Constitutional Law Prof Blog

Equal Protection and Taxes: Oral Argument in Armour v. Indianapolis

Does tax forgiveness by a municipality present an equal protection problem?  Do the taxpayers who paid in a timely manner have a constitutional claim for reimbursement when the debt of the later payers is substantially forgiven?

The United States Supreme Court heard oral argument in Amour v. City of Indianapolis to consider the Equal Protection Clause consequences of Indianapolis' sewer assessment program that forgave the remaining obligations of the taxpayers who chose to pay in a multi-year installment plan and refused to refund payments to the taxpayers who had paid the assessment in full.

Justice Sotomayor, posing the first question to Amour's attorney, Mark Stancil, asked "what happens to all other amnesty programs like parking ticket amnesties?"  or what happens in an immigration amnesty program?  The many instances of the use of amnesty programs or financing forgiveness continued to pepper the questioning, and this was interwoven with the doctrinal issue of rationality.  If equal protection does apply, then the standard would definitely be rational basis review, but what makes an amnesty program rational? 

As Justice Alito, posing the first question to the city's attorney, Paul Clement, phrased it: "the city calculated that what it did would be more politically acceptable than treating the people who paid upfront equally on an economic basis with the people who paid in installment plans. Now if that's the reason for this, is that rational?"

Clement argued that the risk of imposing equal protection standards on forgiveness programs might mean that if goverments "actually have to provide refunds and face equal protection clause violations, then in the future nobody is ever going to forgive."  To this, Justice Kennedy retorted:

And so, I think maybe if you prevail in this opinion, we should say the principle we are adopting in this case is: Don't trust the  government.

Kennedy returned to this point in discussing the state law which did not disclose the possibility of future forgiveness, and later returned to it: "that just underscores the promise of the State or the city that all owners will be treated equally. That just  underscores the point that that was the understanding and the commitment."  Clement disagreed that there was any such commitment, essentially arguing that government has the perogative to change laws, especially if the law is unpopular: "You know, every once in a while the people have a point." 

But as for the rationale for the distinction between classes, Clement as the city's attorney stressed the ability of a city to terminate an unpopular program (what Justice Alito called "political expedience") and "avoiding the administrative burdens of particularly the refund process."  But Justice Alito in particular seemed skeptical:

What they [the city officials] have done is shift the cost of the sewers from a -- from a small group, a small interest group that is able to presumably exert some political power to -- to everybody. They spread the cost around to everybody.  And everybody -- the ordinary person who has to pay a little bit more every month doesn't get all fired up about it.

Paul Clement responded that this does not present an equal protection claim, although perhaps "there's a takings claim for somebody to bring."

During Stancil's rebuttal, Justice Breyer encapuslated the question for the Court:

The argument isn't that it's expensive to administer as much as it is, there are 1,000 people in all these projects who are already paid up. We don't have enough money to pay them all back. That's why we don't want to pay them back. At the same time, we don't want to collect the money for 30 years  from these other people who aren't fully paid yet.  . . . 

The question is, I guess, is, is that rational.

RR
[image: concrete sewer pipes via]

Texas Court Issues New District Maps

The Western District of Texas issued new legislative district maps late yesterday after the Supreme Court sent the case back to the Texas court last month.  (Thanks to txredistricting.org for the maps.)

Recall that the Supreme Court in Perry v. Perez vacated the Texas district court's maps that were drawn while Texas's preclearance case under Section 5 of the Voting Rights Act was pending in the D.C. court.  The per curiam Supreme Court said that the Texas court should defer to the Texas legislature's maps unless they stand a "reasonable probability" of failing Section 5 preclearance.

In response, the Texas court reissued maps late yesterday.  Here's what the Texas AG had to say about it:

The new interim maps issued late today are a substantial improvement from maps previously issued by the San Antonio court.  As a result of the U.S. Supreme Court's unanimous, clear direction to the district court, these new interim maps more accurately reflect the decisions of elected Texas legislators.

In light of the State's legal arguments, the San Antonio court only modified the Legislatively enacted plan in response to alleged Voting Rights Act violations--while leaving virtually all other districts as they were drawn by the Legislature.  In doing so, the court properly rejected the demands by some plaintiffs to draw drastic and overreaching interim maps.

We apparently don't have a written opinion from the Texas court yet, and we can't see exactly how it applied the "reasonable probability" standard--and therefore whether Texas succeeded in forging a new path around Section 5 preclearance.

