iqbal, last term's decision holding that complaints must allege more than mere "threadbare recitals of the elements of a cause of action" to survive a motion to dismiss. 

Iqbal involved a former detainee's Bivens claims against former AG John Ashcroft and FBI Director Robert Mueller for constitutional torts while in custody.  (I originally posted on the case here.)  The ruling meant that plaintiffs faced, in effect, a heightened pleading standard, and federal courts dismissed a slew of cases on "Iqbal motions."  In one notable case just this month, however, the Ninth Circuit ruled that a plaintiff sufficiently pleaded facts to sustain an Iqbal motion in a case against former AG Ashcroft for indefinitely detaining him in violation of the federal material witness statute.

Mauro reports that plaintiffs' groups are looking to Congress (in Senator Specter's legislation with the title that speaks for itself, "Notice Pleading Restoration Act of 2009") and the Judicial Conference Advisory Committee on Civil Rules (with the argument that the Court mucked up the FRCP, and the Committee should set them right).

SDS

State Constitutional Open Courts and the Limits of Medical Liability Reform

The President famously announced last week in his healthcare address to a joint session of Congress that he would order the Agency for Healthcare and Research Quality, a division of the Department of Health and Human Services, to support state demonstration projects on medical liability reform.  The initiative appears to be an attempt to reach across the aisle to Republican opponents of the President's plan, who have argued that medical liability reform--or "tort reform"--is an essential part of any healthcare reform plan.  The President's memo for the Secretary of HHS is here.

On the very same day last week that the President sent his memo to the Secretary, the Supreme Court of Washington issued an opinion reminding us that whatever the federal government may support, there still may be some limits on medical liability reform.  Particularly, state constitutional "open courts" provisions may restrain some states in "demonstrating" their reforms.

"Open courts" provisions simply say that courts must be open and available to litigants.  Maryland's open courts provision, one of the earliest, is typical:

That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.

At least forty state constitutions have such a clause; they trace their roots directly to Magna Carta.  (The federal constitution, of course, does not have an explicit open courts clause.  But courts often look to the open courts language in Marbury v. Madison as a sign of federal constitutional protection: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.  One of the first duties of government is to afford that protection.")  State courts by and large have interpreted open courts provisions to mean that the legislature can't curtail state court claims that existed at the time of the adoption of their state's provision.  That principle seems clear enough, but these provisions get interesting against the myriad particular (and often slight, but significant) ways that states encroach on access.  (Shameless self-promotion: For more on open courts and access to justice, see my 2007 piece on open courts and the right to counsel.)

Open courts jurisprudence is notoriously muddled.  But there is one consistency:  Open courts attacks on state medical liability reform and, more generally, tort reform--strict damage caps, short statutes of limitations, and the like--have mostly failed. 

This may be all the more reason to pay attention to Washington's ruling.

Washington required plaintiffs in medical malpractice claims to file a "certificate of merit" prior to initiating suit.  The state supreme court held that this violated the state's constitutional open courts principles.  The analysis is remarkably short; it begins with the Marbury quote above, and continues:

The people have a right of access to the courts; indeed, it is "the bedrock foundation upon which rest all the people's rights and obligations."  This right of access to courts "includes the right of discovery authorized by the civil rules."  As we have said before, "[i]t is common legal knowledge that extensive discovery is necessary to effectively pursue either a plaintiff's claim or a defendant's defense."

Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to the courts.  Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims.  Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed.  Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts.  It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people.  Accordingly, we must strike down this law.

(Citations omitted.)

There's certainly nothing unconstitutional (federal) about the federal government funding state demonstration projects related to medical liability reform.  But unless the President's demonstration program includes a preemption provision--which would seem both unlikely (because the whole point is to support new state laws experimenting with reform) and extraordinary (because it could only be designed to impede state constitutional rights that might get in the way of state reforms)--states are still bound by their constitutions.  The Washington Supreme Court's ruling is a healthy (pardon the pun) reminder that state constitutional rights are still relevant and may play an important role in state reform efforts.

SDS

Indiana Appeals Court Overturns Voter-ID Law

A three-judge panel of the Court of Appeals of Indiana, Indiana's intermediate appellate court, ruled yesterday in League of Women Voters v. Rokita that the state's voter-ID law violated the state constitutional equal protection clause.  The law requires, with certain narrow exceptions discussed below, that Indiana voters produce a valid, government-issued picture identification card before voting.  This is the same law that the United State Supreme Court upheld last year in Crawford v. Marion County.

