Constitutional Law Prof Blog

Fourth Circuit Upholds Fannie and Freddie Tax Exemption

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.

The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts.  It underscores federal supremacy, even in the area of state and local taxes.  It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.

The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell.  Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed." 

The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.

But that's not the interesting part.  The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.

The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority.  "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity."  The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty.  "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."

The court also rejected the plaintiffs' contentions that the exemption violated federalism principles.  The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie. 

Seventh Circuit Strikes City Closure Law for Adult Bookstores

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled this week in Annex Books, Inc. v. City of Indianapolis that the city's law requiring adult bookstores to close between midnight and 10:00 a.m. every day and all day Sunday violated the First Amendment.  The ruling means that Indianapolis can't enforce its law, although it might write a new law that regulates or zones adult bookstores, short of requiring them to close.

The court took particular issue with Indianapolis's weak reason for the law: fewer armed robberies at or near adult bookstores.  The court wrote that the justification isn't supported by data.  And as to the secondary effects doctrine, it said the doctrine doesn't work when the secondary effects impact only the bookstores themselves and their patrons:

The secondary-effects approach endorsed by Almeda Books and Playtime Theatres permits governments to protect persons who want nothing to do with dirty books from harms created by adult businesses; the Supreme Court has not endorsed an approach under which governments can close bookstores in order to reduce crime directed against the businesses that knowingly accept the risk of being robbed, or persons who voluntarily frequent their premises.

The court also took issue with the required closure:

That the City's regulation takes the form of closure is the nub of the problem. . . .  The benefits come from closure: shuttered shops can't be robbed at gunpoint, and they lack customers who could be mugged.  If that sort of benefit were enough to justify closure, then a city could forbid adult bookstores altogether.

Stop and Frisk: NYC Mayor Abandons Appeal in Floyd v City of NY

 NYC's practice of stop and frisk has been controversial in the streets and in the courts.  Recall

Professor Ruthann Robson, City University of New York (CUNY) School of Law

that in August 2013, Judge Shira Scheindlin found the New York City Police Department's stop and frisk policies unconstitutional as violative of equal protection.  Judge Scheindlin's exhaustive opinion in Floyd v. City of New York was accompanied by an extensive order, setting out remedies, including monitoring.  By a very brief opinion, Judge Scheindlin's decision was stayed by the Second Circuit - - - and Judge Scheindlin removed.  The Second Circuit later reaffirmed its decision, but in more moderate and explanatory tones. 

But before the Second Circuit could issue an opinion on the merits, NYC elected a new mayor, who today announced an agreement in Floyd v. City of New York.  Mayor Bill deBlasio (pictured below) announced that NYC has asked for a remand of the appeal to the district court, and has agreed to a court-appointed monitor who will serve for three years, overseeing the NYPD’s reform of its stop-and-frisk policy and reporting to the court.

 

[image via]

 

Is RFRA Unconstitutional?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

RFRA, the Religious Freedom Restoration Act, is at the center of the upcoming and increasingly contentious cases of Conestoga Wood Specialties Corporation v. Sebelius and  Sebelius v. Hobby Lobby Stores, Inc. to be heard by the Court on March 25, involving religious-based challenges to the contraception “mandate” of the Affordable Care Act by corporations and corporate shareholder/owners.  RFRA, 42 USC § 2000bb–1, provides that

(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

™(1) is in furtherance of a compelling governmental interest; and

™(2) is the least restrictive means of furthering that compelling governmental interest.

Passed by Congress in 1993, RFRA's purpose was to change the Court's interpretations of the First Amendment.  RFRA's findings explicitly state that :

(4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.

The United States Supreme Court found that RFRA was unconstitutional as exceeding Congressional power under the enforcement clause of the Fourteenth Amendment in City of Bourne v. Flores.  Thus, RFRA cannot constitutionally be applied to state laws. 

So the short answer to the question "Is RFRA unconstitutional" is "yes," with a "but"  quickly added.  But RFRA still applies to the federal government.  Or so we assume?