SDS

Fordham Urban Law Journal Symposium on Second Amendment

The Fordham Urban Law Journal will host its Volume XXXIX Symposium next Friday, March 9, titled Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago.

The Journal put together a terrific line-up, available here.  The program runs from 10 am to 5 pm on Friday, March 9, 2012, at the Fordham University School of Law, James B.M. McNally Amphitheater.  CLE credit is available.

SDS

The constitutionality of the anti-prostitution pledge: compelled speech or government funding?

The Second Circuit's opinion earlier this month refused to grant en banc review to a panel decision that the so-called prostitution pledge for government AIDS/HIV funding is unconstitutional, Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction v.   United States Agency for International Development.  

The denial of en banc review prompted a dissent authored by Judge Cabranes, and joined by Judges Raggi and Livingston, while Judge Rosemary Pooler wrote an opinion concurring in the denial of rehearing en banc.

At issue is a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq., providing:

 No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.

22 U.S.C. §7631(f).  Note that the exceptions were added in the 2004 amendments to the Act, meaning that the act's provision falls most heavily on smaller NGOs.

The crux of the disagreement is whether or not the compelled speech aspect of the required statement makes it distinguishable from Rust v. Sullivan.   The Second Circuit panel found this was a vital distinction - - - and indeed, it is a matter that the Court in Rust emphasized.  The dissenters, as well as the Sixth Circuit, found that any such distinction is erased by the unconstitutional conditions doctrine which allows the organization to choose whether or not to apply for funds in the first instance.

As Judge Rosemary Pooler noted in her concurring opinion from denial of rehearing en banc, the doctrine is in a complex state of disarray.  For those who teach, study, or litigate in this area, reconciling Rust v. Sullivan with Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), can be challenging - - - unless one resorts to easy and cynical canards about the differences between doctors and lawyers, or the Court's solipsistic concern for its own role when conditions are imposed.   The "anti-prostitution" pledge cases could be a great vehicle for exploring the complexities, either as a scholarly project or as a class exercise.

The Second Circuit and the Sixth Circuit opinions also provide a circuit conflict, perhaps teeing up the Second Circuit case for Supreme Court review. 

RR

War Powers Resolution Challenge to Libyan Mission Moot

Judge Richard W. Roberts (D.D.C.) on Tuesday dismissed as moot Whitney v. Obama, a civil case seeking a declaration and injunction against President Obama's commitment of U.S. troops to Libya last year.  We previously posted on House Members' claim against the President here (with links to our past posts on the Libyan mission).  (Judge Walton dismissed that case, Kucinich v. Obama, for lack of standing.)

The plaintiff brought the case under the War Powers Resolution.  Judge Roberts declined to address the merits but instead ruled the case moot because the operation ended in 2011:

"[T]he [U.S.] ceased air operations in support of" NATO's Operation Unified Protector on October 31, 2011, and Whitney cites no authority for the proposition that the War Powers Resolution covers the continued presence of peaceful troops.  Because "[t]he clash . . . has subsided, and what occurred during the dispute cannot be undone[,] "the court can grant no meaningful relief[.]"  The declaratory judgment Whitney seeks would constitute an "improper advisory opinion" since no live dispute remains.  Granting injunctive relief likewise would prove ineffectual, as the challenged actions have long since ceased.  Accordingly, Whitney's claims are moot.

Op. at 6-7 (citations omitted).  Judge Roberts also ruled that the action was neither capable of repetition (because there's no reasonable expectation that Whitney will suffer the same alleged violation of the WPR again), nor evading review (because "offensive wars initiated without congressional approval are not in th[is] category[,]" and neither are military missions "inherently short in duration," Campbell v. Clinton, 203 F.3d 19, 34 (D.C. Cir. 2000).

SDS

Cert Denied: Court will not hear Garcetti Circuit Split

In its Orders today, the United States Supreme Court denied certiorari to both Bowie v. Maddox, from the DC Circuit, and Jackler v. Byrne, in the Second Circuit.  The arguably conflicting cases interpret Garcetti v. Ceballos, but the DC Circuit uses Garcetti to foreclose the employee's claim while the Second Circuit refuses to extend Garcetti. 

ConLawProfs looking for a good problem - - - or law students looking for a good paper topic - - - might take a look at Bowie and Jackler.

The Court also denied certiorari in another First Amendment case, denying the petition on behalf of the National Organization for Marriage (NOM), seeking review of the First Circuit's upholding of Maine's disclosure laws, a decision that it revisited somewhat earlier this month, with the same result.