Indiana's equal protection clause, the "Equal Privileges and Immunities Clause," Article I, Section 23 of the state constitution, reads as follows:

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.

According to the panel, Section 23 does not use the same varying degrees of scrutiny that courts use in applying federal equal protection.  Instead, "[l]egislative classification becomes a judicial question only where the lines drawn appear arbitrary or manifestly unreasonable, and the challenger must negate every reasonable basis for the classification."  League of Women Voters v. Rokita (quoting W.C.B. v. State).  And judicial deference--"substantial deference to legislative discretion"--is built into the analysis.  League of Women Voters (citing Collins v. Day).

In overturning the voter-ID law, the Court of Appeals focused on the two more nonsensical classifications in the statute.  First, the law exempts absentee voters from the ID requirement, creating one class that must show an ID (in-person voters) and another class that need not show ID (absentee voters).  Second, the law exempts voters who reside at a precinct polling place that is located at a state licensed care facility where the voter resides, creating one class that must show an ID (those who do not reside at such facilities) and another class that need not show ID (those who do reside at such facilities).  The court held that neither of these classification advanced the state's interest in reducing voter fraud.  The court further ruled that the first classification was non-severable and thus overturned the entire act.

Why the different result here than in Crawford?  It's not (merely) that this case came up under the state constitution, not the federal constitution.  (This particular state constitutional provision didn't obviously provide any greater protection than the federal Equal Protection Clause.)  Instead, it's the way the cases were litigated.  In Crawford, the Supreme Court focused on the right to vote and sidestepped the classifications.  Putting this in a right-to-vote framework triggered the analysis under Anderson v. Celebrezze--a case that modified (some might say gutted) Harper v. Virginia Bd. of Elections by holding that "evenhanded restrictions" on the right to vote that are designed to protect the integrity of the process are perfectly fine, even as a poll tax (as in Harper) runs afoul of the Equal Protection Clause. 

In contrast, in League of Women Voters, the court focused on the classifications--different treatment with respect to ID requirements that failed on their face to advance the state's interests.  (Justice Souter discussed these classifications in his dissent in Crawford, but the classifications did not get the attention of the majority.) 

Thus the Indiana Court of Appeals didn't (necessarily) rule that Indiana's equal protection doctrine "goes beyond" what federal Equal Protection demands.  (The court didn't even cite Crawford in this portion of its opinion.)  Instead, it simply took a different approach--an approach based more squarely on the classifications and less on the right to vote.

The state will surely appeal, as suggested by Governor Daniels in today's NYT piece on the case.

SDS

The "Torture Memo" Lawyers

In the NYRB article "The Torture Memos: The Case Against the Lawyers," David Cole (Georgetown) provides a brief rehearsal of the major arguments, legal authorities, and chronologies surrounding the attorneys Jay Bybee, John Yoo, Daniel Levin, and Steven Bradbury, the authors of the so-called "torture memos." 

Cole's ultimate conclusion is that the "least President Obama should do, therefore, is to appoint an independent, nonpartisan commission of distinguished citizens, along the lines of the 9/11 Commission, to investigate and assess responsibility for the United States' adoption of coercive interrogation policies." 

It's a relatively brief article intended for a general (if sophisticated) audience; it would make a great basis for a class discussion, simulation, or exercise in a law school, graduate, or undergraduate constitutional law class.

RR

Caperton Conference at Seattle U.

Seattle University hosted a conference this week on Caperton v. A.T. Massey Coal Co., the case from last term holding that the Due Process Clause required recusal by West Virginia Supreme Court Justice Brent Benjamin in a case where Benjamin received $3 million in contributions for his judicial election campaign from one of the parties.  Professor Andy Siegel's (Seattle U.) blog post on the conference is here; we've posted on the case here and on Justice O'Connor's speech (at the conference) here.

The conference page contains links to two sessions and to Justice O'Connor's speech.

Thanks to Professor and Associate Dean Maggie Chon (Seattle U.) for the heads-up on the conference.

SDS

Pentagon to Implement Case Review Panels at Bagram

The Defense Department announced that it will implement case review panels for detainees at Bagram Air Base in Afghanistan, offering detainees their first meaningful opportunity to challenge their detention.

Bagram houses about 600 detainees, some of whom have been there for six years.  Unlike detainees at Guantanamo, they have had no access to counsel and no significant measure of due process in challenging their detention. 

