Constitutional Law Prof Blog

Tax Court is, Indeed, a "Court" (Under FOIA)

Steven D. Schwinn, John Marshall Law School

Judge Rudolph Contreras (D.D.C.) ruled in Byers v. United States Tax Court that the Tax Court is a "court," not an "agency," under FOIA. The ruling means that the Tax Court isn't subject to the plaintiff's FOIA request.

The case arose when Ronald Byers filed a FOIA request against the Tax Court. Byers argued that the Tax Court should be exempt from FOIA (as Article III courts are), because it's located in the Executive Branch.

Judge Contreras disagreed. He wrote that the touchstone for FOIA coverage of the Tax Court isn't where the Tax Court is located, but rather its nature. "[A] number of factors, including congressional intent, Supreme Court interpretation, and the function of the Tax Court, all suggest that the Tax Court is best understood as a court, not an agency, for the purposes of FOIA." And because FOIA exempts "courts of the United States," the Tax Court is exempt.

Eleventh Circuit Upholds PAC-to-PAC Transfer Ban

Steven D. Schwinn, John Marshall Law School

The Eleventh Circuit this week rejected a First Amendment challenge to Alabama's ban on PAC-to-PAC political contributions. The ruling upholds Alabama's ban and deepens a split in the circuits.

The Alabama Democratic Conference, an Alabama PAC perhaps best known for its yellow sample ballot that it distributes to voters, brought the case, arguing that Alabama's law that bans political contributions between PACs violates free speech. The ADC gets money from individual contributors, other PACs, and even candidates; it spends money in support of particular candidates and independent advocacy. The ADC uses separate bank accounts for candidate contributions and its own independent expenditures. Still, the state's PAC-to-PAC transfer ban prohibited the ADC from receiving money from other PACs. So it sued.

The Eleventh Circuit upheld the state's transfer ban. The court ruled that the state enacted the ban in response to a concern by state voters that PAC-to-PAC transfers were being used to conceal the true identity of political contributors--and raised the appearance of quid pro quo corruption. Moreover, the court said that the ADC didn't do enough to segregate its two accounts to reduce the appearance that it might use other PACs' contributions for candidate contributions. Because the ban was closely drawn to address the appearance of corruption, the Eleventh Circuit upheld it.

The ruling aligns with the Second and Fifth Circuits, but against the Tenth, on the question whether a PAC-to-PAC transfer ban violates free speech, when a PAC has two separate accounts, one for candidate contributions and the other for independent expenditures.

Alabama Chief Justice Roy Moore Suspended

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

In its 50 page opinion the Alabama Court of the Judiciary has suspended (former) Chief Justice Roy Moore for the remainder of his elected term on the Alabama Supreme Court. 

We've previously discussed the details of the judicial complaint and the Alabama Court of the Judiciary.  In short, Moore was charged with violations of the Alabama Canons of Judicial Ethics for his conduct in resisting same-sex marriage, involving federal court decisions of Searcy v. Strange, before the federal district court, finding Alabama's same-sex marriage ban unconstitutional in January 2015; Strawser v. Strange, before the federal district court, reiterating the previous finding and making a direct order in February 2015, after the United States Supreme Court had refused to grant a stay of the earlier Order; and Obergefell v. Hodges, decided by the United States Supreme Court and requiring states to grant same-sex marriages.  Chief Justice Moore's own rulings and orders essentially stated these federal court rulings did not apply in Alabama.

The Court of the Judiciary found that Moore lacked judicial integrity in numerous instances.  For example, regarding Moore's January 2016 Administrative Order to all probate judges that they continue to have a ministerial duty to enforce the Alabama marriage laws against same-sex couples, the Court found that it was "incomplete, misleading, and manipulative," and intentionally failed to include binding federal authority, the clear purpose of which was to order and direct "probate judges" - - - most of whom are not admitted to practice law - - - not to comply with federal law.  This is a clear problem under Cooper v. Aaron, which Moore knew.

The Court found that the proper sanction was removal of Moore from office without pay for the remainder of his term. (Terms of office are 6 years; Moore was elected to office in 2013).  This is not the first time Moore has been removed from office; he was also removed in 2003, but was re-elected ten years later.  This time, however, Moore will be over the age-cap for the Alabama judiciary by the time his suspension expires.

Moore can appeal to the Alabama Supreme Court - - - the very court from which he sat and has been suspended.  He not doubt will.

 

 

 

 

SCOTUS Adds Two First Amendment Cases to Docket: Trademarks and Surcharge Laws

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

The United States Supreme Court has added two notable First Amendment speech cases to its docket of constitutional law cases.

In Lee v. Tam, the Court will consider whether the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, violates the First Amendment.  Recall that the en banc Federal Circuit held the provision invalid in  In Re Simon Shiao Tam, in which the central issue was the denial of a trademark registration to "The Slants" by the applicant Simon Shiao Tam, on behalf of the Portland, Oregon "all Asian American dance rock band."  Looming large but in the background are controversies regarding the names of athletic teams that many believe are disparaging.

In Expressions Hair Design v. Schneiderman, the Court will consider a New York state law prohibiting credit-card surcharges infringes free speech.  Recall that while the expressive element in the challenge to pricing regulation is not immediately obvious, one articulation of the issue is that while "price" is not expressive, the statute actually bans an expressive label it disfavors ("credit-card discount") while permitting one a label it approves ("cash discount").  The district judge found this persuasive and held the law unconstitutional, while the Second Circuit reversed.  Moreover, similar issues have reached the Eleventh and Fifth Circuits, with a split amongst the courts.

