Constitutional Law Prof Blog

Wisconsin's Restrictions on Collective Bargaining Declared Unconstitutional by Federal Judge

Wisconsin's controversial Act 10 has been declared unconstitutional in part by federal district judge William Conley in a summary judgment opinion in Wisconsin Education Association Council v. Walker.

Judge Conley ruled against the plaintiffs' equal protection challenge to Act 10's classification between emergency public employees and "general" public  employees.  However, Judge Conley held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarentees and Act 10's prohibition of dues withholding for general employees violated the first amendment.

In considering the dues witholding provision, Judge Conley noted that

Act 10 was enacted in the maelstrom of a political sea change in Wisconsin, the Act itself being the principal lightening rod around which the tumult reached its heights, at least to date. Whether or not the prohibition on automatic dues deductions for most public unions, but not those who supported the new Governor and Legislature, was an intentional act to suppress the speech of those who opposed then, it has that appearance.

 

The "maelstrom" to which Judge Conley referred is ongoing.  The state Government Accountability Board has just unanimously ordered a recall election for Governor Scott Walker (pictured above) who spearheaded Act 10.  Earlier this month, a state judge held Wisconsin's voter identification law unconstitutional under the state constitution, a ruling that is being appealed to Wisconsin's troubled Supreme Court.

Judge Conley's order required "a return to automatic dues deductions for all members of public unions no later than May 31, 2012," in order to "give sufficient time for the defendants to seek a stay of this injunction from the Seventh Circuit Court of Appeals, and for government entities to adopt a workable procedure to return to automatic deductions should the Seventh Circuit deny a stay, while balancing the plaintiffs’ and their now-voluntary members’ rights to a return to payroll deductions."

RR
[image: Scott Walker via]

Arkansas Statute Criminalizing Student-Teacher Sex Held Unconstitutional

Ark. Code Ann. § 5-14-125(a)(6) (Repl. 2009) provides that a person commits sexual assault in the second degree if the person is a teacher in a public school in a grade kindergarten through twelve (K-12) and
engages in sexual contact with another person who is:
        (A) A student enrolled in the public school; and
        (B) Less than twenty-one years of age.

In a 4-3 opinion, the Arkansas Supreme Court in Paschal v. State declared the statute unconstitutional as applied to the criminal conviction of David Paschal, a high school teacher, for a "months-long sexual relationship" with an eighteen-year-old student.  Pashal had been sentenced to ten years’ imprisonment
on each of three sexual-assault convictions and given ten years’ suspended sentence for a fourth sexual-assault conviction.

Pashal relied upon Lawrence v. Texas as well as interpretations of the Arkansas Constitution protecting adult consensual sex.  While the Arkansas court had previously upheld the criminalization of sex by a member of the clergy who is "in the position of trust or authority over the victim and uses the position
of trust or authority to engage in sexual intercourse or deviate sexual activity,"  the court here noted that § 5-14-125(a)(6) was a "strict liability" statute that did not mention trust or authority. 

It was on this interpretation of the statute that the majority and dissent bitterly disagreed.  The majority opinion, footnote 10, stated: "We find appalling the statement from one of the dissenting justices that the majority’s interpretation of the statute condones a teacher’s misuse of trust or authority."  Later in the same footnote the majority writes that the "dissent's manufacturing" of the issue of the teacher's awareness of a position of authority "is both injudicious and irresponsible."

Essentially, the majority found persuasive the fact that the victim was an adult.  The state conceded the sexual relationship was consensual, and without more, the statute was unconstitutional as applied.

RR
[image: "The Schoolmaster" by Charles Green circa 1875 via]

Texas Secession? An Imagined Constitutional Lone Star Republic

Discussions of secession always seem slightly humorous, including our previous one discussing Long Island and Vermont - - - as well as Texas.

And Texas is in the "news" again, with this rather lengthy "Lone Star State of Mind" on today's All Thing's Considered broadcast on NPR.

 

 

20120330_atc_15

 

Worth a listen!

 

RR

Court Equally Skeptical (or More) on Medicaid Expansion

The Supreme Court yesterday seemed just as skeptical--and maybe even more so--of the Medicaid expansion as it was of the universal coverage, or individual mandate, on Tuesday.  The line-up was similar, with Justices Ginsburg, Breyer, Sotomayor, and Kagan appearing to favor the government, and Justices Scalia and Alito leaning against.  (Justice Thomas was again silent, but his opposition to Medicaid expansion is all but certain.)  The difference in yesterday's argument: Chief Justice Roberts and Justice Kennedy seemed even more strongly against Medicaid expansion than against the individual mandate.

The core issue in the case, of course, was coercion: Did the federal government coerce the states by conditions a states' entire pot of Medicaid funding on its acceptance of the expansion?

Chief Justice Roberts made some very strong statements against the government's position that expansion isn't coercion, especially worrying about federalism and "intrusion on the sovereign interests of the State."  Transcript p. 59; see also Transcript p. 34.  This latter question, the one on page 34, also suggests that the federal government "having attached the . . . strings, [states] shouldn't be surprised if the Federal Government isn't going to start pulling them."  On balance, though, the Chief Justice seemed to lean against expansion.

