Constitutional Law Prof Blog

ICWA, Baby Girl (Veronica), Race and Fatherhood at the Supreme Court

Today's oral arguments in Adoptive Couple v. Baby Girl, which we previewed yesterday, were indeed a mix of statutory interpretation and application of the Indian Child Welfare Act (ICWA) and constitutional issues, with a dose of family law. 

Image of Baby Veronica from NCAI

 

Arguing for the adoptive couple, Lisa Blatt described the biological father as equivalent to "a sperm donor," causing Justice Scalia to counter with an assertion of fatherhood ("He's the father. He's the father.") to which Blatt replied, "And so is a sperm donor under your definition. He's a biological father and nothing else in the eyes of State law."   By this description, Blatt not only argued that the biological father was not a parent under ICWA, but also tended to erode any constitutional rights that the father might have.  Blatt also took on the constitutional argument more directly, arguing that ICWA would "raise grave constitutional concerns" if "Congress presumptively presumed that a non-Indian parent was unfit to raise any child with any amount of Indian blood."

The "amount of Indian blood" was an issue that attracted the attention of Chief Justice Roberts, who has been attentive racial identities in the affirmative action cases, including Fisher argued earlier this Term. During Charles Rothfeld's argument on behalf of the biological father, Roberts posed a "hypothetical" about an Indian tribe that had a "zero percent blood requirement"  and enrolled members who "think culturally they're a Cherokee."  Justice Ginsburg objected that this was not the ICWA definition and Justice Scalia agreed that Roberts' hypothetical would be a "null set," but Roberts posed the query again.  Rothfeld replied that such "wild hypotheticals" would "present political questions to be addressed by Congress or addressed by the executive branch."

Arguing between Blatt and Rothfeld, Paul Clement, on behalf of the child's law guardian - - - asserting the child's best interests as assumed by the guardian - - - also contended that ICWA was constitutionally suspect.  The "Indian child" is a racial classification:

And as a result of that her whole world changes and this whole inquiry changes. It goes from an inquiry focused on her best interests and it changes to a focus on the birth father and whether or not beyond a reasonable doubt there is a clear and present danger.

Clement's characterization of ICWA's standard was somewhat hyperbolic, although the statute does require the high standard and does have a "substantial and immediate danger or threat of such danger" exemption.  This resonated with Blatt's rebuttal, expressing the dangers of a Court affirmance of the South Carolina Supreme Court's opinion in favor of the biological father:

And you're basically relegating the child, the child to a piece of property with a sign that says, "Indian, keep off. Do not disturb." This case is going to affect any interracial adoption of children.

It is highly unlikely that the Court will address the lurking equal protection racial classification issue, however its importance was revealed in Paul Clement's colloquy with Justice Kennedy about "constitutional avoidance."  Justice Breyer essentially asked Clement how to remedy the situation and Clement responded that because ICWA provides "extraordinary" protections that "it only makes sense to prove something more than bare paternity."

It is more likely that the Court's usual conservative/liberal dichotomy will not be apparent in the ultimate opinions.

RR
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Supreme Court Denies Certiorari in Second Circuit Second Amendment Case

In a closely watched petition for certiorari in  Kachalsky v. Cace, the Supreme Court declined an opportunity to review the Second Circuit's upholding of NY's "concealed carry" law. 

Recall that the Second Circuit in Kachalsky v. County of Westchester applied intermediate scrutiny 
New York's requirement that applicants prove “proper cause” to obtain licenses to carry handguns for self-defense under New York Penal Law.

RR
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Oral Argument Preview: Does Federal Law Preempt LA Port's Drayage Agreement?

The Supreme Court will hear oral arguments tomorrow in American Trucking Association v. Los Angeles, testing whether the Federal Aviation Administration Authorization Act preempts certain provisions of the "concession agreement" that the Port of Los Angeles requires of all Port drayage service providers, as part of the Port's efforts to reduce drayage truck emissions.  

Here's my ABA Preview of United States Supreme Court Cases article on the case, reprinted here with permission:

FACTS

 The Port of Los Angeles (POLA, or the Port) is an independent division of the City of Los Angeles. That is, it raises and manages its own revenue, independent of the City, by leasing its terminal facilities to shipping lines and stevedoring companies, which load and unload cargo from docking ships.

