Constitutional Law Prof Blog

What The Best Law Teachers Do: Conference June 2014

The Institute for Law Teaching and Learning's Summer Conference hosted by Northwestern University School of Law, "What the Best Law Teachers Do," will be held June 25 - 27, 2014, in Chicago.

 

The conference flows from the book What the Best Law Teachers Do , published by Harvard University Press, that  introduces readers to twenty-six professors from law schools across the United States, featuring close-to-the ground accounts of exceptional educators in action. The Conference will feature interaction with these instructors and learning more about their passion and creativity in the classroom and beyond.

Confirmed presenters at this conference include Rory Bahadur (Washburn University School of Law), Cary Bricker (University of the Pacific, McGeorge School of Law), Roberto Corrada (University of Denver, Sturm College of Law), Meredith Duncan (University of Houston Law Center), Paula Franzese (Seton Hall University School of Law), Heather Gerken (Yale Law School), Nancy Knauer (Temple University, James E. Beasely School of Law), Andrew Leipold (University of Illinois College of Law), Julie Nice (University of San Francisco School of Law), Ruthann Robson (CUNY School of Law), Tina Stark (retired, formerly Boston University School of Law), and Andy Taslitz (American University Washington College of Law).

They teach a wide variety of courses across the curriculum including constitutional law.

The co-authors of What the Best Law Teachers Do, Sophie Sparrow, Gerry Hess, and Michael Hunter Schwartz, will provide a framework for the presentations and a global sense of the takeaway lessons from their study.

 

Groups Challenge North Carolina Voter Restrictions

The ACLU filed suit earlier this month in the Middle District of North Carolina challenging the state's new restrictions on voting under the Fourteenth Amendment and the Voting Rights Act.  Recall that North Carolina, a previously partially covered jurisdiction under the Voting Rights Act, moved quickly after the Supreme Court struck the preclearance coverage formula in Shelby County v. Holder to introduce certain restrictions on the vote, knowing that the full state was free of the preclearance requirement.  The ACLU's suit, League of Women Voters of North Carolina v. North Carolina, challenges certain provisions in the state's  Voter Information Verification Act, or VIVA. 

In particular, the case challenges restrictions on early voting in the state, restrictions on same-day registration, and restrictions on out-of-precinct voting in the state.

The plaintiffs seek declaratory and injunctive relief, and bail-in under Section 3 of the VRA.  Bail-in allows a federal court to order continued monitoring of a state's proposed changes to its election laws upon a showing that the state's violations of the Fourteenth and Fifteenth Amendments justify such monitoring--much like Section 5 preclearance, except that the coverage formula isn't fixed.  

After Shelby County struck the coverage formula in Section 4(b), and thus rendered Section 5 preclearance a dead letter, Section 3(c) bail-in is the only way that the VRA might authorize continuing federal preclearance of a state's proposed changes to its election laws.  The ACLU sought Section 3(c) relief here, and the Department of Justice sought Section 3(c) relief in its recently filed case against Texas.

If the Texas AG's press release is any indication of a litigation position, Section 3(c) is the next likely provision in the VRA to go on the chopping block under a challenge that it exceeds congressional authority under the Fourteenth Amendment.

ACLU, Government File Motions in NSA Call-Tracking Case

The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data.  We most recently posted on the NSA program, in EFFs suit against it, here.

The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program.  The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.

At the same time, the government filed a motion to dismiss.  The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.

Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International.  In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States.  The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them. 

Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients.  In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.

IRS Rules it will Recognize All Same-Sex Marriages

In a 15 page ruling today, Revenue Ruling 2013-17, the IRS clarified that it will recognize

 a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.

The Department of Treasury also issued a  press release.

The Revenue Ruling applies and extends the Supreme Court's decision in United States v. Windsor in late June.  Essentially, the IRS ruled that interpreting "husband" and "wife" as gender-neutral terms was consistent with Windsor and a contrary interpretation would "raise serious constitutional questions."

As for domicile, the IRS ruled that the controlling domicile was the place where the marriage occurred.  While they are constitutional issues, the IRS also relied upon the practical:

Given our increasingly mobile society, it is important to have a uniform rule of recognition that can be applied with certainty by the Service and taxpayers alike for all Federal tax purposes. Those overriding tax administration policy goals generally apply with equal force in the context of same-sex marriages.

