Constitutional Law Prof Blog

Court Allows "Fast and Furious" Subpoena Case to Move Forward

Judge Amy Berman Jackson (D.D.C.) today denied AG Eric Holder's motion to dismiss a case brought against him by the House Oversight and Government Reform Committee seeking to enforce its subpoena for documents related to DOJ's infamous February 4, 2011, letter denying that gun-walking in the "fast and furious" program had taken place.  (The subpoena wasn't over the "fast and furious" program itself; instead, it was for any documents related to the government's February 4 denial.)  Our latest post on the case, with background and links to earlier posts, is here.

Judge Jackson ruled in Committee on Oversight v. Holder that the case is justiciable, and that there's no good reason for the courts to decline to hear it.  The ruling doesn't touch the merits.

The ruling means that the case will move forward on the merits question--whether executive privilege protects the subpoenaed documents--unless the parties settle.

Judge Jackson wrote that the case was a straightforward application of Committee on the Judiciary v. Miers:

And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here.  In a case involving a different Congress and a different President, [Miers], the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.

Op. at 4.

What the Best Law Teachers Do

Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow recently published an outstanding volume, What the Best Law Teachers Do (Harvard).  As the title says, the book is a compilation of the best practices of the best teachers in our field.  It should be at the top of the reading list of any law professor.

 

We're thrilled at the ConLawProfBlog that our own Ruthann Robson is one of just 26 professors featured in the book.  (Other con-law-familiar names include Julie Nice and Heather Gerkin.)  Prof. Robson is profiled throughout the book, on everything from class prep to engaging students to providing feedback and evaluation--offering plenty of best-practices for any con law prof.  Check it out.

Justice Department to Sue North Carolina Over Vote Restrictions

AG Eric Holder announced today that the U.S. Department of Justice would file suit against North Carolina in federal court to stop its new restrictions on voting.  We previously posted on the ACLU suit against the state here.

The complaint alleges that North Carolina HB 589 reduces early voting days, eliminates same-day voter registration during early voting, prohibits the counting of provisional ballots cast outside a voter's precinct, and imposes a voter ID requirement--all in violation of Section 2 of the Voting Rights Act.  DOJ argues that the changes have both a discriminatory purpose and a discriminatory effect.  The Department also seeks "bail-in" under Section 3(c) of the VRA.

DOJ most recently sued Texas to stop its voter ID law and redistricting plans.  The Department sought bail-in relief in those cases, too.

The cases come in the wake of the Court's ruling this summer in Shelby County v. Holder striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  By striking Section 4(b), the Court rendered Section 5 preclearance a dead letter, unless and until Congress can rewrite it in a way that would pass muster with this Court--that is, likely never.  Section 3(c) bail-in works very much like Section 5 preclearance, though.  If acourt orders bail-in, it will retain jurisdiction over the state "for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ."

The North Carolina and Texas cases are sure to raise two new fronts in the assault on the Voting Rights Act: challenges to congressional authority to enact Section 3(c) bail-in, and challenges to congressional authority under Section 2 to ban state laws that have a discriminatory effect (even if not a discriminatory purpose).

Daily Read: Constitutional Rights and the Domestic War on Terror

Jeanne Theoharis (pictured right) a Political Science Professor at Brooklyn College (CUNY) has an interesting article over at The Nation, as the first in a series of pieces in collaboration with Educators for Civil Liberties about the "domestic war on terror."  Theoharis discusses the well-known situation of Syed Fahad Hashmi, one of her former students.

She observes that "researchers and human rights advocates, focused on the horrors abroad in the “war on terror” (Guantánamo, Abu Ghraib, extraordinary rendition), had largely overlooked the civil rights abuses happening right here at home."

She argues

Just because something is legal does not make it just. Many of the most egregious rights violations in American history—slavery, the seizure of Indian land, segregation and the expansion of the penal system, the internment of Japanese-Americans, the firing of gay and communist-sympathizing federal employees during the McCarthy era—were accomplished and legitimated through the law. Most of these historical instances were undertaken as necessary security measures. It took public dissent and a sustained outcry, long and arduous struggles, to reveal the rights abuses embodied in the law.

