Constitutional Law Prof Blog

Conference "Beyond Rights" May 6 & 7 at Smith College, organized by the Feminism and Legal Theory project.

 

More information and registration information here.

RR

Wisconsin Collective Bargaining Update (2)

The litigation surrounding the Wisconsin collective bargaining law continues.   

Since our last update, Judge Maryann Sumi has issued her brief written order enjoinging the enforcement of the 2011 Wisconsin Act 10 and declaring that 2011 Wisconsin Act 10 has not been published within the meaning of the Wisconsin statutes and is therefore not in effect.

RR

[image: Madison, Wi, 2011 via]

 

Loyola Conference: Hate Speech, Incitement & Genocide

The Loyola University Chicago Law Review is hosting a conference next Friday, April 8, titled Hate Speech, Incitement & Genocide.

The line-up is terrific, with panels on Developing the Structure of Genocide Law, Hate Speech and Genocide in Africa and the Middle East, and Free Speech and Equality in the Internet Age.  The lunch-time speaker is Irwin Cotler, Professor Emeritus at McGill and former Attorney General and Member of the Canadian Parliament for Mount Royal.

The conference runs from 8:45 a.m. to 4:00 p.m., Friday, April 8, at the Philip H. Corboy Law Center, Power Rogers & Smith Ceremonial Courtroom, 25 East Pearson Street, 10th Floor, Chicago.  Get more information here; download a conference brochure here.

For advance registration and information, please contact Conference Editor Craig Beaker at [email protected], or tel. 312.915.7183.

SDS

Arizona Abortion Law: Requiring an Affidavit Excluding Race or Sex as Reasons

Race-selective and Sex-selection abortions are the subject of a new statute in Arizona.  According to the Arizona legislature:

Evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman's health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child's sex or race by prohibiting sex-selection or race-selection abortions.

Arizona HB-2443 signed into law by Governor Jan Brewer (pictured) 
today, requires an affidavit by the person performing the abortion stating "that the person making the affidavit is not aborting the child because of the child's sex or race and has no knowledge that the child to be aborted is being aborted because of the child's sex or race."  The law criminalizes the abortion provider who knows that the "abortion is sought based on the sex or race of that child or the race of a parent of that child,"  immunizes the pregnant woman, and provides that a woman's husband or her parents if she is a minor, may file a suit for civil damages, including an award of attorneys fees.

Arizona is not the first state with a statute prohibiting so called sex-selective abortion. Oklahoma, Pennsylvania, and Illinois all have such statutes passed in 2010.  For example, the Oklahoma statute provides:

No person shall knowingly or recklessly perform or attempt to perform an abortion with knowledge that the pregnant female is seeking the abortion solely on account of the sex of the unborn child. Nothing in this section shall be construed to proscribe the performance of an abortion because the unborn child has a genetic disorder that is sex-linked.

 Okla. Stat. tit. 63, § 1-731.2.B (2010).

Professor April Cherry's article on this issue - - -  A Feminist Understanding of Sex-Selective Abortion: Solely A Matter of Choice?, 10 WIS. WOMEN’S L.J. 161, 164 - - - published in 1995 is still one of the best pieces of scholarship on this issue.

A Georgia bill, SB 529, which would have criminalized sex-selection and race-selection as rationales for abortion did not pass. 

RR

[image: Jan Brewer via]

Wisconsin Collective Bargaining Law Enjoined Again and Other Updates

A separation of powers problem under the Wisconsin state constitution is continuing with a state judge again enjoing implementation of the anti-collective bargaining law and a member of the state executive again disputing the injunction's validity.

According to reporters Patrick Marley and Bill Glauber in their excellent article in the Milwaukee-Wisconsin Journal Sentinel, after a hearing today Dane County Judge Maryann Sumi announced: "Further implementation of the act is enjoined." The report continues:

Sumi noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi's earlier temporary restraining order.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear," she said.

But minutes later, outside the court room, Assistant Attorney General Steven Means said the legislation "absolutely" is still in effect.

An appeal of Judge Sumi's original restraining order reached the Fourth District Court of Appeals by way of a motion on behalf of the Secretary of State to withdraw the appeal.  La Follette, the Secretary of State, argued that the appeal was moot because of the publication of the law by the Legislative Reference Bureau on March 25.  In an order today, the appellate panel declined jurisdiction to entertain the motion to wothdraw because it had already certified the matter to the state's Supreme Court, although the Wisconsin Supreme Court has not yet accepted the certitification.

