Constitutional Law Prof Blog

The ERA as 28th Amendment: Ann Bartow on Constitutionalizing Women's Rights

Professor Ann Bartow (pictured) argues that the Constitution needs a 28th Amendment - - - the ERA. 

In an article almost as pithy as the ERA itself,  Bartow discusses the history of women's rights, the failed ERA, and why current constitutional law and statutory enactments fail to adequately secure gender equality.  She also invokes current 14th Amendment controversies including so-called "birthright citizenship."

Bartow concludes:

A commitment to equality across gender identification, gonads, chromosomes, or any other maker of sex that is specifically articulated in a Twenty-Eighth Amendment to the United States Constitution would productively cut off debates about the Fourteenth Amendment and ignite engagement in projects pitched at increasing substantive equality for all
persons.

Bartow's essay is part of a Constitutional Amendment Symposium by Tennessee Law Review (not yet available on the law review website) that promises some interesting constitutional interventions.

At nine pages, this would make an excellent first assignment for courses in Constitutional Law, Individual Rights, and Gender courses.

RR

South Africa Constitutional Court Controversy

Paragraph 174 of the South African Constitution allows the President "as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly" to  appoint the Chief Justice and the Deputy Chief Justice of the South African Constitutional Court.

Zuma previously suggested extending the term of Chief Justice Sandile Ngcobo, but the South African Constitution is clear regarding the twelve year limit for justices.

President Zuma's just announced choice, Justice Mogoeng Mogoeng, (pictured right) has been greeted with disbelief by many South African constitutional scholars and court-watchers.  Mogoeng is a justice of the Con Court, but one of its most junior members and one of its most conservatives ones.

Our South African colleague Pierre deVos of Constitutionally Speaking has an excellent reaction piece clarifying that Zuma's opinion may be unwise but is constitutionally permissible, although it might be that the more progressive members of the parties in the legislature will take their consultative responsibilities very seriously.

RR

Florida Supreme Court to Governor Rick Scott: Unconstitutional Executive Order Suspending Agency Actions

In an opinion today, Wiley v. Scott, the Florida Supreme Court dealt a blow to Governor Rick Scott's attempt to - - - as the Governor's website describes it - - - fulfill a campaign practice by "signing executive orders to freeze job-killing regulations."  In Executive Order 11-01 entitled "Suspending Rulemaking and Establishing the Office of Fiscal Accountability and Regulatory Reform" Scott established the office, known as OFARR, within the Executive Office of the Governor and directed the suspension of rulemaking except as approved by OFARR.   After a lawsuit was brought but before today's opinion, Scott superceded EO 11-01 with Executive Order-11-72, in which he no longer used the word "suspend." The Florida Supreme Court deemed this change more apparent than real, labeling it "nothing more than a sleight of hand."  

In Wiley, the Florida Supreme Court (pictured below) issued the extraordinary writ of quo warranto - - - a proper writ, according to a previous case, to  "challenge the 'power and authority' of a constitutional officer, such as the Governor."

Having agreed to consider the case, the per curiam opinion, over two dissents, forumulated its "precise task" as being  "to decide whether the Governor has overstepped his constitutional authority by issuing executive orders which contain certain limitations and suspensions upon agencies relating to their delegated legislative rulemaking authority and the requirements related thereto."

The Florida Supreme Court found that the Governor usurped the legislative role under the strong separation of powers principles in the Florida Constitution.   

Rulemaking is a derivative of lawmaking. An agency is empowered to adopt rules if two requirements are satisfied. First, there must be a statutory grant of rulemaking authority, and second, there must be a specific law to be implemented. 

After an extensive analysis, the court concluded that the Governor‘s executive orders, to the extent each suspends and terminates rulemaking by precluding notice publication and other compliance with the state administrative procedure act absent prior approval from OFARR, infringe upon the very process of rulemaking and encroach upon the Legislature‘s delegation of its rulemaking power.  The court noted that whether "the Governor exceeded his authority derived from state law does not turn upon the number of times the encroachment occurred or whether petitioner was personally affected by it."

Two Florida Supreme Court Justices dissented, joining each other's opinions but writing separately.  Justice Ricky Poston's dissent is longest, nearly as lengthy as the court's per curiam majority opinion.  Poston relies on Article IV, section 1(a) of the Florida Constitution that provides that the "supreme executive power shall be vested in a governor" and argues that the Governor has broad powers.  Polston also argues that because EO 11-01 has been superceded and OFARR is approving rulemaking, the Florida Supreme Court's opinion is merely advisory.

The opinion, however, relies upon state constitutional separation of powers provisions and principles to invalidate the acts of a controversial governor seeking to create a super-administrative agency within the Executive branch to control all other agencies.  As such, it might be read with interest by other state supreme courts, and perhaps other governors.

RR

 

The Limits of DeShaney: Fifth Circuit Finds Special Relationship

Over a vigorous dissent from Judge Carolyn Dineen King, the two other judges on the panel in Doe v. Covington County School District, found the special relationship test of DeShaney v. Winnebago County, 489 U.S. 189 (1989) was met.