According to the announcement, new detainees will undergo a case review within 60 days of being incarcerated, with further reviews about every six months.  Detainees will have a "personal representative," not an attorney, to help them through the review process.

The Pentagon says that the changes are designed to keep only the most dangerous detainees locked up.  But the move may be designed for another reason, too.  The government may see this as enhancing its position in its appeal of Judge Bates's (D.D.C.) ruling last spring that the privilege of habeas corpus extends to Bagram.  Particularly, the government may use this to argue that it has provided adequate process to detainees challenging the basis of their detention--a key factor, under Boumediene, in Judge Bates's ruling.

But in Boumediene, the Court ruled that habeas extended to Guantanamo because the procedures under the Detainee Treatment Act did not provide an adequate substitute for habeas review.  The changes at Bagram would have to include processes that well exceed those in the DTA, and compare favorably to full habeas review, for this argument to take.  The preliminary sketch in the Pentagon's announcement falls short.  (Most notably absent: the right to counsel.)

Still, the administration will undoubtedly press its argument that habeas at Bagram raises practical obstacles that make it unworkable--largely a function of Bagram's location in an active combat zone.  Bates's ruling--that Bagram is really no different than Guantanamo, and, anyway, any practical obstacles unique to Bagram are of the government's own making--may be at its most vulnerable on this point.  (Given the ruling in Boumediene, this may be all that's left for the government.)

SDS

States Seek to Limit Federal Health Care Overhaul

State lawmakers in several states have sought to introduce measures to curtail federal health care reform, according to a report yesterday by the AP.  The effort has so far been most successful in Arizona, where a proposed state constitutional amendment will appear on the ballot in 2010.  The bill reads in relevant part:

A.  To preserve the freedom of Arizonans to provide for their health care:

1.  A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.

2.  A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services.  A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.

B.  Subject to reasonable and necessary rules that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.

This measure, and others like it, would certainly run up against federal preemption under any comprehensive federal reform bill.

On the flip side, protesters again suggested at Saturday's protest on the National Mall that federal health care reform would increase the size and scope of the federal government beyond what the founders intended.  But any federal reform measure currently in play would fit comfortably within Congress's authority under the Commerce Clause and the Court's "substantial effects" test--i.e., that Congress can regulate under the Commerce Clause anything that has a "substantial effect" upon interstate commerce.

Given the reality of federal supremacy, the expansive federal authority under the Commerce Clause, and a sprawling health care system that pervades the national economy (isn't that exactly the problem?),  the state efforts to limit federal health care reform and the arguments that federal health care reform exceed the federal government's powers have no real traction in our federal constitutional system.  But they seem to have garnered enough of a following to at least signal that some number think, on principle or merely because of politics, that the federal government has no business in health care reform.

SDS

The Death of Conservatism? Robson's Saturday Evening Review

According to Sam Tanenhaus, in his new book The Death of Conservatism,

David Souter, who in his nineteen years on the Supreme Court infuriated so many on the right by his refusal to advance the movement's pet judicial causes - - - instead immersing himself in the study of history, partly to uncover in the past "some relevance to a constitutional rule where earlier judges saw none" - - - may well endure as the most authentic conservative in the Court's modern history.

(at 117). Tanenhaus (pictured at right), the editor of both the NYT Book Review and NYT Week in Review, not only argues that Justice Souter is best understood as a conservative but that the present politics and culture of the US are best described as being in a conservative phase.  This might make it seem that conservatism is very much alive, but Tanenhaus argues that conservatism as a politics has succumbed to conservatism as a "movement."  Tanenhaus contends that postwar conservatism has been a debate between the "realists" (who uphold the 18th Century ideals of Edmund Burke of "replenishing civil society by adjusting to changing conditions") and the "revanchists" (committed to a counterrevolution) - - - and that "at almost every critical juncture, the revanchists have won the argument." (at 20).

I picked this book up because of an acquaintance with Tanenhaus at the CUNY Writer's Institute.  I recommend it because it provides a highly readable account of recent political and legal history, with a nice balance of details and broad brush strokes.  Some of the material will be familiar to constitutional law professors, such as President Reagan's legislative agenda.  Other material might be less so, especially if one is a bit rusty on the work of William F. Buckley or Whittaker Chambers.  But the reason to read this book is not for its facts, but its insights. While Tanenhaus has been labeled a "neocon," the message of this book is relentlessly moderate: 

Since its founding, our nation has been productively divided between liberal and conservative impulses.  They form the dialectic of our infinitely renewable politics.

