Wednesday, August 31, 2011

D.C. Circuit: No First Amendment Protection for Speaking Truth as Public Employee

A three-judge panel of the D.C. Circuit today denied a petition for rehearing of a public employee who claimed he was fired in retaliation for exercising his First Amendment free speech rights.  The panel ruled that the employee's speech was not covered by the First Amendment, because it wasn't "pursuant to his official duties."  The ruling puts the D.C. Circuit in tension with a recent Second Circuit ruling that would protect similar speech. 

The D.C. case, Bowie v. Maddox, arose when Bowie, an employee of the D.C. Office of the Inspector General, refused to sign an affidavit drafted for him in response to a former subordinate's employment discrimination claim against the Office.  Bowie instead rewrote the affidavit in a manner critical of the Office's decision to fire the employee.  In response, Bowie was fired.  The D.C. Circuit previously ruled that Bowie's speech was pursuant to his official duties and therefore, under Garcetti v. Ceballos, not protected by the First Amendment.

But the day after Bowie filed a petition for rehearing, the Second Circuit ruled in Jackler v. Byrne that similar speech by a public employee was protected by the First Amendment.  (We previously posted on Jackler here.)  In Jackler, the employee, Jackler, filed a report documenting another officer's use of excessive force.  The chief of police and two administrative officers pressured Jackler to withdraw his report and file a false one.  Jackler refused, and he was fired.  The Second Circuit ruled that Jackler had a strong First Amendment interest in his refusal to file a dishonest report.

The D.C. Circuit panel saw it differently.  The panel said that the Second Circuit got Garcetti wrong.  It wrote that the Second Circuit erroneously ruled that Jackler's refusal was protected because it had a civilian analogue--a private citizen's right to refuse to file a false police report.  Instead, the D.C. panel ruled, Garcetti asks whether the speech was pursuant to an employee's official duties.  The panel affirmed that Bowie's speech was.

(In fact, the Second Circuit ruled first that Jackler's non-speech was on a matter of public concern (an officer's use of excessive force) and only second that Jackler's non-speech had a civilian analogue.  Jackler at 21-22.  The Second Circuit also distinguished Garcetti--which held that a deputy DA had no First Amendment interest in a memorandum he wrote as part of his official duties--because there was no pressure in that case to falsify anything.  "In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report."  Jackler at 23-24.)

The ruling puts the two circuits in tension on the application of Garcetti to a public employee's refusal to provide false statements in the course of their official duties.  For D.C., Garcetti means that any speech within a public employee's official duties is unprotected, even if it has a civilian analogue; for the Second Circuit, a public employee's refusal to file a false report on officers' use of excessive force is protected, because it is a matter of public concern and because it has a civilian analogue.


August 31, 2011 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Goodwin Liu to be on California Supreme Court

Goodwin Liu will be sworn in an as associate justice of the California Supreme Court on Thursday, at noon PST.

Goodwin Liu
Liu was nominated by President Obama for a judgeship on the Ninth Circuit, but was the subject of a Senate fillibuster

He has been a ConLawProf at UC-Berkeley (Boalt Hall) since 2003 and clerked for Justice Ruth Bader Ginsburg.


August 31, 2011 in Courts and Judging, News, Profiles in Con Law Teaching | Permalink | Comments (1) | TrackBack (0)

Federal Judge Enjoins Portions of Texas Abortion Statute

Federal District Judge Sam Sparks has enjoined portions of HB 15, an Act “relating to informed consent to an abortion.” H.B. 15, 82nd Leg., Reg. Sess. (Tex. 2011) in his Order in Texas Medical Providers Performing Abortion Services v. Lakey.

Judge Sparks certified both a plaintiff class of medical providers and a defendant class of state actors, then proceeded to consider the plaintiffs' constitutional objections one by one.  In his 55 page opinion, Judge Sparks had little complimentary to say about the lawyering on both sides; indeed, he leveled sharp criticisms. 

Texas Womens_Museum_exterior_sculpture Judge Sparks also made clear his disapproval of the intent behind the Act that amended Texas' already restrictive abortion laws, stating in footnote 2:  "It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care."  Yet this footnote was in the context of his rejection of Plaintiffs' equal protection arguments, which he found meritless: "In short, if the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances."

Criticizing the "litany" of vagueness challenges by Plaintiffs and agreeing with the "Defendants’ characterization that 'plaintiffs have chosen to throw everything at the wall and hope something sticks,' ” Judge Sparks nevertheless found that three provisions of the Act were unconstitutionally vague:

  • First, the phrase “the physician who is to perform the abortion,” a phrase used in section 171.012(a)(4), is unclear as it relates to both multi-physician procedures and unplanned physician substitutions.
  • Second, the conflict between sections 171.012(a)(4) and 171.0122 creates unconstitutionally impermissible uncertainty regarding what will, and what will not, subject a physician or a pregnant woman to liability.
  • Finally, section 171.0123 is unconstitutionally vague regarding the scope of a physician’s duty to provide paternity and child support information to women who choose not to get abortions.

