ACS' panel on the Indiana Voter ID Law and the Supreme Court will be broadcast live on C-SPAN this morning from 9:30-11 a.m.

The press briefing will focus on the Supreme Court cases Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, both of which concern the constitutionality of an Indiana statute mandating that in-person voters produce government-issued photo identification.

Experts from a variety of perspectives will discuss the justification for the Indiana law, the burden that it may place on potential voters, the standard for reviewing the law, and the possible impact of a Court decision on future voting rights challenges.

The Supreme Court is scheduled to hear oral argument on these cases on January 9, 2008.

The panel features:

• Deborah Goldberg, Democracy Program Director, Brennan Center for Justice at New York University School of Law
  
• Bradley A. Smith, Professor of Law, Capital University Law School; FEC Commissioner 2000-2004, Chairman 2004-2005
  
• Jon M. Greenbaum, Director of the Voting Rights Project, The Lawyers' Committee for Civil Rights Under Law
  
• Moderator, Tova Wang, Democracy Fellow, The Century Foundation

In a recent article on CBSnews.com, Jennifer Bradley and Doug Kendall argue that "Liberals need to stop reading the right's talking points and start reading the Constitution's text and history. They'll generally like what they find."

The Reconstruction Amendments, for example, passed between 1865 and 1870, gave our nation what Lincoln promised at Gettysburg: a new birth of freedom. These Amendments ended slavery, expanded the franchise, and broadly protected civil and human rights. Today, the 14th Amendment's Citizenship Clause, which makes everyone born here (including the children of illegal aliens) a citizen, is just as useful in responding to . . .  nativist views . . . as other portions of the Amendment have been in the past in establishing equal rights for women and racial minorities. . . .

It is remarkable how many [conservative] claims about the Constitution have withered once constitutional historians have had a chance to subject them to close scrutiny. To give just one example, the property rights movement has sputtered out in court now that its claims about the original meaning of the Fifth Amendment's Takings Clause have been vitiated by historical research. So-called "originalists" argued that workaday land use and environmental regulations were "takings," requiring government compensation. But, in fact, when the Constitution says "nor shall private property be taken for public use, without just compensation," it means actually taken, that is, expropriated.

Today is the last day to vote for your favorite law blog. ACSblog was nominated in the category "Generally Speaking." Follow the link to vote.

In his "2007 Year-End Report on the Federal Judiciary" issued on January 1, 2008, Chief Justice Roberts called for continuing "three of my predecessor's important but unfinished initiatives to maintain the quality of our courts."

The Chief Justice called for additional efforts to improve communications with the Executive and Legislative branches. He expressed the view that the Judiciary must "relentlessly" ensure that federal judges maintain the "highest standards" of integrity. And Chief Justice Roberts argued that federal judges should receive pay raises to "reverse the steady erosion of judicial salaries since 1969."

In an appendix to the report, the Chief Justice noted that the total number of cases filed in the Supreme Court increased by 4% to 8,857 over the previous year. The number of appeals heard by the regional courts of appeals decreased by 12% to 58,410, largely the result of a reduction in appeals from administrative immigration decisions and decreases in criminal appeals brought about by the decision in U.S. v. Booker.

Filings in the U.S. district courts fell less than 1% to 257,507. The national median time from filing to disposition for civil cases was 9.6 months, and the median case disposition time for criminal cases was 7.0 months.

Filing before the U.S. bankruptcy courts fell 28% to 801,269. The number of persons under post-conviction supervision increased 2% to 116,221.

Dahlia Lithwick offers a top ten list of "The Bush Administration's Top 10 Stupidest Legal Arguments of 2007."

The U.S. Supreme Court released its argument calendar for February late last year. SCOTUSBlog has full coverage.

Two noteworthy cases the Court will hear include Gomez-Perez v. Potter, an employment discrimination case regarding protection against retaliation for federal employees who complain about age bias, and CBOCS West v. Humphries, another employment discrimination case regarding whether Section 1981 of the Civil Rights Act covers claims of retaliation in the workplace based on race.

Starting on January 1, 2008, a number of new state laws take effect. The National Conference of State Legislatures has an extensive list.  Here are a few examples:

• In Oregon, if an insurance company provides benefits for other drugs, it must also provide coverage for contraceptives.
• California and Colorado now require state-regulated banks and mortgage brokers to follow federal lending guidelines for non-traditional mortgages, requiring banks and lenders to evaluate a borrower's repayment ability and make sure the borrower understands the loan terms and risks before the loan is issued.
• In New Hampshire, same sex couples may enter civil unions. Oregon also enacted new procedures for domestic partnership agreements.
• Florida has expanded absentee voting and paper audit trail of all electronic voting machines.
• In New York, airlines that fail to provide adequate services to passengers trapped on the tarmac for more than three hours are subject to penalties.
• Colorado and Washington will streamline the voting process for American citizens and military personnel living abroad.
• In California, no one can smoke in a car if there is a minor inside.
• In Illinois, all buildings owned or leased by the State that are larger than 1,000 square feet must use Energy-Star labeled light bulbs.
• Utah, joining three other states, set guidelines for judges to use when children of immigrants, whose legal status has changed, are at risk of abduction.
• American flags sold in Minnesota must be manufactured in the United States.

In an editorial entitled "Stinting on Mercy," the Washington Post offered faint praise to President Bush for having "a modicum of courage and compassion" for granting the fifth commutation of a sentence since taking office in 2001, noting that "[t]here are thousands of prisoners rotting behind bars for nonviolent drug offenses. Surely some of them deserve at least as much mercy." Regarding the President's pardon of 29 federal convicts, the Post opined that the pardons "required no political courage."

Mr. Bush continues his run as one of the stingiest presidents in American history when it comes to pardons. Since taking office, he has granted 142; the only president with fewer was George H.W. Bush, who granted 74 pardons in four years in office. Compare that with the 396 pardons approved by Bill Clinton and the almost identical 393 by Ronald Reagan -- not a president known to be soft on crime.

ACS released an issue brief on "Reinventing the President's Pardon Power" in October. Written by Margaret Colgate Love, a former United States Pardon Attorney, the brief explores the historical context surrounding the pardon power, how it has fallen into disuse in the last few decades, and her belief that there should be a return to the regular use of the pardon power as it may be used effectively by presidents to do justice, to communicate a vision of criminal justice, to advance law reform, and to avoid infamy for making rare grants that the public perceives as favoritism.

ACSBlog is on hiatus until January 2. Please enjoy this guest blog post from earlier this year.

by Douglas Kendall, founder and executive director of Community Rights Counsel, a public interest law firm that promotes constitutional principles.

Media coverage of the Supreme Court tends to be dominated by the scoreboard, with stories chronicling the number of closely divided cases won by the “liberal” and “conservative” wings of the Court.   But before we start chalking up wins and losses for the October 2007 term, we should pause: too much staring at the scoreboard can obscure what’s really happening on the field (or bench).   Conservative “wins” mean something very different now, because the conservative judicial project has changed dramatically.

For decades, conservative legal giants were apostles of judicial restraint – Justices like Felix Frankfurter and the younger John Marshall Harlan and theorists like Harvard Law Professor Alexander Bickel.  Their goal was to cabin what they deemed to be the “excesses” of the Warren Court and to make the Supreme Court the “Least Dangerous Branch,” as Bickel once described it.

But restraint fell away in the 1980s as conservative domination of the Supreme Court became possible.  Almost overnight, Bickel, Harlan, and Frankfurter were displaced by radical libertarians such as Richard Epstein, prophets of law and economics, such as Richard Posner, and conservative originalists, such as Raoul Berger and Robert Bork.  In 1985, Epstein took to the opinion pages of the Wall Street Journal with a piece entitled “Needed: Activist Judges for Economic Rights,” a move that would have been considered heresy a decade before.   

This heady brew of activist conservative approaches to the law fueled the rise of the Federalist Society.  It was institutionalized at the Reagan Justice Department when Edwin Meese became Attorney General in 1985.  Charles Fried, Reagan’s Solicitor General at the time, highlighted one aspect of this new approach when he wrote of the “quite radical project” by Meese and his Federalist Society advisors to use the Fifth Amendment’s Takings Clause “as a severe brake upon federal and state regulation of business and property.”

