Constitutional Law Prof Blog

NAACP Challenges Recission of TPS Status for Haitians As Violating Equal Protection

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

In a Complaint filed in the United States District of Maryland in National Association for the Advancement of Colored People v. United States Department of Homeland Security, the NAACP challenges the Trump Administration's decision to rescind Temporary Protective Status (“TPS”) for Haitian immigrants, as a violation of equal protection. The complaint argues that the rescission springs from an intent to discriminate on the basis of race and/or ethnicity.

 

Essentially COUNT I of the Complaint, based on the equal protection component of the Fifth Amendment, contents that there is sufficient governmental intent so that the classification should be deemed as a racial one. As ¶88 provides:

The inference of race and/or ethnicity discrimination is supported by the Administration’s departure from the normal decision-making process; the fact that the decision bears more heavily on one race than another; the sequence of events leading to the decision; the contemporaneous statements of decisionmakers; and the historical background of the decision. The Supreme Court has recognized these factors as probative of intentional discrimination. See Vill. of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977).

Subsequent paragraphs of the complaint track these Arlington Heights factors with more specificity. Earlier, the complaint in ¶ 79 mentions the President's notorious comments:

On January 11, 2018, during a White House meeting with several U.S. Senators, the President is alleged to have disparaged a draft immigration plan that protected people from Haiti, El Salvador, and some African countries, asking, “Why are we having all these people from shithole countries come here?”President Trump is alleged to have further disparaged Haitians in particular, asking “Why do we need more Haitians?” and ordered the bill’s drafters to “take them out.”In this meeting, the President is further alleged to have expressed his preference for more immigrants from places like Norway, where the population is over 90 percent white. Haiti’s population, by contrast, is over 95 percent Black.

[footnotes omitted].  If there is a racial classification, the court would apply strict scrutiny requiring a compelling governmental interest that is served by narrowly tailored means.

Interestingly, the equal protection count also includes this simple statement and citation: "The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)."  Recall that the Court in Moreno found that a Congressional statute defining households for foodstamp eligibility as only including relatives - - - in order to exclude "hippie communes" - - - was irrational because a bare "desire to harm a politically unpopular group" could not constitute a legitimate government interest.  This "animus" doctrine, also evident in cases like Romer v. Evans and United States v. Windsor, is another way that the challengers could prevail on their equal protection claim. Thus, even if the court does not find there is a racial (or ethnic) classification meriting strict scrutiny, the court could decide that there is sufficient animus here to negate the legitimate interest required under rational basis, the most lenient standard.

It will be interesting to see how the Department of Justice responds.  Meanwhile, ConLawProfs teaching equal protection this semester could use this as the basis for a great problem.

 

Daily Read: Was Marbury v. Madison Right? Justice Kennedy Wants to Know

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

The United States Supreme Court heard oral arguments in Dalmazzi v. United States in which the complicated issue is whether 10 U.S.C. § 973(b)(2)(A)(ii), the so-called dual-officeholding ban, prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.”  The case is made more complicated by the threshold issue of whether the Court has power to review the case.  Amy Howe has a good discussion of the oral argument on SCOTUSblog.

A notable highlight of the argument was when Justice Kennedy asked ConLawProf Stephen Vladeck, arguing for the petitioners, whether Chief Justice John Marshall was correct in  Marbury v. Madison.

JUSTICE KENNEDY:  Do you think Marbury versus Madison is right?

(Laughter.)

JUSTICE KENNEDY:  Particularly as to the interpretation with such exceptions as Congress may make.

VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but [Ex Parte] Bollman [1807].

And if I may, Mr. Chief Justice, I'd like to reserve my time.

 

 

ConLawProfs and ConLaw students engaging with Marbury v. Madison could not ask for a more current example of the continuing relevance of the case.  And for enhanced learning, try the CALI Lesson on the case or these ideas.

Eighth Circuit Rejects Challenge to Missouri's Onerous Hair-Braiding License Requirements

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

In a very brief opinion in Niang v. Caroll, a unanimous panel of the Eighth Circuit affirmed a district judge's grant of summary judgment to Missouri against a challenge to the state's licensing requirements for "African-style hair braiders."  In short, the Missouri statutes require a license for barbers and cosmetologists that is granted only to those who complete a "costly and time-intensive training course - - - 1,000-hours for barbering and 1,500-hours for hairdressing" and passage of exam.  Moreover, Missouri conceded that "only about 10 percent of the required training courses is relevant to African-style braiders, and that almost all the exams do not test on braiding." 

