Thursday, December 29, 2011

Second Circuit Upholds NYC's "Pay-to-Play" Campaign Finance Law

The Second Circuit rejected a First Amendment challenge to New York City's laws which seek to prevent so-called "pay-to-play" schemes that link campaign contributions to city contracts. 

In a panel opinion rendered last week in Ognibene v. Parkes, authored by Judge Paul Crotty, a district judge sitting by designation, and with two concurring opinions, the Second Circuit upheld the law.  The challenged provisions were those that

  • limit campaign contributions by individuals and entities that have business dealings with the City (from the generally applicable limit of $4,950 to $400 for mayor, comptroller, and public advocate, with similar schemes and reductions for borough presidents and members of city council);
  • exclude such contributions from matching with public funds under the public financing scheme; and
  • expand the prohibition on corporate contributions to include partnerships, LLCs, and LLPs.

300px-Charging_Bull_statueThe district judge had upheld the city laws in 2009, but the Second Circuit now had to consider both Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) and  Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).  Ultimately, the panel found that neither case altered the district judge's conclusion.

As to Citizens United, the panel opinion rejected the appellants' attempt - - - through "selective and misleading quotes" from Citizens United - - - to broaden Citizens United and obliterate the Supreme Court's "clear distinction between limits on expenditures and limits on contributions."  (at 18).  For the panel, Citizens United "confirmed the continued validity of contribution limits, noting that they most effectively address the legitimate governmental interest, identified by Buckley [v. Valeo], in preventing actual or perceived corruption." 

More contentious, however, was the nature of the actual or perceived corruption required.  As the panel opinion noted, although "Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption," citing Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).  Judge Debra Ann Livingston concurred separately to disagree with any notion that improper influence was a form of corruption that could be constitutionally addressed.   However, the panel lauded the city's fact-finding about corruption and the perception of corruption, stating both that the city need not wait until the "dog" actually bit before enacting legislation (at 27) and that there were actual recent "scandals involving exchanges of money for favors," (at 31 n.15 citing news reports).  

Having found the government interests sufficient, the panel opinion then analyzed whether the provisions were closely drawn.  The panel opinion rejected the argument that the provisions were poorly tailored because they were not "indexed for inflation" and because they discriminated based upon viewpoint.   The viewpoint argument was largely based upon the exclusion of nonprofits such as neighborhood associations from the city law, but the panel stated that appellants never specified the viewpoint, and that neighborhood associations (for example) did not have a unified viewpoint.

The panel also rejected the challenge to the matching funds provision, distinguishing Bennett, and found that the entity ban, including not only corporations but partnerships, was sufficiently closely drawn.

Judge Guido Calabresi's interesting concurring opinion merits a close and full read.  Beginning with a Biblical passage, Calabresi states his disagreement with the Supreme Court's belief in the majority opinion in Citizens United that a government antidistortion interest (to "level the playing field") is inconsistent with the First Amendment.  Instead, courts should recognize that interest in the same manner that they recognize the validity of noise ordinances:

If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue. In much the same way that anti-noise ordinances help to prevent megaphone users from drowning out all others in the public square, contribution limits can serve to prevent the wealthiest donors from rendering all other donors irrelevant—from, in effect, silencing them.

Moreover, the problem with the loudness of the megaphone in the public square

is not just that it drowns out the voices of others, but also that it misrepresents, to an outside observer, the relative intensity of the speaker’s views. That is, even if the megaphone user cares little about the issue being discussed, his voice gets heard above all others, while the voices (and intensity of feelings) of those who care passionately about the issue (and shout their beliefs at the top of their lungs) seem small in comparison. The one speaker’s relative loudness— along with the other speakers’ relative softness—obscures the depth of each speaker’s views, thereby degrading the communicative value of everyone’s message.

Calabresi's opinion articulates some of the same criticisms of campaign financing that animate the Occupy Wall Street movement.  He concludes by criticizing the Supreme Court's lack of deference to the legislature and essentially suggesting that the Court's activism (although he does not use that term) will be eventually ameliorated, whether through a "constitutional amendment or through changes in Supreme Court doctrine."

[image: "Charging Bull" on Wall Street]

December 29, 2011 in Campaign Finance, Current Affairs, Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Recent Cases, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 28, 2011

Ninth Circuit: Birthers Have No Standing to Challenge Obama's Presidency

The Ninth Circuit ruled last week in Drake v. Obama that a group of plaintiffs lacked standing to challenge President Obama's qualifications to be President under Article II, Section 1, on the ground that he is not a "natural born Citizen."  The ruling affirms the earlier district court ruling, although for somewhat different reasons.

