Constitutional Law Prof Blog

Sharply Divided Court Takes Another Shot at Public Sector Fair Share

Steven D. Schwinn, John Marshall Law School

A sharply divided Supreme Court ruled today in Harris v. Quinn that a state cannot require nonunionized home-healthcare workers, or personal assistants, in the state's Medicaid program to pay "fair share" union dues.  The majority held that a fair-share-dues requirement for non-union members violates their First Amendment association rights.

The ruling is a victory for non-unionized home-healthcare workers, and for anti-union types generally.  But on the other hand, the ruling did not go as far as it might have in striking public sector fair share requirements.  The majority took another shot at public sector fair share requirements (it earlier took a shot in Knox), prompting the dissent to go to great lengths to defend the constitutionality of those requirements, and setting up those requirements (yet again) for reconsideration.

In other words, the majority strongly criticized Abood, but did not overrule it.  The dissent vigorously defended it.  We can expect more challenges, with the Court moving to overturn it.  (Abood held that a state may require fair share fees for non-union members in a public sector union in the interests of preventing free-riding and labor peace.)

We posted most recently on the case here.

The majority (penned by Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas) held that personal assistants were not full state employees--they're supervised principally by the individual clients they serve.  Moreover, state law limits the union's role in representing them.  As a result, the Court said that Abood's rationales don't apply, and declined to "extend" Abood.  The Court applied "exacting scrutiny" and held that the state fair-share requirement failed.

The dissent (penned by Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor) disagreed that personal assistants were different than public employees for Abood purposes.  Dissenters would have applied Abood in a straightforward way and upheld the state fair-share requirement. 

But while the majority and dissent jousted over the status of personal assistants (in relation to public employees in Abood)--and while the majority ultimately hung its hat on its distinction between public employees and personal assistants--it was clear that the real struggle is over Abood itself.  The majority left it hanging (once again) by a thread, while the dissent vigorously defended it. 

As in Knox, the majority opinion here begs for another case, another chance to overturn Abood--a move that would strike a very serious blow to public sector unions.  In the meantime, it continues to chip away at Abood's foundation, planting time bombs in Harris and Knox that it will use whenever it gets the next case that puts Abood squarely within its range. 

Until that time comes, however, Abood stays on the books.  And public sector fair-share requirements survived again, even if bruised and battered.

Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"

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

On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act)  to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage?  Here's our primer on the issues for more detail.  Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results. 

The oral arguments  in March were contentious and so too are the opinions in this 5-4 decision. 

The majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim.  The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.

The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.

Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong.  However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.

 Justice Kennedy writes a brief concurring opinion.  As we discussed,  Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.

 The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg,  joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons).  The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of  "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."  Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.”  I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.

Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.”  Counsel for Hobby Lobby was similarly noncommittal.

[citations and footnotes omitted].

Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."

However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.

[image via]

Seventh Circuit Grants Stay of Indiana Same-Sex Marriage Order

In an order this evening, a Seventh Circuit panel - - - Judges Posner, Williams, and Hamilton - - -has granted the emergency motion for stay pending appeal and issued a stay in Baskin v. Bogan. 

As we discussed on Wednesday, United States District Judge Richard Young in Baskin v. Bogan permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states.

Third Circuit on Statute of Limitations in Establishment Clause Challenges

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

Here's the problem:

In August 2008, a municipality erected a sign "Bible Baptist Church Welcomes You!," with a directional arrow and “1 BLOCK” written on it, and depicting a gold cross and a white Bible, on a right of way bordering a property owner's property.  The property owner engaged in a bit of her own speech, on her own property, posting a sign of her own directly in front of the church sign which read "This Church Sign Violates My Rights As A Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned For Advertisement Signs!”  The municipality threatened the property owner with sanctions for her sign, which she removed.  The propery owner filed a complaint pursuant to 42 USC §1983 in federal court in November 2012 alleging constitutional violations by the municipality based on the church sign, which remains standing, and her own offending sign, which she had removed.  The state statute of limitations for tort claims is two years.

