Constitutional Law Prof Blog

Did Chief Justice Roberts Craft a New, More Limited Commerce Clause?

In a word: No.  Or, even if yes, just by a hair--by adding just a footnote to the current doctrine.  Here's why.

Let's start with some background on the health care case.  While a five-Justice majority on the Supreme Court, led by Chief Justice Roberts, ruled yesterday that Congress could enact universal coverage in the Affordable Care Act under its taxing authority, a different five-Justice majority ruled that it couldn't enact it under the Commerce Clause.  Chief Justice Roberts found himself--or, more precisely, placed himself--with each majority.

Chief Justice Roberts wrote the opinion of the Court on the taxing authority.  His opinion on this point was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

He also wrote an opinion on the Commerce Clause.  But he only wrote for himself.  While Justices Scalia, Kennedy, Thomas, and Alito joined him in the result--that Congress exceeded its Commerce Clause authority in enacting universal coverage--those four wrote a decidedly distinct opinion, styled a dissent, and did not join Chief Justice Roberts's opinion on this issue.  The Chief's opinion on the Commerce Clause is his own.

In sorting this out, as an initial matter, we need to know whether this single-Justice opinion, even if written by the Chief, is controlling.  There are two issues.

First, the Marks rule.  This rule, from Marks v. United States, says that when a majority on the Court agrees in a result, but cannot agree on a reason, the guiding opinion for future cases is the narrowest opinion on the winning side.  In the language of Marks, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds."

Here, Chief Justice Roberts wrote a slightly narrower opinion on the Commerce Clause than the dissenters.  But just barely.  They all said that Congress lacks authority to regulate inactivity (more on this below), and that therefore Congress lacks authority to require individuals to purchase health insurance.  This just-barely-narrower opinion, along with the Court's own characterization of Chief Justice Roberts's opinion as "an opinion" and the dissenters' opinion as "a dissenting opinion," Chief Justice Roberts's opinion, so far, is almost surely the guiding opinion under the Marks rule.

But there's another issue.  It's not clear that Chief Justice Roberts's opinion on the Commerce Clause is anything more than dicta.  In other words, Chief Justice Roberts's ruling on the Commerce Clause isn't necessary to the Court's ruling upholding universal coverage under the taxing authority.  Chief Justice Roberts argued in Section IIID of his opinion--again, writing just for himself here--that his analysis of the Commerce Clause was necessary, because "the statute reads more naturally as a command to buy insurance than as a tax," and "[i]t is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question."  But this is an exceedingly weak justification.  There's nothing that says that an argument presented alternatively must be addressed in the order presented.  (Here, the government argued first that the Commerce Clause supported universal coverage and second that the taxing authority did.)  Indeed, the better course--the judicial minimalist course--would be not to address it.

More importantly, Chief Justice Roberts's explanation gets only one vote.  Moreover, it's not necessary to any other Justice's analysis--even the dissenters.  (Why?  Because the dissenters object to everything.  They don't need to explain why they address the Commerce Clause--they have to address it as an alternative argument, because they also rule universal coverage unconstitutional under the taxing authority.)  Thus, it is not the holding of the Court on its own (because it gets only one vote) and it is not the guiding holding of the case under Marks (because it reflects the ruling of no other Justice).  If Chief Justice Roberts's weak explanation isn't the law, it seems, his analysis based upon that justification is also highly suspect.

If all this is right, then we have a highly fractured Court with no controlling opinion on the Commerce Clause.  If that's right, then the Commerce Clause hasn't changed.

But let's assume that's not right--because, in fact, courts will probably treat Chief Justice Roberts's opinion on the Commerce Clause as guiding.  Does the substance of his opinion limit the Commerce Clause?

The answer: Yes, but just by a hair.  Chief Justice Roberts wrote that the Commerce Clause doesn't allow Congress to require activity where there is no existing market.  In other words, Congress can't compel individuals to act without a background interstate market. 

But Chief Justice Roberts was also very careful to write that Congress has never done this before.  (Indeed, that's his stated reason to "pause to consider the implications of the Government's arguments."  Op. at 18.)  Agree or disagree with that conclusion, by its own terms it means that this is an exceptional, outside case.  That's the same thing that the government has said all along, although in different terms: the health-care market is different.

If everybody agrees that this is an exceptional case, Chief Justice Roberts's restriction on the Commerce Clause--that Congress can't regulate inactivity without a background interstate market--applies only in the rarest of circumstances.  Other than the very unusual hypos the Court tested at oral argument--a market for burial services (justifying a requirement to buy burial insurance), a market for emergency services (justifying a requirement to buy a cell phone to dial 911), and, of course, a market for food (justifying a requirement to buy broccoli)--this restriction will have no effect on congressional authority.

Indeed, even Chief Justice Roberts wrote--citing and reaffirming even those cases that reflect the broadest Commerce Clause power we've seen--that it never has had an effect on congressional authority. 

The only workable rule in the opinion is that Congress can't regulate inactivity when there's no background interstate market.  But by the Chief's own reckoning, this will only apply in the rarest of cases.

In other words: Chief Justice Roberts may have restricted the Commerce Clause, but just by a hair.  The restriction will be a mere footnote when we teach the modern doctrine.

But some have argued that the spirit of the opinion (if not the law of the opinion) reflects a restricted authority.  The bottom-line holding belies this: Congress has authority to enact universal coverage.  The aggregate weight of congressional authority hasn't much changed, even if it shifted a little from commerce to taxation.

In the end, Chief Justice Roberts's opinion on the Commerce Clause will make little difference.  There's a remote chance that it won't emerge as the controlling or guiding opinion; but even if it does (as seems highly likely), it just doesn't change the doctrine or the spirit all that much.

SDS

Congress Holds Holder in Contempt, Authorizes Suit

The House of Representatives voted today to approve House Resolution 706, holding AG Eric Holder in contempt of Congress for declining to turn over documents related to the DOJ's response to congressional and media inquiries into the Fast and Furious program.  Under the Resolution, the House holds AG Holder in contempt and authorizes the Chair of the House Oversight and Government Reform Committee, Rep. Darrell Issa, "to initiate or intervene in judicial proceedings in any Federal court of competent jurisdiction . . . to seek declaratory judgments affirming the duty of [AG Holder] to comply with any subpoena that is a subject of the resolution accompanying House Report 112-546"--the report issued by the Committee last week.

