FedSoc Blog

Atheists’ New Plan of Attack Against Pledge of Allegiance: State Courts


by Publius
Posted April 23, 2014, 9:57 AM

According to the Christian Science Monitor:

For the second time in a year, American atheists and humanists are asking a state court to remove the phrase “under God” from the Pledge of Allegiance, saying daily requirements to recite the phrase in public schools discriminates against atheist children.

Last month, a nonbelieving New Jersey family sued its local school district in state court, claiming the daily classroom exercise violates the equal protection guarantees of the New Jersey constitution, the American Humanist Association announced on Monday. The group has joined the family as plaintiffs in the case.

Last fall, the Massachusetts Supreme Court heard similar arguments from the humanist association, which represents another nonbelieving family that claims laws requiring their children to recite “under God” discriminate against their beliefs.

This new focus on state laws and state constitutions represents a change in tactics for American atheists, who have traditionally sued in federal courts, mostly arguing that the First Amendment of the US Constitution forbids religious expressions in civic spaces.

In the Massachusetts and New Jersey cases, however, atheists are claiming minority status and basing their arguments on guarantees of equal protection under the law.

“This approach, thinking of atheists as decent Americans who should not be discriminated against, is quite frankly long overdue,” says David Niose, legal director at the American Humanist Association. “It's almost as if the Establishment Clause has distracted from the fact that this is a minority group that deserves to be treated with respect.”

Indeed, atheists, who make up about 3 percent of the population, continue to be one of the least respected groups in the country, according to a number of polls over the years. A 2006 study at the University of Minnesota found that Americans rank atheists below Muslims and recent immigrants as “sharing their vision of American society.” A 2012 Gallup poll found that only half of Americans would consider voting for an atheist.

But while federal courts and First Amendment claims have mostly proven fruitless, many atheists and humanists hope state courts – especially in so-called blue states – will be more open to their claims.

“The states have different standards with regard to equality, as well as a lot of other different constitutional rights,” says Mr. Niose. “So if you're an atheist who happens to feel that you're being discriminated against, it only makes sense to consider all of the alternatives.”

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Second Circuits Considers What Defines Insider Trading


by Publius
Posted April 22, 2014, 5:00 PM

Christopher M. Matthews reports for WSJ's Law Blog:

A panel of federal appeals-court judges signaled that prosecutors may have taken too broad a view of insider trading, saying there needs to be more a “bright line” for Wall Street about what constitutes a crime.

The comments came Tuesday during arguments of an appeal brought by two former hedge-fund managers that could threaten some of the convictions won by prosecutors in their yearslong crackdown on insider trading.

At issue is whether a trader, to be guilty of insider trading, must have known a tip had been illegally disclosed in exchange for a reward.

Prosecutors have argued they need only show that people who used insider information knew it had been disclosed in breach of a fiduciary duty.

Two members of the three-judge panel of the U.S. Court of Appeals for the Second Circuit in Manhattan expressed concern that prosecutors’ approach is too vague.

“We sit in the financial capital of the world, and the amorphous theory you have gives precious little guidance to all these financial institutions and all these hedge funds out there about a bright-line theory as to what they can and cannot do,” Judge Barrington Parker said.

The appeal is being pursued by Todd Newman and Anthony Chiasson, two portfolio managers convicted in 2012 of participating in a $72 million insider-trading scheme. The two men, free on bail pending the appeal, are seeking to have their convictions overturned.

The original trial judge told jurors that Messrs. Chiasson and Newman could be convicted of insider trading if they knew there had been a breach of duty, but didn’t instruct them that the defendants had to have known that the person who leaked the information had done so in return for a “personal benefit.”

Lawyers for Messrs. Newman and Chiasson said Tuesday that prosecutors must show their clients knew the tippers were somehow compensated for the tips. Therefore, they said, the judge’s instruction was erroneous.

The tips in question made their way through a network of analysts before reaching analysts who worked for Messrs. Chiasson and Newman, the lawyers said. Their clients didn’t seek out or knowingly use inside information, they said.

Assistant U.S. Attorney Antonia Apps said Tuesday that even if the judge’s instruction was erroneous—and she didn’t believe it was—the jury would have concluded the two men inferred the information was given in exchange for a reward.

She said the “bright line” on what constitutes insider trading has been clear for decades.

If the court sides with Mr. Chiasson, who founded Level Global Investors, and Mr. Newman, once a Diamondback Capital portfolio manager, the two will either be granted a new trial or a judgment of acquittal. The appeals panel didn’t issue a decision Tuesday.