Downtown Shickshinny, Pennsylvania via

The Third Circuit's opinion in Tearpock-Martini v. Borough of Shickshinny addressed exactly this problem.  The complaint alleged that the "church sign" violated the Establishment Clause, while the threats to prosecute plaintiff for erecting her own sign violated both the Equal Protection Clause and the First Amendment.   Generally, because §1983 does not have a statute of limitations,  state law provides the applicable time limitations.  The district judge dismissed the complaint based on the statute of limitations because the actions occurred more than two years prior to the filing of the complaint.  Reversing on the Establishment Clause claim only, the Third Circuit found that the state statute of limitations did not bar the claim.

The plaintiff's attorney argued that the two year statute of limitations for the church sign should be viewed as a "continuing violation."  As the court noted, this is more often part of a statute of limitations inquiry in an employment discrimination case: "where only in retrospect will a plaintiff recognize that seemingly unconnected incidents were, in fact, part and parcel of a larger discriminatory pattern."  But here, the court accepted the municipality's argument that the continuing violation doctrine does not apply because the sign "is merely an effect" of the action  - - - erecting the sign - - -that was within the statute of limitations.

But the Third Circuit found that the state's two year statute of limitations was inapplicable because although §1983 does not have a statute of limitations and state law provides the pertinent time limitations, this is true only "if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261 (1985).  The Court found that Establishment Clause rights are very important and that while other constitutional rights are also important

what further distinguishes Tearpock-Martini’s claim, and Establishment Clause claims in general, is that the traditional rationales justifying a limitations period—“to protect defendants against stale or unduly delayed claims,” “facilitat[e] the administration of claims,” and “promot[e] judicial efficiency,” [citation omitted] —simply have no persuasive force in this context. Tearpock-Martini’s challenge is to a still- existing monument that communicates anew an allegedly unconstitutional endorsement of religion by the government each time it is viewed. Strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display.

Moreover, the Third Circuit noted that it could not find any precedent for finding an Establishment Clause challenge time-barred in a passive monument case, and indeed the cases were the opposite, citing, most persuasively, Van Orden v. Perry, 545 U.S. 677 (2005) (display of Ten Commandments challenged 40 years after installation).

 The Third Circuit's conclusion seems exactly right: how can there be a statute of limitations on an Establishment Clause violation of a passive monument?  However, in this case, because this particular plaintiff knew about the sign, and even objected to it, one could have expected her to act more quickly.  Yet the very notion of an Establishment Clause violation caused by a still existing monument or even sign is that it is a continuing one.

United States Supreme Court Declares Massachusetts' Buffer Zone Unconstitutional in McCullen v. Coakley

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

A unanimous Court, albeit in separate opinions, found the Massachusetts statute imposing a 35 foot buffer zone around places where abortions are performed violates the First Amendment in its opinion in McCullen v. Coakley,  reversing the First Circuit.

Writing for the Court, Chief Justice Roberts - - - who, unusually, did not ask any questions during the oral argument - - -found that the statute was not subject to strict scrutiny because it was content and viewpoint neutral, despite arguments to the contrary.  However, the Court found that the statute failed the so-called "time, place, and manner" test articulated in  Ward v. Rock Against Racism, 491 U. S. 781 (1989).   The Court's opinion - - - joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan - - - concluded that the statute burdened more speech than necessary and was not sufficiently closely tailored.  In large part, this was based on the statute's exceptional coverage of public streets and sidewalks.  It was also based on the specific petitioners in the case, who are not "protesters," but people who "attempt to engage women approaching the clinics in what they call 'sidewalk coun­seling,' which involves offering information about alternatives to abortion and help pursuing those options." Further, the Court articulated other less restrictive means available to Massachusetts, including targeted injunctions, and found that the record did not support the need for Massachusetts' sweeping approach.  As the Court concluded:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi­ tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.

Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, criticizes the Court's opinion as one

that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily—or at least unnecessarily insofar as legal analysis is concerned.

Justice Alito, wrote separately but briefly to express his belief that the statute discriminates on the basis of viewpoint.

The takeaway is this: In a unanimous opinion, the Court ruled that Massachusetts went too far in seeking to protect the reproductive rights of women seeking abortions and infringed the First Amendment rights of those who seek to counsel them to change their minds.  The Court's opinion approves more narrow methods governments might use to protect the reproductive rights of women entering clincs.  But four Justices seem inclined to find a violation of the First Amendment in even more narrow government attempts.

