Constitutional Law Prof Blog

The Tea Party Constitution and Its Critics

The Constitutional Accountability Center this week launched a new project, Strange Brew: The Constitution According to the Tea Party, to take on Tea Party claims about the U.S. Constitution.  Its first publication in the project, an issue brief titled Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government, by Elizabeth Wydra and David Gans, challenges claims by Tea Partiers and others that "our Constitution created a sharply limited national government and that the modern federal government vastly oversteps those limits."

Here's a taste of Wydra and Gans's response:

Contrary to Tea Party claims, the Founders created a federalism that allowed for a significant role for states and local governments, but created a strong central government with sufficient power to govern a united country. . . .  As made clear in the Constitution's soaring Preamble, our Founders invested federal lawmakers with broad powers to promote the "common defense" and "general welfare" of "we the people of the United States."

The Tea Party story about our sharply limited national government is not only inconsistent with the words and intentions of our Founding generation, but it also requires a form of selective amnesia about the important changes made to the Constitution by successive generations of Americans.  Since the Founding, the American people, at critical moments in our country's history, have amended the Constitution and added to Congress's express constitutional powers, ensuring Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans.  Indeed, most of the amendments added to the Constitution during the 19th and 20th Centuries expanded the power of the federal government.  The Tea Party's reading of the Constitution depends on ignoring or repealing these critical amendments.

We've posted on this last point here and here.

SDS

Sotomayor Biography and Memoir

Sonia Sotomayor is "honored to be working with the distinguished publishing house of Alfred A. Knopf on the publication of my memoir,” according to Knopf, which has announced the signing of a contract for the as-yet-untitled memoir. 

There is also no publication date, but for those who are anxious to read about Sotomayor, a new biography Sonia Sotomayor: The True American Dream has just hit the bookstores.  The biographer is Antonia Felix, who has also penned the biographies Condi:The Condoleezza Rice Story; Laura: America's First Lady, First Mother, as well as biographies of Andrea Bocelli, Harry Connick Jr.; and Wesley K. Clark.  

Felix's approach is generally not a critical one.  The Sotomayor biography is likewise flattering.  Steve Weinberg, reviewing the book in the Kansas City Star begins by saying:

Based on the research of Kansas biographer Antonia Felix, U.S. Supreme Court Justice Sonia Sotomayor should perhaps be canonized.

Weinberg also notes that Sotomayor did not cooperate with Felix in the writing of the biography.    The Felix biography joins several others including Sonia Sotomayor: Una sabia decision in the Vintage Espanol series, several young readers books, and a comic book  in the "Female Force" series (excerpt pictured below).

RR

Kagan Confirmed by Judiciary Senate Committee

The vote was 13-6, largely along party lines, with Lindsey Graham joining the majority of Democrats in the Senate Judiciary Committee to confirm the nomination of Elena Kagan to the United States Supreme Court.

Committee Members are:  Chair, Patrick J. Leahy (D-Vermont); Herb Kohl (D-Wisconsin); Jeff Sessions (R-Alabama); Dianne Feinstein (D-California); Orrin Hatch (R-Utah); Russ Feingold (D-Wisconsin); Chuck Grassley (R-Iowa); Arlen Specter (D-Pennsylvania); Jon Kyl (R-Arizona); Chuck Schumer (D-New York); Lindsey Graham (R-South Carolina); Dick Durbin (D-Illinois); John Cornyn (R-Texas);  Benjamin L. Cardin (D-Maryland); Tom Coburn (R-Oklahoma); Sheldon Whitehouse (D-Rhode Island); Amy Klobuchar (D-Minnesota); Ted Kaufman (D-Delaware); Al Franken (D-Minnesota).

The full Senate is expected to vote in August.

[image: Sheldon Whitehouse and Elena Kagan via]

[Updated Material:  Tom Coburn discussed his views of Kagan in National Review Online; Jeff Sessions provided his "opposing view" to the USA TODAY endorsement of Kagan; and Arlen Specter earlier expressed his qualified support for Kagan in USA TODAY].

RR

Top Secret America

The Washington Post has launched its feature "Top Secret America."   The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."   

The project also includes a searchable online database detailing private contractors and specific locations.  The Editorial explanation is worth reading; here is a bit of it:

The articles in this series and an online database at topsecretamerica.com depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.

Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.

We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.

The feature should be of interest to anyone working on state secrets doctrine and theory.   The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable.  The Washington Post explanation above also implicates First Amendment concerns.

RR

Health Insurance Mandate: "Commerce" or "Tax"?

The Obama administration switched its position on the individual health insurance mandate and now claims that it is a "tax," according to the New York Times in a provocatively titled article Changing Stance, Administration Now Defends Insurance Mandate as a Tax.

