Thursday, December 31, 2009

State AGs Lay Out Constitutional Case Against "Cornhusker Kickback"

Thirteen state AGs--all Republicans--sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid setting out their constitutional objections to the provision in the Senate health care reform legislation that exempts Nebraska from paying costs of new enrollees in the Medicaid program.  (Instead, under the provision, the federal government would pick up these additional costs.  Senator Ben Nelson is the only senator to have successfully negotiated such an arrangement for his state.)  We most recently posted on this here.

From the letter:

In Helvering v. Davis . . . the United States Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a "display of arbitrary power."  Congressional spending cannot be arbitrary and capricious.  The spending power of Congress includes authority to accomplish policy objectives by conditioning receipt of federal funds on compliance with statutory directives, as in the Medicaid program.  However, the power is not unlimited and "must be in pursuit of the 'general welfare.'"  South Dakota v. Dole . . . .  In Dole the Supreme Court stated, "that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." . . .  It seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal health care, but also ensuring that the states share with the federal government the cost of providing such care to their citizens.  This federal interest is evident from the fact this legislation would require every state, except Nebraska, to shoulder its fair share of the increased Medicaid costs the bill will generate.  The provision of the bill that relieves a single state from this cost-sharing program appears to be not only unrelated, but also antithetical to the legitimate federal interests in the bill.

This seems deeply confused on a number of points.  First, both Helvering and Dole emphasize the expansive nature of the spending power and Congress's--not the courts'--discretion in determining what constitutes the "general welfare."  From Helvering

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views.  We will not resurrect the contest.  It is now settled by decision.  United States v. Butler. . . .  The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents.  Yet difficulties are left when the power is conceded.  The line must still be drawn between one welfare and another, between particular and general.  Where this shall be placed cannot be known through a formula in advance of the event.  There is a middle ground, or certainly a penumbra, in which discretion is at large.  The discretion, however, is not confided to the courts.  The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.  This is now familiar law.

Next, the AGs ask too much of the "arbitrary" standard.  This is a very low standard, not requiring much.  Surely the Nebraska compromise cannot be "arbitrary."  This is especially true in light of the all-too-numerous state-specific benefits that we see in any major piece of legislation--any one of which is at least as "arbitrary" as the Nebraska compromise. 

Third, it's not clear how or why conditional spending plays any part in a constitutional analysis of the Nebraska compromise.  Nothing's conditioned here.

Finally, it's not at all obvious that a part of the purpose of the legislation is to get states to pay jointly with the federal government.  As Professor Mark Tushnet said, the legislation could ultimately aim to get the federal government to pay all of the increased costs; Nebraska simply represents the first step.

The other points in the letter seem equally confused.  For example, the Privileges and Immunities Clause of Article IV has been interpreted as a restriction only against the states, not Congress.  (The Privileges or Immunities Clause of the Fourteenth Amendment obviously doesn't apply at all--by its plain terms it restricts only the states.)  There's no Due Process problem here.  And any Equal Protection problem would get only rational basis review.  The courts would almost certainly uphold the provision for the reasons that Professor Tushnet articulated, among others.

The AGs dropped the Port Preferences Clause claim.


December 31, 2009 in Congressional Authority, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, News, Privileges and Immunities, Procedural Due Process, Spending Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 30, 2009

Restricting Access to Federal Courts, in Three Parts

Two significant developments in the post-9/11 national security cases have resulted in restricted access to the federal courts: The Fourth Circuit's 2007 ruling in El-Masri v. Tenet, expanding the state secrets privilege (and two successive administrations' extraordinary state secrets claims in Mohamed v. Jeppesen Dataplan, Inc. in the Ninth Circuit); and the Supreme Court's 2008 ruling in Ashcroft v. Iqbal, heightening the pleading standard for plaintiffs in federal court.

Now in Amnesty Int'l USA v. Blair, the Second Circuit case challenging the FISA Amendments Act of 2008, or the "FAA," we may be looking at a third.

The FAA authorizes broad surveillance of certain international communications.  The plaintiffs in Amnesty--a group of civil and human rights organizations--alleged that this violated their First and Fourth Amendment rights and separation-of-powers principles.  The district court threw Amnesty out for lack of standing: The plaintiffs failed to allege that they in fact had been surveilled under the FAA, even if they alleged a "well founded fear" of surveillance and significant costs to avoid surveillance.

