Monday, May 31, 2010

Presidential Proclamations: June is . . . .

Lesbian, Gay, Bisexual, and Transgender Pride Month, Great Outdoors Month, National Oceans Month, Caribbean-American Heritage Month, and African-American Music Appreciation Month.  

Rainbow-fly As for LGBT Pride month, Obama’s proclamation touts his Administration's accomplishments including passage of the Matthew Shepard act to include hate crimes based on gender identity or sexual orientation,  renewal of the Ryan White CARE Act, and signing a Presidential Memorandum directing hospitals receiving Medicare and Medicaid funds regarding LGBT patients and their choice of visitors and decisionmakers.  Obama also states he is working toward “repeal the Defense of Marriage Act,” protecting “the rights of LGBT families by securing their adoption rights, ending employment discrimination against LGBT Americans, and ensuring Federal employees receive equal benefits.”  He also states, “I am also committed to ending "Don't Ask, Don't Tell" so patriotic LGBT Americans can serve openly in our military, and I am working with the Congress and our military leadership to accomplish that goal.”

In addition to LGBT Pride Month, it is also Great Outdoors Month.  Obama's proclamation notes it is an  innovation to “reconnect Americans with our great outdoors,” and is linked  to “Let’s Move,” the First Lady’s effort to help “ children eat more nutritious foods, lead healthier lives, and increase their physical activity.”   
In the National Oceans Month proclamation, Obama acknowledges the BP disaster:  the “annual observance falls at a time of environmental crisis, as we continue our relentless efforts to stop and contain the oil spill threatening the Gulf Coast region.  The oil spill has already caused substantial damage to our coastline and its natural habitats, and negatively impacted the livelihoods of Gulf Coast small businesses and communities.  The environmental and economic devastation to the Gulf Coast region requires our continuing efforts to reverse the damage to our coastlines and revitalize affected areas.”

The Caribbean-American Heritage Month proclamation acknowledges the devastating earthquake in Haiti, and in the African-American music proclamation, Obama rhapsodizes about the “soulful strains of gospel, the harmonic and improvisational innovations of jazz, the simple truth of the blues, the rhythms of rock and roll, and the urban themes of hip-hop.”


May 31, 2010 in Current Affairs, Executive Authority, News, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Saturday, May 29, 2010

Souter on Constitutional Interpretation

Retired Justice David Souter criticized a "fair reading model" of constitutional interpretation and promoted more nuanced, value-conscious interpretation in his Commencement address at Harvard last week.


Souter noted that his speech came at a time when constitutional interpretation will once again be a topic for public discourse--and when claims of judicial "activism" are likely to be high--with the end of the Supreme Court's term and at the beginning of Senate hearings on Elena Kagan, President Obama's nominee to fill retiring Justice Stevens's seat. 

Souter used two cases to illustrate how a "fair reading model" of constitutional interpretation--a syllogistic interpretation that simply applies the plain text to plain facts--fails to explain what the Court should do, and what it actually does.  Souter used the Pentagon Papers Case, New York Times v. United States, and particularly an exchage at oral argument between Justice Black and Solicitor General (and Harvard Dean) Erwin Griswold, to show how the Court accounted for competing values in the Constitution, and did not simply apply Justice Black's absolutist position on the First Amendment speech clause:

The Government lost the case and the newspapers published, but Dean Griswold won his argument with Justice Black.  To show, as he put it, that "no law" did not mean "no law," Dean Griswold had pointed out that the First Amendment was not the whole Constitution.  The Constitution also granted authority to the government to provide for the security of the nation, and authority to the President to manage foreign policy and command the military.

And although he failed to convince the Court that the capacity to exercise these powers would be seriously affected by publication of the papers, the Court did recognize that at some point the authority to govern that Dean Griswold invoked could limit the right to publish.  The Court did not decide the case on the ground that the words "no law" allowed of no exception and meant that the rights of expression were absolute.  The Court's majority decided only that the Government had not met a high burden of showing facts that could justify a prior restraint, and particular members of the Court spoke of examples that might have turned the case to go the other way.

Souter then used Brown v. Board of Education to illustrate how changes in society can influence the Court's notion of equality:

As I've said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land.  To that generation, the formal equality of an identical railroad car meant progress.  But the generation in power in 1954 looked at enforced separation without the more revolting background of slavery to make it look unexceptional by contrast.  As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.

In sum:

The fair reading model fails to account for what the Constitution actually says and fails just as badly to understand what judges have no choice but to do.  The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. . . .  Framers left to be resolved another day, and another day after that, for our cases can give no answers that fit all conflicts and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.


May 29, 2010 in Interpretation, News | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 26, 2010

Ninth Circuit Upholds Arizona's Public Campaign Finance Law

In the third significant circuit court decision applying Citizens United v. FEC--the Supreme Court's January 21 ruling striking down limits on independent campaign expenditures--the Ninth Circuit last week in McComish v. Bennett upheld Arizona's public campaign finance law.  (We posted on the earlier two decisions here and here.)

Under the Arizona law, any candidate may participate in the state's public campaign finance scheme and receive a state grant for campaign expenditures.  Participating candidates relinquish their right to raise and spend private donations.  But when a participating candidate faces a non-participating candidate who spends more than a threshold amount under the law, the participating candidate qualifies for additional state "matching funds."  Thus the law moves to equalize--or at least control inequalities in--campaign expenditures between participating candidates and non-participating candidates.

Arizona enacted the law, a voter initiative, in the wake of a rash of political scandals in the state under the old campaign finance laws.  According to the law's findings, Arizona's previous election financing system "[u]ndermine[d] public confidence in the integrity of public officials," because it "[a]llow[ed] Arizona elected officials to accept large campaign contributions from private interests over which they have governmental jurisdiction."  The law's purpose was to "create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of special-interest money, . . . encourage citizen participation in the political process, . . . and promote freedom of speech."

