FedSoc Blog

10-Year Sentence for Lynne Stewart, Lawyer in Terrorism Case, Is Upheld


by Justin Shubow
Posted June 29, 2012, 2:43 PM

The New York Times reports:

A panel of federal judges in Manhattan upheld the 10-year prison sentence imposed on Lynne F. Stewart, the disbarred lawyer convicted in a terrorism case who had been resentenced to that term after boasting that she could do a much shorter sentence “standing on my head.”

Judge Robert D. Sack, writing for a three-judge panel of the United States Court of Appeals for the Second Circuit, dismissed Ms. Stewart’s arguments that the judge who had resentenced her to 10 years in prison had penalized her for comments she had made, in violation of her First Amendment rights, and that the new sentence had been too severe.

“From the moment she committed the first act for which she was convicted, through her trial, sentencing and appeals,” Judge Sack wrote, “Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes.”

He added that she had also failed to understand “the breadth and depth of the danger in which” her crimes had “placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar.”

Ms. Stewart, who had built a reputation for defending unpopular clients and causes, was convicted in 2005 for smuggling messages from an imprisoned client, Sheik Omar Abdel Rahman, to his violent followers in Egypt. He was convicted in a 1990s plot to blow up New York landmarks.


Categories: External Articles

George Will: A Consolation Prize in the Obamacare Ruling


by Justin Shubow
Posted June 29, 2012, 9:31 AM

George Will writes in the Washington Post:

Conservatives won a substantial victory Thursday. The physics of American politics — actions provoking reactions — continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John G. Roberts Jr. has served this cause.

The health-care legislation’s expansion of the federal government’s purview has improved our civic health by rekindling interest in what this expansion threatens — the Framers’ design for limited government. Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.

The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:

“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.” . . .

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”


Categories: External Articles

Separating the Forest from the Trees in Roberts’ Health Care Decision


by Justin Shubow
Posted June 29, 2012, 9:02 AM

At RealClearPolitics, Sean Trende examines the big picture when intrepreting Chief Justice Roberts' Obamacare opinion:

In 1803, the chief justice of the United States had a problem. His hated cousin, Thomas Jefferson, had won the last presidential election. But the outgoing Federalists opted not go gentle into that good night. The one branch of government they controlled was the judiciary, and they meant to keep it. They had passed the Judiciary Act of 1801, which allowed for several new judicial appointments.

President Adams did a remarkable job filling the appointments and getting them hastily confirmed. The so-called “Midnight Judges” by and large received their commissions. But not all of them did. Incoming President Jefferson then instructed his secretary of state not to deliver the remaining ones.

Unsurprisingly, litigation ensued. One of those who was to receive a commission, William Marbury, filed a petition directly in the Supreme Court under a provision of the Judiciary Act of 1789. He requested a writ ordering the secretary of state to deliver his commission.

But Chief Justice John Marshall was a staunch Federalist. The republic was young, the court’s legitimacy fragile, and the ability of the nation to endure the peaceful transfer of power between parties uncertain. It was also unclear how Marshall’s ordering the newly installed Jeffersonian Republican secretary of state to do something would go over.

So the chief justice did something very clever. He found that Marbury was entitled to his commission, bestowing legitimacy on those Midnight Judges who had received theirs. But he didn't stop there -- to Marbury's detriment. He then ruled that the Constitution only gave the court so-called “original jurisdiction” over a small number of cases. The provision of the Judiciary Act of 1789 bestowing the court with original jurisdiction over writs of the type Marbury sought was therefore unconstitutional.

Jefferson had won, nominally. Madison didn’t have to deliver the commission, Marbury didn’t refile in the lower courts, and he never became a justice of the peace. But history remembers the case as a huge, perhaps decisive, blow against those Jeffersonians who viewed the Constitution as nothing more than a glorified Articles of Confederation.

