Constitutional Law Prof Blog

ACS Call for Papers: Junior Scholars Public Law Workshop at the AALS

The American Constitution Society is calling for papers for its Junior Scholars Public Law Workshop at the 2019 AALS Conference. The official call for papers is here; here are the details:

The American Constitution Society is pleased to announce a call for papers for a workshop on public law to be held the afternoon of Thursday, January 3, 2019, at the 2019 AALS Annual Meeting in New Orleans. A committee composed to ACS's Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler.

Papers can be on any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, society welfare law, and workplace law.

The deadline for submissions is 11:50 p.m. on October 19, 2018. Submissions should be works that will not be published as of January 1, 2019.

Submissions should be emailed in Microsoft Word or PDF format to juniorscholarsworkshop@acslaw.org. Please indicate in the subject line "Submission for ACS Junior Scholars Public Law Workshop" and include the author's name, school, and contact information in a cover email. The cover email should also identify the field(s) in which the paper falls.

Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2018, are eligible to participate. Co-authored submissions are permissible, but each of the coauthors must be individually eligible to participate in the workshop.

Authors are limited to one submission each. Selections will be made by November 16, 2018. Authors must arrange their own travel to the AALS Annual Meeting.

Inquiries may be sent to Kara Stein, at kstein@acslaw.org.

 

Three Judge Court Invalidates North Carolina Redistricting Plan Redux

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

 In an extensive opinion, a three judge court in Common Cause v. Rucho (& League of Women Voters v. Rucho) held that North Carolina's 2016 redistricting plan was a product of partisan gerrymandering and violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution. 

The opinion is almost 300 pages with an additional comparatively brief 25 plus page concurring and dissenting opinion, but the three judge court is often discussing familiar matters. Recall that the court had reached this result in January 2018.  However, recall also that the United States Supreme Court issued a stay shortly thereafter.  In July 2018, the United States Supreme Court vacated the three judge court's decision in Rucho in light of  Gill v. Whitford (2018), which, the three judge court states, "addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause." The three judge court's opinion in Rucho holds that standing was satisfied under the Gill test as to equal protection and further that "Gill did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment." 

As for the merits, Gill v. Whitford is not particularly useful; as we said when Gill was decided, it (with the per curiam decision in Benisek v. Lamone, "leave the constitutionality of partisan gerrymandering as unsettled as before." Thus, the three judge court had little guidance to reconsider its previous conclusions.

Perhaps the most noteworthy aspect of the three judge court's decision today in Rucho, however, is the remedy: the court notes that the circumstances are unusual and writes:

we decline to rule out the possibility that the State should be enjoined from conducting any further congressional elections using the 2016 Plan. For example, it may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election. Or, it may be viable for the State to conduct a primary election on November 6, 2018, using a constitutionally compliant congressional districting plan, and then conduct a general election sometime before the new Congress is seated in January 2019. Accordingly, no later than 5 p.m. on August 31, 2018, the parties shall file briefs addressing whether this Court should allow the State to conduct any future election using the 2016 Plan. Those briefs should discuss the viability of the alternatives discussed above, as well as any other potential schedules for conducting elections using a constitutionally compliant plan that would not unduly interfere with the State’s election machinery or confuse voters. Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.

[emphasis in original].

The November election is in 70 days.

District Court Says Trump EOs Violate Federal Labor Law

Steven D. Schwinn, John Marshall Law School

Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday in American Federation of Government Employees v. Trump that President Trump's executive orders sharply curtailing federal employees' collective bargaining and labor rights violate federal labor law. The ruling means that most of the EOs' limitations are invalid.

Together, the EOs set a timeframe for completion of collective bargaining negotiations; removed certain matters from the bargaining table completely; set certain procedures for negotiations; limited the extent to which federal employees could engage in union work during business hours; limited the government resources that union members could use for union activities; made it easier for the government to dismiss federal employees for unsatisfactory performance.

The court recognized that the EOs are subject to restrictions in statutory law, but that "the President could always theoretically claim that he possesses the inherent constitutional authority to take a given action, regardless of any conflict with a congressional statute and his resulting lack of statutory authority." "But Defendants have made no such assertion in the instant case; instead, they have 'expressly recognized statutory limitations on the President's authority to act in this area.'" The court, therefore, didn't rule on the constitutional question.