Drayage trucks are an integral part of the operations at the Port. They transport cargo from the Port’s marine terminals directly to customers, or to off-Port long-distance trucks or railroads for further transport. But POLA does not contract for any drayage services. Instead, cargo owners, ocean carriers, railroads, and other transportation providers arrange for drayage services through Licensed Motor Carriers (LMCs). Most LMCs, in turn, contract with independent truck owners and operators to provide drayage services.

In 2008, the Port adopted a “concession agreement” system for drayage service providers. The system was part of an earlier-adopted “Clean Action Plan” designed to address community opposition to Port expansion and to reduce air pollution produced by Port activities. Under the system, the Port requires any drayage service provider seeking access to the Port’s premises to enter into a standard-form “concession agreement” with the Port. That agreement grants the concessionaire “a non-exclusive license to access [the] Port property for the purpose of transporting containers and/or other cargo to and from marine terminals.” In exchange, the concessionaire agrees to comply with several requirements. In particular, the concessionaire must (1) submit an off-street parking plan for all of its permitted trucks, (2) display placards on its trucks that provide a phone number for reporting environmental or safety concerns, (3) demonstrate that it has sufficient financial resources to perform its obligations under the agreement, and (4) ensure that vehicle maintenance is conducted in accordance with the manufacturer’s instructions.

The standard-form agreement also lists penalties for failure to comply with these requirements. The penalties for a default, if not timely cured, include suspension or revocation of the concession agreement and the right of the concessionaire to use the Port’s facilities. In other words, the Port could altogether exclude a drayage service provider for significant noncompliance with the agreement—what the agreement calls a “Major Default.”

Moreover, violation of the agreement can result in criminal penalties. This is because the Port incorporates the concession agreement system into the preexisting tariff that governed Port operations. A violation of the tariff constitutes a misdemeanor subjecting the violator to a $500 fine and imprisonment up to six months.

American Trucking Associations, Inc. (the ATA), a trucking-industry trade group, sued the City and the Port in federal court, arguing that certain concession agreement requirements were preempted by the Federal Aviation Administration Authorization Act (FAAA). The district court found none of the requirements preempted. A divided panel of the Ninth Circuit largely affirmed, reversing the district court only as to a requirement that is not relevant here. This appeal followed. The federal government petitioned to participate as amicus in support of reversal.

 CASE ANALYSIS

This case raises two distinct issues of federal preemption of state law. The first issue, an express preemption issue, involves two sections of the FAAA. The first section, 49 U.S.C. § 14501(c)(1), covers general state regulation of motor carriers, like the concession agreement’s off-street parking requirement. It provides that:

a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier.

This first section exempts “the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A).

The second section, 49 U.S.C. § 14506(a), specifically addresses vehicle identification requirements, like the concession agreement’s placard requirement. It provides that:

[n]o State, political subdivision of a State, interstate agency, or other political agency of two or more States may enact or enforce any law, rule, regulation standard, or other provision having the force and effect of law that requires a motor carrier . . . to display any form of identification on or in a commercial motor vehicle . . ., other than forms of identification required by the Secretary of Transportation.

The first issue asks whether the concession agreement’s off-street parking and placard requirements “hav[e] the force and effect of law” under these sections so that the requirements are preempted by the sections. That question, in turn, depends on whether the concession agreement looks more like a state regulation or more like an ordinary commercial contract. If the concession agreement looks more like a state regulation, it is covered by these sections, and it is preempted. On the other hand, if it looks more like an ordinary commercial contract, it is not covered by these sections, and it is not preempted.

A related question is whether the market participant doctrine applies. The market participant doctrine says that the FAAA preempts only state regulation, not actions a state takes as a market participant. The parties and the federal government disagree about whether the market participant doctrine applies in this case—in particular, whether it applies when the FAAA does not contain an explicit market participant exception.

The second issue involves the application of a 1954 Supreme Court case on preemption, Castle v. Hayes Freight Lines, Inc. In Castle, the Court considered an Illinois statute that limited the weight of freight that could be carried in commercial trucks registered under the federal Motor Carrier Act. The Illinois law punished a carrier’s repeated violations by suspending the carrier’s right to use Illinois state highways for periods of ninety days and one year. The Court said that the Motor Carrier Act left regulation of the size and weights of trucks to the states. But it also held that Illinois’s law forbidding an offending carrier from using all of the state’s highways was “equivalent to a partial suspension of [the carrier’s] federally granted certificate” and was therefore preempted.

