Constitutional Law Prof Blog

Greenhouse on Ginsburg on Gender on Coleman v. Maryland: Worth Reading

The inimitable Linda Greenhouse has a provocative column entitled "Women's Work" which takes up the continuing relevance of gender politics - - - and a gender divide - - - on the Supreme Court.  Her subject is the Court's 5-4 opinion last month in Coleman v. Court of Appeals of Maryland.

Coleman's consitutional issue involved the Eleventh Amendment, which may at first blush seem an odd grounding for gender equality, until one recalls cases such as Nevada Department of Human Resources v. Hibbs (2003).  As Greenhouse reminds us, Rehnquist's opinion for the majority in Hibbs was rather suprising.  Not only did it reverse the Court's trend to "diss Congress" (as Ruth Colker and  James Brudney so evocatively phrased it in their terrific 2001 article), but also construed Congressional intent in the Family Medical Leave Act (FMLA) as addressing  “the pervasive sex-role stereotype that caring for family members is women’s work.” 

Greenhouse states she'd "love to know" how Rehnquist would have decided Coleman, involving the self-care provision of FMLA.  She criticizes Kennedy's opinion for the Court as ignoring the legislative history that Ginsburg so meticulously discussed in the dissent and that was central to Hibbs. (Of course, one might also recall that Kennedy also dissented in Hibbs).

And, while we are used to thinking about a "liberal" v. "conservative" split on the Court, Greenhouse highlights another split: "the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority."  

One of those five men in the majority is Alito, who one might recall, replaced Justice O'Connor.  O'Connor joined the majority in Hibbs, so perhaps it is reasonable to believe that she would have joined Ginsburg's view regarding the importance of sex-role stereotyping in the FMLA, extended to the self-care provision.

But one might also recall that before Justice Alito, there was nominee Harriet Miers.  One wonders how she might have voted.

RR
[image: WWII government poster via]

Loyola's Third Annual Con Law Colloquium

Loyola University Chicago School of Law is organizing the Third Annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 2 and end midday on Saturday, November 3, 2012.

This is the third annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Unless we are overwhelmed, we hope to be able to schedule presentations for all who submit.  In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.

The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching at the university, law school, and graduate levels on matters of constitutional law. We welcome applications from full-time, part-time, and adjunct faculty members, as well as post-doctoral fellows from academic discipline related to the study of constitutional issues (anthropology, history, law, literary criticism, philosophy political science, sociology, etc.).

Application Procedure: The registration and abstract submission deadline is May 31, 2012. Conference organizers will select abstracts on a rolling basis.

Registration at:  http://www.luc.edu/law/conlawcolloquium/2012_conference/

SDS

Private Attorney Retained for Government Investigation May Seek Qualified Immunity

A unanimous Supreme Court ruled on Tuesday in Filarsky v. Delia that a private person temporarily hired by the government to perform an internal investigation may seek qualified immunity from a civil rights suit arising out of his investigation.  The ruling sends the case back to the lower courts to determine whether the private person, Filarsky, is actually immune under qualified immunity principles.

The case arose out of a strangely aggressive investigation of a relatively minor incident.  Delia, a City of Rialto (Cal.) firefighter, missed work after becoming ill on the job.  When the City became suspicious (after someone saw Delia buying building supplies) it initiated an internal investigation and hired Filarsky, a private attorney, to conduct it.  As part of the investigation, Filarsky asked Delia to allow fire department officials to enter Delia's home to take a look at the unused building materials.  When Delia refused, Filarsky ordered him to bring the materials out of his home for the officials to see.

Delia sued the City, the fire department, City officials, and Filarsky for civil rights violations under Section 1983.  The lower courts granted qualified immunity to all individual defendants, but the Ninth Circuit ruled that Filarsky didn't qualify--because he was a private attorney, not a City employee.

Chief Justice Roberts wrote for a unanimous Court.  He applied the familiar test--looking to the general principles at common law in 1871, when Congress passed Section 1983, and the reasons that the Court has extended immunity under Section 1983 suits--and concluded that Filarsky could claim qualified immunity.