The government's omission of a constitutional argument might seem surprising, given the President's recent constitutional extrapolation from the Court's ruling in Lucia in an EO designed to rein in control over executive branch ALJs. That move seemed like an attack, under cover of Lucia and claimed plenary Article II authority over the executive branch, on civil service laws that in any way restrict the President's claimed authority to hire and fire whomever he wants. That attack would seem to apply equally here. But the government didn't press it.

On the statutory questions, Judge Jackson summarized:

[T]he Order provisions concerning matters such as the reduction of the availability of and support for official time activities [to engage in union-related work], and the specific prohibitions against bargaining over [certain matters], or hte unilateral narrowing of any negotiated grievance procedures, dramatically decrease the scope of the right to bargain collectively, because, in the [Federal Service Labor-Management Relations Act], Congress clearly intended for agencies and unions to engage in a broad and meaningful negotiation over nearly every "condition of employment." Likewise, the Orders' requirements, such as the directive that agencies should "ordinarily" seek to conclude collective bargaining negotiations within five to seven months, or should limit the applicability of grievance procedures "[w]henever reasonable[,]" effectively instruct federal agencies and executive departments to approach collective bargaining in a manner that clearly runs counter to the FSLMRS's expectation of good-faith conduct on the part of negotiating parties. . . .

[T]he only challenged provisions of [the EOs] that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.

Check it Out: Zengerle on How Trump is Remaking the Courts

Check out Jason Zengerle's feature in the NYT Magazine, How the Trump Administration is Remaking the Courts. Zengerle examines how President Trump, with the help (or "ruthless discipline") of Senate Republicans, is shaping the courts. And how he's doing this at a blistering pace. And how this compares to the gummed-up Senate in the Obama Administration.

Check it Out: Bazelon on a Right-Lurching Court

Check out Emily Bazelon's piece in the NYT Magazine, When the Supreme Court Lurches Right: What happens when the Supreme Court becomes significantly more conservative than the public?

Bazelon traces the history of politics and the Court, and writes,

Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment as it did in the 1930s . . . . If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process. In other words, maybe Dahl turns out to be right. Let's hope so. The democracy may be riding on it.

Seventh Circuit Rejects Procedural Due Process Claim for Denial of SORA

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

The Seventh Circuit's opinion in Beley v. City of Chicago finds no constitutional violation when the City of Chicago refuses to register sex offenders in certain circumstances (such as having no fixed address or an address outside of an approved zone) despite the requirement of the Illinois Sex Offender Registration Act (SORA), making it a felony for a sex offender not to register in a new city, including Chicago.

For example, as the court described one plaintiff:

Douglas Montgomery is a sex offender who tried unsuccessfully to comply with SORA. After he completed a twenty- year sentence for aggravated criminal sexual assault, he re- ported to the Department to register. He was turned away, however, because he produced neither an identification card nor proof of a fixed address. When Montgomery told the in- take officer that he was homeless, the officer responded that the Department was “not registering homeless people right now.” Nearly seven months later, after arresting Montgomery for violating several ordinances, Chicago police discovered that he had failed to register under SORA. They charged him with that violation, though he was ultimately acquitted.

The Seventh Circuit rejected the procedural due process challenge to the city's policy by holding that the "ability" to register as a sex offender is not a cognizable liberty interest under the Fourteenth Amendment, so no due process is necessary.  The court rebuffed each of the plaintiffs' arguments that there was a liberty interest. First, the court stated that SORA's "registration requirement burdens sex offenders" rather than being "an aspect of their liberty." Second, the court stated that "the Fourteenth Amendment guarantees procedural protection for state action that deprives someone of a cognizable interest in life, liberty, or property, not for state action that jeopardizes that interest."  Third, the court rejected the argument that freedom from the threat of incarceration constituted a liberty interest. And fourth and finally, the fact that the two named plaintiffs actually were deprived of their liberty was not available because they chose "to define the deprivation as the denial of registration" and are "stuck with that theory," although the City owed them due process when they were arrested. 

Without a cognizable liberty interest, there was no need to determine what process was due.

