Constitutional Law Prof Blog

More Justification for Drones

The President's top counter-terrorism advisor, John Brennan, set out the administration's legal and ethical case for the use of drones today at Woodrow Wilson International Center for Scholars.  Brennan's speech comes just under two months after AG Eric Holder stated the case at Northwestern University, just over three months after DOD General Counsel Jeh Johnson argued the administration's case at Yale Law School, and nearly two years after State Department Legal Adviser Harold Koh made the case to the American Society of International Law.  It also comes just over six months after administration sources hinted at the justification in WaPo and the NYT.

We last covered the administration's expanding use of drones in Yemen here.

Brennan's talk echoes Holder's, Jeh's, and Koh's earlier talks, with perhaps more length, but still little detail.  We're still waiting for the administration to release its written legal analysis.  The case by administration officials amounts to little more than "trust us" on its processes for identifying targets that pose a threat to trigger national self-defense.  This falls far short for an authority that the administration used just last year to target and kill a U.S. citizen.

Here's what Brennan said today:

[A]s matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack.  The Authorization for Use of Military Force--the AUMF--passed by Congress after the September 11th attacks authorizes the president "to use all necessary and appropriate force" against those nations, organizations and individuals responsible for 9/11.  There is nothing in the AUMF that restricts the use of military force against al-Qa'ida to Afghanistan.

As a matter of international law, the United States is in an armed conflict with al-Qa'ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense.  There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.

Second, targeted strikes are ethical.  Without question, the ability to target a specific individual--from hundreds or thousands of miles away--raises profound questions.  Here, I think it's useful to consider such strikes against the basic principles of the law of war that govern the use of force.

Targeted strikes confrom to the principle of necessity--the requirement that the target have definite military value. . . .

Targeted strikes conform to the principle of distinction--the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. . . .

Targeted strikes confrom to the principle of proportionality--the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. . . .

Brennan also touched on the administration's internal checks and processes:

This leads me to the final point I want to discuss today--the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qa'ida outside the "hot" battlefield of Afghanistan.  What I hope to do is to give you a general sense, in broad terms, of the high bar we require ourselves to meet when making these profound decisions today.  That includes not only whether a specific member of al-Qa'ida can legally be pursued with lethal force, but also whether he should be. . . .

If our counterterrorism professionals assess, for example, that a suspected member of al-Qa'ida poses such a threat to the United States as to warrant lethal action, they may raise that individual's name for consideration.  The proposal will go through a careful review and, as appropriate, will be evaluated by the very most senior officials in our government for decision.

First and foremost, the individual must be a legitimate target under the law. . . .

Of course, the law only establishes the outer limits of the authority in which counterterrorism professionals can operate.  Even if we determine that it is lawful to pursue the terrorist in question with lethal force, it doesn't necessarily mean we should. . . .

As a result, we have to be strategic. . . .

For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests. . . .  I am not referring to some hypothetical threat--the mere possibility that a member of al-Qa'ida might try to attack us at some point in the future.  A significant threat might be posed by an individual who is an operational leader of al-Qa'ida or one of its associated forces.  Or perhaps the individual is himself an operative . . . .  Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack. . . . .

SDS

Texas Federal Judge Enjoins Rule Prohibiting Planned Parenthood Funding

In an opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.  Before moving to the preliminary injunction standard, Judge Yeakel quickly rejected the state's Eleventh Amendment immunity argument.

The bulk of Judge Yeakel's 25 page opinion is devoted to the unconstitutional conditions argument.  He concluded that the "affiliate" regulation was so broad that it infringed on plaintiffs First Amendment speech and associational rights.  Any state interest in "respect for fetal life after viability" was not adequately served by the extensive prohibition.  The argument that state funding "frees up" other money to provide abortions "extends too far." 

The judge also found the equal protection argument had merit.  By exempting hospitals, but applying the regulation to the 49 health centers, the regulation created a classification.  The classification itself only implicated rational basis scrutiny, but it did infringe upon a fundamental right, thereby meriting strict scrutiny.  In a very brief analysis, the judge expressed doubts whether the Texas regulation could satisfy even the lowest standard.

Finding the other factors for granting a preliminary injunction also weighed in favor of the plaintiffs, the judge enjoined the regulation and set a hearing for May 18.

UPDATE here

RR
[image: from PLanned Parenthood Ass'n of Hidalgo County via]

Complaint Against NYPD for Barricading OWS Protesters

The complaint filed today in the Southern District of New York in Berg v. Kelly (as NYC Police Commissioner), also naming as defendants a number of NYC Police Officers, claims violations of the First, Fourth, and Fourteenth Amendments for actions of the NYPD during an Occupy Wall Street (OWS) protest on November 30, 2011. The alleged facts are thet the NYPD detained the plaintiffs "for nearly two hours inside an interlocking metal barricade" and prohibited them from exiting the pen, although it allowed  "tourists and journalists to leave."