The Times reports that the administration is now defending the mandate--perhaps the most controversial piece of the Patient Protection and Affordable Care Act--primarily as a tax, and not primarily as a regulation of commerce, in federal court cases seeking to overturn the Act as unconstitutional.  According to the story, administration officials describe the tax argument as the "linchpin" of their case.  The story suggests that the switch came in response to increasing criticism of the mandate as exceeding Congress's authority under the Commerce Clause--authority that allows Congress to regulate anything that has a substantial effect on interstate commerce.  The article suggests that this "switch," then, is a new (and disingenuous) argument.  (We've covered the Commerce Clause and taxation arguments here, here, here, and here.  We've covered other aspects of the bill here and here.)

Just one problem: The article is wrong.

The administration has consistently defended the mandate in court first as an exercise of Congress's Commerce Clause power and only (far) second as an exercise of its taxing power under the General Welfare Clause.  Take, for example, the Justice Department's brief in Virginia v. Sebelius, the case in the Eastern District of Virginia.  In that brief, the government devotes 15 pages to its thorough and aggressive argument under the Commerce Clause--its primary substantive argument--and a mere 4 pages for its near-after-thought argument on taxation.  Yet the Times article quotes a portion from the tax argument in that very brief as evidence that the administration has changed its stance.

Take, for another example, the Justice Department's brief in Florida v. HHS, the Northern District of Florida case.  In that brief, the government devoted a similar 16 pages to the Commerce Clause--again its primary substantive argument on the mandate--and a mere 3 to its secondary taxation argument.

(Thanks to the ACA Litigation Blog for the briefs.  The ACA Litigation Blog is a new blog dedicated to following the litigation around health care reform.)

In its first brief in these cases, Thomas More Law Center, et al. v. Obama, in the Eastern District of Michigan, the government similarly privileged its Commerce Clause argument over its taxation argument.

The taxation argument was actively in play as early as last fall, even if the government has never (even now) used it as its primary authority in litigation for the mandate.

In short, the government's litigation position seems to have been consistent: The mandate is supported primarily by the Commerce Clause and only secondarily and alternatively by the taxation authority under the General Welfare Clause.

But in the end, does it matter?  As the Times story indicates, Congress went to great lengths in the Act to justify the mandate as an exercise of its Commerce Clause authority, and virtually ignored its taxation authority.  And administration officials have repeatedly claimed that the mandate is not a tax.

But there's no requirement that Congress name the particular authority it uses in its legislation (although that might help the courts uphold it), and there's certainly no requirement that the government's (or any litigant's) public pronouncements about their positions line up with their litigation positions.  And in the end, whether the mandate is "commerce" or a "tax" doesn't really matter to those affected--they still have to comply, or face the penalty.

The only way the administration's public "switch" (if such a switch really exists) might matter is in a government's normative obligation to state publicly what it also states in litigation.  This may be an attractive standard to promote government transparency, publicity, and educated public discourse, but we have never held the government to it. 

SDS

Zywicki at Cato: Repeal the Seventeenth Amendment

Professor Todd Zywicki (George Mason) made a case for repeal of the Seventeenth Amendment in this Cato Institute podcast, posted Thursday.

The Seventeenth Amendment, ratified in 1913, provides for direct election of U.S. Senators by the people (and not, as in the original Article I, Section 3, by process set by the state legislature).  The change, Zywicki argues, means that U.S. Senators no longer answer to their states.  As a result, the Senate no longer plays its state-protecting role that it once played--that individual U.S. Senators (and thus the Senate as a whole) lack the incentives to control federal encroachment upon the states.  Moreover, questions of federalism that were once resolved by the political branches (with the Senate as protector of the states) now go to the Supreme Court under the Tenth Amendment.  But the Supreme Court has "fumbled," upsetting the federal-state balance that the Founders so carefully framed.

These and similar arguments have gained more vocal followers recently, especially within the Tea Party movement, as we've covered here.

SDS

Lynne Stewart

Lynne Stewart, the criminal defense and activist attorney, was re-sentenced today in New York pursuant to the Second Circuit decision, US. v. Stewart, 590 F. 3d 93 (2nd Cir. 2009) disapproving her original 28 month sentence and remanding for resentencing.  The new sentence is for a period of ten years.  Prosecutors sought fifteen to twenty years for Stewart, aged 70.

The interest of Stewart's case for ConLawProfs was expressed in an Op-Ed in LA Times:

But Stewart's plight has larger implications for us all: It is a bellwether of the increasingly stringent secrecy and security measures imposed in federal courts, particularly in terrorism trials — all part of the systemic erosion of due process that reformers expected would end with the election of Barack Obama but which has been only further institutionalized. Stewart's case has come to symbolize the increasing difficulty attorneys face in zealously advocating for politically unpopular clients — a necessary component of due process in an adversary legal system.

[Update: New York Times story here]

RR

Questions about Berwick's Recess Appointment

All ten Republicans on the Senate Finance Committee yesterday asked Chairman Max Baucus for a hearing on President Obama's recess appointment of Dr. Donald Berwick as Administrator of the Centers for Medicare & Medicaid Services in the Department of Health and Human Services.  (Letter linked from Politico.)

