Constitutional Law Prof Blog

Ban on Women in Combat to be Lifted

Reputable news sources are reporting the Department of Defense will abandon the ban on women serving in combat; CNN has one of the fullest reports.

The official announcement from the Pentagon should be forthcoming on Thursday.

In November, a complaint in Hegar v. Panetta was filed in the Northern District Court of California, arguing that the policy offended the equal protection component of the Fifth Amendment.  More about the case is available from the ACLU.

ConLawProfs (and students) often encounter the gendered combat exclusion in discussions of Rotsker v. Goldberg (1981) in which the Justice Rehnquist's Court upheld male-only registration for the draft finding women were not "similarly situated" to men because women were not eligible for combat.

RR
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Tunisian Draft Constitution Draws Some Praise, Criticism

Human Rights Watch wrote last week to the Tunisian National Constituent Assembly on its second draft constitution, released December 14, 2012.  HRW faintly praised the Assembly for improvements since the first draft--dropping the criminalization on "the sacred" and any form of "normalization" with "Zionism and the Zionist state," including language that better protects equal rights of women--and sharply criticized the Assembly for continued problems.  Among the criticisms:

• The draft fails to explicitly mention international human rights conventions and fails to specify whether human rights treaties that have been ratified by Tunisia apply directly as law in Tunisia.
• The draft includes language that protects various rights, but with provisos like "as provided for by law," or some such, suggesting that "the law" has broad leeway to interpret limitations on rights.
• The State of Emergency provision, Article 73, doesn't sufficiently define limitations or protect nonderogable rights.
• The draft provides for immunity for the president during and after office for all official acts, without allowing for prosecution for war crimes.
• Anti-discrimination provisions are at odds with other provisions limiting offices like the presidency to Muslims.
• The draft has weak guarantees for the tenure of judges and thus for an independent judiciary.

HRW also outlined a series of recommended changes.

SDS

Daily Read: Lederman on Article III Standing in Prop 8 and DOMA Cases

When the United States Supreme Court granted certiorari in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and  United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing.

This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional).  In the case of Prop 8, the trial proceeded with the intervenors, who lost.  In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.

This is an unusual, if not unique, state of affairs.  Usual discussions of Article III standing focus on the plaintiffs rather than losing defendants who are now appellants or petitioners.

Over at SCOTUSBlog, ConLawProf Marty Lederman (pictured) has a series of posts "Understanding Standing" exploring and explaining the Article III issues raised in the same sex marriage cases.

All of the posts - - - seven! - - - are worth a read, but perhaps most interesting is Lederman's discussion of the outcome of any Court decision denying standing in the Prop 8 case.

RR

Is the Debt-Ceiling Bill Designed to Self-Destruct?

House Republicans added a provision to the temporary debt-ceiling increase in H.R. 325 that would halt congressional salaries if Congress fails to pass a budget this year.  But Michael Froomkin argues at his blog, Discourse.net, that this provision, a violation of the Twenty-Seventh Amendment, could torpedo the debt-ceiling increase itself, if the provision's not severable from the rest of the bill.  In other words, if a disgruntled member of Congress sued after he or she didn't get paid, a ruling that the pay holiday violated the Twenty-Seventh Amendment could take down the temporary debt-ceiling increase in the bill, as well.  The result: A court, not Congress, would invalidate the debt-ceiling increase, and Congress could walk away with clean hands.  As Froomkin suggests, a strategically minded opponent of the debt-ceiling increase might even have designed it this way.

As Froomkin argues, the severability question all depends on how tightly the debt-ceiling increase and the congressional pay-stoppage are linked.  And Froomkin says that the more that members of Congress link the two provisions in their arguments for the bill, the more likely it is that a court would find the pay-stoppage non-severable. 

The other piece, of course, is the Twenty-Seventh Amendment.  There's not a lot of case-law out there--just one case, in fact, with rulings from the D.C. District and D.C. Circuit courts (and with a congressman named John Boehner as plaintiff)--but that case and the Amendment's plain text suggest that the pay-stoppage could well violate the Amendment.  H.R. 325 seeks to dodge this by holding halted congressional pay in escrow.  But Froomkin argues that that gambit is unlikely to work--that halting salary and holding it in escrow is by any reckoning "varying the compensation of the Senators and Representatives."

