Sunday, October 31, 2010

Federalism, Marriage, Perry and DOMA: Sanders on States Amicus Brief

Steve Sanders has posted an interesting commentary on the amicus brief filed by thirteen states in Perry v. Schwarzenegger, the Proposition 8 case now in the Ninth Circuit, which we last discussed here.

Sanders points to the inconsistency in the arguments in this amicus brief with the appeal in Commonwealth of Massachusetts v. HHS, the DOMA case in which the district judge agreed that DOMA conflicts with the Massachusetts' Tenth Amendment reserved powers.   He writes that these 13 states are "unlikely to link arms with Massachusetts," because given "the choice between a consistent position in favor of states' rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter."  

The Tenth Amendment argument in the Massachuetts DOMA case also poses consistency issues for those relying on the Tenth Amendment in the context of challenges to Arizona's immigration law, SB 1070.


October 31, 2010 in Family, Federalism, Sexual Orientation, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Saturday, October 30, 2010

Arizona SB1070, Legislative Process, and Constitutional Consequences

As so-called "copycat" legislation of Arizona's SB 1070 is being contemplated by 25 other states, some provocative reporting from NPR discusses the genesis of such laws.  In part one of the report, NPR states that it "spent the past several months analyzing hundreds of pages of campaign finance reports, lobbying documents and corporate records. What they show is a quiet, behind-the-scenes effort to help draft and pass Arizona Senate Bill 1070 by an industry that stands to benefit from it: the private prison industry."  In part two, NPR continues its reporting on American Legislative Exchange Council, ALEC,and states:

Here's how it works: ALEC is a membership organization. State legislators pay $50 a year to belong. Private corporations can join, too. The tobacco company Reynolds American Inc., Exxon Mobil Corp. and drug-maker Pfizer Inc. are among the members. They pay tens of thousands of dollars a year. Tax records show that corporations collectively pay as much as $6 million a year.

With that money, the 28 people in the ALEC offices throw three annual conferences. The companies get to sit around a table and write "model bills" with the state legislators, who then take them home to their states.

Again, NPR focuses on SB1070 and similar legislation, as the NPR image below illustrates.

Picture 2



This reporting raises several constitutional issues.  First, and perhaps most obviously, are the First Amendment issues regarding lobbying, disclosure, and campaign finance, especially from the perspective of the public's "right to know."   Second, the "government interests" prong of analysis in constitutional challenges is implicated.  Might a court reject a government's proferred statement of interest in favor of an unarticulated - - - and illegitimate - - - interest such as improving business for a private corporation?


October 30, 2010 in Campaign Finance, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Interpretation, News, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, October 28, 2010

O'Donnell, Jefferson on Separation of Church and State

Republican Senate Candidate Christine O'Donnell's 2008 primary campaign manager Jonathon Moseley this week offered a $1,000.00 reward to anyone who could find the phrase "separation of church and state" in the Constitution.  (Thanks to Carrie Beth Clark for the tip.)  The offer comes on the heels of O'Donnell's statement in her debate last week with Democrat Chris Coons that the First Amendment contains no such phrase and requires no such separation.

The phrase, of course, comes from Thomas Jefferson's January 1, 1802, letter to the Danbury Baptist Association in response to that group's address congratulating him on his election as president.  The Library of Congress, with the help of the FBI, analyzed Jefferson's handwritten draft of the letter, including Jefferson's edits, and featured the letter in a 1998 exhibit on church and state.  The LoC gives us an historical context here.  The text of Jefferson's final letter is here; the unedited text is here.


From the LoC:

Jefferson revealed that he hoped to accomplish two things by replying to the Danbury Baptists.  One was to issue a "condemnation of the alliance between church and state."  This he accomplished in the first, printed, part of the draft.  Jefferson's strictures on church-state entanglement were little more than rewarmed phrases and ideas from his Statutes Establishing Religious Freedom (1786) and from other, similar statements.  To needle his political opponents, Jefferson paraphrased a passage, that "the legitimate powers of government extent to . . . acts only" and not to opinions, from the Notes on the State of Virginia, which the Federalists had shamelessly distorted in the election of 1800 in an effort to stigmatize him as an atheist.  So politicized had church-state issues become by 1802 that Jefferson . . . considered the articulation of his views on the subject, in messages like the Danbury Baptist letter, as ways to fix his supporters' "political tenets."