Justice Kennedy seemed worried most about accountability--how citizens could sort out who to blame if they didn't like the policy.  He recognized that there's no "workable" test based on accountability (p. 64), but he also seemed to want to find a place for accountability in the analysis.  He was also concerned about "practical coercion" (my phrase), discussed immediately below.

In the end, there seemed one predominant theme among those who appeared to lean against the expansion: If the government can't conceive of a state declining to participate in the expansion--because the money's too sweet, because the program's too good, or because the individual mandate would have a hard time working without it--it seems like coercion.  This kind of plain-spoken, practical coercion might just drive the case. 

Others apparently favorable to the expansion argued that this practical coercion must mean that a program can be unconstitutionally coercive only because it's too good--a plainly absurd conclusion, and therefore not a reason to overturn the expansion.

Several other themes emerged:

Complete Funding.  The federal government pays the lion's share of the expansion in the first few years--a point made early by Justice Kagan.  To those favoring the government, this makes it look like a pure federal gift to the states for the purpose of expanding Medicaid.  But Paul Clement, representing the states, argued that it was both the size of the Medicaid program and the expansion that makes this coercion: because of Medicaid's size, state's can't afford to lose it; because of the generosity of the expansion, states can't say no to it. 

Related: There was concern among those apparently leaning against the expansion about why states could stand to lose all their Medicaid funding just because they don't agree to take funding for this incremental expansion.  This issue relates to executive discretion, discussed below.

Related:  Chief Justice Roberts seemed especially concerned that the federal government could later decrease the amount of its participation, after leading the states on with this nearly-completely-funded expansion, and leave states in an even more precarious situation--even more coercive.

Complete Overhaul.  Justice Sotomayor asked if the federal government could simply scrap the whole program and start all over, why it couldn't add this incremental expansion.  Clement said that nobody has a problem with certain existing Medicaid programs, and so it makes no sense to condition the whole program, including existing programs, on a state's willingness to sign on to the incremental expansion.

Politics.  The politics played a minor role, but were there.  Justice Ginsburg asked about the other half of states that may favor the expansion, and Justice Scalia helped point out that the states in this case--those opposing expansion--are headed by Republicans.  In Clement's words: "There is a correlation." P. 21.

Spending Power.  Clement tried to distinguish between congressional use of the spending power for objectives included in other portions of Article I, Section 8, and use of the spending power for ends outside of its Section 8 powers.  It's not clear whether this position has enough traction to work its way into the Court's analysis, but it does revive a very old (but now well settled) debate over the scope of congressional spending power: Congressional spending power is most certainly not cabined by what it can do under other Article I, Section 8 powers.  Clement's position seems to question that, even if only on the margins.

Taxes and Citizenship.  Clement argued that the federal government is encroaching on state authority by taxing state citizens for a benefit that they don't want.  The argument confuses state and federal citizenship, and didn't seem to get any traction with the Court.  But Clement's related argument--that federal taxes to support Medicaid expansion crowd out states' ability to tax their citizens for other purposes--did get some attention among opponents of the expansion.

Executive Discretion.  Justice Breyer raised the point that the Secretary is bound by the APA in revoking all Medicaid funds for a state that declines to participate in the expansion, and that such a decision would be subject to rationality, or the arbitrary and capricious test.  This point gained traction as the argument moved forward, but the Justices seemed to divide over the implications: Justice Breyer argued that this means that the Secretary isn't unbound in revoking all funds, and others pointed to the history of the Secretary's modest exercise of this authority; opponents of the expansion argued that the authority to revoke all funds is still there in the statute.  SG Verrilli, of course, couldn't give assurances about how the Secretary would use the discretion, but suggested that the Secretary wouldn't revoke all Medicaid funding.

Accountability.  Justice Kennedy raised the point about accountability: How can citizens understand the lines of accountability for a program that's so strongly encouraged by the federal government?  Accountability is surely a consideration, but it's not clear how much, if at all, it'll turn this case.  Justice Kennedy also said that any test based on accountability is "unworkable," but he seemed to search for a way to consider accountability within the coercion framework.

Practical Coercion.  Again, Chief Justice Roberts, Justice Scalia, Justice Alito, and even Justice Kennedy at one point all pointed out, in only slightly different ways, that if the government can't conceive of a state saying no--because of the size of the program, or because how expansion fits with the individual mandate, or because Congress knew that states liked Medicaid so much and just assumed that all states would come on board--then that's coercion.

SG Verrilli wrapped up his argument with an appeal to liberty--the liberty of those who would be covered by Medicaid expansion to receive funded medical care.  This was refreshing, but probably not anything that would persuade those who oppose the expansion based on the sovereignty of the states and federalism.

This case, like the universal coverage case, will likely turn on Chief Justice Roberts or Justice Kennedy or both.  But here both seemed even more opposed to expansion than they were to universal coverage.

SDS

Skeptical Court Hears Arguments on Minimum Coverage, Individual Mandate

The Supreme Court today heard oral argument in the congressional authority portion of the challenge to the Affordable Care Act--whether Congress had authority under the Commerce Clause or its taxing power to enact the minimum coverage requirement.  Links to the audio files and transcript are here.