Chief Justice Roberts wrote that lines between government employment and private practice weren't so clear for attorneys in 1871, and that private attorneys often performed government functions, and vice versa.  As a result, "it should come as no surprise that the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities."  Op. at 8.  And "[i]ndeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself."  Op. at 10.  Moreover, the principal reason for qualified immunity, avoiding "unwanted timidity" in performance of public duties, applied equally to Filarsky.  Thus, Chief Justice Roberts wrote, Filarsky could claim qualified immunity.

Justice Ginsburg wrote a concurrence, emphasizing that the lower courts now have to determine whether Filarsky's conduct violated a "clearly established" right--and therefore whether he's actually immune.  Justice Sotomayor wrote a concurrence, saying that this case doesn't mean that all private individuals working temporarily for the government may claim qualified immunity, or that they all may not.  According to Justice Sotomayor, "[t]he point is simply that such cases should be decided as they arise, as is our longstanding practice in the field of immunity law."

SDS

No Preliminary Injunction Against Federal Pay-to-Play Ban

Judge James E. Boasberg (D.D.C.) yesterday denied the plaintiffs' motion for a preliminary injunction in their facial First Amendment challenge against the federal ban on contractor donations to candidates for federal office, political committees, and parties in connection with federal elections. 

The case, Wagner v. FEC, arose out of three federal contractors' claims that the so-called pay-to-play ban violates free speech.  The contractors refiled their claim in federal district court after they agreed to abandon their expedited en banc review at the D.C. Circuit (permitted under the FECA).  They argued that the ban violates the First Amendment and Fifth Amendment equal protection and sought a preliminary injunction.

Judge Boasberg denied the injunction, ruling that they lacked a likelihood of success on the merits of either claim.

Judge Boasberg applied "closely drawn" scrutiny, not strict scrutiny, to the ban and ruled that it served a sufficiently important interest and was closely drawn to achieve that interest.  As to the interest, Judge Boasberg wrote that "[t]here can thus be no doubt that preventing 'pay-to-play' deals or pressure on contractors to give--or the appearance that either is occurring--is sufficiently important to warrant restrictions on political contributions by federal contractors."  As to "closely drawn," Judge Boasberg looked to the history of the ban:

When Congress first enacted the ban on political contributions by federal contractors, it was responding to a recent history of corruption.  As just discussed, the ban was originally passed in 1940 on the heels of the "campaign-book racket," in which those seeking government contracts were effectively required to buy copies of the Democratic campaign book at highly inflated prices in order to secure government business.  In the wake of this scandal, it was eminently reasonable for the legislature to ban contributions by federal contractors.  Doing so would not only insulate prospective contractors from pressure to give money to politicians, but it would also help ensure a merit-based system of awarding contracts and "reassure[] citizens that its politicians are acting on their behalf and not on behalf of the highest bidder."  Because . . . Congress reacted to recent scandals in imposing the ban on contractor contributions, its restrictions are more easily characterized as closely drawn. . . .

An absence of [current] corruption does not necessarily mean, however, that the ban is no longer needed.  It could simply be an indication that the ban is working.

Op. at 11-12.  Judge Boasberg also looked to the contractors' other ways of expressing political support and association as a factor suggesting that the ban is a good fit for the government end.  (Note that the ban allows contracting corporations to donate by way of their PAC.)

As to equal protection, Judge Boasberg ruled that intermediate scrutiny applied, and that the contractors did not demonstrate a likelihood of success in comparing their ban to FECA treatment of government employees, contracting corporation officers or PACs, or sole proprietor contractors--all of whom may contribute.  Judge Boasberg said that these others did not raise the same kind of problems that contracting corporations raised, and that these retained their own distinct identity (and could contribute under their distinct identity).

SDS

Police Officer Has No First Amendment Right to Complain of Police Quotas for Stops

Judge Barbara Jones has dismissed the complaint a New York City police officer challenging adverse employment actions because of his criticisms of police quotas in her opinion in Matthews v. City of New York.  The Complaint alleged that the 42^nd Precinct in New York City had a quota system responsible for  unjustified stops, arrests, and summonses.  

