Constitutional Law Prof Blog

Court Dismisses Challenge to Amtrak's Authority to Develop Standards

Judge James E. Boasberg (D.D.C.) rejected the plaintiff's claims that Congress improperly delegated authority to Amtrak to develop and enforce passanger railway standards in violation of due process and nondelegation principles and granted summary judgment to the government in Association of American Railroad v. Department of Transportation.  The ruling affirms Amtrak's role in standard-making under the Passenger Railroad Investment and Improvement Act of 2008 and upholds Section 207 of that Act.

Section 207 requires the Federal Railroad Administration and Amtrak to jointly develop standards to evaluate the performance of Amtrak's intercity passenger trains.  It says:

[T]he Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including . . . on-time performance and minutes of delay . . . .

Under the Act, if the STB determines that Amtrak's failure to meet the standards is attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation--that is, if a freight train makes an Amtrak train late--the STB may award damages against the host rail carrier.  (Amtrak leases the rail lines that it uses from freight rail carriers.)

The AAR, representing its member freight rail carriers, sued the DOT, arguing that Section 207 violated due process, because it allowed a private, interested party, Amtrak, to regulate other industry participants.  The AAR also argued that Section 207 effected an unconstitutional delegation of regulatory authority to a private entity.

The claims assumed that Amtrak was a private corporation--and the case thus turned on that assumption in the first instance.  But Judge Boasberg, drawing on Lebron v. National Railroad Passenger Corporation (1995), concluded that Amtrak was a governmental entity, at least as to the due process claim.  Here's what he wrote:

The two hallmarks of government control that the Lebron Court found decisive--namely, that Amtrak was created by special law for the furtherance of governmental objectives and that the government retained the authority to appoint a majority of directors--moreover, has not changed.  Indeed, when Lebron was decided, the President appointed only six of Amtrak's nine directors; he now appoints eight of the nine.   The government, moreover, retains more than 90% of Amtrak's stock, appropriates for Amtrak more than a billion dollars annually, and sets salary limits for Amtrak's employees.  In addition, Amtrak is required to submit annual reports to Congress and the President.

Op. at 11-12.  Because Amtrak is a government entity, Judge Boasberg concluded, Congress did not delegate rulemaking authority to a private entity in violation of due process.

As to the delegation claim, Judge Boasberg concluded that Amtrak's status as a private corporation or government entity didn't matter, because the government retained ultimate control over the standards (even if Amtrak was involved in the process).  

While the AAR is correct that [Section 207] in a sense makes Amtrak the FRA's equal--as opposed to its subordinate--Amtrak cannot promulgate the Metrics and Standards without the agency's approval. . . .

Conditioning regulation on a private party's assent . . . is not constitutionally problematic.  Indeed, the Supreme Court has reasoned that through such schemes the government "merely place[s] a restriction upon its own" ability to regulate.

Op. at 18-19.

SDS

Florida Federal Judge Grants Preliminary Injunction Against Law Regulating Voter Registration

In his opinion today in League of Women Voters of Florida v. Browning, Northern District of Florida Judge Robert Hinkle held that the plaintiffs had a likelihood of prevailing on the merits of their claim that Florida Statutes § 97.0575, as amended in 2011, and its  implementing rule, Florida Administrative Code Rule 1S-2.042, violate the First Amendment. 

Judge Hinkle found that the "statute and rule impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter- registration office and effectively prohibit an organization from mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional."

The judge applied a relatively low standard, finding that "an election-code provision of this kind must serve a legitimate purpose that is sufficient to warrant the burden it imposes on the right to vote."  And perhaps a well-crafted law could survive such judicial review.  But Judge Hinkle stated:

This statute and this rule are not well crafted. To the contrary, they are virtually unintelligible, close to the point, if not past the point, at which a statute—especially one that regulates First Amendment rights and is accompanied by substantial penalties— becomes void for vagueness.

Rejecting Florida's argument that certain issues in the statute's application "will need to be worked out,"  Judge Hinkle was dismissive.  Not only would a voter-registration organization be "ill advised to risk significant fines—and the attendant damage to the organization’s reputation—that would result from failing to comply with provisions this difficult to parse,"  but it is also " not too much to ask the state to work out the issues in advance," when "rights of this magnitude are at stake."  

