Thursday, May 15, 2014

Rethinking War Powers

Senate Majority Leader Harry Reid told Buzzfeed that he's ready to reconsider the Authorization for Use of Military Force.  The AUMF, enacted just days after the 9/11 attacks, has been cited as legal authorization for a wide range of military actions against al Qaeda and individuals and organizations with links to al Qaeda.  Reid's critique isn't new--Members of Congress on both sides have voiced criticism of the broad language in the AUMF in recent years, and have introduced legislation to repeal it--but it may lend some urgency and priority to the issue.

At the same time, Senators Kane, McCain, and King are rethinking Congress's role in war more generally.  They introduced legislation earlier this year to repeal the War Powers Resolution and replace it with a requirement that the President consult with a new Joint Congressional Consultation Committee, comprised of House and Senate leadership and certain committee chairs and ranking  members, "regarding significant matters of foreign policy and national security" and "[b]efore ordering the deployment of members of the Armed Forces into significant armed conflict."  The bill would exempt from the prior consultation requirement certain emergency actions, "[l]imited acts of reprisal against terrorists or states that sponsor terrorism, humanitarian missions, "covert operations," and rescue missions for U.S. citizens overseas.  The bill prescribes a streamlined process for Congress to approve or disapprove of military action in the absence of a declaration of war or authorization for use of military force.  (The Senate has taken no action on the measure.)

According to the findings, the new procedures are necessary because the War Powers Resolution isn't working, and to create "a constructive means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict . . . ."  According to the findings, the political branches need to figure out a way to work these issues out, because the courts aren't helping:

Past efforts to call upon the judicial branch to define the constitutional limits of the war powers of the executive and legislative branches of government have generally failed because courts, for the most part, have declined jurisdiction on the grounds that the issues involved are "political questions" or that the plaintiffs lack standing.

May 15, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2014

D.C. Circuit Dodges Export Clause Claim, Allows Coal Tax, for Now

The D.C. Circuit ruled yesterday in Coal River v. Jewell that a coal company couldn't challenge a Department of Interior regulation imposing a fee on coal at the point of sale under the Export Clause.  The ruling means that the Interior regulation stays in place for now, and probably for good.

The case inolves a federal fee on coal extraction under the Reclamation Act.  Congress designed the fee, determined by the weight of extracted coal, to fund the restoration of land damaged by coal mining.  The Department of Interior, recognizing that coal at the point of extraction contains rocks and other non-coal debris (and thus weighs more than the coal alone), issued regulations imposing the fee on coal at the point of sale (after the weighty debris is removed).  The result of the Interior regulations is to impose a fee that is lower than it would have been at the point of extraction (because the coal weighs less at the point of sale than at the point of extraction).

Still, coal companies sued, arguing that the Interior regs violated the Export Clause.  That Clause says that "No Tax or Duty shall be laid on Articles exported from any state."

In an earlier round of litigation, the Federal Circuit used the canon of constitutional avoidance and rejected the challenge, interpreting the statutory phrase "coal produced" as referring to coal extracted and the regulation as a fee imposed on extraction but at a later date.

In this round, Coal River, a new coal company, sued in the D.C. District and appealed to the D.C. Circuit, seeking to create a split between the D.C. and Federal Circuits. 

The D.C. Circuit didn't bite.  It ruled that Coal River's suit was untimely.  That's because the Reclamation Act requires all challenges to regulations promulgated under the Act must be brought within sixty days of the rule's promulgation.  The court said that Coal River didn't satisfy a statutory "safety valve" that allowed later suits under certain circumstances.

The court said, however, that Coal River could bring this same suit in the Court of Federal Claims later, after Interior actually imposes the regulation and fee on it.  But that case would almost surely meet the same fate as the earlier case, where the Federal Circuit interpreted the regulation to impose a fee on extraction collected at a later date.

