Constitutional Law Prof Blog

Constitutional Challenges to Arizona Immigration Law SB 1070

Two more complaints have been filed in federal courts challenging the constitutionality of Arizona Immigration Law SB 1070.   In addition to the complaint filed by the Tucson police officer Martin Escobar we discussed previously, Phoenix police officer David Salgado has filed a complaint with similar allegations and arguments.

The more lengthy complaint filed by National Coalition of Latino Clergy and Christian Leaders (CONLAMIC) is filed as a class action of "all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law." (para 51).   The claims of unconstitutionality include substantive due process under the Fourteenth Amendment, violations of the Supremacy Clause; First Amendment; and violations of the Fourth Amendment and procedural due process. 

Other constitutional arguments are being put forward in a nonjudicial forum, spearheaded by Professor Ediberto Roman:

 Immigration and Constitutional Law Experts Against SB 1070

The undersigned law professors, immigration experts, and interested organizations write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, or in the alternative, calling upon Congress to conduct hearings on Arizona’s ultra vires act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070. With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection.

  [remainder of statement and more information here]

{Update: Arizona immigration statute partially enjoined; here}

RR

Complaint Challenging Constitutionality of Arizona Immigration Law SB 1070

A lawsuit challenging the constitutionality of Arizona's new immigration law SB1070 has been filed today in the United States District Court for the District of Arizona.  The  Complaint alleges violations of

• the due process clause of the Fourteenth Amendment, 
• the equal protection clause of the Fourteenth Amendment,
• the speech clause of the First Amendment,
• the Fifth Amendment,
• the Fourth Amendment,
• and of preemption (see our analysis here) and unauthorized or supervised federal immigration conduct.

The plaintiff, Martin Escobar, alleges he is "Hispanic" and "is employed as a permanent Police Officer with the City of Tucson for the Tucson Police Department."

The Arizona Star story is here.  See more discussions of SB1070 here.

[UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here].

RR

Bills Respond to Citizens United

Senator Chuck Schumer and Representative Chris Van Hollen introduced companion bills today in the Senate and the House to restrict expenditures on certain electioneering communication and to increase reporting and disclosure requirements for others in response to the Supreme Court's decision in Citizens United v. FEC.   

The DISCLOSE Act would prohibit expenditures by governmental contractors, TARP recipients (but only taxpayer funds), and by foreign nationals, and bolster expenditure reporting and disclosure requirements (upheld in Citizens United).  Senator Schumer's summary is here. 

(Can you guess what DISCLOSE stands for?  Get ready: Democracy Is Strengthened by Casting Light On Spending in Elections.)

President Obama issued a statement today, calling the legislation "urgent" in the aftermath of Citizens United.

SDS

Cameras in the Courtrooms?

The Senate Judiciary Committee today voted out three bills that would provide for and encourage televised broadcast of federal court proceedings.

The most significant measure, S. 446, would require the Supreme Court to open its proceedings to television coverage:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The provision is controversial: The media and open government advocates push for televised proceedings, but the Court has balked--providing only transcripts of oral arguments (and only very rarely audio recordings) on the day of arguments.  The Senate bill requiring televised proceedings also raises serious separation-of-powers concerns.  As Justice Kennedy has said, "It is not for the Court to tell Congress how to conduct its proceedings . . . .  We feel very strongly that we have intimate knowledge of the dynamics and the mood of the Court, and we think that proposals mandating and directing television in our Court are inconsistent with the deference and etiquette that should apply between the branches."

A second bill, the Sunshine in the Courtroom Act of 2009, S. 657, would authorize (not require) a presiding judge in the lower federal courts to permit broadcast of courtroom proceedings, thus dodging the separation-of-powers concerns in S. 446.  The third measure, S. Res., simply expresses the sense of the Senate that the Supreme Court should permit televised proceedings if they don't violate a party's due process rights. 

The Senate's move comes in the wake of the Supreme Court's order earlier this year staying the television broadcast of the Prop. 8 case--the same-sex marriage case--in California.

SDS

Arizona's Immigration Law, Supremacy, and Federal Preemption

Does Arizona's new immigration law, SB 1070, violate the Supremacy Clause of the U.S. Constitution?  It may, in (at least) two ways.

SEE ALSO THE UPDATES AT THE END OF THIS POST.

First, Arizona's immigration law, which authorizes state and local law enforcement officials to inquire into the immigration status of any person "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States," runs up against the comprehensive federal scheme in Title 8 U.S.C. that governs treatment of aliens.  Congress enacted Title 8 pursuant to its plenary power under Article I, Section 8 of the Constitution to "establish a uniform Rule of Naturalization . . . throughout the United States."  The federal scheme reflects Congress's judgment to completely occupy the field of immigration and naturalization (with an important exception, discussed below)--a judgment that is well within its powers until Article I, Section 8--and the comprehensive federal scheme therefore likely preempts Arizona's new law.  The new law is almost certainly invalid under the Supremacy Clause.

