Constitutional Law Prof Blog

Court Rejects Government's State Secrets Assertion in TSP Case

Judge Vaughn Walker (N.D. Cal.) today denied the government's motion for summary judgment based on its claim that the state secrets privilege prevented plaintiff al-Haramain Islamic Foundation from showing that the government's terrorist surveillance program (TSP) violated the Foreign Intelligence Surveillance Act (FISA).  (Thanks to Rebecca Beyer of the San Francisco Daily Journal for the tip.)  Judge Walker also granted the plaintiffs' motion for summary judgment and ruled the TSP program unlawful.

The case, Al-Haramain Islamic Foundation v. Obama, is the culmination of years of litigation at the district court and Ninth Circuit and incessant delay tactics and perpetual foot-dragging on the part of the government.  Among other things, the government made expansive arguments about the application of the state secrets privilege.  (I just posted my paper surveying the government's position on the state secrets privilege post 9/11 here.)  This latest ruling rejected yet two more of the government's expansive arguments on the privilege.

The plaintiffs originally filed their complaint in the case with a classified document that had been inadvertently disclosed by the Office of Foreign Assets Control as part of a production of unclassified documents related to Al-Haramain's designation as a "Specially Designated Global Terrorist" organization.  (The classified document showed that the plaintiffs were subject to surveillance.)  The government moved to dismiss the case, arguing that the very subject matter of the case was a state secret.  The Ninth Circuit rejected this expansive claim but also ruled more narrowly that the state secrets privilege protected the classified document from use in the case. 

The plaintiffs re-pleaded and included new and detailed factual claims supporting their FISA claim (but omitted the classified document, ruled protected by the state secrets privilege).  The government moved to dismiss again, this time arguing that the state secrets privilege foreclosed plaintiffs' attempt to establish their case without the classified document, and that the state secrets privilege overrides the FISA.  Both of these arguments are close cousins of the government's expansive argument that the very subject matter of the case was a state secret.

The court in its order today rejected both of these arguments.  As to foreclosure, the court ruled that nothing in the Ninth Circuit's ruling foreclosed the plaintiffs from establishing their FISA case through other evidence.  (This approach--allowing plaintiffs' suits to move forward, when possible, without privileged material--is the traditional approach to the evidentiary state secrets privilege since U.S. v. Reynolds, as I argue in my article above.)  As to override, the court held the government's position untenable: it would mean that the government could use the state secrets privilege at will to avoid FISA litigation; this was contrary to congressional intent in enacting FISA and contrary to the Ninth Circuit's interpretation of FISA in the earlier appeal.

In making these arguments, the government continued its efforts to expand the state secrets privilege into a constitutional, separation-of-powers principle (and not a mere common law privilege).  The effect of this position is exactly what Judge Walker wrote: the government could use the privilege anytime it wanted, without meaningful judicial check, to override lawsuits (like Al-Haramain's FISA suit) against it.  But the government's position, while argued in several post-9/11 cases, was accepted (so far) by only one circuit court--the Fourth Circuit in El-Masri.  The claim was rejected by a three-judge panel of the Ninth Circuit in Mohamed v. Jeppsen Dataplan, the extraordinary rendition case, but the government pressed this same expansive argument to the en banc Ninth Circuit.  No word yet on that case.

SDS

Railway Express v New York: Illustration

The pros and cons of powerpoint in the classroom are hotly debated, but for ConLawProfs who like a good illustration to enliven their classrooms with a bit a humor, the below image of a Dutch bus from copyranter  via Above The Law is worth considering.

Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) is a classic case of equal protection and is excerpted in most Casebooks.  The case is best known for its low standard of rational basis review in equal protection, often called "Railway Express rational basis," or by some students the "lowest of the low" rational basis. 

The NYC Traffic Regulation at issue provided: "No person shall operate, or cause to be operated, in or upon any street an advertising vehicle; provided that nothing herein contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner, and not used merely or mainly for advertising." 

The government interest was traffic safety, but the Court upheld the classification made which was not a logical one such as size or color of the advertisement, but was based on the ownership of the vehicle on which the advertisement was placed.

RR

The Reach of Citizens United

The en banc D.C. Circuit ruled on Friday that the logic of Citizens United v. FEC, the Supreme Court's January 21 ruling striking down limits on independent campaign expenditures, also applied to independent campaign contributions. 