First Circuit: Statute Prohibiting "Ballot Selfies" Violates First Amendment

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

In its opinion in Rideout v. Gardner, the First Circuit, affirming the district judge, held that New Hampshire's prohibition of "ballot selfies" violates the First Amendment.

New Hamp. Rev. Statute §659.35, I, was amended in 2014 to provide:

No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

(amended language underlined). The rationale for the statute was to prevent situations in which voters could be coerced into providing proof that they voted in a particular way, and thus as a means to prevent vote-coercion or vote-buying. 

polling place 1900 via

Judge Sandra Lynch's succinct opinion for the First Circuit panel includes a discussion of the nineteenth century practice in which political parties and other organizations had the power to print their own ballots, which they printed in a manner as to make the ballots easily identifiable by size and color.  "This practice allowed the ballot-printing organizations to observe how individuals voted at the polls, which in turn created an obviously coercive environment. "  Thus, "New Hampshire undertook a series of reforms to combat widespread vote buying and voter intimidation" and in 1891 passed legislation requiring the Secretary of State to prepare ballots for state and federal elections, and in 1911 passed the precursor statute forbidding any voter from allowing the "ballot to be seen by any person, with the intention of letting it be known how he is about to vote."

New Hampshire's problem in defending the constitutionality of the 2014 statute is that the problem of vote-buying and coercion has been solved.  As Judge Lynch stated, New Hampshire could not point to any such incidents since the nineteenth century (with the last complaint, seemingly unsubstantiated, being in 1976).  While the state's interests might be compelling in the abstract, they need to be real.  A broad prophylactic prohibition is unwarranted, despite worries about new technologies and media.  Indeed, Judge Lynch wrote:

Digital photography, the internet, and social media are not unknown quantities -- they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, "small cameras" and digital photography "have been in use for at least 15 years," and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter's publishing a photograph of a marked ballot during that period.

And even if there were a present problem that needed solving, "the statute still fails for lack of narrow tailoring."  Judge Lynch's opinion for the panel stated that the statute infringed on the rights of all voters and not the smaller (or even nonexistence) pool of those motivated to cast a vote for illegal reasons.  Additionally, there exist other state and federal laws prohibiting vote corruption which are adequate to address the problem, should it arise.  In an interesting footnote, the court lists statutes from other states allowing ballot selfies and notes that these states have not reported "an uptick" in vote buying or voter intimidation.

The First Circuit opinion applied intermediate scrutiny under the First Amendment.  The district judge had concluded the New Hampshire statute was a  content-based regulation and applied strict scrutiny.  However, relying on McCutcheon v. FEC (2014), the First Circuit reasoned that given that the statute fails the lower intermediate standard, the court need not "parse the differences" between the two standards in this case.  Nevertheless, the First Circuit did note that the New Hampshire statute affects voters who are engaged in "core political speech," and in a footnote quoted from the amicus brief for Snapchat that "younger voters" especially use ballot selfies as political expression.

Governments contemplating prohibiting "ballot selfies" would be wise to reconsider after a read of Rideout v. Gardner.

Call for Papers: Symposium on the Constitution of Canada

Scuola Sant' Anna and the STALS (Sant' Anna Legal Studies) Project are hosting a symposium on The Constitution of Canada: History, Evolution, Influence and Reform in Pisa, Italy, on May 24, 2017. Hosts are calling for papers:

Submissions are invited from scholars at all levels--from senior scholars to doctoral students--on one or more of the following subjects. We invite participants to take any methodological approach they wish, including comparative, doctrinal, empirical, historical and/or theoretical perspectives.

1.    The History and Evolution of the Constitution of Canada

2.    The Influence Abroad of the Constitution of Canada

3.    Canada's "Invisible" Constitution

4.    Reforming Canada's Constitution: Perspectives from Abroad

500-word abstracts are due by December 15, 2016, to stalsworkshop2016@gmail.com. The full call is here.

You can direct questions to Giuseppe Martinico, at martinico@sssup.it.

SCOTUS ConLaw Cases Preview for 2016-17 Term

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

The United States Supreme Court hears only small fraction of cases: The Court hears about 80 cases a year, of the approximately 8,000 requests for review filed with the Court each year, flowing from the approximately 60, 000 circuit court of appeals decisions and many more thousands of state appellate court opinions. And of this small fraction, generally about half involve constitutional issues, including constitutional criminal procedure issues.

Not surprisingly then, with the new Term starting October 3, the traditional first Monday in October, there are only a handful of constitutional law cases included among the less than 30 the Court has already accepted.

