Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals has found a key provision of the Defense of Marriage Act unconstitutional. 

     Judge Stephen Reinhardt issued a ruling Wednesday in the case of In the Matter of Brad Levenson in which he declared that a key provision of the Defense of Marrriage Act (DOMA) is unconstitutional.  

     Here are the facts of the case as described by Judge Reinhardt:

Brad Levenson has been a deputy federal public defender in the FPD since July 11, 2005.  He and Tony Sears have been partners for 15 years.  They registered their domestic partnership on March 16, 2000, and were married in California on July 12, 2008, at a time when under the law in that state persons could marry individuals of the same sex.  On July 15, 2008, Levenson requested that his husband be added as a family member beneficiary of his federal benefits.  That request was denied on the basis that the provision of benefits to same-sex spouses is prohibited by the federal Defense of Marriage Act, 1 U.S.C. 7.  Levenson challenged that denial as a violation of his rights under the EDR Plan and the Constitution.

     The relevant provision of DOMA, 1 U.S.C. 7, provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

     Judge Reinhardt declared DOMA to be unconstitutional under the Equal Protection component of the Due Process Clause of the Fifth Amendment.  (The Fourteenth Amendment is applicable only against the states and not against the federal government, but the Supreme Court has ruled that the Fifth Amendment contains an equivalent principle that requires the federal government to treat people on an equal basis.)

     Judge Reinhardt stated that he believed that laws that discriminate on the basis of sexual orientation should be evaluated under some form of heightened scrutiny, but that this was unnecessary in this case.  He found that the government had failed to identify even a legitimate interest in denying benefits to same-sex married couples, and that this law fails to satisfy even the rational basis test.  Accordingly, he ruled that DOMA is unconstitutional.

     The federal government had asserted that DOMA advances four governmental interests:

1.  "the government's interest in defending and nurturing the institution of traditional, heterosexual marriage;"

2.  "the government's interest in defending traditional notions of morality;"

3.  "the government's interest in preserving scarce government resources;" and

4.  "maintaining a consistent definition of marriage while individual states consider how to resolve the issue of marriage equality for same-sex couples."

     Judge Reinhardt expressed several reasons why these various interests either are not "legitimate" or are not rationally advanced by the federal statute.  As to the first interest in "defending … traditional, heterosexual marriage," Judge Reinhardt observed that the law will not encourage gay men to marry women or lesbians to marry men, and will not discourage men from marrying women or women from marrying men.  As to the second interest in "defending traditional notions of morality," he found that the law actually encourages immorality by prohibiting a class of persons from entering into legally recognized committed relationships and forming families.  As to the interest in conserving scarce governmental resources, this is, of course, a legitimate interest, but in denying benefits to a particular group the government must explain how this group is different from the group that is awarded benefits – and Judge Reinhardt found that gay and lesbian couples are just as capable of entering into committed relationships as heterosexual couples.  Finally, as to the fourth governmetntal interest, that of "maintaining a consistent definition of marriage," Judge Reinhardt found that the federal government had in fact "taken sides" in this dispute by refusing to recognize marriages that some states had chosen recognize.

     Judge Reinhardt noted that the government may not treat a group of people differently simply because a majority of people in society dislike the group or disapproves of them.  In Lawrence v. Texas the Supreme Court found that "traditional notions of morality," in and of itself, is insufficient to justify a law that infringes upon people's personal and intimate choices.

     In my opinion, Judge Reinhardt's opinion was absolutely correct based not only from the standpoint of individual, fundamental rights but also on the basis of federalism.  The problem that the federal government has in defending DOMA is that the federal government itself does not have any authority to declare who is married and who is not.  That is a matter that has historically been committed to the States.  For example, if the government had attempted to prohibit same-sex marriage anywhere in the United States pursuant to its authority under the Commerce Clause, I have no doubt that the courts would declare that it was beyond the power of the Congress to enact such a law – instead, the courts would find that the States, and not the federal government, have the power to declare who is married and who is not.

     Imagine for a moment that every state – all fifty states – decided to recognize same-sex marriage, but Congress elected to retain 1 U.S.C. 7 and refused to recognize these marriages as being valid.  Would anyone contend that Congress could make such a decision?  I submit that such a law would be clearly beyond the authority of Congress because it trenches upon the reserved powers of the States.  Why should such a law be constitutional during a time of transition while states are adopting such a position piecemeal?

     The strongest argument in support of DOMA is that Congress has this power under the Spending Clause – that Congress may lack the authority to directly recognize marriages under the Commerce Clause, but that under the Spending Clause Congress may decide which marriages to promote, and that DOMA achieves this goal by denying benefits to same-sex couples such as health insurance for federal employees, survivorship benefits under Social Security, and joint filing under the Internal Revenue Code.  

     But this line of reasoning brings us back to the idea that Judge Reinhardt found to be controlling in this case – that the federal government has failed to articulate a legitimate reason for treating same-sex couples differently.  According to the majority of the Court in Lawrence v. Texas "morality" by itself is not a sufficient reason, and according to Justice O'Connor's concurring opinion from the same case "moral disapproval" by itself is an illegtimate reason.

     Yoani Sanchez, a courageous Cuban blogger, reports in the Huffington Post that President Obama responded to seven questions that she had posed to him.   More below.

     On November 6, Juan O. Tamayo of the Miami Herald reported that Yoani Sanchez was detained and beaten by Cuban state security officials while on her way to a march against violence.  On November 18, in an article posted by the Huffington Post, Sanchez revealed that she had submitted six questions to Raul Castro, President of Cuba, and seven questions to Barack Obama, President of the United States.  Here are the questions she asked President Obama:

For years Cuba has been a U.S. foreign policy issue as well as a domestic one, in particular because of the large Cuban American community. From your perspective, in which of the two categories should the Cuban issue fit?

Should your administration be willing to put an end to this dispute, would it recognize the legitimacy of the Raul Castro government as the only valid interlocutor in the eventual talks?

Has the U.S. government renounced the use of military force as a way to end the dispute?

Raul Castro has said publicly that he is open to discuss any topic with the U.S. provided there is mutual respect and a level playing field. Is Raul asking too much?

In a hypothetical U.S.- Cuba dialog, would you entertain participation from the Cuban exile community, the Cuba-based opposition groups and nascent Cuban civil society groups?

You strongly support the development of new communication and information technologies. But, Cubans continue to have limited access to the internet. How much of this is due to the U.S. embargo and how much of it is the responsibility of the Cuban government?

Would you be willing to travel to our country?

     The President's answers may be found here in an article posted today by Sanchez in the Huffington Post.  They may also be found here at Yoani's website, Generation Y.

     Carlos Lauria of CPJ (Committee to Protect Journalists) posted an article this afternoon reporting that Sanchez spoke to him from her home in Havana and that she was "astounded" when the President answered her questions.  Lauria also provides background information about Sanchez, including the fact that she received the Maria Moors Cabot Award from Columbia University for excellence in Latin American reporting.

     Earlier today the Supreme Court announced that it would not hear the case that had been brought against the owners of the Washington Redskins football team challenging their use of the name "Redskins" as a trademark.  The issue in the case was not the First Amendment or even the substance of Trademark Law; instead, the issue was whether the plaintiffs had brought their lawsuit in time, or whether it was barred by the doctrine of "laches."

     In 1967 the corporation that owns the Washington Redskins football team applied for and was granted a trademark for the name "Redskins."  Section 2 of the Trademark Act (15 U.S.C. 1052) specifically prohibits the registration of a trademark that is "scandalous" or that is "disparaging" towards persons, living or dead, or that brings them into "contempt" or "disrepute."  The law states:

     No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it – (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute ….

     In 1992 a group of Native Americans challenged the "Redskins" trademark on the ground that it was "scandalous" or "disparaging" within the meaning of Section 2 of the Trademark Act.  Despite the fact that the statute allows a trademark to be challenged at "any time," the company that owns the club defended on the ground of the equitable principle of "laches" – the principle that if a plaintiff delays in bringing a lawsuit, and the defendant is harmed by the delay, then the lawsuit is barred.  The owners of the team alleged that they had been harmed in two ways by the delay: first, it would now be difficult to prove or disprove whether the trademark was "scandalous" or "disparaging" in 1967 when it was issued, and second, the owners had, in the meantime, invested substantial capital in marketing the team under the trademark "Redskins," and accordingly it would be unfair to allow a lawsuit after all this time.  One of the plaintiffs in the case, Mateo Romero, only turned 18 in the year 1984, so the period of "delay" was only from 1984 to 1992.  Nevertheless, the lower courts eventually ruled in favor of the owners and found that this 8-year period of delay in challenging the trademark was unacceptable.  The plaintiffs appealed to the United States Supreme Court, but in its ruling today the Court refused to hear their appeal.

     I think that the use of the term "redskins" is offensive and insulting, but my understanding of the Constitution is that individuals and private companies are permitted to use offensive and insulting language, and may even incorporate such language into the name of a business.  If someone wants to operate a company that has a racial or ethnic insult in the name of the business that is their right under the First Amendment.  But that not mean that people have a constitutional right to obtain a trademark for such language – that the law should preserve the owners' use of such language from trademark infringement, thus protecting them for the use of racist terminology. 

     Nor, in my opinion, should the doctrine of "laches" apply in a case like this.  The doctrine of laches is a principle of "equity," that branch of the law that is concerned with justice and fairness – and if there were ever a case where justice and fairness would dictate that the plaintiffs should have their day in court, it would seem to be this one.  Any company that wishes to obtain a trademark for the use of a questionable racial or ethnic characterization as the name of their business should be willing to defend the trademark in a court of law, and not rely on a defense that amounts to saying, "We've invested a lot of time and money into the use of this disparaging language!"  Away with the doctrine of laches in such a case!  Let's have the courts decide whether or not the term "Redskins" is "scandalous" or "disparaging" within the meaning of the Trademark Act!

Professor Huhn has taught Constitutional Law at The University of Akron School of Law for more than 25 years.  You may visit his website on Constitutional Law.

     Attorney General Eric Holder has decided to try five prisoners in the war on terror, including Khalid Sheikh Mohammed, on criminal charges in New York for the attacks of September 11.  They will face the death penalty.