May 14, 2014 in Cases and Case Materials, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Massachusetts High Court Says Pledge Does Not Violate Equal Protection

The Supreme Judicial Court of Massachusetts ruled last week that the daily recitation in school classrooms of the Pledge of Allegiance, with the words "under God," did not violate the state constitutional equal rights amendment.   The case, Doe v. Acton-Boxborough Regional School District, was brought by a group of atheist and Humanist students, who claimed that the words "under God" alienated them and caused them to become outsiders because of their religion.  (The plaintiffs only argued equal protection; they did not bring a religion clause claim.)

The Massachusetts high court rejected the argument.  It said that the Pledge was voluntary; that reciting the Pledge was a "patriotic exercise," not a "religious exercise," even with the words "under God"; and that in any event the plaintiffs didn't show that they had been treated differently because of their religion.  On that last point, the court said that the practice or reciting the Pledge treated all students the same: each student, regardless of religion, could say it along with the rest of the class, or not.  Here's the court:

Where the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religion rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion.  [Citing Harris v. McRae and San Antonio v. Rodriguez.]  Where the program or activity is applied equally to all students, and where those who object to it are not required to participate, or may choose to participate in all parts of it that they do not find objectionable, the feeling of "stigma" caused by seeing or hearing the program being provided to others is not legally cognizable for purposes of the equal rights amendment.  Any claim that, by conducting the program or activity for others who do not choose to participate, the school has publicly repudiated a plaintiff's beliefs and thereby rendered him or her a "second-class citizen" or "outsider" is not tenable, and we decline to apply [state constitutional equal protection] in this fashion.

May 13, 2014 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Idaho Federal Judge Declares State Ban on Same-Sex Marriage Unconstitutional

In a 57 page opinion today in Latta v. Otter, federal judge Candy Wagahoff Dale concluded that Idaho's statutory and state constitutional bans on same-sex marriage violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment and issued a permanent injunction.  (Judge Candy Dale is the Chief Magistrate Judge of the District of Idaho).

The judge was well aware of joining the trend of recent decisions finding state laws banning same-sex marriage unconstitutional, writing that the principle of judicial protection of "fundamental rights" regardless of majoritarian concerns

  Idaho_population_mapresonates today, as 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case. Considering many of the same arguments and much of the same law, each of these courts concluded that state laws prohibiting or refusing to recognize same-sex marriage fail to rationally advance legitimate state interests. This judicial consensus was forged from each court’s independent analysis of Supreme Court cases extending from Loving through Romer, Lawrence, and Windsor. The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage. Because Idaho’s Marriage Laws do not withstand any applicable form of constitutional scrutiny, the Court finds they violate the Fourteenth Amendment to the United States Constitution.

The passage includes a footnote citing all the federal cases (but not the state judge in Arkansas just last week or the New Mexico Supreme Court).  Judge Dale also includes a quotation from Justice Scalia: "But ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601 (Scalia, J., dissenting)," in support of her conclusion that the constitutional amendment approved by the voters was motivated by animus. 

In one unique aspect, Judge Dale specifically considered SmithKline Beecham Corporation (GSK) v. Abbott Laboratories, a unanimous panel of the Ninth Circuit in January that extended the equal protection rule and analysis of Batson v. Kentucky (1986) regarding juror exclusions to those based on sexual orientation.  Judge Dale specifically found that the  "SmithKline’s examination of Windsor is authoritative and binding upon this Court" and that:

In this Court’s view, SmithKline establishes a broadly applicable equal protection principle that is not limited to the jury selection context.

On the whole, although Judge Dale repeatedly finds marriage to be a fundamental right, the opinion ultimately contends that the same-sex marriage bans fail to satisfy even the lowest rational basis review.

Judge Dale did not issue a stay, but given the effective date of the injunction as Friday, May 16, there are sure to be stay requests.

May 13, 2014 in Current Affairs, Due Process (Substantive), Equal Protection, Family | Permalink | Comments (0) | TrackBack (0)

Abe to Reinterpret Japan's Pacifist Constitution

Japanese Prime Minister Shinzo Abe plans to change Japan's pacifist constitution--not by amending it, but by reinterpreting it.

