Sunday, January 16, 2011

Global Constitutionalism CFP

GLOBAL CONSTITUTIONALISM (Glob-Con), a new journal forthcoming in January 2012, has issued a Call for Papers.

Global Constitutionalism – World of Human Rights, Democracy and the Rule of Law (Glob-Con) seeks to promote a deeper understanding on the foundations, limitations and principles of political order and their dynamics over time on a global scale. The journal is interested in work that refers to constitutionalism as a template for empirical, conceptual or normative research on past, present and future political and legal practices, within and beyond the state. 

Constitutionalism is understood here not as the study of a legal document, but as a reference frame for interdisciplinary research with a particular focus. Constitutionalism in a wide sense is associated with the study of the constitutive elements of legal and political practice that are central for the assessment of its legality or legitimacy. Constitutionalism does not presuppose the existence of a written constitution. It merely presupposes the interplay between social and institutional practices in which claims to legality and, therefore, legitimate authority, and democracy are central. Constitutionalism analyses the role of fundamental norms, the type of actors, and the institutions and procedures through which legal and political decisions are made.  In a more narrow modern sense constitutionalism focuses on the basic ideas relating to justice (such as human rights), procedural fairness and participation (e.g. democracy) and the rule of law as they relate to institutional practices and policies in and beyond the state. 

STILL_LIFE The Journal's editorial board includes Mathias Albert, Richard Bellamy, Seyla Benhabib, Armin V. Bogdandy, John Borrows,  Jutta Brunnée, Michael Byers, Carlos Closa, Gordon Christie, Jean L. Cohen, Grainne de Burca, Avigail Eisenberg, Michelle Everson, Ezzedine Choukri Fishere, Rainer Forst, Friedrich Kratochwil, Jürgen Neyer, Konrad Ng, Nicholas G. Onuf, Robert Post, Susan Rose-Ackerman , Kim Rubenstein, Joanne Scott, Rainer, Schmalz-Bruns, Jo Shaw, Quentin Skinner, Boaventura de Sousa Santos, Stephen Toope, Neil Walker, Jeremy Webber, JHH Weiler and Michael Zürn.  The Editors are Mattias Kumm, New York University, School of Law, USA; Anthony F. Lang Jr, University of St. Andrews, Scotland; Miguel Poiares Maduro, European University Institute, Florence, Italy; James Tully, University of Victoria, Canada (consulting editor); and  Antje Wiener, University of Hamburg, Germany.

GlobCon will review articles up to 15,000 words (including notes and bibliography), although authors will be encouraged to reduce their papers to fewer than 12,000 words before publication. Brevity is encouraged and shorter papers will be advantaged in acceptance decisions. Please include a word count with submission, along with an abstract of approximately 200 words which is not repeated from the paper itself. Please include up to five keywords for the article. Authors should submit both a complete version of the manuscript and an anonymous version, stripped of all identifying references to the author(s) that can be sent to reviewers. The citation style of the submission should either be Chicago or Harvard Style. Please do not use endnotes.

Submissions via email to the journal’s managing assistant:

Sassan Gholiagha,


[image: David Teniers, Stilleben, c. 1645-1650 via].

January 16, 2011 in Comparative Constitutionalism, International, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Saturday, January 15, 2011

West Virginia Weekend: When will there be an elected governor?

Picture 2  West Virginia continues to play host to numerous constitutional uncertainties initially sparked by the death of longtime U.S. Senator Robert C. Byrd and the special election of then-Governor Joe Manchin (D) to fill the senatorial vacancy.

This past Tuesday, West Virginia’s highest court, the Supreme Court of Appeals, heard oral arguments on a petition for writ of mandamus that seeks to force state leaders to schedule a special gubernatorial election to finish Manchin’s unexpired term.  Petitioners sued the President of the Senate and Acting Governor Earl Ray Tomblin, Speaker of the House Rick Thompson, and Secretary of State Natalie Tennant.  In addition to the parties, the Court heard from numerous amici, and all parties and amici apart from the current Acting Governor seek a judicially ordered special election this year.  The court must interpret the West Virginia Constitution which provides:

Article VII, section16, "Vacancy in governorship, how filled":

In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.

As we previously discussed, the provision is ambiguous. But with fresh claims of unconstitutional action out of the State Senate over new senate rules, it’s beginning to appear as if most of the regular legislative session will be consumed by constitutional wrangling.  To distance himself from the State Senate where he technically still presides as Senate President, the Acting Governor tacitly endorsed a rule change whereby the State Senate created the new position of Acting Senate President to preside in the absence of the Senate President.  This position was created and ultimately filled by none other than Tomblin’s chief political foe and fellow Democrat, Senator Jeff Kessler.  (Kessler, known as a more labor-friendly Democrat than Tomblin, announced for governor last year.)  During the debate on the rules change, disaffected Democrats joined the small band of Senate Republicans to denounce Kessler’s ascendancy as an unwarranted political coup.  One Republican who called the rules change “unprecedented, unconstitutional, and illegal,”  blamed Kessler’s power play and Tomblin’s later submission as the result of senators who “signed in blood.”  Despite the heated rhetoric, the new rules were adopted and Kessler promptly took control of the State Senate and replaced Tomblin’s committee chairs and caucus leaders with his own supporters.