The parties and the federal government disagree about the meaning, the scope, and even the continued vitality of Castle. For example, they disagree about whether Castle prohibits the Port from punishing drayage service providers by banning them merely from the Port, even if not from the entire state highway system (as in Castle). The parties also disagree about which concession agreement requirements might be covered by Castle. Finally, they disagree about whether Castle remains good law. The government, for its part, is unsure whether the Port will punish only past, cured violations (as in Castle), and thus whether the punishment even falls under Castle.

The ATA argues first that the plain language of the FAAA expressly preempts the off-street parking and placard provisions of the concession agreement. It says that the parking provision regulates drayage trucks’ “price, route, or service” in violation of § 14501(c)(1), and that the placard provision requires drayage trucks “to display any form of identification . . . other than forms . . . required by the Secretary of Transportation” in violation of § 14506(a). Moreover, it claims that the concession agreement amounts to a “comprehensive licensing scheme” that is “penally enforceable” through the tariff and thus have “the force and effect of law.”

The ATA argues that the market participant exception does not apply. It says that because Congress enacted the FAAA, and because it does not contain a market participant exception, there is no market participant exception to the Act’s provisions. But the ATA claims that even if the FAAA contains an implicit market participant exception, it does not apply here. According to the ATA, that is because the parking and placard requirements are not aimed at the efficient procurement of goods and services or at the use of state-allocated funds, the purposes of the exception; instead, the provisions are aimed at a traditional regulatory goal, to reduce air pollution. Moreover, the ATA contends that the Port is not even a direct participant in the drayage market; instead, it is a regulator of drayage services.

Next, the ATA argues that Castle bars the Port from enforcing even non-preempted regulations on drayage service providers by suspending or revoking their access to the Port. The ATA says that the concession agreement permits the Port to deny a drayage service provider “any and all access” to the Port for certain defaults of the concession agreement, and that this penalty is directly at odds with the Court’s holding in Castle. It claims that Castle forbids even a partial suspension of a drayage operator’s federally licensed activities, even though a denial of access to the Port may not rise to the level of the comprehensive ban at issue in Castle. Finally, the ATA contends that Castle is still good law, and that Congress has only reaffirmed the federal government’s exclusive authority to issue interstate-commerce permits, and to revoke them.

The federal government supports the ATA, but takes a more nuanced tack. It says that the FAAA does not naturally preempt all arms-length commercial agreements between the government and motor carriers. But it says that the Port’s concession agreement looks more like a regulatory scheme than an arms-length commercial agreement between market participants. In particular, the government points to four features of the Port’s agreement and its operations that together suggest that the agreement is really a regulation (and not a commercial agreement): the criminal sanctions that back the agreement; the public ownership of the Port; the generally regulatory character of the agreement’s provisions; and the fact that the government generally does not contract with drayage service providers. For these reasons, the government claims that the FAAA preempts the off-street parking and placard requirements.

Next, the federal government says that it is unclear whether the concession agreement provisions at issue here would contravene Castle. The government argues that Castle prevents the Port from barring a motor carrier’s access to the Port only for a past, cured infraction, and not for the carrier’s current failure to comply with otherwise non-preempted state safety regulations. In other words, it says that nothing in Castle prevents the Port from prohibiting a carrier’s truck from operating at Port facilities until it complies with non-preempted regulations. Given that we do not know whether the Port might punish past, cured violations of the agreements by barring Port access, the government urges the Court to remand the case for a determination on that question.

The Port argues first that the market participant exception shields the off-street parking and placard provisions from preemption. It claims that the Court’s precedents and related acts suggest that the market participant exception applies to the FAAA, even with its express preemption clauses. Moreover, the Port claims that its adoption of the concession agreements fall within the market participant exception. In particular, the Port claims that the concession agreements do not have the “force and effect of law,” because they are contractual in nature, not regulatory in nature. (It claims that under the terms of the tariff and the concession agreement, the criminal sanctions under the tariff do not apply to LMCs.)

Next, the Port claims that Castle does not bar the concession agreements’ safety-based restrictions on access to the Port. The Port says that Castle only prohibits a ban on using all of a state’s freeways, not a ban on a single Port, as here. But even aside from the Ninth Circuit’s approach, the Port claims that the ATA’s argument that Castle prevents the Port from suspending or revoking a motor carrier’s access for safety-related violations would improperly read the safety exception out of § 14501(c)(2)(A). Finally, the Port contends that Castle is no longer good law with respect to the concession contract requirement. That is because Castle arose under an earlier, and superseded, regulatory regime.