RR

 

Medicaid Providers' Supremacy Clause Case Goes Back to Ninth Circuit

A sharply divided Supreme Court yesterday remanded Douglas v. Independent Living Center of Southern California, Inc. to the Ninth Circuit to determine whether the plaintiffs' case on the Supremacy Clause can move forward in light of the federal government's post-oral argument approval of defendant-California's reductions in its Medicaid plan.  We previewed the oral argument here.

Douglas is a suit by California Medicaid providers and recipients against California for its changes to its Medicaid program.  The plaintiffs argued that the changes violated federal Medicaid requirements and were therefore unconstitutional under the Supremacy Clause.

But soon after the Court heard oral argument in the case, the federal government approved California's changes.  The parties agreed that this did not moot the case, however.  (The plaintiffs still maintained that the state changes violated federal Medicaid requirements, even if the federal government disagreed.)  So the question became: Can Medicaid providers and recipients sue the state under the Supremacy Clause, even after the federal government approved the state's Medicaid changes?

Justice Breyer, writing for a 5-justice majority, including Justices Kennedy, Ginsburg, Sotomayor, and Kagan, sent the case back to the Ninth Circuit for resolution of this question.  He wrote that the parties didn't brief the issue at the Court, and that the Court wouldn't call for reargument on this question.  Instead, the case goes back to the Ninth Circuit.

Cheif Justice Roberts wrote in dissent for himself and Justices Scalia, Thomas, and Alito.  He said that nature of the Supremacy Clause, along with the Medicaid Act itself, means that the plaintiffs don't have a Supremacy Clause case.  He pointed to the fact that the Medicaid Act itself doesn't provide a cause of action for its enforcement, and the Supremacy Clause can't step in to provide one.  "That is not a proper role for the Supremacy Clause, which simply ensures that the rule established by Congress controls [over conflicting state law]."

Plaintiffs in the case have a cause of action against the federal government under the Administrative Procedures Act for its final approval of the California Medicaid changes, even if they don't have a cause of action against California under the Medicaid Act.  If the Ninth Circuit rules that they have a cause of action against California under the Supremacy Clause, the plaintiffs may have an election between the APA claim against the federal government and the Supremacy Clause claim against the state.

In short, this case isn't over.  In fact, it looks like it's just beginning.

SDS

DOMA Held Unconstitutional - - - Yet Again

This time, the opinion comes from federal District Judge Jeffrey White in Golinski v. United States Office of Personnel Management.   Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities.  The DOJ since decided not to defend the constitutionality of DOMA and such actions are being defended by BLAG - - - the Bipartisan Legal Advisory Group of the United States House of
Representatives.

Golinski, a federal employee and described by the court as "a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse," challenged Section 3 of DOMA as a violation of equal protection and due process under the Due Process Clause of the Fifth Amendment.  Under equal protection doctrine, the court looked at the "various factors" to determine the level of scrutiny the sexual orientation classification merited:

• the history of invidious discrimination against the class burdened by the legislation;
• whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
• whether the distinguishing characteristics are “immutable” or beyond the class members’ control;
• the political power of the subject class

After finding that there was no definitive precedent regarding the level of scrutiny that should apply, and applying the factors, the judge specifically held "that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority." 

In applying the heightened scrutiny standard, the judge considered the animus expressed by certain members of Congress in DOMA's legislative history, the judge then analyzed the government's stated interests: responsible procreation and child-rearing; nurturing the institution of traditional, opposite-sex marriage; defending traditional notions of morality; and preserving scarce government resources.  For each interest, the judge concluded that that it did not "provide a justification that is substantially related to an important governmental objective."

The opinion then engaged in an "alternative analysis" under rational basis review - - - and also applied this to the BLAG's proffered additional hypothetical rational bases for passing DOMA:

• Congressional caution in defining a legislative term and maintaining the status quo
• Congressional caution in area of social divisiveness
• Consistency
• Any other possible basis

With many references to Judge Tauro's 2010 opinions holding DOMA unconstitutional, Judge White similarly decided that these post-DOMA rationales do not satisfy rational basis.

Judge White's conclusion considers the broader issues, including separation of powers and judicial review, in context:

    The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile
animus alone. It may result as well from insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against
people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,
J., concurring).
    This case was presented by an employee of the judicial branch against the executive
branch, which ultimately determined it could not legitimately support the law. The law was
then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and,where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,
Nominee).
    In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right
to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Apart from the substance, Judge White's opinion is a model of organizational clarity.  For ConLawProfs looking for excellent opinions that demonstrate the organizational structure of equal protection doctrine, including alternative arguments, this is an opinion worth considering.