This would be a great short "think piece" to stimulate conversation in a Constitutional Law class.

 

Texans Debate Creationism in the Classroom

Yesterday we wrote about the latest case in Kansas challenging evolution in the classroom.  In a comment, reader Eli Bortman gave us the heads-up that yesterday's NYT included an article on the same issue in Texas.  (Thanks, Eli.)

Here's a bit from the Times piece that helps explain the edu-ese and pseudo-scientific language in COPE's complaint in the Kansas case:

By questioning the science--often getting down to very technical details--the evolution challengers in Texas are following a strategy increasingly deployed by others around the country.

There is little open talk of creationism.  Instead they borrow buzzwords common in education, "critical thinking," saying there is simply not enough evidence to prove evolution.

COPE went even further, though, arguing that the Kansas standards (with (secular) evolution as a centerpiece) themselves represent a kind of religious orthodoxy, and that Kansas in imposing this orthodoxy, without balancing it with "origin science," violated the religion clauses, free speech, and the Eqaul Protection Clause.  In doing so, COPE adopts the language and legal claims of opponents of creationism and tries to create an equivalence between its position and the position of science--putting itself on par with science, both on the "science" and in its legal positions in relation to science, and casting science as a kind of religion.  Then, after creating this topsy-turvey world where religion is science and science is religion, COPE asks the question: If "origin scientists" have an equal claim to the truth, doesn't it violate equality, speech, and religious principles to exclude their position from the curriculum?  

This isn't new, but as the COPE complaint and NYT piece suggest, creationism advocates may be getting a little better at clothing their positions in official- and technical-sounding langauge, and in turning the same constitutional claims that proponents of a curriculum based on science have used against creationism right back on them, in support of creationism.  The strategy is designed to frame the debate as one scientific theory against another scientific theory, not science against religion, and to put the competing policy and constitutional claims on par in order to gain traction under the religion clauses, free speech, and equal protection.

Evolution Again at Center of Kansas Education Dispute

Citizens for Objective Public Education, or COPE, last week filed suit in federal court against the Kansas State Board of Education for adopting a science standards that include evolution as a fundamental concept.  COPE argued that the standards, The Next Generation Science Standards and A K-12 Framework for Science Education, "will have the effect of causing Kansas public schools to establish and endorse a non-theistic religious worldview" in violation of the religion and speech clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

The complaint alleges that the curriculum indoctrinates impressionable young students by using a concealed "Orthodoxy" known as "methodological naturalism" or "scientific materialism."  The Orthodoxy "holds that explanations of the cause and nature of natural phenomena may only use natural, material or mechanistic causes, and must assume that supernatural and teleological or design conceptions of nature are invalid."

The complaint asks the court to enjoin the implementation of the standards, or, alternatively, to order the schools to tell students that science doesn't have all the answers and to give "origins science" equal time.

Fourth Circuit Strikes Alcohol Advertising Ban for College Newspapers

The Fourth Circuit ruled last week in Educational Media Company at Virginia Tech v. Insley that a Virginia state ban on alcohol advertising in college newspapers violated the First Amendment as applied to student papers at Virginia Tech and U.Va.  

The ruling means that the law can't ban these papers from running alcohol ads.  But it also means that the law stay on the books and ineffect as to other student newspapers, unless and until they successfully challenge it, too.

Virginia law says,

Advertisements of alcoholic beverages are not allowed in college student publications unless in reference to a dining establishment . . . .

Student newspapers at Virginia Tech and U.Va. sued, arguing that the ban violated free speech.  In a first round of litigation, the Fourth Circuit ruled that the ban didn't violate the First Amendment on its face.  But the court remanded the case to determine whether the ban violated the First Amendment as applied to these two papers.

The court ruled last week that it did.  In particular, the court held that the ban isn't appropriately tailored to the state's aim--that is, that the ban isn't more extensive than necessary to serve the government's interest--and thus violated the fourth prong of the Central Hudson test for regulations of commercial speech.  