Abe is expected to announce a plan to amend several laws that would allow the Japanese Self-Defense Forces to engage in collective self-defense, that is, military defense of allied countries even when Japan is not directly threatened.  This will mark a shift in the role of Japan's military overseas, which is currently limited to non-combat peacekeeping duties under Article 9 of the Constitution.  Article 9 reads:

Renunciation of War.  Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained.  The right of belligerency of the state will not be recognized.

Abe's plan is designed to sidestep the more cumbersome constitutional amendment process.  But it has drawn critics: a high-profile group of scholars and writers have denounced the plan, and there's a campaign afoot to get Article 9 (the traditional, pacifist version) on the Nobel Committee's radar screen for the Peace Prize as a way to push back against Abe's reinterpretation.

If successful, Abe's plan would change 60 of practice under Article 9--without a constitutional amendment.

We posted on the issues hereThe Financial Times covered Abe's plan here; The Christian Science Monitor covered it here.

May 13, 2014 in Comparative Constitutionalism, International, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Frontline's United States of Secrets

Frontline airs the first of its two-part series United States of Secrets tonight.  The documentary examines NSA secret surveillance programs developed in the wake of the 9/11 attacks.  There's a clip at the link above, and another here, Inside the NSA the Day After 9/11.

 

May 13, 2014 in Fourth Amendment, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Daily Video: Glenn Greenwald on Colbert Report

Promoting his new book, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State,

NoPLace

Glenn Greenwald appeared on The Colbert Report.

Here's a video excerpt, worth a watch:

Continued here:

 

May 13, 2014 in Books, Current Affairs, First Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, May 9, 2014

Arkansas State Judge Declares Same-Sex Marriage Ban Unconstitutional

In an opinion issued late today in Wright v. Arkansas, Circuit Judge Charles Piazza declared unconstitutional Arkansas Act 144 and Arkansas Amendment 83, both of which define marriage as limited to one man and one woman.  The decision rests on the  Fourteenth Amendment's Equal Protection and Due Process Clauses, as well as on ARK. Const., art 2 §2, with equality and liberty provisions.  

The relatively brief opinion - - - 13 pages single spaced - - - tracks familiar ground, highlighting Windsor v. United States and the post-Windsor cases, emphasizing Kitchen v. Herbert and Bishop v. United States.  Judge Piazza also points to Justice Scalia's dissenting language as other cases have done; Judge Piazza bolsters his finding that "tradition" is not a legitimate state interest by stating:

And, as Justice Scalia has noted in dissent, " 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).

741px-Collier's_1921_Arkansas
Judge Piazza also confronts possible charges of judicial activism with a reference to Dred Scott v. Sandford (1856), including an extensive quote from Justice Taney's opinion, before moving onto Loving v. Virginia and Griswold v. Connecticut.  He also relies on Arkansas' precedent:

The Arkansas Supreme Court has previously addressed the right to privacy as it involves same-sex couples. ln Jegley v. Picado, the Arkansas Supreme Court struck down the sodomy statute as unconstitutional in violating Article 2, §2 and the right to privacy. 349 Ark. 600, 638 (2002). Justice Brown, in Arkansas Dep't of Human Services v. Cole, noted "that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution." 2011 Ark. 145, 380 S.W. 3d. 429, 435 (2011) (citing Jegley, id. at 632). The Arkansas Supreme Court applied a heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex couples from adopting children. Id at 442. The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex families is within the privacy of their homes.

The judge did not stay the opinion; it may be that some attorneys for the state of Arkansas will have a very busy weekend.

{UPDATE here}

May 9, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Seventh Circuit Stays Ruling Enjoining Wisconsin Investigation

The Seventh Circuit yesterday stayed Judge Randa's ruling preliminarily enjoining further criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe.  We posted on Judge Randa's ruling here.

