Constitutional Law Prof Blog

Feds Send Virgin Island Constitution Back for Reconsideration

President Obama on Wednesday signed Senate Joint Resolution 33, which sends the proposed constitution the U.S. Virgin Islands back to the USVI Constitutional Convention for reconsideration in light of Justice Department concerns about it.  We previously posted on those concerns--and the history of USVI constitutionalism--here.  The Resolution also establishes procedures for Presidential review of the reconsidered constitution.

The Joint Resolution is designed "[t]o provide for the reconsideration and revision of the proposed constitution of the United States Virgin Islands to correct provisions inconsistent with the Constitution and Federal law."  What are those offending provisions?  According to the Resolution (and taken word-for-word from the first paragraph of the OLC opinion, discussed in the link above):

(1) the absence of an express recognition of United States sovereignty and the supremacy of Federal law;

(2) provisions for a special election on the terroritorial status of the United States Virgin Islands;

(3) provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry;

(4) residence requirements for certain offices;

(5) provisions guaranteeing legislative representation of certain geographic areas;

(6) provisions addressing territorial waters and marine resources;

(7) imprecise language in certain provisions of the bill of rights of the proposed constitution;

(8) the possible need to repeal certain Federal laws if the proposed constitution of the United States Virgin Islands is adopted; and

(9) the effect of congressional action or inaction on the proposed constitution.

SDS

OLC: Emoluments Clause Not Applicable to Nongovernmental Members of ACUS

The Office of Legal Counsel released a memorandum last week that opined that the Emoluments Clause does not apply to nongovernmental members of the Administrative Conference of the United States (ACUS)--that nongovernmental members do not hold an "Office of . . . Trust" within the meaning of the Clause.

The Emoluments Clause, Article I, Section 9, Clause 8, forbids anyone "holding any Office of Profit or Trust" from accepting, without congressional consent, "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

ACUS was established in 1964 to develop recommendations to improve federal agency procedure.  It consists of between 75 and 101 governmental and nongovernmental members, including a Chairman and a Council.  The Chair is appointed by the President for a five-year term, with the advice and consent of the Senate; the Council is composed of the Chair and ten other governmental and nongovernmental members, the latter ten for three-year terms without Senate involvement.  The Chair may appoint to ACUS, with Council approval, not more than 40 nongovernmental members for two-year terms; they are selected by the Chair to "provide [a] broad representation of the views of private citizens and [to] utilize diverse experiences," and "shall be members of the practicing bar, scholars in the field of adminstrative law or government, or others specially informed by knowledge and expertise with respect to Federal administrative procedure."  5 U.S.C. Sec. 593(b)(6).

ACUS ceased operations in 1995.  Congress reauthorized it 2008, and it began operations last year.

The OLC opinion that the Emoluments Clause does not apply to nongovernmental members is, according to the Office, in line with its most recent opinions on application of the Clause to nongovernmental members of advisory committees.  But it wasn't always so.  As the opinion explains:

In 1993 our Office advised that the Emoluments Clause applied to the nongovernmental members of ACUS. . . .  First, we noted that ACUS was a "Federal agency established by statute."  Second, although we acknowledged that ACUS was an advisory committee as well as an agency, we cited to our then prevailing view that "Federal advisory committee members hold offices of profit or trust within the meaning of the Emoluments Clause."  Third, we noted that the Conference's advice and recommendations "have had (and were intended to have) a significant effect on the Government's administrative processes."  Finally, we observed that "under the Conference's own by-laws, its members may be considered to be special government employees subject to Federal conflict of interest statutes and regulations.

Opinion at 3. 

Subsequent opinions have read the Clause's requirement for an office of profit or trust more narrowly.  In the opinion released last week, the Office ruled that nongovernmental members of ACUS do not fall within this category, because they serve without compensation, they are not given access to classified information, are likely to constitute only a minority of the Conference and the Council, and have authority over only certain limited decisiions of the Chair.  The fact that they are special government employees subject to federal conflict of interest rules was not determinative.

SDS

Cert Granted in Arizona Employer Sanction of Hiring of Undocumented Workers

The Court granted certiorari yesterday in Chamber of Commerce of the United States v. Candelaria, a case challenging the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."

The Ninth Circuit upheld the statute, affirming the district judge, noting that the statute had yet to be enforced, and observing that the challenge

is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and
the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.

In its discussion of the preemption challenge, the Ninth Circuit opinion reads like an excellent discussion of the doctrine, first distinguishing express and implied preemption, and then discussing the two categories of implied preemption: field preemption and conflict preemption.  The Ninth Circuit applied each of these doctrines to find that the state law is not preempted, even when the state law mandates the use of E-Verify when federal law arguably intended that its use be voluntary.  The Ninth Circuit also addressed the employers' due process arguments, finding that the state act provided sufficient process for employers to prevent evidence regarding an employee's status.

