Constitutional Law Prof Blog

Canada Supreme Court: The Insite Case and Constitutional Powers & Rights

Canada's high court today issued a unanimous opinion in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, known as the "Insite Case." The case considers the legal status of Insite,  (pictured left) North America’s first government-sanctioned safe injection facility, operating in Vancouver under local and provincal law, since 2003.  It implicates the constitutionality of needle-exchange, harm reduction, and addiction services throughout Canada.

For Americans, it might be helpful to think of Gonzalez v. Raich, the 2005 medical marijuana case, but add a Canadian twist for the structures analysis and a large dose of fundamental rights.  In Raich, the United States Supreme Court upheld Congressional power to criminalize all marijuana under the Commerce Clause in the Controlled Substances Act, even if such marijuana was a few plants of  "home grown" authorized under California's attempt to legalize medicinal marijuana.  The Court in Raich declined to extend its pattern of holding Congressional acts under the Commerce Clause unconstitutional as it did in United States v. Lopez and United States v. Morrison; and of course Raich is one of the cases most favorable to the US Government's argument that the Affordable Care Act is constitutional.

In the Insite Case, the Supreme Court of Canada also ruled in favor of national rather than provincial rights.  The Canadian structure is tilted much more in favor of federal rights, with a federal criminal code and a federal family law code, so this is not surprising.  It was clear that the Controlled Drugs and Substances Act, CDSA,  was valid legislation, pursuant to Parliament’s criminal law power, s. 91(27), but the issue was whether, as a result of the division of powers between the federal government and the provinces, Insite was not bound by the valid criminal laws that prohibit the possession and trafficking of controlled substances.  The Court considered several arguments, but ultimately concluded without much difficulty that Insite was subject to federal power and not protected by contrary provincial laws.

Yet Insite and its clients also had a Charter argument, relying upon Section 7 of the Charter of Rights in the Canadian Constitution that states that everyone “has the right to life, liberty and security of the person." 

The Court rejected the government's argument that "any negative health risks drug users may suffer if Insite is unable to provide them with health services, are not caused by the CDSA’s prohibition on possession of illegal drugs, but rather are the consequence of the drug users’ decision to use illegal drugs."  The Court emphasized that addiction is an illness, and that moral and policy questions are not pertinent.  Nevertheless, the federal CDSA was not deemed to violate Section 7 because the law allowed the Minister of Health to grant exemptions from criminal enforcement.  Yet it was precisely the Minister's failure to grant an exemption for this harm reduction program that the Court did find to be a violation of Section 7.

Paragraph 153 of the Court's opinion is a good summary:

The CDSA grants the Minister discretion in determining whether to grant exemptions.  That discretion must be exercised in accordance with the Charter. This requires the Minister to consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice.  The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.

This is a narrow ruling, but a unanimous one against the Government and one with potentially far-reaching consequences in Canada. Reports from Macleans, The Globe and Mail,  CBC (print), CBC audio (including an interview with UBC ConLawProf Margot Young) provide some context useful for US readers.

RR
[h/t Sonia Lawrence]
image of Insite via Vancouver Coastal Health website]

Argument Preview: Standing to Challenge Medicaid Cuts in Douglas

The second case the Court will hear this Term involves a critical question about access to the courts and constitutional enforcement: May a private party sue under the Supremacy Clause to force California to comply with federal Medicaid program requirements?

The case, Douglas v. Independent Living Center, arose out of California’s cuts to its Medicaid program, dubbed Medi-Cal.  In 2008 and 2009, the California legislature slashed Medi-Cal funding in order to help deal with the state’s fiscal crisis.  The legislature cut reimbursement rates for participating Medi-Cal providers by ten percent; it reduced future reimbursement rates by one percent from their pre-2008 levels; and it reduced the maximum contribution paid by Medi-Cal for wages and benefits for in-home supportive services.  The state did not study the impact of these cuts or submit them to federal Medicaid regulators at the Centers for Medicare and Medicaid Services, or CMS, as required by federal law.

Medi-Cal providers and beneficiaries sued in five separate cases in state and federal courts under the Supremacy Clause, arguing that California’s cuts were preempted by federal Medicaid requirements.  In particular, the plaintiffs argued that California’s cuts failed to satisfy the requirements of Section 30(A) of the Medicaid Act, which says that participating states must ensure that state Medicaid payments to health care providers “are consistent with efficiency, economy, and quality of care” and “sufficient to enlist enough providers so that care and services are available . . . to the general population in the geographic area.”  Under Section 30(A), states also have to study the impact of any proposed rate reductions on health care services and submit them to the CMS for review.

In a series of appeals, the Ninth Circuit ruled that the plaintiffs qualified for a preliminary injunction against the state, thus halting the cuts.  The state then appealed to the Supreme Court, arguing that the plaintiffs, as private parties, could not sue under the Supremacy Clause—that private parties could not enforce this structural provision of the Constitution in court without an explicit private right of action or an interference with a fundamental right.