The questions at argument suggest that the case may turn on Chief Justice Roberts or Justice Kennedy (or both), both of whom, in different ways, appeared to give serious attention and thought to both sides of the argument.  But if they leaned, both also seemed to lean toward opponents of the provision.  For example, both (but Chief Justice Roberts perhaps more than Justice Kennedy) seemed much more skeptical of the government's argument than the opponents' argument.  And Justice Kennedy at one point suggested that the government face an even higher burden, given the "unprecedented" nature of the provision.  He also gave a short statement on the tradition in American law of not imposing a duty to act.

Justices Scalia and Alito seemed more set in their positions against the provision; and Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed more set in their positions in favor.  (Justice Thomas was silent, but his position (against) was never seriously in doubt.)

In short, this could be a squeaker one way or the other. 

Several themes caught the Court's attention:

Nature of the Market.  The Court spent time figuring out whether the relevant market is unique, because everyone will at some point enter it.  This question turns on what the relevant market is (see below) and, at least in part, on the issue of timing (see below). 

A Limiting Principle.  The Court looked for a limiting principle in the government's position--one that would distinguish the parade of horribles offered by the Justices, including everything from the government requiring us all to eat broccoli to the government requiring us all to buy cell phones to use for emergencies.  SG Verrilli came back with limiting principles distinguishing these examples, and Justice Kennedy seemed genuinely interested in them (or at least in hearing the states' responses to them).

The Relevant Market.  The Court spent considerable time on the familiar arguments about the relevant market--is Congress regulating the market for health insurance, or the market for health care (or health care payment)?  If the former, opponents argue that Congress is requiring something of people not yet in the market, and thus exceeding its authority under the Commerce Clause.  Chief Justice Roberts and Justice Kennedy both seemed open at least to hearing the government's argument that the minimum coverage requirement regulates the market for health care (not health insurance).

Timing.  Timing was an issue--whether Congress could regulate substantially before a person enters the market for health care, or whether Congress could only regulate at the point of entry, when, e.g., a person goes to the emergency room.  Everyone seemed to agree that Congress could regulate at the point of entry; the question is how far before that Congress can regulate--and whether the Commerce Clause has anything at all to say about this.

Congressional Creation of the Market (and the Problem).  Some expressed some concern that Congress created the interstate market and the very problem that it sought to address through the minimum coverage requirement by mandating that providers give free care to indigents.  Even if this is so, however, it's not clear, as Justice Breyer noted, why this would be a constitutional problem: Congress creates interstate markets all the time. 

Part of a Package.  The Court gave some attention to the government's argument that the minimum coverage requirement was necessary to make the guaranteed issue and community rating provisions work--an argument that draws on Gonzales v. Raich.  Opponents argued that Congress could have enacted these provisions without the minimum coverage provision; the government said that would have been ineffectual.

Policy.  There were a couple exchanges on pure policy, in particular other ways that Congress might have achieved its goals.  This shouldn't have any bearing on the constitutional question: congressional authority doesn't require something like a least-restrictive-means analysis.  If these exchanges should translate into constitutional law, however--if, e.g., the Court looks to alternatives to show why the minimum coverage provision exceeds congressional authority--the result could tighten congressional authority in general along the lines of a least-restrictive-means test.  This would mark an important change in the level of deference the Court usually gives to Congress in areas of congressional authority.

The Court spent more time on the Commerce Clause than on the taxing authority, but that's perhaps not a surprise.  The Justices' leanings didn't seem to change whether the questioning went to the Commerce Clause or to the taxing authority.

SDS

Sixth Circuit on Joe The Plumber's Lawsuit for Constitutional Violations

"Joe the Plumber," as Samuel Joseph Wurzelbacher (pictured left) became known, gained public exposure when he interacted with Presidential Candidate Obama in October 2008 and later endorsed the Republican Candidate John McCain.  Wurzelbacher, a resident of Ohio, alleged that state officials accessed state databases to retrieve information about him, including his child support and unemployment records. 

In its opinion in Wurzelbacher v. Jones-Kelley, the Sixth Circuit affirmed the district judge's judgment on the pleadings in favor of the defendants.

On his First Amendment retaliation claim, Wurzelbacher failed to meet the standard requiring allegations that:
(1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.

The Sixth Circuit found that Wurzelbache's general claims of emotional distress caused by his knowledge that databases had been searched for his name was inadequate to allege the necessary adverse action.  Importantly, any information gleaned from the database searches was never disclosed.  Even if this was an "adverse action," it was not the kind of action that would deter a "person of ordinary firmness" from continuing to speak.

Wurzelbacher similarly failed to allege sufficient facts for a violation of his Fourteenth Amendment informational privacy rights.  For the Sixth Circuit, these informational privacy rights must meet the substantive due process standard that “the interest at stake relates to those personal rights that can be deemed fundamental or implicit in the concept of ordered liberty.”  

Wurzelbacher may not be a trail-blazing opinion, but it does demonstrate the lack of constitutional remedy for state officials "doing research" on a person who has come to their attention for political reasons.

RR
[image: Samuel Joseph Wurzelbacher, circa 2008, via]

Cambridge Unveils Global Constitutionalism

Cambridge University Press released its inaugural issue of Global Constitutionalism, or GlobCon, the new interdisciplinary journal addressing global issues at the intersection of law and politics.  The inaugural issue is available free on-line here. 

