Wednesday, February 9, 2011
Virginia AG Kenneth Cuccinelli yesterday filed a Petition for a Writ of Certiorari Before Judgment in the Supreme Court, seeking review of Judge Hudon's (E.D. Va.) ruling in Virginia v. Sebelius in December, holding the individual health insurance mandate in the Patient Protection and Affordable Care Act unconstitutional.
AG Cuccinelli filed pursuant to Supreme Court Rule 11, which allows a petition for writ of cert. in extraordinary cases:
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.
Here are AG Cuccinelli's questions presented:
1. Whether the district court erred in holding that the Commonwealth has standing to challenge the minimum coverage provision (as stated by the Secretary).
2. Whether the district court erred in holding that the minimum coverage provision is not a valid exercise of Congress's Article I powers (as stated by the Secretary).
3. Whether the district court erred when it held that the unconstitutional mandate and penalty of the Patient Protection and Affordable Care Act of 2010 . . . is severable from all the remaining provisions of the law.
4. Whether the district court erred when it denied injunctive relief.
The Justice Department has indicated that it opposes bypassing the appeals courts. (Twenty-eight governors sent a letter to President Obama today asking him to support an expedited appeal to the Supreme Court.)
Tuesday, February 8, 2011
There is continuing discussion of the relevance of the Constitution of the Arab Republic of Egypt to the present situation on Egypt, with banners such as the one pictured left (via) which reads "leave" in Arabic.
In our last post, we quoted Article 76, which governs the election of President and recommended an article by Kristen Stilt. Check out the comments to the post.
Another helpful discussion is by Nathan Brown, who spoke on NPR this morning: It's four and a half minutes worth listening to here Brown's post over at Carnegie Endowment for International Peace outlines the "three choices" if Egypt's President Muburak were to resign:
1. Follow the constitution and wind up with the regime handpicking a successor after 60 days for a full presidential term. That hardly resolves anything. The procedures are written in such a way that Sulayman could be nominated, but it would break the promise both Mubarak and Sulayman made for constitutional reform. This procedure would not even put lipstick on the regime's current face.
2. Follow the constitution with the promise that the new president (presumably Sulayman) pick up the constitutional reform process. That puts the crisis on hold for 60 days and offers the opposition promises for reform that might be redeemed later -- and might not be. This would put lipstick on, but not much else, particularly given the toxic lack of trust in the regime's promises.
3. Suspend the constitution and negotiate a transition between the current regime leaders and the opposition. And then we are in regime change territory, operating outside the existing rules. If the process were successful, it would not produce merely a reconfigured regime but would be moving toward a different kind of political system. The opposition has made clear that it wants such an outcome, but it has not sketched out any vision in detail. The negotiations over transition would be difficult and confusing, demanding that the opposition transform its negative platform (Mubarak must leave) into a positive one.
Brown updates these choices with a fourth "ingenious" solution: deputizing the current Vice-President, Omar Sulayman to serve as President. For others, such as Jane Mayer in the New Yorker, Omar [Sulayman] Suleiman's involvement as the head of Egypt's intelligence service and involvement with the US in extraordinary rendition casts doubt on his acceptability.
Additionally, Clark Lombardi has been posting some thoughtful analysis over at Comparative Constitutions, including tackling the large question about the relevance of "a constitution" during regime change. For an indepth and scholarly consideration, Tamir Moustafa's The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge University Press, 2007) comes highly recommended by ConLawProf Miguel Schor.
Monday, February 7, 2011
Official referendum results released today in Khartoum confirmed earlier predictions that Southern Sudanese voted overwhelmingly for secession--99 percent in favor, according to the official results. Sudan's President Omar al-Bashir accepted the results in a ceremony also attended by Southern Sudan's President Salva Kiir. Al Jazeera reports here. The White House issued a statement that the United States would recognize Southern Sudan "as a sovereign, independent state in July 2011."
Southern Sudan has been operating under an interim constitution since 2005, the year of the comprehensive peace agreement. President Kiir recently formed a constitutional review committee chaired by Minister of Legal Affairs and Constitutional Development John Luk Jok to review that constitution as the region moves toward full independence.
