Constitutional Law Prof Blog

No Damage Claim for U.S. Citizen Tortured in Africa

Steven D. Schwinn, John Marshall Law School

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed a case brought by a U.S. citizen against FBI agents for torturing and mistreating him as a terrorist suspect in Africa in violation of his constitutional rights. 

The plaintiff, Amir Meshal, was visiting Somalia in November 2006.  When fighting erupted there, Meshal fled to Kenya.  Upon arrival, he was captured by Kenyan soldiers, detained, and later interrogated repeatedly by FBI agents, who used threats, accusations that Meshal was a terrorist, and physical force to intimidate him.  Later, Meshal was transferred to Somalia, then Ethiopia, where interrogations by FBI agents continued.  Throughout, Meshal was denied outside communication (until U.S. consular officials later gained access to him), access to an attorney, and access to foreign courts.  In all, Meshal was detained abroad for four months.  He was never charged with a crime.

Meshal filed a Bivens suit for damages against the agents, but Judge Sullivan dismissed the case.  Judge Sullivan was highly critical of the U.S. government's treatment of Meshal and of the federal courts' refusal to hear Bivens claims by other U.S. citizens mistreated by government agents.  But he nevertheless concluded that the D.C. Circuit's ruling in Doe, the Fourth Circuit's ruling in Lebron, and the Seventh Circuit's ruling in Vance compelled him to dismiss Meshal's case.  Doe, Lebron, and Vance all also involved U.S. citizens suing government officers for violations of constitutional right in similar circumstances.  The circuit courts all ruled that "special factors" counseled against a Bivens remedy, however, because they all arose in the context of the military and national security.

Given the state of the law, there is no chance of a successful appeal.  But that didn't stop Judge Sullivan from delivering a full-throated condemnation of the agents' actions, the courts' rulings, and Congress's failure to create a remedy for U.S. citizens who are mistreated in these situations:

The facts alleged in this case and the legal questions presented are deeply troubling.  Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government.  To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.

 

Supreme Court to Hear "Facebook Threats" Case Elonis v. United States (amended post)

 

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

The United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.

The question presented in the certiorari question is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

However, in its Order today, the Court stated:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

Thus, Elonis will be a case in which the statutory interpretation and the First Amendment are intertwined.

The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. 

The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.

At times, this inquiry becomes grammatical.  For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat.  The Third Circuit extensively quotes the facebook postings of Elonis, but we shall not repeat them here given language some might find objectionable.  It will be interesting to see what language choices the Justices make.

The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats.  Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."

Unanimous Supreme Court Returns Susan B Anthony List v. Driehaus for Decision on Election Law Merits

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

The Court's unanimous  opinion in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements, reversed the Sixth Circuit's determination that the case was not ripe.  Recall that Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List, but the Sixth Circuit held the SB List could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."  

As we discussed after oral argument, the Justices seemed inclined to find the courts had Article III power to hear the case, although there was some doctrinal fuzziness whether the case should be analyzed as one of "standing" or one of "ripeness."  Footnote 5 of the opinion by Justice Thomas for the Court resolves the question firmly in favor of standing:

The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299, n. 11 (1979), we use the term “standing” in this opinion.

Steve Driehaus via

The Court reiterated the established criteria: (1) an "injury in fact" (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a likelihood that the injury “will be redressed by a favorable decision," noting that the hurdle for the organization of Susan B. Anthony List was the "injury in fact" requirement.  To establish "injury in fact," the organization had to demonstrate the threat of future prosecution by the election board was sufficiently "concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” and "certainly impending,” or there is a “‘substantial risk’ that the harm will occur.” 

The shadow of the First Amendment was apparent in the Court's reasoning: "The burdens that [Election] Commission proceedings can impose on electoral speech are of particular concern here." 

The Court's relatively short and unanimous opinion breaks no new ground.  It draws on establishing standing precedent which it applies in a relatively straightforward manner, and then quickly dispatches the "prudential" rationale for rejecting jurisdiction. 

However, it's worth considering as a contrast a case uncited by the Court - - - Los Angeles v. Lyons (1983) - - - in which a deeply divided Court decided that Adolph Lyons did not have standing to challenge the City of Los Angeles police department's sometimes fatal practice of administering a "chokehold" to persons it stopped for traffic violations.  As Justice Marshall wrote in the dissenting opinion (joined by Justices Brennan, Blackmun, and Stevens):

Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.

