Constitutional Law Prof Blog

Justice Ginsburg Keeps NDAA's Indefinite Detention in Place Pending Appeal

Justice Ginsburg on Friday declined to reinstate a permanent injunction against the government's detention authority in the National Defense Authorization Act.  The ruling means that the NDAA's authorization for detention stays on the books pending appeal of the case, Hedges v. Obama, to the Second Circuit.

We covered the district court case and ruling here.

Recall that the plaintiffs in Hedges, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 of the NDAA violated the First Amendment.  That Section provides:

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

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

. . .

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

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

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

. . .

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

We covered the NDAA here.

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons" based on their communications with certain individuals overseas.

Judge Katherine B. Forrest (SDNY) agreed and issued a permenant injunction this past September.  But the Second Circuit stayed that injunction in October and ordered expedited review.

On Friday, Justice Ginsburg denied the plaintiffs' request to vacate the Second Circuit stay.  She cited her own previous denial of an application to vacate a stay in Doe v. Gonzales, a case challenging the FBI's authority to collect electronic communications for use in anti-terrorism investigations under the PATRIOT Act.  Just like Judge Forrest here, the district court in Doe ruled that portion of the PATRIOT Act unconstitutional; and just like the Second Circuit here, the Second Circuit stayed that ruling and ordered an expedited appeal.

Thus it's a mistake to read Justice Ginsburg's denial as a ruling on the merits.  Instead, she appears to be letting the case run its course at the Second Circuit.  She said as much, writing, "Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."

SDS

Daily Read: Greenhouse on Standing in the Same-Sex Marriage Cases

The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.

The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011). 

The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."

Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."

But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.

Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.

RR

Fifth Circuit Strikes State Anti-Spoofing Law

The Fifth Circuit earlier this week ruled in Teltech Systems, Inc. v. Bryant that Mississippi's Caller ID Anti-Spoofing Act was preempted by the federal Truth in Caller ID Act of 2009.  The ruling strikes Mississippi's law, until and unless Mississippi successfully appeals.

Mississippi's Caller ID Anti-Spoofing Act prohibits a person from entering false information into a telephone caller identification system with the intent to deceive, defraud, or mislead the recipient of a call.  (Think solicitations that come up as an apparently legitimate local residential or cell phone number.)  Plaintiffs, organizations that provide third-party spoofing services, sued, arguing that the Act violated free speech and the dormant Commerce Clause, and that it was preempted by the federal Truth in Caller ID Act.  The court ruled only on this last claim.

The federal TCIA makes it unlawful for any person "to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value."  47 U.S.C. Sec. 227(e)(1).  

Preemption turned on the Mississippi ACA's sweep.  As the court explained, the Mississippi ACA sweeps somewhat broader than the TCIA, as it bans not only "harmful" spoofing but also "non-harmful" spoofing (done simply to deceive or mislead, but not to harm).  There was good evidence that Congress not only did not ban non-harmful spoofing, but sought to protect it.  "Congress apparently regarded some forms of spoofing worthy of protection from more restrictive state regulation."  Op. at 10.

Thus, said the court, the TCIA preempted the state ACA.  The court explained, drawing on Arizona v. United States, the immigration-and-preemption case from last Term:

Arizona v. United States is illustrative.  The Immigration Reform and Control Act of 1986 subjects employers who hire unauthorized aliens to criminal and civil sanctions, but imposes no such penalties on the hired unauthorized aliens.  An Arizona statute . . . went further, making it a misdemeanor for unauthorized aliens to apply for, or solicit, work.  Although the Arizona statute advanced the same goal as IRCA--preventing hiring unauthorized aliens--the Court held the Arizona statute's enforcement scheme conflicted with the federal regulatory scheme.  Examining the "text, structure, and [legislative] history of IRCA," the Court held the Arizona statute posed an obstacle to "the careful balance struck by Congress with respect to unauthorized employment of aliens."

Op. at 11 (citations omitted).  

So too with Mississippi's ACA, because it banned non-harmful spoofing, a category that Congress protected.

SDS

Seventh Circuit Overturns Illinois Prohibition on Carrying Guns

A divided three-judge panel of the Seventh Circuit ruled today in Moore v. Madigan that Illinois's prohibition on carrying a ready-to-use gun outside the home violates the Second Amendment.  The crux of the ruling is the majority's view that the Second Amendment protects the right to self defense even outside the home.