In finding these sections unconstitutionally vague, Judge Sparks emphasized that the lack of clarity was balanced against the serious penalities, so that neither physicians nor women should have to trust Defendants’ representations about the meaning of the provisions or otherwise guess.

Most seriously, Judge Sparks found several provisions of the Act constitutionally infirm under the compelled speech doctrine of the First Amendment.  Sparks distinguished Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), on which the Defendants largely relied, by noting that

the Pennsylvania statute in Casey simply required physicians to inform pregnant women about the risks of an abortion, the potential alternatives thereto, and the availability of additional informational materials related to those alternatives. By contrast, the Act under consideration here requires physicians to provide, in addition to those legitimate disclosures, additional information such as descriptions of “the presence of cardiac activity,” and “the presence of external members and internal organs” in the fetus or embryo. The Court does not think the disclosures required by the Act are particularly relevant to any compelling government interest, but whatever relevance they may have is greatly diminished by the disclosures already required under Texas law, which are more directly pertinent to those interests.

Judge Sparks also found troubling under compelled speech doctrine Section 171.012(a)(5) that requires a pregnant woman to complete and sign a specified election form that certifies her understanding of many of the Act’s various requirements.  "The Court need not belabor the obvious by explaining why, for instance, women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police. There is no sufficiently powerful government interest to justify compelling speech of this sort, nor is the Act sufficiently tailored to advance such an interest."  Compounding this compelled speech was the section that required the patient's certification be placed in the woman's medical records and maintained by the facility for seven years - - - making it "difficult to avoid the troubling conclusion   the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women."

The Judge gave the severability clause of the Act effect, although he also enjoined "enforcement of any portion of the Act that conflicts with any of the above relief. This includes, but is not limited to, any penalty provision of the Act or any other statute that would impose a penalty for a person acting in compliance with this opinion." 

"The Court is bound to respect legislative intent, but not at the expense of the Constitution," Judge Sparks concluded.  Presumably, the preliminary injunction order will be appealed to the Fifth Circuit.

[image: Exterior Sculpture from The Women's Museum of Texas, via]

August 31, 2011 in Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (3) | TrackBack (0)

Tuesday, August 30, 2011

Michigan Court Rejects End-Run to Cut State Employees' Negotiated Salary Increase

A three-judge panel of the Michigan Court of Appeals, Michigan's intermediate appellate court, ruled last week that the Michigan Constitution prohibited the legislature and then-Governor Granholm from requiring that 3% of state employees' salaries go to the public employee retirement health care fund.  The ruling rebuffs the attempted legislative end-run around a state constitutional delegation of power over public employees' salaries to the state Civil Service Commission.  It also deals a blow to the legislature's attempt to balance the state's books on the back of state workers.  According to the Detroit Free Press, the governor's office is considering whether to appeal.

The case, AFSCME Council 25 v. State Employees Retirement System, arose out of the legislature and governor's attempt to roll back a negotiated 3% pay raise over three years for state workers.  Public employee unions negotiated the pay increase and got it approved by the state Civil Service Commission, an independent body, with bi-partisan members appointed by the governor. 

The Commission had plenary authority over state workers' salaries until the state constitutional convention in 1961.  At that time, Michigan voters approved a new article, Article 11, Section 5, that also gave the legislature a hand--but a small one--in setting salaries.  Under Article 11, Section 5, of the 1963 Constitution, the Commission still gets to approve salaries, but the legislature can override a Commission decision by 2/3 vote in each house within 60 days of the Commission decision.

The legislature tried to override the Commission's approval of a 3% pay increase here, but it failed.  So instead it tried an end-run around the Constitution by enacting a law, by bare majority (and not 2/3), that sent 3% of state workers' salaries to the public employee retirement fund.  The move meant that employees didn't see their negotiated pay raise; that money went instead to partially make up a deficit in the fund.

The court ruled that this end-run violated Article 11, Section 5, and state constitutional separation of powers.  The court noted that the Michigan Constitution has a separation-of-powers clause that ensures that none of the three branches interferes with the work of the others, except when specifically authorized by the Constitution.  It reads:

The powers of government are divided into three branches: legislative, executive and judicial.  No person exercising powers of one branch shall exercise powers belonging to another branch except as expressly provided in this constitution.

Article 3, Section 2.  The only express provision allowing the legislature to interfere with the work of the Commission was the 2/3 override provision in Article 11, Section 5.  Thus, the action was ultra vires--unauthorized by Article 11, Section 5, and violating separation of powers.