The real gravamen of the complaint, however, is that the NYPD violated its settlement in Stauber v. The City of New York, and the NYPD Patrol Guide provisions that the NYPD agreed to inserts in its manuals as a result of that settlement.  One such provision is alleged to be:

Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph.

Under this language, the facts alleged are certainly in violation, leaving the First, Fourth, and Fourteenth Amendment arguments ancillary.  Also compare the  European Court of Human Rights opinion from last month that found no violation by British law enforcement's practice of kettling during a demonstration.  

RR

[image: NYPD & Occupy Wall Street demonstration in September 2011 via]

Take-Home Con Law Exam?

A post on "above the law" reporting on and repeating a post on "top law schools" illustrates the dangers of a take-home exam. 

 

Subject: Con law help?

 

If the government tries to bar a woman from becoming president on textual grounds, what governmental purpose is being served?

 

"The post went up at 2:19 on Thursday. By 2:27 he had a response":

 

the purpose being served would be the one that wouldn’t have you posting questions about our take home con law exam on top law schools trying to get the answer.

 

Condolences to the ConLawProf who now has to sort this out.

 

RR

Sunday Book Review: American Politicians Confront the Court

In Law and Politics Book Review, Tom S. Clark reviews a timely book, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power by Stephen M. Engel.  Clark writes that "Engel’s argument is essentially that the terms of constitutional political debate have evolved over the past 220-plus years and that the nature of political confrontations with the Court bears witness to those patterns." 

Clark compliments Engels' historical and descriptive narrative,noting that his "knowledge of the content and nature of political attacks on the Court throughout American history is impressive."  He finds Engels' explanatory theory of the "displacement of civic republicanism with liberal pluralism" provocative.  But he wonders whether "the story is not that politics changed and as a consequence the Court has become “safe” from attacks on its legitimacy. Instead, the story could be that the Court has strategically taken steps to build a strong reputation among the public (the real source of power in American politics) and thereby cornered the politicians into a position where they can no longer actively threaten the Court, for fear of political reprisal from the public." 

Yet Clark's own suggestion that the Court has solidified its power beyond approach might be vulnerable. The most recent example is public criticism of Scalia's conduct in the oral arguments in Arizona v. United States.  There has also been a resurgence of interest in the question of whether Supreme Court Justices (and all federal judges) are guaranteed life tenure by the Constitution.

And in today's NYT "Sunday Review" prominent literary figure E.L. Doctorow essentially argues that the United States has become unexceptional: "indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world." Notable, Doctorow's essay begins and ends by focusing on the Supreme Court, with a healthy dose of Court-blaming in the middle.  Definitely worth a read for the way in which the Court is being implicated in political rhetoric.

Situating the current rhetoric in the history that Engels and Clark provide adds necessary depth to our contemporary understandings.

RR

Saturday Evening Review: The Missing Dissenting Opinion in Hosanna-Tabor by Professor Leslie Griffin

As a rule, there is something unsatisfying about a constitutional law opinion from the United States Supreme Court without a well-reasoned and scholarly dissent. 

The Court's opinion earlier this year in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is no exception to that rule, despite a  short concurring opinion by Justice Thomas and the much longer concurring opinion by Justice Alito in which Justice Kagan joined.   The Court in Hosanna-Tabor recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws, including the ADA.

Professor Leslie Griffin supplies the necessary countervailing arguments in her forthcoming article The Sins of Hosanna-Tabor, available on ssrn.  Professor Griffin (pictured left) who co-authored the Brief of Amici Curiae Law and Religion Professors in Support of Respondents and who appeared at the AALS Conference panel discussing the case was well-situated to provide a quick and thorough analysis, with excellent research that is mostly absent from the Court's opinions. 

Griffin's critique of the case is insightful and pointed, discussing the factual context and reorienting it as a retaliation case, providing some useful historical perspectives, and seeking to reconcile the 1990 case of Employment Division v. Smith.  As Griffin argues, after Hosanna-Tabor, "Individual religious believers are subject to the rule of Smith, while institutions are not. Institutional religious freedom allows the firing of ministerial employees for any reasons, even non-religious ones."  This does seem incoherent, although as Griffin notes, the "rule always favors employers."  

The broad insulation of religious employers from anti-discrimination laws for anyone who is deemed a minister  is the import of Hosanna-Tabor.  While the Court declined to decide exactly who is a minister, the implication seems to be that this determination must rest on the sincere belief of the employer, lest there be Establishment Clause issues.  The Court also declined to express a view "on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.”   Griffin uses her in depth knowledge of the area to explore the implications of this opening.

Griffin's article is worth reading for anyone teaching or writing about Hosanna-Tabor and should certainly be excerpted in Casebooks.   It's an important dissenting opinion.

RR

Has Scalia Crossed a Line in Arizona v. United States?

