Constitutional Law Prof Blog

House Republicans Authorize Suit Against President Obama

Steven D. Schwinn, John Marshall Law School

The House of Representatives voted along party lines this afternoon to authorize a federal lawsuit against President Obama for alleged constitutional overreach in implementation of the Affordable Care Act. 

Here's the resolution, H. Res. 676. 

The case will have several problems right out of the gate, most notably standing.  Here's our last post on the suit, with links to earlier posts.

Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390

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

A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as  Mississippi HB 1390.

The statute required physicians performing abortions to have admitting privileges to a nearby hospital.   As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.

Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly  (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge.   In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.”   The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late."  Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.

 The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi.  The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves.  Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden.  But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right. 

Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state.  Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:

[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.

Id. at 350.  Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights." 

In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."   

But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.

In Memoriam: Cheryl Hanna

Vermont Law School has reported the death of ConLawProf Cheryl Hanna.  A memorial is scheduled for Friday.

Her scholarship was devoted to issues of domestic violence, sexuality, and gender.  Her essay, Gender As A Core Value in Teaching Constitutional Law, 36 Okla. City U. L. Rev. 513 (2011), available in draft on ssrn, reminds us that while it may seem as if there is " ample opportunity to discuss gender when teaching equal protection and reproductive right" in Constitutional Law courses, ConLawProfs need to do more to "keep gender alive" throughout the semester.  As she wrote:

Even in courses like constitutional law, it is easy to relegate gender to a few specific cases without ever asking the students to consider the more fundamental questions of how the Constitution affects women (and men) and how women (and men) affect the Constitution. But these are important questions to ask not just on Equal Protection and Women Day but throughout the entire course.

Cheryl Hanna's recent commentary on McCullen v. Coakley and Burwell v. Hobby Lobby Stores, Inc. for Vermont Public Radio can be heard here, and there is also a selection of her other commentaries, both law related and more personal.

En Banc DC Circuit Upholds COOL Labeling Requirement Against First Amendment Challenge

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

In a 71 page opinion with two dissenting opinions for two judges, the District of Columbia Circuit en banc clarified the First Amendment standard for labeling requirements in American Meat Institute v. U.S. Department of Agriculture. 

Recall that the COOL - - - country of origin label - - - as applied to meat was explained by the DC Circuit as newly requiring the "production step," so that

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

The basic issue is a choice of precedent one: Should the consumer disclosure principle of  Zauderer v. Office of Disciplinary Counsel (1985) control or should the more rigorous ordinary commercial speech test of Central Hudson govern?

The panel's relatively brief opinion chose Zauderer and upheld the rule against the meat industry's First Amendment challenge, but the DC Circuit rather quickly vacated the opinion and granted en banc review. The panel itself noted that other panel opinions might be read to the contrary and suggested the "full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information."

The en banc opinion now holds "that Zauderer in fact does reach beyond problems of deception, sufficiently to encompass the disclosure mandates at issue here."  In so doing, it explicitly overruled R.J. Reynolds Tobacco Co. v. Food & Drug Admin decided in 2012.

As the DC Circuit reasoned,

Zauderer itself does not give a clear answer. Some of its language suggests possible confinement to correcting deception. Having already described the disclosure mandated there as limited to “purely factual and uncontroversial information about the terms under which [the transaction was proposed],” the Court said, “we hold that an advertiser's rights are adequately protected as long as [such] disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.” (It made no finding that the advertiser's message was “more likely to deceive the public than to inform it,” which would constitutionally subject the message to an outright ban. See Central Hudson. *** The language with which Zauderer justified its approach, however, sweeps far more broadly than the interest in remedying deception. After recounting the elements of Central Hudson,Zauderer rejected that test as unnecessary in light of the “material differences between disclosure requirements and outright prohibitions on speech.” Later in the opinion, the Court observed that “the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed.” After noting that the disclosure took the form of “purely factual and uncontroversial information about the terms under which [the] services will be available,” the Court characterized the speaker's interest as “minimal”: “Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal.” All told, Zauderer 's characterization of the speaker's interest in opposing forced disclosure of such information as “minimal” seems inherently applicable beyond the problem of deception, as other circuits have found.

Thus, the DC Circuit has resolved an important conflict and erected an obstacle for First Amendment challenges to labeling regulations. 