Meese himself called for “constitutional calisthenics” and he commissioned a series of reports with titles such as “The Constitution in the Year 2000 and “Economic Liberties Protected by the Constitution.”  These little blue books distilled the various threads of conservative legal thinking into a concrete agenda for constitutional change.

The four members of the Court’s conservative wing – Chief Justice John Roberts, and Justices Clarence Thomas, Antonin Scalia, and Samuel Alito -- are all products of this Reagan Administration/Federalist Society milieu, and you can trace many of the legal conclusions in the opinions these Justices wrote or joined last term to their roots in these little blue books. Most notably, you see past as prologue in the radical reconstruction of the Equal Protection Clause advanced in the portions of Chief Justice Roberts’ Seattle schools opinion that Justice Kennedy refused to join, and in the dramatic constriction of access to federal courts advocated by the Chief in his dissent in the global warming case. 

Today, the biggest open question is whether Roberts will be able to secure the fifth vote necessary to make these positions the law of the land. Five like-minded justices, steeped in the conservative project of the 1980s and 1990s could also dramatically change the direction on law in a host of areas in which the Court is now closely divided – the executive power of the President, takings, the Establishment Clause, and more.   If all you see is the scoreboard, you’ll miss the stakes – higher than they have been in years – of the game.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

by Geoffrey R. Stone, professor of law at the University of Chicago

Mitt Romney’s recent reflections on the role of religion in American politics implicitly called to mind a disturbingly distorted version of history that has become part of the conventional wisdom of American politics in recent years.

That version of history suggests that the Founders intended to create a “Christian Nation,” and that we have unfortunately drifted away from that vision of the United States. In fact, nothing could be further from the truth.

Those who promote this fiction confuse the Puritans, who intended to create a theocratic state, with the Founders, who lived 150 years later. The Founders were not Puritans, but men of the Enlightenment. They lived not in an Age of Faith, but in an Age of Reason. They viewed issues of religion through a prism of rational thought.

To be sure, there were traditional Christians among the Founders, including such men as John Jay, Patrick Henry and Samuel Adams. Most of the Founders, however, were not traditional Christians, but deists who were quite skeptical of traditional Christianity. They believed that a benevolent Supreme Being had created the universe and the laws of nature and had given man the power of reason with which to discover the meaning of those laws. They viewed religious passion as irrational and dangerously divisive, and they challenged, both publicly and privately, the dogmas of traditional Christianity.

Benjamin Franklin, for example, dismissed most of Christian doctrine as “unintelligible.” He believed in a deity who “delights” in man’s “pursuit of happiness.” He regarded Jesus as a wise moral philosopher, but not necessarily as a divine or divinely inspired figure. He viewed all religions as more or less interchangeable in their most fundamental tenets, which he believed required men to treat each other with kindness and respect.

Thomas Jefferson was a thoroughgoing skeptic who valued reason above faith. He subjected every religious tradition, including his own, to careful scrutiny. He had no patience for talk of miracles, revelation, and resurrection. Like Franklin, Jefferson admired Jesus as a moral philosopher, but insisted that Jesus’ teachings had been distorted beyond all recognition by a succession of “corruptors,” such as Paul, Augustine, and Calvin. He regarded such doctrines as predestination, trinitarianism, and original sin as “nonsense,” “abracadabra” and “a deliria of crazy imaginations.” He referred to Christianity as “our peculiar superstition” and maintained that “ridicule” was the only rational response to the “unintelligible propositions” of traditional Christianity.

John Adams, who identified most closely with the early Unitarians, also believed that the original teachings of Jesus had been sound, but that Christianity had subsequently gone awry. He wrote to Jefferson that the essence of his religious beliefs was captured in the phrase, “Be just and good.” As President, Adams signed a treaty, unanimously approved by the Senate in 1797, stating unambiguously that “the Government of the United States . . . is not in any sense founded on the Christian religion.”

George Washington was respectful of traditional Christianity, but he did not have much use for it. His personal papers offer no evidence that he believed in biblical revelation, eternal life, or Jesus’ divinity. Clergymen who knew Washington well bemoaned his skeptical approach to Christianity. Bishop William White, for example, admitted that no “degree of recollection will bring to my mind any fact which would prove General Washington to have been a believer in Christian revelation.”

Tom Paine, the author of Common Sense, The Rights of Man, and The Age of Reason, insisted that “the religion of Deism is superior to the Christian religion,” because it “is free from those invented and torturing articles that shock our reason.” Paine explained that deism’s creed “is pure and sublimely simple. It believes in God, and there it rests. It honours Reason as the choicest gift of God to man” and “it avoids all presumptuous beliefs and rejects, as the fabulous inventions of men, all books pretending to revelation.” Paine dismissed Christianity as “a fable, which, for absurdity and extravagance, is not exceeded by anything that is to be found in the mythology of the ancients.” In Paine’s view, traditional Christianity had “served to corrupt and brutalize mankind.”

These words no doubt sound shockingly blunt and “politically incorrect” to modern ears, but they were in fact the views of many of our most revered Founders. The fable that the United States was founded as a Christian Nation is just that – a fable.

It is worth noting that the Declaration of Independence does not invoke Jesus, or Christ, or Our Father, or the Almighty, but the “Laws of Nature,” “Nature’s God,” the “Supreme Judge,” and “Divine Providence,” all phrases that belong to the tradition of deism. The Declaration of Independence is not a Puritan or Calvinist or Methodist or Baptist or Protestant or Catholic or Christian document, but a document of the Enlightenment. It is a statement that deeply and intentionally invokes the language of American deism. It is a document of its own time, and it speaks eloquently about what Americans of that time believed.

The Constitution goes even further. It does not invoke the deity at all. Unlike the Puritan documents of the early seventeenth century, it makes no reference whatever to God. It cites as its ultimate source of authority not “the command of God,” but “We the People,” the stated purpose of the Constitution is not to create a government “according to the will of God” but to “secure the Blessings of Liberty.” Significantly, the only reference to religion in the 1789 Constitution expressly prohibits the use of any religious test for public office.

The Founders were not anti-religion. They understood that religion could help nurture the public morality necessary to a self-governing society. But they also understood that religion was fundamentally a private and personal matter that had no place in the political life of a nation dedicated to the separation of church and state. They would have been appalled at the idea of the federal government sponsoring “faith-based” initiatives. They would have been quite happy to tolerate Mitt Romney’s Mormonism – as long as he keeps it out of our government.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

by Sahr MuhammedAlly, Senior Counsel with the Law & Security Program at Human Rights First, who is blogging from Guantanamo Bay (written on December 3)

December 3, 2007: The usual reporters and non-governmental organizations are traveling from Andrews Air Force Base to Guantánamo Bay, Cuba to observe the military commission hearing of Yemeni national Salim Ahmed Hamdan. Hamdan has been charged with providing military support to terrorists in Afghanistan and conspiring to aid terrorism.  He is accused of serving as a bodyguard and personal driver for Osama bin Ladin.

This is round two for Hamdan. Back in June, Judge Navy Captain Keith J. Allred dismissed the charges against Hamdan on jurisdictional grounds, concluding that the military had not found him to be an “unlawful enemy combatant.” A Combatant Status Review Tribunal (CSRT) had found him to be only an “enemy combatant.”

The government asked the judge to reconsider. Judge Allred obliged, noting that “the interests of justice are served by reopening the hearing” to determine whether the commission trial may get underway. The judge relied on a September 24 ruling by the Court of Military Commission Review (CMCR), created shortly after the June ruling, which held that a military judge is authorized to decide the jurisdictional issue by deciding whether the individual’s status should be deemed “unlawful.”

As I am preparing to leave, I scan the newspapers and read about terrorism prosecutions in the civilian system underway in Florida and New York—cases involving conspiracy and material support for terrorism. Yet I am traveling to observe the prosecution of these same charges in a military court rather than the civilian court system. This is one of the many concerns regarding the policy choices made by the government in its prosecution of the “war on terror.”

