Constitutional Law Prof Blog

Oklahoma Supreme Court Declares Ten Commandments Monument at State Capitol Unconstitutional Under State Constitution

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

In a relatively brief opinion today in Prescott v. Oklahoma Capitol Preservation Commission, Oklahoma's highest court found that a Ten Commandments monument on the Oklahoma Capitol grounds violated the state constitution, Article 2, Section 5, which provides:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

  While the monument was a gift and no public funds were expended to acquire the monument, the court agreed that its placement on the Capitol grounds constituted the use of public property for the benefit of religion, emphasizing that the constitutional provision included the words “directly or indirectly.”

The court noted that the Legislature and Governor authorized the monument relying on the United States Supreme Court’s decision Van Orden v. Perry (2005), but noted that Van Orden was decided under the First Amendment’s Establishment Clause.  Here, the Oklahoma Supreme Court interpreted the broader and more precise language of the Oklahoma state constitution.  The Oklahoma Supreme Court’s opinion contained the requisite language insulating it from United States Supreme Court review under the adequate and independent state grounds doctrine so important to federalism:

“Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).”

Two justices dissented, without opinion. 

image Ten Commandments Austin, Texas, via

 

Court Puts Union Fair Share on the Chopping Block

Steven D. Schwinn, John Marshall Law School

The Supreme Court today agreed to hear Friedrichs v. Cal. Teachers Association, and certified the first question as "Should Abood be overruled?" The case is just the latest foray into the First Amendment challenges to union fair share dues requirements. The Court has been chipping away at this in its last few rulings. This case will likely mean the end of union fair share requirements under the First Amendment.

We've posted a lot on this issue (search the blog for "Abood"), most recently here.

Daily Read: Corey Robin on Dignity (and Whitney Houston)

Over at his eponymous blog, CUNY-Brooklyn Political Science professor Corey Robin has an interesting take on the controversial passage from Justice Thomas's dissent in Obergefell criticizing the "dignity" rationale of Kennedy's opinion for the Court by stating in part that slaves" did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. " 

Robins's post, "From Whitney Houston to Obergefell: Clarence Thomas on Human Dignity," is worth a read, and even worth a listen if you are so inclined.

 

 

Court Hands Victory to the People in Redistricting

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission that federal law and the Elections Clause permit the people of Arizona to create, by referendum, an independent redistricting commission and vest it with authority to redraw congressional districts.

Arizona voters designed the Commission to take redistricting authority away from the state legislature and put it in the hands of an independent authority. In validating the Commission, the Court handed a significant victory to the voters--the People themselves--as against the state legislature and its partisan gerrymandering. The ruling means that Arizona's independent commission stays in place and can continue its work redrawing congressional districts.

Here's our oral argument review.

The key dispute between the majority and dissent is how to cast the exercise of redistricting power through referendum: the majority says that the people themselves hold government power, and therefore hold "legislative" power under the Elections Clause to create an independent redistricting commission; the dissent says that only the legislature holds redistricting power under the Elections Clause.

Justice Ginsburg wrote for the Court, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. She wrote that 2 U.S.C. Sec. 2a(c)--which provides that "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment," it must follow federally prescribed redistricting procedures--permits redistricting by an independent commission created by voter referendum. She also wrote that the Elections Clause permits this. "The history and purpose of the Clause weigh heavily against [preclusion of the right of the people to create an independent redistricting commission], as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government."

Chief Justice Roberts wrote the principal dissent, joined by Justices Scalia, Thomas, and Alito. He wrote that the text, structure, and history of the Elections Clause say that only "the legislature" can prescribe "The Times, Places and Manner of holding Elections for Senators and Representatives."

Justices Scalia and Thomas each wrote their own dissents, each joined by the other.

Court Rejects Challenge to OK Lethal Injection

Steven D. Schwinn, John Marshall Law School

The Supreme Court in Glossip v. Gross rejected an Eighth Amendment challenge to Oklahoma's three-drug lethal injection cocktail. The ruling deals a blow to opponents of the death penalty and leaves in place a protocol that's resulted in a spate of gruesome and botched executions. It also means that the plaintiffs' executions will move forward under Oklahoma's protocol.

The case was important, because victory for the challengers would have left states with few, if any, viable and sustainable options for administering lethal injection--and may have marked the de facto beginning of the end of the death penalty. (That's why some states have explored other methods of execution recently.) But there was no victory for the challengers, so the ruling allows states to move forward with a popular, but deeply flawed, cocktail.

If the past is any indicator, opponents of the death penalty will now work outside the courts to get suppliers of Oklahoma's new drug to stop providing it to states that use it for lethal injections--the same strategy they used to force Oklahoma to turn to a new protocol in the first place. And if the past is any indicator, they'll be successful, which might, in turn, lead to the next protocol and the next challenge.