The ball's now in the government's court.  It can appeal to the Michigan Supreme Court (which seems likely), or it can pay back state workers the $59 million it withheld from their salaries to put into the fund.


August 30, 2011 in Cases and Case Materials, Comparative Constitutionalism, News, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

First Circuit: Police Officers Lack Qualified Immunity in Cell Phone Recording Arrest

The First Circuit has denied qualified immunity to several police officers who arrested a bystander for recording their arrest of a third person in its opinion in Glik v. Cunniffe

Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common - - - a site the court describes as "the oldest city park in the United States and the apotheosis of a public forum."  The charges against Glik, which included violation of Massachusetts's wiretap statute were "subsequently judged baseless and were dismissed." Glik then brought suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.  The ACLU is representing Glik, and produced the video below that discusses Glik's case and includes an interview with Glik.




 Affirming the district judge on this interlocutory appeal, the court applied the two prong test for qualified immunity: do the allegations show a constitutional violation; and was such constitutional violation "clearly established" at the time of the incident.  For the constitutional violation to be clearly established, the law must have been clear and the defendants must have reasonably understood their actions violated the plaintiff's rights given the facts.

On the First Amendment issue regarding Glik's right to use his cell phone to record police officers in a public place, the First Circuit held that while there need not be a case directly on point, the First Circuit did have such a case.  The court also noted that what was "particularly notable" about that case was the "brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space."  For the court, this very "terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area."  The court summed up its conclusion thusly:

Although not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

The court thus stated it had "no trouble concluding"  that the state of the law at the time of the alleged violation was settled and gave the defendants fair warning that their particular conduct was unconstitutional. 

As for the Fourth Amendment issue, the question was whether Glik's use of the cell phone that included an audio recorder provided probable cause to arrest Glik for violating the Massachusetts wiretap statute.  The court carefully examined state law, holding that it was clear that to violate the state statute the recording had to be surreptitious.  The complaint alleged that Glik was openly recording the officers, however the officers countered that while they might have known he was video-recording them, they would not necessarily know he was audio-recording them.  This was insufficient, the court held, to render the recording "secret."

Thus, Glik's complaint will proceed to trial in district court.  Assuming Glik can prove the facts alleged in the complaint, qualified immunity was the best defense for the officers.   Odds on a settlement?

[h/t Nate Treadwell]

August 30, 2011 in Cases and Case Materials, Criminal Procedure, First Amendment, Fourth Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

Alabama Immigration Law HB56 Enjoined by Federal Judge


In a very brief Order issued late today, Judge Sharon Lovelace Blackburn, Chief Judge of the Norther District of Alabama, enjoined the enforcement of HB56:


Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first.

The Order comes in the consolidated cases of Hispanic Interest Coalition of Alabama v. Bentley; Parsley v. Bentley, and United States v. Bentley.   We've previously discussed each of these three lawsuits have been brought against the controversial HB 56. 

The Hispanic Interest Coalition case began with a 118 page complaint filed early in July raises eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First Amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and two Sixth Amendment claims. 

Parlsey v. Bentley is the clergy complaint centering on the First Amendment Free Exercise Clause. 

United States v. Bentley marks the DOJ's entry into the controversy, raising Supremacy Clause arguments as might be expected.

The law was scheduled to go into effect September 1. 

[image: Map of Alabama, circa 1832, via]

August 29, 2011 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Interpretation, Preemption, Race, Sixth Amendment, Speech, Supremacy Clause | Permalink | Comments (2) | TrackBack (0)

Seventh Circuit Denies Qualified Immunity to Officers for Failure to Provide Medical Care

A panel of the Seventh Circuit ruled last week that Chicago Police Department lockup officers did not enjoy qualified immunity for denying medical care to an arrestee when the officers knew about the arrestee's medical condition and that she needed care. 

The case, Molina v. City of Chicago, is the latest chapter in the long-running litigation between the estate of May Molina, a prominent civil rights activist, and the City and CPD officers arising out of Molina's death while in police custody prior to her probable cause hearing. 

Eugène_Ferdinand_Victor_Delacroix_007 Molina was arrested after seventeen officers raided her home on a drug tip and recovered a number of tinfoil packets and some brown putty.  Arresting officers denied Molina permission to take along her medication for diabetes; lockup officers refused to give her medical attention when she asked for a doctor--and quite clearly needed one.  Molina died while in custody.  (There's a factual dispute about the cause of Molina's death: her estate argues that she died because she didn't have her diabetes medication, while the defendants argue that she died of a heroin overdose.  There's a related evidentiary dispute about the lower court's rejection of Molina's expert (which the Seventh Circuit reversed).  But the case came to the court on appeals of summary judgment in favor of the defendants; the court ruled that the facts viewed in the light most favorable to Molina warranted reversal.)