According to the Complaint, Matthews brought the policy to the attention of commanding officers on several occasions, after which he was subject to retaliation.  Obviously, this raises the specter of Garcetti v. Ceballos, decided by the Court in 2006.  But for judges in the Second Circuit, it also implicates Jackler v. Byrne, in which the court decided that Jackler, once a probationary police officer in Middletown, New York, may proceed with his suit claiming his termination was in retaliation for his exercise of his First Amendment rights. Jackler witnessed officers assault a suspect; he was subject to repeated attempts to force him to withdraw the truthful report he had filed and to submit one that was false.   Jackler arguably conflicts with Bowie v. Maddox from the DC Circuit; the United States Supreme Court declined petitions for certiorari in both cases earlier this year.

In Matthews, Judge Jones stated that there was no dispute that Matthews’ speech involved a matter of public concern, citing Jackler v. Byrne for the proposition that police malfeasance implicates matters of public concern.  But, the judge continued, the remaining question was whether Matthews spoke as a citizen, rather than as an employee.  In concluding that Matthews spoke as an employee, she reasoned that his complaints to his supervisors were consistent with his “core duties” as a police officer- to legally and ethically search, arrest, issue summonses, and to “police.” 

She distinguished Jackler, albeit not very convincingly, by reasoning that Jackler did not rely upon a “civilian analogue.”   Instead, she reasoned that it is merely true that when an employee engages in citizen speech there is a civilian analogue.  Since Matthews was speaking pursuant to his duties, there was no true civilian analogue.  Concomitantly, no First Amendment protection. 

With New York City's stop and frisk practices under increasing scrutiny of late, including a reported investigation by the New York State Attorney General, Matthews complaints might yet be heard.

RR
[image: NY Municipal Police 1873 via]

Elhauge: The Founders Supported Health Insurance Mandates

Einer Elhauge (Harvard) writes in The New Republic that the Founders supported health insurance mandates in his piece If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?--and that therefore so should the Court.

According to Elhauge, the Founders supported health insurance mandates twice.  Here's what he has to say:

In 1790, the very first Congress--which incidentally included 20 framers--passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen.  This law was then signed by another framer: President George Washington.  That's right, the father of our country had no difficulty imposing a health insurance mandate. . . .

[L]ater, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays.  And you know what this Congress, with five framers serving in it, did?  It enacted a federal law requiring the seamen to buy hospital insurance for themselves.  That's right, Congress enacted an individual mandate requiring the purchase of health insurance.  And this act was signed by another founder, President John Adams.

Moreover, Elhauge argues that because the founders approved of health insurance mandates, they must certainly be proper (as in Necessary and Proper) in the PPACA.

SDS

Rehnquist on Jefferson - - - and life tenure on the Supreme Court

For the anniversary of the birth of Thomas Jefferson, born in Virginia April 13, 1743, one might celebrate by reading any number of books and articles about Thomas Jefferson's life, theorizing, and work, including The Hemingses of Monticello by Annette Gordon-Reed. 

There is also this small gem from Chief Justice William Rehnquist, writing in 1993: Thomas Jefferson and his Contemporaries, 9 Journal of Law & Politics 595 (available on hein, lexis, and westlaw).  Situating Jefferson in the controversies of the time, Rehnquist discusses the election of 1800, the impeachment trial of Justice Salmon Chase, and the oft-forgotten trial of Aaron Burr for treason over which Justice John Marshall presided.   Rehnquist wrote:

Jefferson reacted to Marshall's rulings by intimating that by quashing certain evidence, Marshall had intended from the very beginning of the trial to acquit Burr. His private letters refer to the “will of the judge”, “chicanery”, and, perhaps his lifelong favorite characterization of any Marshall ruling—“sophistry.” Jefferson proposed a remedy for what he saw as improper judicial partisanship, first by suggesting privately the necessity for a constitutional amendment to make it easier to remove federal judges, and second, by making a thinly veiled threat against Marshall in his annual message to Congress. Despite these suggestions and despite the introduction of a number of proposed amendments to change the judiciary's life tenure or make removal easier, Jefferson did not press the issue and Congress let the matter lie. . . . the struggle between the judiciary and the other two branches during Jefferson's presidency resulted in “a sort of drawn battle,” with no real change to the status quo ante bellum.