Judge Posner wrote a meandering opinion for the majority, examining history, text, precedent, social science, and even the fact that Illinois is the only state with a flat ban on carrying ready-to-use guns.  Judge Posner wrote that the Second Amendment text ("keep" and "bear") and the language of both Heller and McDonald suggested that the right to self defense in those cases was not limited to the home. 

Judge Posner applied the Seventh Circuit's "strong showing" standard from U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), addressing the federal ban on firearm possession of any person "who has been convicted in any court of a misdemeanor crime of domestic violence."  18 U.S.C. Sec. 922(g)(9).  Under that standard, the government has to make a "strong showing" that a gun ban was vital to public safety.  Here, Illinois had to make an even stronger showing than the government in Skoien, because "the curtailment of gun rights [under Illinois law is] much narrower."  Op. at 14.  The standard is higher--maybe much higher--than rational basis review.  The court explained:

A blanket prohibition on carrying a gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would.  In contrast, when a state bans guns merely in particular place, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that's a lesser burden, the state doesn't need to prove so strong a need.  Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun.  And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill.  Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.

Op. at 15.

Judge Posner said that Illinois failed to meet this standard.  In particular, Judge Posner wrote that Illinois was alone among the 50 states in having such a restrictive law, and that "[i]f the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it."  Op. at 16.

Judge Williams dissented, arguing that the Supreme Court in Heller and McDonald did not answer the question here--whether the Second Amendment protects the right to carry guns for self defense outside the home--and that the court should defer to the State unless and until the Supreme Court rules otherwise.

SDS

Daily Read: Rosen on Kennedy on Same-Sex Marriage Cases

Writing in the New Republic today, Jeffrey Rosen focuses on the presumably central role Justice Anthony Kennedy (pictured) will play in the ultimate decision on the two same-sex marriage cases granted certiorari last Friday.

Regarding precedent, Rosen writes:

Moreover, regardless of what Roberts thinks of Kennedy’s opinions in Romer and Lawrence, they’ve been on the books for years and it’s impossible to uphold DOMA or Prop 8 without also overturning Kennedy’s holding that preserving tradition for its own sake isn’t a permissible basis for laws that discriminate against gays and lesbians.

Rosen's is only one of the tidal wave of commentators who have proffered predictions and analysis.  An excellent collection is in Monday's SCOTUSBlog round-up by Marissa Miller.

RR

 

Federal District Judge: North Carolina's "Choose Life" License Plate Scheme Unconstitutional

Is a specialty license plate government speech permissible under the First Amendment?  In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.

Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."

The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.

Judge Fox rejected the state's argument that the degree of government control was "the" single factor test.  Instead, Judge Fox relied upon the Fourth Circuit's four factor test:

• the central purpose of the program in which the speech in question occurs
• the degree of editorial control exercised by the government and private parties
• the identity of the literal speaker
• whether the government or private entity bears the ultimate responsibility for the speech

Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently. 

Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.

Judge Fox's order closed the case; it is sure to be appealed.  Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state.  More information is available here.

RR
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Filibuster Challenge Goes to Court

Judge Emmet G. Sullivan (D.D.C.) heard oral arguments on Monday on the defendant's motion to dismiss in Common Cause v. Biden, the case challenging the Senate's filibuster rule.  We posted on the case back in May, when it was filed.  Roll Call summarized the arguments here.  Common Cause has a case resource page here.

Recall that Common Cause filed the case along with four Democratic House members arguing that the Senate's cloture rule, Rule XXII, which requires 60 votes to end debate on a matter, violates the constitutional background principle of majority rule.  Common Cause argued that the Senate filibustered the DREAM Act, harming certain aliens.  See our May post for more on the particular arguments and for background on the filibuster.

According to Roll Call, the arguments today focused on standing: whether the House Dems had it (based on the Senate holding up their favored legislation on filibusters), and whether Common Cause's clients had it (based on their claim that the Senate would have passed the DREAM Act but for the filibuster).  Roll Call reports that Judge Sullivan was deeply engaged and asked for further briefing because the lawsuit raised "complicated issues."  But even if the plaintiffs get past standing, they'll certainly face other hurdles before Judge Sullivan will ever rule on the merits--the political question doctrine and the Senate's authority to determine its own rules, just to name a couple.  (Anticipating these objections, Common Cause says that if a court can review an Act passed by the Senate, it can certainly review a Senate rule.)

The oral arguments come in the midst of increasing talk of filibuster reform in the 113th Congress.  We covered the issues and linked to resources when there was similar talk at the beginning of the 112th Congress.