UPDATE: SCALIA's dissenting opinion and Court's June 25 decision here]

Justice Scalia, long known for his scathing written opinions, is under increasing scrutiny - - - and criticism - - - for his comments/questions during oral arguments.  The critiques focus on both content and tone of his performance on the Bench and are especially pronounced with regard to Arizona v. United States, the case involving the constitutionality of certain sections of Arizona's notorious immigration law known as SB1070.  As we discussed, the oral arguments seemed less about preemption (a sometimes technical and dry issue) and more about federalism and immigration policy unmoored from the statutory and Supremacy Clause considerations.

In a case about borders, several commentators are suggesting that Scalia needs to better monitor his own boundaries. 

For example, Dana Millbank in a Washington Post column compares Scalia's rhetoric to that of the "street protestors" stating that they were "nearly identical" in "tone and substance."  Millbank argues that although "[t]echnically, Scalia was questioning counsel," at times "he verged on outright heckling" of the Solicitor General. 

Similarly, in an article in UK's the Guardian, US political science professor Scott Lumieux notes that Scalia's remarks in Arizona v. United States were "yet more Fox News-style posturing by Scalia," continuing a pattern Lumieux also discusses from recent oral arguments including those concerning the constitutionality of the individual mandate provision of the ACA. 

And in a article entitled "Scalia Reveals How Little He Knows About Immigration Policy," Neil Pippenger in The New Republic refrains from characterizing Scalia's tone, but relates Scalia's "policy suggestion" intended to solve Mexico's objections:

“Well, can’t you avoid that particular foreign relations problem by simply deporting these people?”

A few people sitting near me gasped as Scalia continued: “Look, free them from the jails”—here, [Solicitor General] Verrilli tried to interrupt him, but the justice would not be cut off—“and send them back to the countries that are objecting!”

An mp3 and transcript of the oral arguments in Arizona v. United States is now available at Oyez, so one can hear and read the basis for such criticisms.  Of course, without visual broadcast, those not in the courtroom must rely on the representations of others in that regard.  However, the transcript and audio certainly lend credence to the critiques.

RR
[image: Justice Scalia at speaking engagement via]

House Republicans Move Toward Contempt Citation Against AG Holder

The LA Times reports that Representative Darrell Issa, Chair of the House Committee on Oversight and Government Reform, has drafted a 48-page contempt-of-Congress citation against AG Eric Holder for withholding documents related to the Committee's investigation into "Fast and Furious." According to the story, the Speaker gave the go-ahead to move the citation forward.

We posted most recently on contempt of Congress citations in the Miers, Bolton, and Rove cases and the alleged politicization of the Justice Department in the Bush administration. Those posts, with links to resources, are here and here.

SDS

Live Streaming of "Living Originalism" Conference

On April 27 and 28, 2012, Yale Law School will host a conference on constitutional interpretation and change in conjunction with the publication of Professor Jack Balkin’s book, Living Originalism (Harvard University Press 2011), with many exciting panelists.

Not at the conference?  Watch the live stream.

RR

Florida's Mandatory Drug Testing for State Employees Enjoined

Judge Ursula Ungaro of the Southern District of Florida has permanently enjoined the Executive of Order of controversial Florida Governor Rick Scott (pictured in caricature at right) requiring drug testing of all prospective state employees and random testing of all state employees in her opinion in AFSCME v. Scott.  

Scott's fondness for drug-testing has not fared well in the federal courts.  His previous efforts to have all public entitlement recipients drug-tested was similarly enjoined as unconstitutional last year.  In this opinion, Judge Ungaro distinguishes the drug-testing policies that were upheld under the Fourth Amendment as being tailored to address a specific, serious problem.  "In contrast, the rationale for the Governor’s policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace."  Judge Urango stated that his  "explanation of the EO’s concern with public safety offers a particularly telling example of the speculative nature of the public interest behind the testing policy," quoting from the brief that: 

Even a desk-bound clerk may become violent with other employees or the public, may present a danger when driving in a car in the workplace parking lot, or may exercise impaired judgment when encountering any of the myriad hazards that exist in the workplace environment (from stacks of heavy boxes, to high staircases, to files in high shelves, to wet floors, to elevators and escalators.)

For Judge Ungaro, "the Governor’s safety rationale for the EO essentially relies on the Governor's common sense belief that because illegal drug use exists in the general population, it must also exist among state employees."   Common sense as articulated by the state's governor is not weighed heavily in evaluating a drug-testing program, unsupported by any individualized suspicion, that is "judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

The judge also rejected the Governor's analogy to financial disclosure statements by government employees: "the Governor’s reasoning is hardly transparent and frankly obscure." 

Before reaching the substantive Fourth Amendment claim, the judge carefully considered the standing of AFSCME, a union, to bring the action.  Governor Scott argued that the union did not suffer an "injury in fact" because only the individuals who actually have a Fourth Amendment right are injured, not an association.  However, the judge found convincing the union's argument that it would have to devote considerable energy to representing individual union members selected for testing and will have to devote similar energies to engage in collective bargaining on the issue, deflecting its energies from other issues.  Moreover, the judge found the union had associational standing to assert the rights of its members.  As to new hires, who are not union members, the judge found that the new hires could be union members by the time of the testing, and that new hires included union members who were applying for transfers or promotions.