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Asian-Americans, Affirmative Action, and the “Political Restructuring” Doctrine


by Publius
Posted April 22, 2014, 4:43 PM

Ilya Somin comments at the Volokh Conspiracy:

Today’s Supreme Court decision upholding Michigan’s state constitutional amendment banning racial preferences in state university admissions turned on the “political restructuring” doctrine, which holds that shifting a decision on a public policy issue from one level or branch of government to another is sometimes unconstitutional if it disadvantages minorities. As Justice Sonia Sotomayor put it in her dissenting opinion, the doctrine applies in cases where the state “reconfigur[es] the existing political process… in a manner that burdened racial minorities.” In the 1982 Seattle case, the Court explained that the doctrine forbids “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Sotomayor argues that the amendment should have been invalidated because, by adopting a state-wide ban on racial preferences by referendum, the voters shifted the decision on affirmative action policies from university administrators and thereby disadvantaged minorities in the political process.

But, in reality, banning racial preferences in admissions affects different minorities in different ways. It may well burden African-Americans, Hispanics, and other groups favored by affirmative policies currently practiced in universities (though the literature on educational mismatch suggests that the benefits are not unambiguous). But current affirmative action policies also often harm those minority groups that score well on conventional academic admissions standards, most notably Asian-Americans. Thus, it cannot be said that the Michigan amendment is a straightforward case of burdening racial minorities while benefiting the majority. In reality, the policy affects different minority groups in different ways.

What is true of affirmative action in college admissions is also likely true in many other potential political restructuring cases. In an increasingly diverse America, there are many different minority groups with a variety of differing interests. On most issues, therefore, there are likely to be minorities on both sides. There are even significant divergences between subgroups within minorities. For example, Cuban-American Hispanics have very different political views from Mexican-Americans and Puerto Ricans. Russian Jewish immigrants, on average, have different views from those of native-born American Jews. And there are many other such cases.

The fact that some other minority group might incidentally benefit should not prevent courts from striking down political restructuring in cases where the evidence shows that the change was adopted for the specific purpose of disadvantaging a particular racial or ethnic group (e.g. – a policy deliberately intended to reduce the power of the black vote). Indeed, such deliberate discrimination is already forbidden by other Supreme Court precedents. But as several justices emphasized in their opinions today, the political restructuring doctrine applies in cases where there is no such invidious intent. In such cases, there is no clear way to determine whether a restructuring that affects some minorities in different ways from others is an impermissible burden on minorities in general or not.

In my view, this conceptual problem strengthens the case for getting rid of the political restructuring doctrine altogether, as advocated by Justice Scalia in his concurring opinion. It underscores the doctrine’s incoherent and often arbitrary nature. But those who want to preserve the restructuring precedents need to address the issue of how to apply them in cases where there are minority interests on both sides. Today more than ever, such cases are likely to be the rule rather than the exception.

UPDATE: It’s interesting to note that Asian-Americans are not mention even once in any of the five opinions in today’s ruling (which include over 100 pages of combined text).


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Supreme Court Voices Resistance to Argentina Blocking Creditor’s Access to Asset Records


by Publius
Posted April 22, 2014, 8:01 AM

The Wall Street Journal reports:

The U.S. Supreme Court on Monday took up a case connected to Argentina's historic default in 2001, voicing resistance to the country's request to block a holdout creditor from obtaining bank records about Argentina's international assets.

The high court, however, expressed some dissatisfaction with both sides in the case. The justices during an hourlong oral argument also raised concerns that subpoenas for banking information from holdout creditor NML Capital Ltd., a unit of Elliott Management Corp., were too broad and potentially intruded on Argentina's sovereignty.

The court's questions and comments suggested the justices were contemplating a middle-ground ruling that would allow NML some leeway to obtain bank records on the country's assets, but perhaps not as much information as the creditor would like.

NML is among a group of creditors that opted against participating in Argentina's debt restructurings. It is seeking to collect on more than $1.6 billion in legal judgments it has won against Argentina, which the country has refused to pay.

NML served subpoenas on Bank of America Corp. and Banco de la Nación Argentina, seeking records on bank accounts maintained by Argentina. NML said it wants the records to learn how Argentina moves its assets around the world and to identify places where it could seek to collect on its judgments.

On Monday, Argentina's lawyer, Jonathan Blackman of Cleary Gottlieb Steen & Hamilton LLP, urged the Supreme Court to overturn a lower-court ruling that allowed the subpoenas. "This far exceeds the enforcement powers of the U.S. courts," he said.