Ninth Circuit Authorizes Bivens Claim Against ICE Official for Forging Doc in Deportation Case

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit last week authorized a constitutional tort under Bivens against an ICE official for forging a document that would have led to the plaintiff's deportation. (H/t Theo Lesczynski.) The ruling means that the plaintiff's case can move forward.

The ruling is the second time in recent weeks that the Ninth Circuit authorized a Bivens action in a "new context." (The earlier case involved a Border Patrol officer's cross-border shooting of a Mexican youth.)

The case, Lanuza v. Love, arose when ICE Assistant Chief Counsel Jonathan Love submitted an I-826 form, forged with Lanuza's signature, at Lanuza's immigration hearing. The form indicated that Lanuza accepted voluntary departure to Mexico in 2000, breaking Lanuza's period of accrued continuous residency in the U.S. Without this continuous residency, Lanuza didn't qualify for cancellation of removal; and, based on the forged document, the immigration judge denied cancellation and ordered Lanuza removed. The Board of Immigration Appeals affirmed.

Lanuza then hired a new attorney, who discovered the forgery. (Among other things, the forged document referred to the "U.S. Department of Homeland Security," which did not yet exist at the time that Lanuza purportedly signed the form.) The agency then adjusted Lanuza's status to lawful permanent resident.

Lanuza brought a Bivens claim against Love for violation of his Fifth Amendment rights. The district court dismissed the case, but the Ninth Circuit reversed.

The court ruled that the case raised a "new context," but that no special factors counseled against a Bivens remedy. Indeed, the court said that certain factors favored a Bivens remedy in a case like this, where a government official submitted false evidence in a quasi-judicial proceeding:

Indeed, there are few persons better equipped to weigh the cost of compromised adjudicative proceedings than those who are entrusted with protecting their integrity. And, more often than not, the Judicial Branch, not Congress or the Executive, is responsible for remedying circumstances where a court's integrity is compromised by the submission of false evidence. Thus, it falls within the natural ambit of the judiciary's authority to decide whether to provide a remedy for the submission of false evidence in an immigration proceeding.

The court also denied qualified immunity.

The ruling sends the case back to the district court for proceedings on the merits.

Eleventh Circuit: Public Food Sharing is Expressive Activity Under First Amendment

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

In its opinion in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, the Eleventh Circuit reversed the district judge and found that the nature of the activity of Fort Lauderdale Food Not Bombs (FLFNB), "combined with the factual context and environment in which it was undertaken, lead to the conclusion" that FLFNB engaged in a "form of protected expression" under the First Amendment, quoting Spence v. Washington (1974).

As the opinion notes, the panel was resolving "the issue left undecided" in First Vagabonds Church of God v. City of Orlando, Florida (11th Cir. 2011) (en banc). The en banc circuit had stated it need not decide whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct, because even assuming it was, the prohibition was constitutional as a reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct under United States v. O’Brien (1968). 

Here, Judge Adalberto Jordan writing for the unanimous panel begins:

In understanding what is going on around us, context matters. Food shared with company differs greatly from a meal eaten alone. Unlike a solitary supper, a feast requires the host to entertain and the guests to interact. Lady Macbeth knew this, and chided her husband for “not giv[ing] the cheer” at the banquet depicted in Shakespeare’s play. As she explained: “To feed were best at home; From thence, the sauce to meat is ceremony. Meeting bare without it.” William Shakespeare, The Tragedy of Macbeth, Act III, scene 4 (1606).

As to the particularized message requirement for expression, the court stated that it was sufficient that a reasonable observer would infer the precise message intended: 

We decline the City’s invitation to resurrect the Spence requirement that it be likely that the reasonable observer would infer a particularized message. The Supreme Court rejected this requirement in Hurley [v. Irish-Am. Gay, Lesbian & Bisexual Grp. (1995)], 515 U.S. at 569 (a “narrow, succinctly articulable message is not a condition of constitutional protection”), and it is not appropriate for us to bring it back to life.

Having resolved the expressive conduct issue, the Eleventh Circuit panel remanded the question of whether the Fort Lauderdale ordinance and park rule violated the First Amendment or was unconstitutionally vague.

[image via]

Check it Out: Former OLCers on Kavanaugh and Presidential Power

Check out these letters to Senators Grassley and Feinstein, here and here, by former attorneys in the Office of Legal Counsel on Judge Kavanaugh's views on presidential authority.