Here's what Moseley had to say:

Jefferson was not in the Constitutional Convention that wrote the U.S. Constitution. . . .  Jefferson was also not a member of the first U.S. Congress that wrote the Bill of Rights, either. . . .

The law clerks over in the U.S. Supreme Court should stop reading people's letters and re-read the U.S. Constitution itself.


October 28, 2010 in Current Affairs, Establishment Clause, Free Exercise Clause, News, Religion | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 27, 2010

Sixth Circuit Holds Teacher Has No First Amendment Right in Assignments

Shelley Evans-Marshall taught English and Creative Writing in high school, to ninth, eleventh and twelfth  graders.  She assigned Herman Hesse's Siddhartha.  She assigned Ray Bradbury's Fahrenheit 451 and to explore that book’s theme of government censorship, she developed an assignment based on the American Library Association's "banned books."0764513117

0764586505 Some parents protested about the book and assignment choices, the principal disapproved, and Ms. Evans-Marshall was terminated.

In its opinion the Sixth Circuit has rejected the teacher's First Amendment challenge.  Applying Garcetti v. Ceballos, the court found that the teacher could not "overcome Garcetti":    "When government employees speak “pursuant to their official duties,” Garcetti teaches that they are “not speaking as citizens for First Amendment purposes.”

The court emphasized how Garcetti controls rather than Pickering v. Board of Education:

When Pickering sent a letter to the local newspaper criticizing the school board, he said something that any citizen has a right to say, and he did it on his own time and in his own name, not on the school’s time or in its name. Yet when Evans-Marshall taught 9th grade English, she did something she was hired (and paid) to do, something she could not have done but for the Board’s decision to hire her as a public school teacher.

Opinion at 11.   As for any "academic freedom" argument, the panel opined that such a concept is limited to universities and does not extend to high schools.  Opinion at 16.



October 27, 2010 in Books, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Mississippi Court Allows Personhood Initiative To Appear on Ballot

Mississippi Circuit Court Judge Malcolm Harrison ruled yesterday that a ballot initiative to define "person" did not violate a state constitutional provision that prohibits the use of initiatives to modify the state Bill of Rights.  ( reports here.)

The initiative, Initiative Measure 26, would amend the state constitution to define the word "person" as follows:

Section 33.  Person defined.  As used in this Article III of the state constitution, "The term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

The measure would add Section 33 to the Mississippi Constitution Bill of Rights (Article III of the state constitution).

But Section 273(5)(a) of the constitution prohibits the use of the initiative to amend the state Bill of Rights:

(5) The initiative process shall not be used . . . [f]or the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution.

Thus plaintiffs in the case argued that the initiative was unconstitutional.  Judge Harrison disagreed.  In a remarkably short order, apparently dodging the plaintiffs' constitutional claim, he wrote (without citation):

Plaintiffs carry a heavy burden in attempting to restrict the citizenry's right to amend the Constitution.  Initiative Measure No. 26 has received more than the required amount of signatures to be placed on the ballot and the Constitution recognizes the right of citizens to amend their Constitution.  The Court finds plaintiffs have not met their burden.

The order's analysis seems surprising for a variety of reasons, not least of which this: Subsection (5)(a) is pretty clear; and the Mississippi Supreme Court and state attorney general seem to think that other, similarly clear subsections in Section 273 basically mean what they say. 

The case is likely headed to the Mississippi Supreme Court.


October 27, 2010 in Comparative Constitutionalism, Elections and Voting, News, Recent Cases, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Court Conclusions of Unconstitutionality and Government Decisions to Appeal

The Obama DOJ's footnote one in the Emergency Motion appealing the district judge's injunction of the military's "don't ask, don't tell" policy states the DOJ has a "longstanding practice of defending the constitutionality of federal statutes."   But is that really true? 