This "sort of drawn battle" is still ongoing.  There are many recent suggestions (e.g., here here) that federal judges should no longer have life tenure.  Controversial cases such as Bush v. Gore, Citizens United, and the pending ACA decision - - - like the treason charge against Aaron Burr - - - provoke reconsideration of the meaning of Article III.

RR
[image: Justice William Rehnquist's robe via]

Ninth Circuit and the Future of Public Broadcasting: First Amendment Requires Expansion of Advertisements

Ready for more advertising on public radio and television?

In its opinion in Minority Television v. FCC, a divided Ninth Circuit panel has declared two advertising bans unconstitutional under the First Amendment.  At issue was 47 U.S.C. § 399b that prohibits public broadcast radio and television stations from transmitting over the public airways:

1. advertisements for goods and services on behalf of for-profit entities
2. advertisements regarding issues of public importance or interest (“public issues”)
3. political advertisements

While upholding the first provision, the majority held the latter two were unconstitutional. 

The panel opinion, authored by Judge Bea struggled to determine the correct standard of scrutiny, noting that because the doctrine and media landscape have changed substantially in recent years, this was "no simple matter."  The panel rejected Minority Television's argument for strict scrutiny, even as it recognized that the statute made content distinctions.  Instead, it found the intermediate standard of FCC v. League of Women Voters (1984) still applicable - - - "just as golfers must play the ball as it lies, so too we must apply the law of broadcast regulation as it stands today."  Nevertheless, Judge Bea stated it was important to be mindful that public issue and political speech were at the "very core of the First Amendment's protection," and that the the narrow tailoring prong of the intermediate scrutiny standard has been elaborated since 1984.

Essentially, Judge Bea's opinion turned on the existence of evidence before Congress to support its finding that the advertisements banned would negatively impact the government's interest in preserving public and niche programming available on public broadcast.  There was evidence regarding advertisements on behalf of for-profit entities, but not as to public issues or political advertisements.  Judge Bea targeted the government's citation practices - - - or lack thereof - - - in its brief to support his conclusion:

Ultimately, the most revealing statement in the government’s brief on this point is the following sentence, which contains no citations: “Political advertisers are no less capable of exerting influence on programmers than commercial advertisers, and, accordingly, political advertising has never been permitted in public broadcasting.” If that preliminary statement of fact about the ability of political advertisers to exert program influence were supported by some evidence—in particular, some evidence before Congress when it enacted the ban—the government could sustain its burden under intermediate scrutiny. But at such a critical point, the government makes only a bare assertion, unsupported by citation to any evidence. The government cannot simply assert its way out of the “substantial evidence” requirement of the First Amendment.

Senior Judge Noonon, concurring, revealed a bit about his own PBS habits, while suggesting that subsection 1 might also be unconstitutional:

As a viewer of Jim Lehrer NewsHour and its successor, I have seen announcements that to my mind are ads. For example, I have viewed Charles Schwab’s message, “Talk to Chuck” — it is not about Chuck’s golf game. I have viewed Chevron’s “We have more in common than you think” — it appears to me to promote Chevron’s business by asking me to identify with its efforts to improve the environment. I have watched as a pest control company has displayed the power of its techniques to eliminate a bug, a promotion of its services, one would suppose. But all of the above would be relevant on an as-applied challenge. Such a challenge must be brought as original matter in the court of appeals. Consequently, on this point, too, I concur in the result reached by Judge Bea.

Dissenting, Judge Paez predicted that the decision could "jeopardize the future of public broadcasting." He would have preferred to defer to Congress and objected to the focus on the evidence before Congress.

RR

Ninth Circuit: Religious Marijuana Case Can Move Forward

A three-judge panel of the Ninth Circuit ruled this week that the Oklevueha Native American Indian Church of Hawaii's action under the Religious Freedom Restoration Act seeking declaratory and injunctive relief barring the government from enforcing the Controlled Substances Act against them could move forward.  The court ruled in Oklevueha Native American Chuch of Hawaii v. Holder that the plaintiffs' claims for declaratory and injunctive relief were ripe and that the plaintiff had associational standing.