Arguments labeling the new rules unconstitutional appear to rest with Article VI, Section 24 of the West Virginia Constitution: “The Senate shall choose, from its own body, a president. . . .” Because the State Senate chose Tomblin as Senate President, thus allowing him to remain Acting Governor, critics suggest that creating the additional position of “Acting Senate President” impermissibly treads on the above constitutional mandate that there be only one president.  However, the same section further reads that “[e]ach house shall appoint its own officers, and remove them at pleasure.”  Taken together with the usual reluctance of courts to involve themselves in disputes over the internal rules of a legislative body, the claims of unconstitutionality may go no further than the senate chamber.

An additional constitutional complication has the potential of bringing all lawmaking to a halt.  It has been no secret that the Speaker of the House of Delegates opposes the new senate rules and rise of Kessler, as the Speaker, too, has gubernatorial aspirations.  In recent days, Kessler’s critics have stated that the House of Delegates may not agree to joint rules that would recognize Kessler’s signature for senate-passed bills.  As the argument goes, statue and convention provide that only the Senate President (in this case, the Acting Governor) and not the Acting Senate President may sign such bills before they go on to the House and/or the Governor.  Naturally, the Senate President and Acting Governor hopes to avoid the sticky situation of signing a bill twice, representing both the executive and half of the legislative branches.  Of course, this implicates the separation of powers provision in the state constitution, which we discussed in our earlier post.

Meanwhile, the Acting Governor has proposed a working group to study the idea of creating the separate constitutional office of lieutenant governor.  West Virginia is one of the few states that does not have a lieutenant governor.

Considering the political turmoil caused by ambiguous and archaic constitutional provisions, it might be an understatement to suggest that West Virginia’s Constitution—ratified in 1872—is starting to show its age.


(with J. Zak Ritchie)

January 15, 2011 in Elections and Voting, News, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, January 14, 2011

Davis and Kalb on Anti-International Law Initiatives

Profs. Martha Davis (Northeastern) and Johanna Kalb (Loyola New Orleans) recently released an American Constitution Society Issue Brief, Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives.  We most recently posted on Oklahoma's vote to amend its constitution to ban the use of Sharia law in its courts here.

Davis and Kalb put Oklahoma's ballot initiative in a larger context of federal and state initiatives to ban the use of international or foreign law in U.S. courts and explore the legal and policy issues raised by these initiatives.  Thus they argue that state anti-international law initiatives undermine federalism, interfere with federal protections for American citizens and businesses, and interfere with judicial independence. 

From the Brief:

What the proponents of the amendment fail to acknowledge, however, is that it is impossible to bar judicial "consideration" of any source--particularly when, as described above, international law is relevant to the dispute.  If anything, the amendment forces judges and justices to be less transparent in their reasoning or (if they try to abide by the strict letter of the provision) to reach incorrect decisions.  And as unlikely as these provisions are to promote their intended goal, the consequences of these sorts of measures for Oklahoma and for the nation are severe.  The federal government's capacity to protect American citizens and businesses on the international stage is directly related to its ability to guarantee our nation's reciprocal compliance.  Oklahoma's action threatens our national commitment to honoring our international obligations and undermines the states' ability to work cooperatively with the federal government to implement them.

The Brief is good reminder that there are important legal and policy issues in these initiatives--beyond the First Amendment issues that most often catch our attention.


January 14, 2011 in Courts and Judging, Federalism, Foreign Affairs, International | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 12, 2011

Arizona Passes Funeral Picketing Statute

Prompted by concerns over planned protests at the funerals of victims of Saturday's shootings, Arizona passed emergency legislation.  Arizona SB1101 provides:

13-2930.  Unlawful protest activities; classification; definition




 As the LA Times reports, "The [legislature's] actions were prompted by the Westboro Baptist Church, a publicity-seeking Kansas congregation known for demonstrating at the funerals of U.S. soldiers, arguing that their deaths are retribution by God for America's acceptance of homosexuality. The church announced it would protest [9-year-old shooting victim Christina] Green's funeral, scheduled for Thursday, because the family is Catholic."   Church members also protested at the funeral of Vice-President Joe Biden's mother.