120px-Doj In an excellent column published today, Tony Mauro thinks not.  He contends that the DOJ has declined to defend the constitutionality of a federal statute "at least 13 times" since 2004.   Indeed, Mauro relates that as recently as June, the Obama DOJ decided not to appeal the D.C. Circuit's opinion in v. FEC that declared unconstitutional two provisions of the Federal Election Campaign Act of 1971 limiting contributions to political committees.   Mauro also provides some other examples that are staples of ConLaw: Buckley v. Valeo (1973) and INS v. Chadha (1983).

Additionally, the stated (if untrue) DOJ policy to defend is in contrast with recent decisions in some states not to defend a statute.  Florida, for example, recently chose not to appeal a decision that its homosexual adoption ban was unconstitutional.   In California, the Governor and the Attorney General both chose not to defend Proposition 8 in a challenge to its constitutionality, and then chose not to appeal the judge's decision.

Meanwhile, the Obama DOJ has filed its notice of appeal of the district judge's ruling that section 3 of the Defense of Marriage Act, DOMA, is unconstitutional. 


October 27, 2010 in Courts and Judging, Current Affairs, History, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

Arizona Voter Identification Law Unconstitutional as Preempted by National Voter Registration Act

A Ninth Circuit panel opinion today, with retired Justice Sandra Day O'Connor sitting by designation, has declared Arizona Proposition 200 regarding citizenship identification for voting, invalid as preempted.   Judge Sandra Ikuta begins her opinion for the majority of the panel with this description:



Proposition 200 requires prospective voters in Arizona to present documentary proof of  citizenship in order to register to vote, Ariz. Rev. Stat. §§ 16-152, 16-166, and requires registered voters to present proof of identification in order to cast a ballot at the polls, Ariz. Rev. Stat. § 16-159. This appeal raises the questions whether Proposition 200 violates the Voting Rights Act § 2, 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or is void as inconsistent with the National Voter Registration Act (NVRA), 42 U.S.C. § 1973gg et seq. We hold that the NVRA supersedes Proposition 200’s voter registration procedures, and that Arizona’s documentary proof of citizenship requirement for registration is therefore invalid.


The panel considered the preemption doctrine under Election Clause preemption rather than under Supremacy Clause preemption: "Because the Elections Clause empowered Congress to enact the NVRA,"  the preemption analysis under that Clause is applicable."   The panel derived its approach from two cases 120 years apart:  Ex Parte Siebold, 100 U.S. 371 (1879) and Foster v. Love, 522 U.S. 67 (1997).

Reading Siebold and Foster together, we derive the following approach for considering whether federal enactments under the Elections Clause displace a state’s procedures for conducting federal elections. First, as suggested in Siebold, we consider the state and federal laws as if they comprise a single system of federal election procedures.  If the state law complements the congressional procedural scheme, we treat it as if it were adopted by Congress as part of that scheme. If Congress addressed the same subject as the state law, we consider whether the federal act has superseded the state act, based on a natural reading of the two laws and viewing the federal act as if it were a subsequent enactment by the same legislature.  With this approach in mind, we consider whether the NVRA and Proposition 200 operate harmoniously in a single procedural scheme for federal voter registration.

Opinion at 17643 (citations omitted).  The panel concluded that the state law did not operate "harmoniously" with the NVRA.

Dissenting, Judge Alex Kozinski was highly critical of the majority, ending his own opinion by writing, "Few panels are able to upset quite so many apple carts all at once. Count me out."  Dissenting Opinion at 17704.  Kozinski's argument is that the panel has evaded the law of the Circuit and weakened the rules surrounding the law of the case.  He argues that the panel is wrong not to take precedent seriously and wrong that the precedent it disregards was erronelously decided.


