Thursday, October 13, 2011

Occupy Switzerland?: European Court of Human Rights Finds A Violation of Free Association Rights of RHINO

RHINO - - - an acronym for two alternative French slogans, translated as “Vacant buildings inhabited again” and “Let’s carry on living in the buildings we occupy” - - - was an association established in Geneva, Switzerland in 1988.  

800px-RHINO_(Geneva)_01After years of activities consistent with its slogans, including squatting in a building with its famous "red horn" (pictured left), legal action terminated not only the possession but the organization itself.  Owners of the occupied properties sought a dissolution of the RHINO association "on the grounds that its aims were unlawful."  The Swiss courts agreed to dissolve the association. 

The European Court of Human Rights, however, has held that the dissolution violated Article 11, "freedom of association," of the European Convention on Human Rights.  The dissolution of the association was not proportionate and necessary in a democratic society, and there was no showing that alternative less restrictive measures were available to prevent "disorder."  The Court therefore ordered money damages (65,651 euros) and costs to be paid by Switzerland to RHINO.

The opinion is only available in French, but there is an official English press release.

There were also related eviction proceedings in the Swiss courts; these are also before the European Court of Human Rights.

[image via]

October 13, 2011 in Association, Comparative Constitutionalism, News | Permalink | Comments (0) | TrackBack (0)

Federalist Society National Lawyers Convention

The Federalist Society holds its 2011 National Lawyers Convention next month in Washington, D.C., with the theme A Constitution of Small Government?  Register here.

Headliners include Justices Scalia and Thomas ("A Celebration of Service"), former U.S. Attorney General Michael Mukasey (Eleventh Annual Barbara K. Olson Memorial Lecture), former U.S. Solicitor General Paul Clement and Prof. Laurence Tribe (Annual Rosenkranz Debate on health care reform), and Utah Senator Mike Lee.

The Convention runs from Thursday, November 10, to Saturday, November 12, at the Mayflower Hotel.


October 13, 2011 in Conferences, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 12, 2011

Court Considers Constitutionality of Strip Searches for Arrestees

The Supreme Court heard oral arguments today in Florence v. Board of Chosen Freeholders (Burlington), asking whether arrestees can be strip-searched on admission to jail without reasonable suspicion.

The case grew out of Albert Florence's arrest and jailing on an outstanding warrant.  The arresting officer took Florence to Burlington County Jail, where officers conducted a strip-search and a visual body-cavity search (including a shower) as part of the intake process.  Florence was detained at Burlington for six days and was then transferred to Essex County Jail.  Officers at Essex conducted similar searches, but this time required Florence to squat and cough to expel any contraband.  Neither Burlington nor Essex officers had reasonable suspicion that Florence was concealing contraband.

Florence argued that his searches violated the Fourth Amendment, because officers lacked reasonable suspicion.  Burlington and Essex, helped by the U.S. solicitor general as amicus, argued that prison officials could conduct blanket intake strip searches like these without reasonable suspicion.

As we might expect, oral arguments centered around the necessary line drawing in a case like this.  Justices wondered whether Florence's reasonable suspicion standard should apply to all arrestees--those arrested for both serious and non-serious offenses, violent and non-violent, drug-related and not, etc.  They wondered just how intrusive a search would trigger the reasonable suspicion standard--a search at 2 feet, or at 5 feet, or at 10 feet.  They wondered whether reasonable suspicion would apply to all types of searches--those conducted for contraband, and those conducted for prison health purposes (as in, say, a lice check).  And they wondered about both the administrability of a reasonable suspicion standard (for the prison) and the trade on personal dignity that might accompany searches based on individualized assessment (for the arrestees). 

If the arguments today are any indication, nobody on the Court seems particularly enthuastic about drawing these lines.

And yet the parties' stronger positions--that reasonable suspicion should always apply (from Florence), and that it should never apply (from the jails)--also had their drawbacks.  As several justices pointed out (led by Justice Breyer), there's scant empirical evidence that contraband works its way into jails under a reasonable suspicion standard.  Moreover, as Justice Alito suggested, applying blanket, suspicionless strip searches to, say, people arrested for routine traffic citations seems wrong.  And as Tom Goldstein argued (for Florence), nobody seems to seriously contest the administrability of a reasonable suspicion standard; in fact, it's the one applied by the federal Marshal Service and ICE to over 600,000 arrestees every year.