    Yesterday Attorney General Eric Holder released a statement in which he said:

For the past several months, prosecutors at the Department of Justice have been working diligently with prosecutors from the Pentagon’s Office of Military Commissions to review the case of each detainee at Guantanamo who has been referred for prosecution. Over the past few weeks, I have personally reviewed these cases, and in consultation with the Secretary of Defense, have made determinations about the prosecution of ten detainees now held at Guantanamo, including those charged in the 9/11 plot and the alleged mastermind of the Cole bombing.

Today, I am announcing that the Department of Justice will pursue prosecution in federal court of the five individuals accused of conspiring to commit the 9/11 attacks. Further, I have decided to refer back to the Department of Defense five defendants to face military commission trials, including the detainee who was previously charged in the USS Cole bombing.

The 9/11 cases that will be pursued in federal court have been jointly assigned to prosecutors from the Southern District of New York and the Eastern District of Virginia and will be brought in Manhattan in the Southern District of New York. After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

     In this report CNN quotes Senator John Cornyn (R-TX) as opposing the trials in New York because it "needlessly compromises the safety of all Americans," and Representative Lamar Smith (R-TX) as stating that trials in criminal court because it would "prioritize the rights of terrorists over the rights of Americans to be safe and secure."  The report also quotes Kristen Breitweiser, whose husband was killed in the attack, as supporting the administration's decision because "it would give many of us access to attend the hearings … this will be our opportunity to see justice served and have our day in court."  Josh Gerstein at The Politico reports that many other families of victims of the attack are opposed to the trial, and would rather see the plotters tried in military court.  House Minority Leader John Boehner (R-OH) issued a statement in which he said:

The Obama Administration’s irresponsible decision to prosecute the mastermind of the 9/11 attacks in New York City puts the interests of liberal special interest groups before the safety and security of the American people. The possibility that Khalid Sheik Mohammed and his co-conspirators could be found ‘not guilty’ due to some legal technicality just blocks from Ground Zero should give every American pause.

     In my opinion, the Attorney General made the correct decision.  Even if acquitted, the defendants would not be released from custody.  They are admittedly supporters of al-Qaeda who have waged war against us, and regardless of the outcome of any military or civilian trial we may continue to detain them as prisoners of war for the duration of this conflict – which may be a very long time.

     But there is a more fundamental reason to try these persons in America, in New York, in federal court.  Trial in civilian court will demonstrate to the rest of world that even in the face of a massive attack we have faith in our legal institutions and constitutional processes.   As an attorney, I am proud of the criminal justice system, and I have confidence that our prosecutors, judges, and juries will determine the truth and mete out appropriate punishment.  As an American citizen, I am proud that we have the courage to try these men as criminals – that we say to terrorists around the world – WE ARE NOT AFRAID!

     The enactment of the Stupak Amendment as part of the health care bill reawakens the debate over abortion.  Both sides invoke arguments by analogy in support of their positions on abortion and abortion funding.  I find a third analogy to be more fitting – one that supports the Supreme Court's position that while abortion is fundamental right, abortion funding is not.

     In arguing against restrictions on abortion funding like the Hyde Amendment or the Stupak Amendment people who are pro-choice are prone to draw an analogy between abortion and war.  They contend that because every citizen may be compelled to contribute his or her tax dollars towards the prosecution of wars that they may be opposed to – wars that they consider to be unjust or immoral – accordingly, those who are opposed to abortion should be compelled to pay for the abortion procedure through their tax dollars.

     This analogy fails for two significant reasons.  First of all, when a war is prosecuted presumably the majority of the people or a at least a majority of their representatives have agreed to fund the war.  (That is, by the way, an argument against allowing a President to commence wars or commit acts of war without Congressional approval.)  Citizens must pay their taxes for the prosecution of a war because we must be obedient to the law.  This is not analogous to a situation where Congress or a state legislature decides not to fund abortions.  In that case it is the pro-life position, not the pro-choice position, that is consistent with the will of the people.  Citizens must pay their taxes in support of wars they oppose out of respect for the Rule of Law.  That element is missing when the majority decides not to fund abortions.

     The second reason that the war funding / abortion funding analogy fails is because unlike the decision to go to war each decision to terminate a pregnancy is ultimately a matter of personal choice.  In contrast, the decision to go to war is a collective decision (again, not one that is committed to the sole discretion of the President).  There is a moral imperative to support one's country in a time of war, a moral imperative that can be legally enforced.  Not only may we be required to pay wartime taxes, we are even subject to being drafted for military service, and if we are unfit or unwilling to serve in the military we can be required to perform alternative service or to sit in jail. 

     On the pro-life side of the debate, advocates liken themselves to abolitionists.  They compare abortion to slavery – in their opinion the non-personhood of a fetus under the Fourteenth Amendment in Roe v. Wade is the same as the non-citizenship of a slave under Dred Scott v. Sandford.  A woman who procures an abortion is, in their eyes, no different from someone who holds another person in bondage.

     This analogy fails as well in two basic respects.  First, the analogy is inaccurate because of the undeniable process of fetal development.  I have the greatest respect for people who believe that a one-celled preembryo is a "person" within the meaning of the Constitution.  I only wish that they had more respect for those who respectfully disagree.  While there is undeniably "human life" from the moment of conception, as there is, indeed, in a sperm and an egg – life is unbroken – it is also true that life appears in different forms and that it gradually evolves into a person.  In contrast, a slave is undeniably a person, and the institution of slavery was at all times an invasion of those people's fundamental rights.

     The second reason that the analogy between abortion and slavery fails is because slavery did not take place inside a woman's body, like pregnancy does.  This is why pro-choice advocates also draw the analogy to slavery, arguing that restrictive abortion laws reduce women to a state of servitude.  A woman who does not wish to continue her pregnancy is simply not analogous to a slaveholder seeking to exploit people as property.

     I would draw another analogy that explains why laws that restrict abortion funding are constitutional but laws that restrict abortion are unconstitutional.  The government's position on abortion is closely analogous to the government taking a postion on matters of religion.  The government is powerless to dictate religious doctrine to any individual – in fact, the government may not even express a point of view on the subject.  The government does not have and may not have religious beliefs.  It is not only unwise, it is unconstitutional for the government to host religious expression, for example by erecting a cross in a public park, posting the Ten Commandments in public school, or placing a nativity scene on the steps of a courthouse.  Just as pro-choice advocates perceive restrictive abortion laws as invading their freedom of religion, pro-life advocates perceive laws funding abortion as invading their religious beliefs – as funding an activity that is undertaken not as the result of a collective decision like the decision to declare or approve war, but as funding a decision that is personal and fundamental to every individual woman.  It is for that same reason that the government may not unduly burden a woman's right to terminate a pregnancy in its early stages.

     This posting contains a description of the Stupak Amendment restricting the use of federal funds to pay for abortions and links to articles and sites discussing the amendment.

     Last night the House adopted an amendment sponsored by Bart Stupak (D-MI) prohibiting the use of federal funds for purchasing health insurance covering abortion.  This amendment was made a part of H.R. 3962 just before that landmark bill was enacted by the House of Representatives.  According to an article by Patrick O'Connor at The Politico, the inclusion of the amendment secured the support of the United States Conference of Catholic Bishops for the entire health care bill.  As it turned out, the amendment was necessary to obtain passage of the bill – 64 Democrats voted for the amendment, without whom the larger bill would not have come close to passage.  

     Here is a link to the Stupak Amendment itself, and here is a link to a statement issued by Representative Stupak.  Here is a thoughtful article by David M. Herszenhorn of the New York Times about the events leading up to the adoption of the Stupak Amendment.  Here is an excerpt from a statement by the Catholic Bishops supporting the amendment:

Despite some claims to the contrary, H.R. 3962 does not reflect the status quo on abortion. It fails to explicitly and clearly include the longstanding policy prohibiting federal funding of elective abortion and plans which include elective abortion (Hyde Amendment). Medicaid, Medicare, Children's Health Insurance Program (CHIP), and other federal health legislation include this provision. Currently H.R. 3962 has some helpful provisions on conscience protection and non- preemption of state laws, but it utterly fails to maintain current prohibitions on abortion mandates and abortion funding. Instead it creates elaborate measures requiring people to pay for other people's abortions with their taxes, private premiums or federal subsidies. Significantly, the Federal Employee Heath Benefit Program, which covers all members of Congress and their families, has long been governed by the Hyde amendment in all its aspects and is widely seen as a model for reform.

Health care expert Ezra Klein, writing for the Washington Post, offers the following criticism of the amendment:

Because of the limits placed on the exchanges, most of the participants will have some form of premium credit or affordable subsidy. That means most will be ineligible for abortion coverage. The idea that people are going to go out and purchase separate "abortion plans" is both cruel and laughable. If this amendment passes, it will mean that virtually all women with insurance through the exchange who find themselves in the unwanted and unexpected position of needing to terminate a pregnancy will not have coverage for the procedure. Abortion coverage will not be outlawed in this country. It will simply be tiered, reserved for those rich enough to afford insurance themselves or lucky enough to receive from their employers.

Several Democratic members of the House spoke out passionately against the amendment during the debate.  Jim at Irregular Times quotes Rep. Louise Slaughter, Chair of the House Rules Committee, as saying: 

“I am very concerned about this bill because in my own case (and many of my colleagues’) it means 30 or 40 years of our life is being cancelled out with this amendment. The things that we have fought for, that we are driving now? I am afraid young women, poor women who cannot afford to buy their own insurance policy out of their own pocket, will go back. Back to the back alley. I dread to see that day.”

     The amendment prohibits the federal government from offering coverage for abortions through the public option even if people pay the entire cost of that health insurance.  It also prohibits people from purchasing coverage for abortion services from private insurance companies through the Exchange if they receive any form of federal funding such as a direct federal subsidy or state Medicaid funding that is partially paid for with federal funds.  The only exceptions would be for cases where the woman's life is threatened by a physical disorder, injury, or illness or arising from the pregnancy itself, and in cases where the pregnancy was the result of rape or incest. 

     In all other cases women would have to purchase separate coverage for abortions, but the Stupak Amendment makes even that option more expensive by providing that:

"administrative costs and all services offered through such supplemental coverage or plan are paid for using only premiums collected for such coverage or plan."