The letters take on a new significance this week, as events draw even more attention to Judge Kavanaugh's views--and how those views might translate if any issue arising out of the Mueller investigation were to reach the Court.

In one letter, former OLCers write on Judge Kavanaugh's critical remarks on United States v. Nixon; in the other, they write on the proliferation of presidential signing statements when Judge Kavanaugh served as staff secretary to President Bush.

From the first (which also captures the gist of the second):

[W]e are troubled by Judge Brett Kavanaugh's apparent commitment to a version of the unitary executive theory of presidential power that holds that the President has total control of actions and decisions of any executive branch official, and that in many cases this control cannot be reviewed by a court of law nor regulated by Acts of Congress.

Check it Out: Driver on Public Education, Con Law, and the American Mind

Check out Justin Driver's (U. Chicago) expansive, meticulous, and engrossing new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. The title speaks for itself, but here's from the intro:

At its core, this book argues that the public school has served as the single most significant site of constitutional interpretation within the nation's history. No other arena of constitutional decisionmaking--not churches, not hotels, not hospitals, not restaurants, not police stations, not military bases, not automobiles, not even homes--comes close to matching the cultural import of the Supreme Court's jurisprudence governing public schools.

That's because of "the importance of that venue for shaping attitudes toward the nation's governing document." Still, "[i]n recent decades . . . such sentiments appear more often in the Court's dissenting opinions than in its majority opinions."

Driver tells us what to do about that.

 

Fifth Circuit Rebuffs Faculty Challenge to Campus Concealed Carry Law

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit last week rejected a challenge by faculty to a Texas law that allows concealed carry in public university classrooms. The ruling ends the challenge, and upholds the state Campus Carry Act and University of Texas at Austin policies permitting concealed carry.

The case, Glass v. Paxton, arose when faculty at the University of Texas challenge the Campus Carry Act and UT policies that permitted concealed carry for certain students on campus. Faculty challenged the Act under the First Amendment, Second Amendment, and Equal Protection Clause. The court rejected each of those challenges.

As to the First Amendment, the court held that the plaintiff lacked standing because she couldn't show, under the "certainly impending" standard of Amnesty International, "that a license-holder will illegally brandish a firearm in a classroom."

As to the Second Amendment, the court rejected the plaintiff's argument that the concealed carry on campus wasn't "well regulated." The court said that the "well regulated" requirement is part of the Second Amendment's prefatory clause, and that the Court in Heller ruled "that the Second Amendment's prefatory clause does not limit its operative clause."

Finally, as to equal protection, the court said that Texas's interests in the law--public safety and self-defense--were sufficient to pass rational basis review. "Here, Texas's rationales are arguable at the very least."

Pennsylvania Supreme Court Rejects First Amendment Challenge to Rap Music Video as Threat

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

In its opinion in Commonwealth v. Knox, a majority of the Pennsylvania Supreme Court upheld a conviction for "terroristic threat" and of witness intimidation based on a video of a rap song performance that he wrote and performed and which was uploaded to YouTube by a third party. 

In the opening of its opinion, authored by CJ Saylor, the court stated it would address the issue of "whether the First Amendment to the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement officers." But as the opinion makes clear, this involves a determination of whether the lyrics could be understood to constitute a "true threat" under the First Amendment.  The court extensively discussed Watts v. United States (1969) and Virginia v. Black (2003), as well as the circuit court applications, in an attempt to reconsider its own precedent decided pre-Black in 2002.  The court stated that as it read Black, "an objective, reasonable-listener standard" such as it had used in the 2002 case "is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment." The court also cited Elonis v. United States (2015), adding a parenthetical explanation: "holding that, under longstanding common-law principles, a federal anti-threat statute which does not contain an express scienter requirement implicitly requires proof of a mens rea level above negligence."   The court summarized the state of First Amendment law after Black:

First, the Constitution allows states to criminalize threatening speech which is specifically intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts. 

For the court, an essential issue of the necessary specific intent was the personalization of the lyrics to two named police officers: "not only through use the officers’ names, but via other facets of the lyrics. They reference Appellant’s purported knowledge of when the officers’ shifts end and, in light of such knowledge, that Appellant will “f--k up where you sleep.”