SDS

Obama Fighting (Constitutional) Fire with (Constitutional) Fire

President Obama's recent and frequent constitutional references--from those in his inaugural address to those related to his administration's gun control actions--is part of a larger strategy to promote administration policies, argues Sean Sullivan over at The Fix: "Put simply, he's fighting fire with fire."  That's constitutional fire.  And the fire he's fighting is the constant barrage of constitutional claims against his policies and actions.  Sullivan:

When the Constitution has been brought up in the national political debate, it's typically been by the president's opponents, at least in recent years. . . .

What Obama is signaling [is] that he believes he can fight--and win--major battles on similar terms.

Sullivan says this much is clear: Obama isn't going to "let his opponents monopolize one of the nation's most revered documents in the highest-stakes political and policy debates."

SDS

Plaintiff Has Standing to Challenge DEA Stance on Marijuana, But Loses on Merits

The D.C. Circuit ruled today that a disabled veteran had standing to challenge in federal court the Drug Enforcement Agency's decision not to downgrade marijuana from a Schedule I drug.  Even so, the court ruled against him on the merits.  The ruling means that DEA's decision not to downgrade marijuana stands, and marijuana continues to be a Schedule I drug.

The case, Americans for Safe Access v. DEA, arose when the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana and downgrade it from a Schedule I drug.  The DEA declined, and the petitioners sought APA review in federal court.  Once in court, the petitioners' Article III standing became an issue, and the D.C. Circuit ordered argument on it.

The two-judge majority held that one petitioner, Michael Krawitz, a disabled veteran, had standing--and therefore that the case could move to the merits.  Krawitz received pain management treatment from the VA.  But as part of the program, the VA required him to sign a "Contract for Controlled Substance Prescription" that would have prohibited him from using medical marijuana.  Krawitz refused to sign and turned to a non-VA physician in Oregon to obtain the referral forms required to participate in that state's medical marijuana program.  Pursuant to VA policy, the VA did not pay for this.  (VA policy prohibits VA providers from completing forms seeking recommendations or opinions regarding a vet's participation in a state marijuana program.)

The court ruled that Krawitz had standing--that he showed sufficient harm, causation, and redressability to get his foot in the door in federal court.  Harm was easy: the court said that Krawitz's out-of-pocket expenses constituted sufficient harm.  Causation and redressability were a little harder.  The lynchpin for the court was that the DEA classification was the definitive classification for the federal government, including other agencies like the VA, creating a tight enough relationship between the DEA classification and the VA policy.  Thus when the VA required Krawitz to sign that he'd forego medical marijuana and refused to pay for it, it did so because the DEA listed marijuana as a Schedule I drug; that's causation.  And if Krawitz were to win on the merits--and get DEA to downgrade marijuana--the VA would follow suit and drop its requirement that pain management patients forego medical marijuana; that's redressability.  All this means that the VA wasn't some random third-party intervenor breaking the causation and redressability chain between the DEA and Krawitz; instead, the VA policy was driven by the DEA classification.  Here's how the court explained it:

Congress made clear when it passed the [Controlled Substances Act] that the [DEA's] scheduling decisions should serve as the federal government's "authoritative statement" on the legitimacy of particular narcotics and dangerous drugs. . . .  When the DEA classified marijuana as a Schedule I drug, pursuant to its delegated authority under the CSA, it announced an authoritative value judgment that surely was meant to affect the policies of third-party federal agencies.

Unsurprisingly, the VA has heeded the DEA's judgment regarding marijuana, thus making the question of causation relatively easy in this case.

. . .

The only reason the VA cites for implementing [its policy on marijuana] is the classification of marijuana as a Schedule I drug.  Therefore, were marijuana rescheduled to reflect its potential for medical use, the VA would have no expressed reason to retain [its policy] and VA clinicians would likely be subject to a non-discretionary duty to complete Krawitz's state medical marijuana forms.

Op. at 18-20.

(Judge Henderson wrote in dissent that Krawitz's standing arguments came too late.)