The problem was that the ban was designed to reduce under-age drinking, but the majority of the newspapers' readers were over 21.  "Thus, the College newspapers have a protected interest in printing non-misleading alcohol advertisements, just as a majority of the College Newspapers' readers have a protected interest in receiving that information."  Op. at 21. 

As to the state's interest in preventing alcohol abuse by those over 21, the court said that the ban did exact what the Supreme Court prohibited in Sorrell v. IMS Health, Inc.: it sought to "keep people in the dark for what the government perceives to be their own good."  Op. at 22 (quoting Sorrell).  

Daily Read: Two Views of NSA

It's worth comparing two views of the National Security Administration (NSA) and its searches.

First, take a look at the views of Amy Zegart, the co-director of Stanford University's "Center for International Security and Cooperation."  Zegart and other scholars participated in a "rare briefing" at NSA to consider "cybersecurity, the plummeting public trust in the agency, its relationship with Congress and how to rebuild the agency’s reputation and rethink its program operations."  Zegart's interview is mostly sympathetic to NSA concerns, but she does say this:

They definitely wanted us to believe that what they are doing is lawful and effective. I believe the lawful part; I’m not so sure about the effective part. I think they haven’t looked hard enough about what effective means. Do they know it when they see it? And who’s to judge?

 

Nevertheless, it's a rather sharp contrast with a NYT article, co-authored by James Risen (recall his lititgation asserting a reporter's First Amendment right to protect sources) and Laura Poitras (recall her involvement in the Snowden revelations) that discusses wide ranging collection of data and metadata.  They often rely on anonymous sources discussing classified information.   Perhaps most startling is this passage in the article's last paragraph, quoting from a 2011 memo, that said even

after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later.

[image via]

 

Eighth Circuit Upholds State Residency Requirement for Liquor Wholesalers

The Eighth Circuit this week in Southern Wine and Spirits of America, Inc. v. Division of Alcohol and Tobacco Control upheld Missouri's requirement that liquor wholesalers reside in Missouri against a dormant Commerce Clause challenge.  The ruling means that Missouri's law stays on the books, at least for now.

The case pitted the equal treatment requirement of the dormant Commerce Clause against the state's authority to regulate alcohol under the Twenty-first Amendment.  In the Supreme Court's last foray into that area, in Granholm v. Heald, the Court struck a state law allowing in-state wineries to ship their products directly to in-state consumers, but requiring out-of-state wineries to sell through wholesalers.  The law meant that in-state wineries could sell their wine at lower costs.  The Court said that "the Twenty-first Amendment does not supersede other provisions of the Constitution and, in particular, does not displace the [dormant Commerce Clause] rule that States may not give a discriminatory preference to their own producers."  

But the Supreme Court also noted that its holding didn't call into question the constitutionality of the three-tier distribution system set by the state--producers, wholesalers, and retailers.  In particular, it wrote (in dicta) that the three-tier distribution system is "unquestionably legitimate" and that the system includes the "licensed in-state wholesaler."  It also wrote that state policies that define the structure of the liquor distribution system--and that give equal treatment to in-state and out-of-state liquor products and producers--are "protected under the Twenty-first Amendment."

Missouri's law requires wholesalers to be "resident corporation[s]."  That means that the corporation has to be incorporated under Missouri law, all of its officers and directors must be residents of Missouri for at least three years, and resident stockholders must own at least 60 percent.  The law has a grandfather clause, exempting licensed wholesalers as of January 1, 1947.  (There is currently just one such wholesaler.)

The Eighth Circuit upheld the law against the dormant Commerce Clause challenge.  In particular, the court held that there was no evidence of protectionist intent.  And it said that under Granholm the law didn't discriminate against out-of-state products or producers, and that under Granholm states could require wholesalers to be "in-state."  

The court held that Missouri's law easily passed the "deferential scrutiny" that Granholm says applies to state policies defining the distribution system.  It said that the legislature could have believed that a wholesaler governed by Missouri residents might be more socially responsible and promote temperance, and that Missouri residents might be more likely to respond to concerns of the community.  The court also said that the legislature could have concluded that in-state residency promotes law enforcement.