On the other side, there was some evidence in the record--testimony by a prison warden--that blanket suspicionless strip searches are necessary to protect the safety of all prisoners.  And, as Carter Phillips argued for the jails, the Court has granted deference in the penal context; according to Phillips, deference here means no constitutional bar to suspicionless strip searches.

Because of the inevitable line-drawing problems with any intermediate position, look for the Court to lean toward a categorical rule--either that reasonable suspicion is always required, or that it is never required.  This, in turn, will almost certainly depend on administratibility and effectiveness of a reasonable suspicion rule (or not)--the kinds of empirical questions over which several justices expressed concern.  But still there may be a thumb on the Court's scale against a categorical rule for reasonable suspicion: as the arguments made clear, such a rule would necessarily introduce some line-drawing--say, as Chief Justice Roberts pointedly put it, between a search at 2 feet or a search at 5 feet--and it wasn't at all clear that a majority on the Court would be comfortable with this (much less in agreement over the line).

Here's a short video by the American Constitution Society and the National Constitution Center on the story behind the case:

We previously posted on the issue here, on Bame v. Dilland, a split decision by a three-judge panel of the D.C. Circuit that the officer enjoyed qualified immunity for a suspicionless strip search of a non-violent, non-drug-related arrestee.


October 12, 2011 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Fourth Amendment, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 11, 2011

Albion Tourgee´ Conference

Tourgee´ is best known, by ConLawProfs anyway, as the attorney for Homer Plessy in Plessy v. Ferguson.  For years, I've used Peter Irons' discussion of Tourgee´when teaching the background and litigation of Plessy, including Tourgee´s daring arguments asking the Justices to imagine themselves Black.



The Center for the Study of the American South at UNC-Chapel Hill will be hosting what looks to be an exciting conference, “A Radical Notion of Democracy: Law, Race, and Albion Tourgée, 1865-1905,” that "recalls the legacies of Reconstruction to offer insight into ongoing policy debates."

The one day Public Law and Humanities Symposium is Friday November 5 in Raleigh, NC.  Registration and program details here.

[image via]

October 11, 2011 in Conferences, Fourteenth Amendment, History, Race | Permalink | Comments (2) | TrackBack (0)

Monday, October 10, 2011

OLC: Congressional Restrictions on Collaboration with Chinese are Unconstitutional

The Office of Legal Counsel opined last month that a provision in an appropriations act that purported to prevent the Office of Science and Technology Policy from using appropriated funds to collaborate with the Chinese was unconstitutional.

Recall that President Obama issued a signing statement on the bill (taking issue with the restrictions on transfer of Guantanamo detainees and restrictions on appointment of presidential advisers), but he wrote nothing about the restrictions on collaborating with the Chinese.  Nothing requires the President to preserve a constitutional objection in a signing statement; and failure to do so certainly doesn't constitute acquiescence to its constitutionality.  Still, the OLC analysis came a little late.  It seems that if Presidents are going to object to the constitutionality of a bill that they nevertheless sign, the better practice is to object early and publicly, in the signing statement, and not only later, through a comparatively less public OLC opinion.

The provision, Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, says that

None of the funds made available by this division may be used for . . . [the OSTP] to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by a law enacted after the date of enactment of this division.

The OLC wrote that this interferes with the President's exclusive authority to "conduct . . . negotiations with foreign governments."  The memo said that Congress "possess significant Article I powers in the areas of foreign affairs," but that in foreign negotiations "it is imperative that the United States speak with one voice" and that "[t]he Constitution provides that that one voice is the President's."  Op. at 4.

The OLC also wrote that Congress could use its power of the purse to defund OSTP.  But once having appropriated funds, it can't "impair the President's conduct of foreign affairs by imposing restrictions on expenditures that serve diplomatic purposes."  Op. at 6.  The memo said, however, that some restrictions--those on activities "that are neither diplomatic in character nor otherwise within the exclusive constitutional authority of the President"--did not run into the President's Article II powers.