If the Second Circuit upholds the district court's ruling, the government could have a third new way to dismiss national security cases--lack of standing.  Here's how it might work:

1.  The plaintiffs in any national security case--extraordinary rendition (as in El-Masri, Mohamed, and Iqbal) or unconstitutional surveillance (as in Amnesty)--would have to allege a more specific harm than the harm alleged in Amnesty to avoid dismissal for lack of standing.

2.  But in order to do this, plaintiffs would need information they don't have--and can't get (without getting past a motion to dismiss and into discovery).  They would need to speculate--the problem in Iqbal, which was dismissed for lack of sufficiently pleaded facts.

3.  And in order to get around Iqbal, plaintiffs would not only need information they don't have, but also information that, by the government's reckoning in El-Masri and Mohamed, constitutes a state secret.  Even if plaintiffs could navigate standing (1.) and pleading (2.), El-Masri's version of the state secrets privilege (which is also the government's version) is a game ender.

This triple protection for the government means that plaintiffs would face nearly insurmountable obstacles to gain access to the federal courts in national security cases.  And as we've seen in the wake of Iqbal, these protections could conceivably spill over to restrict access in non-national security cases, as well.

Two pending cases are critical: The Ninth Circuit's en banc consideration of Mohamed (which was argued earlier this month); and the Second Circuit's consideration of Amnesty.  In Mohamed, the full Ninth Circuit is considering whether to uphold the three-judge panel's ruling rejecting the administration's sweeping state secrets claim.  In Amnesty, the Second Circuit is considering whether to uphold the district court's dismissal for lack of standing.  These cases will provide important signals about the future of access to the federal courts.


December 30, 2009 in Recent Cases, Separation of Powers, Standing, State Secrets | Permalink | Comments (1) | TrackBack (0)

CFP: Constitutional Law and Social Justice

Picture 2

From the editors of NYCLR:

The New York City Law Review, a publication committed to promoting social justice scholarship, is seeking an additional article for the Spring volume to be published June 2010.  Our journal is affiliated with the City University of New York School of Law, one of the most diverse law schools in the nation and one of the few entirely dedicated to producing public interest lawyers. In addition to publishing articles by legal scholars, we have a special section in each journal dedicated to public interest articles written by practitioners.

If you are currently working on an article related to the social justice mission of our Journal, please submit.  Our Board is interested in articles related to many different social justice visions and movements, and enjoys articles that integrate theory and practice. 

The Articles Editors can be reached at 


December 30, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 29, 2009

Law Profs File Amicus Brief in Second Circuit FISA Amendments Act Case

A group of law professors last week filed an amicus brief with the Second Circuit in Amnesty Int'l USA v. Blair, the case challenging the FISA Amendments Act of 2008, or the "FAA."  The professors argue that petitioners possess Article III standing and that the district court's ruling dismissing the case for lack of standing should be vacated.

Petitioners brought their claim in the Southern District of New York as a facial challenge to the FAA under the First Amendment, the Fourth Amendment, and separation of powers principles.  Petitioners argued that the FAA, which authorized broad surveillance of certain international communications, chilled their communications with cooperating organizations and individuals--that they had a well founded fear that their communications would be monitored and that they incurred burdensome expenses in order to avoid surveillance.  (The ACLU has an outstanding page, including a collection of the litigation documents, here.)

The Southern District dismissed the case on standing grounds.  The court ruled that the plaintiffs failed to allege a particularized injury--that they failed to alleged that their communications in fact had been surveilled.  Plaintiffs appealed, and the case is now at the Second Circuit.

Several amici weighed in last week.  The law professors traced the history and evolution of the standing doctrine and argued that the district court's ruling was out of step with the history, the Court's precedent, and the policies and purposes of the standing doctrine.  From the Summary of Argument (starting on page 2 of the brief):

Amici respectfully submit that, under a proper understanding and application of the law, the injuries asserted by appellants in this case--(i) a "realistic danger" and an "actual and well-founded fear" that their communications will be monitored under the [FAA] and (ii) harm due to the costly and burdensome measures that the FAA has compelled appellants to take in order to protect the confidentiality of their communications--are more than sufficient to satisfy these requirements for Article III standing. . . .