Perhaps Susan B. Anthony List demonstrates that Justice Marshall's view has proven to be correct and that Lyons can now be disregarded.  Or perhaps, studies such as this and this are correct that the status of Susan B. Anthony List as an anti-abortion organization and the status of Adolph Lyons as an African-America male confronting law enforcement are just as important as doctrine.

Fifth Circuit Upholds Federal Crush Porn Statute Against First Amendment Challenge

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

Reversing the federal district court, the Fifth Circuit issued its opinion in United States v. Richards upholding the Animal Crush Video Protection Act of 2010 against a First Amendment challenge.  At 14 pages, the opinion authored by Judge Stephen Higginson is workmanlike but ultimately fails to satisfy the concerns raised by the statute.

Recall that the 2010 Act, 18 U.S.C. § 48 (2010), is the Congressional revision of the crush porn statute the United States Supreme Court found unconstitutional in United States v. Stevens.  In Stevens, the eight Justice majority found that the statute criminalizing portrayals of animal cruelty was of "alarming breadth" and could operate to criminalize popular hunting television programs.  When Congress passed an amended statute, it included a provision that the portrayal "is obscene" and specific exclusions for hunting and slaughter.

image via

Unlike the criminal defendant in Stevens (who was prosecuted for dog-fight videos), the defendants in Richards were charged with producing "crush porn" in which there is the depiction of cruelty to a small animal in an arguably sexual manner. 

The First Amendment challenge to the statute contended that the "obscene" prong of the statute did not incorporate the necessary Miller v. California test for obscenity.  Under Miller, this requires "sexual conduct," but Congressional history seemed debatable on this requirement.  Disagreeing with the district judge, however, the Fifth Circuit panel concluded it should not look to "variable and debatable legislative history to render unconstitutional a statute that incorporates a legal term of art with distinct constitutional meaning."  Thus, it held that "§48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech."

The Fifth Circuit rejected the argument that §48 proscribes only a certain type of obscenity in contravention of what some would call the "categorical approach" employed by the Court in the hate speech case of R.A.V. v. City of St. Paul.  After describing this argument, the Fifth Circuit veered into the much-disparaged "secondary effects" doctrine to conclude that

even assuming, for the sake of argument, that the creators and distributors of animal crush videos, like Richards and Justice, intend to advance a distinct message, perhaps about barbarism, § 48 is justified with reference not to the content of such a message but rather to its secondary effects—wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction.

The panel thus concludes that "Section 48 thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals."  In doing so, the opinion noted that "a long history and substantial consensus, as seen in state and federal legislation, are indicative" of a compelling or substantial interest - - - and cited for this proposition New York v. Ferber.  Ferber, upholding the constitutionality of criminalizing child pornography, is of course the very case Chief Justice Roberts' opinion for the Court in United States v. Stevens distinguished; the Court rejected the analogy between child porn and (animal)crush porn. 

The Fifth Circuit en banc should take another look at United States v. Richards and the First Amendment contours of the "crush porn" statute without reference to "secondary effects."  

Seattle's Minimum Wage Challenged in Federal District Court

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

Seattle - - - a "progressive and expensive city" - - - "struck a blow against rising income inequality" by raising its municipal minimum wage to $15 per hour earlier this month, as Maria La Ganga reported in the LA Times. Seattle Ordinance 12449 becomes effective in 2015, with a phase-in schedule of pay rates dependent on type of employer.   But it has already been challenged as unconstitutional.

The complaint in International Franchise Association, Inc. v. City of Seattle challenges the ordinance on a variety of constitutional grounds: (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment and state constitution, the state constitutional privileges or immunities provision, preemption under the Lanham Act (trademarks), the contract clauses of the federal and state constitutions, and the First Amendment. 

skyline of Seattle via

A central issue in this complaint is the Ordinance's definitions of schedule 1 and schedule 2 employers as the definitions relate to franchises.  As paragraph 50 provides:

The Ordinance provides that, for purposes of determining whether an employer is a Schedule 1 or Schedule 2 employer, “separate entities that form an integrated enterprise shall be considered a single employer ... where a separate entity controls the operation of another entity,” but this test applies only to a “non-franchisee employer.” Under the Ordinance, if a small franchisee is associated with a franchise network that employs more than 500 workers, the small franchisee is deemed a Schedule 1 Employer even if it is not part of an “integrated enterprise” as so defined.

