Constitutional Law Prof Blog

Texas House Moves Bill to Ban Federal Pat-Downs

The Texas House of Representatives this week passed legislation that would ban TSA pat-down searches, among other actions by state and federal officers.

The legislation, H.B. 1937, states that any "public servant" commits an offense when

while acting under color of the person's office of employment without probable cause to believe the other person committed an offense:

(A) performs a search for the purpose of granting access to a publicly accessible building or form of transportation; and

(B) intentionally, knowingly, or recklessly:

(i) touches the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or

(ii) touches the other person in a manner that would be offensive to a reasonable person.

The legislation also more generally bans any intentional denial or impediment by a "public servant" of "any right, privilege, power, or immunity, knowing the actor's conduct is unlawful."

The legislation defines "public servant" to include an "officer, employee, or agent of the United States."

The bill (if it were to become law)--obviously preempted by federal law creating and empowering the TSA, among other federal "public servants"--is best understood as yet another political statement by a State objecting to federal policy.  (This appears to be the first state bill passed by any house in any state legislature that would ban TSA pat-downs.)

SDS

CFP: New Voices in Gender Studies for AALS

The AALS Section on Women in Legal Education announces a paper competition with the topic “New Voices in Gender Studies” for the 2012 AALS Annual Meeting, January 4-8, 2012, Washington, D.C.  The deadline is August 15, 2011. 

This is a great opportunity for new faculty writing about constitutional gender/sexuality issues.  Here is the anouncement:                                             
 
The AALS Section on Women in Legal Education will hold a program during the AALS 2012 Annual Meeting in Washington, D.C., with paper presentations by the winners of the 2012 New Voices in Gender Studies paper competition.
 
Submissions should be of scholarship relating to (1) women in legal education, (2) any aspect of women’s or men’s relationship to the law, or (3) gender, sexuality and the law.  There is a maximum 30,000 word limit (inclusive of footnotes) for the submission. Since this is a paper presentation opportunity, and not one for publication, submitted papers can be committed for publication prior to their submission, but cannot be actually in print prior to their submission.  Each professor may submit only one paper for consideration.
 
Papers will be reviewed anonymously. The manuscript should be accompanied by a cover letter with the author’s name and contact information. The manuscript itself, including title page and footnotes, must not contain any references that identify the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes. The immediate past winners of the prior year’s competition are ineligible to participate this year.  In the event of a tie, one consideration for the reviewing panel will be whether any of the submitting authors have the opportunity to present the submitted article during another presentation at the conference.
 
To be considered, papers must be submitted electronically to Professor Linda Jellum, Mercer University School of Law, [email protected] The deadline for submission is Monday, August 15, 2011. Authors of accepted papers will be notified by October 3, 2011.  Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.
 
Full-time faculty members of AALS member and fee-paid law schools, who have been teaching for five or fewer years as of August 16, 2011, are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.
 
Papers will be selected after review by an ad hoc committee composed of officers, executive committee members, and the winners of the 2011 competition.
 
Any inquiries about the Call for Papers should be submitted to:  Professor Linda Jellum, Mercer University School of Law, [email protected], (478) 301-5689.

RR

American Constitution Society National Convention

Registration is open for the American Constitution Society 10th Anniversary National Convention, Constitution at the Crossroads: Progress Imperiled? 

 
 

The convention runs from June 16 to 18, 2011, at the Capital Hilton in Washington, D.C.  AG Eric Holder will give an address at the opening gala.  The full schedule is here; registration is here.

SDS

Draft EO Under Attack

President Obama's draft executive order requiring government contractors to disclose their political donations came under attack on two fronts today--in a joint hearing by the House Committee on Oversight and Government Reform and the House Committee on Small Business, and in a letter from a bipartisan quartet in the Senate.

The draft EO requires that "all entities submitting offers for federal contracts to disclose certain political contributions and expenditures that they have made within the two years prior to submission of their offer."  This was the White House's answer to the failure of the Disclose Act in the Senate--a modest attempt to shine light on the political activities of government contractors, the only sector over which the executive might require such disclosure without the aid of Congress.  (The Disclose Act itself was a modest attempt to shine light on the political activities of corporations in the wake of Citizens United v. FEC, the Supreme Court case last term that overturned spending limits on corporations and labor unions under the First Amendment, but that upheld disclosure requirements.)

But the draft EO hit a roadblock: Charges in Congress that it would polticize government contracting, and allow the administration to target its political enemies.