The Court is set to hear two racial gerrymandering cases, both of which involve the tensions between the Voting Rights Act and the Equal Protection Clause with underlying political contentions that Republican state legislators acted to reduce the strength of Black voters; both are appeals from divided opinions from three-judge courts. In Bethune-Hill v. Virginia State Board of Elections, the challenge is to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Virginia concededly did consider race in the redistricting, but the more precise issue is an interpretation under current doctrine regarding whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court is faulted for requiring an “actual” conflict between the traditional redistricting criteria and race. The petitioners argue that “where a legislature intentionally assigns voters to districts according to a fixed, nonnegotiable racial threshold, “strict scrutiny cannot be avoided simply by demonstrating that the shape and location of the districts can rationally be explained by reference to some districting principle other than race.” If it were other-wise, they argue, even the most egregious race-based districting schemes would escape constitutional scrutiny. In McCrory v. Harris, a racial gerrymandering case involving North Carolina, the challenge is to a three-judge court’s decision finding a constitutional Equal Protection Clause violation. The plaintiff originally argued that the congressional map drawn by the NC Assembly in 2011 violated the Equal Protection Clause in two districts by making race a predominant factor and by not narrowly tailoring the districts to any compelling interest. North Carolina argues that the conclusion of racial predominance is incorrect and that it need not show that racial considerations were “actually necessary” as opposed to “having good reasons” under the Voting Rights Act. The North Carolina districts have been long controversial; a good timeline is here.

In another Equal Protection Clause case, the classification is sex rather than race.  In Lynch v. Morales-Santana, the underlying problem is differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child; the Second Circuit held that the sex discrimination was unconstitutional, subjecting it to intermediate scrutiny under equal protection as included in the Fifth Amendment. The United States argues that because the context is citizenship, only rational basis scrutiny is appropriate. This issue has been before the Court before. The last time was 2011 in Flores-Villar v. United States when the Court's per curiam affirmance by an "equally divided Court" upheld the Ninth Circuit’s finding that the differential residency requirement satisfied equal protection. In Flores-Villar, Kagan was recused. The Court hearing Morales-Santana, scheduled for oral argument November 9, will also seemingly be only eight Justices, but this time including Kagan.

Trinity Lutheran Church of Columbia, Mo. v. Pauley also includes an Equal Protection issue, but the major tension is between the Free Exercise of Religion Clause of the First Amendment and principles of anti-Establishment of Religion. Like several other states, Missouri has a so-called Blaine Amendment in its state constitution which prohibits any state monies being used in aid of any religious entity. It is concededly more expansive/restrictive than the US Constitution’s Establishment Clause in the First Amendment as the United States Supreme Court has interpreted it. Missouri had a program for state funds to be awarded to resurface playgrounds with used tires; the state denied the Trinity Lutheran Church preschool’s application based on the state constitutional provision. Trinity Lutheran argues that the Blaine Amendment violates both the Free Exercise Clause and the Equal Protection Clause, with the Eighth Circuit siding with the state of Missouri.

There are also several cases involving the criminal procedure protections in the Constitution.  Pena-Rodriguez v. Colorado involves a claim of racial bias on a jury in a criminal case. The Colorado Supreme Court resolved the tension between the “secrecy of jury deliberations” and the Sixth Amendment right to an impartial jury in favor of the former interest. The court found that the state evidence rule, 606(B) (similar to the federal rule), prohibiting juror testimony with some exceptions was not unconstitutional applied to exclude evidence of racial bias on the part of a juror.  Bravo-Fernandez v. United States involves the protection against “double jeopardy” and the effect of a vacated (unconstitutional) conviction. It will be argued in the first week of October. Moore v. Texas is based on the Eighth Amendment’s prohibition of cruel and unusual punishment, with specific attention to capital punishment and the execution of the mentally disabled. In short: what are the proper standards for states to make a determination of mental disability?

Finally - - - at least for now - - - the Court will also be hearing a constitutional property dispute.  Murr v. Wisconsin involves the Fifth Amendment’s “Taking Clause,” providing that private property cannot be “taken” for public use without just compensation. At issue in Murr is regulatory taking. The Court granted certiorari to a Wisconsin appellate court decision regarding two parcels of land that the Murrs owned since 1995; one lot had previously been owned by their parents. Under state and local law, the two lots merged. The Murrs sought a variance to sell off one of the lots as a buildable lot, which was denied. The Murrs now claim that the denial of the variance is an unconstitutional regulatory taking. The Wisconsin courts viewed the two lots as the “property” and concluded that there was no regulatory taking.

We will be updating this post as the Court adds more cases to its docket.

UPDATE September 29, 2016:  The Court granted certiorari to two important First Amendment cases.

Ninth Circuit: Green Party's First Amendment Challenge to Arizona's 180-day Party Recognition Deadline

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

In its opinion in Arizona Green Party v. Reagan, the Ninth Circuit affirmed the district judge's grant of summary judgment in favor of Arizona's Secretary of State, Michele Reagan, in a challenge to Arizona Revised Statute §16-803(A).  The statute requires a petition for recognition of a "new" - - - or actually a minor - - - party to be filed "not less than one hundred eighty days before the primary election for which the party seeks recognition.  The challenge involved the 2014 election; the Green Party had lost its official status the prior year because it failed to garner 5% of the vote and was thus treated as a "new" party under the statute.  The Ninth Circuit first held that there was not an issue of mootness because the deadline issue was likely to "surface again," fitting into the exception for mootness of claims that are “capable of repetition, yet evading review.”

The Ninth Circuit considered the merits of the challenge as one of ballot access and articulated the balancing tests of Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992).  But the Ninth Circuit essentially found any required balancing was impossible because of the Arizona Green Party's stance that the "deadline was unconstitutional as a matter of law" and submitted no evidence to support its claim that the 180-day deadline burdened its constitutional rights.