The case involves six categories of plaintiffs.  Here's what the court said, one group at a time:

Active Military Personnel.  The court ruled that an active duty officer failed to allege sufficiently concrete harm when he claimed that his failure to obey orders from President Obama, his Commander in Chief, would result in disciplinary action against him.  Instead, the court said, the alleged harm is speculative, and easily avoidable: "he can obey the orders of the Commander-in-Chief."  Op. at 11.

Former Military Personnel.  The court ruled that this group's claim--that it could be called back into duty and subject to orders of President Obama--was "far too speculative and conjectural."  Op. at 12.

State Representatives.  The court held that state representatives, who claimed that they could be harmed because "receipt of funds from any officer without legal authority [like President Obama, under their theory] would be complicity in theft or conversion," also claimed a far too speculative harm.  Op. at 13.

Federal Taxpayers.  The court ruled that taxpayers generally do not have standing.

Relatives of President Obama.  The court ruled that plaintiff Kurt Fuqua failed to allege an injury in fact based only on his familial relationship to President Obama.  The fact that he's family does not bolster his otherwise standing-less claims.

Political Candidates and Electors in the 2008 Election.  The court ruled that plaintiffs Alan Keyes and Wiley Drake, the Presidential and Vice Presidential candidates, respectively, of the American Independent Party, a write-in candidate for President, and a certified California elector all lacked standing based on their allegation that they were denied a fair competition for the presidency.  The court recognized that some courts, including the Ninth Circuit, have recognized something like "competitive standing."  But here the plaintiffs' complaint came in only after President Obama was officially sworn in as President.  The court said that after President Obama was sworn in, the plaintiffs were no longer candidates in the 2008 general election, and they have no alleged any interest in running against President Obama in the future.  (In contrast, the district court assumed, without deciding, that political candidates had some form of "competitive standing," but that they lacked redressability, because the federal courts could not grant their requested remedy--ousting President Obama--without running afoul of the political question doctrine and separation of powers.)

The court also rejected the plaintiffs' quo warranto claims, ruling that those claims have to be brought in the D.C. district and by the Attorney General or the U.S. Attorney for D.C.  It's no excuse that those officers have declined to bring a quo warranto case.

Finally, the court rejected the plaintiffs' novel FOIA and RICO claims.


December 28, 2011 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (1) | TrackBack (0)

Friday, December 23, 2011

The New York Times Sues the Justice Department for Memos Authorizing Targeted Killing

The New York Times and reporters Charlie Savage and Scott Shane sued the Department of Justice in the Southern District of New York this week to obtain any legal analysis from the Office of Legal Counsel authorizing the government's targeted killing of suspected terrorists.  Courthouse News Service first reported here.

Recall that Savage reported on the government's legal justification for its targeted killing of Anwar al Alwaki, a United States citizen and alleged terrorist living in Yemen.  But Savage relied on a government source, not an OLC memo or other formally released legal advice.  According to Savage's story, the government's legal advice probably closely tracked State Department Legal Adviser Harold Koh's arguments to the American Society of International Law in May 2010.  But still, the government had not released the actual legal advice.

Savage and Shane filed two separate FOIA requests with the Department of Justice for any legal advice that the Department offered to the administration on the legality of, or authority to commit, targeted killings.  The DOJ rejected the requests, citing FOIA Exemption 1 (relating to national defense or foreign policy information classified under EO 13526), Exemption 3 (relating to information protected by statute), and Exemption 5 (relating to privileged information).

The complaint argues that Exemptions 1 and 3 do not apply, because the FOIA request seeks only legal analysis, and "[m]emoranda containing only legal analysis fail to meet the requirements for properly classified materials under Executive Order No. 13526 or other legal authority."  (Para. 55.)  It argues that Exemption 5 doesn't apply, because "[m]emoranda containing legal analysis relied upon by the government constitute final determination of policy by the government and therefore are not deliberative materials."  (Para. 54.)

The complaint also cites the widespread calls for release of any memos--by Members of Congress and former OLC attorneys.

Given the widespread calls for release, the all-but-known legal advice that's in the memo, and the administration's stated commitment to transparency, the government's intransigence doesn't seem to make a lot of sense.  (The government also succeeded in dismissing al Alwaki's father's case on the pleadings--and, alas, could probably succeed in dismissing any similar case on similar grounds--and so there doesn't appear to be a threat that release of any memo now would give up a litigation position later.)  And now, in response to the Times's case, the government may feel like it has to dig in its heels to preserve the vitality of these exemptions in future cases. 

The government should just release the memo publicly--something it should have done months ago, without the threat of a FOIA suit--and move to dismiss the Times's case as moot.


December 23, 2011 in Cases and Case Materials, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, December 22, 2011

Court Dismisses Guantanamo Detainee's Torture Claims

Judge Richard Leon (D.D.C.) today dismissed the torture claims of Abdul Rahim Abdul Razak Al Janko, a Syrian national detained at Guantanamo Bay and the first detainee released on habeas to seek damages for actions taken while he was in custody.