In its opinion earlier this month, the Fifth Circuit recognized that DeShaney made clear that as a general matter, a State’s failure to protect an individual against private violence is not a violation of the Fourteenth Amendment's Due Process Clause, with the only exception being when the State has a "special relationship” with the person.  In DeShaney, the Court found that no such "special relationship existed even when state social workers investigated a case of child abuse, repeatedly, but returned the child to the father's custody and the father beat the child into a comatose state.

As the Fifth Circuit majority phrased the issue in Doe, it was considering whether there are "circumstances under which a compulsory-attendance, elementary public school has a “special relationship” with its nine year-old students such that it has a constitutional “duty to protect” their personal security."

The Fifth Circuit found that such circumstances do exist in the allegations of Doe's complaint, which the trial court had dismissed under DeShaney.   The fact that she was nine years old was indeed important to the court, for it "made Jane wholly dependent on the School for her safety," and the school, according to the court, "thus assumed the duty to protect her."

However, the other circumstances, as alleged in the complaint, also contributed to the court's finding of special circumstances.  The school allowed a man to "check out" Jane Doe from school and return her later in the day on six separate occassions, simply signing her out as her father, and once as her mother.  The man was not on the "permission list," was not related to Jane Doe, and the school employees did not ask for any idenitification or check the "permission list."  The man took Jane from school, sexually molested her, and then returned her to school.

On the majority's view, the school was not passive, but "affirmatively forced" Jane Doe into the sole custody of a man from whom she could not protect herself.  Thus, it distinguished Jane Doe's situation from the passivity of the caseworkers in DeShaney.

Judge King's dissent argues that Jane Doe's age is irrelevant and disputes the majority's characterization of Jane Doe being "forced" to leave with a "stranger."  While there may have been negilgence, Judge King notes, this does not rise to the level of a constitutional matter.

The "special relationship" requirement to escape DeShaney's harsh rule has generally only been extended to persons who are imprisoned or in foster care, based on the state's complete control over the person.  A majority of the Fifth Circuit has found that during the school day, under laws requiring complusory education, a school also has complete control - - - or sufficient control to not allow unauthorized persons to remove children from school during the school day.

RR
[image: "Schoolboy" by Albert Anker - Schulknabe, 1881, via]

Appeals Court Rules Health Insurance Mandate Unconstitutional

A three-judge panel of the Eleventh Circuit ruled on Friday in State of Florida v. HHS that the individual health insurance mandate in the Affordable Care Act exceeded Congress's Commerce Clause authority.  The panel also ruled unanimously that the mandate exceeded Congress's taxing authority, but (contrary to the lower court) that it was severable from the rest of the ACA.  (This means that the mandate's unconstitutonality doesn't render the entire ACA unconstitutional.)  The panel also agreed that the ACA's expansion of Medicaid--an expansion that's conditioned upon the receipt of federal funds under the Act--did not unduly coerce the states and therefore did not violate Congress's spending power. 

The ruling comes within weeks of a Sixth Circuit ruling in Thomas More Law Center v. Obama upholding the individual mandate under Congress's Commerce Clause authority and a Third Circuit ruling in New Jersey Physicians, Inc. v. President of the United States dismissing a challenge to the ACA for lack of standing.  We're still waiting for a ruling from the Fourth Circuit in Virginia v. Seblius and Liberty University v. Geithner.

Chief Judge Dubina wrote the massive opinion, joined by Judge Hull; Judge Marcus wrote a lengthy dissent.  Despite the size of the opinions, however, there's not much new: The arguments and analysis turned on familiar themes related to a propounded activity/non-activity distinction under the Commerce Clause, the time of regulation (before, not when, the regulated individual actually seeks medical services), limiting principles for congressional authority, the scope of the Necessary and Proper Clause, and the proper role of the courts in reviewing congressional action.

There are a couple things to note:

• All the judges seemed to agree that the formal activity/non-activity distinction did not alone answer the question.  Thus Chief Judge Dubina's decision looked to this distinction, but also looked to the "unprecedented" nature of the mandate, the broad scope of the regulation and the lack of limiting principles offered by the government, congressional findings, areas of traditional state concern, and the larger regulatory scheme in concluding that the mandate exceeds Commerce Clause authority.  Each of these, he said--and not the activity/non-activity distinction alone--matters in the analysis.  (He also wrote that each of these cut against the government's authority.)
• Chief Judge Dubina's decision went to great lengths to describe congressional findings supporting a link between self-insuring and the interstate economy.  He wrote that while Congress, indeed, found a link, the ACA itself undermined that link.  In particular, he wrote that the ACA itself provides for coverage for so many uninsured (through the expansion of Medicaid, among other things) and provides exceptions for others that the mandate itself simply didn't do enough to achieve Congress's goal of reducing and eliminating cost-shifting by the uninsured.  Those left who are required to purchase insurance, he wrote, are healthy individuals who aren't currently consuming medical services. 
• Chief Judge Dubina wrote about judicial deference throughout but applied it most obviously in concluding that the individual mandate is severable from the rest of the ACA, and therefore the rest of the Act could stand.  (Recall that Judge Vinson previously ruled that the mandate was not severable, at least in part because the government made the argument that it was essential to the overall regulatory scheme under the ACA.  In other words, Judge Vinson ruled that the government's effort to shoehorn the mandate into the Commerce Clause by way of Gonzales v. Raich backfired.  Chief Judge Dubina rejected this approach.)