We posted on the oral arguments here.

Challengers argued that Oklahoma's use of the sedative midazolam as the first drug did not reliably induce and maintain a deep, coma-like unconsciousness that would render a person insensate to the excruciating pain caused by the second and third drugs (which paralyze and cause cardiac arrest, respectively). Oklahoma turned to midazolam after suppliers for the state's previous first drugs dried up.

Justice Alito wrote for the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Alito wrote that the challengers didn't show that the state's use of midazolam created a demonstrated risk of severe pain, substantial compared to alternatives, and that they didn't identify a viable alternative. Justice Alito credited the district court's factual findings as to midazolam's ability to stop pain, and wrote that the district court didn't clearly err in finding that alternative drugs (the state's old drugs) were unavailable.

Justice Sotomayor wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Kagan. She argued that the district court erred in crediting the state's expert and in putting the burden on the challengers to identify a viable alternative to the state's use of midazolam.

Justice Breyer dissented, joined by Justice Ginsburg, and argued that the Court should entirely reevaluate the constitutionality of the death penalty. Justices Scalia and Thomas each wrote concurrences addressing Justice Breyer's points.

Court Grants Certiorari in Fisher v. UT Austin (Redux)

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

The Court has granted certiorari in Fisher v. University of Texas at Austin, which means the affirmative action in university admissions will be making its second trip to the United States Supreme Court.  Justice Kagan is recused.

Recall that in June 2013, 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.

On remand, recall that by a divided opinion, a panel of the Fifth Circuit held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

The Court's grant of certiorari might mean that the Court - - - or at least 4 of its members - - - disagrees with the Fifth Circuit's application of narrowly tailored.  Justice Kagan's recusal could be an important factor in any decision.

Fisher graduated from another university in 2012, but the courts have rejected arguments regarding mootness.

 

Court Decides Fourteenth Amendment Requires States to License Same-Sex Marriage

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

In a closely-divided opinion, with the majority written by Justice Kennedy, the Court has decided that the Fourteenth Amendment requires states to license same-sex marriages in Obergefell v. Hodges.   The opinion rests on both due process and equal protection grounds.  The majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan - - - there are no concurring opinions - - - is less than 30 pages, plus 2 appendices including the citations of same-sex marriage opinions.  Each of the four dissenting Justices - - - Chief Justice Roberts and Justices Scalia, Thomas, and Alito - - - wrote a separate dissenting opinion, with some joinders by other Justices. 

The decision that the Fourteenth Amendment requires states to license same-sex marriages renders the second certified question regarding recognition irrelevant, as the discussion during oral arguments made clear.

Recall that the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.

 

[image Donkey Hotey]

On the due process issue, Kennedy's opinion for the Court concludes that the right to marry is fundamental because:

• the right to personal choice regarding marriage is inherent in the concept of individual autonomy, relying on Loving and Lawrence;
• it supports a two-person union unlike any other in its importance to the committed individuals, relying on Grsiwold, Rurner v. Safely, and Lawrence;
• to safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, relying on Pierce v. Society of Sisters and Windsor;
• Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order, relying on Maynard v. Hill (1888).

Regarding equal protection, The Court does not articulate a standard for sexual orientation, but discusses the interlocking nature of the constitutional safeguards, relying on Loving, Zablocki v. Redhail, as well as the Lawrence.

 

The Court's opinion does address the "religious liberty" conflict of rights argument:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

In dissent, Chief Justice Roberts - - - who some thought might join the majority and in a rare performance read from his dissent on the bench - - - emphasized that limited nature of judicial review and the power of the Court, concluding that the majority's opinion is an "extraordinary step" and predicting that because it is a decision of "five lawyers" this will make the "dramatic social change that much more difficult to accept."

 

The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order. - See more at: http://live.scotusblog.com/Event/Live_blog_of_opinions__June_26_2015#sthash.OLg4SIRd.dpuf

Court Rebuffs Attack on Obamacare Subsidies

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today that the Affordable Care Act means exactly what Congress thought it meant in the first place: everybody should get--and be able to get--health insurance.

The Court ruled in King v. Burwell that the ACA authorizes federal tax subsidies for qualified purchasers of health insurance on federally-subsidized exchanges. The ruling means that qualified purchasers will continue to receive federal tax subsidies for their health insurance, that they won't go without insurance (at least not for a lack of subsidies), and that Obamacare remains intact.

Opponents attacked the subsidies, arguing that the ACA authorized subsidies only for purchasers on state exchanges, not federally-facilitated exchanges, and that the IRS had to stop extending subsidies to purchasers on federally-facilitated exchanges. Their argument turned on a single phrase in the Act, that subsidies extend to "an Exchange established by the State," despite the overwhelming evidence that the Act, as a whole, was designed to provide universal coverage. Our oral argument preview is here.