SIGNIFICANCE

The Port of Los Angeles is the largest container port in the United States in terms of both shipping container volume and cargo volume. In 2007, it was the thirteenth busiest port in the world, and the fifth busiest in the world when combined with the cargo volume at the adjacent Port of Long Beach. In both 2007 and 2008, the Port handled more than $240 billion in cargo. The Port’s activities are connected with over 900,000 jobs in the greater Los Angeles region. As big as it is, however, the Port projects that increased global trade and larger ships will double the demand for its cargo handling capacity over the next decade. To meet demand and stay competitive, the Port seeks to expand.

At the same time, Port activities produce pollution that significantly affects the air quality of the surrounding area and the health of local residents. Community and environmental groups tied up Port expansion plans in court for years because of these concerns. (They continue to oppose expansion efforts, for example, by protesting the Port’s plan to develop a new rail yard, approved just last month.) The Port’s Clean Action Plan, including the concession agreements, was designed to address these kinds of environmental concerns.

In this way, the case is a classic conflict between economic growth and environmental justice. If the Court reverses the Ninth Circuit and holds that the FAAA preempts some or all of the Port’s concession agreement requirements, the ruling will frustrate the Port’s efforts to reduce pollution in order to address the concerns of community and environmental groups. This could lead community and environmental groups to redouble their efforts to halt expansion and thus deal a significant set-back to Port expansion efforts. The Los Angeles Chamber of Commerce, as amicus in support of affirming the Ninth Circuit, put it this way: “If the Port is not permitted to take such modest and reasonable steps as those represented by the off-street and placard provisions, its ability to adopt limited measures tailored to specific, local issues arising from Port activity will be compromised, which may result in additional litigation and delays.”

On the other hand, if the Court affirms the Ninth Circuit and holds that the FAAA does not preempt the concession agreement requirements, the Port’s efforts will stay on the books. This may be a victory for community and environmental groups, and for the Port itself. But given the issues that have come to a head just recently with the rail yard project, it is safe to say that this case will certainly not resolve all the problems or in any way mark the end of this ongoing dispute.

SDS

 

Oral Argument Preview: Adoptive Couple v. Baby Girl and the Constitutional Issues

The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16.  The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.

On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA.  The petitioners, the adoptive couple, articulate the questions presented as:

(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.

(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence.   These articulations stress the positive acts of the biological father.  For example, as the biological father phrases the parenting definition question:

Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].

The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA

 to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.

However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.

First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause.  For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8.   ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth. 

 

 

Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers.  In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.

Third, and most stealthily, the case may present issues of due process and equal protection.  In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.”  In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child.  Moreover, the state court’s decision violated the baby’s equal protection and due process rights.

For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:

In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.

Less successfully, the brief attempts to articulate a liberty interest of the child:

And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).

Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly.  Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."  

These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests.  [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys. 

Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."

Clement - -  who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.  

While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.

RR
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Daily Read: Linda Sugin on the Constitutional Tax Avoidance of the Roberts Court

The Roberts Court majority is avoiding taxes: not the income taxes revealed by the returns due today, April 15, but the constitutional scrutiny that taxes deserve.

Law Prof Linda Sugin (pictured left), in her article The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, draft available on ssrn, analyzes two cases that are not typically paired. 

First, she considers National Federation of Independent Business v. Sebelius, in which, as she describes it, Justice Roberts' "newly muscular tax law saved Obamacare from near death at the hands of the Commerce Clause." 

Second, she examines Arizona Christian Schools v. Winn, in which, as dhe describes it, the majority   "adopted a novel judicial approach to targeted tax benefits" and denied standing in an Establishment Clause challenge.

Sugin argues that these two cases, taken together, "challenge the revenue-raising role of the tax law, and give it tremendous potential to overcome constitutional obstacles that legislatures face," including state legislatures.  She contends that the cases "introduce confusion into the law of taxation by incentivizing the adoption of more non-revenue policy in the tax law, and blurring the conceptual structure of taxation."  She claims that "these decisions undermine the important work on tax reform and fiscal responsibility that other branches of government are doing."  Ultimately, she argues that these decisions portend that "policies administered through the tax law" will be deemed constitutional "even where those same policies would be unconstitutional if administered as either direct regulation or appropriated spending."