Individual Mandate Survives Origination Clause Challenge

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit today rejected an Origination Clause challenge to the so-called individual mandate under the Affordable Care Act.  The court also rejected a Commerce Clause challenge to the individual mandate.  The ruling means that this long-shot case is dismissed.

The plaintiff in the case, Matt Sissel, argued that the individual mandate violated the Origination Clause.  That Clause requires revenue-raising bills to originate in the House; it says,

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Sissel argued that the ACA's individual mandate really originated in the Senate, not the House, and therefore violated the Clause.

The court summarily rejected that argument.  The court said that the Supreme Court has given a narrow reading to the Origination Clause, applying it only to bills that "levy taxes in the strict sense of the word."  But the court said that the taxing feature (or the revenue-raising feature) of the individual mandate was merely a by-product of the mandate, not the principal goal of the mandate--and therefore not a tax in the strict sence.  Instead, the court said, the mandate was designed to help achieve universal health care coverage, not principally to raise revenue: 

The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that [the individual mandate] is not a "Bill[] for raising Revenue" under the Origination Clause. . . .  And after the Supreme Court's decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is "to increase the number of Americans covered by health insurance and decrease the cost of health care," not to raise revenue by means of the shared responsibility payment.

The court also rejected Sissel's Commerce Clause argument, ruling that the this argument was foreclosed by the Supreme Court's decision in NFIB, which upheld the individual mandate as a valid measure under Congress's taxing power.  The court rejected Sissel's argument that his election not to purchase insurance was a violation of federal law (and therefore the federal requirement violated the Commerce Clause).  Instead, the court said that under NFIB Sissel had a choice: buy insurance, or pay a tax.  That's a valid exercise of the taxing power (even if it has a regulatory effect), and Sissel's argument under the Commerce Clause misses the mark.

The ruling is just the latest in a line of cases challenging different aspects of the Affordable Care Act.  It's an important victory for the ACA, even if not a particularly surprising one.

Fourth Circuit: Virginia's Same-Sex Marriage Ban is Unconstitutional

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

Affirming the federal district judge's decision in February, a panel of the Fourth Circuit in a divided opinion has held in Bostic v. Schaefer that Virginia's same-sex marriage prohibitions are unconstitutional.

The majority opinion, authored by Judge Henry Floyd and joined by Judge Roger Gregory, notably finds marriage to be a fundamental right that encompasses same-sex marriage and applies strict scrutiny. 

The court's conclusion is that the "Virginia Marriage Laws" (including statutes and a state constitutional amendment)

violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.

At various times, the court blends Due Process and Equal Protection analysis and precedent, but both spring from its conclusion that "marriage" is a fundamental right and that "marriage" includes same-sex marriage.    After discussing Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the court notes:

These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.

The court's use of "couplings" implicitly addresses a portion of the oft-called slippery slope argument that is raised by Judge Paul Niemeyer in his dissent: what would prevent this rationale from extending to polygamy?  The dissent also invokes incest, accusing the majority of "dictionary jurisprudence" when it (re)defines marriage to include same-sex marriage.  But of course, the definitional conundrum plagues the dissent as well, when it argues that certain qualities are "foundational" to marriage and other qualities are "irrelevant."  For the dissent, this is the "biological link between procreation and marriage," a link that does exist in the polygamous and incestuous marriages the dissent disapproves.

For the majority, after finding marriage a fundamental right deserving of strict scrutiny, the five governmental interests argued as supporting the marriage laws not surprisingly fail to pass constitutional muster:

• (1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders,
• (2) the history and tradition of opposite-sex marriage,
• (3) protecting the institution of marriage,
• (4) encouraging responsible procreation, and
• (5) promoting the optimal childrearing environment.

 More surprising is that although these interests are raised by the parties the court calls the  "Proponents" of the Virginia marriage laws, there is little in the court's opinion that analyzes their standing to appeal.  The court does analyze the standing of the plaintiffs to sue the defendants George Schaefer III (in his official capacity as Clerk of Court for Norfolk Circuit Court) and Janet Rainey (in her official capacity as State Registrar of Vital Records).  And since these parties were indeed defendants, there may be little need for an extensive analysis of appellate standing as was necessary in the same-sex marriage cases decided by the United States Supreme Court in June 2013. Nevertheless, recall that the (new) Virginia Attorney General had decided during the district court litigation that the Virginia laws were unconstitutional and filed a notice of change of position; however the laws continued to be enforced. 