The case, SpeechNow.org v. FEC, involved a First Amendment challenge by an independent 527 political organization to the limits in 2 U.S.C. Sec. 441a, the Federal Election Campaign Act section that limits contributions to organizations engaged in advocacy of the election or defeat of a clearly identified candidate not in cooperation with the candidate, the candidate's political committee, the candidate's party, or the candidate's agent.

The D.C. Circuit ruled the limits unconstitutional based on the reasoning in Citizens United.

The D.C. Circuit ruling may be read as an extension of Citizens United--extending that case from expenditures to contributions--but nothing in the ruling was a particular surprise in the wake of Citizens United.  Instead, the ruling simply applied the logic of Citizens United to a related context and in the process gave a glimpse of the potentially vast reach of that case.

The D.C. Circuit started by recognizing that there is only one government interest that can support an encroachment upon First Amendment principles through regulation of contributions: preventing corruption or the appearance of corruption.  But the Supreme Court in Citizens United narrowed the definition of this interest to a financial quid pro quo--money for political favors.  (The Citizens United Court held that this definition was faithful to the Court's 1976 ruling in Buckley v. Valeo, and that subsequent cases that expanded this definition, including Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC that relied upon Austin, deviated from Buckley and were therefore overruled.)  The Court also ruled that independent expenditures--those expenditures by corporations and labor unions that are not coordinated with a candidate or the candidate's committee or party--do not raise corruption concerns (because, after all, they are independent).

The D.C. Circuit took these holdings from Citizens United on expenditures and applied them to contributions.  The D.C. Circuit ruled that it didn't matter that limits on contributions have been subject to a lower level of scrutiny than limits on expenditures, because under Citizens United, there are no government interests in regulating independent contributions:  the independence of the contributions means that there is no corruption concern.  The plaintiffs' First Amendment interests in contributions--even if less substantial than similar interests in expenditures--were sufficient to outweigh the government's non-interest in corruption.  As the D.C. Circuit wrote, "something outweighs nothing every time."

Thus SpeechNow.org is an expansion of Citizens United, but not a particularly surprising one.  The core of the problem for those opposed to unregulated independent contributions and expenditures lies in the Court's ruling in Citizens United--that independence nullifies the corruption concerns--not in the D.C. Circuit's application of that ruling.  SpeechNow.org simply gives us a glimpse of just how far Citizens United might reach.

SDS

State Constitutional Law Reference Guides

Ann Lousin (John Marshall, Chicago) recently published The Illinois State Constitution: A Reference Guide, the Illinois contribution to Greenwood/Praeger's series on reference guides to state constitutions.

 

Lousin's book, like others in the series, is an oustanding treatise on state constitutional law, covering history, doctrine, and current issues.  Lousin, like other authors in the series, has a long and rich history with her state constitution.  (Lousin's experience stretches back to 1969, when served as a research assistant for most of the Sixth Illinois Constitutional Convention.  She has been a fixture in Illinois politics and constitutionalism since then, and she is widely regarded as the state's leading expert on the Illinois Constitution.)

The reference guides are obviously excellent sources for any state constitutional law course.  Perhaps less obviously, they provide outstanding fodder for federal constitutional law courses--as the basis for a comparative constitutional law approach, or complementary constitutional law approach.  They also make for fascinating reading in and of themselves, on issues ranging from interpretation and construction to constitution-making.  As Lousin writes in her Preface:

One of the themes of this book, especially the chapter tracing the history of the Illinois constitutions, is the difficulty in creating a state constitution for a society as diverse as Illinois. . . . Another theme of this book is the struggle of people with sincerely held views and differing backgrounds who had to compromise in order to create a charter for Illinois.

SDS

The Administration's Divide Over Presidential Authority Post 9/11

Charlie Savage wrote a piece in today's New York Times detailing the divide in the Obama administration over presidential counterterrorism authority, including detention authority and power to order drone strikes.  Savage outlines some of the debates within the administration over whether to maintain, or to modify, the sweeping claims of presidential authority under the Bush administration.  On the one hand, Savage reports that some career Justice Department attorneys thought that scaling back the Bush administration's sweeping claims might make it harder to win detainee suits.  On the other hand, modifying these claims would help demonstrate a clear break with the Bush administration. 

Savage reports that Harold Koh, State Department Legal Adviser, and Jeh Johnson, former Air Force General Counsel and Obama campaign advisor, issued dueling secret legal memos on detention authority in detainee Belkacem Bensayah's case.  (Bensayah was arrested in Bosnia, accused of facilitating travel of individuals who wanted to join Al Qaeda, and held at Guantanamo.)  Koh argued "that there was no support in the laws of war for the United States' position in the Bensayah case"; Johnson argued "for a more flexible interpretation of who could be detained under the laws of war." 