     This provision is significant because if left to themselves private health insurance companies would probably cover abortions at no extra cost – in fact, a health insurance policy that covers contraception and abortion should cost less than one that does not, because childbirth is so much more expensive than either of the other alternatives.  In my opinion, the Stupak Amendment makes it more expensive for women to purchase private health insurance coverage for abortions than it would have been without the bill.

     As I discussed in postings Number 58 and Number 30 in this series, it is constitutional for the government to refuse to pay for abortions, but it is unconstitutional for the government to impose an "undue burden" upon a woman seeking to terminate a pregnancy or to place a "substantial obstacle" in her path.  Under a largely private system of health care these two principles could be easily coexist, but now that the government is becoming more involved in the funding and provision of health care these two principles are becoming more difficult to reconcile.  At the extreme, where the government directly provides all health care as in Great Britain, the government's refusal to perform abortions would constitute an absolute denial of the opportunity to secure an abortion.  In light of the increasing federal funding and regulation of health care that H.R. 3962 will bring about, the courts will have to determine whether the Stupak Amendment unduly interferes with women's reproductive freedom.

     On October 7 the Supreme Court heard oral argument in the case of Salazar v. Buono, which involves the constitutionality of a cross that had been erected on public land.  More below.

     The Mojave National Preserve in California is a vast federal park, roughly fifty miles square, located in eastern California.  In 1934 a World War I veteran erected a large cross as a war memorial on a cliff in the Preserve.  In 1994 the land was transferred from the Bureau of Land Management to the National Park Service, and the Park Service has continued to maintain the cross.  

     In 2002, a federal district court ruled that the maintenance of the cross on public land was a violation of the Constitution, and it prohibited the government from permanently displaying the cross.  Congress responded to the lawsuit by declaring the cross to be a National Memorial (like the Washington Monument or Mount Rushmore), and in 2004 Congress enacted legislation transfering about an acre of land around the cross to the VFW in return for five acres of privately owned land elsewhere in the Preserve.  The government contends that after the land swap the VFW could continue to display the cross   The district court and the Ninth Circuit Court of Appeals ruled that this land swap would not satisfy the injunction, and that it would still be unconstitutional to display the cross within the federal park.

     The legal standard that governs Establishment Clause cases is very simple.  The government may not endorse religion.  This standard has two prongs.  The government may not intend to endorse religion, and the primary effect of the government's action must not be to endorse religion.  But as this case demonstrates these straighforward rules are often difficult to apply.  Here are some of the perplexing constitutional questions that this case raises:

1.  At the time that the cross was erected in 1934, it may have seemed appropriate to many people to use only a Christian symbol to honor the war dead.  I remember sectarian prayers being used in public settings when I was a child in the 1950s.  Today, I don't think that anyone including the VFW would consider it appropriate to build a war memorial using only Christian symbols, any more than it would be appropriate to open or close public ceremonies with prayers in the name of Jesus Christ, rather than in a more ecumenical spirit.  Should we evaluate possible violations of the Establishment Clause in light of practices that were acceptable in 1787 when the Constitution was written, 1868 when the Fourteenth Amendment was adopted, at the time that the particular symbol was erected (in this case, 1934) – or under the standards that would be acceptable today, when we have a different understanding of what it means for the government to be "neutral" with respect to religion?

2.  This particular monument is important to local veterans.  Many veterans moved to the region to recuperate from wounds, and appreciate the existence of a war memorial.  The cross is also used by local congregations on Easter for sunrise services.  Do these facts indicate that the cross has a secular purpose and effect, or that the purpose or effect of the cross is religious in nature?

3.  Soon after the property was transferred to the National Park Service a Bhuddist group asked that Bhuddist shrine be added to the site, but the government refused the request.  Does that fact properly bear on analyzing the government's purpose in maintaining the cross?

4.  Finally, what about the government's proposed solution in this case?  May the government cure a constitutional violation caused by a religious sybmol on government land by giving away a small parcel of land containing the symbol to a private group that it expects is going to maintain the symbol in place?

    The case was argued before the Supreme Court on October 7.  During oral argument there was a good deal of discussion regarding the procedural posture of the case – whether the precise issue under review relates to the constitutionality of the trial court's entry of an injunction or the court's enforcement of its injunction.  That distinction matters because it changes the standard of review from "de novo" to "abuse of discretion," which would make it more difficult to reverse the trial court's decision.  There was also some quarreling about whether the government could still contest Mr. Buono's "standing" to challenge the constitutionality of the cross, or if the government had waived that argument by failing to appeal the entry of the original judgment in 2002.  After several minutes of wrangling over these procedural issues, the Chief Justice said to Soliciter General Elena Kagan:

CHIEF JUSTICE ROBERTS: Before we get -before your time expires, we would like to spend a couple of minutes on the merits.

(Laughter.)

     Justice Ginsburg posed several penetrating questions.  Early on, she asked:

JUSTICE GINSBURG: General Kagan, just as a factual matter, is there any other national memorial that consists of a solitary cross, just that one symbol and no other?

     The answer, of course, was no.

     Ginsburg also asked whether the VFW could take down the cross under the terms of the land swap, and in light of the fact that the cross is now a national memorial:

JUSTICE GINSBURG: Could they then substitute whatever other memorial they chose? … Or would there have to be some government approval?

     Soliciter General Kagan answered that the under the terms of the land swap the VFW has to maintain some kind of war memorial on the site.  She thought that the VFW could remove the cross and substitute some other form of war memorial without government permission, although she conceded that there was "a little bit of a dispute" on this point.

     Chief Justice Roberts asked how far the government can go in "swapping land" like this:

CHIEF JUSTICE ROBERTS: What if the government sold simply one square foot, or whatever the area that the base of the cross is — is resting on the ground? Would your argument be the same?

     Soliciter General Kagan admitted that there were limits to how far the government could go in this regard – that the government must have a secular purpose for the land swap, and that it must not appear that the religious symbol was still on government land. 

     Justice Sotomayor asked Peter Eliasburg, the A.C.L.U. attorney for Mr. Buono, the person who challenged the constitutionality of the cross and the land transfer, whether it would be a violation of the Constitution for one of the private landowners in the park to put up a similar cross on private property.  Eliasburg admitted that private landowners in the park could display such a cross, but he contended that this case was different because the government had intentionally transferred the land to the VFW for the purpose of keeping the cross in place. 

     Justice Scalia indicated to Attorney Eliasburg that he thought that the symbol of the cross adequately represents all war dead, regardless of their religion:

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn't seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.

(Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

MR. ELIASBERG: Well, my — the point of my — point here is to say that there is a reason the Jewish war veterans came in and said we don't feel honored by this cross. This cross can't honor us because it is a religious symbol of another religion.

     Eliasburg also was asked whether similar large crosses in Arlington Cemetary represented an "establishment of religion."  He responded that Arlington Cemetary was different because there are so many different religious symbols that adorn the graves of the fallen soldiers there, and that no-one could reasonably draw the conclusion that the government was singling out any single religion for honor.

     Near the end of the oral argument Chief Justice Roberts asked a question about the origin of this particular cross:

CHIEF JUSTICE ROBERTS: Counsel, this probably doesn't have anything to do with anything, but I'm just kind of curious, why is this cross put up -you know, in the middle of nowhere?

(Laughter. )

MR. ELIASBERG: Because the man who originally put up the cross — not this one, because it has been replaced a number of times, but the man who put up this particular cross, I believe was a homesteader in the area when the land was owned by the Bureau of Land Management, and I believe was a miner on the land. I hope that is correct historically.

     The Court's decision in this case could clarify some significant questions that arise under the Establishment Clause when religious symbols are placed on public land.

     Yesterday Congress enacted the Matthew Shepard Hate Crimes Prevention Act as part of the National Defense Reauthorization Act for 2010.  This law makes it a federal offense to assault people because of their race, color, religion, national origin, gender, sexual orientation, gender identity or disability.  However, because of constitutional considerations, crimes based on the victim's race, color, religion, and national origin are treated differently than crimes committed because of the victim's gender, sexual orientation, gender identity, or disability.  The law also contains provisions preserving the prerogative of state governments to punish these crimes, and other provisions protecting freedom of speech.

     Sections 4701 to 4714 of the Defense Reauthorization Act contain the Matthew Shepard Hate Crimes Prevention Act, which will add a new section to Chapter 13 of the federal criminal code.  This new law will be codified at 18 U.S.C. Section 249, and the codified version of the criminal law will simply be called "Hate Crime Acts."

     Section 249(a)(1) makes it a federal crime to "willfully cause bodily injury to any person because of the actual or perceived race, color, religion, or national origin of any person."  It is also a violation of this subsection of the Act to attempt to cause bodily injury to someone on account of the victim's real or perceived race, color, religion, or national origin "through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device." 

     Section 249(a)(2) makes it a federal crime to willfully cause bodily injury to someone because of the victim's "religion, national origin, gender, sexual orientation, gender identity or disability."  This subsection applies only if the perpetrator of the act crosses a state line, uses a channel or instrumentality of interstate commerce to commit the crime, uses a weapon that has moved in interstate commerce, interferes with commercial or economic activity that the victim is engaged in at the time of the offense, or otherwise affects interstate commerce.  It is also an offense under subsection (a)(2) if the hate crime occurred in a place that is under U.S. territorial jurisdiction. 

     Why does the law treat hate crimes based on race, color, religion, and national origin differently from hate crimes based on gender, sexual orientation, gender identity, and disability?  The reason is that Congress has broad power under the 14th Amendment to protect people against discrimination based on race, color, religion, and national origin.  Accordingly, subsection 249(a)(1) is adopted pursuant to Congress' power to enforce the 14th Amendment.  The Supreme Court has ruled that Congress has less power under the 14th Amendment to enact laws relating to gender and disability.  Accordingly, subsection 249(a)(2) is enacted pursuant to Congress' power under the Commerce Clause.  In order to be constitutional, these crimes have to have some connection to interstate commerce: the defendant or the victim crossed state lines; the weapon that used moved in interstate commerce; the person committed the crime by using a "instrumentality" of interstate commerce like a telephone or an airplane; or when attacked the victim was engaged in economic or commercial activity.