Those worries hit a high point today in the House joint committee hearing, titled "Politicizing Procurement: Will President Obama's Proposal Curb Free Speech and Hurt Small Business?"  The hearing was stacked with opponents of the draft EO, all of whom testified that the draft EO would, well, curb free speech and hurt small business.  The lone supporter (other than the OMB rep), representing the Women's Chamber of Commerce, testified that the draft EO would increase transparency and ensure that procurement is based on "fair competition and not unscrupulous, undisclosed "pay to play" campaign donations."  The administration sent OMB Administrator for Federal Procurement Policy Daniel Gordon as a compromise fter Jack Lew, the head of OMB, declined to appear (sparking threats of subpoena by the committee chairs).

At the same time, Senators Joe Lieberman, Claire McCaskill, Susan Collins, and Rob Portman sent a letter to President Obama opposing the draft EO because it would politicize procurement.

There were even some murmurings that President Obama lacked authority to issue the EO--that it wasn't sufficiently tied to federal procurement to come within executive authority.

The Hill provides political coverage here.  We last posted on disclosure in the wake of Citizens United here, on Rep. Van Hollen's suit against the FEC.

SDS

Is The Roberts Court Really a Court? Eric Segall's Answer

In an article with the provocative title Is The Roberts Court Really a Court?, 40 Stetson Law Review 1 (2011), available on ssrn, Professor Eric Segall defines the judicial function as the resolution of "legal disputes by examining prior positive law, such as text and precedent, and then providing transparent explanations" for the decisions.  On this definotion, Segall concludes that the Roberts Court is not "really" a judicial body based upon an examination of three controversial cases:  Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007); District of Columbia v. Heller, 554 U.S. 570 (2008); and Citizens United v. Federal Election Commission, __ U.S. ___, 130 S. Ct. 876 (2010). 

Here's Segall's conclusion:

In Carhart II, the Roberts Court implicitly overturned an important decision without any discussion of stare decisis. In Heller, the Court created a brand new constitutional right, displacing centuries of caselaw, based on a controversial (at best) historical account that raised serious questions about how the Court actually reached its decision. And, in Citizens United, the Court reached out to decide an important and settled issue of constitutional law not raised by the parties, and it did so without any meaningful discussion of history or stare decisis concerns. In all three cases, the only persuasive descriptive account of why the Court veered from prior positive law is that the people on the Court changed (Justice Alito for Justice O’Connor). This is not judging according to the Rule of Law but judging according to the Rule of Five Justices, and it seriously calls into question whether the Roberts “Court” is, in fact, a court at all.

Segall's brief article provides execellent support for this conclusion, which is widely - - - although certainly not universally - - - shared. 

However, Segall also contends that the question of whether the Roberts Court is really a court "could just as easily be asked of the Rehnquist, Burger, and Warren Courts, as well as all of the other previous Supreme Courts."  Indeed, the conclusion that the Supreme Court is merely the "Rule of Five" is one that might even be more widely - - - although again not universally - - - shared than conclusions about any particular Court.  It is what can make Constitutional Law courses so challenging. 

Segall quickly retreats from the more comprehensive argument: "A comparative analysis of the various Supreme Courts’ reliance on prior law is well beyond the scope of this Article."   Yet he contends that regardless "of whether prior Courts can be accused of similar attitudes, the general indifference of the Roberts Court to these rule-of-law values is troubling."   With three controversial cases, Segall mounts an argument that many will find persuasive.

RR

CFP: ConLaw Section AALS

AALS Section of Constitutional Law Calls for Papers       

The AALS Section of Constitutional Law will hold two panels at the AALS Annual Meeting, January 4-8, 2012, in Washington, D.C. 

The section is inviting submission of abstracts for scholars who would like to be part of a panel on either of the issues set out below.  Junior scholars, women, and faculty of color are especially invited to submit an abstract.  Each abstract should be no more than five pages.  One or more speakers at each panel will be selected from those submitting abstracts. Abstracts should be submitted (electronically, by Word or rtf document) by June 30, 2011 to Professor Garrett Epps, President, AALS Section of Constitutional Law University of Baltimore School of Law, 1415 Maryland Ave, Baltimore MD 21201 email: gepps AT ubalt.edu

 