The Seventh Circuit said that because the defendants filed a notice of appeal before Judge Randa issued his injunction, Judge Randa had to show that the appeal was frivolous before acting.  This he did not do.  Here's from the short opinion:

Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), holds that, once a litigant files a notice of appeal, a district court may not take any further action in the suit unless it certifies that the appeal is frivolous.  The district court failed to follow that rule when, despite the notice of appeal filed by several defendants, it entered a preliminary injunction.  This court accordingly stays the injunction, and all further proceedings in the district court, until the judge has ruled definitively on the question posed by Apostol.

The ruling puts the ball back in Judge Randa's court, allowing him to certify that the appeal is frivolous and resume the case there.  If he does not, then proceedings in the district court are stayed pending appeal on the merits.

The Seventh Circuit also stayed the portion of Judge Randa's ruling that required the defendants to return or destroy documents "as long as proceedings continue in this court." 

May 8, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Sheryll Cashin's "Place Not Race"

CashinConLawProf Sheryll Cashin's new book, Place Not Race: A New Vision of Opportunity in America is just out. In it, Cashin looks at the demise of affirmative action presaged by Supreme Court cases such as this Term's Schuette and last Term's Fisher v. UT, and argues that substituting "place" for "race" in diversity admissions "will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders."

Here's a bit from a longer excerpt on abc:

Race-based affirmative action buys some diversity for a relative few, but not serious inclusion. It doesn’t help to build a movement to attack underlying systems of inequality that are eating away at the soul of our nation. Among other transformations, we need corporations that share more profits with workers and pay them equitably. We need a financial system that doesn’t exploit average people. We need governments that invest wisely in pre-K-12 education and the nonselective higher education that at least half of high school graduates attend. We also need government that does not over-incarcerate high school dropouts of all colors.

Cover

Cashin contends that "race" is both over-inclusive and under-inclusive, an analysis that will be familiar to anyone in the affirmative action cases employing strict scrutiny.  But Cashin's slant is different.  For Cashin, it isn't necessarily that we are post-racial.  Instead, "given our nation’s failure to live up to Brown, we have an obligation to acknowledge and ameliorate the injustices of segregation—a moral imperative more important than diversity itself."

An interesting read for anyone considering affirmative action, race, and equality.

May 8, 2014 in Affirmative Action, Books, Equal Protection, Fourteenth Amendment, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 7, 2014

District Court Halts Wisconsin Political Spending Investigation

Judge Rudolph T. Randa (E.D. Wis.) this week granted a preliminary injunction against a criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe.  The criminal investigation sought information related to WCFG's coordination with Governor Walker's campaign committee and other 501(c)(4) groups, in violation of Wisconsin law, to promote the passage of Wisconsin Act 10, Governor Walker's (successful) effort to sharply restrict union strength in the state (among other things).  Judge Randa's ruling means that the investigation must stop, at least for now.

The ruling is just the latest chapter in a long-running story involving Wisconsin Act 10, Governor Walker, and advocacy (and spending) around both. 

Judge Randa ruled that the investigation violated free speech, because it "was commenced and conducted 'without a reasonable expectation of obtaining a valid conviction.'"  According to Judge Randa, that's because it was based on an interpretation of Wisconsin law that would have banned coordination on issue advocacy (and not candidate contributions)--something that the First Amendment does not allow.

Judge Randa said that WCFG's issue advocacy was core political speech, and that its coordination with other 501(c)(4)s, and even with the Friends of Scott Walker, did not raise any risk of quid quo pro corruption.  Therefore the state could not criminalize it.

Judge Randa rejected the defendants' argument that WCFG's coordination with Governor Walker's campaign created a quid pro quo problem.  He said that that approach "would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption."  He said WCFG simply held the same views that Governor Walker already held, and that therefore there was no risk of corruption.