Here's a list of articles, with links to abstracts (which link to full texts):

Antje Wiener, Anthony F. Lang, Jr., James Tully, Miguel Poiares Madura, and Mattias Kumm, Global Constitutionalism: Human Rights, Democracy, and the Rule of Law

Peer Zumbansen, Comparative, Global, and Transnational Constitutionalism: The Emergence of a Transnational Legal-Pluralist Order

Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe

Anna Leander, What Do Codes of Conduct Do? Hybrid Constitutionalization and Militarization in Military Markets

Jonathan Havercroft, Was Westphalia "All That"? Hobbes, Bellarmine, and the Norm of Non-Intervention

Richard Bellamy, The Liberty of the Moderns: Market Freedom and Democracy Within the EU

Andrew Arato, Conventions, Constitutent Assemblies, and Round Tables: Models, Principle and Elements of Democratic Constitution-Making

SDS

Few Clues, Con Law Issues in First Day of Health Reform Arguments

For those hoping to get an idea of where the Court is heading with the core constitutional issues in the ACA challenge, yesterday's oral arguments on the Anti-Injunction Act must have been a disappointment.  The Court yesterday drilled into the finer points of tax law--in particular, arguments whether the AIA is jurisdictional and, if so, whether it applies--but it gave few, if any, clues on the con law issues that will dominate oral argument today and tomorrow.  Yesterday's argument did suggest this, though: The Court will get to the merits now, and not punt based on the AIA.

The audio file and transcript are available here.

Justice Alito got right to a main con law point with SG Verrilli, asking how the government can consider the tax penalty a non-tax for AIA purposes but a tax for Article I purposes:

Justice Alito: General Verrilli, today you are arguing that the penalty is not a tax.  Tomorrow you are going to be back and you will be arguing that the penalty is a tax [to support the universal coverage provision of the ACA].

Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

General Verrilli: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax.  And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today.

Tomorrow the question is whether Congress has authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis.  Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

It's not clear whether this concern about the government's position on the tax penalty will have any constitutional traction today, however.  There's no requirement that a "tax" for taxing authority purposes must also be a "tax" for every other purpose.  The government's position may seem at odds with itself, but it probably doesn't matter for any constitutional reason.

Other Justices asked about those subject to the universal coverage requirement, but exempt from the tax penalty, particularly the poor, suggesting that the taxing authority alone isn't enough to support the universal coverage requirement for this population.  Several Justices were interested in whether the universal coverage requirement could be separated from the tax penalty, apparently setting up a line of inquiry today about whether the Commerce Clause alone could support the universal coverage provision for this population.  Again, though, it's not clear how much this will matter for arguments today: The Commerce Clause has always been a potentially independent authority--maybe even the best authority--to support the universal coverage provision for every population.

The Court asked some questions about whether the tax penalty raised revenue.  This line is almost certainly more important for AIA purposes than for taxing authority purposes, though.  And in any event, as SG Verrilli reminded the Court, the CBO has projected that the tax penalty will raise revenue. 

Finally, Justice Sotomayor asked a line of questions about state standing to challenge the universal coverage provision.  This line may come back today, but it's not clear from the brief exchange (on page 72 of the transcript) that it will get much play.

In short, argument yesterday gives few clues about the con law issues on display today and tomorrow.  At most, we have some likely themes for arguments today and tomorrow.  And we almost certainly have this: The Court is likely to address the merits now, and not punt under the AIA.

SDS

Passport Dispute Does Not Raise Political Question

The Supreme Court ruled on Monday in Zivotofsky v. Clinton that the political question doctrine does not bar judicial review of the constitutionality of a federal statute that requires the Secretary of State to designate "Israel" as the country of birth for a U.S. citizen born in Jerusalem who requests such designation.  We previewed the case here, and we reviewed the oral argument here.

The ruling dodges the significant underlying separation-of-powers question over which branch has authority to designate the country of birth on a U.S. passport--at least for now.  The Court remanded the case for consideration of this issue; it is sure to return.

The case pits State Department regs forbidding the designation of Israel as the country of birth for a U.S. citizen born in Jerusalem against a federal statute that requires such designation--in short, whether the President or Congress has authority to specify the country of birth on a U.S. passport for a U.S. citizen born in Jerusalem.  Here, this power also implicates U.S. foreign policy, because the designation would be seen as taking sides in the Israeli-Palistinian conflict.  Complicating things, President George W. Bush issued a signing statement on the legislation, Section 214(d) of the Foreign Relations Authorization Act, saying that it unconstitutionally interferes with the President's foreign affairs powers.  (The constitutionality of the signing statement, however, wasn't before the Court.)

The D.C. Circuit ruled that the case raised a nonjusticiable political question--the President's authority to recognize foreign sovereigns--and affirmed its dismissal.

The Supreme Court reversed.  Chief Justice Roberts wrote for the Court that the case merely involved the constitutionality of a federal statute--"a familiar judicial exercise"--and did not require the courts to intervene in or to set foreign policy.  This didn't make the case easy, but it did make it appropriate for judicial review.  The Court remanded the case to get the lower courts' best thinking on the merits before the case inevitably comes back to it.

Justice Sotomayor wrote a concurrence joined in part by Justice Breyer, and Justice Alito wrote a concurrence.  Justice Breyer was the lone dissenter, arguing that the case was a political question because it may well require the Court to evaluate foreign policy considerations, because there are no strong reasons for judicial review, and because the political branches can work it out on their own.