Several justices reacted skeptically, suggesting litigants are entitled to seek information to help them collect on court-issued judgments, even when the defendant is a foreign country instead of a private party. "What's wrong with asking" the banks about whether Argentina has assets that a creditor can target, Justice Anthony Kennedy asked.

The justices also said NML's subpoenas were written so broadly as to allow the creditor to discover financial information on much more than Argentina's commercial-property assets around the world. If the creditor is seeking information about Argentine assets related to military or diplomatic operations, "that's pretty intrusive," Chief Justice John Roberts said.

NML attorney Theodore B. Olson of Gibson Dunn & Crutcher LLP said his client has a right to obtain information that could help it collect against Argentina. "We need to know" where the country's assets are located, he told the court.

A decision is expected by the end of June.

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Kennedy’s Question: How Will the Court Decide Hobby Lobby?


by Publius
Posted April 21, 2014, 1:26 PM

Adam J. White, counsel at Boyden Gray & Associates, comments in the Weekly Standard:

We often think of the Constitution as a two-part document: first the original 1787 text, which primarily establishes the government’s structure; and then the amendments, which primarily set forth our rights. But it’s not nearly that simple: Our government’s structure—its federalism and its separation of powers—was devised not just to promote energetic government, but also to secure individual liberty. Or, as Alexander Hamilton stressed in Federalist 84, “the truth is” that the original structural Constitution “is itself, in every rational sense, and to every useful purpose, a bill of rights.”

In recent years, the relationship between structure and rights has been emphasized by Justice Anthony Kennedy. And his comments at oral argument in Sebelius v. Hobby Lobby, the case challenging the Department of Health and Human Services’ “contraception mandate” on religious liberty grounds, suggest that he may be returning to that theme once again.

Because Justice Kennedy occupies the Court’s ideo-logical and tactical center, lawyers and pundits invest great effort in analyzing where he might land in any given case. In 2011 and 2012, as the constitutional challenge to Obamacare’s individual mandate made its way to the Court, all were focused on Justice Kennedy’s well-established habit of invoking the commerce clause, which divides power between the federal and state governments, as a bulwark of liberty.

Specifically, observers turned to Kennedy’s separate opinion in United States v. Lopez (1995). In that case, the Rehnquist Court held that the commerce clause did not empower Congress to regulate guns unconnected to interstate commerce. But Kennedy also wrote separately to stress that, “though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.” He continued by quoting James Madison’s Federalist 51:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. 

Kennedy reiterated these federalist themes in Bond v. United States (2011), this time writing for the majority to explain why an individual had “standing” to vindicate the states’ commerce clause interests in court. Again invoking Madison, he stressed, “Federalism has more than one dynamic.” While “the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another,” federalism protects more than just the respective domains of our national and state governments. “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

And so a year later, when the Supreme Court decided the Obamacare individual mandate case, these federalist themes were central to the conservative justices’ opinion that the mandate exceeded the limits of the commerce clause. While the opinion was signed jointly by Kennedy, Scalia, Thomas, and Alito, the distinctive tones of Kennedy’s previous opinions rang clearly: “Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments,” the justices observed. But “the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.”

Even more recently, Justice Kennedy commingled notions of federalism and individual liberty in his opinion for the Court in Windsor v. United States (2013), striking down the Defense of Marriage Act’s federal definition of marriage. . . .

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Mike Carvin Profiled in Anticipation of SCOTUS Case Re Lying About Political Candidates


by Publius
Posted April 21, 2014, 10:09 AM

USA Today profiles Mike Carvin, a partner at Jones Day, regarding the upcoming oral arguments in a Supreme Court case regarding a state law that bans lying about political candidates:

The Supreme Court will hear arguments Tuesday in a Cincinnati case that touches on free speech in elections, with an anti-abortion group seeking to challenge the constitutionality of an Ohio law that bans lying about political candidates.

The case will pit two brilliant but stylistically opposite lawyers against each other, as they make competing arguments before the nine justices. Ohio’s State Solicitor Eric Murphy is an up-and-coming conservative star who will defend the Ohio law. Washington super-lawyer Michael Carvin is a seasoned Supreme Court veteran seeking to knock it down.

Murphy and Carvin will face off in a legal clash that began during the 2010 congressional race between then-Democratic Rep. Steve Driehaus and his GOP challenger Steve Chabot of Westwood. An anti-abortion group, the Susan B. Anthony List, wanted to launch a billboard ad campaign accusing Driehaus of supporting taxpayer-funded abortions by voting in favor of the federal health reform law.