In depriving the court of original jurisdiction, Marshall had installed the Supreme Court as the ultimate arbiter of the constitutionality of laws. Jefferson hated the idea of what has become known as judicial review. But having won, he was powerless to act against Marshall. Over the course of his term, Marshall would use that power to increase vastly the powers of the federal government, and to diminish those of the states. . . .

. . . I think if you scratch the surface here, Roberts embarked upon a gambit much like Marshall did 200 years ago. For the results-oriented -- which is to say, most observers on both sides who have been ranting about the Constitution for the past few months -- this is a clear win for the Obama administration, at least in the short term.

The loss is especially galling for conservatives because they were extremely close to having the whole thing struck down in its entirety, immediately. That’s what Justices Scalia, Kennedy, Thomas and Alito would have done, and there’s some pretty good evidence that Scalia’s dissent was the majority opinion until fairly late in the day.

But Roberts is only a few years further into his chief justice-ship than Marshall was at the time of the Marbury decision. His tenure is likely to be equally as lengthy, if not more so. I think the forest for him is quite a bit different than the trees that people are focusing on. Consider:

1. The law still has a good chance of not being implemented.

Let’s start with Roberts’ presumed crass political considerations. Namely, as a conservative Republican, he would not want the health care law implemented. But if Mitt Romney wins the November election, it is highly likely that Republicans will win the Senate as well. Right now, Romney probably has no worse than a 50-50 chance of being elected. I honestly don’t think in the long run this changes things that much. The next jobs report will have a much greater impact on Obama’s re-election bid over the long haul than this decision.

If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it. In fact, since the court essentially allowed states to opt out of the Medicaid expansion, there’s a chance that the bill would no longer reduce the deficit if a large state like Texas opted out. This makes the use of reconciliation much easier.

2. Doctrinally, The Federalist Society got everything it wanted.

But judicial conservatives who are not just concerned about the outcome got more than they could have reasonably hoped for. Doctrinally speaking, this case will likely be remembered as a watershed decision for conservatives.

Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers. Right now, liberals are seemingly too busy celebrating their win, and conservatives bemoaning their loss, to realize the significance of this.

None of the liberals’ previous arguments about the upshot of such a ruling are rendered invalid simply because the chief justice decided that this was a tax (and almost everyone agreed that if Congress had just called it a tax, it would have been constitutional). The court just constricted its Commerce Clause jurisprudence; if liberal commentators are correct, they did so by a lot. It doesn’t matter today, but 10 years from now, it will probably be a different story.

The most important aspect of the ruling, however, comes with respect to the spending clause. Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote.

David Rivkin on the Health Care Decision NFIB v. Sebelius – Podcast


by Publius
Posted June 28, 2012, 5:58 PM

Listen to the audio here.

In the health care case NFIB v. Sebelius, the Supreme Court determined that the individual mandate exceeds the Commerce Clause power of Congress, but can be upheld under the taxing power. The Medicaid expansion provision was upheld, but the Court ruled that Congress could not take back Medicaid funds from states that decide to not participate in the expansion. In this recorded Teleforum, David Rivkin, the litigator who began this important case by filing the lawsuit in federal district court on behalf of numerous states and the NFIB, explains the decision and the dissents.


You can listen to the Teleforum here.

Categories: Teleforum

FedSoc Teleforum on Health Care Decision with David Rivkin Today 6/28


by Publius
Posted June 28, 2012, 12:28 PM

Today at 4 pm ET the Federalist Society's Federalism & Separation of Powers Practice Group will be hosting a Teleforum on the Obamacare decision.

