Constitutional Law Prof Blog

DOMA Held Unconstitutional - - - Yes, Again

In what is becoming a common occurence, a federal judge held section 3 of DOMA unconstitutional.

Today's opinion in Pedersen v. Office of Personnel Management, with BLAG (Bipartisan Legal Advisory Group of the House of Representatives) intervening to defend the law, is by Judge Vanessa Bryant of the United States District Court for the District of Connecticut.

Judge Bryant's thorough opinion, over 100 pages, treads by now familiar ground.  Judge Bryant first rehearses the history ofthe Defense of Marriage Act (DOMA), standing, and the (in)applicability of the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972).

In applying Equal Protection doctrine to a classification based upon sexual orientation, the first task is to determine the level of scrutiny to be applied to sexual minorities. As Professor Julie Nice writes over at Jurist, this can put a court in a "dither" given the Supreme Court's "miminalism" on this issue. 

But Judge Bryant attempted to be clear, both in her theoretical perspectives and doctrine. She first stated she "must not be tempted to tie conceptions of judicial restraint to historic notions of equality," but instead engage in a "rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles."  (Opinion at 34-35).  She then extensively applies the four common factors to determine whether a particular classification should be considered either a suspect or quasi-suspect class:

• (1) the history of invidious discrimination against the class burdened by the legislation;
• (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society;
• (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members' control; and
• (4) the political power of the subject class.

Judge Bryant's opinion is especially worth reading on the "political powerlessness" prong in light of arguments regarding President Obama's opinions on sexual orientation.  Having considered all four factors, the judge found that " homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny."  She then quickly defaulted to another rationale:  "However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny."

Thus, Judge Bryant applied rational basis scrutiny requiring a "legitimate interest" that is reasonably served by the statute.  The legislative history of DOMA advanced four interests for the statute: "(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 governmental resources."  In litigation, BLAG asserted five: 1)  To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage; 2)  To protect the public fisc; 3)  To maintain consistency and uniformity with regard to eligibility for federal benefits;  4)  To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and 5)  To recognize an institution designed to ensure that children have parents of both sexes.  One by one, Judge Bryant considered the interests and their rational relationship to the statute, concluded that not one of them was sufficient.

Judge Bryant considers judicial review and the role of courts in a democracy at several points, and concludes:

"In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution."

Certainly this opinion will be appealed, as have the others, including three pending petitions in the United States Supreme Court.  But with yet another federal judge finding DOMA unconstitutional, it would make a Supreme Court decision to the contrary look more and more problematical.

RR

Arizona HB 2036: Federal Judge Upholds Restrictive Abortion Law

In a relatively brief opinion in Isaacson v. Horne, federal judge James Teilborg rejected constitutional challenges to  Arizona House Bill 2036 (“H.B. 2036”), signed into law by the Governor in April 2012, restricting all abortions at 20 weeks of pregnancy or later, except in "medical emergency."  The judge evaluated the legislative findings of "the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at [20 weeks] gestational age."

The opinion's reasoning largely rests on two extensive quotations.  First, the judge quotes from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879-80 (1992), regarding the definition of “medical emergency,” concluding that the Arizona statute is within the broad definition.  Second, the judge relied on Gonzales v. Carhart, 550 U.S. 124 (2007) and its description of one type of procedure. The judge then credited the legislature's fetal pain rationale, finding that "by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors."  The judge did add that as an additional legitimate interest, the "instance of complications is highest after twenty weeks of 20  gestation" supported the interest in the pregnant woman's health.

The Center for Reproductive Rights will undoubtedly appeal.

RR

UPDATE HERE

The United States Supreme Court on the Olympics

As the 2012 Olympics get under way in London, participants, attendees and viewers may think they are watching a modern re-enactment of the Greek classical  practice also known as the Olympics. The United States Supreme Court, in its majority opinion by Justice Powell in the 1987 case of San Francisco Arts and Athletics v. U.S. Olympic Committee, pointed out the differences:

The ancient Olympic Games lasted 5 days, whereas the modern Olympics last for 10 days. The ancient Games always took place in Olympia in southern Greece; the modern Olympic Games normally move from city to city every four years. (As an effort to reduce nationalism, cities, as opposed to countries, host the modern Olympic Games.) In ancient Greece there may have been a burning fire for religious sacrifice, since the Olympic Games were part of a religious festival.  The torch relay, however, was an innovation of the modern Olympic Committee. The closest parallel to the modern opening parade was the opening of the ancient Games with the chariot race. As the chariots entered the arena and passed the judges, a herald called out the names of the owner, his father, and his city. There was no general parade of athletes by locality, as in the modern Games, and the athletes were naked, not uniformed. Athletes were eligible only if they were male, freeborn Greeks. There is no indication that the ancient Olympics included an “Olympic anthem” or were organized by an entity called an “Olympic Committee.” The awards in ancient Greece were wreaths of wild olive, rather than the gold, silver, and bronze medals presented at the modern Olympics.