Indeed, as we discuss below, the district court's determination that appellants lack standing here because they are not "subject to" the FAA more closely resembles the antiquated "legal interest" test for standing, which the Supreme Court expressly held was not the law almost forty years ago, than it does the law of standing as it exists today. . . .

[A]s we discussed below, the district court's decision in this case is irreconcilable with the applicable standing case law both as to probabilistic injury and as to the sort of indirect or derivative harms that courts have found sufficient to show judicially cognizable injury-in-fact. . . .

Indeed, the real policy danger here is that if appellants and those like them are denied standing to sue, then the FAA will be effectively insulated from all judicial review.


December 29, 2009 in Congressional Authority, Recent Cases, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, December 28, 2009

State AGs Challenge Constitutionality of Nelson's Nebraska Compromise

Senators Lindsay Graham and Jim DeMint last week asked South Carolina State Attorney General Henry McMaster to look into the constitutionality of the provision in the Senate health care overhaul bill exempting Nebraska from proposed new Medicaid costs.  (The Senate bill would increase health care coverage in large part by increasing eligibility for the Medicaid program.  Many states are concerned about their ability to cover the new costs.  In a move dubbed the "Cornhusker Kickback" by opponent, Senator Ben Nelson of Nebraska agreed to support the measure in exchange for exempting Nebraska from these new costs.  The federal government would pick them up instead.)  We posted most recently on related issues here.

There's some speculation that a group of Republican state AGs may seek to challenge the measure under the Port Preference Clause (Article I, Sec. 9).  (Talking Points Memo covered this here and here.)  You may be excused for not being on top of that one; here it is:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obligated to enter, clear, or pay Duties in another.

If you'd like a little more on the Clause, check out Pennsylvania v. Wheeling & Belmont Bridge Co. (1855) and Louisiana Public Service Commission v. Texas & NOR Co. (1931).  According to Louisiana Public Service Commission, "The specified limitations [in the Port Preference Clause] on the power of Congress were set to prevent preferences as between states in respect of their ports or the entry and clearance of vessels."  The Clause doesn't seem to be a very good candidate for a bill having nothing to do with ports, or port preferences, or the entry and clearance of vessels, etc.

Opponents are also arguing the General Welfare Clause--that Congress will have exceeded its authority under the General Welfare Clause by so favoring one state.  (The Alabama AG makes this point in a YouTube video at the end of this TPM story.)  This too seems awfully weak: The Court adopted the more expansive Hamiltonian position on the scope of Congress's spending power in United States v. Butler (1936) and has generally deferred to Congress in determining what spending promotes the general welfare.

Finally, Mark Tushnet suggests in this TPM story that the states may have a "slightly more viable" equal protection argument, but that it would likely fail at rational basis review.


December 28, 2009 in Congressional Authority, Equal Protection, Federalism, Recent Cases | Permalink | Comments (0) | TrackBack (0)

States Fight Health Care Reform (Again)

We posted in September on the growing movement in the states to oppose federal health care reform, writing that Arizona seemed to be leading the way.

Now Arizona and a handful of other states are fighting a second round against federal health care reform, according to the New York Times.

Here's the problem: The health care reform legislation that passed the Senate last week would expand coverage in large part by expanding Medicaid.  But some states, including Arizona, have already taken steps to expand Medicaid coverage.  Under the legislation they'll have to pay more than other states who have not expanded coverage.  In short, the states that have already expanded coverage will subsidize those that have not.

Medicaid coverage by states varies widely.  For example, according to the NYT, Arkansas provides Medicaid coverage for working parents who earn only up to 17 percent of the federal poverty level, while Minnesota covers working parents who earn up to 215 percent of the federal poverty level.

Arizona citizens voted to expand Medicaid coverage in 2000.  As a result, the state estimates that in the first seven years of the Senate bill its share of the costs would be $17 billion.  If the state didn't expand coverage, its share would be merely $1.4 billion.


December 28, 2009 in Federalism, News | Permalink | Comments (0) | TrackBack (0)

Friday, December 25, 2009

"Pay Czar" Debate

ConLawProf's Steven Schwinn (pictured below) is participating in an online debate/discussion with Michael W. McConnell and Martin Flaherty as part of one of the Federalist Society online debates.