The state argues that the plaintiffs have no private cause of action under either federal law or the Constitution.  As to federal law, the state says that neither Section 30(A), nor any other federal law, explicitly gives plaintiffs a private right of action to enforce Medicaid requirements against a state.  The legislative history of the Medicaid Act only underscores this.  In 1997, Congress revoked the “Boren Amendment,” a portion of the Medicaid Act.  That provision, according to an earlier Supreme Court ruling, gave private parties a right private of action and spawned an explosion of lawsuits challenging state Medicaid rates.  The state argues that Congress’s revocation of the provision suggests that it intended to remove any right of action, not to create one.  Moreover, the state contends, Section 30(A) gives plaintiffs no individual right that they might enforce by way of a civil rights action under Section 1983.

The state says that the plaintiffs also have no right of action under the Supremacy Clause.  The state claims that the Supremacy Clause is not a source of rights but rather a rule of decision for parties already properly before the courts.  The state contends that cases challenging Spending Clause legislation, like the Medicaid Act, which authorizes federal funds only for states that agree to and comply with federal Medicaid requirements, are particularly inappropriate.  This is because state law cannot conflict with federal law under the Spending Clause: any “conflict” only means that the state is not complying with federal requirements and is therefore ineligible for continued federal program funds.  Thus a “conflict” is really no conflict at all; it’s only a state choice to not participate in the program.

Finally, the state notes that the plaintiffs are already participating as amici in an administrative process that tests the Medi-Cal cuts.  The state says that it appealed CMS’s initial rejection of its cuts through an established administrative process; that process is pending.  The state argues that this process is the only appropriate venue for the plaintiffs’ participation in this essentially state-federal dispute.

The plaintiffs counter that the original understanding of the Supremacy Clause and the Court’s subsequent jurisprudence both suggest that they may properly bring their claim.  They say that courts have consistently concluded that a plaintiff could lodge a case against a state for declaratory and equitable relief under the Supremacy Clause—that these claims do not require explicit statutory authorization.  And they say that they need not point to an interference with their rights (to bring a Section 1983 case): their claim under the Supremacy Clause is a constitutional claim that must exist on its own as an incident of the Constitution’s structure and operation.  The plaintiffs claim that they seek to enforce federal preemption under the Supremacy Clause, not (just) the requirements of Section 30(A).

The United States weighed-in on the side of the state.  It argued that the Court could dodge the precise and knotty question by recognizing that this case is special.  This is a Spending Clause case, it says, and, as described above, there simply can be no conflict between state and federal law.  With no conflict, there is no preemption; and with no preemption, there is no Supremacy Clause issue.

The case comes at the complicated intersection of state politics and finance, health care, federalism, and standing—considerations and interests that pull in different directions, at a time when states face increasing fiscal challenges, when health care costs are rising, affecting coverage, and when the other health care issues are on everyone’s mind.  (I need not remind readers that parties on both sides of the Eleventh Circuit ruling overturning the so-called individual mandate filed petitions for review with the Court on Wednesday.) 

For example, a ruling for the state would allow states to continue to balance their budgets on the backs of Medicaid providers and recipients, often their most vulnerable populations, checked only by the administrative process at the CMS, which California has well demonstrated that a state can manipulate (through delay and foot-dragging).  On the other hand, a ruling for the plaintiffs would mean that plaintiffs could tie up states in litigation any time a state wanted to cut Medicaid rates, or to make any other significant changes to their Medicaid programs.  In short, the case is hard.

On a different level, the Court will also have to grapple with private party standing to bring structural claims under the Constitution.  The Court ruled last Term in Bond v. U.S. that a private individual, a criminal defendant, had prudential standing to challenge a federal criminal statute as violating the Tenth Amendment, another structural provision.  If Bond opened the door a little wider for structural claims by private litigants, Reynolds could break it wide open.  That’s because the plaintiffs in Reynolds aren’t already properly before the courts (as Bond was); they are bringing their claim under a structural provision alone.  And they are doing it in the context of a Spending Clause program. 

The Court can easily dodge this bullet, though.  As the U.S. government argues, there really is no conflict in this case between state and federal law that the Supremacy Clause can resolve.  This truth provides the clearest path for a ruling here.  Look for the Court to fall back on it, even if it frustrates private Medicaid providers’ and recipients’ quests to hold their states to federal Medicaid requirements.

SDS

The End of DADT: Litigation Moot but Still Worth Discussing?

The Ninth Circuit issued a per curium opinion today in Log Cabin Republicans v. United States dismissing the case as moot.  This is absolutely predictable. 

Despite extensive litigation which we last mentioned here, with the repeal of 10 U.S.C. § 654(b) effective September 20, 2011, the policy known as DADT, "don't ask, don't tell,"  regarding sexual minorities in the military was no longer law.  Thus, a challenge to the statute's constitutionality is no longer a live "cae or controversy" under Article III.

[image: President Obama certifying the conditions of the Repeal Act, July 22, 2011, repealing DADT, via]

 

The Ninth Circuit opinion, however, is no so simple.  The panel considered and rejected two arguments by Log Cabin Republicans that the case should not be dismissed as moot.  

First, the panel rebuffed the argument that while the injunctive relief might be moot, the declaratory relief might not be.  The speculation that "a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell," or that the same Congress that enacted the Repeal Act could change course, was mere speculation and "our speculation cannot breathe life into this case."