But even if Arizona's new law doesn't fall under field preemption, it almost certainly falls under conflict preemption.  The federal immigration and naturalization scheme includes a place for state and local authorities.  8 U.S.C. Sec. 1252c reads:

(a) In general.  Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who--

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

(b) Cooperation.  The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

The provision contemplates a circumscribed role for state and local officials, to be sure, but the Arizona law authorizes a much broader role.  Particularly: The Arizona law authorizes arrest without a showing of a prior felony, the requirement under (a)(2), above.  Here's the provision from SB 1070:

E. A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.

An alien's unauthorized presence in the United States is just such an offense under 8 U.S.C. Sec. 1227.  Arizona's law is thus in conflict with the federal law and likely violates the Supremacy Clause under conflict preemption.

This isn't the first time that Arizona law came under challenge as running up against federal immigration law.  Just last year, the Ninth Circuit in Chicanos por la Causa v. Napolitano upheld Arizona's Legal Worker Act against a preemption challenge.  That act allows Arizona courts to revoke or suspend business licenses of employers who knowingly or intentionally hired unauthorized aliens.  But there the federal law, which prohibited employers from hiring unauthorized aliens, contained a specific savings clause that exempted state and local sanctions related to licensing from the broader preemption of state enforcement.  Arizona's law in that case fell squarely within this savings clause, and the court ruled that the Legal Worker Act was therefore not preempted.  (The Ninth Circuit also took its lead from De Canas v. Bica, the 1976 Supreme Court case that upheld a state law prohibiting employers from hiring unauthorized aliens, because the employment relationship is "within the mainstream of the state's police powers.")

The new law is different.  It regulates aliens directly, not by way of the employer-employee relationship (which is more obviously within the traditional powers of the state).  And the new law doesn't fall within a savings clause to a broader preemption provision; instead, it seems to run directly up against the corresponding federal law.

We've posted previously on the Arizona law here and here.  Jack Balkin posts his thoughts on preemption here; Jonathan Adler responds here.

UPDATE:  The law as enacted addresses some of these problems, but it does not solve them.  Thus, for example, Section B. requires "any lawful stop, detention or arrest" (not merely "any lawful contact") by a law enforcement official "in the enforcement of any other law or ordinance of a county, city or town or this state" (not merely for no reason) in order to trigger the "reasonable suspicion" standard.  This helps dodge the second conflict problem above (under the old section E. and 8 U.S.C. Sec. 1227), but not the first one (under 8 U.S.C. Sec. 1252c).  And it does nothing to dodge the field preemption problem.

Other sections of the law, too, are likely preempted under field and conflict theories.  Thus Sections C. and D. authorize state officials to securely transport an unauthorized alien to federal authorities upon release from state prison or on the assessment of any monetary fine.  This, too, runs up against 8 U.S.C. Sec. 1252c, because it does not require a felony or deportation or departure from the country, and violates field preemption.  Section F. authorizes the state to maintain immigration records for certain purposes; this, too, probably violates field preemption.

UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here.

Update: Arizona immigration statute partially enjoined on July 28, 2010, see here.

SDS

Doe v. Reed, The Right to Remain Anonymous when Signing a Ballot Initiative: Oral Argument Analysis

[UPDATE: DECISION here]

Today's oral argument at the United States Supreme Court in Doe v. Reed (transcript here) revealed some skepticism about the claim that signing a petition should be protected by the First Amendment in order to avoid harassment. 

The background facts can be a bit confusing.  In 2009, the Washington legislature passed SB 5688, expanding nearly all state-wide spousal rights and responsibilities to registered domestic partners, and commonly known as the “everything but marriage” law.   Opponents of the legislation sought to negate SB 5688 through a ballot initiative, Referendum 71.   Under Washington law, like most states that allow voter-initiated referendums, the process requires a certain number of valid signatures on petitions supporting the ballot initiative process.  The Secretary of State certified the Referendum for the November 2009 election with approximately 1,000 signatures to spare and an almost 12% error rate (signatures rejected) and prepared the ballot summary: A YES vote on Referendum 71 APPROVED SB 5688 expanding domestic partnership. Referendum 71 passed and SB 5688 became law.  

What is at issue in Doe v. Reed, however, is the disclosure of the signatures on the petitions.  

The Washington Public Records Act (PRA),  RCW 42.56, governs the disclosure of public records.  The state contends that the petitions with signatures are public records that need to be certified before the referendum can be placed on the ballot, and also contends that the signature gathering was done in public places and presented to the Secretary of State in a public forum.  The challengers to PRA, the "Does" and Protect Marriage.org contend that the disclosure of the signatures violates the First Amendment: the signing of a petition is core political speech subject to strict scrutiny and that the state's interests in disclosure are not compelling.  One issue is what, if anything, does the signature mean?  During oral argument there was some discussion that a signature on a petition supports placing the issue before the voters and does not necessarily mean anything about the desired outcome, but there seemed to be little disagreement that there was a very strong correlation.