In the end, the administration made some changes to the Bush administration's positions on detention authority, but Savage reports that their significance is disputed:

"I think the change in tone has been important and has helped internationally," said John B. Bellinger III, a top Bush era National Security Council and State Department lawyer.  "But the change in law has been largely cosmetic.  And of course there has been no change in outcome."

But at a recent American Bar Association event, Mr. Koh argued that the administration's changes--including requiring strict adherence to anti-torture rules and ensuring that all detainees are being held prusuant to recognizable legal authorities--have been meaningful.  The United States, he said, can now defend its national-security policies as fully compliant with domestic and international law under "common and universal standards, not double standards."

SDS

Justices Scalia, Breyer on Constitutional Interpretation

Justices Scalia and Breyer made their latest appearance together in their popular road-show debating constitutional interpretation at the Supreme Court Historical Society last week. 

    

The one-hour program was broadcast on C-SPAN last night and is available here.

SDS

Obama's Recess Appointments: 15 announced today including to NLRB

Article II section 2, clause 3 of the Constitution allows the President to make "recess appointments":

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

A release from the White House Press Secretary today notes that there are currently "a total of 217 nominees pending before the Senate," who have been "pending for an average of 101 days, including 34 nominees pending for more than 6 months."  Specifically, the release contends that the 15 nominees to be appointed  "have been pending for an average of 214 days or 7 months for a total of 3204 days or almost 9 years."

The named nominees are:

• Jeffrey Goldstein: Nominee for Under Secretary for Domestic Finance, Department of the Treasury;
• Michael F. Mundaca: Nominee for Assistant Secretary for Tax Policy, Department of the Treasury;
• Eric L. Hirschhorn: Nominee for Under Secretary of Commerce for Export Administration and head of the Bureau of Industry and Security, Department of Commerce;
• Michael Punke: Nominee for Deputy Trade Representative - Geneva, Office of the United States Trade Representative;
• Francisco "Frank" J. Sánchez: Nominee for Under Secretary for International Trade, Department of Commerce;
• Islam A. Siddiqui: Nominee for Chief Agricultural Negotiator, Office of the U.S. Trade Representative;
• Alan D. Bersin: Nominee for Commissioner, U.S. Customs and Border Protection, Department of Homeland Security;
• Jill Long Thompson: Nominee for Member, Farm Credit Administration Board;
• Rafael Borras: Nominee for Under Secretary for Management , Department of Homeland Security;
• Craig Becker: Nominee for Board Member, National Labor Relations Board;
• Mark Pearce: Nominee for Board Member, National Labor Relations Board;
• Jacqueline A. Berrien, Nominee for Chair of the Equal Employment Opportunity Commission;
• Chai Feldblum, Nominee for Commissioner, Equal Employment Opportunity Commission;
• Victoria A. Lipnic: Nominee for Commissioner, Equal Employment Opportunity Commission;
• P. David Lopez: Nominee for General Counsel, Equal Employment Opportunity Commission

The appointments of Becker and Pearce to the NLRB provide an answer to CJ Roberts query in the oral argument in New Process Steel v. National Labor Relations Board on Tuesday, concerning the ability of the NLRB to act when only two of its five positions are filled.  Neal Katyal, Deputy Solicitor General, was discussing the present composition of the NLRB:

MR. KATYAL: There are three nominees pending right now.
JUSTICE GINSBURG: Three?
MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum -- a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?
MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board.

(Transcript at 49-50). 

RR

The Response: A Movie About Guantanamo Detainee Trials

The Response, a short film dramatizing detainee Combat Status Review Tribunals at Guantanamo Bay, has been traveling around the country and earning praise and prizes.  The film was researched and shot at the University of Maryland School of Law with a cast that agreed to defer all or most of their salaries in order to produce it. 

You can see clips on the film's web-site, but the full film is not yet available for purchase, download, or rental.  Check out the web-site, though: If it's scheduled to play in your city, this could make an excellent complement to lessons on separation of powers in wartime.

SDS

Heyck on Originalism and the Second Amendment

Thomas William Heyck (Northwestern, professor emeritus of history) satirizes originalism as applied to the Second Amendment in an op-ed in today's Chicago Tribune.  Heyck argues that Justice Scalia's form of originalism absolutely protects "the right to keep and bear muzzle-loading flintlock arms."  (It also protects hatchets, tomahawks, swords, pitchforks, and other weapons known to the founders.)  But originalist advocates of Second Amendment protection for modern weapons--necessary, they say, to protect against an over-reaching government--commit the "original intention" fallacy: They focus on the ever-ambiguous intent of the framers, not the more determinate original meaning of the text, and thus open the text up to anything anybody wants it to mean. 

