Constitutional Law Prof Blog

Loyola Constitutional Law Colloquium

Loyola University Chicago School of Law has announced its Fifth Annual Constitutional Law Colloquium, set for November 7 and 8, 2014.  This is an outstanding national colloquium--a terrific opportunity to present, discuss, and get feedback on your work--that just keeps getting better and better. 

Registration is open until June 16, 2014.  Organizers will select abstracts (150 to 200 words) on a rolling basis and hope to include all who submit.  (Of course, you can attend without presenting.)

Here's the official announcement:

Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.

 

This is the Fifth Annual Loyola colloquium and brings together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. We hope to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas and invaluable opportunities for informed critiques. Presentations will be grouped by subject matter.

 

The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millenium Park, the Chicago Art Institute, and Chicago Symphony Center.

 

Participants are expected to pay their own travel expenses. Loyola will provide facilities and support.

 

There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.

There's more information at the Colloquium web-site, or contact the organizers or the Administrator:

 

Professor Barry Sullivan, Cooney & Conway Chair in Advocacy, bsullivan7@luc.edu

Professor Alexander Tsesis, atsesis@luc.edu

Professor Mike Zimmer, mzimme4@luc.edu

 

Program Administrator Heather Figus, ConstitutionLaw@luc.edu

 

DC Circuit Upholds Meat Labeling Requirement Against First Amendment Challenge

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

In its relatively brief but potentially exceedingly important opinion in American Meat Institute v. United States Dep't of Agriculture, the District of Columbia Circuit upheld a meat labeling rule requiring increased specificity.  As the court explained, the 2013 rule regarding country of origin newly required the "production step," so that

instead of saying, “Product of the United States,” a label for Category A meat will now read, “Born, Raised, and Slaughtered in the United States.” Similarly, Category B meat might now have to be labeled, “Born in X, Raised and Slaughtered in the United States,” and Category C meat “Born and Raised in X, Slaughtered in the United States.”

The meat producers argued that the new rule exceeded statutory authority and that it violated the First Amendment.  They sought a preliminary injunction which the district judge denied. 

The DC Circuit's First Amendment analysis rejects the meat producers' arguments that Zauderer v. Office of Disciplinary Counsel (1985) should not be dispositive.  The panel opinion noted that Zauderer held that  mandated disclosures do not violate an advertiser’s First Amendment rights,  “as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”  But it rejected the meat producers' argument that the DC Circuit's opinion in Reynolds v. FDA held that Zauderer should be "applied only to disclosure mandates aimed at correcting deception" (emphasis in opinion).  The court noted that this interpretation also avoided a disagreement with other circuits, and also noted that "reasonable judges" could read Reynolds as so limiting Zauderer and thus suggested that the

full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information.

However, the panel provided its conclusion that other government interests were adequately served by the mandated labeling, including enabling

a consumer to apply patriotic or protectionist criteria in the choice of meat. And it enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise.

Certainly the labeling of meat is not the other type of labeling currently being litigated in the courts as the opinion itself discusses.  (I've elsewhere argued that mandating clothes be labeled sweat-free or not should survive a First Amendment challenge).  The DC Circuit might do well to take the suggest for en banc consideration given the issue's likelihood of recurring.

[image via]

UPDATE: The DC Circuit has granted en banc review.

UPDATE: EN BANC OPINION here

D.C. Circuit Appears Split in Latest Obamacare Challenge

Steven D. Schwinn, John Marshall Law School

A three-judge panel heard oral arguments this week in one of several cases challenging federal subsidies to health-insurance purchasers on a federal exchange.  We posted on those cases here.  In short, the plain language of the ACA appears to authorize subsidies for health-insurance purchasers on state exchanges, but not on a federal exchange.  This means that individuals who live in a state that declines to establish a state exchange--and instead relies upon a federal exchange--could not get a federal subsidy.  So the IRS issued a rule providing subsidies to individuals who purchase on a federal exchange (as well as a state exchange).

That rule is what's at issue in these cases.  The plaintiffs argue that the IRS rule (granting subsidies to purchasers on federal exchanges) is inconsistent with the ACA (which, they say, authorizes subsidies only to purchasers on state exchanges).  Jason Millman over at the WaPo's Wonkblog explains the significance:

The subsidy question is central to the future survival of the law.  Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.

About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage.  Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage.  That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."

The D.C. Circuit is the first appellate court to hear arguments in these challenges.  Some accounts said that the panel seemed split, or even leaning toward the plaintiffs, with Judge Raymond Randolph seeming to lean toward the plaintiffs, Judge Harry Edwards seeming to lean toward the government, and Judge Thomas Griffin seeming to be the panel's swing vote.  The WSJ covered the arguments here; WaPo's Wonkblog coverd them here; and Bloomberg covered them here.

Daily Read: Capital in the 21st Century

In a review in this week's New Yorker, John Cassidy makes the case that the new book by Thomas Piketty, Capital in the Twenty-First Century, is one that "nobody interested in a defining issue of our era can afford to ignore."

This defining issue is economic inequality.  Piketty's book, translated from the French and published by Harvard University Press, is an examination of the phenomenon as well as a proposal for remediation. 

The proposal is a "wealth tax."  Perhaps that's a "political nonstarter" as Cassidy suggests and as Piketty seemingly acknowledges.  But perhaps it's not.

 

Fifth Circuit Upholds HB2, Texas Restrictive Abortion Statute

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

A panel of the Fifth Circuit upheld the restrictive abortion law of Texas in its opinion in Planned Parenthood of Texas Surgical Providers v. Abbott. 