The challengers heavily rely upon the threat of intimidation, discussing in their briefs events surrounding California's Proposition 8.  Court watchers will also recall that the Supreme Court refused to allow the televising of the Proposition 8 trial in federal court; an opinion from the trial judge is still pending. Indeed, at times during the oral argument, members of the Court seemed to believe that the case arose in California rather than Washington.  However, there seemed to be little evidence in the record about intimidation in Washington and some procedural reasons why none was presented.   Moreover, this might be better suited to an as-applied challenge to the statute rather than a facial one:  "This Court ruled as recently as Citizens United that such situations should be evaluated on a case-by-case basis to evaluate the reasonable probability of threats, harassments, and reprisals,"  answered the Attorney general of Washington in response to a question from Justice Breyer.

Arguing for the Does and Protectmarriage.org, James Bopp began : "No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations."

He was quickly interrupted by Justice Scalia who inquired about the analogy to campaign contributions, with Bopp agreeing and citing Buckley v. Valeo and Scalia asking why that doesn't fall within Bopp's principle that no person should be exposed to criticism for his political beliefs.  Indeed, Scalia expressed much skepticism regarding Bopp's argument:

the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.You are asking us to enter into a whole new field where we have never gone before. 

Scalia later derided the "touchy-feely, oh, so sensitive" sentiments, concluding that "you can't run a democracy this way, with everybody being afraid of having his political positions known."  

Justice Ginsburg inquired about the list of signatures as available to the organization, noting that the signatures on the petition could be used for marketing purposes, to which Mr. Bopp agreed.  

There was also a bit of a rebuke from Justice Kennedy:

JUSTICE KENNEDY: Well, let me -- let me ask you, could the opponents of a particular ballot measure organize a boycott for -- and picket businesses whose managers had supported that boycott.
MR. BOPP: Yes.
JUSTICE KENNEDY: Had supported that initiative?
MR. BOPP: Yes.
JUSTICE KENNEDY: Well, if that's -- if that's so, then under Claiborne Hardware, which I -- I notice you didn't cite in your brief, but if -- if that's so, then it seems to me that the State's -- or that -- that the signers' interest in keeping their names private is somewhat diminished.

In addition to the fraud rationale for requiring disclosure, Justice Stevens posed a public debate rationale:

JUSTICE STEVENS: Isn't there another possible public interest? Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?
Is there public interest in encouraging debate on the underlying issue?
MR. BOPP: Well, it's possible, but we think this information is marginal.

Justice Alito, questioning Robert McKenna who argued for the State of Washington, seemed to accept the state's interest in preventing fraud, but pushed vigorously against the public interest in knowing who is supporting the election:

JUSTICE ALITO: Well, but how far does that go? When I asked whether you could -- you want to know the religion of the people who signed? No, you can't do that. How much more demographic information could be collect -- could be -- does the -- does the State of Washington have an interest in making publicly available about the people who support this election?  Let's say it's -- it's a referendum about immigration. Does the State of Washington have an interest in providing information to somebody who says, I want to know how many people with Hispanic names signed this, or how many people with Asian names signed this? Is that -- that what you want to facilitate?

Before oral argument, it seemed to be easy to think about the signatures on the petitions by analogy:  Is the signature more like a legislative act, with little if any First Amendment protection given the countervailing interests of  open government.   Or more like an act of voting, with more First Amendment protection.  But during oral argument, this dichotomy broke down, especially given the historical appeals to secret voting as a recent development and not uniform in the United States.  

If the opinion reflects the oral argument, the state of Washington will most likely prevail.

RR

Update on Arizona Immigration Law SB 1070

There has been an outpouring of commentary and discussion of SB 1070 since our last post here.  

A few of the worthwhile materials include a NYT Room for Debate feature with Steven A. Camarota, Center for Immigration Studies; Hiroshi Motomura, UCLA immigration law professor; Dan Schnur, former adviser to John McCain; Tamar Jacoby, ImmigrationWorks USA; and Vivek Malhotra, ACLU.   All the commentators are good at analogizing to other legal controversies and are good examples of persuasive writing. 

Also on the NYT blog is an opinion piece by Linda Greenhouse.  Greenhouse takes a dim view of SB 1070; her opening might be thought to say all she has to say:

I’m glad I’ve already seen the Grand Canyon.

Because I’m not going back to Arizona as long as it remains a police state, which is what the appalling anti-immigrant bill that Gov. Jan Brewer signed into law last week has turned it into.

But Greenhouse's real contribution is her discussion of Plyer v. Doe, the 1982 case in which the Court (5-4) held unconstitutional a Texas statute denying public education to undocumented children. 

Governor Jan Brewer, who signed the bill into law, has been a focus of criticism, but her own statement is worth reading.  Brewer adamantly contends she is against "racial profiling" and that she

worked for weeks with legislators to amend SB 1070, to strengthen its civil rights protections. That effort led to new language in the bill, language prohibiting law enforcement officers from “solely considering race, color, or national origin in implementing the requirements of this section…”

A good commentary, a bit off the beaten path, is from The Desert Lamp, a student blog out of University of Arizona.  The author Connor Mendenhall has some particularly insightful observations about how SB 1070 fits into larger questions of Arizona politics, even as he has a pretty solid legal analysis.

