Constitutional Law Prof Blog

New Web-Site Tracks Federal Judicial Nominations

The American Constitution Society recently launched a new web-site, JudicialNominations.org, that tracks "vacancies, nominations, and other developments in the courts," including congressional statements, video, and actions.

This is an outstanding resource for anyone interested in the federal judiciary--user-friendly, comprehensive, and full of well organized material. 

(Image: Screenshot of the JudicialNomination.org homepage, from the ACS homepage.)

SDS

The Individual Health Care Mandate and Enumerated Powers at SEALS

The Southeastern Association of Law Schools, or SEALS, a regional organization that also includes affiliate schools from around the country, kicked off its annual conference on Friday.  The program includes a number of constitutional law panels, perhaps most notably this one on the last day, Thursday, August 5:

The Individual Health Care Mandate and Enumerated Powers, sponsored by the Federalist Society

Shortly after the health care reform bill was signed into law, the attorneys general of 20 states filed lawsuits challenging the individual mandate as exceeding Congress's powers.  This panel will consider the mandate's constitutionality, as well as procedural issues presented by the litigation.

Speakers:  Professor Randy Barnett, Georgetown; Mr. David Kopel, Research Director, Independence Institute; Professor Gilliam Metzger, Columbia; Professor Jack Balkin, Yale

For a preview, check out one of Balkin's latest posts on the topic at Balkinization and Barnett's interview last weekend in the Wall Street Journal.

We've posted most recently here.

SDS

The Inconsistent Tenth Amendment?

That was the original title of this Op-Ed, published in the Los Angeles Times today here.

 

 

RR

Obama as Bush 2.0 on the National Security Constitution

The Obama administration has embraced some of the most dangerous and expansive national security positions of the Bush administration and threatens to set a new baseline for presidential authority, according to a report just released by the ACLU.  The report, Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration, argues that the Obama administration's significant progress in certain areas related to national security are more than offset by the administration's backtracking to the Bush administration positions.  From the Introduction:

But in the eighteen months since [President Obama issued a series of executive orders repudiating the Bush policies on torture, interrogation, secret detention, and Guantanamo Bay], the administration's record on issues related to civil liberties and national security has been, at best, mixed.  Indeed, on a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration.  There is a real danger, in other words, that the Obama administration will preside over the creation of a "new normal."

The report examines administration policies on government transparency and release of information, accountability of government officials for torture, indefinite executive detention, targeted killings, military commissions, and government surveillance.

This is a good read and an important part of the continuing conversation about administration national security policies.  We routinely cover these issues--just check out our posts under the War Powers tag--and have similarly concluded that the Obama administration has adopted some of the Bush administration's constitutional positions on presidential authority and national security.  (I also make the argument on the Obama administration's use of the state secrets privilege here.)

But the report's conclusion that the administration "will enshrine permanently within the law" certain policies and practices is perhaps overly dire.  For example, some of President Obama's positions have received push-back from Congress; and President Obama has repeatedly signaled that Congress matters--that he will respect Congress in acting under the national security constitution.  Unlike President Bush, President Obama has relied only sparsely on inherent executive authority under Article II, instead looking first to congressional authorization for his actions.  His consistent reliance on the AUMF before any inherent Article II authority is a good example.

Moreover, some of the Obama administration's positions have received push-back from the courts.  Most recently, federal courts have rejected the administration's more outlandish positions in Guantanamo habeas cases.  (The administration itself scaled back its prior expansive definition of a detainable person.)  The full Ninth Circuit now has a chance to reject the administration's extreme position on the state secrets privilege in the Jeppesen case.

Finally, the administration's actions alone simply cannot "enshrine permanently in the law" those extreme policies and positions that never reach Congress or the courts, especially for a president who claims to rely sparsely on inherent Article II authority.  In these areas the President at most establishes an executive precedent.  The practice and precedent of President Obama will be important, to be sure, in interpreting future executive authority, but this is not "enshrin[ing] permanently in the law."  (This kind of past practice doesn't bind a future executive to also adopt it.  Instead, at most, it sets an outer limit to presidential authority with reference to what President Obama did.)

But in the end, it's exactly this practice and precedent in these limited but important areas that make some of President Obama's national security positions potentially durable beyond the next two or six years.  The ACLU report thoughtfully examines these and well captures their potential durability in its apt phrase "The New Normal."