Judge Hinkle's opinion provided several different practical scenarios.  For example,

Another substantial flaw in the statute and rule—and a clearer violation of controlling law—is their disregard of a voter-registration organization’s interest in mailing in completed voter-registration applications rather than hand delivering them. The statute makes no provision for mailing at all. If the statute means what it says—that an application must be received in the voter-registration office within 48 hours after the applicant signs it—a prudent voter-registration organization can never mail in an application. This is so because even if the organization delivers the application to the Postal Service immediately after the applicant signs it—and this in itself would be virtually impossible—the organization cannot be assured that the Postal Service will deliver it within 48 hours.

Judge Hinkle found the constitutional arguments more pertinent that those under the National Voting Rights Act, and did sustain a few of the Florida provisions.  But this is certainly a substantial set back for the controversial Florida statute and administrative rule that severely curtailed voter registration activities.

RR

PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

As the Washington Post reports, members of the House of Representatives "voted 246 to 168"  on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions.  While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."

PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race."  The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.

As I've written elsewhere:

The specter of sex-­selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-­‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.”  Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-­‐selective prohibitions are not cast as being beneficial to women or assisting decision-­‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.

Indeed, PRENDA's findings on sex include:

(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy.  For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy."  For others, PRENDA may be part of an election year strategy.

For those teaching a summer course in ConLaw, this could be the basis of an excellent problem.  ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.

RR

First Circuit: DOMA Section 3 Unconstitutional

In today's unanimous panel opinion in Massachusetts v. HHS, consolidated with Gill v. Office of Personnel Management, the First Circuit upheld federal District Judge Tauro's companion opinions that section 3 of DOMA is unconstitutional. (April's oral argument can be heard here).

The First Circuit opined that the issue is difficult not only because of what it called the Justice Department's "about face" but because it

couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

The panel relied upon Moreno, Cleburne, and Romer v. Evans, each of which "rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered," to ultimately employ a heightened rational basis of equal protection review. 

As to federalism, the panel noted that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture."  Although certainly the federal government does have an interest in marriage (given how many federal laws rely on the definition), nevertheless "Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed."  

The First Circuit thus stops short of finding that DOMA is inconsistent with the Tenth Amendment, but deploys federalism to evaluate the government interests under equal protection.

The four interests expressed in the House Committee Report were

• (1) defending and nurturing the institution of traditional, heterosexual marriage;
• (2) defending traditional notions of morality;
• (3) protecting state sovereignty and democratic self-governance; and
• (4) preserving scarce government resources.

The First Circuit rejected all these interests as inadequate, including the preservation of government resources that it found to be factually dubious, and also rejected the "child rearing" and "temporary measure" rationales advanced in litigation, as not supported by the legislation. 

Thus, the panel concluded:

the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.

Surely BLAG - - - the Bipartisan Legal Advisory Group of the United States House of Representatives, an organization defending DOMA funded by taxpayers - - - will petition for certiorari to the United States Supreme Court, although perhaps first for en banc review.

RR

ACLU Sues to Stop Minnesota Voter ID Ballot Proposal

The Minnesota ACLU, along with the League of Women Voters Minnesota, Common Cause, Jewish Community Action, and five Minnesota voters, filed a petition with the Minnesota Supreme Court seeking to strike a ballot question that, if passed, would amend the Minnesota Constitution to require voter ID.

The petitioners claim in their Brief and Addendum that the ballot question is false, misleading, and an incomplete description of what the amendment would actually do--in violation of Article IX, Section 1, of the Minnesota Constitution.  That Section provides that proposed amendments shall be "submitted to the people for their approval or rejection."  The Minnesota Supreme Court interprets it considering whether the language of the ballot question would mislead a voter of common intelligence to the proposed amendment's actual meaning and effect.

Here's what the legislature required the ballot to say:

Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?

Yes

No

And here's what the amendment to the Constitution would say:

(b) All voters voting in person must present valid government-issued photographic identification before receiving a ballot.  The state must issue photographic identification at no charge to an eligible voter who does not have a form of identification meeting the requirements of this section.  A voter unable to present government-issued photographic identification must be permitted to submit a provisional ballot.  A provisional ballot must only be counted if the voter certifies the provisional ballot in the manner provided by law.  

