Tuesday, February 19, 2013

Can a Legislature Criminalize Legislation?

A bill introduced in the Missouri legislature would criminalize the introduction of other legislation.  HB 633 would amend the state statutes to provide:

Any member of the general assembly who proposes a piece of legislation that further restricts the right of an individual to bear arms, as set forth under the second amendment of the Constitution of the United States, shall be guilty of a class D felony.

The bill is likely unconstitutional under its state constitution. 

Missouri_state_capitol_with_flowering_dogwood
The Missouri state constitution, like the United States Constitution, Art. I §6, has a "speech or debate" clause that is generally construed to protect legislative action. Missouri Constitution Art. III §19, "legislative privileges," provides:

Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the session of the general assembly, and for the fifteen days next before the commencement and after the termination of each session; and they shall not be questioned for any speech or debate in either house in any other place.

The Missouri bill seems to fall outside the general purpose of legislative privilege provisions that are intended to protect the legislature from overreaching by other branches.  Nevertheless, the Missouri legislature's criminal provision would call legislators into courts to "be questioned" for their legislative acts.

RR
[image: Missouri State Capitol via]

February 19, 2013 in Congressional Authority, Current Affairs, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Court Tests Dog Sniffs With Common Sense

A unanimous Supreme Court today rejected a defendant's challenge to a dog sniff, and the evidence that it led to, ruling that,

[t]he question . . . is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. 

Op. at 12.  Oh, and then this: "A sniff is up to snuff when it meets that test."

The case, Florida v. Harris, arose out of a defendant's challenge to a dog alert that led an officer to search his vehicle and find ingredients for manufacturing methamphetamine.  But the dog, Aldo, wasn't trained to alert for the particular items that apparently triggered the alert (like pseudoephedrine).  And in a surprise twist Aldo later alerted to the same vehicle, driven by the same defendant (then out on bail), but the subsequent search this time turned up nothing.

The defendant, Harris, moved to suppress, challenging Aldo's reliability.  In particular, Harris claimed that Aldo was unreliable because he alerted to items that he wasn't trained to alert to (in the first stop), and because he alerted to nothing (in the second stop).  The state produced evidence of Aldo's training, but Harris didn't challenge that.

The Florida Supreme Court ruled for Harris.  It said that the state had to produce a wide array of evidence, including Aldo's field-performance records, in support of Aldo's reliability.  This it didn't do.

The Supreme Court disagreed.  Justice Kagan wrote for the unanimous Court that the proper test is practical and common-sensical, based on the totality of the circumstances, and not on rigid rules or mechanical inquiries.  In other words, the trial court should allow the parties to make their best cases on Aldo's reliability, including evidence of training and sometimes even field records, and evaluate the evidence based on the totality of the circumstances--just as it would with any other probable cause determination, using the test quoted above.

SDS

February 19, 2013 in Cases and Case Materials, Fourth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Detention Incident to Search Warrant Doesn't Stretch a Mile

The Supreme Court ruled today in Bailey v. United States that officers can't detain a suspect incident to the execution of a search warrant a mile away from the property searched.  The ruling underscores the geographic limit to the detention authority in Michigan v. Summers, allowing a detention incident to the execution of a search warrant even without probable cause.  (Summers is a narrow exception to the general probable cause requirement under the Fourth Amendment.) The case says that the Summers rule is "limited to the immidate vicinity of the premises to be searched." 

While the ruling favors Bailey and a geographically-bound reading of the Summers exception, the evidence that Bailey sought to exclude may ultimately make its way into the case on a different rationale.  In short, this ruling ultimately might not be a game changer for Bailey's criminal case.

The case started when officers went to Bailey's apartment to execute a search warrant.  (Nobody challenged the search warrant.)  Officers saw Bailey and another man leave the apartment in a car, and they followed them.  Officers pulled Bailey over about a mile from the apartment, patted him down, and found a ring of keys that they later discovered opened the apartment.  After they found a gun and drugs in the apartment, they charged Bailey.  Bailey moved to suppress the apartment key and statements he made when he was stopped.  The state argued that the officers validly detained him pursuant to the execution of the search warrant, under Summers

The Supreme Court ruled for Bailey.  Justice Kennedy wrote for the majority that a Summers detention incident to the execution of a search warrant extends only to the immediate vicinity of the place to be searched.  He wrote that the law-enforcement reasons for the Summers rule--officer safety, facilitating the completion of the search, and preventing flight--all work within that geographic limit, but not a mile outside of it.  He also wrote that a detention away from the search site involved a greater intrusion into privacy. 