In signing the bill, Arizona Governor Jan Brewer stated that the law will prohibit  "despicable acts of emotional terrorism" and  "assure that the victims of Saturday’s tragic shooting in Tucson will be laid to rest in peace with the full dignity and respect that they deserve."  Brewer's statement also noted that Arizona joined "46 other states in a brief at the United States Supreme Court filed in support of the right of grieving families to seek a civil remedy against those that choose to protest and disrupt the funerals of their loved ones." 

The reference is to Snyder v. Phelps, argued before the United States Supreme Court  in October.   While Snyder v. Phelps involves an action for intentional infliction of emotion distress and does not directly involve a state or municipal regulation of protest activities, the First Amendment is a central defense of the church's protests. 

Wells-c An excellent constitutional analysis of the funeral protest statutes and regulations is Christina Wells' Privacy and Funeral Protests, 87 N.C. L. Rev. 151 (2008), available on ssrn.   Professor Wells (pictured left), of University of Missouri School of Law, argues that funeral protest laws seek to protect a "civility-based privacy right" that is not doctrinally recognized rather than an "intrusion-based privacy right" which has been recognized.  

Certainly Governor Brewer's statements support Wells' argument.

Wells ultimately concludes:

Litigation over the legitimacy of funeral protests, however, has the potential to make very bad law.  The combination of an ill- defined interest, unclear doctrine, and controversial protests has “exercise[d] a kind of hydraulic pressure” that threatens to engulf our understanding of this issue.  It has caused state officials and courts to respond out of emotion rather than with careful analysis of the Court’s precedents.  The resulting law, if it remains, will have a lasting and detrimental impact on our free speech jurisprudence.

Wells' citations of the 41 states having funeral protest laws (fn 37) can now be amended to include Arizona.


January 12, 2011 in Current Affairs, First Amendment, News, Scholarship, Speech, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 11, 2011

Justice Thomas: Denial Nullifies Recent Commerce Clause Jurisprudence

Justice Thomas dissented yesterday (joined by Justice Scalia) in a denial of review of a case that the Court might have used to clarify the scope of the Commerce Clause.  Instead, Justice Thomas argued, the Court in denying review "tacitly accepts the nullification of our recent Commerce Clause jurisprudence."  Op. at 1.

While Justice Thomas overstates the significance of the denial of review, his dissent may give us some clues about the Court's most recent thinking on the Commerce Clause.

The case, Alderman v. U.S., involves 18 U.S.C. Sec. 931(a), the federal statute that outlaws body armor for anyone who has been convicted of a felony crime of violence and where the body armor was sold or offered for sale in interstate commerce.  Alderman was charged with violating the statute and entered a conditional plea.  He then appealed, arguing that the statute exceeded Congress's Commerce Clause authority.

A divided three-judge panel of the Ninth Circuit rejected the argument and upheld the statute.  The panel looked to the Court's 1977 ruling in Scarborough v. United States, a case involving a federal prohibition on possession of firearms by felons.  While Scarborough involved a different federal statute, it contained a similar "jurisdictional element"--a requirement that the regulated thing (there a firearm, here body armor) traveled in interstate commerce.  Thus Scarborough "considered whether proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between possession of the firearm and commerce."  Op. at 7 (quoting United States v. Cortes (9th Cir. 2002)).  Scarborough did not directly address the constitutional question, but the Ninth Circuit ruled that it "implicitly assumed the constitutionality of the 'in commerce' requirement."  Op. at 7.  Thus, the Ninth Circuit ruled, Scarborough holds that a statute's jurisdictional element alone can put a statute within congressional power "[t]o regulate Commerce . . . among the several states . . . ."  Art. I, Sec. 8, the Commerce Clause.  Just as the jurisdictional element in Scarborough kept the federal firearm restriction within Congress's Commerce Clause authority, so too here the jurisdictional element keeps the federal body armor restriction within Congress's Commerce Clause authority.

The Ninth Circuit denied en banc review, and yesterday the Supreme Court denied review.

Justice Thomas (joined by Justice Scalia in all but a footnote referring to some of Justice Thomas's other writings on the scope of the Commerce Clause) wrote that the denial "nullified" more recent Commerce Clause jurisprudence, United States v. Lopez and United States v. Morrison.  Those cases held that Congress can regulate activities that have a substantial effect on interstate commerce, as measured by four considerations: whether the activity is commercial, or has anything to do with commerce; whether the statute contains a jurisdictional element; whether the legislative history contains any findings as to the effect on interstate commerce; and whether the link between the activity and a substantial effect on interstate commerce is too attenuated. 

Justice Thomas argues that the denial amounts to privileging the jurisdictional element above all else and ignoring the statute's encroachment on traditional state police powers.  According to Justice Thomas, this approach knows no bounds and would allow Congress to regulate everything from stolen candy transported across state lines to french fries purchased in another state.