The Fourth Circuit thus joins the Tenth Circuit in holding that a state's same-sex marriage ban violates the Fourteenth Amendment.   While these circuit court opinions are divided, the dozen or so federal district judges who have considered the issue have been unanimous in reaching the same conclusion.

 

Arizona Botches Un-Enjoined Execution

Steven D. Schwinn, John Marshall Law School

Arizona reportedly botched the execution today of Joseph Wood III, the condemned prisoner who won a preliminary injunction against his execution at the Ninth Circuit, but then lost when the Supreme Court vacated that order.

According to numerous sources, Wood gasped and snorted for nearly two hours after receiving the drug cocktail that Arizona used to kill him.  WaPo reports here.

Now with the benefit of hindsight, Chief Judge Kozinski's earlier dissent from the Ninth Circuit denial of a rehearing en banc has especial resonance.  In a brief opinion rejecting Wood's legal claim, Judge Kozinski also heavily criticized the way the federal government and states now administer the death penalty.  Take a look:

Whatever happens to Wood, the attacks [against the death penalty] will not stop and for a simple reason: The enterprise is flawed.  Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful--like something any one of us might experience in our final moments.  But executions are, in fact, nothing like that.  They are brutal, savage events, and nothing the state tries to do can mask that reality.  Nor should it.  If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive--and foolproof--methods of execution. . . .  The firing squad strikes me as the most promising. . . .  Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.  If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all.

Colorado Federal Judge on Same-Sex Marriage Ban: Unconstitutional and Not Quite a Stay

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

In his relatively brief opinion today in Burns v. Hickenlooper, Judge Raymond Moore enjoined Colorado officials from enforcing or applying Article II, Section 31 of the Colorado Constitution and C.R.S. §§ 14-2-104(1)(b) and 14-2-104(2) as a basis to deny marriage to same-sex couples or to deny recognition of otherwise valid same-sex marriages entered in other states.

The injunction is supported by little Due Process or Equal Protection analysis; instead its determination is more than aptly supported by the mandatory precedent of the Tenth Circuit's decision in Kitchen v. Herbert.

More difficult than the merits issue was the procedural stay issue.  Judge Moore decided to issue only a temporary stay until Monday, August 25, 2014, to allow the parties to seek relief from the Tenth Circuit or the United States Supreme Court.  The judge noted that the Tenth Circuit had already spoken, but given the United States Supreme Court's stay regarding the Utah same-sex marriage case last week in Evans v. Herbert,  the directives regarding the appropriateness of a stay were less than clear.

Etruscan inscriptions on a bronze sheep's liver as might be consulted by a haruspex via

As Judge Moore wrote:

Based on the most recent stay [in Evans v. Herbert], it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.

For further analysis of the problem on stays in the same-sex marriage litigation, take a look at LawProf Nancy Leong's great discussion of the stay factors and how they apply in same-sex marriage litigation.

Court Vacates Injunction Against Execution

Steven D. Schwinn, John Marshall Law School

The Supreme Court yesterday vacated the Ninth Circuit ruling over the weekend that ordered the delay of a scheduled execution until the condemned prisoner received details from the state about the method of execution. 

Recall that the condemned prisoner, Joseph Rudolph Wood III, argued that the state's failure to provide him information violated his First Amendment right to receive information about the method of execution.  The Ninth Circuit agreed--or at least agreed that he had a likelihood of success on the merits, or that he raised a "serious question" on the merits--and granted a preliminary injunction.

The Supreme Court's order vacates that ruling.  It means that the execution can go forward without the information.

The order was short and unsigned, with no real legal analysis:

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted.  The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction.  The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.

Appeals Courts Issue Opposing Rulings on Obamacare Exchange Tax Credits

Steven D. Schwinn, John Marshall Law School

Two federal appeals courts today issued dueling rulings on the legality of an IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income guidelines (100 to 400 percent of the federal poverty level).  A sharply divided D.C. Circuit panel ruled in Halbig v. Burwell that the IRS exceeded its authority under the Affordable Care Act in offering these credits, and ordered the IRS rule vacated.  In contrast, a unanimous panel of the Fourth Circuit ruled in King v. Burwell that the IRS did not exceed its authority.