Driehaus sought a ruling from the Ohio Elections Commission to block the ads, saying they violated the state’s false-claims law. SBA List challenged the Ohio law in federal district court, arguing it violated the group’s free-speech rights.

The district court dismissed the suits, ruling that SBA List and COAST, a Cincinnati anti-tax group that also challenged the law, didn’t have the right to sue because they hadn’t been criminally prosecuted. The Supreme Court agreed to hear the case in January.

The justices will not decide whether Ohio’s law is constitutional. Instead, the court will examine whether SBA List and COAST have legal standing – the ability to sue if they’ve been injured by the law.

If the Supreme Court rules that the groups have standing, they can proceed with a constitutional challenge to the Ohio law in the lower courts.

Carvin is representing SBA List and COAST; Murphy is representing the state.

Some big-time Washington attorneys specialize in schmooze and sweet talk. Not Michael Carvin.

So on Tuesday, when Carvin argues before the Supreme Court, those who know him say he will be blunt and brash, ready to do battle with any of the justices who lob a hostile question his way.

Carvin will be trying to persuade the justices that a Washington-based anti-abortion group should be able to challenge the constitutionality of Ohio’s false-claims statute, which bans lying about a political candidate to influence an election.

“Most lawyers who litigate in the Supreme Court have a very refined, laid-back, conservative manner. Mike is not that at all,” said Josh Blackman, a law professor at South Texas College of Law and author of “Unprecedented,” an account of the legal challenge crafted by Carvin and other lawyers to the Affordable Care Act.

“He is very much willing to go big,” with bold arguments that push the envelope, Blackman said.

Gregory Katsas, an attorney who works with Carvin in the Washington office of Jones Day, an international law firm, agreed that Carvin is an intrepid, creative force who spots legal openings that others miss. “His style is certainly very aggressive,” Katsas said.

Carvin’s resume illustrates his affinity for high-profile legal brawls, as well as his conservative political leanings. He represented the George W. Bush campaign before the Florida Supreme Court in the 2000 recount case. In the challenge to Obamacare, Carvin argued on behalf of the National Federal of Independent Business, a powerful advocacy group for small businesses.

In between, he won $60,000 in damages and more than $600,000 in legal fees for Rep. John Boehner, R-West Chester. Carvin represented Boehner when he filed a lawsuit in 1998 against Rep. Jim McDermott, D-Wash., accusing him of violating federal law by disseminating an illegally taped phone conversation between Boehner and then-House Speaker Newt Gingrich. An appeals court affirmed a favorable ruling for Boehner in 2007.

Now, in what will be his seventh appearance before the Supreme Court, Carvin’s target is an Ohio law that makes it illegal to knowingly or recklessly lie about a political candidate.

Carvin is representing Susan B. Anthony List, an anti-abortion group, in a case that started during the 2010 congressional race pitting then-Democratic Rep. Steven Driehaus against GOP challenger Steve Chabot of Westwood. SBA List wanted to launch a billboard campaign accusing Driehaus of supporting taxpayer-funded abortions by voting in favor of the federal health reform law. . . .

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UChicago Federalist Society Chapter Selected to Host National Student Symposium


by Publius
Posted April 18, 2014, 9:45 AM

The University of Chicago Law School distributed the following press release:

The Law School chapter of the Federalist Society for Law and Public Policy Studies has been selected by the national organization to host the 2015 Federalist Society Student Symposium under the theme “Law and Innovation.”

The Law School chapter emerged from a competitive field to host the symposium, which is expected to draw about 500 students for a two-day event in late February. The board will finalize the date, speakers, schedule, and other specifics in the coming months.

“The University of Chicago Law School has been a very strong and very good chapter at doing the core thing we want to do, which is fostering a vigorous discussion of ideas,” said Eugene Meyer, president of the Federalist Society, based in Washington, D.C. “The topic of innovation and how law can promote it is incredibly important to society, and we’re confident the Chicago chapter will do a great job putting a thought-provoking program together.”

Kathryn Bi, ’15, symposium chair, said the chapter leadership was inspired to talk about innovation and the law because of the changing realities of business and technology. The symposium will give the country’s future leaders a chance to talk about how America can maintain its “innovation edge,” through favorable political, regulatory, and business environments.

“This is a great chance to showcase our strengths in law and economics,” Bi said. “Our faculty has long been on the leading edge of analyzing the systemic effects of regulatory and policy decisions.”

Professor Todd Henderson, the group’s adviser, said he was proud of the leadership team for “their hard work and dedication” in earning the right to host the symposium, which was last held at the Law School in 1999.