The court ruled that the lockup officers were aware of Molina's condition and that they denied her appropriate medical care.  But the defendants argued that they were entitled to qualified immunity, because at the time of Molina's detention the law wasn't clear what standard applied--the Eighth Amendment "deliberate indifference" standard or the Fourth Amendment "objectively unreasonable" standard. 

The court rejected that argument.  It ruled that it had long held that the Fourth Amendment protected an arrestee until the probable cause hearing.  But in any event, it didn't matter: Molina's evidence could also show that the officers violated the higher Eighth Amendment standard.

The ruling means that the case goes back to the district court on Molina's claim that she was denied medical care. 


[Image: Delacroix, The Prisoner of Chillon, Wikimedia Commons]

August 29, 2011 in Fourth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Saturday, August 27, 2011

Hurricane Irene and the Constitutional Duty to Protect the Incarcerated

As New York City braces for Hurricane Irene, with the transit system being halted since noon today, and 300,000 people ordered to evacuate low-lying areas in the five boroughs, according to NYC Mayor Michael Bloomberg there are absolutely no plans to address the situation of inmates at the city's main detention center on Rikers Island. 

800px-Rikers_Island_from_the_air Rikers Island (pictured right) is indeed an island; it is located in the East River between Queens and the Bronx, due east of Manhattan. It practically touches the runways of LaGuardia airport, from which all flights have been suspended today and Sunday.

As Solitary Watch reported yesterday:

more than three-quarters of Rikers Island’s 400 acres are built on landfill–which is generally thought to be more vulnerable to natural disasters. Its ten jails have a capacity of close to 17,000 inmates, and normally house at least 12,000, including juveniles and large numbers of prisoners with mental illness–not to mention pre-trial detainees who have yet to be convicted of any crime. There are also hundreds of corrections officers at work on the island.

Today, the Center for Constitutional Rights (CCR) urged the City to act immediately to protect the prisoners. 

In Lessons from Hurricane Katrina: Prison Emergency Preparedness as a Constitutional Imperative, published in University of Michigan Journal of Law Reform and available on ssrn, Professor Ira Robbins considers the fate of the more than 8,000 residents of the Orleans Parish Prison (OPP) when Hurricane Katrina struck. Robbins notes that despite a "mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP. When the inmates were finally evacuated from OPP, they suffered further harm, waiting for days on a highway overpass before being placed in other correctional institutions, where prisoners withstood exposure to the late-summer Louisiana heat and beatings at the hands of guards and other inmates"

Robbins argues that the situation was not merely tragic, but was unconstitutional - - - violating the prisoners Sixth and Eighth Amendment rights, as well as international human rights standards.  He advocates that change should occur through a mix of litigation and legislation, including the establishment of emergency courts "to enable the administration of justice to resume promptly following serious natural or man-made disasters."  

In his 2008 article, Robbins urged government officials to "internalize the lessons of Hurricane Katrina, which demonstrated the consequences of inadequate preparation and planning for prisoners' safety during and after a major emergency."

New York City does not seem to be heeding Professor Robbins' advice.

[aerial photo of Rikers Island via]

August 27, 2011 in Current Affairs, Fundamental Rights, News, Sixth Amendment | Permalink | Comments (1) | TrackBack (0)

Friday, August 26, 2011

White House Publicizes Push-Back on Hold Ups of Judicial Nominees

The White House recently posted this info-graphic (below) on the administration's successes in judicial nominees and on congressional footdragging.  According to the stats, President Obama has seen only 62.6% of his nominees confirmed (compared with 86.8% for President George W. Bush, 84.2% for President Clinton, and 77.9% for President George H.W. Bush).  Obama circuit court nominees have waited on average 151 days between their vote in the Senate Judiciary Committee and confirmation (compared with 29 days for President Bush's nominees); district court nominees have waited on average 103 days (compared with 20 days for President Bush's nominees).  President Obama nominated 20 judges who passed the Judiciary Committee but have yet to receive a vote in the Senate.

As a result, one of ten federal judgeships is vacant, and the wait for civil trials is increasing.  According to Chief Justice Roberts (in his 2010 year-end report on the federal judiciary): "Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary."


Check out for more.


August 26, 2011 in Appointment and Removal Powers, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Paradox of Political Power: William Carter on Post-Racialism and Equality

The paradox is one that has almost become taken for granted.  As ConLawProf William Carter (pictured below) phrases it in his new essay, The Paradox of Political Power: Post-Racialism, Equal Protection, and Democracy, available on ssrn:

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system.