The Eighth Circuit applied the most deferential of rational basis standards.  In rejecting the challengers' argument that the license requirement was not rationally related to any legitimate government interest, the court not only found that the state interests of protecting consumers and ensuring public health and safety were legitimate, but also recognized two other interests supplied by the district judge: stimulating more education on African-style braiding and incentivizing braiders to offer more comprehensive hair care.  As to the means chosen, the Eighth Circuit found that it was sufficiently reasonable: "the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so." 

The Eighth Circuit also rejected the Equal Protection argument focused on the classification between braiders and barbers/cosmetologist, finding that the statutory definitions of "hair dressing" included braiding.

Lurking beneath the litigation, of course, is the racial classification, but this remains unaddressed.  Indeed, it would be a difficult argument on which to prevail absent other facts.

For Constitutional Law professors looking for a good example of "anything goes" rational basis as exemplified by Railway Express Agency v. New York (1949) (which the Eighth Circuit does not cite), as well as Dandridge v. Williams (1970) and  Heller v. Doe (1997), both of which the court does cite, this brief opinion is noteworthy.

For persons who want to practice the profession of braiding without being subject to onerous and irrelevant licensing requirements, the remedy may have to be in the legislature.

[image by  Chidi "Lex Ash" Ashimole  via]

Daily Read: Marijuana, Federalism, and Preemption

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

In a Memorandum on January 4, Attorney General Jeff Sessions has rescinded previous Department of Justice instructions to United States Attorneys relating to enforcement of federal laws criminalizing marijuana as "unnecessary" in favor of a well-established rule of general guided discretion.  The DOJ press release describes it as a "return to the rule of law," but it arguably makes the legal rules more subject to discretion and even more unclear.  The legalization of marijuana by states while the federal government maintains marijuana on its schedule of controlled substances pertinent to criminal laws presents complicated problems of federalism and preemption. 

An excellent primer on these issues is Lea Brilmayer's article A General Theory of Preemption: With Comments on State Decriminalization of Marijuana, appearing in a recent symposium on Marijuana and Federalism in Boston College Law Review.

Brilmayer does provide some background on the marijuana controversies, including a discussion of the Supreme Court's failure to provide clear answers on the state-federal conflicts regarding marijuana.  But, as her title indicates, marijuana is an example rather than a primary focus.  She explains the principles and open questions in the doctrines of vertical and horizontal preemption, then uses concrete examples involving marijuana.  Her ultimate conclusion is that there is a weak case for preemption in the marijuana decriminalization context.

 This is a terrific introduction for understanding the issues surrounding the issues raised by the Sessions memo regarding state marijuana decriminalization.  At 35 pages, with accessible hypotheticals, this could be a great assignment for Constitutional Law classes this semester.

 

Daily Read: Reconstructing the (Male) Voice of Authority

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

 Recall that Chief Justice Roberts' 2017 year-end report on the judiciary included an announcement of a working group to address the "depth of sexual harassment" in the judicial workplace. One might hope that the working group also addresses the seeming backtracking of the commitment to diversify the federal bench with regards to gender, as well as other disproportionately underrepresented people. Perhaps this new working group will re-examine the plethora of gender bias in the courts reports - - - and responses to them - - - from previous decades. (For a good discussion and survey see, Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)).

While not focusing on judicial diversity or sexual harassment specifically, Professor Susie Salmon (University of Arizona College of Law) argues that the problem of women's persistent inequality in the legal profession is rooted in classical notions of what it means to be a judge and advocate. In her article Reconstructing the Voice of Authority, 51 Akron Law Review 143 (2017), Salmon begins by quoting famous feminist classicist Mary Beard who has written tellingly about the mythic Penelope, the first woman in recorded Western history to be told to be quiet (and by her son). Salmon argues

until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior—that is, a male—these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students—and later lawyers—develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric—values inherited from a culture that silenced women’s voices in the public sphere—exacerbates the problem.

idely used term tha

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)

idely used term tha

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)

myriad of definitions

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)

myriad of definitions

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)

Her concentration on moot court comes two decades after Mairi N. Morrison, May It Please Whose Court?: How Moot Court Perpetuates Gender Bias in the “Real World” of Practice, 6 UCLA WOMEN’S L.J. 49 (1995), and essentially asks why things have not changed.