GTMO: Never a Dull Moment

Events at Guantánamo continue to capture headlines. One just never knows what to expect. On November 7, we learned that the prosecution in 21-year-old Omar Khadr’s case shared exculpatory evidence with the defense only two days prior to his arraignment when, at the same time, it was pushing for an evidentiary hearing on Khadr’s enemy combatant status! The defense claims the prosecution has known about the evidence since Khadr’s arrest in July 2002. Why the delay in disclosure?

That same day Wikileaks posted a confidential 2003 Camp Delta Standard Operating Procedures (SOP), which showed that, prior to 2004, military officials had a policy of denying detainees access to independent monitors from the International Committee of the Red Cross (ICRC). The manual said one goal was to “exploit the disorientation and disorganization felt by a newly arrived detainee,” by preventing them access to the ICRC. Some detainees had no contact of any kind with the ICRC, not even delivery of ICRC mail. A few lucky ones were allowed unrestricted access, but others were permitted only physical exams with “no form of communication.” In 2003, the ICRC publicly criticized the indefinite detention of detainees in Guantánamo and, in a confidential report, which was later leaked, found evidence of physical and psychological mistreatment of detainees.

This past weekend we learned that the military judge in the Khadr case has prohibited defense lawyers from disclosing the identity of all prosecution witnesses to their client. This will severely hamper Khadr’s ability to adequately defend himself. Protecting the identities of some witnesses in civilian court system has been done, but not the entire list of prosecution witnesses. Moreover, despite the government’s claim that the military proceedings are open to the public, except when classified information will be presented, we are now learning that lawyers are making some critical legal arguments in e-mail exchanges with the judge outside of public scrutiny.

December 5, 2007

I wonder what is in store for us on December 5. The government may present evidence of Hamdan’s alleged activities in Afghanistan in support of his enemy combatant designation. Almost six years later, neither the detainees nor the public have seen the primary evidence that forms the basis for detaining the 305 individuals left at Guantánamo (down from 700 plus in 2002).

December 5 is actually quite a busy day. In addition to the Hamdan hearing, the U.S. Supreme Court will hear oral arguments in Boumediene v. Bush.Boumediene challenges the constitutionality of the Military Commissions Act of 2006 (MCA), which expressly revoked the right of Guantánamo detainees to bring habeas corpus petitions.  Another event of interest will be the sentencing of Jose Padilla. Padilla was held incommunicado as an enemy combatant in military custody for three and a half years before being transferred to civilian court and convicted of providing material support for terrorism. Question: if Padilla was prosecuted in the civilian court system for material support of terrorism then why isn’t Hamdan, who is charged for the same offense, also being tried in a civilian court?

So back to December 5th. We will not only see the various puzzles of the government’s prosecution in the “war on terror,” but U.S. policies post September 11 will again be on trial.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

by Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College Law School & Distinguished Faculty Fellow, Center on Corporations, Law & Society, Seattle University School of Law

News from the world of science: a symptom of a certain kind of brain injury is that the victims end up thinking like economists.

Let me back up for a moment.

One of the most welcome developments in the legal academy over the last decade or so has been the decline of the law-and-economics movement.  Undoubtedly one of the most influential “law and” movements over the last quarter century, its first popularizers were heavily embedded in the neoclassical school of economics, which bases its predictions on the so-called “rational actor” theory of human behavior.  Humans are assumed to make choices based on a cost/benefit analysis, maximizing their own utility.  Adherents to law-and-economics theory have applied that assumption in crafting rules in areas as diverse as criminal law, corporate law, and family law. 

The problem, of course, is that the economists’ view of rationality is ridiculously narrow – so narrow that Judge Posner could admit in his Law & Economics text that “it would not be a solecism to speak of a rational frog.” 

Especially over the last decade or so, the neoclassical version of law and economics and the rational actor theory on which it is based has been attacked from several sides, both from within economics and without.  So-called behavioral economics has been especially influential, deconstructing the rational actor theory using insights from psychology, providing a much more sophisticated (if messier) account of human behavior.  These more sophisticated models of human behavior take into consideration bounded rationality, limited willpower, as well as a richer definition of self-interest.  Study of actual humans show that choices are malleable and easily manipulated, preferences can be created and destroyed, and individuals in fact make decisions based on emotions and principles other than utility maximization.

One of the paradigmatic “tests” that behavioralists use is the so-called ultimatum game, where one person is given an amount of money and told to propose a split with a partner.  If the partner rejects the proposed split as too low, neither person gets any money.  The economically “rational” thing for the partner to do is to accept any proposed split, since getting something is better than nothing.  But as it turns out, most partners reject deals they consider too unfair – they would rather get nothing than let the other person get an unfair amount.  These games have been tried throughout the world – I have tried them in my own classroom – and the results are remarkably consistent.

Another test that behaviorists use is to ask people to imagine their behavior is a range of hypotheticals.  One set asks about a runaway boxcar about to hit a group of five workers.  When asked whether they would flip a switch to divert the train onto another spur, killing just one worker, most people say that they would.  But when asked if they would push someone in front of the train to stop it from killing the five workers, most people say no.  The two are identical from a strict utilitarian point of view, but most human beings (me included) see a difference.

In this context, two recent New York Times articles caught my eye.  Both go beyond psychology to the actual physiology of the brain.  Jeffrey Rosen’s March 11 Times Magazine piece on “Neurolaw” referenced a “remarkable technique” called transcranial magnetic stimulation (TMS), which can stimulate or inhibit certain sections of the brain, temporarily altering what people think and feel.  Experimenters at the University of Zurich had people participate in ultimatum games, while TMS disrupted portions of their prefrontal cortex.  Subjects whose prefrontal cortexes were disrupted tended to accept low offers, while those subjects whose brain activity was not disrupted tended to reject them as insulting (as is typical).  The subjects whose brain activity was disrupted “were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.”

Even more fascinating was Benedict Carey’s March 22 article “Brain Injury Said to Affect Moral Choices.”  Scientists studying people who have suffered brain damage to a part of the prefrontal cortex have found that they make decisions with less compassion and with more utilitarian “rationality.”  The scientists asked the subjects questions such as the runaway boxcar hypothetical.  Those with the injuries were twice as likely as those with undamaged brains to push someone in front of the train.  The damaged area of the brain, the scientists hypothesize, “put a finger on the brain’s conscious, cost-benefit scale weighing moral dilemmas.”  Those without proper brain function in that area end up making decisions with a more “utilitarian cost-benefit analysis.”

These findings are almost too sweet for those of us who rail against the constrained view of human nature contained in the mainstream law-and-economics literature.  Those humans who think and act like economists predict are those who suffer from brain damage, or those for whom brain damage can be temporarily simulated.  To be fully human is to act with spite, compassion, confusion, love.  Economists may not understand this, but the rest of us do.  

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

by Cecillia Wang, senior staff attorney with the ACLU Immigrant's Rights Project

Visitors to the U.S. Naval Base at Guantanamo Bay always seem to be deeply affected by the journey. Many have mentioned the dissonance of American fast food joints on the island of Cuba and the palpable despair of the prisoners kept there by the United States government. For those of us who have not seen Guantanamo first-hand, the images in the media are equally searing.  In recent years, we’ve been seen photos of men in orange jumpsuits and blacked-out goggles, kneeling in cages, heads bowed, stripped of all identifying features and made to look other than human.

Before that, in the 1990s, there were the photos of small Haitian children huddled behind the barbed wire at Guantanamo, where they and other refugees were incarcerated after being plucked out of the sea by the U.S. Coast Guard. The United States government has long turned to Guantanamo when it wants to avoid compliance with the Constitution and other laws.

Tomorrow, Guantanamo will once again be in the spotlight, when the Supreme Court hears argument in the consolidated cases of Boumediene v. Bush and Al Odah v. United States. Judging from the three sets of petitioners’ briefs, the government’s brief, and about 26 amicus briefs, the world will be watching.

