Thursday, December 15, 2016

Commemorating the Bill of Rights

Bill of Rights

The Bill of Rights became effective 225 years ago today, and the importance of the ratification of ten of the twelve amendments to the Constitution proposed by the First Congress cannot be overstated. Increasingly through the course of our history, albeit brief, the first ten amendments have provided an essential foundation for the individual rights, freedom, and liberty that we often take for granted. 

The Bill of Rights must properly be understood as a check not just against government power directly, but also against the tyranny of the majority aligned on a certain political view, a religious sect, or belief about a social issue, which they will always attempt to impose on the minority through government action. James Madison addressed this very notion in a letter to Thomas Jefferson in 1788 discussing the pros and cons of a bill of rights:
In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly [sic] to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents. . . . What use then it may be asked can a bill of rights serve in popular Governments? . . . The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.
The Bill of Rights is the reason why no one can be compelled to worship, to recite the pledge of allegiance, to incriminate themselves, to be tried without a lawyer, to be subjected to unreasonable searches and seizures, or to surrender their property without compensation, to name just a few. 

It is no accident that we owe the Bill of Rights not to the Federalists, who supported the strong federal government embodied in the Constitution, but rather to the Anti-Federalists, who were opposed to a strong central government and wanted more protections for the States and individuals than were provided. Essentially, the addition of the Bill of Rights arose from a compromise during the ratification period starting at the Massachusetts Ratification Convention in 1788, when the delegates agreed to ratification on the express understanding that amendments addressing their concerns would be forthcoming. Several other States thereafter took this same approach, and it became clear that a Bill of Rights would be prepared. It is ironic that we owe these fundamental protections to a group of people opposed to the Constitution as drafted by the Convention.

So you might be wondering what happened to the two proposed amendments (the first two listed in the resolution sent to the States) that were not ratified in 1791. One, addressing a formula for determining the size of the House of Representatives, is still technically pending, and the other, addressing congressional salaries, was finally ratified in 1992. On a related note, one sometimes hears that the First Amendment was listed "first" because it was considered the most important. But now you know the truth -- it is "first" only because the first two proposed amendments preceding it failed to achieve ratification when proposed. If you look closely at the document you will see that “Article the third” is what we know as the First Amendment. 

Sunday, December 11, 2016

A Crash Course in the Electoral College

The Electoral College Helps Keep the States "United"

Official Tally of Electoral Votes, Election of 1800 

Here we are just about halfway between election day and the inauguration, and once again many questions are being raised about why we choose Presidents through the Electoral College -- including the assertion that the countrywide popular vote is the only legitimate way to elect a President. 

What is the Electoral College and Why Was it Created? 

The Electoral College is not a school; it is the process set forth in the Constitution for electing Presidents. The Constitution prescribes the process in Article II, Section 1, as amended by the 12th Amendment. 

Here is how it works in a nutshell:
  • Each state appoints electors -- in the manner it chooses -- equal in total to the number of Senators and Representatives it has in Congress, but none of them (or any government officer) can be an elector; 
  • The appointed electors then meet in their own states to vote; 
  • The lists of each state's votes are transmitted to the President of the Senate (the current Vice-President) and others; and
  • The votes are counted before Congress in joint session, and the person with a majority of the electoral votes is elected President. If no one has a majority, the President is chosen by the House of Representatives. (More on that and the origin of the 12th Amendment below.)

Tuesday, November 22, 2016

Pardon Me, Mr. President: The Presidential Pardon Power

Presidential Pardons Wipe The Slate Clean

President Ford Announcing Nixon Pardon
Questions have been swirling around the potential for Hillary Clinton and others to be pardoned in light of Emailgate and the revelation of an FBI investigation into the Clinton Foundation. If Hillary had been elected, could she have pardoned herself? Can the President pardon someone only after a conviction, or can he do so even prior to the person being charged? 