The Ninth Circuit upheld the law, applying intermediate scrutiny.  In arriving at intermediate scrutiny, the court asked first whether the type of speech in question was fully protected and second what was the nature of the law's burden on the speech.

On the first question, the court ruled that the law had a hybrid effect--that it impacted by contributions and expenditures.  Under Buckley v. Valeo, contributions are not fully protected, while expenditures are; but a law with a hybrid effect, like Arizona's, is treated as impacting fully protected speech.

On the second question, the plaintiffs argued that the Supreme Court's 2008 ruling in Davis v. FEC governed and that the Arizona law, like the law in Davis, placed a severe burden on speech, triggering strict scrutiny.  Davis struck down the "Millionaire's Amendment" to the Bipartisan Campaign Reform Act of 2002--the provision that imposed an "asymmetrical regulatory scheme" in any campaign in which all candidates were privately funded but in which any one candidate financed his or her campaign with personal funds above a threshold amount.  Under the provision, the opponent of a candidate who exceeded the threshold qualified for "contributions at treble the normal limit . . . ."

The Ninth Circuit rejected this argument, holding that Davis said nothing about publicly funded schemes like the Arizona program.  Instead, wrote the court, "it is constitutional to subject candidates running against each other for the same office to entirely different regulatory schemes when some candidates voluntarily choose to participate in a public financing system.  Buckley."  The court ruled that the Arizona law's impact on speech was "indirect or minimal"--that the plaintiffs failed to show that any non-participating candidate declined a contribution or restricted spending in order to avoid triggering the matching funds provision:

In this case, as in Buckley and Citizens United, the burden that Plaintiffs allege is merely a theoretical chilling effect . . . .  The matching funds provision does not actually prevent anyone from speaking in the first place or cap campaign expenditures.  Also, as in Buckley and Citizens United, there is no evidence that any Plaintiff has actually suffered the consequence they allege the Act imposes.  We conclude that the burden created by the Act is most analogous to the burden of disclosure and disclaimer requirements in Buckley and Citizens United.  Following the Supreme Court's precedents in those cases, because the Act imposes only a minimal burden on fully protected speech, intermediate scrutiny applies.

McComish at 7345.

Applying intermediate scrutiny, the court upheld the law:

The State has a sufficiently important interest in preventing corruption and the appearance of corruption. . . . Furthermore, the State has an interest in providing matching funds to encourage participation in its public funding scheme. . . .  Viewing the Act from this perspective, it is clear that the Act's anticorruption interest is further promoted by high participation in the program.

McComish at 7345-47.


May 26, 2010 in Fourteenth Amendment, Fundamental Rights, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 25, 2010

The constitutionality of the Lieberman Amendment to “repeal” the "don’t ask, don’t tell" military policy

In what is being described as a compromise,  Senator Lieberman of Connecticut and Representative Patrick Murphy  of Pennsylvania are introducing language to repeal the military’s don’t ask, don’t tell policy - - - which is codified by Congressional statute at 10 U.S.C. § 654.   Well, sort of repeal.  The statutory amendment clearly provides that it would strike § 654,  but the timing is not specific. 

Unlike most “effective date” sections in statutory schemes, the effective date in the Lieberman Amendment is not a date certain (such as July 1, 2010), but a set of conditions:

b) EFFECTIVE DATE.  -  The amendments made by subsection (f) shall take effect only on the date on which the last of the following occurs:

(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).

(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

    (A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.

    (B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).

    (C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

A provision requiring the President (or another branch of the Executive)  to “certify” certain conditions is not unique.  For example, the Stafford Disaster Relief and Emergency Assistance Act requires the President to certify natural disasters before aspects of the statutory scheme can be invoked.

Yet having the president certify certain conditions have been met to trigger specific relief under a statute is different from having the president certify certain conditions have been met to trigger the effective date - - - the very existence - - - of the statute.  

The constitutional question this unorthodox process raises is one of separation of powers.  Does this improperly delegate legislative power to the Executive?  Does this give the President the power to “make” rather than to “execute” the laws?   

In INS v. Chadha, the United States Supreme Court ruled in 1983 that Congress could not maintain for itself - - - or more precisely, one of its two houses - - - the power to “veto” a determination by the Attorney General that a particular immigrant should not be deported because of the “hardship” exemption under the statute.   Yet in Chadha, the problem was that Congress was maintaining power for itself. 

In the Lieberman Amendment, it seems Congress might be trying to give some of its power away - - - a situation not unlike Mistretta v. United States, decided in 1989, in which the Court upheld the Sentencing Reform Act which established a Sentencing Commission, importantly placing it within the Judicial branch and thus risking a separation of powers claim. 

But again, the Lieberman Amendment is different because the very date of effectiveness of the statute is delegated to the power of another branch.

With conservatives condemning the Amendment, the compromise of the “conditional effective date” repeal of the compromise policy of “don’t ask don’t tell” may be subject to a constitutional challenge.


(image via)


May 25, 2010 in Congressional Authority, Current Affairs, Executive Authority, News, Separation of Powers, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Monday, May 24, 2010

Obama's "Line Item Veto"

The White House today sent legislation to the Hill that would allow the President to "rescind" objectionable spending items, sending a rescission bill back to Congress for fast-track consideration.  The proposed legislation, the Reduce Unnecessary Spending Act of 2010, establishes provisions for the President to sign legislation, but send back a rescission package of particular spending items for full House and Senate approval, thus initiating new legislation that would amend the just-signed bill (and satisfy the Constitution's requirements of bi-cameralism and presentment).  The only innovation in the proposal is the fast-track process, which requires the House and Senate to consider the rescission bill quickly and without amendment; otherwise the process operates just as if the President were proposing new legislation.