Justice Thomas overstates the denial's impact on Lopez and Morrison.  A denial of review does not change the Supreme Court's jurisprudence, even implicitly.  And there may be any number of non-merits reasons why the Court denied review.

On the other hand, the Court's denial and Justice Thomas's dissent may tell us something about the Court's thinking on the Commerce Clause.  For one, the denial leaves the Ninth Circuit ruling in place, along with similar rulings in other circuits.  With no circuit going the the other way (rejecting congressional authority), the Ninth Circuit is now just the latest in a growing line of rulings that a jurisdictional element alone can authorize congressional regulation under the Commerce Clause.  This is significant: If the Court wanted to reverse this line and rein in the lower courts, as Justice Thomas argued, this seemed like the perfect case. 

Thus the Court's denial could mean that it doesn't want to reverse this line.  And that's plausible: The Ninth Circuit's approach isn't necessarily inconsistent with Lopez or Morrison; it's really a special case.  Neither Lopez nor Morrison gave any indication how the Court would weigh the four considerations if there were a clear and well defined jurisdictional element limiting the statute to activities sufficiently linked to interstate commerce.  Such an element--as here, as in Scarborough--may just be enough for the Court. 

For another, Justice Thomas was joined only by Justice Scalia.  That's not to say that others don't agree with the analysis--perhaps they do.  But none felt strongly enough about it to sign on.

Still, we can't read too much, if anything, from a dissent to the Court's denial of review.  Maybe the Court is inclined to take a look at this question, but this was just the wrong case at the wrong time.  In any event, the denial and Justice Thomas's dissent give us no clues as to how the Court might rule on the Commerce Clause issue of the day--the individual health insurance mandate.  The question there--whether the Commerce Clause authorizes Congress to require individuals to purchase insurance--is just too different from the question in Alderman.


January 11, 2011 in Commerce Clause, Congressional Authority, News, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Constitution Worship: Jill Lepore in The New Yorker

Worth reading is a commentary by critic Jill Lepore in the January 17 issue of The New Yorker entitled The Commandments: the Constitution and its worshippers. Contributor_jillleporephoto_p233_crop

Lepore (pictured right) puts the current highlighting of the Constitution, including its (edited) reading in the House of Representatives, in historical and critical perspective.  Lepore writes:


If you haven’t read the Constitution lately, do. Chances are you’ll find that it doesn’t exactly explain itself. Consider Article III, Section 3: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” This is simply put—hats off to the committee of style—but what does it mean? A legal education helps. Lawyers won’t stumble over “attainder,” even if the rest of us will. Part of the problem might appear to be the distance between our locution and theirs. “Corruption of Blood”? The document’s learnedness and the changing meaning of words isn’t the whole problem, though, because the charge that the Constitution is too difficult for ordinary people to understand—not because of its vocabulary but because of the complexity of its ideas—was brought nearly the minute it was made public. Anti-Federalists charged that the Constitution was so difficult to read that it amounted to a conspiracy against the understanding of a plain man, that it was willfully incomprehensible. “The constitution of a wise and free people, ought to be as evident to simple reason, as the letters of our alphabet,” an Anti-Federalist wrote. “A constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man,” Patrick Henry argued. He believed that what was drafted in Philadelphia was “of such an intricate and complicated nature, that no man on this earth can know its real operation.”


This could be the basis for a great first assignment for the new semester's Constitutional Law class, in law school or as an undergraduate offering, as a way to open a discussion of the Constitutional text and its interpretations.



January 11, 2011 in Current Affairs, Interpretation, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, January 10, 2011

Judge John Roll

Judge John McCarthy Roll, Chief Judge of the United States District of Arizona, was killed by gunfire Saturday.   Appointed by President Bush in 1991, Roll's Federal Judicial Center profile is here and his judgepedia profile is here.  Extensive coverage of Roll's career and the circumstances of his death is available from The Wall Street Journal here.

The Press Release from the United States District Court for the District of Arizona provides:

January 8, 2011 -- The U.S. District Court for the District of Arizona has suffered a grievous loss today with the untimely death of Chief Judge John M. Roll, who was shot and killed when a gunman opened fire on a crowd at an event hosted by Congresswoman Gabrielle Giffords in Tucson, Arizona. Judge Roll was appointed to the federal bench in 1991, and served as chief judge of the district since 2006. The devoted husband, father of three, grandfather of five, and friend to all who knew him, will be greatly missed by his family and community. He was a warm, compassionate judge and inspirational leader in what is one of the busiest districts in the country. His death will leave a significant void in the District of Arizona and the entire federal judiciary, and we are all deeply saddened.

The court's website also features an entry for USA v. Jared Lee Loughner, with a copy of the criminal complaint, count 3 of which concerns Judge Roll, as an employee of the United States who was "engaged in performance of his official duties."