That underlying assumption is questioned by an amicus brief filed in Hobby Lobby on behalf of Freedom from Religion Foundation, et. al., by ConLawProf Marci Hamilton.  Hamilton - - - who argued for the City of Bourne in Bourne v. Flores - - - argues that RFRA is similarly unconstitutional as applied to the federal government.  The brief argues that the "plain language" of the statute

establishes that Congress was aggrandizing its power by taking over this Court’s power to interpret the Constitution. On its face, therefore, RFRA is not an ordinary statute, and is in violation of the separation of powers and Art. V. Moreover, the only class of beneficiaries for these extreme rights against constitutional laws is religious, which violates the Establishment Clause. No matter how much one pretends that RFRA is “just a statute,” it is in fact an unconstitutional enactment.

Lyle Denniston of SCOTUSBlog, writing over at Constitution Daily, notes that the argument that RFRA is unconstitutional

has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it.  The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.

Given that the opposing parties have not raised the issue of RFRA's constitutionality, and seem to agree on that aspect of the case (if on little else), the Court might take it upon itself to solicit another amicus brief on this issue, similar to the manner in which the Court appointed ConLawProf Vicki Jackson to argue that BLAG had no standing in Windsor v. United States.  That may seem highly unlikely, but stranger things have happened.

 

Protected Speech (& Debate) or Threat?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

After the President's State of the Union Address last evening, a NY1 reporter sought comments from United States Representative Michael Grimm  (pictured), but when the reporter attempted to go "off-topic," the Congressperson abruptly ended the interview.  Nothing unusual about that, but then Representative Grimm came back to confront the reporter and the following was caught on camera:

"What?" Scotto [the NY1 reporter] responded. "I just wanted to ask you..."

Grimm: "Let me be clear to you, you ever do that to me again I'll throw you off this f-----g balcony."

Scotto: "Why? I just wanted to ask you..."

[[cross talk]]

Grimm: "If you ever do that to me again..."

Scotto: "Why? Why? It’s a valid question."

[[cross talk]]

Grimm: "No, no, you're not man enough, you're not man enough. I'll break you in half. Like a boy."

The video can be viewed on the NY1 site here, with additional reporting including Representative Grimm's subsequent statement.

Threats - - - or "true threats" - - - as a categorical exemption to protected speech is muddled, but most analysis does consider "imminence" as necessary, as in Hess v. Indiana (1973) where the Court found that the statements during a protest about 'taking the street' was directed at some indefinite future time.  Similarly in Virginia v. Black (2003), the Court found that cross-burning was not a sufficient threat, over an eloquent dissent by Justice Thomas.   The classic case of Brandenburg v. Ohio (1969) might also be invoked, although there should be little question that Grimm was engaging in advocacy.

Similarly, Representative Grimm could argue he should be protected by the Speech and Debate Clause, Article I §6 cl. 1, providing that members of Congress shall be privileged from arrest "for any Speech or Debate in either House."  The Court in Gravel v. United States (1972) held that this applied to protect legislators when they were engaged in  integral part of the deliberative and communicative process of legislation - - - which would presumably not include an interview with a reporter.

Can President Obama Increase the Minimum Wage for Government Contractors?

Steven D. Schwinn, John Marshall Law School

President Obama will announce tonight during his State of the Union speech that he will increase the minimum wage for federal contractors from $7.25 per hour to $10.10 per hour.  He'll do this by executive order, without specific congressional authorization or action, and notwithstanding the statutory minimum wage of $7.25.

Can he do this?

Some Republicans have cried foul, arguing that the action exceeds the President's Article II authority and thus violates the Constitution.  But the action is hardly unprecedented, and probably supported by the President's statutory authority, let alone his constitutional authority over the executive branch.  In other words, the action is probably a valid exercise of power that Congress granted the President, not a usurpation of power in violation of Article II limits.

Republicans who have criticized the action point to the federal statutory minimum wage.  They say that the federal statutory minimum wage, $7.25 per hour, set in the Fair Labor Standards Act, limits Presidential authority to order a higher minimum wage for government contractors.  Indeed, the FLSA says that "[e]very employer shall pay . . . wages . . . not less than . . . $7.25 an hour . . . ."  FLSA Section 206.  

