A new executive order stripping hundreds of federal workers of rights obtained through collective bargain drew sharp rebukes from Congress and unions. The White House claimed the order was justified because the workers excluded from collective bargaining  at departments, such as Justice, Energy, Homeland Security and Transportation are involved in “functions that are vital to the our national security.”

The National Treasury Employees Union blasted the Bush administration for issuing the last-minute order. NTEU President Colleen M. Kelley said in a press release that the order is “a gratuitous slap in the face that makes these employees feel both betrayed and insulted.” NTEU said more than 1,500 employees at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) lost rights they have “enjoyed for more than 30 years without incident or negative impact on the public.” The collective bargaining rules cover work hours, promotion, and scheduling. House Majority Leader Steny Hoyer (D-Md.) slammed the White House action, saying it amounted “to a power grab by the executive branch to undermine the rights of federal employees and workers throughout the country.”

I will not litigate here or there. I will not litigate anywhere. I do not like litigation. Unless of course, it would remove a Dr. Seuss holiday spot on a municipal plot in Louisville, Ky. The First Amendment Center’s Gene Policinski provides a decidedly Seussian look at a holiday display legal fracas in Louisville.

For the third time, the U.S. Supreme Court entertained oral argument in Phillip Morris USA’s challenge to a $79.5 million punitive damages award. Twice before, the high court has ordered the Oregon Supreme Court to reconsider the punitive damages award against the cigarette company. Twice the Oregon Supreme Court has found ways not to do so. Media reports said yesterday’s argument in Phillip Morris USA v. Williams was largely centered on ensuring that state courts followed U.S. Supreme Court directives. Fordham law professor Benjamin C. Zipursky told The New York Times that, “The Oregon Supreme Court really has continued to be defiant in this case.” But The Times and The Associated Press reported that some justices during oral argument didn’t seem to be troubled by the Oregon court’s latest ruling and cited Justice Stephen Breyer, who said, “I thought this was a runaround. I’m not sure I think that now.” Toward the end of yesterday’s arguments, it was also noted that Chief Justice John G. Roberts Jr. suggested that maybe the high court should just settle the matter itself by addressing and likely reducing the amount of the punitive damages award. 

Residents and a public-interest group have lodged a lawsuit against Kentucky officials over a law that requires the state Office of Homeland Security to acknowledge God as “being vital to the security of the Commonwealth.” The law passed in 2006 requires the Kentucky Office of Homeland Security to include in its reports and official communications an acknowledgment that God is necessary protect the state from terrorism as well as display a plaque with a similar claim at its headquarters. The lawsuit, filed in a state circuit court, says the law violates the separation of church and state provisions of the Kentucky and federal constitutions. Gov. Steve Beshear (D) said his administration would stand by the homeland security law. A spokesperson told the Louisville Courier-Journal that “the legislature has adopted this statute and it’s our obligation to follow it.”

Rep. Tom Riner (D-Louisville) sponsored the bill that established the security office’s nod to God. Riner, also a pastor of a Baptist church, said the religious sentitment was needed to battle those who are attempting “to separate America from its history as a nation that perceives itself as a nation under God.” Riner praised the governor’s stance, saying, “He understands as an attorney … that this is not a statement that is just for religious people, it’s a statement that we as Americans embrace.”

Edwin Kagin, a state attorney involved in the legal challenge to the law, noted that the First Amendment and the Kentucky Constitution includes principles of keeping government and religion separate. “This is one the most outrageous things I’ve seen in 35 years of practicing law. It’s breathtakingly unconstitutional,” Kagin told the Lexington Herald-Leader.

A coalition of environmental groups is dismayed over a last-minute Bush administration regulation that allows coal companies to dump debris from mountaintop mining into streams. The New York Times reported today that the regulation, “one of the most contentious of all the regulations emerging from the White House in President Bush’s last weeks in office,” was approved by the White House Office of Management and Budget and supported by the Environmental Protection Agency. Edwards C. Hopkins, a Sierra Club policy analyst, told the newspaper that the EPA’s “own scientists have concluded that dumping mining waste into streams devastates downstream water quality.” In a press release, Joan Mulhern, senior legislative counsel at Earthjustice, said, “Once again, the Environmental Protection Agency has failed to live up to its name. With less than two months left in power, the Bush administration is determined to cement its legacy as having the worst environmental record in history.”