As we wrote earlier this month, the proposal is designed to give the President flexibility in considering legislation that contains all manner of objectionable spending items while side-stepping the literal line-item veto, which the Supreme Court ruled unconstitutional in Clinton v. New York

The approach will have another effect.  It will require Congress to consider in isolation, and thus publicize, certain spending measures that otherwise might be buried in voluminous legislation and spending bills.  The approach will require Congress to publicly own its spending, or to publicly disavow it, and to allow We the People to respond accordingly.  In contrast to the earlier line-item veto, which by-passed the ordinary democratic process for enacting legislation under the Constitution, this approach is democracy-enhancing.

But this will (obvoiusly) only work for those spending measures to which the President objects, and not those spending measures--perhaps equally objectionable--to which both the President and Congress assent. 


May 24, 2010 in Congressional Authority, Current Affairs, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Court Declines to Address Private Prosecution

A sharply divided Supreme Court today dismissed cert. in Robertson v. United States ex rel. Watson as improvidently granted.  The majority issued a one-line dismissal; Chief Justice Roberts wrote a 12-page dissent for himself and Justices Scalia, Kennedy, and Sotomayor.

The case involved Ms. Wykenna Watson's criminal contempt case against Mr. John Robertson in the D.C. courts for violation of a civil protection order after Robertson beat Watson (for a second time).  The D.C. court judged Robertson guilty of violation of three counts of criminal contempt and sentenced him to prison plus restitution.

The problem: The AUSA had already entered into a plea agreement with Robertson for the underlying assault, and the D.C. courts already sentenced him to one to three years. 

The D.C. courts upheld Robertson's sentence imposed in Ms. Watson's criminal contempt case.  Robertson argued to the Supreme Court that that violated due process and separation-of-powers considerations, because he had already been sentenced for the underlying assault (the due process claim) and because private parties lack authority to prosecute criminal cases (the core separation-of-powers claim--that only the executive can bring criminal charges).

The Supreme Court granted cert. against the advice of the U.S. government and today dismissed cert. as improvidently granted.  (The government argued that the D.C. court ruling didn't conflict with Supreme Court precedent and that, in any event, this case was a poor vehicle for deciding the important and complex constitutional issues.)

Chief Justice Roberts wrote in dissent that "[o]ur entire criminal justice system is premised on the notion that a criminal prosecution pits the government against the governed, not one private citizen against another." 

Alas, the case was never that simple.  The parties' arguments on the constitutional text, the history, and the practice of private prosecution (Robertson's here; Watson's here) gives just a glimpse of how complicated the questions are.  This case only added to the complexities: The private criminal contempt case grew out of an assault that was already punished by the government (adding to the due process concerns), and in an area of the law--domestic violence--that often relies on private enforcement but also demands a stronger public response.  As the government argued at the cert. stage, this was, indeed, a bad case to address these issues.


May 24, 2010 in Procedural Due Process, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, May 23, 2010

Who's Activist Now?: the Roberts Court in History PANEL DISCUSSION

The organizers describe the event, entitled Who's Activist Now?: The Roberts Court in History, thusly:

For a generation or more, conservatives have condemned liberal judges as “activists”—dedicated to an ideological agenda, dismissive of precedent and the provisions of the Constitution, and eager to overturn the acts of duly elected legislatures.  Today, however, the left is using the same terminology to criticize the conservative Roberts Court; recently President Obama himself attacked activist conservative judges.  This panel will examine whether there is any meaningful content to this debate, whether liberals are truly dedicated (as many say they are) to “judicial restraint,” and what history—particularly the era that came to an end in 1937, the last great era of conservative jurisprudence—can teach us about our own times.


The event is sponsored by Alliance for Justice, the New York Lawyer Chapter of the American Constitution Society, the Brennan Center for Justice,  and New York University School of Law. 

It's at NYU on June 23, 2010.  RSVP required: information here.


May 23, 2010 in Conferences, Interpretation | Permalink | Comments (1) | TrackBack (0)

Friday, May 21, 2010

D.C. Circuit Denies Habeas to Bagram Detainees

A three-judge panel of the D.C. Circuit ruled on Friday in Al Maqaleh v. Gates that habeas does not extend to detainees at Bagram Airfield in Afghanistan.

The panel overturned a decision over a year ago by Judge Bates of the D.C. District that habeas extends to Bagram detainees under the practical, not formal, reasoning of Boumediene v. Bush, the 2009 decision ruling that habeas extended to detainees at Guantanamo Bay.

The difference in the decisions is simply the application of three-factor test in Boumediene:

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

In a decision that relied heavily on Johnson v. Eisentrager--the 1950 case rejecting the habeas claims of 51 German nationals captured and tried for war crimes in China and detained at Lansberg Prison, a facility under the control of the United States as part of the Allied Powers' post-war occupation--the panel ruled that the balance favored the government's position that habeas does not extend to Bagram.

The court ruled that the first factor weighed in favor of the detainees--that the citizenship and status of the detainees at Bagram (who were subject to a detention process with less protections than the process for Guantanamo detainees and who were not tried for war crimes) weighed more in favor than the citizenship and status of the detainees in either Boumediene or Eisentrager.

