Constitutional Law Prof Blog

The Police Officer, the Quota Complaint, and the First Amendment

NYPD Officer Craig Matthews was critical of the alleged quota system responsible for unjustified stops, arrests, and summonses in his precinct in New York City and suffered adverse employment actions.    His claim of a First Amendment violation raises the specter of Garcetti v. Ceballos, decided by the Court in 2006.  Citing Garcetti, as well as Second Circuit precedent, a district judge dismissed Matthews' complaint last year. The Second Circuit reversed in a summary order, finding that discovery was required to inquire into the "nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.”  On remand, the case was reassigned to a different judge, discovery ensued,  but Matthews was again unsuccessful.  

Judge Englemayer 's opinion in Matthews v. City of New York grants summary judgment to the defendant.

While the subject matter of Officer Matthews' speech was clearly a matter of public concern, the officer spoke "pursuant to his public duties" and as an employee rather than a citizen.  Judge Englemayer's opinion contains an excellent rehearsal of the Supreme Court's precedent, starting with Pickering and continuing to Garcetti.  But the crux of the argument rests upon the Second Circuit case of Jackler v. Byrne,  a rare post-Garcetti case finding for the employee.  The judge distinguishes Jackler on specific facts: 

Officer Matthews made a series of truthful reports about his concerns; unlike Jackler, he was neither compelled to retract those statements nor to file a false report.

Judge Englemayer goes on for an additional ten pages, engaging in a "fact-specific inquiry" regarding  whether Matthews' complaints were made "pursuant to his official duties."  It is definitely a careful and considered opinion, yet it is sure to be appealed.  With the continuining attention to stop and frisk policies, including the possibility of police "quotas," Matthews' case raises important issues not necessarily solved by current First Amendment doctrine.

RR

New York Appellate Court Rules NYC's Large Size Soda Ban Violates State Constitution

The super-size soda ban, a program advocated by NYC Mayor Michael Bloomberg, is not constitutional according to the unanimous opinion from a state appellate court in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene. 

The court affirmed a state trial court's decision that the NYC regulation prohibiting sugary drinks in restaurants, movie theaters and arenas that exceed 16 ounces was an unconstitutional exercise of power by a city agency, as well as arbitrary and capricious.  A good discussion of the trial court's decision is here.

Essentially, the issue is whether NYC Health Code §81.53, known as the "portion cap rule" is within the power of the Department of Health.  The short answer by the judicial branch: no. 

In today's opinion, the court held that the NYC

Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion  Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners' argument that the subject regulation was arbitrary and capricious. Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH's legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.

Doctrinally, the decision is most pertinent to New York state constitutional law and administrative law scholars and practitioners.  It has broader interest, however, to those interested in the powers of governments to enact regulations that (arguably) promote health.

RR
[image via]

Divided Third Circuit Panel: Corporations Do Not Have First Amendment Free Exercise Rights

 

Product featured on the Conestoga Wood Specialties Corporation website

In a divided opinion, a panel of the Third Circuit in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services has held that a private for-profit secular corporation, in this case making wood cabinetry and employing almost one thousand people, does not meet the threshold for raising a claim that the ACA's requirement that its health insurance include contraceptive coverage for its employees.

 

Writing for the majority, Judge Robert Cowen, joined by Thomas Vanaskie, acknowledged in a footnote the contrary decision of a majority of the Tenth Circuit en banc in Hobby Lobby Stores, Inc. v. Sebelius, but simply stated it respectfully disagreed.  Instead, affirming the district judge, the majority skillfully articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.

First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010).  The majority noted that Citizens United was grounded in the notion that the Court has a long history of protecting corporations' rights to free speech and that there was no similar history regarding corporations' religious rights:

In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.  Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations. 

The majority distinguished religious organizations, such as those involved in  Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) or  Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), because these are not "secular, for-profit corporations." 

Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners.  The majority noted that the Hahn family own 100 percent of the voting shares of Conestoga and that the Hahns practice the Mennonite religion.  However, it  rejected the theory that had been applied by the Ninth Circuit in two non-ACA mandate cases, stating the theory "rests on erroneous assumptions regarding the very nature of the corporate form."  For the majority, it is a "fundamental principle"  that "incorporation‘s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created the corporation."  Rather, "by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation."  Moreover, because

Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga.

(emphasis in original).

The majority's RFRA analysis is exceedingly brief, simply stated that since the corporation cannot exercise a religion it cannot assert a statutory RFRA claim.