Authored by controversial conservative Judge Edith Jones, the unanimous panel opinion upholds positions of equally controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis.  The district judge's decision  had enjoined the "admitting provisions of HB 2 as unconstitutional: 

A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services

Texas state capitol building via

The Fifth Circuit quickly stayed the injunction.  In today's panel opinion, Judge Jones wrote that the the district judge's opinion "applied the wrong legal standards under rational basis review and erred in finding that the admitting–privileges requirement amounts to an undue burden for a 'large fraction' of the women that it affects."

As to rational basis, Judge Jones highlighted the highly deferential standard, its place in a democracy, its practicality (if the legislature doesn't think a law is working, it can change it), and its application to HB2:

Viewed from the proper perspective, the State’s articulation of rational legislative objectives, which was backed by evidence placed before the state legislature, easily supplied a connection between the admitting–privileges rule and the desirable protection of abortion patients’ health.

As to the undue burden, Judge Jones noted that the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey,

counsels against striking down a statute solely because women may have to travel long distances to obtain abortions. The record before us does not indicate that the admitting–privileges requirement imposes an undue burden by virtue of the potential increase in travel distance in the Rio Grande Valley.

The narrow exception of the Fifth Circuit's reversal if that the  admitting privileges requirement "may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital."

Oral Arguments in Wood v. Moss: The Complaint by the Anti-Bush Protestors

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

At the heart of this case is a very simple complaint: During a campaign stop by then-President Bush in Portland, Oregon, the Secret Service treated anti-Bush protestors differently from pro-Bush demonstrators, relocating the former while allowing the latter to remain. 

But the complaint raises a host of legal issues that ricocheted through the oral arguments {transcript} in Wood v. Moss at the United States Supreme Court today.

image from later protest in Portland via

The first issue is whether the complaint satisfied Ashcroft v. Iqbal, with Chief Justice Roberts specifically referring to the opinion during the oral argument of Steven Wilker, representing the Respondents, who were the protestors:

In Iqbal, and just quoting here from page 681, the Court goes on to consider the factual allegations in the complaint to determine if they plausibly suggest an entitlement, and they go on to say, but given more likely explanations, they do not plausibly establish this purpose.

Roberts returned to Iqbal, stating that the Government's alternative explanation in its motion to dismiss the complaint "doesn't have to be so compelling.":

It simply has to be more likely, is the quote from Iqbal on 681, and it has to be an obvious alternative explanation. And that's enough, no matter what you've alleged.

There was certainly some concern expressed that without Iqbal, the district judge might have fewer "weapons" available to curb discovery, but there was also not uniform preoccupation with Iqbal, with Justice Breyer posing a hypothetical about discovery and saying "Forget Iqbal for the moment."

Yet another procedural barrier discussed by the Court is the doctrine of qualified immunity, requiring that the constitutional infringement be "clearly established" at the time it occurs in order to hold government agents accountable. The Government's best case in this regard is Reichle v. Howards, which counsel mentioned repeatedly, decided in 2012, which held that Secret Service agents had qualified immunity and rejected the claim of retaliatory arrest for a man at a Dick Cheney shopping mall appearance.

But there seemed to be an "aha" moment for Justice Scalia - - - who had previously accused the attorney for the government, Ian Gershengorn, Deputy Solicitor General, for not sufficiently raising such arguments - - - during Wilker's argument.  Scalia asked " how can it be  clearly established if we have never held that there is a Bivens cause of action for a First Amendment violation? We've never held that, have we? How can you possibly say that the violation here is clearly established."

MR. WILKER: Well, I think it's different to say whether or not there is a remedy for the violation as to whether the violation was clearly established.

JUSTICE SCALIA: Well, okay.

MR. WILKER: The violation was clearly established. Whether or not there is a remedy for that violation under Bivens - - -

JUSTICE SCALIA: That's a good point.

MR. WILKER:  - - - is a different question.

JUSTICE SCALIA: That's a good point.

Yet Scalia might not be convinced that there would actually be a First Amendment violation, given his repeated references to the Fourth Amendment in which motivation should not be considered. 

At several points, the oral argument did focus on the question of viewpoint discrimination under the First Amendment, such as in the Deputy Solicitor's exchange with the Justice Ginsburg:

JUSTICE GINSBURG: Mr. Gershengorn, suppose it's originally set up by the police, the motorcade is coming down, each side has equal access. Then the Secret Service comes along and said: Clear the anti­Bush demonstrators. Suppose that, that ­­ those were the facts. Would there be a valid Bivens claim?

MR. GERSHENGORN: Your Honor, the question would depend on whether there was a valid security rationale. I think in the context of a motorcade ­­

JUSTICE GINSBURG: The rationale is it's more likely that the people who are against the President would be harmful to him than the people who are for him.

Roman Praetorian Guard via

Yet whether this case will be decided on the First Amendment issues - - - or more properly, whether the Court will decide that the First Amendment issue can be decided by the lower courts in spite of Iqbal and the qualified immunity doctrine - - - is balanced between two concerns expressed in the oral arguments. 

On the one hand, there is a concern for ability of the Secret Service to make security decisions to protect the President without being subject to second-guessing by possible plaintiffs and the courts themselves. 

On the other hand, there is the concern that there might develop a "Praetorian Guard" - - - as Justice Breyer stated - - - and that the trampling of First Amendment rights on the basis of viewpoint might be accepted.