But the court ruled that the second and third factors weighed more strongly in favor of the government.  As to the second factor, the court ruled that U.S. control (or relative lack of it, in the form of de facto sovereignty) over Bagram is similar to its control over Lansberg in Eisentrager and less than its control over Guantanamo Bay in Boumediene.  As to the third factor, the court relied on the fact that Bagram is in an active theater of war--and neither Lansberg nor Guantanamo were.

The court rejected the appellants' argument that the government's position would allow the government to manipulate whether habeas applied simply by changing the location of detention.

Judge Bates's earlier decision extending habeas to Bagram did not credit the consideration that Bagram is in an active theater of war the same way that the D.C. Circuit did.  Bates ruled that technology (e.g., video-conferencing) made it practically just as easy to extend habeas to Bagram as Guantanamo, notwithstanding the theater of war.  The D.C. Circuit didn't examine the practical considerations so closely; instead, it relied more on Bagram being in a theater of war, without examining more closely why, as a practical matter, that would cut against habeas.  (The D.C. Circuit's approach was really a common law approach, navigating between the facts in Eisentrager and Boumediene on the Boumediene factors, without a lot of explanation of why the Boumediene factors mattered.  Judge Bates, in contrast, seemed to focus more practically on why and how the Boumeidene factors applied to Bagram--and how habeas might work there.)

Both decisions followed Boumediene and rejected a formalistic approach in favor of a practical approach.  The two courts simply disagreed as to how the Boumediene factors applied.

If the case gets to the Supreme Court, and if Justices Ginsburg, Breyer, and Sotomayor vote for extending habeas to Bagram (as Justices Ginsburg, Breyer, and Souter did in Boumediene), the case will likely turn on two factors: Justice Kennedy; and nominee Elena Kagan.  Justice Kennedy, the author of the Court's 5-4 opinion in Boumediene, may well adopt the D.C. Circuit's position (and not Judge Bates's approach), switching the count to 5 against habeas at Bagram.  But even if Kennedy were to adopt Judge Bates's approach, a Justice Kagan could either vote with the Boumediene minority, or recuse herself--either way upholding the D.C. Circuit ruling (assuming an en banc D.C. Circuit upholds the panel ruling, or declines to take the case up).



May 21, 2010 in Fundamental Rights, International, Jurisdiction of Federal Courts, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Heightened Plausibility Pleading Under Twombly, Iqbal

The Center for Progressive Reform recently released a white paper titled Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants.


The paper argues that the Supreme Court erred in heightening the pleading standard in Bell Atlantic v. Twombly and Ashcroft v. Iqbal from notice pleading to "plausibility pleading"--a requirement that plaintiffs "must in effect prove their case before they have even had the chance to obtain evidence from the defendant through the discovery process."  The paper argues that "[t]he practical effect of the heightened pleading standard is that many deserving plaintiffs will be unable to have their claims heard in court, since they will not have access to any crucial facts that the defendant is able to keep out of public view."  This impedes plaintiffs' access to courts, but more: It interferes with the important role that private litigation plays in regulation.

We've posted on Twombly and Iqbal--and legislative responses to those cases--here, here, here, and here.


May 21, 2010 in Congressional Authority, Current Affairs, Due Process (Substantive), Equal Protection, Fundamental Rights | Permalink | Comments (0) | TrackBack (0)

Rand Paul and Federal Civil Rights

Rand Paul, the Republican nominee for U.S. Senate from Kentucky, seems to have reconsidered his distinction between public discrimination and private discrimination in taking on the Civil Rights Act of 1964.  (In this clip from the Rachel Maddow show, Paul argued against federal the federal anti-discrimination law insofar as it applies to places of private accommodation.)


But his constitutional claims may nevertheless be worth considering.  He makes three:

1.  The Civil Rights Act of 1964 Violates Property Rights.  Paul's claim is that a federal prohibition on private discrimination amounts to a violation of private property rights--a Due Process or regulatory takings claim.  But the Supreme Court in 1964 rejected precisely this kind of challenge to the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S.  In just four or five paragraphs, the Court wrote that it had repeatedly rejected property rights claims against civil rights legislation, going back to The Civil Rights Cases, that anti-discriminatory legislation was common among the states, and that the federal law posed no particular threat to property or liberty.  (The Court mentioned a rational basis test, but barely applied it, instead deferring to Congress's judgments in passing the Civil Rights Act of 1964.)  The Court also flatly rejected a challenge based on the Thirteenth Amendment, that the private anti-discrimination provisions of the Civil Rights Act of 1964 amounted to involuntary servitude.

2.  The Civil Rights Act of 1964 Violates the First Amendment.  Paul's claim here is that Congress can't prohibit individuals from advancing discriminatory or racist views without violating the First Amendment's Speech Clause.  But his First Amendment claim is perhaps better thought of as an argument against forced inclusion of an unwanted person in a group that engages in "expressive association," as in Boy Scouts of America v. Dale.  In that case, the Court ruled that New Jersey's Law Against Discrimination, which prohibited discrimination against gays and lesbians, violated the First Amendment as applied against the Boy Scouts.  But there's no indication that most private corporations engage in expressive association under the Boy Scouts test; it's simply inapplicable to an organization that doesn't, as an organization, engage in "expressive activity" with a purpose of excluding or discriminating.  (Your local grocery, favorite restaurant, and book store probably don't fit this description.)

3.  Congressional Authority Could Be Used in Other Ways.  Paul argues that a Commerce Clause that would support federal anti-discrimination legislation against private actors could also support federal gun-rights legislation against private actors--a result, he claims, that some supporters of the Civil Rights Act of 1964 may not favor.  For example, there are now several bills before Congress that would provide reciprocity for legal concealed weapons carriers and thus allow them to carry their weapons in states without a concealed weapon law.  See, e.g., H.R. 197.  But this is no constitutional argument.  It simply shows that an expansive federal Commerce Clause can support a wide range of federal action.  As the Court in Katzenbach v. McClung wrote:

The power of Congress [under the Commerce Clause] is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitations it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere.  The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.  We find in it no violation of any express limitations of the Constitution and we therefore declare it valid.