But the FLSA sets a floor.  Nothing in the FLSA prevents an employer from paying more than the minimum.  And nothing prevents the President from ordering executive agencies to require contract bids to include wages higher than the minimum. 

Indeed, another federal statute, the Federal Property and Adminstrative Services Act of 1949, or FPASA, seems specifically to authorize this kind of action.  The FPASA was designed to centralize government property management and to use the same kind of flexibility in the public procurement process that characterizes like transactions in the private sector.  The Act thus gives the President a great deal of authority to prescribe policies related to government procurement.  For example, it says that the President "may prescribe such policies and directives that the President considers necessary to carry out this subtitle. . . ."  40 U.S.C. Sec. 121.

The D.C. Circuit relied on the predecessor to that section in 1979 in AFL-CIO v. Kahn, 618 F.2d 784, to uphold President Carter's EO directing the Council on Wage and Price Stability to establish voluntary wage and price standards for noninflationary behavior for the entire economy.  The Kahn court also recognized that other presidents had imposed similar requirements on government contractors, like President Johnson's EO that federal contractors not discriminate based on age, a GSA regulation requiring that procurement of materials and supplies for use outside the U.S. be restricted to goods produced within the U.S., and President Nixon's EO excluding certain state prisoners from employment on federal contract work.  Indeed, there's a long line of similar requirements imposed by Presidents.

The D.C. Circuit didn't even apply Justice Jackson's Youngstown framework to the problem, because the President simply relied on his statutory authority under the FPASA, not inherent Article II authority.  The court treated the case as an exercise in statutory construction--whether the President had authority under the FPASA.

Given the nature of the minimum wage in the FLSA, and given the President's broad authority to prescribe policies to enhance government contracting, President Obama almost surely has authority to require government contractors to use a higher minimum wage.  And that's not even considering any inherent Article II authority the President may have over government contractors.

That's not to say that Congress doesn't have a check.  If Congress wants to block the President's action, it probably can--by enacting a statute that specifically proscribes a higher minimum wage.  (If Congress were to do this, then inherent Article II power over government contractors, if any, becomes important.)  But current law doesn't seem to do that.

For more, including a nice history and summary of court rulings, check out this report by the Congressional Research Staff, Presidential Authority to Impose Requirements on Government Contractors.

First Amendment Issues with New York Bill Prohibiting University Support of Entities that Support Boycotts of Other Universities or Nations

New York Senate Bill 6438-2013 passed today and now moves to the Assembly, taking its First Amendment problems with it.

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The bill, in section 2 provides: 

No college in this state may use state  aid  provided  directly  to such  college  to: fund an academic entity, provide funds for membership in an academic entity or fund travel or  lodging  for  any  employee  to attend  any  meeting of such academic entity if such entity has issued a public resolution or other official statement or undertaken an  official action  boycotting  a  host  country  or  higher  education institutions located in such country.

Section 3 extends the penalty to a deprivation of all funds:

Notwithstanding any law to the contrary, no college shall be eligible  for  state  aid  during  the  academic year that such college is in violation of subdivision two of this section.

New York State Capitol

Like many laws, Bill S6438-2013  little sense without understanding its context.  In December, the American Studies Association membership adopted a Resolution stating that it

endorses and will honor the call of Palestinian civil society for a boycott of Israeli academic institutions.  It is also resolved that the ASA supports the protected rights of students and scholars everywhere to engage in research and public speaking about Israel-Palestine and in support of the boycott, divestment, and sanctions (BDS) movement.

The resolution was widely reported, with an excellent piece by Elizabeth Redden on Inside Higher Ed; an article concentrating on the reactions by Peter Schmidt, and nuanced posts by "Claire Potter on Tenured Radical" discussing her own changing views, most recently here. 