RR

Stolen Valor in the Court of Popular Opinion

If editorials and other opinions pieces are any prediction, the Supreme Court will be affirming the Ninth Circuit's finding that the Stolen Valor Act provision 18 USC 704(b) is unconstitutional after today's oral argument.

In the Washington Post,the editorial board argues that to "allow the government to become the ultimate arbiter of truth would set a terrible precedent," and the USA TODAY editorial board argues that the media and veterans groups reveal fraudsters with the result of "public disgrace." 

 The op-ed inthe New York Times by William Bennett Turner advances a slippery slope argument:

If the Supreme Court were to accept the government’s argument, other disconcerting legislation could easily follow. Congress could enact a law that criminalized false claims by political candidates about their qualifications for office, or false claims about their opponents. Surely the government has an “important” interest in preventing voter deception. But as much as we want to encourage factual accuracy in our politicians, do we really want the government to prosecute, for example, Senator Marco Rubio, the Florida Republican who falsely stated on his Senate Web site that his parents moved from Cuba after — rather than before — Fidel Castro took power? Who among us has not said things about ourselves that are untrue? Who has not exaggerated or embellished details to tell a better story?

Professor Jonathan Turley on NPR editorialized about the First Amendment frailties of the Stolen Valor Act.

On Jurist, law student Kimberly Bennett argues that the Stolen Valor Act is not the least restrictive means of furthering the government's interest.

And over on the American Constitution Society blog, I've argued that it's important to consider the Stolen Valor Act as a viewpoint restriction.

[Update: There's a terrific round-up of the post-argument legal commentary by Kiran Bhat over at SCOTUSblog that provides more diversity of opinions]. 

RR

Oral Argument Analysis in Stolen Valor Case: US v. Alvarez

The Supreme Court heard oral arguments today in United States v. Alvarez, the so-called "Stolen Valor" case.  The Ninth Circuit, in a divided opinion, held a provision of the act unconstitutional: 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."

Taking the somewhat unusual step of deciding a case that would be resolved by a case already scheduled for oral argument, the Tenth Circuit weighed in on the issue last month, also in a divided panel opinion, but reaching the opposite conclusion.

The Solicor General argued for the concept of "breathing space" - - - imported from defamation doctrine as Justice Kennedy quickly pointed out - - - to be applied.   Justice Roberts also rather quickly posed one of the many slippery slope scenerios:

CHIEF JUSTICE ROBERTS: Well, where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't. That's something you can check pretty easily. And Congress can say: We want people to finish high school. It's a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do when they don't.

Kennedy later posed another one in rebuttal, and generally seemed unconvinced by the "breathing space argument": "The whole breathing space thing almost has  it backwards. It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don't think that's our tradition."  yet Kennedy quickly added, " On the other hand, I have to acknowledge that this does diminish the medal in many respects."

The issue of "harm" also preoccupied the argument.  The theory of the Solictor General (and Congress) is that those who have actually received medals are "harmed" because the value of the medals are diluted by false claims.  Justice Sotomayor seemed unconvinced that there could be harm without pecuniary interests or individual harm to reputation, but the Solictor general maintained that the "misappropriation of governmental conferral of esteem" caused "substantial harm."  In questioning Jonathan Libby, counsel for Alvarez, Justice Alito stated that the problem he had ith the argument was "determining which harms you think count and which harms don't count."  

In discussing less restrictive means by which the government could accomplish its goals, Justice Scalia fancifully suggested a "Medal of Shame" for those who have falsely claimed the Medal of Honor, which Libby then distinguished from the more severe sanction of a criminal penalty.

Justice Ginsburg focused on the proposed amended Stolen Valor Act of 2011 that would criminalize false representations about medals  “with the intent to obtain anything of value.”  This led to a discussion of whether Alvarez would have been criminalized under that type of statute and what "a thing of value" would mean.  Justice Scalia suggested that having a crowd cheer for one would be a thing of value.  Then,

JUSTICE ALITO: Suppose what the person gets is -- is a date with a potential rich spouse. Would that be enough?
MR. LIBBY: Your Honor, I think when it comes -- when you get into the situation where you're getting something like a date, I do not know that -- I certainly wouldn't consider that a non de minimis thing of value, but -­
JUSTICE ALITO: Some people might have a different opinion.
(Laughter.)