But even as the court ruled in favor of standing, it ruled against the petitioners on the merits.  It held that the DEA's decision not to reclassify marijuana wasn't arbitrary and capricious--in particular, that substantial evidence supported the agency's determination that studies showing a "currently accepted medical use" do not exist.

SDS

Modest Filibuster Reform Close

Senate Majority Leader Harry Reid and Republican Leader Mitch McConnell are close to agreement on modest reforms of the Senate's filibuster, according to The Hill and WaPo.  As we wrote here, Senator Reid kept the first legislative day of the Senate open in order to preserve the "constitutional option"--a change in the cloture rule by a mere majority of the Senate, as part of that body's enactment of its rules on the opening day of the Congress.  (The constitutional option allows the Senate to change its rules on the first day of a new Congress under the default majority-rule rule, and not under the super-majority required by the cloture rule, Rule XXII.)  Although it appears that Senator Reid will keep the legislative day open until the parties reach a final agreement, it also appears unlikely that Senator Reid will exercise the constitutional option.

Instead, reform will be relatively modest.  Maybe most notably, the agreement would require the minority party to muster 41 votes to stall a bill, changing the current practice that requires the majority to find 60 votes to end a filibuster.  This could be significant: it would end the practice of an anonymous hold, in which a single unnamed Senator can maintain a filibuster unless and until the majority can round up 60 votes.  Other minor changes are designed to reduce delays and move business along.  The talking filibuster doesn't appear to be a part of the package.

SDS

Scalia and Thomas More

Justice Scalia's appearance at President Obama's Inauguration yesterday has been much remarked because of the Justice's hat. 

As ConLawProf Kevin Walsh reports, the hat was a gift from the St. Thomas More Society of Richmond, commemorating Scalia's participation in a 2010 "Red Mass" and is a replica of More's hat as portrayed in his famous portrait by Hans Holbein the Younger, 1527 (pictured right).

While Thomas More was celebrated in the play "A Man for All Seasons," a much less flattering portrait of him emerges in Hilary Mantel's award winning historical novel Wolf Hall, in which More is seen as distinctly unlawyerly, ungenerous, and perhaps pathological, especially as contrasted with the novel's hero, Thomas Cromwell.

As the late Christopher Hitchens noted, the genius of Wolf Hall wasin going beyond the Holbein portraits that defined the era, and revisioning, for example, the More portrait: "Now scrutinize the face of More and notice the frigid, snobbish fanaticism that holds his dignity in place."  More, then, becomes a man who will not only burn books, but burn people.  Hitchens also quotes Mantel's scene of the interrogation of More, after More has fallen out of favor.  The character More says:

“You say you have the majority. I say I have it. You say Parliament is behind you, and I say all the angels and saints are behind me, and all the company of the Christian dead, for as many generations as there have been since the church of Christ was founded, one body, undivided—”

RR
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Daily Read: Obama's Second Inaugural Address

President Obama delivered his inaugural adddress on January 21; the White House official transcript is here.

The official video, starting with CJ Roberts administering the oath of office (as on Sunday, no mistakes), shows the entire speech.

 

Whether one lauds it apropos of the Court's coming foray into the same-sex marriage debate, or interprets it as putting climate change center stange, or as lacking in specifics, or as requiring comparison to every other Presidential inaugural speech, it is certainly worth a listen.

RR

Carol Anne Bond Going Back to the Supreme Court

The Court granted certiorari Friday in Bond v. United States - - - again.

Recall that the first time the Court heard Carol Anne Bond's case, it held that she did indeed have standing to assert a Tenth Amendment argument against her charge for violating 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement, the Chemical Weapons Convention, that prohibits nation-states from producing, stockpiling, or using chemical weapons.  Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

On remand, the Third Circuit held that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention."  While the Circuit did find the prosecution of Bond puzzling, there was also much puzzlement over the statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."

It seems the Supreme Court is ready to clarify - - - or attempt to - - - Missouri v. Holland's famous statement. 

RR
[image of Methyldichloroarsine via]

Daily Read: Martin Luther King on Meet the Press 1965

In a 1965 "Meet the Press" interview, Martin Luther King speaks about civil disobedience, nonviolent protest, and racial equality, responding to the queries from the interviewers.