We posted on the Committee's vote here (with links to helpful sources); we posted on the administration's subsequent assertion of executive privilege here.

The move means that Rep. Issa and his committee can take the case directly to court, bypassing another option--referring the matter to the Assistant U.S. Attorney for D.C.  If Rep. Issa files, he will ask the court to order AG Holder to turn over the subpoenaed documents, notwithstanding the administration's assertion last week of executive privilege.  

The vote was 255 to 67, largely along party lines.  Seventeen Democrats voted with Republicans; two Republicans crossed the aisle.  More than 100 Democrats boycotted the vote altogether.

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Supreme Court Upholds Affordable Care Act

A sharply divided Supreme Court today upheld key provisions in the Affordable Care Act (the "ACA," or Obamacare).  The upshot is that five Justices (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) held that universal coverage (or the individual mandate) is upheld, and that a three-Justice plurality (Chief Justice Roberts and Justices Breyer and Kagan) held Medicaid expansion is upheld in a somewhat weaker form.  A different five Justices (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) held that the commerce clause did not support universal coverage (but for different reasons).

The ruling means that universal coverage stands, and Medicaid expansion stands, although in a somewhat weaker form.

Our analyses of oral arguments are here, here, and here.  We'll have more analysis of the opinion; here's just a breakdown of the holding.

Chief Justice Roberts wrote for the majority; by issue:

Taxing Clause.  A five-Justice majority held that Congress could enact the universal coverage provision (also called the individual mandate) under the taxing authority.  Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, wrote that the tax penalty for failing to purchase health insurance was a valid tax.  

First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.  It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the "prohibitory" financial punishment in Drexel Furniture.  Second, the individual mandate contains no scienter requirement.  Third, the payment is collected solely by the IRS through the normal means of taxation--except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.

Op. at 35-36.  The majority was untroubled that the tax penalty could be a "tax" for taxing authority purposes, but a non-"tax" for Anti-Injunction Act purposes: Chief Justice Roberts wrote that Congress itself enacted the AIA and could therefore itself draft around it (which it did here); but Congress's taxing authority may support congressional action whether or not Congress calls its action a "tax."

Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that universal coverage exceeded the taxing power.

Commerce Clause.  A five-Justice majority concluded that the Commerce Clause did not support congressional authority to enact universal coverage, but for two different reasons.  Chief Justice Roberts, writing for himself alone, wrote that universal coverage amounted to regulating before entrance into the market for health services--i.e., regulating someone who's "inactive."  (And Chief Justice Roberts didn't buy the government's claim that the maarket for health insurance was integrally connected to the market for health care.)  Chief Justice Roberts wrote that universal coverage was unprecedented and unsupported by the Court's cases.  (Chief Justice Roberts justified reaching the issue--even though the case could be (and was) decided on the taxing power alone--because, he said, the government designed universal coverage first as a regulation and only secondly (or alternatively) as a tax.)

Justices Scalia, Kennedy, Thomas, and Alito took a harder line, arguing that Congress here went too far, because it first sought to create commerce, and then to regulate it.

Medicaid Expansion.  Chief Justice Roberts wrote for himself and Justices Breyer and Kagan that Medicaid expansion as-is under the ACA--in which a state declining to participate in Medicaid expansion would stand to lose its entire pot of federal Medicaid money--was unduly coercive.  But the same plurality held that Medicaid expansion could be saved by simply reading the statute to mean that a declining state could lose only the additional federal money that would have come with the expansion.

Justices Ginsburg and Sotomayor wrote separately to argue that Medicaid expansion as-is under the ACA did not violate the Constitution.

Justices Scalia, Kennedy, Thomas, and Alito dissented, writing that Medicaid expansion was flatly unconstitutional.

SDS

Supreme Court Finds Stolen Valor Act Unconstitutional

In a plurality opinion written by Justice Kennedy, the United States Supreme Court today affirmed the Ninth Circuit holding the Stolen Valor Act unconstitutional in United States v. Alvarez.

The Stolen Valor Act, 18 USC §704(b) criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."   The penalty is enhanced if the statements relate to the Congressional Medal of Honor, the Purple Heart, and other specified awards.

Kennedy's plurality, joined by Roberts, Ginsburg, and Sotomayor, begins "Lying was his habit,"  a move taken directly from the arguments of Alvarez' attorneys.  The plurality noted that there was a circuit conflict, although the Tenth Circuit opinion was decided a month before oral argument, and interestingly focused on Snyder v. Phelps as another recent case in which the Court considered speech that disparaged - - - or attempted to steal - - - "honor that belongs to those who fought for this Nation in battle."

The plurality considered the statute as content-based (but not viewpoint discrimination).  The main rationale in the plurality's opinion was the breadth of the Stolen Valor Act, and it engaged in slippery slope rhetoric and a citation to the Orwell's famous novel 1984:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003).  Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. . . . Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

 The concurring opinion, authored by Justice Breyer and joined by Kagan, disclaimed a "strict categorical analysis" in favor of "intermediate scrutiny" or "proportionality review."   Breyer's concurring opinion also eschewed the categorical approach that lies were absolutely unprotected speech:

I must concede, as the Government points out, that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection. [Citations omitted].  But these judicial statements cannot be read to mean “no protection at all.” False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.

 

Justice Alito, dissenting and joined by Scalia and Thomas, stressed the importance of the government interest at stake, not surprisingly given his queries at oral argument.  His opinion began:

Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families.

Alito would have carved out a special exception for Stolen Valor:

In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect.

The decision is consistent with much of the popular opinion expressed regarding the case, but also with the Court's most recent pronouncements in United States v. Stevens (crush-porn) and Brown v. Entertainment Merchants Association (violent video games) refusing to carve out a category of speech from First Amendment protection. 

RR

In Memoriam: Ann Scales

ConLawProf Ann Scales, University of Denver Strum College of Law, was best known for her constitutional law work on feminist legal theory, equality, and military matters.  She died June 24, at the age of 60.