This well-crafted opinion is certainly a blow to Governor Scott's controversial and somewhat breezy approach to law.  Rather than appeal to the Eleventh Circuit, perhaps Scott will attempt a more carefully crafted Executive Order.

RR
[image: Caricature of Governor Rick Scott by DonkeyHotey via]

 

President Obama Expands Drone Authority in Yemen

President Obama this month authorized expanded use of drones in Yemen, according to reports in the Wall Street Journal and Washington Post.  Under the expanded authority, the CIA and the U.S. Joint Special Operations Command can use drones to fire on targets based only on their "signatures"--those patterns detected through intelligence that indicate that a target is an operative or otherwise poses a threat against U.S. interests.  Prior to the expansion, the CIA and USJSOC only had drone authority in Yemen to fire on targets based on individual identity and close vetting, so-called "personality" strikes.

The administration has yet to provide a comprehensive legal justification for its use of drones in Yemen--which last September killed alleged terrorist Anwar al-Awlaki and, mistakenly, his non-targeted son.  AG Eric Holder gave us all the legal justification we know (on the pre-existing Yemen drone program, not the expanded one) in a speech last month; we covered that speech here. 

Bruce Ackerman argued in Sunday's Washington Post that expanded drone use in Yemen exceeds congressional authorization under the AUMF.

According to reports, the expanded authority in Yemen still falls a little short of the broader drone authority in Pakistan.

SDS

Padilla Takes Torture Case to Supreme Court

Jose Padilla filed a cert. petition with the Supreme Court this week, asking the Court to review the Fourth Circuit's ruling rejecting his Bivens claim against former Defense Secretary Donald Rumsfeld and other officials allegedly involved in his torture.

This case could be a first foray for the Court into the spate of cases since the attacks of 9/11 that allege torture by U.S. government officials and their private-sector collaborators.  In particular, despite several similar Bivens cases percolating in the lower courts, the Supreme Court has yet to rule on this precise question: Whether a U.S. citizen can sue government officials for torture while in military custody, when the detention may (or may not) be related to national security.  (We last posted on one of these cases, Vance v. Rumsfeld, recently argued before the en banc Seventh Circuit.  (The three-judge panel ruled that the plaintiffs' torture suit could move forward.))  The Court has also not yet taken up a case involving another barrier to torture suits, the state secrets privilege.

Padilla sued Rumsfeld, et al., for violation of his rights, and authorization of violation of his rights, while he was detained at the Naval Brig in Charleston, South Carolina, for two years as an "enemy combatant."  Padilla sued under Bivens, the 1971 case authorizing an individual cause of action against federal officers for violations of the Fourth Amendment; subsequent cases have restricted Bivens claims when "special factors" counsel against a judicial remedy. The defendants moved to dismiss the case, arguing just that--that "special factors" counseled against a Bivens remedy.  The district court dismissed the case (on this ground, and also on qualified immunity grounds), and the Fourth Circuit affirmed.

Padilla, represented by Ben Wizner and a team at the ACLU, argues that the Fourth Circuit's ruling is contrary to Carlson v. Green (1980), a case extending the Bivens remedy to a prisoner's Eighth Amendment claim that federal officers were deliberately indifferent to his mistreatment in federal custody:

Petitioners' claims here fall squarely within the heartland of Bivens and Carlson.  As in Carlson, petitioners allege mistreatment while in federal custody.  And as in both Bivens and Carlson, the traditional circumstances for permitting Bivens relief are plainly present: petitioners seek to hold individual federal officers accountable for grave abuses of a prisoner in federal custody, and there is no adequate alternative remedy.

Padilla also argues that the Fourth Circuit effectively turned the Bivens "special factors" analysis into an executive trump card in military matters, weildable any time somebody tries to sue the military.  Padilla says that this is a misreading of Bivens and the Court's precedents, which show that "special factors" "embody judicial deference to the legislative, rather than the executive, prerogative."  Padilla also argues that it frustrates checks-and-balances and undermines principles of separation-of-powers (by allowing too much power to be consolidated, unchecked, in the executive).

SDS

Oral Argument in Arizona v. United States

The oral argument today in the closely watched Arizona v. United States, involving the constitutionality of several provisions of Arizona's notorious SB 1070 that the DOJ argues are pre-empted by federal law and which the lower courts agreed.  

These four provisions at issue are:

•     Section 2(B): requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully;
•     Section 3: criminalizes the failure to carry an “alien registration document;'"
•     Section 5(C): criminalizes undocumented immigrants applying for employment or being employed;
•     Section 6:  authorizes warrantless arrests if based upon probable cause that a person has committed a deportable crime.