The ruling specifically excludes

individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships.

 

RR
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Ninth Circuit Upholds California Ban on Reparative (Sexual Orientatation Conversion)Therapy Against First Amendment Challenge

A panel of the Ninth Circuit today upheld the validity of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18.

In its 36 page opinion in the consolidated cases of  Pickup v. Brown and Welch v. Brown, the court reversed the senior district judge's opinion in Welch v. Brown enjoining the statute, and affirmed the opinion of a different district judge in Pickup v. Brown that had found the statute constitutional, and dissolved its own injunction pending appeal issued last December.

Judge Susan Graber, writing for the unanimous panel also consisting of  Chief Judge Alex Kozinski and Judge Morgan Christen, Judge Graber summarized the holding thusly:  

SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights.

 

"Le psychiatre" by Jeylina Ever, 2010

The panel held that SB 1172 did not merit heightened scrutiny under the First Amendment. Construing circuit precedent, it distilled several relevant principles:

 

(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself;
(2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and
(3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.

(emphasis in original).  The panel concluded that there is a continuum between speech and conduct, and that SB 1172 landed toward conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech."   Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.

The court quickly dispatched the remaining arguments including that SB 1172 violated the right of "expressive association" as between counselors and clients, that SB 1172 was void for vagueness, that SB 1172 was overbroad, and that SB1172 violated the parents' fundamental due process rights over their children.

This is an important and well-reasoned decision likely to be persuasive to other courts, including the federal district judge deciding the constitutional challenge to New Jersey's similar statute.

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Daily Read: The importance of amicus briefs

An  ABA Journal article by Mark Walsh tells us that last Term, 2012-2013, was "another big one" for amicus curiae briefs at the United States Supreme Court: "Seventy of the 73 cases, or nearly 96 percent, that received full plenary review attracted at least one amicus brief at the merits stage."

The top amicus-attractors? 

The same-sex marriage cases of Windsor and Perry, with 96 and 80 respectively and the affirmative action case of Fisher, with 92.  

Shelby County v. Holder, the Voting Rights Act case, attracted 49 amicus briefs, including one from ConLawProf Patricia Broussard (second from right) and her students at FAMU College of Law, as pictured below.

Yet perhaps the most interesting aspect of the ABA Journal article is its chart displaying the citation rate of amicus briefs by Justice, with Sotomayor ranking at the highest end and Scalia and Alito at the lowest end.

Worth a look, especially for ConLawProfs writing, signing, or assigning amicus briefs.

RR

 

District Court Strikes Chicago's Vacant Building Ordinance

Judge Thomas Durkin (N.D. Ill.) ruled last week in Federal Housing Finance Agency v. City of Chicago that a Chicago ordinance that requires mortgagees of vacant buildings in the city to register with the city, pay a registration fee, and maintain the building under certain standards cannot apply to the FHFA or to Fannie Mae or Freddie Mac.  The court held that the Chicago ordinance was preempted by federal law and constituted an impermissible tax against the federal government.

The ruling means that Chicago cannot apply its vacant-building requirements to the FHFA or Fannie Mae and Freddie Mac, but the city can still apply the ordinance to private mortgagees of vacant (that is, abandoned or foreclosed) properties.

The ruling is significant, because Fannie and Freddie together hold about 258,000 loans secured by properties in the city.  The ruling means that the city cannot compel the FHFA to include Fannie- and Freddie-backed properties in its vacant-property registry, cannot collect a registration fee from the FHFA (or its servicers), and cannot fine the FHFA (or its servicers) for violation of the city's maintenance standards.  On the other hand, Fannie and Freddie have their own standards for continuing maintenance of vacant properties.  So for Fannie- and Freddie-backed properties, federal standards, not the city's, apply.

The ruling is also significant, because it telegraphs a federalism concern to the thousand or so local governments around the country that have adopted similar vacant-property ordinances.  While the ruling doesn't directly touch ordinances outside the City of Chicago, other local governments will do well to revisit their ordinances in light of the ruling.

The FHFA challenged the city's ordinance as running up against the federal Housing and Economic Recovery Act of 2008, or HERA.  HERA gives the FHFA authority to place Fannie and Freddie into conservatorship "for the purpose of reorganizing, rehabilitating, or winding up [their] affairs."  It also empowers the FHFA to "preserve and conserve the assets and properties of [Fannie and Freddie]."  