As one of the cases on this Term's heavy First Amendment docket, its importance may be overshadowed, but it should not be underestimated.

Ninth Circuit Upholds San Francisco's Gun Regulations

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

Affirming the federal district judge, a panel of the Ninth Circuit in its opinion in Jackson v. City of San Francisco found that San Francisco's gun regulations likely survived the Second Amendment challenges and therefore the denial of the preliminary injunction was proper.

At issue were two San Francisco gun-related regulations: one that requires handguns to be stored in a locked container at home or disabled with a trigger lock when not carried on the person and the other that prohibits the sale of hollow-point ammunition within San Francisco.

The panel, as other courts have done, derived its framework from District of Columbia v. Heller, first asking whether the challenged regulations burden conduct protected by the Second Amendment and then applying the "appropriate" level of scrutiny.  Because Heller (and McDonald v.Chicago which incorporated the Second Amendment against the states) left open this second inquiry, the panel - - - again following other circuits - - -then analyzed  ‘how close the law comes to the core of the Second Amendment right’ and ‘the severity of the law’s burden on the right.’   The panel analogized to First Amendment principles and noted that "firearm regulations which leave open alternative channels for self-defense are less likely to place a severe burden on the Second Amendment right than those which do not." The panel applied intermediate scrutiny to the regulations.

The opinion distinguished the San Francisco gun regulation requiring safety measures from those seemingly similar District of Columbia safety measures the United States Supreme Court found unconstitutional in Heller:

Section 4512 does not impose the sort of severe burden imposed by the handgun ban at issue in Heller that rendered it unconstitutional. Unlike the challenged regulation in Heller, section 4512 does not substantially prevent law-abiding citizens from using firearms to defend themselves in the home. Rather, section 4512 regulates how San Franciscans must store their handguns when not carrying them on their persons. This indirectly burdens the ability to use a handgun, because it requires retrieving a weapon from a locked safe or removing a trigger lock. But because it burdens only the “manner in which persons may exercise their Second Amendment rights,” the regulation more closely resembles a content-neutral speech restriction that regulates only the time, place, or manner of speech. The record indicates that a modern gun safe may be opened quickly. Thus, even when a handgun is secured, it may be readily accessed in case of an emergency. Further, section 4512 leaves open alternative channels for self-defense in the home, because San Franciscans are not required to secure their handguns while carrying them on their person. Provided San Franciscans comply with the storage requirements, they are free to use handguns to defend their home while carrying them on their person.

[citations omitted]

As to the sale of hollow point bullets, the panel found that there was standing to challenge the restriction and that such ammunition was protected by the Second Amendment.  But it again applied intermediate scrutiny and found the regulation survived.  It reasoned that the city's regulation "imposed only modest burdens on the Second Amendment right" given "the availability of alternative means for procuring hollow-point ammunition." 

The opinion is firmly rooted in current doctrine, even as that doctrine is in disarray.  Earlier this month the Delaware Supreme Court held a gun restriction in public housing unconstitutional; earlier this year a district judge in Chicago held that city's gun regulations unconstitutional.   The United States Supreme Court this Term has denied certiorari to several petitions seeking review of lower court cases including Fifth Circuit cases upholding a ban of sales of guns to those under 21.

Borrowing from First Amendment doctrine seems especially problematic in these cases, but understandable given the infantile state of the doctrine.

 [image via]

 

Justice Kennedy and the Hobby Lobby Contraceptive Mandate Oral Arguments: Is it Simply Administrative Law?

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

The arguments in the consolidated cases of  Hobby Lobby and Conestoga Wood Specialities v. Sebelius displayed Justices sharply divided on the issues as we discussed.  Whether Justice Kennedy will be the deciding vote in the cases is sure to be the subject of much speculation.  What, if anything, might be derived from his expressions at oral argument?  

He began, relatively early in the oral argument, by making space for Paul Clement to elaborate on his "framework" and by posing a question about RFRA:

JUSTICE KENNEDY: You were beginning by giving us a framework for your argument. Do I think of this as a statutory case? Of course, the First Amendment is on the stage at some point here, but I take it you can prevail just on the question of statutory interpretation, and if that is so, are there any statutory rules that work in your favor, that is to say, avoiding a constitutional question or how do we think about this case, primarily as a statutory case?

Justice Kagan thereafter pointed out that RFRA was a "special kind of statute" that "specifically refers back to a "body of constitutional law."

Justice Kennedy also asked about the relative substantial burden of paying any fines: "Let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty. How ­­ how is the employer hurt? He can just raise the wages."

Clement eventually answered that “If they take away the health care insurance, they are going to have to increase the wages to make up for that. And they're going to have to pay the $2,000 penalty on top of it, plus they're going to have to violate their ­­ their own interest which is, we actually ­­ we believe it's important to provide our employees with qualified health care.

JUSTICE KENNEDY: Okay, the last is important. But just assume hypothetically that it's a wash, that the employer would be in about the same position if he paid the penalty and the employer ­­ pardon me, an employee went out and got the insurance and that the employee's wages were raised slightly and then it's ­­ and that it's a wash so far as the employer are concerned, other than the employer's religious objection, but just on the financial standpoint. Can we assume that as a hypothetical. Then what would your case be?

MR. CLEMENT: I think my case would be that in that case the government might be able to sort of support itself on the compelling interest. I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue.