Analogy and rhetoric are no substitute for evidence, particularly where there are significant differences between the cases the Green Party relies on and the Arizona election system it challenges. The Supreme Court and our sister circuits have emphasized the need for context-specific analysis in ballot access cases. . . .

That filing deadlines of similar lengths may prove unconstitutionally burdensome in the context of some election schemes does not eliminate the need for evidence that a severe burden was imposed by the filing deadline in this case.

Thus, "absent evidence of the particular burdens imposed in this case," the panel concluded that  "at best, the 180-day petition- filing deadline imposes a de minimis burden on constitutional rights."  And given the de minimus burden, Arizona faced a very low hurdle: that the filing deadline served "important regulatory interests."

Unlike the Green Party, the Secretary [of State of Arizona] presented substantial evidence that details the processes for ballot access and the rationale behind each step in the timeline at each stage of the election process. The nested deadlines leading up to the Arizona primary, as well as the tasks that must be accomplished between the primary and general election, reflect an effort by the state to achieve the important goal of orderly elections. For example, the number of required signatures for independent candidate petitions depends on the number of registered voters who are not affiliated with a recognized party. For this reason, the state must know how many recognized parties will appear on the ballot before setting the candidate signature requirements, at which point candidates have two months to collect signatures. As Arizona’s Assistant State Election Director explained, “[i]f the petition deadline to obtain recognized party status were moved to a later date, new party candidates would have little or no meaningful opportunity to obtain the requisite number of signatures to qualify for the party’s primary ballot.” She also noted that in late May, Arizona counties mail a list of recognized political parties holding primaries in a particular election to the more than 1.9 million early registered voters, and that adding additional parties after the mailing deadline could therefore impose considerable burdens on the counties and lead to voter confusion. Also, in preparation for the primary, ballots must be translated into Spanish and several Native American languages, a process that takes time.

It does seem as if the Green Party of Arizona might have a successful challenge if it could marshal its evidence of the burden it faces under the 180-day deadline.

 

 

 

Judge Slaps FEC for Erroneous Analysis of Political Committee

Steven D. Schwinn, John Marshall Law School

Judge Christopher R. Cooper (D.D.C.) ruled earlier this week that the controlling members of the FEC applied the wrong legal analysis in concluding that two groups were not "political committees" under federal campaign finance law. The ruling reverses and remands to the FEC for reconsideration.

The case matters because designation as a "political committee" triggers more stringent reporting requirements under campaign finance law. Judge Cooper's ruling makes it more likely that a group would be considered a "political committee," and thus marks a victory for campaign disclosure advocates.

The case arose when CREW lodged a complaint with the FEC that two groups, American Action Network and Americans for Job Security, were unregistered "political committees." Those groups spent money on TV ads and other electioneering communication in three congressional districts in the 2010 elections. In response to CREW's complaint, three FEC commissioners determined that the groups' "major purpose" wasn't "the nomination or election of a candidate," and therefore that they were not "political committees" under campaign finance law. The commissioners reasoned that the groups' electioneering communications--ads that mentioned a candidate, but that did not advocate for or against a candidate's election--shouldn't be considered in determining the "major purpose," and that groups' purposes over their entire history should be considered in determining their "major purpose."

Judge Cooper disagreed. He ruled first that under Buckley and its progeny, the commissioners should have considered the groups' electioneering communications in determining their "major purpose":

CREW's citations to legislative history, past FEC precedent, and court precedent certainly support the conclusion that many or even most electioneering communications indicate a campaign-related purpose. Indeed, it blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race. . . . Instead, the Court will limit itself to identifying the legal error in the Commissioners' statements--that is, the erroneous understanding that the First Amendment effectively required the agency to exclude from its consideration all non-express advocacy in the context of disclosure.

Judge Cooper ruled next that the commissioners wrongly considered the groups' spending over their entire existence, instead of confining their analysis to spending within the most recent calendar year, in determining the "major purpose." He explained that a group's purpose can change over time:

The Commissioners' refusal to give any weight whatsoever to an organizations' relative spending in the most recent calendar year--particularly in the case of a fifteen-year-old organization like AJS--indicates an arbitrary "fail[ure] to consider an important aspect of the [relevant] problem."

Judge Cooper sent the case back to the FEC and ordered it "to conform with [this] declaration within 30 days." The FEC can, of course, appeal.

Tenther States Claim Sovereign Right Not to Pay Employees Overtime

Steven D. Schwinn, John Marshall Law School

Twenty-one states, led by Texas, sued the federal government this week over the Labor Department's new overtime rule. The complaint, which argues that the rule violates the Tenth Amendment and principles of state sovereignty, puts Garcia, long a thorn in the side of states'-righters, on the chopping block.

The suit challenges DOL regulations under the Fair Labor Standards Act that raise the threshold exemption for overtime pay. This means that employers now have to pay overtime to employees who earn up to $47,476, up from $23,660. (The FLSA only exempts "managerial" positions from the overtime requirement. DOL has long used a salary test as a proxy for "managerial" in its regulations, however.) The rule applies to both private-sector employers and states.

The states argue that the new rule will cost them money and require them to reshuffle spending priorities, interfering with their state sovereignty and violating the Tenth Amendment.

