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