Perhaps it is because there is a continued effort to police women's voices. As Salmon states:

And, as modern  moot- court wisdom would have it, the voice of authority is still a deep and  resonant one. No lesser authorities than U.S. Supreme Court Justice  Antonin Scalia and noted legal-writing expert Bryan Garner advise advocates to spend time on efforts to lower their vocal pitch, opining that  “a high and shrill tone does not inspire confidence.” Scalia and Garner hardly stand alone; advice about lowering vocal register pervades books  and articles on effective oral advocacy. Even those oral-advocacy experts who explicitly acknowledge the sexism that may underlie the  connection between low voices and authority nonetheless counsel advocates to speak in the lower end of their vocal range.

Salmon's article ends with a "menu of solutions" particular to moot court, but they could easily be translated to issues of sexual harassment as well as judicial diversity and constitutional equality.

 

[image: "Penelope (the faithful wife of Odysseus)" 5th C. BCE via]

 

Daily Read: American Sociological Ass'n Takes Issue With CJ Roberts

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

 In an open letter to Chief Justice Roberts, the President of the American Sociological Association, Eduardo Bonilla-Silva, responded to the Roberts's comment during the Gill v. Whitford oral argument that social science data regarding partisan gerrymandering was "sociological gobbledygook." 

After noting that during the oral argument "Justices Kagan and Sotomayor subsequently expressed concern about your statement and spoke to the value of social science measures," President Bonilla-Silva continued:

In an era when facts are often dismissed as “fake news,” we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted.  What you call “gobbledygook” is rigorous and empirical.  The following are just a few examples of the contributions of sociological research to American society that our members offered in response to your comment:

• Clear evidence that separate is not equal
• Early algorithms for detecting credit card fraud
• Mapped connections between racism and physiologic stress response
• Network analysis to identify and thwart terror structures and capture terrorists
• Pay grades and reward systems that improve retention among enlisted soldiers
• Modern public opinion polling
• Evidence of gender discrimination in the workplace
• Understanding of the family factors that impact outcomes for children
• Guidance for police in defusing high-risk encounters
• Strategies for combatting the public health challenge of drug abuse

President Bonilla-Silva also offered additional training for Chief Justice Roberts:

Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff. Given the important ways in which sociological data can and has informed thoughtful decision-making from the bench, such time would be well spent.

Indeed, during the oral argument Chief Justice Roberts did comment that his "goobledygook" perspective might be attributable to "simply my educational background." 

There has not yet been a reported response from the Chief Justice.

Daily Read: Redistricting and Gerrymandering Primer

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

 Trying to get up to speed on the law of redistricting and gerrymandering after the oral argument in Gill v. Whitford? 

A terrific source is the Congressional Research Service Report, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige Whitaker, from March 2017. 

Like all CRS reports, this one is relatively brief (23 pages) and written for an intelligent but not necessarily fully conversant audience. The discussion of partisan gerrymandering on pages 13-16 provides an excellent background to Whitford, including a discussion of Vieth v. Jubelirer (2004) and Justice Kennedy's pivotal role:

The deciding vote in Vieth, Justice Kennedy, concluded that while the claims presented in that case were not justiciable, he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Further, Justice Kennedy observed, that while the appellants in this case had relied on the Equal Protection Clause as the source of their substantive right and basis for relief, the complaint also alleged a violation of their First Amendment rights. According to Justice Kennedy, the First Amendment may be a more relevant constitutional provision in future cases that claim unconstitutional partisan gerrymandering because such claims “involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” In contrast, Justice Kennedy noted, an analysis under the Equal Protection Clause emphasizes the permissibility of a redistricting plan’s classifications. When race is involved, Justice Kennedy reasoned, examining such classifications is appropriate because classifying by race “is almost never permissible.” However, when the issue before a court is whether a generally permissible classification—political party association—has been used for an impermissible purpose, the question turns on whether the classification imposed an unlawful burden, Justice Kennedy maintained. Therefore, he concluded that an analysis under the First Amendment “may offer a sounder and more prudential basis for intervention” by concentrating on whether a redistricting plan “burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.”

[footnotes omitted].  The CRS Report also has a great discussion of the three-judge court decision in Gill v. Whitaker.

In general, the report "analyzes key Supreme Court and lower court redistricting decisions addressing four general topics":

(1) the constitutional requirement of population equality among districts;

(2) the intersection between the Voting Rights Act and the Equal Protection Clause; (although the Report was produced before the Court's decision in Cooper v. Harris  it discusses the then-pending case);

(3) the justiciability of partisan gerrymandering; and

(4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.

An objective and great resource for anyone working on these issues in constitutional law.