Toward the end of Clement's time, Kennedy posed a different type of query:

JUSTICE KENNEDY: Just before your time starts to go too fast, how would you suggest that we think about the position and the rights of the ­­ of the employees? And you can have hypotheticals about the employer makes them ­­ wants to make them wear burkas and so forth. That's not in this case. 

But in ­­ in a way, the employees are in a position where the government, through its healthcare plans, is ­­ is, under your view, is ­­ is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious ­­ religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?

In Kennedy's extensive colloquy with Solicitor General Verrilli, the subject veered from compelling governmental interest back to the status of RFRA:

JUSTICE KENNEDY:  Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?

GENERAL VERRILLI: It is part of our argument, absolutely. And ­­ but it ­­ but there is in addition to that, much more ­­

JUSTICE KENNEDY: Does that mean the constitutionality of the whole Act has to be examined before we accept your view?

GENERAL VERRILLI: Well, I think it has been examined, Your Honor, is my recollection.

(Laughter.)

GENERAL VERRILLI: But ­­ but with respect to ­­ but with respect to the ­­ there is a particularized interest here in that what we are talking about is a question of whether 14,000 employees and their families get access to this contraceptive coverage.

JUSTICE KENNEDY: You ­­ you have exempted a whole class of corporations and you've done so under your view not because of RFRA.

GENERAL VERRILLI: So let me ­­ let me go to that ­­

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.

But when we have a First Amendment issue of ­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 Kennedy later continued on the issue of compelling governmental interest:

JUSTICE KENNEDY: I still don't understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

GENERAL VERRILLI: I don't think ­­

JUSTICE KENNEDY: Then it must have been because the health care coverage was not that important.

GENERAL VERRILLI: It didn't grant an exemption to any nonreligious organizations, Justice Kennedy. It granted an exemption to churches, and that was it. . . .

And later, Justice Kennedy, whose opinions on abortion are certainly complex, asked Verrilli what seemed a version of a particular "slippery slope" that had not been extensively considered:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but ­­ could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now ­­ the law now is to the contrary.

JUSTICE KENNEDY: But your reasoning would permit that.

GENERAL VERRILLI: Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.

 Finally, during Verrilli's argument, Justice Kennedy expressed interest in a hypothetical posetd by Justice Alito about a law requiring humane treatment of animals and therefore prohibiting kosher and halal slaughter.

Justice Kennedy asked no questions during Clement's rebuttal, but Clement gave the last word to Kennedy:

 . . . . If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it's going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Certainly Clement's articulation is simplistic, but it could satisfy Kennedy's initial search for some statutory construction principles that might make the answer to the divisive issues also seem simple.

[image: Justice Kennedy by Donkey Hotey via]

Supreme Court Hears Oral Arguments in Hobby Lobby and Conestoga Wood Specialties on RFRA and the "Contraceptive Mandate"

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

Should corporations (or their owner/shareholders) be able to interpose a religious objection to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? 

Simplified, that's the question at the heart of the oral arguments today in the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius in which the Court granted certiorari in November.  The legal issues are complex (our primer is here and another here), but given the basic conflict, it's no wonder the case has attracted so much attention. Another good overview is Lyle Denniston's preview of the arguments for SCOTUSblog.

Recall that the Tenth Circuit's divided en banc opinion in Hobby Lobby essentially split 5-3 over the issue of whether a for-profit secular corporation has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.

Recall also that the Third Circuit's divided panel opinion in Conestoga Woods rejected the contention that the corporation could raise a claim under RFRA, either as a corporation possessing free exercise of religion rights or under a "pass through" theory allowing the beliefs of the owners to pass to the corporate form.

Moreover, Hobby Lobby and Conestoga Woods are not the only two opinions on these issues.  A digest of some previous circuit court cases and some discussion of the controversy is here; the divided Seventh Circuit opinion is discussed here; and the ACLU has a helpful running tab on all the cases here. So, the Court's ultimate conclusion will impact a number of cases.

Today's 90 minute oral argument {transcript} in the consolidated cases began with Paul Clement representing the "private parties," Hobby Lobby and Conestoga Wood and then Solicitor General Donald Verrilli  representing the federal government, including Kathleen Sebelius as Secretary of Health and Human Services.  Not surprisingly, the questions to Clement largely came from Justices Kagan, Sotomayor, and Ginsburg, and the questions to Verrilli came from Justices Alito and Scalia, as well as Chief Justice Roberts.   Also not surprisingly, the arguments were peppered with slippery slopes, other analogies, questions of Congressional intent in passing RFRA, RFRA's relationship with First Amendment doctrine, and the relevance of the corporate form. 

The question as to the cost of not complying with the mandate (part of the substantial burden on the corporations under RFRA) was the subject of this rather interesting exchange during Paul Clement's argument:

JUSTICE KAGAN:  . . . .

And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty.  That's what Hobby Lobby faces.  So $2,000 per person - - -  ­­

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide ­­- - -

MR. CLEMENT: That's $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the - - -­­ for the coverage. It's less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it's less.

CHIEF JUSTICE ROBERTS: I thought - - -­­ I thought that part of the religious commitment of the owners was to provide health care for its employees.

MR. CLEMENT: That is true, Mr. Chief Justice. It is also true that this ­­- - -

JUSTICE SOTOMAYOR: Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange.

MR. CLEMENT: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false - - - ­­ it's a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated ­­ - - - and it's calibrated ­­

CHIEF JUSTICE ROBERTS: She's right about that.

 (Laughter.)