Ruling that Summers did not authorize the search, Justice Kennedy wrote that the officers would need to rely on some other rationale for the detention and pat-down--perhaps Terry v. Ohio and reasonable suspicion.  But while the trial court denied Bailey's motion on both Summers and Terry grounds, the Second Circuit affirmed on Summers alone.  Thus the Supreme Court didn't reach the Terry issue.  All this means that the keys could ultimately be admitted.

Justice Scalia, joined by Justices Ginsburg and Kagan, wrote to say that, contrary to the dissent's approach, the Summers rule is categorical, and not susceptible to case-by-case interest balancing.  Summers, he wrote, "embodies a categorical judgment that in one narrow circumstance--the presence of occupants during the execution of a search warrant--seizures are reasonable despite the absence of probable cause."

Justice Breyer, joined by Justices Thomas and Alito, dissented.  He wrote that the officers acted reasonably, considering the flight risk, possibility of destruction of evidence, and possibility of injury. 

SDS

February 19, 2013 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Supreme Court Rules Child Return Order Not Moot on Appeal

A unanimous Supreme Court ruled today that a district court's order that a child return to his or her home country is not moot on appeal just because any relief ordered on appeal is unlikely to get the child back to the U.S.  The ruling means that the lower court can determine whether the district court's return order was in error--potentially resulting in a re-return order that may or may not have any practical effect.

The case, Chafin v. Chafin, arises out of an international custody dispute between a U.S.-citizen-dad and a U.K.-citizen-mom.  Under the Hague Convention on the Civil Aspects of International Child Abduction, which is designed to work these things out, a federal district court ordered the return of the child to her country of "habitual residence," Scotland, and mom took her there.  Dad appealed, but the circuit court dismissed the case as moot, saying that it "became powerless" to grant relief.  What it meant was that it couldn't reverse the district court and order it to re-return the child (because the courts don't have authority for re-return), and in any event a re-return order wouldn't be effective

The Supreme Court disagreed.  Chief Justice Roberts wrote for a unanimous Court that a case doesn't become moot just because a court may not have authority to grant the requested relief (in this case a re-return, which goes to the merits, not mootness, according to the Court) or just because the court's order is unlikely to have any practical effect. 

Mr. Chafin's claim for re-return--under the Convention itself or according to general equitable principles--cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction . . . and his prospects of success are therefore not pertinent to the mootness inquiry.

As to the effectiveness of any relief . . . even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot.  The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions.  No law of physics prevents E.C.'s return from Scotland . . . and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States.

Op. at 8-9 (citations omitted).

Justice Ginsburg, joined by Justices Scalia and Breyer, wrote in concurrence that international shuttling is no good for a child, and that Congress and the courts might work out a more streamlined procedure to protect against putting a child in this position in the first place.

SDS

February 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News | Permalink | Comments (0) | TrackBack (0)

Court to Test Individual Campaign Contribution Limits

The Supreme Court today said it would take up McCutcheon v. FEC, a case testing federal biennial limits on contributions to candidates, PACs, parties, and committees.  (The jurisdictional statement is here.)  While the case directly challenges biennial limits under the Buckley framework, the petitioner also preserved the issue whether Buckley's contribution-expenditure scrutiny distinction violates free speech.

It's not clear how much the case could matter to the sheer amount of money in politics.  That's because contributors already have ample and growing opportunities to contribute to proliferating super-PACs and 501(c)(4) organizations.  But if the Court takes on Buckley's contribution-expenditure distinction, the ruling could be quite significant both for First Amendment doctrine and money in politics.  (That distinction means that the government can regulate contributions to prevent political corruption, but expenditures get full First Amendment protection.)  It could be the next step after Citizens United in further opening the money spigot.

The case directly attacks federal biennial expenditure limits under the Bipartisan Campaign Reform Act.  BCRA limits an individual's contribution to a candidate, a national party, a local party, and a PAC in each calendar year.  These are called "base limits."  But BCRA also limits an individual's total contributions to all federal candidates, party committees, and PACs every two years.  These are the "biennial limits." 

McCutcheon argues that the biennial limits restrict his ability to contribute to as many candidates and parties as he'd like, thus restricting his First Amendment rights.  In particular, he says that the biennial limits under BCRA have no justification and therefore must be struck.