Filed by Bancroft LLC and signed by Paul Clement, the pleading contains various arguments detailing why such a distinction is unconstitutional, largely revolving around the competitive disadvantage the ordinance will place on franchised and parent businesses by requiring higher wages.  

LawProf David Ziff of University of Washington School of Law in Seattle has some helpful discussions of the complaint on his blog, including an overview and a specific discussion of the "classes of corporations" argument under the state constitution's privileges or immunities clause.

Certainly this is litigation to watch.  And certainly cities across the United States that are considering similar measures will be looking closely.  Cities are often rightly concerned with state constitutional powers of "home rule" allowing municpalities to vary from the state mandated wage; for example,  the courts declared the 1964 attempted minimum wage raise from 1.25 to 1.50 in NYC to be beyond the powers of the city. But the Seattle challenge raises federal constitutional issues that are necessarily obvious.

Sixth Circuit Rejects Challenge to Contraception Mandate Accommodation

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit today denied a preliminary injunction to a group of religious employers and religious nonprofits challenging the exemption from and the accommodation to the contraception mandate in the Affordable Care Act.  The ruling is just the latest in a line of challenges to the accommodation.  We posted most recently here.  (These cases are different than the Hobby Lobby case now before the Supreme Court: these cases involve religious nonprofits that take issue with the accommodation to the contraception mandate, where the Hobby Lobby case involves a corporation's challenge to the mandate itself.) 

The cases are unusual, even surprising, in that the plaintiffs challenge the government's attempt to accommodate their religious beliefs as itself a violation of their religious rights.

The organizations challenged the exemption from and the accommodation to the mandate under the Religious Freedom Restoration Act and the First Amendment (speech and religion clauses).  The court ruled that they failed to demonstrate a likelihood of success on the merits and thus affirmed the lower court's denial of a preliminary injunction.

The court noted that some of the plaintiffs were religious employers who qualified for the exemption from the mandate.  Because the exemption exempts them, and because it does not require any particular act on the part of the organizations, the court said that the exemption didn't violate the organizations' speech or religious rights.

As to the religious non-profits, the court said that they qualify for the accommodation by simply certifying that they object to the mandate--and that this didn't interfere with their religious or free speech rights.  The court rejected the plaintiffs' arguments that the certification itself somehow implicated the organizations in providing contraception in violation of their religious rights or free speech rights.  In language shy of, but no less certain than, the almost hostile ruling by Judge Posner in the Seventh Circuit rejecting a similar claim the court said,

The appellants are not required to "provide" contraceptive coverage. . . .  The appellants are not required to "pay for" contraceptive coverage. . . .  Moreover, the appellants are not required to "facilitate access to" contraceptive coverage. . . .  Submitting the self-certification form to the insurance issuer or third-party administrator does not "trigger" contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.

D.C. Circuit Rejects Guantanamo Detainees' Mistreatment Claims

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal.  The court also rejected the plaintiffs' request to remand the case to amend their complaint.

The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT.  The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.

As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government.  But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.

As to the Vienna Convention, the court said that the Convention confers a private right of action.

As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.

California State Trial Judge Declares Teacher Tenure Provisions Unconstitutional

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

In a 16 page "tentative decision" in Vergara v. California, Los Angeles Superior Court Judge Rolf Treu has declared that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education.

The so-called "tenure statutes" challenged in the action are provisions of California's Education Code governing teacher employment, including

• permanent employment statute (§44929.21(b));
• dismissal statutes (§§ 44934;  44938(b)(l) and (2) and 44944);
•  and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).

The California constitutional provisions at issue include the state's equal protection clause in Article I §7, and the Article IX provisions relating to Education, including the "general diffusion of knowledge" section, §1 and the requirement that the legislature "shall provide for a system of common schools by which a free school shall be kept up and supported,"§5.

image via "Students Matter" the organization funding Vergara

Judge Treu based his decision largely on equality grounds, but noted that the California Supreme Court had previously held education to be a fundamental right.  Importantly, the judge found that the trial showed that "there are a significant number of grossly ineffective teachers currently active in California classrooms."  Judge Treu also found, although did not elaborate, that there was a "disproportionate impact on poor and minority students."  The judge applied strict scrutiny to the challenged statutes.

As to the permanent employment statute,  Judge Treu found that it disadvantaged both students and teachers, noting that California's short time frame for tenure - - - less than two years - - - was an outlier: the vast majority of states (32) have a three year time frame. 