 

During the oral argument Justice Sotomayor quickly interrupted Paul Clement, arguing for Arizona,with a focus on the controversial stop provision:

JUSTICE SOTOMAYOR: -- could I interrupt, and turning to 2(B), could you tell me what the State's view is -- the Government proposes that it should be read on its face one way, and I think the State is arguing that there's a narrower way to read it. But am I to understand that under the State's position in this action, the only time that the inquiry about the status of an individual rises is after they've had probable cause to arrest that individual for some other crime?

Sotomayor persisted raising the "critical" issue of how long and under what circumstances the state would detain someone.  After some discussion, including queries by Justices Ginsburg and Breyer, Justice Scalia asked whether any such problems were "immigration" problems or Fourth Amendment problems.  Yet the questions on 2(B), in conjunction with Section 6, continued to dominate, until Justice Roberts shifted the inquiry:

CHIEF JUSTICE ROBERTS: Counsel, maybe it's a good time to talk about some of the other sections, in particular section 5(C).  Now, that does seem to expand beyond the Federal government's determination about the types of sanctions that should govern the employment relationship.

You talk about supply and demand. The Federal government, of course, prohibits the employment, but it also imposes sanctions with respect to application for work. And the State of Arizona, in this  case, is imposing some significantly greater sanctions.

Clement admitted that Arizona was imposing "different" sanctions, but that the state only targeted employment that was already prohibited by federal law, making it a "weak case for preemption."  Later, Clement answered another question from Justice Sotomayor by saying that there was a "big difference" between "Congress deciding not as a matter of Federal law to address employees with an additional criminal prohibition, and saying that that decision itself has preemptive effect. That's a rather remarkable additional step."   He then essentially argued that the Congressional immigration statutes were out-of-date.

Roberts again took charge and turned the argument to Section 3, the state crime of failure to carry a registration document, which Clement argued was "parallel" to the federal requirements. 

Arguing for the United States, Solicitor General Verrilli had barely finished "may it please the Court," when Chief Justice Roberts posed this query:

CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.

When Verrilli answered "That's correct,"  Roberts again repeated his statement:

CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.

Justice Scalia quickly articulated a states rights perspective.  Responding to the federal government's position that "the Constitution vests exclusive authority over immigration matters with  the national government," Scalia asked:

1. JUSTICE SCALIA: All that means, it gives authority over naturalization, which we've expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Chief Justice Roberts explicitly stated "I don't see the problem with section 2(B)," perhaps explaining his earlier effort to clarify that the case was not about "racial profiling." 

Yet the argument did return to this issue.

VERRILLI: . . . . Now, we are not making an allegation of racial profiling; nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. It stands to reason that the legislature thought that that wasn't sufficient and there needed to be more.
And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully --

JUSTICE SCALIA: Sounds like racial profiling to me.

GENERAL VERRILLI: And they're -- and given that what we're talking about is the status of being unlawfully present --

JUSTICE SOTOMAYOR: Do you have the statistics as to how many arrests there are and how many -- and what the -- percentage of calls before the statute [SB1070]?

The discussions of preemption were often less focused on Congressional intent than on generalized federalism concerns, although at one point Chief Justice Roberts seemed to highlight the only precedent that mattered.  Attempting to engage in an analogy, Verrilli argued:

1. . . . . if you ask one of your law clerks to bring you the most important preemption cases from the last years, and they rolled in the last -- the last hundred volumes of the U.S. Reports and said, well, they are in there. That -- that doesn't make it --

2. CHIEF JUSTICE ROBERTS: What if they just  rolled in Whiting?

(Laughter)

CHIEF JUSTICE ROBERTS: That's a pretty good one.

The analogy was never completed. 

But if Arizona v. United States mimics Chamber of Commerce v. Whiting, decided last May and upholding the Legal Arizona Workers Act, we can expect a fractured opinion ultimately finding in favor of Arizona.

RR

Canadian Perspectives on Revisiting Roe v. Wade

Canadian Law Prof Sonia Lawrence (pictured right) starts her Jotwell post "Womb as Wedge" this way:

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

Questions worth asking, certainly. 

    But Lawrence quickly dismisses this view as smug and self-satisfied. In her review of Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available on ssrn, Lawrence confirms the Greenhouse and Siegel view that "the focus on Roe is not just a faulty conclusion – it is a rhetorical strategy in and of itself."  And increasingly, it is not a strategy confined to the United States.

    Indeed, Lawrence argues that abortion law and politics in both Canada and the UK have become "Americanized," discussing Carol Sanger's recent lecture, as well as a motion to reconsider Canada's criminal code defining human being to be debated April 26.

    Thus, in a relatively short piece, Lawrence offers more "new questions" about "backlash" and Roe v. Wade," providing essential comparative constitutional law perspectives.

RR

 

Preview of Oral Arguments in Arizona v. United States

The Supreme Court will hear oral arguments in Arizona v. United States on the issue of the constitutionality of Arizona's notorious SB 1070, signed into law by Governor Jan Brewer two years ago.  The law was controversial from the beginning for a variety of reasons, but the case before the Court focuses on the pre-emption issue as brought before the federal courts by the Department of Justice. 