SDS

Ninth Circuit Says Hoax Anthrax Threat Not Protected By Free Speech

The Ninth Circuit ruled last week in U.S. v. Keyser that a criminal defendant's hoax anthrax threat was not protected by the First Amendment.

Keyser, in an ill-fated and badly misguided effort to drum up support for his self-published book, Anthrax: Shock and Awe Terror, mailed hundreds of packets of powder labeled "Anthrax."  The packets actually contained sugar.  (The three mailings at issue in this case went to Congressman Radinovich's Modesto office, a McDonald's restaurant, and a Starbucks.)  Keyser was convicted on two counts of mailing threatening communications and three counts of communicating false or misleading information regarding the presence of a biological weapon.  We was sentenced to 51 months in prison.  He appealed, in part, on the argument that his conviction and sentence violated free speech.

The Ninth Circuit disagreed.  The court said that the mailings to McDonald's and Starbucks constituted unprotected true threats:

Given the broad media coverage of actual anthrax being sent through the mail in 2001, a reasonable person would understand that a recipient would perceive a packet of powder with the word "Anthrax" and a biohazard symbol printed on it as a threat.  A reasonable person would also understand that the word "sample" would not alleviate that concern--if read and processed at all, the word would likely indicate a small amount of the actual substance, rather than a prop or representation.

Op. at 12.  

The court said the mailings were also not protected as a hoax.  The court cited and distinguished Alvarez (the Stolen Valor Act case from last term), quoted its own Alvarez ruling, and said that this case involved a false statement plus harm:

False and misleading information indicating an act of terrorism is not a simple lie.  Instead, it tends to incite a tangible negative response.  Here, law enforcement and emergency workers responded to the mailings as potential acts of terror, arriving with hazardous materials units, evacuating buildings, sending the samples off to a laboratory for tests, and devoting resources to investigating the source of the mailings.  Recipients testified to being "scared to death," "petrified," "shocked and appalled," "worried," and feeling "instant concern."  . . .  Prompting law enforcement officials to devote unnecessary resources and causing citizens to fear they are victims of a potentially fatal terrorist attack is "the sort of harm . . . Congress has a legitimate right to prevent by means of restricting speech."  United States v. Alvarez, 617 F.3d 1198, 1215 (9th Cir. 2010).

Op. at 14-15.

SDS

Symposium to Honor Patricia Williams

Prof Patricia J. William's work has been influential for many ConLawProfs.   A terrific-looking symposium honoring her work is scheduled for March, 2013.

 

Registration information here.

RR

Certiorari Granted on Same Sex Marriage Cases

The Court has granted certiorari on Windsor v. United States, the Second Circuit decision finding DOMA section 3 unconstitutional and Perry v. Brown, [now Hollingsworth v. Perry] the Ninth Circuit opinion on California's Proposition 8.

The questions certified include issues of standing.

Update: The Order provides:

12-144       HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.

The petition for a writ of certiorari is granted.  In addition to the question presented by the petition, the parties  are directed to brief and argue the following question:  Whether petitioners have standing under Article III, §2 of the Constitution in this case.

12-307       UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted.  In addition to the question presented by the petition, the parties are directed to brief and argue the following  questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of  jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

 

Interestingly, the Court did not grant certiorari in the First Circuit cases, perhaps because Justice Kagan may have had a role as Solicitor General or perhaps because of the Tenth Amendment argument.  

RR

Daily Read: Kende on Revolution and Pragmatism in Constitutionalism

Revolution and Pragmatism?  Aren't they oppositional concepts, and indeed, opposing realities? 

Mark Kende (pictured) argues that we shouldn't be so sure.  In his article, Constitutional Pragmatism, The Supreme Court, and Democratic Revolution, forthcoming in Denver University Law Review and available in draft on ssrn, Kende demonstrates that the usual conceptions of "pragmatism" are incomplete.  He advances several types of pragmatic impulses that are consistent with the US constitutional revolution and subsequent jurisprudence such as "common sense,transitional, political, democratic, economic, empirical, common law,flexible, critical, and comprehensive pragmatism."  He also discusses the types of constitutional pragmatism that are less consistent with revolution: prudential and efficiency-oriented pragmatism. 

Kende aims to provide a typology of pragmatism, as a grounding for considering "constitutional pragmatism more intelligently, as well as see its complexity and ubiquity."  For Kende, it is pragmatism - - - rather than originalism or living constitutionalism - - - that has the most descriptive, and perhaps prescriptive power.

