Eugene Volokh's Blog, page 2635
January 10, 2012
Radical Islamists Win Final Round of Egyptian Elections
Although it has been pushed out of the US headlines by the New Hampshire primaries, radical Islamist parties just won the lion's share of the vote in the final round of the Egyptian elections.
I wrote about why this sort of development was a likely and dangerous possibility in several posts going back to the very beginning of the "Arab Spring" (see here and here). If the Islamists consolidate power and make serious progress towards implementing their agenda, Egypt 2011-12 could easily join Russia 1917, Cuba 1959, and Iran 1979 as a classic historic example of a case where a bad regime was overthrown only to be replaced by one that is much worse. Obviously, the future course of events is far from certain. It is not yet clear how much power the Islamist parties will actually get to wield, and the larger of the two may be internally divided about its agenda. But developments to this point have been far from positive.
Ackerman: Release the Recess Appointment Opinion
Yale's Bruce Ackerman, writing in the WSJ, calls for the White House to release the legal memorandum upon which President Obama based his decision to make several recess appointments while the Senate claimed not to be in recess. As Ackerman notes, the Justice Department's Office of Legal Counsel "traditionally served as the executive branch's authoritative spokesman on matters of high legal importance," but no longer. On matters from the constitutionality of proposed legislation to the scope of the President's authority as commander-in-chief, the White House increasingly looks elsewhere when it wants to ensure it gets a desired legal conclusion. So, here, the President apparently relied upon the White House counsel — who is appointed unilaterally by the President — rather than OLC, which is headed by a Senate-confirmed Assistant Attorney General. Comments Ackerman:
In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. . . .
This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to [OLC head Virginia] Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.
Within this context, it is hardly enough for him to inform the Senate that Ms. Ruemmler has given the go-ahead. At the very least, he should provide his counsel's legal opinion explaining why he has the constitutional authority to second-guess the Senate on whether it is in recess.
So far, Ms. Ruemmler has only provided brief media interviews to explain the administration's "practical, common-sense approach." On her view, as she explained to NPR, a Senate's "holiday session" is "just a gimmick" that prevents the president from governing.
Of note, Ackerman finds Ms. Ruemmler's "casual remarks" wholly insufficient, even though he agrees with her ultimate conclusion that the President's recess appointments were constitutional. For Ackerman, the issue here is "whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat."
Supreme Court Upholds Ban on Candidate Campaign Contributions and Expenditures by Non-Permanent-Resident Foreign Citizens
Yesterday, the Supreme Court summarily affirmed Bluman v. FEC (D.D.C. Aug. 8, 2011), an opinion by a three-judge District Court that upheld the ban on non-permanent-resident foreign citizens' candidate campaign contributions and independent expenditures supporting or opposing candidates.
This sets a precedent that the statute is constitutional, since the Supreme Court actually affirmed the case rather than just denying certiorari. (Under the statutory scheme involved in this case, the lower court decision was rendered by a three-judge trial court, rather than the usual one-judge trial court or three-judge appellate panel, and was appealable to the Court rather than being subject to the Court's discretionary certiorari decisionmaking.) But it doesn't endorse the reasoning of the court below, nor set forth any specific reasoning that would have precedential value. Rather, in the Court's words in an earlier case,
[T]he precedential effect of a summary affirmance extends no further than "the precise issues presented and necessarily decided by those actions." A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.
So we don't know exactly what reasoning the Supreme Court used, but we do have the reasoning of the three-judge District Court (which may well have some persuasive precedential effect on other courts deciding on other restrictions on non-citizens' speech and other activity, even though it has no binding precedential value). Here is what strikes me as the key part of the analysis:
We know from more than a century of Supreme Court case law that foreign citizens in the United States enjoy many of the same constitutional rights that U.S. citizens do. For example, aliens are generally entitled to the same rights as U.S. citizens in the criminal process, among several other areas.
But we also know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess. For example, the Court has ruled that government may bar foreign citizens from voting, serving as jurors, working as police or probation officers, or working as public school teachers. The Court has further indicated that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaughnessy, 342 U.S. 580, 591–92 (1952) (First Amendment does not protect aliens from deportation because of membership in the Communist Party). Beyond that, the Constitution itself of course bars foreign citizens from holding certain offices.