The split makes it all the more certain (if ever there were ever any doubt) that this issue is heading to the Supreme Court for yet another judicial showdown between Obamacare opponents and the administration.  If the high court upholds the D.C. Circuit ruling, that could mark the end of Obamacare.  That's because health insurance for those in states with a federally operated exchange (and with incomes between 100 and 400 percent of the poverty line) could be cost prohibitive without tax credits (that's the whole purpose of tax credits, to make insurance affordable); and if as a result those individuals don't purchase insurance, that significant portion of the population would fall outside the broader insurance pool, undermining the key structural assumption of Obamacare, that everyone's covered. 

Remember: We only have federally operated exchanges because many states declined to establish their own exchanges (often for political reasons--to register dissent or lack of cooperation with the ACA in general).  All indications are that Congress passed, and the president signed, the ACA on the assumption that states would establish their own exchanges, and that the federal government wouldn't have to. That turned out to be wrong.  That, in combination with some less-than-perfect legislative language, led to the D.C. court's ruling.

The crux of the case involves the administration's authority to offer tax credits to purchasers on federally operated exchanges, and not just state operated exchanges.  Opponents of the credit argue that the plain language of the ACA allows credits only for purchasers on state operated exchanges.  The administration says that a broader, contextual reading of the ACA, along with an understanding of congressional intent, allows credits for purchasers on federally operated exchanges, as well.

We posted more details on the D.C. case (in the lower court) here.

The ACA authorizes the tax credit to subsidize the purchase of insurance on an "Exchange established by the State under section 1131 of the [ACA]."  But other sections of the Act treat an "Exchange" as only a state-created exchange.  And yet a different portion requires the federal government to establish an operate an "Exchange" if a state declines to do so.  (Other portions of the Act are relevant, too, but these are the key portions.)

In short, the D.C. Circuit said that the ACA's language was plain and unambiguous, and that it authorized tax credits only for state-established exchanges. It also said that the scant legislative history on this point did not change that result.

The Fourth Circuit, and the dissent in the D.C. Circuit, said that when read together these portions of the ACA could mean that the federal government stands in the shoes of a state when the federal government establishes an exchange, and that the federally established exchanges are therefore also "Exchange[s] established by the State" for the purpose of the Act.  They also said that the legislative purpose of the ACA supports this reading.  Because of the ambiguous language, the IRS could interpret it in any way that's reasonable.  And its interpretation was reasonable.

Obama (& Bush) on Executive Orders Regarding LGBT Discrimination and Religion

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

Today President Obama signed an Executive Order:  "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity." 

Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.

Here's the video put out by the White House:

 

 And here are some more specific details:

The Executive Order  broadens the terms of prohibited discrimination in federal employment in Executive Order 11478  by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."

It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."

As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279,  which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

But what about Bush's Executive Order?  Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial. 

This might be a good time to reread Michele Gilman's terrific article from 2007,  If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007).  Gilman argues that Bush has exceeded his constitutional powers.  Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.

And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.

While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo.   It allows religious entities to discriminate on the basis of religion, but not on any other basis.  The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit."   It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.

Ninth Circuit Delays Execution Until Condemned Gets Information

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit on Saturday ordered the delay of a scheduled execution until the condemned prisoner gets information about the two-drug cocktail that Arizona plans to use.  The court ruled (on a motion for a preliminary injunction) that Joseph Rudolph Wood III had a likelihood of success on the merits, or that he raised a "serious question" on the merits, that the state's denial of information violated the First Amendment. 

The order comes on the heels of a ruling last week by a California federal district judge that the death penalty violates the Eighth Amendment.  The court's opinion noted the recent botched executions in Oklahoma and Ohio in recognizing the need for publicity and public scrutiny of methods of execution.

The court held that Wood likely had a First Amendment right to information about the cocktail.  The court said that this right derived from the First Amendment right to information about different stages the criminal process, and in particular the right to view executions in California First Amendment Coalition, a Ninth Circuit case that says that "the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber . . . ."