May 21, 2010 in Congressional Authority, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Procedural Due Process, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Thursday, May 20, 2010

Colloquium Reminder: How Democratic is the Constitution?

Loyola University (Chicago) School of Law is organizing a constitutional law colloquium titled How Democratic is the Constitution? on Friday and Saturday, November 5 and 6, 2010, at the Philip H. Corboy Law Center in Chicago.

Organizers Professors Alexander Tsesis and Michael Zimmer invite abstract submissions of 150 to 200 words from constitutional law professors interested in contributing to the current debates under the broad rubric of this topic.  The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

The submission deadline is May 31, 2010; submit topics, abstracts, papers, questions, and comments to Program Administrator Carrie Bird at

Organizers look to bring together constitutional law scholars at all stages of their professional development to discuss projects, developments, and future work.  They hope to schedule presentations for all who submit and to group presenters by subject for intensive discussions and critique.


May 20, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 19, 2010

Summer Reading: Kagan's Senior Thesis or a Novel?

In a movie review for his elementary newspaper, The Beaverboard, the twelve year old future-Judge Cooney assessed the classic film To Kill a Mockingbird with these fateful words: "Though the picture is overall OK, it's also kind of boring in parts."  Not very good writing, even for a twelve year old, but it is the political import of the sentiment that sounds the death knell for Judge Cooney's nomination to the United States Supreme Court.  As a Senator  - who also happens to be a sworn presidential enemy who aspires to the high bench himself - phrases it, he could "not in good conscience bring myself to vote for someone who might show up at the Court on the first Monday in October wearing not black judicial robes but the white uniform of the Ku Klux Klan." 

This is the opening of Christopher Buckley's novel, Supreme Courtship, published in 2008 and more timely than ever. 

Cover So far, no movie or book reviews from SCOTUS nominee Elena Kagan's elementary school days have surfaced, although her senior college thesis, To the Final Conflict: Socialism in New York City, 1900-1933, is making the rounds, garnering comments (NYT here) and is available here. 

However, for those looking for summer reading of the more creative - - - and humorous sort - - - a better bet would is Buckley's novel.  After the fictional Judge Cooney and another highly qualified nominee are nixed, the highly unpopular president nominates an unconventional choice - - - an exceedingly popular television judge, Pepper Cartwright.  She's confirmed.  The Court she joins is more diverse than our own, an interesting touch.  But there's romance, politics, and skullduggery and a fairly fast-paced plot.   It's not great writing, and nothing is lost by listening to it in its rendition by Anne Heche. [MP3 audio clip here]

All in all, the novel is a romp, but it's satire that isn't so far off the mark. 


May 19, 2010 in Appointment and Removal Powers, Books | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 18, 2010

The Mighty Sweeping Clause and Expansive Federal Power

The Supreme Court's 7-2 ruling yesterday in U.S. v. Comstock, upholding the government's ability to order "sexually dangerous persons" detained beyond their federal prison term, is a significant statement on the power of the federal government.  The case has important ramifications for other public debates and cases on the scope of federal authority and federalism--particularly on the individual health insurance mandate and health care reform's alleged violation of state sovereignty under the Tenth Amendment.

There are four aspects of the Comstock ruling that ought to catch our attention:

1.  The Scope of the Sweeping Clause.  The five-member majority (Justice Breyer, who wrote for the Court, Chief Justice Roberts, and Justices Stevens, Ginsburg, and Sotomayor) validated the broad and sweeping authority of the Necessary and Proper Clause, reviving the expansive language given to that Clause in McCulloch v. Maryland and citing to that case throughout the ruling.  (This itself is notable.  According to a Westlaw search, the Court has "examined" or "discussed" McCulloch in only nine other cases in the last 20 years.  The Comstock Court, in contrast, uses that case aggressively.)  The Court adopted an extremely deferential version of the McCulloch test for the Necessary and Proper Clause, writing that "Congress could have reasonably concluded . . ." in support of the Act.  And the Court ruled that the Clause could support a federal Act toward the end of another federal program that itself was predicated on an enumerated power in Article I, Section 8--that an Act under the Necessary and Proper Clause can be more than once removed from an enumerated power.

The upshot of the majority ruling is that the Necessary and Proper Clause can support broad federal action beyond the enumerated powers in Article I, Section 8, as long as the ultimate end (and not merely the immediate end) is one of those enumerated powers.  And moreover, as discussed below, it's up to Congress, not the Court, to decide the limits of this power.

Justices Kennedy and Alito would have read a narrower Necessary and Proper Clause, but they nevertheless joined the Court in its conclusion that the Clause supported this legislation.

2.  Deference to Congress.  The five-member majority read the Necessary and Proper Clause as giving Congress, not the Court, the power to determine the scope of its authority.  The Court deferred to Congress using something like Williamson v. Lee Optical rational basis review, writing that "Congress could have reasonably concluded . . ." in support of the legislation. 

This is the kind of deference we haven't seen in the Court's recent Commerce Clause jurisprudence (with the possible exception of Gonzales v. Raich).  And here it's notable that Justice Breyer wrote for the Court: Justice Breyer also wrote the lengthy and detailed dissents in U.S. v. Lopez and U.S. v. Morrison showing how the legislative evidence supported a rational basis for finding that the regulated activities in those cases substantially affected interstate commerce--why the Court should have deferred to Congress in those cases.  Comstock is something of a vindication of the Breyer position as applied to the Necessary and Proper Clause.

