Constitutional Law Prof Blog

Government Urges Judicial Restraint in Rendition Case

The Obama Administration filed a brief urging the Supreme Court to reject a petition to hear Maher Arar's case seeking damages for alleged extraordinary rendition and torture.  Thanks to Lyle Denniston at SCOTUSblog for the link to the brief.  We previously posted on Arar's cert. petition here.

The case, Arar v. Ashcroft, involves Maher Arar's claim against former AG John Ashcroft and others for their roles in his alleged extroarindary rendition to Syria and torture in violation of the Convention Against Torture (CAT) and the Torture Victims Protection Act (TVPA).  The en banc Second Circuit rejected Arar's claims, refusing to create a new Bivensremedy for alleged violations of the CAT, holding that the TVPA does not apply to U.S. officials acting under U.S. law, and ruling that Arar's claim that he was denied access to the courts while held within the United States was insufficiently detailed.

The administration (in a brief filed by Acting Solicitor General Neal Katyal, and not Elena Kagan, who, because of her nomination to the Court, has apparently taken herself out of SG briefing) argued narrowly in support of the Second Circuit's ruling and against cert.  The administration focused primarily on the Bivens remedy and the separation-of-powers considerations counselling against a new cause of action--that the courts are ill-equipped to rule on, and second guess, the political branches in foreign affairs and national security.  Katyal also argues that the Immigration and Nationality Act provided a narrow remedy for individuals alleging violations of the CAT, and that therefore an additional Bivens remedy is not warranted.

The administration argued that the Second Circuit got it right on the TVPA (that the TVPA does not apply, as here, to U.S. officials acting under U.S. law) and on the pleading standard for Arar's access claim (that Arar's allegations were insufficiently detailed to support his claim).

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Ninth Circuit Weighs In on Citizens United

A three-judge panel of the Ninth Circuit last week issued the second circuit court ruling on campaign expenditures and contributions in the wake of Citizens United v. FEC, the Supreme Court's January 21 ruling striking down limits on independent campaign expenditures. 

The case, Long Beach Area Chamber of Commerce v. City of Long Beach, followed last month's D.C. Circuit ruling, SpeechNow.org v. FEC, in result, but not exactly in reasoning.

The Ninth Circuit ruling struck down a portion of the Long Beach Campaign Reform Act, which prohibited any person or organization from making an independent expenditure supporting or opposing any candidate, when that person or organization accepted a contribution in excess of $350 or $650, depending on the office.  The Act defies easy classification as a restriction on "contributions" or "expenditures," but the court ruled that it didn't matter: The Act failed the First Amendment test for either.

Under Buckley v. Valeo and subsequent cases, including McConnell v. FEC, limits upon contributions to independent election committees (IECs) are subject to a lower level of scrutiny than limits upon IEC expenditures.  (Restrictions on contributions must be closely drawn to serve sufficiently important interests; restrictions on expenditures are subject to strict scrutiny.)  The Court in Citizens United expressly addressed expenditures only, applied strict scrutiny, overturned the limitation on expenditures, and in the course narrowed the only recognized compelling government interest, preventing corruption.  The Citizens United Court didn't address the test for contributions, although some language in the case may be read to anticipate a heightened test for contributions. 

The Ninth Circuit didn't address the appropriate test for contributions.  Instead, it ruled that the city's purposes in restricting contributions didn't meet either test.  The city's strongest interest, preventing corruption, didn't pass muster, because the Chamber's relationship with candidates was too attenuated to support any claim of corruption.

Thus the Ninth Circuit reached the same result as the D.C. Circuit, but for slightly different reasons.  The D.C. Circuit in SpeechNow.org--the first circuit court case applying Citizens United--held that the reasoning of Citizens United applied equally to contributions, and ruled that the government has no anti-corruption interest in limiting contributions to an IEC:

In light of the Court's holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.  The Court has effectively held that there is no corrupting "quid" for which a candidate might in exchange offer a corrupt "quo."

Given this analysis from Citizens United, we must conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group such as SpeechNow.

SpeechNow.org, at 14.  The Ninth Circuit, in contrast, left the door open for a possible anti-corruption purpose justifying contribution limits, even as it required a tight relationship between the IEC and candidates to show corruption.

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The Specter of a Lesbian Supreme Court Justice?

"Have I ever lived an alternative lifestyle? The answer is no."

That is not Elena Kagan, in some real or imagined dialogue. 

That was Donna Shalala in 1992, Clinton's Secretary of Health and Human Services.  Janet Reno, Clinton's third and ultimately successful nominee for Attorney General explicitly told reporters she was "attracted to strong, brave, rational, and intelligent men." 

The absence of heterosexual bona fides, however, for both Shalala and Reno meant that rumors about their sexuality dogged them.