Second, the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed.  The panel resolved this issue by simply stating that any missed benefits discharged service members may have lost as a result of their separation pursuant to DADT were not legal penalties from past conduct, they did not fall within collateral consequences exception.  However, the panel went farther:

Because Log Cabin has stated its intention to use the district court’s judgment [holding DADT unconstitutional] collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.

Judge Diarmuid O'Scannlain wrote a specially concurring opinion, as lengthy as the per curium decision, devoted not to the question of mootness, but to share his thoughts about Lawrence v. Texas:  "I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts."  

Judge O'Scannlain, widely regarded as exceedingly conservative, thus wrote an essentially advisory opinion, violating the basic premise of the Article III case and controversy requirement.  It seems a bit paradoxical that he wrote this in a case in which the panel dismissed the claim as moot, lest the court render an advisory opinion in contravention of the Article III case and controversy requirement.

RR

Plaintiffs and Government Move to Take Health Reform to the Supreme Court

Three parties--two sets of plaintiffs and the U.S. government--filed petitions today asking the Supreme Court to review the Eleventh Circuit ruling last month in State of Florida v. HHS striking down aspects of the Affordable Care Act.  In seeking Court review of the three-judge panel decision, the parties are bypassing en banc review and taking the case directly to the Court.

Recall that the Eleventh Circuit ruled the so-called individual mandate unconstitutional, but also ruled it severable from the rest of the ACA.  In particular, the court ruled that the individual mandate exceeded congressional authority under both the Commerce Clause and the Taxing Clause; that the individual mandate was severable from the rest of the ACA; and that Medicaid expansion did not unduly coerce the states and thus exceed congressional authority under the Spending Clause.  The ruling gave both sides plenty to appeal.

And the petitions for cert. filed today reflect it.  Thus the National Association of Independent Business and two private individuals, all plaintiffs in the case, took on the Eleventh Circuit's ruling on severability.  (Recall that the district court ruled the individual mandate non-severable, in part because the government argued that it was an essential part of the overall ACA.  And becuase it ruled that Congress lacked authority to enact the individual mandate, the district court also struck down the entire ACA.  The Eleventh Circuit reversed.)  These petitioners also say that the Eleventh Circuit's case is a better vehicle with which to evaluate the ACA, because it involves all the issues, but none of the problems, of the cases out of the other circuits.  Thus, they say that the Sixth Circuit ruling in Thomas More, upholding the individual mandate, includes a contested standing issue and failed to address severability of the individual mandate (because the parties didn't argue it); the Fourth Circuit in Liberty University ruled that the plaintiffs' case was barred by the Anti-Injunction Act, an erroneous and now "irrelevant" ruling, in their judgment.

The state plaintiffs in the case took on the Eleventh Circuit's ruling on the Tenth Amendment and federalism.  They argue that the Eleventh Circuit erred in ruling that Medicaid expansion in the ACA isn't unduly coercive and that the Supreme Court should resolve whether the so-called employer mandate provisions are constitutional as applied to the states.

Finally, the government argued that Congress had authority to enact the individual mandate under the Commerce Clause and, alternatively, the Taxing Clause.  It also asks the Court to address whether the Anti-Injunction Act bars the plaintiffs' suit.

The petitions today make it all the more likely that the Court will hear a challenge to the ACA this Term.  And this case seems the most likely vehicle, for all the reasons argued by the NFIB: This case puts it all before the Court--Commerce Clause, Taxing Clause, severability, Tenth Amendment, federalism, and the AIA.  Both sides want a ruling on the whole thing, and this is the right case.

SDS

[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]

Alabama Immigration Law HB56 Enjoined in Part by Federal Judge- PART II

UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.

Accompanying her opinion in United States v. Alabama issued today [discussed in part I], Judge Blackburn a while later issued a 100 plus page Memorandum opinion in Hispanic Interest Coalition of Alabama v. Bentley enjoining other portions of the controversial HB56.

Some of the Hispanic Interest Coalition of Alabama's (HICA) challenges were moot by the Judge's opinion in United States v. Alabama issued earlier today.  However, Judge Blackburn found that none of the HICA plaintiffs had standing to challenge HB56 in its entirety, and that HICA did not have standing as an association.   Thus for each challenge, the judge considered standing.  The judge found that HICA plaintiffs did not have standing to challenge one of the more controversial sections, section 28, regarding enrollemnt of students in public schools.

The Judge did grant a preliminary injunction of three separate provisions.

First, Judge Blackburn issued a preliminary injunction of Section 8 of HB56, as preempted by federal immigration law.  HB56 §8 provides:

An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq. For the purposes of this section, a public postsecondary education institution officer may seek federal verification of an alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A public postsecondary education institution officer or official shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. Except as otherwise provided by law, an alien who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid.

The judge found that Congressional intent was contrary and clear, and thus the state law was preempted.  Only Congress, the judge stated, may "classify aliens" including for postsecondary education.