Al Janko sued the U.S. government, 20 high level officials, and 100 Jane and John Does for 18 counts of torture and civil conspiracy under the Constitution, the Alien Tort Statute, and the Federal Tort Claims Act.  Judge Leon dismissed all his counts under the jurisdisction-stripping provision of the Military Commissions Act of 2006, 28 U.S.C. Sec. 2241(e), which says:

[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention . . . treatment . . . or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(Judge Leon's emphasis.)

Judge Leon rejected Al Janko's argument that he won his habeas case and therefore wasn't "determined by the United States to have been properly detained," because "United States" here refers to the executive, not the judiciary.

Judge Leon wrote that Al Janko's claims against the government would have failed under the ATS and FTCA even absent the MCA's jurisdiction-stripping provision, because the government didn't waive sovereign immunity for this kind of claim.


December 22, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 21, 2011

The Constitutional Issues Facing Sheriff Joe Arpaio

402px-Joe_ArpaioJoe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times.  As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances. 

The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.  

A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails.  In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant.  During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail.  The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments.  The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor.  As a press release from Mendiola-Martinez's attorneys summarizes the law:

The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.

The immunity of Joe Arpaio will surely be raised by his attorneys.  The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests.  The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here.  Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:

24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.

38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.

"You come to court without briefs?" Kozinski chides, waving some papers in the air.

GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.

40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.

This could be a useful bit for ConLawProfs mentoring or judging moot court teams.

In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings.  The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies.  This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997.  In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."

The December 15 letter specifically focuses on Arpaio's role:

Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.

There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.

[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]

December 21, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Gender, Medical Decisions, News, Oral Argument Analysis, Privacy, Race, Reproductive Rights, Speech, Teaching Tips | Permalink | Comments (1) | TrackBack (0)

Ron Paul and The Federal Reserve

With Ron Paul reportedly becoming a "serious contender" in the presidential primary, there is renewed attention to his views on the Federal Reserve as "dishonest, immoral, and unconstitutional," encapsulated in his campaign slogan, "end the fed. " 

EndthefedAn extended video, Fiat Empire, now about 6 years old, is a good introduction to the issues. 

The argument supporting the unconstitutionality of the Federal Reserve can be summed up in the phrase "the poster child of unconstitutional private delegation," cited to John Hart Ely in Timothy Canova's article, Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence, available on ssrn.  Section 4 of the article is a great overview and argument regarding the Federal Reserve.  (I assigned this section last semester in Constitutional Structures in conjunction with Free Enterprise Fund v. PCOAB which Canova also discusses, and showed a short clip from Fiat Empire; it was well-receoved by students.)

As Canova notes, concerns about the Federal Reserve arise both from the "populist libertarian right" and the "populist progressive left" :  When "Representative Ron Paul, a Republican libertarian from Texas, introduced a bill to subject the Federal Reserve to an audit by the Government Accountability Office (GAO)" it was "cosponsored on the left by such Democratic and progressive Congressmen as Dennis Kucinich from Ohio and Alan Grayson from Florida." 

Canova and others, including Joseph Stiglitz, Jeffrey Sachs, and Robert Reich have been named experts on a panel advising a United States Senator to "develop legislation to restructure the Fed and tighten rules on conflicts of interest, ensure that the Fed fulfills its full-employment mandate, increase transparency, protect consumers and reduce income inequality."  That Senator is Bernie Sanders, Independent-Vt.   And while Paul and Sanders may agree on some aspects of the Federal Reserve, they seem to be very far apart on health care reform.


December 21, 2011 in Congressional Authority, Current Affairs, Film, History, News, Recent Cases, Scholarship, Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 20, 2011

The National Defense Authorization Act

There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does.  (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.)  On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens.  Glenn Greenwald does a nice job setting out the case at  On the other side, supporters say that it only codifies the government's authority under existing law.  Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.

It turns out, both sides are right.  In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF.  Here are some of the highlights:

  • Indefinite Detention.  Section 1021(c)(1) says that "[t]he disposition of a person under the law of war as described in subsection (a) may include . . . [d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force."  (Emphasis added.)  This is the definition of indefinite detention.  But it's also an authority that President Obama claimed from the early days of the administration.  In fact, the definition of a "covered person" in Section 1021(b)(2) almost exactly tracks the administration's proposed definition of a "detainable person" under the AUMF in its March 13, 2009, filing in a Guantanamo habeas case in the D.C. District.  (More below.)  So while this authority in the NDAA is significant for representing clear congressional support for indefinite detention, and while it's deeply troubling, it also merely reflects the administration's long-standing position.
  • Detainable Persons.  Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."  This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks."  Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners."  (Section 1022 covers a subset of detainable persons in Section 1021.  U.S. citizens and resident aliens are excepted from the requirement; more below.)  In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners.  But again, this is an authority that the administration claimed from its early days.  Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases.  And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban."  So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.
  • Detainability of U.S. Citizens.  Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States.  This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens.  The Act is deliberately ambiguous on this point and seems to punt to the courts.  But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.
  • Guantanamo Transfers.  Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States.  This restriction means that the administration can't transfer detainees for civilian criminal trials.  The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.
  • Civilian Trials.  In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.