The court also looked to historical practice in transparency in execution methods.  It said that the "evidence does not conclusively establish a historical tradition of public access to the sources of lethal injection or the qualifications of executioners," but still

such exhaustiveness is not required at the preliminary injunction stage.  Instead, we ask only whether Wood raises "serious questions" going to the merits.

Answer: Yes, he does.

The ruling means that Arizona has to provide more particular information about its method of lethal injection before it can execute Wood.  The ruling is a victory for transparency in executions and will likely contribute to the growing public pressure against the death penalty.

No Constitutional Damages for Victims of Rape in Military

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled on Friday that survivors of rape and sexual assault in the military did not have constitutional damage claims against military officers who failed to address the prevalence of sexual misconduct and retaliation in the Navy and Marine Corps, even in the face of congressional mandates to take action.  (The plaintiffs did not sue their assailants in this case; instead, they sued higher-ups for perpetuating and grossly mismanaging the problem.)  The ruling means that this avenue of relief--the constitutional tort--is unavailable, and that survivors will have to look elsewhere for a remedy.

The three-judge panel declined to apply a Bivens remedy to the survivors' claims that officers violated the First, Fifth, and Seventh Amendments.  (A Bivens remedy would have allowed the survivors to sue the officers for monetary damages, even though there's no statutory authorization for such a suit.)  The court said that "special factors" counseled against a Bivens remedy.  (The court did not say whether other avenues of relief were available, the other part of the Bivens inquiry.)  In particular, the court wrote that "the military context" and "Congress's extensive legislation on this specific issue" were "special factors that counsel decisively against authorizing a Bivens remedy."

The court rejected the plaintiffs' argument that rape and sexual assault were not "incident to service," and that therefore the military context shouldn't foreclose a Bivens remedy.  The court said that the plaintiffs did not sue their assailants for rape and sexual assault; instead, they sued higher-ups for creating and failing to change a hostile environment--"a decade's worth of military management decisions," which, according to the court, is exactly the kinds of military decisions that fall outside Bivens's scope.

The court also rejected the plaintiffs' argument that officers ignored Congress in failing to establish an investigatory commission and failing to create a database.  The court said that Congress's extensive regulation of the issue, without creating a statutory civil damages remedy, was telling, and that it would violate separation-of-powers principles for the courts to step in and create a remedy when Congress declined.

The ruling aligns with the Fourth Circuit's Cioca v. Rumsfeld and adds to the recent line of cases rejecting Bivens claims for military torture, including Doe v. Rumsfeld, Vance v. Rumsfeld, and Lebron v. Rumsfeld.  In other words, it adds to the well established body of law that says that courts defer entirely  to the military in defining the kinds of military actions that fall outside of Bivens--even when those actions quite clearly have nothing to do with running a good ship.

Tenth Circuit on the Oklahoma Same-Sex Marriage Ban

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

What does the Tenth Circuit Court of Appeals panel decide in its 106 page divided opinions in Bishop v. Smith?  It's complicated.  

But essentially the Tenth Circuit affirms the district judge's opinion finding the Oklahoma ban on same-sex marriage unconstitutional and extends to Oklahoma its own ruling in Kitchen v. Herbert (by this same panel) from a few weeks ago finding Utah's same-sex marriage prohibition unconstitutional.

The complications are caused in part by the procedural posture of the case.   For the majority opinion, authored Judge Carlos Lucero, and joined by Judge Jerome Holmes (as was Herbert v. Kitchen),  the major issue was the standing of the plaintiffs, specifically on the "redressability" prong of standing.  Recall that Oklahoma has both a constitutional amendment and a statute limiting marriage to "a man and a woman" and that the Oklahoma constitutional amendment not only prohibits same-sex marriage but prohibits its recognition even if valid in another state.

The plaintiffs, in a lawsuit filed in 2004 soon after the state constitutional amendment was adopted, challenged only the state constitutional amendment but not the statute. 

Affirming the district judge, the Tenth Circuit held plaintiffs nevertheless had standing because "the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury."  However, again affirming the district judge, the plaintiffs did not have standing to challenge the "recognition" portion of the constitutional amendment because the defendant - - - the clerk of court - - - could not redress the non-recognition injury. 