If you are a ConLawProf who hasn't yet written the exam you have to give in a very short time, SB 1070 provides some great issues and framework; our recent exam drafting discussion has other tips and observations.  The law might also provide a great basis for a Criminal procedure examination - - - one can easily imagine a fact pattern raising 4th, 5th, and 6th Amendment issues.

And finally, if you haven't yet viewed the Stephen Colbert and Jon Stewart treatments, they are certainly worth a look.

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
The Word - Docu-Drama
www.colbertnation.com
Colbert Report Full Episodes Political Humor Fox News

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Law & Border
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

RR

High Court to Rule on California's Violent Video Game Law

The Supreme Court today agreed to hear California's appeal of a Ninth Circuit ruling that overturned the state's restrictions on violent video games under the First and Fourteenth Amendments. 

The case, Schwarzenegger v. Video Software Dealers Ass'n, involves a facial free speech challenge to California's newly enacted sales restrictions on violent video games.  Under the law, "[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor."  A "violent video game" is a game in which a player engages in violent acts against an image of a human, if those acts do either of the following:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.

(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.

The Ninth Circuit ruled that the California law was a content-based restriction subject to strict scrutiny, and that the state failed to articulate a compelling government interest, that the law was not narrowly tailored, and that the state could have adopted other, less restrictive alternatives to meet its objective.  The court thus overturned the law.

The issue before the Supreme Court is whether the Ninth Circuit should have applied strict scrutiny, or whether it should have applied the deferential "variable obscenity" or "obscenity as to minors" standard first mentioned in Ginsberg v. New York.  Ginsberg held that states could prohibit the sale of sexually-explicit material to minors as long as "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors."  This rational basis standard applied even though the material would not have been considered obscene for adults.

The choice of tests here is similar to the choice the Court faced just last week in U.S. v. Stevens.  In that case, the Court declined to carve out a new category of unprotected or lesser-protected speech for crush videos (depicting cruelty to animals), because crush videos have not been "historically unprotected" and didn't otherwise fit neatly into an established category.  So too, violent video games: While some of the content in some of these games may fit well with obscenity or "obscenity as to minors," much of it does not and otherwise defies easy categorization.

If the Court in Video Software is as reluctant to categorize as it was in Stevens, look for it to apply strict scrutiny as a content-based restriction on speech.  Then the Court will examine more carefully the link between violent video games and physical and psychological harm to minors--a link that the Ninth Circuit ruled the state failed to establish.

SDS

Stevens on Abortion

Linda Greenhouse's Justice John Paul Stevens as Abortion-Rights Strategist is a terrific article in the latest issue of the UC Davis Law Review's excellent symposium on soon-to-be-retired Justice Stevens.  Greenhouse seeks "to give Justice Stevens his due as a major contributor to the contours of the right to abortion that exists today. Indeed, he has served as an indispensable strategist in the preservation of that right at its moment of greatest need."  She notes that her supporting evidence is "hiding in plain sight in the pages of the United States Reports."   But, for the "backstory to the cases in which Justice Stevens participated," she relies on the collected papers of Justice Harry A. Blackmun in the Library of Congress.  Greenhouse is certainly an expert in Blackmun's papers, using them extensively in her biography Becoming Justice Blackmun.  Here, her impressive reportorial skills and her incisive analytic skills combine to produce engaging scholarship.  

For example, Greenhouse discusses Webster v. Reproductive Health Services., 492 U.S. 490 (1989), considering the statutory preamble that “life of each human being begins at conception.” Chief Justice Rehnquist's plurality opinion said this statement was without operative force, simply a “value judgment” that the state could make without a need for judicial scrutiny:

Justice Stevens saw the matter otherwise: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution,” he wrote in his separate opinion, concurring in part and dissenting in part.
Stevens was “deeply concerned about the future of the right to abortion. He sent an acerbic response to Chief Justice Rehnquist upon receiving his draft majority opinion (which did not turn out to be a majority opinion because Justice O'Connor, adopting a more cautious stance, declined to join it). Chief Justice Rehnquist did not explicitly call for overruling Roe. Rather, he wanted to replace the strict scrutiny analysis of Roe with a new standard under which a regulation would be upheld if it “reasonably furthers the state's interest in protecting potential human life.”

“A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test,” Justice Stevens objected in a letter to Chief Justice Rehnquist, with copies to the other Justices. The letter ended: “As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”

How Roe v. Wade will be tossed about in future years depends, in part, on the Justice who will take Stevens' place.  Greenhouse reminds us that Stevens was the first Justice to be appointed after Roe v. Wade was decided.  Stevens was also the last of his kind:  "the last Republican-appointed Supreme Court Justice who was not vetted in light of the party's official opposition to Roe" and the last Justice to join the Court "before abortion became an essentially partisan issue."

RR

Arizona Immigration Law SB 1070

The "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona SB1070, just [update here; update on proposed change here] signed by Governor Jan Brewer, is the "toughest" anti-immigration state law in the United States.

Constitutional challenges are sure to follow. [update here; DEPARTMENT OF JUSTICE lawsuit analysis update here].  UPDATE: PORTIONS OF STATUTE ENJOINED BY FEDERAL DISTRICT JUDGE.