 The laughter arises from Chief Justice Roberts' decision in NFIB v. Sebelius that the ACA was constitutional under Congress' power to tax, but it is worth noting that Roberts jumped in to assert the corporation's exercise of religion as including the provision of health insurance.  Justices Ginsburg and Kagan later come back to this point:

JUSTICE GINSBURG: There was a point made earlier, and I think you didn't mean to say this, that provision of health care is not part of their religious belief. Covering their employees for health care, that is not a religious tenet, right?

MR. CLEMENT: No, it actually is.  Again, it hasn't been the principal theory been litigated. But see, if you complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the Hahns and the Greens have. They think it's actually important ­­- - -

JUSTICE KAGAN: But, Mr. Clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? I thought that you were never making that claim.

MR. CLEMENT: I didn't have to make that claim in the course of this litigation. What I'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 ­­ the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. They would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for their religion as well.

JUSTICE KAGAN: You know, I'm sure they seem like very good employers. And I'm sure they want to be good employers. But again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance . . . .

If the "substantial burden" under RFRA is the most difficult element that the corporations to meet, then the strict scrutiny test applicable to any substantial burden is surely the government's most difficult task.  The questioning noted that the "least restrictive means" test in RFRA was clearly more difficult to meet than even the pre-Smith cases that RFRA explicitly sought to restore - - - and there did not seem to be even a glimmer that RFRA should be held unconstitutional (which would, of course, require a departure from O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzales). 

 Justice Breyer, asking his first question of the argument, requested that Verrilli provide a "precise answer" to the "least restrictive" argument that the government should simply pay for the contraceptive coverage.  Verrilli's argued that this suggestion by the corporations was not properly before the Court, but even if it was, that even the accommodation would be subject to a RFRA challenge.   Justice Alito suggested that Clement be asked about whether this would hapen, and indeed Clement was asked (by Justice Sotomayor).  Clement's reply:

We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

 Whether Justice Kennedy will be the deciding vote in this case is certain to be subject to much speculation and his questions will be closely read; our extended discussion is here.  But without question, the Justices seem sharply divided.

 

Supreme Court Declines Review of Arbitration Open Access Case

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

Today the United States Supreme Court denied review of Strine v. Delaware Coalition, a case in which a Third Circuit panel held that arbitration proceedings cannot be confidential under the First Amendment. 

As we previously discussed, the judges in the Third Circuit were quite divided; there were three opinions in the case.  But the majority conclusion requiring these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges to not remain secret seems the correct one.  Especially if the First Amendment access to "trials" should continue to have substantive meaning.

"le secret" via

 

It's always dangerous to speculate why the Supreme Court declines to enter the fray, but  it's worth noting that Delaware's secrecy scheme protecting commercial arbitration is rather unique.

False Equivalence Between Senate Oversight and CIA Spying

Steven D. Schwinn, John Marshall Law School

Conor Friedersdorf writes over at The Atlantic that media coverage of the dispute between Senator Dianne Feinstein and the CIA over the Agency's spying on Congress wrongly puts concerns about CIA oversight on par with concerns about Senate investigations in the separation-of-powers calculus.

Recall that Senator Feinstein recently criticized the CIA for spying on the Senate Intelligence Committee.  The CIA responded that Committee staff improperly obtained CIA material in its investigation of CIA detention and interrogation policies.  Both matters are now at the DOJ.

Friedersdorf argues (persuasively) that media coverage of the competing claims wrongly puts them on par.  He says that the Senate Intelligence Committee is supposed to investigate the CIA (it is), and that even if Committee staff obtained CIA information, it was information that the CIA was supposed to turn over anyway.  The real transgression is not Committee oversight; it's the CIA's spying on Congress.

What vexes me about how this dispute is being covered . . . is the false equivalence implicit in the juxtaposition: as if the CIA and the Senate committee stand accused of like transgressions.  If the charges against the CIA are true, our nation's foreign spy agency, which is forbidden from conducting any surveillance in the U.S., snooped on our legislature.  That's a transgression against our constitutional framework.

At the same time:

Are we prepared to accept that, during a comprehensive congressional inquiry into torture, the CIA was justified in withholding torture documents?  Senate staffers committed no great sin in getting documents wrongly denied them.

Illinois Supreme Court: State's Eavesdropping Statute Unconstitutional

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

Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?

In its opinion in People v. Clark, and a companion opinion in People v. Melongo, the Illinois Supreme Court held the state's statutory criminalization of eavesdropping unconstitutional.

Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.

In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep."  The court recognized the ubiquity of smartphones and other recording devices.

Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private."  It gave these examples:

1.  a loud argument on the street;
2. a political debate in a park;
3. the public interactions of police officers with citizens (if done by a member of the general public); and
4. any other conversation loud enough to be overheard by others whether in a private or public setting.

Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.

Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo.  The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial.  Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark.  Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent.  The court similarly found this provision overbroad.

It will be interesting to see how the Illinois legislature responds.

 [image via]

Force-Feeding As Torture at Guantanamo

Steven D. Schwinn, John Marshall Law School

Jon B. Eisenberg, counsel, along with Reprieve US, for Shaker Aamer and Emad Hassan, Guantanamo detainees, writes over at Jurist.org that force-feeding detainees at Guantanamo is akin to the medieval form of torture called "pumping," or the water cure.  Eisenberg makes the case that force-feeding is not "reasonably related to legitimate penological interests," the standard under Turner v. Safley, because the government force-feeds prematurely, long before detainees are at risk of death or great bodily harm.  He writes that there are "obvious, easy alternatives," and that force-feeding is an "exaggerated response."