Olympics, 483 U.S. at 541 n.18.

The purpose of these distinctions was to support the claim that "Olympics" was not an ancient and now generic term that could be adopted by others, but a specific term owned by the United States Olympic Committee, established by Congressional statute in 1896.  The Committee had brought suit against the "Gay Olympics" for using the term.  Interestingly, according to the Gay Olympics Brief, the US Olympic Committee did not seek to similarly prohibit other groups that used the term "Olympics" such as the International Police Olympics; Armenian Olympics; Olympic of Ballet; Olympics of the Mind; Senior Olympics; Golden Olympics; Firemen's Olympics; United States Skill Olympics; Virginia Golden Olympics; Wrist-Wrestling Olympics; Crab-Cooking Olympics; Dog Olympics; Nude Olympics; Rat Olympics; WackyOlympics; Xerox Olympics; Alcoholic Olympics.

The Court thus rejected the Gay Olympics First Amendment argument, with Justices O'Connor dissenting in part, and  Brennan and Marshall dissenting.

I discuss the case and the use of the term "Olympics" as well as other ancient Greek terms such as "democracy," in an article available on sssrn.

RR
[image: Olympic Rings hanging from London Bridge, 2012, via]

Full Ninth Circuit To Review Failure-to-Warn Preemption Ruling

The Ninth Circuit this week ordered en banc review of the split three-judge panel decision that the FDA reporting requirements preempted a state-law failure-to-warn claim in Stengel v. Medtronic.  

The order means that the full Ninth Circuit will review the panel ruling and possibly reverse it, allowing the plaintiffs' state-law failure-to-warn claim to go forward.  It also means that the case is all the more likely to ultimately attract the attention of the Supreme Court.  (There's already a minor circuit split.)

The core issue--the one that divided the three-judge panel--is whether the plaintiffs' failure-to-warn claim is sufficiently independent of the FDA's requirement that a medical device manufacturer discover and report to the FDA any complaints about the product's performance and any adverse health consequences attributable to the product.  If so--that is, if the state failure-to-warn claim stands on its own, independent of FDA reporting requirements--it's likely not preempted.  But if the failure-to-warn claim derives from the FDA requirement, it may be preempted.

The dispute turns on three principal cases: Medtronic v. Lohr (1996); Buckman Co. v. Plaintiffs' Legal Committee (2001); and Riegel v. Medtronic (2008).  

The panel majority said that the case is governed by Buckman.  In Buckman, the Court ruled that the FDCA preempted a state-law fraud-on-the-FDA claim, because the claim derived exclusively from a requirement owed to the FDA (and not directly to the plaintiffs).  The Court distinguished Lohr, which held that the FDCA did not preempt certain negligence claims that paralleled FDCA requirements, writing that "the [Lohr] claims arose from the manufacturer's alleged failure to use reasonable care in the production of the product, not solely from the violation of FDCA requirements," whereas the Buckman fraud claims "exist solely by virtue of the FDCA disclosure requirements."  Op. at 4094.  

The dissent argued that the plaintiffs' failure-to-warn claim was an independent, preexisting state-law cause of action that did not derive exclusively from FDCA reporting requirements--that it looked more like the independent, but parallel, claim in Lohr than the FDCA-derived claim in Buckman.  The dissent argued that Riegel only reinforced the Lohr holding.

SDS

Scholarly Discussion on Fisher v. University of Texas

The United States Supreme Court is set to hear oral arguments in the affirmative action case of Fisher v. University of Texas on October 10, having granted certiorari from the Fifth Circuit's decision upholding the UT plan and perhaps informed by Judge Edith Jones' stinging dissent from the denial of en banc review, as we discussed.

The Vanderbilt Law Review En Banc Roundtable has just published a series of relatively brief articles on the case: 

Girardeau A. Spann, Fisher v. Grutter

James F. Blumstein, Grutter and Fisher: A Reassessment and a Preview

Vikram David Amar, Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes

Gerald Torres, Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America

Tomiko Brown-Nagin, The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change

Each of these articles is worth a read and the law review editors promise further exchange among the authors. 

RR

DC Circuit Upholds Airline Fee Disclosure Regulation in First Amendment Challenge

In Spirit Airlines v. US Department of Transportation, a divided opinion by a DC Circuit panel today upheld DOT regulations.  The airlines challenged three regulations, all on arbitrary and capricious grounds, but also included a First Amendment challenge to the regulation that requires the most prominent figure displayed on print advertisements and websites be the total price, inclusive of taxes.