Now with a clear split between the Eleventh Circuit and the Sixth Circuit--unless an en banc Eleventh Circuit overturns Chief Judge Dubina--these cases are inexorably headed for the Supreme Court (if there were ever any doubt that they'd end up there).  (Indeed, the plaintiffs in Thomas More already filed for cert.)  But we're still waiting for the Fourth Circuit to weigh in.

SDS

First Circuit Rejects NOM's Challenges to Disclosure Laws

National Organization for Marriage ("NOM"), a New Jersey-based nonprofit corporation organized for the purpose of providing "organized opposition to same-sex marriage in state legislatures,"  challenged state laws from both Maine and Rhode Island that require it to disclose its expenditures in the respective states. 

Both federal district judges considering the actions largely rejected NOM’s challenges and the First Circuit has also rejected the challenges in a lengthy opinion in National Organization for Marriage v. McKee, regarding the Maine laws, and a much more brief opinion on the Rhode Island statute in National Organization for Marriage v. Daluz, which relies upon McKee.  In addition, NOM wanted the trial proceedings to be sealed, which the court also rejected.

In part, NOM challenged Maine’s definition of NOM as a PAC (political action committee), arguing that “any law defining an organization as a PAC is subject to strict scrutiny"  because as "a matter of law, not fact,"  PAC status is burdensome and subjects an entity to "extensive regulations."   The First Circuit found the argument unpersuasive, and further distinguished Citizens United, because Maine's provision does not condition political speech on the creation of a separate organization or fund, establishes no funding or independent expenditure restrictions, and imposes three simple obligations on an entity qualifying as a PAC: filing of a registration form disclosing basic information, quarterly reporting of election-related contributions and expenditures, and simple recordkeeping.  

The First Circuit therefore applied  exacting scrutiny - - - rather than strict scrutiny - - - requiring a "substantial relation" between the law and a "sufficiently important governmental interest."  Again citing Citizens United, the panel concluded that the goal of providing "the electorate with information as to where political campaign money comes from and how it is spent" to be such a "sufficiently important" governmental interest capable of supporting a disclosure law.

Regarding the substantial relationship, the court considered various provisions in the Maine statutory scheme separately.  The court roundly rejected NOM’s contention that to be substantially related, the disclosure requirement could only be imposed upon a PAC that had as its “major purpose” the nomination or election of a candidate.  Quoting District Judge Hornsby, the panel agreed that NOM’s interpretation would "yield perverse results" :

Under NOM's interpretation, a small group with the major purpose of re-electing a Maine state representative that spends $1,500 for ads could be required to register as a PAC. But a mega-group that spends $1,500,000 to defeat the same candidate would not have to register because the defeat of that candidate could not be considered the corporation's major purpose.    

NOM also argued that the $100 threshold for disclosure was unconstitutional - - - as too low and as unchanging.  The First Circuit noted that it had upheld a $50 threshold a decade ago, and saw no need to depart from that view.

The panel agreed with the district court that "Citizens United has effectively disposed of any attack on Maine's attribution and disclaimer requirements.”  NOM had argued that the required disclosures will "distract readers and listeners from NOM's message."  Instead, the court held that the “requirements are minimal, calling only for a statement of whether the message was authorized by a candidate and disclosure of the name and address of the person who made or financed the communication, and again relying on Citizens United, stating that these were precisely the same requirements approved in Citizens United, and that indeed, the statute at issue in Citizens United was slightly more prescriptive.

The panel also rejected NOM’s arguments that the Maine statutory scheme was unconstitutionally vague.  Specifically, NOM posed challenges to three sets of terms: (1) "promoting," "support," and "opposition"; (2) "influencing"; and (3) "initiation." In addition, NOM claims that the definition of "expressly advocate" is unconstitutionally vague because it invites the use of context to determine the purpose of a communication.  The court upheld all of these terms, including reversing the district judge’s finding that “influencing” suffered from vagueness.  The panel considered state law, as it said it must, that had provided a limiting construction to the term.     

Regarding NOM's final complaint - - - that the district judge erred in not sealing the proceedings - - - the First Circuit reasoned that

NOM's argument flips the proper analysis on its head. The presumption here favors openness, and a court need make no finding, let alone one of "true necessity," in order to make the proceedings and documents in a civil trial public. Instead, it is the party seeking to keep documents sealed who must make a showing sufficient to overcome the presumption of public access.  

There was only minimal reliance by the First Circuit on Doe v. Reed, the decision by the Supreme Court last year regarding disclosure of names on a petition in Washington state.  The panel noted that NOM did not contend that it would be subject to threats or harassment given its disclosure.  In the context of the request to have the trial record sealed, the court stated that "NOM's claims that its contractors and service-providers could be subject to harassment also lack support, resting upon allegations of harassment against a vendor that performed work for supporters of California's Proposition 8."  Clearly, this was insufficient. 