The Solicitor General's brief "filed in response to the Court’s order inviting the Solicitor General to express the views of the United States," advocated that the "petition for a writ of certiorari should be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by  8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”

As Kevin Johnson over at Immigration Law Prof argues:

The decision by the Court on the scope of federal preemption of state immigration laws will likely have a significant impact on the outcome of the litigation challenging Arizona Senate Bill 1070, which has provoked a firestorm of controversy.  My speculation is that the controversy helped convince the Justices to grant cert and to offer guidance on the room, if any, for state and local governments to attempt to regulate immigration and immigrants.

Certainly, there will be more discussion about Chamber of Commerce of the United States v. Candelaria.

RR

image: "The Floor Scrapers" by Gustave Caillebotte, 1875, [typo in year corrected! thanks!], via.

Patheos Interviews on Christian Legal Society v. Martinez

Patheos posted a set of brief interviews with Michael McConnell, counsel for the Christian Legal Society, David French, senior legal counsel for Alliance Defense Fund, and Marci Hamilton, con law prof at Cardozo, on the meaning of the Court's decision in Christian Legal Society v. Martinez and the case's future--a short, nice overview of the positions.  We posted our analysis of the case here.

From McConnell's interview:

Q: What's next then for the Christian Legal Society and the Alliance Defense Fund?  This gets remanded, and you will build a case that this was discriminatory in its application?  That only the Christian Legal Society, and not other groups that discriminate in their membership, were singled out?

A: Yes.  And I think the record is pretty clear that it was applied in a discriminatory manner.  Justice Alito's dissent recites a lot of the evidence. 

Q: Why was that not decided in this case?  Was it because you wanted to focus on the facial challenge by arguing that this was unconstitutional even in the abstract?

A: I'm not quite sure why the courts did not look at it.  We have argued it all along. . . .

I don't want to exaggerate this.  The majority opinion does reject one of our arguments, which is that the "all comers" policy, even if it were applied on a non-discriminatory basis, is unreasonable in light of the purpose of the forum. . . .

Q: Now, legally, there is nothing to prevent other universities from deciding to use an "all comers" policy as a way of manipulating religious groups, including and excluding those they wish to include and exclude?

A: It may be harder than they think.  When you get around to trying to write down what an "all comers" policy would really look like, it's a fairly daunting task. . . .

[P]racticalities make a blanket "all comers" policy absurd.  So they are going to have to have exceptions.  Once you get around to writing the exceptions, it's going to be pretty difficult for law schools to come up with an "all comers" policy that really does what they would like it to do.

From French's interview:

Q: What is to prevent other schools, colleges, and universities from adopting the "all comers" policy, and using that as a way to defund and delegitimize student groups who require their members to adhere to their values and beliefs?

A: There are really practical considerations.  Under the Supreme Court's ruling, an "all comers" policy is only going to be constitutional if it applies to everyone equally. . . .

One of the reasons why the enforcement of the classical non-discrimination policy against student groups caused so few waves on campus is that they were able to use that classic non-discrimination policy to single out religious student groups without touching others.  In the "all comers" regime, they have to impact all groups.  That's a much more difficult thing to do in the real world than simply single out a disfavored Christian student organization and shove them out the door.

And from Hamilton's interview:

Q: The argument that this puts some religious student groups, groups that have a viewpoint that the university hierarchy does not prefer, at a competitive disadvantage in the religious marketplace of ideas--you do not find that a compelling argument?

A: Not at all.  They have every opportunity to get their ideas out there. . . .

What they were looking for was an advantage.  What they were hoping to do was to be given the ability to discriminate on the basis of sexual orientation with respect to their leadership and still take government money.

One thing that should be made clear in all the reporting on this case is that this was a case about funding.  It was not a case of whether or not you could believe what you want to believe.  Luckily, the Court said there is no constitutional right to funding when you are a group that chooses to discriminate on the basis of a category that it is illegal to discriminate against.

SDS

Farewell Justice John Paul Stevens

RR

Free Enterprise Fund v. PCAOB Opinion Analysis: PCAOB Removal Process Unconstitutional

In another 5-4 and lengthy decision today,  the Court declared unconstitutional the formation of the Public Company Accounting Oversight Board (PCAOB)  created as part of the Sarbanes-Oxley Act of 2002.

As we previously noted in discussing the oral arguments here, the central question in the case is whether the PCAOB violates separation of powers and the Appointments Clause--whether its members are subject to sufficient presidential control, and, in any event, whether they were properly appointed as principal or inferior officers.  Indeed, the PCAOB case pushes the outer edge of what Congress can authorize without intruding on the executive.

The Court held that this "outer limit" had been exceeded.  Roberts, writing for the Court, concluded that combining protections for from removing members of the PCAOB is

contrary to Article II’s vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them.  Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead
committed to another officer, who may or may not agree with the President’s determination, and whom the Presi­dent cannot remove simply because that officer disagrees with him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.”

(Opinion at 2).  This certainly reflected his concerns in oral argument, as we said, "Chief Justice Roberts at one point seemed to endorse the petitioners' theory of "double for cause" removal, calling it "'for cause' squared," while still navigating bedrock cases that uphold independent institutions."