The Supreme Court at one time would have agreed. The Court ruled in National League of Cities v. Usery in 1976 that the FLSA minimum-wage requirement violated the Tenth Amendment for exactly these reasons. But less than a decade later, when it became clear that this approach couldn't work across the myriad federal regulations that applied to states in their non-sovereign capacity, the Court walked back. It ruled in Garcia v. San Antonio Metropolitan Transit Authority (1985) that the FLSA did not violate the Tenth Amendment, and that states had plenty of protection against federal overreach through the ordinary political process.

Now the plaintiffs in this latest lawsuit explicitly argue that Garcia should be overruled. They say that subsequent developments in the law have undermined the case, and that it's time to go back to National League of Cities.

The complaint speaks in terms of the additional burden to the states of the new DOL regulation, but its logic extends to any federal standard (like minimum wage, maximum hours, worker safety, etc.) imposed on the states. As a result, the case, if ultimately successful, would work a sea change in federal-state relations as they've existed since 1985, potentially across policy areas. That seems unlikely given the current composition of the Court. But who knows what might happen after the election.

The states also argue that the new regulation exceeds DOL authority under the FLSA, because the FLSA sets the overtime requirement based on job type ("managerial"), but the DOL regs set the requirement based on salary. This claim may have more traction (in the Fifth Circuit, at least, and possibly before the Supreme Court). It's similar to the core claim in the last state effort, also led by Texas, to challenge administrative action as a violation of the Constitution and the Administrative Procedures Act--in that case, the DAPA program. An evenly divided Supreme Court left in place the Fifth Circuit's ruling that DAPA violated the APA.

District Court Orders Texas to Halt its Nonsense Over Voter ID

Steven D. Schwinn, John Marshall Law School

After the Fifth Circuit ruled this summer that Texas's voter ID law violated the Voting Rights Act, and after a district court ordered the state to educate voters on voting requirements in light of that ruling (that voters need not produce ID), Texas continued to play games to dodge the courts' rulings and hassle voters. For example, the state issued misleading materials that mischaracterized language in the district court's order, and state officials threatened to investigate anyone who signed a declaration saying that they couldn't get the required ID.

So the district court issued a new order yesterday, requiring the state to re-issue press releases, edit printed material to go at polling places, edit its web-site and online materials, and "provide counsel for all Plaintiffs scripts and copy for documents and advertisements that have not yet been published for review and objection prior to publication."

The Texas AG is reportedly planning to seek Supreme Court review of the Fifth Circuit ruling this week.

The Brennan Center has all the litigation documents and a good overview of the case here.

Immigrant Children Between a Rock and a Hard Place on Right to Counsel Claims

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday that a federal district court lacked jurisdiction to hear a class-action claim by immigrant children that they have a right to counsel in deportation proceedings.

While the judges on the panel wrote separately to acknowledge the challenging barriers for unrepresented child-immigrants in the deportation process, the upshot of the ruling is that immigrant children remain between a rock and a hard place in lodging a right-to-counsel claim, and, thus, in the deportation process itself.

The case arose when immigrant children aged 3 to 17 filed suit in federal district court arguing that they had a constitutional and statutory right to counsel in deportation proceedings. The problem was that the Immigration and Naturalization Act provides for an appeal process in administrative deportation proceedings that permits an immigrant to appeal to a federal circuit court and consolidates "all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien .  .  only in judicial review of a final order . . . ." This means that an immigrant can raise deportation-related claims only in his or her direct appeal of an administrative deportation order, and not in a collateral process (like a separate case in district court).

The children argued that the INA's jurisdictional provision means that, as a practical matter, they could never raise a right-to-counsel claim on direct appeal of a deportation order. That's because one of two things could happen in deportation proceedings. First, an immigrant could have an attorney, in which case they wouldn't have standing to raise a right-to-counsel claim on direct appeal. Alternatively, an immigrant could not have an attorney. But in that case, given the complexities of the immigration process, a child couldn't adequately develop a record to successfully appeal (if they could even figure out how to appeal). (Immigration judges won't deal with the issue, so the children really would have to raise it on appeal to the federal circuit court.) So, they argued, they should be able to file a collateral class action in federal district court on the right-to-counsel claims.

The Ninth Circuit disagreed. The court ruled that the INA's jurisdictional provision directly answered the question: the children could only raise their right-to-counsel claims through the administrative deportation process and on direct appeal to the federal circuit court.

The panel judges wrote separately to acknowledge the unique challenges that immigrant children face in this labyrinthine process, and the practical difficulties in raising a right-to-counsel claim. They also wrote that there's wide agreement that children need an attorney in deportation proceedings. But in the end, according to the court, right to counsel is an issue to raise only on direct appeal.

Or: Congress could simply fix it by providing a statutory right to counsel for children in deportation proceedings.

Divided Sixth Circuit Weighs in On Federal Gun Ban for Involuntary Commitment

Steven D. Schwinn, John Marshall Law School

A divided en banc Sixth Circuit last week reversed a district court's order dismissing an as-applied Second Amendment challenge to the federal ban on gun possession by anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution."

The ruling sends the case back to the district court to give the government a second chance to show that the federal ban meets intermediate scrutiny. The ruling doesn't end the case, and it doesn't say whether the ban violates the Second Amendment. It just sends the case back to give the government a second bite at the apple.

