Sunday, December 4, 2011

California Budget Cuts to Home Services May Violate Due Process

Christiaan_BaileyUS District Judge for the Northern District of California, Claudia Wilken, has issued a brief opinion supporting a TRO against California's SB73, reducing most In Home Support Services (IHSS).

Judge Wilken wrote that the proposed notices regarding the reductions "raise serious questions of violations of the federal Due Process Clause," as well as violations of several federal statutory schemes by " by placing IHSS recipients at imminent risk of unnecessary and unwanted out-of-home placement, including in institutions such as nursing homes, board and care facilities, and psychiatric hospitals; by discriminating on the basis of type of disability; and by using methods of administration that will exclude individuals with disabilities from IHSS."

Judge Wilken concluded that the "balance of equities strongly favors Plaintiffs because Defendants’ only interest is fiscal, whereas the plaintiff class faces life or death consequences."   She set a briefing schedule, with a hearing most likely to be held on December 15.

An excellent discussion contextualizing the TRO by Marty Omoto of the California Disability Community Action Network is available here.

[image: Disabled professional surfer Christiaan "Otter" Bailey of Santa Cruz, Ca.  via]

December 4, 2011 in Disability, Due Process (Substantive) | Permalink | Comments (0) | TrackBack (0)

Conference Honoring Derrick Bell

“A Living, Working Faith”:

Remembering Our Colleague
Derrick A. Bell, Jr.


at COLUMBIA LAW SCHOOL, NY, NY  on Saturday December 10th, 2011


This one day conference organized by Professors Kendall Thomas and Penelope Andrews will honor the work of the late ConLawProf Derrick Bell



  9 a.m. to 9.15 a.m: 
Welcome − Professor Kendall Thomas, Columbia Law School and
Professor Penelope Andrews, CUNY School of Law
9.15 a.m. - 10.30 a.m.
The Elusive Quest for Equality and the Permanence of Racism:  Faces at the Bottom of the Well and We Are Not Saved
Reflections Panel 1:
Chair:  Professor Penelope Andrews, CUNY School of Law
Professor Twila Perry, Rutgers University School of Law
Professor Sheila Foster, Fordham University School of Law
Professor Rose Villazor, Hofstra University School of Law
Professor Olati Johnson, Columbia University School of Law
10.30 a.m to 10. 45 a.m.  Morning Tea
10.45 a.m. to 12:15 p.m.
Reflections Panel 2:
Chair:  Professor Kendall Thomas, Columbia University School of Law
Professor Susan Sturm, Columbia University School of Law
Professor Jenny Rivera, CUNY School of Law
Professor Leonard Baynes, St. John’s University School of Law
Professor Beryl Jones-Woodin, Brooklyn Law School
Professor Sonia Katyal, Fordham University School of Law
12:15 to 1:15 p.m.   Lunch
1:15 p.m. – 2.45 p.m. 
Derrick Bell as Teacher
Chair:  Professor Ruthann Robson, CUNY School of Law
Professor Vanessa Merton, Pace University School of Law
Professor Joy Radice, New York University School of Law
Professor Andrea McArdle, CUNY School of Law
Professor Robin Lenhardt, Fordham University School of Law
Professor I. Bennett Capers, Hofstra University School of Law
2:45 p.m. – 4:15 p.m.
Interest Convergence
Chair:   Professor Paulette Caldwell, New York University School of Law
Professor David Troutt, Rutgers University School of Law
Professor Julie Suk, Cardozo School of Law, Yeshiva University
Professor Rachel Godsil, Seton Hall University School of Law
Professor Taja-Nia Henderson, Rutgers University School of Law
Professor Theodore Shaw, Columbia University School of Law
4.00 to 5 p.m.
Closing Comments and Further Reflections

December 4, 2011 in Conferences, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Saturday, December 3, 2011

Ban on Receiving Guns Withstands Second Amendment Challenge

Judge Jack Weinstein (E.D.N.Y.) yesterday rejected a claim that the federal law criminalizing the receipt of a firearm in interstate commerce violates the Second Amendment.  The case, U.S. v. Laurent, arises out of an indictment under 18 U.S.C. Section 922(n), which says:

It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Laurent's indictment was for receiving a firearm in violation of Section 922(n).  He challenged that provision on its face under the Second Amendment, among others.

Judge Weinstein wrote that intermediate scrutiny is appropriate:

The Supreme Court has indicated that some form of heightened scrutiny is necessary when the conduct at issue falls within the core of the Second Amendment right to bear arms for the purpose of self defense in the home.  [Heller]  As already noted, most courts of appeals have found that regulations which substantially burden the right to keep and to bear arms for the purpose of self-defense should receive intermediate scrutiny.  By contrast, laws that do not substantially burden the right to keep and to bear arms for this purpose are not entitled to any level of heightened scrutiny.

Judge Weinstein ruled that Section 922(n) imposes a substantial burden, but satisfies intermediate scrutiny:

The prohibition at issue in this case is less restrictive than other subsections of 18 U.S.C. Section 922, which totally ban possession by particular categories of people, such as felons or misdemeanants convicted of domestic violence.  They have survived intermediate scrutiny.