One side believes that the Executive Branch must be able to detain -- without judicial interference -- to save America from terrorism. The other side believes that the Administration’s detention policies will destroy the America's constitutional fabric. Everyone seems to agree on one thing: The future of the nation is at stake.

The issues in Boumediene are intellectually fascinating for lawyers, though they might cause a layperson’s eyes to glaze over. Did Congress intend to strip the courts of habeas jurisdiction over pending cases through section 7 of the Military Commissions Act? If so, does section 7 violate the Suspension Clause? Would the Guantanamo detainees have had a habeas remedy under the English common law as it stood in 1789?  Does the Suspension Clause protect only the scope of habeas as it stood in 1789, or will the Court take into account developments in U.S. habeas jurisprudence? Is the government’s Detainee Treatment Act procedure an adequate substitute for habeas review? Can a detainee rely upon a “non-self-executing” treaty through habeas corpus, notwithstanding section 5 of the Military Commissions Act? 

If you believe in the rule of law, if you believe that the Founders would have been shocked by executive detentions of the sort being carried out today at Guantanamo, if you believe in the wisdom of the laws of war that the United States and other nations developed in the aftermath of World War II, then the answers to those questions should be clear. And the petitioners in Boumediene should win.

But there is a scenario in which the petitioners could win, but the Constitution and the rule of law would still lose. 

In the decision on review in Boumediene, the D.C. Circuit made an ominous categorical statement about whether the Constitution applies “extraterritorially”: “[T]he Constitution does not confer rights on aliens without property or presence within the United States.” The parties in Boumediene and amici (including the ACLU) have explained in their briefs why that statement was inconsistent with precedent.  Among other things, as the petitioners point out, the D.C. Circuit defied the Supreme Court’s 2004 decision in Rasul v. Bush. There, the Court concluded that the habeas statute, 28 U.S.C. § 2241, conferred jurisdiction over petitions filed by Guantanamo detainees, rejecting the argument by the government that a presumption against extraterritorial application of U.S. statutes should apply. In doing so, the Court pointed out that the United States exercises “complete jurisdiction and control” over the naval base at Guantanamo and may continue to do so permanently if it chooses. The Court also stated that habeas corpus jurisdiction over the Guantanamo detainees’ claims was consistent with the historical reach of the common law writ, which permitted persons who were not subjects of the Crown to file habeas petitions if they were in dominions under Crown’s control. 

Indeed, as the petitioners and many amici have explained, the common law writ in 1789 would have extended to persons in the Guantanamo detainees’ shoes. But if the Court rules in the Boumediene petitioners’ favor on narrow grounds limited to the precise facts of Guantanamo, the most pernicious effects of the D.C. Circuit’s error will go unaddressed. What if U.S. officials engage in horrific abuses in places other than Guantanamo? This is no idle speculation, given what we know about “extraordinary renditions” and CIA black sites, and in light of rumors of the closing of the detention center at Guantanamo. Moreover, a narrow ruling in Boumediene that leaves the D.C. Circuit’s blanket no-rights rule in place would have a broader impact, beyond the context of the war on terror. Can the U.S. government have carte blanche to engage in the most extreme abuses of anyone who is not a U.S. citizen, so long as those abuses don’t take place on U.S. soil?

To avoid such a calamity, the ACLU has urged the Court to make a clear statement disavowing the D.C. Circuit's categorical rule that a non-citizen has no rights unless he or she has “property or presence” in the United States. Instead, the Court should adopt a flexible test to guide the lower courts in determining whether an asserted constitutional right applies in a given circumstance. In 1957, Justice Harlan outlined just such a test, suggesting that a constitutional right should apply outside the United States when it is not “altogether impracticable and anomalous” to do so. By adopting the “impracticable and anomalous” test in Boumediene, the Court would serve both national security and the rule of law.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

by Ana Avendano, Associate General Counsel, Director Immigrant Worker Program, AFL-CIO

Last week, the Bush Administration announced that it was changing its approach to “No-Match” letters in an attempt to meet concerns raised by a federal judge.

“No-match” letters are notices that the Social Security Administration (SSA) sends annually to employers who report a certain number of discrepancies between their employment records and SSA’s database. According to the SSA's website, the purpose of a letter is “to obtain corrected information to help SSA identify the individual to whom the earnings belong so that the earnings can be posted to the individual's earnings record.” This makes sense, given that the SSA was created as a safety net for working people, and allows an individual to keep an accurate record of one’s earnings and taxes. According to government records, 70 percent of discrepancies belong to native-born U.S. citizens.

“No-match” letters have long been used by employers to defeat worker organizing. Time after time, employers have used the letters as a pretext to fire workers when they try to organize, file a wage claim or otherwise exercise their workers’ rights.

On December 5, Jobs with Justice, along with partnered organizations, held a National Workers’ Rights Board Hearing concerning the SSA “No-Match” letters.

The Bush Administration adopted a rule in September that would require the SSA include a notice from the Department of Homeland Security along with the “No-Match” letters, instructing employers on the steps they need to take in response to the letter, including firing workers. 

The rule was one of several “immigration enforcement” initiatives announced by Department of Homeland Security (DHS) Secretary Michael Chertoff in August.  DHS created the public perception that employers who receive letters and don’t follow the new rule will be targeted for raids, audits or other enforcement actions.  That’s simply not accurate.  SSA cannot share the names of employers who receive “No-Match” letters with DHS, and therefore DHS cannot target those employers based upon the list.

The AFL-CIO, together with the American Civil Liberties Union and the National Immigration Law Center, the American Civil Liberties Union, and the National Immigration Law Center sued the DHS and SSA to prevent the new rule from being implemented.  The suit alleges that implementation of the DHS rule violates the Administrative Procedures Act, and will cause tens of thousands of authorized workers to suffer discrimination, including termination.

On August 29, Judge Maxine Chesney of the Northern District of California issued a temporary restraining order, and on October 10, Judge Charles Breyer issued a preliminary injunction against DHS and SSA, finding that the new rule “would result in irreparable harm to innocent workers and employers.” He noted that the letters would affect more than 8 million workers, and could “result in the termination of employment to lawfully employed workers.” He also recognized that SSA itself has conceded that it will not be able to correct all mismatches—even if the mismatch is the result of SSA error—within the period provided in the rule.

On November 23, the government asked the District Court to stay the proceedings while it modifies the rule to address Judge Breyer’s concerns, essentially admitting that the rule in its current form is unlawful.  The preliminary injunction will stay in place during the stay.

The injunction does not prevent SSA from sending out the old version of the 'No-Match" letters, absent the DHS insert. However, even in that form, the "no-match" letters have caused thousands of workers to lose their jobs, and have been used to quash union organizing.

As a result of President Bush’s announcement that the administration will look to revise the rule, a number of organizations have coalesced around the issue, including the AFL-CIO, Change to Win, Jobs with Justice, Interfaith Worker Justice, National Day Labor Organizing Network (NDLON), National Council of La Raza, National Employment Law Project (NELP), and the National Immigration Law Center.

The groups have announced that in the wake of a hearing regarding the effects of the letters, they will publish a report on the effect of SSA no-match letters.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

by Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School

The two big social issues that the Supreme Court confronted this Term were abortion, in Carhart v. Gonzales (Carhart II) and school integration in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (which decided cases from both Seattle and Louisville).  In both cases, it seems clear that the replacement of Justice O’Connor by Justice Alito made a decisive difference: Carhart II “circumruled” (the Court didn’t outright overrule) Stenberg v. Carhart, in which Justice O’Connor was the decisive fifth vote, on the question whether the government can ban a particular abortion procedure without providing an exception for cases where the pregnant woman's health is at stake, and to some extent Planned Parenthood v. Casey (in which Justice O’Cnnor was in the three-Justice bloc that determined the outcome), on the way in which the undue burden standard is to be used.