 

 

More on Feminist Law Prof here.

RR
[image of Ann Scales via]

Fault Lines in the Eighth Amendment

The Supreme Court on Monday ruled that a mandatory term of life imprisonment without the possibility of parole for juveniles convicted of murder violated the Eighth Amendment.  The ruling, Miller v. Alabama, leaves open the option of discretionary life without parole for juveniles, even as it rules out mandatory life without parole.  In other words, the ruling means that judges and juries must consider mitigating factors, including the offender's youth, before sentencing a minor to life imprisonment without parole.

Justice Kagan wrote the majority opinion for herself and Justices Kennedy, Ginsburg, Breyer, and Sotomayor.  Chief Justice Roberts wrote the principal dissent, joined by Justices Scalia, Thomas, and Alito.  (Justices Thomas and Alito each wrote their own concurrences, both joined by Justice Scalia only.)

The 5-4 split on the Court reveals (again) two important fault lines in Eighth Amendment jurisprudence that will undoubtedly affect future rulings.  First, the Court split sharply over how to read prior Eighth Amendment precedents--and whether those cases reflect a difference based on youth (the majority position) or a difference based on sentences and crimes (the principal dissent's position).  Thus, Justice Kagan wrote for the majority that two strands of precedent--one involving youth, the other involving mandatory death sentence--converged to drive the result here.  Justice Kagan wrote that the first strand--including Roper (holding that the Eighth Amendment bars capital punishment for children) and Graham (holding that the Eighth Amendment bars life without parole for a nonhomicide offense for children)--turned on the principal characteristic of the offender--youth.  She wrote that the second strand--Woodson (prohibiting a mandatory death sentence, without consideration of characteristics of a defendant and details of the offense)--said that legislatures can't impose death rigidly, without allowing for a consideration of important defendant characteristics (like youth).  Justice Kagan wrote that these strands, taken together, say that courts must be able to take into account a defendant's youth before imposing a permanent sentence like life without parole.  In other words, youth is at the intersection of these strands.

On the other side, Chief Justice Roberts wrote that these cases really turn on the nature of the underlying sentences and crimes, not youth.  Chief Justice Roberts wrote that Roper turned on the unique feature of a death sentence--the ultimate permanence--and the idea that death is different.  ("[M]ore importantly," he wrote, "Roper reasoned that the death penalty was not needed to deter juvenile murderers in part because 'life imprisonment without the possibility of parole' was available."  Dissent at 8, quoting Roper.)  He wrote that Graham turned on the difference between homicide and other serious violent offenses.  Chief Justice Roberts recognized that youth matters, but, in contrast to Justice Kagan, he argued that the prior cases turned not on youth, but on sentences and crimes.

With five Justices understanding the cases to turn on youth--and now with this case solidifying that understanding, and with increasing scientific evidence supporting the youth-are-different approach--we can expect future Eighth Amendment cases and challenges involving youth to also turn principally on youth.

Second, the Court split sharply over how to understand and interpret "evolving standards of decency," "objective indicia of society's standard," and a "consensus again" a sentencing standard--that is, the standards that the Court uses in measuring whether a sentence is "cruel and unusual" in violation of the Eighth Amendment.  Justice Kagan wrote that 29 jurisdictions (28 states plus the federal government) have mandatory-life-without-parole for juveniles.  This is a majority, to be sure, but other features of those laws mean that not all juveniles prosecuted for murder will necessarily receive mandatory life without parole.  And in any event, this is 10 fewer jurisdictions than the number that imposed life-without-parole overturned in Graham.  Justice Kagan says that the Court is therefore breaking no new ground in counting jurisdictions this way to determine whether a sentence is "cruel and unusual."

Chief Justice Roberts countered that life-without-parole has become more and more common in the past 25 years--reflecting an "evolving standard of decency"--and that in any event, "the number of mandatory life without parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, is over 5,000 times higher than the corresponding number in Graham."  Dissent at 4.  Moreover, he argues that the majority's approach puts the Court on the road to overturning even discretionary life-without-parole sentences (as those become less and less frequent, thus reflecting a new practice)--or, for that matter (as Justice Alito adds, in his own dissent), to overturning any sentence that the Court's majority feels is out of line with practice.  

With five Justices understanding "evolving standards," "objective indicia," and "consensus" as measured as Justice Kagan did (and not as Chief Justice Roberts would), a majority has clearly ruled out the minority's stricter, more narrow approach to determining "consensus."  We can expect future Eighth Amendment challenges to look somewhat more broadly at state and federal legislative practice to discern any "consensus." 

In all, with this majority's read of Roper and Graham and Woodson, and with this majority's understanding of "evolving standards," "objective indicia," and "consensus," the Court--even if by a bare majority--now seems set firmly on a trajectory that considers youth first (and not the sentence or the crime first) and understands "consensus" more broadly (and not so rigidily, just counting jurisdictions or sentences).  

SDS

Supreme Court Strikes Montana Campaign Finance Restriction

A sharply divided Supreme Court today in American Tradition Partnership v. Bullock summarily reversed an earlier Montana Supreme Court ruling and held the Montana restriction on independent campaign expenditures unconstitutional in violation of the First Amendment speech clause.  The ruling wasn't a huge surprise, as the Court previously stayed the Montana ruling pending its consideration of the case.

The ruling affirms the Court's commitment to Citizens United--the case holding that restrictions on independent electioneering expenditures violated the First Amendment--even in the midst of massive independent spending and the arrival of influential super-PACs this election cycle.  The ruling means that the Court will allow no breathing room for regulation of independent electioneering expenditures--even when a state, like Montana, can show that it had a history of corruption through independent expenditures, and even when the restrictions don't seem all that onerous.

The ruling also means that the Court isn't in the mood to reconsider Citizens United--anytime soon, at all.  If anything, this ruling only strengthens Citizens United, illustrating that there really is no breathing room for regulations on independent electioneering expenditures.