To see why, start with the old biennial limit upheld by the Court in Buckley.  Back then, there were no base limits for contributions to PACs or national or local parties.  (There was a base limit on contributions to candidates, though--$1,000 per.)  McClutcheon argues that the Court in Buckley upheld the biennial limit because it was designed to prevent a contributor from circumventing the base limit on candidates.  How?  By contributing massive amounts through political committees that would simply funnel the money to the candidate. 

McClutcheon says that BCRA--with its base limits and biennial limits on candidates, committees, PACs, and parties--can't be designed to prevent circumvention in the same way.  This is because BCRA's base limits themselves restrict circumvention.  (BCRA's base limit on a party, e.g., prevents a contributor from funneling massive amounts of money through the party to the candidate).  McClutcheon says that the only effects of BCRA's biennial limits are to restrict the total amount of cash he can spend and, with the base limits, to restrict the number of candidates, committees, PACs, and parties that he can spend on--thus violating his First Amendment rights.  (E.g.: He would've liked to give $25,000 each to the RNC, the National Republican Senatorial Committee, and the National Republican Congressional Committee before the 2012 election, but that would have exceeded the biennial limit.)  McClutcheon says his case against the biennial limit on contributions to candidates is even stronger, because even Buckley didn't hold that there's an anti-circumvention interest in that limit.  He claims that that limit serves only to prevent him from contributing to as many people as he'd like.

McClutcheon also argues that the biennial limits are too low.

The Court could rule on the narrow issue whether the biennial limits violate Buckley's anti-circumvention interest (which supported the old biennial limit).  This kind of ruling (if, as expected, it overturns the biennial limits) could give contributors another way to spend more money in politics, but it would retain Buckley's contribution-expenditure scrutiny distinction.  Alternatively, the Court could take on BCRA's biennial limits and Buckley's contribution-expenditure distinction.  This could fundamentally change how we approach campaign finance restrictions under the First Amendment (even if it's not obvious that it would necessarily result in a ton more money in politics). 

SDS

February 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Heins on Academic Freedom

The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings.  Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks. 

Heins can be viewed takling about her book in a series of videos, available here; an excerpt from The Chronicle of Higher Education is available here.

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For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics.  Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose.  Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.

And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read. 

RR

February 19, 2013 in Books, First Amendment, History, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Monday, February 18, 2013

"Lincoln" Errs . . . And Corrects Errors

Prof. Edward Zelinsky (Cardozo) wrote last week in the Hartford Courant about a mistake in the movie "Lincoln."  The error: Lincoln wouldn't have signed the Amendment.  Zelinsky explains:

In a particularly effective scene in a movie with many more of them, President Abraham Lincoln holds aloft a pen for emphasis and forcefully declares his intent to soon sign the 13th Amendment, abolishing slavery.  The problem is that presidents do not sign constitutional amendments.  Abraham Lincoln, the best lawyer to ever serve as the nation's chief executive, undoubtedly knew this.  He would not have declared his intention to sign an amendment that was not his to sign.

But Zelinsky's willing to cut screenplay author Tony Kushner some slack:

Mr. Kushner's liberties with the details of the Constitution served a legitimate artistic mission by graphically portraying Lincoln's personal commitment to the abolition of slavery.  As the movie makes clear, the abolition of slavery via the 13th Amednment was not inevitable.  Lincoln's commitment was decisive.

As Zelinsky points out, the alternative--in which Lincoln might have said "something along the lines of wanting Congress to promptly send the 13th Amednment to the states"--is "not the stuff on which Oscar nominations are made."  Good point.

(Zelinsky also references another error: the movie's portrayal of Connecticut congressman as voting against the Thirteenth Amendment.  In fact, Connecticut's representatives voted for it.) 

But if the film committed errors, it also helped correct them--or at least one of them.  According to The Atlantic Wire, a recent immigrant from India, Dr. Ranjan Batra, after seeing the movie, researched and determined that Mississippi never ratified the Thirteenth Amendment.  Last week it did.

SDS

February 18, 2013 in Fundamental Rights, History, News, Reconstruction Era Amendments, Thirteenth Amendment | Permalink | Comments (3) | TrackBack (0)

Daily Read: Reinstein on Executive Power and Haiti

Today we celebrate "Presidents' Day" and ConLawProfs contemplating executive power might do well to consider the Haitian Revolution (1791-1804) as a formative experience. 