Judge Randa cited McCutcheon throughout and made a special point of quoting Justice Thomas's concurrence on Buckley's demise:

Buckley's distinction between contributions and expenditures appears tenuous.  As Justice Thomas wrote, "what remains of Buckley is a rule without a rationale.  Contributions and expenditures are simply 'two sides of the same First Amendment coin,' and our efforts to distinguish the two have produced mere 'word games' rather than any cognizable principle of constitutional law."  Even under what remains of Buckley, the defendants' legal theory cannot pass constitutional muster.  The plaintiffs have been shut out of the political process merely by association with conservative politicians.  This cannot square with the First Amendment and what it was meant to protect.

Op. at 25.

May 7, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Michele Gilman on the "Court for the One Percent"

If the defining issue of the United States is inequality, how is the nation's highest Court addressing that issue? 

According to Michele Gilman's new article, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, forthcoming in the Utah Law Review and available on ssrn, the Court is decidely part of the problem rather than part of the solution.

Gilman
Professor Michele Gilman

Gilman's article is valuable because it traverses several different doctrinal areas.  Obviously, she discusses Citizens United.  But - - - refreshingly - - - she argues that "Citizens United is just one piece of a larger problem."  She contends that this problem did not begin with the Roberts' Court, as her discussions of Harris v. McCrae, San Antonio Independent School District v. Rodriguez, and Dandridge v. Williams illustrate.  Ultimately, she suggests that the Court stands in the way of addressing inequality because the legislative and policy suggestions that have worked in other "affluent democracies" will be deemed unconstitutional in the United States:

We currently have a Court majority that is not only unsympathetic to inequality arguments, but also seemingly oblivious to (or skeptical of) the connection between government policies and market outcomes. The Court has ruled that it is up to the legislative branch, rather than the Courts, to remedy economic inequality. Yet, the Court has doomed legislative enactments that would ameliorate inequality, such as desegregation plans, campaign finance reforms, and consumer protection laws. Conversely, when legislatures enact policies that tend to worsen economic inequality or magnify its effects, the Court defers, such as school financing laws and voter identification requirements. In short, the Court’s rulings consistently sustain policies that create or maintain economic inequality.

Gilman has some explanations for this state of affairs, but, more importantly, she proposes a proactive five point plan of change.   This important article is worth a read.

May 7, 2014 in Equal Protection, Fourteenth Amendment, Race, Recent Cases, Reproductive Rights, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

New Hampshire Supreme Court: Vanity License Plate "Not Offensive to Good Taste" Requirement Violates First Amendment

Relying on its state constitution, the New Hampshire Supreme Court's opinion today in Montenegro v. New Hampshire DMV held that the regulation prohibiting vanity license plates that are "offensive to good taste" was unconstitutional.

David Montenegro, who represented himself, appealed an order denying him a vanity registration plate reading "COPSLIE" and argued that the "offensive to good taste" exclusion in the regulation violated his speech rights under Part I, Article 22, New Hampshire Constitution as well as the First Amendment. 

New_Hampshire_License_Plate

The unanimous court considered the relationship between vagueness and overbreadth, which it contended may certainly overlap, but ultimately settled on vagueness.  The court ultimately concluding that

Because the "offensive to good taste" standard is not susceptible of objective definition, the restriction grants DMV officials the power to deny a proposed vanity registration plate because it offends particular officials’ subjective idea of what is “good taste.”

This vague standard thus violated the New Hampshire guarantee of free speech according the supreme court.

From the news report, Montenegro seems as "colorful" as his predecessor George Maynard, whose challenge to New Hampshire's "live free or die" motto on its license plates was resolved by the United States Supreme Court in Wooley v. Maynard (1977).  And this case will take its place in developing "license plate jurisprudence":  the "infidel" license plate denial; the unsucessful challenge to the Native American image on the Oklahoma license plate; and the unconstitutional "choose life" license plate offering.

May 7, 2014 in Due Process (Substantive), First Amendment, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, May 5, 2014

Speech the Justices Agree With

Supreme Court justices are opportunistic supporters of free speech, according to a study by Profs. Lee Epstein (Southern California/Washington University), Christopher M. Parker (Centenary College), and Jeffrey A. Segal (Stony Brook), reviewed by Adam Liptak in the NYT.  That is, "liberal (conservative) justices are supportive of free speech when the speaker is liberal (conservative)."