SDS

Federal Court Issues Preliminary Injunction for Parts of Arizona Immigration Statute SB 1070

Federal District Judge Susan Bolton has issued her opinion enjoining the enforcement of certain sections of Arizona SB 1070 including:

• Portion of Section 2 of S.B. 1070, codified as A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person
• Section 3 of S.B. 1070, codified as A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers
• Portion of Section 5 of S.B. 1070, codified as A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work
• Section 6 of S.B. 1070, codified as A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

Judge Bolton's opinion considers the statutory provisions separately, noting that the statutory scheme is not singular and that the statute provides for severability.  The opinion found that the Government demonstrated a likelihood of success on the merits in its arguments for the unconstitutionality of the above provisions, applying preemption doctrine under the supremacy clause.  (We've previously discussed the filing of the DOJ complaint here and the preemption arguments here).

Regarding the irreparable harm requirement, the Judge reasoned the Federal Government would suffer irreparable harm "because the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law."  (Opinion at 34). 

On the balance of equities, the judge concluded they weighed in favor of preserving the status quo:

The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws. The Court therefore finds that preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced.

(Opinion at 35, citations omitted).

The controversial Arizona statute, scheduled to go into effect July 29, 2010, will thus become effective without the above provisions.

RR

[Update: For a terrific analysis of the Judge's opinion, listen to an interview with Professor Jenny Rivera on NPR here]

[image: SB1070 protest via]

Massachusetts State Statute to Mandate Election of President By Popular Vote

The Massachusetts legislature has passed a “National Popular Vote” bill and sent it to the Governor.  The law, a part of an “Agreement Among The States To Elect The President By National Popular Vote,”  seeks to vitiate the Electoral College or at least dramatically change the way it operates.

The law provides in part:

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.
The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”
The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.

Massachusetts is the sixth state (after Maryland, New Jersey, Illinois, Hawai’i and Washington) to pass the law, which will only become effective when “states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.”

The National Popular Vote organization contents that 1,777 state legislators have endorsed the Interstate Agreement.  The organization also contends the law is constitutional in its  discussion memo.

The organization also contends the state compact is well within the ambit of Article II section 1 clause 2 : “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."    In brief, if the Legislature directs that the state electors cast their votes for whoever won the popular, then that would meet the constitutional requirement.

Subsequent constitutional amendments regarding presidential elections - - - Twelfth Amendment,Twentieth Amendment (regarding term to start in January),  Twenty-third Amendment (including the District of Columbia within the Electoral College - - - do not alter this state power.   

Congressional attempts to abolish the electoral college by constitutional amendment have not gained traction.

[SEE COMMENTS FOR FURTHER DISCUSSIONS OF CONGRESSIONAL ROLE].

RR

[image: 2012 electoral college map via]

Immigration Laws Passed by States: Information Available

A report issued today by the National Conference of State Legislatures compiles bills proposed, vetoed, and adopted by state legislatures regarding immigration-related issues.  This is a great research tool for anyone doing scholarship or litigation in this area, as well as preparing for class.

Summaries of the enacted laws  - - - one table organized by state and another table organized by subject matter - - - are available at the NCSL website here.  (Note: the website warns that the "NCSL publication and PDF are registered with the NCSL copyright and may not be reproduced, uploaded or distributed in any way in its entirety" so only a link is provided).

There is a wealth of information in the pdf summaries and discussed on the website.  The summaries are 70 plus pages, in table form, with a bit of information and the bill number (but no hyperlink to the actual bill text).  There is also a helpful database search feature here which provides links to find the text and legislative history of bills.

The NCSL represents its members - - - state legislatures - - - as continuing to "lead the way" on immigration issues and entitles its findings "States Step Up to the Plate on Immigration."   It acknowledges the controversy that Arizona SB1070 has provoked.  It also notes that "state laws related to immigration have increased dramatically over the past decade," with 300 bills introduced (and 38 enacted) in 2005, and more than 1500 bills (and 222 enacted) in 2009.