 

  

 

Worth a watch on this MLK Day, 2013.

RR
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Seventh Circuit Panel Upholds Wisconsin's Act 10

Reversing a federal district judge's holding that portions of Wisconsin's controversial Act 10 regarding public unions, the Seventh Circuit split panel's opinion in Wisconsin Education Association Council v. Walker upheld the constitutionality of the act. 

Recall that the federal district judge had held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarantees and Act 10's prohibition of dues withholding for general employees violated the first amendment.

Union members protesting in Wisconsin, 2011

The Seventh Circuit majority emphasized that the Act 10's "speaker-based distinctions are permissible when the state subsidizes speech. Nothing in the Constitution requires the government to subsidize all speech equally." 

Moreover, the Seventh Circuit majority found that Act 10 was viewpoint neutral, even as it admitted that

the Unions do offer some evidence of viewpoint discrimination in the words of then-Senate Majority Leader Scott Fitzgerald suggesting Act 10, by limiting unions’ fundraising capacity, would make it more difficult for President Obama to carry Wisconsin in the 2012 presidential election. While Senator Fitzgerald’s statement may not reflect the highest of intentions, his sentiments do not invalidate an otherwise constitutional, viewpoint neutral law.

On the Equal Protection claim, the panel majority applied rational basis review, in which "the law is presumed constitutional, and we impose a weighty burden on the Unions—they must “negative every . . . basis which might support” the law because we will uphold it “if there is any reasonably conceivable state of facts” supporting the classification."  The panel rejected the argument that heightened rational basis attributable to animus should apply: "unfortunate as it may be, political favoritism is a frequent aspect of legislative action."

Judge David Hamilton dissented from the majority's decision upholding Wisconsin’s selective prohibition on payroll deductions for dues for some public employee unions but not others on the basis of the First Amendment.   In his lengthy dissent,  Judge Hamilton differs on the central point of viewpoint neutrality, noting that while "on its face, Wisconsin’s Act 10 seems viewpoint-neutral: public safety unions can have dues withheld from paychecks, while other public employee unions cannot."  But he quickly observes: "Facial neutrality, however, is not the end of the matter."

Hamilton agreed with the district judge and credited the unions' arguments that Act 10 was a

pretext for viewpoint (here, political) discrimination. The first is the close correlation between various unions’ political endorsements in the 2010 Wisconsin governor’s race and their ability to continue payroll deductions. The second is the flimsiness of the State’s proffered rationales for drawing the line as it did between public safety and general employees and for barring payroll deductions of union dues for all but public safety employees. The third is the overtly partisan political explanation for the Act that was offered in the legislative debate.

While there are some minor disagreements on doctrine between the majority and dissenting opinions, for the most part they are in accord.  Where they differ is in their essential understanding of whether the facts satisfy the requirement of viewpoint neutrality.  Dissenting Judge Hamilton seems to have the better opinion in this regard; the majority opinion too often seems poised to conclude their is viewpoint discrimination and then retreats without explanation.

Perhaps the Seventh Circuit will proceed with en banc review.

RR

 

CJ Roberts Swears In President Obama

Without a glitch this time:

 

 

RR
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Zimbabweans to Vote on New Constitution

Zimbabwe President Robert Mugabe and Prime Minister Morgan Tsvangirai this week agreed on a final draft constitution that will go to referendum soon.

Al Jazeera, allAfrica.com, and Nehanda Radio (covering Zimbabwe news) all have reports, but the most detailed comes from RadioVop.

Among the provisions: The Attorney General's office will be divided into two new offices--an Attorney General that will sit in the cabinet and will advice the government, and a National Prosecuting Authority that will enforce the law.  (It's not clear, but this may mean that the prosecuting authority enjoys greater independence.)

The final draft constitution also tinkers with provincial governments and federalism by replacing the office of the Governor with a Head of Provincial Council, elected from among a slate provided by the the party with majority seats in that particular province, and by stating in the preamble that devolution does not imply divisionism or power or authority to secede.