In his new article, Slavery, Executive Power and International Law: The Haitian Revolution and American Constitutionalism, available in draft on ssrn, ConLawProf Robert Reinstein argues that the "six administrations from George Washington through John Quincy Adams responded to the slave revolt and establishment of Haitian independence in ways that greatly expanded executive power." 

420px-Toussaint_L'OuvertureIndeed, as Reinstein reminds us, the first sole executive agreements were made by Adams with regard to Haiti (predating the seizure of the schooner The Wilmington Packet by six months).  Reinstein contends that the Haitian history is important because

Many of the most controversial questions presidents face in the modern era—whether to support regime change, use military force to protect American interests abroad, intervene in civil wars, arm foreign rebellions, form secret agreements with governments or belligerents, comply with obligations of international law—were first faced in the American reactions to the Haitian slave revolt.

Yet as Reinstein observes, the history also reveals conflicting executive interests, at times favoring  domestic fear of a similar slave-revolt and at other times favoring geopolitical (and capitalist) interests. At the center - - - not surprisingly - - - is Thomas Jefferson, who vowed to reduce Haiti's charismatic leader Toussaint L'ouverture to "starvation." 

But Reinsten also centers the Supreme Court's hostility to the establishment of the second independent nation in the Western Hemisphere.  Reinstein writes that as   "Congress debated the first Haitian embargo bill, a Representative asked: “Have these Haytians no rights?”"  Reinstein concludes that the "answer ultimately given by the United States government was unequivocal: “No.”"

An important - - - and oft-neglected - - - history of executive power as well as judicial power worth a read on Presidents' Day.

RR
[image of Toussaint L'ouverture from a French engraving circa 1802 via]

February 18, 2013 in Executive Authority, History, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, February 17, 2013

Is the First Amendment Civil Rights Claim in Jeopardy?

Judge James E. Boasberg (D.D.C.) in two separate cases in the last four weeks or so rebuffed an argument by the U.S. Attorney's Office for the District of Columbia that a plaintiff has no Bivens claim against federal officers for violation of First Amendment free speech rights.  The holdings in these cases were unremarkable, given the state of circuit law and the approach in other circuits to the question--which recognize a plaintiff's cause of action to bring a First Amendment claim against federal officers.  But the government's argument that the plaintiffs in these recent cases lacked this cause of action raises the specter that First Amendment Bivens claims could be on the chopping block.

(A Bivens claim is a suit against a federal officer for a violation of a constitutional right.  There's no statutory authorization for this kind of suit (as there is against a state officer for violation of a constitutional right, under 42 U.S.C. Sec. 1983), and so the Supreme Court has implied a cause of action for cases against federal officers involving certain constitutional rights.  "Bivens" refers to the pioneering case imlying such a cause of action, Bivens v. Six Unknown Named Agents.)

It's hardly surprising that the federal government would press the position that Bivens claims are limited and ought not to be extended beyond those discrete constituitonal claims where the Supreme Court has recognized them.  And it's not news that this Supreme Court might not be particularly amenable to Bivens claims beyond those that it already recognized (and it hasn't recognized a Bivens claim under the First Amendment).

But the government's argument in the two recent D.C. District cases may suggest a new line of attack, based on language in a recent Supreme Court case, Ashcroft v. Iqbal.

Iqbal famously reaffirmed that there's no vicarious liability under Bivens.  It also famously said that Bivens complaints need to meet a certain threshold of specificity--a new, higher threshold that made it more difficult to bring these kinds of claims.  But it also said something else: It said that the Court is reluctant to extend Bivens to claims that it has not yet recognized, and it noted that it had not yet recognized a Bivens claim based on the First Amendment.  The Court wrote:

Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability "to any new context or new category of defendants."  [Citations omitted.]  That reluctance might well have disposed of respondent's First Amendment claim of religious discrimination.  For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, [citation omitted], we have not found an implied damages remedy under the Free Exercise Clause.  Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment.  Bush v. Lucas, 462 U.S. 367 (1983).

Iqbal at 11.  (In Bush, the Court rejected the petitioner's Bivens-free speech claim because there was a comprehensive statutory scheme already available to him.)

The government seized on this language from Iqbal in the two recent cases in the D.C. District and argued that it raised the question whether long-standing circuit law recognizing a First Amendment claim under Bivens was still viable.

Judge Boasberg rejected the argument:

Even if Defendants are correct in predicting the Supreme Court's response to questions not yet before it, this Court cannot accept its invitation to depart from this Circuit's binding precedent.