In a 66 page dissent that is twice as long as the majority opinion, Judge Kent Jordan criticizes the majority for concluding that the "Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit."  Judge Jordan's dissent is clearly deeply felt, stating that

the government claims the right to force Conestoga and its owners to facilitate the purchase and use of contraceptive drugs and devices, including abortifacients, all the while telling them that they do not even have a basis to speak up in opposition. Remarkable.

I reject that power grab and would hold that Conestoga may invoke the right to religious liberty on its own behalf.

 Indeed, Judge Jordan's dissent demonstrates how deeply the divisions abide on this issue.  Coupled with the similarly split opinions in Hobby Lobby, in which the majority agrees with Judge Jordan, it's clear that if - - - and most likely when - - - this issue reaches the United States Supreme Court, it will be very contentious.

RR

DOJ To Seek Bail-In Preclearance for Texas Under Voting Rights Act

AG Eric Holder announced today that the U.S. Department of Justice will ask a federal district court in Texas to bail-in Texas for preclearance under the Voting Rights Act.  The move, the Department's first after the Supreme Court struck the Section 4 coverage formula for preclearance in Shelby County v. Holder, is part of Holder's announced strategy to use still-available portions of the Voting Rights Act (like bail-in and Section 2 litigation) to enforce voting rights.

If successful, bail-in would mean that Texas would be subject to the preclearance requirement, notwithstanding the Court's ruling in Shelby County.  That's because the Court in Shelby County struck the coverage formula for preclearance (in Section 4 of the VRA), but didn't touch other portions of the VRA, including the bail-in provision in Section 3(c).  (It also didn't touch Section 5, the preclearance provision.)  Under the bail-in provision in Section 3(c), the DOJ can seek continued federal court monitoring of an offending jurisdiction, a freeze on the jurisdiction's election laws, and a requirement that the jurisdiction get permission, or preclearance, from the court or the DOJ before it makes any changes to its election laws.

AG Holder cited the federal court's rejection of preclearance to Texas's redistricting, which the court said had both the purpose and effect of discriminating in the vote, as support for his action.  (Recall that the Supreme Court vacated that federal court's rejection of preclearance shortly after it handed down Shelby County.)

If successful, AG Holder will subject Texas again to preclearance.  This approach, seeking individual jurisdiction bail-in under Section 3(c) of the VRA, is a more tailored way to target particularly offending jurisdictions than the coverage formula in Section 4, struck by the Court in Shelby County.  Still, it may face some of the same problems that Section 4 faced in Shelby County--particularly, it may run up against the new "equal state sovereignty" doctrine that we wrote about here.

SDS

D.C. Circuit Strikes Congressional Attempt to Recognize Israeli Sovereignty Over Jerusalem

The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem.  The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.

The case will likely go (back) to the Supreme Court, this time on the merits.  This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.

The case was on remand, after the Supreme Court ruled last Term that it did not raise a nonjusticiable political question.  We posted on that case here; here's our argument preview in that case.

The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel.  The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."

Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel.  President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.

Zivotofsky was born in Jerusalem to U.S. citizens.  His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused.  The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.

The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries.  The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone.  (It found original intent inconclusive, however.)

It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.

The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here.  The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy.  The court said that this interfered with the President's power to recognize foreign countries.  

The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder.  The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.

(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)

Judge Tatel, concurring, came to the same conclusion, but started with the passport power.  Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.

SDS

North Dakota Federal Judge Enjoins North Dakota's Abortion Restrictions

 

North Dakota State Capitol Building

Judge Daniel Hovland's opinion in MKB Management, Inc. v. Burdick grants a preliminary injunction against North Dakota House Bill 1456 passed by the legislature and signed by the Governor, which would make it a criminal offense to perform an abortion if a “heartbeat” has been detected, thereby banning abortions beginning at approximately six weeks of pregnancy, with limited exceptions.  As the plaintiffs, who run the only abortion clinic in North Dakota, argued, abortions before six weeks are exceedingly rare, in part because a woman rarely knows she is pregnant before that time. 

 

A woman’s constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court in the forty years since Roe v. Wade. See e.g., City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 420 (1983) (a woman has a constitutional right to terminate her pregnancy) (overruled on other grounds); Casey, 505 U.S. at 846 (a woman has a right to an abortion before viability without undue interference from the state); Stenberg, 530 U.S. at 921 (a woman has the right to choose an abortion before viability); Gonzales, 550 U.S. 124 (the state may not prevent “any woman from making the ultimate decision to terminate her pregnancy”).