The power of the President to grant pardons is extremely broad. Article II, Section 2, of the Constitution provides as follows: "The President shall . . . have Power to grant . . . Pardons for Offences against the United States, except in Cases of Impeachment." The key elements are that (i) the offense must be against the United States (no pardons for state or local law offenses) and (ii) an actual offense must have occurred, as opposed to an advance pardon for future potential offenses. Neither the courts nor Congress may review pardons, and the President need not even provide a reason when he grants one.

Monday, October 31, 2016

Navigating the Intersection of Privacy and Free Speech: How Grand Theft Auto V Sped Right Past Lindsay Lohan’s Privacy Lawsuit

Court Finds New York Privacy Statute a Roadblock to Recovery

Should the law protect your right to control or exploit the use of your likeness? If so, are there exceptions to accommodate free speech rights? A recent decision by a New York appellate court highlights the tension between an individual's right to his or her image or likeness and the strong protections for free speech embodied in the First Amendment. 

A few years ago, Lindsay Lohan sued Take-Two Interactive Software and its subsidiary, Rockstar Games, developer of the action adventure video game Grand Theft Auto V. She claimed that her likeness, persona, and image -- including her clothing style, physical appearance, jewelry, phone, and signature peace sign -- were used in the game, all without her permission and in violation of her privacy rights under New York law. GTA V, as it is commonly known, is an extremely popular video game (albeit very controversial, hence its M for Mature rating) and part of a series that has sold over 200 million copies. The fictional storyline of the game involves the player in a world filled with opportunities to engage in criminal wrongdoing and misadventure. It is set in the city of Los Santos, in a fictional state called San Andreas.

The court evaluated Lohan’s claim under a well-known New York statute that bears the title “Right of privacy.” Under this law, which is over 100 years old, it is a misdemeanor to use, without prior permission, “the name, portrait or picture of any living person” for advertising or trade, and a related section authorizes the injured party to seek money damages and an injunction. The law originally was enacted in direct response to a much-criticized decision by New York’s highest court in 1902. That decision rejected a claim of privacy in a case that presented a set of facts that were egregious: Abigail Roberson, the plaintiff, was a young woman who -- without ever being asked permission -- found her image on thousands of posters advertising for a local flour mill. While the lower court ruled in her favor, the Court of Appeals refused to adopt a right to privacy because, in its view, such a right historically was not part of the common law (the decisions handed down by judges that form precedent for future cases) and, if adopted, an endless series of claims might ensue. The court acknowledged that the legislature could create such a right by statute, which the legislators did the following year. The privacy statute remains the exclusive source of this type of privacy right in New York. Courts have continued to restrict recovery to the statute, as opposed to other states that have developed more expansive common law protection.

Saturday, September 17, 2016

September 17, 1787: A Brief Look Back at Compromise 229 Years Later

Compromise Was a Key Factor That Produced the Constitution: Our Political Leaders Should Pause and Reflect on Its Example

Howard Christy's Painting Hanging in the U.S. Capitol
After several months of robust debate, extensive negotiation, and genuine compromise, it was on this day in 1787 that the Constitution was signed. The Constitutional Convention was filled daily with passion, harsh disagreement, and lack of unanimity. The very process of forging this document among numerous competing interests, such as small versus large States, Federalists versus Anti-Federalists, and agrarian versus industrial, was a monumental task. But in the end the delegates compromised on numerous issues and produced a document that governs us to this day. One notable exception, of course, is the ill-fated compromise regarding slavery and citizenship, ultimately remedied by our brutal Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments.

Sunday, August 21, 2016

Outlook for Hilary Clinton’s Email Troubles: Not Scheduled for Deletion Anytime Soon

This past week's developments demonstrate that Hilary Clinton's email troubles are not going away anytime soon.

The FBI Delivered Materials to Congress, and That Can’t Make Her Happy

Last week the FBI delivered interview summaries and related materials to Congress. Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, wants the unclassified materials released to the public. As he stated on his website, “[t]he public’s business ought to be public, with few exceptions.” My guess is that this is an issue that Republicans will pursue with zeal.