Worth a read and not only on "tax day."

RR

Epps Takes on Originalism in Recess Appointment Decision

Garrett Epps writes in the Atlantic that if originalism's aim was to keep judges from writing their personal views into the law, it has been "an abject failure."  His evidence?  Chief Judge David Sentelle's ruling in Noel Canning v. NLRB, the D.C. Circuit's January ruling striking President Obama's recess appointments to the NLRB.

Epps criticizes Judge Sentelle's ruling as putting a 1755 definition over the consistent executive practice based on a practical concern, getting the government's business done, and judicial precedent:

For at least a century, presidents--with congressional acquiescence--have interpreted [the Appointments Clause] as giving them the ability to make appointments any time when the Senate is not in session.  But Chief Judge David Sentelle looked up the six-word entry for "the" in Samuel Johnson's Dictionary of the English Language, published in 1755, and found that its "original public meaning" was "noting a particular thing," meaning that there can be one and only one "recess" of the Senate.

Epps notes that the Noel Canning rule would have voided 232 appointments under President Reagan, 78 under President G.H.W. Bush, 139 under President Clinton, and 171 under G.W. Bush.  Appointees include Alan Greenspan and Lawrence Eagleburger. 

Epps points to a recent Congressional Research Service report, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications.  The CRS issued a companion report, Practical Implications of Noel Canning on the NLRB and CFPB.

SDS

Tsesis on Inflammatory Speech

The Supreme Court in recent years has issued a series of opinions striking restrictions on some of the most offensive kinds of speech.  From restrictions on violent video games, to funeral protests, to crush videos, and even to lies about receiving the Medal of Honor, the Court has put free speech ahead of offense.  The Court privileged free speech over countveiling factors in other areas, too, perhaps most notably in Citizens United.

But in Holder v. Humanitarian Law Project, the Court went the other way.  In HLP, the Court upheld the "material support" provision of the PATRIOT Act, which outlawed speech that provided material support to terrorists.  The ruling didn't obviously square with the Court's clear trend to privilege speech over offense or other consderations, and it came under sharp fire in the media and the academic world.  In particular, nobody seemed to defend HLP in relation to some of the Court's canonical cases and doctrine on categories of unprotected speech.  (And that's becuase some the most relevant categories--in particular, group defamation and hate speech--have themselves been targets for some academics.)

Alexander Tsesis (Loyola Chicago) is out to change that in his most recent contribution to free speech scholarship, Infammatory Speech: Offense Versus Incitement, recently posted on SSRN and to appear in the University of Minnesota Law Review. 

Tsesis distinguishes between the Cour's treatment of offensive speech (in the string of cases mentioned above) and its treatment of threatening speech--overturning restrictions on the former, and upholding restrictions on the latter.  He defends HLP as a case involving threatening speech, or as protecting public safety.  In particular, he puts HLP right at the intersection of Virginia v. Black (holding that a state may ban cross burning with the intent to intimidate, as a type of true threat) and Beauharnais v. Illinois (upholding a state statute penalizing group defamation), even if HLP applied a heightened form of scrutiny:

Viewed in concert, the holdings in Black, Beauharnais, and HLP indicate that the Court is deferential to the regulation of speech for a limited number of public safety purposes.  The public safety policies involved in these three cases were inapplicable to the offensive speech cases . . . .  HLP did differ from the other two incitement cases in its reference to a "more rigorous scrutiny" while never adopting any comparable standard for proving up group defamations or true threats.  This distinction is logical because material support might involve discourse that is not harmful on its face, albeit increasing organizations' standing and credibility, while true threats and group defamations are by definition menacing to the public at large or some targeted segment thereof.  Thus, the greater potential for error and abuse in the enforcement of material support statutes required a heightened level of scrutiny that would be unfitting for the other two categories.

P. 147.

Along the way, Tsesis explores some of the problems applying a category like incitement to digital communications and the internet, where there's not always imminence but there still may be a threat to public safety.  Group defamation and true threats are better fits for this kind of communication, he says.  And thus they're better fits for understanding and justifying HLP, too.  He also convincingly takes on those who criticize HLP, Black, and Beauharnais.  

Tsesis's upshot: "When statements, emblems, badges, symbols, or other forms of expression that are historically tied to persecution and harmful stereotypes are intentionally used to put others in fear of violence, they are unprotected by the First Amendment."