PANEL ONE: American Citizenship in the 21^st Century

American citizenship, whether acquired by birth or naturalization, has become intensely controversial in the past five years.  Two provisions of the Constitution relate to it most directly: the requirement in Article II that the President must be a “natural born citizen” (coupled with varying requirements for length of citizenship for service in the House and Senate), and the Citizenship Clause of the Fourteenth Amendment, which recognizes birthright citizenship for “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”  However, unlike in many contemporary constitutions, there is no complete constitutional definition of citizenship or description of its privileges, responsibilities, or qualities.  Much of the process of its acquisition or recognition is governed by statutes passed under Congress’ authority “to establish an uniform rule of naturalization.” Congress and state legislatures are debating proposals to amend the Fourteenth Amendment to eliminate birthright citizenship or to seek to do the same thing by state or federal statute.  Others insist that Congress lacks authority to vary the current rule, and that states have no role to play in regulating or determining citizenship. Many believe that this issue is sure to come before the federal courts in the near future. In the immigration context, proposals to provide a “path to citizenship” for undocumented aliens are seen by some as indispensable to comprehensive immigration reform, while others decry any measure to do this as “amnesty.”  In either case, the presence of as many as 12 million undocumented aliens exerts a significant effect on the machinery designed to regulate immigration and citizenship, and may by default create in practical terms two tiers of citizenship, reviving the old common-law concept of the “denizen.” Beyond this, the nature of American citizenship is contested at the philosophical and political level, with arguments drawing on history, political theory, and comparative law and policy. 

What does American citizenship mean today? How has its meaning changed over time? What is the future of the concept and the policy and legal apparatus that maintains it. Our first panel is open to participants who submit thought-provoking and original abstracts on any aspect of this issue, whether doctrinal, theoretical, economic, comparative, or empirical.

PANEL TWO: Article V: “To All Intents and Purposes”

Proposals to amend the Constitution have arisen in a variety of context in the last decade, quickening in pace as the ideological gulf within our society widens.  Activists of both parties have repeatedly called for specific amendments to change certain features of the Constitution or overturn Supreme Court interpretations of its meaning.  Others, both on the right and left, have begun to organize a serious effort to spark a call from Congress for a new Constitutional Convention to propose amendments.  Article V, the mechanisms setting up the amendment process, is little understood and seldom taught as part of the Constitutional Law curriculum.  Many political scientists and scholars criticize Article V as requiring too great a consensus for a proposed amendments.  Others express concern that the Convention mechanism, which has never been used, could open the political system to sudden radical change without adequate democratic participation and public deliberation.  Quite remarkably, the most recent Amendment actually adopted (in 1992) was proposed by the First Congress in 1789, and approved by legislatures over a 200-year window, leading to suggestions that the Article V mechanism has inadequate limits on its workings.

How does Article V really work?  How has its practical function changed since Madison proposed the first Amendments (many of which were not adopted; the others of which became the Bill of Rights)?  What light is shed on it by the fact that the Convention designed two features in the Constitution that could never be amended? What can we learn from the two periods—the aftermath of the Civil War and the Progressive Era—when political movements and popular majorities made effective use of Article V? What are the perils and promises of the Convention mechanism? What is the role of Congress in the process? How does popular constitutionalism play into the process? Is it time to use Article V to amend Article V? Again, the Section invites abstracts on any aspect of Article V, again from a wide variety of perspectives, and including descriptive, analytical and normative work.

Images for Constitutional Law

For those ConLawProfs looking for images to enliven the classroom or scholarship (or even a blog), public access images are always welcome. 

Yale University has announced "free access to online images of millions of objects housed in Yale's museums, archives, and libraries" in a new "Open Access" policy. 

  


Among the images are "The Declaration of Independence" (above) and an 1844 lithograph of Chief Justice John Marshall.

RR
(H/T Julie Graves Krishnaswami)

NLRB Challenges Arizona's Secret Ballot for Union Representation

The National Labor Relations Board filed suit last week against the State of Arizona challenging its constitutional provision that guarantees the right to vote by secret ballot for employee representation.  The complaint alleges that Article 2, Section 37, of the Arizona Constitution--approved by Arizona voters just last November--is preempted by the National Labor Relations Act.

Article 2, Section 37, of the Arizona Constitution reads as follows:

The right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

But the National Labor Relations Act permits (but does not require) secret ballot elections only in certain circumstances.  Otherwise, employees have the right to organize and to bargain collectively "through representatives of their own choosing."  29 U.S.C. Sec. 157.

The NLRB argues that the state constitution clashes with the Act:

Because Article 2, Section 37, of Arizona's constitution provides that a secret ballot election is "guaranteed" wherever federal law "permits or requires elections" (emphasis supplied), Article 2, Section 37, requires elections where federal law does not and thereby deprives private sector employees of their right to pursue the other options permitted by federal law to designate, select, or authorize representatives of their own choosing and to secure their employers' voluntary recognition of such representatives.