As recent discussions about Elena Kagan here, here, and here demonstrate, things haven't changed as much as one might have thought.  But what relevance is sexual orientation in terms of a nation's highest court? 

In 1993, I argued "we need a Lesbian on the Supreme Court," and then unpacked what such a statement might mean in terms of both identity and identity politics, as well as constitutional doctrine.  The article, The Specter of a Lesbian Supreme Court Justice, is now available on ssrn here.

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Fish on Strauss's Living Constitution

Stanley Fish reviewed David A. Strauss's new book, The Living Constitution, in today's on-line New York Times. 

 

Fish takes on Strauss's thesis that "the text of the Constitution will play, at most, a ceremonial role" in constitutional law and that "on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy."

But if Strauss takes a pure anti-dead hand, "living constitution" approach, Fish counters with an original intent response that has gone out of vogue even with the hardest core textualists.  Fish:

The question is not, as Strauss would have it, is this proffered meaning in the Constitution?  The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended?

(Emphasis added.)

While the interpretation debate has moved beyond pure-living-constitutionalism versus pure-original-intent--and into "constitutional fidelity" versus any number of variations on originalism--Fish's is a thoughtful review of a provocative book.

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Elena Kagan Nominated to United States Supreme Court

President Obama announces the nomination this morning:

Whitehouse Press Release here.

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President Obama to Seek Line Item Veto

President Obama will propose legislation this month to give him greater power to curtail congressional spending bills, according to Friday's New York Times.

The measure would reportedly give the President 45 days after signing a spending bill to submit back to Congress a list of items to be rescinded.  Congress would then have 25 days to vote the rescissions up or down, without amendment.

The proposal is designed to give the President more control over specific line items in massive spending bills that he must otherwise sign or veto in toto.

The Supreme Court overturned the line-item veto in 1998 in Clinton v. New York.  That version of the line-item veto allowed the President to "cancel" a single line-item in a larger spending bill by reporting the canceled provision back to Congress.  The item would be canceled upon receipt of the report by Congress, after the rest of the bill became law.  Congress could override a canceled provision by a majority vote in both houses.

The Court in Clinton v. New York ruled that this procedure violated Article I, Section 7, the Presentment Clause:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

This requires President to sign the entire bill, or to veto the entire bill and send it back.  It does not allow the President to sign a mere portion of a bill and send the rest back.  The 1998 version of the line-item veto thus violated the Presentment Clause. 

The reported new version solves this problem.  The effect of the rescission process in the reported proposal would be to initiate an entirely new bill--a bill that would amend the one the President first signed.  (The President, of course, has the power to recommend legislation under Article II, Section 3.)  After the new bill passed both houses, it would presumably come back to the President's desk, and he'd sign it or veto it as a new bill.  The procedure satisfies the Presentment Clause and related separation-of-powers concerns (which the Clinton v. New York Court declined to address).

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New Jersey Court Rules Gov. Christie's EO Invalid

The New Jersey intermediate appellate court ruled on Friday that Governor Chris Christie's executive order including labor unions in the state's anti-pay-to-play law infringed upon the legislature's core law-making authority in violation of state constitutional separation-of-powers.  (We previously posted on Governor Christie's relationship with the New Jersey courts here.)

The case, Communication Workers of America, et al. v. Christie, involved Governor Christie's Executive Order Number 7, which added labor unions to the state law that prohibits "business entit[ies]" from receiving government contracts after making a political contribution to a state official or political party.

The Governor argued that state employee labor unions' collective bargaining agreements were "government contracts" for the purpose of the anti-pay-to-play law, effectively prohibiting public sector labor unions from contributing to state political campaigns.

But the language of the anti-pay-to-play law suggests that the law applies only to more traditional, procurement-related government contracts.  And by its plain terms the law applies to "business entit[ies]."

The court ruled that Governor Christie's executive order stretched the meaning of the law in applying it to collective bargaining agreements (which aren't traditional, procurement-related contracts) and to labor unions (which aren't business entities).

The ruling has a terrific state constitutional separation-of-powers analysis between pages 33 to 55, relying upon precedent, structure, and text--like this separation-of-powers clause in Article III, paragraph 1:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial.  No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others except as expressly provided in this Constitution.

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In Memoriam: Rhonda Copelon

ConLawProf, constitutional law litigator, and Vice-President of the Center for Constitutional Rights, Rhonda Copelon (pictured below) died yesterday, May 6, 2010.

She argued Harris v. McRae, was a founding member of CUNY School of Law, and in recent years concentrated on international women's human rights. 

Video interviews, more about her work, and a photo slide show is available here.

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ACS 2010 Convention

The American Constitution Society opened registration for its 2010 National Convention at the Renaissance Mayflower Hotel in Washington, D.C., from June 17 to June 19.  Featured speakers include Senator Al Franken, Rep. Linda Sanchez, and Newark Mayor Cory Booker.