Parents Involved circumruled School Committee of Boston v. Board of Education and Swann v. Charlotte-Mecklenburg -- two venerable school desegregation precedents -- as well as Grutter v. Bollinger, the Michigan race-conscious admissions case, in which Justice O'Connor was again the crucial fifth vote. (One snarky aside: Parents Involved reads Grutter extremely narrowly, as a case about "diversity in higher education" -- one wonders, after the Chief Justice is done explaining an opinion he almost certainly would not have joined, and which the four remaining Justices who did join read in an entirely different way, why he didn't confine it further to "diversity at the University of Michigan Law School."  According to the Chief Justice, "universities occupy a special niche in our constitutional tradition" due to the "expansive freedoms of speech and thought associated with the university environment."  By contrast, in Morse v. Frederick, decided earlier this Term, the Court circumruled a series of cases recognizing that public school students also enjoy freedom of speech.)

Rather than rehash points that I imagine scores of other folks will be making, I want to focus on an additional similarity between Carhart II and Parents Involved before turning to a more specific doctrinal point: the utter gulf in language between the two sets of Justices.  In Carhart II, the majority repeatedly refers to the women involved as "mothers," the fetus as the "unborn child," and the doctors as "abortionists." By contrast, the dissenters use quite different language. Similarly, in Parents Involved, the plurality repeatedly refers to the school boards' goal as "racial balancing" -- with Justice Thomas going so far at one point as calling it "forced racial mixing" (which sounds far more like the Jim Crow era segregationists than anything modern -- as if any student had a legally cognizable interest in attending a monoracial school).  By contrast, Justice Kennedy and the dissenters use phrases like "working together," "integration," and "desegregation." As for differences between the two cases, why were the New Four Horsemen content in Carhart II to resolve ostensible uncertainty in the medical community over the health imperatives in favor of the government (in fact, the consensus cut entirely against the purported congressional findings) and against the substantive due process rights of the women involved – while in Parents Involved, Justice Thomas goes precisely the opposite way, claiming that because social scientists ostensibly disagree on the educational benefits of integrated educations, the government has no compelling interest that can override a student's interest in race-blind school assignments? Could it have more to do with values than with doctrinal frameworks?

The pivotal vote in Parents Involved is, of course, Justice Kennedy's.  And here, too, there's a similarity to Carhart II. In both cases, Justice Kennedy objects not so much to ends, but to means. His opinion for the Court in Carhart II does not challenge a woman's right to decide for herself whether to terminate a pregnancy, but he objects to her undergoing a procedure that disgusts him. He is confident -- without much empirical support -- that there are alternative procedures that would protect both the woman's right to choose and the government's interest in preserving a particular moral tone.  Similarly, in Parents Involved, Justice Kennedy's concurrence and concurrence in the judgment accepts -- indeed, celebrates and commits him to respecting -- the communities' desire to achieve racially integrated schools. He objects instead to the means they have chosen: race-conscious assignment of a relatively few students to attain, or maintain, integrated schools. Again he is confident -- without much empirical support -- that equally race-conscious, but less explicit, action could produce the same result.

This leads to my doctrinal point. The core of Justice Kennedy's opinion is his distinction between school board actions that look at individual students, on the one hand, and equally race-conscious, integration-pursuing actions that operate on a more wholesale level, on the other. The critical passage appears on pages 8-9 of the slip opinion:

"School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible."

Many folks, I imagine, will fasten on this passage as a roadmap for continued efforts to dismantle segregated schools and produce what Green so aptly called "just schools."  Of course, we should do that.  Justice Kennedy has rejected the enterprise of dismantling the ideal of integration or barring the government from pursuing equality through inclusion. Here, as with Justice Powell and Justice O'Connor before him, Justice Kennedy leaves open a variety of mechanisms for pursuing desegregation, and we need to assist the public, school boards, and lower courts to develop and reinforce these strategies.

I want to focus on something else: this passage illustrates why the entire enterprise of strict judicial scrutiny for racial classifications has turned out badly. As I’ve pointed out in earlier work, strict scrutiny was the consequence, not the cause, of the Warren Court's great antidiscrimination decisions. It wasn't until 1964, in McLaughlin v. Florida, that the Court applied what's come to be known as strict scrutiny and by then, the Court had essentially finished the job of eradicating explicit racial classifications. The reason for this is that the Court rejected the clearly discriminatory purposes behind the explicit racial classifications it confronted in the 1960's.  Does anyone seriously think that Virginia's criminalization of interracial marriage would have survived rationality review had that been used in Loving? Indeed, the only case I can think of where strict scrutiny has made a difference in protecting the rights of African Americans is the recent prison segregation case, Johnson v. California, and there Justices Scalia and Thomas would not have applied strict scrutiny because their commitment to deference to prison officials (who somehow seem more worthy of such respect than democratically elected school boards) outweighed their commitment to a color-blind Constitution.

Strict scrutiny has been essentially beside the point for the kind of equal protection cases African Americans and other persons of color have brought since its adoption. These cases usually involve challenges to facially neutral laws -- for example, the use of admissions tests that screen out minority applicants or the staggering disparities in criminal sentencing. In such cases, to trigger strict scrutiny, under Feeney v. Personnel Administrator of Massachusetts, plaintiffs must first prove that the government "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." But the Supreme Court has repeatedly recognized that "if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate, -- let alone a compelling, 'governmental interest.' " Proof of an invidious motive by itself strips a law of its presumptive legitimacy: once the plaintiff has shown a discriminatory purpose, the burden shifts to the defendants to prove that the law would have been enacted even without that purpose. As a practical matter, though, proof of an invidious intent to injure blacks or Hispanics is the ballgame. Few courts, having found that sort of malevolence, are likely to uphold a law even under rationality review.

On the other hand, strict scrutiny has proved invaluable in the assault on race-conscious affirmative action. That is perhaps what drives Justice Stevens in his dissent to reiterate his 'one equal protection clause' theory -- a theory that Justice Marshall, who must be spinning in his grave at the misappropriation and willful misreading of his arguments in Brown, also adopted. And it may also explain Justice Breyer's reshaping, in the principal dissent, of what strict scrutiny ought to mean in context.

Oh, everything has been turned upside down, when Justice Thomas can write that "if our history has taught us anything, it has taught us to beware of elites bearing racial theories," seeing popularly elected, community based schools boards as the 'elite' and casting himself and the other New Four Horseman as the true representatives of the people. But as the Chief Justice says, "history will be heard."  And it will not be kind to Parents Involved.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

by Anurima Bhargava, Assistant Counsel, NAACP Legal Defense & Educational Fund

One sees a great deal in 100 years. In 1907, Teddy Roosevelt was President, there were only 45 states in the union. And African Americans were locked into an ironclad system of injustice known as Jim Crow. This violent negation of democracy was secured by the Supreme Court decision in Plessy v. Ferguson and upheld by centuries of brutal custom. Only the most resilient optimist could foresee a day when access to education, public facilities, housing, jobs and transportation were not based on color-coded hierarchy, and the nation could realize a day such as the 53rd anniversary of the landmark Brown v. Board of Education decision.

Fortunately, Oliver Hill was one of those optimists. Hill, who turned 100 years old on May 1, 2007, not only witnessed the demise of that system, but he was one of the legal strategists who helped bring it down. He along with Thurgood Marshall, James Nabrit, Jack Greenberg and others were part of the legal team that brought an end to legalized segregation in 1954.

Time has a way of reducing even the most far-reaching moments of history into thumbnail sketches and in the case of Brown we see simply a case about segregated education. In reality, the Brown decision marked a legal turning point in which the 14th Amendment was returned to its true purpose. Crafted in the aftermath of the Civil War, the Amendment was intended to protect newly emancipated blacks from state laws that sought to virtually re-enslave them.  But a series of Supreme Court decisions culminating in Plessy v. Ferguson chipped away at the Amendment and left blacks nearly defenseless against resurgent racism, particularly in the Deep South. In short, achieving racial democracy in America meant finding a way to revive the spirit of that Amendment.