RR
[image:Victor Dubreuil, Money to Burn,1893, via]

CFP: Feminist Legal Theory Collaborative Research Network

Scheduled slightly before the January 2012 AALS Conference, the Feminist Legal Theory Collaborative Research Network conference is seeking papers and works-in-progress on legal feminism for its next day long conference, at George Washington University Law School on Wednesday, January 4, 2012. 

The Feminist Legal Theory Collaborative Research Network, FLT-CRN, describes itself as a newly-constituted group that seeks to bring together scholars across a range of fields who are interested in feminist legal theory. The inaugural meeting took place at the Law and Society Association meeting in June 2011.

The deadline is Friday September 23, 2011.

The submission process and registration process is through Westlaw's TWEN, and more information is available at Feminist Law Professors Blog.

RR

Collective Action Federalism and Resolution VI (with the ACA in the background)

Prof. Kurt Lash (Illinois) and Prof. Neil Siegel (Duke) debated congressional authority this week over at Volokh.  Their points are drawn from Lash's "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8, and Robert Cooter and Siegel's Collective Action Federalism: A General Theory of Article I, Section 8.

The articles turned on somewhat different ideas.  Lash's "Resolution VI," as the name suggests, focuses on and criticizes the theory, popularized by Jack Balkin in his article Commerce, among others, that Resolution VI informs (and under a strong version even is) the meaning of the Commerce Clause and other Article I, Section 8 authorities.  (Resolution VI of the Virginia Plan, amended and adopted in the Philadelphia Convention, says that Congress should have power to "legislative in all Cases for the general interests of the Union, and also in those Cases in which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of Individual Legislation."  That language obviously isn't in the Constitution; instead, the Committee of Detail recommended, and the Convention adopted, enumerated powers.) 

Cooter and Siegel's piece, in contrast, looks to Resolution VI as just one piece of evidence supporting their theory of collective action federalism.  Siegel explains (from Volokh):

Robert Cooter and I have observed that the eighteen clauses of Section 8 mostly concern collective action problems created by two kinds of spillovers: interstate externalities and national markets. . . .

The theory of collective action federalism draws from history, from this evidence in the constitutional text, and from subsequent historical understandings and mistakes, and from modern economics to provide a structural account of the American federal system established in part by Section 8.  Its various clauses form a coherent set, not a collection of unrelated powers.  Coherence comes from the connection that the specific powers have to collective action problems that the federal government can address more effectively than the states can address by acting alone.

The states often cannot achieve an end when doing so requires multiple states to cooperate.  According to collective action federalism, the clauses of Section 8 empower Congress to solve collective action problems that predictably frustrate the states.  In the language of the Commerce Clause in particular, such problems are "among the states."

The debate at Volokh was largely around Resolution VI and its effect (or not) on Article 1, Section 8 powers.  This is an important debate, to be sure, and it'll likely play some role in the challenges to the Affordable Care Act.  (The Constitutional Accountability Center makes the argument in its amicus briefs in the cases; Elizabeth Wydra, CAC's chief counsel, outlines the argument here, in the recent SCOTUSblog symposium on the ACA.)  But Cooter and Siegel's collection action federalism is much broader than just Resolution VI.

Here are links to the posts at Volokh:

• Siegel, The Theory of Collective Action Federalism
• Lash, Resolution VI in Current Scholarship and the ACA Debate
• Siegel, What Collective Action Federalism Is and Is Not
• Lash, The Framers' Intent in Cases Involving the National Interest Where the States are "Separately Incompetent"
• Siegel, Prof. Lash's Originalist Claims
• Lash, James Wilson's Resolution VI and Original Public Meaning
• Siegel, Collective Action Federalism and Judicial Enforcement of Enumerated Powers
• Lash, Neil Siegel and the Claims of Resolution VI Proponents: A Reply

SDS

OLC Says Some Notifications in Security Appeals May Violate Separation of Powers

The Office of Legal Counsel issued an opinion in early June (but released late last month) that the government's obligation to notify an employee who appeals a denial of a security clearance of evidence obtained through electronic surveillance may violate separation-of-powers principles and executive privilege.

The Foreign Intelligence Surveillance Act requires the government to notify an "aggreived person," a target  of electronic surveillance, whenever the government intends to use information obtained through electronic surveillance against that person.  The OLC ruled that this requirement also applies to proceedings before the Access Review Committee--the tribunal that reviews employee appeals of denial of security clearances.

But the OLC also said that this requirement will sometimes (but rarely) violate separation-of-powers principles and require disclosure of information covered by executive privilege.  If so, the requirement yields to the Constitution.

The OLC said that Congress has some "authority to legislate in a manner that touches upon disclosure of classified information."  Op. at 7.  "For example, we believe Congress's authority to regulate foreign intelligence surveillance under FISA, and to regulate the terms of federal employment, does, as a general matter, permit Congress to impose the notification requirement . . . even when that requirement reaches proceedings concerning security clearance revocations."  Op. at 7-8.