In short, the ruling says this: A person's long-ago involuntary commitment doesn't necessarily make them a danger today, and, without a safety valve for individuals who no longer pose a danger, the federal ban may sweep too broadly with respect to currently safe individuals.

The case arose when 74-year-old Clifford Tyler tried to buy a gun. Tyler was rejected by the county sheriff, because he had been involuntarily committed for less than 30 days in the 1980s. Still, despite not showing any evidence of mental illness in his latest check, in 2012, under federal law, 18 U.S.C. Sec. 922(g)(4), Tyler couldn't possession a firearm.

Moreover, federal law didn't allow any exception. It turns out that federal law used to permit an applicant, otherwise barred by Section 922, to apply to the Attorney General for an exception. But Congress de-funded that authority, and then transferred it to participating states. Tyler's state, Michigan, hadn't accepted it, so Tyler had no recourse.

The Sixth Circuit ruled that Tyler made out a case, at least sufficient to withstand a motion to dismiss. As an initial matter, the court held that Heller's list of "presumptively lawful regulatory measures" did not answer the questions. According to the court, that's because Section 922(g)(4) is a relatively new innovation, and doesn't have the kind of "historical pedigree" that would allow it to "give Heller conclusive effect." "In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislature's power to permanently exclude individuals from a fundamental right based on a past involuntary commitment."

The court next turned to the two-part approach under circuit precedent and adopted in several other circuits. It ruled first that the ban "burdens conduct that falls within the scope of the Second Amendment, as historically understood." It particular, "historical evidence . . . does not directly support the proposition that persons who were once committed due to mental illness are forever ineligible to regain their Second Amendment rights." It ruled next that the ban failed intermediate scrutiny. It said that while the government had important enough interests (keeping guns out of the hands of risky people, protecting the community, and preventing suicide), the flat, lifetime ban was too broad. The court noted that some persons with a past commitment for a mental condition do not currently have a mental condition, and can safely possess a firearm. But without a procedure for an exception, the ban prohibits anyone with a past commitment from possessing a firearm.The ruling drew several separate opinions, both concurring and dissenting. As summed up by the principal opinion, "ten of us would reverse the district court; six of us would not. And at least twelve of us agree that intermediate scrutiny should be applied, if we employ a scrutiny-based analysis." Thus, the court remanded with specific instructions to allow the government to satisfy intermediate scrutiny by introducing additional evidence in support of the lifetime ban or additional evidence showing that the ban would be constitutional as to Tyler, because he would pose a risk to himself or others if he had a gun.

Divided Fourth Circuit Upholds County Commissioner's Prayer

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

In its divided opinion in Lund v. Rowan County, North Carolina, the Fourth Circuit has held that the identity of the person leading a prayer opening the county Board of Commissioners meeting is irrelevant - - - even a prayer led by a Board member is within the ambit of Town of Greece v. Galloway (2014) and without a First Amendment Establishment Clause problem.

As the majority opinion, authored by Judge Steven Agee and joined by Judge Dennis Shedd, describes it:

At most Board meetings, the chairperson would call the meeting to order and invite the Board and audience to stand for the ceremonial opening. A designated commissioner would then deliver an invocation of his or her choosing followed by the pledge of allegiance. The content of each invocation was entirely in the discretion of the respective commissioner; the Board, as a Board, had no role in prayer selection or content. The overwhelming majority of the prayers offered by the commissioners invoked the Christian faith in some form. For example, prayers frequently included references to “Jesus,” “Christ,” and “Lord.”  It was also typical for the invocation to begin with some variant of “let us pray” or “please pray with me.” Id. Although not required to do so, the audience largely joined the commissioners in standing and bowing their heads during the prayer and remained standing for the pledge of allegiance.

The litigation was begun before the United States Supreme Court issued its sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers.  The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function.  The Fourth Circuit extends Town of Greece to prayers by the elected officials (and arguably adjudicators) themselves: "the Supreme Court attached no significance to the speakers' identities in its analysis" of either Town of Greece or Marsh.  Indeed, as the Fourth Circuit majority notes, Justice Kennedy writing for the plurality in Town of Greece averred that the "principal audience" for the prayers is not the public but "lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing."  The Fourth Circuit therefore found that the district judge's conclusion that legislative prayer led by a legislator violates the Establishment Clause.

Judge Agee's opinion for the Fourth Circuit majority then took up the question of whether "some other facet" of the Board of Commissioner's praying practice took it "outside the protective umbrella of legislative prayer."  These four "guideposts" included the selection of the legislative prayer, the content of the prayer, selection of the prayer-giver, and the effect of the prayer "over time" as advancing a particular religion.  Judge Agee's opinion rejected each of these concerns.  First, the selection of the legislative prayer was not done by the "Board as a whole," but each of the five commissioners was in effect "a free agent."  Second, the majority found the content not objectionable because it did not cross the line into proselytizing: "There is no prayer in the record asking those who may hear it to convert to the prayer-giver’s faith or belittling those who believe differently. And even if there were, it is the practice as a whole -- not a few isolated incidents -- which controls." Third, the selection of the prayer-givers was not problematic, even though it was limited to the five commissioners.  The majority opinion here comes close to requiring a type of specific motive: "Absent proof the Board restricted the prayer opportunity among the commissioners as part of an effort to promote only Christianity, we must view its decision to rely on lawmaker-led prayer as constitutionally insignificant."  Fourth and last, the majority found no problem based on its analogies to Town of Greece and Marsh, in which the prayers were overwhelmingly Christian.