Second, the judge issued a preliminary injunction of the last sentences of Sections 10(e), 11(e), and 13(h) based on the Compulsory Process Clause of the Sixth Amendment.  These sentences provide that "A court of this state shall consider only the federal government’s verification in determining whether an alien is lawfully present in the United States."   The judge found that to the extent Sections 10(e), 11(e), and 13(h) of H.B. 56 are interpreted as allowing a defendant to be convicted based on a certificate of nonexistent record (CNR) without testimony from the clerk or officer preparing the report, these sections violate the Confrontation Clause, but because there is no evidence this has occurred, the Confrontation Clause argument does not merit a preliminary injunction.  As to the Compulsory Process Clause challenge, however,  Judge Blackburn ruled that by "limiting evidence admissible in a state-court proceeding to “only” the federal government verification of lawful presence, Sections 10(e), 11(e), and 13(h) deny every person accused of violating Sections 10, 11 or 13 of H.B. 56 the constitutionally-protected right to present a defense. By denying accused individuals the opportunity to prove lawful presence, Alabama has denied all individuals charged under these sections with their right to compulsory process."

Third,  the judge issued a preliminary injunction of Sections 11 (f) and (g) based on the First Amendment.  These provision provide:

(f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
(g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

The judge found that these provision were not content nuetral because they applied to a particular subject matter of expression - - - solitication of employment - - - rather than to partcular conduct, such as blocking traffic.  Yet the judge also analyzed the provisions under the commercial speech doctrine Alabama advocated, finding them failing to satify that lower standard.

Like US v. Alabama, this is sure to be appealed to the Eleventh Circuit, and Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.

RR

Alabama Immigration Law HB56 Enjoined in Part by Federal Judge (Part I)

UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.

Judge Sharon Lovelace Blackburn, Chief Judge of the Northern District of Alabama, has issued a 115 page Memorandum Opinion enjoining portions of HB 56 in United States v. Alabama.   [UPDATE: Other portions of HB56 are enjoined in a separate opinion in Hispanic Interest Coalition of Alabama v. Bentley]

Days before the law was scheduled to go into effect on September 1, Judge Blackburn issued a temporary injunction which made it clear it did not address the merits. 

The judge has now rendered her opinion on the various provisions that the United States claims are pre-empted.  Her opinion thus allows a few of the more controversial portions of HB56 to become effective.

Here's the result of her detailed analysis, with the provisions the Judge has declared enjoined as preempted in bold:

H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.

H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.

H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.

H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.

H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.

H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.

H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.

H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.

H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.

H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.

 In her analysis, the Judge relied heavily on the Third Circuit case of Lozano, regarding the Hazelton ordinance, which has been vacated and remanded,  and the Ninth Circuit case of United States v. Arizona, on the notorious SB1070, as might be expected.  However, less predictable is Judge Blackburn's rejection of the Ninth Circuit's opinion in Arizona regarding "unlawful presence," (§10 of HB56).  In part, Judge Blackburn factually distinguishes the Arizona and Alabama statutes.  However, Blackburn also makes it clear she thinks Arizona is incorrect and extensively quotes the dissenting opinion.

Judge Blackburn found one of the most controversial sections of HB56 - - - §13, the haboring transporting provision - - - subject to injunction as pre-empted.  Blackburn's analysis here, especially distinguishing §10, is worth a look:

H.B. 56 § 13 thus represents a significant departure from homogeneity, which “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."   Section 13 creates an Alabama-specific harboring scheme that “remove[s] any federal discretion and impermissibly places the entire operation – from arrest to incarceration – squarely in the State’s purview.” Unlike Section 10, which constrains the Alabama courts to the line of federal precedent interpreting 8 U.S.C. §§ 1304 and 1306, Section 13 imposes no obligation on Alabama courts to take guidance from federal courts and agencies in interpreting the word “harboring” as H.B. 56 § 13 is state law. For all these reasons, the court finds the United States is likely to succeed in showing that Section 13 is preempted.

[Op. at 84, citations omitted].

Given her conclusion on §13, the Judge ruled that the "Clergy Complaint" objection to the same section was moot; She also denied the Clergy motion seeking to enjoing §27 in accordance with her conclusion in US v. Alabama.

Sure to be appealed to the Eleventh Circuit, by either the United States or Alabama or both, Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.

RR
[image via]

 

Town Clerk Update: NY Same-Sex Marriage Law and Town Clerk Seeking Religious Exemption

As the NYT reported yesterday, the clash between the same-sex marriage law in NY, the Marriage Equality Act, and the objections, religiously based, of public employees including town clerks, if fomenting.

As we previously discussed, while the Marriage Equality Act has a religious exemption, this does not cover town clerks who issue marriage licenses.  And as we also previously discussed, the Alliance Defense Fund issued a memo to town clerks entitled  "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."

The NYT quotes the clerk in the rural community, Rose Marie Belforti, as saying  "state law 'protects my right to hold both my job and my beliefs.' "  While the article doesn not mention the memo, the state law claim is indeed discussed in the memo, which does not argue the First Amendment. 

At issue may be the contours of "religious accommodation."  According to the NYT article, the clerk's office is open only a limited number of hours, but same-sex couples desiring a marriage license needed to telephone in advance for a special appointment so that a substitute clerk could handle the matter.  The Town Clerk is an elected position.