This is a terrific piece, well argued, thoughtful and provocative.  It also fills a hole in the literature.  Highly recommended; read it.

SDS

Senate Judiciary Committee Takes Up Srinivasan Nomination

The Senate Judiciary Committee begins hearings today (2:30 EDT) on President Obama's nomination of Principal Deputy Solicitor General Sri Srinivasan to the D.C. Circuit.  The Committee web-cast is here.

The nomination has gotten plenty of attention.  Jeremy Peters at the NYT reports here; Jeffrey Toobin profiles Srinivasan in the New Yorker here; and Adam Serwer has a profile in Mother Jones here.  

SDS

School May Ban Rubber Fetus Dolls

A three-judge panel of the Tenth Circuit ruled yesterday in Taylor v. Roswell Independent School District that a school can ban students' distribution of rubber fetus dolls without violating free speech, free exercise, or equal protection.

The case arose when members of a student group, Relentless, distributed rubber fetus dolls to fellow students at two schools, without required administration permission.  The dolls were said to have the weight and size of a 12-week-old fetus.  Relentless members apparently distributed them to educate fellow students and to protest abortion.  But that message only backfired:

Both schools experienced doll-related disruptions that day.  Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops.  Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck.  Dolls were used to plug toilets.

Op. at 7-8.  And on and on.

The administration stepped in and stopped the distribution, even though it allowed students to distribute other non-school-related items (like Valentine's Day items), and even though it previously permitted Relentless to distribute other things like McDonald's sandwiches to teachers.  (Maybe not surprisingly, those things didn't cause the same kinds of disruptions.)

So Relentless members sued, arguing that the administration violated free speech, the Free Exercise Clause, and equal protection.

The Tenth Circuit rejected each of these claims.  As to free speech, it said that the case did not involve content-based discrimination, and that nobody contested the administration's ability to confiscate dolls that were used to harm school property or for lewd or obscene expressions of their own.  Instead, the case involved private, non-school-related speech, and "[a]pplying Tinker, we hold that the District did not violate Plaintiffs' free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption."  Op. at 16.  The court also held that the pre-approval policy looked like a licensing scheme, but with plenty of procedural safeguards (inluding two appeals) and substantive constraints on official discretion--and in the special environment of a school, where the First Amendment doesn't give students the same free speech rights that they may have, say, in the public square.  Finally, the court held that the pre-approval policy wasn't unconstitutionally vague, because a student of ordinary intelligence would know when he or she needs to get a license, and how.  The court said that the plaintiffs failed to show any arbitrary enforcement.

As to the Free Exercise Clause, the court held that there was no evidence of discriminatory purpose on the part of the administrators--that the ban on fetal doll distribution was neutral--that therefore rational basis review applied, and that the administrators had a rational reason for banning the doll distribution--that is, stopping the "doll-related disruptions."  As to equal protection, the court said that the plaintiffs couldn't show that they were treated differently than anyone else seeking to distribute items at school and so couldn't show a violation of equal protection.

SDS

President Nominates Three to NLRB

President Obama today sent three nominations for full terms at the NLRB to the Senate--a renomination of Board chair Mark Pearce, a Democrat, and nominations of two Republicans.  The President nominated two Democrats to full terms in February.

The nominations come just months after the D.C. Circuit ruled in Canning v. NLRB that the President's recess appointments to the Board were invalid.  According to TPM, the administration plans to appeal that decision, but in the meantime it "has prompted more than 100 businesses to claim the board lacks authority to take action against them becuase two of its members are not there legitimately."

SDS

Workshop: Empirical Legal Research

Workshop Announcement:

Conducting Empirical Legal Scholarship Workshop, May 22-24, 2013

Lee Epstein and Andrew Martin

The Conducting Empirical Legal Scholarship workshop is for law school and social science faculty interested in learning about empirical research.  The instructors provide the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. Participants need no background or knowledge of statistics to enroll in the workshop.  Topics
to be covered include research design, sampling, measurement, descriptive statistics, inferential statistics, and linear regression.

More information and registration here.

RR

Daily Read: Two Very Different Clarks by Alexander Wohl

Justice Tom C. Clark and his son, Ramsey Clark, are the focus of Alexander Wohl's new book, Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy.

The senior Clark, appointed by Harry Truman, resigned from the Court at age 67 because Lyndon Johnson appointed the junior Clark as Attorney General.  While we understand the conflict, the scenario causes most contemporary readers to pause.  Indeed, it is difficult to imagine a current sitting Justice making such a sacrifice for his child's career.  Especially since the father and son seemed to have very different politics.