Inspired by their mentor Charles Hamilton Houston, Oliver Hill - and his classmate and close friend Thurgood Marshall understood this reality. When a group of black students marched out of R.R. Moton High School in Virginia to protest the dilapidated conditions of the building, Hill seized the opportunity to attack segregation. When the parents of eight year-old Linda Brown challenged the policy that sent her to a school miles away from her home simply because she was black, Marshall saw a chance to change the course of history. Joined by school desegregation cases from Delaware, South Carolina and Washington, D.C. that became collectively argued as Brown v. Board of Education, their 1954 Supreme Court victory opened more than the doors of schoolhouses.  It led to cases challenging racism in transportation, voting rights and housing. Brown provided a legal foundation that energized the Civil Rights Movement.

But again, one sees a great deal in a hundred years - not all of it pretty.

A half-century after the Brown decision, those groundbreaking contributions are in jeopardy of being undermined. Two generations of American children have matured with no knowledge of legally sanctioned apartheid in education. Although our school systems have not achieved the ideal of integration - many districts are more racially homogenous now than they were in the 1970s -- the days of legalized racial separation were banished to a dark corner of history. Or so we hoped.

Unfortunately, the worst elements of our nation's past are always threatening to resurrect themselves. Much of what Marshall and Hill accomplished may be undone by two cases that are currently before the Supreme Court. Recognizing the trend toward resegregation of public education, school districts in Louisville, Kentucky and Seattle, Washington adopted voluntary integration plans. For example, the Louisville school board weighed race along with numerous other factors like proximity and student preference and were still able to achieve a notable degree of diversity in their classrooms. Those plans are now under attack by organizations seeking to turn back the clock on racial progress in America.

If successful, the suits filed in Meredith v. Jefferson City Board of Education and Parents Involved in Community Schools v. the Seattle School District will severely hamper the ability of schools to diversify their student body. The result will be a world that looks disturbingly similar to the one that the Brown legal team was born into, one where democracy stops at the threshold of the classroom and the Constitution is a set of neglected principles. 

If successful, the lawsuits could mark the beginning of an era in which the 14th Amendment is once again diminished as a tool for creating equality in America. If Brown helped pave the way for the civil rights movement, undermining Brown will be a harbinger of bad days ahead of us.

In 2007, Oliver Hill has lived long enough to see this nation take a momentous step forward and then teeter backward -- and that is something that none of us, regardless of age, can afford to let happen.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

By Neil Kinkopf

Reports indicate that President Bush plans to respond to the deteriorating situation in Iraq by substantially increasing the number of American troops deployed there.  (BBC 1/2/07.)  According to these reports, the President will call for the nation to make sacrifices in support of this “surge” in troop levels.  The Constitution makes it quite clear that Congress may stop the President from imposing such sacrifices on the nation.  This decision is one that rests with our democratic process and is vested originally in Congress.

The President’s plan to escalate the war in Iraq is opposed by the overwhelming majority of Americans; only 11%, according to a recent CNN poll, believe we should send more troops to Iraq (CNN 12/18/06).  These views are evidently shared by the President’s strongest supporters.  Columnist Robert Novak’s survey of Senate Republicans shows that only 12 support escalation. (Washington Post 1/1/07)  And among the military, which has been a staunch supporter of the President’s Iraq policies, now only 35% approve of the President’s handling of the war and only 38% support escalation according to the annual poll conducted by The Military Times.  (Army Times 12/29/06)  Additionally, the Baker-Hamilton Commission makes emphatically clear that the President’s plan is in opposition to the only bipartisan consensus as to how to move forward in Iraq.

Congress Can Forbid the President from Escalating the Iraq War without Renewed Authorization

Even if the President does not submit his plan for congressional approval, Congress is constitutionally empowered to require him to do so.

The Constitution grants Congress extensive war powers – so extensive, in fact, that Chief Justice John Marshall once wrote that “The whole powers of war being, by the Constitution of the United States, vested in Congress, the Acts of that body can alone be resorted to as our guides ….”  (Talbot v. Seeman (1801).)  These powers include the power to declare war; grant letters of marque and reprisal; raise and support an army and navy; make rules for the government and regulation of the land and naval forces; provide for the calling forth of the militia; and to lay taxes and appropriate funds to provide for the common defense, with the proviso that no appropriation for such a purpose can be for more than two years.  The President is made the commander in chief and is authorized to appoint, with Senate confirmation, such military officers as Congress may by statute create.

This structure is an intentional departure from the British approach.  The King was set up, in Blackstone’s phrase, as the “generalissimo”; he was authorized to initiate and to prosecute war of any scope on his own authority.   Under the U.S. Constitution, by contrast, it is Congress that has the power to initiate and regulate war, while the President is authorized to command the resulting war effort.

As Commander in Chief, the President’s role is to prosecute the war that Congress has authorized.  The President may not go beyond this authorization. 

This understanding of the President’s power as Commander in Chief is plain enough from the text of the Constitution itself.  It has also been the consistent interpretation of the Courts.  Chief Justice John Marshall set forth this interpretation in a series of cases arising from the naval war with France.  Most notably, in Little v. Barreme, Chief Justice Marshall held that the President’s war powers are defined by statute and may not exceed statutory limits. 

In the naval war with France, Congress had authorized the U.S. navy to intercept vessels bound to, but not from, French ports.  In Little a U.S. navy ship, acting pursuant to a presidential order to intercept ships bound to or from French ports, intercepted a commercial vessel suspected of coming from a French port.  The Supreme Court ruled the action illegal because it went beyond the military force authorized by statute.

The Supreme Court has continued to adhere to this view of the war power.  In Youngstown Sheet & Tube Co. v. Sawyer (the famous Steel Seizure case), the Supreme Court struck down President Truman’s order that the nation’s steel mills continue operating in order to keep the troops in the Korean War armed.  Justice Jackson’s famous concurring opinion (which the Supreme Court has since held to set forth the proper view of presidential power) emphasized that the Constitution does not set forth exclusive power, but overlapping or shared power.  Where Congress and the President share power, as in the area of war power, the President is bound to comply with the statutes that Congress enacts.

Most recently, the Supreme Court has applied Justice Jackson’s framework to resolve challenges to President Bush’s assertions of commander-in-chief power.  In both Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006), the Supreme Court rejected the President’s assertion of unilateral authority to conduct military operations (in those cases dealing specifically with the detention and treatment of enemy combatants), holding instead that the President must comply with applicable statutory limits as well as applicable international law.  

The Supreme Court has been clear and unambiguous.  When Congress, acting in the vast areas of overlapping power, tells the President “no,” the President must comply.  Thus, Congress may limit the scope of the present Iraq War by either of two mechanisms.  First, it may directly define limits on the scope of that war—and forbid the President from exceeding these limits—such as by imposing a ceiling on the number of troops assigned to that conflict.  Second, it may achieve the same objective by enacting appropriations riders that limit the use of appropriated funds.  Indeed, the reason that the Constitution limits military appropriations to two years is to prevent Congress from abdicating its responsibility to oversee ongoing military engagements. 

The President Should Seek Congressional Assent for His New Iraq War Plans

The Constitution’s drafters understood the immense national sacrifice that war entails.  Moreover, they understood the advantages that would accrue to the President during times of war. For these reasons, the Constitution assigns Congress the power to initiate war and to define the parameters of military operations.   The Constitution’s structure, then, clearly contemplates that important decisions regarding the scale of war are to be made not by the President alone, but through the democratic process.  This is why the Constitution mandates Congress’s assent not only to the initiation of a war but to its size and scope. 

To be sure, Congress has authorized the war in Iraq.  As a legal matter, that authorization was drafted broadly enough to encompass the escalation that the President has in contemplation.  Nevertheless, the Iraq War authorization was made on the basis of false premises that go directly to the President’s case for his planned troop surge.   

• On behalf of the Bush Administration, Secretary Rumsfeld testified, against the advice of General Eric Shinseki, that the Iraq War could be successfully waged with troop levels at or below present number.
• Secretary Rumsfeld also said that the war would take “six days, six weeks. I doubt six months,” and that, quite the opposite of an insurrection, American and coalition forces would be greeted as liberators.
• Former Deputy Defense Secretary Paul Wolfowitz testified that the war would cost the nation very little, and that Iraq’s oil revenues would allow it to “finance its own reconstruction.”