SDS

Shesol's Supreme Power

Jeff Shesol, author of Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, just published Supreme Power: Franklin Roosevelt vs. the Supreme Court.

 

Shesol, a Clinton speechwriter, tells the story of FDR's court-packing plan "with a novelist's eye, a historian's care, and a blogger's energy" (quoting Jeffrey Toobin's dust-cover advance praise).

SDS

Supreme Court Nominees: No Presidential Wannabes Need Apply

There is no perfect SCOTUS nominee.  One suggestion for Obama has been that he nominate himself.  Obama would therefore join the rarified company of a POTUS who became a member of SCOTUS: kudos if you can name that person (pictured below) without any research.

And further kudos if you know who was responsible for William Taft pursuing the presidency first when he really wanted to be on the Supreme Court: according to Taft's Presidential bio on whitehouse.gov, his wife is to blame.

But what about SCOTUS members who have presidential aspirations?  There have been quite a few, as discussed in an intriguing new paper by ConLawProf William G. Ross.   Ross charts the changes in US political culture, noting that:

In at least three quarters of the presidential elections between 1832 and 1956, one or more Justices attempted to obtain a presidential or vice presidential nomination or were prominently mentioned as potential candidates. Several Justices conducted covert presidential campaigns, and a few even openly campaigned from the bench. On numerous occasions, political parties or political leaders encouraged Justices to become presidential candidates. One Justice, Charles Evans Hughes, resigned from the Court to accept a presidential nomination. 

No Justice during the past half century, however, appears to have entertained serious presidential ambitions.

Professor Ross suggests this change is all for the good.  He concludes that  presidential "ambition is hazardous to the Court's integrity" because a Justice could alter - -  - or be perceived to alter - - - his or her judgments in light of the presidential prospects.  This would "impair the prestige that the Court must have in order to command public support for its decisions."    Although Ross recognizes that the Court "might benefit from the experience of a career politician," nevertheless a Presidential nomination to the Supreme Court should occur only if the President is convinced the nominee "lacked any further political ambition."

RR

The Independence of Dodd's Bureau of Consumer Protection

Senator Chris Dodd last week introduced his financial reform bill, including his version of a consumer financial protection agency to regulate the financial services industry and "to protect consumers from abusive financial services practices."  In contrast to the House version, which includes a new stand-alone Consumer Financial Protection Agency, Dodd's Bureau of Consumer Protection would be housed within the independent Federal Reserve.  (See Section 1001, et seq., of the bill.)

The independence of the regulatory agency, whatever it's called, matters to the (Democratic) policy-makers: The more independent, the better.  (Dodd's move to place his Bureau within the Federal Reserve may have been the result of a compromise with Republicans on the measure.  House Democrats seem to favor a stand-alone agency.)

But the debates over the proposals raise the question: What does it mean to be "independent"? 

One measure of an agency's independence is the President's power to remove agency personnel.  Thus challengers to the Public Company Accounting Oversight Board, created by Sarbanes-Oxley, focused almost exclusively on the President's removal power (or lack thereof) in arguing last December before the Supreme Court that the Board violated the Appointments Clause and separation-of-powers principles.  Under Sarbanes-Oxley, Board members can be removed for cause only by the SEC, which itself can be removed only for cause by the President.  According to challengers, this so-called "double for-cause" protection unconstitutionally insulated Board members from Presidential control.

But the President's removal power is only one measure of independence.  Dodd's Bureau illustrates this well.  While the director and deputy director of the Bureau would enjoy 5-year terms, removable only for cause, and while the Bureau would be located within the Federal Reserve (characteristics suggesting dependence), the Bureau would also have its own qualified rule-making authority and its own enforcement authority (characteristics suggesting independence).  (The Wonk Room helpfully compares the Senate, House, and administration proposals here.)  Surely each of these characteristics (and not just the President's power to remove Bureau members) would be relevant in assessing the Bureau's "independence"--and its constitutionality under the Appointments Clause and separation-of-powers principles.  This, in fact, is what the government argued in the PCAOB case.

The debates over the appropriate level of independence for a new consumer financial regulatory agency are helpful reminders, soon after the PCAOB arguments, that multiple characteristics (and not just the President's power to remove officers) define an agency's independence, and its constitutionality.