Wohl uses the men's careers to illuminate not merely the personal dyamics, but the constitutional and political changes.  Consider this:

As a young government lawyer, Tom Clark was a key figure in enforcing the relocation of Japanese Americans, and as Attorney General he was vilified by civil liberties advocates for the Cold War policies he implemented, even as he promoted a progressive strategy on civil rights. Ramsey began his career to the ideological left of his father, was intimately involved in enforcement of civil rights laws during the turbulent 1960s, as Attorney General fought to expand protections of individual rights, and as a private attorney represented clients on the farthest reaches of the individual rights–government power spectrum.

This new book promises to be an engaging read.

RR

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
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Daily Read: Justice Scalia on His Childhood

New York Magazine, in a feature "Childhood in New York" includes Antonin Scalia, now a United States Supreme Court Justice.

Scalia, born in 1936, has this to say about his school days in Elmhurst, Queens:

The teacher . . . was a lady named Consuela Goins, and she was a wonderful teacher. Every cloud has a silver lining, and one of the benefits of the exclusion of women from most professions was that we had wonderful teachers, especially the women who today would probably be CEOs.

The school was a very mixed group of people. There are no blacks in the class, and there really weren’t any in our neighborhood, but other than that it was, my goodness, polyglot . . .

 

 

RR
[image: Albert Anker, Schoolboy, circa 1881 via]

No Right to Possess Gun for Drug Trafficking

A three-judge panel of the Second Circuit ruled this week in United States v. Bryant that the Second Amendment does not protect a right to possess a gun for drug trafficking.  With the ruling, the Second Circuit joins the Seventh and Ninth Circuits in rejecting Second Amendment challenges to 18 U.S.C. Sec. 924(c), providing criminal sanctions for using or carrying a firearm during and in relation to a drug trafficking crime.

The Second Circuit seized on language in D.C. v. Heller that says that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," and that "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."  (Emphasis added, both times.)  The court ruled that possession of a gun for a drug trafficking crime is (obviously) not possession for a lawful purpose, and therefore federal law can punish such possession without running afoul of the Second Amendment.  The court explained:

Here, Bryant may have purchased and possessed the Remington shotgun for the "core lawful purpose" of self-defense but his right to continue in that possession is not absolute.  The jury determined there was sufficient evidence to convict Bryant of drug trafficking and also to convict him of possessing a firearm in connection with that drug trafficking. . . .  Thus, once Bryant engaged in "an illegal home business," he was no longer a law-abiding citizen using the firearm for a lawful purpose, and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms.

(Citations omitted.)

SDS

N.C. Bill Takes on First Amendment, Supremacy, Judicial Review--All in One Fell Swoop

North Carolina lawmakers introduced a bill earlier this week that declares the state exempt from the First Amendment's Establishment Clause.  The bill is apparently a reaction to an ACLU suit filed last month against the Rowan County Board of Commissioners for opening its meetings with explicitly Christian prayers.

But the bill doesn't just take aim at the Establishment Clause.  It also challenges federal supremacy and takes on federal judicial review.  Here are some of the whereases:

Whereas, [the Establishment Clause] does not apply to states, municipalities, or schools; and . . .

Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and

Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and

Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion . . . .

Here's the punch-line:

Section 1. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

Section 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivision of the State from making laws respecting an establishment of religion.

SDS

Update: Federal District Judge Cebull Retires

More than a year after Federal Judge Richard Cebull of the District of Montana (pictured)reported himself to the Ninth Circuit after a "joke" he forwarded on email became public,

Ninth Circuit Chief Judge Alex Kozinski has issued a statement announcing that Judge Cebull is retiring:

Judge Cebull's self-filed complaint and another were referred to a Special Committee which conducted a thorough and extensive investigation, interviewed numerous witnesses, considered voluminous documentation, including emails, and conducted an interview with Judge Cebull. The Special Committee's Report was submitted to the Judicial Council in December 2012. On March 15, 2013 the Judicial Council issued an Order and Memorandum. Judicial Conduct Rule 20(f). Pursuant to Judicial Conduct Rules 22 and 24(a), the Order and Memorandum remains confidential during the appeal period.