State laws seeking to regulate immigration status are always subject to preemption challenges given the federal government's plenary power over immigration and nationality.  Moreover, equal protection challenges to immigration regulations by states will be scrutinized more carefully by the courts than regulations by the federal government.  A good overview of these issues is by Juliet Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, available on ssrn here.

The new Arizona law allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion":

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

The statute also prohibits localities from adopting any policies that allow less than full enforcement of the immigration laws, thus prohibiting so-called sanctuary provisions.

Additionally, section 13-1509 provides that a person is guilty of the crime of trespassing if the person is both:  "present on any public or private land in this state" and in violation of federal immigration statutes.  The statute further provides that there is no eligibility for "suspension or commutation of sentence or release on any basis until the sentence imposed is served."

The statute also has an anti-solicitation of workers (often called day laborers) provision of the type that has been held unconstitutional under the First Amendment, see Town of Herndon v. Thomas, MI-2007-644 (Va. Cir. Ct. Aug. 29, 2007) Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 962 (C.D. Cal. 2006).

The statute has already garnered some critical commentary from our colleagues on Immigration Law Prof.  MALDEF has issued a statement that it will challenge the statute.  The United States Department of Justice will reportedly examine the constitutionality of the statute as instructed by President Obama.

RR

Congress to Respond to Citizens United

Earlier this week, Reps. Chris Van Hollen (D-MD) and Mike Castle (R-DE) announced that they reached a bipartisan agreement to move forward with a legislative response to Citizens United v. FEC, the January 21 case that applied the First Amendment to corporations and overturned campaign spending limits on corporations and labor unions.  We last posted on that case and a subsequent D.C. Circuit ruling here.

The Blog of the Legal Times reported today that legislation may emerge next week.  According to the report, the legislation moves to increase transparency by requiring additional reporting and disclosure (including an "approves this message" statement to go along with campaign communications).  (Citizens United itself upheld disclaimer and disclosure requirements.)  The legislation will reportedly also limit coordination between a candidate and outside groups on communications that reference a candidate, and restrict certain federal contractors from spending money on elections.

The legislative text isn't yet available, but we'll post it when comes out.

SDS

The Latest Challenge to Indiana's Voter ID Law

The U.S. District Court for the Southern District of Indiana last week dismissed the latest attack on Indiana's voter ID law in Stewart v. Marion County.  (Thanks to Election Law Blog for the link.)  Recall that the Supreme Court upheld the law against an Equal Protection/fundamental rights challenge nearly two years ago in Crawford v. Marion County, but the Indiana Court of Appeals (the state's intermediate appellate court) overturned the law last fall under the state constitutional "Equal Privileges and Immunities Clause."  (The Indiana Court of Appeals ruling is now before the state supreme court.  We don't yet have a ruling.)

In Stewart, the district court rejected the plaintiff's claims under the Twenty-Fourth Amendment (ruling that the ID law did not amount to a poll tax), the Fourth Amendment (ruling that the ID law did not constitute a search), and the First and Fourteenth Amendments (ruling that these claims were already foreclosed by Crawford at the Seventh Circuit and at the Supreme Court).  The court also rejected Stewart's claim under the federal Privacy Act. 

Stewart's claims might have gotten somewhat more traction if Stewart didn't have an ID.  Yes, that's right: Stewart lacked standing.

This is rather remarkably in the wake of Crawford.  That case, to be sure, was no model of clarity in reasoning and result, but between the several opinions in that case--and with the well settled doctrine that a plaintiff must have standing (!)--subsequent challengers to Indiana's voter ID law should have understood, at least, that they needed to plead with some particularity that they have been harmed.

Whatever else might be said about Crawford, the opinions together provide a pretty clear roadmap for plaintiffs seeking to challenge voter ID laws (and similar broadly applicable laws designed to ensure the integrity of the voting process).  For example, the Court pretty clearly told future plaintiffs that they need to lodge an as-applied (not facial) challenge if they want to get out of the starting gate.  The Court also pretty clearly told future plaintiffs that they need to have specific evidence supporting their alleged harms.  And it clearly told future plaintiffs that they need to have standing. 

In contrast to Stewart, the plaintiffs in Rokita, the case now before the Indiana Supreme Court on state constitutional grounds, read Crawford's roadmap well and presented their case accordingly.  This, along with the stronger bite of the Indiana state constitution, led to the favorable result in the intermediate appellate court.

Stewart's failure to follow Crawford's roadmap could have resulted in positively bad law for future challengers of voter ID.  In some ways, it did: The district court wrote more than it needed to about, e.g., the Twenty Fourth Amendment in rejecting Stewart's claims.  (The court could have dismissed the case with much less substantive analysis, given Stewart's lack of standing, and thus avoided dicta unfavorable to future plaintiffs.)  But Stewart's case was apparently so badly flawed that the ruling will likely have little impact on any future federal cases.

One thing is for certain: The case will not have any impact on Rokita, the case pending at the Indiana Supreme Court.  In addition to carefully heeding Crawford, plaintiffs in that case tailored their claims under state constitutional law, and the state supreme court will thus rule only under the state constitution. 