But that authority ends when it runs up against "the President's ability to perform his constitutional duty."  Op. at 8 (quoting Morrison v. Olson).  "Congress may not, for example, provide Executive Branch employees with independent authority to countermand or evade the President's determinations as to when it is lawful and appropriate to disclose classified information."  Op. at 8 (citing Whistleblower Protections for Classified Disclosures, 22 Op. OLC at 100).  "And, as noted above, Congress's authority is 'subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.'"  Op. at 8 (quoting EPA v. Mink).  Thus the notice requirement could violate separation-of-powers or require disclosure of information protected by executive privilege; if so--and this should be rare, OLC says--the requirement gives.

SDS

[Image: Official White House photo, President Barack Obama's desk, Oct. 5, 2009, Wikimedia Commons]

Wisconsin Journal of Law, Gender & Society Symposium

The Wisconsin Journal of Law, Gender & Society seeks contributors to its 2012 symposium, When Gender Norms Become Law: Recognizing and Correcting for Gender Bias.  The symposium is on February 10, 2012, at the University of Wisconsin Law School, Madison. 

We are seeking original scholarship, from both scholars and practitioners, addressing ways in which gender norms are reflected in legislation, judicial precedent, and administrative findings.  Ideally, proposals would highlight:

• An analysis of the inherent and functional gender biases in these policies and practices and
• Recommendations as to how the same policies could be pursued without the resulting gender disparity.

Topics could include: findings of fact that shape evolving areas of law, the role of social sciences in evidence, and differing approaches to gender considerations across legal systems.  Interested parties should send an abstract to [email protected] by October 1, 2011.  Those selected for the Symposium will be notified by November 2011.  The Journal's Symposium issue will be published in Fall 2012.

Questions may be addressed to Symposium Editor Meredith Davis at [email protected].

SDS

Arizona Seeks Supreme Court Review of SB1070

As expected, Arizona and Governor Jan Brewer have filed a petition for writ of certiorari in the United States Supreme Court today, seeking review of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070, Arizona's controversial immigration law. 

Arizona, represented by Paul Clement, contends it bears the brunt of illegal immigration and that the federal government is not sufficiently addressing the problem, setting the factual and political context for its claim that its statute is not preempted under the Supremacy Clause.  The petition argues that "The Ninth Circuit’s rule—that States may not take any investigative or enforcement action against aliens based on their civil violations of the immigration laws without an express permission slip from Congress—directly conflicts with the approach" taken in other circuits.  The petition also argues that the Ninth Circuit opinions contradicts "Our Federalism" by failing to recognize co-operative enforcement and implicitly assuming that immigration is a matter of nearly exclusive federal concern.  The Ninth Circuit completely misconstrued preemption doctrine according to the petition, perhaps most egregiously when it allowed "complaints by foreign government officials and the disagreement of the Executive Branch to trump congressional intent."

The SCOTUSblog online symposium on immigration developments, including SB1070, has an excellent contribution by Kevin Johnson, who predicts that the Court will probably grant the petition for certiorari, although possibly remanding the case for consideration in light of Chamber of Commerce v. Whiting.   In the event the Court does entertain the case, Johnson speculates on the position of Justice Kennedy and the possibility of recusal of Justice Kagan. 

RR
[image via]

ABA Adopts Proposal Against Amending Citizenship Clause of Fourteenth Amendment

Resolution 303 from the American Bar Association supports the current citizenship clause of the Fourteenth Amendment. 

The Resolution provides:

RESOLVED, That the American Bar Association urges Congress to reject any resolution  proposing an amendment to the United States Constitution that would  alter, in any way, the grant of United States citizenship under the Fourteenth Amendment to any persons born in the United States (including territories, possessions, and commonwealths).

FURTHER RESOLVED, That the American  Bar Association urges Congress and state legislative bodies to reject any proposal that seeks to alter the right to United States citizenship under the Citizenship Clause of the Fourteenth Amendment to the United States Constitution through the enactment of legislation or adoption of an interstate compact.

FURTHER RESOLVED, That the American Bar Association urges Congress, all state, territorial and local legislative bodies and governmental entities to reject any proposal that seeks to impose limits, based upon the citizenship or immigration status of one or both parents at the time of the person’s birth, on the right of any person born in the United States (including its territories, possessions, and commonwealths) to claim or prove United States citizenship under the Citizenship Clause of the Fourteenth Amendment to the United States Constitution.

It was brought before the ABA House of Delegates by the ABA Commission on Hispanic Legal Rights & Responsibilities.  The nine page report of the commission makes it clear that the resolution responds to recent well-publicized proposals to limit or alter the right to citizenship of certain persons born in the United States, altering the Fourteenth Amendment's grant of what is sometimes called “birthright citizenship” or “jus soli.” 

RR

Court Upholds Ban on Foreign National Campaign Spending

A three-judge district court (D.D.C.) ruled this week in Bluman v. FEC that the federal ban on campaign spending by foreign nationals is constitutional.  The court thus upheld restrictions on foreign nationals' campaign contributions and expenditures against a First Amendment challenge.

The restrictions on foreign nationals' participation in U.S. elections, expanded under the Bipartisan Campaign Reform Act of 2002, prohibit foreign nationals from contributing to candidates or political parties, making expenditures to expressly advocate the election or defeat of a political candidate, and making donations to outside groups when those donations would be used to finance express-advocacy expenditures.  2 U.S.C. Sec. 441e(a).  The restrictions apply to all foreign nationals except those admitted as lawful permanent residents.  Foreign nationals are not barred from issue advocacy.