RR

No First Amendment Right to Wear Unauthorized Military Medal

The Ninth Circuit has upheld the constitutionality of subsection(a) of the "Stolen Valor Act" in a brief  opinion in United States v. Perleman.  Perleman wore the Purple Heart, which he had actually been awarded by the US Air Force, but under a fraudulent claim.  (Apparently Mr. Perleman shot himself in the thigh, but claimed it was a shrapnel injury from his service in Viet Nam 20 years earlier; he also collected disability benefits from the military).

The Perleman opinion is noteworthy because it distinguishes subsection(a) of 18 USC §704 from subsection(b)  which the Ninth Circuit held unconstitutional last year in United States v. Alvarez.  In Alvarez, the legnthy opinion of the panel highlighted that the criminal provision regulated "only words" and moreover the words targeted "words about a specific subject: military honors," and was thus a content-based regulation subject to strict scrutiny. 

The court wrote:

Our decision in Alvarez under § 704(b) does not control the question whether § 704(a) is facially overbroad. The starting point for our analysis in Alvarez was the recognition that § 704(b) criminalizes pure speech. The critical part of the reasoning was that § 704(b) “makes criminal the speech itself regardless of any defining context.”  We also found it important that § 704(b) lacks “a scienter requirement to limit the Act’s application.” By contrast, here, Defendant effectively argues that the First Amendment protects the fraudster’s knowingly fraudulent activity: knowingly wearing a military medal without authorization and with intent to deceive. Whereas § 704(b) criminalizes pure speech, § 704(a) criminalizes certain specified activities limited by a scienter requirement.

[citations and footnotes omitted]. 

The panel considered the statute under the O'Brien test for conduct-as-speech, with a summary analysis. The Court also discussed Schacht v. United States, 398 U.S. 58 (1970), in which the Supreme Court addressed a constitutional challenge to 18 U.S.C. § 702, which bars the unauthorized wearing of military uniforms, although of course in Schacht the Court did find the provision in another statute that prohibited criticizing the government while wearing a uniform unconstitutional as a viewpoint regulation.

RR
[image of Purple Heart medal via]

Seventh Circuit: Dismissal is Inappropriate Remedy for Failure to Pay Sanction

The Seventh Circuit ruled last week in Williams v. Adams that a district court's dismissal of a plaintiff's civil rights suit is a disproportionate remedy for the plaintiff's inability (and thus failure) to pay a court-ordered sanction in the very early phases of the case.  The court thus reversed the dismissal and allowed the case--now six-and-a-half years old--to finally move forward.

The lower court issued a sanction after the plaintiff's attorney failed to respond to defense counsel's draft pretrial order.  Defense counsel couldn't even get a response from plaintiff's attorney a full six months after the court's deadline for filing the pretrial order.  The defendant initially moved to dismiss the case and for monetary sanctions, but later withdrew the motion to dismiss.  The district court sent the motion to a magistrate, who, after a pair of hearings, declared the plaintiff and his attorney jointly liable to the defendants for $9,055.14, to be paid within 30 days.

The plaintiff tried to negotiate a payment plan--$25 a month--because he couldn't afford the full amount.  Defendants rejected it and, five months later, moved to dismiss the case.  The district court granted the motion, saying that the failure to pay had been "contumacious," despite the plaintiff's inability to pay the full amount.

The Seventh Circuit reversed, ruling that dismissal was not a proportionate remedy for a plaintiff's failure to pay a sanction, when the plaintiff can't afford it.  The court also noted that the defendants had earlier offered to settle for $10,000, money that the plaintiff could have used to pay the sanction, and that the state's attorney disciplinary commission later ordered plaintiff's attorney to pay the sanction himself.

SDS

Fourth Circuit: Iraqis' Torture Claims Preempted

A sharply divided 3-judge panel of the Fourth Circuit ruled last week in a pair of cases that a group of Iraqi citizens could not sue U.S. military contractors in tort for torture in Abu Ghraib prison and other locations throughout Iraq. 

The court ruled in Al Shimari v. CACI Int'l and Al Quraishi v. L-3 Services, Inc. that federal interests preempted the plaintiffs' claims and dismissed the cases.  But there was no preempting federal statute; instead the court relied on federal "interests" in interrogating detainees on a battlefield.  Judge Niemeyer explained in an opinion joined by Judge Shedd:

[W]e too conclude that this case implicates important and uniquely federal interests.  The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations.  In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison.  Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions.  That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case.  Moreover, such interference with uniquely federal interests would be aggravated by the prison's location within the war zone.  Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.

. . .

In addition to the specific adverse impacts on the uniquely federal interests of interrogating detainees in foreign battlefields, a broader and perhaps more significant conflict with federal interests would arise from allowing tort law generally to apply to foreign battlefields.

Al Shimari at 8-10.  In ruling the plaintiffs' claims preempted, the court followed the lead of the D.C. Circuit in Saleh v. Titan Corp., a 2009 case holding that where a civilian contractor is integrated into combat activities over which the military maintains authority, tort claims against the contractor are preempted.

Judge Neimeyer wrote separately to say that he would have dismissed the case under the political question doctrine and derivative absolute immunity, too.