The General Made Me Do It

Near the end of my July 8 post regarding Hilary Clinton’s escape from criminal charges for Emailgate, I mentioned Colin Powell as one of several reasons why she was not charged. As I wrote, “does anyone think Director Comey would bring a case against you that might suggest indirectly that Powell acted improperly?” And now a New York Times article reports that during her FBI interview, Clinton stated that Colin Powell told her to use personal email. The article also details an alleged 2009 email exchange about Powell’s email practices at State and a dinner party at which he allegedly gave the advice.

Saturday, July 30, 2016

Supreme Court Prescription to Settle Contraceptive Mandate Cases Remains Unfilled: Prognosis Uncertain

Government’s Latest Move Shifts Case from the Extraordinary to the Extrajudicial 

In my post of June 14 I was highly critical of the Supreme Court’s extraordinary decision in Zubik v. Burwell. Little did I know that the process would go from bad to worse. In an abdication of judicial responsibility, the parties were directed to settle their dispute about whether the Affordable Care Act’s (ACA) contraceptive mandate violates the freedom of religion of faith-based groups. The Court vacated the rulings of the courts of appeals and instructed these courts to “allow the parties sufficient time to resolve any outstanding issues between them.” Recently the defendants -- in the middle of the settlement discussions -- issued a formal Request for Information (RFI) via the Federal Register to solicit ideas on resolving this matter from anyone who has any ideas that might be helpful -- including the plaintiffs in these very cases. The cases originally were brought in federal court because plaintiffs believed that government agencies were violating their rights under the Religious Freedom Restoration Act, and now these agencies are asking for public comments from interested parties, including the plaintiffs, about how to resolve the dispute!

Wednesday, July 13, 2016

U.S. Appeals Court Sacks Brady's Petition for Deflategate Rehearing

With Time Running Out, Final Play at Supreme Court 

After losing to the NFL on appeal April 25, as reported in my post that day, the Court of Appeals today denied Tom Brady's petition for rehearingThis was expected, as rehearings typically are denied. While I previously stated that rehearing en banc and Supreme Court review are the legal equivalent of a Hail Mary pass, the truth is that Supreme Court review in a civil case like this, in which the government is not a party, is more like a quarterback completing a 100 yard pass in a nighttime blizzard. As he petitions for Supreme Court review, a process that will last several months, Brady can seek a stay of his suspension

Friday, July 8, 2016

You’ve Got Mail: Why Emailgate Ended This Way


To:       07/07/2016 04:27 PM      

From: The Conversational Lawyer 

Re: Emailgate – Why Did It End This Way?

No doubt you are breathing a big sigh of relief. After all this time, a scathing State Department inspector general report in May, and a lengthy statement by the FBI Director Tuesday that sounded like it would end with "and that is why the Bureau is recommending that Secretary Clinton be charged," you will not be charged with a crime after all. Attorney General Lynch confirmed that late Wednesday. 

The question everyone (but you) is asking is this: How did you avoid being charged? In trying to answer this question, I thought it would be useful to review the applicable law, the inspector general findings, the FBI findings, and some other high profile cases. My conclusion is at the end of this message.

The LawThe primary criminal law that was at issue, 18 U.S.C. §793(f), was originally part of the Espionage Act of 1917. It provides in part as follows:

§793. Gathering, transmitting or losing defense information
. . .
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, . . .
Shall be fined under this title or imprisoned not more than ten years, or both.
The legal question comes down to this: Did your use of private servers and overall treatment of official email constitute a violation of this law? Keep in mind that unlike other subsections of §793, there is no intent or knowledge requirement; rather, gross negligence constitutes a violation. As you know, gross negligence is a term that comes from tort law. Negligence is generally defined as the failure to exercise the due care that a reasonable person would exercise under the circumstances. Gross negligence is defined in many ways, but typically is thought of as extreme or reckless negligence. In looking at Merriam-Webster’s online dictionary, I note that the first synonym for negligence is carelessness, and based on my experience, I do not see any difference between gross negligence and extreme carelessness. That may explain why the FBI Director said you engaged in extreme carelessness – that way he could say you technically did not violate the law but really did (see below).