October 10, 2011 in Executive Authority, Foreign Affairs, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Columbus Day: The "Doctrine of Discovery"

The celebration of Columbus Day is controversial in many quarters.  Professor Robert Williams' article, Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, 8 Ariz. J. Int'l & Comp. L. 51, available on ssrn, is an exploration of that controversy important to ConLaw perspectives.

00347r Williams conects the three core principles of constitutional Indian Law - - - the Congressional Plenary Power doctrine, which holds that Congress exercises a plenary authority in Indian affairs; the Diminished Tribal Sovereignty doctrine, which holds that Indian tribes still retain those aspects of their inherent sovereignty not expressly divested by treaty or statute, or implicitly divested by virtue of their status; and the Trust doctrine, which holds that in exercising its broad discretionary authority in Indian affairs, Congress and the Executive are charged with the responsibilities of a guardian acting on behalf of its dependent Indian wards - - -to the medieval legal intellectual origins of these foundational doctrines that animated Columbus' ability to "claim" the "discovered" lands of the Americas for European sovereigns.

The article is an excellent exploration of these foundational doctrines. Williams discusses the first "Indian case," Johnson v. McIntosh, written by Justice Marshall in 1823, in which the Court considered a dispute of title between persons who had received their title from Indians and those who had received their title from the United States several decades later.  Williams explains the outcome:

The Court held in Johnson that Indian tribes had no power to give title to lands to private individuals recognizable in a United States court. Marshall's opinion for the Court in Johnson relied exclusively and directly upon the medievally-derived legal tradition of European Christian Crusading conquest and denial of non-Christian infidel peoples' rights brought to the New World by Columbus. . . .  Under this doctrine, recognized and enforced as part of the Law of Nations by the European colonizing nations, discovery of territory in the New World gave the discovering European nation, in Marshall's words, “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” England's title to North America, as Marshall recognized, was asserted under this Doctrine of Discovery, and therefore had devolved to the United States as a result of its victory in the Revolutionary War. Thus, Marshall reasoned that the non-Indian plaintiffs' purchases of lands directly from the Indian tribes, without the approval or sanction of either the original discovering European nation, England, or its successor in interest, the United States, could not be sustained as valid in a United States court of law.

Writing in the quincentennial year of the Columbus "discovery," Williams noted that it was important to confront this continuing legacy of legal doctrines such as "discovery" and their theoretical underpinnings in Christian dominance and racism in order to realize our "contemporary concerns of creating a multicultural society of equal law and justice for all peoples, regardless of their race, cultural or religious beliefs and practices."

Good reading for Columbus Day!

[image: "The Landing of Columbus, 1492, from Library of Congress, via]

October 10, 2011 in Congressional Authority, Current Affairs, Fundamental Rights, History, Interpretation, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 9, 2011

Justifying Targeted Killing

Sources close to the process that resulted in a yet-to-be-disclosed OLC memo authorizing the targeted killing of Anwar al Awlaki have revealed more and more information about what's in that memo, between last week's story in WaPo and today's story in the NYT.  And according to the source or sources, the legal justification seems pretty close to the justification that State Department Legal Adviser Harold Koh gave in his 2010 speech to the American Society of International Law, which we covered and analyzed in May 2010.  Koh relied heavily on the right of self defense under international law and on the AUMF; he made only little mention of the assassination ban under long-standing executive order and the Due Process Clause.  See our May 2010 analysis for more on those sources.

But if we have some little hint of the administration's legal justification, we don't yet have much information on the process, except this sentence in the NYT story today:

The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.

Now Members of Congress are calling on the Justice Department to release the memo, or at least non-classified portions of it, according to WaPo.  The administration hasn't responded to congressional or media requests for information.


October 9, 2011 in Executive Authority, Fifth Amendment, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, October 8, 2011

A New Face of Guantanamo Military Commission Trials?

Chief Prosecutor Army Brig. General Mark Martins announced this week that military commission trials at Guantanamo Bay will resume, with changes designed to increase transparency and fairness.

General Martins mentioned three changes.  First, there are new restrictions on the use of evidence obtained by torture (although the exception--"in the interest of justice"--may well swallow the rule).  Second, relatives of victims will be able to view the proceedings by a video feed in the U.S.  And third, the Pentagon set up a new web-site with case information, FAQs for detainees' representatives, case files, and more.  (The site even has a "legal system comparison," illustrating in a chart the different features of military commissions, courts martial, and Article III courts.)