The Campbell Law Review will host its 2011 symposium on May 18, 2011. Here's the announcement:
The Campbell Law Review presents its annual 2011 symposium:
Liberalism, Constitutionalism, and Christianity: Perspectives on the Influence of Christianity on Classical Liberal Legal Thought
The conference will consider the relationship between liberalism and Christianity and their influence on American constitutionalism. The conference will investigate the extent to which classical liberalism and Christianity influenced the formulation of the Constitution and the thought of the Founding era. It will focus on the importance of the foundational Christian commitments to characteristic notions of religious toleration and freedom of association as they are borne out in the thought of the Founders and the founding era.
The conference will be hosted on May 18, 2011, at Campbell University School of Law, located in Raleigh, North Carolina. The following presenters will be featured:
Professor Robert F. Cochran, Director of the Herbert and Elinor Nootbaar Institute of Law, Religion, and Ethics and the Louis D. Brandeis Professor of Law, Pepperdine University School of Law, Professor John M. Breen, Loyola University Chicago School of Law; Professor Bruce P. Frohnen, Ohio Northern University Pettit College of Law; Professor Michael Scaperlanda, University of Oklahoma College of Law; Professor Barry Shain, Colgate University; Professor John Inazu, Visiting Professor, Duke University School of Law; Professor Anthony Baker, Visiting Professor, John Marshall Law School; Professor C. Scott Pryor, Visiting Professor, Campbell University School of Law; Dean Donald R. McConnell, Trinity Law School.
All are invited. Attendees may find more details and register here.
Sunday, February 6, 2011
Some will be watching today's "Superbowl" in the Cowboys Stadium as a sports event, but for constitutional law fans, the 1.3 (or so) billion dollar Stadium is an example of the Fifth Amendment's Taking Clause in action. First, there is the taking of private property for public use. In the case of the Cowboys Stadium in Arlington, Texas, the state and local government used eminent domain powers in residential areas. Second, there is public financing used to support a privately owned by "public use" project, reportedly 3.25 million for the Cowboys Stadium. In 1999, Professor Dale Rubin named the process a "constitutional disgrace" in his law review article on public aid to professional sports teams.
More recent articles, many authored by students, explore the Takings Clause problems in building and maintaining a sports stadium. Two excellent examples are Erin A. Stanton's, Home Team Advantage?: The Taking Of Private Property For Sports Stadiums, 9 N.Y. City L. Rev. 93 (2005), and Peter Asselin's Supporting The Home Team ... In More Ways Than One: An Analysis Of The Public Financing of Philadelphia's New Sports Stadia, 3 Rutgers J. L. & Urb. Pol'y 389 (2006).
[image: Cowboys Stadium via]
Abstinence sexual education is again being debated.
Bristol Palin's planned appearance at the University of Washington in St. Louis on February 7 "to speak on abstinence as part of Washington University’s student Sexual Responsibility Week" has been canceled because "of the growing controversy among undergraduates over the decision to pay for her talk with student-generated funds." Moreover, Senator Orrin Hatch (R-UT) successfully added an amendment to the Patient Protection and Affordable Care Act (eventually signed into law by the president) that restored a $50 million annual federal outlay to states (through 2014) for abstinence sex education. The provisions appear at sections 2953 et seq., entitled "Personal responsibility education."
John E. Taylor's lively and readable work, Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education, 18 Wm. & Mary Bill Rts. J. 1053 (2010), seeks to chart a middle course between what he terms the "sexual right" and the "sexual left." Taylor situates his analysis in the Establishment Clause, even as he rejects the formulation that the sex education debate is a clash between science and (religious) values. His intriguing thought experiment involves dental education and requires readers to examine our own flossing habits!
In the article, Taylor, Associate Dean for Academic Affairs and Professor of Law at the West Virginia University College of Law, then turns to three further claims, noting that “the value-laden character of sex education generates interesting conclusions about the proper roles of the federal government, the courts, and the public schools in sex education policy.” Id. at 1095. First, Taylor claims that the federal government “should not attempt to dictate how state and local governments approach sex education.” Id. at 1056. Second, Taylor argues that “courts should be reluctant to use the Establishment Clause to settle sex education controversies." Id. Finally, Taylor draws a broader conclusion that “we should recognize some limits on the degree to which the public schools can be enlisted as soldiers in the culture wars.” Id.