State Department ReportI hate to bring this up, but remember what the State Department Inspector General (IG) had to say when he issued a lengthy report highly critical of the handling of emails and cybersecurity at State generally, including by you? The media focused largely on the portions concerning your tenure. Of note is the fact that you declined even to be interviewed. Perhaps most damning was the IG finding that there was no evidence you ever “requested or obtained guidance or approval to conduct official business via a personal email account on [your] private server.” As the IG report states, you “had an obligation to discuss using [your] personal email account to conduct official business” – although Department officials stated that they would not have approved your use of a personal email account to conduct State Department business. The FBI seems not to have focused on this issue at all, which is probably a good thing for you since the facts are a bit inconvenient here.

FBI FindingsThe FBI concluded as follows, as set forth in the written statement issued by Director Comey: 

  • You used several different servers, not just one, as well as several mobile devices, to communicate State Department business by email on a personal domain. 
  • While you turned over approximately 30,000 emails in 2014, the FBI located several thousand more.
  • Of the 30,000 emails, 110 emails in 52 chains contained classified information; 8 chains contained Top Secret information; 36 chains contained Secret information; and 8 contained Confidential information.
On the ultimate issue of whether a crime was committed, the FBI stated as follows:
  • “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
  • “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).”
  • “None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.”
The FBI also concluded it is possible that hostile actors obtained access to your email.

As noted above, the end of the Director’s statement was a surprise – clearly in a good way for you – when he announced that, “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” 

Thank goodness for prosecutorial discretion, right?

Similar Cases That Might Have Hurt You  But Did NotTwo CIA Directors had trouble with classified information as well, but both of them (unlike you) were the subject of criminal charges. These cases could have been used as precedent against you. In 2015, former CIA Director David Petraeus agreed to plead guilty to a misdemeanor charge of mishandling classified materials, for which he received probation and a $100,000 fine. And in 1996, your husband’s CIA Director, John Deutch, resigned from his position after it was disclosed that he stored highly classified information on his home computer. Subsequently, Deutch agreed to plead guilty to a misdemeanor and pay a $5,000 fine; however, your husband pardoned him on his last day in office before the case was filed.

Wonder why those cases were not seen as relevant? Me too.

ConclusionSo why do I think you got a pass? A few reasons.

1. Too Big to Charge. As some banks are too big to fail, maybe some people are too big to charge. Being the presumptive Democratic nominee may have been the saving grace. No way the FBI Director wanted to be seen tying you up in a criminal case as you run for President.

2. Not a Clear Winner. The FBI Director is a former prosecutor and, like all prosecutors, he only wants to bring winning cases and likes it when defendants take a plea. Your story about wanting to shield your personal life is believable and a jury might very well accept that rationale. By the way, nice move having Huma lay that rationale out there in her recent deposition!

3. Not a Traitor. No one seriously believes that you were trying to aid our enemies or were even thinking that any of this could hurt the country. No, they know you well enough to understand that you were only worried about yourself. Careless yes; intent to harm the nation, no. Of course, while the statute has no intent requirement, it was still a factor.

4. Colin Powell. What does he have to do with this, you ask? Here is what the IG had to say:

Secretary Powell has publicly stated that, during his tenure as Secretary, he “installed a laptop computer on a private line” and that he used the laptop to send emails via his personal email account to his “principal assistants, individual ambassadors, and foreign minister colleagues.” Secretary Powell's representative advised the Department in 2015 that he did not retain those emails or make printed copies. Secretary Powell has also publicly stated that he generally sent emails to his staff via their State Department email addresses but that he personally does not know whether the Department captured those emails on its servers.
So Colin Powell used his own computer to conduct official business as Secretary of State, did not retain emails, and does not know if they exist. Admittedly, the rules at the State Department tightened up before you arrived, but does anyone think Director Comey would bring a case against you that might suggest indirectly that Powell acted improperly? 