In those many decisions, the Supreme Court has drawn a fairly clear line: The government may exclude foreign citizens from activities "intimately related to the process of democratic self-government." ...
We read these cases to set forth a straightforward principle: It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process....
Political contributions and express-advocacy expenditures are an integral aspect of the process by which Americans elect officials to federal, state, and local government offices.... We think it evident that those campaign activities are part of the overall process of democratic self-government. Moreover, it is undisputed that the government may bar foreign citizens from voting and serving as elected officers. It follows that the government may bar foreign citizens (at least those who are not lawful permanent residents of the United States) from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections. Those limitations on the activities of foreign citizens are of a piece and are all "part of the sovereign's obligation to preserve the basic conception of a political community." ...
Plaintiffs try in various ways to overcome the relevant Supreme Court precedents. First, they acknowledge that they do not have the right to vote in U.S. elections, but they contend that the right to speak about elections is different from the right to participate in elections. But in this case, that is not a clear dichotomy. When an expressive act is directly targeted at influencing the outcome of an election, it is both speech and participation in democratic self-government. Spending money to contribute to a candidate or party or to expressly advocate for or against the election of a political candidate is participating in the process of democratic self-government.
Notably, § 441e(a) as we interpret it, does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting process — providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate....
Plaintiffs also point out that many groups of people who are not entitled to vote may nonetheless make contributions and expenditures related to elections — for example, minors, American corporations, and citizens of states or municipalities other than the state or municipality of the elective office. But minors, American corporations, and citizens of other states and municipalities are all members of the American political community. By contrast, the Supreme Court has said that "[a] liens are by definition those outside of this community." The compelling interest that justifies Congress in restraining foreign nationals' participation in American elections — namely, preventing foreign influence over the U.S. government — does not apply equally to minors, corporations, and citizens of other states and municipalities. It is long established that the government's legislative and regulatory prerogatives are at their apex in matters pertaining to alienage.
It is hardly surprising, therefore, that a law that is justified as applied to aliens may not be justified as applied to citizens of the United States, or entities made up of such citizens. Thus, the fact that those other non-voting groups of U.S. citizens are free to contribute and make expenditures does not mean that foreign nationals are similarly entitled....
[W]e note three important limits to our holding in this case. First, we do not here decide whether Congress could constitutionally extend the current statutory ban to lawful permanent residents who have a more significant attachment to the United States than the temporary resident plaintiffs in this case. Any such extension would raise substantial questions not raised by this case.
Second, we do not decide whether Congress could prohibit foreign nationals from engaging in speech other than contributions to candidates and parties, express-advocacy expenditures, and donations to outside groups to be used for contributions to candidates and parties and express-advocacy expenditures. Plaintiffs express concern, for example, that a ruling against them here would green-light Congress to impose bans on lobbying by aliens temporarily in this country. They similarly express concern that Congress might bar them from issue advocacy and speaking out on issues of public policy. Our holding does not address such questions, and our holding should not be read to support such bans.
Third, we caution the government that seeking criminal penalties for violations of this provision — which requires that the defendant act "willfully," see 2 U.S.C. §§ 437g(a)(5)(C), 437g(d)(1)(A) — will require proof of the defendant's knowledge of the law. There are many aliens in this country who no doubt are unaware of the statutory ban on foreign expenditures, in particular.
[Footnote moved:] Our holding means, of course, that foreign corporations are likewise barred from making contributions and expenditures prohibited by 2 U.S.C. § 441e(a). Because this case concerns individuals, we have no occasion to analyze the circumstances under which a corporation may be considered a foreign corporation for purposes of First Amendment analysis.
I'm not persuaded by the Court's analysis, especially as to independent expenditures. It seems to me that the right to speak about any subject — including about candidates — using one's own money (or the money that one's organization has put at one's disposal) is indeed the exercise of free speech, and can't be limited on the grounds that it constitutes participation in elections. That one can't participate in an election by voting shouldn't stop one from participating in public debate (including debate about who should be elected) by speaking.