The FHFA directed Fannie and Freddie  to implement consistent mortgage loan servicing and delinquency management requirements and authorized them to contract with servicers who perform activities related to loan defaults, consistent with those requirements.  HERA includes a preemption clause that says that the FHFA "shall not be subject to the direction or supervision of any other agency of the United States or any State in the exercise of the rights, powers, and privileges of [the FHFA]."

The FHFA sued the city, arguing that HERA preempted the city's vacant-property ordinance and seeking a declaration and injunction prohibiting the city from enforcing the ordinance against it, or Fannie or Freddie.  The court agreed with the FHFA that HERA preempted the city's ordinance and awarded the requested relief.

The court held that Chicago's Ordinance was field- and conflict- preempted by federal law.  As to field preemption, Judge Durkin ruled that HERA's charge to the director of the FHFA to take care of Fannie's and Freddie's assets occupies the field, even if HERA's express preemption provision doesn't mention municipal ordinances:

Here, in contrast, it is evident that the Ordinance encroaches on an area of regulation that Congress reserved exclusively for FHFA.  As applied to FHFA as conservator and mortgagee, the Ordinance regulates how FHFA manages its collateral, including specifically how this collateral--which FHFA does not actually own--should be preserved.  For instance, when FHFA issues guidelines and instructions to servicers regarding the nature and frequency of inspections of vacant and abandoned properties, it is taking those steps it believes necessary to preserve and conserve Fannie and Freddie's assets and property.

HERA expressly prohibits other federal agencies and states from interfering with actions taken by FHFA as conservator.  Although HERA's preemption provision . . . does not expressly include laws enacted by municipalities . . . Congress enacted an extensive federal statutory scheme which specifically requires the Director of FHFA to "establish risk-based capital requirements for [Fannie and Freddie] to ensure that [they] operate in a safe and sound manner, maintaining sufficient capital and reserves to support the risks that arise in the operations and management of [Fannie and Freddie]."  HERA sets forth various grounds for the Director of FHFA to exercise his discretion to appoint FHFA as conservator of Fannie and Freddie.  Once placed in conservatorship, Congress intended for FHFA to be the sole entity responsible for operating Fannie and Freddie's nationwide business of purchasing and securitizing mortgages.

Op. at 24-25.

As to conflict preemption, Judge Durkin held that Chicago's Ordinance "obstructs Congress's intent to have one conservator take control of Fannie Mae and Freddie Mac, and take action as may be 'appropriate to carry on [their business] and preserve and conserve [their] assets and property' without being 'subject to the direction or supervision of any other agency of the United States or any States . . . ."  Op. at 29.

Finally, Judge Durkin ruled that Chicago's registration fee was an impermissible tax on the federal government, in violation of McCulloch v. Maryland.

Case Based on Suspension of Security Clearance Can Move Forward, in Part

The United States District Court for the District of Columbia ruled today in Burns-Ramirez v. Napolitano that a  Secret Service Agent's Title VII claim based on her co-workers' alleged false statements about her, which led to the revocation of her top security clearance, can go forward.  But the court was clear that it can't rule on the underlying agency decision to investigate, suspend, or revoke the plaintiff's security clearance; it can only rule on the plaintiff's claim that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.

The ruling grows out of a Secret Service Agent's Title VII claims against DHS for suspending her top secret security clearance based on alleged statements by her co-workers that were false, discriminatory, and in retaliation for her earlier complaints about harassment and retaliation.  The Service ultimately revoked her top secret security clearance, which led to her termination as an Agent.  (You need a top secret security clearance to be an Agent.)

She sued, and the Service moved to dismiss.  The court granted the motion to dismiss, ruling the claim nonjusticiable under Navy v. Egan (1988), insofar as the plaintiff's suit required the court to review the substantive agency decisions to investigate, suspend, or revoke her security clearance.  But the court, applying a D.C. Circuit exception to Egan, denied the motion insofar as the suit alleged that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.

The ruling means that the portion of the case relating to agency employees making false or discriminatory reports can go forward, even as the portion of the case relating to the substantive decision to revoke the plaintiff's security clearance is dismissed.