(at 114).  Whether this dialectic has actually occurred or has been "productive" remains, to my mind, very debatable.  Nevertheless such a claim is not dissimilar to many constitutional history theories of adjustment, feedback, or even backlash.  Thus, while not a book devoted to constitutional law, this brief book (120 pages and no footnotes) can provide insights that might be fruitful for one's own scholarship and teaching. 

RR

Ronald Dworkin on the Sotomayor Hearings

In an article in the 24 September issue of the New York Review of Books, Ronald Dworkin analyzes the Sotomayor hearings as a missed opportunity:

Her hearings could therefore have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

Dworkin also discusses Ricci and Sotomayor's statements on foreign law.  It's an article worth reading (and there is also a podcast discussion).

RR

White House Extends 9/11 National Emergency

President Obama today extended the national emergency declared on September 14, 2001, by President Bush:

Consistent with section 202(d) of the National Emergencies Act, 50 U.S.C. Sec. 1622(d), I am continuing for 1 year the national emergency declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks of September 11, 2001, and the continuing and immediate threat of further attacks on the United States.

The emergency powers allow the President to call up the reserves and extend terms of active duty military, among other things.  (Check out President Bush's original declaration, quoted in full in the link above to the National Emergencies Act, for a list of citations to emergency powers triggered by the declaration.) 

50 U.S.C. Sec. 1621 authorizes the President to declare such a national emergency.

The extension is written in language very close to President Bush's original declaration; it breaks no new ground, and we can't make any inferences about the administration's constitutional positions on presidential war-time or emergency powers.  Instead, the extension probably only reflects the administration's continued need for flexibility in troop deployments in active military and combat zones. 

SDS

Ninth Circuit: Al-Kidd's Complaint Satisfied Iqbal's Pleading Standard

A divided three-judge panel of the Ninth Circuit ruled last Friday that plaintiff Abdullah al-Kidd pleaded sufficiently specific facts to withstand former AG John Ashcroft's motion to dismiss his case for unlawfully using the federal material witness statute, 18 U.S.C. Sec. 3144, to detain him preventatively, without charges. 

The panel ruled that Al-Kidd's complaint satisfied the pleading standard that the Supreme Court articulated last term in Ashcroft v. Iqbal.  Recall that in Iqbal the Court refined the pleading standard in Bell Atlantic Corp. v. Twombley and held that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice [and] only a complaint that states a plausible claim for relief survives a motion to dismiss."  The Court ruled that Iqbal's allegations were "conclusory and not entitled to be assumed true," and therefore failed to meet this standard.  According to Adam Liptak at the NYT, the case was cited more than 500 times in the two months after it came down and, according to Prof. Burbank at Penn (quoted in Liptak's story), resulted in "a blank check for federal judges to get rid of cases they disfavor."

Al-Kidd nevertheless met the standard, according to the Ninth Circuit panel:

Here, unlike Iqbal's allegations, al-Kidd's complaint "plausibly suggest[s]" unlawful conduct, and does more than contain bare allegations of an impermissible policy.  While the complaint similarly alleges that Ashcroft is the "principal architect" of the policy, the complaint in this case contains specific statements that Ashcroft himself made regarding the post-September 11th use of the material witness statute. . . . The specific allegations in al-Kidd's complaint plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.

Al-Kidd, at 12314.  (Read the allegations in the complaint here, paragraphs 108-141.  Thanks to the ACLU for posting this and other case documents.)

The panel ruled that al-Kidd failed to meet the standard in a related claim, however.  He failed to allege sufficiently specific facts to support his claim that Ashcroft directed his conditions of confinement in violation of the Fifth and Eighth Amendments--a claim very much like Iqbal's:

Similarly, al-Kidd's claims here that Ashcroft promulgated and approved the unlawful policy which caused al-Kidd "to be subjected to prolonged, excessive, punitive, harsh, unreasonable detention or post-release conditions."  Contrary to the Sec. 3144 claim, however, the complaint does not allege any specific facts--such as statements from Ashcroft or from high ranking officials in the DOJ--establishing that Ashcroft had personal involvement in setting the conditions of confinement.

Al-Kidd, at 12320.

In the wake of Iqbal, the case leaves open the possibility that certain claims, sufficiently supported by, e.g., direct policy statements of officials, may survive a motion to dismiss.  Between the complaint and the opinion, the case provides a roadmap for plaintiffs, at least for now in the Ninth Circuit.

SDS