(c) All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted.

The petitioners argue that the ballot question misleads in five ways:

1. It says that the amendment would require photo ID from "all voters," but the amendment actually only requires it from those who vote "in person."

2. It omits any mention of the "substantially equivalent" verification provision.

3. It fails to disclose that the proposed amendment would requirement government-issued ID (and not just any ID).

4. It fails to disclose that the proposed amendment would require provisional voting.

5. It has a misleading title for the proposed amendment--"Photo Identification Required for Voting."

The proposed amendment came about after the legislature first passed voter ID and the governor vetoed it.  Rather than overriding the veto, the legislature voted to put the measure on the ballot as a constitutional amendment.

SDS

Washington Judge Defers to State AG in Health Reform Challenge

Washington Superior Court Judge Sharon S. Armstrong denied the plaintiffs' motion for a preliminary injunction, or in the alternative for a permanent injunction and mandamus, in Mackey v. McKenna, the state court suit by a group of Washington women against the state attorney general challenging the state AG's role in the Affordable Care Act litigation now at the Supreme Court.

As we posted, a group of Washington women sued state AG Rob McKenna seeking a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate.  The plaintiffs claimed that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place--in other words, to sever the mandate.  Yet he joined the state in the multi-state suit challenging the entire ACA, and the plaintiffs' position in that case that the mandate was not severable.  The plaintiffs said that this violated his professional duties to Washingtonians.

Judge Armstrong rejected the argument.  She wrote:

Had Attorney General McKenna taken the formal legal position that only severability could protect the interests of the State of Washington and its citizens, and then filed contrary briefing in the federal courts, he would have violated his ethical duty to faithfully represent the interests of the State of Washington and its residents, would have improperly relinquished control over his role in the litigation to other attorneys general, and filed an erroneous brief to the U.S. Supreme Court.

But here the court found that statements by McKenna contrary to his litigation position were merely "political statements by an elected official," and were thus "issues to be addressed in the political realm."  In the end, Judge Armstrong wrote that the court "lacked authority to second-guess the attorney general's legal strategy in the health care reform litigation, whatever the wisdom of his legal strategy."

The ruling is hardly a surprise.  The case was a stretch to begin with, and even the plaintiffs' requested relief wouldn't have changed the picture at the Supreme Court.  It was really about holding AG McKenna accountable for his statements, and his actions.  Judge Armstrong was clear: Any holding-to-account should go through the ordinary political process, not the courts.

SDS

Constitution Bashing?

As ConLawProf Sandy Levinson rightly observes in an Op-Ed in today's NYT, "the Constitution is enveloped in near religious veneration."  Although perhaps this isn't so right, at least in some circles.

His own op-ed, for example, argues that the Constitution itself is responsible for current political pathologies. He singles out the Electoral College and the composition of the Senate for special note, both of which result in states such as New York, California, and Texas being diminished.

This incorrect equality amongst states is also highlighted by Kevin Bleyer in his new book, Me The People.  To be sure, Bleyer is a comedy writer, but as he argues in the recent excerpt in Salon, "despite what the original Constitution of the United States says about the qualifications for statehood and the guarantee of representation," there are just some states that don't deserve their status.  One rationale for such disrespect: there are "more Americans in prison than in Nebraska."

For his part, Sandy Levinson focuses on Article V as "the worst single part of the Constitution" because it has made the US Constitution "among the most difficult to amend of any in the world."   He argues that the "near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about."

Yet amending the Constitution - - - by repealing an Amendment - - - was a topic in a debate among Republican hopefuls for one of Missouri's two seats in the United States Senate.  The Amendment in question is the Seventeenth Amendment; "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."  Recall that prior to the Seventeenth Amendment, Article I §3 controlled: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . .  ."   So, basically, the Seventeenth Amendment required direct election of Senators.

As the St. Louis Beacon reports, Senate hopeful (and current US Representative) Todd Akin thought a repeal of the Seventeenth Amendment might shift the balance back towards "states rights."  The other candidates were less interested in the issue.  Their respective statements are available on YouTube, linked at the St Louis Beacon article.  And there are certainly more scholarly discussions, including one between Todd J. Zywicki and Ilya Somin hosted by the Federalist Society last year. 