A concurring (and partially dissenting) opinion by Justice Wecht, joined by Donahue, faults the majority for not Majority considering "the more important question of whether the First Amendment requires proof of specific intent, or whether the Amendment would tolerate punishment of speech based upon proof of only a lesser mens rea such as recklessness or knowledge."  The concurring opinion focuses more directly on the First Amendment: "It is crucial that we not forget that punishing a person for communicating a true threat, however reasonable it seems, is a content-based regulation of speech. As a general rule, the First Amendment prohibits content-based restraints."  Justice Wecht's opinion also has an interesting and insightful discussion of various lyrics, although in the case of Knox's rap song, the words were

not general or vague as to the targets, a circumstance that would have militated against a finding of a true threat. Had the lyrics been directed at police officers generally, or had they complained about perceived abuses by unnamed police officers, those lyrics objectively could have been understood as political commentary or as a musical ventilation of frustration about the rappers’ real-life experiences. That is not what occurred in this case.

Given this conclusion in the concurring opinion, it would seem that the court did not need to reach the recklessness issue.

The Pennsylvania Supreme Court's opinion clearly rests on its interpretation of the First Amendment, so its amenable to a petition for certiorari. But that would seem to be a stretch.

 

Daily Read: Nineteenth Amendment

It is the 98th anniversary of the right to vote for United States women. Tennessee became the necessary 36th state to ratify the Nineteenth Amendment on August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

The Amendment was made necessary by the Court's 1874 decision in Minor v. Happersett concluding that the Fourteenth Amendment did not extend citizenship rights to women.

The Amendment was first introduced in Congress in 1878, but the amendment eventually ratified by the required three-fourths of the states was introduced in 1919, with quick ratification by Illinois, Michigan, Kansas, New York and Ohio.

As we wrote in 2010, while the Nineteenth Amendment has not engendered much constitutional jurisprudence, ConLawProf Reva Siegel has argued that the Amendment could be the basis for Congressional power to address sex discrimination. Her 2002 article, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, available on ssrn, argues:

The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government.

We asked then whether a robust Nineteenth Amendment jurisprudence might yet be developed; not yet.

D.C. Circuit Remands Metro's Ad Restriction for Reasonableness Determination

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled in American Freedom Defense Initiative v. WMATA that the D.C. Metro's restriction on certain advertisements was a view-point neutral regulation in a nonpublic forum. But the court nevertheless remanded the case for a determination whether the restriction was "reasonable."

The ruling sends the case back to the district court for further proceedings. "Reasonableness" is usually a very low bar (thus favoring Metro), but the Court just this Term determined that a view-point neutral regulation in a nonpublic forum wasn't "reasonable." That case, Minnesota Voters Alliance v. Mansky, leaves the door cracked for AFDI on remand.

The ruling follows the recent Archdiocese of Washington v. WMATA, where the same court ruled that Metro's restriction on religious advertising was a permissible view-point neutral regulation in a nonpublic forum.

The AFDI case arose when AFDI sought to place an ad on Metro that, according to AFDI, was designed to "make the point that the First Amendment will not yield to Sharia-adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials." Around the same time, Metro was considering restricting ads, given the increasing number of complaints about ads disrespecting President Obama and ads on hot-button issues. A Metro employee told the Board that AFDI's proposed ad was the "straw that broke the camel's back," and the Board approved a temporary moratorium. The Board then rejected AFDI's ad under the moratorium, and later issued permanent restrictions on certain ads. The permanent policy, now in place, prohibits ads on "an issue on which there are varying opinions," politics (pro or con any candidate), religion (again, pro or con), and "industry position[s] or industry goal[s] without direct commercial benefit to the advertiser" (again, pro or con).

AFDI sued, arguing that the moratorium (but not the permanent policy) violated the First Amendment.

The court ruled first that the case was not moot. The court said that the permanent policy represented the same restrictions under the moratorium, and so AFDI's claim against the moratorium was still a live dispute, but now against the permanent policy. (Judge Karen LaCraft Henderson dissented on this point and thus would have dodged the merits.)