Kende's article is an excellent intervention in the ongoing debates of constitutional interpretation.

RR

Court's Ruling on Medicaid Expansion Doesn't Threaten Title IX, Martin Argues

Emily J. Martin, Vice-President and General Counsel at the National Women's Law Center, published an American Constitution Society Issue Brief that argues that the Supreme Court's ruling last summer on the ACA's Medicaid expansion in Nat'l Fed. of Ind. Business v. Sebelius does not threaten Title IX.

Recall that the Court ruled in NFIB that Congress exceeded its authority in enacting the Medicaid expansion component of the ACA.  The Medicaid expansion provision provided generous federal financial assistance for states that expanded their Medicaid programs to reach those up to 133% of the federal poverty level.  Some states balked, arguing that this was way too heavy-handed, given the size of Medicaid and their reliance on it.  In other words, states argued that Congress couldn't force them to choose between expanding their Medicaid programs and foregoing all federal Medicaid funding.

The Supreme Court agreed.  Chief Justice Roberts wrote for a plurality that Medicaid expansion was a new program, not just an addition to the existing Medicaid program, and that the sheer size of Medicaid--and the threat of its entire loss--made the ACA's Medicaid expansion unduly coercive on the states.  At the same time, the plurality wrote that Congress could condition receipt of incremental and additional Medicaid funds under the ACA on a state's expansion of Medicaid.

Some thought that this approach to Congress's spending power threatened other federal spending programs, in particular Title IX.  Title IX prohibits public and private educational institutions that receive federal funds from discriminating on the basis of sex.  Some suggested that under NFIB, Title IX, like Medicaid expansion, might be unduly coercive, because it might require an educational institution to forego all federal funding if it discriminates against women.

Martin says this is wrong.  She writes that NFIB doesn't even apply Title IX and private educational institutions: NFIB's approach--and the Spending Clause approach generally--is concerned about coercion of states, not private actors.  As to states, she argues that unlike the ACA's Medicaid expansion, Title IX operates to limit the termination of federal funds "to the particular program . . . in which . . . noncompliance has been so found."  20 U.S.C. Sec. 1682.  In short, noncompliant state institutions wouldn't stand to lose their entire federal educational budget (as they could stand to lose their entire Medicaid budget under the ACA); instead, they'd lose only that portion tied to the sex discrimination.

Martin says that Title IX is protected from NFIB for another reason: Congress also had authority to enact Title IX under Section 5 of the Fourteenth Amendment.  She argues that this belt on top of the Spending Clause's suspenders ensures that Title IX is well within congressional authority.

SDS

Daily Read: Bradley Manning's Attorney on C-Span

Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.

Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs.   The introduction of Coombs starts at 22:40.  Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing.  He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client.   Interestingly absent is any discussion of Manning's sexuality.

.

 

This is definitey worth a listen!

RR

Oklahoma Supreme Court Finds Abortion Statute Unconstitutional

The Oklahoma Supreme Court has held its restrictive abortion statute, HB 2780, unconstitutional in two  opinions yesterday, affirming lower courts: Nova Health Systems v. Pruit and Oklahoma Coalition for Reproductive Justice v. Cline.

The nine supreme court justices, "representing" each of the nine judicial districts of the state,

issued the terse (and nearly identical) opinions, the only difference being a recusal of one of the Justices in Pruit.  The opinion(s) provided in full:

PER CURIUM

¶1 This is an appeal of the trial court's summary judgment which held House Bill 1970, 2011 Okla. Sess. Laws 1276, unconstitutional. Upon review of the record and the briefs of the parties, this Court determines this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), which was applied in this Court's recent decision of In re Initiative No. 395, State Question No. 761, 2012 OK 42, cert. den. sub nom. Personhood Okla. v. Barber et al., 81 U.S.L.W. 3065 (U.S. October 29, 2012) (No. 12-145).

¶2 Because the United States Supreme Court has previously determined the dispositive issue presented in this matter, this Court is not free to impose its own view of the law. The Supremacy Clause of the United States Constitution provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const. Art. VI, cl. 2. The Oklahoma Constitution reaffirms the effect of the Supremacy Clause on Oklahoma law by providing: "The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land." Okla. Const. art. 1, § 1. Thus, this Court is duty bound by the United States and the Oklahoma Constitutions to "follow the mandate of the United States Supreme Court on matters of federal constitutional law" In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 1, 838 P.2d 1, 2; In re Petition No. 395, 2012 OK 42, ¶ 2.