The opinion of Alito generally seemed to be that Congress has broad authority to criminalize falsehoods, but the opinions of the other Justices seemed less clear.

RR
[image via]

D.C. Circuit: No Federal Court Jurisdiction for Alien Detainee Constitutional Torts

The D.C. Circuit ruled today in Al-Zahrani and Al-Salami v. Rodriguez that the Military Commissions Act revoked federal court jurisdiction over Guantanamo alien detainees' damages claims for constitutional torts.  The ruling means that the fathers of two deceased Guantanamo detainees cannot pursue their federal court cases against government officials for their sons' deaths.  They have no judicial remedy in U.S. courts for any violation.

Section 7 of the MCA reads as follows:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005], no 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, transfer, treatment, trial, 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.

28 U.S.C. Secs. 2241(e)(1) and (2).

The court held that subsection (2) revoked federal court jurisdiction over the fathers' claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments to the Constitution. 

The court distinguished Boumediene v. Bush, the 2008 case holding that subsection (1) unconstitutionally revoked the writ of habeas corpus in violation of the Suspension Clause.  The court said that while the Boumediene Court didn't distinguish between subsections (1) and (2), its reasoning, based on the Suspension Clause, only applied to subsection (1), not subsection (2) (which doesn't implicate the Suspension Clause).  So subsection (2) is still valid; and it bars the fathers' suit here.

The court rejected the fathers' argument that subsection (2) unconstitutionally deprived them of a remedy for a violation of a constitutional right.  The court said that the Supreme Court's Bivens jurisprudence, which rejects claims for money damages when certain immunities apply or when "special factors" counsel against such claims, supports the idea that "Not every violation of a right yields a remedy, even when the right is constitutional."  Op. at 7 (quoting Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009)).

Here, it means that Congress can validly revoke jurisdiction for this class of claims, and that the detainees' fathers--and any other alien detained at Guantanamo and claiming a violation of right--are out of luck.

SDS

Prop 8 Proponents Petition for Rehearing En Banc in Ninth Circuit

The Proposition 8 proponents filed their petition for en banc review of the panel decision isssued earlier this month declaring Proposition 8 unconstitutional, affirming the district judge's order.

This ends speculation that the proponents would bypass the Ninth Circuit and petition for a writ of certiorari as soon as possible.

The proponents contend that the panel opinion conflicts with Supreme Court precedent (Baker v. Nelson, 409 U.S. 810 (1972);Crawford v. Board of Education, 458 U.S. 527 (1982); Johnson v. Robison, 415 U.S. 361 (1974)) and "involves a question of exceptional importance." 

Not surprisingly, the proponents contend that the panel "misapplied" Romer v. Evans.  While Romer was a centerpiece of the panel's opinion regarding "animus," the proponents argue that the panel construed Romer as a question of "timing" rather than "substance."  With the animus issue thus defused, the proponents then argue that the panel's holding that "Proposition 8 does not bear even a rational relationship with the State’s indisputable interest in responsible procreation and childrearing conflicts directly with a decision of the Eighth Circuit and a host of other decisions."

More surprisingly, the proponents restate their argument regarding judicial disqualification:

Unbeknownst to the parties, at all times while presiding over and entering judgment in this case, former Judge Walker, like Plaintiffs, was a “resident[] of California … involved in [a] long-term … relationship with [an] individual[] of the same sex.”

(ellipses in original).  The panel was unanimous on this point, as was the district judge, and the refusal to abandon the disqualification-because-of-sexual-orientation argument makes the proponents seem biased rather than the judge.  Part of their argument seems to flow from their own assumption that judges are heterosexual: The proponents argue that judge's "refusal to disclose his long-term same-sex relationship was contrary to fundamental maxims of judicial propriety."  Moreover, they argue that Judge Walker's same-sex relationship contravenes "the ancient principle that “[n]o man is allowed to be a judge in his own cause,”  citing THE FEDERALIST NO. 10, at 74 (Clinton Rossiter ed., 2003).  Yet as we've previously noted, given the proponents own arguments about the importance of heterosexual marriage, it is difficult to see how a heterosexual judge - - - or a married judge - - - would be any less "a judge in his own cause." 