RR

Senate Fails to Advance DISCLOSE Act

A day after President Obama's much-publicized scolding of Republicans on campaign finance reform, Senate Democrats failed to garner 60 votes to advance Senator Schumer's revamped DISCLOSE Act.  (The House passed the earlier version last month.)  The bill increases disclosure requirements for corporations and labor unions engaged in electioneering communications in response to the Supreme Court's ruling in Citizens United v. FEC.  Schumer modified his original bill in order to attract Republican support--most likely from Senators Snowe, Collins, or Brown--in order to break the GOP filibuster.

Democrats will try again, and Schumer told The Hill that he would consider making additional changes to the bill to continue to try to attract a Republican.

SDS

Federalist Society Focuses on Washington State Supreme Court

The Federalist Society has announced the publication of The Washington Supreme Court and the State Constitution: A 2010 Assessment.  The 35 page report highlights the takings clause provision of the Washington Constitution as it relates to private property rights.  The report also discusses the state constitution's privileges or immunities clause, as well as other "individual rights" including free speech and gun possession.

[image: "Justices of the Washington Supreme Court posing for a "READ" poster for the Skagit Valley College’s library system on a community visit to the College on February 22, 2010" via]

RR

Sanctuary Cities, Immigration, and Federal Preemption

The Obama administration is hypocritical for pursuing Arizona's law to control illegal immigration even as it ignores local governments that order employees not to ask about a person's immigration status or to report it to federal agents, critics claim.  These so-called sanctuary cities are local governments that have elected "not . . . to use their resources to enforce a federal law," according to a Justice Department spokesperson quoted in Monday's Chicago Tribune.  Critics of the administration claim that sanctuary cities run up against federal law, and are therefore preempted by federal law, every bit as much as--indeed, more than--Arizona's SB 1070.  (The Justice Department filed its complaint against Arizona alleging federal preemption earlier this month.  Judge Bolton of the District of Arizona heard arguments on the Department's motion for a preliminary injunction last week.  The law is scheduled to take effect Thursday.)

The preemption arguments against sanctuary cities are similar to the preemption arguments against SB 1070: sanctuary cities regulate in an area, immigration, that is granted exclusively to the federal government and in which the federal government has occupied the field; and sanctuary cities violate a federal prohibition against any government restricting its employees from reporting to the feds the immigration status of any individual:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. Sec. 1373(a).  The provision includes no penalties or enforcement tools.

Critics say the administration is hypocritical for suing Arizona on a preemption theory while ignoring sanctuary cities.  More than hypocrisy, though, critics charge that the administration has its priorities exactly backwards.  After all, Arizona is simply trying to enforce federal law, while sanctuary cities are actively violating it.  Sanctuary cities, and not Arizona, critics argue, ought to be the federal target. 

SDS

District Court Grants Another Habeas Petition

The government failed to show by a preponderance of evidence that another Yemeni detainee at Guantanamo Bay was part of al Qaeda and therefore detainable, Judge Friedman (D.D.C.) ruled in an early July opinion released on Friday.  The case, Almerfedi v. Obama is notable only for the government's shockingly weak case in support of detention--a feature of at least one other recent Guantanamo case involving a Yemeni.

The government in Almerfedi argued that Almerfedi was detainable because while staying at a guesthouse in Iran he acted as an al Qaeda facilitator helping foreign fighters infiltrate Afghanistan.  The government also claimed that he actively associated with Jama'at al-Tablighi, an Islamic missionary organization that provided support to terrorist organizations and foreign fighters fleeing Afghanistan--an association that "was consistent" with the government's theory that Almerfedi was an al Qaeda facilitator, the government said. 

But the government failed to show by a preponderance of the evidence that Almerfedi was even in Iran at the time, much less at a guesthouse, and much less at one affiliated with al Qaeda.  And the government failed to show that Jama'at al-Tablighi, as an organization, provided support to al Qaeda or the Taliban.

The government's "guesthouse theory" fell short in another recent case, Abdah v. Obama, also involving a Yemeni.  (The guesthouse in Abdah was alleged to be in Pakistan.)  The government's case was equally thin there, and the government engaged in extraordinary footdragging, to boot. 

At the same time, the government in Almerfedi adopted the higher "part of" standard (as in part of al Qaeda, and not merely providing support to al Qaeda)--the standard it switched to in yet another recent case out of the D.C. Circuit, Bensayah v. Obama--oddly raising the bar for itself while continuing to provide only the most spurious evidence against detainees.