There were several arguments about the correct standard of review under the First Amendment:

• Strict scrutiny, applied to laws burdening political speech.  The airlines argued they have “a First Amendment right to engage in political speech that informs [their] customer base of the huge tax burden that the federal government imposes on air travel.”
• Intermediate scrutiny, as defined in Central Hudson and applied to laws regulating commercial speech, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980);
• Reasonableness review, as defined in Zauderer and applied to laws requiring “purely factual” disclosures “reasonably related to the State’s interest in preventing deception of consumers,” Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 651 (1985).

The court easily rejected thepolitical speech argument, concluding that prices are "quintessentially commercial."   As between Central Hudson and Zauderer, however, the panel found that Zauderer governs mandated disclosures, citing Milavetz, Gallop & Milavetz, P.A. v. United States (2010).  The rule, the panel held, was clearly directed as disclosure, and allowed airlines to call attention to taxes and fees in their advertisements, but not by making them more prominent than the total, final price the customer must pay. This, the majority held, was clearly reasonable.

However, the majority reasoned that the rule also satisfied Central Hudson - - - a point of disagreement with the dissenting judge, who concluded not only that the Central Hudson test applied but that it was not met.   Senior Judge Randolph, dissenting, gave more credence to the airlines political speech argument than the majority, and his reasoning is worth reading.  However, assuming the speech was commercial, he was skeptical of the government interests and in any case found that they were not directly advanced by the regulation.

 

The opinion, coincidentially rendered on the 115th birthday of aviator Amelia Earhart, pictured above, would make a great commercial speech problem for First Amendment class.  It challenges students to consider the boundaries between political speech, commecial speech, and "mere" disclosure.

RR

[image via]

Eighth Circuit En Banc Upholds Compelled "Suicide Warning" for Abortion Procedures

In a 7-4 en banc opinion today in Planned Parenthood v. Rounds, the Eighth Circuit disagreed with the panel opinion and the district judge and upheld the constitutionality of a South Dakota statutory provision requiring the disclosure to patients seeking abortions of an “[i]ncreased risk of suicide ideation and suicide,” S.D.C.L. § 34-23A- 10.1(1)(e)(ii).

Planned Parenthood contended that requiring a physician to present the suicide advisory imposes an undue burden on abortion rights and violates the free speech rights of the physician.  The court conflated the undue burden (due process) claim and the physician First Amendment claim:  "In short, to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue “is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.”

Judge Gruender's opinion for the majority seemingly acknowledged that there was no evidence that abortion caused suicidal ideation.  Instead, the issue was the "accepted usage of the term 'increased risk' in the relevant medical field."  The opinion found that based on the medical usage, the statutory requirement "does not imply a disclosure of a causal relationship," instead it is merely a disclosure that "the risk of suicide and suicide ideation is higher among women who abort compared to women in other relevant groups, such as women who give birth or do not become pregnant."  

The majority rejected the relevancy of  Planned Parenthood's argument that certain underlying factors, such as pre-existing mental health problems, predispose some women both to have unwanted pregnancies and to have suicidal tendencies, resulting in a misleading correlation between abortion and suicide that has no direct causal component.  Planned Parenthood argued that the required disclosure would be misleading or irrelevant to the decision to have an abortion because the patient’s decision would not alter the underlying factors that actually cause the observed increased risk of suicide.  But the majority found that a correlation - - - seemingly for any reason - - - was sufficient: "the truthful disclosure regarding increased risk cannot be unconstitutionally misleading or irrelevant simply because of some degree of 'medical and scientific uncertainty,' as to whether abortion plays a causal role in the observed correlation between abortion and suicide."

 In contrast, the four dissenting judges, in an opinion by Judge Murphy, stated that the "record clearly demonstrates"  that "suicide is not a known medical risk of abortion and that suicide is caused instead by factors preexisting an abortion such as a history of mental illness, domestic violence, and young age at the time of pregnancy."   The dissenting opinion read the statutory provision to require doctors to tell a pregnant woman that a greater likelihood of suicide and suicide ideation is a "known medical risk[]" to which she "would be subjected" by having an abortion. S.D.C.L. § 34-23A-10.1(1)(e) (2005) (emphasis added).  This causal language troubled the dissenting judges, who concluded that the suicide advisory places an undue burden on a pregnant woman's due process rights and violates a doctor's First Amendment right against compelled speech.

Both opinions rehearse and discuss the social science and psychological studies before the court and both opinions admit the studies are flawed.  However, by rejecting the necessity for causation in a warning about a medical procedure given for informed consent, the majority rests its opinion on correlation even if there is "some degree of 'medical and scientific uncertainty" as to the reasons for any correlation.

RR
[image:Sappho Leaping into the Sea from the Leucadian Promontory, circa 1840, via]

Shelby County, Nix Take Voting Rights Act Challenge to Supreme Court

Petitioners Shelby County and John Nix filed two separate cert. petitions late last week seeking Supreme Court review of a D.C. Circuit decision upholding the preclearance provisions of the Voting Rights Act.  Shelby County's petition is here; Nix's petition is here.  More on the differences below.