RR
[image: Anders Zorn, The Bride, via]

Supreme Court to hear Fisher v. University of Texas: The Use of Race in Admissions

In a case that might be called the sequel to Grutter v. Bollinger, the United States Supreme Court granted certiorari  today in Fisher v. University of Texas, a suit by a white woman challenging the post-Grutter admission plan at UT. (Justice Kagan recused).  [Update: There's a terrific explanation of the procedural problems with the case, including Art III standing issues, by Adam Chandler].

The dissenting opinion to the denial of en banc review by the Fifth Circuit, authored by the high profile conservative Chief Judge Edith Jones, sets out the arguments against the panel's opinion, 631 F.3d 213, upholding the UT plan, arguing that the panel extends Grutter in three ways.

• First, it adopts a new “serious good faith consideration” standard of review, watering down Grutter’s reliance on strict narrow tailoring.
• Second, it authorizes the University’s race-conscious admissions program although a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity.
• Finally, the panel appears to countenance an unachievable and unrealistic goal of racial diversity at the classroom level to support the University’s race-conscious policy.

Jones continues, arguing that the meaning of "diversity" is less than coherent:

This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires. Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the University’s race conscious admissions program. The state’s Hispanic population is predominately Mexican-American, including not only families whose Texas roots stretch back for generations but also recent immigrants. Many other Texas Hispanics are from Central America, Latin America and Cuba. To call these groups a “community” is a misnomer; all will acknowledge that social and cultural differences among them are significant. Whether the University also misleadingly aggregates Indians, Pakistanis and Middle Easterners with East “Asians” is unclear, but Houston alone is home to hundreds of thousands of people from East Asia, South Asia and the Middle East. In Texas’s major cities, dozens of other immigrant groups reside whose families have overcome oppression and intolerance of many kinds and whose children are often immensely talented. Privileging the admission of certain minorities in this true melting-pot environment seems inapt. But University administrators cherish the power to dispense admissions as they see fit, which might be reasonable except for two things: the Texas legislature has already spoken to diversity, and the U.S. Constitution abhors racial preferences. Because even University administrators can lose sight of the constitutional forest for the academic trees, it is the duty of the courts to scrutinize closely their “benign” use of race in admissions.

 

Jones later states,

The effect of the panel’s wholesale deference becomes clear when one considers the important factual distinction between this case and Grutter. In Fisher, the plaintiffs challenged a post-Grutter University plan whereby 19% of the entering freshman class were subject to a race-conscious admissions process to increase diversity.  As Judge Garza’s concurrence demonstrates, the number of students actually admitted under this racial preference policy is unclear, but it amounted to no more than a couple hundred out of more than six thousand new students. . . . The panel opinion asserts that the University’s admission process is constitutionally acceptable because it is modeled closely after Grutter. Yet the difference is obvious. The Texas legislature statutorily mandated increased diversity in admissions by means of the Top Ten Percent Law. Under that race- neutral law, covering 80% of University admissions, the top ten percent of graduates from every Texas high school were automatically admitted, and many African-American and Hispanic students matriculated to the University. The challenged preferential policy was adopted on top of the unprecedentedly high numbers (compared to many other universities) of preferred minorities entering under the Top Ten Percent Law.

The pertinent question is thus whether a race-conscious admissions policy adopted in this context is narrowly tailored to achieve the University’s goal of increasing “diversity” on the campus. Contrary to the panel’s exercise of deference, the Supreme Court holds that racial classifications are especially arbitrary when used to achieve only minimal impact on enrollment. 

. . .  Finally, in an entirely novel embroidering on Grutter, the panel repeatedly implies that an interest in “diversity” at the classroom level—in a university that offers thousands of courses in multiple undergraduate schools and majors—justifies enhanced race-conscious admissions.

While Justice O'Connor ended the Court's opinion in Grutter with an expectation that  "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,"  it seems that Grutter will be revisited less than a decade later - - - and with O'Connor no longer on the Court and Kagan recused.

RR   

Court Allots Time in Health Care Reform Challenges

The Supreme Court issued an order today alloting oral argument time in the challenges to the Affordable Care Act--six hours of argument altogether.  Here's how the argument time will be shared:

March 26 and 27

• On the Minimum Coverage Provision, the Solicitor General gets 60 minutes; respondents Florida, et al. get 30 minutes; and respondents National Federation of Independent Business, et al. get 30 minutes.
• On the Anti-Injunction Act, the Court-appointed amicus gets 40 minutes; the Solicitor General gets 30 minutes; and the respondents get 20 minutes.