January 10, 2011 in Courts and Judging, Criminal Procedure, Current Affairs, News | Permalink | Comments (1) | TrackBack (0)

Sunday, January 9, 2011

President Obama's Signing Statement on Guantanamo Restrictions

President Obama on Friday issued a signing statement upon signing HR 6523, the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, taking issue with the restrictions on his authority to transfer Guantanamo detainees.  We most recently posted on this here.

The statement claims that the restrictions interfere with the President's Article II authority, but stop short of calling them unconstitutional.  The statement ends with a line that the administration will work with Congress to repeal those provisions--an unlikely prospect in the new Congress--underscoring the relatively passive approach here.

This statement is in stark contrast to earlier signing statements raising constitutional objections.  President Obama has previously declared some portions of legislation unconstitutional and flatly declined to enforce them.  (President Obama wasn't the first to do this, or even the most aggressive.  President George W. Bush issued a number of such statements, drawing heavy criticism for his unilateral, and questionable, determinations that some provisions were unconstitutional and for his resulting refusal to enforce them.  President Obama moved to reform the practice soon into his administration.)

For comparison, consider the text of the signing statement issued on Friday:

Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met.  Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests.  The prosecution of terrorists in Federal court is a powerful tool in our effort to protect the Nation and must be among the options avaiable to us.  Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.

With respect ot section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interferes with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict.  We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries.  The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities.  Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers.  Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act becuase of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Compare that relatively timid statement with the President's much more aggressive signing statement on signing the Omnibus Appropriations Act of 2009; here's just a taste:

The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

[As to restrictions on negotiations in foreign affairs] . . . I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

[As to restrictions on UN Peacekeeping Missions] . . . [t]his provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority.  Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

[As to restrictions on pay of federal employees who interfere with communications between federal employees and Congress] . . . I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

Why the difference in the two signing statements? 

  • One possiblity is that the Gutanamo restrictions touch a political nerve that the President would rather not aggrevate by declaring them outright unconstitutional and declining to enforce them.  In other words, the administration judged that the constitutionally correct position (that the restrictions are unconstitutional) did not sufficiently outweigh the likely political backlash of fully endorsing and actualizing that position.  This seems the most likely reason for the different tone on Friday.  If true, it means that the politics drove the constitutional practice and, as the President wrote, set a very dangerous constitutional precedent.  And because practice and precedent are important tools for constitutional interpretation (especially over Article II authority), the politics in some important ways changed the constitutional law.  The President's language about the interference with Article II authority and setting a dangerous precedent do little, if anything, to preserve the constitutional objection the next time Congress seeks to interfere with executive authority in this way.  Rather the restrictions set the precedent and practice: the restrictions in the legislation, not the timid signing statement, are what future congresses and presidents will look to in judging presidential authority in like situations.
  • Another possibility is that the administration has come around to view the more aggressive variety of signing statements--those that declare a provision unconstitutional and decline to enforce it--are themselves undesirable (or even unconstitutional).  This seems consistent with the administration's early reevaluation of signing statements, but it seems inconsistent with its own practice (as above).  If this were the reason, we might have expected some additional signal from the administration that it's fundamentally changing its position on signing statements--even more than its earlier statements.
  • A final possibility is that the administration will act as though this latest signing statement read the same way that the more aggressive style of signing statements read--that is, the administration will decline to enforce these provisions.  There's a small hint that this may be the direction the administration intends to move: the phrase "will seek to mitigate their effects" in the last line.  But it also seems utterly inconsistent with the administration's earlier position on signing statements and its more general commitment to transparency.  This would also result in especially grave political fallout once President Obama started closing Guantanamo and transferring detainees in violation of the restrictions: not only would the President have ignored the restrictions; he also would have publicly misled about his intentions in the signing statement.  This seems like the least likely reason for the difference in this most recent signing statement.

If ever there were a time for a signing statement with a strong constitutional objection, this would have been it.  (A veto, with a constitutional message, would have been much better.  But the timing and the politics wouldn't allow it here.)  Instead, the weaker signing statement and enforcement of the restrictions (even "mitigated") sets the precedent the next time Congress wants to interfere with core Article II powers of prosecution and foreign affairs.




January 9, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, International, Interpretation, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, January 7, 2011

Challenge to Foreign National Campaign Contributions To Go Forward

Judge Ricardo Urbina (D.D.C.) today granted an application by two foreign nationals, plaintiffs in Bluman v. FEC, for a three-judge panel under the Bipartisan Campaign Reform Act of 2002 (BCRA) to challenge the Act's restriction on campaign contributions and expenditures by foreign nationals.

Section 303 of the BCRA makes it unlawful for a foreign national to make

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication[.]