NFIB v Sebelius, the health care case, has been decided by the U.S. Supreme Court.  The Court has determined that the individual mandate exceeds the Commerce Clause power of Congress, but can be upheld under the taxing power.  The Medicaid expansion provision was upheld, but the Court ruled that Congress could not take back Medicaid funds from states that decide to not participate in the expansion.  Join us as David Rivkin, the litigator who began this important case by filing the lawsuit in federal district court on behalf of numerous states and the NFIB, explains the decision and the dissents.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum, Upcoming Events

Court Holds Stolen Valor Act Unconstitutional


by Justin Shubow
Posted June 28, 2012, 10:09 AM

At SCOTUSblog, Tejinder Singh provides some initial coverage of the Congressional Medal-of-Honor case:

In addition to its landmark ruling upholding the constitutionality of the Affordable Care Act, the Supreme Court dealt with two other cases today—affirming the Ninth Circuit’s decision striking down the Stolen Valor Act in one, and dismissing First American Financial v. Edwards without issuing a decision, thus leaving the Ninth Circuit’s decision intact.

In United States v. Alvarez, No. 11-210, a highly anticipated First Amendment case, the Court held six to three that the Stolen Valor Act is unconstitutional. The Stolen Valor Act, 18 U.S.C. § 704, makes it a federal crime to lie about having received a military decoration or medal, punishable by up to a year in prison if the offense involved the military’s highest honors. The key issue in this case is whether knowingly false statements of fact – made without any apparent intent to defraud – are a protected form of speech, and if so, what level of protection they deserve.

Justice Kennedy announced a plurality opinion – joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor – and concluding that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the Government had not shown that the statute is necessary to protect the integrity of the system of military honors – the interest the Government had identified in support of the Act.

Justice Breyer, joined by Justice Kagan, concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These Justices argued that intermediate scrutiny is the appropriate standard because the Government should have some ability to regulate false statements of fact. However, because the statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope, and it creates too significant a burden on protected speech. The concurring Justices believe that the Government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional.  This opinion leaves open the possibility that Congress will re-write the law more narrowly. Three Justices, led by Justice Alito, dissented.


Categories: External Articles

New Faculty Book Podcast: Constitutional Cliffhangers


by Publius
Posted June 27, 2012, 4:43 PM

Written by Michican State University Law professor Brian Kalt, Constitutional Cliffhangers envisions six constitutional controversies that could arise in selecting, replacing, and punishing a U.S. president.  None of Kalt’s scenarios, such as the criminal prosecution of a sitting president, a president pardoning himself, or a two-term president attempting to stay in power, have actually occurred, though some have come close.  In the book Kalt provides a legal guide to navigating these situations, should they ever occur, and in the process offers insight into pertinent structural and procedural provisions in the Constitution.   

In this podcast, Brian Kalt is joined by critical commenter Seth Tillman, a Lecturer in the Department of Law at the National University of Ireland, Maynooth, to discuss the book.

Click here to view this article on the source site »

Do Justices Time their Retirement According to the Political Party in Power?


by Justin Shubow
Posted June 27, 2012, 3:37 PM

At the Volokh Conspiracy, Jim Lindgren advertises a recent paper he wrote with University of Chicago sociologist Rafe Stolzenberg examining when Justices decide to retire.  According to the paper's summary:

In this study, we construct demographic models of retirement and death in office of U.S. Supreme Court justices, a group that has gained demographic notice, evaded demographic analysis, and is said to diverge from expected retirement patterns. Models build on prior multi-state labor force status studies and data on justices permit an unusually clear distinction between voluntary and “induced” retirement. Using data on every justice from 1789 through 2006, with robust, cluster-corrected, discrete time, censored, event history methods, we (1) estimate retirement effects of pension eligibility, age, health, and tenure on the timing of justices’ retirements and deaths in office, (2) resolve decades of debate over the Politicized Departure Hypothesis that justices tend to alter the timing of their retirements for the political benefit or detriment of the incumbent President, (3) reconsider the nature of rationality in retirement decisions, and (4) consider the relevance of organizational conditions as well as personal circumstances to retirement decisions.

Computing robust standard errors with adjustments for clustering by justice, we find that the odds that a justice will retire (or resign or take senior status) in the first two years of the term of a president of the same political party as the president who first appointed him to the Court are about 2.6 times the odds of retiring under a president of the opposing party in the last two years of his presidential term. As hypothesized, roughly the opposite pattern is observed for dying: Death in office is less likely if the sitting president is of the same party as the president who first nominated the justice to the court. If the sitting president is also in the third or fourth year of his term, then this reduction in the odds of death in office approximately doubles.