March 28

• On Medicaid expansion, the petitioners get 30 minutes; and the Solicitor General gets 30 minutes.
• On severability, the petitioners get 30 minutes; the Solicitor General gets 30 minutes; and the Court-appointed amicus gets 30 minutes.

SDS

Court Stays Montana Ruling on Citizens United

The Supreme Court on Friday stayed a Montana Supreme Court's ruling upholding the Montana state PAC requirement for corporate campaign expenditures, even in the face of Citizens United v. FEC.  We posted on the Montana Supreme Court case, American Tradition Partnership, Inc. v. Bullock, here.  Recall that the Montana court distinguished Citizens United, saying that the Montana PAC requirement wasn't onerous, that Montana campaign spending regulations are far less onerous than federal regulations and did not deter the plaintiff-corporations' spending, and that Montana has a unique history of powerful corporations, controlled by outsiders, dominating state politics.  In short, the Montana court said that the state PAC requirement satisfied strict scrutiny and thus met the high bar for restrictions on independent corporate spending set in Citizens United.

Justices Ginsburg and Breyer wrote this on the Court's order:

Montana's experience, and experience elsewhere since this Court's decision in [Citizens United], make it exceedingly difficult to maintain that independent expenditures by corporations "do not give rise to corruption or the appearance of corruption."  [Citizens United.]  A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed by buy candidates' allegiance, Citizens United should continue to hold sway.  Because lower courts are bound to follow this Court's decisions until they are withdrawn or modified, however . . . I vote to grant the stay.

The decision on Friday doesn't mean necessarily that the Court will hear the case, although it makes it likely.  The stay remains in effect if the Court grants cert.; if not, it goes away.

SDS

Federal Judge Finds Louisiana Statute Banning Sex Offenders from Social Media Unconstitutional

A broad statute banning persons convicted of certain sex offenses from accessing "social media" has been held unconstitutionally overbroad under the First Amendment in Doe v. Jindal, by Judge Brian Jackson, Chief Judge of the Middle District of Louisiana.

Louisiana Revised Statute §14:91.5, passed in 2011, provides that the "using or accessing of social networking websites, chat rooms, and peer-to-peer networks by a person who is required to register as a sex offender and who was previously convicted" of specified crimes involving minors.  The penalties are severe:

(1) Whoever commits the crime of unlawful use or access of social media shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.

(2) Whoever commits the crime of unlawful use or access of social media, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.

The federal judge first found that John Doe and James Doe had standing to challenge the act.  In construing the overbreadth challenge under the First Amendment, the judge looked to the Court's recent pronouncements in US v. Stevens, and similarly found that the statutory ban reached a substantial number of unconstitutional applications.  The judge noted that the statute reached many commonly read news and information sites and interpreted the offense to be completed once a user accessed the website, whether intentionally or by mistake.  The judge found the definition of "chat room" particularly problematic, as its ban would reach "the website for this Court." 

While the state's interest in protecting children was undoubtedly "legitimate," the statute was not sufficiently precise or narrow.

As Louisiana officials consider an appeal to the Fifth Circuit, the legislature might also consider statutory revision.

RR
[image: "Facebook man" via]

House Judiciary Examines Recess Appointments

The House Judiciary Committee might not be the most obvious body to conduct oversight of President Obama's recent recess appointments to the NLRB and the CFPB.  But that's just what it did in a hearing yesterday, featuring testimony by two former OLCers and a law professor.

The prepared statements of the Honorable Charles Cooper (arguing against authority for the appointments), John Elwood (arguing for), and Jonathan Turley (arguing against) are together a terrific back-and-forth on the constitutional issues and a wonderful complement to the Obama administration's OLC memo concluding that the appointments were authorized.

We've covered this issue from its beginning.  Here are some highlights:

• Plaintiffs in ongoing litigation challenge the President's recess appointments to the NLRB in court;
• Republican Senators join that suit as amicus;
• Obama Administration's OLC OKs the recess appointments;
• The President makes the recess appointments in the first place.

SDS

Decency in Teaching?: Arizona's Proposed SB1467 Would Adopt FCC Standards for All Classrooms

The Arizona legislature is considering another law that would govern the content of public classrooms.  However, unlike the ethnic studies law, the proposed SB 1467 also reaches university education.

The bill explicitly incorporates "the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio" as prohibited speech by "a person who provides classroom instruction in a public school engages in speech or conduct."   The bill provides a three strikes policy with the third occasion requiring termination. 