The two-year effort to come up with the draft, led by the Constitution Parliamentary Committee, or COPAC, moved in fits and starts.  There may still be some details to work out before the draft is ready for referendum.  The COPAC web-site is here, but was down as of this post.  

SDS

Third Circuit: No Right to Access Polling Places

A three-juge panel of the Third Circuit ruled in PG Publishing Co. v. Aichele that a newspaper had no First Amendment right to access polling places.  The lengthy and careful opinion affirms a lower court ruling and creates a split between the Third and Sixth Circuits on the proper framework for analysis of this kind of claim, dealing with the right of access to the polling place: apply the experience-and-logic test from right-to-access jurisprudence (as the Third Circuit would have it); or apply strict scrutiny, apparently based on free speech forum analysis (as the Sixth Circuit would have it)?

The case arose out of attempts by PG's reporters to gain access to polling places in Allegheny and Beaver Counties, Pennsylvania, in order to report on that state's implementation of its voter ID law in the last election.  But state law bans all but election officers, clerks, machine inspectors, overseers, watchers, voters, those giving assistance to voters, and police officers from the polling place during elections.  After PG reporters were denied access in those two counties, PG sued, arguing that the ban violated its free speech and equal protection rights.  (Equal protection, because it claimed that other counties allowed access to reporters from other papers, and that Allegheny and Beaver counties previously allowed access to PG reporters.)

The Third Circuit rejected the claims.  The court ruled that free speech analysis didn't even apply (because there was no speech).  (The court nevertheless made clear that a polling place is a non-public forum.)  Instead, the court looked to right-to-access, or "right to gather news," jurisprudence--a right, like free speech, that the media enjoy only on par with the public generally.  Thus the court applied the Richmond Newspapers (or the "experience and logic") test, "balanc[ing] the interests of the People in observing and monitoring the functions of their government against the government's interest and/or long-standing historical practice of keeping certain information from public scrutiny.  If a right of access exists, any restraint on that right is then evaluated under strict scrutiny."  Op. at 25.  (The court reviewed its own opinions applying the experience-and-logic test to any traditionally open government proceeding, not just judicial proceedings, and concluded that it applies to polling places.)

Applying the test, the court first reviewed the history of voting (the "experience" prong) and wrote that "the historical record is insufficient to establish a presumption of openness in the context of the voting process itself."  Op. at 38.  Next, on the "logic" prong, the court compared the benefits of openness (preventing election fraud, preventing voter intimidation, and especially here checking and reporting on the implementation of voter ID) to the dangers (overcrowded polling places, revealing private information of voters) and ruled that "the 'logic' prong of this inquiry disfavors finding a constitutionally protected right of access to the voting process."  Op. at 43.  The net result: "both prongs of the "experience and logic" test militate against finding a right of access in this case."  Id.

In applying the experience-and-logic test, the court rejected the approach of the Sixth Circuit in Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 683 (6th Cir. 2004).  The Sixth Circuit in Beacon Journal applied strict scrutiny, not experience-and-logic balancing, to a similar claim and overturned Ohio's restriction on access.  The Third Circuit said that Beacon Journal erroneously applied speech principles--and public forum principles, at that--and thus deviated from the clear approach of the Supreme Court in cases like this.  It thus declined to follow Beacon Journal.

As to equal protection, the court rejected PG's three theories--a class-of-one theory, a selective enforcement theory, and an inconsistent application theory--all because PG failed to show any intention discrimination against its reporters, or that the state treated PG's reporters any differently than reporters from any other paper.

SDS

Establishment Clause Challenge to Government Contract with Bishops Moot

The First Circuit ruled today in ACLU of Massachusetts v. Sebelius that the ACLUM's Establishment Clause challenge to a government contract with the United States Conference of Catholic Bishops was moot after the contract expired and after the USCCB failed in its bid to win a new contract.  The ruling reverses an earlier district court ruling for the ACLUM on both mootness and the merits.

The case arose out of an HHS contract with the USCCB to provide services to human trafficking victims in the United States under the Trafficking Victims Protection Act.  USCCB won the contract, even with its statement that it "could not provide or refer for abortion services or contraceptive materials" for trafficking victims under the contract.  The ACLUM lodged a taxpayer suit for declaratory and injunctive relief, arguing that the contract violated the Establishment Clause.