The U.S. Supreme Court does not appear likely to accept the arguments from Massachusetts parents that their daughter’s public school district violated her civil liberties protected under the Civil Rights Act, according to analysis of yesterday’s argument in the case by The New York Times’ Adam Liptak. Liptak reported that justices appeared in agreement that bringing a legal challenge under the newer Title IX, which prohibits sex discrimination by schools receiving federal dollars, does not bar the parents from seeking remedy under the earlier Civil Rights Act. However, Liptak wrote that “several justices” also appeared ready to accept the fact that if the parents could not win under Title IX, they couldn’t win pursuant to Section 1983 of the Civil Rights Act.

For access to further discussion on an array of constitutional issues and other legal and judicial policy matters, the ABA Journal has published its second “BLAWG 100” list and the Masters in Criminal Justice Blog has provided a “Top 50 Constitutional Law Blogs” list. This blog is noted in the ABA’s “Legal Theory” section and Masters in Criminal Justice listed it under its “Official Blogs” header. The Masters in Criminal Justice Blog notes that you “don’t have to be a lawyer or involved in a civil suit” to understand constitutional law.

A Utah state senator with a track record of pushing policy that flaunts First Amendment principles is working on a resolution that would urge retailers in the state to wish their customers a “Merry Christmas,” during the holiday season. Sen. Chris Buttars (R-West Jordan), like Fox News’ Bill O’Reilly, is convinced there is a “war on Christmas” in the nation and believes lawmakers need to engage in the battle. “It would encourage the use of ‘Merry Christmas,’” Buttars told The Salt Lake Tribune about his forthcoming resolution. “I’m sick of the Christmas wars – we’re a Christian nation and ought to use the word.”

The newspaper noted that resolutions are not binding. Nonetheless, Salt Lake City attorney Brian Barnard told The Tribune that if Buttars' resolution makes the claim that the nation is a Christian one, it could make it constitutionally suspect. “If [Buttars] wants people to say ‘Merry Christmas’ because it’s a Christian thing to do, then it becomes a violation of the First Amendment,” he said. In 2006, Buttars pushed a bill attacking evolution and promoting other “theories regarding the origins of life….” According to The Tribune Buttars “has a long history of championing the socially conservative agenda of the Utah Eagle Forum.”

A new Health and Human Services (HHS) regulation would reach well beyond protecting physicians and nurses who refuse to provide abortions. The so-called “right of conscience” regulation that the Bush administration is working to implement before its term expires, is aimed at covering more healthcare workers who cite religious or moral objections to an array of medical procedures, such as abortions and artificial insemination, the Los Angeles Times reported. The newspaper noted that for more than 30 years, federal law has allowed physicians and nurses to refuse to provide abortions and that the new proposed regulation would apply to “any entity” receiving federal funds. According to HHS officials 584,000 entities, including hospitals, physician’s offices and pharmacies, may well be covered by the new rule, which the administration hopes to finalize before President-elect Barack Obama takes office in January. Additionally, the newspaper reported that the new regulation “would go further by making clear that healthcare workers also may refuse to provide information or advice to patients who might want an abortion.”

The newspaper noted that the new HHS regulation has received support from religious groups, such as the Christian Medical Association (CMA) and the U.S. Conference on Catholic Bishops. David Stevens, head of the CMA, told the Los Angeles Times that, “The real battle line is the morning-after pill. Doctors should not be required to dispense medication they have a moral objection to.”

Groups and institutions, such as the American Medical Association, the American Hospital Association and the American College of Obstetrics and Gynecology (ACOG) have argued against the new regulation, saying it places health workers’ religious beliefs before patients’ health. The ACOG’s Committee on Ethics wrote that, “Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients [or] negatively affect a patient’s health.”