Carter_WebPhoto Carter argues that the Supreme Court has contributed to this paradox.  Importantly, Carter contends that electoral success has been "isolated," despite the election of President Obama, and that the Court has not uniformly supported legislative acts to increase electoral representation.  Additionally, Carter notes the "tension" between the "Court's conservatives' repeated calls for minorities to achieve their goals through the political process" and the ways in which the Court "severely constrains the circumstances" in which the political power of racial minorities can effectively be exercised.

In discussing Ricci v. DeStefano (2009), Carter concludes that the Court's majority opinion "showed deep suspicion of black political power."  Carter contends that the Court found that

successful black political advocacy that temporarily prevented the perpetuation of racial exclusion amounted to reverse discrimination against whites. It reached this conclusion despite the fact that no promotions were made at all and the fact that making the racially discriminatory promotions likely would have violated then-existing law. In essence, Ricci makes a racial minority group’s success in using ordinary politics to prevent its continued subordination and exclusion presumptively illegal.

Carter also analyzes Northwest Austin v. Holder, decided the same year as Ricci, involving  §5 of the federal Voting Rights Act.  He provides a different window on the opinion than the ones (such as our discussion) construing it as a narrow opinion that avoided declaring §5 unconstitutional.  For Carter, Justice Roberts "lengthy dicta" was a signal to Congress that several members of the Court believed §5 raised serious constitutional questions.  The opinion, Carter says, was "suffised with post-racialist assumptions about minority political power."   Carter sums up the paradox of voting rights legislation in a neat question: "If racial minorities are powerful enough to have such legislation enacted, then why do they need it?"

The major contribution of Carter's essay, however, is his suggestion for addressing these paradoxes.  In addition to theorizing our understandings of our Constitutional and Equal protection Clause narratives, Carter suggests

the addition of a preliminary step to the equal protection analysis. Prior to the application of
strict scrutiny in cases where racial minorities have used the political process to enact legislation directed toward remedying the effects of past discrimination or otherwise leveling the playing field, the courts should scrutinize the political process that led to the decision in question, not merely the end result.

Undoubtedly, Carter's essay is a noteworthy contribution to our scholarly understanding of recent "race-cases" from the Court.  It is also terrific teaching material.  Carter's relatively brief essay, 34 pages, would make an excellent assignment for students in traditional Constitutional Law courses as well as courses focusing on the Fourteenth Amendment, on Equality, or on Race.  It is sure to inspire discussion and student reaction papers.


August 26, 2011 in Affirmative Action, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Race, Scholarship, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 24, 2011

The Thomases and Health Care Reform

Justice Clarence Thomas and his activist spouse Virginia could deliver a one-two punch to the Affordable Care Act's individual health insurance mandate, Jeffery Toobin writes in his New Yorker article, Will Clarence and Virginia Thomas succeed in killing Obama's health-care plan? 

Toobin traces the couple's many conservative connections and argues that Virginia Thomas has worked tirelessly in her conservative policy circles against the measure just as Justice Thomas has all but called his own vote (against, if there were any doubt) when the mandate inevitably reaches the Court. 

Toobin points to Justice Thomas's concurrence in Printz v. U.S. as evidence that Thomas has led the Court's thinking on the Second Amendment--and that he might lead the Court's thinking on the individual health insurance mandate.  In that case, asking whether Congress had authority to require local law enforcement officers to temporarily conduct background checks on gun purchasers, Justice Thomas agreed with the majority that the law violated the Constitution, but added to the majority's reasoning.  Instead of ruling only that the law violated principles of dual sovereignty (as the majority did), Justice Thomas added (for himself alone) that the original meaning of the Second Amendment might also block the law--a view that presaged the Court's approach in D.C. v. Heller, eleven years later.

Justice Thomas wrote another concurrence, in U.S. v. Lopez, that would have read a more restricted Commerce Clause than the majority in that case.  If Thomas leads the Court's Commerce Clause jurisprudence as he led the Second Amendment jurisprudence, his Lopez concurrence could presage a Court ruling against the individual mandate, just as his Printz concurrence presaged the Court's approach in Heller.

But if Justice Thomas is sometimes a leader in the Court's jurisprudence, he's also sometimes completely out of step--as Toobin himself points out.  Toobin points to Justice Thomas's approach to the Eighth Amendment's prohibition on cruel and unusual punishment, where Thomas's rigid originalism, on full display in his concurrence in Baze v. Rees, would allow all but the most horrific punishments.

His cramped reading of the Commerce Clause in Lopez may be similarly out of step with this Court.  Remember that Chief Justice Rehnquist--no free-wheeler on the Commerce Clause--wrote the opinion of the Court in Lopez; Justice Thomas wrote separately to go him one better.  In terms of Thomas's approach (even if not the result), recall that Justice Scalia, the Court's other famous originalist, even if only "faint-hearted," joined Rehnquist, not Thomas. 