Moreover, the precedents that the District Court cited don't strike me as apposite. Most deal with noncitizens' not being protected by the Equal Protection Clause in certain contexts: The Supreme Court has held since the early 1900s that discrimination by states (not the federal government) against noncitizens is presumptively unconstitutional, but in certain "political" contexts is allowed. But this doesn't tell us much about the proper scope of noncitizens' substantive rights such as free speech rights, especially when they are rights that are often talked about as basic human rights.
And the one First Amendment case the District Court cites, Harisiades v. Shaughnessy (1952), is ambiguous. Though it allowed the deportation of noncitizens for being members of the Communist Party, but this was at a time when even American citizens were seen as being punishable for being members of the Communist Party. Indeed, the Harisiades Court cited as support Dennis v. United States (1951), a case upholding criminal punishment of a U.S. citizen for being a Communist Party leader.
Nor does it seem to me that a total ban on all paid-for speech about candidates made by non-permanent-residents — regardless of the amount of the payment or of any other circumstances — is narrowly tailored to any potentially compelling government interest in national security or freedom from foreign influence.
But the three judges in Bluman don't share my view on the reasoning. And at least five and maybe all nine of the Supreme Court Justices think that the District Court's result is correct — that noncitizens (at least ones who aren't permanent residents) may indeed be banned from spending even small amounts of money to express support or opposition to candidates for office.
Timetable For the ACA Supreme Court Proceedings
With 4 distinct questions being separately briefed and argued — and amici appointed to argue two of the questions apart from the petitioner or respondent — it is a real challenge to keep all the relevant dates in the proceedings straight. For those who are following the case, here is the timetable between now and the end of oral argument on March 28th, with the dates concerning the individual mandate highlighted in bold (NFIB = National Federation of Independent Business, the party I represent with Jones Day):
January 6:
NFIB & States separate briefs on severability (mandate not severable from entire ACA) ;
Government brief on mandate
Amicus briefs supporting NFIB/States on Severability
Court-appointed Amicus Robert Long's brief on Anti-Injunction Act (i.e. AIA applies)
January 10:
States brief on Medicaid (spending power)
January 13:
Amicus briefs supporting Government on mandate
Amicus briefs supporting Court-appointed amicus on Anti-Injunction Act (i.e. AIA applies)
January 17:
Amicus briefs supporting States on Medicaid
January 27:
Government's brief on severability (i.e. mandate not severable from insurance company mandates, but rest of ACA stands)
February 3:
Amicus briefs supporting Government on Severability
February 6:
NFIB & States separate briefs replying to Government/Amicis on mandate
February 10:
Government's brief responding to States on Medicaid
February 13:
Amicus briefs supporting NFIB/States on mandate
February 17:
Court-appointed amicus H. Bartow Farr, III's brief on Severability (i.e., only mandate falls)
Amicus briefs supporting Government on Medicaid
February 24:
Amicus briefs supporting Court-appointed amicus on severability (i.e., only mandate falls)
February 27:
NFIB's reply brief on Anti-Injunction Act
March 7:
Government's reply brief on mandate
March 12:
Court-appointed amicus reply brief arguing for Anti-Injunction Act
States reply brief on Medicaid
March 13:
NFIB, States & Government separate reply briefs on severability
March 26:
10:00–11:00 a.m. Oral argument on whether Anti-Injunction Act applies (divided between NFIB, States, Government & Court-appointed Amicus Robert Long)
March 27:
10:00 a.m.-noon Oral argument on individual mandate (divided between NFIB, States & Government)
March 28:
10–11:30 a.m. Oral argument on severability (divided between NFIB, States, Government & Court-appointed Amicus H. Bartow Farr, III)
1:00–2:00 p.m. Oral argument on Medicaid (divided between States & Government)
Mark your calendars.
Fined for Failing to Do the Impossible
Back in 2007, Congress created a biofuels mandate under which oil companies are required to use a minimum amount of cellulosic ethanol each year. The mandate was supposed to encourage the development of a domestic cellulosic ethanol industry. This has not happened. Several years after the mandate was imposed, there is still no commercial cellulosic ethanol production. This gets the oil companies off the hook, right? Nope. As the New York Times reports, companies are still paying fines, totaling nearly $7 million, for failing to meet a blending quota for a substance that does not exist. Were that not bad enough, this year the cellulosic ethanol quota will increase, as will the fines for failing to meet it.