We posted on other states' efforts to limit collective bargaining rights here.

SDS

Caricatures of Supreme Court: Just for Fun

 
A bit of humor as the semester winds down for many conlawprofs and the grading begins. 

The Zoopreme Court tumblr site features caricatures of Justices and a few opinions.  They are usually  plays on the names, though a bit of politics can be evident. 

Here's the recently retired, but still in the news, including as the author of a forthcoming memoir, Justice Stevens, as

"John Paul Steervens": 

RR

 

Five Chiefs: Stevens' Forthcoming Book

Retired Supreme Court Justice JP Stevens will be adding a book to his considerable publications: Five Chiefs has been announced by the publisher Little, Brown with a pub date of the First Monday in October.

Here is the description from amazon.com:

When he resigned last June, Justice Stevens was the third longest serving Justice in American history (1975-2010)--only Justice William O. Douglas, whom Stevens succeeded, and Stephen Field have served on the Court for a longer time.

In Five Chiefs, Justice Stevens captures the inner workings of the Supreme Court via his personal experiences with the five Chief Justices--Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts-that he interacted with. He reminisces of being a law clerk for Vinson; a practicing lawyer for Warren; a circuit judge and junior justice for Burger; a contemporary colleague of Rehnquist; and a colleague of current Chief Justice John Roberts. Along the way, he will discuss his views of some the most significant cases that have been decided by the Court from Vinson, who became Chief Justice in 1946 when Truman was President, to Roberts, who became Chief Justice in 2005.

Packed with interesting anecdotes and stories about what goes on inside the Court--how the Justices organize their work, their relationships with one another, how clerks are picked, and much more--Five Chiefs is an unprecedented and historically significant look at the highest court in the United States.

Something to put on that fall reading list.

RR

 

The Filibuster and Judicial Nominees

The Senate this week voted 50-44 along party lines to seat John McConnell on the U.S. District Court for Rhode Island 14 months after President Obama first nominated him. 

To get to the vote, however, the Senate had to invoke cloture to break a Republican filibuster.  Republicans opposed McConnell because of his positions on behalf of clients (including a public nuisance theory against lead paint manufacturers), his contracts with states to represent them in certain cases, and an allegation that he lied to the Senate Judiciary Committee during his confirmation process.  (Senator Cornyn outlined the case against McConnell in Wednesday's Congressional Record, at S2596.)

Senator Leahy responded on the merits and recounted the history of legislative deference to Presidential district court nominees under its "advice and consent" role:

I cannot recall a single instance in which a President's judicial nomination to a Federal trial court, a Federal district court, was blocked by a filibuster. . . .

Looking back over the last six decades, I found only three district court nominations--three in over 60 years--on which cloture was even filed. . . .  All three of those nominations were confirmed. . . .

From the start of President Obama's term, Republican Senators have applied a heightened and unfair standard to President Obama's district court nominees.  Senate Republicans have chosen to depart dramatically from the long tradition of deference on district court nominees to the home State Senators who know the needs of their States best.  Instead, an unprecedented number of President Obama's highly qualified district court nominees have been targeted for opposition and obstruction.

That approach is a serious break from the Senate's practice of advice and consent.  Since 1945, the Judiciary Committee has reported more than 2,100 district court nominees to the Senate.  Out of those 2,100 nominees, only five have been reported by party-line votes.  Only five total in the last 65 years.  Four of these five party-line votes have been against President Obama's highly qualified district court nominees.  Indeed, only 19 of those 2,100 district court nominees were reported by any kind of split rollcall vote at all, and five of those, more than a quarter, have been President Obama's nominees, including Mr. McConnell.

Cong. Rec. at S2599.  Leahy also recalled that Republicans "[j]ust a few years ago" argued that filibusters against judicial nominees were unconstitutional.  (Leahy stopped short of agreeing with that position.)

Ultimately the cloture vote on McConnell's nomination passed 63-33, with 11 Republicans joining the Democrats.

McConnell's process is a poignant case study in the Senate's powerful role in judicial appointments and ultimately in the work of the judiciary.  (Nearly 10 percent of all federal judgeships are vacant.  37 of these are considered to be "judicial emergencies."  We covered one of those emergencies here.)

It's also a reminder of the many powers of the minority party in the Senate, in judicial nominations and more generally in the work of the Senate.  For example, in addition to filibustering McConnell, Republicans called for a quorum in the debate referenced above.  The quorum call can eat up floor time and delay proceedings, sidetracking the body and holding up its work.