Indeed, Judge Hovland stated:

It is crystal clear from United States Supreme Court precedent that viability, although not a fixed point, is the critical point.

(emphasis in original).  He characterized the Defendants’ arguments as "necessarily rest[ing] on the premise that every Court of Appeals to strike a ban on pre-viability abortion care has misread United States Supreme Court precedent."  He stated that "until" Roe v. Wade and Casey are "overturned by the United States Supreme Court, this Court is bound to follow that precedent under the rule of stare decisis."

After briefly assessing the traditional standards for a preliminary injunction, Judge Hovland enjoined North Dakota House Bill 1456 which was to become effective August 1. 

Where and on what basis the "viability" line can be drawn remains uncertain in the continuing abortion debates, but six weeks is certainly too early.

RR

Ohio Federal Judge Enjoins State-DOMA: More Aftermath of Windsor

In a fifteen page opinion, federal district judge Timothy Black enjoined the application of Ohio's state DOMA provisions - - - both statutory and the state constitutional amendment - - - to a same-sex couple married out of state.  In Obergefell v. Kasich, the judge adapted the reasoning of the United States Supreme Court's June opinion in Court's United States v. Windsor, declaring section 3 of the federal Defense of Marriage Act, DOMA unconstitutional.  Judge Black's opinion is part of the aftermath of Windsor that we most recently discussed here.

Judge Black's opinion has a succinct discussion of equal protection doctrine and concludes,

Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.

In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.

Judge Black's opinion has a brief explicit mention of "animus," but the concept permeates the opinion.  For example, he notes that before the state enacted its DOMA provisions:

Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State.

Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins.

To be sure, the injunction is a limited one applicable to sympathetic facts.  One of the partners is a hospice patient and the relief requested regards the martial status and surviving spouse to be recorded on the death certificate.  Yet Judge Black's reasoning is not limited and opens the door to rulings that Ohio's DOMA provisions limiting state recognition of marriages to only opposite-sex marriages fails constitutional scrutiny under the Fourteenth Amendment's equal protection clause.

RR

Divided Fourth Circuit Rejects Reporters' Privilege to Protect Sources

In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.

The underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration  and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information.   As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,

Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.

While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective.   The majority opinion was unequivocal:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes.  It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear.  Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need."  The majority stated that just as in Branzburg, Risen has

“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government  to protect national security, but who is charged with having endangered it instead.

That the crime is the leak itself does not seem to be noteworthy.  The majority likewise rejected the notion that there was any common law privilege.

For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:

Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.

For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg.  Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test."  He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters."  Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."

While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution.  The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .

RR

Justice Stevens's Dissent in Shelby County

Justice John Paul Stevens in the New York Review of Books writes a thoughtful "dissent" in the Court's ruling in Shelby County around his review of Gary May's outstanding book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic).  Justice Stevens's piece is mostly an indictment of Chief Justice Roberts's majority opinion in Shelby County, based on some of May's study of voting discrimination; but he also has quite kind things to say (and justifiably so) about May's excellent history.  (Our posts on Shelby County itself are collected here.)

Justice Stevens writes that May takes a longer, more detailed view of the history of voting than Chief Justice Roberts did in Shelby County--a view that Justice Ginsburg also took in her dissent in that case.  He notes that Chief Justice Roberts didn't even mention anything before 1890 in his opinion, and glossed over significant details since.

And Justice Stevens takes on Chief Justice Roberts's new-found doctrine of "equal state sovereignty"--a doctrine that drove a good part of the result.  Justice Stevens says that unequal treatment of states is woven right in to the fabric of the Constitution itself.  In particular, the three-fifths clause gave southern states a "slave bonus" in political power, giving those states disproportionate representation and even leading to the election of Thomas Jefferson over John Adams in 1800.  If the original text of the Constitution itself can treat states so dramatically differently, why this new doctrine of equal state sovereignty?  (We posted on this new doctrine here.)  (It can be no answer that the Reconstruction Amendments abolished the three-fifths counting system, for the Reconstruction Amendments themselves were specifically designed to give Congress power over the states, and led to dramatically different treatment of the states.  It similarly can be no answer that the Tenth and Eleventh Amendments protect state sovereignty (even if they do), because the Reconstruction Amendments came after them.  As last-in-time, they at least inform the meaning of the earlier amendments, even if they don't do away with them entirely.)