First up under the revamped proceedings: Al Nashiri's arraignment on November 9 for his alleged role in bombing the USS Cole and planning attacks on the USS The Sullivans and the MV Limburg.

Al Nashiri's arraignment is on the new web-site's calendar, and his case file is up, with links.  But as of today, even the Defense Request for Continuance of Arraignment and the following Order were not available.  The link said they were undergoing a security review.


October 8, 2011 in Executive Authority, International, News, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Thursday, October 6, 2011

In Memoriam: Derrick Bell

ConLaw Prof Derrick Bell died yesterday at the age of 80.  As the NYT obit reports, Bell was known for his scholarly works, for his pioneering of critical race theory, for storytelling as scholarship, for being ethical, and for leaving a position at Harvard Law.  While the obit certainly does mention that Bell was a law professor, it does not emphasize that he was also a teacher. 

Derrick Bell Bell's writing on Constitutional Law pedagogy deserves continuing attention.  Here is an excerpt from his 1998 essay published in Seattle University Law Review,  Constitutional Conflicts: The Perils and Rewards of Pioneering in the Law School Classroom:

By departing from the norm in constitutional casebooks and giving priority to "learning by doing" simulations, students mimic the kind of process that an attorney, researching an unfamiliar area of law, might utilize to investigate prior decisions. In practice, lawyers are called to research and to write; to comprehend legal arguments; to guess at the probable effect of and interaction between judicial, statutory, legal and policy arguments in court; to argue, persuade and debate; to work cooperatively with colleagues; and for some, to judge those arguments and decide cases and issues of law. This is as true in the practice of constitutional law as in any other. Once their research skills are in place, most students are aware that they have the capacity to learn, relatively quickly, whatever they need or want to know regarding any legal question.

Bell's Constitutional Conflicts was a casebook of sorts, modeled on this method to achieve active learning and participation.  His students seemed to thrive in the "Court of Bell."

For some law professors putting together such material and assessing the student products would deflect from their scholarly agenda.  But Derrick Bell took pedagogy as seriously as he took his many scholarly projects and his lecturing schedule.  Or maybe not so seriously: One of my fondest memories of him was as a co-panelist on an AALS Teaching section plenary, when he replied to a question by saying that teaching was fun.  And then he whispered to me that perhaps we'd better not tell everyone how much fun it really is.

[image: Derrick Bell via]

October 6, 2011 in Current Affairs, Profiles in Con Law Teaching, Race | Permalink | Comments (1) | TrackBack (0)

Is the United States Constitution Worthy of Emulation?

It may not be, at least to the extent that it is considered a model worth emulation by other constitutional democracies.  In their important forthcoming article, David Law and Mila Versteeg argue that the United States Constitution has lost its stature - - - indeed, its hegemony - - - as a global influence on constitutional democracies.  The title of their article, The Declining Influence of the United States Constitution, says it all.

But what is exceptional about their article is that they set out to prove their thesis with statistical analysis.  They explain their quantative analysis with precision and care, achieving an admirable level of transparency.  One might not agree with a particular detail (or as they say, coding decision) but their explanations (including those in previous articles) are revealing.  Their analysis of "rights-related provisions" includes enforcement mechanisms, such as judicial review.  They also analyze judicial review in their structures discussion, as well as federalism and "presidentialism."   Their "waning influence" argument is given graphic illustration in a series of maps in which darker shades of blue represent closer similarity to the U.S. Constitution, while darker shades of red indicate greater dissimilarity:



The increasing atypicality of the United States Constitution is attributable to a few factors that their statistical analysis reveals.  In terms of rights, the United States Constitution has fewer rights (while the trend has been toward more), some of the rights that it does have are rare (e.g., the right to bear arms), and some of the rights that it omits are "generic building blocks of global rights constitutionalism" (e.g., women's rights. positive socio-economic rights).  The difficulty of amending the Constitution and the age of the Constitution also contribute.