Keeping Up with Australian Constitutional Law Developments

Professor Melissa Castan has an excellent round-up of sites devoted to Australian Constitutional Law over at Amicae Curiae ("Girlfriends of the Court"). 

As a bonus, it's illustrated by a still from the classic Australian comedy The Castle where lawyer Dennis Denuto is pleading Daryl Kerrigan’s case in the Federal Court and is so far out of his depth that he starts to refer to the Australian Constitution and rather than a specific textual reference, says that it is just the "vibe of the thing" that the judge should consider.

Here's a video of the pertinent scene:

 

 

New Jersey Judge Extends Windsor to Find State Ban on Same-Sex Marriages Unconstitutional

In a 55 page opinion today in Garden State Equality v. Dow, Mercer County Superior Court Judge Mary Jacobson granted summary judgment to the plaintiffs finding that NJ's same-sex marriage ban violated the state constitution.  The judge held that New Jersey's civil union scheme, considered an acceptable remedy for any violation of the state's equal protection clause by the NJ Supreme Court in Lewis v. Harris (2006), was no longer sufficient to satisfy state constitutional law given the United States Supreme Court's invalidation of DOMA last June in Windsor v. United States. 

Judge Jacobson concluded:

Because plaintiffs, and all same-sex couplies in New jersey, cannot access many federal marital benefits as partners in civil unions, this court holds that New Jersey's denial of marriage to same-sex couples now violates Article 1, Paragraph 1 of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis v. Harris. 

This is an interesting - - - but totally predictable - - - use of Windsor to undermine the very rationales of the state's highest court's determination that civil unions would satisfy equality concerns. 

The judge admits that the doctrinal landscape is murky, but also that it is rapidly changing.   For this judge, effectuating the holding of the New Jersey Supreme Court in Lewis v. Harris that the state constitution required same-sex couples to be able to obtain all the same rights and benefits available to opposite sex couples compels the extension of marriage to same-sex couples.

In only a very few other states would similar reasoning be applicable: Illinois, Hawai'i, and Colorado have civil union laws but not same-sex marriage.  Other states having civil unions also allow same-sex marriages or are "converting" civil unions to marriages.

As for New Jersey, odds are the state will appeal, although political considerations might weigh heavily.

Randall Kennedy at NY Historical Society on The Supreme Court and Affirmative Action

October 3, 2013, 6:30 pm, in NYC

Free for Law Students and Faculty

Required registration and more information here.

Sixth Circuit Divides on Clear-Statement Application to Civil RICO

The en banc Sixth Circuit divided sharply today over whether Michigan workers could sue their employer, claims manager, and employer's doctor under federal civil RICO for engaging in a fraudulent scheme involving the mail to deny the workers state workers' compensation benefits.

The case, Jackson v. Sedgwick Claims Management Services, Inc., arose when employees of Coca-Cola applied for, and were denied, workers' compensation benefits under Michigan law.  The employees sued  Coca-Cola, Coke's claims management service, and a cooperating doctor under federal civil RICO for colluding to deny them their benefits.  The defendants moved to dismiss, arguing that the claim wasn't cognizable.

The en banc Sixth Circuit agreed.  The court held that the plaintiffs failed to allege that they were "injured in [their] business or property" as required by RICO for civil damages.

But then the court went on to say that this conclusion "is confirmed by" the clear-statement principle in Gregory v. Ashcroft.  The majority said that under the clear-statement principle Congress must make clear when it intends federal law to displace state law in an area traditionally regulated by the states.  Here, the majority held that RICO doesn't have a sufficiently clear statement of intent to displace state workers' compensation law, and so the clear-statement principle confirms the court's conclusion that the plaintiffs can't use federal civil RICO to attack the state workers' compensation scheme.

Judge Moore dissented, joined by four other judges.  Judge Moore argued that "the majority makes the erroneous assumption that the clear-statement rule would even apply in this context."  She argued that the majority's approach is inconsistent with the Supreme Court's clear instruction to read RICO broadly.