SDS

First Amendment Whistleblowers? Government Employees Reveal Trayvon Martin's Cell Phone and Tsarnaev's Surrender Photos

While the trial of famous whistleblower Bradley Manning continues and the fate of even-more-famous whistleblower Edward Snowden remains unresolved, two other government employee whistleblowers involved in high profile cases have been terminated from employment and possibly implicate Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions.  Recall that earlier this year the United States Supreme Court declined to grant certiorari in two cases presenting a conflict in the Circuits regarding interpretations of Garcetti.

 The reported facts involving Ben Kruidbos, a director of information technology for the prosecutor's office in the racially-charged and controversial prosecution of George Zimmerman for the death of Trayvon Martin, are closely analogous to Garcetti. 

 

[image of Trayvon Martin by Shepard Fairey via]

Kruidbos testified at an early June pre-trial hearing that prosecutors failed to turn over evidence extracted from Martin's cell phone to the defense and thus violated the mandate of Brady v. Maryland.  After the prosecution's closing arguments, Kruidbos was terminated in a letter that mentioned numerous flaws, including wrongly retaining computer records.  Kruibdos will reportedly bring a whistleblower action under state law; but if he raises a First Amendment claim, Garcetti will be an important obstacle.

 

The reported situation involving police photographer Sergeant Sean Murphy is less analogous to Garcetti and may even be closer to the classic 1968 case of Pickering v. Board of Education in which the teacher Pickering wrote a letter to the newspaper.  Yet unlike Pickering, Sgt. Murphy was not acting as an ordinary citizen, but revealing hundreds of images that he possessed by virtue of his public employment.

[Rolling Stone Cover via]

  Murphy, reportedly "incensed by the controversial Rolling Stone magazine cover for a story about accused Boston Marathon bomber Dzhokhar Tsarnaev," has reportedly now been relieved of his duties with a hearing pending.  Whatever happens to the police photographer, it may now be that the controversial Rolling Stone cover photo (one that was also published on the front page of the NYT) has been eclipsed by even more controversial photos.

Both Kruidbos and Murphy would make terrific in-class exercises or discussions, especially if used together, as a means of exploring First Amendment protections for government employees.

RR

Second Judge Rejects Anti-Force-Feeding Case

Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them.  The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim.  Here's our post on the first.

Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.

Judge Collyer went on to address the merits, too.  She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide.  Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.

SDS

Al-Awlaki on the Drone That Killed His Grandson

Nasser al-Awlaki writes in the NYT today that "[t]he Obama administration must answer for its actions and be held accountable" for the targeted killing of his grandson, Abdulrahman.  Al-Awlaki is also the father of Anwar al-Awlaki, also targeted and killed in a drone strike.

Al-Awlaki writes just a day before the United States District Court for the District of Columbia will hear oral arguments on the government's motion to dismiss his case (on Friday).  [UPDATE: The argument is tomorrow, Friday.]  We previously posted on that case here; the Center for Constitutional Rights has its case resource page here.  The government argues that the issue is a political question, that special factors counsel against a monetary damages remedy, and that officials enjoy qualified immunity.

Al-Awlaki's earlier suit, to stop the government from killing his son Anwar, was dismissed.  That court ruled that al-Awlaki lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.

Here's our post on the DOJ white paper, the administration's analysis (leaked) on why targeted killing of U.S. citizens is legal.

SDS

Secret Surveillance Court May Pull Back Curtain

Scott Bombay, over at Constitution Daily, reports on a recent order of the Foreign Intelligence Surveillance Court, or FISC, directing the Justice Department to conduct a "declassification review" of a April 25, 2008, ruling and legal briefs involving Yahoo!  The move could lead to release of documents that reveal some of the FISC's secret workings--in particular, according to Yahoo!, "how the parties and the Court vetted the Government's arguments supporting the use of directives" to gather information about subscribers without their knowledge.  (Yahoo!'s interest is in showing that it vigorously defended its users' privacy.)

But Bombay notes that when the Justice Department finishes its classification job, there may not be much left of the ruling or the briefs to help us understand much of anything.

FISC Presiding Judge Reggie Walton ordered the Justice Department to report back to him by July 29 about when the documents could be ready for public inspection.

We posted on the recent spate of criticism over the FISC's secrecy here.

SDS

Authority for ACA Delay

Simon Lazarus argues at The Atlantic that the White House's delayed enforcement of the employer mandate is legal.  We previously posted on this here and here.