Meanwhile, the GOP request for University of Wisconsin Professor Cronin's emails including words such as "collective bargaining" or "union" which we originally discussed here, has attracted a great deal of attention including a NYT Editorial which Cronin collects here.

RR

[image: Protesters outside Wisconsin State Capitol, March 2011, via]

Fourth Circuit Rejects Challenge to Qui Tam Seal Provision

A divided three-judge panel of the Fourth Circuit on Monday rejected the ACLU's First Amendment challenge to the False Claims Act requirement that qui tam complaints be sealed for 60 days (or more), until the United States decides to intervene.

The FCA allows private citizens (known as qui tam relators) to file suit on behalf of the United States and to share in any recovery from defendants who committed fraud on the government.  But qui tam complaints go under seal for 60 days (or more) while the government decides whether to intervene in the case, and qui tam relators are gagged from discussing their complaint (but not the underlying alleged fraud).

The ACLU, OMB Watch, and the Government Accountability Project all brought suit against AG Eric Holder, alleging that the qui tam seal requirement violated the public's First Amendment right of access to judicial proceedings, violated the First Amendment by gagging qui tam relators from speaking about their complaints, and violated separation of powers by infringing upon the courts' inherent authority to decide on a case-by-case basis whether to seal qui tam complaints.

The majority disagreed.  Judge Dever (E.D.N.C.), sitting by designation, wrote that the government has a compelling interest in the integrity of ongoing fraud investigations, and that the seal requirement is narrowly tailored to serve that interest because (1) the seal requirement is time-limited to balance the government's investigatory needs against the need for public access to court documents, (2) the seal provision mandates judicial review after 60 days, and (3) the seal requirement limits the qui tam relator only from discussing the complaint, not the underlying fraud.

Judge Dever wrote that the plaintiffs lacked standing as "willing listeners" to challenge the gag rule, and that the seal provision does not violate separation of powers because it's an appropriate subject of congressional legislation and doesn't intrude on the constitutional role of the judiciary.

Judge Gregory argued in dissent that the overly rigid 60-day seal requirement interferes with the "transparency [that] remains central to combating waste and fraud."  Op. at 23.  Judge Gregory argued that the requirement neither served a compelling government interest nor was narrowly tailored.

SDS

No "Constitutional Tort" for Brady Violation by Prosecutors in Connick's New Orleans Office: Connick v. Thompson Opinion Analysis

What are the consequences of a violation of Brady v. Maryland, 373 U. S. 83, 87 (1963), which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment?    If it comes to light while the case is on direct appeal, it may require reversal of a conviction.  If it comes to light later, it may be the subject of a post-conviction relief.   And if it comes to light much later, after a person has spent 18 years incarcerated of which 14 years are on death row it does not merit civil damages.

In a 5-4 opinion reversing the Fifth Circuit and authored by Justice Thomas, the Court in Connick v. Thompson held that the state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training."  Opinion at 7.  Although Connick conceded that there was a Brady violation and the jury found a lack of training on Brady, the Court essentially concluded that there must be a pattern or practice of Brady violations before such training would be warranted under a constitutional "deliberate indifference" standard.  The Court distinguished the role of attorneys from those of law enforcement officers who must make "split-second decisions with life-or-death consequences" as in Canton v. Harris, 489 U. S. 378 (1989).

Instead,

Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority ofjurisdictions must do both. [citations to Louisiana bar requirements omitted].  These threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Cf. United States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting that the presumption “that the lawyer is competent to provide the guiding hand that the defendant needs” ap-plies even to young and inexperienced lawyers in their first jury trial and even when the case is complex). Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements.

The dissenting opinion, authored by Justice Ginsburg and joined by Breyer, Sotomayor and Kagan, provides a different picture:

 From the top down, the evidence showed, members of the the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and there-fore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting himfor armed robbery and murder hid from the defense and the court exculpatory information Thompson requestedand had a constitutional right to receive. The prosecutorsdid so despite multiple opportunities, spanning nearly twodecades, to set the record straight. Based on the prosecu-tors’ conduct relating to Thompson’s trials, a fact triercould reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.

The case seems to set a new standard for recovery for Brady violations - - - and perhaps other constitutional violations - - - by prosecutors. 