The U.S. Supreme Court will not review of a case involving an accusation of bias against a West Virginia Supreme Court justice. The Associated Press reported that the high court refused to review a $260 million jury verdict against coal company Massey Energy. The company had urged the high court to review the jury verdict, arguing that West Virginia Supreme Court Justice Larry Starcher should have disqualified himself from a case involving the coal company because he had referred to its executive director, Don L. Blankenship, as a clown, evil and stupid. Earlier this year, the high court announced it would hear a case involving Massey. In that case, Caperton v. A.T. Massey Coal Company, Justice Brent D. Benjamin had also refused to disqualify himself from hearing cases involving the coal company even though he received more than $3 million from Blankenship to win his state Supreme Court seat. The high court must decide in the Caperton case whether the Constitution’s due process clause required Benjamin to recuse himself in a case involving Massey.  

ACS yesterday congratulated Eric H. Holder Jr., on being tapped by President-elect Barack Obama to serve as the nation’s next attorney general. Paul M. Smith, chair of the ACS Board of Directors and a partner at Jenner & Block, lauded the selection of Holder, a member of the ACS Board of Directors and former U.S. Deputy Attorney General. Smith said, “Eric Holder is a man of integrity and vision, who will restore the confidence that Americans should have in their Department of Justice. He will bring a renewed commitment to fulfilling the Department’s mission and mandate to provide justice and equal treatment to all Americans.” See the entire ACS press release here.

The BLT: The Blog of the Legal Times reported that “key senators” have signaled they would support Holder’s confirmation. The legal blog added that Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said Holder has the “potential to be an attorney general in the mold of Robert F. Kennedy.” In an interview with The New York Times, Holder, who attended Stuyvesant High School in New York City, said that during his youth, becoming attorney general “was not on his radar.” The article noted Holder’s academic and extracurricular successes at Stuyvesant. Former classmates told the newspaper that Holder’s “intellectual gifts and witty down-to-earth demeanor could propel him to high places.”

Last month, ACS’s former Executive Director Lisa Brown was selected by President-elect Obama to serve as White House Staff Secretary. See the Times’ profile, part of a series called “The New Team,” of Brown here.

The U.S. Supreme Court ruled today that a federal appeals court jury verdict can be challenged when the jury may have relied on an invalid instruction regarding guilt. In an unsigned opinion, “Per Curiam,” the high court in Hedgpeth v. Pulido remanded the case to the 9th U.S. Circuit Court of Appeals for “harmless error analysis,” reported Lyle Denniston for Scotusblog. The opinion in Hedgpeth is available here.  

A recent footnote in the Supreme Court’s decision in Exxon v. Baker, the ruling last term limiting the punitive damages Exxon owed victims of the 1989 Exxon Valdez oil spill in Alaska, has sparked serious questions about the use of empirical evidence in  punitive damage cases, reports The New York Times.

In his decision last June, Justice David H. Souter declined to rely on a study by University of California, Santa Barbara, Sociology professor William R. Freudenburg because it received funding during its early stages from the Exxon Mobil Corporation.   As the Justice wrote in the opinion’s now famous Footnote 17, “Because this research was funded in part by Exxon, we decline to rely on it.”

Exxon commissioned Freudenburg to author a report that would assess the effects of punitive damages.  Exxon ceased funding for the study early in the course of Freudenburg’s research when his initial findings did not sufficiently bolster the company’s case.

Since future Justice Louis Brandeis’s 1908 brief in Muller v. Oregon, the Supreme Court has regularly cited scientific studies to support its findings.  Justice Souter’s footnote may indicate that the Court is growing more reluctant to rely on such empirical studies, or at least those that are financed by parties to the case.

Another Florida judge has ruled that the state’s ban on gay adoption is unconstitutional. Miami-Dade Circuit Judge Cindy Lederman ruled earlier this week that there was “no rational basis” for barring gay men and lesbians from adopting children. Lederman’s ruling allows Frank Gill to adopt two boys he and his partner have been raising for four years, The Miami Herald reported. The newspaper noted that a state child abuse investigator had asked Gill to take temporary care of them.