That circuit precedent goes back to Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977).  And as Judge Boasberg wrote, the Third and Ninth Circuits have also recognized First Amendment claims pursuant to Bivens.

This government line of attack, based on language in Iqbal, may not mean anything other than the government predictably arguing for a narrow Bivens doctrine.  Or it may be the start of a new and revived effort to put Bivens-First Amendment claims that are recognized by the lower courts before the Supreme Court--and on the chopping block.

Judge Boasberg's ruling in Bloem v. Unknown Department of the Interior Employees allowed an Occupy-DC protester's claim to go forward against Interior employees for confiscating his property from the McPherson Square protest site.  Judge Boasberg's ruling in Hartley v. Wilfert allowed a protester's claim to go forward against Secret Services officers who stopped her and asked for personal information as she tried to communicate a message about sex discrimination in law enforcement in front of the White House.  In addition to ruling that Bivens extended to both First Amendment claims, Judge Boasberg also rejected the officers' qualified immunity claims.

SDS

February 17, 2013 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Fordham Symposium on New Originalism

The Fordham Law Review is hosting a symposium titled The New Originalism in Constitutional Law on March 1, 2013.  Details are here.

The schedule includes an all-star line-up.  Here's the description:

Originalism--the thesis that legitimate constitutional interpretation is bound by original meaning or intent--has emerged as an influential and controversial approach to how we interpret our Constitution.  While some claim that constitutional interpretation and legitimacy require unearthing the original meaning or intent, others assert that tethering current citizens and interpreters to the comprehension of long-dead people is the antithesis of good and proper democratic government.

The Fordham Law Review is proud to present a symposium gathering a remarkable group of legal scholars, historians, and philosophers to discuss if, how, and why Originalism should inform constitutional analysis.

SDS

February 17, 2013 in Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 15, 2013

The Contraception Mandate and Private Employers in the Circuits

There's a growing split among circuit courts that have ruled on whether to grant an injunction pending appeal to private employers who object to the contraception mandate under HHS regs pursuant to the Affordable Care Act.  The underlying issues--whether the mandate violates the Religious Freedom Restoration Act or free exercise--seem to be moving closer and closer to Supreme Court review.

(These issues are different than the issue in the other cases testing the mandate--by religious employers.  Courts in those cases have held them in abeyance or dismissed them outright in anticipation of new HHS regs that exempt religious employers from the mandate.  The regs would exempt religious employers, but not secular corporations owned by religious individuals.)

The Seventh Circuit ruled recently, for the second time, that a private employer was likely to succeed on its RFRA claim against the contraception mandate.  That court in Grote v. Sebelius held that the corporation's owners' religious objections to the mandate, the government's likely failure to justify the mandate at strict scrutiny under the RFRA, and the owners' harm meant that the contraception mandate must be enjoined pending the company's appeal.  The case echoes that court's earlier ruling in Korte v. Sebelius.  (The difference between the two cases--that the company in Grote was self-insured, while the company in Korte wasn't--didn't justify different treatment, according to the court.)  Both rulings drew dissents by Judge Rovner, but the Grote dissent was especially sharp and lengthy.  In short, Judge Rovner took issue with the idea that the secular corporations enjoyed free exercise rights, even if the owners did.

The Eighth Circuit has lined up with the Seventh Circuit, while the Third, Sixth, and Tenth Circuits have gone the other way.  (Recall that Justice Sotomayor denied Hobby Lobby's application for a stay in the Tenth Circuit case.  The Seventh Circuit took account of that denial, but distinguished it, saying that the standard for a stay at the Supreme Court was much higher than the standard for an injunction pending appeal.)

These cases are on a motion for an injunction pending appeal, not the underlying merits.  Still, they presage a merits ruling, as the courts consider the likelihood of success on the merits as part of the injunction analysis.

We covered a different lower court ruling here.  The Beckett Fund for Religious Liberty has a full scorecard of the cases, including lower court cases, here.

SDS

February 15, 2013 in Cases and Case Materials, Free Exercise Clause, Fundamental Rights, News, Religion | Permalink | Comments (0) | TrackBack (0)

Daily Read: Sean Wilson's The Flexible Constitution

Sean Wilson (pictured) Wilsonprovides a compelling view of constitutional interpretation in his new book, The Flexible Constitution.  His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning.  Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality.  (p. 83).

 

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Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution."  This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.