Recall that the D.C. Circuit ruled earlier this year that federal courts could hear Aamer's habeas claim--a claim not for release, but rather against his conditions of confinement.  This was a huge victory for Guantanamo detainees: it was the first time the court said that they could bring a habeas claim challenging their conditions of confinement. 

But the court also ruled that Aamer was not likely to succeed on the merits of his claim.  Eisenberg explains why that was wrong.

The government hasn't said whether it'll appeal the Aamer ruling.  In the meantime, Eisenberg and Reprieve US are going forward with another claim against force-feeding, Hassan's.

Delaware Supreme Court Interprets State Constitutional "Second Amendment" Provision to Protect the Right to Firearms in Public Housing Common Areas

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

Responding to a certified question from the Third Circuit, the Delaware Supreme Court interpreted its state constitutional "right to bear arms" provision expansively in its opinion in Doe v. Wilmington Housing Authority.

At issue were two policies of the housing authority.  The first, the Common Area Provision,  prohibited "residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense."  The second, the Reasonable Cause Provision,  required "residents, household members, and guests to have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon" if there was reasonable cause to believe there was a violation.

The court interpreted Article I §20 of the Delaware Constitution as inconsistent with the housing authority policies.  The constitutional provision provides: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” As the court noted, this was not adopted as part of the state constitution until 1987, given concerns of the original state constitutional framers because of concerns "over groups of armed men," but nevertheless "Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state."

Importantly, the Delaware Supreme Court clearly stated that it was interpreting Article I §20 as an independent ground and did not base its opinion on the Second Amendment.  It considered its four previous cases, noting that only in one did it cite Second Amendment cases.  Interestingly, however, in three of the four cases, the court rejected the Article I §20 claim, and in one it remanded the case on the basis of the jury instructions in the criminal trial. 

Here, however, the court found that the "common areas" in public housing deserved special consideration.  Applying the "intermediate scrutiny" standard developed in its precedent, the court reasoned that even "active and retired police officers who are residents, household members, or guests are disarmed by the Common Area Provision," and that an "individual’s need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government."  Thus, the court concluded that

the Common Area Provision severely burdens the right by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space.

As to the Reasonable Cause Provision, the court found that it was not severable from the Common Areas provision, and was therefore also unconstitutional.

The Delaware Supreme Court's unanimous opinion clearly articulates the adequate and independent state grounds of Article I §20of the state constitution, but less clearly articulates and supports its reasoning for interpreting the state constitutional provision to invalidate the public housing prohibitions of firearms. 

[image via]

Michigan District Judge Declares State's Prohibition on Same-Sex Marriage Unconstitutional

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

Following the trend which we most recently discussed here and here, Senior United States District Judge for the Eastern District of Michigan, Bernard Friedman, declared the state's same-sex marriage ban unconstitutional in his  opinion today in DeBoer v. Snyder.

At issue was Michigan's state constitutional amendment, Mich. Const. Art. I, § 25, which the court referred to as the Michigan Marriage Amendment, MMA, passed by voter referendum in November 2004.  The judge held a trial limiting the issue to whether the MMA "passed rational basis review" under the Fourteenth Amendment and held that it did not because it violated the Equal Protection Clause.  The court stated it therefore did not reach the Due Process Clause question.

The state proffered the by now familiar government interests to satisfy the required "legitimate" government interest:

1.  providing an optimal environment for child rearing;
2. proceeding with caution before altering the traditional definition of marriage; and
3. upholding tradition and morality.

In evaluating each of these, the judge reached the by now familiar conclusions.  Judge Friedman discussed the evidence at trial, holding that there was "no logical connection between banning same- sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes;'" that the "wait and see" approach did not satisfy the legitimate government interest standard; and finally that upholding tradition and morality likewise did not satisfy the legitimate government interest standard, citing several of the recent cases that have held likewise. 

Additionally, Judge Friedman rejected the state's "federalism" argument that sought to distinguish United States v. Windsor, relying heavily on Loving v. Virginia.  As the judge phrased it:

Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.

The judge also rejected the argument that the MMA's status as a constitutional amendment prompted by voter referendum was relevant, quoting the famous language from the 1943 flag-salute First Amendment case of West Virginia Bd. of Ed. v. Barnette: the "very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy" and "to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."

Judge Friedman's decision is closely and carefully reasoned, although it closes with a rhetorical paragraph that labels the opinion "a step in the right direction."

The Judge enjoined the enforcement of the same-sex marriage ban and unlike some other judges, he did not order a stay.

[image: Map of Michigan circa 1836 via]

 

Canada Supreme Court: No to Nadon

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

In its opinion today in Reference re Supreme Court Act, ss. 5 and 6, the Supreme Court of Canada, with only one Justice dissenting, concluded that Marc Nadon would not be joining them on the nation's highest bench.

As we previously discussed, the nomination of Marc Nadon (objected to by some for its failure to advance gender parity), posed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.   Cribbing from another of our discussions that quoted Canadian scholars Michael Plaxton and Carissima Mathen, here's the problem in a nutshell:

Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.