SDS

Liu Ninth Circuit Nomination Hearing: Update

[Update: Liu hearing is rescheduled for April 16, 2010].

According to a just issued press release from Patrick Leahy (D-Vt), Chair, Senate Judiciary Committee, the nomination hearing scheduled for today for Goodwin Liu has been postponed. 

Liu, (pictured right) is a ConLawProf at UC-Berkeley (Boalt Hall) who has been nominated for the Ninth Circuit Court of Appeals.  The LATimes reports that Liu is facing opposition from conservatives who believe Liu is too liberal.

Liu clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit.   He has a B.S., from Stanford University (1991); a M.A. from Oxford University (1993), and his J.D. from Yale Law School (1998).   A list of his publications is here.

RR

Constitutional Challenge to Health Care Mandate: Complaint

 Within ten minutes of President Obama’s signing of the Patient Protection and Affordable Care Act, available as large download here, thirteen states through their state attorney generals filed a complaint in the Northern District of Florida, Pensacola Division, challenging the constitutionality of the statute.

The states - - - Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota - - -  contend that the Act “greatly alters the federal-state relationship, to the detriment of the states, with respect to Medicaid programs specifically and healthcare coverage generally” (para 39).  

Count One, entitled “Unconstitutional Exercise of Federal Power and Violation of The Tenth Amendment (Const. Art. I & Amend. X)”  alleges both that the Act exceeds Congressional power under Art I sec 8; the “taxing and Spending Clause”; or “any other provision of the Constitution” (para 56), and that the Act violates the Tenth Amendment.

Count Two, entitled “Violation of Constitutional Prohibition of Unapportioned Capitation or Direct Tax
(Const. Art. I, §§ 2, 9)” alleges that the tax penalty on uninsured persons “constitutes a capitation and a direct tax that is not apportioned among the states.”

Count Three, entitled “Unconstitutional Mandate That All Individuals Have Health Insurance Coverage Or Pay Tax Penalty (Const. Art. I & Amend. X)”  alleges:

The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8. The Act infringes upon Plaintiffs’ interests in protecting the freedom, public health, and welfare of their citizens and their state fiscs, by coercing many persons to enroll in Medicaid at a substantial cost to Plaintiffs; and denies Plaintiffs their sovereign ability to confer rights upon their citizens and residents to make healthcare decisions without government interference, including the decision not to participate in any healthcare insurance program or scheme, in violation of the Tenth Amendment (para 65).

The fourth and final count seeks declaratory judgment based on the previous allegations.

For pedagogical purposes, the Complaint could be used as an in class exercise in a Constitutional Law course, perhaps using some of the materials available from the Federalist Society here to write a memo in support of the complaint, as well our previous discussions here and here.  It might also be useful for a Constitutional Litigation seminar to engage in a redrafting of the Complaint or a drafting of an Answer.

RR

Gender, Equal Protection & Immigration SCOTUS grants cert in Flores-Villar: Analysis

The question is a narrow one: : whether the court's decision in Nguyen v. INS, 533 U.S. 53 (2001), permits gender discrimination that has no biological basis?

Recall that the Court in Nguyen upheld 8 U. S. C. § 1409 which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States - - -  survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.”  The Majority found that the statute served two important governmental interests:  the importance of assuring that a biological parent-child relationship exists and the importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”   The Court in Nguyen relied on biological reasoning: women give birth and men may not even realize their paternity, concluding:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.

The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam.  Although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity and the father obtained an order of parentage from a state court. 

The Court's grant of certiorari  in Flores-Villar will involve a reconsideration of Nguyen.  Flores-Villar was born in Tijuana, Mexico 1974 to a non-citizen mother and a United States citizen father who, importantly,  was sixteen at the time.   His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old.  He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985.  Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.

The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship.  Moreover, in the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

The Ninth Circuit upheld the statutory scheme, holding that avoiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests, and that the means chosen substantially further the objectives.  The Court stated: "Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”

This “fit” will certainly be at issue before the United States Supreme Court.  Justice O’Connor’s dissenting opinion in Nguyen, joined by Souter, Ginsburg, and Breyer,  stressed the heightened scrutiny required by Virginia v. US (VMI) with its requirement of a closer fit between the “discriminatory” means chosen and gender stereotypes.   The dissenting Justices reasoned that the statute was “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children” and could easily be rendered sex-neutral.