Recall that the Montana Supreme Court earlier upheld the state's restriction on independent electioneering expenditures, holding that Montana's history of political corruption through independent expenditures justified the restriction even under Citizens United.  The court also held that Montana's restrictions weren't as onerous as the federal restrictions at issue in Citizens United.  

In short, the Montana court held that the Montana restriction was distinguishable on the facts from Citizens United, and the court therefore could thread the Citizens United needle and enact its restriction.

The Supreme Court's ruling today means that there's no eye in the Citizens United needle--not even a small one.

Montana's law says that a "corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party."  The five-Justice majority, in a remarkably brief per curiam opinion, said that "Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote in dissent that they'd reconsider Citizens United, and that even under Citizens United Montana showed that independent expenditures did lead to corruption and were therefore regulable.  (These four did not vote to grant cert., however, because, as Justice Breyer wrote, "given the Court's per curiam disposition, I do not see a significant possibility of reconsideration.  Consequently, I vote instead to deny the petition."  Under Court rules, these four votes could have put the case before the Supreme Court, but they understood that the Court wouldn't reconsider Citizens United or its application here--and that Court consideration might only serve to strengthen Citizens United even more.)

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Supreme Court's Split Decision on Arizona's SB1070

The Supreme Court issued its much-anticipated opinion in Arizona v. United States on the constitutionality of controversial state immigration statute SB 1070. The over all issue, recall, is whether the state law is preempted by the federal statutory immigration law and thus invalid under the Constitution's Supremacy Clause, Article VI.

The majority - - - Justices Kennedy, Roberts, Ginsburg, Breyer, and Sotomayor - - - affirmed in part and reversed in part the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of SB 1070.  

The Courthad granted the petition for writ of certiorari on four provisions:

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

The majority held that Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law, but that the controversial 2(B) was not.

On Section 3, the Court applied complete field preemption, holding that even complementary state regulation unconstitutionally intrudes.

On Section 5(C) and 6, the Court held that the state provisions operated as obstacles to the federal statutory scheme.

Upholding Section 2, the Court essentially held that without state courts having an opportunity to further construe the provision, the record was too incomplete to determine whether or not the provision conflicted with federal law.  

Justices Scalia, Thomas, and Alito each wrote separate dissents.  Justice Elana Kagan did not participate. 

 

UPDATED ANALYSIS:

The Opinion of the Court is relatively brief at 25 pages.  For an opinion by Justice Kennedy (dare I say), it is unusually well-structured.  The discussion of pre-emption principles is setting out express preemption, then pervasive field preemption and conflict (obstacle) preemption, including the Court's most recent preemption opinion, Whiting, which it will later distinguish (and which was joked about as decisively precedential by Justice Roberts at oral argument, who interestingly joins Kennedy's opinion). 

Then it considers each provision, providing some but not overwhelming detail, regarding the conflict.  Most controversially (and lengthily), the Court reversed the Ninth Circuit’s conclusion that Section 2(B) was preempted, focusing both on the mandatory status checks (– colloquially known as the “show me your papers” provision – ) and the possibility of prolonged detention.   However, the majority stated that Section 2(b) could be read to avoid the concerns of conflict and offered some hypos:

To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. [citations omitted].

To take another example, a person might be held pend­ing release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the cir­cumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.

For some, these "could be read" passages suggest that only upon a narrow construction would Section 2(B) be upheld.

 Not surprisingly dissenting, Justice Scalia would have upheld SB1070, and stressed the historical precedent that would allow states as sovereigns to exclude all aliens from their states.  His use of history here will most likely be criticized by some legal historians of the Early Republic. In a statement sure to provoke more controversy, he referred to President Obama’s statement regarding young non-citizens, saying “The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­ tion’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind.”  He closed by repeating Paul Clement’s claim that “Arizona bears the brunt of the country’s illegal immigration problem.”

Thomas' briefly opined that even "assuming the existence of some tension" between SB1070 and the federal scheme, it did not merit preemption.  Alito's much longer opinion agreed with the Court that 2(B) was not preempted, and interestingly agreed that Section 3 (colloquially known as the carry your papers provision) was preempted. He "part[ed] ways" on §5(C) and §6, arguing that Congress was not sufficiently clear on its desire to preempt a provision regarding employment and that §6 "adds virtually nothing to the authority that Arizona law enforcement officers already exercise."

RR

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Arkansas High Court Rules State Method of Execution Act Unconstitutional

The Arkansas Supreme Court ruled on Friday in Hobbs v. Jones that the state's statutory method of execution violated state constitutional separation of powers.  In particular, the court ruled that the general guidelines that the legislature provided to the Arkansas Department of Corrections, or ADC, to conduct intravenous lethal injections were too broad and constituted an unlawful delegation of legislative authority to the state executive agency.

The ruling leaves the state without a method of execution--at least for now.  (The court also held that the offending sections of the act were nonseverable, ruling out a judicial excision or rewrite of the language and thus preserving the larger act.)  The legislature could act relatively easily to amend the state's Method of Execution Act, or MEA, and to provide more detailed guidelines to the ADC within the bounds of the state's separation of powers principles and its nondelegation doctrine.

Arkansas is one of those states that has a specific separation-of-powers provision in its constitution.  (The federal government does not have a specific separation-of-powers provision.)  Article 4 reads:

Section 1.  The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.

Section 2.  No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Under Article 4 and the state constitutional nondelegation doctrine, the Arkansas Supreme Court has held that the legislature may delegate to the executive, so long as it provides reasonable guidelines and appropriate standards.  "A statute that, in effect, reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary power and is an unlawful delegation of legislative powers."  Op. at 10.

The relevant portions of the MEA read as follows:

(a)(1)  The sentence of death is to be carried out by intravenous lethal injection of one (1) or more chemicals, as determined in kind and amount in the discretion of the Director of the Department of Correction.

(2)  The chemical or chemicals injected may include one (1) or more of the following substances:

(A) One (1) or more ultra-short-acting barbiturates

(B) One (1) or more chemical paralytic agents;

(C) Potassium chloride; or

(D) Any other chemical or chemicals, including but not limited to saline solution.

Ark. Code Ann. Sec. 5-4-617 (Supp. 2011).