“The theme of ‘Law and Innovation’ is especially fitting, since much that defines our school is about innovation,” Henderson said. “Law and economics, the most innovative and influential movement in law in the past 50 years, was largely started and defined at the Law School, and we continue to be among the leading innovators in this field and others in law.”

The student chapter, which now numbers more than 100 members, was established in 1980 by Lee Liberman Otis and David McIntosh as one of the three founding chapters of the Federalist Society, along with Harvard and Yale law schools. The founders “questioned the prevailing notion that big government could solve our country’s social, political, and economic problems,” according to a chapter history. The students teamed with conservative professors, including Antonin Scalia, Frank Easterbrook, Richard Posner, and Richard Epstein to found the organization.

Bi said today’s student chapter was indebted to Henderson and other faculty who offered help with preparing the bid, including William Baude, Adam Mortara, and Epstein. Dean of Students Amy Gardner and many Federalist Society alumni lent their support as well. “We’re very grateful to have alumni, administrators, and faculty who actively support our chapter,” Bi said.

One of those supportive alumni is Allyson Ho, ’00, who organized the last symposium at the Law School 15 years ago. Now she is co-chair of the appellate practice at Morgan, Lewis & Bockius LLP in Texas. She was thrilled to hear the symposium was coming back to her alma mater.

“This is an outstanding opportunity not only for the Chicago chapter, but also for the Law School as a whole, to host some of the leading legal minds in the academy, in government, and in public service,” she said.

M. Todd Henderson
Richard A. Epstein
Richard A. Posner
Amy M. Gardner
William Baude
Adam Mortara
Frank H. Easterbrook

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Supreme Court to Consider Challenge to Law Barring Campaign Falsehoods


by Publius
Posted April 16, 2014, 11:32 AM

The Los Angeles Times reports:

The Supreme Court next week will consider for the first time whether states may enforce laws that make it a crime to knowingly publish false statements about political candidates.

The justices will hear an antiabortion group's free-speech challenge to an Ohio law that was invoked in 2010 by then-Rep. Steve Driehaus, a Democrat. He had voted for President Obama's healthcare law and was facing a tough race for reelection.

The antiabortion group Susan B. Anthony List launched a campaign to unseat Driehaus, preparing to run billboard ads saying, "Shame on Steve Driehaus! Driehaus voted for taxpayer-funded abortion."

The statement was false, Driehaus said, since under the law no federal funds can be spent to pay for abortions. He threatened to sue the billboard company, which decided against running the ad. Then he complained to the Ohio Elections Commission, which found "probable cause" that the statement was false.

Before a hearing could be convened before the full commission, Driehaus lost his reelection bid and withdrew his complaint.

But the antiabortion group pressed ahead and is urging the Supreme Court to clear the way for a constitutional attack on the Ohio law as well as similar measures in 15 other states.

The justices are not expected to rule on the 1st Amendment issue at this time. Instead, justices are being asked to decide whether these laws can be challenged as unconstitutional even if no one is successfully prosecuted.

The case has prompted a lively debate over whether the law can separate truth from lies in election campaigns.

Washington attorney Michael Carvin, representing the antiabortion group, said the 1st Amendment protects broad free speech during political campaigns and frowns on interference from the government. He calls the Ohio measure a "speech suppressive" law that "inserts state bureaucrats and judges into political debates and charges them with separating truth from oft-alleged 'lies.'"

He said the state commission receives several dozen complaints each year and warned that the law gives government bureaucrats the power to sway a close race simply by saying a complaint has merit.

The Ohio law says violators can be prosecuted and punished by up to six months in jail and a $5,000 fine. But Carvin and other election law experts say they are not aware of any successful prosecutions.

He told the court that 15 states have similar laws. They are Alaska, Colorado, Florida, Louisiana, Massachusetts, Michigan, Minnesota, Montana, North Carolina, North Dakota, Oregon, Tennessee, Utah, Wisconsin and West Virginia.

He said these laws were "almost certainly unconstitutional." . . .

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Justice Department Defends Soledad Cross


by Publius
Posted April 11, 2014, 7:11 PM

The San Diego Union-Tribune reports:

The U.S. Justice Department will defend keeping the cross at Mount Soledad but is opposing an attempt to get the case before the U.S. Supreme Court.

The Mount Soledad Memorial Association wants the nation’s high court to decide in the years-long battle over the cross, which opponents say should come down because it represents an unlawful endorsement of Christianity on federal land.