For more on the status of federal judicial nominations, check out JudicialNominations.org.

SDS

Republicans Move for Changes to CFPB

Senate Republicans wrote Thursday to President Obama that they would hold up any nomination to head the new Consumer Financial Protection Bureau, created under the Dodd-Frank financial regulation act, unless the administration agrees to "structural changes that will make the Bureau accountable to the American people." 

Senate Republicans identified three "common sense reforms":

• Replace the single Director with a Board.
• Take the CFPB's funding out from under the Federal Reserve and put it directly through the regular appropriations process.
• Allow the Financial Stability Oversight Council to set aside or stay any regulation issued by the CFPB "if the regulation puts at risk the safety and soundness of the entire U.S. banking system or the stability of the U.S. financial system."  (Here's a FAQ sheet on the FSOC, a body created by Dodd-Frank and housed in Treasury.)

These reforms are similar to those in legislation passed this week along party lines in the House Committee on Financial Services.  H.R. 1121 would replace the Director with a five-person Commission, each nominated by the President and confirmed by the Senate, serving staggered five-year terms and removable by the President only for cause.  H.R. 1315 would allow the FSOC to review and set aside CFPB regulations.  And H.R. 1667 would hold up the transfer of functions from the Fed, the FDIC, and other agencies to the CFPB, and would keep interim CFPB functions within Treasury, until the President nominates, and the Senate confirms, a Director.  (H.R. 1667 requires Senate confirmation, not a recess appointment.)

President Obama has yet to nominate a Director, but Elizabeth Warren is serving as an advisor and helping set up the CFPB.

The Senate Republicans' move apparently leaves four options for the President: Agree to the proposed changes (and get Senate consideration, though not certain confirmation, for a nominee); make a recess appointment and keep the CFPB as is; negotiate down the Republicans' demands; or do nothing. 

The House legislation would further limit options by requiring Senate confirmation of a Director before the CFPB could get off the ground on its own.  This would force a nomination in order to get full and independent authority for the CFPB.

SDS

O Canada: The Election and Torture Worries

The re-election this week in Canada of PM Harper and a decisive victory for his Conservative party was presumably not cause for celebration for Craig Scott, Professor of Law at Osgoode Hall.   Scott's article, Will Canada Be an Open Democracy after May 2?, available on ssrn, posits there is a "threat to open democracy in Canada posed by the nearly pathological extent to which secrecy and manipulation of access to the truth has taken over Ottawa and Parliamentary affairs in Canada" under Harper.  

 

 

Scott's specific concern should be of great interest to US constitutional scholars.  Scott questions the Canadian government's "policy of transferring detainees in Afghanistan to Afghan intelligence services (notably, the National Directorate of Security or NDS) in full knowledge of the torture practices of those agencies and thus of the risks faced by each transferred detainee."

RR

Obama Made His Guantanamo Bed . . .

Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.

Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance."  According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.

With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw.  After the ban,

[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission.  Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive.  Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.

In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.

This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.

But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts.  And with regard to Guantanamo, he once seemed truly committed to closing.  Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance."  (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.) 

But in the end the congressional ban on transfers was a congressional ban.  (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.)  The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way. 

SDS

Gun Show Bans Don't Violate Second Amendment, Ninth Circuit Rules

A three-judge panel of the Ninth Circuit ruled today that a ban on gun shows on municipal property does not violate the Second Amendment.

In the long-running and procedurally dizzying case Nordyke v. King, the panel rejected a categorical application of strict scrutiny to all Second Amendment claims and instead applied a "substantial burden" test to the municipal ban:

Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. . . .

The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms in self-defense. . . .

We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.

The panel ruled that the ban on gun shows on municipal property did not substantially burden the Second Amendment right to keep and to bear arms.  (It also ruled that the ban did not violate the First Amendment or the Equal Protection Clause.)

Judge Gould, concurring, would have upheld the ban under a rational basis test.  Here's Judge Gould's formulation:

Drawing from First Amendment doctrine, I would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country; I would subject incidental burdens on the Second Amendment right (analogous to time, place, and manner speech restrictions) to reasonableness review.

SDS

Court to Hear Challenge to President's Foreign Affairs Power

The Supreme Court today agreed to hear a case involving the justiciability of a dispute over the administration's non-recognition of Jerusalem as the capital city of Israel.  But the Court also instructed the parties to brief the scope of Presidential power to recognize foreign sovereigns.  (See page 3 of the May 2 Order List.)  The case thus gives the Court a rare opportunity to explore the contours of separation-of-powers in foreign affairs and the President's foreign affairs power.