Concededly, given the presumption of innocence, the government's categorical presumption that all individuals under indictment for a felony are more likely to misuse firearms is somewhat suspect.  Congress appears to have determined,  however, that a narrower ban would not serve its interest in public safety.  Initially, Congress only limited receipt of firearms by violent indictees.  After three decades of experience, it saw the need to expand the prohibition to all indictees.

As demonstrated by the facts of this case, it cannot be said that Congress' determination to criminalize the act of receiving a firearm while under indictment was unreasonable, and that "no set of circumstances . . . under which [the statute] would be valid."  Laurent was initially indicted in state court for crimes arising out of gun play in a residential building.  He was subsequently arrested after allegedly robbing another individual at gun point.  The fact that Laurent was charged with the instant crime because he apparently committed a crime of violence while under indictment undermines any claim that he might have that Section 922(n) is not substantially related to preventing him from engaging in further violence.  He is hardly the law-abiding householder with a gun at home to protect his family.  The statute is thus also not unconstitutional as applied to this defendant.

The fact that Laurent may eventually plead to a misdemeanor is not of statutory or constitutional significance.  The crime is committed when the firearm is obtained while the defendant is under a felony indictment; dismissal, acquittal, or conviction does not affect that fact.  So long as the government can show that he was under indictment for a felony at the time he received a firearm, he may be convicted under Section 922(n).

Because the statute is substantially and directly related to the important government interest in public safety, it survives intermediate scrutiny under the Second Amendment.



December 3, 2011 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (1) | TrackBack (0)

Friday, December 2, 2011

White House Renews Objections to Detainee Provisions

White House Press Secretary Jay Carney announced today that the Obama Administration continues to object to the detainee provisions in the National Defense Authorization Act for Fiscal Year 2012, S. 1867.  "So our position has not changed."  He also renewed the veto threat.

The Senate overwhelmingly passed the bill earlier this week, after compromise language was added that said the bill did not alter existing law.  It's not clear that the language did much of anything.

The White House objects to the requirement in the bill that the government keep alien detainees in military detention, the prohibition on using funds to transfer detainees, among others.  Here's what Carney said today:

By ignoring these nonpartisan recommendations, including the recommendations of the Secretary of Defense, the Director of the FBI, the Director of National Intelligence and the Attorney General, the Senate has unfortunately engaged in a little political micromanagement at the expense of sensible national security policy.  So our position has not changed.  Any bill that challenges the President's critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation would prompt his senior advisors to recommend a veto.

Senator Patrick Leahy and Assistant Attorney General Lisa Monaco, head of the National Security Division at DOJ, also voiced objections today, according to the Blog of the Legal Times.  Monaco spoke specifically about the military detention requirement, saying that it would undermine the executive's prosecutorial authority and tie the administration's hands in dealing with detainees.


December 2, 2011 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (3) | TrackBack (0)

Chisholm v. Georgia as Fiction?

Chisholm v. Georgia (1793) is often considered the first important constitutional case rendered by the United States Supreme Court, predating Marbury v. Madison by a decade.  

Certainly the importance of Chisholm v. Georgia is mitigated by the Eleventh Amendment, specifically passed to "overrule" the opinion, although to what extent remains controversial in Eleventh Amendment doctrine even now.  On some views, the Eleventh Amendment adopts Justice Iredell's dissent in Chisholm v. Georgia. 

ConLawProf John Orth has written extensively on this history, including in an excellent 1994 essay "The Truth About Justice Iredell's Dissent in Chisholm v. Georgia," 73 North Carolina Law Review 255. 

But less careful researchers will be more likely to run across Iredell's dissent marketed as "general fiction" with the author relegated to "No bio available."   The text, free elsewhere, is available as an eBook for 99¢.

Screen shot 2011-12-02 at 9.50.58 AM

December 2, 2011 in Eleventh Amendment, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, December 1, 2011

Senate Passes Defense Spending Bill, with Detainee Provisions

The Senate today passed the National Defense Authorization Act for Fiscal Year 2012, S. 1867, with its several provisions dealing with the government's detention authority.  Recall that the Obama Administration previously objected to several detainee-related provisions of the bill and threatened a veto.

Today's Senate vote comes after the Senate earlier this week rejected an amendment proposed by Senator Udall that would have stripped the detainee-related provisions from the bill and another amendment proposed by Senator Feinstein that would have prohibited indefinite military detention of U.S. citizens.

According to The Hill, the Senate vote, 93-7, came after an agreement to include compromise language that simply says that the bill does not alter existing law for the detention of U.S. citizens or anyone captured or arrested in the U.S.  In other words, the compromise maintains the status quo and punts any hard questions to the courts.  It doesn't appear to change anything in the legislation.

In particular, the bill still contains the provisions that the administration objected to: Section 1031, which codifies the government's detention authority recognized by the courts; Section 1032, which mandates military custody for certain terrorism suspects, but not for U.S. citizens and lawful residents (military custody appears to be optional for these); and Sections 1033, 1034, 1035, and 1036, which restrict the government's ability to detain and transfer detainees. 


December 1, 2011 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (4) | TrackBack (0)