Judge King wrote a lengthy dissent.  Judge King said that the court lacked jurisdiction over this interlocutory appeal, a position he explains in his dissenting opinion in Al Quraishi, and that, if the court had jurisdiction, preemption didn't apply to bar the plaintiffs' claims.

In Al Quraishi, a case with similar facts, the divided panel (Judge King, dissenting) ruled that the court had jurisdiction over the contractor's interlocutory appeal of the district court's denial of its motion to dismiss. 

SDS

Banned Books Week: Nickel and Dimed Makes the List of Most Banned Books

It's banned books week again.

This year one of the  "top ten" books being challenged, according to the American Library Association, is Nickel and Dimed: On (Not) Getting by in America, by Barbara Ehrenreich, with the reasons given as "drugs, inaccurate, offensive language, political viewpoint, religious viewpoint."

 Ehrenreich's more recent book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America, caused a bit of a stir as we discussed here, but the decade old Nickel and Dimed has recently become more controversial.  The objections seem to be to Ehrenreich's unpopular view of capitalism.  Ehrenreich's "update" on her book argues that things have gotten worse.

Banning Sherman Alexie's National Book Award winning novel, The Absolutely True Diary of a Part-Time Indian, on the list again this year, is understandable in the context of the history of banning books for sexual language.  A bit less understandable, but still within some interpretations of the sexual, is the number one book on this year's list yet again, And Tango Makes Three, a children's book based on the true story of two penguins in the Central Park Zoo who come together to raise a chick.  The problem, presumably, is that the penguins are both male. 

Yet the banning of Ehrenreich's Nickel and Dimed seems exceedingly problematical under the First Amendment.  While "obscenity" has a special (and devalued) position within First Amendment doctrine, first-person reporting that casts capitalism in an unfavorable light would seem to be the type of political speech that Americans most highly valued, in doctrine as well as practice.

 

RR

Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?

Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues. 

Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."

The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.  

More information, including registration information is here.  The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18. 

RR

"Occupy Wall Street" Update

Unlike the protesters violating the anti-masking statute as we discussed, the mass arrests on Saturday in NYC seem to be largely for infractions devoted to blocking traffic according to the NYT. There is an unconfirmed allegation of an arrest for photographing police officers; this could be problematic in light of the First Circuit decision last month denying police officers qualified immunity in a civil suit by a man arrested for video-recording an arrest of another person on his cell phone.

There are allegations of police misconduct, including excessive force and the use of "kettling" (netting protesters) followed by pepper spray. The available media depicting the protest and the arrests make vivid viewing and seem to substantiate these allegations. This material could prompt excellent discussions for ConLawProfs (as well as CrimProProfs, and those teaching Civil Disobedience, Social Change, and Democratic Theory courses). 

The NYT site has a few videos [start here], but a larger selection is available on the occupywallstreet site.

RR
[image via]

UC-Irvine Students Found Guilty of Disrupting Ambassador's Speech

Guilty of disturbing a public meeting and conspiracy?  Or exercising free speech rights? 

That was the issue before an Orange County, California jury deciding the case of the sometimes-called "Irvine 11" or " Irvine Muslim Students 11" who disrupted a speech at UC-Irvine by Israeli Ambassador Michael Oren in February 2010.  The 10 students on trial (the case against another student was dismissed) argued their protest was within the First Amendment, but the prosecution reportedly argued that the students had acted to deny Oren of his free speech rights by exercising a "heckler's veto" and "censorship."

An edited version of the protests and attempted speech, with the reactions of university officials, other audience members, and police officers is worth watching:

 

The OC Register has a slide show and coverage of the contentious litigation, including the decision to charge the students criminally.  Many law professors and other scholars and students called on the DA to drop the charges.

While the jury found the defendants guilty, the judge quickly sentenced the defendants to probation and no incarceration according to the LA Times.

RR

Loitering While Masked: The Wall Street Protest Arrests

The "occupation" of Wall Street by people seeking to bring attention to financial greed and misdeeds has provoked some arrests, including arrests for violating New York's longstanding loitering statute, Penal Law §240.5. 

Several sections of the loitering statute have been declared unconstitutional, including loitering for the purpose of begging, loitering for the purpose of gambling, and loitering for the purpose of soliciting someone to engage in oral or anal sex.  However, subsection 4 - - - the loitering while masked provision - - - has been upheld as constitutional by the Second Circuit in Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2nd Cir. 2004). 

Subsection 4 prohibits:

Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities;

A panel of the Second Circuit, including now-Justice Sotomayor, unanimously reversed the district judge who had held the statute unconstitutional under the First Amendment.  The Second Circuit traces the history of the mask provision to the "Anti-Rent era” in New York history, running from 1839 to 1865, involving conflicts between the landlords and tenants of vast manorial estates in New York, and including violence by tenants who disguised themselves.  [While the court does not mention it, the provision was originally part of the vagrancy statutory scheme repealed in 1967, and a host of other states have masking or other disguise statutes, which at times have prohibited gender inappropriate clothing].