In her 53-page opinion, Lederman said the state ban on gay adoptions precludes “otherwise qualified” lesbians and gay men “from adopting available children,” and “does not promote the interests of children.” The newspaper reported that state officials had argued that gays are “disproportionately more likely to suffer from mental illness or a substance abuse problem than straight people, rendering them less fit to parent ….”

Lederman cited extensive research supporting gay parents. “Based on evidence presented from experts from all over this country and abroad,” she wrote, “it is clear that sexual orientation is not a predictor of a person’s ability to parent. Sexual orientation no more leads to psychiatric disorders, alcohol and substance abuse, relationship instability, a lower life expectancy or sexual disorders than race, gender, socioeconomic class or any other demographic characteristic.”

Earlier this year, Monroe Circuit Judge David J. Audlin Jr., ruled that the state’s gay adoption ban violated the Florida Constitution, which prohibits targeting groups of people for punishment. “Contrary to every child welfare principle, the gay adoption ban operates as a conclusive or irrebuttable presumption that … it is never in the best interest of any adoptee to be adopted by a homosexual.”

The Miami Herald reported that the Florida Attorney General would appeal Lederman’s ruling.  

Arthur H. Bryant, executive director of Public Justice, details the numerous tools being used by American companies to shutter the nation’s courthouse doors to challenges against their products and treatment of consumers and workers. In a column for The Times, Bryant maintains that the legal doctrine of preemption, which “wipes out state law,” mandatory arbitration, which forces consumers or employees into arbitration, and bans on class action lawsuits are all ways to shield companies from being held accountable in court. All three actions to shut off access to justice must be thwarted, Bryant asserts.

Bryant writes:

We must stop the abuse and expansion of federal preemption, mandatory arbitration, and class action bans. Over a century ago, the Supreme Court said, “The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.” All Americans know this is true. In our country, the courts are the one place where even the poorest, most powerful person can hold the richest, most powerful person or corporation accountable. Extremely emotional and heated disputes are resolved non-violently in the courts every day. If they can’t be, they’ll be resolved in the streets – because our nation is violating the principles on which it’s based.

It doesn’t appear that a bump in pay for federal judges is coming anytime soon. The Legal Times’ Tony Mauro reported that the just-ended congressional lame duck session saw no action on the bills for judicial pay raises. Both chambers’ judiciary committees have approved pay increases, but according to the Legal Times, the recent financial crisis has helped avert any action to pass them. H. Thomas Wells Jr., president of the American Bar Association lamented the situation, telling the Legal Times that, “While many Americans are struggling financially today, few of us have jobs where we are routinely skipped over for even a routine cost of living increase and get no clear guidance on what we will earn in the year ahead.” The legal periodical noted that judges have received no cost-of-living increase for seven of the last 14 years.

Has a rise in hate-crimes and incidents occurred since the decisive presidential election of Barack Obama? The Chicago Tribune reported that since Obama’s election “a spasm of noose hangings, racist graffiti, vandalism and death threats is convulsing dozens of towns across the country ….” The article continued that more than “200 hate-related incidents, including cross-burnings, assassination betting pools and effigies of President-elect Barack Obama, have been reported so far, according to law-enforcement authorities and the Southern Poverty Law Center, which monitors hate groups.”

The Tribune article also noted that the Ku Klux Klan is seemingly resurfacing, citing a recent fatal incident in Louisiana where a woman was allegedly shot by a Klan leader after attempting to back out of an initiation ceremony. The FBI and Secret Service are also reportedly investigating Klan and hate-related incidents. Brian Levin, director of Center for the Study of Hate and Extremism at California State University in San Bernardino, told the newspaper that, “The rhetoric right now is just about out of control. When you get this depth of hatred, it usually is the smoke before the fire.”