The court ruled that these sections violated the state constitutional nondelegation doctrine, because they gave the ADC "absolute and exclusive discretion . . . to determine what chemicals are to be used."  It said that (a)(2) did nothing to rein in that discretion, because by its plain terms--"may"--it is only permissive.  In other words, the ADC could use chemicals that fall into these categories, or it could use any other chemicals it likes.  Moreover, a later subsection, (a)(4), "gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation."  Op. at 14.

Justice Karen Baker, joined by Special Justice Bryon Freeland, dissented.  Justice Baker argued that several other states have tolerated similar guidelines in the face of equally strict separation-of-powers clauses.  In any event, she wrote that the guidelines in the MEA were detailed enough to withstand the challenge under the Arkansas Constitution, and that state and federal constitutional bans on cruel and unusual punishment provided an outside limit to what the ADC could do.

SDS

Federal District Judge Upholds Indiana Statute Banning Sex Offenders from Facebook

In her 19 page opinion in Doe v. Prosecutor, Marion County, Judge Tanya Walton Pratt of the Southern District of Indiana upheld the state's statute prohibiting some sex offenders from accessing social media.

She rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open.

The judge rejected the claim that the use of Facebook for the purposes this statute is meant to foreclose are already criminalized by another statute.  Instead, she seemingly shifted the burden to Doe to suggest a more narrow statute that would achieve the state's goals:

That said, Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal (deterrence and prevention of online sexual exploitation of minors) while not violating his First Amendment rights. Here, the statute bars a subset of registered sex offenders from visiting a subset of web sites that minors (and the public at large) use with regularity, which include Facebook, Twitter, Google Plus, various chat rooms, and various instant messaging programs. In other words, Mr. Doe is only precluded from using web sites where online predators have easy access to a nearly limitless pool of potential victims.

She then added her own rationale:

Given the high recidivism rates, it is obvious that many sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims.

Regarding alternatives for communication, she readily conceded that

social networking is a prominent feature of modern-day society; however, communication does not begin with a “Facebook wall post” and end with a “140-character Tweet.”

But the list she provides of other "myriad feasible alternative forms of communications" may strike avid facebook users as odd: "the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook (or some other prohibited account), email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors (e.g. LinkedIn and a number of other sites which allow only adults)."   The LinkedIn exemption is interesting.  While the statute itself seems unclear, and the judge admits that there was "some confusion on this point during the briefing," she concluded that "it is seemingly clear that Mr. Doe can use the professional networking web site LinkedIn."   

According to an AP report by Charles Wilson, the ACLU will appeal.

RR

The Legality of the Administration's Position on Immigration

In the wake of President Obama's announcement last week that his administration would exercise prosecutorial discretion not to deport certain young people--undocumented aliens brought to the U.S. by their parents--Republicans cried foul and accused the President of overstepping his bounds by violating the law and not just enforcing it.  

Representative Steve King (R-IA) apparently moved one step closer to filing a lawsuit to stop the administration's move, citing separation-of-powers concerns.  Although we haven't seen a complaint yet, Rep. King argues, according to the Daily Caller, that the President's move was "constitutional overreach."  According to King:

If he can do this by memorandum, then he can raise the debt limit by the same standard.  He could argue that he's not going to audit nor enforce tax collection on certain classes of people.  He could do that by age group.  He could do that by race, by ethnicity.  The president can do anything he wants to do.

According to the story, Rep. King's "central argument" is that "the president has legislated by memorandum."

Rep. King's legal claims aren't particularly developed--they're bald, they overstate any slippery slope, and they're at least in part obviously false--but they well represent the kinds of claims we've heard from opponents of the President's move.

On the other side, a group of immigration and constitutional law professors sent this letter to the White House late last month, outlining three different ways that President might exert prosecutorial discretion under the law and prior practice.  According to the profs, the President could use "deferred action," "parole-in-place," or "deferred enforced departure" to support his prosecutorial discretion not to deport this class of individuals.  The profs argue that these methods are supported in both law and prior executive practice.

Indeed, Secretary Janet Napolitano's memorandum implementing the President's announced practice draws on deferred action, even if it doesn't cite specific authority (as the profs do).  The memo is careful to emphasize "prosecutorial discretion," attention to "enforcement priorities," and case-by-case consideration, ensuring that the practice stays on the execution-side of that sometimes fuzzy line between lawmaking (reserved for Congress) and law-executing (reserved for the President).  

The memo sets out 5 criteria for individualized consideration and says,

Our Nation's immigration laws must be enforced in a strong and sensible manner.  They are not designed to be blindly enforced without consideration given to the individual circumstances of each case.  Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language.  Indeed, many of these young people have already contributed to our country in significant ways.  Prosecutorial discretion, which is used in so many other areas, is especially justified here.

As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal.  No individual should receive deferred action under this memorandum unless they first pass a background check[,] and requests for relief pursuant to this memorandum are to be decided on a case by case basis.  DHS cannot provide any assurance that relief will be granted in all cases.

Opponents, like Representative King, seem to argue that President Obama's announcement represents a blanket policy that thrusts into the lawmaking power reserved for Congress.  But Secretary Napolitano's memo makes clear that this is no blanket policy; it is more like guidance to ensure that enforcement officers take the administration's priorities into account when determining whether to pursue deportation on a case-by-case basis.  And the law profs' letter shows why this exercise of prosecutorial discretion is supported by law and past executive practice.

Also working against opponents: Both the House and the Senate last year introduced legislation, but then let it stall in committee, to rein in the President's authority to do exactly what he did.  The bills, cleverly titled the Hinder the Administration's Legalization Temptation, or HALT, Act, H.B. 2497 and S. 1380, are both tied up in committees.  The bills, by moving to rein in the President, also recognize that the President has prosecutorial discretion.  Yet Congress didn't pass them, or even, apparently, prioritize them.

SDS

Court Takes on Union Assessment Rules in Knox

The usual First Amendment rule for public-sector union fee assessments for non-members is that unions have to provide notice and an opportunity to opt out of those portions of the fees that go to non-bargaining, political activities.  These are called "non-chargeable" expenses.  (Non-union members can't opt out of that portion of the fees that goes to collective bargaining activities--the "chargeable" expenses.  This rule prevents non-members from free-riding on the union's regular, collective-bargaining activities.)  The Court crafted the rule in Teachers v. Hudson.