Conference on Sex and Reproduction, Feminism and Legal Theory Project at 30

CONFERENCE ANNOUNCEMENT

The Feminism and Legal Theory Project at 30: A Workshop on Sex and Reproduction: From Privacy and Choice to Resilience and Opportunity?

EMORY UNIVERSITY SCHOOL OF LAW

November 15-16, 2013

more information here

SCHEDULE:

Friday, November, 15th
3-4 pm RECEPTION IN MACMILLAN LAW LIBRARY (location TBA)

Celebrating the formal opening of the Catherine G. Roraback (pictured in watercolor left) Archive at Emory Law School .The workshop will be dedicated to Katie and her pioneering work on behalf of reproductive rights and justice.

Amy Kesselman (SUNY New Paltz), Vanessa King (Emory University School of Law)
  
4:30 - 6:30 pm  History of Sex and Reproduction
Bleeding Across Time: First Principles of US Population Policy | Rickie Solinger
Women versus Connecticut: Insights from the Pre-Roe Abortion Battles | Amy Kesselman (SUNY New Paltz)
Sex, Drugs, Rock and Roe: Ammi Rogers and the Legal History of Anti-Abortion Norms | Lolita Buckner Inniss  (Hamilton College, Cleveland Marshall College of Law)
6:30 - 8 pm DINNER

Saturday, November 16th
8:30 - 9:00 am CONTINENTAL BREAKFAST
 
9:00 - 11:30 am Discourses Surrounding Sex and Reproduction Issues: Law, Religion and Medicine
Medical, Scientific, and Public Health Evidence in Supreme Court Jurisprudence: Reimagining the Feminist Health Movement | Aziza Ahmed (Northeastern University School of Law)
Abortion Law and Medical Practices | Sheelagh McGuinness (School of Law, University of Birmingham) and Michael Thomson (School of Law, University of Leeds)
The Role of 'Nature' in Debates about Sex and Reproduction | Sean Coyle (School of Law, University of Birmingham)
Abortion Liberalization Policies around the World: Hidden Differences in the Diffusion Process | Elizabeth Heger Boyle (University of Minnesota), Minzee Kim (Ewha Women's University, South Korea), and Wesley Longhofer (Goizueta Business School, Emory University)
(University of Florida)
11:30 am - 12:30 pm LUNCH
 
12:30 - 2:45 pm Feminist Discourses: Sex, Reproduction and Choice
Infertility, Adoption, Alternative Reproduction, and Contemporary Legal Theory | April L. Cherry (Cleveland-Marshall School of Law)
Reproductive Rights and the Right to Reproduce: Is there a Place for the Non-Marital Mother? | Twila L. Perry (Rutgers University School of Law-Newark)
Choices Under the Shadow of Population Policy: Compuslory motherhood Challenged and Remade in Taiwan (1970s-2000s) | Chao-ju Chen (National Taiwan University)
Testing Sex: Non-invasive Prenatal Genetic Testing and Sex Selection |  Rachel Rebouche (University of Florida, Levin College of Law) 
3:00 - 5:15 pm Regulating Sex and Reproduction
Markets and Motives for Sex and Reproduction | Mary Ann Case (University of Chicago Law School)
A Fiduciary Theory of Health Entitlements | Margaux Hall (Columbia Law School)
Schrodinger's Child: Identity and Non-Identity in Reproductive Decision-Making | Jennifer S. Hendricks (University of Colorado Law School)
Procreative Pluralism |  Kimberley Mutcherson (Rutgers Law School, Camden)

 

RR

Daily Read: Ellis and Jones on the 50th Anniversary of the March on Washington for Jobs and Freedom

Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.

Here are two that should not be missed.

Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington."  Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done."   Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."

And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor.  However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material."  Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General.  The NPR story has a link to the FBI archive on King. 

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No Standing to Challenge U.S. Funding of Palestinian Authority

Judge Ellen Segal Huvelle (D.D.C.) ruled today in Bernstein v. Kerry that a group of Americans living in Israel lacked standing to challenge the U.S. government's funding of the Palestinian Authority.  Relying heavily on Clapper v. Amnesty International (2013), Judge Huvelle ruled that the plaintiffs' fear of terrorist attacks was not a sufficient injury, that it wasn't fairly traceable to U.S. funding of the Palestinian Authority, and that changing U.S. funding policies wouldn't necessarily reduce their fears.