The Court today rejected the opponents' arguments. Chief Justice Roberts wrote the majority opinion, joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. He wrote that the phrase "an Exchange established by the State" was ambiguous, given the way the rest of the Act hung together, and that the Court therefore should give the phrase a reading that harmonizes with the rest of the Act, including the Act's clear purpose to provide universal coverage. That reading, he wrote, meant that tax subsidies extend to purchasers on both state-created and federally-facilitated exchanges.

Chief Justice Roberts's opinion is notable for its recognition of the several key components of Obamacare (guaranteed issue, community rating, individual mandate, and tax subsidies) and how they are designed to operate together to ensure universal (or close to universal) coverage. The majority opinion also discussed in some detail how these components evolved and ended up in the ACA and the health-care and health-insurance problems they were designed to solve (including the death spiral).

But Chief Justice Roberts also took the opportunity make a dig on process--how the legislative road to the ACA was hurried and lacked transparency.

Justice Scalia wrote the dissent, joined by Justices Thomas and Alito. The dissent was predictably colorful, but comes down to this:

The Court holds that when the Patient Protection and Affordable Care Act says "Exchange established by the State" it means "Exchange established by the State or the Federal Government." This is of course quite absurd, and the Court's 21 pages of explanation make it no less so.

The Constitutional Concerns in the Supreme Court's Fair Housing Act Case

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

The Court's closely divided opinion in Texas Department of Housing and Community Affairs  v. Inclusive Communities Project, Inc., centers on the issue of whether the Fair Housing Act, 42 U. S. C. §3601 et seq., authorizes disparate impact (as distinguished from disparate treatment) claims.  Writing for the Court, Justice Kennedy held that it does.  Kennedy's statutory construction largely rests on interpretations of two precursor discriminatory statutes: Title VII (regarding employment) and the ADEA (prohibiting age discrimination).  It also rests on Congress's 1988 amendments to the FHA which seemingly ratified the availability of disparate-impact liability. 

Dissenting, Justice Thomas argued that the recognition of disparate-impact in Title VII by the Court in Griggs v. Duke Power (1971), was incorrect then and that error should not be repeated.  In the primary dissent, by Justice Alito, and joined by Thomas, Scalia, and Chief Justice Roberts, the Court's opinion in Griggs is less disparaged.  Instead, Alito argues that Griggs does not support the disparate impact interpretation of FHA, and that nothing in the FHA itself supports such an interpretation.  Moreover, the dissent argues that disparate impact liability will have "unfortunate consequences" of increasing liability, echoing the dissent's graphic opening "No one wants to live in a rat's nest." 

While a statutory interpretation question, Kennedy's opinion for the Court contains two important constitutional law matters.

First, the Court states that disparate-impact liability "has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity."  Statistics are insufficient because there may be valid interests being served by the housing developers "analogous to the business necessity standard under Title VII" and thus "a defense against disparate-impact liability."  Additionally, there must be a "robust causality requirement": "racial imbalance" without a specific link to the defendant's policy or policies causing the disparity cannot be sufficient.  These "safeguards" are necessary lest FHA enforcement "set our Nation back in its quest to reduce the salience of race in our social and economic system."

Second, should a court find a disparate-impact violation of FHA, the remedies a court can order must be constitutional:

Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that “arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e].” Ibid. If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means. See Richmond v. J.A. Croson Co., 488 U. S. 469, 510 (1989) (plurality opinion) (“[T]he city has at its disposal a whole array of race- neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races”). Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions.

While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion. Cf. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 789 (2007) (KENNEDY, J., concurring in part and concurring in judgment) (“School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; [and] drawing attendance zones with general recognition of the demographics of neighborhoods”). Just as this Court has not “question[ed] an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the [promotion] process,” Ricci, 557 U. S., at 585, it likewise does not impugn housing authorities’ race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patterns. When setting their larger goals, local housing authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the outset.

[ellipses in original].

Thus, Kennedy for the Court reiterates the so-called "affirmative action" cases that would be used to measure any remedies ordered for a finding of racial discrimination.  Justices Ginsburg, Breyer, Sotomayor, and Kagan, who joined Kennedy's opinion here, might not subscribe entirely to those views given their other opinions on race and equal protection.  

[image: Fair Housing Protest, Seattle 1964, via]

Supreme Court Decides Raisin USDA Program is an Unconstitutional Taking

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

The United States Supreme Court's opinion in Horne v. Department of Agriculture (USDA)
decisively declares the USDA's "California Raisin Marketing Order," under which a percentage of a grower's crop must be "put in reserve" is unconstitutional under the Fifth Amendment's Takings Clause. 