The Impact of Noel Canning

Steven D. Schwinn, John Marshall Law School

Richard Trumka, head of the AFL-CIO, put out a statement today in reaction to the Court's ruling in Noel Canning, which struck President Obama's recess appointments to the NLRB.  He said, correctly, that "[t]he impact of today's ruling is far less than it might have been, because there is now a full complement of Senate-confirmed members of the NLRB and a Senate-confrimed NLRB general counsel." 

But there's another reason that the impact of today's decision is less than it might have been: the Senate's limitation on the use of the filibuster.  That limitation, a Senate rules change from last fall, should also blunt today's ruling.  That's because the President won't have to use recess appointments as much to dodge Senate minority obstruction on nominees, because the principle tool for that obstruction, the filibuster, is now limited to legislation and Supreme Court nominees, not executive nominees and lower federal judges.

Sean Higgins at the Washington Examiner makes a similar point, and argues that the ruling today is merely a set-back for unions at the NLRB (because they'll have to relitigate all the cases the NLRB decided with its recess-appointees).  (This applies to other agencies, too, with recess appointees that are invalid under today's ruling.)  The bigger fight, over the filibuster and actual appointees to the NLRB, has already been won by the President.

Court Reads Broad Appointment Authority, but Strikes NLRB Appointees

Steven D. Schwinn, John Marshall Law School

The Supreme Court today in NLRB v. Noel Canning gave a broad reading to the Recess Appointment Clause, but nevertheless struck President Obama's recess appointments to the NLRB, ruling that the Senate was in session.  The ruling means that the NLRB lacked a quorum when it issued an order to Noel Canning, a Pepsi distributor, and that order is invalid.  It's not clear yet how many other offices may be affected by the ruling.  Our oral argument review (with a link to our preview) is here.

The ruling hands a defeat to President Obama in the short run (on the NLRB appointments), and, despite the broad reading of the clause, may hinder presidents in the future.  That's becuase the Court said that the Senate is in session when it says it is, provided that it retains power to act, as it did here.  That means that even when the Senate meets in pro forma sessions, as here, presidential appointments have to follow the usual course and get Senate confirmation (instead of dodging Senate confirmation through the recess appointment mechanism).  As a result, the Senate can frustrate a president's ability to recess-appoint a nominee by going into pro forma sessions (again, with the ability to act), thus forcing a president to gain Senate confirmation (which, as we've seen, may be a difficult or impossible task).

The Court said that any session more than 3 days but shorter than 10 days is presumptively too short to constitute a recess of the Senate and thus to allow a recess appointment.  And again: the Senate gets to say, presumptively, when it's in recess.

As to a recess over 3 days: the Adjournment Clause (Art. I, Sec. 5) allows the House to prevent a recess of the Senate.  This gives even the House the power to block a recess--and recess appointments--for any period over 3 days.  That means that the House could block a recess appointment by denying the Senate consent to recess.

Because the Senate was in session when President Obama made the NLRB appointments--because it said it was, and because it retained power to act, even if it was in pro forma sessions--the Court ruled them invalid.

At the same time, the Court handed the executive branch a victory on its broader reading of the Recess Appointments Clause.  Thus the Court ruled that a "recess" includes both inter-session recesses and intra-session recesses.  It also ruled that "vacancies that may happen during the recess of the Senate" include vacancies that first come into existence during a recess and vacancies that initially occurred before a recess but continued during the recess.

The judgment striking the NLRB appointees was unanimous.  But Justice Scalia wrote a concurrence, joined by Chief Justice Roberts and Justices Thomas and Alito.  Justice Scalia wrote that the majority went too far in reading a broader Recess Appointment Clause and relied too heavily on prior presidential practice:

To reach [its] result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.  The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a dimunition of this Court's role in controversies involving the separation of powers and the structure of government.

Federal District Judge Invalidates Indiana Laws Banning Same-Sex Marriage

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

In his decision today in Baskin v. Bogan, United States District Judge Richard Young permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states, Indiana Code Section 31-11-1-1 (subsections a & b).

After resolving problems of the proper defendant and quickly disposing of the argument that Baker v. Nelson's summary finding by the Supreme Court in 1972 has meaningful precedential value, Judge Young's opinion proceeds along three separate tracks.