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Constitutionality of National Day of Prayer

Today, May 6 is the national day of prayer by Presidential Proclamation:

by virtue of the authority vested in me by the Constitution and laws of the United States of America, do hereby proclaim May 6, 2010, as a National Day of Prayer.  I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us.  

(Read the rest of the proclamation here.)

 Family Saying Grace,  Anthonius Claeissins c 1585 via

Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan which declared the first Thursday in May the "National Day of Prayer."  This update provided a date certain to the previous law, passed by Congress in 1952 after the intensive lobbying efforts of Billy Graham.

A national day of prayer by presidential proclamation raises an Establishment Clause issue.  Earlier in April, District Judge Barbara Crabb decided a summary judgment motion in favor of the Freedom From Religion Foundation (the same party who was denied standing in its suit against faith-based funding in Hein decided in 2007 by the Supreme Court).  Judge Crabb declared the national day of prayer unconstitutional in a 66 page opinion that discusses the complexities of Establishment Clause doctrine.  She states that "the government has taken sides on a matter that must be left to individual conscience" and the absence of a "secular purpose" for the national day of prayer is fatal under Establish Clause doctrine, specifically the 1971  Lemon [v. Kurtzman] test.  Crabb opined: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."

The opinion attracted widespread attention including in WaPo and an insightful post from Howard Friedman over at Religion Clause here.  Obama's DOJ  is appealing the ruling.

Prayers, ceremonies, and other prayer events are expected to occur since the order has been stayed.  The Pentagon's National day of Prayer event will lack the originally scheduled Franklin Graham, son of Billy Graham; the Army has rescinded his offer deeming inappropriate Graham's comments that Islam is an offensive religion. [Update on Graham's activities today here].

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"Four Dead in Ohio": Congressional Resolution on Kent State

House Resolution 1272  "Commemorating the 40th anniversary of the May 4, 1970, Kent State University shootings,"  text below, was adopted today by a vote of 413-0. 

Two members voted "present" because of the wording resolution according to Politico.

 

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RESOLUTION

Commemorating the 40th anniversary of the May 4, 1970, Kent State University shootings. Whereas the year 2010 marks the 40th anniversary of the Kent State University shootings that occurred on May 4, 1970; Whereas, on such date, Ohio National Guardsmen opened fire on Kent State students who were protesting the United States invasion of Cambodia and the ongoing Vietnam War; Whereas four unarmed students (Allison Krause, Jeffrey Miller, Sandra Scheuer, and William Schroeder) were killed and nine others (Alan Canfora, John Cleary, Thomas Grace, Dean Kahler, Joseph Lewis, Donald MacKenzie, James Russell, Robert Stamps, and Douglas Wrentmore) were injured; Whereas the site of the May 4 shootings was entered in the National Register of Historic Places, the official list of the Nation's historic places worthy of preservation, in February 2010; Whereas, to preserve the memory of the May 4 shootings and encourage inquiry, learning, and reflection, Kent State has established a number of resources, including the May 4 Memorial, individual student memorial markers and scholarships in memory of the four students mentioned above who were killed, an experimental college course entitled `May 4, 1970 and its Aftermath', and an annual commemoration sponsored by the May 4 Task Force; and Whereas Kent State has engaged the internationally renowned design services firm, Gallagher & Associates, to assist in the development of the May 4 visitors center as a central place where individuals can explore and better understand the May 4 shootings:

Now therefore be it Resolved,That the House of Representatives, in commemoration of the 40th year anniversary of the Kent State University shootings that occurred on May 4, 1970--

(1) recognizes the tragedy of the May 4 shootings and the implications that the shootings have had not only on Kent State and the local community, but also on the Nation and the world; and

(2) applauds the development of the May 4 visitors center as an additional primary resource to preserve and communicate the history of the May 4 shootings, its larger ethical and societal context and impact, and its enduring meaning for our democratic Nation.

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Justice O'Connor on Arizona Immigration Law SB 1070

Arizona may have gone a little too far. 

Immigration is the province of the federal rather than state government.

Racial profiling may be a problem.

These are the sentiments of retired Justice Sandra Day O'Connor on Arizona Immigration Law SB 1070 (our most recent discussion here).  O'Connor's remarks are reported by WSJ  and SFGate (SF Chronicle) from a Q&A today at the private high school in San Francisco from which her husband graduated. 

(photo: Sandra Day O'Connor with her husband, John O’Connor and President George W. Bush, May 2004 in the Oval Office; courtesy wikimedia)

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New Jersey Supreme Court under Governor Chris Christie

A state constitutional conflict is brewing in New Jersey over Governor Chris Christie's non-"reappointment" of John Wallace, the only African-American of the seven state justices on the New Jersey Supreme Court. Justice Wallace (pictured right) was appointed in 2003 and his seven year term expires May 20, 2010.