 Steve Schwinn has this to say in his opening comments:

Let me start with a few comments about the unfortunate label "czar."  These "czar" positions have proliferated in recent administrations and, as we know, have drawn heavy criticism most recently in the Obama administration.  While some of these positions raise serious separation-of-powers and Appointments Clause issues, many, even most, do not.  Importantly—and thankfully—their constitutionality does not turn on their label alone.  Instead, it turns on their functions, their duties, and their processes of appointment.

The debate continues and is ongoing here.


December 25, 2009 in Appointment and Removal Powers, Current Affairs, Executive Authority, Nondelegation Doctrine, Separation of Powers, Theory | Permalink | Comments (0) | TrackBack (0)

Grading Constitutional Law Exams

Happy grading!

Others may say "happy holidays," but for those of us teaching constitutional law or other law school courses - - - especially if we are teaching in large sections - - - it's the time of year when jolly sentiments can seem far away. 

More than six years ago I published an article in which I estimated that I had "spent over four thousand hours (almost six months of days and nights, or a year of long summer days) hunched over student work during my teaching career."   While Blue Books have been replaced by typed documents via Secure Exam (or some other software),

Jan 015

what hasn't changed is this:

Grading law school exams has been declared a “deadening intimacy with ignorance and mental fog” which saps a professor's pedagogical and scholarly energies. It is a “terrible occupation,” a “cloud,” a task which we accomplish with less efficiency and more distaste as our teaching career advances. Professorial engagement with Blue Books, in which most law student exams continue to be written, is deemed tedious and boring, leading to a “corrosive negativity” regarding the intellectual abilities of our students as well as a destructive influence upon our own character. In short, grading, especially of final examinations, is universally disparaged.

(footnotes omitted).  But perhaps it isn't so awful?  Maybe?  I entitled the article, The Zen of Grading (available on ssrn here) and explored grading as a honorable and even wonderful "practice."   There are no prescriptions (it's zen after all), but lots of riddles and introspection.  Many law professors, con law and otherwise, who grade essay exams and papers at the end of the semester, have written me to say they find it comforting.  At least one knows one isn't the only one "grading, grading, grading," especially when it can seem as if other colleagues (those multiple choice-givers!) are working on scholarship or perhaps even - aghast - socializing, indulging in holiday cheer, or vacationing.

For those who prefer humor to comfort, the amusing A Guide to Grading Exams by Daniel Solove (GWU Law School) is a treat!  Saying more will spoil the surprise if you haven't already seen this, but it's definitely worth looking at the full color illustrations and diagrams, although again, there are no prescriptions here. 

More great links about grading are available on Feminist Law Professors for amusement and commiseration.

Now, get back to those exams!

UPDATE: And with any luck, you are not a prof who "messed up" the exam this semester.


December 25, 2009 in Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, December 24, 2009

Senate Votes on Constitutionality of Health Insurance Mandate

Just before this morning's vote on the health reform package, the Senate voted 39-60 against a point of order raised by Senator Ensign that the health insurance mandate exceeds congressional authority under Article I, Section 8, and violates the Fifth Amendment.

Senators Ensign and Hatch yesterday raised the constitutional objectionson the floor (beginning on page S13721 of the December 22, 2009, Congressional Record); Senator Leahy defended the constitutionality of the mandate (beginning on page S13751 of the December 22, 2009, Congressional Record).

The constitutional arguments are by now familiar.  Ensign and Hatch argued that the mandate amounts to a regulation of inactivity by requiring the purchase of insurance; this exceeds congressional authority under the Commerce Clause (which permits Congress to regulate interstate commerce).  They read David Rivkin and Lee Casey's WSJ op-ed, their Washington Post op-ed, and Randy Barnett, Nathaniel Stewart, and Todd Gaziano's Heritage Foundation piece into the record.  Leahy argued that the mandate is well within congressional Commerce Clause authority as defined by the Court in Gonzales v. Raich, among other authorities--that health insurance, and, by extension, the mandate, has a substantial effect on interstate commerce.  Leahy read Erwin Chemerinsky's LA Times op-ed into the record.