A Virginia commission is set to advance proposals easing immigration policy in the state, The Washington Post reported. The Virginia Commission on Immigration will send within the coming weeks about a dozen recommendations, “most of which would help immigrants instead of penalizing them,” the newspaper reported. The commission, which was created by Gov. Timothy Kaine (D) and the General Assembly, will advance proposals for offering in-state tuition to immigrants, making it easier for immigrants to access Medicaid and opening and immigration assistance office.  

by Sharon Bradford Franklin, Senior Counsel, the Constitution Project

As recent news reports demonstrate, the incoming presidential administration faces pressure to support the creation of specialized national security courts. These courts would oversee criminal prosecutions of terrorist suspects, review and supervise a system of preventive detention for terrorist suspects, or both. Yielding to that pressure would be a mistake.

National security courts are unnecessary and pose a serious threat to constitutional rights. As the Constitution Project concluded in a white paper endorsed by a broad bipartisan group of experts, our traditional federal courts can meet the challenges posed by terrorism prosecutions.  Moreover, this consensus shows that the new administration and Congress should find broad support for resisting the pressure to establish national security courts.

Talk about activist courts. The Supreme Court of Georgia is actively pushing a statewide campaign to promote marriage. Through its Commission on Children, Marriage and Family Law, the Georgia Supreme Court is hosting dozens of billboards with messages such as, “Get Married, Stay Married” and sponsoring conferences, Law.com reported. The 48-foot-wide, 14-foot-tall billboards are part of the state supreme court’s effort to confront rising crime rates and divorce rates, according to Georgia Chief Justice Leah Ward Sears. Sears said she thinks the billboards, which also include the message, “Children do better with parents together,” can do “some good.” The state supreme court also recently conducted a conference on marriage that drew lawyers, social workers, clergy and therapists. “It’s our job to say to the Legislature, and to the executive, ‘we see and notice this,’” Sears said. “We do more than just read cases. We see a lot of human devastation. It’s my job to speak out.”

The Justice Department’s Office of Legal Counsel (OLC) garnered a great deal of media attention and notoriety for its role in advising President George W. Bush on controversial counterterrorism methods, including the use of harsh interrogations by the CIA.  

USA Today reports that President-elect Barack Obama’s Justice Department transition team includes key members who have previously worked in the OLC and have voiced strong concerns about the OLC’s legal advice to Bush, which many consider wobbly at best. For example, the newspaper reports that Indiana University law professor Dawn E. Johnsen, a leader on the Obama transition team, has been “among the most publicly critical of OLC’s backing of President Bush’s counterterrorism measures, particularly on interrogation techniques.”

The newspaper also notes that Johnsen, a member the ACS Board of Directors, provided Congress with ideas for restoring the OLC, which is charged with providing legal advice to the president to ensure compliance with the Constitution and federal law.

“Johnsen, joined by 18 other attorneys who had worked at OLC, offered Congress 10 principles for the office, including timely release of opinions that might conflict with federal law,” reports USA Today. “Three of the other attorneys, who signed the statement, including Harvard University’s David Barron, also are on Obama’s Justice and Civil Rights transition team.”  

Earlier this year, Johnsen testified before a Senate Judiciary Committee panel about the OLC’s role in providing legal advice to the Bush administration on counterterrorism issues. “OLC has been widely and deservedly criticized for the substance of its legal interpretations, which at least at times have not reflected principled, accurate assessments of applicable legal constraints, but instead were tainted by the Administration’s desired policy ends and overriding objective of expanding presidential power,” Johnsen said.

In an article that is part of a broad ACS package of proposals and ideas for reforming legal and justice policy in the new administration, Johnsen writes that the next administration must take steps to ensure that the OLC serves as check on presidential power, not as a rubberstamp.

“OLC’s charge is to help the President achieve desired policies in conformity with the law, and that often involves actively devising alternatives to a legally flawed proposal. Because the President makes the final call and bears ultimate responsibility for legal determinations as well as policy choices, OLC’s advice should fully inform the President, as well as other readers, and address strong arguments counter to its conclusions,” maintains Johnsen.   

See the ACS Law and Justice page for Johnsen’s entire article, “All the President’s Lawyers: How to Avoid Another ‘Torture Opinion’ Debacle,” along with the other articles in the ACS package, “A Fresh Start for a New Administration: Reforming Law and Justice Polices.”