Who would defend mandating the use of a substance that, for all practical purposes, does not exist? Not the renewable fuel industry. As the NYT reports, they acknowledge that commercial production of cellulosic ethanol remains years away.
"From a taxpayer/consumer standpoint, it doesn't seem to make a lot of sense that we would require blenders to pay fines or fees or whatever for stuff that literally isn't available," said Dennis V. McGinn, a retired vice admiral who serves on the American Council on Renewable Energy.
The EPA, on the other hand, defends the mandate:
Cathy Milbourn, an E.P.A. spokeswoman, said that her agency still believed that the 8.65-million-gallon quota for cellulosic ethanol for 2012 was "reasonably attainable." By setting a quota, she added, "we avoid a situation where real cellulosic biofuel production exceeds the mandated volume," which would weaken demand.
AEI's Ken Green has trouble making sense of the EPA's rationalization:
So what's most important about biofuel quotas is that they prevent us from over-producing a product that we can't produce so we don't weaken demand for the product that the government mandates we use.
As Green notes, Congress might as well have mandated oil companies blend gasoline with rainbows and unicorn sweat.
Did the Oklahoma Attorney General's Office Fail to Adequately Defend the Oklahoma Ban on Use of Foreign Law?
As I noted , the Tenth Circuit U.S. Court of Appeals has upheld the injunction ordering the Oklahoma Secretary of State not to certify the enactment of the Oklahoma anti-foreign-law/anti-Sharia constitutional amendment. But here's an interesting twist: Though the high-profile part of the amendment banned Oklahoma courts' use of Sharia law, the amendment more broadly banned the courts from using foreign law:
The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
As I mentioned before, this was a very bad idea, for reasons quite unrelated to the Sharia law question: Whatever one may think of the propriety or impropriety of courts using foreign law or international law as a guide in interpreting the U.S. Constitution, foreign law is and should be routinely considered in a wide range of contract, tort, property, and family law cases; see here for some examples.
Still, the voters enacted this prohibition on the use of international law, and that prohibition faces no Establishment Clause problems — it's only the Sharia Law prohibition that can be seen as violating the Establishment Clause. Moreover, while some provisions are seen as not "severable," in that the invalidity of one aspect is seen as justifying the invalidation of the whole thing, a provision such as the Sharia Law ban would normally be seen as severable, so that the invalidation of the Sharia Law ban should not lead to the invalidation of the foreign law ban: There would be nothing perverse, from the perspective of the law's enactors, in retaining the foreign law prohibition even if the Sharia Law prohibition is struck down; that would at least give the law's supporters some of what they wanted, rather than one of what they wanted. Whether a provision is severable is a matter of state law, and here's the severability analysis that the Oklahoma Supreme Court seems to use (see Fent v. Contingency Review Bd. (Okla. 2007)):
The severability of a statutory enactment [the matter is generally seen as the same for state constitutional enactments –EV] is not contingent on the presence of an express severability clause within the particular enactment's text. Survival of untainted statutory provisions that remain is appropriate when the valid and voided (as unconstitutional) provisions are not so "inseparably connected with and so dependent upon" each other that the surviving provisions would not have otherwise been enacted.FN47 Consideration must be given to whether the surviving provisions must rely on the severed portion for meaning or enforcement.... [I]nvalid provisions ... are presumed to be severable ....
So why then was the entire amendment blocked by the federal courts, rather than just the Sharia Law provision? I think the district court erred in making such a decision, but apparently on appeal the Oklahoma Attorney General's office didn't really press the severability argument:
Appellants raised the issue of severability of the Sharia law portions of the amendment for the first time to this court in post-oral argument supplemental briefing. Their argument consisted of one sentence and cited no authority, stating that if this court decides the Sharia law provisions in the amendment render the amendment invalid, "the court should simply treat the explicatory example as surplusage, and strike it." Because this issue has not been adequately briefed, we do not address it. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) ("It is well-settled that arguments inadequately briefed in the opening brief are waived." (quotations omitted)).