The ruling means that the case is dismissed.  Judge Huvelle didn't rule on the government's political question defense or its its argument that the plaintiffs had no clear right to relief under the Mandamus Act, the basis for their suit.  

The plaintiffs argued that the government violated laws that barred the use of U.S. funds to support a Palestinian state unless the Secretary of State determined and certified to Congress that the Palestinian Authority and any governing entity of a new Palestinian state satisfied certain requirements to pursue regional peace and to counter terrorism and that funding was in the U.S. interest.  

Judge Huvelle held that the plaintiffs had no support for their view that "subjective emotional response to the possibility of an invasion of a legally-protected interest constitutes an injury-in-fact."  Op. at 6.  Indeed, she wrote that "a host of cases . . . hold the opposite."  Id. (quoting Clapper (a "subjective fear of surveillance does not give rise to standing")).  Judge Huvelle also held that the plaintiffs' "standing canot be based on plaintiffs' interest, common among all citizens, in the government following the law."  Op. at 8.

Judge Huvelle also held that the plaintiffs failed to show causation and redressability.

SDS

New Jersey's Prohibition of Sexual Orientation Conversion Challenged

New Jersey's Republican Governor Chris Christie (pictured) signed New Jersey A3371 banning so-called sexual conversion or reparative therapy on minors into law earlier this month. 

In his signing statement, Christie said:

At the outset of this debate, I expressed my concerns about government limiting parental choice on the care and treatment of their own children. I still have those concerns. Government should tread carefully into this area and I do so here reluctantly. I have scrutinized this piece of legislation with that concern in mind.

However, I also believe that on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards. The American Psychological Association has found that efforts to change sexual orientation can pose critical health risks including, but not limited to, depression, substance abuse, social withdrawal, decreased self-esteem and suicidal thoughts.

I believe that exposing children to these health risks without clear evidence of benefits that outweigh these serious risks is not appropriate. Based upon this analysis, I sign this bill into law.

 

 Despite Christie's careful articulation of  his support for the bill, it was criticized and quickly challenged in a complaint filed in federal court in King v. Christie.  The plaintiffs include Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”).  They argue that the law violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.

RR

UPDATE: In Pickup v. Brown, the Ninth Circuit has upheld California's similar law banning sexual conversion therapy.

 

Justice Sues Texas to Stop Voter ID

The United States Department of Justice sued the State of Texas in federal court seeking to halt the state's voter ID law and to subject the state to ongoing court monitoring under the Voting Rights Act.

The case comes in response to the Texas Attorney General's announcement that the state would move to implement its restrictive voter ID law.  The law, SB 14, was denied preclearance under Section 5 of the Voting Rights Act by a three-judge federal court.  But the Supreme Court struck Section 5 this summer in Shelby County v. Holder, and vacated the lower federal court's denial of preclearance of SB 14 (and a federal court's denial of preclearance in another case, involving Texas redistricting plans), leaving Texas open to enforce SB 14.  (Our coverage of Shelby County is here.)  The state AG announced within hours of the Shelby County ruling that the state would move to enforce it.  Now the Justice Department has sued to stop it.

DOJ argues that SB 14 violates Section 2 of the VRA both because it was enacted with a discriminatory intent and because it would have a discriminatory effect on the state's Hispanic population.  DOJ seeks declaratory and injunctive relief, and continuing federal court monitoring of the state through a preclearance requirement under the "opt-in" provision in Section 3(c) of the VRA.  (AG Holder previously announced that he'd seek an opt-in preclearance requirement for Texas in the redistricting case.)

Texas AG Greg Abbott responded to the suit in a press release and gave a glimpse of his defense--the Tenth Amendment.  

Just two months ago the U.S. Supreme Court struck down federal preapproval of state election laws.  The Court emphasized that the Tenth Amendment empowers states--not the federal government--to regulate elections.  The Obama administration continues to ignore the Tenth Amendment and repeated Supreme Court decisions upholding states' authority to enforce voter identification and redistricting laws.

Robson on Rehm on Dressing Constitutionally

ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently appeared on NPR's The Diane Rehm Show to talk about her fascinating new book Dressing Constitutionally (Cambridge) with Steve Roberts.  The Show's page, linked here, contains the audio, a transcript, a summary, a selection from the book, and many comments.