5. Finally, as Tom Petty says, You Got Lucky

*     *     *     *     *

A few more things, although you probably thought of most of these because of your work on Watergate:

If you do win in November, you might want to check the oval office to make sure that Nixon's tape recorders were really removed, have the White House plumbers standing by in case of any leaks, call an exterminator to deal with bugs . . . and please, only use Snapchat for personal matters. 

Monday, July 4, 2016

Independence Day

A Brief Look Back -- 240 Years Later

Did you know that the Continental Congress actually declared independence from Great Britain on July 2? It did; and in a letter to Abigail from Philadelphia the next day, John Adams wrote: “The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival.”

Indeed, the July 2 Congressional resolution was used in the last section of the Declaration of Independence, and states as follows: “That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved . . . .” We celebrate July 4 as it is the day Congress adopted the formal and lengthier written Declaration.

Congress appointed a committee to draft the Declaration. As stated on his tombstone at Monticello, Thomas Jefferson, a committee member, was the author. But Jefferson, being the humble statesman that he was, originally wanted Adams to take the lead in drafting. In an 1822 letter to Timothy Pickering, Adams described how it was that Jefferson came to take the lead:
Jefferson proposed to me to make the draught. I said I will not; You shall do it. Oh No! Why will you not? You ought to do it. I will not. Why? Reasons enough. What can be your reasons? Reason 1st. You are a Virginian, and Virginia ought to appear at the head of this business. Reason 2d. I am obnoxious, suspected and unpopular; You are very much otherwise. Reason 3d: You can write ten times better than I can. “Well,” said Jefferson, “if you are decided I will do as well as I can.” 
Celebrating today, we must remember that this enterprise was fraught with great peril. In his July 3 letter to Abigail foretelling the celebrations to come, Adams also recognized the challenges that lay ahead.
You will think me transported with Enthusiasm but I am not. -- I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. -- Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. 
Adams and Jefferson both died on July 4, 1826, the 50th anniversary of the Declaration. Legend has it that the last words of Adams were that Jefferson survives, but Jefferson actually died a few hours earlier.

The official transcription of the Declaration at the National Archives is here

Tuesday, June 28, 2016

The Song Remains the Same: Jury Finds for Led Zeppelin in Stairway to Heaven Case

Copyright Suit Fails To Take Off, But Zeppelin Is Flying High

A federal court jury in Los Angeles last week found in favor of Robert Plant and Jimmy Page of Led Zeppelin, concluding that the iconic rock anthem Stairway to Heaven did not infringe the copyright of the song Taurus by the band Spirit.

Under copyright law, an author of an original work of expression who sets it down in a tangible medium (like a book, a recording, a movie, or even a blog post) has exclusive rights to exploit that work during the term of the copyright. The key issues for this lawsuit were whether Led Zeppelin had access to Taurus and copied from it, and thereby infringed the copyright holder's exclusive rights. While the jury found there was access, they found that there was no prohibited copying. (For more on copyright law, the U.S. Copyright Office has a good primer here.)

While the verdict was welcomed by the defendants, I am sure that they were not too excited about going to California for the trial, especially after the judge ruled prior to trial that although the two songs were not strikingly similar, a jury could conclude that they had access to Taurus and that the songs were substantially similar. Had they lost it would have been a real heartbreaker, but instead the day of the jury verdict was a celebration day.

The suit presented some interesting facts. First, the Taurus songwriter made the claim in the early 1990s that Led Zeppelin used the song but never brought suit. It was his estate that filed the suit in 2014, after the Supreme Court ruled that copyright infringement cases could proceed even after long delays. Second, the recording itself was not at issue, only the musical composition, as the copyright law did not protect sound recordings at the time. Third, there was testimony that the two bands had appeared on the same concert bill on a few occasions. Fourth, Jimmy Page admitted that he owned a copy of the album that contained Taurus.