For Judge J. Harvie Wilkinson III, dissenting, the prayer practices of the Rowan County Commissioners crossed the constitutional line into a violation of the Establishment Clause. Wilkinson, whose forthcoming book argues that the 1960s  were damaging "to our need for the sustenance of faith," here concludes that Rowan County is not welcoming to various faiths. He does not argue that the commissioner as prayer-leader is determinative, but it is one of the factors that distinguishes the Rowan County practice from Town of Greece, that makes it "a conceptual world apart."  For Wilkinson:

I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece. That case in no way sought to dictate the outcome of every legislative prayer case.

Wilkinson's opinion provides several examples that the plaintiffs, all non-Christians, found "overtly sectarian," including:

Our Heavenly Father, we will never, ever forget that we are not alive unless your life is in us. We are the recipients of your immeasurable grace. We can’t be defeated, we can’t be destroyed, and we won’t be denied, because of our salvation through the Lord Jesus Christ. I ask you to be with us as we conduct the business of Rowan County this evening, and continue to bless everyone in this room, our families, our friends, and our homes. I ask all these things in the name of Jesus, Amen.”

Judge Wilkinson noted that the "closed universe" of prayer-givers - - - the five Commissioners - - - over a period of years had led to a constriction in the religious identities represented that could communicate a message of non-belonging to citizens coming before the Board.  But Wilkinson's concern also extended into a concern about representative secular democracy itself:

Entrenching this single faith reality takes us one step closer to a de facto religious litmus test for public office. When delivering the same sectarian prayers becomes embedded legislative custom, voters may wonder what kind of prayer a candidate of a minority religious persuasion would select if elected. Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office. It should not be so.

The United States Supreme Court's now-eight Justices may not be eager to welcome another government prayer case into the docket so soon after the 5-4 decision Town of Greece, especially one that might result in a 4-4 split, affirming the Fourth Circuit's opinion.  And yet?  Perhaps the Rowan County Board of Commissioners prayer practices might be a step too far for one of the Justices who joined the Court's majority in Town of Greece?  Or perhaps for the Fourth Circuit en banc? 

 

[image via]

Daily Video: Loving The Movie

The official trailer for the movie, Loving, based on Loving v. Virginia (1967) and due to be released November 4, is available:

 

 

The film has already received some positive reviews including from audiences at the Cannes Film Festival.

The case is always a popular read with ConLaw students and the film will certainly only accentuate that interest. 

The trailer includes reference to the United States Supreme Court case, but it is best offered to students as a supplement on the course website rather than as precious minutes of class time.

Constitution Day 2016

It's Constitution Day - - - week - - - yet again.  And as we do every year, we commemorate it with a few notes.

First, there is the issue of the constitutionality of constitution day:

As we've said, it's quite possible that Constitution Day is itself unconstitutional. One of the classic discussions is from ConLawProf Kent Greenfield in 2005 where he argues:

The right to be free of government-compelled speech - even speech that is worthwhile and beneficial - has been a "fixed star in our constitutional constellation" for over sixty years. That quote comes from Justice Robert Jackson, writing for the Supreme Court striking down a law expelling students who refused to recite the Pledge of Allegiance. Even though the country was in the middle of World War II at the time, the Court recognized that patriotism must be voluntary to be meaningful. Jackson did not mince words: "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters."

The same is true now. Though we are at war, if we have to mandate patriotism or respect for the constitution, then we have already lost.

In part, this is because Constitution Day is a "mandate":

Federal law mandates that:

Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.

Department of Education regulations provide that the law:

requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week.

 

And then there is the issue of whether we should be honoring the Constitution's inception or its reconstruction:

LawProf Colin Starger and others argue that the commemorative day should be February 3:

On that date in 1870, our nation ratified the last of the Civil War Amendments. That date symbolizes our commitment to reconstruct the Founders’ immoral compromise and place under national protection the inalienable rights of all the nation’s people.

 This year, President Obama's Presidential Proclamation stressed immigration - - - and included a mention of refugees - - - and also articulated a "living constitutionalism" theory:

 

America is more than a piece of land -- it is an idea, a place where we can contribute our talents, fulfill our ambitions, and be part of something bigger than ourselves. Each year on Citizenship Day, we celebrate our newest citizens who raise their hands and swear a sacred oath to join our American family. The journey they have taken reminds us that immigration is our origin story. For centuries, immigrants have brought diverse beliefs, cultures, languages, and traditions to our country, and they have pledged to uphold the ideals expressed in our founding documents. They come from all around the world, mustering faith that in America, they can build a better life and give their children something more. That is why I was proud to create the White House Task Force on New Americans, which is helping to build welcoming communities around our country and enhance civic, economic, and linguistic integration for immigrants and refugees. Through the Task Force, Federal agencies and local communities are working together to raise awareness about the rights, responsibilities, and opportunities of citizenship -- and to give immigrants and refugees the tools they need to succeed.

As a Nation of immigrants, our legacy is rooted in their success. Their contributions help us live up to our founding principles. With pride in our diverse heritage and in our common creed, we affirm our dedication to the values enshrined in our Constitution. We, the people, must forever breathe life into the words of this precious document, and together ensure that its principles endure for generations to come.