President Obama nominated Dr. Berwick on April 19, 2010, and appointed him under his recess appointment authority on July 7, 2010, during an 11-day Senate intrasession recess.  Dr. Berwick was sworn in on Monday.

The Republicans claimed that a hearing "had been recommended for the week of June 21," but that "the President circumvented the nomination process . . . by using his authority to recess appoint Dr. Berwick to the position."  They called for a hearing "as soon as possible so that the President's recess appointment does not result in circumventing the open public review that should take place for a nomination of such importance."

Senator Baucus echoed the concerns, stating that he was "troubled" by the process.  "Senate confrimation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee--and answered," he said, according to Politico.

Article II, Section 2, of the Constitution authorizes recess appointments:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

And the Justice Department has consistently taken the position, since 1921, that the President may make intrasession recess appiontments if they are of substantial length.  What is "substantial"?  Attorney General Daugherty provided some guidance in his seminal advice in 1921, explaining that recess appointments could be made during any recess of such duration that the Senate could "not receive communications from the President or participate as a body in making appointments."  But "the line of demarcation cannot be accurately drawn."  Instead,

the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.  Every presumption is to be indulged in favor of the validity of whatever action he may take.

Daughterty concluded that a 28-day intrasession recess was long enough for a recess appointment; the Executive Branch has substantially shortened that period since.

Notably, nobody seems to be claiming that President Obama's recess appointment was unconstitutional.  Given the practice in recent administrations, that claim would be a non-starter.  Instead, the Republicans' letter and Baucus's statements reflect the purposes of Senate advice and consent in the ordinary course of things and, more generally, the purposes of congressional oversight.

SDS

Immigration and the Tenth Amendment

"If the federal government chooses not to exercise its powers, does it forfeit that power to the states and the people [under the Tenth Amendment]?"  Chicago Tribune columnist Dennis Byrne asks the question in his op-ed in today's paper, Immigration: A state or federal power? 

The Tenth Amendment states simply that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Byrne isn't alone in arguing that the Tenth Amendment bans the federal government from taking action in any number of areas, including, health care reform and immigration.  Such claims have even worked their way into Supreme Court nominee Elena Kagan's hearings.  Consider these written follow-up questions (pages 9 to 10) from Senator Sessions to Kagan (released with Kagan's written responses on Friday):

Do you think the Tenth Amendment is "a very specific provision" of the Constitution, or a "broad principle"?  Please explain your answer.

Do you think the purpose of the Tenth Amendment was intended to give further textual protections to federalism, apart from the broader structure set up by the Constitution?

If you believe the Tenth Amendment is a "broad principle," do you think the "broad principle" was ultimately intended to protect the liberty of individuals, or the power of governments?

But Byrne overreads the Tenth Amendment in two ways.  First, he suggests that the Tenth Amendment somehow empowers the states to act in areas delegated to the federal government when the federal government declines to exercise its full power, or when it exercises its power in a way that the states don't like.  This is exactly what happened in the Arizona immigration debate: The federal government enforced its comprehensive immigration scheme in a way that Arizona didn't like.  Byrne argues that this is enough under the Tenth Amendment to reserve the immigration power to Arizona. 

This position is belied by the plain language of the Amendment.  The Amendment doesn't reserve to the states "the powers not executed (or only partially executed, or executed in a way that a state doesn't like) by the United States"; instead, it reserves "powers not delegated to the United States."  The Tenth Amendment does not take the federal government out of the federalism equation and vest all powers in the states simply because the federal government exercises its powers incompletely, or in a way that a state doesn't like.  Instead, it merely does what it says: It reserves powers to the states that are not delegated to the federal government.

But more: Byrne (and Sessions and others) seem to read the Tenth Amendment as a protection against too much federal power--even when the Constitution delegates the federal power.  Again, the Tenth Amendment cannot bear this weight.  To be sure, the Supreme Court has ruled that the Tenth Amendment bars the federal government from directly commandeering the states and their employees--using the states or their employees as mere arms of the federal government--but the Court's contemporary approach to the Amendment does not otherwise limit valid congressional enactments under the Constitution.

Kagan said it well in response to Sessions's questions:

The Tenth Amendment reserves to the States or to the people the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States."  The principal question the Court has considered with respect to this Amendment is whether it provides protections to the States and to the people beyond what follows from a system of enumerated and limited federal powers.

As Justice Story explained, the Tenth Amendment is an "affirmation" of the "necessary rule of interpreting the constitution" that all powers "not conferred" on the federal government are "withheld, and belong[] to state authorities."  United States v. Darby [citation omitted].  In New York v. United States, the Court noted that, "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress."  [Citation omitted.]

The Court has explained that the Tenth Amendment was intended to protect the powers reserved to the states, and thereby to safeguard individual liberty: "The Constitution divides authority between federal and state governments for the protection of individuals.  State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'"  New York v. United States [citation omitted].