Citing the line of Supreme Court rulings that upheld restrictions on activities of foreign nationals "intimately related to the process of democratic self-governance," Bernal v. Fainter (1984), the court held that the government had a compelling interest in limiting the participation of non-Americans in the democratic political process. 

We read these cases to set forth a straightforward principle: It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.  It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.

Op. at 10.

The court said that the restrictions were not underinclusive for allowing lawful permanent residents to spend and contribute, because lawful permanent residents have a long-term stake in the outcome of U.S. elections similar to the stake of citizens.  Moreover, it said that the restrictions were not underinclusive for allowing foreign nationals to make contributions and expenditures related to ballot initiatives, because "Congress may proceed piecemeal in an area such as this involving distinctions between citizens and aliens."  Op. at 15.

The court correctly wrote that the Supreme Court has yet not ruled on the question of foreign nationals' First Amendment rights to contribute or spend in campaigns.  But it quoted Justice Stevens' opinion in Citizens United to say that four justices have concluded that foreign nationals have no such rights, and that nothing in the Citizens United majority opinion says otherwise.

SDS

Conference at NYLS: Civil Liberties Ten Years After 9/11/2001

Hosted by New York Law School - - - the law school closest to the former World Trade Center - - - this conference considers the state of civil liberties a decade after 9/11. 

Organizers include both the American Constitution Society and the Federalist Society, so there is a diversity of viewpoints in the speakers, although there is woefully inadequate participation by women in the announced schedule below. 

The Justice Action Center (of NYLS), the American Constitution Society, and the Federalist Society present:
 
Civil Liberties 10 Years After 9/11
Friday, September 9, 2011
10:00 a.m.-5:00 p.m
 
New York Law School
185 West Broadway, New York, NY 10013
General admission is $25.00 for individuals not affiliated with the Law School; CLE credits available.
Registration information here.

 

CONFERENCE SCHEDULE
 
9:00 a.m.-10:00 a.m.
Registration
Continental Breakfast, Registration, and Opening Remarks
 
10:00 a.m.-Noon
Panel 1: Separation of Powers: The Roles and Inter-Relationships of the Executive, Legislative, and Judicial Branches since 9/11
This panel will discuss the appropriate scope of and limits on the powers of each branch of government since 9/11, including specific exercises of power by each branch that some have criticized as violating the Constitution's checks and balances.
Moderator: Linda Greenhouse, Yale Law School; Columnist, The New York Times
David Cole, Georgetown Law School
Richard Epstein, New York University School of Law; The Hoover Institution; University of Chicago Law School
Peter Shane, Ohio State University Moritz College of Law
Vince Warren, Executive Director, Center for Constitutional Rights
John Yoo, University of California, Berkeley Law School; Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice 2001-03)
 
Noon-2:30 p.m.
Panel 2: National Security and Civil Liberties: A Decade of Striking a Delicate Balance, or a False Choice?
Lunch will be available starting at noon

This panel will address not only the overarching (alleged) tensions between liberty and security, but also specific measures that the government has implemented since 9/11 that affect particular civil liberties as well as the rights of particular groups of individuals.
Moderator: Caroline Fredrickson, Executive Director, American Constitution Society
Muneer Ahmad, Yale Law School
Jamil N. Jaffer, Senior Counsel, House Intelligence Committee; Associate Counsel to the President, White House, 2008-09; Counsel to the Assistant Attorney General, National Security Division, U.S. Department of Justice, 2007-08
Anil Kalhan, Drexel University Earle Mack School of Law
Sigal Mandelker, Proskauer Rose LLP; Deputy Assistant Attorney General, U.S. Department of Justice, Criminal Division 2006-09
Joanne Mariner, Director, Human Rights Program, Roosevelt House Public Policy Institute, Hunter College
Geoffrey Stone, University of Chicago Law School
 
2:30 p.m.-4:00 p.m.
Panel 3: Courts, Accountability, and Justice: Forums for Assuring that Justice Is Served

This panel will discuss efforts to bring to justice individuals who have been accused of responsibility for the 9/11 attacks and other actual or planned acts of terrorism, as well as government and military officials and their contractors who have been accused of abuses. It will consider the appropriate judicial and non-judicial forums and procedures for ensuring that those who are responsible for acts of war, crimes, and abuses of power will be held accountable, consistent with principles of fairness and justice, and that those unjustly accused are exonerated.
Moderator: Chief Judge Dennis Jacobs, Chief Judge, U.S. Court of Appeals for the Second Circuit
Michael Chertoff, Covington & Burling LLP; Secretary of the Department of Homeland Security 2005-09
Eugene Fidell, Yale Law School; President, National Institute of Military Justice
Martin Flaherty, Fordham Law School; Princeton University
Andrew McCarthy, Co-Chair, Center for Law and Counterterrorism; Assistant U.S. Attorney for the Southern District of New York 1993-96
Anthony Romero, Executive Director, American Civil Liberties Union
 
4:00 p.m.-5:00 p.m.
Wine and Cheese Reception

 

RR

Seventh Circuit Allows Torture Suit Against Rumsfeld to Move Forward

A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.