Supreme Court of Canada

 

Today the Court decided that

A judge of the Federal Court or Federal Court of Appeal is ineligible for appointment to the Supreme Court of Canada under s. 6 of the Act.  Section 5 of the Act sets out the general eligibility requirements for appointment to the Supreme Court by creating four groups of people who are eligible for appointment:  (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such a court; (3) current barristers or advocates of at least 10 years standing at the bar of a province; and (4) former barristers or advocates of at least 10 years standing.  However, s. 6 narrows the pool of eligible candidates from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6.  In addition to meeting the general requirements of s. 5, persons appointed to the three Quebec seats under s. 6 must be current members of the Barreau du Québec, the Quebec Court of Appeal or the Superior Court of Quebec.
The plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates.  By specifying that three judges shall be appointed “from among” the judges and advocates (i.e. members) of the identified institutions, s. 6 impliedly excludes former members of those institutions and imposes a requirement of current membership.  Reading ss. 5 and 6 together, the requirement of at least 10 years standing at the bar applies to appointments from Quebec.
This textual analysis is consistent with the underlying purpose of s. 6 and reflects the historical compromise that led to the creation of the Supreme Court as a general court of appeal for Canada and as a federal and bijural institution.  Section 6 seeks (i) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) to enhance the confidence of Quebec in the Court.  This interpretation is also consistent with the broader scheme of the Act for the appointment of ad hoc judges, which excludes judges of the federal courts as ad hoc judges for Quebec cases.

The Court's opinion seems well-reasoned, careful, and right.  And while its effect is certainly cataclysmic to Nadon (and perhaps to his conservative supporters), it may be less so for Canadian politics ultimately, and even less so for Canadian constitutional law doctrinally.  Nevertheless,  Nadon's appointment to the Supreme Court would have changed Canadian Constitutional law.  And certainly, the nomination of a Justice to the nation's highest court being deemed ineligible to serve on that Court by the Justices of the Court themselves is certainly dramatic.

 

Eleventh Circuit Finds Private Property Loitering Buffer Zone Violates First Amendment

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

In its relatively brief opinion in today in Bell v. City of Winter Park, a panel of the Eleventh Circuit found the portion of an ordinance allowing a 50 foot buffer zone around a private residence related to loitering violated the First Amendment. 

The ordinance provision, amending § 62-77, provided:

A person regularly residing in a ‘dwelling unit’, as that term is defined in Section 62-79, may post a ‘no loitering’ sign on the property of such residence in which the person regularly resides, and an officer of the City may enforce this section against any person remaining in a public area, including a park, sidewalk, street, public right-of-way, after the sign is posted, who loiters, stands, sits, or lies before or about the dwelling unit on which property the ‘no loitering’ sign is posted, or remains on public property within a buffer area as defined in Section 62-79, of fifty (50) feet from the property line of such residence.

The opinion by Judge Gerald Tjoflat (who has been a circuit court judge since 1975) reasoned that while the provision may look content neutral, it allowed private persons to prohibit speech in public fora for content or viewpoint reasons. 

Jack Kerouac's House, near [in] Winter Park, Florida via

Further, there was "immense discretion." 

The amount of discretion § 62-77 provides is alarming. Private citizens are permitted to have the City regulate speech on traditional public fora for any reason. Additionally, § 62-77 provides no standards for enforcement, leaving City officers free to enforce the prohibition on the basis of the content or viewpoint of an individual’s speech. We therefore hold that § 62-77 is unconstitutional.

While reversing the district judge on this issue, the court did affirm the judge and uphold the constitutionality of another subsection of the ordinance, prohibiting "any person or persons to picket, protest or conduct any picketing or protesting activity within a buffer area of 50 feet from the property line of any dwelling unit in the City of Winter Park."  As the Eleventh Circuit panel correctly noted, this provision of the ordinance was "nearly on all fours" with Frisby v. Schultz, (1988). The Court in Frisby valued the "well-being, tranquility, and privacy of the home” and construed the law as a valid time, place, and manner regulation.

The court's distinction between "loitering" and "picketing" is a careful and noteworthy one.

Minnesota Supreme Court Reverses Conviction for Advising or Encouraging Suicide

Steven D. Schwinn, John Marshall Law School

The Minnesota Supreme Court yesterday reversed a conviction for advising or encouraging another in committing suicide, ruling that the conviction violated the First Amendment.  At the same time, the court remanded the case to determine whether the defendant "assisted" suicides in violation of Minnesota law.

The case, Minnesota v. Melchert-Dinkel, involved the defendant's prosecution and conviction for violation of Minnesota Stat. Sec. 609.215, which makes it illegal to "intentionally advise[], encourage[], or assist[] another in taking the other's own life."  Melchert-Dinkel, posing as a depressed and suicidal young female nurse, responded to posts on web-sites related to suicide and encouraged two individuals, one in England and one in Canada, to take their own lives.  Melchert-Dinkel gained the trust of the victims and then urged them each to hang themselves, falsely claiming that he (as she) would also commit suicide.

Melchert-Dinkel was charged with violating Minnesota's ban on advising or encouraging suicide.  The trial court convicted him, specifically finding that he "intentionally advised and encouraged" both victims to take their own lives, and concluded that Melchert-Dinkel's speech was not protected by the First Amendment.

The Minnesota Supreme Court disagreed.  The state high court said that the ban swept too broadly to meet strict scrutiny.  In particular, "advise" and "encourage" could include "speech that is more tangential to the act of suicide and the State's compelling interest in preserving life," even "general discussions of suicide with specific individuals or groups."