SDS

Nebraska Abortion Bill: Federal Judge Issues Temporary Restraining Order

Judge Laurie Smith Camp has enjoined the enforcement of portions of the controversial abortion Nebraska bill, LB 594.  In her 35 page opinion, Judge Camp provides the text of the bill, explaining it various provisions, including the extensive mental health screening and documentation.

Judge Camp explained that portions of the Bill express "the Nebraska Legislature’s concern that “the existing standard of care for preabortion screening and counseling is not always adequate to protect the health needs of women,”and “[t]hat clarifying the minimum standard of care for pre-abortion screening and
counseling in statute is a practical means of protecting the well-being of women.” and re-state the "Legislature’s earlier language to the effect that the Supreme Court of the United States over-stepped its authority when issuing its decision in Roe v.Wade, and that the Nebraska Legislature intends to protect the life of unborn children whenever possible."    She reasoned:

No such legislative concern for the health of women, or of men, has given rise to any remotely similar informed-consent statutes applicable to other medical procedures, regardless of whether such procedures are elective or non-elective, and regardless of whether such procedures pose an equal or greater threat to the physical, mental, and emotional health of the patient. From a plain reading of the language of the bill,8 and the absence of any similar statutory “protections” for the health of patients in other contexts, this Court infers that the objective underlying LB 594 is the protection of unborn human life.

Opinion at 24-25.  She concluded that the Bill "places certain obstacles in the path of women seeking abortions" by

1.  requiring medical providers to make risk assessments and disclosures that, if the bill is
   read literally, would be impossible or nearly impossible to perform,
2. requiring medical providers to speculate about what conduct is mandated under the bill, if it is not to be read literally, but instead given some reasonable interpretation, and
3. placing physicians who perform abortions in immediate jeopardy of crippling civil litigation, thereby placing women in immediate jeopardy of losing access to physicians who are willing to perform abortions.

Opinion at 25-26.   She also found that the medical providers demonstrated a likelihood of success on the merits on the First Amendment claim that "the disclosures mandated by LB 594, if applied literally, will require medical providers to give untruthful, misleading and irrelevant information to patients."  Opinion at 31.

Given the Judge's ruling, unless Nebraska can produce other evidence, it seems likely that the court will declare the statute unconstitutional.

RR

Bastille Day & The French Constitution

Today is Bastille Day, the national holiday of France.  The French Constitution (known as the Constitution of the Fifth Republic) begins:

The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004.
 
By virtue of these principles and that of the self-determination of peoples, the Republic offers to the overseas territories that express the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived with a view to their democratic development.
 
Article 1. France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis.

The "secular" aspect of the French Republic has been the subject of much debate in the last decade, centering on government regulations of women and girls wearing Muslim dress.  The l'affaire du voile or the veil (or scarf or hijab) controversies pit notions of secularism and national identity against religious and cultural minorities, as well as invoking issues of gender equality.  The French Constitution provides that all French citizens "of either sex" may vote, Article III, but does not include a general gender equality provision. 

The Constitution also provides that "The Republic shall recognise the overseas populations within the French people in a common ideal of freedom, equality and fraternity."  Art. 72-3.  The legacy of French colonialism was evident - - - and another source of controversy - - - in today's celebrations the parade featured armies from former french colonies, some of whom have been accused of being responsible for war crimes.  

RR

Animal Enterprise Terrorism Act: First Amendment Problems?

Judge Ronald Whyte of the District Court of Northern District of California has dismissed the indictments against Joseph Buddenberg and three other defendants under AETA, the Animal Enterprise Terrorism Act, 18 USC 43.  The pertinent parts of AETA provide:

(a) Offense.-Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce-
    (1) for the purpose of damaging or interfering with the operations of an animal enterprise; and
    (2) in connection with such purpose-
        (A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise; or
        (B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or
        (C) conspires or attempts to do so;
shall be punished as provided for in subsection (b).

AETA concludes with “Rules of Construction” which provide in relevant part that nothing in this section shall be construed"(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution;  (2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference . . . . "

Judge Whyte previously denied a motion to dismiss the indictments based on the unconstitutionality of AETA as overbroad and vague.   In the new ruling, the Judge dismisses the indictments without prejudice on the basis that the indictments failed to allege sufficient facts under the Fifth Amendment.  Yet as the Judge notes, the indictment basically tracks the language of the statute.  The underlying problem is whether the alleged facts (and ultimately the facts that can be proven at trial) will be sufficient to fall within the offense and not be protected by the First Amendment.

The four defendants are all California young adults, Joseph Buddenberg, 25, Adriana Stumpo, 23, Nathan Pope, 26,  and Maryam Khajavi, 20, who have engaged in animal rights activism.  With others, they have protested at the homes of professors who engage in animal research.  They were also linked to fliers found at the  Café Pergolesi in Santa Cruz, entitled "Murderers and torturers alive & well in Santa Cruz July 2008 edition" which listed the names, addresses, and telephone numbers of several University of California researchers and stated “animal abusers everywhere beware we know where you live we know where you work we will never back down until you end your abuse.”  