SDS

Arizona HB 2013 Likely Unconstitutional: Federal Court Orders State Employee Benefits for Same-Sex Domestic Partners

With all the attention to the constitutional challenges to Arizona SB 1070 on immigration, it would be easy to miss a federal district court decision granting a preliminary injunction against another recently passed Arizona statute signed into law by Governor Jan Brewer: HB 2013.   

Yesterday, US District Judge John Sedwick denied the government's motion to dismiss and granted the plaintiff's motion for a preliminary injunction to prevent the enforcement of HB 2013, also known as Section O.  

Previous to Section  O, same-sex and opposite-sex partners of state employees were eligible to be covered under state benefits assuming domestic partnership requirements were met.  Section O, however amended the benefit eligibility scheme so that "‘dependent’ means a spouse under the laws of this state, a child who is under nineteen years of age or a child who is under twenty-three years of age and who is a full-time student.”   As the judge explained:

Section O eliminates family coverage for non-spouse domestic partners, whether they are of the same or different sex. Heterosexual domestic partners may continue to receive subsidized family health coverage by getting married. Same-sex couples are precluded from obtaining coverage because Section O limits coverage to “spouses” under the laws of Arizona.

The judge rejected the state's argument that Section O was neutral, but held that it made a classification based on sexual orientation: "Section O unquestionably imposes different treatment on the basis of sexual orientation,”  and "denies lesbian and gay State employees in a qualifying domestic partnership a valuable form of compensation on the basis of sexual orientation."

In considering the equal protection challenge, the judge decided there was no need to consider whether some form of heightened scrutiny should apply because Section O failed rational basis scrutiny. The judge rejected the four state interests offered by Arizona to support Section O: Cost Savings, Administrative Convenience, "Funds Better Spent on Heterosexual Spouses," and "Interest in Favoring Marriage and Families with Children."  Perhaps most interestingly, the judge found the government's interest regarding "funds better spent on heterosexual spouses" not legitimate because it was based on animosity.

The judge found that the plaintiffs had a likelihood of success on the merits of the equal protection claim (but not on a substantive due process claim that was also raised).  When considering the "irreparable injury" prong of the test for granting a preliminary injunction, the judge quoted Ninth Circuit language that

an alleged constitutional infringement will alone constitute irreparable harm. Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.

However, the judge also reasoned that it is not simply the denial of insurance benefits but the anxiety and stress of losing medical coverage that constitutes irreparable injury.

Standing alone, this is an important case involving the equal protection claim of state employees who are in same-sex relationships.  In the context of the Arizona immigration controversy presently before the federal court, it sheds light on the standard for a preliminary injunction to enjoin a state statute and demonstrates a federal judiciary willing to enjoin a recently passed statute by the Arizona legislature. 

{Update: Arizona immigration statute partially enjoined; here}

RR

Commentary by Sherrilyn Ifill

Sherrilyn Infill, ConLawProf at the University of Maryland School of Law and author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century, has two recent commentaries worth reading.

In her just published and provocatively titled commentary, "What the U.S. Supreme Court Did to Us This Year"  Ifill begins by noting the confirmation by the Senate Judiciary Committee of Elena Kagan and notes:

Kagan will join a court whose conservative majority has aggressively taken and decided cases that are transforming the constitutional landscape in ways that will have far-reaching effects. Some Supreme Court analysts have rated the court's actions in the just-concluded term as unremarkable. But for average Americans and for minority communities, the 2009-2010 term of the court is a significant one.

She then discusses Sixth Amendment cases, Citizens United v. Federal Elections Commission and McDonald v. City of Chicago as disappointments, and also focuses on the role of Justice Clarence Thomas.

In a different commentary, Infill has something to say about the Shirley Sherrod controversy, making an interesting link to the Sonia Sotomayor confirmation process.

RR

Another Try to Blunt Citizens United

Senator Schumer on Wednesday introduced a new version of the DISCLOSE Act, his attempt to blunt the impact of the Supreme Court's January 2010 ruling in Citizens United v. FEC.  That case held that federal restrictions on corporate and labor union "electioneering communication" violated the First Amendment Speech Clause. 