The district court ruled for the ACLUM on the merits.  It said that HHS violated the Establishment Clause either by endorsing or appearing to endorse USCCB's religiously based views, or by impermissibly delegating authority to USCCB to impose those views on others.  As to standing, it said that the case fell under the "voluntary cessation" exception to the mootness doctrine.

The First Circuit reversed.  It ruled that the contract expired, leaving no case or controversy, and that it didn't satisfy requirements either for "voluntary cessation" or capable-of-repetition-but-evading review.  Key to the court's holding was that the ACLUM asked only for injunctive relief, and that HHS denied a new contract to the USCCB.

The ruling ends the case and means that we won't get a final merits decision on the Establishment Clause claim, except in the highly unlikely even that the case goes to the full First Circuit or the Supreme Court.

SDS

Professor Jenny Rivera Named to New York's Highest Court

New York Governor Andrew M. Cuomo today nominated Jenny Rivera, Professor at the City University of New York School of Law, to serve on the New York State Court of Appeals, New York's highest court.

"Throughout her career, Professor Rivera has worked to defend the legal rights of all New Yorkers and make our state a fairer, more just place to live," Governor Cuomo said. "As a Judge on the Court of Appeals, Professor Rivera's legal expertise and passion for social justice will serve all New Yorkers well, and I am proud to send her nomination to the Senate today."

Readers of the ConLawProf will recall our 2008 review of Rivera's article, An Equal Protection Standard For National Origin Subclassifications: The Context That Matters, 82 Wash. Law Review  897 (2007), examining  classifications that rely on terms such as "Hispanic" and "Latino" and observing that such terms actually embrace a host of national origin classifications such as Puerto Rican, Dominican, Chilean, and Portuguese, even as she contends that this is not a reason to abandon equal protection analysis, but to delve deeper.

Rivera was also a participant in a public conversation "Translating Equality" with poet Kimiko Hahn and an author of the The Law Professors’ Report on U.S. Supreme Court Nominee Sonia Sotomayor: On the Merits from the Hispanic Bar Association.

Congratulations Jenny Rivera!

RR

Court to Test Limits of Congressional Authority Over Sex Offender Registration

The Supreme Court on Friday agreed to hear a case asking whether Congress had authority to require a sex offender who already served out his sentence to later register when he moved within a single state.  The case comes three years on the heels of United States v. Comstock, another case involving congressional authority over federal criminals after their sentences have run, and one suggesting expansive congressional authority.  (Comstock held that Congress had authority under the Necessary and Proper Clause to designate federal prisoners as "sexually dangerous" and to detain them even beyond their original sentence.)  It also comes just one year after the Court's sharply divided and controversial ruling in NFIB v. Sebelius, the ACA/Obamacare challenge defining a limit on congressional authority and holding that Congress lacked authority under the Commerce Clause to require individuals to purchase health insurance.  (NFIB also held that Congress had authority under its taxing power to require individuals to purchase health insurance.)  This case, United States v. Kebodeaux, thus gives the Roberts Court yet another important opportunity to define congressional authority and to read that authority as relatively broad (as in Comstock) or to find an important limit (as in NFIB--even if a different limit than the Court found in that case).

Kebodeaux involves a challenge to the federal Sex Offender Registration and Notification Act, or SORNA.  SORNA, enacted in July 2006, requires sex offenders to register in the jurisdiction where they live.  It requires states to adopt specified federal standards for registration as a condition of receipt of federal funds.

Kebodeaux, a convicted sex offender who served out his sentence and was released from prison "unconditionally" (the Fifth Circuit's word), was convicted of violating SORNA by failing to register when he moved from El Paso to San Antonio.  Kebodeaux challenged his conviction on appeal, arguing that Congress lacked authority to penalize his failure to register in a purely intrastate move, because he had served his full sentence and was released by the time Congress enacted the registration requirement in SORNA.