Connick, the district attorney of New Orleans from 1973 - 2003, is no stranger to important constitutional cases.  This is the same Harry Connick of Connick v. Myers, in which assistant district attorney Sheila Myers, complained about morale in the office, was terminated, and brought a First Amendment claim. 

And this is Harry Connick, Sr.  It is his son, Harry Connick, Jr. who is the singer, although Sr. also did his share of entertainment.

RR

[image: entrance to Louisiana State Penitentiary, Angola, via]

Conference on Race, Law, and History at Michigan Law, April 1-2

"We Must First Take Account" is a conference the end of this week at Michigan Law on Race, Law, and History. 

As the organizers explain:

“To get beyond racism, we must first take account of race,” is the well-remembered phrase from Justice Harry Blackmun’s opinion in the 1978 Bakke decision. Blackmun’s view may remain controversial in debates about constitutional jurisprudence. But for historians of law it is axiomatic. In the generation since Bakke, scholars have indeed taken account, mining legal culture’s archives to explain the origins and endurance of race. Today race is at the core of interpreting the history of law in the Americas. Understood as a set of ideas that
rely upon religion, culture, labor, biology, and politics, race has organized profound inequality and galvanized movements for social justice.

More information and the program is available here.   A stellar line-up of speakers!

RR

 

Strip Searches Don't Violate Clearly Established Rights, D.C. Circuit Rules

A sharply split panel of the D.C. Circuit ruled on Friday that strip searches of persons arrested for non-violent, non-drug-related misdemeanors did not violate clearly established Fourth Amendment rights in 2002, even absent particularized suspicion that the arrestee was concealing contraband or weapons.  The ruling in Bame v. Dilland means that the defendant, a former U.S. Marshal whose deputies conducted the searches, enjoys qualified immunity against the plaintiffs' Bivens action against him.

Plaintiffs were protestors at the 2002 meeting of the IMF and World Bank in D.C.  Each was charged with either "incommoding traffic" or "failure to obey" a law enforcement officer, both misdemeanors.  Deputy Marshals strip searched them in a receiving cell before placing them in a holding cell to await disposition of the charges.

Judge Ginsburg wrote for himself and Judge Williams that the case was governed by Bell v. Wolfish (1979), in which the Supreme Court ruled that strip searches, without particularized suspicion, of pretrial detainees and convicted inmates in a "short-term custodial facility" did not violate the detainees' clearly established rights.  Judge Ginsburg ruled that later cases from the Eleventh and Ninth Circuits--cases decided after 2002, when the strip searches occurred here--affirmed his understanding of Bell that strip searches did not violate clearly established rights.

Judge Rogers, dissenting, argued that every one of the ten circuits to rule on the issue by 2002 ruled that under Bell suspicionless strip searches of pre-trial arrestees charged with non-violent minor offenses was unreasonable and thus unconstitutional.  Any subsequent cases do not impact the constitutionality of the searches in 2002: "A decrease in clarity of the law after 2002 would not make a strip search in 2002 more reasonable."  Dissent at 17.  In conclusion:

As troubling as the majority's low opinion is of what "a reasoanbly competent public official" ought to know of the law under Harlow and its progeny, more troubling are the implications of the majority opinion for the protection of Constitutional rights. . . . .  The majority's approach means that there are no objective limits to the scope of qualified immunity because a court may one day hold that the settled consensus of persuasive authority misapprehended a Supreme Court opinion on the requirements of the Constitution. . . . .

SDS

Arizona's Campaign Finance Law and Matching Funds: Oral Argument Analysis

Arizona Free Enterprise Club v. Bennett and McComish v. Bennett, consolidated cases challenging Arizona’s statutory system of public campaign financing, were before the Supreme Court today for oral argument.

According to William Maurer, attorney for the Petitioners challenging the law, the issue before the Court is “whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates. . . .whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.”

On the other hand, Bradley Phillips, arguing for Arizona and the named Respondent, Ken Bennett, Arizona’s Secretary of State, contended that “public funding of elections results in more speech and more electoral competition and directly furthers the government's compelling interest in  combating real and apparent corruption in politics.”

The Arizona scheme, The Arizona Citizens Clean Elections Act, Ariz.Rev. Stat. §§ 16-940 et seq. (2010) includes a “Matching Funds Provision,” which is triggered when the spending of groups making independent expenditures, combined with the spending or fundraising of privately financed candidates, is more than the amount a publicly financed candidate may spend under the Act’s expenditure limits for participating candidates.