The court next said that Metro was a nonpublic forum (under Archdiocese of Washington), and that the restrictions were view-point neutral. The court rejected AFDI's arguments that the policy was view-point discriminatory because (1) Metro adopted the policy in response to AFDI (no evidence of this, and the straw-that-broke-the-camel's-back comment only meant that AFDI's ad, along with a whole bunch of other ads, led to the policy), (2) the policy was facially view-point based (not so under Lehman v. City of Shaker Heights), and (3) the religion restriction is inherently view-point based (AFDI didn't sufficiently develop or press this argument).

But while a view-point neutral regulation in a nonpublic forum usually satisfies the First Amendment, it also has to be reasonable. The court said that there was enough of a question here to remand the case for a determination of reasonableness under this Term's Minnesota Voters Alliance v. Mansky (holding that a restriction on political attire in a poling place wasn't reasonable).

Check it Out: Chicago-Kent Symposium on the Court and American Politics

Check out Chicago-Kent Law Review's outstanding symposium issue, The Supreme Court and American Politics, edited by Profs. Christopher Schmidt and Carolyn Shapiro.

National Archives Explains What's Up with Kavanaugh's Records

Steven D. Schwinn, John Marshall Law School

The National Archives and Records Administration this week issued a backgrounder and update on the dispute over Judge Kavanaugh's records, with links to congressional requests and NARA responses. The statement comes at a time when Senate Democrats accuse Republicans of failing to seek and release most of Judge Kavanaugh's records, including, critically, documents related to his time as staff secretary to President Bush (which might shed light on his involvement, if any, in controversial Bush Administration policies).

In the usual course of things, the Chair of relevant congressional committees would request--and receive--all relevant docs from NARA on a nominee under the Presidential Records Act. That's what happened during other, most recent confirmation proceedings, including Justices Sotomayor's, Kagan's, and Gorsuch's. But not here.

NARA explained that it holds "several million pages of paper and email records related to Judge Kavanaugh." Still, Senator Grassley requested only about 900,000 of these (not related to Judge Kavanaugh's time as staff secretary). NARA says that expects to review and release about 300,000 pages by August 20, but can't release the remaining 600,000 pages until later, "by the end of October."

The Senate scheduled Judge Kavanaugh's hearings to begin on September 4.

At the same time, NARA explains that it can't respond to Democrats' requests for Judge Kavanaugh's records (including records relating to Judge Kavanaugh's time as staff secretary), because under the Presidential Records Act "consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which party is in power." Senate Democrats took the extraordinary step of filing a FOIA request, and Senator Schumer this week threatened to sue NARA to get the docs not requested by Senator Grassley, and to get them more quickly.

Finally, NARA explained that "a separate review . . . is also underway." In particular, a Bush Administration representative (William Burck) "requested and received from [NARA] a copy of the White House Counsel's Office and nomination records and has begun to provide copies of those records directly to the Senate Judiciary Committee." Burck is conducting his own review outside of the ordinary NARA process. NARA explained that this

is something that has never happened before. This effort by former President Bush does not represent the National Archives of the George W. Bush Presidential Library. The Senate Judiciary Committee is publicly releasing some of these documents on its website, which also do not represent the National Archives.

Check it Out: Notre Dame Law Review's Symposium on Qualified Immunity

Check out the Notre Dame Law Review's symposium issue, The Future of Qualified Immunity.

Daily Read: United States Senate Supports Free Press

Senate Resolution 607 , introduced by Senators Brian Schatz and Chuck Schumer, and affirmed unanimously, provides:

Whereas the First Amendment to the Constitution of the United States protects the press from government control and suppression;

Whereas the freedom of the press—

(1) has been recognized as integral to the democratic foundations of the United States since the beginning of the United States; and

(2) has endured and been reaffirmed repeatedly throughout the history of the United States;

Whereas Benjamin Franklin in 1722 wrote, ‘‘Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.’’;

Whereas Thomas Jefferson in 1786 wrote, ‘‘Our liberty de- pends on the freedom of the press, and that cannot be limited without being lost.’’;

Whereas James Madison in 1789 introduced the freedom of the press in the Bill of Rights to the Constitution of the United States;

Whereas James Madison based the freedom of the press on the Declaration of Rights of the Commonwealth of Virginia, which in 1776 declared, ‘‘The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.’’;

Whereas President Ronald Reagan proclaimed August 4, 1985, as Freedom of the Press Day, stating that ‘‘Freedom of the press is one of our most important freedoms and also one of our oldest.’’;