Sen. Schumer introduced an earlier version of the DISCLOSE Act; we posted most recently on that effort here.  Both the earlier effort and the new effort seek to address Citizens United by increasing disclosure requirements for corporations and labor unions (which were upheld under Citizens United) and prohibiting certain recipients of government funds (e.g., TARP recipients, certain government contractors) from engaging in electioneering communication.

The new bill is designed to gain the support of Maine's two Republicans, Senators Snowe and Collins, and thus to break a GOP-led filibuster, according to The Hill.  The bill will come up for a vote on Tuesday; supporters hope to bring it immediately to the floor, by-passing a committee mark-up.

The new bill, S. 3628, not yet available from the GPO, makes several significant changes:

• It drops the House-added provision to the earlier bill exempting labor unions from reporting fund transfers in excess of $50,000 between affiliates.  Under the new bill, corporations and labors unions must report such transfers.

• It drops the House-added "loophole" in the earlier version that requires disclosure of transfers of $10,000 or more only if the money could be traced to a large individual donor.

• It requires businesses and unions to state their geographic location in TV ads, but not radio ads.

The new bill retains a provision exempting the National Rifle Association and several other large organizations from reporting requirements, according to Politico.  The new bill does not include a provision pushed by Rep. Kucinich that would have prohibited companies holding leases for drilling on the Outer Continental Shelf (and aimed at BP) from engaging in electioneering communication.

SDS

The Proposed Constitution of Kenya, Abortion, and the Obama Administration

Four GOP House members this week asked the Inspector General for the U.S. Agency for International Development to investigate whether the Obama administration misused appropriated funds to support Kenya's proposed constitution.  Reps. Chris Smith, Ileana Ros-Lehtinen, Darrell Issa, and Frank Wolf signed a letter to USAID IG Donald Gambatesa asking him to look into the administration's apparent expenditure of $23 million dollars to support the "yes campaign" in favor of the proposed constitution, including its provision protecting a qualified right to abortion.

The proposed constitution, which goes before Kenyan voters in a referendum on August 4, is designed primarily to cut back on expansive (and historically abused) presidential authority and enshrine separation of powers and checks and balances.  The movement for a new constitution grew out of the post-election violence in 2007 and 2008 that left 1,000 people dead and 600,000 displaced from their homes.

The Obama administration has not been shy about publicly supporting the new constitution--saying it will promote more stable democracy, rule of law, and increased foreign investment--while always adding the caveat that the final decision belongs to Kenyans.  (President Obama's remarks are summarized by the U.S. Embassy here; Vice President Biden's remarks last month in Kenya are here.)  Kenyan President Mwai Kibaki is equally (or even more) enthusiastic about the proposed constitution and has publicly encouraged turn-out and support.

Two provisions of the proposed constitution have become controversial, however.  One, Section 170, Kadhis' Courts, establishes Muslim courts to hear family disputes.  The other, Section 26, Right to Life, in the Bill of Rights, protects the right to life and a qualified right to abortion:

(1) Every person has the right to life.

(2) The life of a person begins at conception.

(3) A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law.

(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

While Rep. Smith objects to the administration "spending $23 million in American tax dollars on the specific "Yes" campaign, pushing a determined outcome on the proposed constitution in Kenya," his letter to the USAID IG asks for an investigation only into whether the administration's support of the proposed constitution and Section 26 violates a proviso in the Consolidated Appropriations Act of 2010, P.L. 111-117, 123 Stat. 3035, which states

That none of the funds made available under this Act may be used to lobby for or against against abortion.

123 Stat. 3324. 

The restriction has its origins in President Reagan's August 1984 announcement--the "Mexico City Policy"--that directed USAID to withhold funds from NGOs that provided advice, counseling, or information regarding abortion, or lobbying a foreign government to legalize or make abortion available.  President Clinton reversed the policy by memo to the Acting Administrator of USAID on January 22, 1993, stating that "the conditions are not mandated by the Foreign Assistance Act or any other law."  President George W. Bush reinstated the Mexico City Policy on February 13, 2001.  President Obama reversed it on January 23, 2009, and ordered the Secretary of State and the Administrator of USAID to cease enforcing the Mexico City Policy conditions "that are not required by the Foreign Assistance Act or any other law."

Rep. Smith claims that some of the funds have been funneled to organizations that specifically support Section 26, Clause 4, in violation of the proviso in the Consolidated Appropriations Act of 2010, and, "[m]aking matters worse, several pro-abortion NGOs received U.S. funding and their influence in support of the abortion provision is under investigation by the USAID IG." 