The authorization for war in Iraq, then, was clearly premised on the Bush Administration’s representation that it would involve little or no sacrifice.  For President Bush to now unilaterally decide that the nation should make extreme sacrifices pursuing a plan that lacks support of the Congress (including his own party), the military, and the American people is a bait-and-switch exercise.  Such action would be contrary to the fundamental constitutional principles that demand public deliberation and assent before committing the nation’s people, treasury, and prestige to war on this new scale.  (This is so even though such action would not technically violate any rule of constitutional law, due to Congress’s authorization of the Iraq War.)

Before embarking on any escalation, the President should seek the assent of Congress and the American people.  If he will not, the American people should understand that Congress has the power to stop him.

Neil Kinkopf is an Associate Professor of Law at Georgia State University.  He served as a constitutional advisor to the Clinton Administration from 1993-1997 in the Department of Justice’s Office of Legal Counsel.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

by Kate Kendell Esq., Executive Director of National Center for Lesbian Rights

I am concerned that the deletion of express protection against discrimination based on gender identity from Employment Non-discrimination Act (ENDA) would result in a law that does not fully protect lesbians, gay men, and bisexual people in addition to leaving transgender people unprotected.  We are joined in this view by all of the other principal LGBT legal organizations, including the ACLU LGBT Project, Gay & Lesbian Advocates & Defenders, Lambda Legal and the Transgender Law Center. Collectively, our organizations have litigated more cases on behalf of lesbian, gay, bisexual, and transgender people in the United States than anyone else, including handling scores of employment discrimination cases over the past three decades.

Many have been working for the day when the federal government makes the workplace discrimination LGBT people face illegal since the first such proposal was introduced in Congress in 1976. But as much as we wish that day had already arrived, it will not do much good if all we get is a bill that would not protect the LGBT community’s basic rights. While the first version of ENDA introduced this year would have protected the LGBT community, the version introduced last week would not.

I see three significant problems with this weakened version of the bill:

1. Protections for transgender people were removed.
2. Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination.
3. The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections.

The removal of protection for transgender people, in addition to allowing continued discrimination against transgender people, would open the door to the court's weakening of statutory protections under ENDA for all members of the LGBT community. Over the past two decades, many federal courts—including the U.S. Supreme Court—have adopted astoundingly narrow constructions of anti-discrimination statutes. We would be foolish—and irresponsible—to ignore this body of case law as we are attempting to pass an effective statute that will protect members of the LGBT community from discrimination.

For example, although statutes prevent employers from discriminating based on national origin, courts have nevertheless interpreted those statutes to permit employers to discriminate against workers who speak with an accent associated with a particular country or region. Similarly, courts have interpreted race discrimination statutes narrowly to permit employers to discriminate against workers who wear hairstyles (such as braided hair) associated with a particular race. The basis for these decisions is that not all persons from other countries speak with an accent and that not all persons of a particular race wear a particular hairstyle. While we strongly disagree with the reasoning in these decisions, it, unfortunately, does not take a stretch of imagination to envision a court holding that a statute prohibiting only sexual orientation discrimination does not protect a butch lesbian or a feminine gay man because not all lesbians and gay men are gender non-conforming.

The U.S. Supreme Court itself adopted this kind of narrow analysis when it infamously held that discrimination based on pregnancy is not sex discrimination—since not all women are pregnant. Geduldig v. Aiello, 417 U.S. 484 (1974).

The inclusion of “actual or perceived sexual orientation” does not guarantee against an equally narrow interpretation of ENDA. For example, the Americans with Disabilities Act expressly protects those who are “regarded as” having a disability. Nonetheless, federal courts have construed this provision in an incredibly narrow way—namely, to exclude individuals who do not have a disability but are discriminated against because an employer believes they do. As a result, the “regarded as” provision in the ADA has largely been stripped of any real significance. There is little reason for confidence that federal courts will adopt a broad view of “perceived sexual orientation” to embrace gender non-conformity. Indeed, we fear that the opposite is much more likely.

This is particularly true since the question is not whether to include “gender identity” in the bill in the first place, but whether to remove it. As litigators are well aware, when Congress alters the language of a bill to make it more narrow, courts generally consider those alterations to be significant. Inevitably, some courts will seize upon the removal of “gender identity” as a reason to construe the new bill to exclude protections for those who are, or are perceived as being, gender non-conforming.

Unfortunately, Title VII—which prohibits sex discrimination by employers—cannot be guaranteed to fill the gaps left by the removal of an express prohibition on discrimination based on gender identity from ENDA. Despite decades of effort, we have not made nearly the progress we should have in getting federal courts to construe Title VII to prohibit discrimination based on an individual’s nonconformity to gender stereotypes, particularly outside of the context of harassment. While we will continue to press on this front, banking on Title VII to fill the gaps in the new ENDA is premature.

As Lambda Legal has pointed out, one recent example is Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). In Dawson, the plaintiff had a weak factual case, but what is significant is that the Dawson court expressed skepticism that Title VII necessarily prohibits discrimination based on gender non-conformity. The court stated that whether such discrimination is actionable under Title VII is still an open question in the Second Circuit.

A few commentators criticizing Lambda Legal’s analysis have demanded a “list” of state court decisions that have narrowly construed sexual orientation-only laws. Such a demand shows a fundamental misunderstanding of employment discrimination litigation. Only eight states have laws that prohibit only sexual orientation without also including gender identity, and there are very few published LGBT employment discrimination decisions in those states. We know from our own firsthand experience that LGB employees who have experienced discrimination that might be characterized as based on gender nonconformity have a very difficult time finding a lawyer to represent them in those states because of the uncertainty as to whether the law prohibits this type of discrimination.

Moreover, even if an LGBT employee finds a lawyer to file such a case, most employment discrimination cases settle and never result in an appeal that establishes precedent. Experienced lawyers thus have to read the case law not just for what it expressly states, but for what it shows is likely to happen in other litigation. What has happened in the federal courts under other anti-discrimination laws shows why we, Lambda Legal, the ACLU, GLAD, and the Transgender Law Center are deeply concerned about the inadequacy of a sexual orientation-only bill.

The blanket exemption for religious employers in the new version of ENDA is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections. Every federal civil rights law has a limited exemption for religious organizations. The 1964 Civil Rights Act says it is not illegal religious discrimination for a religious organization to give preferences to members of its own church. The Americans With Disabilities Act (the ADA) has a similar exemption, and also allows a religious organization to require employees to comply with its religious tenets.

The first version of ENDA this year had exemptions for churches and for jobs outside the church for ministers and religious teachers and administrators. It also allowed religious groups to require people who work for them in other jobs to comply with all the major tenets of the religion. But this first version of ENDA did not allow employers to refuse to hire someone just because of a religious objection to LGBT people. If employers chose to require adherence to religious tenets, their policy had to require compliance with all major tenets including those, for example, about marriage and divorce. Under this earlier version of ENDA, if employers such as hospitals and universities did not require adherence to all of their major religious tenets, they could not invoke the religious exemption only to single out and discriminate against LGBT people.

The newest version exempts all religious groups from the law completely. It is not a broad exemption; it is a total exemption. It would give religiously affiliated hospitals, social service agencies, shelters and universities complete freedom to discriminate against LGBT people.

Sincerely held religious belief has been used to justify segregation, race discrimination, sex discrimination, and discrimination against people with disabilities, not just in the 19th century, but within the last 25 years. And while the separation of church and state may require some accommodation of religious bodies, what is new about this latest version of ENDA and unacceptable is the idea that civil rights protections should completely give way to religious organizations. What people choose to believe, and how they choose to worship are their business, and the Constitution rightly keeps the government out of it. But when an employer uses religion to justify taking away a job from an orderly, custodian, secretary, social worker or doctor, the government has an overriding interest in preserving equal opportunity.