The court relied on the specific New York history, "indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers," coupled with the particular case of the KKK regalia, in which the mask added nothing to the expressive attire of the robe and hood, and quickly dispatched the claims of expressive conduct without the necessity for engaging in balancing under United States v. O'Brien, 391 U.S. 367 (1968).  The court also rejected the claims of entitlement to anonymous speech and that the enforcement against the KKK would be viewpoint discrimination.

However, those arrested this week on Wall Street might still argue that the statute is unconstitutionally applied to them.  The protesters are certainly different from the KKK and have less of a connection to violence.  The "masquerade party and like entertainment" of the statute as an exception is a rather broad one it seems.  Indeed, at the Herald Square subway stop last evening, I was entertained by a masked person playing a cello, and "masquerade" is a common occurrence on the subways and streets of NYC. 

More about the protests is available on AdBusters, with a good discussion of the purpose; daily updates are available on occupywallstreet; the NYT discusses the arrests for mask violations and more arrests;  and The Colbert Report snippet below provides a semi-serious perspective.

 

The Colbert Report
Get More: Colbert Report Full Episodes,Political Humor & Satire Blog,Video Archive

 

 This would be a great topic for in-class discussion in First Amendment.

 RR
[image of Occupy Wall Street protester 2011, via]

District Court Upholds Voting Rights Act Preclearance Provision

Judge John D. Bates (D.D.C.) today ruled that Congress had authority to reauthorize Section 5 of the Voting Rights Act under Section 2 of the Fifteenth Amendment.  Section 5, the preclearance provsiion, says that covered jurisdictions must demonstrate to the Attorney General or a federal court that a proposed change to voting practices or procedures has neither the purpose nor effect of denying or abridging the right to vote on account of race.

The ruling came in Shelby County v. Holder, a facial challenge to the 2006 reauthorization of Section 5 and the related Section 4(b) by Shelby County, Alabama.  Shelby County is a covered district under Section 4(b) and brought this suit seeking a declaratory judgment that Sections 5 and 4(b) were facially unconstitutional.  We previously covered the case here.

Judge Bates denied Shelby County's motion for summary judgment and instead granted summary judgment to the government.  The ruling means that the preclearance provision of the VRA stays on the books unless and until Shelby County successfully appeals, or unless and until another plaintiff brings an ultimately successful case--one in which the Supreme Court itself strikes down the provision.

Section 5, the preclearance provision, is a familiar target.  It came to the Supreme Court in its 2008 Term in Northwest Austin Municipal Utility District v. Holder, but the Court dodged the constitutional question by ruling that the Utility District plaintiff qualified for bailout from the preclearance requirement under the language of the VRA.  (The VRA allows covered jurisdictions to bail out of the preclearance provision if they meet certain requirements.  Although the Court dodged the constitutional question, it suggested that the preclearance provision may be vulnerable.)  But Shelby County argued that it wasn't eligible for bailout, and it therefore helped ensure that the courts couldn't dodge the constitutional question.  Shelby County brought the case as a facial challenge, without identifying any particular application of Section 5 as exceeding congressional authority.

Judge Bates's opinion is (appropriately, necessarily) lengthy--151 pages in all.  As we might expect, it summarizes in some detail the 15,000 pages of legislative record supporting the 2006 reauthorization.  But it also spends considerable space describing the history of the VRA, the evolution of the Court's approach to it, and, perhaps most importantly, explaining these two principles: 

1.  The apparently less deferential standard in City of Boerne v. Flores was simply a "refined version of the same method of analysis" in the apparently more deferential standard in Katzenbach v. Morgan.  These are not two separate standards, as the parties argued.  The Court in Boerne held that legislation enacted under Section 5 of the Fourteenth Amendment must be "proportional and congruent" to the constitutional violation; Katzenbach held that legislation must be just rationally related.  Judge Bates Boerne was just an extension of Katzenbach.

2.  The same standard--the Boerne-as-refined-Katzenbach standard--applies both to congressional authority under Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment.

Judge Bates ruled that the preclearance requirement for covered jurisdictions was proportional and congruent to racial discrimination in voting.  He first reviewed the evidence that Congress compiled in 2006--evidence of racial disparaties in voter registration, the number of minority elected officials, and the nature and number of Section 5 objections.  (These were the same types of evidence that the Court relied upon in City of Rome.)  But he also looked at evidence of more information requests, Section 5 preclearance suits, Section 5 enforcement actions, Section 2 litigation, the dispatch of federal election observers, racially polarized voting, and Section 5's deterrent effect.  He concluded that the record of racial discrimination in voting that Congress relied upon in 2006 was at least as strong as the record that the Court held sufficient for reauthorization in 1975 in City of Rome and "far exceeds" the record that the Court held sufficient to uphold the Family and Medical Leave Act and Title II of the Americans with Disabilities Act in Hibbs and Lane, respectively.

Judge Bates next concluded that Section 5 was limited by geography and time--the two factors that the Court in Boerne highlighted in showcasing Section 5 as "an examplary congruent and proportional remedy."  Op. at 133.