In any discussion of the bill's constitutionality, proponents will most likely be relying on Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), decided by the United States Supreme Court in 2006.  Rumsfeld v. FAIR involved the "Solomon Amendment" passed by Congress requiring law schools to allow the military to recruit for lawyers the same as any other employers, a statute thought to be necessary because a number of law schools prohibited employers from recruiting unless the employers had a non-discrimination policy that included sexual orientation. Like S6438-2013, the federal Solomon Amendment  specified "that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds."  The law schools challenged the Solomon Amendment arguing that it infringed their First Amendment freedoms of speech and association.  The law schools lost - - - unanimously (Justice Alito recused himself; the 8 other Justices joined the opinion by Chief Justice Roberts upholding the constitutionality of the law).

Importantly, in Rumsfeld v. FAIR, the Court rejected the notion that the doctrine of "unconstitutional conditions" applied.  On the Court's view, the universities were not faced with an untenable choice - - - surrending their free speech and association rights in exchange for funding  - - - because the government could directly mandate that the universities allow the military to recruit on the same terms as other employers.  The Solomon Amendment, according to the Court, "neither limits what law schools may say nor requires them to say anything."

In the Court's most recent unconstitutional conditions case,  Agency for International Development v. Alliance for Open Society,  the Court did declare unconstitutional a Congressional statute requiring funding recipients to have an  "anti-prostitution pledge."  Again, the opinion was authored by  Chief Justice Roberts, but this time over a dissent by Justice Scalia (joined by Thomas).   The fact that the pledge was compelled speech was central.

In arguments surrounding the constitutionality of the NY Bill under the First Amendment, challengers would most likely rely upon NAACP v. Claiborne Hardware Co., in which the Court in 1982 held that damages for a boycott of white merchants in Mississippi could not be awarded against the NAACP consistent with the First Amendment.  Claiborne recognized that the "peaceful" aspects of the boycott were a form of speech or conduct that is ordinarily entitled to protection under the First Amendment. 

Thus, it would seem that the state could not directly prohibit a boycott.  The argument would then be that because the state could not directly prohibit participation in a boycott, it would be an unconstitutional condition to make recipients forgo a constitutional right as a condition of receiving funding.

National Constitution Center Forum on Obamacare Challenges

Steven D. Schwinn, John Marshall Law School

National Constitution Center President and CEO Jeffrey Rosen recently discussed the constitutional challenges to the Affordable Care Act with Prof. Jonathan H. Adler (Case Western) and Simon Lazarus (Constitutional Accountability Center).  Here's the video:

 

Daily Read: Marsha Ternus on Being a (Former) Iowa Supreme Court Justice

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In the National Law Journal, former Iowa Supreme Court Justice Marsha Ternus has published an insightful commentary entitled Politics on the Bench — a Judge's View of Partisanship at Play.

Recall that Justice Ternus was one of the justices in the unanimous Iowa Supreme Court's 2009 decision in Varnum v. Brien holding that the same-sex marriage ban was unconstitutional under the state constitution's equality provision.  (The opinion remains one of the most closely reasoned and certainly well-structured of the numerous same-sex decisions).  She and two colleagues were then defeated in a 2010 merit retention election in which same-sex marriage was made a contentious issue.

 

In this commentary, Ternus argues that despite her experience in 2010, she continues "to believe that judicial merit selection systems like Iowa's, incorporating a nonpartisan screening commission and gubernatorial appointment, offer the best defense against politicized courts."  She contends that her experience was an "exception" rather than "the rule" and made her even more aware of "the reality faced every election year by prospective judges forced to campaign on partisan platforms, as they do in many other states." She argues that "courts composed of jurists elected on partisan platforms have an inherent polarization that can hardly be escaped."
Ternus' argument is gracious and sage.  But she does not address the lack of diversity, gender and otherwise, now present in the Supreme Court of Iowa.

Current Justices of the Supreme Court of Iowa

Tunisia Adopts New Constitution

Steven D. Schwinn, John Marshall Law School

Tunisia's National Constituent Assembly yesterday approved a new constitution, one of the most progressive in the region, three years after the overthrow of the long-time ruler Zine el-Abidne Ben Ali.  Al Jazeera reports here; BBC here; the Guardian here; Reuters here.