The challengers characterize such a provision as a restriction and a penalty on groups making independent expenditures and privately financed candidates.  The state argues that the provision is a subsidy.

The goal and practical effect of the scheme was subject to much disagreement. As Justice Kagan phrased it, the law would seemingly result in “more speech all the way around.” Justice Kennedy asked Maurer if it “would be a  fair characterization of this law to say that its purpose and its effect are to produce less speech in  political campaigns?,”  to which Maurer obviously agreed.  Later, Kennedy asked Phillips a question intended, he explicitly stated, “to probe this idea that this somehow does not deter independent expenditures. I frankly am tempted to believe the opposite view, so you can tell me about that.”  Phillips attempt to analogize to the deterrence that might occur when disclosure was mandated was quickly rejected by Justice Kennedy because of the longstanding different First Amendment standards regarding expenditures and disclosures.

As for the governmental purpose, Chief Justice Roberts asked William Jay, arguing for the Solicitor General in support of Respondents to agree that “under our precedents, leveling the playing field for candidates is not a legitimate State purpose?” Jay agreed, and Roberts revealed his research abilities:

Well, I checked the Citizens' Clean Elections Commission website this morning, and it says that this act was passed to, quote,"level the playing field" when it comes to running for office. Why isn't that clear evidence that it's unconstitutional?

 
Earlier, Justice Kagan was less enthusiastic about whether the government purpose was the impermissible "level the playing field" or the more acceptable "prevent corruption":

JUSTICE KAGAN: I think the purpose of this  law is to prevent corruption. That’s what the purpose  of all public financing systems are.

MR. MAURER: Your Honor, I would respectfully disagree that the purpose of this law is to prevent corruption, and I would like to read from the  executive director of the Clean Elections Commission who said that: “It cannot be disputed that the purpose of the Clean Elections Act is to equalize the playing field."

JUSTICE KAGAN: Well, Mr. Maurer, some people may use certain buzz words and other people don’t  use those buzz words, but isn’t it true that for years what public financing systems have been based upon is the idea that when there is a lot of private money floating around the political system, that candidates and then public office holders get beholden to various  people who are giving that money and make actions based on how much they receive from those people, and that’s the idea of a public financing system is to try to prevent that?

Another deeply problematic issue was whether the Arizona provision was content-neutral or discriminated against certain types of speech.   Answering Kennedy's query as to whether the law was content-neutral, Maurer argued that

the only thing that will trigger matching funds, particularly for  independent expenditure groups, is the content of the  message. If an independent expenditure group speaks in favor of a privately financed candidate, they will not trigger matching funds. If they speak against a  publicly financed candidate, they will trigger matching  funds. That not is only content-based; it is also a  rejection of the standard this Court enunciated in Citizens United that the government cannot make distinguishing burdens on the basis of an identity of a  speaker.

In response to a similar query during his argument, Phillips later stated,

the  discrimination, if you want to -- if you call it  discrimination or different treatment, is based on the  initial choices of the candidates as to how they're going to finance their campaigns. It's not based on the  content of the speech.  There's -- matching funds do not turn in any way on the ideas or the messages or the viewpoints or the subject matter of the candidate or the independent group's speech or on the identity of the speaker. It turns entirely on what choice the candidate made at the  outset. 

If the questions of the Justices are predictive, a divided Court seems likely to find Arizona's matching funds provision unconstitutional.

UPDATES: Lyle Denniston over at SCOTUSblog focuses on Justice Kennedy's comments, finding them predictive.

Howard Bashman at How Appealing collects today's commentary on the arguments.

RR

Professor's Emails, Open Records, First Amendment: Wisconsin Professor William Cronon

Like many who work at a public university, I have been made aware that my email may be subject to a FOIA request.  But I have assumed that such requests would pertain to personnel decisions about colleagues or student matters.  However, it seems that political criticism may also provoke a records request from those being criticized.

William Cronon, (pictured right), is a history professor at the University of Wisconsin.   On March 15, he started his blog, Scholar as Citizen, discussing the historical and contemporary origins of the Wisconsin legislation prohibiting public employee collective bargaining.  His op-ed published in the NYT on March 21 argues that "Republicans in Wisconsin are seeking to reverse civic traditions that for more than a century have been among the most celebrated achievements not just of their state, but of their own party as well." 