So if the United States Constitution's influence is waning, are there other constitutions that have gained prestige?  The top candidate is Canada.  Indeed, they come close to arguing that Canada is the new constitutional "super power."   (Canadian scholars may be particularly interested in this section, as well as in the maps similar to those above that illustrate their statistical findings).  Other candidates are Germany, South Africa, and India.  On the international level, they also examine human rights instruments, although they conclude that the results of their regression analysis offers little or no support for the notion that any of the three leading international human rights instruments have been widely emulated by constitution-makers.

This an essential article for anyone teaching Comparative Constitutional Law, especially for those trained in the United States Constitutional paradigm.  It's also a great article for ConLawProfs doing comparative work, or indeed anyone teaching constitutional law.  There is a great deal of "data" and charts as well as maps, but there is also a solid writing style and accessible interpretations.  There is also some speculation - - - and the implicit invitations to readers to contribute their own explanations.

And it does provide a different slant on the question of American exceptionalism and whether United States constitutional interpretation should ever consider foreign or international perspectives.


October 6, 2011 in Comparative Constitutionalism, Scholarship | Permalink | Comments (0) | TrackBack (0)

Occupy Wall Street, Zuccotti Park, and the First Amendment

With the burgeoning protests of "Occupy Wall Street" including a packed (and permitted) march yesterday at Wall Street and the federal courthouses (photo below), there is an increasing focus on the First Amendment status of Zuccotti Park, once known (and by some renamed) Liberty Park.  As the name change hints, Zuccotti Park was once public, but is now owned by a private corporation and named after its chairperson.

The publicly accessible but privately owned "park" causes some First Amendment ambiguity, although not one without precedent.  Indeed, the "Plaza" outside Lincoln Center was the site of such a dispute involving a planned union rally.  In a 2002 Second Circuit opinion written by a panel that included now-Justice Sotomayor, the court in Hotel & Rest. Employees Union v. New York Dep't of Parks, found that the Plaza was not a traditional public forum and the policy limiting organized public expression in the Plaza to "artistic and performance-related events" was viewpoint neutral and reasonable in relation to the forum's function and purpose. 

Having used this case as the basis for an in-class discussion in First Amendment, I can attest to the difficulties it poses, especially since it bans public speech.

In an excellent and succinct piece in the NYLJ yesterday, Christoper Dunn examines the Lincoln Center Plaza precedent as it would apply to Zuccotti Park. Dunn writes:

If the Occupy Wall Street protest turns into a legal confrontation, the first step for the courts will be to sort out whether Zuccotti Park qualifies as a traditional public forum, an exercise that will entail a detailed examination of the unusual history and use of the space. Assuming, as seems evident, that the public's free access to the space imbues it with the qualities of a normal park for First Amendment purposes, there then would be questions about what rules actually apply to the space and whether they square with the First Amendment.

Dunn then turns to the "rules" that might apply and the protesters' actions, including "sleeping in the park."  For those familiar with First Amendment doctrine, this immediately raises Clark v. Community for Creative Non-Violence, the 1984 Supreme Court case involving what we might now call the "occupying" of the National Mall to protest homelessness.  Dunn's discussion of Clark as well as other precedent is again cogent and succint.

For those wishing to use Occupy Wall Street in First Amendment this term, this could be the basis of a great problem mixing forum doctrine and symbolic speech, and Dunn's brief article would be a terrific model answer.


October 6, 2011 in Current Affairs, First Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 5, 2011

Oral Argument Review: Reynolds and Sex Offender Standing

On Monday the Court heard oral argument in Reynolds v. United States on whether a sex offender convicted, sentenced, and released before the federal Sex Offender Registration and Notification Act passed had standing to challenge the Attorney General's interim rule under SORNA that SORNA's registration requirements applied to pre-enforcement offenders.  The following argument review is cross-posted at SCOTUSblog; the argument preview on SCOTUSblog is here.

We knew going into oral argument this week that the statute at issue in Reynolds v. United States was hazy.  After all, what does it mean for Congress to authorize the Attorney General to “specify the applicability of” the registration requirements for pre-enforcement sex offenders under the federal Sex Offender Registration and Notification Act (SORNA)?  There seems to be no precedent for this kind of delegation, and any interpretation raises significant problems.  But even as the argument on Monday highlighted these ambiguities and problems, it also revealed the factors that the Court will balance to navigate them, and suggested the likely result.