The study looked at 516 free speech cases from 1953 to 2011, "from Hugo Black to Elena Kagan," involving "liberal" and "conservative" speech and concluded that "the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker." 

Among sitting justices, the study found that Justice Scalia had the largest gap between votes for liberal and conservative speech, followed closely by Justice Thomas. 

The liberals "present a more complex story."  The study found that the gap for Justice Ginsburg was small, and for Justice Breyer "negligible."  The study did not include Justices Sotomayor and Kagan, due to lack of meaningful data.

May 5, 2014 in First Amendment, News, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Divided Supreme Court Finds Town Board Prayer Does Not Violate Establishment Clause

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


In a sharply divided opinion today in Town of Greece v. Galloway, the United States Supreme Court has decided that religious prayers at the beginning of a town board meeting do not violate the Establishment Clause.

Recall that the Second Circuit had concluded that the Town of Greece's practice of prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity." At oral argument, the discussion centered on an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer, and the question of whether the "town board" a "hybrid" body making adjudicative findings as well as engaging in legislative acts.  Recall also that the Obama administration filed an amicus brief in support of the Town of Greece.

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The Virgin Orans ("praying" in Greek) via

Writing for the majority - - - except for Part II-B in which Justices Scalia and Thomas did not join - - - Justice Kennedy concluded that there was no Establishment Clause violation based upon Marsh v. Chambers.  First, the majority opinion held that Marsh v. Chambers does not require nonsectarian or ecumenical prayer.  Instead, it is acceptable that while a

number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a “spirit of cooperation” among town leaders.

Additionally

Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissi­ ble government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the con­tents of a single prayer.

In the plurality section, Justice Kennedy rejected the relevance of the "intimate setting of a town board meeting" to a finding that the prayer "coerces participation by nondaherents."  Rather, the principle audience for the prayers "is not, indeed, the public but lawmakers themselves."  The analysis, Kennedy writes, "would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person's acquiescence in the prayer opportunity."

Justices Thomas and Scalia did not join Part II-B; they essentially reject the coercion test ("peer pressure, unpleasant as it may be, is not coercion").  Justice Thomas also (as he has done in the past) rejects the incorporation of the Establishment Clause to the states, and certainly to a municipality.

In the major dissent authored by Justice Kagan - - - joined by Justices Ginsburg, Breyer (who also authored a separate dissent) and Sotomayor - - -the emphasis is on the factual record.  Kagan distinguishes Marsh v. Chambers and argues the situation in the Town of Greece is outside its "protective ambit." 

the chaplain of the month stands with his back to the Town Board; his real audience is the group he is facing— the 10 or so members of the public, perhaps including children. And he typically addresses those people, as even the majority observes, as though he is “directing [his] congregation.”  He almost always begins with some version of “Let us all pray to­ gether.”  Often, he calls on everyone to stand and bow their heads, and he may ask them to recite a common prayer with him.  He refers, constantly, to a collective “we”—to “our” savior, for example, to the presence of the Holy Spirit in “our” lives, or to “our brother the Lord Jesus Christ.”  In essence, the chaplain leads, as the first part of a town meeting, a highly intimate (albeit relatively brief) prayer service, with the public serving as his congregation.

[citations omitted].

Further, Justice Kagan writes, "no one can fairly read the prayers from Greece’s Town meetings as anything other than explicitly Chris­tian—constantly and exclusively so."   Because of these practices, she concludes, the Town of Greece has "betrayed" the "promise" of the First Amendment: "full and equal membership in the polity for members of every religious group."

The Supreme Court's divided opinion illustrates that religion in the town square - - - or the town board meeting - - - remains divisive.