Baby Veronica's Painful Aftermath

Cherokee Face Mask

The aftermath of the United States Supreme Court's decision in Adoptive Couple v. Baby Girl, known as the "Baby Veronica" case, has been quite painful for the parties.  Recall that the Court's 5-4 decision concluded that the Indian Child Welfare Act, ICWA, would not be violated by the adoption of the child by a white couple.  The constitutional issue of "racial classifications" (rather than Indian sovereignty) loomed, but was not directly engaged.

The Oklahoma Supreme Court dissolved the emergency stay of the adoption yesterday in Brown v. DeLapp.  The majority's order is accompanied by two dissenting opinions, each of which describe the various proceedings and holdings, including the South Carolina Supreme Court's decision that did not remand for a "best interests of the child" determination, but decided to "remand this case to the Family Court for the prompt entry of an order approving and finalizing Adoptive Couple's adoption of Baby Girl."

Much of the press has been highly sympathetic to the adoptive parents, but also worth a read is an article from Indian Country Today Media Network.

 

Tweet by University of Kansas Professor Results in Suspension: First Amendment Ramifications

According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard. 

Guth tweeted:

"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.

There is also the question of  the lack of due process accorded to Professor Guth, as some have noted.

But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin.  Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee.  On this view, his speech should be protected under the First Amendment.  Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.

Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).

Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.

 

 

 

Read more here: http://www.kansascity.com/2013/09/19/4494140/ku-rebukes-journalism-professor.html#storylink=cpy

The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

Constitute: The World's Constitutions On Line

The folks at the Comparative Constitutions Project created an excellent new resource, Constitute, an on-line, searchable, and topic-tagged collection of the constitutions of the world.  (H/t to Michael Huggins.)  The site is quite user-friendly and offers a terrific and easy way to bring comparative constitutionalism into your classroom or to search for comparative provisions in world constitutions for your writing.

Constitute currently includes every constitution in force as of September this year, with plans to include a version of every available constitution written since 1789.

Groups Sue to Stop Texas Voter ID

The Brennan Center filed suit this week in federal court on behalf the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives challenging SB 14, Texas's strict voter ID law.  The Brennan Center's resource page on the case is here.

The suit this week comes soon after the United States Department of Justice filed its own suit against Texas to stop SB 14.

Recall that the Texas AG announced that the state would move to enforce SB 14 soon after the Supreme Court struck the coverage formula for the preclearance requirement in the Voting Rights Act this summer in Shelby County v. Holder.

The suit filed this week, like the DOJ suit before it, also seeks "bail-in" under Section 3(c) of the Voting Rights Act--that is, an order by the federal court for continued monitoring of the state that would operate very much like preclearance under Section 5 would have operated against a covered state like Texas (until the Court struck the coverage formula, leaving Section 5 a dead letter, in Shelby County).  

Section 3(c) bail-in may be the next litigation target (after opponents succeeded in challenging the coverage formula for preclearance in Shelby County) for states like Texas facing VRA suits.  Texas's responses to these suits will tell.

Third Circuit Upholds Federal Prohibition on State-Licensed Gambling

The Third Circuit panel this week in NCAA v. Governor of New Jersey upheld the federal law prohibiting states from licensing sports gambling against a challenge that it exceeded congressional authority under the Commerce Clause, impermissibly commandeered the states, and violated the principle of equal sovereignty among the states. 

The case was a significant test of congressional authority after NFIB v. Sebelius (upholding the ACA's individual mandate under congressional taxing authority, but ruling that it exceeded congressional Commerce Clause authority) and a significant test of the principle of equal sovereignty among the states after Shelby County v. Holder (ruling that the preclearance formula in the Voting Rights Act violated the principle of equal sovereignty among the states and exceeded congressional authority under the Fifteenth Amendment).

The Third Circuit panel rejected both arguments--and the commandeering argument, too--and upheld the federal prohibition.  (The court also ruled that the plaintiffs, sports leagues, had standing to challenge the New Jersey law--in part because the law was directed at them (even if indirectly) and because they would have suffered a reputational injury by association with gambling.)