These provisions in the NDAA represent significant and explicit congressional approval of government detention authority.  But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches.  In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.


December 20, 2011 in Executive Authority, Foreign Affairs, Fundamental Rights, Habeas Corpus, International, News, Separation of Powers, War Powers | Permalink | Comments (5) | TrackBack (0)

Monday, December 19, 2011

Gingrich on the Judiciary

In case you missed it, here's Newt Gingrich explaining his views on the federal judiciary--and how to check it--yesterday to Bob Schieffer on Face the Nation.


Among the more eye-popping claims in the interview, Gingrich explains that separation of powers means that "it's always two [branches] out of three."  The "two-out-of-three" rule came up in response to Schieffer's question about whether President Obama could ignore a Court ruling overturning the Affordable Care Act (now at the Court, and scheduled for oral argument March 26 to 28).  Gingrich said it would depend on whether President Obama could get Congress to go along--two out of three.  (It doesn't matter, apparently, that Congress already went along.  It seems that the two-out-of-three rule only works if two out of three come to the right decision.)  This exchange is around six minutes into the interview.

Gingrich also says that Congress could subpoena a federal judge to explain his or her reasoning to Congress.  And more: Congress could enlist the Department of Justice to help do this.

Gingrich sets out his positions in more detail in a white paper modestly titled Restore the proper role of the judicial branch by using the clearly delineated Constitutional powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution at, his campaign site.  From the intro:

This NEWT 2012 campaign document serves as political notice to the public and to the legislative and judicial branches that a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress.  A Gingrich administration will use any appropriate executive branch power, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution.  The historical and constitutional basis for this position is outlined in this paper.

Paper, at 3.  "The constitutional solution is threefold":

First, the executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions.

Second, when appropriate, the executive and legislative branches can use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional.  An outline of some of these constitutional steps is outlined elsewhere in this paper.

Third, the executive and legislative branches should employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.

A Gingrich administration will undertake each of these steps.

Paper, at 6.

Gingrich says that one of his strengths is that he's not a lawyer and therefore not bound by elitist views of the role of the courts.


December 19, 2011 in Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (6) | TrackBack (0)

Constitutional Challenge to AETA (Animal Enterprise Terrorism Act)

The First Amendment problems with AETA, the Animal Enterprise Terrorism Act, are well known.  Last year, a Northern California District Judge dismissed the high profile indictments against Joseph Buddenberg and three other defendants under AETA, 18 USC 43, on the basis of a Fifth Amendment failure to allege sufficient facts, although related to the First Amendment, as we discussed here.  AETA itself concludes with “Rules of Construction” which provide in relevant part that nothing in this section shall  be construed"

(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution; 

(2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference . . . . "

450px-Gewöhnlicher_Schimpanse_Zoo_LandauThe Center for Constitutional Rights has filed a complaint, Blum v. Holder, in the District of Massachusetts federal court challenging AETA on its face and as applied as a First Amendment violation.  The plaintiffs are described as "five longtime animal rights activists whose advocacy work has been chilled due to fear of being prosecuted as a terrorist under the AETA."  The complaint alleges that "The AETA classifies certain protected speech and activity as a “terrorist” crime" and "punishes individuals who alone, or with others, criticize or demonstrate against what the statute vaguely identifies as an “animal enterprise,” if that otherwise permissible speech damages the property or profitability of the animal enterprise or even a person or entity connected with it."   The complaint also alleges that  AETA defines “animal enterprise” uncommonly broadly, "to include almost any business that buys or sells animal products:"

As such, it insulates a large number of businesses from the types of criticism that are deeply rooted in our constitutional tradition. For example, labor picketers, who seek to affect the bottom line of an employer engaged in unfair labor practices (that happens to sell animal products) are subject to prosecution under the act if their peaceful, lawful picket “causes the loss of any…personal property,” including profits.

 The complaint claims that AETA violates the First Amendment on the grounds of overbreadth, on the grounds of impermissible viewpoint and content discrimination, and violates the First and Fifth Amendments on vagueness grounds.

More about the specific plaintiffs and the litigation is available on the CCR website.