First, Judge Young finds that marriage is a fundamental right and therefore the statutory ban on same-sex marriage should be subject to strict scrutiny.  Judge Young concluded that the scope of the fundamental right is not limited, quoting Judge Black's opinion in Henry v. Himes that the United States Supreme Court has not limited this fundamental right in its pertinent cases; the Court  "consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’"  Applying strict scrutiny, Judge Young articulates the state's proffered interest "in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create," but declines to asess it and assumes that it is "sufficiently important interest."  However, Judge Young finds that the state has not demonstrated that the statute is “closely tailored” to that interest, but instead is  "both over- and under-inclusive."

Second, Judge Young analyzes the statute on the basis of equal protection, rejecting the argument that the statute makes a gender classification and concluding that it makes a sexual orientation classification.  While Judge Young contends that while it might be time to "reconsider" whether sexual orientation classifications should be analyzed under rational basis scrutiny, the "court will leave that decision to the Seventh Circuit, where this case will surely be headed."  Applying rational basis scrutiny, however, Judge Young concludes that there is no rational relationship to the interests proffered by the state.

Third, Judge Young independently analyzes subsection b of the statute, applying to recognition.  The judge notes that the "parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages," and thus "the question is whether that difference violates the Equal Protection Clause."  Again, applying rational basis scrutiny, Judge Young concludes:

Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages.

Judge Young's opinion is economical (at 36 pages), well-structured, and well-supported with relevant citations.  Judge Young did not issue a stay of his opinion.  One assumes that such a decision may be sought from the Seventh Circuit.

UPDATE HERE

Tenth Circuit Holds Utah's Same-Sex Marriage Ban Unconstitutional in a Divided Decision

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

In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the

Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.

Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."

In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling.  However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests.  Instead, each of the

justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.

The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion.  The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages. 

The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.

As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage." 

Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part).   Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny.  Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.

More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it  "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.

 If - -  and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines. 

Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,

Unanimous Supreme Court Requires Warrant for Cell Phone Search Incident to Arrest

Steven D. Schwinn, John Marshall Law School

A unanimous Supreme Court today ruled in Riley v. California that officers must obtain a warrant before searching an arrrestee's cell phone incident to arrest.  The ruling deals a blow to law enforcement, to be sure.  But it only means that law enforcement must obtain a warrant before searching a cell phone, or satisfy some other exception to the Fourth Amendment's warrant requirement (like exigent circumstances), before conducting a search of the phone.  In general, this should not be overly difficult, assuming that an officer can meet the requirements for a warrant: an arresting officer need only drop a seized cell phone into a Faraday bag and obtain a warrant for a later search.  Again: the ruling still preserves other exceptions to the warrant requirement, so that officers can search a phone without a warrant if there are exigent circumstances, for example.

The ruling breaks little new ground on Fourth Amendment analysis.  Instead, it applies a familiar framework to a relatively new technology, cell phones.  (The ruling applies to both smart phones and flip phones.)

The Court applied the familiar balancing test, "assessing, on the one hand, the degree to which [the search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests."  Wyoming v. Houghton.  As to government interests, the Court looked to the two recognized interests in a search incident to arrest in Chimel: to remove weapons that threaten officer safety or could be used for escape, and to prevent the destruction of evidence.

The Court said that the government lacked an interest in protecting officer safety or preventing escape, because "a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape."  It said that the government lacked an interest in protecting evidence, because officers can easily protect evidence on a seized cell phone (by turning it off, or putting it in a Faraday bag, to prevent remote wiping, for example).  (The Court said that there was little evidence that destruction of evidence was even a problem.)

On the other side of the balance, the Court recognized the massive storage capacity and vast personal information contained in cell phones, and contained remotely but accessible by cell phones, and said that the search was a significant invasion of privacy, even if diminished in the context of an arrest.

In sum:

On the government interest side, Robinson concluded that the two risks identified in Chimel--harm to officers and destruction of evidence--are present in all custodial arrests.  There are no comparable risks when the search is of digital data.  In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself.  Cell phones, however, place vast quantities of personal information literally in the hands of individuals.  As search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.

Justice Alito wrote a concurrence (for himself alone), arguing that the search-incident-to-arrest rule should be based on the government's interest in "the need to obtain probative evidence," and not the two Chimel interests.  He also called on Congress and state legislatures "to assess and respond to to [technological advances] that have already occurred and those that almost certainly will take place in the future." 