October 26, 2010 in Current Affairs, Elections and Voting, Fundamental Rights, Opinion Analysis, Preemption | Permalink | Comments (1) | TrackBack (0)

Monday, October 25, 2010

Kansas Court Extends Right to Counsel to Habeas Petition

The Kansas Court of Appeals (the state's intermediate appellate court) ruled last week in Merryfield v. Kansas that a person involuntarily confined in the Kansas Sexual Predator Treatment Program has a right to counsel under due process and equal protection in a habeas petition that is not subject to summary dismissal under state law.

Dustin Merryfield filed his habeas petition alleging that conditions of confinement were unconstitutional.  He also requested court-appointed counsel for his petition.  Under Kansas law, his petition was not subject to summary dismissal.  The Court of Appeals therefore remanded the case for a hearing and granted his request for counsel.

The court ruled that both due process and equal protection support a right to counsel.  The court wrote that while Merryfield's habeas petition did not involve an initial deprivation of liberty (which triggers a constitutional right to counsel, as in In re Gault), it also did not involve a collateral attack on a criminal conviction (which does not trigger a constitutional right to counsel, as in Pennsylvania v. Finley).  Merryfield's liberty interest was different, but sufficient:

His liberty interest is manifest, and he contends--with sufficient basis to warrant an evidentiary hearing--that the treatment provided to him is so ineffective that it could never give him the help he would need to regain his freedom.  A person like Merryfield, who has been involuntarily committed in a civil proceeding that explicitly recognizes that the detention may be for a long-term period--more than a decade so far for Merryfield--must be entitled to the assistance of counsel in the resolution of such substantial claims. . . .

Merryfield's claim that the treatment program is so poor that he will never regain his liberty is certainly among the most significant that could be brought by a person confined under the Kansas program for treatment of sexually violent offenders.

Op. at 12.

The court wrote that equal protection also compels appointment of counsel.  The court wrote that Kansas law provides court-appointed counsel for inmates who have been imprisoned after felony convictions when their habeas petitions cannot be summarily dismissed.  If Kansas law provides counsel for this class, under equal protection it must also provide counsel for the similarly situated class that includes Merryfield. 

For more on right to counsel in civil proceedings, check out the National Coalition for a Civil Right to Counsel.


October 25, 2010 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Courtroom Spectator Speech: Red Clipboards and Judicial Ethics

A Minnesota judge's reaction to a court monitoring project, WATCH, has been attracting attention from the likes of the ABA Journal and WSJ Law Blog, as well as the local City Pages.  

Picture 2 The underlying incident involves members of WATCH appearing in court with "red clipboards," which the judge addressed in a rather lengthy statement read from the bench, including allegations that the red clipboards were were a “not very subtle threat to the judge," were  “arguably ex parte communications to judges about pending cases," were "strongly partisan communications of a threatening nature to judges," and the "dynamic of the phenomenon is essentially the same" as "gang members allegedly using gang signs and insignia to influence or intimidate witnesses."    This is according to the Board of Judicial Standards of Minnesota's Complaint.  The judge's Response specifically raises the question of spectator speech: "The effect of spectator conduct and the concomitant effort to influence the proceeding" remains an "open question." 

Thus, while the present controversy is in the context of a judicial ethics proceeding, it raises the important issue of speech acts by members of the public in the courtroom.


[image from WATCH website via]

October 25, 2010 in Courts and Judging, Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 20, 2010

Fed Independence, Fed Capture

Would the Federal Reserve do better to drop its independence and become (once again) more accountable to elected officials?  Timothy Canova takes on this question in the current issue of The American Prospect.  He concludes that a period of Fed accountability during the 1940s, under Chair Marriner Eccles, resulted in far more successful and coordinated monetary policy, independent from the financial sector. 

Canova writes that during this period a more accountable, more transparent, and "socially neutral" Fed worked with the Office of Price Administration to accommodate congressional spending and borrowing priorities (and not, as now, to serve the interests of the financial sector by, e.g., buying up their toxic assets).  As a result, interest rates did not rise, even though federal spending and borrowing were much higher than today (as a percentage of GDP).  Why?  Because, argues Canova, an accountable Fed bought government securities "in any amount and at any price needed to maintain the interest-rate pegs at Treasury."  The net result: A Fed monetary policy that accommodated congressional fiscal policy that effectively dug us out of the Great Depression.