The DOJ was mostly successful in the lower courts.  The Court granted the review sought by Arizona of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070.  We've previously outlined some of Arizona's arguments on certiorari.

The oral arguments have attracted much attention.  Lyle Dennison at SCOTUSblog has a lengthy, detailed, and incisive analysis, though many readers will be most interested in his outcome bottom line: "With Justice Kagan not taking part, a 4-4 split among those who are taking part would simply uphold — without a written opinion — the Ninth Circuit decision barring enforcement of the four provisions at issue."  Kevin Johnson posts over at Immigration Law Prof blog and surfaces an interesting possible outcome.  Findlaw has a quick review, ACS has a good discussion, and The Tuscon Sentinel has particularly excellent discussion in a "primer."  The NYT has a great graphic of copy-cat SB 1070 statutes in other states.

After the oral argument, there is sure to be much analysis, prediction, and the inevitable wait for the opinion due before the end of the term.

And of course, political responses.  Given that the Court's task is the interpretation of a statute and that the "touchstone" of preemption is Congressional intent, Congress can always legislate.  While immigration legislation is never easy, at least one Senator is vowing to propose a statute including what seems to be express preemption.

RR

Ninth Circuit: Failure to Warn Claim Against Med Device Maker Preempted

A sharply divided three-judge panel of the Ninth Circuit ruled earlier this week in Stengel v. Medtronic, Inc. that the plaintiffs' state law failure-to-warn claim based on Medtronic's failure to provide disclosures to the FDA is impliedly preempted under the Medical Device Amendments of 1976 to the Food, Drug and Cosmetic Act.

The ruling deepens a circuit split, aligning the Ninth Circuit with the Eighth, and against the Fifth. It also leaves little, if any, daylight for a state law claim paralleling the MDA in the Ninth Circuit.

The case grows out of Richard and Mary Lou Stengel's claim against Medtronic for damages for injuries from a premarket approved medical device. The Stengels claimed, among other things, that Medtronic failed to report problems with the device; their proposed amended complaint read:

Under federal law and regulation, [Medtronic] was under a continuing duty to monitor the product after premarket approval and to discover and report to the FDA any complaints about the product's performance and any adverse health consequences of which it became aware and that are or may be attributable to the product.

The Stengels filed a state failure-to-warn claim, which paralleled the FDA reporting requirement, in state court, and Medtronic removed to federal court.

The Ninth Circuit ruled that the Stengels' state failure-to-warn claim was impliedly preempted under the MDA under Buckman Co. v. Plaintiffs' Legal Committee (2001). Buckman held that state fraud-on-the-FDA claims were preempted under the FDCA. The majority in Stengel said those claims were the same as the Stengels' claim for preemption purposes:

The Stengels' theory is that if Medtronic had acted wtih reasonable care in complying with the regulations that required it to provide information to the FDA, the FDA would have required Medtronic to warn physicians about the danger of inflammation connected to its pump and Stengel could have avoided the infury caused by the pump. This is precisely the same theory that was rejected in Buckman. The only difference is that, in Buckman, the defendant allegedly misinformed the FDA overtly by providing false information, whereas here the defendant allegedly misinformed the FDA tacitly by failing to report information that it had a duty to report. The policing of such conduct in both instances is committed exclusively to the federal government, and recognizing a state cause of action based on such conduct would conflict with the statutory scheme established by Congress.

Judge Noonan wrote in dissent that the Supreme Court specifically said in Medtronic, Inc. v. Lohr (1996) that state common law duties could parallel the MDA, so long as they were not expressly preempted by the MDA. The Court restated this in Riegel v. Medtronic (2008). Judge Noonan wrote that nothing in Buckman limited this statement, and that Riegel demonstrated its continuing validity.

Although the ruling this week leaves a theoretical opening for a state law claim that parallels the MDA, under the majority's approach it's hard to see what it is.

SDS

Federal Cockfighting Prohibition Survives Commerce Clause and Equal Protection Challenge

In two opinions issued today - - - United States v. Lawson and United States v. Gilbert  - - - the Fourth Circuit has upheld the federal prohibition against animal fighting, 7 USC §2156.

The animal fighting statute provides  "it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture" and defines an "animal fighting venture" as

any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment . . . .

The defendants/appellants argued that the statute exceeded Congressional power under the Commerce Clause. 

The Fourth Circuit opinion in Gilbert, however, had "no difficulty concluding that Congress acted within the limitations established by the Commerce Clause in enacting the animal fighting statute."   Writing for a unanimous panel, Judge Barbara Milano Keenan stated that there was "a substantial relation to interstate commerce,"  unlike the statutes invalidated in United States v. Lopez (1995) and United States v. Morrison (2000).  Extensively discussing Congressional findings and legislative history, she concluded that "the link between animal fighting ventures and its effect on interstate commerce is not attenuated."  

Rather, the link is direct, because animal fighting ventures are inherently commercial enterprises that often involve substantial interstate activity. Thus, in contrast to the statute at issue in Lopez, there is no need to "pile inference upon inference" in order to establish the link between animal fighting and interstate commerce.