Of great interest should be the Appendices to Breyer's 37 page dissent, which are almost as long as the dissenting opinion itself which Breyer read from the bench.  These appendices constitute a cartography of the present federal administrative state, specifically focusing on "double" for cause removals of inferior officers.  These support the conclusion of Breyer - - - joined by Stevens, Ginsburg, and Sotomayor - - - that "vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives."  Breyer therefore advocated for a "functional approach" as "required" by precedent, recognizing

the various ways presidential power operates within this context—and the various ways in which a removal provision might affect that power.  As human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective.

(Dissenting Opinion at 9).

Justice Roberts for the Court has an answer:

No one doubts Congress’s power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President?  The Constitu­tion requires that a President chosen by the entire Nation oversee the execution of the laws.  And the “‘fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution,’” for “‘[c]onvenience and efficiency are not the primary objec­tives—or the hallmarks—of democratic government.’” 

(Opinion at 18 [citing Bowsher v. Synar]).  The Court briefly discusses and rejects the other challenges to PCAOB.  Roberts concludes with a citation to The Federalist Papers:

The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so.  That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties.  Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.  Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magis­trate himself.” The Federalist No. 70, at 478.

While we have sustained in certain cases limits on the President’s removal power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President’s authority in this way.

(Opinion at 33). 

RR

Christian Legal Society v. Martinez Opinion Analysis: "All Comers Policy" for Student Groups Withstands First Amendment Challenge

In a 5-4 opinion today, the Court upheld the Hastings Law School's policy of non-recognition of the Christian legal Society (CLS) student group against a First Amendment challenge. 

This high profile case revealed itself to be in a bit of "procedural disarray" during oral arguments as we previously noted.

Writing for the Court, Justice Ginsburg framed the issue as: "May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agree­ment to open eligibility for membership and leadership to all students?"  This is the so-called "all-comers policy."  The Court rejected the CLS contention that the policy was not actually an "all-comers" policy but one that targeted certain groups based on religion,  noting that "CLS’s assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the summary­ judgment stage." (Opinion at 8).  Ginsburg briefly discusses the importance of stipulated facts, and harshly criticized the dissent:

Time and again, the dissent races away from the facts to which CLS stipulated.  See, e.g., post, at 2, 3, 5, 6, 7, 8, 11,24. [footnote omitted]  But factual stipulations are “formal concessions . . . that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. [citation omitted].

Opinion at 11.  As for CLS's argument that the all-comers policy was a pretext, the Court was again highly critical of the dissent's interpretation:

The dissent’s pretext discussion presents a one-sided summary of the record evidence, post, at 31–34, an account depending in large part on impugning the veracity of a distinguished legal scholar and a well respected school administrator, post, at 3, 5, 6, 7, 8, 9, 11, 24, 32, 34.

(Opinion at 32, n.29).  However, Ginsburg did note that the Ninth Circuit might address the pretext argument on remand "if, and to the extent it is, preserved."

The Court concluded "that our limited-public-forum precedents supply the appropriate framework for assessing both CLS’s speech and associa­tion rights."   In support, the Court noted that at issue is CLS's ability to access a state subsidy and that thus CLS "faces only indirect pressure to mod­ify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recogni­tion."  (Opinion at 15).  The Court distinguished the precedents on which CLS was relying (such as Boy Scouts of America v. Dale) as forcing organizations to accept members. 

Instead, Ginsburg applied limited public forum doctrine and stressed the "educational context" in which the situation arose.  Additionally, Ginsburg noted that CLS had other avenues of expression: "Hastings offered CLS access to school facili­ties to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events," and although "CLS could not take advantage of" specific recognized student organization methods of communication, "the advent of electronic media and social-networking sites reduces the importance of those channels." (Opinion at 24). 

Alito's dissenting opinion agrees that limited public forum doctrine applies, although doubts that the "all-comers" policy is view-point and content neutral.  The dissent concludes with strong rhetoric:

I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country.  Our First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide- open.” [citation omitted] Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm. I fear that the Court’s decision marks a turn in that direction. Even those who find CLS’s views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration.

RR

McDonald v. Chicago Opinion Analysis: Second Amendment Incorporated Against States

By a vote of 5-4, the Court in McDonald v. Chicago today incorporated the Second Amendment right to  individual gun ownership it recently recognized in District of Columbia v. Heller against the states through the Fourteenth Amendment.  Our analysis of the March oral arguments is here.

The 214 pages of opinions (including a 4 page appendix) will provide much fodder for scholars and litigators.  There are not only dissenting opinions by Justice Stevens and by Breyer (joined by Ginsburg and Sotomayor), but the majority opinion provides the fractured decision-making that can frustrate law students and other readers of Supreme Court opinions.  Here are the alignments:

JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, and an opinion with respect to Parts II–C, IV, and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.

SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion.
BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., join.

The plurality - - - Alito, Roberts, Scalia, and Kennedy - - - conclude the due process clause of the Fourteenth Amendment incorporates the Second Amendment.  Scalia writes separately, noting "I join the Court’s opinion. Despite my misgivings about  Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guaran­tees in the Bill of Rights 'because it is both long estab­lished and narrowly limited.' [citation omitted].   This case does not require me to reconsider that view, since straightfor­ward application of settled doctrine suffices to decide it."