The three cases--Crawford, Rokita, and Stewart--together provide a nice study in how to litigate (and how not to litigate) constitutional questions.

SDS

Constitutional Law Exam Drafting: The End of Semester Challenge

For professors, ConLaw and otherwise, 'tis the season to draft the final exam.  

 

 

Here are some principles, hints, reminders, observations, and opinions:

1/    Using another professor's exam is pedagogically unsound, unless, of course, your students attended another professor's class all semester.   This is true even if the other professor is now President of the United States.

2/    Recycling one of your own exams is pedagogically suspect.  Even if you attempted to keep your previous exam questions secret and for some reason eschewed the better practice of distributing previous exam questions to students for their studying purposes), if they can find Professor Obama's exam from 1996, they can find your previous exams.  And do.

3/     Selecting the format of the exam is most likely no longer an option, because your syllabus stated (didn't it?) whether the exam would be essay, open-book, short essays, or multiple choice. (True/False, let's face it, is not a viable option past the third grade.)   Because you have integrity, your syllabus reflects your choice of the exam style which you believe is most pedagogically sound.  Therefore, this is not the time to regret your choice because "grading" multiple choice exams is infinitely easier than grading essays.   You enjoy grading, don't you? 

3/    Looking at your own after-class notes (which, let's assume, you diligently kept), will refresh your memory of the issues that this year's students found particularly interesting, troubling, or worthwhile.  These experiences can help you tailor the exam to this year's students and make their experience unique.  It can also improve attendance in future semesters.

4/    Reviewing the in-class problems or exercises you did with your students during the semester is a great source of exam material.   Again, let's assume you assigned several problems.  One or two?

5/    Reflecting current controversies, especially those that have been newsworthy, can be a great strategy in drafting an exam. It can provide details, but it can also frame the narrative of your exam.  And you do want your exam to be interesting, don't you?  This semester, as we noted earlier this month, health care reform is an obvious choice, and not only because a 900 page statute provides lots of possibilities.

6/    Remembering to provide ALL the specific material and explanations students would need to answer the exam question(s) is vital.  This is especially important if you are using a current controversy, but applies whenever you draft a question.  For example, if you've decided on health care as the underlying topic, you don't want students to be pondering the definition of  "CHIP" or rewarding students who know the meaning of  "CHIP" when what you mean to be testing is federalism or commerce clause issues.

7/    Testing what you've taught seems an obvious, if not universally-shared goal.  Can you key every issue, analysis, and answer to your syllabus?  You should do this with colored highlighters. 

8/     Rereading your exam from the perspective of a student is a great exercise.  Try to channel the students with whom you least identify as you read.  Would he be offended by your attempt to be witty?  Would she not understand your cultural allusion? 

9/    Writing out your rubric (or feedback sheet) for essay exams is essential.  But also write out an answer to the exam question(s).  Do it in the time allotted.  And if you are giving a closed book exam, then no peeking.

10/    Grading your own answer with your feedback sheet and then keying it to your syllabus and the pages of the Casebook and other assigned materials should keep you honest.  You'll probably give yourself an "A," but did you do as well as you thought you would?

11/   Collaborating with another professor after you have a written your almost-final draft is an amazing experience.   You must know colleagues who teach in the same area?   Trading exams can produce a great discussion, especially if you disagree with each other.  As for taking each other's exams, well, that can also produce a discussion.

12/    Consulting with Academic Support can provide support for you as well as for your students.  If you are lucky enough to have involved Academic Support Professors, as I am, their expertise is a gift you shouldn't refuse.  If you haven't had the opportunity to have lunch with someone from Academic Support this semester, now would be a good time.

13/    Proofing and reproofing cannot be neglected, especially given all the revisions you've been doing.  "Fresh eyes," as they say, are a real asset.  Now is the time to enlist any friends you have who are not involved in the law.  You do have some friends outside the law, don't you? 

Good luck!

RR

Administration Re-Strengthens Title IX

The White House announced earlier this week that it was strengthening Title IX, the provision that prohibits sex discrimination by educational institutions that receive federal funds, through a new "dear colleague" letter to covered institutions providing guidance on compliance.  The letter withdraws a 2005 letter that advised covered institutions to measure compliance with Title IX through a single instrument--a survey of student interest in participating in intercollegiate sports--and reinstated a multi-factor approach to compliance.

The 2005 survey instrument undercounted women's interests in participating and thus resulted in schools underfunding women's sports.  The new letter reinstates the multi-factor approach to more accurately account for women's interests.

Earlier executive policy interpretations of Title IX in 1979 and 1996 both set out a three-part test used to determine whether a covered institution violates its obligations under Title IX with respect to intercollegiate athletics:

1.  Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

2.  Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or

3.  Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

As stated in the 1996 guidance, "[T]he three-part test furnishes an institution with three individual avenues to choose from when determining how it will provide individuals of each sex with nondiscriminatory opportunities to participate in intercollegiate athletics.  If an institution has met any part of the three-part test, [the Office of Civil Rights, which enforces Title IX] will determine that the institution is meeting its requirement."