In the end, Taylor
cast[s] doubt on whether the federal government or the courts have useful roles to play in resolving cultural struggles about sex education. . . . These government institutions should allow space for the value conflicts at stake in sex education to work themselves out in a decentralized fashion. The core of truth in constitutional critiques of abstinence only-until-marriage sex education is the recognition that it involves the use of the public schools to promote a highly contested set of cultural norms. Legislators and school officials have duties to refrain from using the public schools as tools in the cultural struggle between red and blue family values. In practical terms, they should seek to forge policies that appeal to the “sexual middle” by stressing abstinence for school-age children while also providing basic information about contraception. These obligations have roots in constitutional values, but do not give rise to judicially enforceable constitutional rights.
Id. at 1095.
Despite Taylor's plea for the "sexual middle" to prevail, it seems likely that the value conflicts will continue and litigation will have a constitutional cast.
with J. Zak Ritchie
February 6, 2011 in Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Religion, Reproductive Rights, Scholarship, Sexuality | Permalink | Comments (2) | TrackBack (0)
Saturday, February 5, 2011
"I like constitutional law because the anchor of my race is grounded on the constitution. It is the certificate of our liberty and our equality before the law. Our citizenship is based on it, and hence I love it."
So said Lutie Lytle (pictured). She was born in 1875 and was among the first African Americans to earn a law degree when she graduated from Central Tennessee Law School in 1898. She returned to Central Tennessee to teach law and newspaper accounts "claimed that she was the only woman law instructor in the world." She reportedly taught criminal procedure, evidence, and domestic relations during her brief time in academia. She later moved to New York and was active in the National Bar Association. Although information about Lytle's career and life is regrettably sparse, a solid scholarly resource is J. Clay Smith, Jr.'s, Emancipation: The Making of the Black Lawyer, 1844-1944 (1993).
(H/T Judith Scully)
Friday, February 4, 2011
Judge Keith Starrett (S.D. Miss.) today dismissed a challenge to the individual health insurance mandate in the federal Affordable Care Act. The case, Bryant v. Holder, involved private Mississippians who do not possess any form of health insurance and who have no desire or intention to purchase it under the mandate. Judge Starrett ruled, consistent with at least 14 other courts (only four have reached the merits, dividing 2-2), that the plaintiffs lacked standing in their challenge to the ACA under the Commerce Clause, the Takings Clause, the Due Process Clause, and the Tenth Amendment. (See below on the Tenth Amendment claim.) We posted most recently on standing in ACA challenges here; we posted most recently on other aspects of ACA challenges here.
Judge Starrett ruled that the plaintiffs failed to allege a "sufficiently impending" injury to support standing:
Plaintiffs' First Amended Petition contains insufficient allegations to establish that they will certainly be "applicable individuals" who must comply with the minimum coverage provision. For example, Plaintiffs did not allege any facts which, if true, would certainly establish that they would not be subject to the provision's religious exemption. Plaintiffs simply alleged that they will be subject to the minimum essential care provision--a bare legal conclusion which the Court may not accept as true. They did not include any factual allegations--other than their citizenship--to establish that they will be considered "applicable individuals" according to the provision's terms.
Furthermore, it is not certain from Plaintiffs' allegations that, in the event they were considered "applicable individuals," they would incur the tax penalty for non-compliance. Their First Amended Petition contains insufficient allegations to establish that they will not be subject to one of the exemptions to the penalty. . . .
Op. at 19 (citations omitted).
Judge Starrett also ruled that Plaintiff Bryant, the State Lieutenant Governor but appearing in his "private and individual capacity here," lacked standing to challenge the ACA under the Tenth Amendment. In short, Judge Starrett ruled that Bryant's claim alleging an injury to the "sovereign interests of the state of Mississippi" sought to vindicate the rights of a third party, in violation of the third-party standing rule. Op. at 21-22.
The Supreme Court will take up a private individual's standing to assert a Tenth Amendment claim later this month in Bond v. U.S. That case involves a criminal defendant's standing to lodge a Tenth Amendment challenge to federal law.
Judge Starrett gave the plaintiffs 30 days to amend their complaint.
Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."
Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid. The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade. The complaint alleges:
5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.
The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts. A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”
North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice." At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial. A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog. In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:
The right to freedom of expression is just as fundamental in our society as the open court principle. It fosters democratic discourse, truth finding and self‑fulfilment. Freedom of the press has always been an embodiment of freedom of expression. It is also the main vehicle for informing the public about court proceedings. In this sense, freedom of the press is essential to the open court principle. Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair. . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.