For those participating in summer institutes for undergraduates or comparative law programs, there is much fodder here.

RR
[image: 17th Amendment as ratified via]

Supreme Court: Retrial Does Not Violate Double Jeopardy

The Supreme Court ruled 6-3 today that retrying a defendant on charges on which the jury agreed that defendant was not guilty did not violate double jeopardy in an acquittal-first jurisdiction, where the jury deadlocked on lesser-included charges, and where the judge declared a mistrial.

The ruling, together with earlier Supreme Court cases, means that when a jury agrees that a defendant is not guilty of a greater offense, but when it deadlocks on a lesser-included offense, in an acquittal-first jurisdiction, the state can retry the defendant for the greater offense; but when a jury agrees that a defendant is not guilty of a greater offense, but when it convicts on a lesser offense, the state may not retry the defendant.

The case, Blueford v. Arkansas, arose out of the state's attempt to bring a second case against Alex Blueford for the death of his girlfriend's one-year-old child.  The state first charged Blueford with capital murder and the lesser offenses of first-degree murder, manslaughter, and negligent homicide.  The trial judge instructed the jury to consider the offenses as follows:

If you have a reasonable doubt of the defendant's guilt on the charge of capital murder, you will consider the charge of murder in the first degree. . . .  If you have a reasonable doubt of the defendant's guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter. . . .  If you have a reasonable doubt of the defendant's guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.

The court gave the jury a set of verdict forms, one for each charged offense and one to acquit.  Acquittal was all or nothing: the jury could not acquit on some charges but not others.

The jury reported, in open court, that it was unanimous against guilt on the capital and first-degree murder charges, but that it was deadlocked on manslaughter and had not voted on negligent homicide.  The judge sent the jury back for more deliberation, but the jury was still unable to reach a verdict.  The judge declared a mistrial.

The state sought to retry Blueford.  Blueford moved to dismiss the capital and first-degree murder charges as violating the Double Jeopardy Clause.  

Chief Justice Roberts wrote for the Court that the retrial did not violate double jeopardy.  He said that the jury didn't acquit Blueford of the capital and first-degree murder charges--"[t]he foreperson's report was not a final resolution of anything"--and may well have reconsidered its initial unanimous agreement when the judge sent the case back for further deliberation.  "The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses."  The Court also rejected Blueford's argument that the judge's mistrial declaration was premature, without sufficient effort to get the jury to come to a verdict.

Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.  Justice Sotomayor viewed the jury's report on its agreement on the capital and first-degree murder charges as sufficiently final to trigger double jeopardy.  She also argued for a rule under the Double Jeopardy Clause that a judge in an acquittal-first jurisdiction must grant a partial verdict on the defendant's request: "If a State wants the benefits of requiring a jury to acquit before compromising, it should not be permitted to deprive a defendant of the corresponding benefits of having been acquitted."

SDS

OWS Complaint for Destruction of Books Filed in Federal Court

The November 15, 2011 police "eviction" of members of Occupy Wall Street from Zucotti Park prompted quick legal action resulting in a TRO, and today, months later, a complaint in federal court raising constitutional and state law challenges to the confiscation of the materials in the OWS library.

In their complaint in Occupy Wall Street v. City of New York, the plaintiffs allege that city officials seized 3,600 books, only 1,003 of which were returned, and 201 of those very damaged.  The constitutional claims include a violation of the Fourth Amendment, a violation of procedural due process, and a violation of the First Amendment.  The plaintiffs also allege these violations occurred because of a lack of supervision and training, a claim that has become more and more difficult to sustain.  The plaintiffs also make parallel claims under the pertinent New York state constitution, as well as common law claims of conversion and replevin.

RR
[image: OWS Zucotti Library via]

 

CFP: AALS ConLaw Section

Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
 
The Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.

The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
 
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.

The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
 
Deadline Date for Submission: August 1, 2012
 
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT pepperdine.edu.

RR 

Court Says Detention Authority Violates First Amendment

Judge Katherine B. Forrest (SDNY) ruled last week that the detention authority in the National Defense Authorization Act likely violates free speech.  Judge Forrest granted the plaintiffs' motion for a preliminary injunction in Hedges v. Obama and thus enjoined enforcement of Section 1021.