May 5, 2014 in Establishment Clause, First Amendment, Fourteenth Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, May 2, 2014

Sixth Circuit Upholds Law Requiring Candidate Petition Circulators to Disclose Employers

The Sixth Circuit affirmed the denial of a preliminary injunction against an Ohio law that requires candidate petition circulators to disclose their employers against a First Amendment challenge.  The ruling in Libertarian Party of Ohio v. Husted means that the requirement stays on the books through the primary election on Tuesday, and that candidates of the plaintiff Libertarian Party of Ohio (LPO) will not appear on that primary ballot.  This in turn means that those candidates won't appear on the general election ballot, and that therefore the LPO will likely not receive the required number of votes in the general election to retain its recognition as a political party in Ohio.

This, in turn, means that the LPO will likely have to re-qualify as a political party in Ohio.  That's no easy task: it would have to get more than 38,500 signatures from at least one-half of the congressional districts in the state, meeting the very petition requirement (and others) that was at issue in this case.

The case involves Ohio's requirement that petition circulators--in this case, candidate petition circulators--disclose their employer on the petition form.  The LPO challenged that requirement, arguing that it violated the First Amendment on its face, after its petition circulator failed to disclose, causing the state to discard those petitions (and causing the candidates not to appear on the primary ballot).

The Sixth Circuit disagreed.  The court applied the "exacting scrutiny" test for disclosure requirements and determined that the strength of the governmental interest reflected the seriousness of the burden on First Amendment rights.  In particular, the court said that Ohio's requirement has but a "scant" chill on First Amendment freedoms.  Op. at 18.  On the other hand, the court said that the state's interest in the requirement is "substantial and legitimate."  Op. at 20.  That interest is in combating fraud in candidate petition circulation--a problem that came to a head, according to the court, during the circulation of petitions for Ralph Nader in the 2004 presidential election.

The court distinguished Buckley v. American Constitutional Law Foundation, Inc., where the Supreme Court struck a Colorado law requiring paid circulators to wear identification badges stating their names and their employers' names and phone numbers.  The court said that ACLF involved an initiative campaign, where this case involved a candidate petition (where the risk of corruption is higher); that the ACLF record contained no evidence that paid circulators were more apt to commit fraud than volunteers, but where this record contains that evidence; that the Colorado law required more disclosure of information; and that Colorado had other measures to deter fraud and diminish corruption.

The court also distinguished McIntyre v. Ohio Elections Commission, where the Supreme Court struck an Ohio law that prohibited the distribution of campaign literature that did not contain the name and address of the person or campaign offiical issuing it.  The court said that the Ohio law in McIntyre outlawed an entire category of speech (anonymous political speech), where the Ohio circulator requirement only required disclosure.

The court also ruled that the LPO did not establish a substantial likelihood of success on the merits of its due process (vagueness) challenge to the requirement.

The court recognized the practical significance of its ruling for the LPO:

Without a gubernatorial candidate on the general election ballot . . . the LPO in all likelihood will lose its status as a ballot-qualified party in Ohio.  We note that the LPO has struggled to become and remain a ballot-qualified party in Ohio, and we acknowledge that this decision entails that their efforts must continue still.  But we also note that we decide one case at a time, on the record before us.  In so doing, we preserve the First Amendment's primary place in our democracy over the long run.

May 2, 2014 in Cases and Case Materials, First Amendment, News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Getting it Wrong: Even Supreme Court Justices Do It and What that Means for Grading Students

Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes. 

But at the end of this semester,  a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.

From the original opinion, here's the passage in Justice Scalia's dissent:

[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca­tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re­spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmak­ing—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .

[emphasis added]

And from the current opinion, here's the corrected passage:

[Section] D. Our Precedent

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.

[empasis added]

Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it.  Indeed, the EPA opposed considering costs in Whitman v. American Trucking.  

DeweydefeatsThe mistake has attracted attention: TPM labels  it an "epic blunder,"  Salon calls it an "embarrassing error," and WSJ says it was "cringeworthy" and "unusually glaring."

Why the mistake?  Blame law clerks or sloppiness.  Recite "to err is human."  Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.

But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted. 

 

May 1, 2014 in Courts and Judging, Current Affairs, News, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)