On the one side, the Court seemed acutely aware that Reynolds’s preferred interpretation  – that as a pre-enforcement offender, he was subject to SORNA’s registration requirements only after the Attorney General issued regulations – raised serious potential constitutional problems.  In particular, the Court recognized that Reynolds’s interpretation means that SORNA delegates to the Attorney General the complete and awesome authority to determine whether registration applies at all to pre-enforcement offenders.  Counsel for the government put it this way: According to Reynolds, the Attorney General has complete control over the light switch.  Thus by Reynolds’s reckoning, SORNA veers toward a violation of the non-delegation doctrine and separation-of-powers principles.  Chief Justice Roberts and Justice Ginsburg both raised this issue, but Justice Scalia put perhaps the finest point on it:

My problem is that it’s very strange.  I find it very strange to leave it up to the Attorney General whether something will be a crime or not.  It will be a crime if the Attorney General says so and it won’t be a crime if he doesn’t.  I mean, especially leave it up to the Attorney General, for pete’s sake; he’s the prosecutor.  You know, it will be a crime if the prosecutor thinks it is and it won’t be a crime if the prosecutor thinks it isn’t.  I don’t know of any parallel, and I think it’s sailing close to the edge of constitutionality.

And there’s another, practical problem: Under Reynolds’s interpretation, SORNA would create a registration vacuum for pre-enforcement offenders, at least until the Attorney General “specified the applicability of” its registration requirements.  That’s because, according to Reynolds, state registration doesn’t satisfy SORNA registration, and SORNA itself does not require pre-enforcement offenders to register.  Thus SORNA wouldn’t touch pre-enforcement offenders until the Attorney General acted.  But some Justices suggested that this kind of vacuum would frustrate congressional purpose – to unify the national registration of sex offenders and to re-locate and register those many offenders that were lost under previous state and national registration schemes.  Counsel for the government argued that this approach unnecessarily and wrongly complicates registration; instead, state registration (which was mandatory for Reynolds himself, and which he skipped) also satisfies SORNA’s requirements for pre-enforcement offender registration.  There was some sympathy for this more simple approach on the bench, underscoring this practical problem with Reynolds’s position.

But on the other hand, the government’s position – that SORNA itself requires pre-enforcement offenders to register, irrespective of any regulation from the Attorney General – has its own problems.  For one, it would have been easy for Congress to do this with plain language in the statute; but it didn’t.  In fact, as Justice Sotomayor pointed out, Congress rejected an alternative version of the bill that would have plainly required pre-enforcement offenders to register.  (Justice Sotomayor was careful to remind us that not all of her colleagues would be persuaded by this kind of legislative history.)

Moreover, the government’s understanding of the Attorney General’s authority – the “safety valve,” as counsel called it – may have gone too far.  Justices Scalia and Kagan both seemed taken aback by the government’s claim that the Attorney General’s authority to “specify” the requirements would allow the Attorney General to entirely exempt all pre-enactment offenders from SORNA’s registration requirements.  This seems to swing from Reynolds’s position too far the other way.

Finally, and perhaps most importantly, the government’s interpretation leads to confusion, even incoherence, between SORNA’s requirement for initial registration and its requirement for keeping registration current for pre-enforcement offenders.  In a lengthy exchange between Justice Breyer and counsel for the government, sometimes joined by Justices Scalia and Kagan, the Justices suggested that the government’s position could leave some pre-enforcement offenders without any idea what the law required and no way to comply.  Counsel for the government, assisted at one point by Chief Justice Roberts, argued that SORNA’s structure suggested otherwise and that its criminal provision was tailored around these problems.

If the argument is any prediction, the Court will likely balance worries about an unconstitutional construction that undermines legislative purpose (if it adopts Reynolds’s interpretation) against concerns that SORNA’s registration requirements are incoherent for some pre-enforcement offenders and that SORNA gives too much power to the Attorney General to nullify registration (if it adopts the government’s understanding).  For a majority on this Court, this balance probably favors the government: the government’s position both avoids a constitutionally questionable interpretation of the statute and would read SORNA to sweep in all pre-enforcement offenders – a read that seems more natural in light of SORNA’s overall structure, and a read that is consistent with a plausible understanding of congressional purposes. 