This regulatory program, under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., regarding raisins, is similar to other USDA programs and thus could have wide application. 

By resisting the program on behalf of "farmers," the Hornes have become "outlaws" or heroes of sorts. This is the second time that the Hornes have been to the Supreme Court: Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for a taking. 

Today, again reversing the Ninth Circuit, the Court held that a taking did occur and that the Hornes were entitled to just compensation under the Fifth Amendment.  Only Justice Sotomayor dissented from this conclusion, but Justices Breyer, Ginsburg, and Kagan did not join Chief Justice Roberts's opinion for the Court regarding the determination of "just compensation."

Relying on a Magna Carta provision regarding corn as well as on colonial history, Chief Justice Roberts's opinion for the Court concludes that the Fifth Amendment's Taking Clause applies with equal force to personal property as to real property.  Any distinction between real and personal property might be relevant in a regulatory takings case, but the Court stressed that this is a "clear physical taking": "Actual raisins are transferred from the growers to the Government."  (Whether this happens in a physical seizure was debated in the contentious oral argument and made another appearance in a to-and-fro between the Court's opinion and Sotomayor's dissent).  For the Court, growers thus lose "the entire 'bundle' of property rights in the appropriated raisins."  Dissenting, Justice Sotomayor disagrees that it is the entire bundle and thus disputes this conclusion.  Given this physicality, it is irrelevant for the Court that the USDA could achieve the same ends through a regulatory taking (such as prohibiting the sale):

A physi­cal taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

The Court also rejected the notion that because the USDA program reserved a contingent interest in the raisins for the growers that this relieved the government duty to pay just compensation. 

The Court also found that the USDA mandate to reserve raisins as a "condition" for engaging in interstate commerce effected a per se taking.  In reaching this conclusion, the Court rejected the Ninth Circuit's observation that the growers could grow other crops or use the grapes differently - - -

“Let them sell wine” is probably not much more comfort­ing to the raisin growers than similar retorts have been to others throughout history.

The Court also reached this conclusion by distinguishing other takings cases and other products. Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984) is inapplicable because "raisins are not dangerous pesticides; they are a healthy snack."  Leonard & Leonard v. Earle, 279 U. S. 392 (1929) is likewise inapposite because "Raisins are not like oysters: they are private property— the fruit of the growers’ labor—not “public things" such as oysters that belonged to the state under state law.

The majority [corrected] of the Court determined that the "just compensation" owed to the Hornes is the fair market value of the raisins, the subject of the fine imposed by the USDA: $483,843.53.   Justice Breyer (and Ginsburg and Kagan), disagreeing with this conclusion, would remand the matter for a determination.  It is not that Justice Breyer disagrees that this was the amount of the fine, but that he disputes that this is the actual fair market value absent the taking.  In other words, the raisin reserve program operated to increase the cost of raisins.  Thus, without the program benefit, the raisins in reserve may have been worth much less that the amount fined, or even, Justice Breyer suggests, nothing at all.  He contends that the question of evaluation was not properly briefed before the Court.  For the Chief Justice, however, "This case, in litigation for more than a decade, has gone on long enough."

[image: 1916 California Sun Maid Raisin Recipe Book via]

Court Strikes Warrantless Hotel Registry Searches

Steven D. Schwinn, John Marshall Law School

The Supreme Court today struck a Los Angeles city ordinance that required hotels to make available their guest records "to any officer of the Los Angeles Police Department for inspection . . . ." But at the same time the ruling specifically allows the city to require hotel owners to keep and retain a guest registry and says that officers can search it if they only get a warrant (even just an ex parte administrative warrant), or satisfy an established exception to the Fourth Amendment warrant requirement.

In short, the ruling in Los Angeles v. Patel only requires officers to jump through a hoop--an important hoop, to be sure, but perhaps only a minimally challenging hoop--before reviewing hotel records.

Still, the sharply divided ruling is a clear victory for Fourth Amendment enthusiasts for two reasons. For one, the ruling requires precompliance review of some sort in the ordinary case. This means that in most cases a neutral decisionmaker would review an officer's request to search the records before the search. For another the ruling underscores the fact that challengers can bring a facial case under the Fourth Amendment.

Justice Sotomayor wrote for the Court, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Sotomayor wrote that the LA ordinance violated the Fourth Amendment on its face. In particular, she said that ordinance authorized an extra-judicial administrative search (with no prior judicial approval and no probable cause requirement), and that kind of search requires the subject to "be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." The Court explained why that's important:

Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.