Finally, Judge Bates concluded that Section 4(b) didn't render preclearance unconstitutional and didn't violate the principle of equal sovereignty.  Section 4(b) is the coverage formula for Section 5; it looks to voting practices, registration, and presidential election data from 1964, 1968, and 1974 to determine if a jurisdiction is covered.  Shelby County argued that this trigger, also reauthorized in 2006, looked to outdated information to determine preclearance coverage.  Judge Bates disagreed.  He wrote that Section 4(b) (including its 1964, 1968, and 1974 data) operated as a proxy for identifying jurisdictions that had established histories of vote discrimination, and not because something special happened during those years.  As such, the 2006 reauthorization could just as well look to data from those years in defining covered jurisdictions. 

Judge Bates's ruling--and the VRA's preclearance provision--may be most vulnerable on this point.  The Court said as much in Northwest Austin when it suggested that much has changed in voting patterns and practices in covered jurisdictions and particularly called out the trigger as "based on data that is now more than 35 years old." 

SDS

Constitutionality of the Death Penalty

Today, as many are considering the constitutionality and other legalities of the death penalty, specifically in the case of Troy Davis accompanied by doubts regarding his guilt and worldwide protests (pictured right) the decision of the Constitutional Court of South Africa in State v. Makwanyane might be  relevant. 

In one of the first decisions rendered by the Court under the new constitution, it concluded:

[144] The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three [of the Constitution].  By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.

[145] In the balancing process the principal factors that have to be weighed are on the one hand the destruction of life and dignity that is a consequence of the implementation of the death sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital punishment, and the existence of a severe alternative punishment (life imprisonment) and, on the other, the claim that the death sentence is a greater deterrent to murder, and will more effectively prevent its commission, than would a sentence of life imprisonment, and that there is a public demand for retributive justice to be imposed on murderers, which only the death sentence can meet.

[146] Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity, which are the most important of all the rights in Chapter Three. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. Taking these factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder, has not been made out. The requirements of section 33(1) have accordingly not been satisfied, and it follows that the provisions of section 277(1)(a) of the Criminal Procedure Act, 1977 must be held to be inconsistent with section 11(2) of the Constitution. In the circumstances, it is not necessary for me to consider whether the section would also be inconsistent with sections 8, 9 or 10 of the Constitution if they had been dealt with separately and not treated together as giving meaning to section 11(2).

Justice Ginsburg recently voiced her opposition to the death penalty, in a discussion at UC-Hastings School of Law.  As reported by the San Francisco Chronicle last week,

The subject of capital punishment came up when Hastings Professor Joan Williams, who conducted the 90-minute question-and-answer session, asked the 78-year-old justice what she would like to accomplish in her remaining years on the court.

"I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that's not likely to be an opportunity for me," Ginsburg said.

She was referring to the ruling in a 1972 Georgia case that overturned all state death penalty laws, which had allowed judges and juries to impose death for any murder. Four years later, the court upheld another Georgia law that prescribed death for specific categories of murder and gave guidance to juries, a model that California followed when it renewed capital punishment in 1977.

Ginsburg described review of impending executions as "a dreadful part of the business," and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan - who declared in every capital case that they considered the death penalty unconstitutional - so that she could maintain a voice in the debate.

RR

President Obama Announces International Open Government Initiative

President Obama announced today a new international effort to promote transparency and openness in government, the Open Government Partnership. 

The OGP seeks to promote "transparent, effective and accountable governments--with institutions that empower citizens and are responsive to their aspirations."  It includes a Declaration, now signed by 38 nations, that states a commitment to the principles enshrined in the Universal Declaration of Human Rights, the UN Convention against Corruption, "and other applicable international instruments related to human rights and good governance."  The U.S. is a founding partner, along with Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, and the UK.

For the U.S., the OGP is an international extension of the Obama administration's efforts to increase transparency, accountability, and citizen involvement here in the U.S.  The White House issued a status report on its efforts just last week, and it announced a new electronic platform to petition the government, We the People, earlier this month.

SDS

 

Justiciability under the New York State Constitution: Motion to Dismiss Same-Sex Marriage Challenge

The state has filed a Motion to Dismiss in New Yorkers for Constitutional Freedoms v. New York State Senate, the challenge to New York's same-sex marriage statute.  The plaintiffs, "New Yorkers for Constitutional Freedoms" describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original)).

The motion to dismiss has some discussion of the merits, which as we have previously noted are very weak, but devotes most of its argument to justiciability issues under the state constitution.  The State Attorney of New York argues that "to the extent plaintiffs complain about Senate procedures, this case is nonjusticiable."  Essentially, the Attorney General argues that the case presents a political question and the entry into the fray would violate separation of powers under the state constitution.  The Attorney General also argues that the plaintiffs lack standing under the state constitution.  The plaintiffs cannot allege a personally concrete injury or how it suffered any injury distinct from the public at large.

RR

Constitution Day 2011

It's Constitution Day - September 17 - and federal law mandates that

Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution

Department of Education regulations provide that the law

requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week.

 Today (or next week) might be a good time to discuss the relationship of the Constitution's text and its interpretation, especially given the popular rhetoric concerning "strict constructionism." A possible prompt might be the Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. 

In divided opinions, the Court has repeatedly stated it will not engage in "blind reliance" upon the text of the Constitution regarding the Amendment, see e.g., Alden v. Maine (1999).

RR
[image: Eleventh Amendment via National Archives]