 

En Banc Ninth Circuit Upholds Liquor Regulation Against First Amendment Challenge

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

 In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.

Plaintiff Retail Digital Network, RDN, installed and operated seven foot digital screen displays in liquor stores for the purpose of running advertisements for liquor products such as Moët Hennessy;  the retail stores would would receive a portion of RDN's revenue.  However, after originally participating in the advertising, Moët Hennessy withdrew, worried that the state would enforce California Business and Professions Code §25503(f)-(h) regarding such advertising arrangements.

 

The Ninth Circuit had upheld the provision more than thirty years ago in Actmedia, Inc. v. Stroh (1986), applying Central Hudson & Electric Corporation v. Public Service Commission of New York (1980).   RDN argued, however, that Actmedia needed to be reconsidered, and contended that IMS v. Sorrell (2011) changed Central Hudson's commercial speech standard from "intermediate scrutiny" to "heightened scrutiny."

The en banc Ninth Circuit, with the exception of Chief Judge Sidney Thomas in a lone dissent, rejected the argument that Sorrell changed the commercial speech standard of  Central Hudson.  The court's opinion has an excellent rehearsal of the doctrinal relevance of Sorrell after Central Hudson, including arguments derived from Sorrell itself and a discussion of sister-circuit cases.  In short, the court finds that Central Hudson "continues to set the standard for assessing restrictions on commercial speech."

Applying Central Hudson, the court does depart in one aspect from its previous application in  the thirty-year old precedent of Actmedia.  The court found that even assuming "promoting temperance" is a substantial government interest under Central Hudson, the state statute could not be said to "directly and substantially advance that interest" as required by Central Hudson. 

However, the court agreed that the statute "directly and materially advances the State's interest in maintaining a triple-tiered market system" for wines and liquor and "because there is a sufficient fit between that interest and the legislative scheme."  This "triple-tiered" distribution scheme was adopted by California after the repeal of the Eighteenth Amendment to "prevent the resurgence of tied-houses."  Tied-houses were retailers and saloons controlled by larger interests.

ConLawProfs looking for a good case to discuss commercial speech after Sorell might find RDN worth a look.  As for whether the United States Supreme Court will take a look at RDN to clarify the commercial speech standard, RDN might also prove interesting. 

Daily Read: Resources on Presidential Power

There's a new handy guide collecting resources that will come in handy for ConLawProfs, students, lawyers, and the general public.

In conjunction with the course, Presidential Power, to be offered at University of Washington School of Law by Professors Kathryn Watts and Sanne Knudsen, law librarian Mary Whisner has developed an excellent "Readings and resources concerning presidential power" library guide available here.

Some of the guide tracks the course, and is thus in development, but the "Books about Presidential Power" section is a great place to start understanding the legal, historical, and political dimensions of the issues.  The "Useful Reference" portion is a good overview, with a handy link to the Federal Register feed.

Additionally, here are two PBS "crash course" videos - - - from 2015 - - - that are also worth a watch:

 

 

 

 

Constitutional Law Exam: 2016 Possibilities

It's time again for Constitutional Law final exam.  In previous posts, such as here, we've discussed the common strategy of using current controversies as exam material, and have highlighted the best practices regarding final exam drafting, including the baseline that the exam question must include ALL the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.

This end-of-semester, the President-Elect has provided ample fodder for exam material.

A good place to start would be the ACLU Report entitled The Trump Memos, a 27 page discussion of issues of immigration, creation of a Muslim "database," torture, libel, mass surveillance, and  abortion.  Embedded in many of these issues are constitutional structural considerations involving federalism (e.g., sanctuary cities) and separation of powers (building "the wall). 

For First Amendment issues, augmenting the ACLU's libel discussion with the ABA section article about Trump as a "libel bully" provides lots of material.  There is also the recent "flag-burning" tweet, though this may be too simple given the precedent, although it could be combined with the lesser known doctrine regarding denaturalization, as we discuss here.

Lesser known doctrine that may not have been covered this semester (but presumably would be covered next semester) includes the Emoluments Clause, given Trump's many possible conflicts, as we've mentioned here and here.  Additionally, some argue that the "election" is not "over": recounts are occurring and there are calls for the Electoral College to select the popular vote winner as President.  The problems with the voting and the election could also provide exam material; there are also interesting equal protection voting cases such as the recent Ninth Circuit en banc case.

While Trump looms large on the constitutional landscape, there are also some interesting cases before the United States Supreme Court, in which the issues are more focused.