The court rejected the state's argument that Melchert-Dinkel's speech was unprotected because it was "integral to criminal conduct."  The court noted that suicide is no longer illegal in Minnesota, Canada, or the UK.  With no underlying criminal conduct, the speech couldn't be integral to it.

The court also rejected the state's argument that Melchert-Dinkel's speech was unprotected incitement.  That's because there was no underlying lawless action, imminent or not.

Finally, the court rejected the state's argument that Melchert-Dinkel's speech was unprotected "deceit, fraud, and lies."  The court (citing Alvarez) said that there was no such exception to the First Amendment.

At the same time, the court ruled that the portion of the statute that banned "assisting" another in taking his or her own life survived.  The court remanded the case to the trial court to determine whether Melchert-Dinkel's actions constituted "assisting" in the suicides.

District Judge Orders Election Commission to Include Proof of Citizenship on Federal Form

Steven D. Schwinn, John Marshall Law School

Judge Eric Melgren (D. Kansas) today ordered the federal Election Assistance Commission to add language to state-specific instructions on the federal voter registration form for Arizona and Kansas that would require voter registration applicants to show proof of citizenship.

Arizona and Kansas previously announced that they would adopt a two-tier registration system, one for state elections and one for federal elections, in response to the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc.  Recall that in that case the Court ruled that the National Voter Registration Act, which requires states to "accept and use" a uniform federal form to register voters for federal elections, preempted an Arizona law that required state officials to reject any application for registration that wasn't accompanied by proof of citizenship.  The NVRA federal form simply required applicants to aver, under penalty of perjury, that they satisfy state requirements for voter registration.  The Court said that Arizona impermissibly required more.

Arizona and Kansas announced, in response to Inter Tribal Council, that they'd simply adopt a two-tiered system.  That is, they'd continue to "accept and use" the federal form (without additional proof of citizenship) for registration for federal elections, and they'd use their own state form (with an additional requirement for documentary proof of citizenship) for state elections. 

That seemed inefficient (among other things), to say the least.

Now, Judge Melgren's ruling, if upheld, might mean that Arizona and Kansas would ditch their efforts to create the two-tiered system, because they'd get what they want on the federal form--proof of each applicant's citizenship. 

The ruling, if upheld, also invites other states to follow suit and get their own state-specific instructions on the NVRA federal form that would require additional documentary proof of citizenship.  This could create hassles for registration through the federal form, even though a primary goal of that form was to make registration simpler.  If many states did this, they could undermine the ease of registration that the NVRA was designed to promote.

The case, Kobach v. USEAC, grew out of Arizona's and Kansas's requests to the EAC to include state-specific instructions on the federal voter registration form that would require voter registration applicants in those states to show proof of citizenship.  The states' requests came on the heels of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc. 

The Court said that the NVRA preempted Arizona's proof-of-citizenship requirement, but it also said that a state could ask the EAC to add a proof-of-citizenship requirement on the state-specific instructions that accompany the NVRA federal form.

That's exactly what Kansas and Arizona did.  The EAC declined, and the states sued, arguing that the EAC's decision violated the Administrative Procedures Act, among other things.

Judge Melgren agreed.  He ruled that the adding the state-specific instructions on the NVRA federal form (to provide proof of citizenship) could be harmonized with the NVRA (and that the NVRA didn't preempt state law on this point):

But the NVRA does not include a similar clear and manifest prohibition against a state requiring documentary proof of citizenship.  In fact, the NVRA does not address documentary proof of citizenship at all, neither allowing it nor prohibiting it.  Therefore, the Court must find that the NVRA is silent on the subject.  Because Congress has not addressed the same subject as the state law, there is no basis to determine that the NVRA has preempted Arizona or Kansas law on the subject of documentary proof of citizenship.

Moreover, Judge Melgren said that not allowing Kansas's and Arizona's requested instructions would raise serious constitutional questions--that is, whether the NVRA intrudes too much on state authority to set the qualifications of voters for state and federal elections under the Elections Clause.  Judge Melgren wrote that requiring the EAC to include the requested state-specific instructions would avoid this question.

Alabama Justices Chill State Constitution Revisions

Steven D. Schwinn, John Marshall Law School

Alabama Supreme Court Chief Justice Roy Moore and Justice Tom Parker issued advisory opinions to the state legislature last week that said that the legislature's article-by-article approach to amending the state constitution is unconstitutional.

The opinions came after the legislature began an organized effort in 2010 to rewrite the state's 1901 constitution.  That constitution is widely considered an outdated relic crafted to perpetuate white supremacy in the state.  (The document still contains provisions for a poll tax and segregated schools.  It also sharply limits home rule for local governments--so that local governments dominated by African Americans couldn't gain political power.  But that's part of why the document is now so long, and so amended: In order to get anything done at the local level, the state has to change the constitution.)  It's also quite long: with over 800 amendments, it's the longest constitution in the United States, and one of the longest in the world.

The constitution allows for amendment by way of the state legislature and Alabama voters.  It also allows for a constitutional convention if the legislature and voters agree to hold a constitutional convention.  Several efforts to overhaul the entire document have failed, however.

So the Constitutional Revision Commission, a panel formed in 2011, began an article-by-article rewrite.

Chief Justice Moore's and Justice Parker's advisory opinions said that the article-by-article approach was an unconstitutional side-step around the requirement for a constitutional convention in order to change the whole document.  Those opinions appear to have chilled the rewrite effort--at least temporarily. 

Here's more from The Gadsden Times, The Ledger-Enquirer, The Anniston Star, and AL.com (and here).