Federal Judge Declares No-Fly List Process Unconstitutional

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

In her  opinion in Latif v. Holder, Judge Anna Brown of the District of Oregon concluded that the "no-fly list" violates the Fifth Amendment's guarantee of due process.

Judge Brown's well-crafted 65 page opinion applies the well-established "balancing test" for  procedural due process first articulated by the United States Supreme Court in 1976 in Mathews v. Eldridge.  Under this test, a court weighs several factors to determine "how much process is due":

• the interests of the individual and the injury threatened by the official action;
• the risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
• the costs and administrative burden of the additional process, and the interests of the government in efficient adjudication

image via

After analyzing the factors and weighing the government's interest in preventing terrorism heavily, Judge Brown considered similar "terrorism" cases and noted that the

Plaintiffs in this case were not given any notice of the reasons for their placement on the No—Fly List nor any evidence to support their inclusion on the No—Fly List. Indeed, the procedural protections provided to Plaintiffs through the DHS TRIP process fall substantially short of even the notice that the courts found insufficient [in another case].

Moreover, the government's failure to provide any notice of the reasons for Plaintiffs’ placement on the No—Fly List

is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place. When only an ex parte showing of  reasonable suspicion supported by "articulable facts . . . taken together with  rational inferences” is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that “simple factual errors” with “potentially easy, ready, and persuasive explanations” could go uncorrected.

[ellipses in original].  Thus, she concludes that "without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the no-fly list."

In granting partial summary judgment in favor of the Plaintiffs, Judge Brown directed the government defendants to "fashion new procedures" that provide the Plaintiffs with the requisite due process "without jeopardizing national security."

Certainly this litigation, which already has an extensive history, is far from over, but Judge Brown's finding of a lack of procedural due process in the government's no-fly lists is exceedingly important.

 

Court Releases Memo Outlining Legal Authority for Targeted Killing, Drones

Steven D. Schwinn, John Marshall Law School

The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki).  We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.

The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis.  It's not clear whether that first 11 pages included other material or analysis.  (The released version starts with "II.")  There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.

The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters.  Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack.  (The earlier white paper didn't make this clear distinction.)  But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted.  The analysis released today is also more fact specific.  (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.

Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.

As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi).  Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.

The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas.  That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113."  Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought."  The memo thus centers on whether al-Aulaqi's killing was "unlawful."

The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority.  As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi.  Moreover, the memo says that al-Aulaqi's killing comports with the laws of war.  That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict."  The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict.  Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").

The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.

(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)

As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike.  (That's about all it said: this portion of the memo is also highly redacted.)

The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary.  (And we don't know them, in any event, because they're redacted.)

 

Will on Presidential Overreach

George Will weighed in again today on presidential overreach in Stopping a Lawless President, joining the increasing (and partisan) drumbeat against President Obama's efforts to work around congressional non-action and obstruction.  In the piece, Will takes aim at President Obama's "perpetrat[ion] [of] more than 40 suspensions of the law."  (Emphasis in original.)  Among these: Deferred Action for Childhood Arrivals and the delayed implementation of the ACA's employer mandate.  "Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different."

Will also explores a problem for those who'd like to stop presidential overreach in court: they don't have standing.  That's because President Obama's actions have generally helped people, not harmed them, leaving only certain taxpayers and frustrated legislators to complain.  As Will points out, David Rivkin and Elizabeth Price Foley floated a theory earlier this year in Politico that would allow legislators to sue.  And the House recently passed Rep. Gowdy's cleverly named ENFORCE the Law Act of 2014 ("Executive Needs to Faithfully Observe and Respect Congressional Enactments"), authorizing House or Senate lawsuits against the president to require enforcement of the law.  That bill will surely die in the Senate.  But Rivkin and Foley's arguments for standing don't depend on legislation.

Still, Rivkin and Foley's arguments run up against language from Justice Scalia's dissent in U.S. v. Windsor (joined by Chief Justice Roberts and Justice Thomas), quoted in the dissenting views in the House report on the ENFORCE the Law Act:

Heretofore in our national history, the President's failure to "take Care that the Laws be faithfully executed," could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure.  Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws.  This system would lay to rest Tocqueville's priase of our judicial system as one which "intimately binds the case made for the law with the case made for one man," one in which legislation is "no longer exposed to the daily aggression of the parties," and in which "the political question that the judge must resolve is linked to the interest of private litigants."