We previously posted on Dressing Constitutionally here; we posted on the "I (heart) Boobies!" case, featured the Show's page, here.  We'll post our own conversation with Prof. Robson soon.

SDS

How to Think About Drones

Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists.  The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law.  We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.

Bowden surveys some of the legal landscape and concludes that drone attacks are legal.  But:

Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous.  Some experts on international law say it will become simply illegal.  Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.

He also quotes John Yoo on the relative legality of drone attacks:

I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . .  Because I think the ultimate deprivation of liberty would be the government taking away someone's life.  But with drone killings, you do not see anything, not as a member of the public.  You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees.  It's kind of antiseptic.  So it is like a video game; it's like Call of Duty.

SDS

Court Permanently Enjoins Oklahoma's Anti-Sharia Constitutional Amendment

District Judge Vicki Miles-LaGrange (W.D.Okl.) today permanently enjoined the Oklahoma state constitutional amendment that would forbid Oklahoma courts from considering Sharia law, international law, or "the legal precepts of other nations or cultures."  The court ruled that the amendment violated the Establishment Clause.  The ACLU posted its press release here.

The permanent injunction comes in round two of the litigation.  In the earlier first round, the Tenth Circuit affirmed the district court's temporary injunction against the amendment.

Judge Miles-LaGrange adopted the Tenth Circuit's reasoning in concluding that the amendment violates the Establishment Clause.  In particular, Judge Miles-LaGrange held that strict scrutiny applied under Larson v. Valente (1982) because the amendment discriminates among religions, and that Oklahoma couldn't provide a compelling government interest in enacting the provision.  Quoting the Tenth Circuit:

[Defendants] do not identify any actual problem the challenged amendment seeks to solve.  Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.

Op. at 7.

Judge Miles-LaGrange also held that the anti-Sharia portion of the amendment couldn't be severed, because, she said, the whole purpose in adopting the provision was to forbid the use of Sharia law, and the amendment wouldn't have passed without the anti-Sharia provision.

This ruling is surely not the end of the case.  But given the Tenth Circuit's earlier ruling, the result will almost surely be the same on appeal.

SDS

Sixth Circuit: "Begging" Protected by First Amendment

In its opinion today in Speet v. Schuette, the Sixth Circuit, affirming the district court, held that Michigan's so-called "anti-begging" statute is unconstitutional.  The Michigan statute, Mich. Comp. Laws § 750.167(1)(h), defines a "disorderly person," as a "person found begging in a public place."

The court notes that "Attorney General Schuette argues that the anti-begging statute does not reach any conduct or speech that the First Amendment protects."  The court rejected this contention and stated that "begging, by its very definition, encapsulates the solicitation for alms."  And while the court agreed that the United States Supreme has never squarely ruled that an individual soliciting for alms is engaged in expression,in an interesting twist of the usual analogizing, the Sixth Circuit noted that the Court  "has held—repeatedly—that the First Amendment protects charitable solicitation performed by organizations."  The court engages in extensive discussion of precedent as well as cases in other circuits including the Fourth Circuit in Clatterback which we discussed here. The Sixth Circuit found that there was indeed protected expression in "begging" sufficient to invoke the First Amendment.

It then turned to the question of whether the statute was "overbroad."  Although it recognized that "overbreadth" was "strong medicine," it determined it was warranted:

Instead of a few instances of alleged unconstitutional applications, we have hundreds. The Grand Rapids Police Department produced four hundred nine incident reports related to its enforcement of the anti-begging statute. Thirty-eight percent of the people that the police stopped were holding signs requesting help, containing messages like “Homeless and Hungry: Need Work,” “Homeless Please Help God Bless,” “Lost My Job Need Help,” and “Homeless and Hungry Vet.” The other sixty-two percent of the stops (two hundred fifty-five instances) involved people verbally soliciting charity. In forty- three percent of the cases, the police immediately arrested the people who were begging. In two hundred eleven cases, people convicted of begging were sentenced directly to jail time. The record in this case bolsters our “judicial prediction” that “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”

It further determined that it could not "read the statute to limit its constitutional effect," : instead, the "statute simply bans an entire category of activity that the First Amendment protects."  While Michigan could regulate "begging," it may not simply prohibit it by its criminal laws.