The petitions put the preclearance provisions of the Voting Rights Act squarely before a Supreme Court that seems chomping at the bit to take them on--and to overturn them.

The move was expected.  With the Supreme Court's statement three years ago in Northwest Austin Municipal Utility District v. Holder that the preclearance provisions "raise serious constitutional questions," the Court's reiteration more recently in Perry v. Perez, and the spate of challenges now percolating in the lower courts, Shelby County v. Holder was the first circuit ruling dealing squarely with the 2006 reauthorization of the VRA.  A split three-judge panel upheld the provisions and ruled that another, related case (Nix's case) was moot.  The ruling teed the challenge up for Supreme Court review.

At issue: Section 5 of the VRA, which requires covered jurisdictions to obtain "preclearance" from the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia before making changes to their voting standards, practices, or requirements; and Section 4(b), which provides the formula for determining which jurisdictions are covered.

Recall that the D.C. Circuit in Shelby County upheld Section 5 and Section 4(b) of the VRA.  But that court also ruled that Nix's case--challenging the new reauthorization standards that Congress put into place in the 2006 reauthorization--was moot, because the DOJ reversed course and cleared the voting change at issue.

The two cert. petitions cover two distinct issues.  Shelby County's cert. petition argues that the D.C. Circuit erred in upholding Sections 5 and 4(b).  In short, Shelby argues that the preclearance requirement in Section 5 exceeds congressional authority to enforce the provisions the Fourteenth and Fifteenth Amendments--that it's not "proportional and congruent" to the "evil" that it seeks to remedy--and that Congress neglected to change the coverage formula in Section 4(b) in response to changed conditions.

Nix's cert. petition argues that the substantive changes to the preclearance standard that Congress enacted in 2006 exceed congressional authority.  Nix says that Congress, in reauthorizing Section 5 in 2006, changed the preclearance standard in response to two Supreme Court decisions that narrowed that standard, thus exceeding its authority.  Nix claims that before 2006, preclearance could be denied only if the jurisdiction failed to prove that its voting change did not have the "purpose" or "effect" of causing "a retrogression" in minorities' "effective exercise of the electoral franchise," as determined by "all the relevant circumstances."  (Citing and quoting Georgia v. Ashcroft and Reno v. Bossier Parish School Board.)  But Nix argues that Congress changed this standard in the 2006 reauthorization by eliminating the "all relevant circumstances" flexibility and by requiring covered jurisdictions to "prove that even a change that does not make minorities worse off lacks the 'discriminatory purpose' of not making them better off."  These changes, say Nix, exceed congressional authority.

Because the D.C. Circuit ruled Nix's case moot, Nix has the additional burden of arguing that his case isn't really moot.  He does this by claiming that the DOJ cleared the jurisdiction only to avoid judicial review of his arguments.

With two strong statements from the Court about the questionable constitutionality of VRA preclearance, look for the Court to grant these petitions--and likely overturn these key provisions of the VRA.

SDS

 

Seventh Circuit En Banc: Violation of Establishment Clause to Hold High School Graduation in Church

In its en banc opinion today in Doe v. Elmbrook School District, the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church. 

The majority stressed the specific facts concluding that "the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the [School] District’s actions to withstand the strictures of the Establishment Clause." It would be a "very different case," the opinion notes, "if a church sanctuary were the only meeting place left in a small community ravaged by a natural disaster."  But here, the schools rented the church because the space had better seating and air conditioning, despite the large cross, the pews with Christian hymn books, and other religious literature and symbols.

Judge Flaum's careful opinion for the majority notes that the three-pronged test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), “remains the prevailing analytical tool for the analysis of Establishment Clause claims,” citing circuit precedent, and articulates the Lemon test: a governmental practice violates the Establishment Clause if it (1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive entanglement with religion.  More importantly, Flaum highlighted the "endorsement test" (as part of Lemon's second prong) and the coercion test, certainly "less clear" in terms of its relation to the Lemon test.  Considering the facts - - - and the "social facts" - - - Flaum's opinion concluded that in this instance the graduation in church conveyed a message of endorsement and could not be meaningfully distinguished from the Court's coercion precedent, Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

The dissenting opinion by Judge Ripple, joined by Easterbrook and Posner, stresses the church as a mere "landlord."  Easterbrook's sole dissenting opinion mines a similar vein: "Holding a high school graduation in a church does not “establish” that church any more than serving Wheaties in the school cafeteria establishes Wheaties as the official cereal."  Posner's sole dissenting opinion levels the critique at the doctrine itself:

The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance. See, e.g., Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).