Regarding the dismissal statutes, Judge Treu noted that dismissal of a teacher could take two to ten years and "cost $50,000 to $450,000," and that while due process for teachers was an "entirely legitimate issue" these statutes provided "uber due process."  The judge found that the provisions were "so complex, time consuming and expensive" that the statutes violated the state constitutional equal protection rights of the student plaintiffs.

Likewise, Judge Treu found that the LIFO statute violated the state constitutional equal protection rights of the student plaintiffs.  Judge Treu again noted that California was in a distinct minority of 10 states in which this seniority system was absolute and allowed no consideration of teacher effectiveness, with 20 states providing that seniority was a factor, and 19 states leaving the decision to the discretion of government. 

Judge Treu's relatively brief decision followed a rather high profile trial financed by a tech entrepreneur.  The opinion does not have a full discussion of the facts, especially those supporting the impact on poor and racial minority students. 

Vergara is heir to cases such as San Antonio School District v. Rodriguez (1973),  in which the United States Supreme Court rejected a challenge to school financing as disadvantaging students of color, and Edgewood Independent School District v. Kirby, in which the Texas Supreme Court found the school financing scheme unconstitutional under the state constitution, including a "general diffusion of knowledge" provision.   Yet Vergara turns the focus from state resources to "bad teachers" and can tap into anti-teacher and anti-union and anti-government worker sentiments.

Judge Treu concludes his decision with an invocation of Alexander Hamilton's Federalist Paper 78 on separation of powers, noting that it is not the task of the judiciary to advise the legislature on a solution.  But as the history of  Texas' Edgewood Independent School District v. Kirby demonstrates, legislative solutions in school equality can have an extended career in the courts.

Most likely, Judge Treu's Vergara decision will itself be subject to further judicial interpretations in the appellate process.

CERCLA, Statute of Repose Block Environmental Suit

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in CTS Corp. v. Waldburger that the federal Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, does not preempt a state statute of repose that blocked the plaintiffs' state-law nuisance claim for environmental damage caused by the defendant.  (A statute of repose sets a time limit on the filing of a complaint, much like a statute of limitations.)  The case means that state-law claims for environmental damage that fall outside a state's statute of repose (because the plaintiffs didn't learn about the damage until years after the defendants caused it), including the plaintiffs' case here, will be dismissed--unless and until Congress changes CERCLA to provide for preemption of state statutes of repose.

The case arose when a group of property owners sued CTS for environmental damage to their land.  CTS previously ran an electronics plant on the land, where it manufactured and disposed of electronics and electronic parts.  As part of the operation, CTS stored certain chemicals.  CTS later sold the property to the plaintiffs, certifying it as environmentally sound.

The plaintiffs realized that the property wasn't environmentally sound--but 24 years after the sale.  So when they sued, CTS successfully moved to dismiss the case based on the state statute of repose, which prevents subjecting a defendant to a tort suit more than 10 years after the last culpable act of the defendant.  The plaintiffs argued that CERCLA preempted the statute of repose, allowing their case to move forward.  The Court today agreed with CTS.

Justice Kennedy wrote the majority opinion and said that the text, the historical understanding of the language, and the Court's "presumptions about the structure of pre-emption" all pointed to preemption.  The opinion turned in large measure on the historical understanding of the difference between a statute of limitations and a statute of repose.  That's because everyone agrees that CERCLA's plain language preempts state statutes of limitations.  The question was whether it also covered statutes of repose.  The Court said no.  (The Court said that CERCLA's drafters understood that there was a difference between the two, but included only statutes of limitations, not statutes of repose, in the preemption clause.)

Justices Sotomayor and Kagan joined Justice Kennedy's opinion in full.  Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined in the result and all but the portion that relied on the Court's "presumptions about the structure of pre-emption." 

Justice Ginsburg wrote a dissent, joined by Justice Breyer.  Justice Ginsburg argued that CERCLA's "discovery rule" displaced the commencement-of-action date in the state statute of repose.  She wrote that the CERCLA's discovery rule set the commencement date as the date that the plaintiffs actually knew (or reasonably should have known) that the injury was caused by the defendant, not the date of the defendant's last act or omission (in the state statute of repose).  This meant that the plaintiffs filed within the statute of repose, and that their case should be allowed to proceed.