In determining compliance with part three of this test, OCR considered multiple factors under the 1996 guidance.  The 2005 guidance changed this and advised institutions to look to just one factor: the results of a survey. 

But the survey tended to undercount female interest in sports.  The Department of Education wrote this about it:

After careful review, OCR has determined that the 2005 Additional Clarification and the User's Guide are inconsistent with the nondiscriminatory methods of assessment set forth in the 1979 Policy Interpretation and the 1996 Clarification and do not provide the appropriate and necessary clarity regarding nondiscriminatory assessment methods . . . .

The most recent guidance reinstates the multi-factor approach, more accurately reflecting women's interests in intercollegiate sports.  As to the third part of the test, the new guidance asks three questions: Is there an unmet interest in a particular sport?  Is there sufficient ability to sustain a team in the sport?  Is there a reasonable expectation of competition for the team?  These questions, in turn, look to several factors, including answers to a survey (the value of which itself is measured by several factors).

SDS

Denny Chin Confirmed to Second Circuit

The strategy to move forward with "noncontroversial" nominations such as that of Denny Chin, as we previously discussed, provided some success today.  Chin was confirmed as a Second Circuit Judge by a vote of the Senate, 98-0.

RR

District Judge Nominations and Third Circuit Confirmation

Obama nominated five persons for district judge today:

• Judge Leslie E. Kobayashi, presently a Magistrate Judge, for the District of Hawai'i;
• Judge Susan Richard Nelson, presently a Magistrate Judge, for the District of Minnesota; 
• Judge Ellen Lipton Hollander (pictured right)  presently a state appellate judge, for the District of Maryland;
• Judge James K. Bredar, presently a Magistrate Judge, for the District of Maryland;   and
• Edmond E. Chang, presently an Assistant US Attorney General for the Northern District of Illinois.

This is an addition to the more than one hundred current judicial nominations pending.  Our most recent post is here.

Today, the Senate did confirm District Judge Thomas Vanaskie,  as a Judge on the Third Circuit Court of Appeals.  

RR

Court Holds on Attorney's Fees, Access to Justice

The Supreme Court ruled today in Perdue v. Kenny that an attorney's fee may in exceptional circumstances be increased due to the attorney's superior performance.  The case reaffirms the Court's prior rulings and validates an important component of equal access to justice for civil rights plaintiffs.

The case involved the mistreatment and abuse of children in Georgia's foster care system.  The plaintiff-class of 3,000 children sought to revamp the system, which failed to provide essential medicines, failed to properly staff facilities, and failed to maintain facilities.  These problems resulted in unnecessarily suffered permanent medical conditions, physical assaults, including rape, and even child prostitution, according to the record.

Plaintiffs sought injunctive and declaratory relief for violations of state and federal constitutional and statutory law and attorney's fees under 42 U.S.C. Sec. 1988.  That provision authorizes attorney's fees for prevailing parties in federal civil rights actions and thereby helps ensure that civil rights plaintiffs (who often can't afford attorney's fees) can get an attorney to press their case.

After mediation, the parties entered into a consent decree, and plaintiffs' counsel submitted a request for more than $14 million in attorney's fees.  The district court awarded lodestar fees of approximately $6 million, representing the attorney's hours worked times the prevailing hourly rate.  The court then added a 75% premium onto the lodestar calculation for superior performance.  The court justified the premium based upon counsel's significant advance of funds to cover case expenses, counsel's lack of pay for the work during the course of litigation, and counsel's inability to recover fees and expenses without winning the case.  But most of all, the district court wrote that plaintiffs' attorneys exhibited "a higher degree of skill, commitment, dedication, and professionalism . . . than the Court has seen displayed by attorneys in any other case during its 27 years on the bench."  The premium bumped the total fee award up to about $10.5 million.

The Supreme Court ruled that attorneys for civil rights plaintiffs may be awarded increases to the lodestar in extraordinary circumstances, but that the district court failed to adequately explain how it arrived at the increase in this case.  (Justice Alito, for the 5-justice majority, asked, "Why, for example, did the court grant a 75% enhancement instead of the 100% increase that respondents sought?  And why 75% rather than 50% or 25% or 10%?")

(Justice Breyer wrote in dissent (joined by Justices Stevens, Ginsburg, and Sotomayor) that the Court should have simply affirmed the district court's award, deferring to its judgment on the fees.)

The case is a limited victory for equal access advocates, as it reaffirms that civil rights attorneys may be awarded increases to the lodestar in exceptional circumstances for superior performance--that civil rights attorneys may be properly compensated for their work, and that poor civil rights plaintiffs, too, can access superior advocates who are appropriately well compensated.

SDS

DOJ to Defend VRA Section 5 "Vigorously"

AAG Tom Perez told the Senate Judiciary Committee this morning that the Civil Rights Division is gearing up for the increased Voting Rights Act workload after the Census and is prepared to defend Section 5, the preclearance provision, "vigorously" against a suit filed earlier this month.