If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward.  (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.)  The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens.  (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)

Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail.  The meaty opinion seems carefully tailored to withstand any appeal.

In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it.  The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity.  The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy.  In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war.  Here's a flavor of what the court said on that point:

The unprecedented breadth of defendants' argument should not be overlooked.  The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone.  The defendants' theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom.  We disagree and conclude that the plaintiffs may proceed with their Bivens claims.

Op. at 43.

Judge Minion wrote in dissent that the court improperly extended Bivens to this case--a case in which "United States citizens alleg[ed] torture while held in an American military prison in an active war zone."  Op. at 81.

This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld.  We'll watch for appeals.

SDS

[Image: Anonymous, Execution, Wikimedia Commons]

Third Circuit Finds School Board Prayer Violates Establishment Clause

Public school prayer violates the Establishment Clause of the First Amendment, at least since 1962's Engel v. Vitale, 370 U.S. 421 (1962), but legislative prayer that is sufficiently non-sectarian does not violate the Establishment Clause, at least since Marsh v. Chambers, 463 U.S. 783 (1983).

So what about prayer at the school board meeting?  

The issue - which seems fit for an exam - - - is one of analogy.  Is the school board meeting more like a public school function or more like a legislative body?

The Third Circuit opinion in Doe v. Indian River School District adopts the school rule rather than the legislative "exception."  Reversing the district judge, the appellate panel found it important that students were often at the school board meetings, including for disciplinary proceedings or recognitions of honors.   After an extensive discussion of Establishment Clause precedent, the panel noted:

The Indian River School Board carries out its practice of praying in an atmosphere that contains many of the same indicia of coercion and involuntariness that the Supreme Court has recognized elsewhere in its school prayer jurisprudence. While there is no doubt that school board meetings do not necessarily hold the same type of personal and cultural significance as a high school graduation or perhaps even a football game, we take to heart the Supreme Court‟s observation that, in this respect, “[l]aw reaches past formalism.”  [quoting Lee v. Weisman, 505 US at 595]. 

Moreover, the panel noted that there were additional factors that might make students feel coerced: "The meetings take place on school property. The Board retains complete control over the meeting; it sets the agenda and the schedule."  Further, "the Board itself composes and recites the prayer" and is thus "involved in every aspect of the prayer."  Thus, it was more like public school - - - including the graduation ceremony involved in Lee - - - than like a legislative body.

After determining Lee v. Weisman, 505 U.S. 577 (1992) rather than Marsh was the correct precedent, the panel then struggled with the Lemon test from Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  The panel noted the problems with the Lemon test, but noted it had not been overruled, as so proceeded to consider Lemon factors:  (1) whether the government practice had a secular purpose; (2) whether its principal or primary effect advanced or inhibited religion; and (3) whether it created an excessive entanglement of the government with religion.  The panel concluded the prayer practice was unconstitutional under Lemon.

While Doe is different from the Fourth Circuit legislative prayer opinion we recently discussed, in one respect it is quite similar.  The Third Circuit also noted that despite a broad written policy, the actual practice was to always have a prayer and that "the record shows that the prayers recited at the meetings nearly always—and exclusively—refer to Christian concepts." 

RR
[image: The Infant Samuel at Prayer, by Joshua Reynolds, 1723- 1792, via]

 

Seventh Circuit Rules Inmate Sex Change Prevention Act Unconstitutional

A three-judge panel of the Seventh Circuit ruled on Friday in Fields v. Smith that the Wisconsin Sex Change Prevention Act, which bars the use of Wisconsin Department of Correction resources for hormonal therapy or sex reassignment surgery, violates the Eighth Amendment on its face.

The case arose when the Wisconsin DOC refused to provide hormonal therapy to state inmates with  Gender Identity Disorder, a psychiatric disorder listed in the DSM-IV-TR.  The inmates were diagnosed with GID by Wisconsin DOC doctors and had prescriptions for hormonal therapy.  The DOC, however, refused to provide the hormones under the Sex Change Prevention Act.

The court ruled that the state's failure to provide effective treatment for GID, which even the DOC agreed was a serious medical condition, violated the Eighth Amendment.  Citing and quoting Estelle v. Gamble ("We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' proscribed by the Eighth Amendment"), the court wrote,

Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional.  Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture. . . .  Although [the Wisconsin Sex Change Prevention Act] permits DOC to provide plaintiffs with some treatment, the evidence at trial indicated that plaintiffs could not be effectively treated without hormones.

Op. at 11 -12.

The court rejected the defendants' argument that they could limit the discretion of physicians by outlawing a particular medical procedure under Gonzales v. Carhart.  The court said that Carhart wasn't helpful to the defendants, because they didn't offer any medical evidence to show that alternative treatments for GID are just as effective as hormonal treatment.  The court also rejected the defendants' arguement that its denial of hormonal treatment preserved prisoner security (because those taking the hormones were potentially subject to violence).  The court said the defendants simply didn't provide the evidence.