The case is notable in that the government could easily have side-stepped the whole thing: It simply could have taken the position that the plaintiffs, based only on their affidavits and testimony, did not fall within Section 1021.  This would have taken away the plaintiffs' standing (as Judge Forrest noted) and undermined the suit.  (The government need not have said anything about whether the plaintiffs would have been covered by Section 1021 if additional evidence arose.)  But it refused, suggesting that it keeps open the possibility that Section 1021 could apply to a remarkably wide swath of individuals, notwithstanding the President's efforts to limit it upon signing the NDAA.  More on this below.

The ruling is the first against the controversial detention authority in the NDAA.  The section at issue, Section 1021, defines a detainable person broadly (and vaguely, as it turns out) and apparently authorizes indefinite detention.  The Section, titled Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force, provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

But President Obama, upon signing the NDAA, issued a signing statement that said that Section 1021 did nothing to existing government detention authority under the AUMF and that the Section was therefore unnecessary.  In short, according to the President, Section 1021 changed nothing.  As to indefinite detention, the President wrote: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."

Moreover, while the White House issued a policy directive that included procedures for detention under Section 1022 (relating to military custody of foreign al-Qaeda terrorists), it issued no such directive on Section 1021--further suggesting that, in its view, nothing changed.

A group of writers, reporters, and activists brought suit, claiming Section 1021 could be interpreted to include them based on their reporting and writing on terrorist groups, including al-Qaeda, and terrorist activities; that they feared detention under Section 1021; and that Section 1021 chilled their further speech.  They said that Section 1021 was overbroad and vague in violation of the First Amendment.

Judge Forrest agreed.  In a lenghty and careful ruling, she wrote that the plaintiffs had standing, and that Section 1021 likely violated the First Amendment based on its overbreadth and vagueness.  

The ruling was based as much on the govenrment's stubborn position that it couldn't rule out detaining the plaintiffs based on their affidavits and testimony as it was based on the law.  The government refused to say that the plaintiffs wouldn't be detained under Section 1021 based on their affidavits and testimony, even though it also said that the plaintiffs' fears of detention were unreasonable.  And in a remarkable set of exchanges, reproduced in the opinion (at pages 31 to 34), government lawyers were unable to define phrases like "substantially support" or "directly support," or to give examples, or to assure the court that these plaintiffs, based on their affidavits and testimony alone, would not be subject to detention under Section 1021.

Outside the government's inability to define terms, give examples, or say whether the plaintiffs would be detainable, the court was also concerned about the lack of mens rea in Section 1021--an authority that it viewed as criminal-like, because of the potential for physical detention.  The problem is that a person could violate Section 1021 without intending to, even without knowing.  This, it said in addition to the government's inability to define key terms, rendered the Section unconstitutionally vague, in violation of due process.  

The court said the government's position was strongest on the definition of "associated forces"--a phrase that the government said is rooted in the laws of war.  But even so, "that does not resolve plaintiffs' concerns since they each testified to activities with or involving individuals or organizations that are 'associated forces' as defined by the Government."  Op. at 55-56.  The plaintiffs had the better of the case on "substantially," "direct," and "support."

If the government maintains its positions, keeping its options fully wide open under Section 1021, it's hard to see how an appeals could could rule any differently in this case.

SDS

Catholics Sue Government Over HHS Abortion, Contraception Regs

Forty-three Catholic institutions filed 12 separate suits today against HHS Secretary Kathleen Sebelius to halt HHS regulations that they say would require them to "provide, or facilitate the provision of, abortion-inducing drugs, sterilization, and contraceptive services to its employees in violation of the centuries' old teachings of the Catholic Church."

The move is the latest in the ongoing debate between the church and the administration over new HHS guidelines under the Patient Protection and Affordable Care Act that require insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."  The plaintiffs reject the White House's February 2012 compromise--to exempt religious organizations that have religious objections from directly paying for those services--as insufficient.

The University of Notre Dame filed one such suit in the Northern District of Indiana.  The University's complaint is here; the President's statement is here. 

Notre Dame's complaint alleges violations of the First Amendment religion and speech clauses, the Religious Freedom Restoration Act, and the Administrative Procedures Act.  It seeks declaratory and injunctive relief and attorneys' fees. 