The 9th U.S. Circuit Court of Appeals agreed with that argument in its last decision on the issue, overturning a San Diego judge’s ruling that the cross could stay.

In its notice to the Supreme Court this week, the Justice Department said it will take the side of the memorial association in arguing the 29-foot cross should stay at the Korean War memorial site. But it also said that rather than having the Supreme Court justices hear the appeal, it wants a full, 11-judge panel of the 9th Circuit to reconsider the removal ruling that came from three of that court’s judges.

Memorial Association President Bruce Bailey said he still believes the case will ultimately get before the Supreme Court, where he said his members “prefer to have this case heard as soon as possible.”

Peter Irons, a civil liberties attorney who represented an original opponent of the cross, agreed that no matter how the 9th Circuit may rule in a rehearing, the case will most likely wind up before the high court.

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Judge: Holder “Disrespected” Judicial Branch In Sentencing Change


by Publius
Posted April 11, 2014, 3:47 PM

According to National Review Online:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”

Nevertheless, Pryor voted with the seven other Republican and Democratic judges to reduce sentencing guidelines involving drug offenders.

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission—an independent agency within the judicial branch tasked with setting such policies. Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent.

Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.

“For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise. It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement. “One way to consider this question is to ask whether, if the Attorney General ordered prosecutors to seek increased sentences that were, at the time, only preliminary, those applauding Mr. Holder’s actions would be as enthusiastic as they are today.”

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Justice Stevens: The Five Extra Words that Can Fix the Second Amendment


by Publius
Posted April 11, 2014, 1:52 PM

Retired Justice John Paul Stevens comments in the Washington Post:

Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered automatic weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.

The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.

The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything. . . .

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5th Amendment Trumps 1st in Prosecution Involving Unnamed Commenters


by Publius
Posted April 11, 2014, 10:23 AM

Alison Frankel writes for Reuters:

When an anonymous speaker’s First Amendment rights conflict with a criminal defendant’s right to due process under the Fifth Amendment, which constitutional protection prevails?

There’s actually not a lot of precedent on how to balance those competing constitutional protections, according to a ruling Tuesday by the 5th U.S. Circuit Court of Appeals. The U.S. Supreme Court has gone out of its way to protect unnamed speakers, hearkening back — most recently in its 1995 ruling in McIntyre v. Ohio Elections Commission — to this country’s long tradition of anonymous political speech. On the other hand, the trial judge in the case before the 5th Circuit believed there was a reasonable possibility that the unmasking of two pseudonymous commenters to an online news article would reveal misconduct by federal prosecutors. Tuesday’s opinion left the 5th Circuit with a chance to change its position some day, but for now, the court said, it’s sticking with the trial judge: The Fifth Amendment trumps the First when anonymous online comments are possible evidence of due process violations.

The circumstances of the case that prompted the 5th Circuit’s holding were, to quote the opinion, “extraordinary.” Last June, after a years-long investigation, the former director of the non-profit New Orleans Affordable Homeownership was indicted by a federal grand jury for allegedly accepting kickbacks from contractors her group employed to repair houses damaged by Hurricane Katrina. Two months after the director, Stacey Jackson, was charged, U.S. District Judge Kurt Engelhardt of New Orleans issued a stunning opinion in a different Katrina corruption case against several former New Orleans police officials. Engelhardt vacated their convictions, finding rampant misconduct by a former first assistant and senior litigation counsel in the New Orleans U.S. Attorney’s office. Among their misdeeds: anonymous online comments and blog posts about ongoing investigations, prosecutions and even trials. To call the posts intemperate would be to understate drastically their offensiveness.

Three days after Engelhardt issued his opinion, Jackson’s lawyers at Crull, Castaing & Lilly filed a motion to compel the government to turn over the report on its internal investigation of misconduct at the U.S. Attorney’s office. The motion argued(among other things) that defense lawyers had already pressed prosecutors to disclose whether bad apples had posted anonymously about Jackson, but the government had stonewalled. To support the discovery motion, Jackson’s lawyers attached a printout of an online 2008 article about the Jackson investigation at the Times-Picayune’s Nola.com site. The article drew 55 comments, including one signed with a pseudonym used by a former assistant prosecutor cited for misconduct in Judge Engelhardt’s opinion.