     Forty-five states currently have hate crimes legislation.  How will the new federal law be implemented to avoid unnecessary duplication of law enforcement efforts?

     The law places no restriction on the power of the federal government to investigate hate crimes, however there is a "certification requirement" before the federal government may bring criminal charges under the Act.  The law states:

(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or his designee, that–

(A) the State does not have jurisdiction;

(B) the State has requested that the Federal Government assume jurisdiction;

(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

     Essentially, the federal government will prosecute hate crimes only if state and local authorities appear unwilling or unable to prosecute the offense.

     A number of provisions were added to the bill in response to concerns that people could be jailed simply for expressing disapproval of gays and lesbians.  The law is only applicable to "violent acts," and the law defines the term "bodily injury" as specifically excluding "solely emotional or psychological harm."  Finally, the law includes the following provisions regarding freedom of speech:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes on any rights under the first amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion, speech, expression, or association was not intended to–

(1) plan or prepare for an act of physical violence; or

(2) incite an imminent act of physical violence against another.

(3) FREE EXPRESSION- Nothing in this division shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs.

(4) FIRST AMENDMENT- Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(5) CONSTITUTIONAL PROTECTIONS- Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

     Jim Abrams of the Huffington Post published an excellent summary of the enactment of the law here.  He reports that despite the foregoing provisions protecting freedom of speech Senator Jim DeMint (R-SC) asked whether the Act would

"serve as a warning to people not to speak out too loudly about their religious views."

     Abrams also reports that Tony Perkins, President of the Family Research Council, states that the law is

"part of a radical social agenda that could ultimately silence Christians and use the force of government to marginalize anyone whose faith is at odds with homosexuality."

     DeMint and Perkins need not worry about criminal prosecution.  Hateful thoughts are absolutely protected under the Constitution, and the government may punish hateful speech only when it crosses the line from "advocacy" of violence into "direct incitement" to commit a violent act.  Of course, if DeMint and Perkins believe that they have a constitutional right to plan or conspire to commit acts of violence against gays and lesbians, then they are sadly mistaken. 

     DeMint's and Perkins' actual concern is moral, not legal.  DeMint and Perkins and others who share their opinions believe that by opposing tolerance and equality for gays and lesbians that they are taking a principled stand against immorality and sin.  But despite their efforts society is changing – we are becoming more tolerant and accepting of homosexuality, and gays and lesbians are making steady progress towards legal and social equality.  DeMint and Perkins are in fact worried that people will come to regard their views as hateful.  Too bad.

     The AP is reporting that the Justice Department is sending guidelines to federal prosecutors today advising them not to prosecute the sale of marijuana where such sales are in compliance with state laws.  This news has interesting implications under the Constitution.

    Four years ago the Supreme Court decided Gonzales v. Raich, a hard-fought case over the principle of federalism and the power of Congress under the Commerce Clause.  The issue in that case was whether Congress had the power under the Commerce Clause to enforce the federal Controlled Substances Act against growers and sellers of marijuana in situations where state law made such use lawful – where the states had enacted laws allowing the medicinal use of marijuana.  In a split decision the Supreme Court ruled that the federal law was constitutional and that the state "compassionate use" laws were therefore unconstitutional because they had been preempted by Congress.

     Justice Sandra Day O'Connor dissented in Gonzales on the ground that the states should have the power to enact and enforce laws on this matter.  She quoted Justice Louis Brandeis from the case of New State Ice v. Liebmann, in which he said:

     A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

     She concluded her dissent in Gonzales with this argument: 

     Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

     Today fourteen states have laws allowing marijuana to be used for medical reasons – and, according to the AP, today the Justice Department sent a message to the office of every U.S. Attorney suggesting that, as a matter of prosecutorial discretion and for the purpose of conserving resources for more important cases, that federal prosecutors should not pursue cases in which the production and use of marijuana is in compliance with state law.

     I wonder if former Justice O'Connor feels vindicated?

     This much is obvious.  Keith Bardwell, an elected Justice of the Peace in Louisiana, violated the Constitution when he refused to marry an interracial couple.  People have not paid too much attention to the reason that he refuses to marry people of different races.  That reasoning is instructive.

     Keith Bardwell is Justice of the Peace for the 8th Ward of the Tangipahoa Parish in southeastern Louisiana.  Bardwell made national news when he refused to marry an interracial couple, Beth Humphrey and Terence McKay.  Here is a report from CNN on this matter and an AP report posted at ABC. 

     Bardwell's action was a clear violation of the Constitution.  In 1967 in the case of Loving v. Virginia the Supreme Court ruled that a state law prohibiting interracial marriage was unconstitutional – a violation of the Equal Protection Clause.  In this case, Bardwell was not enforcing a state law, but rather was breaking the law by refusing to marry this couple.  That does not make his act any less a violation of the Constitution.  Whenever public officials take action "under color of law" – that is, in their official capacity – it is state action and the Constitution governs their conduct, whether they are obeying or disobeying state and local laws.   This principle was established in 1879 in the case of Ex Parte Virginia, in which a judge, acting on his own inititive and without support under state law, had deprived blacks the right to sit on juries.  The Supreme Court ruled this act constituted "state action" which is prohibited by the Constitution – that the act was performed "under color of law" even though it was illegal.  The Court stated:

     A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.

     Accordingly, Bradwell's refusal to marry Humphrey and McKay was a violation of the Constitution.

     What has not received as much attention are the reasons that Bardwell gave for refusing to marry interracial couples.  He claims that he is not a racist – he is just thinking of the children.  Here is the explanation that he gave to the Associated Press, according to this article by Mary Foster:

I'm not a racist. I just don't believe in mixing the races that way," Bardwell told the Associated Press on Thursday. "I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else."

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.

Bardwell said he has discussed the topic with blacks and whites, along with witnessing some interracial marriages. He came to the conclusion that most of black society does not readily accept offspring of such relationships, and neither does white society, he said.

"There is a problem with both groups accepting a child from such a marriage," Bardwell said. "I think those children suffer and I won't help put them through it."

If he did an interracial marriage for one couple, he must do the same for all, he said.

"I try to treat everyone equally," he said.

     To their credit, both Governor Bobby Jindal and Senator Mary Landrieu called for Bardwell to be removed from office, as well he should be.  But wouldn't it be nice if they and other elected officials were to realize that the very same argument that Bardwell levels against interracial marriage is being raised against same-sex marriage – that a common reason that is given for preventing gays and lesbians from marrying is to protect their children from mental confusion or social stigma.  See for example the interview by Larry King with James Dobson, founder of the organization Focus on the Family, on March 2, 2002, where Dobson says that a gay couple cannot be a family, and in which he explains that the principal reason that he believes that gays and lesbians should not be permitted to marry or adopt children is for the sake of the children. 

     It is indeed wonderful to listen to people who "care about the children" explain why the children's parents shouldn't be allowed to marry – how much better for children if their families are not recognized by the law, if the laws of marriage and divorce do not govern their parents' relationship, if the children themselves are regarded as "illegitimate" or without a second parent altogether rather than the lawful children of a committed couple.  What humanity, what compassion, what tender concern!  One also has to admire the mental gymnastics that, on the one hand, condemns a couple to hell and damnation (or at least legal limbo) for the kind of sexual relationship that they have, and on the other extends such tender mercy to that couple's children – even though by virtue of that "mercy" the children must suffer the denial of the rights and benefits of being part of a lawful family.

     The extent and scope of slavery and discrimination against blacks in this country far exceeds the nature of discrimination against gays and lesbians.  But in this instance, from the perspective of a little child whose parents are not allowed to marry, there is no difference whatsoever.

     Yesterday Dave, a frequent commenter, in response to a column by my colleague Lynn Lenart, challenged the constitutionality of the Environmental Protection Act.  Specifically, he argued that Congress lacks the authority under the Commerce Clause of the Constitution to regulate air and water pollution that occurs entirely within the state of Ohio.  I disagree.

     Dave writes:

As long as this is a law forum, can we speak of the legitimacy of the EPA? I don't mean the Ohio EPA, we have the right to do to ourselves whatever we want.

But the legitimacy of the EPA comes from the commerce clause. Congress has the authority to regulate interstate commerce. But this authority gets stretched and twisted over time.

If we have a soot problem in the area, but the problem does not extend east to Geauga or Ashtabula counties, then I think it is reasonable to assume that it is not making it to Pennsylvania. If these are not interstate problems, why is the Federal Government involving itself?

     Like Supreme Court Justice Clarence Thomas, Dave wishes to return to the day when the states, and not the federal government, had principal responsibility for regulating the economy.  He and the Justice would limit the federal government to the role of regulating the movement of goods interstate, and would not confer upon the federal government the authority to legislate with respect to the production of goods and services.

     The Commerce Clause states:

"The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes …."

     As a textual matter, one could argue either that "commerce" is limited to buying, selling, and transporting goods, or that it includes the manufacture of goods as well.  Dave and Justice Thomas would adopt the narrow construction of the Commerce Clause, and their argument would have had great merit when the Constitution was written in 1787.  The Framers of the Constitution and the people of America at that time probably did not intend to give Congress the power to regulate the entire economy, but only the movement of goods interstate. 

     At that time the word "commerce" had a very limited meaning.  Most of the population lived and worked on family farms.  It is true that there was a blossoming textile industry in the north, but in the south the economy was almost feudal in nature – goods were processed and produced on the large plantations, to which the surrounding small farmers brought raw materials and received finished goods in return.  On the whole what happened in one part of the country had very little if any impact on other parts of the country or the economy as a whole.

     Compare that to the world we live in now.  There is hardly an item that we purchase that has not originated in different states or countries, sometimes with elements and components from dozens of different sources.  Regional, national, and international businesses extract, grow, or make raw materials, fashion or assemble them into finished products, and ship them both locally and to distant shores. 