The judge allowed the claim to go to trial because he found there was enough "similar protectable expression" in the first two minutes of each song to allow a jury to assess if they were substantially similar -- which the jurors did not find. At least to my untrained ear, they sound quite similar starting about 44 seconds into Taurus. In fairness, Stairway to Heaven clocks in at about 8 minutes and Taurus at about 2 minutes, 37 seconds. In other words, viewed as a whole, Zeppelin's song -- the Moby Dick of classic rock and roll anthems -- has a lot more to it than the classic opening. Want to listen for yourself? Here are links to Stairway to Heaven and Taurus:

This scenario is not atypical in music, and the case law is replete with similar claims of copying. I recall a famous musician saying years ago that there are only so many chords and so many ways to arrange them. And like all art, music inspires others; indeed, some songs are intended to pay homage to the original. The infringement occurs, however, when the line is crossed from inspiration and homage to copying. 

How many times have you listened to a song and thought that it sounded like another song? Tom Petty described this phenomenon last year, when word emerged that Sam Smith had agreed to credit Petty and Jeff Lynne of ELO for songwriting on Smith's hit song Stay With Me because it sounded like Petty's hit I Won't Back Down. Here is what he had to say:
About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam. All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam's people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. And no more was to be said about it. How it got out to the press is beyond Sam or myself. Sam did the right thing and I have thought no more about this. A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all.
One of the more famous copyright cases involving music is the suit against George Harrison claiming that his 1970 solo breakout hit, My Sweet Lord, infringed the copyright of the 1962 hit He's So Fine by the Chiffons. Harrison went on to lose the case and was found liable for "subconscious infringement." Here is what the judge said:
Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.
In response to his experience, Harrison wrote This Song, which provides his take on the affair. It is a fun song and commentary, and here it is:

By the way, I was going to title this blog post "And Now for Something Completely Different," but I was not sure if Monty Python would claim copyright infringement and sue me. . . .

Tuesday, June 21, 2016

The Constitution Was Established On This Day In 1788

Constitution Day is celebrated on September 17, the day in 1787 when the Delegates to the Constitutional Convention in Philadelphia signed the Constitution. But did you know that the Constitution became effective 228 years ago today, on June 21, 1788? That is the day it was ratified by New Hampshire, the ninth state to do so and the deciding vote needed to make it effective. Thus today is the day we should actually recognize the Constitution, because its ratification was by no means assured. 

The Constitution grew out of efforts to revise the Articles of Confederation, which had serious defects and created a weak confederation of what George Washington described as “[t]hirteen Sovereignties pulling against each other. . . .” The need for unanimity to amend the Articles was one of its defects, so the Framers avoided the need for ratification by all the States. In order for the Constitution to become effective, Article VII provided that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” 

Ratification was no easy task. During the ratification period a series of amendments that we know as the Bill of Rights were promised to win over several States. In addition, the celebrated Federalist Papers were actually a series of essays promoting ratification published in New York newspapers. New Hampshire’s ratification put pressure on the remaining four States, but the vote was very close in New York, and North Carolina and Rhode Island did not ratify until after the new government commenced operations in March 1789. But eventually all thirteen States ratified. 

And the rest, as they say, is history.

Tuesday, June 14, 2016

Extraordinary Supreme Court Ruling Settles Obamacare Contraceptive Mandate Case

The Supreme Court’s Role is to Decide Cases and Controversies, Not Push Settlement to Avoid Tie Votes 

Using a highly unusual and unorthodox approach, the Supreme Court recently resolved a series of related cases by essentially telling the parties to settle a dispute about whether the Affordable Care Act’s (ACA) contraceptive mandate violates the freedom of religion of faith-based groups. The Court's handling of the case demonstrates why the Court should stick to its traditional approach of deciding cases and not focus on how the results will be perceived.