The federal magistrate judge in Jackson’s case, Joseph Wilkinson, declined to hand over the internal report to Crull Castaing. But he did single out two anonymous comments on the Times-Picayune’s 2008 article — one signed by “aircheck” and the other by “jammer1954″ — that were posted at around the same time as the comment apparently attributable to the disgraced former assistant U.S. Attorney. If defense lawyers could come up with evidence that those two comments came from management-level prosecutors or investigators or from Justice Department employees directly involved in her case, Wilkinson said, Jackson might be able to establish a pattern of prosecutorial misconduct that violated her due process rights.

Jackson’s lawyers promptly subpoenaed the Times-Picayune to provide identifying information about the two anonymous posters from 2008. The newspaper, represented by Fishman Haygood Phelps Walmsley Willis & Swanson, moved to quash the subpoena, arguing that under widely accepted standards for whether to expose anonymous online posters in civil litigation, first set out in Dendrite v. Doe, the First Amendment rights of the anonymous Nola.com bloggers should protect their identity. Jackson hadn’t provided any evidence beyond supposition that the posts were by federal lawyers or investigators, the newspaper said, and even if they were, it wasn’t clear how two comments buried under a 2008 news story were proof that Jackson’s 2013 indictment was tainted by prosecutorial misconduct.

Judge Wilkinson, in the opinion codified Tuesday by the 5th Circuit, said there are limits on the First Amendment rights of anonymous speakers, especially when those speakers may be federal prosecutors or investigators. . . .

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Utah Backs Away from Anti-Gay-Parenting Study


by Publius
Posted April 10, 2014, 12:18 PM

Dale Carpenter comments at the Volokh Conspiracy:

Last night, on the eve of oral argument today in Kitchen v. Herbert, the Tenth Circuit challenge to Utah’s ban on same-sex marriage, the state filed an unusual letter distancing itself from a controversial study that questioned the parenting abilities of gay men and lesbians in comparison to married biological fathers and mothers. The state had cited the study, produced by University of Texas sociologist Mark Regnerus, in two footnotes in its opening brief to the court submitted earlier this year. In light of what Utah called “recent press reports and analysis” of the Regnerus paper (presumably including a federal district court decision calling Regnerus’ views “not worthy of serious consideration”), the state thought it important to “supplement” its initial brief in two respects.

First, Utah said that its “principal concern” in the same-sex marriage litigation is that allowing gay couples to wed might harm “the children of heterosexual parents.” (emphasis original). In other words, the state is not claiming that allowing same-sex marriage might somehow harm the children of gay couples. The comparison of outcomes for children in same-sex couple households and opposite-sex couple households , argued the state, “has little if any bearing on” the welfare of children being raised by opposite-sex couples “given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.”  The unstated corollary is that being raised by a married biological mother and father would not normally be one of the alternatives available to children of same-sex parents.  This is a reasonable concession by Utah, and echoes a point that same-sex-marriage advocates have been making for years. If gay couples were asking for the right to snatch away the children of married mothers and fathers then a comparison of the two family forms would be relevant in the debate. But that’s obviously not what they’re asking for; they want only the protection of marriage for their own families. The welfare of children being raised by same-sex couples, apparently, is not something that concerns Utah in this litigation.

The state, of course, continues to make the bold claim that same-sex marriage might eventually hurt children raised in heterosexual homes. That’s a point worth considering, and I’m sure gay-marriage advocates will be eager to contest it at oral argument today.  But Utah’s letter has at least done us the service of beginning to clear up years of constitutional confusion on this issue. Even under the most deferential form of judicial review, it’s hard to see the connection between Regnerus’s findings and the legitimate state interest in the welfare of the vast majority of children being raised in the households of heterosexual parents.

The second clarification in Utah’s letter frankly acknowledges the methodological limitations and inconclusive nature of Regnerus’ paper, a point that critics in the field of sociology have been making since the paper first appeared . . . .


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Northwestern University Challenges Athlete Unionization


by Publius
Posted April 10, 2014, 10:04 AM

Lyle Denniston comments at SCOTUSblog:

In a case that college sports leaders expect to go to the Supreme Court, Northwestern University on Wednesday asked the National Labor Relations Board to deny undergraduate athletes the status of employees with a right to join a labor union and bargain for salaries and other benefits.  That filing is here.

The university’s appeal to the Board challenged a March 26 decision by a regional NLRB official that Northwestern must treat its football players as employees and hold an election on whether they want to unionize.  That ruling, the university said, “set out to alter the underlying premise upon which varsity sports is based” — that students go to college to be educated, not to work for a living.

While the fifty-page filing was heavily focused on arguments against the details of the ruling by Regional Director Peter Sung Ohr of Chicago, it also relied upon a 1980 Supreme Court ruling (NLRB v. Yeshiva University) rejecting a claim that university faculty members with managerial duties were employees.