     Franklin Delano Roosevelt recognized the inescapable fact that "commerce" is no longer in the horse and buggy stage, and while he was President the Supreme Court accepted this reality.  The standard that the Supreme Court adopted in the late 1930s and early 1940s is that Congress has the power to regulate all economic activity that "substantially affects" interstate commerce.  And this test is applied not only to individual, isolated acts, but to classes of activity.  It is no doubt true that a single act of polluting the environment, by itself, does not "substantially affect" interstate commerce.  But pollution as a whole does.  Similarly, a single act of racial or gender discrimination, a single act of paying someone less than a minimum wage, a single act constituting an unfair labor practice, would not, by itself, affect the economy or the movement of goods among the states.  However, taken as a whole, discrimination, unfair wages, and refusals to engage in collective bargaining each have a profound effect on the economy, and abuses in any one of these areas could destroy interstate commerce.  Accordingly Congress may enact laws that prohibit actions that pollute the environment, discriminate against classes of persons, or exploit workers.

     Chief Justice John Marshall recognized this principle in 1824 in the case of Gibbons v. Ogden.  He said that Congress has the power to regulate activities that occur within the states only if those activities "affect other states":

The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.

     At that time neither Justice Marshall nor anyone else conceived that there would come a time when our economy would become so interrelated that problems or abuses in one area would affect the entire country – but that has come to pass.  While the law itself does not change, in applying the law the courts must take into account how society has changed since the law was written.  Actions and even classes of activites that did not affect interstate commerce in 1787 now profoundly affect commerce. 

     Furthermore there is a practical problem with Dave's argument.  The states are utterly powerless to address the issues that we face.  Imagine the State of Connecticut attempting to regulate the insurance or pharmaceutical industries.  Imagine the State of Georgia regulating labor practics on its peach farms.  Imagine the State of Michigan setting emission standards or safety requirements for automobiles.  The simple fact is that even if our elected officials in state government were inclined to adopt laws preserving the environment and protecting workers and consumers, they lack the political muscle to regulate big business.  States and localities, desperate for jobs and economic investment, fall all over themselves to subsidize private investment with tax abatements and public improvements.  They are concerned with perserving and growing their own economies – not with what is best for the nation as a whole. 

     Furthermore, the laws of economics militate against economic regulation at the level of the states.   The history of the progressive movement in America bears witness to the fact  that, while labor and consumers occasionally were successful in enacting limited reforms within some states, other states would lure business away by refusing to enact those reforms.  If one state adopted an unemployment tax to protect laid-off workers, another state without such a tax would become more attractive to business.  If one state required employers to recognize trade unions, another state could undercut that reform by outawing unions.  Today, if only one state had environmental laws, businesses would flee that state for places that did not place as high a premium on clean air and clean water.  In the absence of a broad interpretation of the Commerce Clause vesting regulatory power in Congress, there would be "race to the bottom" among the states.

     And this process is not yet complete.  The problem today is not that the federal government has taken the power to regulate business away from the states.  The problem that we face is that the American government may not be powerful enough to regulate the activities of multinational companies operating in a global marketplace.  If we are in economic competition with countries that produce goods more cheaply because they despoil the environment or because their workers cannot bargain collectively, our industries and our ecomomy will suffer.  And while we may refuse to import goods from such countries, they will inevitably gain an unfair advantage over us in the global marketplace unless we create international bodies that will have both the power and the authority to enact and enforce laws that will protect consumers, preserve the environment, and ensure fair compensation and safe conditions for all workers everywhere.

     I don't necessarily like that prospect.  But I think that it is inevitable unless we are willing to go back to lives of subsistence farming.

     Joe Markman of the Los Angeles Times reports today that five constitutional experts appeared yesterday before the Constitution subcommittee of the Senate Judiciary Committee and expressed their opinions regarding the constitutionality of President Obama's "czars" – officials who advise the President and coordinate policy among different agencies and departments of the federal government.  The experts agreed that the practice was constitutional so long as these officials operated in an advisory capacity only and exercised no legal authority.

     The Constitution provides that, with the advice and consent of the Senate, the President has the power to  nominate certain officers of the United States.  Article II, Section 2, Clause 2 of the Constitution (the "Appointment Clause") provides in part that the President:

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

     A webcast of the hearing is available here from the website for the Constitution subcommittee.  Some of the points made by the expert witnesses follow:

1.  No person actually has the actual title of "czar."  They are instead "special envoys" or "presidential advisors."

2.  Almost all of the persons described as "czars" report to some other official who has been nominated by the President and confirmed by the Senate – for example, special envoy Richard Holbrook reports to Secretary of State Hillary Clinton.  These are accordingly "inferior officers" whose appointment may be vested in the President alone or in the heads of departments.

3.  Public Law 95-570 (3 U.S.C. 105) authorizes the President to hire white house staffers, including "Assistants to the President" such as environmental "czar" Carol Browner, without Senate approval.

4.  White House staff members have no legal authority, but serve simply as advisors to the President, analogous to the role played by law clerks to Justices of the Supreme Court.  Like the "special envoys," these are inferior officers and accordingly under the Constitution it is appropriate for the law to entrust their appointment to the President alone.

5.  These "czars" help  the President to oversee the actions of administrative agencies.  The President has the power to remove the heads of these agencies and to direct their actions, but to exercise this power effectively he must know what the agencies are doing and he must be able to coodinate policy among different agencies.  The agencies themselves are subject to congressional oversight, and if these advisors were, in effect, running the agencies, it would violate the laws creating those agencies and the requirement in the Constitution that the heads of executive departments must be confirmed by the Senate.

6.  Under the Constitution, principal officers of the United States must be confirmed by the Senate, inferior officers may be appointed by the President alone, and non-officers are not subject to the Appointment Clause at all.  A memorandum prepared by the Office of Legal Counsel of the Justice Department from the Bush administration states that officers are persons who have the power to excercise "delegated sovereign authority" – sovereign functions such as rulemaking, investigation and prosecution of wrongdoing, adjudication, the authority to speak for the United States, and the authority to command the armed forces of the United States.

7.  To be an officer, one must also have statutory authority – and no-one on the white house staff has actual legal authority.  This is different from practical influence or informal power.  Does a person have the power to actually bind the government – to take a legally effective action?

8.  It is common for members of the White House staff to be extremely influential, it is clear that this has been true for a long time, and it is perfectly constitutional.  Whether this is a good thing is another question.

9.  There is no indication that any of President Obama's advisors has been exercising legal authority.

10.  It would not be constitutional for Congress to prohibit a President from relying on the advice any persons he chooses, inside or outside the government. 

11.  Despite the assertions of "Executive Privilege" raised by the Bush Administration, Congress does have the power to compel the testimony of Presidential advisors before Congress.

     Several of the expert panelists stated that it would be difficult to write a law limiting the authority of the President to choose advisors, and it would difficult for the courts to develop a legal principle that could be used to  distinguish between the lawful and unlawful exercise of power by presidential advisors.

This week, the country celebrated the anniversary of the signing of the Constitution in September of 1787.  Let’s look at some of the various web sites with United States Constitutional materials.

The Library of Congress has a United States Constitution page.  Resources include scanned images of a very early printing of the U.S. Constitution and links to other materials from the Continental Congress (1774).  More here.

The U.S. National Archives also has scanned images of the original Constitution and the Bill of Rights (1789).  View large images, download high-resolution images or just read the plain text transcript.  The transcription is of the original version of the Constitution has hypertext links indicating those sections that have been amended or superseded.

U. S. Senate has a web page devoted to the Constitution of the United States and includes side-by-side explanation of each sentence.  More on the Constitution can be found here.

U.S. House of Representatives has a copy of the Constitution, a list of Constitutional Amendments NOT ratified as well as links to other historical documents about our country.

United States Government Printing Office (U.S. GPO) -  Downloads from this site include the Constitution with the Declaration of Independence in pocket size and full size, list of the unratified amendments, and the Analysis and Interpretation edition which includes annotations of cases decided by the Supreme Court of the United States that affect the Constitution.  http://www.gpoaccess.gov/constitution/index.html

American Bar Association- U.S. Constitution   Here you can either click and display the articles and amendments one at a time or download a PDF copy of the entire Constitution.

For Fun and a Free pocket size Constitution book  - This site includes quizzes, crossword puzzles and word finds about the U.S. Constitution.  Request a free copy of the Constitution!

The New York Times described the case of Citizens United v. FEC, which was recently re-argued before the Supreme Court, as "a momentous case that could transform the way political campaigns are conducted."  As the NYT reports:

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career.  The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service.  The film is available on the Internet and on DVD.  The issue was that the McCain-Feingold law bans corporate money being used for electioneering.

The Times article goes on to note that:

[T]he relevant law, the Bipartisan Campaign Reform Act of 2002, more commonly called McCain-Feingold, applies only to broadcast, satellite or cable transmissions. That leaves out old technologies, like newspapers and books, and new ones, like the Internet. . . . The McCain-Feingold law [also] does contain an exception for broadcast news reports, commentaries and editorials.

One possible way of describing the tension here is as follows:  On the one hand, owners and managers of corporations consider the corporation to be their property and believe they should be protected by the First Amendment in the use of that property for political speech.  On the other hand, one can argue that the corporation is a "creature of the state" uniquely designed to facilitate wealth accumulation for the benefit of society as a whole and that the use of that wealth to influence elections may be regulated by the state.  As I wrote in an article a few years ago:

It is important to note here (and should be obvious upon reflection) that the State did not grant limited liability to shareholders or immortality to the corporate entity merely out of a benevolent desire solely to increase the wealth of shareholders.  Rather, the State saw that its interests as sovereign, whether building specific pieces of infrastructure or promoting economic growth generally, could be furthered via the corporate form.

But somewhere along the way the corporation was granted personhood under the Constitution and now we are arguing about the free speech rights of a fictional entity.  In the oral arguments last week, newly-appointed Justice Sotomayor questioned this fundamental attribute of the corporation.  The Wall Street Journal reported it this way:

During arguments in [Citizens United], the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.  But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.  Judges "created corporations as persons, gave birth to corporations as persons," she said.  "There could be an argument made that that was the court's error to start with…[imbuing] a creature of state law with human characteristics."

This made me think back to some of the warnings regarding the abuses of corporate power that I wrote about in another recent article:

Almost from the time of the birth of the modern corporation there have been many voices loudly proclaiming that the accumulation of power that the corporate vehicle promised posed a threat to the people. . . .  These voices include U.S. Presidents like Thomas Jefferson, who urged citizens to "crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country"; Abraham Lincoln, who wrote that "corporations have been enthroned and an era of corruption in high places will follow," and predicted that "the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed"; and Dwight D. Eisenhower, who warned us to "guard against the acquisition of unwarranted influence . . . by the military industrial complex."  President Ruthord B. Hayes went so far as to assert that, "This is a government of the people, by the people and for the people no longer. It is a government of corporations, by corporations and for corporations."