The debate is an excellent example of the Constitution outside the courts--a good supplement to your Spring Term classes on congressional authority.

We've previously covered the constitutional debates here, here, and here.


December 24, 2009 in Congressional Authority, Federalism, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 23, 2009

Times: Undo Iqbal, Restore Access

The New York Times yesterday ran an editorial urging Congress to overturn Ashcroft v. Iqbal, the case that came down last spring and effectively heightened the pleading standard for plaintiffs in federal court.  (Thanks to Con Law Prof Blog editor Ruthann Robson for the heads up.)  We most recently covered the issue here.

The Times is right in framing the issue as an access question.  As we've written here and here, lower courts have used Iqbal to dismiss hundreds of complaints for failure to meet the pleading standard set in the case.  (We of course don't know exactly how many of these cases might also have been dismissed under the pre-Iqbal plain-statement standard.  But the rash of dismissals in the wake of Iqbal, and citing Iqbal, suggests that this case is responsible, as the Times writes, for curtailing access to the courts.)

Congress can undo the effects of Iqbal and return the pleading standard to the pre-Iqbal level.  Senator Specter introduced legislation here; Representative Jerrold Nadler introduced legislation here.  We looked more carefully at the legislation here.


December 23, 2009 in Congressional Authority, Equal Protection, Fourteenth Amendment, Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 22, 2009

Update: Pregancy Policy for Army, Comments by Major General Cucolo

UPDATE: For a comment posted by Task Force Marne PAO from Cucolo see comments to previous post  here.

The "anti-pregnancy" policy announced by Major General Cucolo (pictured) previously discussed here, has caused quite a stir.  


A Department Defense briefing, December 22, 2009, available from the Federal News Service (and on Lexis), is headlined:

Defense Department Conference Call With Major General Tony Cucolo, U.S. Army, Commander, 3rd Infantry Division Via Teleconference From Iraq;

Subject: Pregnancy Provision In His Recent General Order

Cucolo specifically addressed the matter of court-martial for pregnancy:

Now, I regret that the term court-martial was bandied about or mentioned by one of the earliest written reports on this.  I think what they did was, they probably read the general order number one and saw the words there.
This is -- this aspect of general order number one is a good order and discipline issue.  And I believe that I can handle violations of this aspect with lesser degrees of punishment.
So no, I do not -- I have not ever considered court-martial for this.  I do not ever see myself putting a soldier in jail for this.  I have had four soldiers.  I have had to deal with four cases.  In each case, they received a written reprimand, a letter of reprimand.
Now, I had two choices with that written letter of reprimand.  I could have put it in their official file, which may or may not have impacted their career.  But it would stay in their file, be seen at promotion boards, things like that.
Or I could put it in their local file, which is local disciplinary action, stays in the unit for a finite period of time and does not follow them when they're transferred.
In the four cases I had, they got local letters of reprimand. The obviously you say -- you know, I mean, I hold the men accountable too.
So there should have been four males punished.  There were three males punished.  And the reason there weren't four is because one female soldier did not want to say the name of the father, and I dropped it.  I did not pursue it.

Responding to criticisms that the policy treats men and women differently, Cucolo had this to say:

The men stay in combat, and the women are sent home because they're pregnant, but both receive the same punishment, unless there are other circumstances.  Both receive the same punishment.
. . . .

I am the one responsible and accountable for these 22,000 soldiers.  The National Organization for Women is not.  Critics are not.  I appreciate -- I will listen to critics, and they add thought. But they actually don't have to do anything.  I have to accomplish a very complex mission, very complex.

We are on the Kurd-Arab faultline up here.  We are -- we are moving units, relocating things.  It's a very dynamic atmosphere.  And I am most concerned about the health, welfare, morale, well-being and fighting ability of every single one of my soldiers.  And I'm going to do what it takes to maintain our strength and bring as many home as I can.

I owe that to the American -- I believe the American people expect me to do everything I can to keep every one of the soldiers -- that their money, their taxpayer dollars, trained and got ready for this -- in the fight.