At this time, Judge Cebull has submitted his retirement letter, pursuant to 28 U.S.C. § 371(a), effective May 3, 2013. The Council will have no further statement on this matter until Judge Cebull's retirement is effective.

We will await the Council's statement and release of the Order and Memorandum.

RR
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Indiana Can't Have its Own Immigration Policy, Either

The United States District Court for the Southern District of Indiana last week ruled in Buquer v. City of Indianapolis that two provisions of Indiana's immigration law, SEA 590, were preempted by federal law.  The ruling on one of the provisions, Section 20, followed the Supreme Court's ruling last summer in Arizona v. United States.  (H/t Indianalawblog.com)

The ruling permanently enjoins Sections 18 and 20 of SEA 590.

Section 20 says that an Indiana officer "may arrest a person when the officer has . . . a removal order issued for the person by an immigration court; a detainer or notice of action for the person issued by the United States Department of Homeland Security; or probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. Sec. 1101(a)(43)).  The court ruled that Section 20 was preempted for the same reason that a similar provision in SB 1070 was preempted in Arizona v. United States:

Similarly, in the case before us there is no indication that state or local law enforcement officers would be required to consult federal immigration officers before effecting an arrest . . . . [W]here the federal government has exercised it discretion to release an individual who has had a removal order issued, the subsequent arrest of that person by Indiana law enforcement officers would directly conflict with the federal decision, obviously and seriously interfering with the federal government's authority in the field of immigration enforcement.

Op. at 19-20.  The court said that "it is even more apparent with [the section's] authorization of the arrest of individuals who have been issued a notice of action."  That's because such notices are inherently non-criminal.  The court also ruled that Section 20 violates the Fourth Amendment, because it allows a warrantless arrest for a non-criminal action.

Section 18 outlaws the use of a consular identification document, or CID--an identification issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state.  The court said that Section 18 "directly interferes wtih the rights bestowed on foreign nations by treaty by virtually nullifying the issuance of one of the tools used by foreign nations to exercise those rights."  Op. at 29.  "It is also clear that such a sweeping prohibition has the potential to directly interfere with executive discretion in the field of foreign affairs."  Id.

The same court earlier rejected three state senators' effort to intervene in the case.  The senators argued that because they voted for SEA 590, they had a sufficient interest in the case.  But the court held that they did not satisfy standing requirements under Coleman v. Miller, because the law actually passed.  "We find that the three legislators here have not alleged a vote nullifcation injury sufficient to bestow standing in this case."  Op. at 7.

SDS

 

Daily Read: Snyder on Frankfurter's Popular Constitutionalism

Can a judge - - - a Supreme Court Justice - - - be a practitioner of "popular constitutionalism"?  Was Justice Felix Frankfurter such a judge?

In his forthcoming article, Frankfurter and Popular Constitutionalism, ConLawProf Brad Snyder answers both questions with an enthusiastic and erudite "yes." 

Snyder's view of popular constitutionalism may be a broader than some, but his linking of judicial restraint with popular constitutionalism, especially when situated in the New Deal era, is sound.  Snyder concentrates on three of the most important and oft-criticized constitutional moments of Frankfurter's judicial career – the flag salute cases of Minersville School Dist. v. Gobitis (1940), reversed a mere three years later in West Virginia Bd. of Educ. v. Barnette (1943);  Brown v. Board of Education and its progeny; and Baker v. Carr (1962). 

Snyder concludes: "Frankfurter’s judicial reputation suffered at the hands of scholars intent on preserving the Warren Court’s legacy of protecting civil rights and civil liberties. Frankfurter’s Baker [v. Carr] dissent, however, has proven to be just as prophetic as some of Holmes’s and Brandeis’s dissents because it revealed the ugly underside of the Warren Court’s legacy – judicial supremacy."  

While others have certainly noted the vacillations of progressive and conservative judicial activism, Snyder's article calls for a renewed evaluation of Frankfurter and perhaps of popular constitutionalism.

RR
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Federal Judge Rejects Challenge to WTC Cross in September 11 Memorial and Museum

In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.

Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints.  The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed.  Batts dispatched this argument with a rehearsal of the causal connections:

But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.

She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.

The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.

In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971).  The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion.  Judge Batts found it important that

there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.

She disagreed that the size of the cross was determinative.  First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall.  Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."

As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review.  The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history.  The museum has the choice whether or not to include atheistic symbols.

Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful.   It looks as if the September 11 Museum will include the seventeen foot cross.

RR
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