On March 17, he received a request from the Republican Party under the "state FOIA":

 

From: Stephan Thompson [mailto:[email protected]]
Sent: Thursday, March 17, 2011 2:37 PM
To: Dowling, John [UNIVERSITY LEGAL COUNSEL]
Subject: Open Records Request

Dear Mr. Dowling,

Under Wisconsin open records law, we are requesting copies of the following items:

Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”

Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.

Sincerely,

Stephan Thompson

Republican Party of Wisconsin

608-257-4765

 

The most recent Court opinion regarding a First Amendment challenge to a state FOIA request was the June 2010 decision in Doe v. Reed, in which the Court considered a request under Washington's state open records law to reveal the signatories for a ballot initiative to revoke the same-sex civil union law. In Reed, the Court articulated an "exacting scrutiny" standard, "requiring a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest." To withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”

In Reed, the government interests were "preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability" and that these sufficed to defeat the First Amendment challenge to the disclosure of referendum signatures.

Here, the government has not complied with the request and not yet had an opportunity to articulate what any of its interests might be in disclosing the contents of Professor Cronon's emails that contain words such as collective bargaining, rally, or union.

RR

UPDATE here

District Court Denies Habeas for Guantanamo Detainee

The U.S. District Court for the District of Columbia yesterday released a redacted version of Judge Leon's November 2010 opinion denying habeas relief for Guantanamo detainee Obaydullah.  Judge Leon today rejected Obaydullah's motion for reconsideration.

The government argued that Obaydullah was "part of" an al Qaeda "bomb cell" based upon evidence it obtained during a raid of Obaydullah's home and its own pre-raid intelligence.  (The government declined to disclose the source of the intelligence.)  Evidence included 23 anti-tank mines, a notebook with instructions and wiring diagrams for how to build a remote-control IED, and an automobile that contained dried blood and Taliban propaganda.  Information based upon pre-raid intelligence was largely, if not entirely, redacted from Judge Leon's opinion. 

Judge Leon ruled that the evidence corroborated pre-raid intelligence and that it was more likely than not that Obaydullah was part of an al Qaeda bomb cell:

However, the combination of the explosives, the notebook instructions and the automobile with dried blood all fit together to corroborate the intelligence sources placing both the petitioner and Bostan at the scene aiding fellow bomb cell members who had been accidentally injured while constructing an IED.  Additionally [redacted] serve to further corroborate the credibility of the government's intelligence source linking Obaydullah to the al Qaeda bomb cell.  Thus, combining all of this evidence and corroborated intelligence, the mosaic that emerges unmistakenly supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of U.S. and Allied forces.  As such, he is being lawfully detained under the AUMF and this Court must, and will, therefore DENY his petition for a writ of habeas corpus.

SDS

DOMA and Federalism Event at Indiana University School of Law

A "mini-symposium" on April 7, 2011, starting at 3pm, will feature a lecture on "One State's Challenge to the Defense of Marriage Act" by Maura Healey, Chief, Civil Rights Division, Massachusetts Attorney General's Office. 

Healy (pictured right) will be speaking about Massachusetts' successful constitutional challenge to section 3 of DOMA; Judge Tauro found that section 3 "offends" the Tenth Amendment reasoning that marriage is a quintessential matter of state, and not federal, power.

Healy's talk will be followed by a panel discussion, moderated by Steve Sanders, and including:

• Thomas M. Fisher, Solicitor General, State of Indiana
• Dawn Johnsen, Walter W. Foskett Professor, Indiana University Maurer School of Law, and former Deputy Assistant Attorney General, U.S. Department of Justice
• Brian Powell, Rudy Professor of Sociology, Indiana University College of Arts & Sciences and co-author of Counted Out: Same-sex Relations and Americans' Definitions of the Family
• Deborah Widiss, Associate Professor, Indiana University Maurer School of Law

More information about the event and its webcast available here.

RR

Amnesty and Other Organizations have Standing to Challenge Constitutionality of FISA Amendments, Second Circuit Holds

A panel of the Second Circuit has reversed the district judge's summary judgment against plaintiffs who claimed that a portion of the FISA Amendments Act of 2008 ("FAA") amending the Foreign Intelligence Surveillance Act of 1978 (“FISA”), is unconstitutional.  