December 22, 2009 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, News, Privacy, Reproductive Rights, War Powers | Permalink | Comments (1) | TrackBack (0)

DHS Extends REAL ID Compliance Deadline, Advocates Reforms

Department of Homeland Security Secretary Janet Napolitano last week extended the December 31 deadline for states to materially comply with the REAL ID Act.  The Secretary left in place, however, the May 10, 2011, deadline for full compliance with the Act.

The REAL ID Act (Division B, Title II, starting page 81), signed by President Bush in May 2005, requires state-issued identification to meet certain federal requirements if they are to be used for federal purposes, like airline screening.  The Electronic Privacy Information Center has good background information here

States balked, arguing that the requirements amounted to an unfunded mandate and insufficiently protected privacy.  Most recently, the National Governors Association wrote Secretary Napolitano stating that at least 36 states could not materially comply by the December 31 deadline and asking for an extension.

In granting the extension, Secretary Napolitano also pushed for repeal of the REAL ID Act, reform of the requirements, and enhanced privacy measures in pending legislation in both the Senate and House.  (The Secretary advocated repeal of the REAL ID Act as early as last spring.)


December 22, 2009 in Congressional Authority, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Sunday, December 20, 2009

Don't Ask, Don't Get Pregnant?: Military Policy for Iraq Bans Pregnancy or Impregnanting

398px-ArmyCombatShirt Stars and Stripes, The Independent News Source for the U.S. Military Community, is reporting that a policy which went into effect in early November, and just reported, restricts the reproductive rights of military and civilian personnel:

The rule governs all those serving under Maj. Gen. Anthony Cucolo III, who commands Multi-National Division-North, including Balad, Kirkuk, Tikrit, Mosul and Samarra. According to the order, it is “applicable to all United States military personnel, and to all civilians, serving with, employed by, or accompanying” the military in northern Iraq, with few exceptions.

Someone would violate the policy by “becoming pregnant, or impregnating a soldier, while assigned to the Task Force Marne (Area of Operations), resulting in the redeployment of the pregnant soldier,” according to the order.

The General Order, Number 1 applicable to Iraq (download here) already prohibits, in subsection q “sexual contact of any kind with Iraqi nationals, foreign nationals, or local nationals who are not members of collation forces,” and in subsection r “cohabitation, residing, or spending the night in living quarters of any kind with a member of the opposite sex,” although excepting “lawfully married spouses” and “situations of military exigency.”

The pregnancy policy seems to have no exceptions.


December 20, 2009 in Current Affairs, Family, Fundamental Rights, Gender, News, Privacy, Reproductive Rights, War Powers | Permalink | Comments (2) | TrackBack (0)

Saturday, December 19, 2009

Obama Administration says Ninth Circuit Judge's Administrative Opinion not "Binding"

In a statement issued by Elaine Kaplan (pictured) Squareelainekaplan OPM counsel and "open lesbian,"  the OPM and the Obama Administration refuse to comply with Ninth Circuit Judge Kozinski's order granting spousal benefits to lesbian federal employee's same-sex partner, previously discussed here.

Kaplan's statement, not yet on the OPM website but on the Advocate website here, provides in part:

It’s important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary. He was not acting as a federal judge in a court case. This does not mean that the inability to extend benefits to Karen Golinski’s spouse is any less real or less painful, but it is a critical point.

The decision in this matter was not reached lightly — after we learned of this development, we examined our options and consulted with the DOJ. DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in his administrative capacity, and not as a judge in a court case. Thus, this type of order does not change the existing law, which DOJ concludes prevents the enrollment. DOJ also advised us that DOMA prohibits same-sex spouses of federal employees from enrolling in the FEHBP and that the law does not permit OPM to allow this enrollment to proceed.

By characterizing Kozinski's order as administrative rather than an opinion by a judge in an Article III capacity, the Statement seeks to diffuse any arguments raising separation of powers issues.  The statement ends with a note that Obama has "personally" called for an end to DOMA. 


December 19, 2009 in Current Affairs, Equal Protection, Executive Authority, Family, News, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Friday, December 18, 2009

Holiday Gift for the Con Law Prof in Your Life

If you're in search of the perfect holiday gift for the Con Law Prof in your life, consider the Visual History of the Supreme Court of the United States, published by Timeplots.  The History includes an amazing amount of information about the Court, graphically (and attractively) displayed all in one place.  Framing available.