In 1992, Congress enacted the Professional and Amateur Sports Protection Act, or PASPA, to prohibit sports gambling conducted by, or authorized under the law of, any state or governmental entity and to stop the spread of state-sponsored sports gambling.  PASPA's key provision says that neither states nor persons may

sponsor, operate, advertise, or promote . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.

28 U.S.C. Sec. 3702.  The PASPA also prohibits states from licensing or authorizing "by law or compact" any such gambling activities.  28 U.S.C. Sec. 3702(1), 3701.

The PASPA contains three relevant exceptions--a clause that exempts Nevada, a clause that permitted New Jersey to license sports wagering in Atlantic City had it chosen to do so within one year of PASPA's enactment, and a provision that allows states like Delaware and Oregon to continue the limited "sports lotteries" that they had previously conducted.  

New Jersey did not take advantage of its exemption under the PASPA, but New Jersey voters later passed a referendum to amend the state constitution to permit the state legislature to "authorize by law wagering . . . on the results of any professional, college, or amateur sport or athletic event."  N.J. Const. Art. IV, Sec. VII, Para. 2(D), (F).  The legislature then enacted the "Sports Wagering Law," which permits state authorities to license sports gambling in casinos and racetracks and to license casinos to operate "sports pools."

The plaintiffs, sports leagues, sued, arguing that the New Jersey law was preempted by PASPA.  New Jersey argued that PASPA exceeded congressional authority and violated the anti-commandeering rule and equal state sovereignty principle.

The court held that "it is self-evident that the activity PASPA targets, state-licensed wagering on sports, may be regulated consisted with the Commerce Clause."  The court said that wagering and national sports are both economic activities, and that professional and amateur sports, and wagering on them, substantially affect interstate commerce.  The court rejected the argument that the PASPA improperly reaches purely intrastate activity--a friendly bet between family members, for example--because the PASPA doesn't reach that activity, and even if it did, under Wickard v. Filburn and Gonzales v. Raich, Congress could have concluded that in the aggregate they have a substantial effect on interstate commerce.

The court also held that the PASPA doesn't impermissibly commandeer the states.  Instead, it said, the PASPA is a proper exercise of congressional authority and properly preempts state licensing laws under the Supremacy Clause.  The said that New Jersey's argument amounted to saying that impermissible anti-commandeering may occur even when all a federal law does is supercede state law via the Supremacy Clause--a position that the Supreme Court has never accepted.  The court distinguished New York and Printz by saying that the PASPA doesn't require the states to do anything or coerce the states at all; instead, it validly prohibits them from licensing gambling.

Finally, the court held that PASPA doesn't violate the principle of equal sovereignty of the states.  The court distinguished Shelby County and said that the equal sovereignty principle operates differently when Congress regulates "in an area 'the Framers of the Constitution intended the States to keep for themselves . . . the power to regulate elections.'"  Op. at 96-97 (quoting Shelby County).  The court also said that PASPA was designed to stop the spread of state-sanctioned sports gambling, and so regulating states in which sports gambling already existed would have been irrational.  And in any event the remedy for an equal sovereignty violation should be to strike the provisions in PASPA that exempt certain states, not to strike PASPA's principal provision.

The court also held that the plaintiffs in the case, sports leagues, had standing.

Judge Vanaskie dissented from the court's holding on commandeering, arguing that "PASPA prohibits states from authorizing sports gambling and thereby directs how states must treat such activity.  Indeed . . . PASPA essentially gives states the choice of allowing totally unregulated betting on sporting events or prohibiting all such gambling. . . . [T]his congressional directive violates the principles of federalism [in New York and Printz]."  Dissent at 1.

Fourth Circuit: The First Amendment, Facebook, and a Sheriff's Election

The Fourth Circuit's opinion in Bland v. Roberts addresses whether Sheriff Roberts violated the First Amendment rights of the six plaintiffs by terminating their employment in retailiation for their support of his opponent in an election, and whether Roberts has immunity.  The court reverses in part the grant of summary judgment to the sheriff by the district judge.