Although the Court recognized that it never really defined "precompliance review," the ordinance allowed no review and therefore violated the Fourth Amendment on its face. The Court said that the ordinance has to provide a hotel owner at least an opportunity for precompliance review; but because it didn't, it violated the Fourth Amendment.

The Court emphasized "the narrow  nature of our holding," saying that nothing in today's ruling prevents the city from requiring hotel owners from maintaining a guest registry with certain information, or authorizing the police to access that registry with appropriate Fourth Amendment protections, or under established Fourth Amendment exceptions.

Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justice Alito. Justice Scalia argued that a warrantless hotel records search was not unreasonable in every application (as required for a facial challenge), because hotels are closely regulated and therefore the government has more leeway in conducting warrantless administrative searches under New York v. Burger.

Justice Alito also dissented, joined by Justice Thomas. Justice Alito argued that the Court overreached with its facial ruling, that there are (at least) five applications of the ordinance that satisfy the Fourth Amendment, and that the Court's ruling means that LA can never enforce its "116-year-old requirement that hotels make their registers available to police officers."

Court Sets Objective Standard for Pretrial Detainee Civil Rights Action

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Kingsley v. Hendrickson that a pretrial detainee need only show that an officer's use of force was objectively unreasonable--and not subjectively unreasonable, a higher standard--in order to prevail on an excessive force claim. The ruling reverses the Seventh Circuit, which affirmed a trial judge's jury instruction that set the bar at the higher subjective standard, and remands the case for an application of the lower objective standard.

The ruling means that a pretrial detainee's burden in an excessive force claim is lower than the standard upheld by the Seventh Circuit. That's good news for pretrial detainees who bring civil rights claims. But the Court was quick to say that a detainee still has other hurdles to jump--including qualified immunity.

Justice Breyer wrote for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Breyer wrote that the trial court's jury instruction based on a subjective standard--that "[e]xcessive force means force applied recklessly that is unreasonable in light of the facts and circumstances [and]  [d]efendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff's safety . . . ."--should have been been based on an objective standard--that "the force purposely or knowingly used against him was objectively unreasonable."

Justice Scalia wrote the principal dissent for himself, Chief Justice Roberts, and Justice Thomas. Justice Alito also dissented, arguing that the case should be dismissed as improvidently granted.

Sign Ordinance Violates First Amendment: Court Decides Reed v. Town of Gilbert

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

A unanimous Court, albeit with separate opinions, concluded that the extensive municipal signage regulations violated the First Amendment in Reed v. Town of Gilbert.

Recall from oral arguments that the town's regulations generally required a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.”  The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.” Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral.

Reversing the Ninth Circuit, Justice Thomas, writing for the Court, concluded that the Sign Code was content-based and did not survive strict scrutiny.  The Sign Code provision is content-based because, simply put, to determine if a sign is a "Temporary Directional Sign" one must determine whether the sign "conveys the message of directing the public" to an event.  It does not matter, Thomas writes for the Court, that the content may seem neutral:

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. *** In other words, an innocuous justification cannot transform a facially content- based law into one that is content neutral.

Once the Court decided there the regulation was subject to strict scrutiny, there was little doubt that the town would not be able to satisfy the standard.  Thomas assumed that the proffered governments interests of aesthetics and traffic safety were compelling, but quickly determined that that the manner in which they were being served was far from narrowly tailored. Instead, the regulations were "hopelessly underinclusive."

The concurring opinions take on the issue raised in oral argument about the constitutionality of any town's attempt to regulate signage.  Justice Kagan's concurring opinion, joined by Justice Ginsburg and by Breyer (who also has a separate concurring opinion) - - - but not by Justice Alito, who has his own brief concurrence, joined by Kennedy and Sotomayor (who also join the Thomas's opinion for the Court)- - - argues that strict scrutiny is not appropriate for all sign ordinances.  Kagan states:

Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms,  I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley. The second is to ensure that the government has not regulated speech “based on hostility—or favoritism— towards the underlying message expressed.” R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.

She instead argues that the "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive."  But it was evident that even the concurring Justices  did not view the Town of Gilbert's signage regulations as entirely reasonable.

Court Decides Specialty License Plate is Government Speech in Sons of Confederate Veterans License Plate

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

In a closely - - - and interestingly - - - divided opinion today in Walker v. Texas Sons of Confederate Veterans, the Court's majority decided that Texas's specialty license plate program is government speech and therefore rejected the First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.

Justice Breyer delivered the Court's opinion, joined by four Justices, Ginsburg, Sotomayor, Kagan, and - - - Thomas.  The dissenting opinion by Justice Alito was joined by Chief Justice Roberts, Scalia, and Kennedy.  And while Justice Breyer has become known for his appendices, this opinion has a simple one: the image of the rejected Sons of Confederate Veterans plate.  Meanwhile, Alito's dissenting opinion has a more extensive appendix; it includes the images of 58 specialty plates that Texas has approved.