Canova suggests that Fed independence in 1951 opened up space for financial industry capture, a conclusion buttressed by a report last month from Reuters titled Cozying up to Big Investors at Club Fed.  According to the Reuters report, there's a fast-moving revolving door between the Fed and the financial industry and "information flow sometimes goes both ways as Fed officials let their guard down with former colleagues and other close private sector contacts."

Canova concludes his piece with this paragraph:

Few economists ever learn this period in Federal Reserve history, which has been airbrushed from most mainstream texts, including Bernanke's own economics textbook.  To the extent that the Eccles period is discussed at all, it is dismissed as an anomaly--which, sadly, it was.  Today's new normal is a central bank captured by private financial interests that is pursuing an elite agenda of deregulation, fiscal austerity, and bailouts and bonuses for bankers.  But as our nation's own history shows at one of America's finest hours, it doesn't have to be that way.


October 20, 2010 in Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Grants Stay in Don't Ask Don't Tell

The Ninth Circuit has granted the DOJ Motion and issued an Order staying the district court's injunction (and refusal to stay the injunction) of the military's "don't ask don't tell" policy which the judge had declared unconstitutional:

This court has received appellant’s emergency motion to stay the district
court’s October 12, 2010 order pending appeal. The order is stayed temporarily in
order to provide this court with an opportunity to consider fully the issues

Appellee may file an opposition to the motion for a stay pending appeal by
October 25, 2010. To expedite consideration of the motion, no reply shall be filed.


October 20, 2010 in Current Affairs, Due Process (Substantive), First Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Lawyering in the Age of Terror: Panel Discussion

Obama DOJ Appeals Denial of "Don't Ask Don't Tell" Stay to Ninth Circuit

Judge Phillips denial of the DOJ's motion to stay her injunction of the military's "don't ask don't tell" policy in Log Cabin Republicans v. US is being appealed by the DOJ in an Emergency Motion (with memo) to the Ninth Circuit filed today.  District Judge Phillips original declaration of unconstitutionality is here.

The DOJ memo includes rather cursory constitutional arguments, mainly arguing the doctrine regarding granting a stay.  One argument, however, rests upon the Ninth Circuit's opinion in Witt, essentially that the Ninth Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), remanded for the district court to determine whether the statute had been validly applied to the plaintiff, which "makes no sense if the Act is unconstitutional on its face."   Thus the "district court’s decision is thus inconsistent with controlling precedent, as well as with numerous appellate decisions upholding various applications of the statute."  The district court in Witt recently ruled that Witt should be reinstated.

Footnote one on the DOJ Emergency Motion, as in the district court pleadings, seeks to distance the Obama Administration from "Don't Ask, Don't Tell," even as it seeks to have the policy reinstated by the Ninth Circuit:

The Administration does not support § 654 as a matter of policy and strongly
believes that Congress should repeal it. The Department of Justice in this case has
followed its longstanding practice of defending the constitutionality of federal
statutes as long as reasonable arguments can be made in support of their

[UPDATE here]


October 20, 2010 in Current Affairs, Fifth Amendment, First Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 19, 2010

Judge Phillips Denies Motion to Stay Order on "Don't Ask, Don't Tell"

In the latest round of Log Cabin Republicans v. United States, in which Federal District Judge has held the military's policy regarding "homosexuality" in the military unconstitutional, Judge Phillips has issued an Order denying the Government's Request to Stay.