Christie has been quoted as criticizing the court for its activism:

“The court over the course of the last three decades has gotten out of control,” Christie said during a press conference in Trenton. “It inappropriately invaded the executive and legislative constitutional functions. It’s not for the court to set some of the policies that I believe that they’ve set. And I’ve talked all during the campaign about changing the court. The only way to change the court is to change its members.”

Christie seemingly has the power to change the court's members under the NJ state constitution:   Article VI, Section VI, paragraph 3 provides that the Justices of the NJ Supreme Court "shall hold their offices for initial terms of 7 years and upon reappointment shall hold their offices during good behavior" and "shall be retired upon attaining the age of 70 years." 

The nonreappointment of a Justice on the expiration of the seven year term is unprecedented according to quoted NJ legislators,  NorthJersey.com news, and the NYT.

Wallace would have faced mandatory retirement in 22 months, but Christie chose to remove him from the bench in favor of nominating Anne Patterson, a 51 year old white woman, insurance defense attorney, and Republican contributor. 

The appointment of Patterson may be difficult; A state senator is reportedly intending to block the confirmation hearing of Patterson. 

[Update here].

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Beyond Citizenship: Bosniak's Theory of Personhood in Constitutional Law

What's the difference between a citizen and a person?  Sometimes the difference is profound, as demonstrated by the current controversies surrounding Arizona Immigration Law, SB 1070, which we've most recently discussed here. 

Other times, citizenship and personhood are conflated, especially in constitutional discourse surrounding equality (think of the phrase "second-class citizen").

ConLawProf Linda Bosniak (pictured left)  trenchantly argues in favor of personhood in her latest article, Persons and Citizens in Constitutional Thought,  8 International Journal of Constitutional Law 9-29 (2010) (on ssrn here). For Bosniak, it is important to "challenge the exclusionary commitments associated with nationalist conceptions of citizenship," and to prefer "personhood" over "citizenship."   Thus, I think Bosniak would eshew the theoretical project of "sexual citizenship," an endeavor I have critiqued, positing "personhood" as more acceptable.

But as Bosniak notes,

In much the same way that the concept of citizenship has needed critical unpacking, personhood, as a preferred basis for constitutional subject status demands interrogation as well. Personhood raises as many questions as it answers, and in the context of constitutional thought, it promises much more than it can deliver.  

Thus she looks at personhood in a variety of contexts, including the very "thin" personhood that is afforded to "aliens" and contrasted with citizenship.  Yet she also theorizes about the ways in which personhood can be evaded:  "territoriality," "community" (consider persons in contrast to "the people"), and situations of "war and emergency."  Personhood have many problems, as Bosniak demonstrates, but she concludes that "while it is context-dependent and context-enabled, the idea of personhood also contains the normative and rhetorical resources to challenge every context in which it is situated — including the national constitutional context itself."

Add Bosniak's brief but rich article to your summer reading list and perhaps your syllabus.

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Proposed Amendments to Arizona Immigration Law SB 1070

The Arizona House of Representatives has proposed amendments to the controversial Arizona Immigration Law SB 1070 signed just last week.

Arizona HB 2162 (NOW: immigration; border security) would amend SB 1070 as follows:

• Changes “lawful contact” to “lawful stop, detention or arrest.”  
• Stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state.
• Stipulates that a reasonable attempt must be made, when practicable, to determine the immigration status of a person, except if the determination may hinder or obstruct an investigation when reasonable suspicion exists that the person is an alien and is unlawfully present in the U.S.
• Removes “solely” from the provision relating the prohibition on discriminatory enforcement.
• Stipulates that for the Enforcement of Immigration Law, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens the immigration status may be determined by:
•  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
•  ICE or CBP pursuant to 8 U.S.C. § 1373(c).
•  Specifies that 8 U.S.C § 1373 and 8 U.S.C § 1644 are included in the federal immigration laws relating to challenges regarding policies adopted or implemented by an entity.
• Stipulates that for the enforcement of Willful Failure to Complete or Carry an Alien Registration Document, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens a law enforcement official or agency cannot consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.

The proposed amendments address some of the equal protection and fourth amendment challenges in the complaints filed in federal district court which we discussed here and here, but do not substantially change the preemption arguments also made in the complaint which we discussed here.  Our original post is here with update here.

Arizona Republic story on the proposal here.

{Update: Arizona immigration statute partially enjoined; here}

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Federalist Society Launches Supreme Court Nomination Site

SCOTUSreport is a new site from the Federalist Society.    

The site seeks to "collect in one place the key news and documents, as well as commentary from across the legal, political and philosophical spectrum, regarding the upcoming Supreme Court nomination."

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