3.  A "Living" Constitution, Expanding Powers.  The five-member majority was unconcerned that detaining federal prisoners as "sexually dangerous persons" was an idea unanticipated by the Framers.  The Court quoted New York v. U.S. and McCulloch in writing that "the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role," and that ours is "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." 

4.  No Infringement upon State Sovereignty.  The five-member majority reaffirmed the Tenth Amendment as a truism, writing that "[v]irtually by definition, [powers in Article I, including the Necessary and Proper Clause] are not powers that the Constitution 'reserved to the States,'" and that nothing in the Act intruded into the powers of the states.

Taken together, these aspects of the Comstock ruling reflect broad (and expanding) federal authority, with little concern for federal infringement upon so-called "states' rights."  As the cases challenging health care reform move through the lower courts, we'll see how this plays out.  But it's hard to imagine how, with this new 7-2 ruling, this Court wouldn't also uphold health care reform (including the health insurance mandate).


May 18, 2010 in Congressional Authority, Federalism, Recent Cases, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, May 17, 2010

New Jersey Governor Chris Christie Rebuffs Criticisms Regarding the NJ Supreme Court

Governor Christie's non-"reappointment" of John Wallace, the only African-American of the seven state justices on the New Jersey Supreme Court, which we discussed here, continues to draw attention. 

Retired NJ Justices Robert L. Clifford, James H. Coleman, Jr., Marie L. Garibaldi, Alan B. Handler, Stewart G. Pollock, Deborah T. Poritz, Gary S. Stein and James R. Zazzali issued a statement  including this important passage:

No Governor before now has sought to control the Third Branch of government through the reappointment process. Judicial decisions must be made without fear of retaliation: competence, integrity, impartiality -- those qualities have been fostered by law and by tradition. Every litigant before the court has known that his or her case would be decided fairly, without undue political influence, by impartial, independent judges. Our court system has been an exemplar for other states; our courts’ opinions are cited and followed by other state courts. Not everyone agrees with every decision, nor should unanimity be expected in a free society.

No one, not even the Governor, suggests that Justice Wallace is not qualified to serve. He has demonstrated, as a trial judge, as an appellate judge, and as an Associate Justice of the New Jersey Supreme Court for almost seven years, integrity, thoughtfulness, scholarship, compassion and adherence to the rule of law. We can ask no more of any judge. That he is the second African American to serve on our State’s highest court, and that the Court has benefitted from his understanding of our diverse society, in addition to his exemplary record, argue powerfully in favor of his reappointment.

Christie's response?  As the NJ Law Journal reports (via, Governor Christie (pictured below)

Picture 1

says that it is "laughable" that politics hasn't always been part of the judicial appointment process and that "there's another election in 2013."


May 17, 2010 in Appointment and Removal Powers, Current Affairs, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Necessary and Proper to Extend Civil Committment for Sex Offenders: Comstock Opinion Analysis

In a 7-2  opinion, the Court this morning decided United States v. Comstock, argued in January (our discussion here).  The Court reversed the Fourth Circuit and upheld the constitutionality of a Congressional statute, 18 U. S. C. § 4248, allowing the order of civil commitment for a federal prisoner who is a sex offender, even if the commitment continues beyond the date the inmate otherwise would be released.

The question presented was whether the statute was within Congressional power under the Necessary and Proper Clause, Art. I, § 8, cl. 18. 

McCulloch v. Maryland's famous 1819 formulation was of course invoked:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

In a well-structured opinion, written by Justice Breyer (pictured right) 009_breyer the Court provided five bases for its opinion, which "taken together" justified the Court's conclusion:

  1. The Necessary and Proper Clause grants Congress broad powers;
  2. This type of legislation is a long-standing Congressional practice: "the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades."
  3. The statute is merely an extension to persons already in federal custody  ("If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).
  4. Congress properly accounted for state interests and there is no Tenth Amendment issue.
  5. The statute has a narrow scope, and although relying on the necessary & proper clause, the "links" to an "enumerated Article I power are not too attenuated." 

As to the fifth reason, Breyer does not cite a specific enumerated power to which the necessary and proper clause "links."  This lack provides much of the substance of Thomas' lengthy dissenting opinion:

The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders.  Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).

Thomas also takes issue with the majority's dismissal of any Tenth Amendment problem, arguing that the federal statute "closely resembles the involuntary civil-commitment laws that States have enacted under their parens patriae and general police powers. " 

Breyer's opinion for the Court bracketed any due process concerns, citing Kansas v. Hendricks, 521 U. S. 346 (1997).  However, there is an obvious connection between the Court's narrow reading of due process in Hendricks and the expansive reading of the Necessary and Proper Clause in Comstock. Indeed, the Court seems keen to uphold laws regulating so-called  "sex offenders."


May 17, 2010 in Cases and Case Materials, Congressional Authority, Interpretation, Recent Cases, Sexuality, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Sunday, May 16, 2010

Government Defends Individual Health Insurance Mandate

The Justice Department last week filed its first defense of the new health insurance mandate in federal court.  The government responded to the plaintiffs' motion for a preliminary injunction in Thomas More Law Center, et al. v. Obama in the Eastern District of Michigan, a case filed just after President Obama signed into law the Patient Protection and Affordable Care Act (the health care reform act), which includes the mandate.