As in all preemption cases, Congress could have the last word.  Here, as elsewhere, Congress can change the federal statute to provide for preemption of state law after the Court interpreted it not to preempt state law (or vice versa).  That seems unlikely here, though. 

Wisconsin Federal Judge Declares Same Sex Marriage Ban Unconstitutional

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

Joining the federal judges who have declared unconstitutional their respective state laws banning same-sex marriage, Judge Barbara Crabb issued an 88 page opinion and order in Wolf v. Walker ruling that Art. XIII, § 13 of the Wisconsin Constitution prohibiting same-sex marriage "violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution" and that "any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a 'husband' and a 'wife,' are unconstitutional as applied to same-sex couples."

While Judge Crabb does not issue a stay, the opinion is not effective immediately.  Instead, the plaintiffs have until June 16 to submit a proposed injunction, the defendants have a week to respond, and the Judge will consider the stay at that time - - - adding a specific allowance of the parties to address the application for a stay in light of the United States Supreme Court's refusal to grant a stay - - - just two days ago - - - in Geiger v. Kitzhaber.

Crabb's opinion is a scholarly treatment that seriously engages with seemingly all of the arguments raised by the state, the plaintiffs, and various amici.  It echoes other judges who have reached similar results in relying upon Justice Scalia's dissenting opinions to support its conclusions.  Judge Crabb also interestingly uses work by Maggie Gallagher, one of the founders of the anti-same-sex marriage group National Organizer for Marriage as a supporting citation for the importance of marriage as "essential to the pursuit of happiness."  The range of her citations is impressive and although the opinion certainly has rhetorical flourishes, it is measured and substantive.

Her statement that marriage is a "fundamental right" is more nuanced in the conclusion to the due process analysis in opinion, which concludes:

that Wisconsin’s marriage amendment and the Wisconsin statutes defining marriage as requiring a “husband” and a “wife” significantly interfere with plaintiffs’ right to marry, so the laws must be supported by “sufficiently important state interests” that are “closely tailored to effectuate only those interests,” Zablocki [v. Redhail]  434 U.S. at 388, in order to survive constitutional scrutiny.

Regarding the level of scrutiny under the Equal Protection Clause, Judge Crabb finds that Supreme Court precedent - - - including Windsor - - - is not determinative and that Seventh Circuit precedent is similarly not determinative.  The opinion therefore engages in an analysis of the classification under four factors: history of discrimination; ability to contribute to society the same as others; immutability; and political powerlessness.  (Interestingly, Judge Crabb does not cite to Carolene Products).  She ultimately concludes that heightened scrutiny (intermediate scrutiny) is appropriate, although she does "hedge her bets" a bit, writing that

regardless whether I apply strict scrutiny, intermediate scrutiny or some “more searching” form of rational basis review under the equal protection clause, I conclude that the marriage amendment and related statutes cannot survive constitutional review.

The opinion then seriously considers the by-now familiar asserted interests: tradition, procreation, optimal child-rearing, protecting the institution of marriage, proceeding with caution, and the less-oft explicit interest of "slippery slope."  Not surprisingly, she finds none of them support the same-sex marriage ban.

Judge Crabb's opinion acknowledges the opinion's place in the current terrain of post-Windsor decisions.  Not only does she address the recent cases, she also considers the social climate, with reference to one of the circuit judges who might well hear the case on appeal:

In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage. Compare Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1585 (1997) (“Public opinion may change . . . but at present it is too firmly against same-sex marriage for the courts to act.”), with Richard A. Posner, “Homosexual Marriage—Posner,” The Becker-Posner Blog (May 13, 2012) (“[T]he only remaining basis for opposition to homosexual marriage . . . is religious. . . . But whatever the [religious objections are], the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims.”).

This case is most likely going to the Seventh Circuit - - - and it or one of its sister-opinions - - - is most likely headed to the Supreme Court.

Governor Lacks Authority to Revoke Commutation

Steven D. Schwinn, John Marshall Law School

The Michigan Supreme Court ruled this week in Makowski v. Governor that former Michigan Governor Jennifer Granholm lacked authority under the state constitution to revoke her valid commutation of a prisoner's sentence.  The ruling means that the prisoner, whose sentence was first commuted but whose commutation was later revoked, is now eligible for parole.