In Flores-Villar, because the gender differential is a residency requirement - - - and not, as in Nguyen, a relationship with child requirement - - - the “fit” may not be sufficiently tight.  If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.”   However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.  Balancing gender equality and citizenship will be the task for the Court - - - a task which the newest Justice will certainly undertake.

RR

 

Pending Executive Order on Abortion - Text

President Obama's "pending" EO on abortion, just released by The White House, provides:

ENSURING ENFORCEMENT AND IMPLEMENTATION OF ABORTION RESTRICTIONS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT

 
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the “Patient Protection and Affordable Care Act” (approved March __, 2010), I hereby order as follows:
 
Section 1.  Policy. Following the recent passage of the Patient Protection and Affordable Care Act (“the Act”), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment.   The purpose of this Executive Order is to establish a comprehensive, government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors—Federal officials, state officials (including insurance regulators) and health care providers—are aware of their responsibilities, new and old.
 
The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges.  Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. §300a-7, and the Weldon Amendment, Pub. L. No. 111-8, §508(d)(1) (2009)) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.
 
Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM). 
 
Section 2.  Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges.  The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014.  The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires state health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office. 
I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in Section 1303 of the Act, for enrollees receiving Federal financial assistance.  The guidelines shall also offer technical information that states should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges.  In developing these model guidelines, the Director of OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office.  Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to state health insurance commissioners on how to comply with the model guidelines.
 
Section 3.  Community Health Center Program.  The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program.  Existing law prohibits these centers from using federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language.  Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions.  I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law.  Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.
 
Section 4.  General Provisions.  (a) Nothing in this Executive Order shall be construed to impair or otherwise affect:  (i) authority granted by law or presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This Executive Order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This Executive Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.

RR

SCOTUS Website: New & Improved

Just in time for Spring, the Supreme Court of the United States has a new, improved, better-looking, and more user-friendly website.

RR

Health Care and Education Affordability Act of 2010

The text of the proposed Health Care and Education Affordability Reconciliation Act of 2010 is available here.

The text, “Amendment in the Nature of a Substitute to HR 4872, As Reported,” is downloadable as a 152 page pdf.  Also available are the two volumes of the Budget Committee Reports.  A good reprisal in a few pages is the section-by-section analysis.  The Senate Health Bill (at almost 2500 pages) is also here.

RR

Wash U. Colloquium on Equal Justice

Washington University Law School is hosting its 10th Annual Access to Equal Justice Colloquium on Friday, March 19.  The Colloquium, "Challenging Structural Impediments to Substantive Justice," will dedicate its morning session to a keynote by Professor Martin Guggenheim (NYU) titled Exploring the Right to Counsel: Separation of Powers and Fact-Finding Capture and to an exploration of "a new theory for right to counsel in a variety of civil matters," or Civil Gideon.

SDS

Conferences: SALT Teaching, Fordham Democracy, and CUNY Kinship and Community

A few of the exciting conferences scheduled for the remainder of March include:

SALT (Society of American Law Teachers) Conference,  "Vulnerable Populations and Economic Realities: an interdisciplinary approach to law teaching"  on March 19-20, 2010 at Golden Gate University.    Gilbert Paul Carrasco, Willamette University School of Law (pictured left) and Michelle Wilde Anderson, (pictured right) Berkeley Law, University of California  will be speaking on "Teaching the Frontier: Class Issues in Constitutional Law and Spatial Discrimination."  A few of my CUNY colleagues will also be speaking.  Registration and program information here.   

Fordham Law (NYC) will sponsor the Fourth Law and Information Society Symposium with the topic "Hate Versus Democracy on the Internet" on March 26, 2010.  The program is a good mix of law professors and practitioners.  Of special interest to ConLawProfs teaching first amendment courses is the late morning panel, "Distinguishing Hate Speech from Legitimate Political Expression on the Internet."  The panel is moderated by Ann Bartow, University of South Carolina (and Feminist Law Professors Blog), and features David E. Bernstein of George Mason, Steven J. Heyman of Chicago-Kent, and Kenneth Lasson of U Baltimore, as well as Nicole Wong of Google, Inc.  Registration and program information here.

The Graduate Center of the City University of New York  will be hosting "All in the Family?: An Interdisciplinary Conference on Kinship & Community" on March 25–26, 2010.  This conference should be of interest to those ConLawProfs working at the intersection of constitutional law, family law, and law and literature.  The final performance will include a poetry reading by Kimiko Hahn (conversant in "Translating Equality")  and a performance by myself interweaving constitutional law doctrine, theory, and colonialism.  Preliminary program available here.

RR