RR

February 15, 2013 in Books, Interpretation, Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2013

Is the Violence Against Women Act Unconstitutional?

The Senate this week reauthorized the Violence Against Women Act and added a provision authorizing Native American Indian tribal courts to try non-Indians for acts of violence against Native American tribal members.  The provision, Section 904 of the Senate-passed VAWA, caught the attention of some on the right, who claim it's unconstitutional.

The Heritage Foundation outlined the argument in a post today.  According to the post, congressional extension of tribal jurisdiction to non-Indians violates the Appointments Clause and the life-tenure provision in Article III.  The reason, according to the post, is simple: tribal judges aren't appointed pursuant to the Appointments Clause, and they don't meet the requirements of Article III.  They therefore can't mete out punishment against non-Indians.

To unpack this, it helps to understand the debate between congressionally delegated power to tribes versus inherent power of tribes.  Advocates of the congressionally-delegated view say that tribes operate pursuant to congressional delegation, and therefore the full force of the Constitution applies.  Advocates of the inherent power view say that tribes have inherent sovereignty and authority on their lands, and that they operate pursuant to their own rules and any overriding congressional requirements.

The Supreme Court has weighed in, but barely.  It ruled in Oliphant v. Suquamish Indian Tribe that tribal courts lacked inherent authority over non-Indians, but it suggested that Congress could extend their authority to reach non-Indians.  In United States v. Lara, the Court ruled that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try non-member Indians.  

The Heritage Foundation piece takes the congressionally-delegated-power view.  This means, as the piece argues, that the Constitution applies with full force over the tribal courts, and that if they exercise jurisdiction over non-Indians, they, like regular Article III courts, have to meet constitutional requirements.  (You might ask why the piece didn't argue that they similarly have to meet due process requirements.  The reason: Congress extended due process protections in the earlier Indian Civil Rights Act and in the VAWA itself.)

The Senate took the inherent-authority view.  Thus Section 904 of the VAWA says, "the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons."  (Emphasis added.)

Which view is right?  Well, the Court has suggested in both Oliphant and Lara that the inherent-authority view is correct.  But that view might not get five Justices on the current Court.  So we're not sure how the Court would rule.

The Congressional Research Service has a terrific report on the issue here.

SDS

February 14, 2013 in Appointment and Removal Powers, Congressional Authority, Courts and Judging, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Balanced Budget Amendment is Back

There are already several proposals for a Balanced Budget Amendment in the House, and National Review Online reports that Senators Mitch McConnell and John Cornyn would unveil their own bill today in the Senate.  We posted on a left-leaning critique of the BBA here.  Here's what NRO said about it today:

Passage of a BBA is not just implausible; it also would be unwise.  Like the doomed 18th Amendment, it would enshrine partisan policy priorities in the founding document of the republic, which was meant to structure the democratic process, not rig its outcome in advance.

It would invite a hyperactive judicial intervention in the budget-making process that would throw the separation of powers completely out of balance.  Previous BBA proposals explicitly banned courts from raising taxes to balance the budget but did not otherwise limit judicial enforcement.  This means the judiciary might well attempt to set specific levels for every category of spending or otherwise shape budget priorities in an effort to enforce the Constitution.  Such a perversion of republican government would raise the stakes of inter-branch hostility and distrust to unprecedented levels.

SDS

February 14, 2013 in Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Daily Read: Dworkin on Winn and Bennett (and more)

Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad."  The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.

Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.

Dworkin's article is worth a (re)read.

For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?"  Dworkin wrote:

We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.

And for those interested in the Court's current docket, Dworkin's post-oral argument analysis of Fisher v. UT is a must-read.

Dworkin's voice will be missed.

RR

February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

In Memoriam: Ronald Dworkin

Ronald Dworkin, renowed legal philosopher who influenced generations of legal scholars, has died.

450px-Ronald_Dworkin_at_the_Brooklyn_Book_Festival

Todays' NYT obituary calls Dworkin "a legal philosopher and public intellectual of bracingly liberal views who insisted that morality is the touchstone of constitutional interpretation."

UK's Guardian obituary says that through his "sheer intellectual brilliance and a formidable capacity for work," Dworkin managed "to be both a consummate scholar's scholar and a lawyer's lawyer," while nevertheless enjoying himself.

Tributes will undoubtedly follow.