As was evident in the oral arguments, and is frequently the case in First Amendment speech controversies, there was a definite choice of doctrine at stake.  Recall that the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination.  The Court today not only rejected that view, but it rejected the applicability of any forum analysis.  Instead, the Court applied the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) finding that there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.  This was raised at numerous points in the oral arguments and echoes the opinion of Judge Jerry Smith who had dissented in the Fifth Circuit's divided opinion.  Breyer did note that there were some aspects of Summum that were not exactly parallel, such as the permanence of the monuments in Summun, the opinion states that this was important because the public parks in Summun are traditional public forums, which is not the case for license plates.

And as for that other and most famous license plate case, Wooley v. Maynard (1977), the Court's majority opinion distinguished Walker because "compelled private speech is not at issue."  And indeed, if there is any compulsion of conveying ideological messages to be protected against here, it is that of the state being compelled to "include a Confederate battle flag on its specialty license plates."

Justice Alito's dissenting opinion has at its base a common-sense disagreement.  Noting the proliferation of specialty plates, supported by his Appendix, he asks:

As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?

Thus, he argues that what Texas has done by selling space on its license plates is to create a "limited public forum."

Walker v. Sons of Confederate Veterans could have wide-ranging effect. Does it give unfettered discretion to governments to decide license plate matters given that it is now government speech?  Consider that the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; that the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; and that a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld. 

Additionally, recent controversies about advertising on public transport, as in New York, the Sixth Circuit and Ninth Circuit,  could be reconceptualized after Walker v. Sons of Confederate Veterans.

Second Circuit Gives Detainee Case Against Ashcroft, Mueller the Go-Ahead

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.

The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.

Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."

The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.

The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."

The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.

The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.

Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.

The court concluded:

The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.

Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.

Judge Reena Raggi dissented.

Does Immigration Marriage Case Foreshadow Same-Sex Marriage Case?

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

In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband.  Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage.  Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due.  Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.

So what might this mean for Obergefell?  Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell.  On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case.  Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history.  While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage?  Perhaps.  But perhaps not.  Consider this:

Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Govern­ment here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases estab­lishing a right to marital privacy.

Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest.  The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage.  In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.

So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."

Henri Rousseau, "The Wedding Party," circa 1905, via

The Supreme Court on Marriage, Procedural Due Process, Terrorism, and Immigration: Kerry v. Din

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

The Court today issued its closely divided opinion in Kerry v. Din.  On this 800th anniversary of Magna Carta, both the plurality opinion by Justice Scalia and the dissenting opinion by Justice Breyer referenced the great charter's protection of what the Constitution's Fifth Amendment termed "due process of law." In Din, the due process rights of a citizen who obtained preferred immigration status for her spouse are at stake. Certainly the case is important in the immigration context, but how important might it be as a harbinger of the Court's impending decision in the consolidated same-sex marriage cases, Obergefell v. Hodges, argued in late April?  What Kerry v. Din might say about Obergefell is discussed here.

Charles Hawthorne, "Young man and woman in a dark, moody landscape," 1915, via 

In Kerry v. Din, a naturalized citizen, petitioned to have her husband, Berashk, classified as an “immediate relative” entitled to priority immigration status, and although this was approved, Berashk’s visa application was denied under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the consular officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed a complaint in federal court which was dismissed.  The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

In the plurality opinion joined by Chief Justice Roberts and Justice Thomas, Justice Scalia has harsh words for Din's claim of any right of "life, liberty, or property" to which due process would attach.  It is "absurd" and nothing in the caselaw "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection."  He characterizes her right as one to live in the United States with one's spouse, and concludes that such a right fails the Washington v. Glucksberg test requiring that any implicit right be "deeply rooted in this Nation's history and tradition."  Indeed, he argues that the history is exactly the opposite and discusses laws that mandated women "take the nationality of her husband on marriage."  While noting that modern " equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Justice Kennedy, joined by Justice Alito, firmly rejects Justice Scalia's conclusion: "Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse." Instead, Kennedy concludes that the "Court need not decide that issue," for "even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute's terrorism bar."  For Kennedy and Alito, the citation of the statute seemingly satisfies all the process that is due.

Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argues that there is a liberty interest flowing from the Due Process Clause itself and from the statutory scheme establishing immigration preferences.  In his critique of the plurality opinion, Breyer reminds readers that it "is not controlling."  He discusses a number of cases in which the Court has recognized liberty interests, perhaps most compellingly Goss v. Lopez (1975), involving students' interest in attending school and not being suspended, and which the plurality opinion seeks to distinguish. Regarding the "process due," Breyer notes that a statement of the reasons for a government action is an essential part of due process and one that a recitation of the statute in this case cannot satisfy given that it contains "dozens" of reasons.  Moreover, the government offered no factual basis. He argues:

The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.