The ruling sends the case back to the lower courts for consideration on the merits.  But this important separation-of-powers case is almost certain to come back to the high Court.

SDS

Ontario Court of Appeal on the Constitutionality of Criminalizing Prostitution

 In a much anticipated decision, the Court of Appeal for Ontario has just rendered its opinion in Canada (Attorney General) v. Bedford, 2012 ONCA 186 regarding constitutional challenges to commercial sex.

Note that to a large extent - - - or at least much larger than in most of the U.S. - - - Canada has decriminalized commercial sex.  At issue in Bedford is the constitutionality of three provisions of the Criminal Code which "form the core of Parliament's response to prostitution:" 

1. Section 210, which prohibits the operation of common bawdy- houses. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;

2. Section 212(1)(j), which prohibits living on the avails of prostitution. This prevents anyone, including but not limited to pimps, from profiting from another's prostitution; and

3. Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. This prevents prostitutes from offering their services in public, and particularly on the streets.

The constitutional challenges were based on the Canadian Charter of Rights and Freedoms.  Specifically, §7 provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

and §2(b) provides:

Everyone has the following fundamental freedoms:     ...
                    (b) freedom of ... expression

Section 1 of the Charter is the limiting (or balancing) provision providing that the Charter

guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.....

In a closely reasoned, well-organized, and lengthy opinion, the Court of Appeal for Ontario reached disparate conclusions.

The provincial high court held Section 210 regarding the operation of bawdy houses unconstitutional, but suspended the declaration of invalidity to allow Parliament to redraft the provision. 

The court held that Section 212(1)(j) should be interpreted to save its constitutionality, by including words of limitation so that it applies "only to those who live on the avails of prostitution in circumstances of exploitation."

Over two dissents in an otherwise unanimous opinion, the court upheld the constitutionality of criminalizing "communicating for the purpose of prostitution in public." 

Sure to elicit much commentary (initial reports here, here & here) and perhaps appeal to the Supreme Court of Canada, this opinion is of obvious import to Canadian constitutional scholars, but also merits a great deal of attention from ConLawProfs south of the border.

RR
[image: ceiling in Osgoode Hall, Court of Appeal for Ontario, via]

Fifth Circuit En Banc: No Constitutional Liability for School's Allowing Nonauthorized Adult Access to Nine Year Old During School Day Leading to Sexual Assault

It happened more than once.
Six times, according to the complaint's allegations.  The school allowed a man to "check out" the nine year old Jane Doe from school and return her later in the day on six separate occassions, simply signing her out as her father, and once as her mother.  The man was not on the "permission list," was not related to Jane Doe, and the school employees did not ask for any identification or check the "permission list."  The man took Jane from school, sexually molested her, and then returned her to school.

On these horrific facts, a panel of the Fifth Circuit in Doe v. Covington County School District found that the special relationship test of DeShaney v. Winnebago County, 489 U.S. 189 (1989) was met.   As we discussed last August, that panel holding was over a vigorous dissent by Judge Carolyn Dineen King.

In the en banc opinion Judge King wrote for a majority of the court, vindicating her previous dissenting opinion.

King's opinion for the en banc Fifth Circuit takes a formal tone and expresses little sympathy for Jane Doe.  The en banc opinion seems to brook no possibility that DeShaney can be overcome in a public school system.  Indeed, the outrage of the Judges who joined the majority seems to be reserved for the possibility of any other view.  As Judge Jolly stated, concurring:

    There is no room–not an inch–for confusion. The law yesterday and today is bare and bald: No DeShaney special relationship exists between a public school and its
students. Absent a special relationship, any analysis of the defendant’s conduct
as deliberately indifferent to the rights of the student is, under DeShaney, irrelevant.
    No further panel of this court should require us to iterate these clear
statements of the law a fourth time.

The en banc opinion explained this view:

When a state incarcerates a prisoner, institutionalizes a mental health patient, or places a child in foster care, the state knows that it has restricted the individual’s liberty and rendered him unable to care for his basic human needs. When a school employee carelessly fails to ensure that an adult is authorized to take an elementary student from the school, no state actor has knowledge that the school has thereby restricted the student’s liberty, because the adult taking the student from school may or may not be authorized.

Jane Doe's age is irrelevant:  "No matter the age of the child, parents are the primary providers of food, clothing, shelter, medical care, and reasonable safety for their minor children. Thus, school children are returned to their parents’ care at the end of each day, and are able to seek assistance from their families on a daily basis, unlike those who are incarcerated or involuntarily committed."   

The en banc court also looked to the state-created danger test, noting that the Fifth Circuit had not adopted the test and even if it had, the complaint's allegations would not make out such a claim: "they do not demonstrate the existence of “an immediate danger facing a known victim,” but only the school's awareness of some "general deficiencies in the check-out policy" for students.   Again stressing that the problem was the school's check-out policies rather than what happened between the time Jane Doe was checked out and checked back into school, the Fifth Circuit en banc opinion held there was no "shocks the conscience" claim. 

Judges Weiner and Dennis, who wrote the majority panel opinion, were the sole dissenters from the en banc opinion.  They stressed Jane Doe's age as well as the fact that the incidents occurred during the school day, rather than at the end: "the majority never addresses just what it is that Jane’s parents conceivably could have done, or should have done, to safeguard her in this situation."