LGBT legal groups are right to oppose any version of ENDA that does not include protections against discrimination based on gender identity. For all practical purposes, we have one chance to pass a law that will effectively and adequately protect our community. Omitting transgender people from that law would be unprincipled and unfair. It would also be irrational, since doing so will also leave many lesbian, gay, and bisexual people without the secure protection they need against discrimination based on gender nonconformity. We can do much better, and we must.

ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.

This is the first in a series of six posts by Geoffrey R. Stone, professor of law at the University of Chicago Law School, on "Constitutional Vision."

Supreme Imbalance

We are now several weeks into the Supreme Court’s 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconced, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any indication of what is to come, we may be in for quite a ride.

In the media, we constantly read about how “closely divided” the Court is and about how many cases are decided by a vote of five-to-four. There are, according to the media, the “conservative” Justices – Scalia, Thomas, Roberts, and Alito; the “liberal” Justices – Stevens, Souter, Ginsburg, and Breyer; and Justice Kennedy -- the “man in the middle.” The impression created by such accounts is that this is an “evenly balanced” Court. This is a fallacy, and a dangerous one at that. What do we mean by “balance”? Why don’t the many five-to-four decisions prove that this is a “well-balanced” Court?

The Supreme Court has discretionary jurisdiction. It generally agrees to decide only the “hardest” cases. What are the “hardest” cases? Most often, they are the ones about which the Justices are divided. That, indeed, is largely what makes them “hard.” Thus, one can reasonably expect that the Supreme Court is most likely to hear those cases that will most sharply divide the Justices, because those are the cases about which the law is most uncertain. Even a Court consisting of nine Scalias or nine Ginsburgs would eventually wind up dividing five-to-four in the cases it agrees to decide, because it is the division within the Court itself that defines the cases that most demand the Court’s attention.

The important question, then, is not whether the Court often divides five-to-four, but where on the constitutional spectrum the decisive Justice sits. Depending on the makeup of the Court, that Justice might split the difference between Scalia and Thomas, on the one end, or she might split the difference between Brennan and Douglas, on the other.

Within any set of nine Justices, some will be relatively more “conservative” and some will be relatively more “liberal.” That they often divide five-to-four tells us nothing about “balance” and nothing about whether the Court as a whole is “liberal,” “conservative,” moderate, or whatever. It tells us only that the Justices often divide five-to-four, which tells us nothing about the Court as a whole.

The current Supreme Court is not “balanced” in any meaningful sense of that term. It is, in fact, an extremely conservative Court – more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

• Seven of the current nine Justices were appointed by Republican presidents.
• Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.
• Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.
• The so-called “swing vote” on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O’Connor to Kennedy.
• As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.
• If we regard Warren, Douglas, Brennan, and Marshall as the model of a “liberal” Justice, then there is no one within even hailing distance of a “liberal” Justice on the current Supreme Court.

In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

Now, I know I have been tossing around the terms “conservative” and “liberal” as if they have clear, well-defined meanings, when of course they do not. In my next post, I will clarify what I mean by these terms.

The second article will appear on Tuesday, November 6.

Over the next week, so that everyone (readers and bloggers) can concentrate on resting up for the new year, the ACSBlog will be on a short hiatus. But for those of you who can never get enough issue briefings, over the next twelve days we will run some of the more interesting guest blog posts from the last year. Regular blogging will resume on January 2.

It's been a great year for ACSBlog, including being named by the ABA Journal as one of the top 100 legal blogs (you can still vote here). We look forward to more great blogging next year. Finally, if you would like to financially support the American Constitution Society for Law and Policy, you can do so here.

Best wishes for a safe and happy new year.

The EPA will allow a new federal vehicle emissions law to preempt 16 states' existing or planned stringent emissions requirements despite the administration's ability to waive those requirements, CNN reported.

In response to the government's decision, California's Governor Arnold Schwarzenegger announced plans to sue the federal government to allow "a California plan to reduce greenhouse gas emissions."

The new federal law will increase fuel efficiency standards by 40 percent by 2020, requiring automakers to bring their fleets to an average of 35 miles per gallon.

The California plan, however, would cut emissions by nearly 30 percent by 2016, raising fuel efficiency standards in the state to 43.7 miles per gallon for passenger cars and some SUVs and trucks, while larger vehicles would need to reach 26.9 mpg by that year.

Simon Lazarus and Harper Jean Topic recently wrote an article discussing the changing use of federal preemption. ACS hosted a panel discussion last year that examined "how on many critical issues of the day, including marriage rights for same-sex couples, stem cell research, medical marijuana, state law tort claims, and economic and environmental regulation, many traditional proponents of state prerogatives have shifted stance to advocate federal preemption."

The Alliance for Justice has released a preliminary report on the nomination of Duncan Getchell to the United States Court of Appeals for the Fourth Circuit. AFJ writes:

No nominee comes to the Senate Judiciary Committee with a presumption of confirmation. As committee Chairman Patrick Leahy (D-VT) himself has stated, the Senate’s constitutional “advice and consent” role is a serious responsibility, by which “those 100 of us privileged to serve in the Senate are entrusted with protecting the rights of 280 million of our fellow citizens.” Therefore, the committee must thoroughly review each nomination in order to uphold the integrity of this constitutional duty.

Virginia Senators Warner and Webb considered and rejected E. Duncan Getchell for appointment to the Fourth Circuit. He has authored no published articles or speeches that shed light on his judicial philosophy. His long substantial litigation experience advocating on behalf of powerful corporate interests coupled with his actions in joining and remaining a member of the Commonwealth Club of Richmond, notorious for its past record of white-only membership and its current policy of men-only membership, and his dismissive treatment of caricatures of Native Americans strongly suggest a nominee who will not be dedicated to equal justice for all.

The White House has summarized Judge Getchell's qualifications, including:

Duncan Getchell, of Richmond, Virginia, is a highly accomplished and well-respected appellate lawyer who has litigated a wide range of cases at every level in state and federal courts.

Mr. Getchell has an outstanding record as a practicing attorney, particularly at the appellate level, and as a public servant.

Duncan Getchell is widely respected and recommended by Virginia lawyers.

Attorney General Michael Mukasey wrote in a memorandum that "only he and his deputy attorney general can initiate conversations with the White House about civil and most criminal cases – and then only to the president's counsel and deputy counsel. Only cases deemed necessary to the president's duties can be discussed," the AP reported. In addition, in some cases, the Associate Attorney General and Solicitor General may discuss civil lawsuits or legal appeals with the White House without getting prior approval.

According to the article, the memorandum "did not limit the discussions about national security cases, however, which Mukasey said should not be slowed by a bureaucratic approval process."

During President Clinton's two terms, the article noted, discussions on sensitive cases were limited to six people (two at the Department of Justice and four at the White House), but in the year after President Bush took office, the number of people was expanded to 459 (417 White House staff and 42 DoJ employees).

ACS held an event in October on principles to guide the Department of Justice under the next Attorney General, which included a discussion regarding limiting contacts between the White House and the Department of Justice. More information, including a discussion of the role of the Department of Justice, is available here.

The Guantanamo Military Commission has ruled that Salim Hamdan, bin Laden's former driver, may be tried by a military commission.

The Government has carried its burden of showing, by a preponderance of the evidence, that the accused [Salim Hamdan] is an alien unlawful enemy combatant, subject to the jurisdiction of a military commission. The Commission has separately conducted a status determination under Article 5 of the Third Geneva Convention, and determined by a preponderance of the evidence that he is not a lawful combatant or entitled to Prisoner of War Status. There being no Constitutional impediment to the Commission's exercise of jurisdiction over him, the Defense Motion to Dismiss for Lack of Jurisdiction is DENIED. The accused may be tried by military commission.

The AP has more coverage. Sahr MuhammedAlly, Senior Counsel with the Law & Security Program at Human Rights First, wrote about the two day hearings here: (preview) (day 1) (day 2).

On Tuesday, New York's Court of Appeals issued a 5-2 decision that held that a defendant can waive his right to have a 12-member jury in a criminal case, the New York Law Journal reported. This decision overturned the 1858 precedent Cancemi v. People.

The defendant had executed a written waiver of his right to a jury trial in open court, according to the article.