However, it does not seem like these warnings will be heeded by the Court in Citizens United.  As SCOTUSBLOG noted in reviewing the oral argument:

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

PS–Former Akron Law Jurist-in-Residence Judge Rakoff has been making quite a bit of news lately with his refusal to approve the proposed settlement between the SEC and B0fA over allegations of impropriety in connection with the failure to fully disclose Merrill bonuses before the BofA-Merrill merger.  I plan on blogging on this story next week.

PPS–I have been listening to William Cohan's "House of Cards: A Tale of Hubris and Wretched Excess on Wall Street", and I can highly recommend it.  It's all about how rational and efficient markets can solve everything

Akron Law will host two programs on Health Care Reform. Tomorrow, the Federalist Society and the Black Law Students Association will host a debate on the subject. On Tuesday, Sept. 15, the Constitutional Law Center will host a presentation by Dr. Sharon Hull of NEOUCOM. Both programs are free of charge and open to the public. The programs will be held in Room 151 at Akron Law. Professor Will Huhn, a regular blogger on the Akron Law Café blog, will participate in both programs.

In a recent column Cleveland Plain Dealer reporter and columnist Kevin O'Brien makes a powerful argument for the proposition that health care is not a right.  On constitutional grounds he is absolutely correct.

O'Brien's column from last Thursday was entitled "Health Care Costs Money – Real Rights Don't."  This neatly sums up the distinction between "negative liberties" and "affirmative duties."  The United States Constitution prohibits the government from interfering with our basic liberties – the government may not infringe upon our exercise of freedom of speech, freedom of religion, or the right to privacy.  But in general the government has no obligation to provide us with anything – food, clothing, shelter, education, or medical care.

The Constitution does not even require the government to protect us from harm at the hands of private individuals.  The Constitution does not prohibit murder, rape, or robbery.  It does not prohibit individuals or corporations from discriminating on the basis of race, religion, gender, age, disability, or sexual orientation.  In the sense that Kevin O'Brien has used the term, it is accurate to say that there is no (constitutional) right to even life itself, for our lives and property are at the mercy of other people unless laws are enacted to protect us from harm.

O'Brien is also correct in identifying the core element distinguishing constitutional rights – in general, constitutional rights don't cost money.  To obey the Constitution, all that the government has to do is to refrain from acting.  This principle is also consistent with the doctrine of Separation of Powers.  It is the legislature, acting on behalf of the taxpaying public, that appropriates public funding.  It is almost always inappropriate for the judiciary to assume this function.

There are exceptions to this general rule.  For example, when the government seeks to convict someone of a crime, under the Sixth Amendment the government must provide an attorney even if the defendant cannot afford one.  Once incarcerated, the person has a constitutional right to be treated humanely, and the courts can order the government to spend to upgrade prison conditions.  This would include adequate health care.  But where the government has not taken someone under its control and assumed responsibility for that person's care, the government has no affirmative duty to protect that person from harm.

O'Brien contends that the health care debate should not be centered upon whether or not health care is a "right," but rather whether there is a moral obligation to provide health care to those in need.  He states:

What they should be writing about, and what all Americans should recognize, is not a nonexistent "right" of people in need to take — or to have the government do their taking for them — but the moral obligation that exists on the part of people who are in a position to give.

Once again, I agree with Mr. O'Brien.  I would add that even if we put moral considerations aside, economic considerations will very quickly force us to reform our system of financing health care.  Our present system of unregulated private health insurance is just too expensive and inefficient – it can no longer be sustained for even a few years.  More on that tomorrow.

     Three significant events yesterday occurred yesterday on the torture front: the government released the 2004 C.I.A. Inspector General's Report on interrogations; Attorney General Eric Holder expanded the special prosecutor's jurisdiction to investigate whether interrogators broke the law; and it was revealed that the President has created a new single government unit to question "high value" prisoners in the war on terror.  More below.

     On Monday the administration released the May 7, 2004 report of the C.I.A. Inspector General entitled "Counterterrorism Detention and Interrogation Activities.  The report is over 100 pages long  and more than half of it is blacked out, its remaining contents still "top secret."  The most heavily edited portions of the report are those that describe how prisoners were treated.  Nearly everything on the use of waterboarding (pages 45 to 66 of the report) is blacked out. 

     Another portion of the report that is heavily blacked out contains references to the expressed concerns of C.I.A. officers that they would be subject to legal action for participating in the interrogation of prisoners.  In particular, the Report notes, while the Department of Justice had advised the C.I.A. that waterboarding and other interrogation techniques were not "torture," it had neglected to advise the C.I.A. whether the interrogation techniques constituted "cruel, inhuman, or degrading treatment or punishment" prohibited by Convention Against Torture, a treaty which was signed by the United States in 1984.

     The report describes how interrogators used unauthorized methods such as subjecting prisoners to mock executions, water dousing, smoke inhalation, pressure points, threatening prisoners with handguns and an electric drill, and threatening their family members with rape or death.  At page 102, paragraph 258, the Inspector General concluded:

Unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques were used ….

     On page 105 of the Report, in paragraph 266, the Inspector General reaches this final conclusion:

The Agency faces potentially serious long-term political and legal challenges as a result of the CTC Detention and Interrogation Program, particularly its use of EITs [enhanced interrogation techniques] and the inability of the U.S. Government to decide what it will ultimately do with terrorists detained by the Agency.

     The remaining four pages of the report containing ten recommendations are entirely blacked out.

     Attorney General Holder issued a statement noting that he had read the complete and unredacted Inspector General Report and that as a result he had decided to expand the jurisdiction of Special Prosecutor John Durham who had initially been appointed during the Bush administration to investigate the C.I.A.'s destruction of videotapes allegedly showing the mistreatment of prisoners.  The Attorney General stated that the report had led him to believe that a preliminary review was necessary to determine whether federal laws had been violated during the interrogation of prisoners at overseas locations.  In the key paragraph of his statement, the Attorney General said:

"There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community. I could not disagree more with that view. The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals."

     Finally, it would appear that the C.I.A. has lost its responsibility for interrogating high-level prisoners in the war on terror, and not simply or even primarily because of the mistreatment of prisoners.  Anne Kornblut of the Washington Post reports that the President has established an elite team, the High-Value Detainee Interrogation Group (HIG) under the direction of the National Security Council and hosted at F.B.I. headquarters, to question these prisoners.  This will bring interrogation of these prisoners directly under the control of the White House.  Kornblut reports that the interrogations will be carried out with the help of linguists, cultural experts, and interrogation specialists who will advise the interrogation team.  Some of the most damning portions of the Inspector General's report did not concern the mistreatment of prisoners but rather the lack of expertise and professionalism among the C.I.A. interrogators: there were persons conducting interrogations who had no experience questioning hostile prisoners; interrogators who had no idea what their prisoners might or might not know because of a complete absence of informed analysis; and a failure to thoroughly and adequately evaluate whether enhanced interrogation techniques had been necessary or useful.  As a result the C.I.A. will no longer be responsible for interrogating "high-value" prisoners.

     In an article by Mark Mazzetti in yesterday's New York Times it was reported that the secret program that current C.I.A. Director Leon Panetta learned about, terminated, and revealed to Congress in June of 2009 was a Bush administration plan to use the Blackwater private security firm to help assassinate al-Qaeda leaders.

     In 1981 President Ronald Reagan issued Executive Order 12333 governing the administration of the intelligence services, Section 2.11 of which states:

No person employed by or acting on behalf of the United States government shall engage in or conspire to engage in assassination.

     In my opinion, attacks against al-Qaeda leaders when carried out by the United States government are not "assassinations" but rather military operations in the conduct of a war, at least where those operations are conducted by military personnel within a theater of war.  Al-Qaeda declared war on the United States in 1998 and committed several acts of war against this country including the attack of September 11, 2001.  On September 18, 2001, in the Authorization for Use of Military Force, Congress authorized the President:

 to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

     Despite the breadth of the AUMF, the legality of hiring a private company to kill foreign leaders is less clear, particularly if the assassinations were to be carried out in countries outside of Iraq or Afghanistan and without the permission of the government in those countries.  Even within a theater of war it is not clear that employees of a private security company would enjoy the same legal rights and immunities as soldiers or intelligence officers.

     The legality of concealing this program from Congress is also not clear – and by that I mean that the law is not a model of clarity.  The relevant provision of federal law, Section 103 of the National Security Act of 1947, states:

(1) Under the direction of the National Security Council, the Director of Central Intelligence shall be responsible for providing national intelligence (A) to the President; (B) to the heads of departments and agencies of the executive branch; (C) to the Chairman of the Joint Chiefs of Staff and senior military commanders; and (D) where appropriate, to the Senate and House of Representatives and the committees thereof.

(2) Such national intelligence should be timely, objective, independent of political considerations, and based upon all sources available to the intelligence community.

The problem, of course, is determining whether it would have been "appropriate" for the C.I.A. to have told Congress about this program earlier.  Here is a monograph entitled "How Intelligence Sharing with Congress Has Evolved" posted on  the website of the C.I.A.  According to the last footnote of the monograph it was written by the author of the "where appropriate" language in the statute.  The footnote states:

Permitting myself a personal note here, as author of this language and principal coordinator of the legislation, I was advised by representatives of the executive branch that they did not see this language as anything more than a codification of the existing practice, and, so long as some type of qualifying language was present, they would not object to it. Indeed, they preferred not to tackle the thorny issues involved in specifying what support would, from the executive standpoint, be "appropriate."

     Thorny indeed!  It has been reported that Vice-President Dick Cheney ordered C.I.A. officials not to inform Congress about the program, and Mr. Cheney's decision has been defended on the ground that the program was still in the planning stages.  On the other hand, the Mazzetti article indicates that the C.I.A. had spent several million dollars on the program and quotes one official as stating that the program had gone "well beyond" "briefing slides or doodles on a cafeteria napkin."  The House Intelligence Committee is investigating whether the C.I.A. broke the law by not promptly informing Congress of Blackwater program.  