According to reports, the new document says that Islam is the nation's religion (and forbids "attacks on the sacred"), but it does not require religious law, and it guarantees freedom of religion.  Moreover, it guarantees equality between men and women and protects women's rights.  

The new constitution divides executive authority between a prime minister and president.  Prime Minister Mehdi Jomaa announced earlier that a caretaker cabinet would govern until the country holds elections.

In Memoriam: Randy Bezanson

The University of Iowa Dean has announced  the death of ConLawProf Randall (Randy) Bezanson (pictured).

 

Bezanson's contributions to constitutional law teaching and scholarship have been widely recognized.  His books include Art and the Freedom of Speech  and Too Much Free Speech?

There will be a memorial at University of Iowa; more information here.

Tenth Circuit Holds Colorado's Campaign Finance Scheme Unconstitutional as a Violation of Equal Protection

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion this week in Riddle v. Hickenlooper, a panel of the Tenth Circuit unanimously held unconstitutional a differential contribution limit in the Colorado campaign finance scheme as violating the Equal Protection Clause.

The scheme, deriving from Colorado's Amendment 27 and statutes, provided that the campaign limit for contributions to candidates who ran in a primary election, even if unopposed,  was $200 per person and there was an additional campaign limit of $200 per person for all candidates running in the general election.   This meant that a candidate who was a member of a major party holding a primary had a per person limit of $400, while minor party and write-in candidates had a per person limit of only $200.

Image of Results From Colorado's 3-way Gubernatorial Election in 2010; Riddle involves a Congressional election also in 2010

The panel held that because  "the statutory classification affects a fundamental right, the right to political expression"  the correct equal protection standard should be a "standard that is at least as rigorous as the standard applied under the First Amendment," and that under standard the classification fails.   The panel found that the anti-corruption (or appearance of corruption) governmental interest was "sufficiently important," but the means chosen "are ill-conceived to advance these interests."

The statutory classification might advance the State’s asserted interest if write-ins, unaffiliated candidates, or minor-party nominees were more corruptible (or appeared more corruptible) than their Republican or Democratic opponents. But the Defendants have never made such a suggestion. In the absence of a link between the differing contribution limits and the battle against corruption, the means chosen are not closely drawn to the State’s asserted interest.

Concurring, Judge Gorsuch began by stating:

I confess some uncertainty about the level of scrutiny the Supreme Court wishes us to apply to this contribution limit challenge, but I harbor no question about the outcome we must reach. My colleagues are surely right that, as applied, Colorado’s statutory scheme offends the Constitution’s equal protection guarantee, whatever plausible level of scrutiny we might deploy.

Interestingly, both the concurring opinion and the panel majority opinion, authored by Judge Bacharach, clearly rest their analysis on the Equal Protection Clause, and thus do not reach the First Amendment challenge.  Nevertheless, First Amendment doctrine and precedent permeate the reasoning.  Yet given that the Colorado campaign finance scheme results in such an untenable classification, the conclusion of an equal protection classification seems the right one.

 

Daily Read: Marjorie Cohn on the NSA Decisions and the Constitutionality of Surveillance

Over at Jurist, LawProf Marjorie Cohn (pictured below) intervenes in the constitutional conundrum caused by NSA metadata surveillance.

Recall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper,  Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.  

Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland.  But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.

Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."

But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.

Unless, of course, President Obama acts quickly to revise the program.

 

Daily Read: Virginia Woolf and Justice

This 132nd anniversary of the birth of Virginia Woolf (born Virginia Stephen on January 25, 1882), is suitable for reading Jeremy Bradley's essay, Virginia Woolf and The Judicial Imagination, available on ssrn.