[image via]

December 19, 2011 in Current Affairs, Fifth Amendment, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, December 18, 2011

No First Amendment Right to Impose One's Beliefs On Others in Counseling Program

Can a counseling program at a public university require a student to address her deficiencies in becoming a "multiculturally competent counselor," particularly with regard to working with sexual minorities, before allowing her to participate in the program's clinic practicum? 

The short answer from the Eleventh Circuit is "definitely, yes."  In a 40 page opinion, Keeton v. Anderson-Wiley, the Eleventh Circuit affirmed the District Judge's denial of a preliminary injunction to Jennifer Keeton, a student seeking a master's degree in school counseling at Augusta State University, Georgia.  The panel's opinion, authored by Judge Rosemary Barkett, found that Keeton did not show a likelihood of prevailing on the merits.  The opinion was joined by Judge Phyllis Kravitch.  Judge William Pryor, controversial for his own oft-stated Christian beliefs and confirmed 53-45 by the Senate to the Eleventh Circuit six years ago after serving in a recess appointment, concurred specially, largely to point out how views on homosexuality have changed.

The court rejected Keeton's claims of viewpoint discrimination, retaliation, and compelled speech under the Speech Clause and free exercise under the Free Exercise Clause of the First Amendment, spending the bulk of the opinion on viewpoint discrimination.  While Keeton argued that she was discriminated against because of her Christian beliefs, specifically those she held about "homosexuality," Judge Barkett stressed throughout the opinion that the problem was not Ms. Keeton's beliefs, but whether she could - - - or would even agree to try - - - to engage in ethical counseling under the profession's standards.  The evidence showed that Ms. Keeton had made several troubling statements indicating that she would not follow the ethical guidelines.  She said that as a school counselor she would respond to a student in crisis about his sexual orientation, by voicing her disapproval, telling him any homosexual behavior was morally wrong, and referring him to someone practicing sexual conversion therapy.  As Judge Barkett stated:

ASU’s officials confirmed that their primary concern was teaching Keeton not to impose her values on clients and how to become a more effective counselor. Also, in the addendum to the remediation plan, which was added in direct response to Keeton’s email claim that she believed she was being asked to alter her personal religious beliefs, ASU’s officials clarified that “[t]he content of your moral or religious beliefs is not in question,” and that the remediation plan was concerned with teaching her how “to respond in an ethical manner and avoid imposing your personal values on the client.”

The court applied the Hazelwood framework from Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), noting that the practicum might be reasonably thought to "bear the imprimatur of the school" and the practicum, as well as the specific remediation plan to assist Ms. Keeton with meeting acceptable standards, were part of the curriculum.


While the court's treatment of Ms. Keeton's "compelled speech" claim relying on West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is relatively brief, the court's discussion reveals the heart of the court's reasoning: 

ASU is not forcing Keeton to profess a belief contrary to her own personal beliefs. Rather, it is compelling her to comply with the ACA [American Counseling Association] Code of Ethics, which requires those who wish to be counselors to separate their personal beliefs from their work. When a GLBTQ client asks, for example, if his conduct is moral, students are taught to avoid giving advice, to explore the issue with the client, and to help the client determine for himself what the answer is for him. If a client determines for himself that his conduct is moral, the ACA Code of Ethics requires the counselor to affirm the client, which means that the counselor must respect the dignity of the client by accepting the client’s response without judgment, not that the counselor must say that she personally believes that the client is correct. Thus, far from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, ASU instructs her not to express her personal beliefs regarding the client’s moral values. This is the form of treatment that ASU and the ACA have determined best promotes client welfare, which, in their view, is the objective of secular counseling.

Moreover, the court's discussion reveals the applicability of the court's reasoning in other contexts, including law and legal education:

Just as a medical school would be permitted to bar a student who refused to administer blood transfusions for religious reasons from participating in clinical rotations, so ASU may prohibit Keeton from participating in its clinical practicum if she refuses to administer the treatment it has deemed appropriate. Every profession has its own ethical codes and dictates. When someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements. Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors must refrain from imposing their moral and religious values on their clients.

Finally, the Supreme Court has hardly indicated an intention to limit a school’s power to require its students to demonstrate whether they grasp a particular lesson. A school must, for instance, be free to give a failing grade to a student who refuses to answer a test question for religious reasons, or who refuses to write a paper defending a position with which the student disagrees ... No doubt, a law school would be permitted to require a student who expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state’s bar rules to take extra ethics classes before letting the student participate in a school- run clinic in which the student would be representing actual clients. These actions, like ASU’s officials’ imposition of the remediation plan, are the types of academic decisions that are subject to significant deference, not exacting constitutional scrutiny.

[image: Winslow Homer, The Country School, via]


December 18, 2011 in Courts and Judging, First Amendment, Free Exercise Clause, Opinion Analysis, Religion, Sexual Orientation, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, December 17, 2011

Seventh Circuit: Contribution Cap to Independent Group Violates First Amendment

A unanimous three-judge panel of the Seventh Circuit ruled this week in Wisconsin Right to Life v. Barland that Wisconsin's cap on contributions to independent political action committees violates the First Amendment. 