The Michigan constitution gives the governor the power "to grant reprieves, commutations and pardons after convictions for all offenses . . . ."  Art. 5, Sec. 14.  Governor Granholm exercised this authority when she granted a commutation on the recommendation of the parole board to an individual who was serving a life sentence for felony murder.  But when the family of the victim contacted her office to express its dissatisfaction after the commutation was signed and sealed, she instructed the parole board to halt all commutation proceedings and revoked the commutation.

The Michigan Supreme Court ruled that she couldn't do that it.  The court first said that the case did not present a political question, because the state constitution limits the governor's power to commute "to those procedures and regulations that the Legislature enacts," and "[a]ccordingly, the distribution of power between the Legislature and the Governor regarding commutations creates a legal question that this Court must answer."  The court said that legislative silence as to those procedures did not mean that the court should defer; instead, the court said that it had a duty to determine the extent and limits of executive authority regarding commutations.  The court also ruled that its determination of the merits did not violate the separation of powers, because "this Court may review the Governor's exercise of power to ensure that it is constitutional."

As to the merits, the court held that the text and context of the commutation document indicated that it was final, and that the state constitution provided no power to revoke a commutation. 

Daily Video: Brenda Cossman on Canada's Parliamentary Responses to Bedford Decision

Recall that in Canada v. Bedford, the Supreme Court of Canada unanimously declared several provisions of Canada's criminal code regulating prostitution and sex work to be inconsistent with the Canadian Constitution's Charter of Rights and thus unconstitutional.  The Court suspended the declaration of invalidity for one year from its December 2013 decision to allow Parliament to act.

Parliament is acting, but not in the manner that some anticipated.

Here's University of Toronto Law Professor Brenda Cossman discussing the proposed law in a video for Canada's Globe & Mail:

full video here

 If Parliament does pass this legislation, it seems as if it will be swiftly challenged.  And perhaps the Canada Supreme Court will have a chance to reconsider whether giving Parliament a chance to correct the defects is the best way to proceed.

 

Daily Read: Ellen Katz on Hobby Lobby and Citizens United

In her relatively brief essay Hobby Lobby and the Pathology of Citizens United, available on ssrn, Professor Ellen Katz (pictured) advances a doctrinal and jurisprudential argument - - - rather than political or consequentialist ones - - - for the "danger" of Citizens United v. FEC.

Katz contends:

Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. This is not an entirely new move for the Court as it has previously cast off a decision’s doctrinal limits and stated normative claims. The contribution of Citizens United, however, was to normalize this stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains both why it is likely to be used in the pending ACA cases and beyond, and why it is cause for deep concern.

It is a phenomenon Katz labels "fanciful precedent."  She contends it was operative in last Term's controversial Shelby County v. Holder.

She argues that it was prominent in Citizens United related to the Court's use of First National Bank of Boston v. Bellotti (an issue of footnotes as we discuss here and here), in a manner that might foreshadow any Robert Court opinion in Hobby Lobby "relying" on United States v. Lee and Braunfeld v. Brown. 

Katz's short piece is worth a read as we await the Court's decision in Sebelius v. Hobby Lobby Stores, Inc. (and Conestoga Woods Specialties, Corp. v. Sebelius) argued in March. 

Two AALS Mid-Year Meetings: Sexuality and Corporations

 

The AALS midyear meeting in Washington DC this June features two workshops:

Workshop on Sexual Orientation and Gender Identity Issues

Workshop on Blurring Boundaries in Financial and Corporate Law

 

The program for the meeting is here.

While the constitutional issues in the sexuality workshop are more explicit, there are plenty of constitutional concerns in both programs.

 

United States Supreme Court Denies Stay of Oregon Same-Sex Marriage Ruling

Without dissent or opinion, the United States Supreme Court denied the application of stay in National Organization for Marriage v. Geiger.  The application was made to Justice Kennedy (as Circuit Justice) and "by him referred to the Court." 

The National Organization for Marriage (NOM) was not a party to the orginal case, Geiger v. Kitzhaber in which Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution, as we discussed here.

Recall that Oregon conceded that the state law was unconstitutional; hence the application by NOM.  However, while Judge McShane did not analyze defendant standing or Article III "case and controversy" in Geiger, NOM's application for a stay in Geiger raises even more serious Article III issues after Hollingsworth v. Perry.

Eighth Circuit Says Missouri Flag Desecration Law Unconstitutional, No Qualified Immunity

The Eighth Circuit ruled in Snider v. City of Cape Girardeau that Missouri's statute banning flag desecration was facially unconstitutional.  The court held that the statue was overbroad in violation of the First Amendment, and that there was no possible narrowing construction.  The court also rejected the arresting officer's claim of qualified immunity.