To illustrate that our analyses are not sensitive to different ways of conceptualizing the problem, we also show that if one views death and retirement as competing risks, an approach that we do not favor, the results of a multinomial probit show much the same effects as we show for separate analyses of retirement and death in office.

We find that the odds that justices will retire or take senior status in a year when they are eligible for their pension are more than eight times larger than the odds of retirement in years in which they are not eligible for their pension. Also, contrary to researchers who have hypothesized tenure on the bench as a linear predictor or those who find that increasing tenure always increases the estimated odds of retirement, we find that until judges have been on the bench for 25 or more years, each additional year of tenure makes them less likely to retire, rather than more likely to retire. We also document the secular increases since 1789 in the ages at which United States Supreme Court justices leave the Court, the ages at which they ultimately die, their length of tenure on the Court, and the probability that they will leave office by retirement, rather than by death.

In general, our empirical account supports the rich historical literature that documented individual cases in which justices resigned, retired, or took senior status to perpetuate party influence on the Court. We find that Supreme Court Justices act more or less as one would expect sophisticated people to act regarding their careers. While personal factors, such as pension eligibility, are more important predictors of retirement than political variables, the data are nonetheless consistent with a hypothesis of politicized departure: Whether leaving by retirement, resignation, or death, justices tend to time their departures from the Court based in part on a president’s party and the years remaining in a president’s term in office.

Categories: External Articles

D.C. Circuit Rejects Challenge to EPA’s Greenhouse-Gas Regulations


by Justin Shubow
Posted June 27, 2012, 6:58 AM

The Boston Globe reports on the decision (available here):

A federal court Tuesday tossed out a challenge to the nation’s first rules limiting greenhouse gases, which the agency adopted as a result of a lawsuit by 12 states including Massachusetts.

The US Supreme Court in 2007 ruled in support of the states’ contention that the Environmental Protection Agency, then under direction of the Bush administration, had failed its duty by not offering a “reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.”

The ruling spawned new rules, including a sweeping pronouncement that greenhouse gases endanger public health. They target emissions from autos and from large factories and power plants.

Several states, led by Texas, and industry groups challenged the rules, saying that the EPA, under the Obama administration, had inadequately considered the benefits of activities that produce carbon emissions and that the new rules failed to set objective standards to determine what levels of emissions endanger the public welfare.

The US Court of Appeals for the District of Columbia Circuit used its ruling Tuesday to reject four different challenges to the new rules, saying the EPA was relying on clear science and wholly under its authority to draft and enact those rules under the Supreme Court’s ruling.

“Today’s ruling is a grand slam for the EPA and the health of the American people, and another strike out for the fossil fuel special interests trying to block clean energy progress,” said Representative Edward Markey, a Malden Democrat who is the ranking member on the Natural Resources Committee and a senior member of the Energy and Commerce Committee.

“The DC Appeals Court now joins the Supreme Court in saying that climate science is sound and the EPA has the authority to regulate dangerous heat-trapping emissions under the Clean Air Act,” he said.

Massachusetts, along with 11 other states, took on the EPA in 2005 to force the agency to take action against carbon emissions and other greenhouse gases. The US Court of Appeals in the District of Columbia ruled against the states. The states then appealed to the Supreme Court, which ruled 5-4 in favor of the Massachusetts and its partner states.

Efforts led by Democratic Senator John Kerry of Massachusetts to create a bipartisan bill laying out the nation’s policy on global warming failed in 2010.

The issue has been contentious on the presidential campaign trail as well. Mitt Romney, the presumed Republican nominee, contends the EPA should not be in the business of regulating carbon emissions and other greenhouse gases.