This problem as to the non-recognition of marriage claim is further complicated by the fact that the Tenth Circuit, in considering a dismissal of the Governor and Attorney General as defendants who could redress the injury stated - - - or seemed to state?  - - - that the Clerk of the Court was the correct defendant.  Thus, under a "law of the case" argument, the courts should be bound by that determination.  The Tenth Circuit panel decided it was not bound, in part because of the "new evidence" of an affidavit by the Court Clerk describing her duties.  It also rejected a nonseverability of the recognition and nonrecognition portions of the provision, finding that because it had not been made earlier it was waived. 

As to the merits, the majority held that it was governed by its ruling in Kitchen v. Herbert, although facts and arguments differed "in some respects," the "core holdings are not affected by those differences."  The panel majority did discuss two additional arguments: a Baker v. Nelson argument that lower courts were not free to consider doctrinal developments and the addition of a government interest that "children have an interest in being raised by their biological parents."

Judge Holmes concurred separately to discuss why "animus" was not an appropriate analysis.  Judge Holmes notes that the district judge "wisely" did not rely on animus, and that most of the other decisions invalidating same-sex marriage laws have "exercised the same forebearance."  But, he noted, several other district judges have relied on animus, citing Baskin v. Bogan, Henry v. Himes, DeLeon v. Perry, and Obergefell v. Wymyslo - - - interestingly none of which are in the Tenth Circuit - - - and he used the concurrence to endeavor "to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine."

In his relatively brief partially dissenting opinion,  Judge Paul Kelly contended that there was no standing to challenge the constitutional amendment absent a challenge to the statute and would not reach the merits.  However, he also disagreed on the merits, as he did in the panel's decision in Kitchen v. Herbert.  For Judge Kelly, as he phrases it here:

Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes,  the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.

This will be the heart of the matter when - - - rather than if - - - these cases reach the United States Supreme Court.  For now, however, the Tenth Circuit stayed its "mandate pending the disposition of any subsequently-filed petition for writ of certiorari."

Obama Administration Challenges Congressional Subpoena

Steven D. Schwinn, John Marshall Law School

White House Counsel Neil Eggleston wrote this week to Congressman Darrell Issa, Chair of the House Oversight Committee, to explain why David Simas, Assistant to the President and Director of the White House Office of Political Strategy and Outreach, wouldn't appear before Issa's Committee this week.  Issa issued a subpoena to Simas as part of the Committee's investigation of possible Hatch Act violations in Simas's office.

Eggleston's letter to Issa explains that Simas, as an immediate presidential adviser, is absolutely immune from congressional testimonial subpoenas.  Eggleston cites a recently issued OLC memo (apparently not yet public) and the "longstanding position of Administrations of both political parties."

Indeed, the administration's position is exactly the same as the position of the Bush White House when Congress issued subpoenas to Harriet Miers and Karl Rove.  (Congress was investigating the firings of U.S. attorneys.)  That episode resulted in Committee on the Judiciary v. Miers, the D.C. Circuit ruling granting Miers and Chief of Staff Josh Bolton's motion for stay pending appeal of the lower court's ruling against them.  (The Committee and House held Miers in contempt and sued to get her to testify; she asserted absolute immunity under executive privilege.  The district court ruled that Miers was not absolutely immune and denied her motion for a stay pending appeal.)  The appeals court did not reach the merits, however.  Instead, Miers and Bolton effectively ran the clock on the case.

Issa is now reportedly considering holding Simas in contempt of Congress.

Although the claims of privilege are exactly the same, there is one big difference in the two cases: Issa opposed holding Miers in contempt. 

Rules Committee Hears Testimony on House Lawsuit Against President Obama

Steven D. Schwinn, John Marshall Law School

The House Rules Committee had a hearing yesterday on the House Resolution authorizing a lawsuit against President Obama for alleged overreach in implementing the Affordable Care Act. (We posted on some of these alleged overreaches here.)  Profs. Elizabeth Price Foley (FIU) and Jonathan Turley (GW) testified in support of the measure; Simon Lazarus (CAC) and Walter Dellinger testified against.

The big hurdle to a suit is standing: under current doctrine, the House lacks standing to sue (although Foley reiterated her theory of standing, and Turley argued that current standing doctrine is wrong).  Without standing, the courts won't hear the case.