Here's Wisconsin's law:

No individual may make any contribution or contributions to all candidates for state and local offices and to any individuals who or committees which are subject to a registration requirement under s. 1105, including legislative campaign committees of a political party, to the extent of more than a total of $10,000 in any calendar year.

Wisconsin Right to Life, an independent organization according to the court, sought preenforcement review after two individuals were foreclosed from contributing to it because they exceeded the $10,000 contribution cap.

The court ruled that the cap violated free speech, insofar as it restricted contributions to independent organizations.  The court explained:

Importantly for our purposes here, Citizens United made it clear that the government's interest in preventing actual or apparent corruption--an interest generally strong enough to justify some limits on contributions to candidates--cannot be used to justify restrictions on independent expenditures. . . .

"The separation between candidates and independent expenditure groups negates the possibility that independent expenditures will result in the sort of quid pro quo corruption with which [the Court's] case law is concerned."  In short, "[t]he candidate-funding circuit is broken."  Citizens United thus held as a categorical matter that "independent expenditures do not lead to, or create the appearance of, quid pro quo corruption."  [Quoting Arizona Free Enterprise Club.] 

Op. at 25-26.

The court rejected the state's argument that the cap addressed indirect quid pro quo corruption and the appearance of corruption, saying that Citizens United set a categorical rule: Independent expenditures do not lead to these problems.

The court's ruling is hardly a surprise in the wake of Citizens United and the D.C. Circuit's 2010 ruling in v. FEC and the Ninth Circuit's 2010 ruling in Long Beach Area Chamber of Commerce v. Long Beach, among others. 


December 17, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, December 15, 2011

Con Law Final: A Student View


"And what would the founding father’s [sic] have done, huh? What would James Madison do if he was staring down a four-hour, closed book Constitutional Law final? I mean besides, you know, not writing the Constitution. I like to think he would have just broken down and started destroying stuff rather than confront the reality of his own intellectual inadequacy and poor post-graduate educational decisions.

So who’s with me? Who among you will tear off the manacles of history and cloak yourself in the mantle of noble insurrection against the tyranny of law and the final examination thereof?"

, Look, We Can Either Study for Our Law School Finals, or We Can Bring About the Violent Dissolution of the American Legal System, McSweeny's Internet Tendency, here.

[image: James Madison via]





December 15, 2011 in Teaching Tips | Permalink | Comments (0) | TrackBack (0)

White House Proposes Rules on Domestic Workers to "Overrule" Long Island Health Care at Home v. Coke

Today, President Obama announced proposed rulemaking to revise the companionship and live-in worker regulations under the Fair Labor Standards Act "to more clearly define the tasks that may be performed by an exempt companion" and " to limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household."

This latter provision regarding home health care workers employed by contractors would change the result of Long Island Care at Home v. Coke, decided by the Court in 2007. As the President's announcement notes, the issue of FLSA coverage

gained national attention when, in 2007, the Supreme Court ruled that Evelyn Coke, a home care worker who worked as much as 70 hours a week, was not entitled to overtime pay under existing regulations. Thus, any change to these rules requires action by Congress or the Department of Labor. There have been bills introduced in numerous Congresses to address this issue (including legislation that then-Senator Obama co-sponsored in the 110th Congress) but these bills have not moved forward. The Department of Labor is therefore now proposing regulations to change these rules and ensure that home care workers like Evelyn Coke will have basic wage protections.

Interestingly, Coke was a unanimous opinion that provoked little controversy when it was rendered. 

I've elsewhere discussed Evelyn Coke in the context of legal theory regarding "servants."  At the oral argument in Coke, which Evelyn Coke attended in a wheelchair, Justice Scalia joked regarding the meaning of "footmen" and Justice Brennan expressed concern for the families who needed home health care workers, but not for the workers themselves.  Evelyn Coke died in 2009.

If the regulations are adopted, they would essentially "overrule" the Court's opinion, based as it was on regulatory and statutory construction.  Thus, the issue is of general interest regarding separation of powers.  The development is also of interest to ConLawProfs working on social change and poverty issues.

[image Library of Congress via]

December 15, 2011 in Disability, Executive Authority, Gender, Medical Decisions, Scholarship, Separation of Powers, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Bill_of_Rights_Pg1of1_ACStill, it's a good day to reflect on the "Bll of Rights":

  • Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
  • Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  • Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
  • Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
  • Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
  • Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  • Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


[image from National Archives via] 

December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 14, 2011

Sexual Violence in the Military: Not a Judicial Matter

The UK's Guardian has a lengthy and worth reading report entitled " Rape in the US military: America's dirty little secret" with the subtitle, "A female soldier in Iraq is more likely to be attacked by a fellow soldier than killed by enemy fire."   The Guardian's article mentions a lawsuit of 28 plaintiffs "who claim to have been subjected to sexual assaults while serving in the armed force" against Donald Rumsfeld and Robert Gates "for a culture of punishment against the women and men who report sex crimes and a failure to prosecute the offenders."