Plaintiffs filed their motion and brief on April 5, arguing that Congress lacked authority under the Commerce Clause to require individuals to purchase health insurance.  The arguments are by now all too familiar; from the plaintiffs' brief:

The Act does not even pretend to fit within any of the Court's previous Commerce Clause rulings.  The Individual Mandate attaches to a legal resident of the United States who chooses to sit at home and do nothing.  This resident is, quite literally, merely existing.  He or she is neither engaged in economic activity nor in any other activity that would bring him or her within the reach of even a legitimate regulatory scheme. . . .  In this case, we have neither economics nor activities.

. . .

If the Act is understood to fall within Congress' Commerce Clause authority, the federal government will have the absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law, such as taking vitamins, losing weight, joining health clubs, buying a GMC truck, or purchasing an AIG insurance policy, among others.  The term "Nanny State" does not even begin to describe what we will have wrought if in fact the Health Care Reform Act falls within any imaginable governmental authority.  To be sure, George Orwell's 1984 will be just the primer for our new civics.

(Citations, primarily to Wickard v. Filburn, U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich, omitted.)

The government responded that the plaintiffs lacked standing--no actual or imminent injury and no ripeness, because the mandate doesn't go into place until 2014, and the plaintiffs' situations may change between now and then.  On the merits, the government argued both Commerce Clause and Taxing Clause.  As to the activity-inactivity distinction that has attracted so much attention in Commerce Clause arguments, it wrote:

Plaintiffs' claim that individuals who forgo health insurance are not engaged in any economic "activity," is fallacious.  Some individuals make what Congress found is an "economic and financial decision" to try to pay for health care services without reliance on insurance.  Indeed, plaintiffs here concede that they intend to "pay for health care services as [they] need them."  Plaintiffs thus have not opted out of health care; they are not passive bystanders divorced from the health care market.  They have made a choice regarding the method of payment for the services they expect to received, no less "active" than a decision to pay by credit card rather than by check.

The government went on to argue that the mandate is an essential part of the larger health reform package and therefore within Congress's Commerce Clause authority under Raich, and that the mandate also falls under Congress's broad taxing power in the general welfare as a legitimate revenue-raising device notwithstanding its regulatory goal.


May 16, 2010 in Commerce Clause, Congressional Authority, Recent Cases, Taxing Clause | Permalink | Comments (2) | TrackBack (0)

Friday, May 14, 2010

The Legality of Targeted Killings

It's well known by now that President Obama has ordered numerous drone attacks and ordered the killing of Anwar al-Awlaki, an American Muslim cleric allegedly living in Yemen and plotting terrorism against the United States.  The New York Times reports today that these orders are causing "unease."  We thought we'd elaborate.

The best legal justification offered by the administration is State Department Legal Adviser Harold Koh's speech in March to the American Society of International Law (below).  Koh argues that targeted killings are fully constitutional and within the President's powers as part of the United States's right under international law to defend itself (especially in time of war) and under the 2001 Authorization for Use of Military Force.

But Koh makes little mention of the assassination ban under long-standing executive order, E.O. 12333 (he concludes that it does not restrict lawful killings under the law of war), the Hague Convention's ban on "treacherous" killing of enemies, and the Army Field Manual's interpretation of the Hague Convention's ban (in paragraph 31) to prohibit assassination (to say nothing of the Due Process Clause)--all of which seem relevant, even if ultimately deemed inapplicable.  ("Assassination" is nowhere well defined and is subject to some dispute.  But, as the Congressional Reserach Service writes in this post-9/11 report on E.O. 12333 and the assassination ban, an Army memo issued in the process of reauthorizing the Army Field Manual defines "assassination" as a "surprise" attack during peacetime and notes that the Hague Convention does not preclude defining assassination this way also in wartime.)

Koh's justifications for tageted killings--and his omission of limitations upon targeted killings, as above--seem surprising, given his critiques of the Bush administration justifications for everything from warrantless wiretaps to torture.  For example, Koh testified before the Senate Judiciary Committee in 2008 that the AUMF was too vague an authority upon which to base these Bush administration policies.  He also argued for a more robust role for Congress and the courts.  Koh argued against inherent executive authority to conduct these programs, instead referring to Justice Jackson's three-part framework in Youngstown.

But if, as Koh argued, e.g., FISA limited President Bush's power to conduct warrantless wiretaps (or domestic and international law limited President Bush's power to torture, etc., etc.), why don't E.O. 12333, the Hague Convention, and the Army Field manual (and the Due Process Clause) limit President Obama's power to authorize targeted killings, putting the President's power at its lowest ebb under Jackson's framework?  Or at least, why aren't these sources of law even worthy of mention up against the inherent right of self defense, the law of war, and the AUMF (which was too vague for many presidential actions, by Koh's own reckoning)?  (Related: If the President's authority is at all in doubt, why not go to Congress and get specific authorization for them?)

There may be three reasons.

First, the administration may be relying upon inherent Article II, Commander in Chief, authority.  This seems unlikely, however, given the administration's repeated rejections of this position by the Bush administration.  In this area and others, Prsident Obama has gone out of his way to say that his actions are not based upon inherent Article II authority.

Second, Koh may have made the judgment that the nation's right to self-defense and the AUMF outweigh these restrictions.  But this seems implausible, given Koh's testimony to the Senate Judiciary Committee (above, and on other matters) carefully considering both the authorities and the restrictions upon presidential action under Jackson's framework (in a Hamdan-like way).

Finally, and most likely, Koh may have judged these authorities inapplicable--that President Obama's ordered killing of al-Awlaki was not an "assassination."  But this seems reminiscent of the Bush administration OLC memos defining around "torture."  Given the widespread critiques of the torture memos, we might have expected a little bit more from this administration about why a targeted killing isn't an "assassination."

Whatever the answer, Koh's positions seem to lead to the surprising result that there are greater protections against warrantless wiretapping and torture than against a targeted killing.