Lt_Dan_Choi_March_on_Washington_2009  Highlights from the Judge's six page Order include an implicit admonishment to the Government attorneys:

Turning to the circumstances present here, the Court first notes Defendants had an opportunity to, but did not, present any of the evidence or arguments now advanced before the injunction issued. When the Court issued its Memorandum Opinion on September 9, 2010, it set out a briefing schedule regarding the form of the injunction. Although Defendants objected to the issuance of the injunction and its scope, they provided no evidence regarding the alleged disruption or need to revise "dozens of policies and regulations," as described in the Declaration of Clifford L. Stanley ("Stanley Declaration") . . . .  Furthermore, to the extent Defendants now submit evidence in the form of the Stanley Declaration, that evidence is conclusory and unpersuasive. It is belied by the uncontroverted evidence presented at trial regarding the Don't Ask, Don't Tell Act's effect on military readiness and unit cohesion.

Order at 2-3.

On the "public interest" prong of the stay analysis, the Judge rejected the Government's argument regarding the status quo:

The Court's analysis of the public interest is not so narrow . . .  the evidence at trial showed that the Don't Ask, Don't Tell Act harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights. The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights. While Defendants' interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.

Order at 6.

For the moment, the military's "don't ask don't tell" policy cannot be enforced.   News outlets, such as SF Chronicle, WaPo, WSJ, USA Today, and CNN report that recruiting offices are refraining from asking about sexual orientation and discharges on the basis of sexuality have ceased.

[UPDATE here]


[image: Lt. Dan Choi advocating for repeal of military policy, via]

October 19, 2010 in Current Affairs, Fifth Amendment, Fundamental Rights, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Chemerinsky: A Conservative Assault on the Constitution

Erwin Chemerinsky released his new book, The Conservative Assault on the Constitution, late last month.  It's a highly accessible, often first-hand account (through his own cases, his own advocacy) of how a rightward shift in the composition of the federal courts has changed the Constitution.

Conservative Assault 

Among the topics Chemerinsky examines: school segregation; executive authority; religion clauses; rights of criminal defendants; and access to the courts.

Chemerinsky identifies separation of church and state as a key issue--one that happens to be in the headlines today, after Republican and Tea Partier Christine O'Donnell seemed to argue in her debate with Chris Coons that nothing in the First Amendment compels such separation.  Here's part of what Chemerinsky has to say about it:

A major concern of the right wing is the separation of church and state.  For decades, it was understood that the First Amendment's prohibition on the establishment of religion meant that there was a wall separating church and state, a wall that kept American governments secular.  But conservatives, especially starting with the Reagan presidency, have sought to eliminate any such notion.  They argue that the government should have broad latitude to aid religion andto include religion in government activities.  With the arrival of Chief Justice Roberts and Justice Alito, there now appear to be five votes for radically changing the law in this area in a manner that conservatives have advocated for decades.


October 19, 2010 in Books, Establishment Clause, Free Exercise Clause, Interpretation, Religion, Scholarship | Permalink | Comments (2) | TrackBack (0)

Monday, October 18, 2010

Seventh Circuit Upholds Moment of Silence in Schools

A three-judge panel of the Seventh Circuit on Friday upheld an Illinois law requiring a moment of silence at the beginning of each school day.  The case, Sherman v. Koch, involved this provision:

Period of Silence.  Sec. 1.  In each public school classroom the teacher in charge shall observe a brief period of silence with participation of all the pupils therein assembled at the opening of every school day.  This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day.

The provision was previously discretionary, but the legislature in 2007 changed the "may" to "shall" (as in "teacher in charge shall observe") over the governor's veto. 

Two of the three judges held that the provision satisfied the three-part Lemon test:

Secular Purpose.  The majority ruled that the legislature enacted the moment of silence in order to help students get settled for the day.  They relied upon the plain language of the provision--the choice that students have under the provision to engage in "silent reflection on the anticipated activities of the day"--in concluding that the legislature's purpose was secular.  

Advance or Inhibit Religion.  The majority ruled that the statute as written neither advanced nor inhibited religion.  The provision as written need not necessarily advance or inhibit religion, and the plaintiffs (in their facial challenge) didn't show that the provision was applied in a way that advanced religion.

Entanglement.  This wasn't at issue in the case.

The majority also concluded that the provision was not unconstitutionally vague.