 

 

 

 

 

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.

Daily Pedagogy: Maintaining Scholarship While Teaching

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

It's August and ConLawProfs in the North America are thinking about classes for the Fall semester.  So, it's a good time to focus on pedagogy, as we'll be doing this month.

Yet if August brings the joys of contemplating going back in the classroom, it also brings the panic of impending deadlines, even if those deadlines are self-imposed.  The legal academy has a tradition - - - and often incentives  of "summer scholarship," although these may be fading given other pressures. 

One way to address the annual August anxieties is to reject the idea of a stark separation between "summer" and the "academic year," and look for synergies between scholarship and teaching that enliven both. I've tried to do this in an essay, Enhancing Reciprocal Synergies Between Teaching and Scholarship, published in the Journal of Legal Education last year and available - - - for now - - - on the once-open source ssrn. 

The article discusses the types of synergies that exist between teaching and scholarship for the legal academic  - - - the professional, methodological, theoretical and doctrinal - - - which are easily adaptable to other academics.  As is the overall suggestion that we should try to "pay attention" to the synergies between teaching and scholarship rather than viewing them as discrete, or even conflicting.

The article closes with a discussion of three "habits" of paying attention aimed at enhancing the reciprocal synergies between teaching and scholarship:  letting the subconscious work, commemorating one's thoughts & ideas, and engaging  - - - or not - - - in "daily practice."

Daily Video: Chemerinsky & Volokh Discuss the First Amendment and the Roberts Court

Worth a watch:

A dialogue between ConLawProfs Erwin Chemerinsky & Eugene Volokh on the topic of  "THE FIRST AMENDMENT & THE ROBERTS COURT," moderated by Kelli Sager, and sponsored by The First Amendment Salon, spearheaded by ConLawProf Ron Collins and in association with the Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Chemerinsky and Volokh agree with each other more than might be anticipated.

 

The First Amendment and the Roberts Court

 

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

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

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

Salaita Files Federal Complaint Over University of Illinois Actions

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

Recall our discussion last August about the decision of the University of Illinois at Urbana-Champaign officials  to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza.

Salaita has now filed a 39 page complaint in federal court.  The first count of the complaint alleges the First Amendment violation:

In sending "tweets" regarding Israel and Palestine, from his personal Twitter account from his home in Virginia in the summer of 2014, Plaintiff acted in his capacity as a citizen, and not pursuant to any official university duties. His tweets never impeded his performance of his duties as a faculty member, or the regular operation of the University. The subject matter of the tweets-Israel and Palestine-is a matter of public concern, and Professor Salaita's comments about the conflict were made in an effort to contribute to the public debate. Such conduct is protected by the First Amendment of the United States Constitution.

Plaintiff’s protected speech, and the viewpoint he expressed in those tweets, though greatly distorted and misconstrued by Defendants, was a motivating factor in defendant's decision not to recommend Professor Salaita’s appointment in the rejection of Professor Salaita 's appointment to the University faculty.

The second count alleges a procedural due process violation.  Most of the other counts allege state law violations including promissory estoppel, breach of contract, intentional infliction of emotional distress, and an interesting "spoilation of evidence" against Chancellor Phyllis Wise for allegedly destroying a two page document given to her by a donor.

ConLawProfs teaching First Amendment this summer might find the complaint makes for a good in-class discussion or problem.

Daily Read: Ron Collins' Tribute to First Amendment Lawyer Al Bendich

Ron Collins has a moving and instructive obituary for Al Bendich, who as a new lawyer represented Lawrence Ferlinghetti against obscenity charges for publishing Allen Ginsburg's now-classic HOWL and later representing well-known comedian Lenny Bruce against similar charges.

" Cadets at VMI reading HOWL" Gordon Ball, 1991  via

Collins is adamant about recalling the lawyers in First Amendment cases - - - and not merely the judges - - - and the career of Bendich is a reminder of the importance of litigators.

UPDATE: The New York Times Obituary of January 13, 2015, with quotes from Collins as well as others is here.

Daily Read: Will Supreme Court Hear NSA Challenge in 2015?

Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court. 

Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts.  And as he implies, regardless of the status of these particular cases, there are plenty more percolating:

Case name: N/A
Status: Ongoing

Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.

ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.

[image via]

Robson on Teaching the Religion Clauses

Check out ConLawProfBlog's own Prof. Ruthann Robson's (CUNY) piece about her innovative and engaging approach to teaching the Religion Clauses in the Fall 2014 Law Teacher. (Robson's piece begins on page 49.) In it, Robson gives a step-by-step for a replicable, pervasive method that promises huge pedagogical payoffs--exactly the kind of thing we need more of in the Con Law world.

Robson, a leader in innovative and effective teaching who was featured in What the Best Law Teachers Do (Harvard), starts her First Amendment class by requiring students to develop and adopt a role in one of three categories: a recognized religion, a quasi-religion, and a non-religion. Robson then conducts her Religion Clause classes with her students in role, for example: "What do you think of this outcome, Student X, as a Rastafarian?"

The approach comes with distinct benefits and allows the class better to critically assess and analyze Religion Clause cases. Robson: "This role pervasiveness often illuminates the subjectivity of the Court's recitation of facts, as well as the reasoning, doctrine, theoretical perspectives, and the invocations of history."

Robson uses role pervasiveness for problems, too, assigning students to traditional legal roles (attorneys, judges, clerks, and the like) while still maintaining their assigned religion.

For example, Student Y, as a Sikh, now also takes on the role of a law clerk to a judge considering the constitutionality of the seventeen foot "Latin cross" at the National September 11 museum. Or Student Z, as a Secular Humanist, is writing an opinion as an administrative law judge in a sexual orientation discrimination case against a baker who refused to make a wedding cake for a same-sex couple.

This not only enhances students' understanding of the Religion Clauses, but it also allows Robson to explore issues of professional identity.

Check it out; give it a try; tell us how it works for you.

First Amendment Exam Question on Ferguson Protest Prompts Controversy

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

Writing exam questions that engage with current controversies can themselves cause controversy.

Or that seems to be what happened at one law school when the ConLawProf sought to incorporate the Ferguson protests into a First Amendment exam hypothetical.  Reportedly, this was the question:

"Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision."

This seems like a plausible query, if a bit sparse on facts as related (depending on what students should be expected to know from what was covered in class).  The controversy sparks in part from the exam's role assignment to work for the prosecutor.  (As the report states: "But it's quite another thing to ask students to advocate for an extremist point that is shared by only the worst people in an exam setting. You don't give your students an exam where they have to defend Holocaust deniers or ISIS terrorists. It's inappropriate and not a fair measure of their understanding of law.")

However, the question's task (at least as I'm reading it) is to objectively discuss the merits.  Would such a charge contravene the First Amendment?  The issue calls for the articulation of the clear and present danger "test" as the professor's explanation of the question in the report attests.  It also would call for an application of cases, depending on which cases were covered,  such as Brandenburg v. Ohio (involving the Ku Klux Klan) and Hess v. Indiana (involving an anti-war protester). And, it seems to me that the prosecutor would have a very difficult time surmounting a First Amendment challenge to a charge, making an assignment to the prosecution side the more difficult one. 

This should not make ConLawProfs shy away from using "controversial" material on exams, but to use them with care, with as much understanding of our students as possible, having listened to the concerns they bring forward in class discussions.  Indeed, the report does suggest that the controversy is simply not this exam.  There seem to be other issues including the lack of diversity at the law school.  A lack of diversity could mean that a small number of students would be emotionally involved with the question in ways that other students would not.  The same report contains a reaction from the dean and the professor, with an accommodation that this question will be disregarded in the grading of the exam. 

Meanwhile, as has been widely reported, at least one law school is allowing some students to postpone final exams because of the controversies regarding the grand juries non-indictment in the killings of Michael Brown in Ferguson and Eric Garner in Staten Island.

[image via]

(h/t Leis Rodriguez)

Daily Read: Gabriel Arkles Talking to (Con)LawProfs Talking to Trans* Students

Now that classes have begun, it's a good time for lawprofs to think about how we teach and interact with our students.

Published in the on-line "Footnote Forum" of City University of New York's law review, Professor Gabriel Arkles(pictured) has some very specific things to say about the trans* and gender non-comforming students in our classes.  In his essay, Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty, Arkles provides details of practices that "need improvement" and often specific suggestions for change.  Here's one of special note for ConLawProfs:

Practice in need of change: In discussing Equal Protection doctrine, a constitutional law professor says, “But is sex really an immutable characteristic? Don’t some people get ‘sex changes’?” The class laughs, and the professor moves on.

This comment makes trans* people into the butt of a joke, assumes that no trans* people are in the room, gives no substantive attention to trans* issues in constitutional law, and plays into myths about trans* healthcare.

Arkles' essay is a thought-provoking and must-read this semester.