The en banc majority opinion's concluding paragraph states its holding in stark terms while purporting to provide some legal alternative:

In affirming the dismissal of the Does’ complaint, we do not suggest that
schools have no obligation to insure that their students remain safe from acts of
private violence. State law provides the appropriate legal framework to address
Jane’s injury. The question we have addressed is simply whether the school’s
failure to check Keyes’s [the molester's] identity and be certain that he was authorized to take Jane amounted to a constitutional violation. Supreme Court precedent, our precedent, and the decisions of every other circuit to address the special relationship exception compel this court to conclude that it does not. In addition, neither the state-created danger theory nor municipal liability provides a viable basis for recovery.

RR
[image: A School Girl by Myles Birket Foster via]

District Judge Finds Establishment Clause Violation for Trafficking Funding to Catholic Bishops

The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.

At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000).  Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.”  HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds. 

Only two organizations bid for the role of “independent contractor,” both of which are religious organizations.  The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB).  This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.”  This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility.  It stated it would require an assurance form all subcontractors regarding compliance.

    Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million. 

     The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.

    On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.

     On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.”  The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.”  Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.

     Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion: 

“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.”  That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.

The case is sure to be appealed. 

RR

Saturday Evening Review: What Would Elizabeth Cady Stanton Say?

Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion.  For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas).   Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.

But was Stanton actually anti-abortion?

Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion.   According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women."   Instead,

Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.

Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women.  Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position. 

Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion.  It's a must-read for any scholar working on this controversial constitutional area.

RR
[image of Elizabeth Cady Stanton circa 1880 via]

Generic Drug Claims Dismissed in Wake of PLIVA

The Supreme Court ruled last year in PLIVA v. Mensing that federal prescription drug laws preempt plaintiffs' state failure-to-warn claims against generic drug manufacturers, even as it ruled three years again in Wyeth v. Levine that similar federal laws do not preempt plaintiffs' state law claims against brand-name manufacturers.

The New York Times this week examined the impact of Mensing and, unsurprisingly, found that courts are routinely dismissing state law claims against generic manufacturers, and that many generic prescription drug users have no idea that they are waiving their claims against manufacturers simply by opting for a generic equivalent over a brand-name drug:

The Supreme Court ruling affects potentially millions of people: nearly 80 percent of prescriptions in the United States are filled by a generic, and most states permit pharmacists to dispense a generic in place of a brand name.  More than 40 judges have dismissed cases against generic manufacturers since the Supreme Court ruled last June, including some who dismissed dozens of cases consolidated under one judge.

The article reminds readers that Congress could easily change the landscape and allow suits against generics to go forward.  But it doesn't look like that'll happen anytime soon.

SDS

Right to Counsel Applies to Consideration of Plea Offers That Lapse or Are Rejected

In a pair of cases this week, Missouri v. Frye and Lafler v. Cooper, a sharply divided Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected.  The rulings are a victory for defendants in criminal systems where upwards of 97% of all federal convictions and 94% of all state convictions are the result of guilty pleas.

Still, under the rulings, criminal defendants will have no easy time in showing that their attorneys are ineffective.  That's because the Court requires them to show a reasonable probability that they would have accepted a lapsed plea, that the prosecutor wouldn't have revoked it, and that the court would have accepted it.  They also have to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

And even if a defendant can jump through these hoops, there's still the question of the remedy.  Under Cooper, the trial court could simply reinstate the final conviction and sentence, leaving the defendant no better than he was before the Supreme Court's rulings.

Frye arose out of a defense attorney's failure to tell his client about the prosecution's plea offer.  The defendant went on to enter an open plea and received a higher sentence than the offer.  The Court ruled that the attorney's failure to share the plea offer constituted deficient performance, satisfying the first prong of the Strickland test.  But the Court remanded the case to the state court to determine the state law questions whether there was a reasonable probability that the prosecutor wouldn't have revoked the offer and that the court would have accepted it.  If the defendant can't show a reasonable probability, there's no prejudice under the second prong of the Strickland test.

Cooper arose out of a defendant's rejection of a plea offer based on his attorney's erroneous advice that the prosecution would be unable to convict him of the charged crime.  The defendant was convicted after trial and sentenced to a term 3.5 times longer than the term in the plea offer.  The parties agreed that counsel's performance was deficient under Strickland's first prong, and the Court ruled that the defendant's higher sentence at trial constituted prejudice.  As a remedy, the Court ruled that the state must reoffer the plea.  The trial court can then vacate the convictions and resentence pursuant to the plea, vacate only some of the convictions and resentence accordingly, or leave the convictions and sentences undisturbed.

The Court in both cases emphasized that criminal justice is largely a process of plea, not trial, and that the plea process, including consideration of plea offers, is a critical stage triggering the right to effective assistance of counsel.  The dissent in both cases emphasized that there's no right to a plea offer, and that the defendants in both cases were convicted after a free and fair open plea (in Frye) and a fair trial (in Cooper).

Justice Kennedy wrote for himself and Justices Ginsburg, Breyer, Sotomayor, and Kagan in both cases.  Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented in both.