Only Justice Thomas, concurring (and vital to the Court's majority under the Fourteenth Amendment incorporation conclusion), rejected substantive due process:

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” [citation omitted] and “‘deeply rooted in this Nation’s history and tradition,’” [citation omitted].  I agree with that description of the right.  But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.”  Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities
Clause.

Our discussions of the Privileges or Immunities Clause arguments are here, here, here, here, and here.  Although initially an attractive option, most scholars and court-watchers came to believe that the Court would ultimately not reverse The Slaughterhouse Cases and "resurrect" the Privileges or Immunities Clause.

Dissenting, Breyer considers the criticisms by scholars of Heller and asks:

At the least, where Heller’s historical foundations are so uncertain, why extend its applicability? My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree.  It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance.  And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process.

Justice Stevens' 60 page dissenting opinion argues for judicial restraint, and while he does not explicitly chastise the majority for judicial activism, that is certainly the implication.

We will have additional discussion of the decision in the near future.

RR

Spatial Inequality

Welcome Back Feminist Law Professors Blog!  

After a brief hiatus, Feminist Law Professors Blog is back with a new look.  Cyber-space is not quite as "equal" without the blog's perspectives, including its famous "where are the women?" feature that calls attention to law review issues or conferences with a dearth of female participants.

Feminist Law Professors Blog also brings attention to feminist scholarship of interest to ConLawProfs.  Its most recent posting, for example, highlights the work of Lisa Pruitt (pictured right) of UC Davis School of Law on "spatial inequality." 

As Feminist Law Prof Bridget Crawford writes: "Pruitt's work seeks to revive legal consideration of spatial variations in provision of government services, a concern that waned following the Supreme Court’s 1973 decision in San Antonio Independent Schools v. Rodriguez."

Read the rest of Crawford's post on Lisa Pruitt's work here.

RR

Kagan Confirmation Hearing: Material from the Senate Judiciary Committee

The confirmation hearing of Elena Kagan to be an Associate Justice of the United States Supreme Court begins Monday, June 28, 2010, at 12.30pm.

The Senate Judiciary Committee has released the witness list:

American Bar Association Witnesses
Kim Askew, Chair of Standing Committee
William J. Kayatta, Jr., First Circuit Representative

 Majority Witnesses
Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
Justice Fernande "Nan" Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
Greg Garre, Partner, Lathan & Watkins, former Solicitor General of the United States
Jennifer Gibbins, Executive Director, Prince William Soundkeeper
Professor Jack Goldsmith, Professor of Law, Harvard University
Marcia Greenberger, Founder and Co-President, National Women's Law Center
Jack Gross, plaintiff, Gross v. FBL Financial Services Inc.
Lilly Ledbetter, plaintiff, Ledbetter v. Goodyear Tire
Professor Ronald Sullivan, Edward R. Johnston Lecturer on Law, Director of the Criminal Justice Institute, Harvard law School
Kurt White, President, Harvard Law Armed Forces Association

Minority Witnesses
Robert Alt, Senior Fellow and Deputy Director, Center for Legal and Judicial Studies, The Heritage Foundation
Lt. Gen. William "Jerry" Boykin, United States Army (ret.)
Capt. Pete Hegseth, Army National Guard
Commissioner Peter Kirsanow, Benesch Law Firm
David Kopel, Esq., Research Director, Independence Institute
Colonel Thomas N. Moe, United States Air Force (ret.)
David Norcross, Esq., Blank Rome
William J. Olson, Esq., William J. Olson, P.C.
Tony Perkins, President, Family Research Council
Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law
Ronald Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
Ed Whelan, President, Ethics and Public Policy Center
Dr. Charmaine Yoest, President & CEO, Americans United for Life
Capt. Flagg Youngblood, United States Army

 

In addition to its "noteworthy" sidebar (above right) making it clear that Kagan would be the fourth woman to serve on the Supreme Court if she is confirmed, the Senate Judiciary Committee website also includes the following materials relevant to the Kagan nomination and hearing:

Nomination and Hearing Materials, Information and Guidance

• Committee Questionnaire and Related Materials
  

• Solicitor General Nomination Materials

• Letters and Materials Sent and Received in Connection with the Nomination
  

• Media Guidelines for the Nomination Hearing of Elena Kagan
  

• Public Attendance Guidelines at the Nomination Hearing of Elena Kagan

RR

 

Doe v. Reed Opinion Analysis: No Right to be Anonymous on a Ballot Initiative Petition?

In Doe v. Reed, the Court today rejected a facial First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative. Chief Justice Roberts wrote the Opinion for the Court; only Thomas dissented, although there are several concurring opinions: Breyer, Alito, Sotomayor (joined by Stevens and Ginsburg), Stevens (joined by Breyer), and Scalia.

As we discussed in our post on the oral argument here, the background facts are bit confusing, as the situation involves the state of Washington's ballot initiative to negate SB 5688 (the "everything but marriage" for same-sex couples law) and the Washington Public Records Act (PRA),  RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative.