That case grows out of DOJ's denial of preclearance to the City of Kinston, North Carolina, to its requested change from partisan to non-partisan elections for mayor and city council.  Kinston is comprised of about 60% black residents, but black persons constituted a minority of voters in three recent city elections and a bare majority in a fourth recent election.  Sixty-four percent of Kinston voters approved the change from partisan to non-partisan voting; the referendum passed in 5 of the 7 precincts where blacks are a majority.

The DOJ denied preclearance, and the City declined to appeal.  The case was filed by the Center for Individual Rights on behalf of several voters and local politicians.

DOJ denied preclearance because of the likely impact on black persons' ability to elect candidates of their choice:

Black voters have had limited success in electing candidates of choice during recent municipal elections.  The success that they have achieved has resulted from cohesive support for candidates during the Democratic primary (where black voters represent a larger percentage of the electorate), combined with crossover voting by whites in the general election.  It is the partisan makeup of the general electorate that results in enough white cross-over to allow the black community to elect a candidate of choice.

This small, but critical, amount of white crossover votes results from the party affiliation of black-preferred candidates, most if not all of whom have been black.  Numerous elected municipal and county officials confirm the results of our statistical analyses that a majority of white Democrats support white Republicans over black Democrats in Kinston city elections.  At the same time, they also acknowledged that a small group of white Democrats maintain strong party allegiance and will continue to vote along party lines, regardless of the race of the candidate.  Many of these white crossover voters are simply using straight-ticket voting.  As a result, while the racial identity of the candidate greatly diminishes the supportive effect of the partisan cue, it does not totally eliminate it.

It follows, therefore, that the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice. . . .

The change to nonpartisan elections would also likely eliminate the party's campaign support and other assistance that is provided to black candidates because it eliminates the party's role in the election. . . .

Plaintiffs in the case argue that Section 5 is unconstitutional and that it violates equal protection principles.  From the complaint:

21. In July 2006, Congress reauthorized Section 5, extending it for twenty-five years (until 2031).  It relied on generalized findings which do not specifically identify evidence of continuing intentional discrimination in covered jurisdictions.  Nor did it have evidence that adequately distinguished conditions in covered jurisdictions from those in non-covered jurisdictions in a way that would justify the continuing difference in treatment for another 25 years.

22. The conditions of 1964 that caused Lenoir County [the home of Kinston] to be covered by Section 5 have long been remedied. . . .

The case puts the constitutionality of Section 5 squarely before the court.  It avoids Section 5 bailout, which allowed the Supreme Court last term in Northwest Austin to dodge the constitutional question and rule on statutory grounds that the municipal utility district qualified for bailout.  The complaint also draws on dicta from Northwest Austin critical of Section 5, anticipating the arguments should the case reach the high court.

SDS

DOJ Civil Rights Chief to "Restore" and "Transform" Division

Assistant Attorney General Tom Perez told the Senate Judiciary Committee this morning that he intends to restore and transform the Civil Rights Division, a unit hit hard by a loss of 70% of career attorneys between 2003 and 2007 and sharply curtailed enforcement efforts between 2001 and 2007.  Perez intends to hire 102 new career attorneys "to tackle both existing and emerging challenges for civil rights in the 21st Century."  "That means enforcing all of the laws within our authority."

Perez specifically mentioned these, in order: fair housing and lending; criminal enforcement of hate crimes; employment discrimination; disability rights; civil rights of institutionalized persons; discriminatory policing; voting rights; educational opportunities; religious freedom; and gay rights. 

SDS

Crush Porn, Animal Cruelty, and US v. Stevens: Opinion Analysis

Congressional enactment of 18 U.S.C. § 48 (1999) was motivated by a concern about so-called "crush porn."  As the House Committee Report  explained it, crush porn videos

feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters. Crush videos often depict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain.”  Apparently these depictions “appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.”

H. R. Rep. No. 106–397, p. 2 (1999).   Robert Stevens was not a crush porn aficiando, but the purveyor of videos of pit bulls engaging in dogfights through his business, "Dogs of Velvet and Steel."  Roberts' conviction was reversed by the Third Circuit.

Except for Justice Alito, the Justices of the United States Supreme Court this morning concluded that the Congressional expression of that concern by criminalizing the creation, possession, or distribution of " a depiction of animal cruelty" does not withstand a constitutional challenge. 

In a relatively brief 8-1 opinion authored by CJ Roberts, the Court declined to "carve out" an animal cruelty exception (similar to the child pornography exception) to obscenity analysis under the First Amendment.  The Court found § 48 to be of "alarming breadth."  It also noted that the criminal law could operate to criminalize popular hunting television programs, a topic that was explored during the oral argument. Alito's dissent, with Appendix of state animal cruelty statutes, argues that the "animal" in animal cruelty statutes specifically excludes wildlife or lawful hunting.

The Court also had an interesting observation regarding prosecutorial discretion:

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty,Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,”  The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.”  No one suggests that the videos in this case fit that description.

(Opinion at 18, citations omitted). 

The Court's 8-1 affirmance of the Third Circuit opinion does give one pause after yesterday's oral argument in CLS v. Martinez, discussed here.  Given the Court's decreased caseload, it seems the Court should be expending its energies a bit differently.

RR