RR
[image via]

 

February 14, 2013 in News, Profiles in Con Law Teaching, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 13, 2013

Georgia Bill: Defamation by Image

Centaur_(PSF)Apparently upset by an image of a legislator's head being photo-shopped onto the image of a porn star's body, the Georgia legislature is entertaining a bill that would define such an act as defamation.

Georgia HB39 provides that a person commits defamation when he or she causes an unknowing person wrongfully to be identified as the person in an obscene depiction in such a manner that a reasonable person would conclude that the image depicted was that of the person so wrongfully identified.

The reasonable person standard here would probably exclude application to the upsetting image - - - which is clearly and inartfully photoshopped - - - and thus not satisfy the elements of the statute. 

As for the First Amendment considerations, the reasonable person standard might serve to distinguish the statute from the Campari advertisement parody at issue in Hustler Magazine v. Falwell. But as a defamation statute, the Georgia bill fails to incorporate the public figure malice standard firmly established since 1964's  NYT v. Sullivan and surely a legislator is a quintessential public figure.

The bill's combination of the defamation tort with "obscenity" is not likely to solve any First Amendment issues, especially since the bill's definition of obscene depiction is "a visual depiction of an individual displaying nudity or sexual conduct."   Simple nudity as coextensive with obscenity has been constitutionally suspect since 1973's Miller v. California.

The bill is merely a bill, but it needs some serious revision for it to become a constitutional statute.

RR
image via

February 13, 2013 in First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Rivkin and Grossman on the Second Amendment, Assault Weapons, Magazine Size

President Obama's proposals to ban assault weapons and limit the size of magazines violates the Second Amendment, according to David B. Rivkin, Jr., and Andrew M. Grossman writing in last week's WSJ.  They say that the ban and limit would interfere with the Second Amendment right to bear arms for self defense--a right, they say, that ought to be applied every bit as rigorously as the First Amendment right to free speech.

Lots of gun-rights advocates have made similar claims, but Rivkin and Grossman's piece may be particularly notable: Rivkin was on the early edge of certain other constitutional claims that many did not take seriously at the time but that were nevertheless ultimately vindicated.  Recall that he argued early in the debates that the universal coverage provision, or the so-called individual mandate, in the Affordable Care Act exceeded congressional authority under the Commerce Clause.  (Rivkin made that argument on the pages of the WSJ, too.)  Many didn't take this seriously.  But last summer, the Court said he was right (although it also upheld congressional authority to enact the provision under its taxing power, which Rivkin also argued against).  

Anyway, here's Rivkin's case against President Obama's proposals:

[Assault weapons] may look sinister, but they don't differ from other common weapons in any relevant respect--firing mechanism, ammunition, magazine size--and so present no greater threat to public safety.  Needless to say, the government has no legitimate interest in banning guns that gun-controllers simply do not like and would not, themselves, care to own.

Also constitutionally suspect are restrictions on magazine size.  There is no question that a limit of 10 rounds (as the president has proposed) or seven (as enacted by New York state last month) would impair the right to self-defense.  A magazine with 10 rounds may provide adequate protection against a single nighttime intruder.  But it may not: What if there are two intruders?

In short: assault weapons and 10-round magazines may be necessary for self-defense, and there's no good reason for government to restrict them.

Rivkin and Grossman argue that Second Amendment restrictions--even including things like requirements to carry gun insurance and even especially high taxes on ammunition--ought to get the full First Amendment treatment: strict scrutiny, or something close to it.

SDS

February 13, 2013 in Fundamental Rights, News, Second Amendment | Permalink | Comments (1) | TrackBack (0)

Presidents Day Weekend at the National Constitution Center

The National Constitution Center in Philly is hosting a special Presidents Day Weekend Celebration this weekend, Saturday, 2/16, through Monday, 2/18.  Among the activities: a special "Presidential Tour" of the Center's main exhibition, Presidential Trivia games, and opportunities to mingle with presidential re-enactors and discuss their lives and presidencies.

SDS

February 13, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 12, 2013

Barriers to Federal Election Fixes

Pam Fessler filed this story for NPR's Morning Edition this morning on some of the barriers that the federal government is likely to face if it takes on election reform.  From the story:

"We don't want to turn over the running of our elections to some bureaucrats in Washington," [South Dakota Secretary of State Jason Gant] said.  "We want to keep that at the local level with local elected officials."

. . .

Doug Chapin, an election expert with the University of Minnesota, worries about the impact of a partisan national fight on these often bipartisan state efforts.

SDS

February 12, 2013 in News | Permalink | Comments (0) | TrackBack (0)