Categories: External Articles

New SCOTUScast: Reichle v. Howards


by SCOTUScaster
Posted June 26, 2012, 4:47 PM

On June 4, the Supreme Court announced its decision in Reichle v. Howards. This case concerns an incident that occurred when a citizen briefly touched Vice President Cheney during a public appearance, made an anti-war remark to him, and was arrested some time later by Secret Service agents but was not ultimately prosecuted.  The question in this case was twofold: (1) whether, if probable cause to make the arrest did exist, the citizen may nevertheless sue the agents for retaliatory conduct in violation of the First Amendment; and (2) whether the agents were entitled to immunity from such a lawsuit under federal law.

In an opinion delivered by Justice Thomas and joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Sotomayor, the Court held 8-0 that the agents were legally immune from suit because it was not clearly established at the time of the incident that an arrest supported by probable cause could give rise to a First Amendment violation.  Justice Ginsburg, joined by Justice Breyer, filed an opinion concurring in the judgment.  Justice Kagan took no part in the consideration or decision of the case.

We have Scott Broyles, an assistant professor at Charlotte School of Law, to discuss the case.

Click here to view this article on the source site »

Categories: SCOTUScasts

Does the Obamacare Debate Reflect a Revolution in Legal Scholarship?


by Justin Shubow
Posted June 26, 2012, 12:43 PM

Writing for the Washington Post, Jennifer Rubin argues that the debate of the Obamacare case reflects a revolution in legal scholarship:

The real story here is not, strictly speaking, a political one, but rather the revolution in legal scholarship. We arrived at this point decades after the birth of a jurisprudential movement in favor of originalist interpretation — that is, a focus on the text, meaning and structure of the Constitution. The movement toward fidelity to constitutional text was a conscious and deliberate effort in reaction to the Warren court. It began in the Reagan Justice Department, was nurtured in conservative think tanks and then debated in groups like the Federalist Society.

Conservatives perceived the danger of judges unmoored to any fixed meaning or text, roaming through the legal landscape. They understood that if the elected branches were to retain the primary role in policymaking, Congress either had to strip courts of jurisdiction (a bit of a conservative fad in the 1980s) or convince judges to forswear a style of judging in which anything (foreign law, the judge’s personal beliefs, “empathy”) goes. The latter option eventually carried the day to such an extent that liberal Supreme Court nominees like Sonia Sotomayor now parrot the language of strict constructionism.

The only reason we are arguing over enumerated powers and whether upholding Obamacare would — as Justice Anthony Kennedy put it in oral argument — change the entire nature of the relationship between the federal government and the individual is because conservative scholarship made these concerns (rather than, say, sociology) the central concern in constitutional interpretation.

The elite in law schools for decades found this to be boorish, cramped thinking. The nonlegal elite remained convinced that whatever they thought was a good idea was constitutional.

We therefore arrive at the doorstep of a Supreme Court ruling, certainly the most important in my lifetime, for which the right has been preparing for decades. The reason the left now seems so buffoonish is because its proponents never took their originalist opponents seriously and never steeped themselves in real constitutional scholarship. That gap is now evident in the lead-up to Thursday. The left rants about a “coup” by the court and power politics. Meanwhile, the right revisits the meaning and structure of our Constitution, hoping that its arguments have been compelling enough and that at least five justices have put aside base and irrelevant concerns about elections, horsetrading and popular perceptions of the court. And no one expects anything from the liberal justices other than reflexive support for a political goal they like. If it’s a good thing thing, it must be constitutional, right?