The case today, Knox v. SEIU, however, dealt with a special assessment--not a regular, annual assessment--that the union initially said would go entirely to non-chargeable expenses, that is, the union's political opposition to California's proposed measures to clamp down on unions.  The case thus tested Hudson's applicability to special assessments.

Justice Alito's majority opinion said that the First Amendment requires that unions provide notice and an opportunity to opt in to special union assessments that are used for non-bargaining, political purposes.  Relative to the Hudson opt-out rule, the holding puts a thumb on the scale against unions in collecting special assessments--because it means that non-members have to affirmatively elect to pay for special assessments, rather than allowing the unions to issue notice and opportunity to opt out.  This was a significant, if narrow, holding.

But Justice Alito's opinion did much more.  In particular, it took direct aim at the traditional rule for regular, annual assessments, the Hudson rule, that unions have to provide notice and an opportunity to opt out.  The opinion all but said that this rule violated the First Amendment.

If so, this would deal a significant blow to public-sector unions in agency shops and their non-bargaining activities.

Justice Alito's opinion is rife with references to the "extraordinary" benefit that unions get under the Hudson rule at the expense of non-members' associational rights, strongly suggesting that the rule is unconstitutional--and that five on the Court are ready to revisit it.

For example, Justice Alito writes that "Our cases to date have tolerated this "impingement," [the Hudson process] and we do not revisit today whether the Court's former cases have given adequate recognition to the critical First Amendment rights at stake."  Op. at 10.  More: "By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate."  Op. at 14.  And:

Acceptance of the free-rider argument as justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly--one that we have found to be justified by the interest in furthering "labor peace."  But it is an anomaly nevertheless.

Op. at 11.

In the context of special assessments, but with reasoning that would seem to apply equally to regular assessments, Justice Alito wrote:

Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union's political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment?  Shouldn't the default rule comport with the probable preferences of most nonmembers?  And isn't it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues?  An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. . . . .

Op. at 11 to 12.

In short, the opinion seems to tee up the next case, dealing with the regular assessment, Hudson process--and similarly putting a thumb on the scale against the unions there.

Justice Sotomayor wrote a concurrence, joined by Justice Ginsberg, that called the majority on its overreach with regard to the regular assessment Hudson rule.  Justice Sotomayor also called the Court on its creation of the new opt-in rule for special assessments.  

The concurrence underscores the fact that there was a way to rule against the union special assessment here, while still stopping short of the sweeping majority approach and taking aim at the long-settled Hudson rule.  

In other words, the availability of Justice Sotomayor's narrower approach tells us that each of the five in the majority could have elected to rule more narrowly.  But they didn't.  In other words, each of the five in the majority seems to be on board with the strong signal that the Hudson rule itself is unconstitutional.

Justice Breyer wrote a dissent, joined by Justice Kagan.  Justice Breyer wrote that the process in this case complied with Hudson.  That is, the union provided adequate notice and opportunity to opt-out under the circumstances--even if that opportunity came late.  In other words, given the variances in union spending from year-to-year, unions can only estimate future assessments based on past expenditures.  (This system ensures that objecting nonmembers can recoup the offending expenditures over time.)  Thus in the next regular assessment--the one immediately after the special assessment--the union has to estimate expenditures based on total prior year expenditures (including the special assessment).  The notice and opportunity to opt out in the next year covers those nonmembers who objected to the special assessment.  And in this case, that worked out to their benefit; they even got a little windfall.  Justice Breyer said that this process, while "imperfect," satisfied Hudson and satisfied the First Amendment.

SDS

Union Special Assessment Procedure Violates First Amendment

A divided Supreme Court today ruled in Knox v. SEIU that a union must provide notice and opt-in for a proposed special assessment in a public-sector agency shop.  We covered the background and oral arguments here.

The majority opinion leaves long-standing rules about union assessments for public-sector agency shops hanging by a thread.  In addition to its ruling on special assessments--a question that was open before this case--the ruling takes sharp issue with the idea that the First Amendment permits a public-sector union to provide notice and opt-out for its regular, annual assessments.  

The ruling is a blow to unions' ability to collect special assessments.  It says that the First Amendment requires notice and opt-in for those.  But the ruling also signals the majority's discontent with the long-standing rules on regular assessments.  The ruling all but held those rules--notice and opt-out--unconstitutional.  (Those rules, of course, were well beyond the scope of the case.  But the majority sent a strong signal that it would consider their constitutionality, if not outright rule them unconstitutional, if given even half a chance.)

Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.  Justices Sotomayor and Ginsburg concurred in the judgment, and argued that the majority's ruling--requiring notice and opt-in--went far afield of the arguments and briefing.  Justices Breyer and Kagan dissented.

We'll provide more analysis shortly.

SDS

Supreme Court on FCC v. Fox and ABC: Fleeting Expletive and Nudity Rules Violated Due Process

In a relatively brief (and almost unanimous) opinion today - - - a mere 23 pages - - - the Court decided FCC v. Fox Television Stations (together with FCC v. ABC, Inc.) involving fleeting expletives and fleeting nudity. 

Justice Kennedy's opinion for the Court spends the first 11 pages discussing the regulatory scheme and reciting the complicated history of this litigation.  Recall that the precise issue before the Court prompted confusion at oral argument.

The opinion resolves - - - or perhaps sidesteps - - - this disarray by deciding the case on Fifth Amendment Due Process grounds, holding that the FCC regulations were unconstitutionally vague.  As Kennedy wrote, the "void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina­ tory way."   The opinion the added: "When speech is involved, rigorous adher­ence to those requirements is necessary to ensure that ambiguity does not chill protected speech."

Thus, while the Court does not resolve the case on First Amendment grounds, it certainly uses First Amendment concerns to animate the due process analysis.

Yet the analysis itself is truncated and interestingly augmented by a discussion of what the Court did not hold:

• "First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implica­tions of the Commission’s indecency policy."
• "This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub­ sequent adjudications."
• "Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application."