The case has attracted much attention.  The defendants are being represented by the Center for Constitutional Rights.  The New York City Bar has urged the repeal of AETA, discussing the Buddenberg indictments as demonstrating the statute's overbreadth under the First Amendment and shows "AETA’s misapplication of “terrorism” to animal rights protest activity."  

It also makes a terrific class exercise, exam problem, or both.  Last semester I used the case in First Amendment class as we discussed doctrines regarding "threat" and "political speech."   

RR

(with thanks for the tip to Natasha Bannan, 3L, CUNY School of Law).

[image of anonymous protester via]

Connecticut Campaign Finance Decisions from Second Circuit: Green Party v. Garfield

In two related opinions today, the Second Circuit ruled on challenges to Connecticut’s Campaign Finance Reform Act (CFRA).  

In Green Party v. Garfield (Green Party I)  the Second Circuit panel affirmed the district court ruling that certain discrete components of Connecticut’s Citizen Election Program (CEP) providing public funds for elections violate the First Amendment.  These so-called “trigger provisions,” which include the CEP’s “excess expenditure provision” and “independent expenditure provision”—violate the First Amendment by impermissibly restricting the right of candidates and other individuals and organizations to spend their own funds on campaign speech.  The Second Circuit reversed the district judge’s holding that the CEP violated the First Amendment  and equal protection clause as applied to “so-called minor political parties and their candidates.”  (emphasis in opinion). 

 Green Party I provides the background of the Connecticut statute, including the scandals involving the former governor which involved state contractors and notes that Connecticut became known as “Corrupticiut.”

The precise nature of this scandal is very relevant to the panel’s decision in  Green Party II: the court upheld the Connecticut statute’s ban on contractor contributions but found unconstitutional the ban on lobbyist contributions.   The Court noted “because the recent corruption scandals in Connecticut have created an appearance of corruption with respect to all exchanges of money between state contractors and candidates for state office” the “outright ban on contractor contributions was justified (i.e., closely drawn to meet the state’s anticorruption interest) because even a severe limit on contractor contributions would allow a small flow of contributions between contractors and candidates and would, as a result, likely give rise to an appearance of corruption.”   However,  the “situation is different with lobbyists. The recent corruption scandals had nothing to do with lobbyists, and thus there is insufficient evidence to infer that all contributions made by state lobbyists give rise to an appearance of corruption.”   The panel also held the statutory limit on solicitations of contributions unconstitutional, reasoning that this was closer to core political speech than a contribution itself.

Beyond the interest in this specific statute, the relevance of Citizens United has become an issue in every new campaign finance case.   (We’ve previously discussed applications of Citizens United here, here and here, and have discussed reactions to the case here, here, and here, and Paula Z. Segal, 3L, CUNY School of Law, has discussed the case and its applications - - - including a Tenessee Attorney General opinion here.)

The panels’ decisions use of Citizens United is undramatic and many of the references occur in footnotes.  In Green Party I, footnotes 9 and 10 cite Citizens United for clarifying the difference between strict scrutiny and exacting scrutiny.  Footnote 9 states:

Compare Citizens United, 130 S. Ct. at 898 (explaining that “strict scrutiny” requires “the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest” (quotation marks omitted)), with id. at 914 (explaining that “exacting scrutiny” requires “a substantial relation” between the restriction and “a sufficiently important government interest” (quotation marks omitted)).

In Green Party II, the court cites Citizens United  again for the standard, but later writes:

Although the Court’s campaign-finance jurisprudence may be in a state of flux (especially with regard to campaign-finance laws regulating corporations), [FEC v. ] Beaumont and other cases applying the closely drawn standard to contribution limits remain good law. Indeed, in the recent Citizens United case, the Court overruled two of its precedents and struck down a federal law banning independent campaign expenditures by corporations, but it explicitly declined to reconsider its precedents involving campaign contributions by corporations to candidates for elected office. See 130 S. Ct. at 909 (“Citizens United has not made direct contributions to candidates, and it has not suggested that the
Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.”).

Perhaps the most important use of Citizens United is in the court’s analysis of the “anti-corruption” government interest:

the anticorruption interest recognized by Buckley [ v. Valeo] and other cases is “limited to quid pro quo corruption” and does not encompass efforts to limit “[f]avoritism and influence” or the “appearance of influence or access.” Citizens United, 130 S. Ct. at 909-10 (quotation marks omitted). “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt,” and favoritism and influence are “[un]avoidable in representative politics.” Id. at 910 (quotation marks omitted). Influence and access, moreover, are not sinister in nature. Some influence, such as wise counsel from a trusted advisor—even if that advisor is a lobbyist—can enhance the effectiveness of our representative government.

It is not clear that Green Party I and II would have been decided differently pre-Citizens United. 

RR

FCC's Fleeting Expletives Policy is Unconstitutionally Vague

A three-judge panel of the Second Circuit ruled today that the FCC's "fleeting expletives" policy for broadcast television is unconstitutionally vague.  The ruling follows a remand from the Supreme Court last year.  In that case, the Supreme Court overturned the Second Circuit's ruling that the fleeting expletives rule was arbitrary and capricious under the Administrative Procedures Act, but declined to address the First Amendment issue.