As the majority acknowledges, and the dissents argue, the analogy to voting in churches is a pertinent one.  But the majority distinguishes the “history and circumstances” of voting practices from high school graduations.

At more than 80 pages - - - with the dissents as lengthy as the majority - - - this opinion provides much fodder for the continuing debates about the efficacy of Establishment Clause doctrine.  Yet at its base, there seems to be a great divide regarding the relevance of a large cross at a high school graduation.

RR
[image via]

Catholic College Lacks Standing to Challenge ACA's Contraception Requirement

Judge James E. Boasberg (D.D.C.) ruled in Belmont Abbey College v. Sebelius that a Catholic college lacked standing to sue HHS over its regulations under the Affordable Care Act that require health insurance plans to cover contraceptives.  The problem: HHS said that it would reconsider the regs and look for other alternatives to provide contraceptive coverage, and so the case sounds more than a little like a pre-enforcement challenge.  In other words, the government's working on it, and Belmont's suit will have to wait.

The ruling comes just two months after forty-three Catholic institutions filed 12 separate suits in a high-profile, coordinated move challenging the regulations.  (Belmont filed its suit much earlier, in November 2011, arguing that the regs violated the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.)  The ruling here will certainly influence the direction of those cases, even if it won't necessarily dictate the direction of those cases.

Current HHS regs, enacted under the ACA, require health insurance plans to provide contraceptive services starting August 1, 2012.  But the regs exempt religious organizations who meet these four criteria:

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.

In response to criticism, HHS added a "safe harbor" period through February 10, 2012, for "certain non-exempted, non-profit organizations with religious objections to covering contraceptive services."  Moreover, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM) on March 21, 2012, indicating that it would seek ways to "accommodat[e] non-exempt, non-profit religious organizations' religious objections to covering contraceptive services," while "assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing."

Belmont argued that it didn't qualify for an exemption, that the safe harbor provision only delayed the implementation of the contraceptive requirement, and that the new Rulemaking provided no certain exemption and, in any event, would lead to a similar harm.

Judge Boasberg agreed that Belmont didn't qualify for an exemption (as did the government) and that the safe harbor provision only delayed the harm (and therefore didn't deny Belmont standing).  But he concluded that HHS's ANPRM provided enough certainty that HHS was seriously examining a solution to the problem so as to deny Belmont standing.  From the ruling:

Plaintiff argues that non-binding promises of future rulemaking cannot defeat standing.  Contrary to the Plaintiff's assertions, however, Defendants have done more than simply "open another docket to propose addressing related matters."  They have published their plan to amend the rule to address the exact concerns Plaintiff raises in this action and have stated clearly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends.  Not only that, but Defendants have already initiated the amendment process by issuing an ANPRM.  The government, moreover, has done nothing to suggest that it might abandon its efforts to modify the rule--indeed, it has steadily pursued that course--and it is entitled to a presumption that it acts in good faith.

Op. at 15.

Judge Boasberg also ruled that the case was not ripe, for similar reasons.

SDS

Chicken Farmers' Challenge to EPA Standards Doesn't Cluck

A three-judge panel of the D.C. Circuit ruled in National Chicken Council v. EPA that the plaintiff's challenge of new EPA standards for renewable fuel wasn't justiciable, because a even a favorable ruling wouldn't redress the plaintiff's alleged injuries.

The case arose out of new EPA regs for renewable fuels, including (sometimes) ethanol, under the Energy Independence and Security Act of 2007.  That law grandfathered ethanol production plants that were in construction before December 19, 2007, but also said that "[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the [new EISA standards]."  EPA said that the clause was ambiguous because it did "not specify whether [ethanol plants fired with natural gas and/or biomass]are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely."  But it adopted the latter interpretation.

The Chicken Council sued, arguing that this will drive up ethanol production, thus driving up corn demand, thus increasing the price of corn, thus increasing the price of chicken farmers' feed.  The Council argued that the narrower interpretation--the former one--wouldn't have this effect.

The court didn't buy it.  It ruled that the Council failed to show a "substantial probability" that qualifying ethanol plants would reduce their ethanol production if the court ruled in the plaintiff's favor--that is, if the plants were subject to the narrower interpretation of the grandfather clause.  This was a simple matter of proof (or the petitioner's lack of proof); the court explained:

True, the EPA claimed in the Final Rule that "many of the current technology corn ethanol plants may find it difficult if not impossible to retrofit existing plants to comply with the [new regs]," and that "[g]iven the difficulty of meeting such threshold, owners of such facilities could decide to shut down the plant."  But that statement referred to all grandfathered plants, not just the qualifying ethanol plants, and there are good reasons to think the qualifying ethanol plants will find it much easier than the other, older grandfathered plants to meet the emissions-reduction requirement should they have to.  