¶3 The challenged measure is facially unconstitutional pursuant to Casey, 505 U.S. 833. The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary. The judgment of the trial court holding the enactment unconstitutional is affirmed and the measure is stricken in its entirety.

 

 

Thus, the court rests its decision on the Supreme Court's holding in Casey, and not, as some reports have suggested, state constitutional law.  The matter is thus suitable for a petition for writ of certiorari to the United States Supreme Court.

RR
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Constitutional Law Exam: 2012 Possibilities

For ConLawProfs, it's time to draft the Constitutional Law final exam.  And it's time for ConLaw students to study and master the materials, arguments, and theoretical perspectives in preparation for any (all?) possible hypotheticals. 

We've previously discussed some best practices regarding final exams, and noted the time-honored strategy of using current controversies to frame the exam. 

The caveat is that the exam question must include all the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.

While some ideas from last year remain viable, there are some new exciting possibilities for the Constitutional Law exam.

Equal protection is a definite star this semester.  Shining brightest is the affirmative action case of Fisher v. University of Texas, argued before the United States Supreme Court in October, focuses on the continued validity of Grutter and perhaps affirmative action itself.  A well wrought exam question would provide students with opportunities to grapple with doctrine and theory, and it seems many ConLawProfs spent some time on Fisher (as I did, including having students read the excellent briefs).  

Only slightly less bright, but certainly much less focused, is equal protection in the same sex marriage cases still pending before the Court of petitions for certiorari.  The complexity of the DOMA and Prop 8 petitions can be easily distilled, however, with the Second Circuit case of Windsor providing an excellent template.  DOMA, as a federal statute, could also implicate the notion of federalism, especially as the First Circuit decided.  DOMA might also be "tweaked" to provide the basis for a Congressional powers issue. For those wishing a less complex same-sex marriage equal protection hypothetical than DOMA or Prop 8, the recent Nevada decision provides a good basis. 

The Court has also accepted certiorari on the constitutionality of the Voting Rights Act, implicating equal protection, but focusing on Congressional power under the Fourteenth and Fifteenth Amendments, as well as the doctrine under the Tenth Amendment.  

The Second Amendment has less vitality now than in the past few years, but the basis of a good issue (or sub issue) could be found in any number of recent gun regulations that have been upheld, including from the Second Circuit and the Fifth Circuit.

Want a takings clause issue?  Think raisins. Or temporary planned flooding.

For preemption, Arizona is a solid bet, with the newest issue to go before the Court mixing citizenship and voting). 

First Amendment issues abound, often subtly or not so subtly intertwining both speech and religion clauses.  There are anti-Islam subway/bus advertisements, the challenges to the ACA contraception requirements,(including by private companies),  prohibitions of recording of law enforcement officers, compelled disclosures regarding suicide risk in abortions, and prohibitions of sexual conversion therapy on minors. 

For those who like to draw on the popular culture zeitgeist, the Petraeus scandal could be a good springboard, spawning issues surrounding the constitutional status of adultery and perhaps state secrets and surveillance or the rights of public employees (consider a mandatory drug test?).

Good luck to professors and students alike!

RR
[image: Thomas Wyck - A scholar in his Study, 1600s, via]

Temporary Flooding May Be a Taking

A unanimous Supreme Court (with Justice Kagan recused) ruled today in Arkansas Game & Fish Commission v. U.S. that government temporary flooding may constitute a taking.  The ruling is not particularly surprising and only reversed and remanded a lower court decision that read precedent to give temporary floods a pass under the Takings Clause.  Justice Ginsburg wrote for the Court that temporary floods get no such pass and may well constitute a taking, depending on a number of well-settled factors.

We covered the oral argument here.

The case arose out of the Army Corps of Engineer's varying water release rates from the Clearwater Dam, upstream from the Commission's Management Area.  The release rates caused a series of temporary floods in the Management Area during key tree-growing season, thus harming certain tree species and the wildlife that they supported.  The Commission sued, arguing that the floods constituted a taking.  The Federal Circuit read Supreme Court precedent to say that temporary floods (as opposed to permanent ones) were categorically exempt from the Takings Clause.

The Supreme Court reversed.  Justice Ginsburg wrote that the Federal Circuit misread Court precedent and that even temporary floods could constitute a taking.  How do we know when?

When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. . . .

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action.  So, too, are the character of the land at issue and the owner's "reasonable investment-backed expectations" regarding the land's use. . . .  Severity of the interference figures in the calculus as well.