Categories: External Articles

Some First Thoughts on Arizona vs. U.S.


by Justin Shubow
Posted June 26, 2012, 8:57 AM

At the Library of Law & Liberty, Mike Rappaport offers his initial analysis of the Arizona vs. U.S. immigration case:

1. The line up of the justices seems significant.  The three conservatives dissented, but Chief Justice Roberts joined the majority.  Had the Chief Justice voted with his ordinary political allies, that would have left the Court tied at 4-4 (because Justice Kagan was recused.)  One might speculate – and I should emphasize the italicized term – that the Chief Justice switched his vote for some specific reason.  Two possible reasons come to mind.  First, it sometimes thought that a 4-4 split (which would not have been a precedent but would have left the Ninth Circuit decisions in place) is a failure of the Court.  The Chief might have thought that avoiding that failure, which would have been largely caused by ideological differences, would reflect especially on him, as he has emphasized the institutional need for agreement by the justices.   Second, one might guess even more speculatively that, if the Chief Justice is writing the decision striking down the mandate in the health care case, he would want to help the Administration in this case to soften the blow.  Legal realism ain’t pretty, but much of the real world isn’t.

2. It seems significant that each of the three conservative dissenters – Scalia, Thomas, and Alito – wrote separately and did not join one another’s opinions.  This reflects a large degree of disagreement.  If one adds that the Chief Justice was in the majority, then all four conservatives took somewhat different positions.  I have some thoughts below on why this may have happened.

3. Justice Scalia wrote a spirited dissent, arguing that all four Arizona provisions should have been upheld.  Most interesting from my perspective was Justice Scalia’s views on the Constitution’s original meaning.  He quite rightly in my view initially questioned the federal government’s general authority to regulate immigration.  That also led him to recognize, again rightly in my view, that the states would then enjoy more power over immigration. . . .


Categories: External Articles

Teleforum Tomorrow 6/25 on “Arizona v. United States: Enforcing Immigration Laws”


by Publius
Posted June 25, 2012, 4:32 PM

This week, the U.S. Supreme Court handed down its decision in the highly anticipated immigration case, Arizona v. U.S. The Court’s decision was split, striking down some sections of Arizona’s law, but upholding others. Our experts will provide information the future of immigration law enforcement and the division of authority between the Federal and state governments.

Tomorrow June 25, FedSoc's Civil Rights Practice Group will be hosting a teleforum on the case. 



Call begins at 1:00 p.m. Eastern Time.

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum, Upcoming Events

Supreme Court Clears Way for California Cross Removal


by Justin Shubow
Posted June 25, 2012, 4:25 PM

According to Reuters:

The U.S. Supreme Court on Monday let stand a ruling that a large Christian cross as part of a war memorial in California violated the constitutional ban on government endorsement of religion.

The justices rejected an appeal by the Obama administration and by an association that erected the cross arguing the government should not be forced to take down the memorial cross that stood atop Mount Soledad in San Diego since 1954 to honor veterans.

The case involved whether a religious symbol can be prominently displayed on public land and whether the cross violated the U.S. Constitution's requirement on church-state separation.

The Supreme Court has been closely divided and has struggled for years to come up with clear rules on what religious displays, ranging from crosses to the Ten Commandments, can be put on public property, along with secular items.

The Supreme Court ruled in 2010 that a federal judge erred by ordering the removal of a large Christian cross as part of a war memorial in a remote part of the California desert. But that ruling did not decide the constitutionality of the cross.

The 43-foot high San Diego cross is surrounded by walls displaying granite plaques that commemorate veterans or veterans groups. Located between the Pacific Ocean and an interstate highway, it can be seen for miles.

Easter services were held annually at the cross from 1954 until at least 2000, according to court documents.

The cross has been the subject of litigation since 1989 when two veterans sued San Diego in an effort to get it off city land. In 2006, Congress intervened in the dispute, resulting in the federal government taking ownership of the property.

A group of plaintiffs, including the Jewish War Veterans of the United States of America, then sued. A U.S. appeals court ruled for the plaintiffs that the dominance of the cross in the memorial conveyed a message of government endorsement of religion.

The Obama administration and a group called the Mount Soledad Memorial Association, which erected the cross, supported by 20 states and various veterans groups, appealed to the Supreme Court in arguing the cross should be allowed as part of the memorial.