In that decision, the Court had remarked that “the ‘business’ of a university is education” and that “the principles developed for use in the industrial setting cannot be imposed blindly on the academic world.”

The organization that regulates college sports, the National Collegiate Athletic Association, has been following the Northwestern case closely.  NCAA President Mark Emmert, appearing last month on the CBS-TV program, “Face the Nation,” said that the Ohr decision “so fundamentally changes the nature of what college sport is about. And it blows up what is one of America’s iconic activities.  I think it winds up in the Supreme Court.”

The case goes first to the five-member NLRB.  Beyond the Board, the prospect for review in a federal appeals court is complex, and depends upon the nature of the dispute and how the parties react to a Board ruling.  Ultimately, an appeal to the Supreme Court is sometimes — but not always — an option.

This case only applies to college athletes at private institutions, and only to those who have scholarships.  Federal labor law does not apply to those who work for state or local governments, such as a state university.  Most colleges insist that they lose money on their sports programs, but universities in the major conferences of football and basketball generate huge revenues through those programs.

The case involves a Northwestern football quarterback, Kain Colter, and a labor group that he helped create to represent college athletes, the College Athletes Players Association.  In its filing Wednesday, Northwestern University disputed whether that group is truly a labor union, and noted that, as of now, it has no labor contract with any employer.

While most of the document is focused on the scope of federal labor law, it does make a passing constitutional claim based on the doctrine — founded in the First Amendment — of academic freedom.  If a player attending on scholarship were to lose that because of failings or academic misconduct as a student, the university argued, that would be subject to union arbitration review, “which would obviously interfere with academic decision-making that has nothing whatsoever to do with the purported economic relationship between the student-athlete and the university.”

The student athlete pursuing the case and the college sports union will have a chance to reply to the challenge before the NLRB rules. That process is likely to take several months, and appeals would take longer.

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Holder Claims DOJ Never Sought to End Louisiana Voucher Program


by Publius
Posted April 10, 2014, 8:44 AM

The Washington Free Beacon reports:

Attorney General Eric Holder testified on Friday that the Justice Department (DOJ) never intended to stop the Louisiana school voucher program, despite his agency’s lawsuit that requested a permanent injunction against school choice scholarships.

Under questioning before a House appropriations subcommittee, Rep. Andy Harris (R., Md.) got into a heated exchange after asking Holder if the DOJ’s Civil Rights Division was responsible for the lawsuit “against” the state’s scholarship program, which allows students to flee failing schools.

“You buy into a premise that’s not correct,” Holder said. “That was not the division that was doing anything of that nature in Louisiana.”

“We were seeking to get from the state of Louisiana information about their voucher program,” he said. “[We] never, ever took the position that we were against vouchers.”

Harris questioned further. “Is that the division that went to court in Louisiana to ask for that information?” he said. “These are not complicated questions, Mr. Attorney General.”

“What I was saying is that we never sought to do anything with the voucher program as much as to get information—and which a federal judge ultimately agreed with us,” Holder said. “And we worked out something with the state. It’s a talking point that Gov. [Bobby] Jindal and others—I guess you—think makes good political fodder, but it’s totally inconsistent with the fact.”

Harris disputed that characterization of his efforts.

“I actually care about the education of children as Gov. Jindal does,” Harris said. “Mr. Attorney General you used federal money to go into a state court to try to hinder, hamper, disable a school voucher program—the majority of which goes to minority students. So I’m just going to take issue with your characterization of a talking point because we shouldn’t use children, especially minority children—you can shake your head all you want, maybe you disagree that we shouldn’t use minority children as wedges.”

Holder again repeated that the DOJ took “no position with regard to the voucher program.”

“We only sought information about how the program was being run and how it affected a longstanding statewide anti-discrimination settlement that had been in place for years,” he said.

However, the DOJ did request a permanent injunction against the program last August, which would have required all vouchers to be pre-approved by a federal judge.

The first line of the lawsuit said that the DOJ wanted to put a stop to “any” vouchers:

The United States asks this Court to permanently enjoin the State of Louisiana from awarding any school vouchers (‘vouchers’ or ‘scholarships’) to students attending school in districts operating under federal desegregation orders unless and until the state receives authorization from the appropriate federal court overseeing the applicable desegregation case.

The DOJ ultimately dropped its injunction request, but still insisted on federal oversight of the program that Jindal warned could kill the program through red tape.

Jindal said he hoped Holder was under oath when he said the DOJ was not trying to stop the program. . . .

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