The Court's rather brief opinion - - - 13 pages - - - concluded that signing a petition for a ballot initiative is expressive political activity. (There was some discussion at oral argument that merely signing a petition doesn't really "express" anything).  The Court then noted two relevant considerations: that the setting is an  electoral one and that the state law is a disclosure requirement rather than a prohibition (citing Citizens United). 

The Court articulated an "exacting scrutiny" standard:

requiring a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.”   To  withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”

(Opinion at 7, citations omitted).  The Court found that the State's interest in "preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability" sufficed to defeat the First Amendment challenge to disclosure of referendum signatures.  The Court therefore did not reach the State's other asserted interest, the so-called "informational interest."

Breyer's one paragraph opinion emphasized the balancing of interests, while Sotomayor's more extensive opinion stressed the character of initiatives and ballot referenda as creatures of state law.   Steven's opinion proclaims "This is not a hard case." 

Concurring, Scalia echoes some of his statements from oral argument and proclaims: "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed," adding that "This does not resemble the Home of the Brave."  (Scalia, at 10).

Thomas, dissenting, takes the opposite view, arguing that the disclosure of referendum petitions chills citizen participation in the process.

The Court did not reach the "narrower challenge" of the plaintiffs that remains pending before the federal district court.   That challenge is an as-applied challenge contesting the disclosure of the names on this particular petition because it involves the controversial issue of same-sex marriage and relying on incidents in California.  (As the Court noted, however, the First Amendment challenge that the Court did reach might also be termed an "as-applied challenge" because it involves the application of the state's general public records act to the particular situation of ballot initiatives; the Court applied the standard for facial challenges because "plaintiffs’ claim and the relief that would follow— an injunction barring the secretary of state 'from making referendum petitions available to the public,'" — reach beyond the particular circumstances of these plaintiffs."  (Opinion at 5).

However, two concurring justices commented on the narrower challenge. Alito's concurrence contended that the plaintiffs have a "strong" First Amendment argument in light of the "widespread harassment and intimidation suffered by supporters of California’s Proposition 8."   (Alito at 3, emphasis added). 

On the other hand, Stevens (joined by Breyer) wrote that:

Any burden on speech that petitioners posit is speculative as well as indirect.  For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships.  And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions.  Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech.

(Stevens Opinion at 4, emphasis added).

Thus, while the narrow as-applied challenge was not addressed by the Court, two concurring opinions seek to advise the federal district judge regarding a ruling on that challenge.

RR

Con Law Colloquium at Loyola Chicago

The Loyola University Chicago Law School recently announced the line-up for its fall con law colloquium titled How Democratic is the Constitution?  The colloquium will take place at the Philip H. Corboy Law Center at Loyola in Chicago starting Friday morning, November 5, 2010, and running through midday Saturday, November 6, and includes con law profs from around the country. 

 

From the announcement:

This is the first annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. 

SDS

Preliminary Injunction on Deepwater Drilling Moratorium: Financial Investment in the Outcome?

Judge Martin Feldman of the United States District Court for the Easter District of Louisiana has issued a preliminary injunction of Secretary of the Interior Salazar's six month moratorium issued May 28, 2010, after a report on the BP Deepwater Horizon explosion and oil "spill." 

Judge Feldman's 22 page "Order and Reasons" available here concluded that the Secretary's moratorium pursuant to the authority of the Outer Continental Shelf Lands Act, 43 U.S.C. §1332,  was  "arbitrary and capricious" under the standards of the Administrative Procedure Act.

What may make this issue of special interest to constitutional law profs is the possibility of due process arguments regarding Judge Feldman's decision.  Recall last year's United States Supreme Court 5-4 opinion in Caperton v. Massey - - - decided before the Massey mine disaster  this year - - - in which the Court found that denial of due process when a state supreme court justice failed to recuse himself in litigation involving Massey Coal Company despite the fact that the company's owner had contributed heavily to the judicial campaign. 

The specter of a judge having a financial interest in a case the judge is deciding is unsettling, usually discussed as a matter of judicial ethics.  Judge Feldman is now being scrutinized for reportedly having substantial investments in companies that participate in deepwater oil drilling; a financial disclosure statement is here; more reports here and here.

Feldman's opinion does not reveal his own investments, but certainly makes clear the financial interests of many Gulf Coast residents:

The plaintiffs’ complaint is based on the effect of the general moratorium on their oil service industry business, on the local economy, and puts in play the issue of the robustness of a Gulf-wide industry and satellite trades. Gulf of Mexico drilling activities rely upon a vast and complex network of technology, assets, human capital and experience. Indeed, an estimated 150,000 jobs are directly related to offshore operations. The government admits that the industry provides relatively high paying jobs in drilling and production activities. Oil and gas production is quite simply elemental to Gulf communities. There are currently approximately 3600 structures in the Gulf, and Gulf production from these structures accounts for 31% of total domestic oil production and 11% of total domestic, marketed natural gas production. Sixty-four percent of active leases are in deepwater, over 1000 feet. The plaintiffs own and operate vessels, shipyards, and supply services companies that support deepwater oil exploration and production in the Gulf. In addition to the vessels and facilities involved in their work, the plaintiffs together employ over 11,875 people. At least nineteen other companies, aside from BP’s operations involved with Deepwater Horizon, are presently operating deepwater drilling rigs.