     Blackwater also faces other legal challenges.  On September 16, 2007, Blackwater employees allegedly killed 17 Iraqi citizens and injured 20 others in Nisour Square, Baghdad, while providing security for a State Department convoy.  As a result, in December, 2008, five of the employees were indicted by the Justice Department largely on the testimony of a sixth guard who had pled guilty to manslaughter.  Furthermore, the Center for Constitutional Rights has brought civil actions on behalf of several of the Iraqis who were injured as well as the families of some of the persons who were killed.  On August 4 Jeremy Scahill of The Nation reported that as a part of that lawsuit the CCR had submitted affidavits from two former Blackwater employees alleging that the company had also engaged in arms smuggling and had killed witnesses who were cooperating with federal authorities.

     The right to refuse lifesaving medical treatment as well as the wisdom of filling out advance directives was established in the case of Cruzan v. Director (1990).  This case is summarized below.

     In 1983 a young woman, Nancy Beth Cruzan, was seriously injured in an automobile accident and her brain was deprived of oxygen for several minutes.  Because she was in a comotose state the hospital inserted a gastrostomy tube into her stomach as a means of providing nutrition and hydration – a necessary step to take while physicians evaluated her condition.  Doctors eventually agreed that Nancy's higher brain functions had been destroyed and that there was no hope of recovery.  She was diagnosed as being in a "persistent vegetative state," a condition in which there is no possibility of conscious thought or even dreaming.  As a result her family requested that the gastrostomy tube should be removed so that Nancy could die, and they initiated a lawsuit on her behalf requesting a court order allowing the removal of the tube.  The Missouri trial court found that Nancy had a constitutional right to refuse medical treatment and that she would not have chosen to continue to leave the feeding tube in under these circumstances; it therefore ruled that the tube could be removed.  The decision was appealed by Nancy's guardian ad litem, and the Missouri Supreme Court reversed the decision of the trial court for two reasons: (1) The state supreme court expressed doubt that an individual has a constitutional right to refuse lifesaving medical treatment; and (2) the state supreme court ruled that under Missouri law the parents had the burden of producing "clear and convincing evidence" that Nancy would have chosen to discontinue treatment, and that the parents had failed to meet that standard in this case.

     The U.S. Supreme Court unanimously reversed the Missouri Supreme Court on the first point, but by a vote of 5-4 it upheld the right of the State of Missouri to require "clear and convincing" evidence of the patient's intent. 

      The U.S. Supreme Court began its analysis by reviewing the common law of "informed consent."  The Court noted that under tort law physicians are not only obligated to obtain a patient's consent to treatment, but must also inform their patients of the material consequences or accepting and refusing treatment.  The Court observed:

As these cases demonstrate, the common law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment.

     The Court then reviewed its previous decisions such as Jacobson v. Massachusetts (1905) (upholding a state law requiring people to submit to smallpox vaccinations) and Vitek v. Jones (1980) (ruling that individuals have a right to a hearing before being involuntarily committed to a mental hospital), and concluded that the right to refuse medical treatment is a constitutional right:

The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.

 The Court then noted that both the common law and previous decisions of the Supreme Court had indicated that this right to refuse unwanted medical treatment extends even to treatment that could save or extend the person's life:

Petitioners insist that, under the general holdings of our cases, the forced administration of life-sustaining medical treatment, and even of artificially-delivered food and water essential to life, would implicate a competent person's liberty interest. Although we think the logic of the cases discussed above would embrace such a liberty interest, the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.

     Accordingly, the Court found that a competent person has a constitutional right to refuse lifesaving medical treatment.  The problem, of course, was that after the accident Nancy was no longer "competent" and was incapable of making this decision for herself.  The issue in the case was therefore whether there was sufficient evidence that Nancy had made the choice to refuse this treatment prior to the accident.  If Nancy had made out a living will her wishes would have been clear, or if she had filled out a durable power of attorney for health care she could have chosen someone to make this decision for her, but like most people – particularly young people – Nancy had never filled either of these documents out.  Nancy's friends and relatives testified generally about her active lifestyle and specifically about statements she had made about not wanting to live in this kind of condition, but the state supreme court had set a pretty high bar for proving that Nancy would have refused this medical treatment - "clear and convincing evidence" – and the U.S. Supreme Court upheld the finding of the Missouri Supreme Court that this standard had not been met in this case, and it affirmed the decision of the state supreme court.

     Later that year the family found additional witnesses who testified that Nancy would have wanted her medical treatment terminated, and the trial court ruled that there was now "clear and convincing evidence" to support the removal of the feeding tube.  This time there was no appeal, and Nancy died December 26, 1990, more than seven years after the accident.

     The lawsuits over Nancy's wishes would have been avoided if she had completed advance directives – a living will and a durable power of attorney for medical care.  A living will specifies what medical care you want and don't want, and a durable power of attorney for health care gives someone you trust the legal authority to make health care decisions for you.  Information about these documents and forms for a Living Will and Durable Power of Attorney for Health Care that satisfy the requirements of Ohio law are available here at a website that is maintained by several organizations including the Ohio State Medical Association and the Ohio State Bar Association.  You have a constitutional right to make these decisions, and these documents should assure that your wishes are respected.

     There are countless works of art that reflect our constitutional ideals of liberty, fairness, and equality before the law.  I can only make a brief start on that list. 

     The greatest legal and social challenge we face as a nation is to overcome racial and ethnic hostility.  Some early works of art are worth studying because they give us insight into race hatred or notions of racial superiority.  "The Birth of a Nation" (1915)is deliberately malignant in its celebration of the rise of the Ku Klux Klan, while "Gone With the Wind" (1939) is thoughtlessly insensitive in its romanticized depiction of plantation life.  Even well-intentioned attempts at racial tolerance like Disney's "Song of the South" (1946) are difficult to watch today, but are still instructive of what our racial attitudes used to be.

     Other works of art redeem American culture in this regard.  "Huckleberry Finn" is perhaps the greatest American novel – if so, it is because Mark Twain leads us to see Jim through Huck's eyes.  Similarly, in "South Pacific," (1958), "West Side Story," (1961), "Guess Who's Coming to Dinner" (1967) people in love help us to cross the racial divide. 

     Most of the Bill of Rights is devoted to ensuring that defendants will enjoy a fair trial – this is also a staple theme of popular culture.  As mentioned in previous posts, our westerns, detective shows, and courtroom dramas are concerned not only with our desire to seek justice, but also with our duty to mete it out fairly – consider just these three Henry Fonda films: "Twelve Angry Men" (1957), "The Wrong Man" (1956), and "The Ox-Bow Incident" (1943).  

     Other constitutional issues are also brought home to us through art.  Spencer Tracy and Fredric March articulate the conflict between creationism and evolution in "Inherit the Wind," and therefore help us to better understand the proper relation between government and religion. Similarly, Dustin Hoffman and Robert Redford track down the President's wrongdoing in "All the President's Men," employing the mechanism of the First Amendment to enforce the principles of Separation of Powers.

    It is not be surprising that our most fundamental values should find expression in our greatest and most popular works of art.  In tommorow's final installment of this series I suggest that the underlying presence of these values implies upon us an obligation to take advantage of the rich cultural heritage of our beloved country.

Professor Huhn is taking a two-week break from Constitutional Law with this ten-part series "America the Beautiful" exploring different aspects of American culture.  Please add your favorites to the songs, poems, and other works about our country.

     The National Defense Authorization Act for 2010 amends the Military Commissions Act of 2006 by expressly protecting the defendant's right to choose the attorney who will represent him.

     The Bush administration initially took the position that the prisoners at Guantanamo Bay were not entitled to be represented by counsel, and even after the administration began trying prisoners for war crimes it attempted to control who would be assigned as counsel for the defendants.  The proposed military appropriations law (S. 1390) specifically provides that defendants before military commissions have the right to select the attorney who will represent them.  The bill would enact this provision at 10 U.S.C. Section 949a((b)(2)(C):

     The procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights: … To be represented before a military commission by civilian counsel if provided at no expense to the Government, and by either the defense counsel detailed or by military counsel of the accused's own selection, if reasonably available.

     The changes to the Military Commissions Act which are included in the Senate's version of the National Defense Authorization Act for 2010 were unanimously agreed to by the members of the Senate Armed Services Committee.  They represent a bipartisan effort to bring the law governing military commissions into conformity with the Constitution and our treaty obligations under the Geneva Conventions.  For it is not enough to defeat al Qaeda.  In defeating them we must show how we are different – that the goal of our civilization is that every individual must be treated with dignity and compassion, and that the use of force is cabined to lawful purposes – the military power is subservient to the civilian, and the civilian power is democratically conferred.

     What distinguishes our society from terrorists of any description is our dedication to the rule of law.  As Robert Jackson said in his closing argument at Nuremburg:

Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man.

But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of sour strength.

     Lou Michel of the Buffalo News reports today that in 2002 former Vice-President Richard Cheney and Secretary of Defense Donald Rumsfeld proposed to President George W. Bush that the United States Army should carry out the arrests of six  suspected terrorists in Lackawanna, New York, and that they should be held by the military as "enemy combatants."

     Michel states that in the Lackawanna case the President rejected the advice of the Vice-President and the Secretary of Defense.  Instead the F.B.I carried out the arrests, the men were prosecuted by the Justice Department in federal court where they pled guilty and were sentenced to federal prison.  One is still being held in a highly secure federal prison in Terre Haute, Indiana.  Here is another article about the Lackawanna Six by Dina Temple-Raston of the Washington Post published in September, 2007.

     The larger question is, would it have been a violation of the law and the Constitution if the President had followed Vice-President Cheney's and Secretary Rumsfeld's advice and used the army to arrest the Lackawanna Six?  It certainly would have been a violation of the Posse Comitatus Act, 18 U.S.C. 1385, which provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

     This law was adopted following Reconstruction in 1878 in order to prevent future Presidents from using the military to execute the laws.  However, another law, the Insurrection Act, gives the President the authority to use the armed forces to intervene when the state governments "fail, refuse, or neglect to protect" the legal rights of its people.  The Insurrection Act, at 10 U.S.C. 333, provides:

Section 333. Interference with State and Federal law

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it – (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.  In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

     Presidents have used their power under the Insurrection Act sparingly.  For example, in 1957 President Eisenhower ordered federal troops to restore order in Little Rock, Arkansas, when Governor Faubus had called out the National Guard to prevent black children from entering Central High School, and local mobs had threatened the safety of the children.  In my opinion the Insurrection Act is not broad enough to cover the situation of the Lackawanna Six, and President Bush would have violated the Posse Comitatus Act if he had ordered the army to arrest those individuals.