The en banc Fifth Circuit agreed.  It ruled that Congress had no authority over Kebodeaux when he made an intrastate move after he served out his full sentence.  In short, the court said that the period of time between Kebodeaux's release and Congress's enactment of the registration requirement in SORNA broke the chain linking congressional authority and Kebodeaux, and Kebodeaux did not re-establish that chain (by way of the Commerce Clause) by crossing state lines.  The court distinguished Comstock on exactly that basis: in Comstock, the federal government still had physical control over federal prisoners designated "sexually dangerous," even if they were literally on their way out of the federal prison, and thus had authority to regulate them by ordering their continued detention; here, in contrast, the federal government had no control over Kebodeaux. 

Kebodeaux's facts go beyond those in Comstock, however, because this case is not merely about whether Congress can regulate the activity of someone still in federal custody past the expiry of his sentence.  Importantly, it raises the further question whether Congress can regulate his activity solely because he was once convicted of a federal crime.

Op. at 6.

The court also worries that this authority would know no bounds and would intrude into areas of state regulation.  And it worries that there is no authority, "from more than two hundred years of precedent, for the proposition that it can reassert jurisdiction over someone it had long ago unconditionally released from custody just because he once committed a federal crime."  Op. at 9. 

If these worries sound familiar, it's because similar worries drove the opponents of the ACA/Obamacare, and ultimately even the Court, in ruling that Congress exceeded its Commerce Clause authority in enacting the universal coverage provision, or the so-called individual mandate, in NFIB v. Sebelius.  Many of us didn't see this coming in NFIB.  A similar limit on congressional authority may be creeping up on us now.

On the other hand, the panel decision and sharp dissents in the Fifth Circuit en banc ruling argued that Comstock supported congressional authority to apply SORNA's registration requirements to Kebodeaux.  This case could well follow Comstock and (again) highlight expansive congressional authority over those once in federal control. 

Either way, Comstock, the sleeper of OT2009, will play a key role in the outcome.  And the case will give us one more important datapoint to plot the trajectory of congressional authority under the Roberts Court.

SDS

 

Daily Read: Sotomayor on Sotomayor

Sonia Sotomayor's memoir, My Beloved World, is now out in the world.

Writing about the book in WaPo, Dahlia Lithwick states "It is nearly impossible to read “My Beloved World” without comparing it with the only other deeply personal autobiography by a sitting Supreme Court justice, Clarence Thomas’s 2007 memoir, “My Grandfather’s Son.”  Lithwick's comparison demonstrates a wide gap between the two Justices' self-presentations.

Discussing the book for NPR, Court correspondent Nina Totenberg echoed the Thomas' comparison, saying:

Justice Clarence Thomas was the last member of the court to write a book that topped the list of national book sales, but while his vividly written autobiography sizzles with rage and resentment, Sotomayor's hums with hope and exhilaration.

And in the Boston Globe review, Jax Wexler also makes reference to Clarence Thomas:

Readers seeking insight into Sotomayor’s judicial philosophy or her positions on hot-button issues will be largely, though not entirely, disappointed. With the constitutionality of racial preferences on the court’s docket again this term, it is refreshing to hear the views of a justice who benefitted from affirmative action and who is not Clarence Thomas. In her memoir, Sotomayor eloquently defends preferences for creating “the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”

Yet these first reviews - - - and surely more will follow - - - also stress the literary quality of Sotomayor's prose as much as its empathetic message and remarkable content.

This looks like it will be an excellent read.

Prostitution Pledge Going to the Supreme Court

The United States Supreme Court today granted certiorari in United States Agency for International Development v. Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction.

The case involves a First Amendment challenge to a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq.:

 No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.

In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs.   The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.

A divided panel of the Second Circuit held the provision unconstitutional in July 2011, affirming the district judge.  The majority found it important that the purpose of the program and the mandated message were not synonymous.  At times, the panel reasoned,

the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.

As we discussed, the Second Circuit refused to grant a rehearing en banc, over a dissent joined by three judges, with an interesting concurring opinion discussing the doctrinal disarray.  This focused the disagreement with the Sixth Circuit and made the issue ripe for certiorari.

Justice Kagan did not participate in the grant of certiorari and will presumably be recused from what promises to be a major First Amendment case of the Term.

RR
[image: Prostituierte in Brants Narrenschiff (1506) von Albrecht Dürer via]