Justice Thomas's vote on the individual mandate may already be in.  But whatever the result in the case, it doesn't seem at all certain that the Court will follow his approach.


August 24, 2011 in Commerce Clause, Congressional Authority, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 23, 2011

Second Circuit Upholds "Protective" Measures Against Student

A three-judge panel of the Second Circuit ruled last week in Cox v. Warwick Valley Central School District that a school principal did not violate the First Amendment or substantive due process rights of a student or his parents when the principal sequestered the student and reported his parents to Child and Family Services after the student wrote a violent and disturbing essay as a class project.

The project required the student to write on what he would do if he only had 24 hours to live.  The student's essay, titled "Racing Time," described getting drunk, smoking, taking drugs, and breaking the law.  It ended with the student shooting himself in front of his friends.

452px-StateLibQld_1_113036_Cartoon_of_students_receiving_the_cane%2C_1888 The student's teacher reported the essay to Principal Kolesar, and Kolesar immediately removed the student from class and sequestered him in a separate room for the rest of the afternoon.  Kolesar released the student at the end of the school day, after he determined that the student did not pose a threat.  But Kolesar later reported his concern that the student's parents neglected him to CFS.  The student's parents brought a civil rights claim against the district for violating free speech and substantive due process.

The unanimous panel rejected the claims.  It said that Kolesar's sequestration of the student was "protective," not retaliation or punishment for the student's speech.  As such, the panel didn't even reach the question whether the student's essay constituted protected speech; instead, it simply ruled that Kolesar took no action to violate free speech. 

As to the parent's substantive due process claim (for interfering with their parental rights), the panel ruled that Kolesar's action--calling CFS--was similarly designed to protect, not to punish.  In fact, Kolesar had a legal duty to report suspected child neglect to CFS.  The panel noted that if it found CFS reports generally to be retaliatory, such a finding would seriously undermine school administrators' ability to protect the children in their charge.

Because the panel found no constitutional violation, the panel didn't rule on Kolesar's qualified immunity.


[Image: Cartoon of Students Receiving the Cane (for drawing "Old Mr. Kerr" on the chalkboard), wikimedia commons]

August 23, 2011 in Cases and Case Materials, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Protection Against Domestic Violence as a Constitutional (Human) Right

Castle Rock v. Gonzales, decided by the United States Supreme Court in 2005, stands for the proposition that one does not have a due process right to have a restraining order enforced by law enforcement.  In Castle Rock, Ms. Jessica Gonzalez had a restraining order against her husband, but despite the fact that he took their three children without permission and she contacted the police department three times and was essentially told to call back later each time, and Mr. Gonzalez murdered all three children without any police action, the Court found that she did not have any due process rights to have the order enforced.

Confronted with a case such as Castle Rock, students may ask whether there is anything else Ms. Gonzalez could do.  The usual answer for ConLawProfs would be no, given that the nation's highest court has rendered its opinion.  However, Ms. Gonzalez, now known as Jessica Lenahan, represented by American law professors and students at University of Miami's Human Rights Clinic took her case to an international forum - - - the Inter-American Commission on Human Rights.


The Commission has just made public its lengthy Report on the matter, finding that the restraining order was the only means available to Jessica Lenahan at the state level to protect herself and her children in a context ofdomestic violence, and the police did not effectively enforce it. The Commission concluded that these failures to protect Lenahan and her daughters constituted a form of discrimination in violation of the American Declaration, since they took place in a context where there has been a historical problem with the enforcement of protection orders; a problem that has disproportionately affected women sincethey constitute the majority of the restraining order holders.

Today, the UN Special Rapporteur on violence against women "urged the United States Government to reexamine its current policies on dealing with violence against women."  

The constitutional effect of such rulings and "urgings" may be limited, but the interrelationship between domestic constitutional law and international human rights is worth surfacing in ConLaw classes.


August 23, 2011 in Gender, International, Procedural Due Process, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, August 22, 2011

Serfs, Jesus, and the Establishment Clause in Advanced Placement History Class

The scene is an advanced history class in an Orange County school, in one of the tonier school districts in the United States, in which Dr. James Corbett has been teaching the AP European History course for the past 16 years with pedagogical goals including critical thinking and provocative engagement with current events. 

In its opinion in CF v. Capistrano Unified School District, a panel of the Ninth Circuit considered the claim by Chad Farnan, a student in the class who eventually withdrew, that Dr. Corbett violated the Establishment Clause by evincing his hostility to religions in general and Christianity in particular.  One of Dr. Corbett's objectionable statements - - - recorded by the student without the teacher's knowledge - - - was a discussion of Joseph II (pictured right).  Anton_von_Maron_006

Joseph II, according to the recording, was trying to end serfdom, but was opposed by the serfs, against their own economic interests, because Joseph II was also trying to reform religion.  Dr. Corbett then analogized this to the situation in "red states" in which people vote against their economic interests and in favor of the Republican party because when they put on their "Jesus glasses" they can't "see the truth."  