(at 5-6).

Secretary Salazar will reportedly be issuing a new moratorium order with additional rationales as well as considering an appeal of Judge Feldman's Preliminary Injunction.

[Update: The Department of Justice has filed a motion to stay Judge Feldman's Preliminary Injunction; pleadings at SCOTUSblog here].

[Update:  Fifth Circuit Opinion and more on financial matters here].

RR

Street Artists in New York City

How many artists must the constitution allow? 

That's not precisely the issue in the continuing saga of NYC's repeated attempts to curtail the number of artist vendors in Manhattan.  However, the city has long sought to  limit the number of "expressive vendors," especially near museums and in popular venues such as Union Square Park, in order to avoid crowding.   

In the latest round, the city relented a bit "after listening to the complaints of aggrieved artists" according to the NYT,  so that the total number of artists the city would allow would be  "as many as 140" rather than the originally planned 81.  At present there are reportedly more than 300 artists who sell their productions on the streets of NYC.

Shortly after the new regulations were promulgated, two artists filed a complaint in federal court.   One of the plaintiffs is Robert Lederman, who previously prevailed on First Amendment claims against the city, Bery v. City of New York, 97 F.3d 689 (2nd Cir. 1996).   Lederman contends the new regulations are a prior restraint.  Interestingly, Lederman includes an equal protection claim, contending that the "real purpose" behind the new regulations are to rid the parks of artists engaged in political speech "in order to give preference to corporate vendors" who are not engaged in political speech and will pay the city a premium for exclusive use of the parks. 

The complaint includes the new regulations and Lederman's extensive history.  An AP story on the lawsuit is here.

RR

(image: Autoportrait, Alfred Le Petit, 1893, via)

Holder v. Humanitarian Law Project Opinion Analysis: Material Support Statute Upheld

Roberts, writing for the Court composed of six Justices, in Holder v. Humanitarian Law Project, upheld the so-called "material support" provision of the PATRIOT Act against a due process Fifth Amendment and a free speech and association First Amendment challenge.   (Opinion here via ScotusBlog).  We previously discussed the oral arguments and the statutory provisions at issue here.

On the vagueness issue, Roberts wrote that the Ninth Circuit improperly merged the due process and free speech claims, and that a "Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression": "Otherwise the doctrines would be redundant."  The Court distinguished the statutory terms in PATRIOT Act  - - -  "training," "expert advice or assistance," "service" and "personnel" - - - from previously adjudged vague terms such as "annoying," "indecent," and "vagrants." (Opinion at 15). 

In discussing the First Amendment free speech arguments, the Court characterized the positions of both HLP and the government as "extreme."  (at 20).  The Court rejected the argument of the plaintiff HLC that "pure political speech" was covered by the statute and likewise rejected Holder's argument that "the only thing truly at issue in this litigation is conduct, not speech." (at 21).  Yet while the Court declined to apply the O'Brien test, the Court accorded great deference to Congressional findings regarding the PKK and LTTE (Tamil Tigers) and noted that money is fungible, thus supporting the conclusion that "humanitarian aid" could ultimately serve the violent activities of "terrorist" organizations.  The Court also gave deference to the Executive branch, quoting a State Department Affidavit (at 28).  While the majority acknowledged the Court had an important role to play - - - writing "we are one with the dissent" that national security considerations do not "automatically trump"  judicial obligations - - - the majority quickly emphasized the judicial "lack of competence" in such matters.  The majority chastises the dissent for failing to address "the real dangers at stake." (at 33).

Regarding the free association claims under the First Amendment, the Court dispensed of plaintiffs arguments quickly, noting that the Ninth Circuit had similarly rejected these claims. 

The Court ended its 36 page opinion with a citation to the Constitution's preamble ("provide for the common defence") and the Federalist No. 41 ("security against foreign danger" as an "avowed and essential object" of the United States).  

Breyer who read his dissent from the bench, was joined by Ginsburg and Sotomayor.  The dissent agreed with Court's conclusion regarding vagueness,  but forcefully disagreed with the Court's First Amendment conclusions.  While recognizing the threat of terrorism, the dissent argued that the plaintiffs' prohibited acts were political speech and that the government did not demonstrate how prohibiting the teaching of the use of international law to peacefully resolve disputes, for example, helps achieve the security interest. (Dissent at 7).  In discussing this issue, Breyer rejects the fungibility conclusion, finding that it is not obvious and that the Government has not provided an empirical basis.  Breyer also rejects the proffered "legitimacy"  justification, noting that the statute allows many other types of speech that would also lend legitimacy to the terrorist organizations. 

Breyer also criticizes the majority's imposition of a new mens rea requirement to save the statute's constitutionality, and argues that the Court should have remanded the case rather than apply this new rule. 