And they shouldn't.  This is obviously a gimmick, not a serious constitutional challenge to the President's authority, as evidenced by the nonsense at yesterday's hearing.  Dana Milback over at WaPo hits the nail on the head.  (H/t to Darren Elliott.)  We might add that it's just a little ironic that political conservatives are now touting the benefits of open courts, access to justice, and an activist judiciary.

Supporters of the suit argue, among other things, that the courts are the proper venue for this dispute, because the House has no other realistic way to control the President.  (Changing the law or withholding appropriations won't work, they say, because a bill would also have to pass the Senate (and get signed by the President).)  But that's no standard for standing.  It also ignores the fact that Congress, even one party in Congress, has a whole panoply of ways to check and frustrate the President--which Republicans have used to great effect.  Finally, it proves too much: If there really are no political ways to check the President, maybe that's because the President's actions enjoy wide political support (because they help people, not harm them, and thus raise standing problems for anyone seeking to challenge them).

The Resolution authorizes the Speaker to "initiate or intervene in one or more civil actions on behalf of the House of Representatives" to force the President to "act in a manner consistent with [his] duties under the Constitution and laws of the United States with respect to implementation (and failure to implement) any provision of [the Affordable Care Act]."

The authorization doesn't identify a particular presidential action that violates the Constitution.  Turley identifies shifting funds between line-items in the budget to fund portions of the ACA and extending tax credits to health-insurance purchasers in states where the federal government runs the exchange, among others.  Lazarus offers good arguments why these are valid executive actions in implementing the ACA, and not violations of separation of powers principles.

O'Connor Releases Judicial Selection Plan

Justice Sandra Day O'Connor recently released The O'Connor Judicial Selection Plan, a set of recommendations for selecting and retaining state judges, developed in conjunction with the Institute for the Advancement of the American Legal System, or IAALS, at the University of Denver.  Here's O'Connor:

 

The plan has four parts: the creation of judicial nominating commissions; gubernatorial appointments; judicial performance evaluations; and retention elections.

The plan responds to "persistent efforts in some states to politicize the bench and the role of our judges."  It's designed as "a step toward developing systems that prioritize the qualifications and impartiality of judges, while still building in tools for accountability through an informed election process."

California Federal Judge Declares Death Penalty Violates Eighth Amendment

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

In his opinion today in Jones v. Chappell, federal judge Cormac Carney vacated the death sentence of Ernest Dewayne Jones as violating the Eighth Amendment’s prohibition against cruel and unusual punishment.  

Jones was sentenced to death in 1995 and has been on "death row" in California State Prison at San Quentin since then.  For Judge Carney, this is precisely the problem.  As Carney writes:

Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

[emphasis in original]. 

Thus, it is not the arbitrariness in the imposition of the death sentence that is unconstitutional, but the arbitrariness in the execution of the death sentence that renders it unconstitutional.  

Judge Carney's analysis centered on his finding that of the more than 700 persons presently on California's "death row,"

their selection for execution will not depend on whether their crime was one of passion or of premeditation, on whether they killed one person or ten, or on any other proxy for the relative penological value that will be achieved by executing that inmate over any other.  Nor will it even depend on the perhaps neutral criterion of executing inmates in the order in which they arrived on Death Row. Rather, it will depend upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process.

Judge Carney then discussed Jones' situation as an example.

To be sure, however, Judge Carney did not view Jones' situation as unique.  Indeed, the opinion contains an 18 page color-coded appendix listing the status of more than 500 persons sentenced to death in California between 1978 -1997.   Here's a bit of it, with the entry for Ernest Jones:

Thus, Judge Carney's careful reasoning applies to every person sentenced to death in California, even those sentenced more recently.  California's Attorney General and Governor now have some serious litigation choices to make.

D.C. Circuit: No Free Speech for Complaining Teacher

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today that a former teacher in the D.C. schools did not enjoy protection under the First Amendment after he was fired for sending an e-mail complaining about his principal's misrepresentation of student test scores to former Chancellor Michelle Rhee. 

The teacher, Bruno Mpoy, had a long list of complaints against his principal, Donald Presswood, when he sent an e-mail to Rhee.  Nearly all of these involved classroom conditions.  But after Mpoy was fired (and undoubtedly aware of the first part of the Garcetti test and the D.C. Circuit's interpretation of it), he focused on this sentence in the e-mail:

Dr. Presswood, the principal of Ludlow Taylor, misrepresented students' performance and results on the DCCAS Alternative [the achievement test used to measure student learning and improvement].