In any event, Koh's statement to the ASIL may not represent the administration's legal analysis.  But the problem is that we don't know.  The administration hasn't publicized its legal reasoning, even with the wide-spread reporting of the drone attacks and the ordered killing of al-Awlaki.  There can be little down-side to publicizing the reasoning, especially for an administration committed to transparency, unless the administration worries that it is a little too close to Bush administration positions on the constitutionality of presidential actions during wartime. 


May 14, 2010 in Congressional Authority, Executive Authority, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (3) | TrackBack (0)

Thursday, May 13, 2010

Where's the birth certificate? Hawai'i amends Freedom of Information Act

President Obama's birth certificate is of great interest to some who contend he was not born in the United States, thus making him ineligible to be the President.   (Article II section I of the US Constitution provides,"No Person except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President." )

For Hawai'i, the interest in Obama's birth certificate has apparently been an administrative burden.    Governor Linda Lingle signed Act 100 into law today, proposed by the legislature as SB2937.  The so-called "birther bill" law amends Hawai'i's Freedom of Information act to include an exception:

an agency shall not be required to make government records available or respond to a person's subsequent duplicative request, if:
(1) After conducting a good faith review and comparison of
the earlier request and the pending request, the agency finds that the pending request is duplicative or substantially similar in nature;
(2) The pending request has already been responded to within the past year; and
(3) The agency's response to the pending request would remain unchanged.

It's the type of law that would pass unnoticed if not for the context. But as the Honolulu Advertiser newspaper reports, the Department of Health Director testified in the legislative hearing that the "department receives about 50 e-mail inquiries a month for Obama's birth certificate, primarily from the same four to six people." 


Source of image (with explanation) here; more birth certificate images, including certificate number here.


May 13, 2010 in Executive Authority, History, News, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 12, 2010

Indiana Supreme Court Takes Up Civil Right to Counsel

The Indiana Supreme Court recently agreed to hear a case in which an indigent mother was denied counsel on appeal after the trial court entered an order terminating her parental rights.  (The mother was represented at trial, but the appellate court denied her motion for appointed counsel on appeal.)

The case, In the Matter of the Termination of the Parent-Child Relationship of I.B. v. Indiana Dep't of Child Services, raises state and federal constitutional issues related to civil right to counsel.  But this is no "Civil Gideon."  The claimed constitutional right is a right to counsel on appeal--a "Civil Douglas."

"Civil Douglas" refers to Douglas v. California, the 1963 Supreme Court case establishing a right to counsel on appeal for poor criminal appellants.  Douglas came down the same day as Gideon v. Wainwright, the case establishing a right to counsel at trial for poor criminal defendants.  But despite their obvious similarities, Douglas and Gideon were rooted in different constitutional principles: Gideon was based on procedural considerations under the Sixth Amendment; Douglas was based on equal access to the courts under equal protection.  Although the cases came down one right after the other, they didn't even cite each other. 

Gideon and Douglas planted the seeds for subsequent access-to-justice cases at trial and on appeal--even civil cases.  Thus subsequent cases dealing with all manner of barriers to access at trial (fee barriers, lack of appointed counsel) are based primarily on due process considerations, but subsequent cases dealing with the same barriers on appeal are based primarily on equal protection considerations. 

The difference is critical in civil right to counsel cases.  The Supreme Court ruled in Lassiter v. Dep't of Social Services in 1981 that poor civil litigants had no categorical right to counsel at trial in cases involving an interest other than physical liberty.  The Court ruled that the three-part procedural due process balancing test in Mathews v. Eldridge must overcome a Court-created presumption against counsel in cases not involving physical liberty.  The test makes it very difficult for poor civil litigants to get a court-appointed attorney at trial in parental rights cases, housing cases, and other cases involving basic human needs other than physical liberty.

But, under Douglas and its progeny, there is no presumption against counsel on appeal.  In fact, there's no necessary consideration of the underlying interests at all.  Instead, the courts look to equal access and equal protection considerations, not the interest-bound due process test.  As a result, civil right to counsel on appeal may well be easier to establish (as I argue here and here).

Petitioner in the Indiana case puts Civil Douglas squarely before the Indiana Supreme Court.

Petitioner also makes a state constitutional "open courts" argument.  The jurisprudence among the several states of state constitutional open courts provisions--which require "justice" to be administered "freely and fairly," "speedily," "without denial," and variations on those terms--is notoriously inconsistent and confused.  (I tried to make some sense of it in the context of access and right-to-counsel here.)  Indiana may have a cleaner open courts jurisprudence by focusing on "fundamental fairness" in process--a test that sounds like a combination of due process and equal protection.

At the end of the day, though, it's not clear that the court will address any of the constitutional arguments.  Indiana has a statute that says that "[a] parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship."  The court might well dodge the constitutional questions by interpreting "proceedings" to include appeals.

The "petition to transfer" (the cert. petition) is here.


May 12, 2010 in Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Recent Cases, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Arizona "Ethnic Studies" Law: HB 2281

Arizona, the home of the Immigration law, Senate Bill 1070 which we most recently discussed here, is now also home to an "ethnic studies" law, House Bill 2281, which Governor Jan Brewer (pictured below) has signed.


The law prohibits any school or charter school from including in its program of instruction any courses or classes that:

  • Promote resentment toward a race or class of people; 
  • Are designed primarily for pupils of a particular ethnic group; or
  • Advocate ethnic solidarity instead of the treatment of pupils as individuals

[Update: CSMonitor article here]


May 12, 2010 in Current Affairs, Equal Protection, Race, State Constitutional Law | Permalink | Comments (4) | TrackBack (0)