The petitioners also cite several comments ethanol producers submitted during the rulemaking proceedings.  These comments assert it would be difficult to retrofit ethanol plants to meet the emissions-reduction requirement, but the comments do not satisfy the petitioners' burden of proof for one of two reasons: they are either not specific to qualifying ethanol plants, or they do not claim ethanol plants would be forced to shut down or reduce production if they had to coply with [the new standards].

Op. at 5-6.  The court said that the Council didn't produce the kind of evidence that supported standing in Duke Power Co. v. Carolina Environmental Study Group--the principal case that the Council relied on.  The Court in Duke Power held that a district court was not clearly erroneous in concluding that the plaintiffs showed a "substantial likelihood" of harm, where congressional testimony, legislative findings, and testimony in that case all pointed to harm, causation, and redressibility.  

SDS

Teaching the Commerce Clause After NFIB v. Sebelius

Professor Colin Starger has a terrific visual for teaching the commerce clause next semester:

Take a look at the entire "poster" available on ssrn here; the explanations are necessary and excellent.

RR

Suit Seeks Damages for Targeted Killing

The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program.  The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.

The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place.  Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.  (Judge Bates didn't rule on the government's state secrets claim.)

The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).

All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.

The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.

We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts).  We still don't have a complete legal justification from the government for the targeted killing program.

SDS

Obama Campaign Files Complaint Alleging Changes in Ohio Early Voting Law Violate Equal Protection

The Obama Campaign, Democratic National Committee and Ohio Democratic Party filed a complaint in the Southern District of Ohio today arguing that Ohio's recent changes to its early voting laws violate the Equal Protection Clause.

The complaint in Obama for America v. Husted sums up the problem thusly:

Taken together, [Ohio] Amended Substitute House Bill Number 194 (“HB 194”), Amended Substitute House Bill Number 224 (“HB 224”) and Substitute Senate Bill Number 295 (“SB 295”), all enacted by the 129th Ohio General Assembly, impose different deadlines for in-person voting prior to Election Day (“early voting”) on similarly situated voters. Prior to the enactment of these laws, there was a single uniform deadline of the Monday before Election Day for in- person early voting. After the enactment of these laws, voters using the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”) may vote early in-person at a board of elections office up through the Monday before Election Day, while non-UOCAVA voters can vote early in-person at a board of elections office (or designated alternate site) only up until 6 p.m. on the Friday before Election Day.

As the accompanying Motion for Preliminary Injunction and supporting memo argues, eliminating the last three days of early voting for non-UOCAVA voters only was most likely the result of legislative confusion.  Yet such legislative error cannot form even a rational basis supporting the classification.  Additionally, the Motion argues,

to the extent the disparity was motivated by a bare desire to obtain partisan advantage in the election contest, that motivation cannot justify the disparate treatment. Early voting in Ohio has been most prevalent among groups of voters believed to vote Democratic including women, the elderly, and those with lower levels of income and education. But a voting restriction motivated in part by partisan considerations must also have an independently sufficient justification to survive.

Motion for PI at 23 [citations omitted]

Some might wonder if the Obama attorneys cite Bush v. Gore?  Yes and No.
In its explanation of equal protection doctrine application to the fundamental right to vote, the memo cites Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011), and twice includes Hunter's quotations from Bush v. Gore: 

The fundamental right to vote is not limited to “the initial allocation of the franchise,” but includes “the manner of its exercise.” Hunter, 635 F.3d at 234 (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). . . . Of course, states have substantial latitude to design and administer their elections; for example, they may choose to allow or not to allow early voting. But “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Hunter, 635 F.3d at 234 (quoting Bush, 531 U.S. at 104- 05) (emphasis added)).

The equal protection argument seems compelling, unless the legislature can demonstrate some justification for the difference between UOCAVA voters and non-UOCAVA voters who are both voting in-person before the election.

RR
[image: 1827 map of Ohio via]

Ninth Circuit Upholds Warrantless Searches of Hotel Records

A divided three-judge panel of the Ninth Circuit ruled today in Patel v. City of Los Angeles that an LA ordinance allowing police officers to inspect hotel records containing guest information, without a warrant, did not violate the Fourth Amendment on its face.

The ruling means that the ordinance stays on the books.  But the court was careful not to rule out a later as-applied challenge.

The majority looked to both the reasonable-expectation-of-privacy test and the common-law trespassory test.  As to reasonable expectation of privacy, the majority ruled that hotel owners do not have a categorical expectation of privacy in the guest information that they are required to obtain and retain--although it held open the possibility that an owner might have such an expectation in an as-applied challenge.  The court said that it already held that hotel guests themselves do not have a reasoanble expectation of privacy in this information; it's not a huge leap, it said, to imagine that owners, as a class, do not have a reasoanble expectation of privacy in this information.