As to its religion clause claims, Notre Dame alleges that the government has no compelling interest in the requirement, that the requirement substantially burdens its religious exercise; that the requirement excessively entangles government in religion (because it requires a government determination of whether the purpose of the organization is to inculcate people into its tenets in order to qualify for an exemption); and that the requirement discriminates among religions (because it treats those religions that do not oppose "abortifacients" differently than those that do).

As to its speech claim, Notre Dame argues that the requirement and counseling are viewpoint-based compelled speech in violation of the First Amendment.

Notre Dame claims that under HHS regulations it has to provide "contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" itself, and not through a third-party insurer.  That's because Notre Dame does not contract with a separate insurance company for its employees' health insurance; instead, it offers self-insured plans.  It also claims that it doesn't qualify for an exemption, because it's not a church or an exclusively religious activity--the exemptions in Section 6033(a)(3)(A)(i) and (iii), respectively, of the IRC.

SDS

Sunday Book Review: Mantel's New Novel

If you missed the first installment, Hilary Mantel's bestselling and Man Booker Prize winner, Wolf Hall, the second in the trilogy can nevertheless be started post-haste.  It's the just-released Bringing Up The Bodies. Stellar reviews appear in the NYT, and LA Times.  Novelist and intellectual Margaret Atwood, in The Guardian, noted that although this volume centers on the fall of Anne Boleyn, like its predecessor, it's really about "the deep, dark, labyrinthine, but strangely objective mind of Thomas Cromwell."

 

As Atwood wrote:

The historical Cromwell is an opaque figure, which is most likely why Mantel is interested in him: the less is truly known, the more room for a novelist. Cromwell rose from obscure and violent origins through a life abroad – sometime soldier, sometime merchant – to become England's top go-to man, the prime maker-and-breaker of fortunes and spines, secretly hated and despised, especially by aristocrats. He played Beria to Henry VIII's tyrannical Stalin: he did the dirty work and attended the beheadings, while Henry went hunting.

But what Atwood doesn't mention is that Thomas Cromwell (pictured above in the famous Hans Hoblein portrait which is discussed in Mantel's novels) is a lawyer.  A consumate lawyer.  In many ways, Cromwell is witness, and perhaps midwife, to the rise of English law, although law will not be sufficient to save him (presumably in volume III of the trilogy).

While some ConLawProfs find novels a guilty pleasure (or even not pleasurable!), the legal machinations and historical resonances of Bringing Up The Bodies make this novel a great summer read that could inform teaching and scholarship.

And for those who prefer to listen to books, the audiobook is available, with a sample (and a great description of Cromwell starting after about a minute, and including the description of the painting) here:

 

BringUpThe Bodies

 

RR
[Portrait of Thomas Cromwell by Hans Holbein, circa 1533, via]

Saturday Evening Review: Janai Nelson on Felon Disenfranchisement

Felon disenfranchisement is a US reality that conlawprofs from non-US constitutional democracies can find a bit startling.  Its justifications are many, but Professor Janai Nelson considers whether the real motivation isn't "viewpoint discrimination" and if so, whether it is susceptible to constitutional challenge. 

In The First Amendment, Equal Protection, and Felon Disfranchisement: A New Viewpoint, forthcoming in Florida Law Review, available on ssrn, Nelson considers cases regarding viewpoint discrimination in voting regulations, and examines the justifications for felon disfranchisement  "identifying both the perceived viewpoint that legislatures intend to exclude and the viewpoint that is ultimately excised from the electoral process."  She argues:

in the effort to exclude a ―criminal viewpoint, another potential viewpoint, which I term the ―canary viewpoint is excised from the body politic. The canary viewpoint refers to the miner‘s canary whose death signals atmospheric dangers in the mine. In the context of felon disfranchisement, the canary viewpoint results from the intersectionality of race, crime, and low socio- economic status that combine to create the disfranchised population. Random and disparate breaches of the social contract would suggest individual choice rather than systemic group-based causes produce this phenomenon. . . .

Without the benefit of the political participation of those citizens who have failed to uphold the social contract, it is more difficult to understand or attract sustained attention to the root causes of its breach. As a result, democracy functions by silencing those who might signal its failure.