     In 2006 Congress adopted the Insurrection Act Rider that greatly expanded the President's power to used U.S. Armed Forces within the borders of the United States.  The Rider authorized the President to use troops in the event of any national emergency (including natural disasters or terrorist attacks) if the President determined that state authorities were "incapable of maintaining public order."  The Rider repealed the existing provisions of 10 U.S.C. 333 and substituted the following language:

(a) Use of Armed Forces in Major Public Emergencies.—

(1) The President may employ the armed forces, including the National Guard in Federal service, to—

(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that—

(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

(ii) such violence results in a condition described in paragraph (2); or

(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).

(2) A condition described in this paragraph is a condition that—

(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

(b) Notice to Congress.— The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.

.  Senator Patrick Leahy led the fight against this expansion of presidential power – here is his argument against the Insurrection Act Rider.  The Rider was repealed in 2008 and the original language of the Insurrection Act was restored.

     It was big news last week when the Senate stripped funding for the F-22 from the 2010 Military Appropriations Bill.  Lost in the shuffle is that fact that the same bill makes important modifications to the Military Commissions Act in order to bring the law into conformity with our treaty obligations under the Geneva Conventions.  The first post on this subject deals with the admissibility of confessions.

     In 2006 in the case of Hamdan v. Rumsfeld the United States Supreme Court ruled that the military commissions trying suspected terrorists for war crimes were unlawful under the Geneva Convention.  Common Article 3 of the Geneva Conventions prohibits:

the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

      In the 2010 military appropriations bill that was recently adopted by the Senate (S. 1390), a number of changes were made to the Military Commissions Act (10 U.S.C. 948a et seq.) to bring it into conformity with our treaty obligations.  Today's post describes the change that the law makes to the admissibility of confessions.

     Section 1031 of S. 1390 includes the following provision:

Sec. 948r. Compulsory self-incrimination prohibited; statements obtained by torture or cruel, inhuman, or degrading treatment

`(a) In General- No person shall be required to testify against himself at a proceeding of a military commission under this chapter.

`(b) Statements Obtained by Torture- A statement obtained by use of torture, whether or not under color of law, shall not be admissible in a trial by military commission under this chapter, except against a person accused of torture as evidence the statement was made.

`(c) Statements Obtained Through Cruel, Inhuman, or Degrading Treatment- A statement in which the degree of coercion is disputed may be admissible in a trial by military commission under this chapter only if the military judge finds that–

`(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

`(2) the interests of justice would best be served by admission of the statement into evidence; and

`(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd).

     The Detainee Treatment Act provides as follows:

the term "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.

     So what's the bottom line?  Basically, confessions that are obtained through the use of torture or cruel, inhuman, or degrading treatment are not admissible at all.  If methods of interrogation are used which do not amount to "cruel, inhuman, or degrading treatment," but which are nevertheless "coercive," then the military commission must take into account the "totality of the circumstances" in determining whether or not the statement is "reliable," "probative," and whether its admission "serves the interests of justice."

     There are still some difficulties in interpreting the precise meaning of the language of the statute; specifically, it is still not clear whether a confession which is "involuntary" is admissible even though the interrogation methods do not rise to the level of "cruel, inhuman, or degrading treatment."  Other provisions of the law make it clear that prisoners are not entitled to Miranda warnings, but there it is still ambiguous whether confessions will be admissible before the military commissions if they are "involuntary."  During testimony before the Armed Services Committee there was a debate among the witnesses concerning whether the Military Commissions and the courts would have to determine the "voluntariness" of a confession in determining its admissibility.  On the one hand, the law as written only requires consideration of the statement's reliability, probativeness, and justice – on the other hand, the statute may be read as meaning that these factors are considered for the purpose of determining the extent to which the statement was "coercive," that is, "involuntary."  The Congress may choose to clarify this point before the bill is enacted, or it may choose to leave this issue up to the courts.

     Tomorrow I will address two other changes made by S. 1389 to the Military Commissions Act with respect to two rules regarding the admissibility of evidence – the relevancy rule and the hearsay rule.

     I still haven't made up my mind as to who was right and who was wrong in the matter of the arrest of Henry Louis Gates.  I am confident that all the facts will emerge either through good investigative reporting or because some television show will induce both men to speak to each other about the incident and it will become clear what precisely happened.  (Previous posts referencing early news reports and statements of each man are linked here and here.)  My hope is that these are two good men who simply misunderstood each other.  In the meantime, here are two decisions of the Supreme Court that may inform the discussion.

     The Equal Protection Clause only applies to "state action," that is, to the actions of the government.  It does not apply to the actions of individuals or private organizations.  When a government official like a police officer or a judge acts illegally, it that state action?  Are the illegal acts of government officials nevertheless attributable to the government?

     The answer to this question is "Yes," according to an 1879 decision of the Supreme Court.  In Ex Parte Virginia the Supreme Court ruled that if a government official performs actions in the course of his duties, then it constitutes "state action," even if the official's conduct was in violation of state law.  In that case a state judge precluded blacks from sitting on juries even though no statute permitted that kind of discrimination.  The Supreme Court ruled that the judge's illegal acts of racial discrimination violated the Equal Protection Clause.  The Court stated:

A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.

     The other decision relevant to this incident is Chaplinsky v. New Hampshire (1942), in which Supreme Court announced the "fighting words" doctrine, which is an exception to the First Amendment.  Chaplinsky was a Jehovah's Witness whose words were creating a disturbance at a busy intersection.  Initially, the police protected Chaplinsky from other citizens, but when the crowd became unruly Chaplinsky was taken into custody.  Chaplinsky called one of the police officers "a god-damned racketeer" and a "damn fascist," and for uttering these words Chaplinsky was arrested and convicted for breaching the peace. 

     The Supreme Court ruled that the First Amendment doesn't give individuals the right to provoke other people to the extent of picking a fight.  The breach of the peace statute prohibited people from uttering "offensive" words to each other in a public place, and the New Hampshire Supreme Court adopted the following definition of the term "offensive":

     The word 'offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which, by general consent, are 'fighting words' when said without a disarming smile. . . . [S]uch words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker — including 'classical fighting words,' words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.

     The United States Supreme Court approved this definition, and the Court concluded:

     Argument is unnecessary to demonstrate that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.

     Police officers are not supposed to respond to insults or provocations with the use of force – the Court is not saying that a police officer or any other "reasonable person" has the right to resort to violence when he or she is insulted.  The Court is instead saying that no-one has a constitutional right to make any person – police officer or not – want to take a swing at him.  The "fighting words" doctrine does not apply to the expression of general political or religious views – it applies to personal insults delivered face-to-face. 

     The Court's unanimous opinion in Chaplinsky was written by Justice Frank Murphy, who was the most liberal member of the Court at that time.  As Attorney General, Murphy had created the Office of Civil Rights within the Justice Department.  I wonder what he would have thought about the Gates incident!

     On June 2, 2009, the Connecticut Supreme Court issued a ruling in the case of Rosado v. Bridgeport Roman Catholic Diocesan Corporation ordering the release of over 12,000 documents, previously under seal, describing how the Roman Catholic Diocese of Bridgeport, Connecticut, had handled allegations of sexual abuse in 23 separate cases.  On July 17 the Chicago Sun-Times reported that the Diocese had appealed the ruling to the United States Supreme Court on the ground that the disclosure of these documents would violate its rights under the Establishment Clause and the Free Exercise Clause of the First Amendment.  The Supreme Court is not likely to decide that issue, at least not right away.  

     Beginning in the mid-1990s twenty-three lawsuits alleging sexual abuse were filed against the Bridgport Diocese.  During the discovery process over 12,000 documents were produced and many witnesses testified under oath during deposition, but it was agreed that all of the information would remain under seal until trial.  The case was settled, and the documents and depositions have remained under seal ever since.

     A number of newspapers sued to gain access to the documents, and the Connecticut courts agreed that under state law the documents are "public records" because they were filed with the court for the purpose of obtaining a judicial ruling.  In its latest ruling the Connecticut Supreme Court also found that by producing the documents in court without asserting these privileges the Diocese had waived its rights to claim various statutory and constitutional privileges.  The Diocese claimed that it assumed that because all of the documents were still under seal that it was not necessary for it to claim the privileges.  Here is the key ruling of the Connecticut Supreme Court on the question of waiver:

In the present case, it is undisputed that the defendants failed to assert privileges at the time that they disclosed the documents to the plaintiffs. It is also undisputed that the information was produced by the defendants during discovery, either through deposition testimony or documents delivered to the plaintiffs. Because the defendants failed to claim these privileges or rights at the time of disclosure and because the defendants voluntarily disclosed the information to its adversaries in litigation, the defendants cannot now be heard to complain that the information should not be disclosed to others.

To the extent the defendants claim that they did not waive the privileges because they disclosed information with the understanding that it would be sealed, they cite no authority, nor have we uncovered any, to support that proposition.

     In short, this case presents some fascinating questions involving a conflict between different components of the First Amendment: (1) Does the news media have a First Amendment right to access to public records; (2) Does the public have a constitutional right to access to those public records; (3) Does a church have a constitutional right to refuse to produce information when it is sued for acts of abuse; (4) If such a case is settled, does a church have a constitutional right to keep those records sealed?

     Even if it does accept this case on appeal, the United States Supreme Court is not likely to answer any of those questions, because the Connecticut Supreme Court did not rule on any of those points.  The only issue that the United States Supreme Court might decide is whether the Diocese waived its constitutional privileges by producing the documents in court, under seal.  If the United States Supreme Court rules in favor of the Diocese on this point, the case would be sent back to the state courts to determine whether the church's arguments under Freedom of Religion outweigh the newspapers' arguments under Freedom of Speech.