As I said, I like the result — since I think the foreign law ban is a very bad idea — but the Oklahoma voters seem to disagree, and I would think that the Oklahoma Attorney General's office should be trying to vindicate the voters' decision. Here, it looks like they haven't done that so far, though they could still bring the argument up in the trial court as the litigation goes forward (since right now all that's happened is that the preliminary injunction has been affirmed). Or am I missing something here?
Tenth Circuit Says Oklahoma Anti-Sharia Law Is Likely Unconstitutional
The decision is Awad v. Ziriax (10th Cir. Jan. 10, 2012), which upholds the trial judge's decision to issue a preliminary injunction. I hope to have more on this later this afternoon. Thanks to Opher Banarie for the pointer.
UPDATE: The court basically that the Oklahoma ban on courts' use of Sharia law violates the Establishment Clause no-discrimination-against-religion principle, set forth by the Court in Larson v. Valente (1982), and that plaintiff has standing to challenge the law because it "expressly condemns his religion and exposes him and other Muslims in Oklahoma to disfavored treatment."
As I argued when the district court decision was handed down, I'm not sure that this is right, because
I think that even without the amendment's Sharia law ban provision secular courts can't consider Sharia law — or any other religious law ([UPDATE: except insofar as they are trying to determine the law of a foreign country that incorporates Sharia law on this point, which the Oklahoma amendment's separate ban on the use of foreign law would preclude]) — and
in the absence of any tangible discrimination, government praise or condemnation of religion in a statute or other government statement somewhere on the books (as opposed to in a monument or display that the public generally sees) doesn't suffice to grant standing to offended parties
.
But the court didn't take the view I note in item 1 (on which my point in item 2 depends), perhaps because the very fact that the state enacted the law suggests that it was intended to do something tangible, and the court may well have assumed that the law would indeed have had the intended effect.
8–1 Four Times
The Supreme Court issued four opinions in argued cases today. Interestingly, all four cases were decided 8–1 (though some featured concurrences or separate opinions). Justice Ginsburg was the lone dissenter in two of the cases (Minneci v. Pollard and Compu-Credit Corp. v. Greenwood). In the other two cases the lone dissenters were Justice Scalia (Gonzales v. Thaler) and Justice Thomas (Smith v. Cain). SCOTUSBlog has more details on the opinions here.
Testifying Against SOPA
I will be testifying next Wednesday against SOPA, reprising my concerns about its impact on implementation of new web security protocols. I've blogged those concerns here and here. The hearings are being held by Darrell Issa (R-CA), chair of the House Oversight and Government Reform Committee, who is troubled by the Judiciary Committee's determination to take SOPA to the floor without hearing from witnesses on this issue. More details here.
McConnell on Recess Appointments and "Executive Overreach"
Today's WSJ features an op-ed by former federal judge Michael McConnell on President Obama's decision to grant recess appointments to Richard Cordray to head the Consumer Financial Protection Board and three members of the National Labor Relations Board.
It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.
It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.
McConnell notes that Harvard's Laurence Tribe, who is now defending the recess appointments, "dismissed as 'absurd' any suggestion that a period of 'a fortnight, or a weekend, or overnight' is a 'recess' for purposes of the Recess Appointments Clause." He also observes that the Administration "has offered no considered legal defense for the recess appointments," suggesting there was no Office of Legal Counsel memo supporting its claim. Writing in the LA Times, Bruce Ackerman likewise expressed doubts that the Justice Department's OLC backed the decision:
Normally, presidents rely on the Justice Department to present their case on matters of high constitutional importance. But Obama has refused to take this course, probably because traditionalists in the department refused to endorse his collision course with the Senate. Instead, he used his White House counsel, Kathryn Ruemmler, to serve as his legal mouthpiece.
As Ackerman observed, the Administration adopted the same approach when declaring the military intervention in Libya was not a military conflict. The Administration also circumvented OLC when it decided to back the constitutionality of legislation granting voting rights to the District of Columbia.
Back on the subject of the constitutionality of recess appointments, at the Originalism blog, Michael Rappaport offers a post, "Recess Appointments: The Original Meaning and Its Decline."
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