The case arose out of a dispute over a the recorded birthplace of a U.S. citizen born in Jerusalem.  Petitioner's mother asked the State Department to record the birthplace as "Jerusalem, Israel" on the petitioner's Consular Report of Birth Abroad and U.S. passport.  But the State Department regs and policy required it to record merely "Jerusalem" as the birthplace.

The State Department's long-running policy not recognizing Jerusalem as Israel's capital (or even as a city within Israel's sovereign territory) is designed to preserve U.S. neutrality on state sovereignty over Jerusalem, leaving that issue to be decided by negotiation between the parties to the Arab-Israeli dispute.  According to the State Department's assessment, "[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise" the peace process.

In 2002, however, Congress enacted, and the President signed, legislation that specifically required the State Department to list "Israel" as the birthplace of any citizen born in Jerusalem, upon the parents' request.  President Bush issued a signing statement construing the provision, Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, as advisory, not mandatory, because it "impermissibly interfere[s] with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine teh terms on which the recognition is given to foreign states."

The petitioner sued, but both the district court and D.C. Circuit dismissed the case as a nonjusticiable political question.

The Supreme Court today agreed to hear the case, with this further instruction:

In addition to the question presented by the petition [whether the case presents a nonjusticiable political question], the parties are directed to brief and argue the following question: "Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns."

The case thus puts front-and-center the question of Presidential authority over foreign affairs when executive policy and action violate plain law.  The case is unusual in that executive action and the law directly and obviously conflict, pitting one source of authority (the President's Article II powers) immediately against another (Section 214) and thus bringing Presidential foreign affairs power into particularly sharp focus.

We might also look for anything the Court has to say about Presidential signing statements that decline to enforce a law based on its intrusion into core areas of executive responsibility. 

The administration argued against review.  In its view, the lower courts properly dismissed the case as a nonjusticiable political question, because under the recognition or nonrecognition of foreign sovereigns is textually committed to the executive branch (under Article II, Section 3, the power to "receive Ambassadors and other Public Ministers.").  Baker v. Carr.

SDS

No Backdoor Standing to Challenge Emissions Waiver

The D.C. Circuit ruled on Friday that the Chamber of Commerce and the National Automobile Dealers Association (NADA) lacked associational standing to sue the Environmental Protection Agency to block its waiver of greenhouse gas emissions standards to California and other states.  The court thus dismissed the case.

The plaintiffs' petition challenged the EPA's waiver, which allowed California and other states to adopt and enforce greenhouse gas emissions standards that exceeded the EPA's own standards.  (The Clean Air Act prohibits states from adopting more restrictive standards but allows the EPA to grant waivers.)

But last April, the EPA and the National Highway Transportation Safety Administration jointly issued a national program of greenhouse gas emissions and fuel economy standards for marketing years 2012 through 2016.  The standards grew out of an agreement with the agencies, the State of California, and major automobile manufacturers.  Under the agreement, California amended its regulations to deem compliance with the national standards compliance with its own standards for these years.  (For years 2009 through 2011, California adjusted its standards to make compliance somewhat easier.)

As a condition of the agreement, major auto manufacturers and their trade associations agreed not to sue to contest the new national standards or the California waiver.

But that agreement (alone) didn't stop the Chamber of Commerce and NADA to challenge the regs and waiver on behalf of auto dealers.

The D.C. Circuit nevertheless ruled that they lacked standing.  (The Chamber failed to allege that one of its members was affected and therefore lacked associational standing.  NADA, however, identified allegedly injured members.)  As to the years 2009 through 2011, the court ruled that the NADA failed to alleged with sufficient determinacy that manufacturers would adjust the "mix" of vehicles offered to dealers in waived states (thus affecting the dealers' sales) and that manufacturers would necessarily raise the price of vehicles (also affecting sales).  Part of NADA's problem was that Ford planned to raise its emissions standards on its own, even before the EPA granted California's waiver, thus undercutting any causation and redressibility.  (The two dealers that provided affidavits in support of standing sold Ford cars.)

As to years 2012 through 2016, the court wrote that Ford planned to up its own standards, independent of federal regulation, and that the case was moot.  Why moot?  Because starting in 2012, manufacturers will have to comply with federal standards, and compliance with those standards will also satisfy California under the 2010 agreement.  In other words, manufacturers will have to meet the federal standards, anyway, and their meeting the exact same California standards cannot possible harm dealers.

SDS