Dr. Corbett argued that many of the statements were taken out of context and inaccurate, as well as being the product of a surreptitious recording that violated state law, but the panel declined to discuss that issue.  The panel also declined to reach the ultimate question as to whether a school teacher could violate the Establishment clause by being hostile to religions in general or Christianity in particular.  Instead, the panel found that the defendants were entitled to qualified immunity because any right involved in Farnan's theory of the case was not "clearly established at the time of the alleged misconduct" as would be required.  As the court stated:

We have little trouble concluding that the law was not clearly established at the time of the events in question — there has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion.

In its summation, the panel opined that teachers must be

given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

However, the court did note that at some point a  "teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility."   In this context, the panel's earlier description of Dr. Corbett as "a Christian who regularly prays and attends church services," is a bit troublesome.  Is it relevant that Dr. Corbett is a Christian, or more precisely, not an atheist?

But to be clear, the panel reserved judgment on whether that point had been reached, holding that there was no clearly established law regarding the possibility of such a point.

[image Portrait of Joseph II, Holy Roman Emperor by Anton von Maron via]

Update: See Dr. Corbett's comments below

August 22, 2011 in Establishment Clause, First Amendment, History, Opinion Analysis | Permalink | Comments (2) | TrackBack (0)

It's not the Autopen, It's the Proxy Presence Requirement

Reconsidering President Obama's use of the autopen a few months ago to sign an extension of FISA, the Foreign Intelligence Surveillance Act, Professor Terry Turnipseed argues that

it is not the President’s use of the autopen that is problematic. Rather, the President’s absence during the proxy signing is, and it demands an examination of the very nature of the Constitution’s signature requirement.

In his essay, Turnipseed discusses the origins of proxy signatures, including the presence requirement for proxy signatures in the English Statute of Frauds and Statute of Wills.  He uses these as a lens to view the presentment clause of Art. I §7, requiring that " Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated . . ."  The remainder of the provision allows for a bill to become law by Congressional override of a veto, or by the President's failure to sign or veto a bill within 10 days while Congress is in session. 



For Turnipseed, the signature option is linked to a strong executive and the constitutional separation of powers in Constitutional Convention discussions.  Turnipseed attacks the Nielson Memorandum, on which Obama relied for the autopen signature, claiming that the Memo's "Achilles’ heel"  is found in footnote 11: “[T]he principle of signatures generally required the principal’s presence for his signature validly to be affixed to a document by another person otherwise lacking authority to act on the principal’s behalf …” 

On his view, the footnote is a "shoddily crafted" attempt to circumvent 350 years of history that addressed "the dangers of fraud and undue influence," issues that continue to be of concern today.   He concludes that the "safest method for avoiding fraud is the same today as hundreds of years ago: have the principal sign a document in pen or require that a proxy (whether human or autopen) do so in the presence of the principal."   

[image via]

August 22, 2011 in Executive Authority, History, Interpretation | Permalink | Comments (0) | TrackBack (0)

Sunday, August 21, 2011

President Orders Government-Wide Initiative to Promote Diversity and Inclusion

President Obama last week issued an executive order to establish a coordinated government-wide initiative to promote diversity and inclusion in the federal workplace.  The impetus:

To realize more fully the goal of using the talents of all segments of society, the Federal Government must continue to challenge itself to enhance its ability to recruit, hire, promote, and retain a more diverse workforce.  Further, the Federal Government must create a culture that encourages collaboration, flexibility, and fairness to enable individuals to participate to their full potential.

Among the highlights:

  • The President ordered the Director of the Office of Personnel Management and the Deputy Director for Management of the Office of Management and Budget, in coordination with the President's Management Council and the Chair of the Equal Employment Opportunity Commission to develop and issue a government-wide Diversity and Inclusion Strategic Plan, which will guide agencies in developing their own agency-specific plans;
  • The President ordered each agency to designate a new Chief Human Capital Officer to be responsible for enhancing employment and promotion opportunities within the agency.



August 21, 2011 in Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Saturday, August 20, 2011

CALI Lessons for Constitutional Law

Finalizing your syllabus?  Don't forget to consider adding or mentioning CALI - - - the Center for Computer-Assisted Legal Instruction - - - lessons to your course. 



For example, one lesson that might be appropriate to kick-off the semester is Marbury v. Madison (full disclosure: I am the author), as well as many other topics to engage students in interactive learning throughout the course.  