That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking. . . .

If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit--from refusing to confirm Presidential appointees to the elimination of funding.

Ninth Circuit Declares LA's Prohibition of Vehicle as "Living Quarters" Unconstitutional

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

In its opinion in Desertain v. City of Los Angeles, the Ninth Circuit held that a provision of the Los Angeles municipal code prohibiting using automobiles as living quarters was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.

Section 85.02 of the municipal code, entitled "Use of streets and public parking lots for habitation" provides:

No person shall use a vehicle parked or standing upon any City street, or upon any parking lot owned by the City of Los Angeles and under the control of the City of Los Angeles or under control of the Los Angeles County Department of Beaches and Harbors, as living quarters either overnight, day-by-day, or otherwise.

image via

In finding the provision unconstitutionally vague, the court's opinion authored by Judge Harry Pregerson considered whether it gave adequate notice of the acts prohibited as required by City of Chicago v. Morales, 527 U.S. 41 (1999), and focused on the four plaintiffs and their arrests:

Plaintiffs are left guessing as to what behavior would subject them to citation and arrest by an officer. Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain? These are all actions Plaintiffs were taking when arrested for violation of the ordinance, all of which are otherwise perfectly legal. And despite Plaintiffs’ repeated attempts to comply with Section 85.02, there appears to be nothing they can do to avoid violating the statute short of discarding all of their possessions or their vehicles, or leaving Los Angeles entirely. All in all, this broad and cryptic statute criminalizes innocent behavior, making it impossible for citizens to know how to keep their conduct within the pale.

As the court noted, the ordinance was "amorphous" enough to include "any vacationer who drives through Los Angeles in an RV."

However, the seeming reality that vacationers in RVs were not arrested led the court to its second reason for concluding the ordinance was unconstitutionally vague.  The court found that the ordinance "promotes arbitrary enforcement that targets the homeless," as is inconsistent with Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).  The ordinance is "broad enough to cover any driver in Los Angeles who eats food or transports personal belongings in his or her vehicle," yet "it appears to be applied only to the homeless."  While the city might certainly have relied upon a limiting construction, its memo attempting to do so was "disfavored" by the law enforcement head of the homelessness task force and police officers did not follow it. 

In the first pages of the opinion, the court discussed four of the individual plaintiffs in detail.  In its final paragraph, the court summarized their plight and its rationale:

For many homeless persons, their automobile may be their last major possession — the means by which they can look for work and seek social services. The City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens. Selectively preventing the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars should not be one of those options.

Zelinsky on I Know It When I See It

Nathaniel Zelinsky, writing over at Concurring Opinions, traces the history and subsequent use of Justice Potter Stewart's famous phrase from his concurring opinion in Jacobellis v. Ohio.  Zelinsky found earlier uses of the phrase, or very similar phrases, but writes that Alan Novak, one of Justice Stewart's clerks, "remembered the phrase emerging out of a conversation with the justice.  And it was, according to Novak, Stewart who wrote the actual opinion, including the seven words."  Justice Stewart did not intend "to create a widespread sensation"; indeed, news coverage at the time all but ignored the phrase--and all but ignored Jacobellis, in favor of Quantity of Books v. Kansas, another obscenity case handed down that day.

Zelinsky offers this advice:

The unintentional popularity of "I know it when I see it" should be a note of caution for legal authors in the public sphere, from jurists to commentators more generally: it is very difficult to predict in advance what will capture widespread attention among the non-legal public. . . .  On the flip side, the legal corpus is full of opinions whose authors hoped would be earthquakes but whose prose was then largely ignored.

Unanimous Supreme Court in Lane v. Franks: First Amendment Protects Public Employee's Subpoenaed Testimony

 

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

In an unanimous opinion authored by Justice Sonia Sotomayor, with an exceedingly brief concurring opinion by Justice Thomas, joined by Scalia and Alito, the Court held in Lane v. Franks that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities."  However the Court held that the defendant sued in his personal capacity had qualified immunity because such a holding was not "beyond debate."