In sum, our task is simply to determine, with a presumption of constitutionality in mind, whether there is a rational basis for concluding that the practice of animal fighting, when conducted for "purposes of sport, wagering or entertainment," substantially affects interstate commerce.

The opinion rejected the argument that a defendant required scienter regarding the affect on interstate commerce, an argument that was expanded in the companion case of Lawson. 

In Lawson, the defendants/appellants added to the Commerce Clause argument an argument pursuant to the Fifth Amendment's equal protection component.  The focus was on the varying scienter requirements depending upon state law.  Under the animal fighting statute, if a defendant lives in a jurisdiction where gamefowl fighting is legal under the laws of that jurisdiction, the government must prove as an additional element of the offense that the defendant knew that at least one bird in the fighting venture traveled in interstate or foreign commerce.  In contrast, if a defendant lives in a jurisdiction that prohibits gamefowl fighting, the government need only prove that the defendant sponsored or exhibited an animal in an animal fighting venture, irrespective whether the bird traveled in interstate or foreign commerce.

In an opinion again authored by Judge Keenan, the panel applied rational basis scrutiny and found that the classification amongst residents of various states was rationally related to a legitimate purpose.  Although, as Judge Keenan noted, "cockfighting is illegal in all 50 States and the District of Columbia," it is legal in several United States territories such as Guam and Puerto Rico.  The increased statutory burden for prosecutions in "states" (including territories) merely reflects "the decision of Congress to accommodate principles of federalism, a concern that unquestionably is a legitimate governmental interest." 

Although not successful on the facial constitutional attack to the statute, the court did rule in Lawson that there were reversible errors in the trial.  The panel concluded that the government has failed to demonstrate that a juror’s misconduct did not affect the verdict with respect to the violations of the animal fighting statute and vacated the defendants’ convictions for violating the animal fighting statute, while upholding other convictions. 

These companion cases are carefully reasoned and nicely structured, with solid yet relatively concise analysis.  They take the Commerce Clause and equal protection arguments seriously, even if they are ultimately rejected. 

RR
[image: "Cock-fighting Match" by John Kay, circa 1826, via]

Occupy Wall Street, the NYC Federal Building, and a New "1st Amendment Rights Area"

Near Wall Street, and thus near "Occupy Wall Street," is the National Memorial Federal Hall.  As the National Park Service describes it, Federal Hall is "The Birthplace of American Government":

Here on Wall Street, George Washington took the oath of office as our first President, and this site was home to the first Congress, Supreme Court, and Executive Branch offices. The current structure, a Customs House, later served as part of the US Sub-Treasury. Now, the building serves as a museum and memorial to our first President and the beginnings of the United States of America.

A new (and perhaps temporary) addition to Federal Hall is a dedicated "1st Amendment Rights Area," on the lower left hand side of the diagram below:

As Timothy Zick noted several years ago, "governments have begun to partition and segment expressive venues. The state, through spatial tactics, is actively creating distinct, tactical places for expressive activity. Spatial tactics are giving rise to what we might consider particular architectures of place."  Zick's 2008 book Speech Out of Doors is a terrific discussion of this type of free speech "zoning."

RR

Ninth Circuit: Arizona Proof-of-Citizenship for Registration Unconstitutional

The en banc Ninth Circuit this week in Gonzalez v. Arizona overturned Arizona's requirement that prospective voters in Arizona provide proof of U.S. citizenship in order to register.  But the court also upheld the state's requirement that registered voters show ID to cast a ballot at the polls.

The case is the latest ruling on Arizona's many attempts to clamp down on illegal immigration--just a week before the Supreme Court will hear arguments on Wednesday on S.B. 1070.  It's also the latest ruling on the many attempts in the states to tighten registration and voting requirements.  The case suggests that states may face difficulties in tightening registration requirements for federal elections, even if they have flexibility in enacting voter ID laws at the polls.  (The Supreme Court rejected a Fourteenth Amendment Equal Protection challenge to Indiana's voter ID law in 2008 in Crawford v. Marion County.  Under Crawford, voter ID laws are subject merely to a balancing test--at least unless plaintiffs can show that a particular voter ID law creates a much more significant barrier to voting than the plaintiffs demonstrated in Crawford.)

The Ninth Circuit ruled that Arizona's registration provision conflicted with the National Voter Registration Act of 1993, and that the NVRA superceded Arizona's registration provision.  The NVRA prescribes three ways that states can register voters for federal elections: application with an application for a driver's license; mail application using a federal form designed by the Eelection Assistance Commission; and in-person registration.  The NVRA also requires states to create a combined driver's license and voter registration form, and it delegates to the EAC the creation of a nationally uniform Federal Form for mail and in-person registration for federal elections.  (The key language: the NVRA says that states must "accept and use" the Federal Form developed by the EAC.)  States may (but are not required to) create their own forms for federal elections, so long as those forms meet NVRA criteria.  (State forms do not replace the Federal Form; the Federal Form is still required.)