CALI also has a new look, is compatible with ipad, and easier to use for students. There is a Constitutional Law section, but depending upon a particular syllabus, topics in Federal Courts might also be relevant.

[image: portrait of Marbury via]

August 20, 2011 in Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, August 18, 2011

Ninth Circuit Says Plaintiffs Lack Standing to Challenge Individual Health Insurance Mandate

With all the to-do this week about the Eleventh Circuit's ruling in State of Florida v. HHS that the individual health insurance mandate in the Affordable Care Act exceeds congressional Commerce Clause power, it was easy to overlook the Ninth Circuit's ruling in Baldwin v. Sebelius last Friday that the plaintiffs lacked standing to challenge the mandate. 

363px-Frank_Duveneck_Nude_standing The Ninth Circuit's ruling comes just a couple weeks after the Third Circuit denied standing in a similar  challenge.  But the plaintiff's case in the Ninth Circuit was even weaker.  The plaintiffs in Baldwin were an individual and the Pacific Justice Institute.  The individual, Baldwin, alleged only that he would have to research whether he'd be covered by the mandate--not that he currently lacks health insurance and would therefore have to purchase it, e.g.  The court said this wasn't enough to show a concrete injury in fact.

The court also ruled that the Pacific Justice Institute lacked standing.  The court said that the individual mandate doesn't apply to employers, that the Institute failed to allege that it had over 50 employees so as to fall within the employer shared responsibility provision, and that the Institute raised its associational standing claim too late in the game (only in its reply brief).


[Image: Frank Duveneck, Nude Standing, 1892, Wikimedia Commons]

August 18, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, News, Opinion Analysis, Standing | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 17, 2011

Court Upholds Conviction of Former Airborne Infantryman Against Separation of Powers Challenge

A three-judge panel of the Sixth Circuit ruled Tuesday that a conviction against an Airborne infantryman under the Military Extraterritorial Jurisdiction Act did not violate separation of powers.  The conviction stands.

Francisco_de_Goya%2C_Desastre_de_la_Guerra_%28Disasters_of_War%29 The case, U.S. v. Green, arises out of a gruesome and horrific multiple rape and multiple murder of Iraqi civilians committed by Green and two colleagues in Iraq.  The Army charged Green's colleagues under the UCMJ, but the Army discharged Green (for a personality disorder).  The government then charged and convicted him using the MEJA, a law that permits the government to prosecute former members of the military in Article III courts for crimes committed overseas while they were in the military.  (The MEJA thus closes a loophole for former military who commit crimes overseas: They can't be charged under the UCMJ, but they can't be charged under U.S. criminal law, either; MEJA allows the government to prosecute.  You might ask why the Iraqi authorities couldn't charge Green: Because Paul Bremer's Coalition Provisional Authority Order Number 17 says that coalition forces "shall be immune from the Iraqi legal process.")

Green argued that his conviction was unconstitutional, because MEJA violated the separation of powers and the nondelegation doctrine (among other things).  The Sixth Circuit disagreed.  It said that MEJA certainly expanded executive branch power, but not at the expense of any other branch.  MEJA is no different than, say, any new criminal law that Congress might enact.

The ruling is utterly unremarkable and unsurprising.  But the government's position contrasts starkly with its position in the Seventh Circuit's recent decision in Vance v. Rumsfeld.  In Vance, the Seventh Circuit ruled that a Bivens claim for overseas torture by U.S. citizens against Donald Rumsfeld can move forward, despite the government's vigorous arguments that separation-of-powers considerations prohibit a Bivens remedy, because courts have no business poking their noses around issues of national security, foreign policy, war-making, and the like.  As the Seventh Circuit noted, the government's extreme position in that case would also mean that someone like Green couldn't be on the receiving end of a Bivens claim (even if his victims were U.S. citizens). 

The separation-of-powers concern in Vance, of course, was different than in Green.  The government argued in Vance that the courts' involvement in such matters intruded upon executive authority.  The government had no such concern in Green, apparently: It ran to the courts, using MEJA, to prosecute Green, not at all worried that such a prosecution would inappropriately mire the courts in national security concerns (as in Vance).  A double standard?  You decide.  But it does seem that the government would have a hard time squaring its prosecution of Green with its position in Vance.


[Image: Francisco de Goya, Desastre de la Guerra, Wikimedia Commons]

August 17, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

What's Rational About Rational Basis Review?: Same-Sex Marriage Litigation in Perspective

This is from SCOTUSblog's  same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.

My contribution focuses on the rational basis standard of review:

The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.

There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation.  However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis.  Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.”   Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”

Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court.   Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications.   The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.


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August 17, 2011 in Commerce Clause, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Weblogs | Permalink | Comments (0) | TrackBack (0)