In a 63 page opinion, the panel in Amnesty International, USA v. Clapper considered the plaintiffs fears of being monitored by the government electronic surveillance authorized by FAA section 702 targeting  non-United States persons outside the United States for purposes of collecting foreign intelligence.  The unanimous opinion, written by Gerald Lynch and joined by Judges Guido Calabresi and Robert Sack, rejected the contentions of the government that the plantiffs' fears were too speculative. 

The panel articulated the relationship between the plaintiffs' fears and the concrete acts that the plaintiffs were taking to circumvent the government's surveillance:

If the plaintiffs can show that it was not unreasonable for them to incur costs out of fear that the government will intercept their communications under the FAA, then the measures they took to avoid interception can support standing. If the possibility of interception is remote or fanciful, however, their present-injury theory fails because the plaintiffs would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely  potential harm. Any such costs would be gratuitous, and any ethical concerns about not taking those measures would be unfounded. In other words, for the purpose of standing, although the plaintiffs’ economic and professional injuries are injuries in fact, they cannot be said to be “fairly traceable” to the FAA – and cannot support standing – if they are caused by a fanciful, paranoid, or otherwise unreasonable fear of the FAA.

Opinion at 28-29.  The panel found it a significant distinction from Lyons v. City of Los Angeles (the "choke-hold" case) that FAA is a statute and not a government practice:

This case is not like Lyons, where the plaintiff feared injury from officers who would have been acting outside the law, making the injury less likely to occur. Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute. The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security. [citations omitted]. That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur.

Opinion at 38-39.  In addition to Amnesty, the plaintiff organizations include Global Fund For Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, and Washington Office on Latin America. The panel concluded that

the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored. Either way, the FAA directly affects them.

Opinion at 52.  Thus, unless the finding of standing reaches the United States Supreme Court, the plaintiffs will proceed to the merits of their arguments that the FAA violates the First and Fourth Amendments, as well as being violative of the separation of powers and beyond the powers of Congress and the Executive.

RR

[image: Spy Museum in Washington, DC via]

This Week: Criminal Procedure Oral Arguments at United States Supreme Court

The United States Supreme Court is hearing four important oral arguments dealing with Fourth, Fifth and Sixth Amendments this week.

Today, March 21, the Court will hear two cases:

Davis v. US involves the “good faith” exception to the exclusionary rule, and whether it should apply to a search that was constitutional at the time it was conducted but was subsequently ruled unconstitutional.     

Tolentino v. New York presents an issue regarding the exclusionary rule and whether it should apply to pre-existing identity-related governmental documents, such as motor vehicle records, which were  obtained as the direct result of police action violative of the Fourth Amendment.

On Wednesday, March 23, the Court will hear two other important cases:

Turner v. Rogers raises an issue of "civil Gideon," focusing on whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration. 

J.D.B. v. North Carolina, is a closely watched case on juvenile rights, presenting the issue of whether courts may consider the age of a juvenile suspect in deciding whether she or he is in custody for Miranda purposes.

I'll not only be reviewing the oral arguments, but will be reading 70 Bench Memos addressed to Justice Sonia Sotomayor (pictured) arguably the key justice in these cases, written by students in Criminal Procedure and due last week.  Bench Memos on pending cases are a great way to involve students in current controversies and allow them to delve deeply into one specific issue.  For this assignment, students had to develop questions for oral argument that engaged the wider constitutional issues as well as propose a rule that the Court should adopt.

RR

[image of Sotomayor, cropped via]

The Original Tea Party and Regulating Food: WV Weekend Features the Forthcoming Work of Alison Peck

The regulation of food and its consumption have always posed constitutional issues - - - recall the "wheat case" of Wickard v. Filburn (1942) - - - and for the last several years, public health advocates, now prominently joined by First Lady Michelle Obama, have highlighted the need for vigorous public policy solutions to the increasing costs of obesity in America.  One of the most well-known policies aimed at adjusting Americans’ eating habits is the mandatory disclosure of nutritional information by restaurants.  Leading the way on such mandates include several of America’s largest cities, including New York, where Mayor Bloomberg has successfully advocated for the posting of calorie information in many of the city’s eateries; this policy ultimately survived a constitutional challenge.