Today's ruling takes up the First Amendment issue (though under vagueness doctrine, not ruling on the level of scrutiny) and tees the case up yet again for Supreme Court review.

The FCC in 2001 adopted a policy that ruled content indecent following two determinations: (1) whether the material "describe[s] or depict[s] sexual or excretory organs or activities"; and (2) whether the broadcast is "patently offensive as measured by contemporary community standards for the broadcast medium."  The FCC considered three factors in determining whether a broadcast was patently offensive: (1) "the explicitness or graphic nature of the description or depiction"; (2) "whether the material dwells on or repeats at length" the description or depiction; and (3) "whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value."  The Commission stated that "fleeting expletives" were not indecent under the second prong.

But in 2004, in reaction to Bono's enthusiastic acceptance speech at the 2003 Golden Globe Awards, the FCC changed course and ruled that a single, non-literal use of an expletive could be actionably indecent.  The FCC applied the policy aggressively (and seemingly inconsistently) since.

The Second Circuit ruled the policy unconstitutionally vague.  The court explained (in language that itself might violate the policy):

We agree with the Networks that the indecency policy is impermissibly vague.  The first problem arises in the FCC's determination as to which words or expressions are patently offensive.  For instance, while the FCC concluded that "bullshit" in a "NYPD Blue" episode was patently offensive, it concluded that "dick" and "dickhead" were not. . . .  Other expletives such as "pissed off," "up yours," "kiss my ass," and "wiping his ass" were also not found to be patently offensive. . . .  [I]n each of these cases, the Commission's reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them.  Thus, the word "bullshit" is indecent because it is "vulgar, graphic and explicit" while the words "dickhead" was not indecent because it was "not sufficiently vulgar, explicit, or graphic."  This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

Op. at 23.

As to the news and artistic exceptions, the court illustrated the vagueness problem thus:

Take, for example, the disparate treatment of "Saving Private Ryan" and the documentary, "The Blues."  The FCC decided that the words "fuck" and "shit" were integral to the "realism and immediacy of the film experience for viewers" in "Saving Private Ryan," but not in "The Blues." . . .  We query how fleeting expletives could be more essential to the "realism" of a fictional movie than to the "realism" of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in "Saving Private Ryan," a mainstream movie with a familiar cultural milieu, than it was with "The Blues," which largely profiled an outsider genre of musical experience.  But even if there were a perfectly benign way of explaining these particular outcomes, nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.

Op. at 28.

The court invited reevaluation of the Supreme Court's 1978 ruling in FCC v. Pacifica, the case holding (narrowly) that the FCC could impose a civil forfeiture for George Carlin's "Filthy Words" monologue, a 12-minute string of expletives broadcast at 2:00 in the afternoon (but not obscene).  The court wrote that technology (like the V-chip) now allows blocking of unwanted content in a way that was unavailable at the time of Pacifica but was central to the Supreme Court's 2000 ruling in U.S. v. Playboy (overturning, under strict scrutiny analysis, federal law prohibiting cable television operators from broadcasting sexual content during certain hours).  In light of technological advances, the panel suggested that Playboy's strict scrutiny, and not Pacifica's lower level of scrutiny, provides the right standard of review.  The court:

We can think of no reason why [the rationale in Playboy] for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

Op. at 17.  The policy here would almost surely fail under strict scrutiny--just as the policy in Playboyfailed--because there are less restrictive ways (e.g., the V-chip) of achieving the Commission's end of protecting against indecencies on broadcast television.

But the court did not take on this task itself.  Instead, it dodged the standard issue and ruled the FCC's policy unconstitutionally vague. 

Given the panel's suggestions, look for the eventual appeal to the Supreme Court to raise the continued relevancy of Pacifica and to urge strict scrutiny for FCC's indecency policy for broadcast television, in addition to the vagueness question.

SDS

Kagan Vote Delayed

Politico just reported that the Senate Judiciary Committee postponed for a week its vote on Supreme Court nominee Elena Kagan after Republicans on the Committee moved for the delay.

The Committee had scheduled an Executive Business Meeting for today to consider the nomination.  The delay means that the Committee's vote will come next week, on July 20.

SDS

Detainee's Five-Year Delay Does not Violate Right to Speedy Trial

Judge Lewis Kaplan (S.D.N.Y.) ruled yesterday that former Guantanamo detainee Ahmed Khalfan Ghailani's five-year period of custody with the CIA and Department of Defense before presentation for trial in federal court did not violate his Sixth Amendment right to a speedy trial.  The ruling, unless overturned on appeal, means that Ghailani's criminal case in the Southern District can move forward.

But it would be a mistake to read the decision as paving the path to civilian trials for all Guantanamo detainees.