Solicitor General Donald Verrilli said in the administration's appeal that the government would have to "tear down" the cross if the Supreme Court rejected its petition.

A. Stephen Hut, an attorney for the plaintiffs, opposed the administration's appeal. He wrote in a brief filed with the high court that the appeals court correctly concluded, based on the history, location and visibility of the cross, that its continued display violated the First Amendment.

The Supreme Court stayed out of the dispute, issuing a brief order that denied the appeals by the administration and the association without comment.

Justice Samuel Alito issued a separate statement saying the denial of the appeals does not amount to a ruling on the merits.

Alito wrote that the federal government can raise the same issue later after an entry of final judgment in the case. He said it remained unclear precisely what action the federal government will be required to take.

Categories: External Articles

SCOTUS Strikes Down 3 of 4 Provisions of Arizona Immigration Law, Upholds Status Check


by Justin Shubow
Posted June 25, 2012, 10:24 AM

SCOTUSblog provides the initial coverage of the important case:

This morning, the Court handed down its decision in Arizona v. United States, the case involving Arizona’s attempt to supplement federal immigration enforcement through several state law measures.  The Court reviewed four provisions of the statute, holding that three are preempted by federal law.  Section 2(B) – which requires the police to check the immigration status of arrested individuals before releasing them – is the only provision that potentially survived.

Lyle Denniston wrote extensive pieces before and after the oral argument in the case.  In brief, in 2010 Arizona enacted a law (often referred to as “S.B. 1070,” its bill number) designed to discourage illegal immigration into the state and to facilitate the deportation of illegal immigrants who were already there.  The federal government filed a lawsuit to stop enforcement of many of the provisions of the law, arguing that the Constitution gives the federal government alone the authority to control immigration and that Arizona was treading on that exclusive authority in S.B. 1070.  (Importantly, although many have complained that the law invites racial profiling or violation of individuals’ civil rights, those arguments are not at issue in the case – the only issue is whether the law is invalid because it attempts to exercise a power over immigration that belongs solely to the federal government.)

The Ninth Circuit ordered Arizona not to implement four parts of the statute while the case was litigated.  Arizona asked the Supreme Court to review that decision, which it did, resulting in today’s decision.

Here is a rundown on the Court’s ruling with respect to each relevant challenge:

1.  Police Checks.  Section 2(B) of the law requires the police to check the immigration status of persons whom they arrest before releasing them.  It also allows the police to stop and arrest anyone suspected of being an undocumented immigrant.  The Court held that the lower courts were wrong to prevent this provision from going into effect while its lawfulness is being litigated.  It was not sufficiently clear that the provision would be held preempted, the Court held.  The Court took pains to point out that the law, on its face, prohibits stops based on race or national origin and provides that the stops must be conducted consistent with federal immigration and civil rights laws.  However, it held open that the provision could eventually be invalidated after trial.

2.  State Law Crime of Being In The Country Illegally.  Although federal law already makes it illegal for someone to be in the country without proper authorization, Section 3 of the Arizona statute also makes it a state crime, subject to additional fines and possible imprisonment.  The Court held that this provision was preempted and cannot be enforced.  The Court held that Congress has left no room for states to regulate in this field, even to implement the federal prohibition.

3.  Ban on Working In The State.  Section 5(C) of the statute also makes it a state crime for undocumented immigrants from applying for a job or working in the state.   It is also held preempted as imposing an obstacle to the federal regulatory system.  Because Congress obviously chose not make working in the country without proper authorization a federal crime, states cannot enact additional criminal penalties Congress decided not to impose.

4.  Warrantless Arrest Of Individuals Believed To Have Committed A Deportable Crime.  Section 6 of the statute authorizes state law enforcement officials to arrest without a warrant any individual otherwise lawfully in the country, if law enforcement officials have probable cause to believe the individual has committed a deportable offense.   The Court held that this provision is preempted.  Whether and when to arrest someone for being unlawfully in the country is a question solely for the federal government.

Categories: External Articles




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