Because the court resolved the case on the Eighth Amendment, it declined to rule on the plaintiffs' Equal Protection claim.

SDS

[Image: Giulio Romano, The Prisoners, Wikimedia Commons]

SCOTUSblog's On-Line Symposium on Constitutionality of Health Care Reform

SCOTUSblog is hosting an on-line symposium on the constitutionality of the Affordable Care Act.  From the symposium description:

Last week the Thomas More Law Center, a Christian legal group, filed a petition for certiorari in which it asked the Court to review a Sixth Circuit decision, which rejected the group's claim that a provision of the Patient Protection and Affordable Care Act requiring all Americans to purchase health insurance by 2014 is unconstitutional.  With similar challenges currently pending in the Fourth and Eleventh Circuits, it seems likely that the Court will take up the constitutionality of the Act at some point in the future--perhaps even during the upcoming Term.  During the next two weeks, SCOTUSblog will host an online symposium on the Act and the Court: when and whether the Court is likely to review the Act, and how it might rule if it does.

Posts so far are here; here's a list of contributors:

• Jonathan Adler, Case Western Reserve University School of Law
• Cory Andrews, Washington Legal Foundation
• Erwin Chemerinsky, University of California – Irvine School of Law
• Richard Epstein, University of Chicago Law School
• Charles Fried, Harvard Law School
• Abbe R. Gluck and Gillian Metzger, Columbia Law School
• Mark Hall, Wake Forest University School of Law
• Dawn Johnsen, Indiana University Maurer School of Law
• Bradley Joondeph, Santa Clara University School of Law
• Orin Kerr, The George Washington University Law School
• David Kopel, Independence Institute
• John Kroger, Attorney General of Oregon
• Robert Levy, Cato Institute
• Stephen Presser, Northwestern University
• Elizabeth Price Foley, Florida International University College of Law
• David B. Rivkin and Lee A. Casey, Baker Hostetler
• Robert Schapiro, Emory University School of Law
• Steven Schwinn, John Marshall Law School
• Ilya Shapiro, Cato Institute
• Ilya Somin, George Mason University School of Law
• Laurence Tribe, Harvard Law School
• Adam Winkler, University of California Los Angeles School of Law
• Elizabeth Wydra, Constitutional Accountability Center

SDS

Third Circuit Dismisses Health Care Challenge for Lack of Standing

A three-judge panel of the Third Circuit on Wednesday threw out a challenge to the Affordable Care Act and its individual health insurance mandate because the plaintiffs lacked standing.  The ruling didn't touch on the merits of the plaintiffs' challenge--and it was by any measure a weak case on standing--but it's nevertheless a second major defeat for ACA opponents in the appeals courts in just over a month.  (The Sixth Circuit just recently upheld the individual mandate against substantive constitutional challenges in Thomas More Law Center v. Obama.)

The Third Circuit case, New Jersey Physicians, Inc. v. President of the United States, was brought by a licensed physician, one of her patients, and a non-profit corporation that "has as a primary purpose the protection and advancement of patient access to affordable, quality healthcare."  The plaintiffs challenged the constitutionality of the individual mandate, but they neglected to put anything in their complaint showing how they'd be injured.

Thus, the patient alleged this: "Roe is a patient of Dr. Criscito who pays himself for his care," and Roe "is a citizen of the State of New Jersey who chooses who and how to pay for the medical care he receives from Dr. Criscito and others."  The court wrote that Roe failed to provide any details, and failed to show that these allegations amounted to an injury.

In a similar spirit, the doctor alleged this: "Dr. Criscito, in the course of his individual practice of medicine, treats patients," and "[s]ome of those patients pay Dr. Criscito for his care and do not rely on a third-party payor to do so on their behalf."  The court wrote that these allegations, too, are too bare and fail to show an injury.

As to the non-profit and its claim for associational standing, the court ruled that it failed to show that any of its members would be harmed by the law.

The court didn't reach the merits, to be sure.  And the case was by any measure (strangely) weak on standing: the plaintiffs simply failed to allege any concrete, particularized, and imminent harms.  (Their allegations read like generalized grievances, or even like they were going for an advisory opinion.)  But the case now stands as the second significant defeat for ACA opponents in the circuit courts in just over a month.

Cases to watch now are Virginia v. Sebelius and Liberty University v. Geithner outstanding in the Fourth Circuit, and Florida v. HHS oustanding in the Eleventh Circuit.  The courts have heard oral arguments in these cases; we're just waiting for opinions.

For other news and updates on ACA litigation, check out the ACA Litigation Blog.

SDS

[Image: Jan Steen, Doctor's Visit, Wikimedia Commons.]

Court Rules Torture Claim Against Rumsfeld Can Move Forward

Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings.  In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security. 

The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint.  The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention.  He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.

Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.

The court disagreed.  Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues.  Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged).  Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.

Judge Gwin also rejected Rumsfeld's qualified immunity defense.  Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process.  (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal.  Instead, it was a direct claim for authorizing torture.)  But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary.  He thus dismissed these two claims.

The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case.  Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for torture by an alien detained overseas.  Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case).  But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy. 

If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.

SDS