In a 2 page opinion, Judge Liam O'Grady dismissed that lawsuit the same day as the Guardian article.  Cioca v. Rumsfeld garnered much attention when it was filed in February, including a NYT article and a widely distributed video of Kori Cioca:


The judge's order concluded that Cioca and the other plaintiffs do not have a Bivens action (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)), because such a remedy is not available when '"special factors counseling hesitation'" are present, and the "unique disciplinary structure of the military establishment" is a "special factor" that "counsels against judicial intrusion."  In short "congressionally uninvited intrusion into military affairs by the judiciary is inappropriate."  

This same reasoning of military deference was once prominent in challenges to the military's sexual orientation policy of "don't ask, don't tell" (DADT).   More recently, of course,  the courts were much less deferential, including the Ninth Circuit's injunction against the policy earlier this year, before the policy was repealed, and the Ninth Circuit's dismissal of the case as moot. Yet as we noted, the Ninth Circuit did more than dismiss the case as moot, it specifically stated that it

"vacate[d] 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."

Thus, those DADT findings overcoming judicial deference to the military are declared to be void, although it does seem that they might not be entirely irrelevant.


December 14, 2011 in Cases and Case Materials, Courts and Judging, Gender, Separation of Powers, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, December 12, 2011

Supreme Court to Hear Arizona SB1070 on Preemption Issue


The United States Supreme Court has just granted Arizona's petition for writ of certiorari in Arizona v. United States involving Arizona's controversial immigration statute SB 1070.  Justice Elana Kagan did not participate in the grant, and will presumably not participate in the decision on the merits. 

The petition for writ of certiorari filed by Arizona seeks review of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070.   Arizona, represented by Paul Clement, contends it bears the brunt of illegal immigration and that the federal government is not sufficiently addressing the problem, setting the factual and political context for its claim that its statute is not preempted under the Supremacy Clause.  The petition argues that "The Ninth Circuit’s rule—that States may not take any investigative or enforcement action against aliens based on their civil violations of the immigration laws without an express permission slip from Congress—directly conflicts with the approach" taken in other circuits.  The petition also argues that the Ninth Circuit opinions contradicts "Our Federalism" by failing to recognize co-operative enforcement and implicitly assuming that immigration is a matter of nearly exclusive federal concern.  The Ninth Circuit completely misconstrued preemption doctrine according to the petition, perhaps most egregiously when it allowed "complaints by foreign government officials and the disagreement of the Executive Branch to trump congressional intent."

Arizona's SB1070 has spawned other state laws and other litigation: Alabama HB56 is especially notorious and complex, with two decisions from the district judge, a brief Eleventh Circuit opinion,  and a recent complaint regarding denial of marriage licenses. There are also district court cases from Georgia and Indiana, and more complex litigation involving the Hazelton, PA ordinance (Third Circuit opinion, on remand back to Third Circuit), and South Carolina is a recent and important addition.  

The Court most recently considered preemption in the context of immigration in another case from Arizona, Chamber of Commerce v. Whiting, affirming the Ninth Circuit but in a fractured opinion involving express preemption. 


December 12, 2011 in Current Affairs, Federalism, Preemption | Permalink | Comments (0) | TrackBack (0)

Friday, December 9, 2011

Constitutional Challenge to Hawai'i Marriage Law in Federal Court

776px-Bathymetry_image_of_the_Hawaiian_archipelagoThe second wave of challenges to marriage laws excluding same-sex couples began in Hawai'i. The Baehr v. Lewin decision from the Hawai'i Supreme Court in 1993 that the opposite-sex policy was a sex classification subject to strict scrutiny under the state constitution set off a chain of events. In Hawai'i, there was a successful state referendum in Hawai'i retaining the power for the legislature to decide the sex of parties to a marriage.  Nationally, there was ultimately the federal statute DOMA (now in federal disfavor) as well as many other state DOMAs.  However, there were also developments in other states that resulted in the opposite-sex requirement being relaxed. 

The complaint in Jackson v. Abercrombie filed in the federal district of Hawai'i this week challenges the Hawai'i opposite-sex marriage requirement as violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment.   The 27 page complaint includes an excellent chronology: a summary of the Hawai'i litigation and subsequent cases, including Perry v. Brown now before the Ninth Circuit.  The complaint also alleges that same-sex marriage has gained in popular acceptance since Baehr v. Lewin and that the civil union law, effective in Hawai'i in 2012, is not an adequate substitute for marriage.