As to the common-law trespassory test, the court ruled that the limited intrusion into paper (and not property) is reasonable and therefore does not violate the Fourth Amendment.  The court explained that "reasonableness" remains the standard for the Fourth Amendment, even after the Supreme Court did not discuss it in applying the common-law trespassory test in United States v. Jones--because the Court said in that case that the government ""forfeited" the argument that that attachment and use of the GPS device was reasonable by failing to make that argument to the court of appeals."  Op. at 8202.  (Jones was the case this Term that held that the government's warrantless attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle's movements, was a search and violated the Fourth Amendment.  The Court did not address the government's alternative argument that the search was reasonable, because the government failed to raise it below.)

Judge Pregerson dissented, arguing that a warrantless search must meet an exception to the warrant requirement.  Here, there was none.

SDS

DOMA Knocking on the Supreme Court's Door

There are now three petitions for certiorari before the United States Supreme Court seeking review of decisions that have declared DOMA's section 3 unconstitutional.

 

Passed in 1996, DOMA has come under increasing pressure regarding its constitutionality.  Recall that the Obama Administration is no longer defending the constitutionality of DOMA; it is being defended by the BLAG, the Bipartisan Leadership Advisory Group, closely associated with Speaker of the House John Boehner.

The DOJ filed two petitions in the Supreme Court earlier this month.

The first petition for writ of certiorari is for review of the First Circuit opinion in the consolidated cases of HHS v. Massachusetts and Office of Personnel Management v. Gill, decided in April.  A unanimous panel found section 3 unconstitutional, relying 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.  The panel deployed federalism concerns in assessing the equal protection query, but stopped short of ruling that DOMA was inconsistent with the Tenth Amendment. 

The other petition for writ of certiorari is for review of a federal district judge's decision in Golinski v. United States Office of Personnel Management.  Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities, but the case is only now before the Ninth Circuit.  The Solicitor General's petition makes clear that Golinski should be before the Court for the same reasons as Gill, and argues that the Ninth Circuit should be bypassed because "the lower court in this case engaged in de novo consideration of the applicable level of scrutiny, having concluded that it was not bound by circuit precedent applying rational basis review to sexual orientation classifications. The district court’s analysis may materially assist this Court’s consideration of that question."

Additionally, Edie Windsor has filed a petition for writ of certiorari seeking review of a federal judge's decision in early June in Windsor v. US that DOMA section 3 is unconstitutional.  Windsor, represented by the ACLU, makes similar arguments to those of the Solicitor General regarding the national importance of resolving DOMA's constitutionality.  She also note that the lower courts are "in disarray" and that the issue is especially important in New York, which has legalized same-sex marriage.  However, Ms. Windsor also makes a personal argument:

Ms. Windsor is 83 years old and suffers from a serious heart condition. Because the District Court’s ruling is entitled to an automatic stay of enforcement, see 28 U.S.C. § 2414, Ms. Windsor cannot receive the benefit of its ruling in her favor as the executor of Ms. Spyer’s estate pending appeal and any subsequent challenges. Ms. Windsor, not Ms. Windsor’s estate, should receive the benefit to which the District Court has already ruled that she is entitled; the constitutional injury that has been inflicted on Ms. Windsor, as the executor of Ms. Spyer’s estate and its sole beneficiary, should be remedied within her lifetime.

Petition at 21.

Given that several courts have found DOMA section 3 unconstitutional, it seems likely that the Court will grant one - - - or more than one - - - of these petitions.

RR

Court Upholds Regs Prohibiting Signature Collection on Interior Postal Sidewalks

A three-judge panel of the D.C. Circuit ruled in Initiative and Referendum Institute v. U.S. Postal Service that postal regulations prohibiting "collecting" signatures, but not "soliciting" then, on interior postal sidewalks did not violate the First Amendment.  With the ruling, the D.C. Circuit answers a question addressed but not resolved in United States v. Kokinda and joins the five other circuits that have addressed the issue in holding that interior sidewalks at post offices are not public forums.  (The Fourth Circuit ruled in 1989 that interior sidewalks were public forums, but the Supreme Court reversed in Kokinda.)

The case in just the latest chapter in an ongoing back-and-forth between the appellants and the Postal Service.  The reg at issue here, 39 CFR Section 232.1(h)(1), tailored by the Postal Service after the last round in the courts, prohibits "collecting signatures on petitions" on all postal property except "sidewalks along the street frontage of postal property . . . that are not physically distinguishable from adjacent municipal or other public sidewalks."  (These latter sidewalks are called "Grace sidewalks," after United States v. Grace, holding that "sidewalks forming the perimeter of the Supreme Court grounds" are traditional public forums, because they are "indistinguishable from any other sidewalks in Washington, D.C."  In reaction to earlier rulings, the Postal Service revised its reg to exempt speech on Grace sidewalks.)