 Of course, any constitutional challenge to felon disenfranchisement must confront Richardson v. Ramirez (1974) in which the Court held that § 2 of the Fourteenth Amendment authorized states to deny voting rights based on a felony conviction.  Nelson argues that Ramirez does not extend to intentional discrimination in the form of vote denial because of how persons (felons) may vote.

RR

D.C. Circuit Upholds Key Provisions in Voting Rights Act

A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act.  The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional.  We covered the case in the lower court here and here; those posts contain more thorough background.

The ruling tees up the case for Supreme Court review.  The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA.  It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder.  This case gives it a second crack, with the constitutional question unavoidably front-and-center.

When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit).  In particular: Do congressional findings adequately support Sections 5 and 4(b)?  If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.  

But there's another question to watch for: By what measure will the Court scrutinize congressional findings?  In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b).  This Court has suggested that it won't give much.

Congress had a thorough record when it reauthorized the VRA in 2006.  The question is whether it was thorough and precise enough for this Court.  Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.

In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case.  The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:

First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . .  Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."

Op. at 14.

In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006.  (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)

Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment.  This illustration summarizes the point:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?  A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . .  As to federal observers, Indiana appears clearly "better"--it received none . . . .  As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . .  This distinction in evaluating the different states' policies is rational?

Dissent, at 32.

SDS

D.C. Circuit Rules VRA Challenge Moot

The D.C. Circuit ruled today in LaRoque v. Holder that a plaintiff's challenge to the preclearance provision of Section 5 of the Voting Rights Act was moot after the Attorney General withdrew its objection to a referendum making local elections nonpartisan in Kinston, North Carolina, a covered jurisdiction.  We previously posted on the case here.

The ruling comes the same day as the same three-judge panel affirmed the constitutionality of Sections 5 and 4(b) of the VRA.  (Judge Williams dissented in that case.)

The court rejected the plaintiff's claims that the AG might again object to voting changes (that the objections are capable of repetition but evading review) and that a ruling that Section 5 is unconstitutional would make it easier for the plaintiff to ask North Carolina to nullify the last election (conducted as a pre-referendum partisan election) and give him a do-over.  

The ruling says nothing about the constitutionality of Section 5.  But that doesn't matter: The other case today, Shelby County, affirming the constitutionality of Section 5, is all but certainly heading to the Supreme Court.

SDS

Christian-Dominated Town Prayer Violates Establishment Clause

The Second Circuit, in its opinion today in Galloway v. Town of Greece, found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity."

The evidence, as the unanimous panel described it, was that of the 130 different invocations between 1999 and June 2010, two-thirds contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”

The other third were theistic, but more "generic," including ones by Christians, Jewish, and Baha'i prayer givers, all of whom referenced God.  There was also a Wiccan prayer, in which the Wiccan priestess invoked Athena and Apollo, apropos of the Town’s name.

But it was not only the content of the prayers.  As the court stated, in concluding that "the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,"  because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity," the conclusion is supported by "several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials."  The court  emphasizes that it did "not not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case."

The panel emphasized what would be constitutional:  "a practice such as the one to which the town here apparently aspired"  meaning one that is "inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief." (emphasis added).

In short, one invocation to Athena out of 130 is simply not sufficient, and not only in Greece.

RR
[image: Athena].

 

Eleventh Circuit: Pregnancy Discrimination Suit Against Religious School To Proceed

In a relatively brief and unanimous opinion in Hamilton v. Southland Christian School, the Eleventh Circuit reversed the district court's grant of a summary judgment in favor of the school. 

As Judge Carnes describes the facts in the first paragraph of his opinion:

"A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal." 

The next paragraphs, one would assume, would be devoted to discussing the ministerial exception.  And they are.  Except the discussion is devoted to the procedural status of the ministerial exception in this litigation.  While the school did raise it as an affirmative defense, the district judge rejected it, but granted summary judgment on the ground that the teacher had not established a prima facie case that her pregnancy was the reason the school terminated her.  On appeal, the school did not raise the ministerial exception defense as an alternativeground for affirmance; its "brief mentions the ministerial exception only once, and that is when describing the district court’s rulings: 'The Court determined that the ministerial exception did not apply in this case.' ”  The school's attorneys did file a notice of Supplemental Authority several months later, citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n.  But that, the Eleventh Circuit held, was not sufficient. 