December 18, 2009 in News | Permalink | Comments (0) | TrackBack (0)

Pentagon Announces Policy to Assist with Voter Registration

The Defense Department this week announced a new policy to ask all military personnel if they want to register to vote when they relocate to a new base.  The New York Times reports here.

The initiative is designed to address long-standing problems with military personnel registering and voting.  It comes in the wake of a provision (Sections 575 to 589) in the Defense Department authorization, passed in October, that would make it easier for overseas citizens and military personnel to vote absentee.

Senator Cornyn (R-TX) reportedly held up confirmation of President Obama's nomination for under-secretary of defense for personnel and readiness until the Defense Department agreed to this change.


December 18, 2009 in Congressional Authority, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Thursday, December 17, 2009

Federalist Society Debates "Pay Czar," PCAOB

The Federalist Society is hosting two debates in their on-line debate series, one on the constitutionality of the "pay czar," the other on the constitutionality of the Public Company Accounting Oversight Board.  (I posted on the "pay czar" most recently here; I posted on the PCAOB most recently here.)

The pair juxtapose nicely on separation-of-powers and Appointments Clause issues.  The PCAOB debate, argued at the Supreme Court just last week in Free Enterprise Fund v. PCAOB, asks the question whether Congress overstepped its bounds and went too farin creating the PCAOB, an "independent" regulatory board within the already "independent" SEC.  The "pay czar" debate asks whether Congress didn't go far enough in vesting the Secretary of the Treasury with appointment power for the Office of Master for Compensation.

The PCAOB arguments are more typical of the kinds of claims we've heard in cases like Morrison v. Olson (upholding the independent counsel), where the claim is that Congress intruded on an area reserved to the executive.  We've also heard these arguments from unitary executive theorists, perhaps especially during the Bush Administration.

Arguments against the "pay czar," in contrast, say that Congress didn't go far enough--that it wasn't specific enough in its vesting to meet the demands for inferior officers under the Appointments Clause.

While the two debates together nicely bookend Appointments Clause and separation-of-powers questions, together they won't help us draw any lines.  The PCAOB case pushes the outer edge of what Congress can authorize without intruding on the executive; the "pay czar" debate goes the other way and pushes the outer edges of what the executive can do without specific authorization from Congress.  They make an interesting comparison, but they're too far apart to help us move forward in defining precise lines.


December 17, 2009 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 15, 2009

Uighurs File Brief at Supreme Court

The petitioners in Kiyemba v. Obama, the Chinese Muslims still detained at Guantanamo Bay, filed their merits brief at the Supreme Court last week in their case challenging the government's authority to continue to detain them.  Recall that the Uighurs filed a habeas case in the D.C. District and won release.  Judge Urbina ordered their release into the United States (because the government couldn't at that time find another country to take any of them).  The government appealed and won at the D.C. Circuit on separation-of-powers grounds: The D.C. Circuit ruled that the lower court had no authority to order release into the U.S., because the political branches, and not the courts, have power over immigration.  I most recently posted on the case here.

The Obama administration has since searched for a home for the Uighurs, relocating some of them to the Bahamas and Palau.  And Congress enacted legislation prohibiting the government from using funds to relocate detainees within the United States.

The remaining Uighurs last week filed their brief at the Supreme Court.  Substantively, there's nothing new here.  But two things stand out and make the brief well worth your time.  First, the brief puts together in one place the timeline of the Uighurs' detention and litigation--a concise statement of the government's foot-dragging and legal maneuvering in the case.  Next, the brief underscores the significance of the case: If the Court upholds the D.C. Circuit, the case threatens to become the twenty-first century Mezei--a widely criticized relic in which the Court upheld an alien's detention at Ellis Island (variously described by the Court as "harborage," "temporary haven," and "exclusion") without a hearing based on alleged secret information.

The Uighurs' argument is simple and elegant: They won on habeas; the remedy on habeas is release (citing Boumediene); and the only place they can go is the U.S.  But the argument runs up against the government's position, and the D.C. Circuit's ruling, on separation of powers and the courts' lack of authority over immigration.  If the Court buys this point, the case could mean that the government could detain indefinitely--for immigration reasons, not enemy combatant reasons.  If the Court doesn't buy this point--and instead upholds Judge Urbina's decision--it could put the Obama administration in a very tough spot: The administration would have to release the Uighurs into the U.S., or make the difficult sell to other countries that the Uighurs are too dangerous for the U.S., even after our highest court ordered release, but yet not too dangerous for them.