As the panel notes, the applicable doctrine is a merging of public employee speech doctrine, especially their rights to speak as private citizens which was clearly the case here,  and "the established jurisprudence governing the discharge of public employees,  because of their political beliefs and affiliation," as in Elrod v. Burns (1976) and Branti v. Finkel (1980). 

An important question for some of the plaintiffs was whether some of their actions "on Facebook" met the First Amendment threshold of "speech."   The district court had concluded that “merely ‘liking’ a Facebook page was insufficient speech to merit constitutional protection,” but the Fourth Circuit panel disagreed.  Its discussion of  Fabeook's "like" - - - citing the amicus brief of Facebook, Inc. and posts on the Facebook site such as "What is a Facebook Page?" - - - led to its conclusion that once one understands the nature of what one of the plaintiffs

 did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Moreover, the importance of Facebook was clear, given that Sheriff Roberts "specifically warned his employees not to support [his rival] Adams through Facebook."  Roberts also seemingly specifically  "threatened that Adams supporters would not be reappointed."

Nevertheless, the Fourth Circuit panel found that three of the six plaintiffs did not present sufficient evidence to create a jury question.  Additionally, the panel found that the defendant was entitled to qualified immunity given the state of the law and Eleventh Amendment immunity as to money damanges, but not on the issue of reinstatement.

Judge Ellen Lipton Hollander, a Maryland District Judge sitting by designation, wrote separately to dsisagree on the issue of qualified immunity on the state of the law.

The majority concludes that, at the relevant time, “a reasonable sheriff could have believed he had the right to choose not to reappoint his sworn deputies for political reasons,” and, on this basis, it determines that Sheriff Roberts is protected by qualified immunity with respect to his discharge of [the three plaintiffs]. In my view, when these deputies were discharged in December 2009, the law was clearly established that a sheriff’s deputy with the job duties of a jailer could not be fired on the basis of political affiliation.

This case will most likely be cited and known for its finding of "like" on Facebook as speech.  But in addition, with its interweaving First Amendment issues and its questions of qualified immunity, Eleventh Amendment and otherwise, this case could be the basis of an interesting in-class exercise - - - or even exam question - - - for ConLawProfs.

[image via]

Daily Read: Deborah Rhode on Lawyers as Leaders - - - And Constitutional Litigation

In her commentary "Why Lawyers Become Bad Leaders" at the Chronicle of Higher Education, Deborah Rhode has several arguments supporting her position, but of great interest to ConLawProfs is her use of prominent lawyers Ted Olson and David Boies (pictured below)  in the Proposition 8 litigation as a "case study in the limitations of lawyers as leaders." 

Should Boies and Olson be so celebrated?

Rhode notes that they were hired by a political strategist and a Hollywood producer to challenge Prop 8, and although they knew that leaders of gay-rights organizations were opposed to a federal challenge to Prop 8, they did not consult them before filing suit.  She then discusses some of the issues with their litigation, noting "Olson and Boies clearly had something to gain from being lead counsel in a case of such prominence."  Recall that even before the case reached the Supreme Court, the trial garnered much attention.   Rhode writes:

Boies and Olson pursued a high-risk strategy against the advice of groups that had the greatest expertise and stake in the outcome. Most observers believe that a low-risk strategy of challenging Prop 8 at the ballot box would have been successful, as polls suggested that California voters had changed their views on the ban. Such a strategy would have exposed the gay-rights movement to less risk of an adverse Supreme Court precedent while accomplishing the same result.

That is not to deny the accomplishments of Boies and Olson as litigators, the advantages of having a prominent conservative like Olson supporting gay marriage, or the social commitments that underpinned their actions. But it is to underscore the difference between effective lawyers and effective leaders.

A quality of successful leadership is the capacity to work collaboratively. The most-effective leaders are those who can see past their own ambitions and desire for limelight.

Rhode's article is worth a read - - - and much consideration.