This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.
The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations. The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information. In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms. Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback. The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook. The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.
ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.
February 4, 2011 in Books, Cases and Case Materials, Comparative Constitutionalism, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fundamental Rights, International, Speech, State Secrets, Teaching Tips, Theory, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)
Thursday, February 3, 2011
St. John's seeks a visiting Con Law Prof for the Spring Semester 2012. Here's the announcement:
St. John's University School of Law is seeking an in-residence Spring 2012 visiting professor to teach Constitutional Law (a 1L required course, 4 credits, in a section of about 85 students) and a second Con Law course (an upper-class elective, 2 credits, subject to be worked out with the visitor). We seek candidates with Con Law teaching experience and strong student evaluations.
St. John's, a Catholic, Vincentian and metropolitan university, is located in Queens, the most diverse and interesting borough in New York City (near millions of wonderful people who will be willing to debate boroughs, teams, politics, policy, restaurants, and other topics with anyone). We are committed to academic excellence that values diversity and thus encourage applications from women, minorities, and anyone whose background and experiences would enhance the faculty and school environment.
Applicants should submit a cover letter, curriculum vitae, and names of three references to Professor Vincent C. Alexander, Chair, Faculty Appointments Committee, at email@example.com, or by mail at St. John's University School of Law, 8000 Utopia Parkways, Queens, NY 11439.
Tuesday, February 1, 2011
Profs. Neil Kinkopf (Georgia State) and Peter Shane (Ohio State, Moritz) last week posted Signed Under Protest: A Database of Presidential Signing Statements, 2001-2009 (Version 2.0) on SSRN. The paper updates their earlier work on President George W. Bush's signing statements that objected to provisions of laws on constitutional grounds. (Their signing statement index from the earlier work is also posted at The American Constitution Society.)
Joyce Green brings the list of signing statements up to date, through President Obama's most recent signing statement on the defense spending bill earlier this month, at her site, Presidential Signing Statements. (We posted on that most recent signing statement here.)
These signing statements do more than merely object to particular provisions in legislation signed by the President; they also state the President's intention not to enforce or comply with those provisions. They can thus operate, in effect, as a line-item veto--a device that the Supreme Court ruled unconstitutional in Clinton v. City of New York because it violated the Presentment Clause's requirement that legislation pass both houses of Congress and, in the same form, receive the President's signature in order to become law. (Unlike the line-item veto, provisions identified by the President as unconstitutional in signing statements are part of the law. The President just declines to enforce them.)
President Bush was famously vague in his signing statements, often declining to identify the precise basis for his constitutional objection. The practice left observers guessing as to why he judged provisions unconstitutional. President Obama came into office with a commitment to increase transparency in his signing statements--to state the constitutional objection with precision, and to support it with analysis. But even if his signing statements are more transparent, they're often just as aggressive and yield the same result--to in effect nullify a provision of federal law.
Another option: The veto. Presidents could take a lesson from President Andrew Jackson and veto objectionable legislation. This approach has the advantage of fully publicizing the President's constitutional objections and forcing the Congress to deal with them (by, e.g., moving to override). It of course has the disadvantage that many perfectly unbjectionable--and often critical--provisions in lengthy and complicated legislation would get held up while the branches work out the constitutionality of often small and unrelated portions of the legislation.
The Senate Judiciary Committee will take up the constitutionality of the Affordable Care Act this morning, 10:00 a.m. (EST). Here's the witness list:
- Oregon AG John Kroger
- Randy Barnett
- Jones Day Partner Michael Carvin
- Walter Dellinger
- Charles Fried
The hearing comes on the heels of Judge Vinson's (N.D. Fla.) ruling on Monday that the individual mandate exceeds Congress's Commerce Clause and Necessary and Proper Clause authority, that the mandate is not severable from the rest of the Act, and that therefore the entire Act is unconstitutional.
Judge Vinson's ruling is the second federal district court ruling that the individual insurance mandate exceeds congressional authority. (We posted on the first one here.) There are also two federal district court rulings that the mandate falls within congressional authority; we posted here and here.
The hearing will have no legal or constitutional significance. Anything that can be said about the constitutionality of the Act has already been said (and argued in the courts), and the Senate already made its own judgment on the constitutionality of the Act when it passed it in the first place.