Most likely, a district judge would wait for the Ninth Circuit decision in Perry, but presumably the state of Hawai'i will respond.

[image: Hawai'i via]


December 9, 2011 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Gender, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, December 8, 2011

Eighth Circuit En Banc to Hear Funeral Protest Ordinance

The Eighth Circuit has granted the petition for rehearing en banc by the City of Manchester, Missouri regarding the constitutionality of its funeral protest ordinance. 

Title Screen shot 2011-12-08 at 9.19.15 AM

The court's order vacates the panel's opinion which, as we previously noted, is exceedingly problematical.  The panel opinion created a circuit split, holding unconstitutional an ordinance almost identical to one that the Sixth Circuit found constitutional.

The City of Manchester's petition argues that a circuit split itself has constitutional dimensions:

The panel’s opinion, if it is allowed to stand, means that citizens living within the confines of the Sixth Circuit will be governed by a substantive rule of law on a crucial issue that is diametrically opposed to the substantive rule of law governing the citizens living in this Circuit with respect to that same crucial issue. Sufferance of this situation is anathema in a country where all citizens are guaranteed equal protection of the laws. A direct, unresolved circuit split on an issue of considerable national interest does not merely present an academic question, it actively breeds confusion about the law among the public and raises questions concerning the role of the courts in our society.

Yet as we noted, even apart from the circuit split, the Eighth Circuit's per curiam opinion was quite   cursory: the First Amendment analysis is two paragraphs.  The first paragraph disagrees with the district court that the ordinance was a content based regulation.  As for the second paragraph, it concludes that the district court was required to follow Eighth Circuit precedent in another  funeral protest case, Phelps-Roper v. Nixon, this one involving the Missouri statute.

The City of Manchester argues that "The errors of the trial court and the panel here stem from their dependence on Nixon and in turn on that panel’s mistaken reliance" on a previous Eighth Circuit opinion that in turn relied upon Frisby v. Schultz, 487 U.S. 474 (1988).  In short, the City of Manchester argues that the panel judges failed to update their precedent, an argument that is supported by one of the concurring judges in the panel who "respectfully" suggested that the United States Supreme Court opinion in Snyder v. Phelps "provides the proper method of analysis for deciding whether the Manchester ordinance is constitutional."

Oral argument is set for January 9, 2012 in St. Louis.



December 8, 2011 in Equal Protection, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 7, 2011

Federal Cigarette Tax Likely Violates Due Process, but not Tenth Amendment

Chief Judge Royce C. Lamberth (D.D.C.) ruled on Monday in Gordon v. Holder that the tax requirement in the federal Prevent All Cigarette Trafficking Act, or PACT, likely violates due process, but not the Tenth Amendment.  Judge Lamberth also ruled that the PACT's ban on mailing cigarettes through the U.S. mail does not violate equal protection or due process.

Plaintiff Gordon owns and runs a cigarette retail business.  He previously took orders by mail and through the internet; since 2010, he takes only phone orders and walk-ins.  He challenged two provisions of the PACT: its ban on mailing cigarettes through the U.S. mail; and its requirement that remote cigarette sellers pay applicable state and local sales taxes in advance. 

Judge Lamberth ruled that Gordon's claim that the tax provision violates due process is likely to succeed.  Judge Lamberth concluded that Gordon didn't have sufficient contacts with some states where he sold cigarettes to satisfy the "minimum connection" test in Quill Corp. v. North Dakota (and borrowed from International Shoe Co. v. Washington).  Without the minimum connection, the tax provision likely violates due process.

But Judge Lamberth rejected Gordon's other claims.  Judge Lamberth wrote that the PACT's ban on sales of cigarettes through the U.S. mail satisifed rational basis review, and that the PACT's tax provision didn't commandeer states or their officers.  (Nothing in PACT compels states to adopt or to change their taxes.  Instead, the PACT simply compels cigarette retailers to comply with applicable state taxes.)

Judge Lamberth thus issued a preliminary injunction against the tax provision on due process grounds, but denied a preliminary injunction on Gordon's other claims.


December 7, 2011 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Sunday, December 4, 2011

Senate Judiciary Committee Hearing on Televising the Supreme Court

The Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts will hold a hearing on Tuesday, December 6, at 10:00 a.m., titled Access to the Court: Televising the Supreme Court.  The hearing will be webcast

Witnesses include the following:

  • Former Senator Arlen Specter
  • Tom Goldstein (Goldstein & Russell, and SCOTUSblog)
  • The Honorable Mark Cady (Chief Justice, Iowa Supreme Court)
  • The Honorable Anthony Scirica (Chief Judge, Third Circuit)
  • Maureen Mahoney (Of Counsel, Latham & Watkins)


December 4, 2011 in Congressional Authority, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)