Judge Williams dissented, taking aim particularly at the legislative purpose:

So while I recognize that we assess a legislature's stated purpose with some deference, let's call a spade a spade--statutes like these are about prayer in schools.  In my view, the legislature's decision to make the Act mandatory represents an effort to introduce religion into Illinois public schools, couched in the "hollow guise" of a mandated period of silence.  While the secular purposes articulated by the state might not be "shams," it seems clear to me that to whatever extent they are genuine, they are secondary to religious ones.  I share the concerns raised by a number of legislators who expressed their doubts about the true purposes behind amending the Act.

Op. at 41-42 (citation omitted).



October 18, 2010 in Establishment Clause, First Amendment, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion | Permalink | Comments (1) | TrackBack (0)

The Persons Case: A Canadian Anniversary

Are women persons?  At one time, the Supreme Court of Canada answered this question in the negative,  but the Privy Council disagreed, thus allowing women to be considered "qualified persons" to run for elective office.

It's the anniversary - - - the 81st - - - of the Privy Council decision.  Our colleagues over at the Canda Supreme Court Blog have a good discussion of Edwards v. A.G. of Canada, the so-called Persons Case, as well as some of the subsequent Canadian gender equality cases.


[image via]

October 18, 2010 in Comparative Constitutionalism, Gender | Permalink | Comments (0) | TrackBack (0)

Sunday, October 17, 2010

Presidential Power and Torture/Surveillance: New Book

Charles Fried, former Solictor General and ConLawProf at Harvard Law  Because-It-Is-Wrong
and his son, Gregory Fried, philosophy department, Suffolk University, have co-authored  Because it is Wrong: Torture, Privacy and Presidential Power in the Age of Terror.   The book promises both a legal and philosophical discussion of torture and survelliance.  From the publisher's description:

Can torture ever be justified? When is eavesdropping acceptable? Should a kidnapper be waterboarded to reveal where his victim has been hidden? Ever since 9/11 there has been an intense debate about the government’s application of torture and the pervasive use of eavesdropping and data mining in order to thwart acts of terrorism. To create this seminal statement on torture and surveillance, Charles Fried and Gregory Fried have measured current controversies against the philosophies of Aristotle, Locke, Kant, and Machiavelli, and against the historic decisions, large and small, of Jefferson, Lincoln, and Pope Sixtus V, among many others. Because It Is Wrong not only discusses the behavior and justifications of Bush government officials but also examines more broadly what should be done when high officials have broken moral and legal norms in an attempt to protect us.

  An excerpt appears in the current Harvard Magazine; there is also an NPR interview with the authors and a discussion with the Gregory Fried on Firedoglake.


October 17, 2010 in Books, Executive Authority, Fifth Amendment, First Amendment, Foreign Affairs, Fourth Amendment, State Secrets | Permalink | Comments (0) | TrackBack (0)

Friday, October 15, 2010

Florida Health Care Decision: Democracy Reinforcing or Judicial Overreaching?

One of the several eye-catching features of this week's decision on health care reform out of the Northern District of Florida is this: The court's homage to publicity as a core value in our representative democracy.  The remarkable statement comes in the section of the opinion dealing with Congress's taxing power--whether Congress can enact the individual mandate under its taxing power, when there's no clear indication from Congress that it intended to enact the mandate under its taxing authority and when Congress seemed to treat the mandate as anything but a tax in the public discourse.  Thus:

In other words, to the extent that the [government is] correct and the penalty was intended to be a tax, it seems likely that the members of Congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.

. . .  In other words, the members of Congress would have reaped a political advantage by calling and treating it as a penalty while the Act was being debated . . . and then reaped a legal advantage by calling it a tax in court once it passed into law.

Op. at 27-28 (emphasis in original).  And then this kicker:

This should not be allowed, and I am not aware of any reported case where it ever has been.

Op. at 28 (my emphasis).  Further explained here:

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an "Alice-in-Wonderland" tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.