The government argued in its cert. brief that the Uighurs are no longer detained as enemy combatants and are free to go to any country that will take them.  None will, at least not yet.  As the government continues to move to close Guantanamo--President Obama formally announced just today that the government will transfer some detainees to a prison in Illinois--we might imagine that it also is moving to find a permanent home for the Uighurs and moot this case before before the Court rules.


December 15, 2009 in Executive Authority, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, December 14, 2009

A Constitutional Play at the AALS

Actor, playwright, and Con Law Prof Paul Baier (LSU) is previewing his new play, "Father Chief Justice": Edward Douglass White and the Constitution at the Louisiana Supreme Court on January 6, 2009--during the AALS Annual Meeting.  More on the play here.

Just a few seats remain, so contact Steve Errick Managing Director, Aspen Publishers now to reserve your spot.



December 14, 2009 in Conferences, News | Permalink | Comments (0) | TrackBack (0)

Sunday, December 13, 2009

Staszewski on Statutory Interpretation and Separation of Powers

Glen Staszewski (Mich. St.) just published his thoughtful article on statutory interpretation and separation of powers, Textualism and the Executive Branch,on SSRN.  The piece is part of an impressive symposium that Staszewski organized at MSU on administrative statutory interpretation, including some of the most active and impressive scholars in this area.  Staszewski's introduction is here; links to other symposium articles in the MSU Law Review are here.  (The entire issue is well worth a look.)

Staszewski argues that a commitment to textualism and a commitment to a strong executive--commitments often held by the same people--are fundamentally incompatible.  In short, textualism--the approach to statutory interpretation that looks to the meaning of a statute's words at the time of their adoption, and not to legislative history--is a restrained method of interpretation.  For adherents, it's thus an effective device to control an active judiciary.  But this kind of restraint won't work for a powerful executive.  A powerful executive needs broad, not restrained, interpretive authority, and adherents enthusiastically support the deference the executive gets through Chevron.  Textualism is thus incompatible with a powerful executive; and when the same person holds both positions, argues Staszewski, there's a problem.

Staszewski traces both textualism and the push for a powerful executive to the Reagan administration.  He shows that textualism evolved in the executive branch as a way to rein in an active judiciary--to limit the power of the courts in matters of statutory interpretation, and thus expand the power of the executive.  But in the textualists' enthusiasm for controlling the courts, they fundamentally overlooked the fact that all their arguments for the textualist technique applied with equal force to the executive: By the textualists' own reckoning, textualism should also apply to executive statutory interpretation.  But this is inconsistent with a powerful executive.

Staszewski reviews some recent scholarship that has attempted to reconcile textualism and a powerful executive based on claims, for example, that the courts occupy a different role and have a different institutional competence than the executive.  Moreover, the courts are not accountable in the same way that the executive is.  And the courts do "law," where the executive does "policy."  For each of these reasons, the courts, the argument goes, should interpret statutes differently than the executive.  Staszewski rejects these arguments, first because they're mostly beside the point (because the primary arguments for textualism apply to the executive as well as the courts, these points notwithstanding) and second because they're riddled with problems. 

Staszewski concludes that the incompatibility of these two positions ultimately undercuts textualism:

Rather, the point of this Article is to show that a legal theory that simultaneously embraces the new textualism and unbridled executive discretion is fundamentally incoherent.  A faithful agent of Congress could always adhere to the plain meaning of statutory language or exercise a reasonable degree of policy discretion, but a true believer in modern textualism cannot have it both ways.  When textualists nonetheless advocate broad and unconstrained executive discretion, they are effectively acknowledging that their understanding of the legislative process and constitutional structure is ultimately not controlling.  Although a heavy emphasis on the text could still be defended in statutory interpretation on other grounds, modern textualist theory loses most of its content and force when stripped of those underpinnings.

Check it out.


December 13, 2009 in Executive Authority, Interpretation, Scholarship, Separation of Powers | Permalink | Comments (0) | TrackBack (0)