Virginia Stephen [Woolf] circa 1902

Through his readings and discussions of Woolf's most famous novels, Mrs Dalloway and To the Lighthouse, Bradley hopes to establish that

literature brings with it evaluative commitments on the part of the reader, commitments that mirror a judge’s recognition of the significance of vulnerable events, a focus on the epistemological value of emotion, and on the competing choices human agents often face. At the same time, the practical aspect of this evaluative process is the very quality that makes analysing literature ‘so unlike dogmatic abstract legal processes. Thus to supplement judicial decision-making with imagination is to redefine what is meant by effective decision-making.

Whether or not judges can integrate empathetic imagination - - - or even whether Virginia Woolf could actualize empathy in her own life when it came to her "servants" as I've discussed in "A Servant of One's Own," available on ssrn - - - the project is an important one if we seek to achieve "justice" rather than merely legal outcomes.

 

Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support)  in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.  

The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.

The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8.   Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8.  When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal.  Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful.  And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.

The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.

On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute.  The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits."  (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).

Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.

Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it.  But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.

Court Offers Conditional, Temporary Relief from Contraception Mandate

Steven D. Schwinn, John Marshall Law School

The Supreme Court today ordered that the government exempt Little Sisters and like organizations from the contraception mandate in Obamacare if the non-profit organization states "in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."

The ruling is a conditional, partial, and temporary victory for Little Sisters against the government's attempts to accommodate non-profit religious organizations under the contraception mandate. 

Recall that the Little Sisters organization challenged the accommodation procedure for the contraception mandate under the Religious Freedom Restoration Act.  That procedure requires organizations like Little Sisters--that is, non-profit religious organizations, but not religions--to certify to their third-party administrator that they have a religious objection to the contraception mandate in order to escape providing the coverage directly.  If Little Sisters so certified, its insurance administrator would have to provide contraception without direct cost or involvement of Little Sisters, thus building a fire wall between the organization and the contraception coverage.  But Little Sisters argued that the accommodation procedure itself (let alone the contraception mandate) violated its religious freedom, because the certification procedure amounted to authorizing a third party to provide contraception in violation of the group's religious beliefs.

The district court denied the claim.  Little Sisters appealed and filed for an injunction pending appeal.  The Tenth Circuit denied the injunction, but Justice Sotomayor, the Tenth Circuit Justice, issued a stay against the government.  The Court's order today represents the views of the full Court.

The order grants an injunction, but only conditionally, and only temporarily.  It says that Little Sisters has to certify to the Secretary of HHS that it's a non-profit and that it has a religious objection to the contraception mandate.  Moreover, it only grants an injunction "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit"--that is, until the Tenth Circuit issues its final ruling.  (That's not to say that the injunction couldn't be renewed pending appeal to the Supreme Court.)

The effect of today's order is to allow Little Sisters to avoid the contraception mandate entirely (as compared to simply putting it on its third-party insurer or administrator, as under the government's certification accommodation) if they properly certify to the Secretary of HHS. 

The Court was careful to say that its ruling today isn't a sign how the Court feels about the merits.

Here's the entire text:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.  To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the government and need not send copies to third-party administrators.  The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.

Second Circuit on Mandatory Disclosures for "Pregnancy Crisis Centers"

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its overdue opinion in The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional.

Recall that in July 2011, a federal district judge enjoined all of Local Law 17 finding that the disclosure provisions did not survive strict scrutiny under the First Amendment, and the Second Circuit heard oral arguments in the appeal 16 months ago.  Meanwhile, the Fourth Circuit considered two similar laws seeking to compel disclosures by pregnancy crisis centers, issuing two en banc opinions in 2013.  The en banc Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge.   The en banc Fourth Circuit in Centro Tepeyac v. Montgomery County, 722 F.3d 184 (4th Cir. en banc), affirmed a finding that one of the mandated disclosures was constitutional and the other was not.

The underlying problem that the local laws intended to address is the existence of "crisis pregnancy centers" that arguably appear to be medical offices but are anti-abortion counseling centers.  The solutions that the local laws proposed were various "disclosures" by the centers.  In the case of Local Law 17, the disclosures were three:

• whether or not they have a licensed medical provider on staff (the “Status Disclosure”);
• whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care (the “Services Disclosure”);
• that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider” (the “Government Message”)

The Second Circuit upheld only the first, the "Status Disclosure."