This isn't much of the court's 65-page opinion, to be sure.  But consider this: The court addressed the issue of Congress's taxing power (including these passages) first, even before it addressed justiciability--the threshold questions of standing and ripeness.  It seems that the court had something to say about the political branches' duplicity in enacting and defending the mandate.

By one reading, the court is reinforcing democracy, in the spirit of Ely.  More particularly, it's imposing its value of publicity (and related values of transparency and accountability)--deliberative democracy values--upon the political branches.  By demanding that members of Congress maintain consistency in their positions, the court helps educate citizens as to their representatives' true purposes and helps voters hold their representatives' feet to the fire.

But by another reading, the court is dramatically overreaching.  It is imposing consistency and truth demands on Congress, requiring members to articulate their political claims in the same terms that the institution articulates its constitutional claims in court.  While, as the court says, there's no precedent for upholding a tax law that was justified on the basis of a penalty, there seems to be no precedent the other way, either.  The court seems to support its claim based only on normative principles: "This should not be allowed."  This seems like a remarkable lack of deference to a co-equal branch interpreting its own constitutional authority.  

And moreover the court's authority for its methodology seems quite thin: Helwig v. United States (1903).  The court uses Helwig to delve into "the nature of the act" in order to determine what authority Congress relied upon in enacting the mandate.  According to the court, the nature of the mandate includes legislative language, clear congressional intent (as to the authority it is employing), public defenses of the mandate under the Commerce Clause, the method of collection, and Congress's "fail[ure] to identify in the legislation any revenue that would be raised from it . . . ."  According to the court, these all point away from the taxing power as authority for the mandate.

But Helwig didn't deal with "the nature of the act" in order to determine congressional authority in the abstract.  Rather, Helwig, a 1903 case, looked to "the nature of the act" to determine specifically whether Congress intended the act to be a penalty (not authorized) or a tax (authorized).  This penalty-tax dichotomy went away 73 years ago--24 years after Helwig.  The court too easily glosses over the fact that the "Helwig methodology" that it borrows is in fact bound up (perhaps inextricably so) with the debunked penalty-tax dichotomy. 

Whether the court was reinforcing democracy or overextending its judicial authority, it was clearly making a statement.


October 15, 2010 in Congressional Authority, Courts and Judging, Recent Cases, Separation of Powers, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, October 14, 2010

Florida District Judge Rules on Motion to Dismiss Health Care Reform Challenge

In a 65 page opinion issued today, Senior United States District Judge Roger Vinson of the Northern District of Florida has granted in part and denied in part the morion to dismiss the complaint.

The Complaint alleges that the Health Care Reform Act is unconstitutional on various grounds in six counts and the Motion to Dismiss was directed at all the counts.

Here is the bottom line:

(1) the individual mandate and concomitant penalty exceed Congressional authority under the Commerce Clause and violate the Ninth and Tenth Amendments;   NOT DISMISSED

(2) the individual mandate and penalty violate substantive due process under the Fifth Amendment; DISMISSED

(3) if the penalty imposed for failing to comply with the individual mandate is found to be a tax, it is an unconstitutional unapportioned capitation or direct tax in violation of U.S. Const. art. I, § 9, cl. 4, and the Ninth and Tenth Amendments; DISMISSED AS MOOT

(4) the Act coerces and commandeers the states with respect to Medicaid by altering and expanding the program in violation of Article I and the Ninth and Tenth Amendments; NOT DISMISSED

(5) it coerces and commandeers with respect to the health benefit exchanges in violation of Article I and the Ninth and Tenth Amendments; DISMISSED

(6) the employer mandate interferes with the states' sovereignty as large employers and in the performance of government functions in violation of Article I and the Ninth and Tenth Amendments; DISMISSED

 Thus, the case will proceed on the issue of whether the individual mandate is in excess of Congress' commerce power in contravention of the Tenth Amendment and on the issue of whether the Medicaid changes are in excess of Congress' Article I power and in contravention of the Tenth Amendment.


October 14, 2010 in Commerce Clause, Medical Decisions, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)