Although relatively brief at 17 pages, this is a well-reasoned opinion in conformance with the weight of authority and First Amendment doctrine. 

RR
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Robson's Dressing Constitutionally

ConLawProf's own Ruthann Robson (CUNY) just published her fascinating new book Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes (Cambridge, also available at amazon.com).  NPR's All Things Considered has a segment here; the Feminist Law Professors blog covered it here; and Robson's SSRN page for the Introduction and Table of Contents is here.

We'll post an interview with Robson soon.  In the meantime, take a look at Robson's book blog, dressingconstitutionally.com.  And here's the abstract from SSRN:

The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy.  From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices.  In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations.  Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality.  At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies.  Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade.  The regulation of what we wear -- or don't -- is ubiquitous.

SDS

Daily Read: Bennett Capers on Stop and Frisk

Law prof I. Bennett Capers (pictured right) has a terrific op-ed in The New York Times today about Floyd v. City of New York, the "stop and frisk" opinion we discussed yesterday.

Capers starts off with a personal perspective, analyzes the problem and opinion in accessible terms, and then most interestingly concludes:

That still leaves the question, “What now?” Mayor Bloomberg is sure to appeal Judge Scheindlin’s decision, both in the court of appeals and the court of public opinion. But that’s not the only option.

He could actually welcome Judge Scheindlin’s decision to appoint an independent monitor to supervise reform. Mr. Bloomberg already claims crime reduction as part of his legacy. It’s not too late for him to claim that and more: that he reduced crime and finally did so in a way that was fair, egalitarian and not racially discriminatory. And it’s certainly not too late for his successor.

New Yorkers will know that the identity of Mayor Bloomberg's sucessor will be determined at the conclusion of this contentious election period, in which (in)equality is shaping up to be a central issue.  But Capers' piece is definitely worth a read no matter where one lives.

RR

Federal District Judge Shira Scheindlin Finds NYCPD's Stop and Frisk Policies Violate Equal Protection

In a 198 page opinion today, accompanied by a 39 page order and opinion as to remedies, United States District Judge Shira Scheindlin has found the New York City Police Department's stop and frisk policies unconstitutional.  (Recall Judge Scheindlin enjoined the NYPD's stop and frisk practices in the Bronx earlier this year).

In the closely watched case of Floyd v. City of New York, Judge Scheidlin's opinion is an exhaustively thorough discussion of the trial and at times reads more like a persuasive article than an opinion: it  begins with epigraphs, has a table of contents, and has 783 footnotes.  It also - - - helpfully - - - has an "Executive Summary" of about 10 pages.  Here is an excerpt:

Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.” “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” 

The Fourth Amendment protects all individuals against unreasonable searches or seizures. . . . 

The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.” 

The following facts, discussed in greater detail below, are uncontested: 

• Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.

• The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.

• 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.

• 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.

• 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.

• In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.

• In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.

• In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.

Near the end of the opinion, Judge Scheindlin astutely expresses the problem that has complicated relations between Fourth Amendment and Equal Protection arguments, as we recently discussed about racial profiling in Arizona.  She solves the problem firmly on the side of Equal Protection:

The City and the NYPD’s highest officials also continue to endorse the unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion.  This position is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference. As I have emphasized throughout this section, the Constitution “prohibits selective enforcement of the law based on considerations such as race.”  Thus, plaintiffs’ racial discrimination claim does not depend on proof that stops of blacks and Hispanics are suspicionless. A police department that has a practice of targeting blacks and Hispanics for pedestrian stops cannot defend itself by showing that all the stopped pedestrians were displaying suspicious behavior. Indeed, the targeting of certain races within the universe of suspicious individuals is especially insidious, because it will increase the likelihood of further enforcement actions against members of those races as compared to other races, which will then increase their representation in crime statistics. Given the NYPD’s policy of basing stops on crime data, these races may then be subjected to even more stops and enforcement, resulting in a self-perpetuating cycle.

The Equal Protection Clause’s prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites. Individuals of all races engage in suspicious behavior and break the law. Equal protection guarantees that similarly situated individuals of these races will be held to account equally.

 This important, scholarly, and thorough opinion is sure to set a standard of judicial craft.  It is also sure to be appealed by the City of New York.

RR