2 U.S.C. Sec. 441e(a)(1).  The provision replaces the former, similar ban in the Federal Election Campaign Act (FECA).

Under the BCRA, a constitutional challenge against any section of the BCRA must go before a three-judge court.  That's just what plaintiffs applied for here.

But the FEC balked, arguing under McConnell v. FEC that a three-judge panel lacks authority to hear a constitutional challenge to Section 303 of the BCRA, because the activities it prohibits were already illegal under FECA.  (The FEC thus effectively challenged standing: plaintiffs lacked standing, they claimed, because any ruling by the three-judge panel that Section 303 was unconstitutional wouldn't redress their harm.  After all, they claimed, even if Section 303 were unconstitutional, FECA previously prohibited the same activity.  The ruling would only affect Section 303, not FECA, and the activity would therefore still be prohibited under FECA.  (FECA requires constitutional challenges to go before an en banc circuit court.))

Judge Urbina rejected the argument.  He ruled that Section 303 of the BCRA replaced the similar prohibition in the FECA, and therefore a ruling that Section 303 was unconstitutional would redress the plaintiffs' harms.  "Unlike McConnell, if a three-judge court were to strike down Section 303 as unconstitutional, then no other law (or at least none which the defendant has identified) would prohibit the plaintiffs from engaging in their desired conduct."  Op. at 5.

(Judge Urbina rejected the plaintiffs' request for a three-judge panel for their challenge to the FEC regulations implementing Section 303.  The BCRA authorizes the three-judge panel for constitutional challenges to the BCRA.  But here the regs are different than the BCRA.)

The ruling allows the plaintiffs' case challenging Section 303 to move forward before a three-judge panel of the district court. 


January 7, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, January 6, 2011

Reading of the Constitution in the U.S. House of Representatives

Just in case you missed it today:



January 6, 2011 in News | Permalink | Comments (0) | TrackBack (0)

State Lawmakers Take on Birthright Citizenship

A group of state lawmakers yesterday announced a coordinated multi-state initiative to tee up the Fourteenth Amendment Citizenship Clause for judicial review.  The NYT reports here; LAT here; NLJ here.

The Citizenship Clause in Section 1 of the Fourteenth Amendment (1868) reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The lawmakers, along with a group called State Legislators for Legal Immigration, proposed a model bill that would zero in on the phrase "subject to the jurisdiction thereof" in defining state citizenship.  They say that phrase means that at least one parent of a child born within the United States must owe no allegiance to any foreign sovereignty--that is, that they must be a U.S. citizen or national, a permanent "legal" immigrant, or a person without citizenship in another country, or that the child has no citizenship or nationality in another country.  (Model language is here.)

Proponents hope that the model statute would draw a judicial challenge, thus presenting the phrase for review by the courts, ultimately the Supreme Court.

They seem pretty confident in their interpretation, but there's good evidence against them.  Start with the congressional debates over the Fourteenth Amendment--a debate eerily similar to that today.  The debate in the 39th Congress focused on Chinese immigrants in California and Gypsies in Pennsylvania (among other groups), with opponents of birthright citizenship claiming that Chinese and Gypsies would take over those states.  Opponents of birthright citizenship in the Amendment (obviously) lost that debate in the 39th Congress.

Even before the Fourteenth Amendment--and before the Constitution had anything to say about birthright citizenship--the New York Court of Chancery ruled in Lynch v. Clarke in 1844 that a child of "alien parents, during their temporary sojourn in [New York]," was a citizen.  The court ruled that citizenship was a national, not state, responsibility; and the U.S. Constitution being silent on the matter, the common law rule that a child born "within the king's allegiance, became subjects, whatever were the situation of their parents" governed.  Thus: "It is therefore the law of the United States, that children born here, are citizens, without any regard to the political condition or allegiance of their parents."  (The Supreme Court seemed to assume, but did not squarely rule, in 1804 in Murray v. The Charming Betsy that those born within the United States were citizens.) The Citizenship Clause of the Fourteenth Amendment would seem only to affirm and constitutionalize (not qualify or reverse) this holding.

Post-Fourteenth Amendment, the Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that a child born to Chinese aliens was a U.S. citizen under the Citizenship Clause.  The parents were "subjects of the Emperor of China," but "domiciled residents of the United States."  After an exhaustive review of birthright citizenship, the Court wrote,

the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.  [Ed: The Court carved out this exception in Elk v. Wilkins (1884), based upon the unique place that Native Americans had in the Constitution.]  The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.  Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.  His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains wtihin our territory, is yet . . . "strong enough to make a natural subject . . . ."

Opponents of birthright citizenship distinguish and criticize Wong Kim Ark.  (Check out this 2006 piece at the Heritage Foundation for a flavor.)

For an excellent overview, putting this all in a larger context, but focusing on congressional legislation and proposed constitutional amendments from the 111th Congress, check out this Congressional Research Service report, Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents.