Ultimately, Breyer concludes that the Court failed to "examine the Government's justifications with sufficient care" and failed to "insist upon specific evidence, rather than general assertion." (at 23).  As a result, Breyer contends, the "individuals" before the Court are being deprived "the protection the First Amendment demands."

RR

Al Franken at American Constitution Society National Convention

In a speech at the American Constitution Society National Convention, Senator Al Franken sharply criticized the Roberts Court and the Federalist Society. 

Franken's remarks are available in transcript; audio; and video at the ACS website.

While Franken acknowledges he is "one of the few non-lawyers in the room," and not an academic,  he nevertheless delves into constitutional theory and recent cases to support his point that the Court's decisions matter to "ordinary people."   He disavows originalism by linking it with Robert Bork and ultimately concludes: "Originalism isn't a pillar of our Constitutional history.  It's a talking point."  He critiques Roberts' "judges as umpires" metaphor with reference to a case by the Louisiana Supreme Court in 1866.  He discusses cases such as Lochner and Citizens United, but also Stoneridge, Conkright, Leegin, Iqbal, Exxon, Rapanos, Circuit City, and Ledbetter.  He also mentions recent proposals to "prioritize" internet service and how that might impact the flow of information.

For those teaching summer school - - - perhaps a comparative constitutional law course outside of the States?? or a legal theory course for non-law students?? - - - this could be the foundation of a good class exercise.  One could assign students to write a response or to select one of Franken's points and fully support it.

RR

The World Cup and Term Limits for High Court Justices

ConLawProf Mark Kende may be watching The World Cup, but he's thinking about comparative constitutional law, and more specifically, the appointment of high court justices. 

In his Op-Ed in the Christian Science Monitor, Kende argues:

In South Africa, justices can serve up to 12 years. This is the equivalent of two full terms in the US Senate, so implementing term limits, which would appear to require a constitutional amendment, might be a good idea to ensure the president looks for the most qualified justice, not a relatively young one.

Adopting term limits for judges, as well as changing the entire selection process, would be as radical as when the US Soccer Federation reluctantly adopted FIFA standards for rules and calculating league standings. Then, that change was met with its fair share of resistance. But it led to the US hosting the 1994 World Cup, establishing a major soccer league, and strengthening its national teams to contender status on the eve of the 2010 World Cup in South Africa.

If that nation can be a showplace for America on the largest world sports stage of all, it could also serve as an example to an improved Supreme Court confirmation process.

Interestingly, South African ConLawProf Pierre de Vos, commenting on The World Cup closer at hand, has recently noted that there is some talk that the South African Constitutional Court Justices might move to a mandatory retirement age of 70 for justices.  This would be more like the life-tenure American model, and quite like the Australian mandatory retirement age of 70 model. 

RR

Stop the Beach Renourishment: Opinion Analysis

The question of whether there can be a judicial taking under the Fifth Amendment's takings clause was not definitely decided by the Court in its opinion today in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection.  

The underlying controversy concerns the littoral interests of waterfront property owners; it can seem more a property law issue than a constitutional law issue as the oral argument illustrated.  Writing for the Court, Justice Scalia ultimately concluded that the Florida Supreme Court did not violate the takings clause, but first discussed water rights under Florida law and common law.  However, when Scalia opined that the takings clause "applies as fully to the taking of a landowner’s riparian rights as it does to the taking of an estate in land,"  (plurality, opinion at 11), he was not speaking for the majority, but only a plurality of four justices (Roberts, Alito, Thomas, and himself).  Likewise, it is only in the plurality portions of the opinion where there is an acceptance of a judicial taking: "It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat." (plurality, opinion at 12). 

Concurring in a separate opinion, Kennedy and Sotomayor noted "certain difficulties that should be considered before accepting the theory that a judicial decision that eliminates an “established property right,” constitutes a violation of the Takings Clause."   One of their "difficulties" is an originalist one:

Indeed, it is unclear whether the Takings Clause was understood, as a historical matter, to apply to judicial decisions. The Framers most likely viewed this Clause as applying only to physical appropriation pursuant to the power of eminent domain. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028, n. 15 (1992). And it appears these physical appropriations were traditionally made by legislatures. See 3 J. Story, Commentaries on the Constitution of the United States §1784, p. 661 (1833).Courts, on the other hand, lacked the power of eminent domain. See 1 W. Blackstone, Commentaries 135 (W. Lewis ed. 1897). The Court’s Takings Clause jurisprudence has expanded beyond the Framers’ understanding,as it now applies to certain regulations that are not physical appropriations. See Lucas, supra, at 1014 (citing Mahon, 260 U. S. 393). But the Court should consider with care the decision to extend the Takings Clause in a manner that might be inconsistent with historical practice.

(Kennedy Opinion at 7).

In a different separate concurring opinion, Breyer joined by Ginsburg contended that a judicial takings doctrine would open the floodgates and allow federal judges to decide matters of complex state property law.  Essentially, Breyer and Ginsburg argued for judicial restraint. 

Stevens took no part in the decision, presumably because he owns beachfront property in Florida.