The Second Circuit's opinion declined to decide whether the disclosures merited strict scrutiny or the lesser standard of intermediate scrutiny, stating - - - not altogether convincingly - - - that its conclusions were the same under both standards.

The panel opinion did find that the government had a compelling interest for Local Law 17 and thus for all three disclosure provisions: protecting public health and protecting a woman's access to reproductive health care.  But the panel found that only the status disclosure was "sufficiently tailored" to these interests.  In finding that the status disclosure was narrowly tailored, this certainly met both strict and intermediate scrutiny standards.

As to the services disclosure, the panel considered the "context" of the mandated disclosure regarding whether the facility provides or provides referrals for abortion, emergency contraception, or prenatal care to be the "public debate over the morality and efficacy of contraception and abortion."  Given this context of "public issues," the burden to justify the compelled speech is high.  Not surprisingly, the panel found that the mandated services disclosure did not survive.  However, the intermediate scrutiny analysis is less satisfying.  Here's the entirety of the analysis:

Finally, we consider whether a different answer would obtain under intermediate scrutiny, which looks to whether the regulation at issue is not more extensive than necessary to serve a substantial governmental interest. While it is a closer question, we conclude that it would not, considering both the political nature of the speech and the fact that the Status Disclosure provides a more limited alternative regulation.

The panel's analysis on the government speech analysis is less explicit regarding the standard of review, emphasizing that the government message could be conveyed in many different ways.

In addition to the specific disclosures, the district judge had found that Local Law 17's definition of "pregnancy services centers" was unconstitutionally vague; a conclusion with which the Second Circuit panel majority disagreed.  However, dissenting in part, one judge would have found all three provisions unconstitutional, arguing that the law is a "bureaucrat’s dream" containing  "deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity." 

The Second Circuit opinion largely agrees with the 2013 en banc Fourth Circuit's Centro Tepeyac v. Montgomery County, but the constitutional doctrine remains unclear.  Given the complexities, and judicial decisions upholding other mandated disclosures in the reproductive rights realm, this remains a great subject for some scholarly intervention.

Daily Read: Franita Tolson on the Voting Rights Act Amendment Act of 2014

Professor Ruthann Robson, City University of New York (CUNY) School of Law

As we discussed yesterday, bipartisan legislation has been introduced in Congress that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance, as a response the the Court's holding in Shelby v. Holder that section 4(b) of the VRA was unconstitutional. 

Over at HuffPo today, LawProf Franita Tolson (pictured below) has a column entitled "The Importance of Tunnel Vision in Fixing the VRA's Coverage Formula."

 

Tolson argues that while

there are some aspects of the legislation that may displease civil rights organizations, particularly the exemption of voter identification laws from coverage under the new formula, the proposal is a strong start to address the gaping hole in the preclearance regime created by the Court's decision in Shelby County.

But in some respects, she contends, the proposed legislation may go too far. 

She argues that the proposed amendments to section 3(c) of the VRA are "alarming because they place a bull's eye squarely on the back of section 3(c)" as well as section 2.  She notes that section 3(c) of the VRA is constitutional precisely "because its intentional discrimination requirement is identical to the constitutional standard for establishing violations of the Fourteenth and Fifteenth Amendments." 

She concludes that the "legislative focus should be limited to replacing the coverage formula and leaving section 3(c) alone."

Worth a read for anyone considering the proposed amendments to the VRA and the legacy of Shelby v. Holder.

The Supreme Court's Heavy First Amendment Docket this Term

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Last Term, the United States Supreme Court's First Amendment docket was decidedly light.  This Term, there are many First Amendment (and quasi-First Amendment) issues before the Court.

Recall last Term's First Amendment case - - - Agency for International Development v. Alliance for Open Society - - - the "prostitution pledge" case - - - which we discussed here.  The relatively brief 15 page majority opinion authored by Chief Justice Roberts over a dissent by Justice Scalia (joined by Thomas).  The opinion resolved a split in the circuits and added a doctrinal clarification (or perhaps merely a wrinkle) to compelled speech/ unconstitutional conditions doctrine, but cannot fairly be called a landmark case.