Op at 14-15.

The  Court sent the case back to the Federal Circuit to take a crack at applying these factors.

SDS

Congressional Research Awards Applications Open

Applications for the Dirksen Congressional Center Congressional Research Awards are open and due on March 1, 2012.  The center will award up to a total of $35,000 in grants for 2013.  Individual awards are calculated on a competitive basis and range from a few hundred dollars to $3,500. 

More information is here; here's a brief overview:

The Center's first interest is to fund the study of the leadership in the Congress, both House and Senate.  Topics could include external factors shaping the exercise of congressional leadership, institutional conditions affecting it, resources and techniques used by leaders, or the prospects for change or continuity in the patterns of leadership.  In addition, the Center invites proposals about congressional procedures, such as committee operation or mechanisms for institutional change, and Congress and the electoral process.

SDS

In Memoriam: Arthur Chaskalson

Known as a generous and humble person, as well as an outstanding jurist, Arthur Chaskalson was a framer of the South Africa Constitution and presiding justice of the nation's inaugural Constitutional Court.

 

The NYT obituary is here; he will be accorded a state funeral in South Africa.   We previously highlighted one of his speeches here.

RR

Federal District Judge Enjoins California's Law Prohibiting Sexual Orientation Conversion Therapy

California's SB 1172, slated to become effective January 1 and prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18.  Senior District Judge William Shubb, in an opinion issued late yesterday in Welch v. Brown, has issued a temporary injunction of the statute. 

Considering the claims of two therapists and one potential therapist who had undergone SOCE as an adult, Judge Shubb first held that the plaintiffs did not have third party standing to assert the claims of minors or parents.  As to the therapists, however, Judge Shubb held that their First Amendment claims were entitled to strict scrutiny which they were unlikely to survive on the merits.

In so doing, Judge Shubb rejected the argument that lesser standards under the First Amendment should apply given that the regulation was directed at a profession.  Additionally, the judge rejected the argument that the regulation was directed at conduct rather than speech, holding that because "at least some forms" of SOCE involve "talk therapy," speech was the central issue. 

Supporting the conclusion that strict scrutiny was the correct standard, Judge Shubb focused on the legislative history of SB1172: the "Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful." 

Below is a video of the legislative floor statement of the bill's sponsor, Senator Ted Lieu, and the subsequent vote:

 

 

 

For Judge Shubb, because "a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality."  Thus, Judge Shubb concluded that the statute was undoubtedly subject to strict scrutiny.

In addition to Ninth Circuit precedent, Judge Shubb relied heavily upon the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Ass’n, finding unconstitutional California's violent video game sale to minors prohibition.  Quoting from Entertainment Merchants, Judge Shubb stressed that SB1172 cannot survive strict scrutiny "unless the state demonstrates an “'actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors.  While protecting minors was a compelling state interest, Judge Shubb faulted the legislative findings:

evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.

Judge Shubb also faulted the "underinclusiveness" of the statutory scheme:

Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater,than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.”  [citation omitted] The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers.

Given Judge Shubb's reasoning, it is likely that he will issue a permanent injunction and equally likely that the decision will be appealed to the Ninth Circuit.

RR
[image via; video via]

UPDATE here

Daily Read: Corporate Free Speech

In their article, Commercial Expression and Business Regulation in the Shadow of Citizens United and Sorrell, available in draft on ssrn, authors ConLawProf Randy Bezanson (pictured), William O'Hare, and Robert Miller ask "whether the system and market- based flexibility accorded government in its regulatory action will continue to be respected." 

In interrogating this question, one of their three case studies of regulation is off-label drug marketing, the subject of yesterday's divided Second Circuit opinion reversing a criminal conviction on the basis of the First Amendment, and an application of Sorrell v. IMS Health, Inc.  In their consideration of off-label drug advertising more generally, they write:

the apparent overbreadth of specific applications of a regulation will seem obviously unconstitutional without a perspective that recognizes a speech restriction as part of a broader system of similar speech regulations that, added together, protect the systematic and market justifications of government action. It may be obvious that sophisticated consumers of off-label drug treatments, or sophisticated investors in the new issue market for stock, don’t need the information or the waiting periods or the other regulatory steps that government may impose. But if those steps do help the market system by assuring equal and complete consumer information, even if at some inconvenience to a sophisticated few, there is justification for the looser scrutiny that the Supreme Court has historically accorded regulation of commercial speech.

Worth a read for anyone teaching or writing in the commercial speech area.

RR