Judge Kaplan's "functional" analysis carefully balanced the four factors that the Supreme Court enumerated for speedy trial claims in Barker v. Wingo:

(1) the length of the delay

(2) the reason for the delay

(3) the defendant's assertion of the right, and

(4) prejudice to the defendant.

Op. at 20.  More than any other single factor, though, Judge Kaplan's decision turned on the reason for the government's detention.  He wrote that the CIA detained Ghailani for two years for legitimate intelligence-gathering purposes related to national security--detention that could not be counted against the government for speedy-trial purposes, notwithstanding Ghailani's allegations of abuse during this period. 

Judge Kaplan was less generous to the government with regard to Ghailani's detention at Guantanamo, however.  He wrote that the government's reasons for detention at Guantanamo--its prosecution of Ghailani's Combat Status Review Tribunal and its preparation of his military commission case (which never transpired)--"weigh[ed] against the government."  The government's third basis for detention at Guantanamo--to keep Ghailani, which the CSRT determined to be an "enemy combatant," off the battlefield--weighed less against the government for the purpose of the speedy trial guarantee, but the government was nevertheless "responsible for the delay caused by that decision."  Op. at 37.  (Judge Kaplan noted that the government could have held Ghailani anywhere--including in the Metropolitan Correctional Center for the Southern District while prosecuting its case in civilian court, as it had with others--and served this same purpose.)

While Judge Kaplan ruled that the balance of the Barker factors weighed against Ghailani's speedy-trial claim, this says little about other detainees' cases.  The larger lesson of the opinion is that the specific facts matter under Barker's functional, case-specific approach.  And according to Judge Kaplan, detention at Guantanamo Bay, for any reason that the government keeps detainees there, may weigh against the government in determining whether a detainee transferred to the civilian courts was denied a speedy trial.

SDS

Cornyn, Kagan on Congressional Treaty Power

Among Supreme Court Nominee Elena Kagan's written responses to members of the Senate Judiciary Committee released on Friday was this exchange with Senator Cornyn on congressional power to enact legislation implementing a treaty:

[Question 4] Missouri v. Holland, 252 U.S. 416, 432 (1920), held that "[i]f a treaty is valid there can be no dispute about the validity of a statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government."

[Question 4a.] In your view, can Congress and the President expand or evade the scope of Congress's Article I powers by entering into a treaty requiring an enforcing law that would otherwise be unconstitutional [as exceeding congressional authority under Article I]?

Response: Missouri v. Holland held that Congress may enact a statute implementing a treaty pursuant to its authority under the Necessary and Proper Clause, even if Congress does not otherwise have Article I authority to do so, provided the statute does not violate a constitutional prohibition.

Emphasis added.

The exchange brings to mind debates even today about whether Congress can "exceed its authority" by enacting legislation under the General Welfare Clause--that is, whether Congress can do under the General Welfare Clause what it can't do under, say, the Commerce Clause.

Of course it can.  Madison and Hamilton waged this debate many years ago--Madison for the limited view, Hamilton for the expansive view--and the Court settled it in favor of Hamilton in 1936 in United States v. Butler. 

The issue for the General Welfare Clause (and also for congressional authority to implement a treaty) is not whether the political branches can "expand or evade the scope of Congress's Article I powers," as Senator Cornyn suggests.  Instead, the General Welfare Clause and the Necessary and Proper Clause (to implement a treaty) are themselves independent congressional powers.  That Congress could not achieve its goals under, say, the Commerce Clause just doesn't matter, because it can achieve them by other valid means. 

It's a separate question, of course, whether Congress should achieve the goals at all.  Senator Cornyn went on to ask about this--with respect to the Gun Free School Zones Act (overturned as exceeding the Commerce Clause in United States v. Lopez), the civil damages provision in the Violence Against Women Act (overturned as exceeding the Commerce Clause and Section 5 of the Fourteenth Amendment in United States v. Morrison), and the individual health insurance mandate in the recent health care reform legislation (yet to reach the Supreme Court). 

Could Congress achieve its policy goals in these areas by enacting a treaty and implementing it through legislation?  Surely, every bit as much as it could under its spending power.

Whether it should is a question for Senator Cornyn, not Nominee Kagan.

SDS

Assistant AG Perez on Restoring the Civil Rights Agenda

Thomas Perez, Assistant Attorney General for the Civil Rights Division, will talk Monday evening at an American Constitution Society function on issues important to the Division and efforts to strengthen civil rights enforcement around the country. 

 

The event runs from 6:00 to 8:00 p.m. on Monday, July 12, in the first-floor Gompers Room at the AFL-CIO headquarters at 815 16th Street, NW, in Washington D.C.  Register here.

SDS

Kagan on Mark Tushnet and Harold Koh: Post Confirmation Hearing Responses to Senators Questions

Supreme Court Nominee Elena Kagan has submitted her written responses to post-testimony "Questions Submitted for the Record" from Senators Jeff Sessions, Chuck Grassley, Jon Kyl, Lindsay Graham, John Cornyn, and Tom Coburn. These have been added to the materials from the Senate Judiciary Committee here.       