 This Term, there is a bounty of First Amendment cases before the Court.

In alphabetical order, they include:

• Conestoga Wood Specialties Corporation v. Sebelius &  Sebelius v. Hobby Lobby Stores, Inc. Perhaps the most contentious cases this Term are these religious-based challenges to the contraception “mandate” of the Affordable Care Act.  The cases (and similar cases pending throughout the federal courts) involve the Religious Freedom Restoration Act, which is intertwined with First Amendment Free Exercise principles and doctrine.  Our discussion of the grant of certiorari is here, with links to the circuit court opinions; and a survey of recent commentaries is here. Oral argument is scheduled for March 25.
  
  
• Harris v. Quinn
  The well-established rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities) is the subject of this First Amendment challenge in the employment context of home health care providers.  Our extensive coverage of the issues is here.  Oral arguments were held January 21 and our analysis is here.
  
  
• Lane v. Franks
  The Eleventh Circuit summarily applied Garcetti v. Ceballos in this First Amendment challenge to an alleged retaliatory termination of a public employee for revealing misconduct and testifying at the criminal trials of a former state senator.  Our discussion of the grant of certiorari January 17 is here. 
  

• McCullen v. Coakley  
  This is a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics.  The First Circuit had rejected both the facial and as-applied challenges. Oral arguments were held January 15 and our analysis is here.
  
  
• McCutcheon v. Federal Election Commission
  This campaign finance case is a First Amendment challenge to the aggregate limits under the Bipartisan Campaign Reform Act, or BCRA, which cap the total amount that a contributor can give to candidates, political parties, and political committees.  Oral arguments were held October 8, 2013 and our analysis is here.
  
  
• Susan B Anthony List v. Driehaus 
  This case is a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari earlier in January, the case involves both the First Amendment and Article III, with the Sixth Circuit having determined that the case was not ripe and thus not reaching the First Amendment challenge.
  
  
• Town of Greece v. Galloway  This case is an Establishment Clause challenge to New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian.  The Second Circuit had held that the town council's practice "impermissibly affiliated the town with a single creed, Christianity."   The Solicitor General filed a brief supporting the town.  Oral arguments were held in early November and our analysis is here.
  
  
• United States v. Apel  
  Whether or not the First Amendment is relevant in this case involving a protest outside military installation is part of the issue. The Ninth Circuit did not reach the First Amendment issue, but decided the case on the particularities of statutory interpretation and the property in question, reversing the defendant's conviction.  At the oral argument in early December, ConLawProf Erwin Chemerinsky, arguing for Apel, consistently raised the First Amendment and was consistently rebuffed, as we discussed here.
  
  
• Wood v. Moss
  Whether or not the First Amendment is relevant in this case (as in Apel, above) is also an issue.  The central arguments involve qualified immunity, but questions of viewpoint discrimination arise given that there were different "protest zones" for pro-Bush and anti-Bush demonstrators.  Oral argument is scheduled for March 26, 2014.

ConLawProfs teaching First Amendment this semester have much that could be incorporated in their courses regarding this Court's Term.  And First Amendment watchers, scholars, and practitioners may see some important changes.

Presidential Commission on Election Administration Issues Recommendations

Steven D. Schwinn, John Marshall Law School

President Obama met today with the Presidential Commission on Election Administration, a commission established after the President pledged in hi2 2013 State of the Union address to seek ways to provide better access to the polls.  The Commission, headed by Robert Bauer and Benjamin Ginsberg, just issued its Report and Recommendations, including these key recommendations for state and local officials:

 

 

 

• Modernize the voter registration process through expansion of on-line voter registration and state collaboration in improving the accuracy of voter lists;
• Expand early voting days;
• Adopt new techniques to manage polling places efficiently; and
• Pave the way for the adoption of new technologies for voting.

Here's a video of President Obama's remarks at the meeting: