Senate Appointment Showdown: Senatorial Powers to Exclude and Expel

In what may ignite a serious constitutional controversy, embattled governor Rod Blagojevich appointed Roland Burris to President Elect Obama’s vacant Senate seat today. The Governor, recently arrested and indicted on corruption charges for, among other things, allegedly attempting to sell Obama’s Senate seat, has ignored both calls to resign as well as warnings from the Senate not to appoint an Obama successor. The Democratic leadership in the Senate has specifically expressed its unwillingness to except Blagojevich’s appointment- saying that the appointment will “not stand”. What exactly will Congress do with the Burris appointment? What can congress do?

The answer it seems, regardless of the rhetorical blustering from Senate leaders, is that Congress will probably have to seat the governor’s appointment. The Supreme Court made clear in Powell v. McCormack that Congress has no power to “exclude” elected members who satisfy the constitutional qualifications for office. Though the two houses have the authority to “judge” the qualifications of their members, where a duly elected member meets the constitutional requirements- i.e. meets the age, residency, and citizenship requirements if Article I- then the member must be given his seat. In Powell, the Court held that the House of representatives could not exclude representative Powell, who at the time was under investigation for misappropriating congressional funds, when the voters of his district had chosen to return him to his seat. The House had no constitutional authority to exclude an elected member who was at least 25, was seven years a citizen of the U.S., and resided within the state he would represent. While Powell applied to a duly elected member of the House, one would assume that the same theory would apply to a duly appointed member of the Senate. Although many may argue that Burris was not duly appointed, regardless of the legal circumstances surrounding the Governor, until he is removed form office or resigns he still holds the powers of his office and therefore still holds the authority to appoint Obama’s Illinois Senate successor.

The only option for the Senate is to seat Mr. Burris, and then vote to expel him with a 2/3 vote. This potential move raises three interesting issues. First, from a practical standpoint, would Democrats in the senate be willing to expel a fellow Democrat (and likely a predictably solid democratic voter), even one appointed by Blagojevich, when every Democratic vote is essential to reaching that all important 60 vote majority? Second, Article 1 section 5 of the Constitution states: “Each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member.” It is unclear whether the disorderly behavior language modifies the expulsion power. Must a member first engage in some disorderly behavior before he/she is expelled from either the House or Senate? If that is the case, how can Burris be expelled when he has committed no disorderly act? Where he has committed no act at all? Third, is the Senate willing to set a precedent for expelling a member by vicariously applying to that individual the actions of another? Burris, has done nothing wrong (though accepting the governor’s appointment may not have been the best political move). Were the Senate to expel Burris, it would set a precedent for expelling a member who had committed no unlawful act. What would be next? Expelling a member for the actions of a family member? Expelling a member for belonging to the wrong party?

Before the Senate acts on this appointment, it should strongly, and thoroughly consider the effect an expulsion will have on the stability of the Senate as an institution. George Washington once said that the Senate acted as a saucer into which hot coffee is poured to cool. This is an issue that truly is in need of a cooling-off period.

Posted by Todd Garvey

Judicial Authority to Order Release of Guantanamo Detainees

On October 7, 2008 Federal District Judge Ricardo M. Urbina, a Clinton appointee, ordered the transfer of 17 detainees held at the Guantanamo Bay detention center to the United States mainland for their immediate release. The decision marked the first time since 2001 that the judicial branch explicitly and aggressively challenged the President’s authority to detain individuals at Guantanamo bay by directly ordering the release of specific prisoners. The 17 men were Uighurs, a Chinese Muslim minority, captured in Afghanistan in 2001 following the US invasion. This assertion of judicial power was short lived however, as within 24 hours the D.C. Circuit Court instituted a temporary stay on Judge Urbina’s order. On October 20th the Circuit Court officially postponed the transfer of the detainees until at least November.

The U.S. government no longer classifies the 17 Uighurs as enemy combatants, nonetheless the DOJ still considers the detainees to be “dangerous” and argues the court lacks the authority to order the release of any detainees into the United States. This dispute gets to the heart of the next big issue the Supreme Court is going to have to face in the detention area. Up to this point, court precedent has focused solely on the federal court’s jurisdiction to hear habeas petitions brought by Guantanamo Bay detainees, and the protective procedures due to those detainees via the Combatant Status Review Tribunal and Military Commissions process. (See Rasul, Hamdi, Boumediene). The Uighurs case sets up a clash in which the court may have to weigh the President’s authority to hold terrorist suspects, including those not designated as enemy combatants, with the court’s authority to order an actual release.

Posted by Todd Garvey

Crash Course 3: 2nd and 4th Amendments

This post submitted by an IBRL:SD member.

Last Wednesday we heard from Josh Steward about the Supreme Court’s recent interpretation of the Second Amendment and where gun rights stand today. Josh first explained the text of the Second Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Then Josh explained that in Heller the majority essentially severed the prefatory phrase regarding the militia, leaving question about what it meant to keep arms, bear arms, and the degree of infringement. Instead of situating the limit on the kinds of weapons people may keep and bear (and presumably shoot) in the text, or in the history of the Amendment, the Court said that firearms in common lawful use were protected.

We then discussed the Fourth Amendment’s protection against unreasonable searches and seizures:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The result, if these rules are violated, is that the evidence obtained is not available in court. First, however, some definitions. A “search” is the invasion of a subjective expectation of privacy that society is willing to recognize as reasonable. For instance, you have a reasonable expectation of privacy in your house, but an unreasonable (if genuine) expectation of privacy in the smell of drugs emanating from the trunk of your car. A seizure, with regard to a person (which is usually the most important) is the creation of the reasonable belief in an average person that they are not free to leave. For example, tackling a suspect, and turning on the police siren-lights are both seizures of the suspect. Finally, an “unreasonable search[ or] seizure[]” is a search without a warrant. The case I meant to read from to support this proposition is Katz:

Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," (Agnello v. United States) for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." (Wong Sun v. United States). "Over and again this Court has emphasized that HN9the mandate of the [Fourth] Amendment requires adherence to judicial processes," (United States v. Jeffers) and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. - Katz v. United States, 389 U.S. 347, 357 (U.S. 1967)

Naturally, we next discussed the “specifically established and well-delineated exceptions” to the warrant requirement. Before talking about the seven exceptions under discussion we talked about how Terry v. Ohio permitted certain citizen-police interaction based on reasonable, objectively articulable, suspicion, and how that case demonstrated the Court’s real concern for limiting the absolute discretion of the police to pursue wild hunches or target people for investigation without justification. There is very little to say about the difference between unreasonable suspicion, reasonable suspicion, and probable cause, except that the facts of cases are frequently very similar to others so rules can be applied, but we talked about two examples very close to the line.

Neither mere flight from the police (without more) nor apparently lawful conduct in a high crime area, at night, justify a stop by the police. But all three combined, do. That is one example of the line between a mere hunch, and reasonable suspicion. As for probable cause, the question is always whether the information the officer has would arguably be enough to justify skipping straight to the part where the suspect is put in handcuffs. For example -- would a spark plug feel enough like a crack pipe through the cloth of a pocket to justify an arrest?
The seven exceptions to the warrant requirement that we talked about were:
Search Incident to Lawful Arrest: Police may arrest a suspect on probable cause, and before putting the suspect in the back of their cruiser, may search them both to disarm and to find evidence. The way I have always understood this is that once a person has been arrested, the government has put its cards on the table and there is no problem of intangible escalalation of the imposition on the liberty of the arrestee. If the arrest was unlawful, the search will be too, so let him challenge the arrest.

The Automobile Exception: Unlike your house, you drive your car through public places, and (most) don’t have blinds on the windows (incidentally, there are laws against that sort of thing). Also, the drivers side window is the place of the most frequent interaction with the police. For these reasons, under federal law, the police can search a car once there is probable cause. Notice – there is no such exception for the person.

Inventory Searches: When cars are impounded they may be searched without a warrant so long as there are guidelines limiting the discretion of the police, and the search is conducted in a manner that indicates it was part of normal procedure. Again, it’s a matter of limiting police discretion, and state law has a lot to say about this.

Plain View: Not really an exception, but so long as the police were lawfully allowed to be in the vantage point that they were, we can’t expect them to turn a blind eye to obvious evidence of wrongdoing. Maybe it’s a carry-over from the abandoned trespass concept of a search (Olmstead), but that’s where it stands, and the rule is not going anywhere.

Consent: If you consent to a search, you waive your rights. The only remarkable thing about this exception is the frequency with which _very_ guilty people consent. Crime School 101: If you have drugs, and you tell the officer he can search, he IS going to search AND he is going to find them (they kind of know what they are doing).

(K-12) School: We expect certain things from our teachers, and holding them to the same standards as the police would (a) make their jobs impossible, and (b) sorely mistake what their job is.

Exigent Circumstances: In the ticking time bomb scenario we allow the police to act like normal human beings, and worry about the justifications later. Police don’t have to abandon a hot pursuit when the suspect enters private property and go get a warrant. Recently, this has become a hot topic in investigation of methamphetamine labs, which police and many courts have deemed equally dangerous as the ticking time bomb – they do in fact explode without warning and with some frequency.

Audio

Feeding the Hungry

This post submitted by an IBRL member.

Two weeks ago we talked about the doctrine of incorporation. One snippet of the complex history leading up to the Fourteenth Amendment, which includes one of my most favorite quotes, is tangentially relevant to current events.

In 1854 full scale political war broke out over the admission of Kansas and Nebraska to the Union pursuant to the Kansas-Nebraska Act, which admitted the two states “with or without slavery as their constitutions may provide.” Opponents of the Act formed the new Republican Party, which would later go on to control Congress during reconstruction and pass, among other things, the Fourteenth Amendemnt, on the platform and the slogan of “Free Kansas.” The new party’s platform declared it “both the right and the duty of Congress to prohibit in the Territories those twin relics of barbarism, polygamy and slavery.” In a demonstration of a natural rights concept of “privileges and immunities,” the Republican party further resolved “that Kansas should be immediately admitted as a State of the Union with her present free constitution, as at once the most effectual way of securing to her citizens the enjoyment of the right and privileges to which they are entitled.”

Outright violence commenced. Massive contingents of pro and anti slavery forces immigrated to Kansas in an attempt to overwhelm the other side in the vote on the state’s constitutional disposition toward slavery. When the pro-slavery forces won the election, dispelled anti-slavery forces, and entrenched their position in the laws of the new state, the anti-slavery faction set up an opposition government led by “Free-Soil” forces, another radical political party dedicated to the slavery issue. The shots fired in this exchange were the first of what we now call the Civil War.

Among others, the new Kansas legislature passed laws restricting the freedoms of speech and the press, and which were “identical to [those] passed by a number of [other] states,” and which made it a felony “to assert that persons have not the right to hold slaves in said Territories” or to “circulate any writing containing any sentiments calculated to induce slaves to escape from the service of their masters.”

On March 7th, 1856, John Bingham, widely considered the most important figure in the formation of the Fourteenth Amendment, attacked the constitutionality of these laws. His speech was extraordinarly compelling, and by no means uncharacteristic for its time. Remember, John Bingham gave this speech TEN YEARS BEFORE the Fourteenth Amendment was proposed :

"[I]t is as plain as any fact in nature that this legislation is void by whomsoever enacted. And why? Simply because it contravenes the Constitution of the United States, and by which Constitution, by the express terms of the organic act, restricts the legislative power of the Legislative Assembly of Kansas to such rightful subjects of legislation as are consistent with the Constitution.
***
Any territorial enactment which makes it a felony for a citizen of the United States within the territory of the United States “to know, to argue, and to utter freely according to conscience,” is absolutely void, because it is not consistent with that provision which declares that Congress of the United States shall not pass any law abridging the freedom of speech or of the press. It has conferred the power of legislation on that Territory; but at the same time of conferring that power, it said, in terms plain and clear to the comprehension of any man, that such legislation should only extend to such rightful subjects of legislation as were consistent with the Constitution. Congress has the power to restrain and prevent any such legislation. By permitting it to stand, Congress approves it, and, in fact, enacts it. What Congress does by another, it does itself, in effect
***
[According to these laws from Kansas, it would be] a felony to shelter the houseless, to cloth the naked, to feed the hungry, and help him that is ready to perish; a felony to give to the famishing a cup of water in the name of our Master. Oh, sir, before you hold this enactment binding upon an American Congress, tear down that banner of freedom which floats above us, for stirring reminiscences linger in its folds, and the stars upon its field of azure have gleamed above the fields of “poised battle,” where the earthquake and the fire led the charge, and where American virtue and American valor maintained the unequal conflict against the mighty power of British tyranny and oppression. Before you hold this enactment to be law, burn our immortal Declaration and our free written Constitution, fetter our free press, and finally penetrate the human soul and put out the light of that understanding which the breath of the Almighty hath kindled.
***
This pretended legislation of Kansas violates the Constitution in this – that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force, while the Constitution provides that Congress shall make no law abridging the freedom of speech or of the press; and it expressly prescribes that “no person shall be deprived of life, liberty, or property without due process of law."

When I read this speech, I still get chills.

For more, I recommend Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986) and Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Norman: University of Oklahoma Press, 1989)

Crash Course 2 Summary: The First Amendment

The following summary was submitted by an IBRL:SD member.

Today we heard about the First Amendment’s protection for speech, press, association, and religion. Of course, a single hour can’t do justice to the complexities of First Amendment analysis but we covered a lot. I can’t write a treatise here, so I would simply encourage everyone to get the audio of our session which will be posted along with this description

First, the amendment protects not just speech, but expression. That’s simplistic, but when you think about where to draw the line it starts to make sense. Of course speech from your mouth is covered, and the written word, but as soon as you acknowledge that something like a poster or a painting is the equivalent there seems to be no principled place to stop. Here we talked about wearing armbands to represent opposition to the war.

We also talked about categories of speech that were not protected, such as thecategories of incitement, clear and present danger, and obscenity. Each of these represents a hard wrought classification of speech or conduct that would otherwise be protected but ultimately enjoys no protection based, largely, on historical practice.

The “forum analysis” concept and time place and manner restrictions were a big part of our discussion -- in what ways can the government limit the kinds of speech and under what circumstances, without selecting certain viewpoints for favoritism. Also, in some ways the obverse, what kind of speech is the government (particularly through public schools) entitled to engage in.

Then we discussed the religion clauses, and how they sometimes put the government in a dilemma where no matter what it does it runs the risk of violating the constitution. In one example, to provide equal funding to all college programs would require some funding for religious groups, while providing funding only for non-religious groups looks like discrimination on the basis of religion. The two major topics discussed here were the tension between the establishment and the free exercise clauses, and the past and future of the “Lemon“ test.

The first five minutes included a brief introduction to the concept of “incorporation,” whereby the Bill of Rights were transformed from a limit only on federal power to a limit on both federal and state power.

Out next session will be next Wednesday in which we will discuss the Second, Third and Fourth Amendments – guns, searches and seizures . . . and quartering soldiers in time of peace (why not).

Audio Link

In re DBC: Federal Circuit hears Challenge to Appointment of Patent Judges

Earlier this month the U.S. Court of Appeals for the Federal Circuit heard a challenge to the appointment process for federal administrative patent judges. The appellants, interestingly enough a juice company who had been denied a patent for a new mangosteen fruit drink, claim the judge that rejected their patent application had been appointed in a manner that violated Article II’s appointment clause. Until President Bush singed a new bill into law this past August which vested the Secretary of Commerce with the power to appoint patent judges, the director of the Patent and Trade Office had been appointing administrative patent judges.

Under Article II of the Constitution the President has the authority to appoint principal officers with the advice and consent of the Senate. In the case of inferior officers however- a category in which administrative patent judges fall- Congress may vest the appointment power in the president, in the courts, or in the “heads of departments.” DBC, along with George Washington Law Professor John Duffy who first broke the patent judge appointment flaw in an online article, argue that the director of the PTO does not qualify as a “head of department” and, because two of the three judges who voted to reject their mangosteen juice drink patent were appointed in an unconstitutional manner, the panels decision should be thrown out.

The government does not concede that the director of PTO can not appoint administrative patent judges. But, if the process is indeed unconstitutional, the government is relying on the so called “de facto rule” which simply means a judges decision should still stand even if it is later discovered the judge was not properly in office or had been appointed in a flawed manner.

Were the court to rule that the appointment of patent judges prior to the new law violated the appointment clause of the Constitution- is the Federal Circuit really ready to throw out every single patent rejection or approval made by any judge appointed by the Director of the PTO rather than the Secretary of Commerce? Though the decision of the Federal Circuit is yet to come, this is one controversy that is likely to be solved by the U.S Supreme Court. SCOTUS is currently considering a petition of cert for a similar case.

The text of John Duffy’s initial article is available here.

Posted by Todd Garvey

Con Law Crash Course Recap

The following post was submitted by a member of IBRL:SD as a summary of today's "Con Law Crash Course."

Crash Course 1: Federalist Papers and Separation of Powers

What follows is a quick recap and explanation of our fist experimental crash course in the Bill of Rights and constitutional law. Please send all questions on the material to ermola@ wm.edu. Also, we are seeking feedback on the session so we can make sure our future sessions cover the material you are interested in, so please send us your feedback and suggestions (to the same email as above).

We will be posting the recording of the session soon.

Deep History

In the beginning there was the Magna Carta. Well, not exactly. The Magna Carta was a document that a collection of rebellious Barrons in old England forced the King to issue, which set certain, though very few, limits on the power of the King. Effectively, this was the first limit on the power of the government and the origin of the idea that even the state is subject to the law.

Over the years the Magna Carta was reissued, reaffirmed, and changed, but the concept of limited government grew in philosophical understandings of how good government operated. Philosophers like John Locke, Thomas Hobbes, Rousseau, and Montesquieu picked up the concept in their various treatises on government. The result was a highly theoretical understanding of the relationship of government to the people that influenced those involved in constructing the U.S. Constitution. After the drafting of the U.S. Constitution (a very long story for another time), the debate among the states as to whether or not to ratify it began. With authors from around the country, particularly in the New England area, writing articles opposing ratification, Alexander Hamilton, James Madison, and John Jay set out to rebut the arguments presented.

Who Cares?

At the beginning of our session I explained, very briefly, some interpretive philosophies including originalism, and specifically, that the most popular form of originalism looks for the original public meaning of the words. Clearly, a series of papers written by those involved in creating the constitution, which set out to explain to the people what the constitution meant, would be highly influential and therefore serve as a useful contemporary tool for discerning the meaning of the constitution. And, for theories that focus on coherence in the law, and principles expressed in the Constitution, articles written by those who claimed insight into the document could, at the very least, put forward a consistent vision of what the purposes of the document were.

As history would have it, the papers have generated more debate than closure on the meaning of the Constitution. James Madison argued that the Constitution should be read carefully and deliberately, such that the limits on government were expressed in the words used. Hamilton proposed a less strict understanding of the words, in the sense that he expected those words to bear more ordinary meaning and to be understood as a whole, whereas Madison expected the words used to bear technical meanings, foreclosing all others. Of course, the debates were much more complicated than this but, in a broad sense, these are the reasons that the debate continues to today.

The Constitution Itself

In the most simplified understanding, the Constitution has 3 articles dealing with the branches of government, a fourth setting out rules for governance among the states, a provision for adoption, and a clause making it the “supreme law of the land.”

Article I – The Legislative Power.

Section 8 – enumerated powers of congress, including

· Taxes to pay debts, and provide defense and general welfare of the nation

· Regulate interstate commerce

· Coin Money and punish its counterfeit

· Fix standards of weight and measures

· Establish post offices and post roads

· Granting patents and copyrights

· Create courts under the Supreme Court

· Define and punish international law

· Declare War

· Raise and support armies, a navy, and to regulate them

· To make laws for territories and the District of Columbia

Section 9 – explicit limits on Section 8, including the Habeas Corpus clause, ex post facto clause,

Article II – The Executive Power

· Shall take care that the laws be faithfully executed

· Shall be commander in chief

· Make treaties and appointments with advice and consent of the senate

Article III – The Judiciary

· Extends to cases and controversies

· Sets out categories of jurisdiction which may be regulated by congress

How it Applies

For example, all agreed that the Constitution set out to create a government of separated powers, which would harness the natural urges of people to consolidate power and prestige. So long as ambitious (though well meaning) people were made to compete with each other, the people could benefit from the enthusiasm of the contenders for as long as it situated them. However, the exact contours of the powers set out became a hot topic debated among those involved in writing the federalist papers.

The Federalist Papers

Madison, envisioning a minimalist government which would thereby lack the power necessary to destroy liberty, saw the enumeration of certain powers in the Constitution as the implicit exclusion of all others (a principle later endorsed by the judiciary):

“Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, [arguing that] ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.... Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it … A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, [it would be odd to contain in the terms] ‘to raise money for the general welfare.’ But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? …

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” – Madison, Federalist #41

So Madison saw a government where the Congress was (more or less) permitted only to carry out the powers enumerated in Article I Section 8. However, the Constitution had been created in large part because the Articles of Confederation failed to provide the power in the national government necessary to keep order within the country. One of the responses to that problem was the “Necessary and Proper clause,” here explained by Hamilton:

“a power … must be a power to pass all laws NECESSARY and PROPER for the execution of that power; … [T]he same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.” – Hamilton, Federalist Papers #33

Helpful, right? While the Necessary and Proper clause was meant to give greater power to the federal government than it already had, the degree of necessity or propriety were essentially left up in the air. Imagine, “Necessary” could mean something like a least-restrictive-means test, and “Proper” could mean something like an empirical test that all laws, on balance, have to create more good than harm. When the two are read together, ie., Necessary and Proper, that would put in place a restriction on all laws more burdensome than what we impose today on those which toe the line on our most cherished rights.

Meanwhile, Hamilton argued the President should be the repository of vast powers to see that the laws be faithfully executed:

“[A]ll men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention?

The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.” - Hamilton, Federalist #70

To the disagreements between Madison and Hamilton on the most important questions in the Federalist papers is added the problem that they were making an argument to the people and therefore were less concerned with spelling out the workings of the Constitution in the kind of detail necessary for an all inclusive theory of government than they were with assuaging the concerns of the people who would have to live under it (I am not suggesting errors of omission, only that if the authors wanted to explain how every detail of the Constitution was to operate they would need more than 85 parchments, as well as a degree of omniscience).

Where it Ended Up

The two debates that were of the most importance were, unsurprisingly, the extent of federal power, and the degree of separation to which it was subject. Later cases would fill out those concepts, but to skip to the end:

Is the Necessary and Proper clause a limit on the powers granted to Congress: Not really. Gonzales v. Raich, just 3 years ago said that Congress was allowed to regulate medical marijuana because its mere existence, without any evidence of interstate transportation, was a necessary and proper law to carry into effect Congress’ power to regulate interstate commerce. The litigants should have seen it coming; Wickard v. Filburn in 1942 had said almost the same thing about growing wheat. The only difference being that the market for marijuana was illicit.

The degree of separation of powers: Well, the President is generally free to not enforce the laws, thought it is not entirely clear whether that is a constitutional power or the absence of any power to check it, but that’s where it stands . The branches of government are allowed to create regulatory commissions that are neither legislative nor executive nor judicial, but a little bit of all three, just so long as there is “bicameralism” (passed by both houses of congress) and “presentment” (the President has a chance to veto it, even if he doesn’t actually do anything). And besides courts under Article III, there are Article I courts, or legislative courts, the limits of which I will not venture to explain here.

Audio Link

Boarder Searches of Cabins Require Reasonable Suspicion

The following is a Third Circuit opinion released today, available here (PDF).

As the defendant’s cruise ship arrived to port, boarder control agents arrived. The agents ran a list of passengers and crew members against a database which would select people for further scrutiny based on some unknown criteria (in this case, apparently, authorities in the port of departure thought there was something about the defendant that was suspicious). Out of 1,557 people the database selected 10. One of those ten was the defendant. Upon further scrutiny the border control agents determined that the defendant was selected because he routinely visited countries associated with narcotics distribution and had purchased his ticket last minute, in cash. He also had a history of felony drug convictions.

So the agents boarded the ship. Accompanied by a crew member they entered the defendant’s cabin (he wasn’t there) and “prepped” it for the canine unit. They brought in the dog, which did not alert at the doorway but, once inside, immediately indicated to a bag which seemed to be full of ladies shoes. After confirming with the crew member that no woman was listed for the room the border agents X-Rayed the shoes, finding what appeared to be little pebbles inside, which (you guessed it) turned out to be heroin.

So the defendant moves to suppress. And…

The Fourth Amendment does not prohibit all searches and seizures, only unreasonable ones. There is a constitutional presumption that a search conducted without a warrant is an unreasonable one, with various exceptions made for things like searches incident to arrest, searches of automobiles made upon probable cause, etc. Border searches are one of those exceptions – based on sovereign authority, the impracticality of obtaining a warrant for items that cannot be known until they arrive, and historical precedent, searches conducted at the boarder are reasonable as a matter of law even where there is no warrant or probable cause. (United States v. Ramsey).

However, this boarder exception only goes so far. Routine searches and seizures at the boarder are tolerated without exception, but where they go beyond the routine practice reasonable suspicion is required (Montoya de Hernandez). This is where the assistance of the Supreme Court stops.

The federal courts of appeals have looked to the intrusiveness of the search to decide whether it is routine or not. Predictably, the defendant argues the room is like his house, and the government argues his room is like his car. A prior case with almost the same facts was distinguished because the dog in that case alerted to the room before the police “prepped” it. See Illinois v. Caballes (Use of a drug dog is not, in itself, a search). Another prior case speculated that searches of private cabins on ships should be held to the reasonable suspicion standard. So based on “overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” the court treated this as a non-routine boarder search, therefore requiring reasonable suspicion.

Reasonable suspicion requires a particularized and objective basis for suspicion on the totality of the circumstances. Of course, all the circumstances here were consistent with innocence but taken together do present objective criteria on which to select the defendant out of the crowd. The defendant argued first that the suspicion was based on an uncorroborated database, and second that it amounted to drug-smuggler-profiling.

Reasonable people can argue about the criteria used to differentiate routine boarder searches from non-routine ones, and one would be justified in pointing out that the Court in Ramsey (which dealt with mail) didn’t seem very sympathetic to differentiating the mode of transportation into the country (The critical fact is that the envelopes cross the border and enter this country, not that they are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search "reasonable.").

Finally, as the court ultimately found reasonable suspicion it may have been more appropriate to just say that whatever the rule happened to be, it was not violated – that was the position of the concurrence.

-Post submitted by IBRL Student Division member

U.S. Currency Discriminates Against Blind and Visually Impaired

In a case that has the potential to have an enormous everyday life impact on almost every person within the U. S., the D.C. Circuit Court held earlier this summer that United States currency discriminates against the blind and the visually impaired in violation of §504 of the federal Rehabilitation Act. The court did not venture to instruct the Treasury department on how to correct the discriminatory currency, but the Circuit Court did order the department to cooperate with all interested parties in coming to satisfactory resolution. The U.S., unlike most other countries abroad, prints bills of differing value on the same size notes. We also have no tactile features on our currency that would allow someone to differentiate bills based on touch. The size similarity between U.S. bills makes it extremely difficult for the visually impaired to differentiate between, say a 5$ and 10$ bill- having to either depend on the help of a sighted person or employ the use of an expensive electronic bill identifier. The Circuit Court held that the failure of the Treasury department to incorporate measures that would make currency readily identifiable constituted a significant obstacle to meaningful access to currency by the blind and visually impaired.

The history behind this case reads like a hypothetical on public policy test. The two largest blind organizations in the country were actually opposed each other during this litigation. The National Federation of the Blind sought to suppress the case- thinking the argument that the visually impaired cannot use American currency portrays the visually impaired as unable to independently engage in everyday transactions. The NFB was also worried about the public backlash that may result from a massive change - and accompanied massive cost- to the US currency system in response to a lack of access by a relatively small community. The American Counsel of the Blind on the other hand, supported the litigation- arguing that the fact that the visually impaired have to rely on help from sighted friends or purchase a somewhat unreliable electronic reader was absurd, and inherently unfair. But don’t forget the business interests. Vending Machine manufacturers, for instance, strongly opposed the decision. Vending machines are designed and built to the existing size specifications of US currency. Were the size of US bills changed, every single vending machine in the U.S. would have to be updated or replaced.

Congress has seemed hesitant, and perhaps disinterested, to engage in any significant response to the decision. The House Committee on Financial Services held hearings on the issue earlier this month- a hearing in which 3 members attended. The sentiment among those in attendance seemed to be that a response can wait until after the summer recess. (Though Congressman Ron Paul, in his classic libertarian fashion, proposed that we privatize currency creation and allow private companies to compete in producing the most useful currency- allowing the market to offer effective monetary choices for the visually impaired.) A Treasury department official made it clear in that hearing that existing minting machines do not have the capability to print different size bills. The cost to overhaul the currency system in order to comply with the Circuit Court ruling, whatever that solution may be, will be enormous. This is certainly one issue with no easy solution.

American Council of the Blind v. Paulson

Posted by Todd Garvey

W&M's Reveley and Fisher Each Play Role in War Powers Commission

Last week the War Powers Commission, an impressive bipartisan group consisting of two former Secretaries of State, former members of Congress, a former Attorney General, a former National Security Advisor and others, released their recommendations for the repeal of the War Powers Resolution of 1973 and its replacement with the Commission’s War Powers Consultation Act. Steering clear of the contentious question of the constitutional roles of each branch, the Consultation Act is much more a functional political solution to the war powers question than a formal declaration of the proper distribution of war powers amongst the branches. The very readable report contains a short summary of War powers conflict in American history, a critique of the War powers resolution, and arguments for the Commission’s War Powers Consultation Act along the proposed bill’s text. Taylor Reveley, war powers scholar, former Dean of W&M Law School, and current interim President of the College of William and Mary, acted as co-director of the Commission while Lou Fisher, a constitutional law scholar with the Law Library of Congress and Visiting Professor at W&M Law, appeared as an expert before the Commission.

Democrats, Republicans, proponents of a powerful, exclusive, or unitary executive, and those who argue for an increased role of Congress in decisions relating to war and peace can all agree that the War Powers Resolution has been utterly ineffective in its attempt to formalize the balance of power between the executive and legislative branches in a decision to enter armed conflict. In the words of the Commission, “Few would dispute that the most important decisions our leaders make involve war. Yet after more than 200 years of constitutional history, what powers the respective branches of government possess in making such decisions is still heavily debated.” The War Powers Consultation Act would attempt to cure this instability by instituting a procedure that guarantees the participation of both the legislative and executive branches in any decision on the introduction of American troops into “significant armed conflict”

By way of a hasty overview of the proposed bill, the act would mandate that prior to the introduction of troops into significant armed conflict, defined as any combat operation lasting-or expected to last- more than a week,(the definition of “significant armed conflict” does not include the President’s duty to repel attacks, humanitarian acts, or limited acts of reprisal) the President must first consult with the newly created Joint Congressional Consultation Committee(consisting of the Speaker of the House, Majority leader of the Senate, Minority leaders of both the House and Senate, and the Chairman and ranking member on certain House and Senate committees) and continue consulting with the group throughout the duration of the conflict. Where required for secrecy, the President can wait three days after the initiation of a military mission before consulting the Committee. If Congress has not expressly authorized the war, it must, within 30 days, vote on a concurrent approval resolution. If the approval resolution fails, any member of Congress may introduce a resolution of disapproval, which if passed goes to the President for his signature. If the President vetoes the disapproval, Congress may then override that veto. This section is the meat of the Consultation Act and attempts to force Congress to act, and take a position, on the deployment of American troops. One of the chief critiques in regard to the War Powers Resolution was that Congress could oppose the President’s action simply through inaction. The report is available here for further review.

Overall the Bill is a prudent and well reasoned response to the useless and embarrassing War Powers Resolution, and a potential solution to the uncertainty the currently clouds important decisions on war and peace. The Bill is, however, open to criticism. Much like the failed War Powers Resolution, the Act defines the seriousness of conflict in terms of the length of deployment. Why not define significant armed conflict in terms of troop numbers rather than by length of deployment? This would leave the President free to pursue small covert operations without the formal consent of Congress, while mandating that any major deployments, no matter how short in duration, receive the consent of Congress. Second, the proposed bill could very well leave us in the same uncertainty that we currently see. Members of Congress seem to be hesitant o take clear stands on potential military campaigns. If, for instance, the approval resolution is defeated because not enough members are willing to affirmatively display their support for the introduction of troops, and then the subsequent disapproval resolution is defeated because not enough members are willing to affirmatively display their opposition to the introduction of troops (a scenario easily pictured) where are we left? We are left exactly where we are now; with Congressional inaction slowly eroding what little war powers the legislative branch has left.

Posted by Todd Garvey

Forecasting the Future of Heller

Of the many questions that the Supreme Court’s first thorough analysis of the Second Amendment in over 50 years raises, one of the most interesting is the interplay between the scope of review to be applied in future challenges of gun regulations, and the prospect of incorporating the newly established individual right to keep and bear arms against the states. The Court in D.C. v. Heller last week held that the Second Amendment protects an individual’s right to keep and bear arms apart from any connection to a militia. What we do know from Heller is that an outright ban on keeping a gun at home for the purposes of immediate self defense violates the Second Amendment. We also know that federal regulations which prohibit a convicted felon or the mentally ill from owning a gun are likely constitutional. What we don’t know, is where, within these two extremes, the Second Amendment draws the line between reasonable regulation and impermissible infringement on an individual right. Unfortunately, the Court chose not to present us with a standard of review for the many challenges to gun regulations that are to come. (Challenges have already been filed in San Francisco and Chicago.)

Many commentators have quickly brushed aside the next step of incorporation as inevitable. Yet, no where in the decision does the Court hint at incorporation, nor does the court classify the individual right to keep and bear arms as “fundamental”. Fundamental rights are incorporated through the Fourteenth Amendment to apply against the states- the fundamental right to free speech and the freedom from unreasonable search and seizure for example. (See e.g. Duncan v Louisiana: defining the standard for incorporation as those “fundamental principles of liberty and justice.” Additionally, fundamental rights receive the vast protections of strict scrutiny analysis when statutes infringing on the right are challenged, i.e. the statute must be necessary to achieve a compelling government interest.

If the individual right to keep and bear arms is a fundamental right, as many think it is, than the Second Amendment will surely be selectively incorporated to apply against the states AND, in accordance with other fundamental rights, receive the protections of strict scrutiny. If this is the case, the inevitable upcoming challenges to state and federal gun regulations across the country should be largely successful. Very few statutes can survive the strict scrutiny analysis which has a reputation for being “strict in theory, but fatal in fact.” While Justice Scalia made clear that most licensing requirements probably do not violate the Second Amendment, what will be the fate of more substantive regulations on the possession of weapons?

If the individual right to bear arms is not a fundamental right, and is instead categorized as some lesser protected right, incorporation is not so certain. The right to bear arms is unlike many of the other procedural rights that the courts have incorporated through the due process clause of the 14^th Amendment. Rights that have previously been incorporated tend to pertain to the individuals relationship with government, many procedural rights for example. Perhaps the best analogy for the right to a gun is to the right to speak freely, but even so, freedom of speech has been characterized as a fundamental right. If not classified as a fundamental right, courts must answer the incorporation question of whether a state law regulating gun possession deprives an individual of life, liberty, or property, without due process of law? Yet, if the Second Amendment is not incorporated the decision in Heller will be entirely eviscerated, because most gun regulations are state or municipal laws. These laws would remain untouched by an unincorporated Second Amendment.

Heller holds that the Second Amendment protects an individual right to a gun unconnected to membership in a militia. It will take another round of litigation to ascertain the true character of this newly protected, but always existing, right. If the right is fundamental it will be incorporated and should receive strict scrutiny, if this is the case state gun laws will fall. If the right is not fundamental, and is potentially not incorporated, the decision will only affect federal laws, and even then the effect will be limited as most federal gun laws pertain only to the sale and transport of weapons. Heller will either mean everything (fundamental and incorporated) or nothing (lesser right and unincorporated), or as usual….something in between. Perhaps the most likely outcome, unfortunately, will be the evolution of a complicated and ambiguous Second Amendment jurisprudence consisting of various tiers of protection much like we see in today’s free speech analysis.

District of Columbia v. Heller

Posted by Todd Garvey

Master of One's Own Fate?

Though Boumediene was probably the biggest opinion released by the Court last week, one opinion that may have warranted more coverage was Indiana v Edwards. In an important variation on the Sixth Amendment right to counsel, the Court validated an Indiana judge’s decision that Ahmad Edwards, though competent to stand trial, was not competent to represent himself. Edwards was charged with attempted murder and other crimes following a 1999 incident in which he stole a pair of shoes and fired a weapon at a security guard. In 2000, based on a psychological examination, Edwards was found incompetent to stand trial and committed to a state hospital. In 2002 he was found competent to stand trial, but then a third examination in 2003 found him again to be incompetent. Finally, in 2005 Edwards was found competent to stand trial at which time he asked to represent himself. The trial court denied his request and insisted he accept the assistance of counsel. Edwards was convicted and appealed his denial of self representation. The appellate court agreed with Edwards and ordered a new trial. The Indiana Supreme Court, looking to Faretta, agreed.

The U.S. Supreme Court sided with the trial court, holding that the constitution permits states to insist that an individual, though found competent to stand trial, accept representation where he is not competent to conduct their own trial. In short, the Court accepted the principle that an individual competent to stand trial is not necessarily competent to represent himself.

The Court in Faretta read into the sixth amendment a defendant’s right to proceed at trial without counsel- a right to be the “master of one’s own fate.” Therefore, prior to the Edwards case, a defendant found competent to stand trial qualified to conduct his own trial without the assistance of counsel. In order to be considered competent to stand trial a defendant need only display an understanding of the nature of the proceedings against him, and an ability to consult with his lawyer and assist in his defense. (See Drope and Dusky.) This created a curious situation in which individuals, like Mr. Edwards, who straddle the border between competence and incompetence, ostensibly had the ability to choose to represent themselves in a court of law. This week, the Court tried to balance the defendants right to self representation with the government’s interest in securing a fair and speedy trial, by allowing judges the discretion to decide whether a defendant is competent to conduct their own trial. Justice Breyer, writing for the majority, distinguished between the capacity necessary to simply enter a plea, as was guaranteed in Godinez, and the capacity necessary to conduct an entire trial pro se. Breyer hinted that judges must consider the potential fairness of a pro se trial and “the spectacle that could well result from his self-representation at trial,”

Surely the Edwards case won’t impact a tremendous number of cases. Those individuals who wouldn’t reach the bar necessary to represent themselves would likely prefer to be represented by counsel. Nonetheless, the court makes a clear statement that the right to self representation is not absolute, and by giving deference to trial judges to make a determination of competency without providing a standard for judges to employ, the Court walks a tight line between judicial economy and a criminal defendant’s rights.

Indiana v. Edwards

Posted by Todd Garvey

D.C. Institutes Neighborhood Roadblock to Curb Violent Crime

District of Columbia police initiated a new public safety measure this week in response to a surge of violence in the crime-ridden, Northeast D.C., Trinidad neighborhood. Police have set up road blocks on the main avenue into the neighborhood, stopping all drivers attempting to enter the area and turning away those that can not show a “legitimate purpose” for entering the neighborhood. Officers will stop all vehicles (pedestrians will not be stopped) and ask drivers for proof that they live in the neighborhood, or for visitors, their reason for entering the area. D.C police have described a “legitimate purpose” as a doctors appointment or a church visit. The roadblocks come on the heels of a violent weekend that saw eight killed. The area has already seen 22 homicides this year.

While these roadblocks are of questionable constitutional validity, they certainly highlight the intricate balancing of government and individual interests that accompanies any constitutional question. Clearly D.C. has a strong public safety interest in setting up these roadblocks. With violent crime rising and other less-controversial means not seeming to deter violence, the use of a roadblock could be considered a proportional response in light of the area’s safety concerns. Simultaneously, the roadblock is clearly infringing on the legitimate privacy and travel interests of residents looking to enter their neighborhood.

While the supreme Court has upheld the use of non-discretionary roadblocks in the past, the D.C. roadblocks raise two interesting issues. The first is the extent officer discretion plays in deciding who is granted, and who is refused, entrance into the neighborhood. The second relates to whether the city’s interest in combating violent crime, an interest unrelated to traffic or transportation concerns, justifies the establishment of a all stop roadblock.

The court is always skeptical of unconstrained officer discretion. While random officer stops lacking individual suspicion have been held to be unconstitutional (Delaware v Prouse), roadblock or checkpoint stops have been upheld where officer discretion in choosing who to stop is limited by department policy mandating that every car be stopped, or, for example, every 10^th car be stopped etc. While the roadblock policy here is to stop all vehicles, the officers seem to have been given broad discretion in determining whether individuals have a “legitimate purpose” for entering the neighborhood. They may have no discretion in who to stop, but with no reasonably articulable standard for who to let in, they exercise great discretion in the ultimate decision of admission. “Legitimate purpose” is by no means a substantively restrictive term. Unless the police department has provided officers with a list of what is a legitimate reason and what is not, officers are free to exercise their own discretion in deciding who gets in and who stays out. If individual officers are making these decisions on their own, unconstrained by department policy, the probability of discrimination increases and the validity of the roadblock decreases.

The Supreme Court has also held that roadblocks must be related to a legitimate law enforcement interest in traffic or road related safety. Under this rule, the Court has upheld stops related to stopping drunk drivers (Michigan v Sitz), while striking down roadblocks related to finding drugs (Indianapolis v Edmund). Here the D.C. police have specifically stated stopping violent crime as their reason for establishing the roadblock. The D.C. Attorney General has referenced an effort, upheld on court review, by NYC police to reduce drive by shootings by setting up these type of neighborhood roadblocks as legal precedent for the D.C. stop. But in the NYC roadblocks, a desire to reduce drive by shootings in an area was associated with a legitimate traffic related interest. A desire to reduce general violent crime in the area, as is the case in D.C., though an extremely compelling interest, is not related to traffic or road safety. If the D.C. roadblock is unrelated to traffic safety, it would seem to run astray of Supreme Court precedent.

The question remains whether a strong interest in public safety outweighs the constitutional concerns of potentially discretionary, non-traffic related roadblock. The checkpoints represent just another collision of safety and liberty.

Washington Post: Police Plan Vehicle Checkpoints

Posted by Todd Garvey

Three Minnesota 8th Graders Suspended for Refusing to Stand During Pledge of Allegiance

Last week three Minnesota 8th Graders were given in-school suspension for refusing to stand during the morning Pledge of Allegiance. The Dilworth Junior High School handbook mandates that all students stand for the Pledge, though students are not required to actually recite the the words of allegiance to the flag. The Minnesota ACLU has challenged the school policy, arguing that public school students cannot be punished for refusing to recite the pledge. The district's Community Education Director has expressed his support for the punishment as a "veteran and a United States of America citizen." The School principal allegedly told students it was disrespectful to sit during the pledge with troops fighting abroad. However, legal counsel for the school admits that the school handbook may need to be amended in order to protect student constitutional rights.

The suspensions raise a variety of First Amendment questions. The Supreme Court has heard numerous cases relating to free speech in public schools, most recently the Morse case ("Bong hits for Jesus") out of Alaska. While First Amendment protections for students within school grounds are not as broad as those rights enjoyed by adults in the outside world, students do not shed their constitutional rights at the school house gates. While most are aware that the Court has outlawed school prayer in public schools under the establishment clause, less may remember that the Court has also outlawed mandated participation in the the recitation of the pledge of allegiance. In striking down a school policy mandating participation in the Pledge and salute, the Court in West Virginia Board of Education v Barnette held: "If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Justice Jackson, writing for the majority, held that forcing students to recite the pledge and salute the flag ran counter to the First Amendment. Clearly, the freedom to speak includes the freedom to remain silent.

Had the students been suspended for their refusal to recite the pledge, Barnette obviously would have been controlling and the school policy would have to be overturned. But these students were not suspended for their refusal to recite the pledge. They were suspended for their refusal to stand during the pledge, a pledge they were not required to recite. The question is whether sitting down during the pledge of allegiance, while others stand, constitutes expressive conduct protected by the First Amendment. The Court has defined conduct as "expressive" where there is an intent to convey a particular message and the message would be understood by those who saw it (See Spence v Washington). The circumstances surrounding the facts of this case would seem to favor a conclusion that the students conduct was expressive in nature. The pledge is read every morning, during which time students are asked to stand, ostensibly in support of the the flag and the messages contained within the pledge. Any student who refuses to stand will be conspicuous, with other students and teachers concluding that the student does not support the messages of the pledge or is making some larger comment on American policy (or perhaps just forgot to stand). However, none of the suspended students have voiced the position that there refusal to stand was a form of protest or in any way an expression of their views. One student specifically said he just forgot to stand up. If the students did not intend their conduct to be "expressive" is this just simply a case of a student refusing to stand at the order of a teacher? Teachers legitimately order students to stand for all sorts of reasons. While standing during the pledge reasonably conveys a message of support for the flag, does a refusal to stand during the recitation represent a clear message of protest constituting expressive conduct protected by the First Amendment when the individual does not make clear their reason for remaining seated? Or does the mere act of sitting during the pledge, when the school policy is to stand, convey a clear message.

The inconsistent reactions to the suspensions exemplify the divide in America that currently exists at the intersection of patriotism and free speech and expression. One parent of a suspended student agreed "100%" with the schools decision. Another parent found the suspensions to be "ridiculous". What does it mean to be patriotic? With soldiers fighting in controversial conflicts abroad, the country is still struggling to determine whether patriotism consists of unflinching support for American military policy, unflinching criticism of American military policy , or perhaps something in between.

Star Tribune: 3 Suspended for Not Standing for Pledge of Allegiance
AP: 2 Students in Western Minnesota Suspended over Pledge of Allegiance

Posted by Todd Garvey

Levels of Scrutiny and the 14th Amendment: Carolene Products Footnote 4 just a footnote?

Any law student worth his or her salt knows that SCOTUS applies various levels of scrutiny depending on the nature of the alleged constitutional violation resulting from the challenged law. These “levels of scrutiny” are repeatedly and mercilessly hammered into the heads of con law students across the country. One can easily picture a professor standing at the front of the room recite a due process hypothetical…stop…look up as students look down…and then the inevitable delivery: “Now, what is the right in question, and what level of scrutiny will the court apply?”

To simplify, in a 14^th amendment substantive due process challenge, if a violated right is classified as “fundamental,” the court will apply strict scrutiny, meaning the law must be narrowly tailored to a compelling interest. Non-fundamental due process challenges receive rational basis review, meaning the law must be rationally related to a legitimate interest. In the equal protection realm of the 14^th amendment, laws that discriminate against protected classes receive strict scrutiny. Discrimination of other select groups, i.e. gender based discrimination, receives intermediate scrutiny, meaning the law must be substantially related to an important interest. Finally, where the law is facially neutral, a disparate impact on a certain class does not violate the constitution unless there is evidence of purposeful discrimination. A seemingly simple analytical paradigm to be applied to constitutional challenges.

Crawford v. Marion County, the recent Indiana photo ID voter case, could have fit cleanly into the existing levels of scrutiny paradigm. The main challenge to the Indiana statute was that by requiring voters to present a valid government photo ID, the state law would create a disparate discriminatory impact on the poor and the elderly who could not, for physical or economic reasons, get to the DMV to obtain a valid photo ID or get to the circuit court clerk’s office to cast their provisional ballot. Had this statute constituted a substantial facial discrimination against certain classes of voters, the court would have most likely applied strict scrutiny and the law would have been stuck down under the fundamental rights strain of Equal Protection (see i.e. Harper). But, this law was facially neutral with only the potential for disparate impact. Under Washington v Davis, such laws will only be struck down where there is evidence of purposeful discrimination in the legislative history behind the statute. Many opponents of the bill argue that the fact that every Republican voted for the measure while every democrat voted against it is sufficient to show an intent by Indiana Republicans to discriminate against potential Democratic voters. A mere partisan divide certainly does not constitute sufficient evidence to establish purposeful discrimination. Most floor votes are down party lines in these fractious times. Additionally, the state has presented overriding valid and legitimate, non discriminatory reasons, for passing the photo ID law. The law could have been easily, and in my opinion, more clearly, upheld under this analysis. (Justice Scalia, joined by Justices Thomas and Alito, came much closer to this line of reasoning than the main opinion.)

SCOTUS apparently did not agree. In Crawford, the court took what could have been a simple application of the above outlined standards, and turned it into an amorphous, indeterminate, and ambiguous balancing of interests. Certainly, the levels of scrutiny do not provide for clear cut standards, but the paradigm at least provided a hierarchy of review for interests of varying values. The levels of scrutiny force the court to clearly identify the gravity of the government interest and the closeness of its relation that would be required to sustain the law. Instead, the court used the test they have applied in previous voting cases, stating that it would uphold the law where it was “justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” What does this mean? Is this an application of rational basis review? Is a relevant and legitimate interest different from a legitimate interest? Is there no “fit” requirement in this review? What does the court mean by sufficiently weighty? With what type of eye is the court deciding what constitutes a sufficiently weighty justification? Is there a presumption of validity in this test like in rational basis review or is the court engaging in a searching and skeptical analysis as in strict scrutiny? There was no discussion of whether the court would apply strict scrutiny or rational review, though the court did borrow the “legitimate interest” language form rational basis review. Instead, the court simply considered the state’s interests, that of deterring voter fraud and maintaining public confidence in the state election system, and, without classifying the interest or placing the interest within the levels of scrutiny hierarchy, came to an arbitrary determination that the state interest was “sufficiently weighty.” Still, the Stevens opinion gives us more guidance than the standard of review used by the dissenters. Justice Souter writes, “we have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis: the scrutiny varies with the effect of the regulation at issue.” Such language is a law student’s nightmare.

The standard of review paradigm is by no means perfect, but it constitutes an analytical standard and engenders more predictability and clarity than the ad hoc balancing of “weighty interests” that the Court has used in voting rights cases. The process used to get the result is often much more important than the final outcome, especially when Courts apply the reasoning, more than the disposition, in future cases. The same question that is asked of con law students across the country should be asked of Justice Stevens and the majority opinion: “Now, what is the right in question, and what level of scrutiny has the court applied?”

The full text of Crawford v Marion County Election Board is available here.

Posted by Todd Garvey