The NVRA says that the Federal Form "may require only such identifying information . . . as is necessary to enable the [state] to assess the eligibility of the applicant."  It also says that the Federal Form must include an "attestation that the applicant meets [citizenship requirements]."  Under the NVRA, the EAC created a Federal Form that asks "Are you a ctiizen of the United States of America?"  The Form says that an applicant should not complete the form if he or she answered no.

While neither the NVRA nor the EAC Federal Form requires proof of citizenship (beyond the attestation), Arizona's Proposition 200 does.  It says that "[t]he county recorder shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship."  (Arizona's requirement applies to both the Federal Form and to the state form.  The EAC earlier rejected Arizona's proposal to modify the Federal Form consistent with Prop 200.)  Arizona's Prop 200 thus goes beyond and adds to the requirements of the NVRA and the EAC Federal Form.

The court ruled that the additional ID requirement in Arizona's Prop 200 conflicted with the NVRA and the EAC Federal Form.  It sais that the NVRA doesn't give states room to add to the Federal Form--exactly what Prop 200 sought to do.  And because Congress enacted the NVRA under the Elections Clause, the NVRA trumps Arizona's law.  The Elections Clause says that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  The court ruled that a valid enactment under the Elections Clause, like the NVRA, preempts conflicting state law, with no presumption against preemption (as in more traditional preemption cases, under the Supremacy Clause, because the Elections Clause does not require the same kind of balancing of federalism concerns). 

But while the court ruled the registration provision unconstitutional, it upheld the voter ID provision against challenges under Section 2 of the Voting Rights Act, the 24th Amendment, and the Fourteenth Amendment Equal Protection Clause.  As to the Section 2 challenge, the court said that the plaintiffs failed to produce evidence showing that "Latinos' ability or inability to obtain or possess identification for voting purposes . . . resulted in Latinos having less opportunity to participate in the political process and to elect representatives of their choice."  As to the constitutional challenges, the court applied a Crawford-like balancing analysis and upheld the law.

Chief Judge Kozinski wrote in concurrence that "this is a difficult and perplexing case," and that the "statutory language we must apply is readily susceptible to the interpretation of the majority, but also that of the dissent."  He concurred in full, even though he dissented in the prior three-judge panel.  (He explains why on page 4196.)

Judge Berzon, joined by Judge Murguia, concurred but suggested that the plaintiffs could make out a Section 2 case against voter ID, but that under the current record they didn't.

Judge Pregerson concurred and wrote that the plaintiffs did make out a Section 2 case against voter ID.

Judge Rawlinson, joined by Judge Smith, concurred on voter ID, but dissented on the registration requirement.

SDS

Court Limits Torture Act to Natural Persons

A unanimous Supreme Court ruled yesterday in Mohamad v. Palestinian Authority that the Torture Victim Protection Act applies only to natural persons, not organizations.  The ruling means that torture victims cannot bring claims under the TVPA against anyone (or anything) other than an individual, natural person--and thus ensures that plaintiffs can use the TVPA in only a very narrow category of cases.  That's because torture victims often cannot identify their individual torturers, although they can identify the organization with which their torturers are affiliated.

Azzam Rahim's relatives filed this claim under the TVPA against the Palestinian Authority, alleging that the Palestinian Authority imprisoned, tortured, and killed Rahim.

Justice Sotomayor wrote for the Court that the term "individual" in the TVPA meant only a natural person, not an organization like the Palestinian Authority.  The TVPA says,

An individual who, under actual or apparent authority, or color of law, of any foreign nation --

(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.

The Court examined the plain language of the statute and other similar statutory provisions that distinguish between an "individual" (as a natural person) and an organizational entity of some kind and concluded that "individual" means only a natural person.  The Court also rejected the plaintiffs' arguments based on legislative history and the need for a judicial remedy.

The ruling limits TVPA remedies for torture victims, because victims often cannot identify their individual torturers (although they can identify the organization with which their torturers are affiliated).  (The Court cited evidence from the legislative history that suggests Congress intended that the Act apply only narrowly, in few cases.)

Congress, of course, can change the TVPA to cover organizations and corporations.  As the Court noted, "[t]here are no doubt valid arguments for such an extension."

This case is related to another torture case now before the Court, Kiobel v. Royal Dutch Petroleum.  In that case, the plaintiffs filed a claim under the Alien Tort Statute (not the TVPA) against a corporation for human rights abuses in another country.  The original issue was whether the ATS applied against corporations--an issue similar to the question in Mohamad, but under a different statute.  The Court, however, ordered reargument next term on the question whether the ATS applies to actions outside the United States.  The new question adds another layer to the case and provides another basis on which the Court could deny relief to the plaintiffs.  If so, the Court will have interpreted two important human-rights-protecting statutes narrowly and thus significantly limited judicial remedies for torture victims in U.S. courts. 

Again, though: Congress could change all this.

SDS