The case arose when a Cape Girardeau police officer arrested an individual for desecrating an American flag, in violation of Missouri law.  The officer made the arrest pursuant to a warrant issued by a local judge and based upon the officer's statement of probable cause to the county prosecuting attorney.

The ruling couldn't have been a surprise to anyone, except possibly the officer and the county prosecutor.  (The ruling included this telling sentence: "Both Officer Peters and [the prosecuting attorney] stated that they were unaware of the United States Supreme Court's decisions in Texas v. Johnson and United States v. Eichman, which struck down statutes criminalizing flag desecration as unconstitutional.")  The court ruled that Missouri's statute was facially unconstitutional under those cases.

The court also ruled that the officer did not enjoy qualified immunity.  The officer argued that he should be entitled to qualified immunity, because the prosecutor and judge signed off on a warrant.  He cited Messerschmidt v. Millender, where the Supreme Court granted qualified immunity to an officer who executed a search warrant unsupported by probable cause because, in part, a neutral magistrate issued the warrant. 

But the Eighth Circuit noted that the Messerschmidt Court said that the neutral magistrate's involvement did "not end the inquiry into objective reasonableness."  The court also noted that the standard in Malley v. Briggs survived Messerschmidt.  The Malley standard says that there's no qualified immunity where "if it obvious that no reasonably competent officer would have concluded that a warrant should issue."  Here, it was obvious.

The ruling upholds a lower court ruling granting attorney's fees to the plaintiff.

Carol Anne Bond Prevails in United States Supreme Court: Court Avoids Treaty Power Ruling

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

On her second trip to the United States Supreme Court, Carol Anne Bond prevailed again.

Recall that Carol Anne Bond was convicted of a crime in violation of the Chemical Weapons Implementation Act, 18 U.S.C. § 229(a), passed to implement a treaty , the Chemical Weapons Convention. But the fact that she is not a "terrorist," but rather a "vengeful" participant in a "love triangle" has caused much consternation.  While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit. On remand, the Third Circuit rejected Bond's argument to  "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."

Today's opinion in Bond v. United States again reverses the Third Circuit.  The focus in oral argument  was on the Treaty power and whether a treaty can alter constitutional structures, namely federalism.  And while today's decision is unanimous, there are multiple concurring opinions.

The opinion for the Court, authored by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, is a relatively brief 21 pages and notes that the Bond's case is "unusual" and thus the "analysis is appropriately limited."  For the Court,

the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.

Essentially, the Court practices constitutional avoidance by construing the statute narrowly; there is no need to confront Holland v. Missouri's holding regarding the constitutional parameters of Congress's treaty power. 

Indeed, the Court only mentions Holland in its discussion of the Third Circuit's holding and Bond's arguments; it notes that notwithstanding that "debate" there is a "well-established principle" of constitutional avoidance and includes a citation to Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Because "Bond argues that section 229 does not cover her conduct" it considers "that argument first," and finds it decides the issue. 

In a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them - - - and thus there is no need to decide whether Congress exceeded the power the Constitution's treaty and necessary and proper powers gave it.

Nations in green are signatories to

Chemical Weapons Convention via

Justice Scalia, concurring and joined by Thomas, would conclude that the statute clearly covers Bond's Act and therefore is unconstitutional.  Justice Thomas writes a separate concurrence, joined by Scalia and in part by Alito, writes separately to "suggest that the Treaty Power is itself a limited federal power."  And in a very brief opinion, Alito argues that the "insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power" and thus the statute "lies outside Congress’ reach unless supported by some other power enumerated in the Constitution."

So, while the opinion is "unanimous," the three Justices considered to be the most conservative and perhaps most hostile to international law, would have limited Congress' power to implement treaties made pursuant to Article II §2 allowing the executive to "make Treaties, provided two thirds of the Senators present concur."

And for ConLawProfs, it demonstrates the relevance of the "Ashwander doctrine" as a part of constitutional law courses.

Court Denies Certiorari in James Risen's "Reporter's Privilege" Case

The United States Supreme Court denied certiorari in the closely watched case of Risen v. United States (13-1009).

NYT Reporter James Risen via

Recall our analysis of the sharply divided Fourth Circuit panel opinion in United States v. Sterling, with James Risen as Intervernor, that declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.