Forain, Scène de tribunal, circa 1910 via

Recall from our previous discussions of the case including the certiorari grant, the law professors amicus brief, and  oral argument that the underlying facts are extremely sympathetic to Edward Lane, the public employee who uncovered gross corruption of an elected state legislator and was later subpoenaed to testify in the federal criminal prosecution.  Indeed, even the Attorney General for the state contended at oral argument that the Eleventh Circuit was incorrect to conclude that the employee's speech was not within the strictures of the Court's most recent public employee First Amendment case, Garcetti v. Ceballos. 

On the issue of qualified immunity, however, the Court affirmed the Eleventh Circuit, finding that although the Eleventh Circuit was clearly wrong on the merits, the First Amendment right was not sufficiently "clearly established" at the time Lane was terminated by the college president.

My longer analysis of today's opinion is at SCOTUSBlog here.

Brennan Center on the State of Voting

The Brennan Center released a report this week on the state of voting in the run-up to the 2014 election.  Among the highlights:

• Since 2010, 22 states have implemented new voting restrictions, including voter ID requirements, requirements that make registration harder, restrictions on early voting, and restrictions on restoring voting rights for people with past criminal convictions.  The report says that "[p]artisanship played a key role" and that "[r]ace was also a significant factor" in enacting restrictions.  The 2014 election will be the first election for new restrictions in 15 states, possibly leading to problems on Election Day as those states implement the restrictions for the first time.
• There are ongoing cases challenging restrictions in seven states--Arizona, Arkansas, Kansas, North Carolina, Ohio, Texas, and Wisconsin.  More may come.
• Since 2012, 16 states have passed laws to make it easier to vote, including laws that modernize registration, inrease early voting opportunities, allow pre-restration of 16- and 17-year-olds, restore voting rights to people with past convictions, ease voter ID burdens, and expand access by language and absentee voting.  These laws will be in effect in 11 states in the 2014 election.

Trademark Trial and Appeal Board Cancels Trademark Registration of Football Team as Disparaging

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

In an extensive opinion today in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, a divided Trademark Trial and Appeal Board canceled the trademark of the term "redskins" as violative of  section 2(a), 15 U.S.C. § 1052(a), prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute. 

The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging - - - and was so at the time the trademark was approved.  The majority rejected the laches defense in part because "there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners."

 

Judge Bergsman's dissenting opinion disagreed with the

majority’s decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.

To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.

Neither the majority or dissenting opinion - - - both of which are lengthy - - - engage with the possible First Amendment free speech issues or with the possible Equal Protection issues; this is decidely a case interpreting a statutory provision regarding trademark. 

Yet the constitutional contours of speech and equality are evident in both opinions, just as constitutionalism has been implicated in the controversies surrounding the use of the term.  Thus, while a "trademark case," Blackhorse v. Pro-Football, Inc. is worth consideration by constitutional students and scholars.   And its comparison to the "dykes on bikes" trademark case, which I've discussed here, is also worth consideration by those interested in constitutionalism, democracy, and language.

 

McCutcheon and Collins on McCutcheon at Cato Today

At the Cato Institute in Washington D.C. and live-streaming today at noon (EST), there's a discussion featuring Shaun McCutcheon - - - millionaire, plaintiff, and now author of Outsider Inside the Supreme Court: A Decisive First Amendment Battle- - - and Professor Ron Collins - - - First Amendment scholar and author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

They will be joining others to discuss the Court's decision this Term in McCutcheon v. FEC and the future of campaign finance under the First Amendment.

More information here.

Supreme Court Denies Certiorari in Elmbrook School District: The "Graduation in a Church" Case

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

Over a dissent from Justice Scalia, joined by Thomas, the United States Supreme Court decided not to review the closely watched Elmbrook School District v. Doe.  The case was relisted by the Court at least ten times before the petition for certiorari was finally denied.

Recall as we discussed almost two years ago,  the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church.  Justice Scalia's dissent contended that because the Seventh Circuit's opinion is now "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway  - - - this Term's controversial 5-4 decision upholding town council's prayer - - - "the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR)."

image via

Yet Scalia's dissent might be most noteworthy for its casual evisceration of the Establishment Clause:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.

(emphasis in original).

However, with the denial of certiorari in Elmbrook School District, the line between adult activities such as legislative meetings and "school" activities such as graduations persists in Establishment Clause doctrine.