The decision is not quite unanimous not only because Justice Sotomayor did not participate, but because Justice Ginsburg concurred in the judgment only, writing a brief concurring opinion:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).

Thus, it seems that the indeterminate status of fleeting expletives and nudity in regulated media continues.

RR

President Asserts Executive Privilege in Fast and Furious Investigation

The President today formally asserted executive privilege in the ongoing dispute between the House Oversight and Government Reform Committee and AG Eric Holder related to the Committee's subpoena for documents from Holder related to Fast and Furious.  The move comes as the Committee is considering a contempt resolution against AG Holder for withholding documents related to the Department of Justice's investigation into the program and its reaction to Committee and media inquiries.  

The move means that the contempt resolution by the Committee will have even less effect in ultimately producing any documents than it might have had before the assertion of privilege.  (And it's not clear that the resolution would have had any effect, anyway.)  If past practice is any guide, the invocation of executive privilege ensures that the Department of Justice will not prosecute for criminal contempt.  (Recall that the contempt resolution, as of yesterday, refers the matter to the US Attorney for D.C., and apparently does not seek authority for the Committee or the House to pursue a civil judgment in federal court.)

AG Holder asked President Obama to invoke executive privilege in this letter yesterday.  In the letter, AG Holder writes that he is

very concerned that compelled production to Congress of internal Executive Branch documents generated in the course of the deliberative process concerning its response to congressional oversight and related media inquiries would have significant, damaging consequences: It would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight.  This would raise substantial separation of powers concerns and potentially create an imbalance in the relationship between these two co-equal branches of the Government.

AG Holder wrote that the Committee's interest in the material didn't meet the standard to overcome an assertion of executive privilege--"demonstrably critical to the responsible fulfillment of the Committee's functions," Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974)--because it's not obviously related to a legislative function of the Committee, because the Department already substantially complied with the Committee's requests, and because an internal IG investigation should assuage any congressional concerns that the Department is attempting to conceal important facts.

Deputy AG James Cole wrote this letter to Representative Issa, summarizing AG Holder's legal analysis and reporting that the President had formally invoked the privilege.

SDS

Issa, Committee to Vote on Holder Contempt Resolution

Representative Darrell Issa, Chair of the House Oversight and Government Reform Committee, is poised to move forward tomorrow on a vote on a contempt resolution against AG Eric Holder.  The Resolution and Report cite Holder's failure to turn over documents that the Committee earlier subpoenaed related to the "Fast and Furious" program.

The move will likely have no effect, except to further publicize Issa's dispute with Holder.  The principal type of criminal contempt proposed in the Resolution--in which the Committee refers the matter to the U.S. Attorney for D.C.--is unlikely to go anywhere, especially if Holder cites executive privilege (which he apparently has not yet done).  The other kind of contempt possibly suggested in the Resolution--inherent contempt, where Congress relies on its own constitutional power to detain a contemnor until that person complies--is long dormant (and unimaginable here).  The Resolution apparently does not pursue a third kind of contempt--one in which Congress seeks a civil judgment in federal court that the person is legally obligated to comply with a congressional subpoena.

Here's the language of the Resolution:

Resolved, That Eric H. Holder, Jr., Attorney General of the United States, shall be found to be in contempt of Congress for failure to comply with a congressional subpoena.

Resolved, That pursuant to 2 U.S.C. Secs. 192 and 194, the Speaker of the House of Representatives shall certify the report of the Committee on Oversight and Government Reform, detailing the refusal of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to produce documents to the Committee on Oversight and Government Reform as directed by subpoena, to the United States Attorney for the District of Columbia, to the end that Mr. Holder be proceeded against in the manner and form provided by law.

Resolved, That the Speaker of the House shall otherwise take all appropriate action to enforce the subpoena.

Here's from the Report's Executive Summary:

The Department of Justice has refused to comply with congressional subpoenas related to Operation Fast and Furious, an Administration initiative that allowed around two thousand firearms to fall into the hands of drug cartels and may have led to the death of a U.S. Border Patrol Agent.  The consequences of the lack of judgment that permitted such an operation to occur are tragic.

The Department's refusal to work with Congress to ensure that it has fully complied with the Committee's efforts to compel the production of documents and information related to this controversy is inexcusable and cannot stand.  Those responsible for allowing Fast and Furious to proceed and those who are preventing the truth about the operation from coming out must be held accountable for their actions.

Having exhausted all available options in obtaining compliance, the Chairman of the Oversight and Government Reform Committee recommends that Congress find the Attorney General in contempt for his failure to comply with the subpoena issued to him.

Committee Democrats issued a 13-page memo with dissenting views, concluding that going forward with Issa's contempt citation would be "an extreme and blatant abuse of the congressional contempt power that undermines the credibility of the Committee."

The Congressional Research Service recently issued a thorough report on Congress's contempt power.  You might take a look at the appendix, starting on page 62, which details the history of Congress's use of that power.

SDS

 

CFP: Corporations and Children's Rights

ConLawProfs doing work on privatization might be interested in this CFP for a Vulnerability and Feminism Legal Theory Workshop.

From the organizers:

This workshop considers the growing trend in some countries to subordinate and often sacrifice children's interests (indeed all of our interests) to corporate interests claimed in the name of efficiency. This trend is represented by the proliferation of for-profit schools, hospitals, and prisons, and in corporate rights exemplified by the reach of commercial advertising into public schools -- from buses to corridors to cafeterias.  Particularly in the U.S., the corporation reigns supreme.  Politicians and policy makers increasingly accept markets as adequate mechanisms to allocate health, education, public safety, criminal justice, environmental protection, recreation, procreation, and other social goods, and they tend to consider "business" models as the superior means to do so.  Corporate legal personhood protects as "speech" the allocation of corporate wealth to political and social causes that aggressively work against protective regulations of corporate activities.  Advertising and social media driven by corporate interests create consumer demand for unhealthy and unnecessary products and use the mantra of parental "choice" as a subterfuge for gross profit-seeking.  Corporate practices and "values" are adopted as relevant and beneficial to assessing the worth and success of public services, such as education and health care. What is the balance struck in other countries?  Is it possible within a liberal legal order to challenge the assumptions that underlie privatization and the "corporatization" of society?  Is it impossible to reorient and "humanize" the corporation by holding it legally responsible beyond shareholders and the market, using law to encourage responsiveness to the interests of children and other human beings?  