A federal judge has ordered the release of five detainees from Guantánamo Bay. The ruling in the first habeas corpus proceeding involved six Algerians captured in Bosnia in 2001. At the time of their capture, the military maintained that the men were planning to go to Afghanistan to fight the U.S., and later President George W. Bush claimed they were plotting to bomb a U.S. embassy. Recently the Justice Department conceded the detainees could not be held on those accusations. Judge Richard J. Leon of the U.S. District Court in Washington, D.C. ruled today that the reasons, which were disclosed in private proceedings, for holding the men were “inconsistent with this court’s obligation,” and ordered their release “forthwith.” The New York Times reported that "some lawyers" suggested that it was likely the administration would appeal ruling. The newspaper also noted that last week the Justice Department lodged legal motions to halt more than 100 other habeas corpus cases from proceeding.

The California Supreme Court will hear legal challenges to the anti-gay marriage ballot measure approved by voters on Election Day. The state’s top court in a 2-page order said it would determine whether the ballot measure, which bans same-sex marriage, is an improper revision of the state’s constitution.

After the California Supreme Court ruled earlier this year that the state Constitution prohibits the state from banning gay and lesbian couples from marrying, a movement was sparked to place the anti-gay marriage ballot measure, Proposition 8, before voters. The Mormon church and socially conservative lobbying groups funneled large sums of money into promoting passage of Propisition 8. On Nov. 5, after its passage, the National Center for Lesbian Rights (NCLR), the ACLU and Lambda Legal, representing six couples and Equality California, filed a lawsuit challenging the constitutionality of the ballot measure. A similar lawsuit was also lodged by several California cities.

An NCLR press release states that the lawsuits “allege that, on its face, Proposition 8 is an improper revision rather than an amendment of the California Constitution because, in its very title, which was ‘Eliminates the right to marry for same-sex couples,’ the initiative eliminated an existing right only for a targeted minority. If permitted to stand, Proposition 8 would be the first time an initiative has successfully been used to change the California Constitution to take away an existing right only for a particular group. Such a change would defeat the very purpose of a constitution and fundamentally alter the role of the courts in protecting minority rights. According to the California Constitution, such a serious revision of our state Constitution cannot be enacted through a simple majority vote, but must first be approved by two-thirds of the Legislature.”

More coverage of the battle over marriage equality in California is available here and here.

Newsweek and CNN reported yesterday that President-elect Barack Obama has chosen Eric Holder, a deputy attorney general in the Clinton administration, to be the attorney general. Holder, a member of the ACS Board of Directors, has been on Obama’s short list for the slot, according to the news weekly. Holder was a keynote speaker at this year’s ACS national convention. During his speech before the ACS gathering, Holder said he United States must reverse “the disastrous course” set by the Bush administration in fighting terrorism by shuttering the military prison at Guantanamo Bay.

“Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more safe,” Holder told the ACS audience on June 13. “For the sake or our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.”

Video of Holder’s address is available here.

Newsweek reported that Holder “still has to undergo a formal ‘vetting’ review by the Obama transition team before the selection is final and is publicly announced ….”

Former U.S. Attorney General Gonzales facing a lawsuit over politicization of the Department of Justice has turned to a private attorney for representation. The decision reported by TPMMuckraker and McClatchy Newspapers, was approved by the DOJ and is likely to cost the taxpayers a lot more than the use of a public defender. According to the reports, typically attorneys from the DOJ’s Civil Rights Division represent employees who are sued in connection with their official capacities. McClatchy reported that the DOJ, however, had approved Gonzales’ request for private representation.

A report from the DOJ’s offices of Inspector General and Professional Responsibility said Gonzales’ DOJ set up a system that favored applicants with conservative ties over ones connected to progressive organizations, such as ACS, for internships and for the department’s honors program. A group of law students, represented by Dan Metcalfe, is suing Gonzales and other DOJ officials over the politicized hiring practices. Metcalfe, a former DOJ official, told McClatchy that the decision to provide private representation for Gonzales was “exceptional.”