Two of the more interesting interchanges involved the scholarship of Professors Mark Tushnet and Harold Koh.

Senator Tom Coburn was concerned with Kagan’s opinions of Mark Tushnet’s scholarship:

Q: You were dean of Harvard Law School when Professor Mark Tushnet was hired. Like you, Professor Tushnet also clerked for Justice Thurgood Marshall, and when he received an endowed chair position at Harvard, you introduced him and called him as “one of the world’s leading law scholars, particularly one of the world’s leading constitutional law scholars” and praised his “contributions to the world of scholarship.” In a 1981 law review article entitled “The Dilemmas of Liberal Constitutionalism, Professor Tushnet asserted that, if he were a judge, he “would decide what decision in a case was most likely to advance the cause of socialism.”

a. Is this one of Professor Tushnet’s “contributions to the world of scholarship?

Response: My introduction for Professor Tushnet was not intended to suggest my agreement with any particular aspect of his scholarship or any particular article. It was intended to recognize his general standing in the sphere of constitutional law scholarship.

b. How would you characterize such an approach to the law?

Response: If Professor Tushnet meant that a judge should decide cases based on her own policy views about the best result, then I would characterize that approach as contrary to the rule of law.

c. Would you endorse it? Why or why not?

Response: No. Judges should decide cases based on legal sources, not on policy or political views.

Coburn came back to Mark Tushnet a few questions later, regarding state action:

Professor Tushnet has recommended reconsidering the 1883 Civil Rights cases in which the Supreme Court held that the 14th Amendment prohibited only the abridgement of individual rights by the state, rather than by private individuals and institutions. The Supreme Court has stated: “It is state action of a particular character that is prohibited. … The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individual’s] rights remain in full force.” Professor Tushnet stated:“The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.”

a. Do you agree with Professor Tushnet’s desire to be rid of the state action doctrine? Why or why not?

Response: No. The state-action doctrine has been repeatedly reaffirmed by the Supreme Court,and the decisions adopting and applying the state action doctrine are entitled to stare decisis effect. These decisions, indeed, function as a basic postulate of our constitutional system.

Coburn also asked, “Do you agree with the views of the Critical Legal Studies movement?” The simple response: “No.”

Senator John Cornyn discussed Professor Harold Hongju Koh's scholarship regarding "the difference between nationalists and transnationalists, whom, he says, 'hold sharply divergent attitudes toward transnational law,' and then asked:

As described by Professor Koh, are you a transnationalist or a nationalist? Have you ever previously expressed your position on this question? What did you say?

Response: I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.

Other interesting subjects of inquiry include Sessions asking questions regarding recusal, the Second and Eighth Amendments, and many of her memos as law clerk to Justice Thurgood Marshall; Grassley on Garcetti v. Ceballos regarding the First Amendment rights of government employees,  and the relationship between the takings clause and the taxing power, Kyl on Kagan's opinion on Arizona SB 1070 and the (then-contemplated) federal lawsuit, and Coburn's concern with Kagan's "personal lack of pro bono legal services,” comparing her unfavorably to other recent nominees, including Harriet Miers.

RR

Injunction Against Deepwater Drilling Moratorium Affirmed: Judicial Financial Investments Cause Continuing Questions

In a very brief opinion, a panel of the Fifth Circuit Court of Appeals affirmed District Judge Martin Feldman's preliminary injunction of Secretary of the Interior Salazar's six month moratorium on deep water drilling issued May 28, 2010, after a report on the BP Deepwater Horizon explosion and oil "spill."

One of the three judges on the panel disagreed. Judge James Dennis wrote (in full):

I would grant the Secretary’s motion to stay the district court’s preliminary injunction pending appeal, and to this extent, I respectfully dissent from the majority’s order. I concur, however, in reserving the Secretary’s right to apply for emergency relief and ordering an expedited appeal and briefing. I will assign reasons for my dissenting view at a later date.

The Fifth Circuit's opinion did not to quell the questions being raised about the impartiality of the judges in the Fifth Circuit.   Known colloquially as the "oil and gas circuit," the Fifth Circuit has been comprised of only three states - - - Texas, Louisiana and Mississippi - - - since the early 1980s when the Eleventh Circuit was created from the "former Fifth Circuit" that also included Florida, Alabama and Georgia.  Given the composition of the federal judiciary, it is not surprising that many judges in the Fifth Circuit (including the district judges of the Circuit)  have financial and pre-judicial legal practice connections to the oil and gas industries.   This lack of uniqueness might be fatal to a Caperton v. Massey due process argument.

A new report from Alliance for Justice, provocatively entitled Judicial Gusher discusses the ties of individual judges to the energy industry, including a two page chart with specific financial information.  Issued before the Fifth Circuit panel's decision, the report specifically discusses the three judges on the panel.  Interestingly,  Judge Dennis' financial holdings in energy corporations are described as "substantial" and not unlike the other two judges.  

RR