The case arises out of the plaintiffs' claim that they fear federal prosecution for its members' cultivation, consumption, possession, and distribution of marijuana for religious purposes.  The plaintiffs say that the federal government already seized a pound of marijuana from FedEx that was addressed to a church leader and intended for Oklevueha use.  They now fear federal prosecution.

The district court dismissed the case for lack of ripeness and lack of associational standing, but the Ninth Circuit reversed.  The Ninth Circuit ruled that the plaintiff's case was a valid preenforcement claim, becuase (1) the church articulated a "concrete plan" to violate the law, (2) the government communicated a specific warning or threat to enforce the law against the church, and (3) there was a history of past prosecution or enforcement under the statute.  As to (2), the court ruled that the unusual posture of the case couldn't render the case unripe:

Plaintiffs need not allege a threat of future prosecution because the statute has already been enforced against them.  When the Government seized Plaintiffs' marijuana pursuant to the CSA, a definite and concrete dispute regarding the lawfulness of that seizure came into existence. . . .  This case is unique in that unlike most enforcements of criminal statutes, the seizure did not result in a criminal proceeding that could have afforded Plaintiffs the opportunity to assert their constitutional and statutory challenges to the enforcement of the CSA against them.  But it does not follow that because this enforcement and seizure of property did not provide Plaintiffs a process in which to raise their claims, those claims are not now ripe.

Op. at 3807.  The court also ruled that the plaintiffs' case was prudentially ripe, and that the church had associational standing.

SDS

Tennessee: Back to Anti-Evolution Teaching?

The Tennessee bill, HB 368, is wildly controversial and tamely written.  Most likely to become law (unless the Governor quickly vetoes it), the "ACT to amend Tennessee Code Annotated, Title 49, Chapter 6, Part 10, relative to teaching scientific subjects in elementary schools," provides:

a) The general assembly finds that:
(1) An important purpose of science education is to inform students about scientific evidence and to help students develop critical thinking skills necessary to becoming intelligent, productive, and scientifically informed citizens;
(2) The teaching of some scientific subjects, including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning, can cause controversy; and
(3) Some teachers may be unsure of the expectations concerning how they should present information on such subjects.

b) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to create an environment within public elementary and secondary schools that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about controversial issues.

c) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to assist teachers to find effective ways to present the science curriculum as it addresses scientific controversies. Toward this end, teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.

d) Neither the state board of education, nor any public elementary or secondary school governing authority, director of schools, school system administrator, or any public elementary or secondary school principal or administrator shall prohibit any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.

e) This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.

SECTION 2. By no later than the start of the 2011-2012 school term, the department of education shall notify all directors of schools of the provisions of this act. Each director shall notify all employees within the director's school system of the provisions of this act.

 

The law is the subject of a discussion today on Warren Onley's To The Point radio show in a segment entitled "Is Academic Freedom a Disguise for Religion?"   Audio here:

 

Tp_2012-04-10-152725-119-0-0-0.64

As many commentators have noted, the issue of evolution teaching is especially sensitive in Tennessee given the Scopes trial in 1925 with Clarence Darrow (pictured above) as Scopes' attorney.

RR

ACS National Convention

Registration is open for the American Constitution Society National Convention, June 14 to 16, 2012, in Washington, D.C.  Here's the Convention web-page with more information.

Featured speakers include Justice Ruth Bader Ginsburg, Governor Deval Patrick, and Senator Tom Harkin.  The Convention is at the Capital Hilton.

SDS

Second Circuit Finds Disability Advocates, Inc. Lacks Standing

The Second Circuit's opinion today in Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc. denies Article III standing to the nonprofit Disability Advocates, Inc (DIA) in its suit against various state agencies and the governor of New York pursuant to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 

The Second Circuit thus vacated the District Judge's order that New York modify the mental health system to comply with the so-called integration mandate of the laws and their regulations. 