Lazarus says, referencing Assistant Secretary for Tax Policy Mark Mazur's letter to Congressman Fred Upton, that delayed enforcement, or temporary postponements, of tax reporting and payment requirements are routine across Republican and Democratic administrations.  Moreover, the administration's delay is well within the courts' zone of tolerance under the Administrative Procedure Act:

To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed."  But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering.

In other words, the courts give the administration some room, and the administration's delayed enforcement of the employer mandate, just one year while the administration gears up for it, is well within that space.

Mazur's letter also cites the IRC:

The Notice [of delayed enforcement] is an exercise of the Treasury Department's longstanding administrative authority to grant transition relief when implementing new legislation like the ACA.  Administrative authority is granted by section 7805(a) of the Internal Revenue Code.

This authority has been used to postpone the application of new legislation on a number of prior occasions across Administrations. 

SDS

EFF Challenges NSA Surveillance Program

The Electronic Frontier Foundation, on behalf of a bevy of organizations, filed suit against the NSA in the Northern District of California to stop its surveillance program and to return any information retrieved.  The complaint in First Unitarian Church of Los Angeles v. NSA argues that the "Associational Tracking Program"--the surveillance program that received so much recent attention with the release of Foreign Intelligence Surveillance Court Judge Roger Vinson's ruling ordering the disclosure of domestic phone records--violates the organizations' and their members' First, Fourth, and Fifth Amendment rights.

We previously posted on EPIC's case taking a different route--a petition for a writ of mandamus directly with the Supreme Court.

SDS

Delays on ACA's Mandates

In response to the White House announcement that it will delay enforcement of the so-called employer mandate in the Affordable Care Act, House Republicans introduced two bills, H.R. 2667 and H.R. 2668, that would amend the ACA to delay the effective date of the employer mandate and the individual mandate, respectively.

The White House promised a veto, saying that legislation authorizing a delay for the employer mandate is unnecessary (because according to the White House it can do this unilaterally) and that legislation authorizing a delay for the individual mandate would raise health insurance premiums and result in fewer insured.  

The bills were clearly designed to highlight the Republicans' complaint that the administration is treating businesses more favorably than individuals and to force the administration to own up to its more favorable treatment of businesses.  The White House didn't bite.  (The Hill covered the politics here.)

But there's still this problem: It's not at all clear on what authority the administration can delay the enforcement of the employer mandate.  As we wrote earlier, the ACA says that the employer mandate "shall apply to months beginning after December 31, 2013."  That doesn't leave much wiggle room.

If the administration doesn't enforce the employer mandate until later, it's not clear that anyone could complaint (that is, that anyone would have standing to sue in federal court to compel enforcement).  So the administration, as a practical matter, may not need a legal theory for delayed enforcement.  

SDS

More on the Aftermath of Windsor (DOMA) and Perry (Prop 8) decisions: California, Pennsylvania, Arkansas, North Carolina Litigation

The Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, have not settled the matter of the unconstitutionality of same-sex marriage restrictions. 

In what promises to be a continuing series, here are a few highlights:

In California, the home of Proposition 8, the litigation centers on Prop 8's constitutional status given that the Supreme Court held that the proponents did not have standing to appeal the federal district judge's holding that Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.  The original injunction was stayed, and again stayed by the Ninth Circuit even as it affirmed the district judge, but after Perry, the Ninth Circuit dissolved the stay amid questions about the effect of Perry which we discussed here.

The proponents of Prop 8 have moved (back) to the state courts, filing Hollingsworth v. O'Connell on July 12 seeking a stay from the California Supreme Court.  Their basic argument is that a single federal judge should not have the power to declare a law unconstitutional for the entire state and they seek a mandate forbidding county clerks from issuing same-sex marriage licenses.  On July 16, the California Supreme Court declared - - - as a docket entry and without opinion - - - "The request for an immediate stay or injunctive relief is denied." It also granted the motions for counsel to proceed pro hac vice, so the case will presumably be moving forward. 

In Pennsylvania, a complaint in Whitewood v. Corbett was filed July 9, as a new constitutional challenge to the state's "little DOMA" provisions passed the same year as the federal DOMA, 1996  - - - 23 Pa. Consolidated Statute §1102 (defining marriage as between one man and one woman) and 23 Pa. Consolidated Statutes §1704 (declaring one man-one woman marriage as the strong public policy of state and refusing to recognizing same-sex out of state marriages).  The Complaint interestingly quotes and cites language from Windsor several times. For example:

¶10. The exclusion from marriage undermines the plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v.Windsor, No.12-307, Slip Op., at 18 (U.S. June 26, 2013).  Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells[same-sex couples and all the world- that their relationships are unworthy" of recognition. Id. at 22-23.  And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23.