Thus, the dissenters would recognize both the liberty interest of a spouse in her partner's visa denial and that procedural due process requires something more than the recital of a statute; Kennedy and Alito find that the statutory referral is sufficient process; and the plurality finds that there is no liberty interest of a spouse in her partner's visa denial.  It's a fragmented set of conclusions and its predictive value for the same-sex marriage cases raises some interesting possibilities.

Daily Reads: On the 800th Anniversary of Magna Carta

According to the usual history, "On June 15, 1215, in a field at Runnymede, King John affixed his seal to Magna Carta. Confronted by 40 rebellious barons, he consented to their demands in order to avert civil war."  The civil war was not successfully averted, but the document has come to symbolize principles of liberties and rights, including as a precursor to the United States Constitution. 

Important daily reads to celebrate the anniversary include:

    The document itself, with its specific items regarding freemen, property, writs, and the memorable "No-one is to be taken or imprisoned on the appeal of woman for the death of anyone save for the death of that woman’s husband."

    A good overview is from the BBC magazine, which points outs that most of its provisions applied only to ""Free men" who in 1215 accounted for less than half the population; the rest were serfs, to whom the charter did not apply, as well as women and children.

    ConLawProf Tom Ginsburg's Op-Ed in the New York Times entitled "Stop Revering Magna Carta," in which he argues that the Magna Carta's current status rests on a series of misunderstandings.

    The current celebrations and controversies in "England" including not only commemoration by Queen Elizabeth, but statements by Prime Minister Cameron that Great Britain must "restore" its dedication to "human rights" as evinced in Magna Carta by secession from the European Court of Human Rights and Human Rights Act.

 

Sixth Circuit Rejects Establishment Clause Claim Despite Bible Verse on Students' Report Cards

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

Reversing the district judge, a panel opinion of the Sixth Circuit in Smith v. Jefferson County Board of School Commissioners found that there was no Establishment Clause violation when a Tennessee public school board contracted with a "religious institution," Kingswood Schools, Inc.,  to provide "alternative-school" services for students suspended or expelled from their "ordinary schools."  The county school board entered into the contract because of a funding shortfall and over seven years paid Kingswood, 1.7 million dollars; the arrangement ended when the county resumed providing alternative-school services.

"But Jesus called them unto him, and said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God" Stained glass mage via

The majority's opinion by Judge Julia Smith Gibbons, coupled with a separate concurring opinion by Judge Alice Batchelder, illustrates the disarray of Establishment Clause doctrine.   Yet both the majority and concurring opinion settle on the "endorsement test" and find it is not satisfied.  Specifically, the majority considered the "voluntary assemblies" as well as whether the  "Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school- improvement plan" constituted endorsement.  As the majority described:

Students were required to submit a weekly family-feedback form—signed by their parents—in order to advance within the day program. That form contained the following quote from the Gospel of Luke: “Jesus . . . said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God.” Parents were also required to sign report cards, which contained the same Biblical text. Kingswood’s director testified that the scripture—from the Gospel of Luke—could be interpreted as an invitation into the kingdom of God. The same passage appeared, accompanied by crosses, on the school’s Easter 2006 letter. The letter claimed: “Kingswood School is unique because we offer children a Christian environment of love and encouragement. . . . Kingswood remains one of the few places where children in need can get help in a Christian environment. We are a non-profit faith based ministry . . . .”

Those who sought out the 2005 Annual Report saw that it contains a picture of the chapel and says that each child will receive Christian religious training, and that emphasis is placed upon “instilling in each child a personal faith in God, and the assurance of the saving grace of Jesus Christ.” The “school improvement plan,” completed before the Jefferson County contract and still in effect afterward, stated the belief that schools must provide for “spiritual growth” in order to serve the “‘whole’ student.”

The Kingswood website also contained some religious references. It claimed, for example, that “Kingswood has survived independently by remaining true in faith to the principles of a Christian education without being bound to the doctrine of a particular denomination or sect’s control.” It states that the school will take care of a child’s “spiritual and religious life,” although it will not compel a student to adopt any particular religious doctrine. The website refers to Kingswood as a “Christian charity,” and explains its “Methodist-rooted beginnings.” It says that the school “has observed a Christian approach that has remained inter- faithed and unaffiliated with a particular Christian denomination.”