The court then found there remained material issues of disputed fact as to the reason the teacher was fired.  The remand, for proceedings consistent with the opinion, presuambly leaves the "ministerial exception" door open for the district court.

RR
[image: Woodcut from The Scarlet Letter, 1878, via]

 

Con Law Colloquium at Loyola Chicago

We previously posted a call for papers and registration for Loyola's Third Annual Constitutional Law Colloquium, Friday and Saturday, November 2 and 3, 2012.  This is an outstanding colloquium and only gets better each year.

Just a reminder: Organizers are accepting 150- to 200-word abstracts and considering them on a rolling basis through the end of May.  Send your abstract to constitutionlaw@luc.edu. 

Our original post, with links, follows.

SDS

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

D.C. Circuit Denies Emergency Stay in Van Hollen Suit Against FEC

The D.C. Circuit yesterday denied motions for an emergency stay pending appeal of the district court's ruling in Van Hollen v. FEC.  That case involved Representative Chris Van Hollen's (D-Md) suit challenging the FEC's regulation on corporate disclosure of contributors in the wake of Citizens United.  The district court ruled for Van Hollen, effectively requiring corporations to disclose all their contributors (and not just contributors who contributed for electioneering communication), or to establish a separate fund for electioneering communication (even though Citizens United held that such a fund is not required).  The court's denial yesterday means that the district court ruling remains in effect pending the appeal to the D.C. Circuit.

The court's ruling yesterday, and the district court's ruling before, are both victories for Van Hollen and for greater disclosure of those who contribute to corporations and labor unions (which then use those contributions for electioneering communication).  As it stands under BCRA, corporations and labor unions that engage in electioneering communication can now either (1) disclose all contributors (whether for electioneering communication or not), including anyone who gives a corporation money for any purpose, or (2) establish a segregated fund for contributions for electioneering communication and disclose only contributors to that fund.  This may give corporations and labor unions an incentive to establish a segregated fund.  (It's either that or disclose the names and addresses of anyone who paid more than $1,000 for any purpose.  This could indeed create a hassle for corporations and labor unions, and it's not clear exactly how useful this kind of undifferentiated disclosure of any and all contributors would be.)  But here's the twist: Citizens United held that corporations and labor unions can't be required to use a segregated fund for electioneering communication.  

Still, nothing in the rulings in Van Hollen's case challenges Citizens United.  Indeed, the rulings are in harmony with it and underscore the value of transparency.  The rulings only mean that BCRA requires disclosure--even of all contributors, when a corporation or labor union declines to establish a segregated fund.  

But this is certainly not the end of the case.  The appeals court only ruled that the appellants hadn't established the stringent requirements for an emergency stay; it did not rule finally and definitively on the merits (even if it gave strong clues in favor of Van Hollen).

Here's some background:

Van Hollen sued the FEC over its December 26, 2007, disclosure regulation, which required disclosure of corporate and labor union contributors as follows:

If the disbursements were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.

11 CFR Sec. 104.20(c)(9).  The problem, according to Van Hollen, was that the italicized limit on the disclosure requirement violated the plain language of the BCRA, which says:

(E) If the disbursements were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . . .; or

(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.

2 USC Sec. 434(f)(2).  The problem was that Citizens United said that corporations and labor unions didn't have to use a segregated fund for electioneering communications--telling corporations and labor unions that they didn't have to use subsection (E).  But without (E)--that is, without a segregated fund--corporations and labor unions apparently had to disclose all contributors (for electioneering purposes or not) under subsection (F).  Yet the FEC regs--the italicized part above--requires disclosure of only those contributors who contributed for electioneering purposes.

The district court ruled that the FEC reg violated the BCRA.

The appeals court yesterday denied motions for an emergency stay of this ruling, writing that appellants hadn't satisfied the stringent requirements.  The court was untroubled by the fact that the district court's ruling means that corporations must disclose all contributors (and not just those who contribute for electioneering communication): the appellants failed to show that they'd be silenced by such an interpretation.  The court also said that corporations and labor unions could still establish a segregated fund under subsection (E), above, even though that's not required, and thus disclose only those contributors who contribute for electioneering communication.  Finally, the court said that Van Hollen would be harmed by granting a stay, because he wouldn't be able to respond to electioneering communication funded by anonymous, non-disclosed sources.

SDS