SDS

State Courts and Constitutions

How many Justices are there on the Montana Supreme Court?  Are the Justices on Idaho's highest court elected or appointed?  Does the state bar play a role in nominating the Justices of Tennessee?  What's the term of service on the Ohio Supreme Court?  Which provision in the New Jersey Constitution governs the selection of Justices?  How many states have a "Missouri plan" and what does that mean anyway? 

An excellent resource from the Federalist Society, the State Courts Guide, can answer these questions and a host of other queries about the highest courts in each state.  Clicking on individual states in the US map color-coded by types of judicial selection will lead to more detailed information about a state and pertinent links; here's Wyoming:

 

 

It would be great to also have the individual state information in a 50-state chart for ease of comparison, but perhaps that will be available in the 2.0 version.

RR

Fifth Circuit Holds Immigration Housing Ordinance Unconstitutional

In its opinion in Villas at Parkside Partners v. City of Farmers Branch Texas, the Fifth Circuit affirmed the district judge's conclusion finding an ordinance unconstitutional pursuant to the Supremacy Clause, as preempted by federal law.

The ordinance, reproduced as a 15 page appendix to the majority opinion, is rather detailed, but essentially requires tenants to have licenses that demonstrated their citizenship or legal status.  The Fifth Circuit placed emphasis on the ordinance's legislative history, including previous attempts to regulate immigrants and statements by city officials such as the ordinance was an effort to “help reduce the illegal immigrant population in Farmers Branch.”  The majority also noted that the ordinance itself provided it was intended to regulate immigration, not housing.  The Fifth Circuit therefore stated:

The conclusion that the Ordinance is not a local housing regulation, and instead determines which aliens may reside in Farmers Branch, necessarily compels our conclusion about preemption of the Ordinance as a regulation of immigration contrary to federal authority. Because we conclude that the sole purpose of the Ordinance is to target illegal aliens and effect their removal from the City, we also conclude that the Ordinance is an impermissible regulation of immigration posing an obstacle to federal control of immigration policy.

In its analysis, the panel majority extensively cited the Third Circuit's decision in Lozano v. City of Hazelton: although acknowledging that the entirety of the Third Circuit’s judgment has been vacated by the United States Supreme Court, "we nevertheless find Lozano’s reasoning instructive in this case because the Third Circuit was faced with a housing regulation squarely analogous to the one in the instant case, and the Supreme Court’s decision in [Chamber of Commerce v.] Whiting does not affect that reasoning."

Dissenting in part, Judge Jennifer Walker Elrod disagreed with this assessment, arguing that the ordinance is more nuanced than that and does regulate housing.  Yet Judge Elrod's opinion concurs regarding the unconstitutionality of the "judicial review" portion of the ordinance "because it allows a state court to review whether the occupant is lawfully present, while giving the federal determination “a rebuttable presumption as to the individual’s immigration status” and making conclusive only those federal determinations that “would be given preclusive effect on the question."  In other words, this allowed state courts to "revisit federal determinations of immigration status" and "opens the door for conflicting state-federal rulings on an immigrant’s lawful status," which certainly raises the possibility of conflict and therefore serves as an obstacle to federal law.

Next month, the United States Supreme Court will be hearing oral arguments on portions of Arizona's controversial SB1070, passed nearly two years ago.  While SB1070 does not seek to regulate local housing, its holding of preemption could certainly effect the constitutionality of the ordinance of Farmers Branch, Texas.

RR
[image via]

UPDATE HERE

Cardozo Conference on Ancient and Modern Constitutionalism

The Floersheimer Center for Constitutional Democracy at Cardozo Law is hosting a symposium on April 2 titled Constitutionalism, Ancient and Modern.  Here's from the description:

The purpose of the symposium is to put the constitutionalism of the ancients on the agenda of contemporary constitutional scholars.  Among the themes the symposium will explore are the challenges pre-modern constitutions pose to modern constitutionalism, the struggle for constitutional order and economic equality in Athens and Rome, religious sources of constitutionalism, direct versus representative lawmaking, and the relationship of constitutionalism to dictatorship and absolutism.

The line-up is terrific.  John P. McCormack (Chicago Poli. Sci.) will deliver the keynote, Keep the Public Rich and the Citizens Poor: Economic Equality and Ancient Constitutionalism.

The symposium is free and open to the public.  RSVP to cardozosymposiaeditor@gmail.com or 212.790.0200 x6700.

SDS

Reichle v. Howards: First Amendment Retaliatory Arrest, The Secret Service, and Oral Arguments in the United States Supreme Court

During oral arguments in the Supreme Court today, the First Amendment took a definite back seat. The case is Reichle v. Howards, on certiorari from the Tenth Circuit, and involved Howard's arrest by Secret Service agents at a mall in Colorado where then-VP Dick Cheney was appearing.  Howard was taking his son to a piano recital at the mall and on his cell phone.  Apparently, no fan of the VP, Howards stated into his cell phone, "I'm going to ask him [the Vice President] how many kids he's killed today."

This was overheard by the Secret Service agents and attracted their attention.  Moreover, Mr. Howards did make good on his stated intentions:  After dropping off his son at the recital,

Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his "policies in Iraq are disgusting." The Vice President responded, "Thank you." As he departed, Mr. Howards touched the Vice President's right shoulder . . .