The panel found that because DAI was a contractor to supply services, it did not meet the requirement for associational standing.  Although in a footnote, the panel clarified that this was not necessarily true in all cases:

Our holding does not stand for the proposition that all organizations contracted to provide protection and advocacy within a P&A system [under the Protection and Advocacy for Individuals with Mental Illness Act] necessarily lack standing. We do not reach the question of whether some such contractors can fulfill the statutory requirements under § 10805 and meet the constitutional threshold established under Hunt [ v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)].   We hold simply that, in the circumstances presented here, DAI has not met its burden to establish constitutional standing.

We reject the argument that merely because DAI lacks standing to assert this claim on its own, it cannot fulfill its legislative responsibility to “pursue . . . legal . . . remedies to ensure the protection of individuals with mental illness.” 28 U.S.C. § 10805(a)(1)(B); see United States Br. 66. In circumstances where P&A contractors cannot bring suits “in their own right” because of constitutional standing requirements, they may provide representation to individuals with mental illness and litigate those cases in the names of those individuals. That contractors such as DAI must satisfy the minimum requirements of constitutional standing does not foreclose access to the federal courts for those organizations or the individuals whose interests they are intended to serve.

In addition to holding that DAI lacked standing, the Second Circuit held that "the intervention of the United States after the liability phase of the litigation had concluded was insufficient to cure the jurisdictional defect created by DAI’s lack of standing."   The panel relied upon civil procedure rules regarding jurisdiction, even as it noted that precedent established  "a district court’s discretion to treat the pleading of an intervenor as a separate action in order to adjudicate the claims raised by the intervenor even if the underlying claim was jurisdictionally deficient."  The panel found that discretion was not warranted here because the United States intervened too late: "the District Court decided important questions of fact and law based entirely on the presentation of a plaintiff who lacked standing. The fact that the United States later “adopted” those findings and conclusions cannot remedy the absence of jurisdiction at trial and in pretrial proceedings." 

The panel concluded with its observations about judicial economy - - - as well as its opinion on the merits, or, at least the remedy:

In reaching this conclusion, we are mindful of the possibility that this litigation will continue, inasmuch as the United States—whose standing is not disputed—has represented that, in the event of a dismissal on the basis of standing, it would re-file the action and submit the same evidence at a subsequent trial. Individual plaintiffs with standing could, of course, pursue further litigation as well, either in conjunction DAI or on their own. We are not unsympathetic to the concern that our disposition will delay the resolution of this controversy and impose substantial burdens and transaction costs on the parties, their counsel, and the courts. Should that situation arise, we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution.

Although we are not presently required to consider the issue of remedy, we do have concerns about the scope of the proposed remedy. If this controversy continues, and if the renewed litigation reaches the remedial phase, the parties and the District Court will have another opportunity to consider an appropriate remedy.

The court's "concerns" send a clear message about the merits of the case, which have for the present been expressed as dicta and otherwise collapsed into discretionary judgements regarding standing and procedural rules.

RR
[image: Vincent Can Gogh, Corridor in the Asylum, circa 1889 via]

CFP: Supreme Court Review

If you are doing some writing about the United States Supreme Court, here's a CFP that might interest you.

FROM THE EDITORS:  The Charleston Law Review, the flagship law review of the Charleston School of Law, invites submissions for its annual Supreme Court Preview volume.  This year’s Preview will feature a foreword by John Eastman, former Dean and Henry Salvatori Professor of Law and Community Service at Chapman University School of Law.  The 2009 Supreme Court Preview volume was cited by Justice Clarence Thomas in his concurring opinion in FCC v. Fox Television Stations Inc., 129 S. Ct. 1800 (2009). 

We welcome an article or essay addressing a case before the Court in its October 2012 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court. 

This year’s Supreme Court Preview is published to coincide with the opening of the 2012 October Term.

We therefore ask that work be submitted no later than August 1, 2012.
Submissions will be reviewed on a rolling basis beginning June 1, 2012.
Please direct submissions and any questions about our Supreme Court issue to Morgan Peterson, Editor in Chief, via email at vmpeterson [at] charlestonlaw.edu or via telephone at (828) 284-0378.

RR
[image: The Justices by DonkeyHotey, via]

AG Holder Responds to Fifth Circuit Order on Judicial Review

Attorney General Eric Holder today filed his three-page, single-spaced response to the order of the Fifth Circuit (by Judge Smith) the other day asking for the administration's position on judicial review.