The Embassy said that nine of the grants were suspended or concluded, but did not provide further details.  Rep. Smith's letter specifically asks the IG to investigate and report on these nine.

SDS

What is an Enemy Combatant?

David Mortlock, attorney-adviser at the State Department, takes up this question in his recent blog post at the American Constitution Society and article in the Harvard Law & Policy Review.

Mortlock notes that the courts don't have a settled definition of a detainable person.  He offers one himself: Membership in al Qaeda or the Taliban.  From the blog:

I suggest that Congress has authorized the President to subject members of al Qaeda and the Taliban to military detention, whether or not they engage in combat.  However, the President may not use military detention for mere supporters or sympathizers of those groups.  This membership model could also be used to determine the appropriate time for release.  Namely, detainees could be freed when they sever their membership in al Qaeda or the Taliban.

We most recently posted on the issue here, on the D.C. Circuit's ruling in Bensayah v. Obama.

SDS

Immigration Ordinance in Nebraska City of Fremont Challenged

The “Immigration Ordinance” of Fremont, Nebraska prohibits  “the harboring of illegal aliens or hiring of unauthorized aliens.”  Ordinance 5165 was passed by a ballot initiative this June (by a vote of  3906  to 2908) and is scheduled to become effective July 29, 2010.

The Ordinance 5165 provides that all persons renting or leasing dwelling units obtain an “occupancy license” from the city.   The fee is $5.00, and requires “citizens or nationals” to sign a declaration so stating, and

in cases in which the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the alien does not know of any such number, he shall so declare. Such a declaration shall be sufficient to satisfy this requirement.

Fremont Ordinance 5165 also requires that “Every business entity employing one or more employees and performing work within the City shall register in the [federal] E-Verify Program within 60 days after the effective date of this Ordinance, and shall use the E-Verify Program to verify the authorization of employment in the United States of each employee hired after such registration.

Interestingly, before the vote, the City of Fremont itself brought an action in state court seeking a declaratory judgment that any ordinance resulting from the ballot initiative would be unconstitutional in contravention of the Supremacy Clause. The Nebraska Supreme Court issued its opinion in April: it did not rule on the merits of the Supremacy Clause argument, holding instead that “substantive challenges to proposed initiatives are not justiciable before the measure is adopted by voters.”   (The city also argued that the ballot measure violated the state constitution’s “single subject” rule, but the Nebraska Supreme Court affirmed the lower court’s conclusion that the measure did have “one general subject- - - the regulation of illegal aliens in Fremont.”)

Two complaints have been filed in federal court challenging the constitutionality of the Ordinance.

The  ACLU Nebraska Foundation and various named plaintiffs have filed a Complaint in the US District Court for Nebraska seeking an injunction against enforcement of the Fremont Ordinance.  The complaint alleges that the Fremont Ordinance is subject to preemption under the Supremacy Clause, Article VI; that the Fremont Ordinance is unconstitutional under the Equal Protection Clause; that the Fremont Ordinance is void for vagueness under the Due Process Clause; and that the Ordinance violates the Federal Fair Housing Act and state laws regarding municipal powers.

The Complaint filed by MALDEF that includes a landlord as a named plaintiff also seeks an injunction and likewise alleges preemption and equal protection, and also includes a commerce clause claim.

In defending the lawsuits, the City of Fremont is in the unenviable position of having the complaints filed against it repeat the very arguments it previously advanced. According to the Nebraska Supreme Court opinion:

Fremont points out that courts have uniformly determined that harboring and housing provisions such as those contained in the Measure are preempted by federal law and therefore are unconstitutional. It therefore asserts that measures which are unconstitutional or void are beyond the power or authority of a municipality to enact and are therefore not subject to initiative or referendum.

The Nebraska Supreme Court followed this recitation of the city’s argument by stating:  “We point out that a measure is not unconstitutional until a court makes such a determination.”  

The federal district court in Nebraska now has the task of making such a determination.  Some of our previous discussions of preemption/Supremacy Clause and other arguments regarding immigration laws passed by states and localities are available here, here and here.  An excellent news report on the Fremont, Nebraska controversy is here.