In its analysis, the court characterizes the Christian language as "de minimus" and concludes that a "reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County."  The arrangement saved taxpayer money and the court found it noteworthy that no parents or students complained.  Instead, it reiterates that the complaint was by teachers of the public school who were terminated.  The complaint was originally dismissed for lack of standing; the Sixth Circuit reversed en banc in 2011.  The concurring opinion goes further and calls the case an "employment-contract dispute masquerading as an Establishment Clause case." 

Yet the Establishment Clause disarray is not attributable to the procedural posture or the application of the so-called "endorsement test," but to questions about the test to be applied.  According to the majority, there are "three main jurisprudential threads": the Lemon test; the endorsement test as a refinement of Lemon; and the "historical practice" test as articulated in Town of Greece v. Galloway, the closely-divided 2014 decision by the United States Supreme Court upholding a town council's prayer.  The majority finds the historical practice test inapposite, but the concurrence argues for its application.

Interestingly, the court majority distinguishes Doe v. Elmbrook School District, in which the Seventh Circuit en banc found that an Establishment Clause violation existed when the school held graduation ceremonies in a church. The United States Supreme Court denied certiorari in Elmbrook, over a dissent by Justice Scalia (joined by Justice Thomas), arguing that the lower court's opinion is "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway. In her concurrence, Judge Batchelder essentially agrees with Justice Scalia. Judge Batchelder asks whether the school board's "contract would be historically acceptable to the Framers," seemingly assumes that it would be, and then would engage in a "fact-sensitive" inquiry regarding coercion.  Judge Batchelder characterizes the biblical references as "innocuous," so presumably she would not find them coercive.

Yet bible verses on mandatory student correspondence that must be signed by parents on a weekly basis does seem to raise the specter of coercion - - - even if no parents or students of the "alternative-school" complained.

 

D.C. Circuit Vacates Military Commission Conspiracy Conviction

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit today vacated the conspiracy conviction by military commission of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacks. The court said that the conviction for inchoate conspiracy--a charge that's not an offense under the international law of war--violated the Article III power of the judiciary "by authorizing Executive Branch tribunals to try the purely domestic crime . . . ."

The ruling is a victory of Bahlul and a blow to the government in conducting military commissions. In short, the case says that the government's charge in a military commission must be recognized as violation of the international law of war, and that Congress lacks authority to define an otherwise domestic crime as an international law of war in order to vest a military commission with authority to convict for its violation.

But while the ruling is significant, it's almost certainly not the last word on this case that's already gone up and down the judicial hierarchy. In particular: It's gone en banc at the D.C. Circuit before, and seems likely to go en banc again, if not farther, to the Supreme Court.

The court ruled first that Bahlul's structural challenge (that his conviction violated Article III) was not waivable, and that the court could therefore hear it--and to hear it de novo--even though he didn't raise it below.

The court went on to say that while the government could conduct law-of-war military commissions under Ex Parte Quirin, Quirin and its progeny limit the charges to "offenses against the law of war." But the court held that inchoate conspiracy isn't one of those offenses, that even the government agreed that it isn't, and that Congress didn't have power to define it as such: "Congress cannot, pursuant to the Define and Punish Clause, declare an offense to be an international war crime when the international law of war concededly does not." The court held that because conspiracy is only a domestic offense, and not an international law offense, the Bahlul's conviction by military commission (an Article I tribunal, not an Article III court) impermissibly intruded into the Article III role of the courts.

The court rejected the government's arguments that historical practice and the Necessary and Proper Clause (augmenting the Define and Punish Clause) did the trick.

Judge Tatel, concurring, explained why he joined the en banc court when it previously said that the Ex Post Facto Clause did not prevent Congress from granting military commissions jurisdiction over conspiracy, but now joined Judge Rogers in saying that separation-of-powers did:

The answer is the standard of review. The en banc Court came down the way it did, and I voted the way I did, because al Bahlul had forfeited his [previous] ex post facto challenge by failing to raise it before the Commission, so our review was for plain error. Applying that highly deferential standard, the Court concluded that it was "not 'obvious that conspiracy was "not . . . triable by law-of-war commissions" at the time al Bahlul committed his crimes.

But the court reviewed Bahlul's structural challenge de novo. And "[i]n my view, whether Article III prohibits military commissions from trying conspiracy turns on what Ex Parte Quirin says and what Hamdan does not"--that "the law-of-war exception is exclusively international," and does not include domestic crimes.

Judge Henderson wrote a lengthy dissent, arguing that the majority's approach to Congress's power to define the international law of war would restrict Congress to only what the international community has said, and, worse, by the judiciary's reckoning:

My colleagues contend--as a matter of constitutional law, not simply comity--that the Congress cannot authorize military-commission trials unless the international community agrees, jot and tittle, that the offense in question violates the law of war. And the contend of international law is to be determine by--who else?--the Judiciary, with little or no deference to the political branches.