In West Virginia, the efforts to mandate caloric information have been less successful.  During the 2009 Regular Session of the WV State Legislature, a bill was introduced and recommended for passage in the House of Delegates that would have required the posting of calorie counts of menu items in most restaurants throughout the state.  The bill died before making it to the House floor, perhaps because of the efforts of former state senator and statewide restaurateur, Oshel Cragio.  Craigo, who owns a popular fast-food chain of home-style breakfast restaurants named “Tudor’s Biscuit World,” buttered-up House committee members with free biscuit-style breakfast entrees on the morning in which the nutritional posting bill was being debated.  Perhaps unsurprisingly, members chose the biscuits over the bill.  However, a provision in the federal health care reform bill will likely require Cragio’s restaurants to post calorie counts.

Mandatory calorie disclosures typically provoke the anti-government sentiments often shared by members of the modern Tea Party, a movement we’ve covered here.  The rhetoric often invokes an originalist imagining of Revolutionary-era politics as championing individual liberty against government policies.

Professor Alison Peck at the WVU College of Law challenges the symbolism used by modern day Tea Party by arguing that early-American political groups associated with the Founding Fathers actually had more in common with contemporary advocates of food-consumption regulation than with the small-government Tea Party activists of today. 

Peck has posted an abstract of her article, Revisiting the Original “Tea Party”: The Historical Roots of Regulating Food Consumption in America, on ssrn here, but we've had a chance to read the entire draft manuscript.  It's a stellar argument supporting her central assertion that “opponents of modern food-consumer regulation misapprehend Revolutionary history. . . .”  Manuscript at 5. 

Specifically, the "non-importation and non-consumption agreements suggest that the colonists considered private consumption decisions to be fair subjects of coordinated public action where those decisions had negative public consequences.” Id. at 7.  Indeed, Peck argues that a close examination of those non-importation agreements and their context suggests that they arose, in principle, from many of the same forces driving food-consumer regulation today. These forces include shared public costs attributable to private consumption decisions; popular rhetoric linking private choices and public costs; sponsorship of restrictions by community leaders and elites; and collectively-enforced consequences for failure to conform. Id.

While the author admits the obvious difference between the modern regulations and the Revolution-era non-importation and non-consumption agreements—that the latter agreements had no force of law—Peck claims that the “disenfranchised colonists came as close as they could to replicating that effect: The increasingly coercive mechanisms of outing and ostracizing free riders, seizing and holding offending goods, and even using violence against offenders gradually served to raise the cost of non-compliance.” Id at 50.  Indeed, Professor Peck believes that it was “likely that the colonists would have given their agreements the force of law if they had had the constitutional power to do so.” Id.  Supporting this assertion, the author briefly discusses the imposition of the federal excise tax on whiskey in 1791—a tax that led to a brief but serious rebellion in the young nation.

Peck concludes by chiding the modern Tea Party for their claims that food-consumer regulation are “unprecedented or un-American,” as such regulatory forces are “far from novel.” Id. at 54.  She writes:

The idea that a society may regulate individual consumption choices in the name of the collective good was expressed as early as the pre-Revolutionary non-consumption and non-importation agreements. Although those agreements were quasi-legal instruments organized and enforced by the colonists outside of formal legislative bodies, their purpose was equivalent: to force accountability for private consumption decisions that had shared social costs.

Id.

The powers of governments (federal, state, and local) and individual liberties has been an ongoing balancing act in US legal history.  Peck's article will be an important contribution to our assessment of our understanding of that history.

RR

with J. Zak Ritchie

[image: Mary Cassat, American artist, "Afternoon Tea Party," 1891, via]

 

Birthright Citizenship: Debating the Interpretation of the Fourteenth Amendment

Section One of the Fourteenth Amendment provides:

"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."

For some, this provision is ambiguous, especially when it is applied to persons born in the United States of non-citizen parents who are not authorized to be within the nation's borders.

A fascinating discussion - - - styled as a debate - - - between John Eastman, of Chapman School of Law, and Ediberto Román, (pictured left) of Florida International University, illuminates the interpretations of this provision with reference to constitutional history and current controversies. 

Eastman is the author of the paper Born in the USA: Rethinking Birthright Citizenship in the Wake of 9/11, based on his Congressional testimony contending that section one of the Fourteenth Amendment has been misconstrued as mandating birthright citizenship and that the clause was merely a"codification" of the 1866 Civil Rights Act.

Román is the author of the book Citizenship and its Exclusions: A Classical, Constitutional, and Critical Race Critique, which we discussed here.

The video and audio of the proceedings, part of a conference at FIU on Citizenship can be accessed over at Nuestras Voces Latinas here.