The letter is here (thanks to ConLawProfBlog's RR); we posted on the earlier order here.

There are obviously no surprises in DOJ's response; it's simply a short essay on judicial review.  It's not clear that the response complies with the order in two respects, however: it's not at least three pages, single-spaced, and it only mentions President's Obama's comments in passing ("The President's remarks were fully consistent with the principles described herein."). 

But it doesn't matter: This was a meaningless order in the first place, and the administration could well have (and should well have) entirely ignored it.  The AG's response only legitimized this meaningless order and, thus, the courts' ability to bully the administration around to no particular end.  AG Holder's response sets an unfortunate separation-of-powers precedent that the administration should have resisted.

SDS

DOMA in the First Circuit (and elsewhere)

On appeal from two opinions from Federal District Judge Tauro holding Section 3 of DOMA unconstitutional, the First Circuit heard arguments today in Commonwealth of Massachusetts v. United States Department of Health and Human Services, and Gill v. Office of Personnel Management.

A partial audio recording of the argument is available here (the first 18 minutes is missing). 

Arguing to reverse Judge Tauro's opinions and defending DOMA was BLAG - the Bipartisan Legal Advisory Group of the House of Representatives - who took up the case when the Obama DOJ decided that DOMA section 3 violates the equal protection component of the due process clause of the Fifth Amendment.  

The equal protection arguments are central, including the level of scrutiny that should apply to the category of "sexual orientation," what government interests should be considered (the ones at the time of passage or the ones offered in the present litigation), and the possibility of animus, especially given the name of the act.

In addition to equal protection, the Tenth Amendment also figured prominently in the arguments. This has caused at least one commentator to note that Paul Clement's argument on behalf of BLAG was exactly the opposite of his argument last week that the Affordable Care Act is unconstitutional. Moreover, while DOMA and the anti-immigration initiative, SB1070, in Arizona v. US are certainly reconciliable with regard to the federalism issue, Clement's argument on behalf of Arizona before the United States Supreme Court later this month will most certainly contradict his DOMA stance.

Meanwhile, Immigration Equality has filed a complaint in the Eastern District of New York arguing that DOMA section 3 is unconstitutional on the basis of equal protection regarding both sexual orientation and sex, and should not be enforced in the immigration context.

As for the DOMA argument in the First Circuit, there is a suggestion that the case should go to the en banc court.  However, for now the case is before Judges Lynch, Torruella, and Boudin, pending a panel decision.

RR

Convening Authority Refers KSM Charges to Military Commission

The Convening Authority today referred terrorism charges against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi to a capital military commission.  Capital charges include conspiracy, attacking civilians, murder in violation of the law of war, hijacking and aircraft, and terrorism.

We last posted on the case--and separation-of-powers issues in the congressional restriction on trying in a regular Article III court--here.  (Recall that the administration originally sought to try these individuals in regular Article III courts; Congress restricted the administration's ability to do that; the administration balked, but ultimately decided to try them by military commission.)

The Office of Military Commission web-site, including electronic case files, is here.

SDS

Fifth Circuit Judge Orders Administration to State Position on Judicial Review

Judge Jerry Smith (5th Cir.) yesterday ordered a DOJ attorney to deliver a letter to the court stating the position of the AG and DOJ on judicial review.  The order comes in response to President Obama's statements the other day at a news conference on the ACA challenge at the Supreme Court.

This is an uncommonly silly order--serving no legitimate purpose, interfering with separation of powers, and undermining the credibility and seriousness of the federal courts (or at least the Fifth Circuit)--and the DOJ would do well to ignore it.  The President's statements the other day were plainly not a challenge to the idea of judicial review; they were simply a statement of the administration's constitutional position on the ACA, already articulated by the SG at oral argument and repeatedly stated by the administration and the President himself in other contexts.

Here's a recording (thanks to Steve Bussey radio), followed by the language:

 

I would like to have from you by noon on Thursday . . . a letter stating what is the position of the Attorney General and the Department of Justice in regard to the recent statements by the President stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review.  That letter needs to be at least three pages, single-spaced, no less, and it needs to be specific.