But even this wouldn’t necessarily close the case.  Reynolds raised an alternative argument that he still would have standing to challenge the Attorney General’s interim rule, even if SORNA itself required him to register.  This is because the Attorney General issued the rule without notice and comment, which would have allowed Reynolds to persuade the Attorney General why he should be exempted from the registration requirements under the rule.  Because the interim rule did not exempt him, he has standing to challenge it.  This seems a too-clever turn to have any real traction, but it serves as a useful final reminder that this is one dodgy statute.


October 5, 2011 in Cases and Case Materials, News, Separation of Powers, Standing | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 4, 2011

The Brennan Center on Voting Law Changes

The Brennan Center at NYU recently released a report on the many changes to voting laws that we're seeing in the states--everything from voter ID requirements to cutting back on early voting to beefed up registration requirements.  The results are sobering, with restrictions "fall[ing] most heavily on young, minority, and low-income voters, as well as on voters with disabilities."

The Supreme Court made challenges to voter ID laws much more difficult in 2008 in Crawford v. Marion County.  In Crawford, the Court upheld Indiana's voter ID law against a facial equal protection challenge.  The Court said that the law was a neutral voting regulation designed to ensure the integrity of the process, not an infringement on the fundamental right to vote.  When the plaintiffs refiled in state court, an Indiana intermediate appellate court overturned the law under the state constitution, but the Indiana Supreme Court reversed, more-or-less tracking the reasoning in Crawford.  The latest chapter came in Stewart v. Marion County, filed in federal court in the Southern District of Indiana.  But the court dismissed Stewart for lack of standing.  The problem?  Stewart had an ID.

Under Crawford's approach, challenges to any of the restrictions surveyed by the Brennan Center would likely face an uphill battle in court.


October 4, 2011 in Equal Protection, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Monday, October 3, 2011

Alston on Targeted Killings

Philip Alston (NYU) recently posted his now-even-more-timely article The CIA and Targeted Killings Beyond Borders late last month on SSRN.  In it, Alston argues that there's no effective check on CIA targeted killings, and that this undermines the international rule of law.  From the abstract:

The CIA's internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a "free pass" to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself.  As a result, there is no meaningful domestic accountability for a burgeoning program of international killing.  This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL.  The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.

We post on Judge Bates's dismissal of a case brought by al-Awlaki's father here; we posted on the legality of targeted killings here.


October 3, 2011 in Executive Authority, Foreign Affairs, International, News, Procedural Due Process, Scholarship, Standing, War Powers | Permalink | Comments (0) | TrackBack (0)

Supreme Court October 2011 Term


Watch a video of the annual Supreme Court portrait on the Washington Post site here.

And thanks to all our commentators and readers as we celebrate our blog's 3rd anniversary and over a half-million hits.



October 3, 2011 in Supreme Court (US), Weblogs | Permalink | Comments (0) | TrackBack (0)

Sunday, October 2, 2011

Florida Prison Privatization: Allowable but State Constitutional Process Must be Followed

In an order Friday, Judge Jackie Fulord held unconstitutional a statute ordering the privatization of 29 South Florida prisons in Baiardi v. Tucker.  The suit was filed by the correctional officers union.

210px-Jail_Bars_Icon.svg The judge stated that there was no question that Florida could privatize prisons under Florida Stat. §944.105, which gives authprity to the Department of Corrections (DOC) to "outsource" correctional functions based on DOC expertise.  But the problem here was that the Florida Legislature was now mandating DOC privatize the 29 prisons - - - and this mandate occurred not in an ordinary statute (a general law) but in the "hidden recesses" of a General Appropriations Act. 

In her brief order, Judge Fulord relied upon the very simple provisions of Florida Constitution Article III §6 and §12:

SECTION 6. Laws.—Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: “Be It Enacted by the Legislature of the State of Florida:”.

SECTION 12. Appropriation bills.—Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.

The ruling reportedly caused the stock of a Florida-based private prison operator to fall.

[image via]

October 2, 2011 in Current Affairs, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)