Mpoy argued that this sentence was not written pursuant to his official responsibilities--and that he therefore jumped the first Garcetti hurdle by showing that he spoke "as a citizen."  (As a threshold matter, in order for a public employee's speech to enjoy First Amendment protection, the employee must have spoken (1) as a citizen and (2) on a matter of public concern.  Only then, if a plaintiff can so show, the court goes on to apply the free speech test, whether the government "had an adequate justification for treating the employee differently from any other member of the general public.")

The D.C. Circuit disagreed.  The court ruled that Mpoy wrote this sentence in his capacity as an employee:

In [the context of the e-mail], the sentence about the misrepresentation of the students' results was also plainly a greivance about Presswood's interference with Mpoy's duty to assess and ensure the achievement of his students.

That means that Mpoy didn't even get out of the gate under Garcetti.  No citizen speech; no protected speech; no First Amendment protection.

The court added a section to address the recently decided Lane v. Franks.  In that case, the Supreme Court held that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena," when testifying was outside the scope of the employee's "ordinary job responsibilities."  The court considered the possibility that the adjective "ordinary" signalled a narrowing of the area of employee speech left unprotected by Garcetti.  

But the court said that it didn't have to decide that; it ultimately didn't matter.  That's because the school officials could reasonably believe that they could have fired Mpoy--and therefore enjoyed qualified immunity.

On Remand, Fifth Circuit Panel Reconsiders UT's Affirmative Action Plan from Fisher v. University of Texas

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

By a divided opinion in Fisher v. University of Texas at Austin, a panel of the Fifth Circuit has held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

Recall that more than a year ago, the United States Supreme Court reversed the Fifth Circuit's finding in favor of the University (affirming the district judge).  The Court remanded the case for a  "further judicial determination that the admissions process meets strict scrutiny in its implementation."  The  opinion,  authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal"  of diversity and the University should receive no judicial deference on that point.

 Today's Fifth Circuit panel decision, authored by Judge Patrick Higginbotham, and joined by Judge Carolyn Dinen King, first decided that it would consider the case.   The panel rejected the standing arguments, including the fact that Abigail Fisher graduated from another university in 2012, because the "actions of the Supreme Court do not allow our reconsideration" of the standing issue.  In other words, the Court knew about the standing issues when it remanded the case in June 2013.  The panel also carefully considered the Court's remand language: "The judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion.”  Fisher argued that the Court required the Fifth Circuit to perform the reconsideration, while the University of Texas argued that the matter should be remanded to the district judge.  On this issue, the Fifth Circuit sided with Fisher, holding that because "there are no new issues of fact that need be resolved, nor is there any identified need for additional discovery; that the record is sufficiently developed; and that the found error is common to both this Court and the district court," a remand to the district judge  "would likely result in duplication of effort."

The panel majority's opinion then discussed in detail the University of Texas at Austin's admissions policies and efforts.  It noted:

“Narrow tailoring does not require exhaustion of every race neutral alternative,” but rather “serious, good faith consideration of workable race- neutral alternatives that will achieve the diversity the university seeks.”  Put simply, this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race- conscious admissions program—in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.

Nevertheless, the panel recognized that this "automatic admissions plan" - - - the Top Ten Percent plan - - - achieves diversity because of the segregation of Texas' high schools.  Under the "holistic view" of Grutter for the remaining 20%, absent a consideration of race, the selection would not be racially diverse.

appendix 2 in the opinion

Concluding its 40 page opinion, the panel wrote:

In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals— each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school— whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws from majority-white and majority-minority schools flows directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.

....  the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.

Dissenting, Judge Emilio Garza essentially contended that the majority was giving deference to the University.  He noted that it is not impossible  "for a public university to define its diversity ends adequately for a court to verify narrow tailoring with the requisite exacting scrutiny," even with the use of "critical mass."  But he somewhat confusing stressed that

What matters now, after Fisher, is that a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals.

Yet what will matter now is whether this panel will have the last say.  The Fifth Circuit could grant en banc review or the United States Supreme Court will grant certiorari and take yet another look at affirmative action.