SDS

Ninth Circuit Upholds California Ban on Affirmative Action

Section 31 of Article IX of the California Constitution - - - Prop 209 passed in 1996 - - - was upheld by a panel of the Ninth Circuit in Coalition to Defend Affirmative Action v. Brown. 

The panel's opinion held that the equal protection challenge to section 31 was precluded by a previous Ninth Circuit decision, Coalition for Economic Equity v. Wilson (Wilson II), 122 F.3d 692 (9th Cir. 1997). 

The plaintiffs had argued that Wilson II did not govern because it was a facial challenge of section 31, whereas the present action was an as-applied constitutional challenge, focused on higher education.  The plaintiffs also argued that Prop 209 did not survive Grutter v. Bollinger (2003).   Rejecting both of these contentions, the Ninth Circuit panel affirmed the district judge's conclusion that Wilson II did consider the context of higher education and that Grutter concerned the constitutionality of governmental choices regarding diversity but did not mandate those choices.

However, before reaching the equal protection claim, the panel considered  - - - and rejected - - - the state defendants' argument that the Eleventh Amendment barred suit against them in federal court.  The partial dissenting opinion by Judge Tashima disagreed on this point.

In a footnote, the panel opinion referenced Fisher v. Texas, stating that the Supreme Court  "appears poised to reconsider whether race-based affirmative action programs are even permissible at all."

RR
[image: University of California's ten campuses, via]

Arizona's HB 2459: Internet Decency?

Awaiting Governor Jan Brewer’s signature is Arizona HB-2549 , a bill that “updates” the previous telephone harassment statute to apply to the internet.  The bill applies to obscene, lewd, profane language as well as the suggestion of any lascivious act.

 The bill’s text, which would be codified as Arizona Revised Statutes §13-2916, entitled "Use of an electronic or digital device to terrify, intimidate, threaten, harass, annoy or offend; classification; definition", with the updated provisions IN ALL CAPS, provides:

 A.  It is unlawful for any person, with intent to terrify, intimidate,threaten, harass, annoy or offend, to use ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or  property of any person. It is also unlawful to otherwise disturb by repeated anonymous ELECTRONIC OR DIGITAL COMMUNICATIONS the peace, quiet or right of privacy of any person at the place where  COMMUNICATIONS were received.

B. Any offense committed by use of AN ELECTRONIC OR DIGITAL DEVICE as set forth in this section is deemed to have been committed at either the place where the COMMUNICATIONS originated or at the place where the COMMUNICATIONS were received.

 C. Any person who violates this section is guilty of a class 1 misdemeanor.

 D. FOR THE PURPOSES OF THIS SECTION, "ELECTRONIC OR DIGITAL DEVICE" INCLUDES ANY WIRED OR WIRELESS COMMUNICATION DEVICE AND MULTIMEDIA STORAGE  DEVICE.

The First Amendment concern is that the statute is overbroad.  It seems the new statute would apply to general communication on web sites, blogs, listserves and other Internet communication.  Translated from the telephone to the Internet, the analogies are imperfect at best:  a comments section of a blog, a youtube video, a facebook posting, or any number of Internet “communications" are simply not like a one-to-one telephone call.

Recent First Amendment cases such as US v. Stevens have declined to extend obscenity, and the Internet, unlike the telephone, is not a "regulated media."

If Governor Brewer signs the bill, a First Amendment challenge will surely follow.

RR
[image, telephone circa 1931, via]

President Obama Comments on Health Care Arguments at Court

In case you missed it, here are President Obama's full comments on the ACA litigation in response to a reporter's question yesterday at a joint press conference, with President Calderon of Mexico and Prime Minister Harper of Canada:

With respect to health care, I'm actually--continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close call.

I think it's important--because I watched some of the commentary last week--to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it. There are tends of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.

Millions of senior are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that's just the part that's already been implemented. That doesn't even speak to the 30 million people who stand to gain coverage once it's fully implemented in 2014.

And I think it's important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.

Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint--that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. . . .

As I said, we are confident that this will be over--that this will be upheld. I'm confident that this will be upheld because it should be upheld. And, again, that's not just my opinion; that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency.

SDS