The bill defines public school widely to include:

• a public preschool program
• a public elementary school
• a public junior high school
• a public middle school
• a public high school
• a public vocational education program
• a public community college
• a public university in this state

The United States Supreme Court is struggling yet again with issues of fleeting expletives and fleeting nudity under FCC standards, as the oral arguments in the reprise of  FCC v. Fox last month demonstrated.  The FCC standards for broadcasting (before 10pm) are increasingly constitutionally problematic in the television/radio context, but importing them into classrooms will strain the First Amendment.  The prospect of FCC standards in classrooms provokes a host of hypotheticals - here are just three:

First, there is the industrial arts teacher who hits her thumb with a hammer and utters an obscenity.  As Justice Roberts recognized in the oral arguments for FCC v. Fox last month, "the context matters. People understand that, including children. When they hear a bad word when someone hits their thumb with a hammer, they understand that's different than having an adult stand in normal conversations and use the words."   This seems to imply that an adult - - - even around small children - - - understandably swears when certain things occur.   Hammers, as well as technological gear, umbrellas, wet floors, basketballs, and all manner of other items, can cause teachers' utterances.

Second, there is the art history professor who shows slides of art works, including Da Vinci's Anatomy of a Male Nude, or who teaches a life drawing class.

Third, there is the constitutional law professor, teaching undergraduates or presumably teaching at the public Arizona law schools, who disscusses FCC v. Pacifica Foundation, especially the appendix to the Supreme Court's 1978 opinion which includes George Carlin's "filthy words" monologue in full.

With any luck, the Arizona legislature will consider the host of constitutional problems that SB 1574 raises.

RR
[image Arizona Capitol building]

Wild Horses: Photojournalist's First Amendment Right to Access

The Wild Free-Roaming Horses and Burros Act gives the Bureau of Land Management (BLM) authority over wild horses on federal lands.  The BLM controls overpopulation by conducting horse gathers, also known as roundups, and although the BLM "allows the public to observe horse gathers" it "restricts the viewing locations to protect the public from wild horses, helicopters, and vehicles."

Laura Leigh is a photojournalist and wild horse advocate who sought access to a gather at Silver King (in Nevada) but was limited to a designated viewing area.  She sought a preliminary injunction, arguing a violation of her First Amendment rights, which the district judge denied on grounds of mootness and unlikelihood to prevail on the merits.  In its opinion in Leigh v. Salazar, the Ninth Circuit reversed and remanded.

On the mootness issue, the panel found that Leigh's complaint was not limited to the 2010 gather, but all gathers at Silver King, and given the fact that the BLM did not capture all the horses, there was a "real possibility" of another gather at Silver King pursuant to the BLM's responsibility to "“immediately remove” "excess horses from overpopulated federal lands."

On the substantive First Amendment claim, a majority of the panel held that the district judge needed to conduct the rigorous scrutiny demanded by Press-Enterprise Co. v. Superior Court, generally known as “Press-Enterprise II” (1986).  the Ninth Circuit rejected any limitation of Press-Enterprise II to criminal trials, and found the proper standard to be:

First, the court must determine whether a right of access attaches to the government
proceeding or activity by considering 1) “whether the place and process have historically been open to the press and general public” and 2) “whether public access plays a significant positive role in the functioning of the particular process in question.” 

Second, if the court determines that a qualified right applies, the government may overcome that right only by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

Judge Wallace concurring and dissenting in part, agreeing as to the Free Enterprise II standard, but finding that Leigh did not show the gathers were "historically open to the press and public."  On that basis, Judge Wallace argued that the remand should be to decide the permanent rather than preliminary injunction.

RR
[image via, used with permission of Laura Leigh].

House Republicans Poised to Subpoena Administration Officials

Republicans on the House Energy and Commerce Committee will vote on Friday whether to subpoena administration officials in the Committee's ongoing investigation into the Solyndra loan guarantee.  We posted on this most recenty here; here's the proposed resolution.

Republicans seek testimony from five officials:

• Kevin Carroll, Energy Branch Chief, OMB
• Kelly Colyar, Branch Chief, OMB
• Aditya Kumar, Deputy Assistant to the Vice President and Senior Advisor to then White House Chief of Staff Rahm Emanuel
• Fouad Saad, Program Examiner, OMB
• Heather Zichal, Deputy Assistant to the President for Energy and Climate Change

The Committee site has other resources, including a web-cast of Friday's hearing, at 10:15 a.m. Eastern time.

SDS