January 6, 2011 in Courts and Judging, Federalism, Fourteenth Amendment, Fundamental Rights, News, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 4, 2011

Do Prop 8 Proponents Have Standing to Appeal?

A three-judge panel of the Ninth Circuit today asked the California Supreme Court whether proponents of Proposition 8, the same-sex marraige ban, have standing to appeal the district court's ruling that Prop 8 is unconstitutional.  (The panel also upheld the district court's denial of a motion to intervene in the case by a County, its Board, and its Deputy Clerk.  We covered that ruling here.)

Plaintiffs in the case did not originally include Prop 8 proponents as defendants.  But the district court permitted them to intervene and file an answer.  The district court then ruled that Prop 8 was unconstitutional and enjoined its enforcement by the named defendants.  The proponents appealed, but the named defendants did not.  The Ninth Circuit asked the parties to brief the question whether proponents had standing to appeal, and, after briefing, now ask the California Supreme Court whether California law confers standing to appeal upon proponents of a proposition.  Here's the certified question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Op. at 2.

The Ninth Circuit is understandably gun shy on the question: they've false-started before.  The prior case involved Arizona's "English only" constitutional amendment (by ballot initiative).  As in this case, the district court in that case ruled the amendment unconstitutional, and state officials declined to appeal.  Supporters of the measure appealed, however, and the Ninth Circuit ruled that they had standing.  The Supreme Court in Arizonans for Official English v. Arizona "expressed grave doubts whether [ballot initiative supporters] have standing under Article III to pursue appellate review," but vacated on other grounds. 

Back to the Prop 8 case, the Ninth Circuit wrote in its certification to the California Supreme Court,

Having been granted intervention in the district court is not enough to establish standing to appeal; "an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III." . . .  States, however, "ha[ve] the power to create new interests, the invasion of which may confer standing."

Op. at 7-8 (quoting Diamond v. Charles). 

Thus ruling under Arizonans for Official English and Diamond v. Charles that the proponents' Article III interest could be established under state law--but also finding no definitive state authority that said proponents possessed a particularized interest--the Ninth Circuit certified the question to the California Supreme Court.

If proponents don't have a state-law interest (and therefore lack standing to appeal), the Ninth Circuit may lack jurisdiction to hear the case.  The district court ruled Prop 8 unconstitutional, and nobody with standing has yet come forward to appeal.  The Ninth Circuit stayed the district court injunction, and the parties predictably disagree about the legal status of Prop 8 if the Ninth Circuit ultimately has no jurisdiction to hear the appeal.


January 4, 2011 in Cases and Case Materials, Courts and Judging, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

County, Board, Deputy Clerk Lack Standing to Intervene in Prop 8 Appeal

A three-judge panel of the Ninth Circuit ruled today that the County of Imperial, its Board of Supervisors, and a Deputy Clerk for the County lacked standing to appeal on the merits the district court order holding Proposition 8, the same-sex marriage ban, to be unconstitutional.  We most recently posted on the case here; our post on the district court ruling is here

The ruling leaves open whether the Ninth Circuit can hear the appeal on the merits: It's not clear that there is anyone with standing who will defend Prop. 8 on appeal.  (The Ninth Circuit panel asked the California Supreme Court in a separate Order Certifying a Question whether Prop. 8 proponents have standing to appeal.  We'll cover that in a separate post.)

The panel ruled today that the County, Board, and Deputy Clerk did not satisfy the standards for intervention as of right or permissive intervention.

As to intervention as of right under Federal Rule of Civil Procedure 24(a)(2) (requiring a district court to permit intervention for anyone who, among other things, "claims an interest relating to the property or transaction that is the subject of the action"), the court ruled that none had a "significant protectable interest" at stake.  The Deputy Clerk had no interest, because she did not have the powers and duties of the Clerk's office.  (Those belonged to the Clerk, not the Deputy Clerk.)  Her claimed interest in the case, its effect on the Clerk's performance of her legal duties, was therefore not the Deputy Clerk's interest; it was the Clerk's interest.  The Board had no interest, because it "plays no role with regard to marriage."  Op. at 10.  (Marriage is a state concern, not a "municipal affair."  Id.)  The County's "direct financial interest" was waived, Op. at 11, because the County failed to raise it at the district court.

As to permissive intervention under Federal Rule of Civil Procedure 24(b)(1)(B) (permitting, but not requiring, a district court to grant intervention by a litigant who has "a claim or defense that shares with the main action a common question of law or fact"), the Ninth Circuit deferred to the district court's judgment denying intervention.  The Ninth Circuit ruled that the County, the Board, and the Deputy Clerk would introduce no new evidence or arguments into the case, and that their "only expressed interest in the case--ensuring appellate review of the constitutional claims--was one that they could not fulfill because they would lack standing to appeal [the district court's judgment]."  Op. at 13.  (The court ruled that the movants' particular interest here would require them to have Article III standing to appeal the merits of the constitutional holding below.  That they did not have: the court ruled on intervention as of right that they lacked any significant protectable interest; and they therefore lacked Article III standing.)