Whereas President Reagan also said, ‘‘Today, our tradition of a free press as a vital part of our democracy is as important as ever. The news media are now using modern techniques to bring our citizens information not only on a daily basis but instantaneously as important events occur. This flow of information helps make possible an informed electorate and so contributes to our national system of self-government.’’;

Whereas Justice Anthony Kennedy wrote in International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), ‘‘The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.’’;

Whereas the United States Supreme Court also affirmed the history and intent of the freedom of the press in New York Times Co. v. United States, 403 U.S. 713 (1971), stating, ‘‘In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.’’;

Whereas tyrannical and authoritarian governments and leaders throughout history have sought to undermine, censor, suppress, and control the press to advance their undemocratic goals and actions; and

Whereas the United States, including the long-held commitment to and constitutional protection of the free press in the United States, has stood as a shining example of democracy, self-government, and freedom for the world to emulate: Now, therefore, be it

Resolved, That—

(1) the Senate—

(A) affirms that the press is not the enemy of the people;

(B) reaffirms the vital and indispensable role that the free press serves to inform the electorate, uncover the truth, act as a check on the inherent power of the government, further national discourse and debate, and otherwise advance the most basic and cherished democratic norms and freedoms of the United States; and

(C) condemns the attacks on the institution of the free press and views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States; and

(2) it is the sense of the Senate that it is the sworn responsibility of all who serve the United States by taking the oath to support and defend the Constitution of the United States to uphold, cherish, and protect the entire Constitution, including the freedom of the press.

This Resolution can be seen as a rebuke to presidential statements describing the press as an "enemy of the people." 

The Fake News hates me saying that they are the Enemy of the People only because they know it’s TRUE. I am providing a great service by explaining this to the American People. They purposely cause great division & distrust. They can also cause War! They are very dangerous & sick!

— Donald J. Trump (@realDonaldTrump) August 5, 2018

 

Additionally, about 350 media outlets have also published pieces today affirming the importance of a free press and rejecting the "enemy of the people" appellation.

Eighth Circuit Upholds Public Union Exclusive Representation Designation Against First Amendment Challenge

Steven D. Schwinn, John Marshall Law School

The Eighth Circuit this week held that a Minnesota law that authorizes public employees to organize and to designate an exclusive representative to negotiate employment terms with the state did not violate the First Amendment.

The case, Bierman v. Dayton, may represent a next front, after Janus, in First Amendment challenges to public-sector unions. The Eighth Circuit quoted the time-bomb in Janus (see below) that could well foretell the end of exclusive representation, even without a fair-share requirement.

The case tested Minnesota's Public Employee Labor Relations Act, as applied to in-home care providers for disabled Medicaid recipients. The Act permits those employees to organize and designate an exclusive bargaining representative, but it doesn't require fair-share fees for non-union members. Still, dissenting home-health-care workers challenged the Act, arguing that it compelled them to associate with a union that they want no part of. (Again: They were not charged an agency fee or fair-share fee. Their claim was that the state, merely by allowing their union colleagues to designate an exclusive bargaining representative, violated their First Amendment rights.)

The court flatly rejected this claim, pointing to Minnesota State Board for Community Colleges v. Knight, which, the court said, squarely answered the question.

As to Janus's impact on this kind of case, the court wrote,

Recent holdings in [Janus] and [Harris] do not supersede Knight. Under those decisions, a State cannot compel public employees and homecare providers, respectively, to pay fees to a union of which they are not members, but the providers here do not challenge a mandatory fee. Janus did characterize a State's requirement that a union serve as an exclusive bargaining agent for its employees as "a significant impingement on associational freedoms that would not be tolerated in other contexts," but the decision never mentioned Knight, and the constitutionality of exclusive representation standing alone was not at issue. Of course, where a precedent like Knight has direct application in a case, we should follow it, even if a later decision arguably undermines some of its reasoning.

What's Up with the Impeachment of the West Virginia Supreme Court (yes, the whole court)?

The West Virginia House this week voted to impeach the entire state supreme court. So what's up? Coverage here, NYT, WaPo (and here on the broader trend), and NYmag.com's Dailey Intelligencer.

This isn't the first time West Virginia's courts have been embroiled in constitutional/political disputes. We posted on Caperton here.