The Attorney General for Pennsylvania, Kathleen Kane, has reportedly declared she will not defend the constitutionality of the state statutes barring same-sex marriage. The Pennsylvania Governor, Tom Corbett, the named defendant and a Republican, as well as the state legislature, are presumably studying the holding regarding BLAG's standing in Windsor.

In Arkansas, the complaint in Wright v. Arkansas was filed in state court on July 2.  Arkansas has both a statute and constitutional amendment DOMA (the belt and suspenders approach).  The 29 page complaint does not quote or cite Windsor, but does claim that the Arkansas prohibition of same-sex marriage violates the Due Process and Equal Protection Clauses of both the state and federal constitution, as well as violating the Full Faith and Credit Clause.  First reports are that the state will defend the lawsuit.

In addition to new complaints filed post-Windsor (Perry), ongoing litigation will certainly be changed.  For example, the North Carolina federal court complaint in Fisher-Borne v. Smith challenging North Carolina's failure to provide so-called second-parent adoption is being amended - - - reportedly with agreement of the state - - - to include a claim challenging the state's prohibition of same-sex marriage. 

While one message of Windsor and even Perry could be understood as being that marriage, same-sex or otherwise, is a matter of state law, another message of Windsor is certainly that there are constitutional problems prohibiting same-sex marriage. 

 

 

 

With a patchwork of state laws, this is a fertile landscape for continuing litigation.

RR
[all images Wikimedia; final image here]

Judge Strikes Restrictions on Guantanamo Detainees' Access to Counsel

Judge Royce C. Lamberth (D.D.C.) ruled last week in In re Guantanamo Bay Detainee Litigation that Joint Detention Group, or JDG, restrictions on Guantanamo detainees' access to counsel violated the detainees' right to habeas proceedings in federal court.  The ruling was the second last week that invoked an increasingly personal challenge to President Obama and his policies on detention at Guantanamo Bay.  We posted on the other case, involving forced-feeding, here.

The court struck new and invasive search protocol for detainees before and after they meet with counsel; restrictions on the locations within the facility where certain detainees can meet with counsel; and even the new vans that guards use to transport detainees to meetings with counsel.  (The new vans are designed such that detainees have to sit in stress positions while traveling to their meetings with their attorneys.)  The court struck the restrictions under Turner v. Safley (1987), which set out factors to balance the interests in prison administration against the prisoners' fundamental rights.  In short, the court held that the restrictions had no "valid, rational connection" to the legitimate government interest of security, and that the government could serve that interest in other ways without unduly affecting the prison.

The case is notable for its close oversight of the conditions at Guantanamo that interfere with the detainees' access to their attorneys, and thus their access to habeas.  It's also notable for the courts increasingly personal appeals to, and critiques of, President Obama, his announced policies, and the way those policies play on the ground.  Judge Lamberth started the opinion with this:

On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo Bay, that "[w]here appropriate, we will bring terrorists to justice in our courts and our military justice system.  And we will insist that judicial review be available for every detainee."  This matter concerns whether the President's insistence on judicial review may be squared with the actions of his commanders in charge of the military prison at Guantanamo Bay.  Currently, it cannot.

SDS

Free Speech Protection for Flashing Headlights?

Amy Feldman over at Constitution Daily writes that flashing headlights enjoy some First Amendment protection.  In particular, Feldman says that courts in Florida, Utah, and Tennessee have all ruled that flashing headlights are protected speech, and that a headlight flasher can't be prosecuted for obstructing justice for flashing headlights to alert oncoming traffic of a speed trap.

Still, Feldman says that headlight flashers' civil claims against the police for money damages for violating their First Amendment rights have been far less successful.

SDS

Fourth Circuit Upholds Employer Mandate in Affordable Care Act

A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act.  The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine.  Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.

The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate.  (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.)  What's the difference?  See below.

The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius.  Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power.  The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB.  (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)

The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act.  (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)

On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority.  (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.)  What's the difference between the employer mandate and the individual mandate?  In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause.  The Fourth Circuit explained:

To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it.  In contrast to individuals, all employers are, by their very nature, engaged in economic activity.  All employers are in the market for labor.  And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .

Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . .  Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.

(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court."  We covered that topic here.)

Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.

The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.

SDS