 

 

Plaintiff Can't Challenge Dog's Dismissal in Federal Court

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled today that a service-dog owner can't challenge a state judge's order banning the dog from the courtroom in federal district court. The ruling leaves the owner with state-court remedies, but no remedy in federal district court, for this violation of the Americans with Disabilities Act.

The case arose when a state court probate judge ordered Gloria Jean Sykes to stop bringing her service dog, Shaggy, to probate proceedings. Sykes uses Shaggy for assistance with her post-traumatic stress disorder, but the judge nevertheless ordered Shaggy out.

Sykes sued in federal district court, arguing that the judge's behavior toward her (critically questioning her need for Shaggy) and the order violated the ADA. The district court dismissed the case, and Sykes appealed.

The Seventh Circuit ruled that the Rooker-Feldman doctrine barred the suit. The Rooker-Feldman doctrine says that a lower federal court cannot exercise jurisdiction over cases brought by state court losers challenging state court judgments rendered before the district court proceedings commenced. "Claims that directly seek to set aside a state court judgment are de facto appeals which trigger the doctrine. But even federal claims which were not raised in state court, or that do not on their face require review of a state court's decision, may still be subject to Rooker-Feldman if those claims are inextricably intertwined with a state court judgment."

The court rejected Sykes's arguments that her ADA claim wasn't intertwined with the state court judgment (the Shaggy ban). In particular, the court rejected her argument that the judge's conduct, not just the order, violated the ADA, and that the practices in the courthouse violated the ADA (in the spirit of Tennesse v. Lane). The court said that the claim and the judgment were still intertwined: "[T]o provide any relief in response to the harm stemming from [the judge's] acts, her court order banning Shaggy would need to be set aside."

The court noted that Rooker-Feldman would permit the suit, for example, if the courthouse "had a policy of banning service animals." The court also noted that Sykes could have sought mandamus in the state courts, pursued an interlocutory appeal in the state courts, or filed a motion for a supervisory order under state court rules.

Can Congress Investigate and Issue and Enforce Subpoenas Against State AGs?

In the latest chapter in the state climate-fraud investigations and the congressional response to those investigations, the House Committee on Science, Space, and Technology this week held a hearing on its oversight authority to investigate, issue subpoenas to, and enforce subpoenas against New York and Massachusetts State Attorneys General and several environmental organizations regarding the AGs' investigations fraud by Exxon. (The AGs and organizations refused to comply with the subpoenas this summer.)

The Committee heard testimony from Profs. Jonathan Turley (GWU), Ronald Rotunda (Chapman), Charles Tiefer (U. Balt.), and Elizabeth Price Foley (FIU). The Committee's hearing page, including links to the testimony and to Chairman Lamar Smith's opening statement, is here.

No Standing to Challenge Export of Chimps

Steven D. Schwinn, John Marshall Law School

Judge Ketanji Brown Jackson (D.D.C.) ruled in New England Anti-Vivisection Society v. U.S. Fish and Wildlife Service that the plaintiff organization lacked standing to challenge an export permit issued by the FWS for certain chimpanzees. The ruling means that this case ends (except NEAVS's FOIA claim), unless and until NEAVS successfully appeals.

The case arose when the FWS issued an export permit under the Endangered Species Act that allowed Yerkes National Primate Research Center to transfer eight of its chimpanzees to a zoo in the U.K. (The ESA requires an export permit in order to export endangered species.) NEAVS sued, lodging several causes of action, but the FWS moved to dismiss for lack of standing.

NEAVS argued that it had informational standing, "because the FWS's failure to collect the information necessary to conclude that the authorized export will 'enhance the survival' of the chimpanzee species." It argued that it had organizational standing, because FWS's permit decision would harm its ability to carry out a key mission--ending the use of animals in research, testing, and science education. And it argued that its members had individual standing, because those members formed strong bonds with the particular chimpanzees that will be exported, and that they hope to see them again.

The court held that NEAVS lacked informational standing, because Section 10(c) doesn't require an agency to collect the information that NEAVS cites. "By its terms, then, Section 10(c) creates a 'right to information[,]' but that right extends only to the information that the agency receives in connection with a permit application, and Congress did not impose any duty to make an affirmative effort to collect certain information as part of the permitting process . . . ."

The court held that NEAVS lacked organizational standing, because, under circuit precedent, its interests are simply too abstract. "NEAVS has not shown that [the] export permit impairs NEAVS's own activities or operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered comes nowhere close to specifying how the permit interferes with NEAVS's ability to do its job . . . and, instead, NEAVS's declarant makes statements that are remarkably close to the kinds of general mission-frustration contentions that the D.C. Circuit has considered (and rejected) as a basis for finding organizational standing.

The court held that there was no individual standing, because "the dashed-hopes harm these individual plaintiffs allegedly have suffered" is not an injury in fact, and it "is also not even fairly traceable to FWS's decision to issue the export permit." And any aesthetic injury was to speculative, or was self-inflicted.

Radiolab on the AUMF

Check out Radiolab's segment on the Authorization for Use of Military Force--an engaging and accessible discussion of the "60 words" (plus a couple read into it) that the government has used to justify operations against alleged terrorists, and the need to update it.