RR

D.C. Circuit Rejects Claim for Sudanese Bombing as Political Question

The full D.C. Circuit ruled last week in a divided opinion (5-4) that the political question doctrine prevented the courts from hearing the plaintiffs' case against the government for President Clinton's bombing of their factory for alleged ties to al Qaeda.

The case, El-Shifa Pharmaceutical Industries Co. v. U.S., arose out of President Clinton's Tomahawk missile strikes on a drug manufacturing plant believed to be associated with al Qaeda.  President Clinton ordered the strikes in response to al Qaeda's bombing of U.S. embassies in Kenya and Tanzania in August 1998.

The plaintiffs brought a defamation claim and a claim under international law against the U.S. government, but the D.C. Circuit upheld the lower court's dismissal based on the political question doctrine.  The political question doctrine prevents the courts from hearing certain cases that are "constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch."  Op. at 7 (citing Japan Whaling Ass'n v. Am. Cetacean Society.  The seminal Supreme Court case on the political question doctrine, Baker v. Carr, explained that a political question involved the following:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The majority wrote that the circuit followed a distinction between determining whether certain policy decisions were "wise" and determining whether certain policy decisions presented a legal issue.  The former is a political question; the latter is not.

According to the majority, the issues here involved determining whether policy decisions were "wise."  As to the international law claim--which would require the government to compensate the plaintiffs for property destruction that was "mistaken and not justified"--the court wrote that "[w]hether an attack on a foreign target is justified--that is whether it is warranted or well-grounded--is a quintessential 'policy choice[] and value determination[] constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch."  Op. at 15.  As to the defamation claim, the court wrote that "[i]t too would require the court to reconsider the merits of the decision to strike the El-Shifa plant by determining whether the government's justifications for the attack were false."  Op. at 18.

The majority distinguished federal habeas review of detainees under Boumediene by writing that the Suspension Clause contemplates federal court review.  The cases involving seizure of "enemy property" are similarly inapplicable, because none of those cases "required the courts to scrutinize a decision constitutionally committed wholly to the political branches."  Op. at 24.  (The dissent points out that President Clinton justified the attacks based only on his Article II Commander-in-Chief power--the constitutional commitment here.)

The dissent wrote that the majority inappropriately expanded the political question doctrine and with it executive authority (becuase the majority declined to review this executive decision because it was an executive decision).  Like the majority, the dissent would have dismissed the case, but based upon the plaintiffs' failure to allege a cognizable cause of action, not the political question doctrine.

The majority's distinction between review of  the wisdom of policy decisions and review of the legality of policy decisions is problemmatic, because it fails to articulate a limit on the political question doctrine, especially as the majority applied that distinction in this case.  (The plaintiffs' claims are as much, or more, about the legality of the policy as the wisdom of the policy.  In truth, the two overlap, collapsing the dichotomy that the majority relies upon.)  Given the ruling here, it's hard to see what wouldn't be a decision on the wisdom of a policy, as opposed to the legality of a policy. 

Detention of unlawful combatants is a good example.  As the majority writes, the Suspension Clause contemplates a role for judicial review.  But this is only because the Court has ruled on the Suspension Clause--because the Court has opened this door.  This is the very issue in this case--whether the courts can review the plaintiffs' defamation and international law claims--and not a basis for distinguishing this case.  Moreover, as we've seen in the lower courts' initial struggles in the wake of Boumediene, habeas for alleged unlawful combatants presents many of the same problems that the Court uses to justify and explain the political question doctrine in Baker v. Carr.  Yet these cases are not political questions. 

By the majority's reckoning, it seems they should be.  And moreover, it seems that any issue related to foreign policy should be a political question--not only Boumediene, but also Hamdi, Hamdan, and the whole lot of cases arising out of the government's pursuit of terrorists.  Even if the D.C. Circuit's distinction is coherent--which it isn't--the ruling has the surprising result that the courts could review executive detention but not executive bombings.

If the case goes up, the Supreme Court could have to wrestle with this tough, common-sensical question: Why can the courts review executive detention, but not the (potentially much more destructive) executive bombing? 

SDS

Supreme Court Rejects Appeal in Rendition and Torture Case

The Supreme Court today declined to review the full Second Circuit's split ruling (7-4) in Maher Arar's case against U.S. authorities for their role in his extraordinary rendition and torture, Arar v. Ashcroft.  The short order contained no comment or opinion, except that it noted that Justice Sotomayor, a former Second Circuit judge, recused herself from consideration of the case. 

Arar, the Canadian citizen detained by U.S. authorities, denied access to the courts, and delivered to Syria for torture, sought Supreme Court review on February 1, 2010, of the full Second Circuit's decision denying relief.  Arar challenged the Second Circuit's rejection of his Bivens claim against senior federal officials and 10 unknown federal law enforcement and immigration agents for violation of the Torture Victim Protection Act and the Fifth Amendment Due Proces Clause.  We posted an analysis of the case here.

The Court's decision today leaves in place the Second Circuit's ruling and ends Arar's federal court case against government officials.

SDS