RR

 

Constitutional Torts Symposium at Fordham

  

More information here.

 

RR

Is DOMA's Demise Imminent?

The judicial finding that the Defense of Marriage Act is unconstitutional, preceded by DOJ's vigorous defense of DOMA in another case, some waffling, and then the announcement that the DOJ will not defend the constitutionality of DOMA, which some characterized as a constitutional crisis,  has seriously compromised the future of DOMA.  

Today, Senator Dianne Feinstein introduced the Respect for Marriage Act of 2011, which would repeal DOMA and change the federal law to provide:

§ 7. Marriage
(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

Feinstein was joined by co-sponsors Patrick Leahy (D-Vt.), Kirsten Gillibrand (D-N.Y.), John Kerry (D-Mass.), Barbara Boxer (D-Calif.), Chris Coons (D-Del.), Ron Wyden (D-Ore.), Frank R. Lautenberg (D-N.J.), Richard Blumenthal (D-Conn.), Jeff Merkley (D-Ore.), Dick Durbin (D-Ill.), Al Franken (D-Minn.), Patty Murray (D-Wash.), Sheldon Whitehouse (D-R.I.), Charles Schumer (D-N.Y.), Mark Udall (D-Colo.), Jeanne Shaheen (D-N.H.), Dan Inouye (D-Hawaii), and Daniel Akaka (D-Hawaii).

 The precusor Respect for Marriage Act was previously introduced in 2009.

With considerably less fanfare, the State Department has amended its policy to include same-sex partners of foreign service employees. (H/T Professor Janet Calvo).  Here is an excerpt from the State Department's explanation of the process:

Scenario Three: American Foreign Service Employee Partners with Same-Sex American or non-American

Amending the Orders: To add your same-sex domestic partner to your orders, you will need to provide your HR Assignment Technician with an updated Foreign Service Residence and Dependency Report (OF-126), a completed affidavit Pursuant to Declaring Domestic Partner Relationship (DS-7669 ), and a medical clearance. The DS-7669 affidavit should be submitted to the State Department’s Bureau of Human Resources, Office of the Executive Director, Assignment Support Unit (HR/EX/ASU). As soon as your HR Assignment Technician has all of these documents, he/she can process your orders. Guidance can be found at 3 FAM 1600. In addition, if your partner is not a U.S. citizen, please note procedures outlined in 12 FAM 275 – Reporting Cohabitation with and/or Intent to Marry a Foreign National (http://www.state.gov/documents/organization/88344.pdf) or contact HR/CDA.

For non-US partners, this will include an alteration of the immigration policies, to include a same-sex partner that would not be included ordinarily:

Foreign-born partners holding non-U.S. passports: If your new partner is not an American citizen, he/she may be able to enter the U.S. on a J-1 visa. In February, 2011, the Department designated the Bureau of Human Resources as an Exchange Visitor Program (J-1 visa) sponsor for a government visitor program under which non-US-citizen same-sex domestic partners (SSDP) of members of the Foreign Service may be eligible to come to the United States during their partners' domestic assignments. . . . 

Strictly speaking, this process is not barred by DOMA, but it does cast even more doubt on the federal government's committment to enforcing DOMA.

Meanwhile, earlier this month Speaker of the House John Boehner issued a statement entitled House Will Ensure DOMA Constitutionality Is Determined By The Court:

“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law.  This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”

RR

Drake Symposium: Debating the Living Constitution

The Drake Law School Constitutional Law Center recently announced its 2011 Symposium, "Debating the Living Constitution."  The Symposium is Saturday, April 2, from 8:30 to 11:30 a.m. at Drake; more information, including a registration form, is here.  Here's the line-up:

Moderators:

• The Honorable Robert W. Pratt, U.S. District Court Judge, Southern District of Iowa
• Miguel Schor, Visiting Professor of Law and Director of the Drake Constitutional Law Center, 2010-2011
 

Presentations:

• Do We Have a Living Constitution?, David Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School
• Assisted Living, Rebecca Brown, Newton Professor of Constitutional Law, University of Southern California School of Law
• The Problem of Article V for Constitutional Theory, Keith Whittington, William Nelson Cromwell Professor of Politics, Princeton University
• Democracy and the Living Tree Constitution, Wil Waluchow, Senator William McMaster Chair in Constitutional Studies, McMaster University.

SDS