The court, using a functional approach, ruled that interior postal sidewalks are nonpublic forums, because of their limited purpose and use--to get into the Post Office.  This doesn't seem terribly surprising, but part of the court's methodology may be: It relied on a district court-ordered survey of postmasters as to how their interior sidewalks are used.  ("358 postmasters said that exterior spaces have been used for expressive activities and 4,736 said they have not."  Op. at 10.)

Applying the test for the nonpublic forum, the court held the prohibition was reasonable because signature collectors block the flow of traffic into the building and because the Postal Service seeks to avoid the appearance of endorsing the group collecting signatures.

Still: Why treat solicitation differently than collection?  The court said that this distinction is based on its own jurisprudence, following the plurality and Justice Kennedy in Kokinda.  That is,

different consequences are likely to follow from merely asking postal customers for their signatures and actually collecting them.  Collecting contributions involves the type of immediate response the Kokinda plurality thought could be reasonably banned because it would cause postal customers to stop, transact the business requested, and thus disrupt the flow of traffic at the post office.

Op. at 12.  Not so for mere solicitation.

SDS

Constitutional Liability for Penn State?

The doctrine of DeShaney v. Winnebago is a harsh one.  As the Fifth Circuit recently noted: "The law yesterday and today is bare and bald: No DeShaney special relationship exists between a public school and its students. Absent a special relationship, any analysis of the defendant’s conduct as deliberately indifferent to the rights of the student is, under DeShaney, irrelevant." 

Yet today's Freeh Group Report may test the limits of DeShaney.  The just released report, available on Larry Cata' Backer's Penn State Faculty Senate Blog, details the events at Penn State that eventually led to the arrest and convicton of coach Jerry Sandusky for sexual abuse of ten children.  The focus would not necessarily be on the university officials "failure to report" but on the "special relationship" that university officials fostered.

RR
[image: Penn State Nittany Lion mascot via]

Second Circuit Strikes NYC Tobacco Warning Signs

A three-judge panel of the Second Circuit ruled this week in 94th St. Grocery Corp. v. New York City Board of Health that the Federal Cigarette Labelling and Advertising Act preempted New York City's requirements that retailers who sell cigarettes post warning signs near cash registers and cigarette displays.  

The ruling voids New York's requirements, but at the same time goes to lengths to remind us that other municipal efforts to regulate cigarette sales and to educate the public about the dangers of tobacco use (through public education campaigns) are unaffected by the case.

The case involved challenges to two signage requirements in the New York health code.  The first one required "persons who engage in face-to-face" tobacco sales to post a "small sign" near the cash register with pictures depicting the dangers of tobaccco use.  The second one required those persons to post a "large sign" near each tobacco display, also with pictures depicting the dangers of tobacco use.  The provisions applied to retailers; nothing at issue in the case applied directly to cigarette manufacturers.

Retailers and tobacco manufacturers sued, arguing that the federal Act preempted the signage requirements.  The preemption clause says that a state or locality may not impose any "requirement or prohibition based on smoking and health . . . with respect to the advertising or promotion of . . . cigarettes."  15 U.S.C. Sec. 1334(b).  The case thus turned on the meaning of the phrase "with respect to promotion."

The court ruled that both City signage requirements were "with respect to promotion."  The court said that the second one--the one requiring a sign by a cigarette display--directly affected promotion, because "a display is a form of publicity that can further the sale of merchandise," and the graphic sign "treads on" it.  The court said that the first one--the one requiring a sign by the cash register--was a closer call, but still indirectly affected promotion.  The court said that most New York retailers kept cigarettes behind the cash register counter (pursuant to New York law), and the cash register sign therefore had the same effect that the display sign had--a treading-on of the sales display.

The case comes closely on the heels of a Sixth Circuit ruling this spring rejecting a facial free speech challenge to the new federal warning requirements for cigarette packaging in the federal Family Smoking Prevention and Tobacco Control Act.  That case, in turn, came on the heels of an earlier ruling from the D.C. District that FDA's labels, promulgated under the Family Smoking Prevention and Tobacco Control Act, did violate free speech.  

SDS

Stolen Valor Redux: Congress to Attempt Again

With the Supreme Court's declaration in United States v. Alvarez last month that the Stolen Valor Act is an unconstitutional infringement on the First Amendment, Congress is set to revise the law - - -  or, more precisely, to re-consider its revised bill, the Stolen Valor Act of 2011, that had been proposed even before the oral arguments in Alvarez. 

The proposed Stolen Valor Act of 2011, by Joe Heck of Nevada, added an important qualifier to the false statement: "with intent to obtain anything of value."   According to news reports, various other members of Congress are weighing additional revisions. 

These might include extending the prohibited subjects from military honors to combat service or perhaps any military service.

The Pentagon is also reportedly considering implementing a database of military honors, one of the less restrictive means that could also achieve the legislation's goals.

RR
[image via]