 

The deadline for submissions is July 25, 2012.   More info, including submission details, here.

RR

Saturday Evening Review: What's the Difference Between Equal Protection and Fair Cross-Section?

What's the difference between the Fourteenth Amendment's Equal Protection Clause and the Sixth Amendment's Fair Cross- Section protection?   

In a word: "intent." 

But in other words: "not much," at least according to most courts.

Nina W. Chernoff (pictured right) tackles this issue in Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, available on SSRN and forthcoming in Hastings Law Journal.  She demonstrates the consistent mistake courts make by not honoring the doctrinal distinction between equal protection (requiring intent) and fair cross-section (not requiring intent) when considering impartial jury claims.  The cost of this mistake is a high one paid by criminal defendants.

Consider this: a computer error excludes every African-American from the jury pool.  If there was no human intent, then there is no equal protection violation.  But the criminal defendant would nevertheless be denied the posibility of a jury drawn from a fair-cross section of the community.  Chernoff discusses similar cases and shows how courts conflation of equal protection and fair cross-section doctrine denies defendants relief in such situations.

This article should be of special interest to ConLawProfs who teach Criminal Procedure.  But it's worth reading for anyone interested in the limits of current equal protection doctrine.  The article is further discussed as my selection for the Jotwell Equality section; it's the best article I've read on constitutional equality in the last year. 

My selection last year for the Jotwell Equality section was Julie Nice's terrific article on Christian Legal Society (CLS) v. Martinez.

RR

D.C. Circuit Rejects Torture Suit Against Rumsfeld

A three-judge panel of the D.C. Circuit today rejected a U.S. citizen's Bivens action against former Defense Secretary Donald Rumsfeld for developing, authorizing, and implementing policies that led to his torture while in U.S. custody in Iraq.  The panel, following an earlier similar ruling from the Fourth Circuit, Lebron v. Rumsfeld, held that special factors counseled against a Bivens remedy--special factors "pertaining to military, intelligence, and national security."

The ruling comes on the heels of the Supreme Court's rejection of the plaintiffs' cert. petition in Lebron and while a similar suit is now pending before the en banc Seventh Circuit.  (A three-judge panel of the Seventh Circuit earlier ruled that the plaintiffs in that case did have a Bivens remedy against Rumsfeld.)

The case means that U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials in the D.C. Circuit, even when the violations resulted from torture while in U.S. custody.  With two circuit rulings now on the books--this case, Joe Doe v. Rumsfeld, and Lebron--and with a Seventh Circuit ruling against the plaintiffs now all but certain, and with the Supreme Court's rejection of cert. in Lebron, it now seems all but certain that other circuits faced with the question will follow suit, and that therefore U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials anywhere.

The case also gives extraordinary authority to the executive to evade suits for detention and mistreatment--even torture--of U.S. citizens.  Congress, of course, could change this by authorizing such suits.  But don't look for that to happen anytime soon--or ever.

The D.C. Circuit ruling closely follows the Fourth Circuit's earlier ruling.  That is, the court today ruled that the "special factors" of military, intelligence, and national security foreclose a civil damage remedy for constitutional violations by U.S. citizens.  Here's the court's special factor analysis:

In his complaint, Doe challenges the development and implementation of numerous military policies and decisions.  The complaint would require a court to delve into the military's policies regarding the designation of detainees as "security internees" or "enemy combatants," as well as policies governing interrogation techniques.

Doe's allegations against Secretary Rumsfeld implicate the military chain of command and the discretion Secretary Rumsfeld and other top officials gave to [military] agents to detain and question potential enemy combatants.  The allegations raise questions regarding Secretary Rumsfeld's personal control over the treatment and release of specific detainees.  Litigation of Doe's case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq.  And . . . allowing such an action would hinder our troops from acting decisively in our nation's interest for fear of judicial review of every detention and interrogation.

Op. at 10-11.

The court also found persuasive--another "special factor" counseling against a Bivens remedy--that Congress did not authorize such suits under the Detainee Treatment Act, or any other statute.  

Because the court ruled against Doe on Bivens, it did not rule on Rumsfeld's defense of qualified immunity.

SDS

British Columbia Supreme Court Holds Assisted Suicide Ban Unconstitutional

The Supreme Court of British Columbia today issued its lengthy opinion in Carter v. Canada (Attorney General), authored by Justice Lynn Smith, a former dean at the Faculty of Law of the University of British Columbia.  Smith's opinion concluded that the assisted suicide prohibition in the Canadian Criminal Code infringes sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Section 7 - - -  " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," and Section 15(1) - - - "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" are often be analogized to due process and equal protection by those trained in the US constitutional system. 

However, Judge Smith made little use of US constitutional precedent and did not give much credence to the Canadian government's reliance on Washington v. Glucksberg, in which the US Supreme Court rejected a constitutional challenge to an assisted suicide ban. [¶ 1118 of Opinion].  Instead, Judge Smith extensively canvassed the state of assisted suicide laws in US states and other nations, producing a scholarly survey and discussion of the issues.  Insisting that "context is vital," Judge Smith's decision is nuanced and careful.

This care and nuance is evident in the declarations that the Criminal Code provisions unjustifiably infringe sections 15 and 7 of the Charter

to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: 

(a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and

(b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.

[¶ 1393].  For some, this type of decision is reminiscient of legislation, but the declarations are suspended for one year allowing Parliament time to correct the constitutional problems.  Yet defering the opinion's effective date for a year has obvious costs given the court's own discussion.  For plaintiff Gloria Taylor the plaintiffs had sought an "immediate constitutional exemption that would allow her to avail herself of a physician-assisted death at such time and subject to such terms and conditions that the Court allows or requires."  Judge Smith's opinion grants such an exemption and sets out its terms. 

The opinion garnered attention from news outlets including the Vancouver Sun and The Globe and Mail.

RR