Judge Reinhardt issued a separate concurrence, explaining the significance of the ruling and putting it in a larger context.  Judge Reinhardt concurrence is well worth a read for its plain-spoken explanation of the court's ruling today.  He also takes issue with the trend toward technicalization and proceduralism of federal litigation (with the resulting limits on access to the federal courts) and the way the plaintiffs litigated the case.  (He argues that the plaintiffs could have avoided the whole standing mess by suing a broader set of defendants.)  He also questions why the movants couldn't find a Clerk, not a Deputy Clerk, to move to intervene; the result may have been different.

(Judge Reinhardt also issued his more lengthy explanation of why he declined to recuse himself.  Recall that Prop. 8 proponent moved for recusal based on Judge Reinhardt's spouse's views and positions as ED of the ACLU/SC.  Judge Reinhardt explained that his "wife's views, public or private, as to any issue that may come before this court, constitutional or otherwise, are of no consequence.  She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa).  I share that view . . . ."  Op. at 3.)


January 4, 2011 in Cases and Case Materials, Courts and Judging, Equal Protection, Fourteenth Amendment, Fundamental Rights, Gender, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Standing | Permalink | Comments (0) | TrackBack (0)

Filibuster Reform

As the 112th Congress prepares to convene tomorrow, there's talk once again of filibuster reform in the Senate. 

In recent practice, the Senate rules allow a single Senator to force a 60-vote majority to end debate on any matter.  Senate Rule XXII reads:

at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer . . . shall . . . submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?"  And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative votes shall be two-thirds of the Senators present and voting--then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Democrats argue that Republicans have abused the rule and held up all manner of Senate business, without transparency and without cost to the objecting Senator.  Indeed, filibusters have skyrocketed in the last two Congresses, at least temporarily stopping Senate action on the matter at issue and slowing Senate action on all other business.  Professor Josh Chavetz (Cornell) in his recently posted piece, The Unconstitutionality of the Filibuster, goes so far as to argue that the practice--allowing a single Senator to force a 60-vote majority to end debate on anything--violates the structure of the Constitution.

Senator Jeff Merkley gave a sense of reform proposals on the table in his November 16 Thoughts on the Reform of Senate Procedures.  Senator Merkley's sensible and practical Thoughts retain the filibuster, but limit its use, require transparency in its use, and impose costs (in time and effort) on those who filibuster. 

The problem is that Senate Rule XXII itself requires a two-thirds majority vote to change the Senate rules (including the cloture rule).  (The late Senator Kennedy called this double-bind to the cloture rule a "Catch-XXII.")

The work-around is simple, though, and widely accepted.  As we explained here, the "constitutional option" would allow a change to Senate rules on the first day of a new Session.  Here's how it works.  Article I, Section 5 of the Constitution allows each House to determine its own rules (by a simple majority).  (Senate Rule V, which says that the Senate rules--including Rule XXII--"shall continue from one Congress to the next Congress unless they are changed as provided in these rules" (and thus taking us back to where we started) itself violates Article I, Section 5 in that it binds the new Senate to old rules and prevents the new Senate from determining its own rules.)  Thus at the beginning of each Congress--before the Senate has had a change to (re)enact its rules--general parliamentary law, including the simple majority rule, applies.  Under general parliamentary law, the new Senate can enact its own new rules by a simple majority.



January 4, 2011 in Congressional Authority, News | Permalink | Comments (1) | TrackBack (0)

Monday, January 3, 2011

White House Reaction to Congressional Limits on G-mo Closing

ProPublica's Dafna Linzer wrote today on the Huffington Post that the Obama administration is considering how to react to congressional limits on transferring Guantanamo detainees to the United States (even for Article III trials) and on closing the detention facility.  We posted on the limits here.

Among the options under consideration: a signing statement registering the administration's opinion that those restrictions are unconstitutional.

The Obama administration early on signalled its aversion to signing statements (but then issued its first signing statement just days later).

Congressional restrictions on transferring detainees and closing the facility seem to call out for a constitutional objection by the White House.  The only question is this:  Is a signing statement appropriate here (or ever)? 

Under the administration's standards, it probably is.  President Obama issued a memo early in his presidency that he would "act with caution and restraint, based only on interpretations of the Constitution that are well-founded."  Congressional restrictions here intrude into areas reserved to the executive (prosecuting the law) and violate separation of powers, satisfying this standard.


January 3, 2011 in Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)