Interestingly, Mr. Howards was not arrested then, but quite a while later when agent Reichele and Howards had an "interview" which escalated, with the agent becoming angry.  The agent arrested Howards for assault on the Vice-President, based on the touching of the shoulder, which Howards has "lied" about saying he hadn't touched the VP.

No charges against Howards were brought, but Howards filed a Bivens action against the agents for violating his First, as well as his Fourth, Amendment rights.  The agents claimed qualified immunity.  While the district judge had denied qualified immunity to all agents, the Tenth Circuit held that only two agents, including Reichele, were not entitled to qualified immunity.

During the oral argument, the Fourth and First Amendment arguments were understandably intertwined, but the First Amendment was most often deemed irrelevant.

As Sean Gallagher, arguing for the Secret Service agents stated:

Virtually everyone that a Secret Service  agent encounters when he is protecting the President or the Vice President can allege that they are engaged in free speech. So for Secret Service agents in particular, they -- they can legitimately evaluate what someone is saying in order to determine a particular threat level.

During the argument on behalf of Howards by David Lane, Justice Sotomayor stated:

You do understand that this case is inviting the questions the Chief Justice asked, which, and which has -- Justice Breyer and some of us are concerned about, which is what your adversary has described as First Amendment voicing is going to be a part of many, many arrests.

Near the end of his argument, Lane made a plea for the First Amendment to be recognized:

The issue simply is can we sacrifice the First Amendment. You know, does a litterbug lose their right to have First Amendment free speech?
Does a jaywalker lose their right to have First Amendment free speech because probable cause exists to believe they've committed some offense? And you'll have officers ostensibly enforcing litter laws and jaywalking laws and blocking the sidewalk laws, and the First Amendment is essentially evaded.
100 years of jurisprudence, courageous jurisprudence, many times by this Court, goes by the boards because somebody is a litterbug. I -- I just don't see that as the solution to this problem. And I also don't see that the Secret Service needs some enhanced protection from this Court when this has never been and is not now any kind of a serious problem.
The status quo is not healthy. It has worked for decades and it should continue to work. And if these agents get tagged in this case, maybe they deserved to get tagged in this case, because the First Amendment is extremely important. And I don't denigrate the -- the job of law enforcement or -- or these agents in any way. . . . .

The Justices, however, seemed more than willing to defer to the Secret Service agents, who have recently had the scope of their protective responsibilities widened by Congress.

RR
[image via]

Supreme Court in Coleman: The 11th Amendment Bars Suit Against State for FMLA Violation

The Supreme Court's divided opinion in Coleman v. Court of Appeals of Maryland, issued today, resuscitates the convoluted doctrine that resides at the intersection of the Eleventh Amendment and the Fourteenth Amendment.  As Justice Scalia, concurring, phrased it:

The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense.

The facts of the case are simple: Coleman was employed by the Court of Appeals of the State of Maryland and requested sick leave;  he was informed he would be terminated if he did not resign. Coleman then sued in federal court, arguing that his employer violated the "self care" provision of the Family Medical Leave Act (FMLA). 

The "family leave" provision of the FMLA was held applicable against the states in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), authored by CJ Rehnquist.  But here the plurality distinguished the sex-role stereotyping that Congress found states had perpetrated regarding family leave.  Instead, the self-care provision had a lack of  "a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations."

The Eleventh Amendment, passed to overule Chisholm v. Georgia, has produced a tortured - --  and many argue essentially incorrect - - - doctrine allowing states to interpose sovereign immunity against civil rights suits by their own citizens.

This is complicated by Congressional power to abrogate a state’s 11th Amendment immunity pursuant to its §5 14th Amendment  enforcement power in some circumstances.  The Congressional intent to abrogate must be unmistakenly clear and the Congressional act must be a valid exercise of power under section 5 of 14th Amendment, meaning that there is congruence and proportionality in light of Supreme Court precedent and there must be a finding that states qua states need to be remedied.  

In Coleman, Kennedy - - - writing for a plurality - - - held that the self-care provision was not a valid aborgation of the state's sovereign immunity.  Note that the specific provision, not entire FMLA, is being subject to this requirement.  Kennedy wrote that the  "evidence did not suggest States had facially discriminatory self-care leave policies or that they administered neutralself-care leave policies in a discriminatory way. And there is scant evidence in the legislative history of a purported stereotype harbored by employers that women take selfcare leave more often than men." 

Justice Ginsburg, joined by three other Justices, dissented and argued that even accepting the Court's view of the scope of Congress’ power under §5 of the 14th Amendment, the self-care provision "validly enforces the right to be free from gender discrimination in the workplace."   Further, she argued that the plurality  "gets it wrong in concluding that “[o]nly supposition and conjecture support the contentionthat the self-care provision is necessary to make the family- care provisions effective.”"  Instead, self-care leave "is a key part of Congress’ endeavor to make it feasible for women to work and have families."

Ginsburg's argument did not prevail and thus states escape another provision of federal anti-discrimination law given the Court's interpretation of the Eleventh Amendment.

On the heels of Hosana-Tabor Evangelical Lutheran Church and School v. EEOC decided earlier this term, the Court has rendered another unfavorable opinion for employees dealing with health problems.

RR
[image:Friedrich Friedländer, Der Doktor, circa 1870 via]