[image: view of Fremont, Nebraska, 1908 via]

RR

Court (Re)Abstains on Khadr's Habeas Petition

Judge John Bates (D.D.C.) ruled yesterday that Guantanamo detainee Omar Khadr could file a second amended habeas petition, but that the court would again abstain from hearing it under Schlesinger v. Councilman (holding that "federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted").  Judge Bates previously ruled that Councilman required abstention of Khadr's first habeas claim.  Khadr's military commission trial is set to begin on August 10, 2010, after being continued several times.

Khadr, who was detained as a minor, claimed in his second habeas petition that the military commission is unconstitutional and will not adequately protect his rights, because "it does not have procedures precisely replicating those available at civilian criminal trials."  Op. at 8.  As a result, he argues, abstention under Councilman, which "assume[s] that the military court system will vindicate [his] constitutional rights," is inappropriate.

Judge Bates rejected the claim, writing that "the Constitution does not require that every protection available in criminal trials must apply in military commission proceedings for Guantanamo detainees."  Op. at 9 (quoting Hamdan and Boumediene).  Moreover, detainees have a right to appeal to Article III courts: 

The review procedures created by the Military Commissions Act of 2009 have "the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces," and thus bear sufficient "conceptual similarity to state courts to warrant invocation of abstention principles." 

Op. at 11 (citing Hamdan).

Judge Bates also rejected Khadr's claims that he met the exception under Councilman that abstention is inappropriate where the petitioner presents "a constitutional question [that] turn[s] on the status of the person as to whom the military has asserted its power."  Councilman.  Khadr argued that his status as a juvenile at the time of capture prevents his trial by military commission, and that the military commission exceeds its constitutional authority.  Judge Bates ruled that the first claim was already rejected in the first ruling on abstention (linked above).  As to the second claim: "The Supreme Court, however, has already concluded that, consistent with the Constitution, Congress may authorize trial by military commission of enemy combatants accused of law of war violations."  Op. at 13 (citing Ex Parte Quirin and Hamdan).

SDS

Margaret Marshall, CJ of Massachusetts Supreme Judicial Court Announces Retirement

Best known as the author of Goodridge v. Department of Public Health, the 2003 case that declared the exclusion of same-sex couples from marriage unconstitutional as a matter of state law, Margaret Marshall, 66, announced her retirement today.  

The press release from the Massachusetts Supreme Judicial Court with further biographical information and a list of notable opinions is here.

Boston.com (The Boston Globe) has an extensive story.  Here's Justice Marshall on "judicial activism," an accusation that was levied at her and the court for the Goodridge decision:

Asked at today's news conference how she felt about critics who say that judges engage in judicial activism, she said, "It is a buzzword and I think it's often attached to opinions where the person who's making the claim ... doesn't agree with the outcome," she said.

In her statement, she expresses her judicial theory this way:

Our system of justice is organic. Every dispute, every case, tests the law anew. No judge, whether deciding in 1692 if men and women should be condemned as witches, or deciding in 1783 if slavery could still be tolerated in Massachusetts under our then sparkling new Constitution, or today, no judge has been able to leave this Court believing that the task of justice is done. I am no different.

The Justice's statement, the Boston Globe story, and the press release all mention the effect that coming of age in South Africa during its Apartheid era had on Justice Marshall's notions of the law.

RR

Arizona Immigration in Federal Court - - - but not on Television (or You Tube)

Arizona District Judge Susan Bolton, in a brief order, has denied the request of the First Amendment Coalition of Arizona to "permit camera coverage and rebroadcast of the preliminary injunction and motion to dismiss hearings" scheduled for tomorrow, July 22. 

Judge Bolton notes that while there is a Ninth Circuit pilot project, the District of Arizona has not yet taken part in that "experiment" and that decisions will be made by the Chief Judge of the District in consultation with the Chief Judge of the Ninth Circuit.

Recall that the Proposition 8 trial was similarly not allowed to be visually recorded, with the United States Supreme Court staying an order to broadcast the trial by a 5-4 decision.  Perhaps the "Arizona Immigration Trial" will also be treated to a re-enactment as was the Proposition 8 trial.  And perhaps there will be an opinion in the Arizona Immigration Trial (at least on the preliminary injunction) more speedily than in the Proposition 8 case, in which a decision is still pending.

RR