Zubik v. Burwell involved several appellate court rulings that, with one exception, had ruled against the religious freedom challenges. This was the second case involving the mandate to reach the Supreme Court. In the first case, the Supreme Court held two years ago in Burwell v. Hobby Lobby Stores that the mandate, as applied to private corporations, violated the Religious Freedom Restoration Act of 1993, a federal law designed to protect religious freedom. 

In Zubik, nonprofit organizations opposed to the mandate claimed that the opt-out process substantially burdened their exercise of religious freedom. Until Justice Scalia passed away in February, most observers expected that the same majority of five justices from Hobby Lobby would rule against the mandate in the current case. But after oral argument, when it appeared that the Court was split 4-4, the Supreme Court issued a highly unusual order on March 29 instructing the parties to advise it if this matter could be resolved without the Court having to decide the case. Here is what the Court said:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained . . . in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees. . . . For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. . . . The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing. . . .
A 4-4 vote would mean that there would continue to be different results for people depending on where they live due to the conflicting lower court rulings, because when a tie occurs the lower court judgment is simply affirmed. While this does not necessarily promote the uniformity and clarity that the Court might prefer, it is the rule that the Court applies when it is evenly split. 

To say the Court’s March 29 order was highly unusual is a vast understatement, and at this point it was a foregone conclusion that the Justices would dispose of the case without ruling on the merits. I thought that perhaps they would do so by declaring that the case was moot, as they do in some cases in which the controversy is no longer ongoing, or that further development of the record was needed in the lower courts, or even by having the case reargued. 

Having decided, however, that a 4-4 tie was not desirable since at least one appellate ruling against the contraceptive mandate would survive, the Court ignored these prudential options, which would have had a similar effect. Instead, in an unsigned opinion for the entire Court, the Justices essentially told the parties to settle the dispute and directed all of the lower appellate courts to “allow the parties sufficient time to resolve any outstanding issues between them.” The Court’s words make it clear that it wants the matter settled:
In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below. . . . Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage." . . . The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance.
The last sentence is jarring -- the Court is saying settlement is better than deciding the case. While this may seem like a reasonable way to resolve the matter, that is not what the Supreme Court does. The parties are always free to settle; but that is not the Supreme Court’s role. Its job is to decide cases and controversies. In fact, I cannot recall the Court taking this approach in other cases, and the Court has had other tie votes in the past. Indeed, the Court announced it was split 4-4 in a hotly contested and closely watched case about union fees on the very same day -- March 29 -- that it ordered the parties to advise the Court how Zubik could be settled. That meant the lower court ruling in the union fees case was affirmed.

I find this settlement approach especially disturbing because Chief Justice Roberts expressed intense disdain for such judicial machinations at his confirmation hearing. At that time he made a point of stating that he viewed judging as umpiring, and not worrying about results.
Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. . . .  I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it's my job to call balls and strikes, and not to pitch or bat.
Somewhere along the way his view changed, and his concerns about public perception of the Court and the ACA have produced some strange results. Having rescued the ACA the first time around by stating that the individual mandate was constitutional as a tax, and then in a subsequent case upholding federal exchanges under the ACA by telling us that state means state or federal, it probably should come as no surprise that the Chief Justice did not want a 4-4 split leaving the ACA unsettled with respect to the contraceptive mandate. But if a tie is how the game ends, then the Chief Justice has told us that is what happens and we should accept it. Except, I guess, when it comes to the ACA, for which he surely has demonstrated an intense desire, and gone to great lengths, to see the law survive.

It has been said that hard cases make bad law. Perhaps in the case of the ACA, for this Chief Justice, it is that a bad law makes for hard cases.

Sunday, June 5, 2016

When the Highest Court in the Land Ruled for the Greatest: Clay v. United States

Supreme Court Overturned Ali’s Conviction for Failing to Serve in the Military

After declining to be inducted because he was a conscientious objector, Muhammad Ali was convicted in federal court in 1967 of failing to submit to induction into the armed forces. He faced a fine and a jail term, and was stripped of his boxing titles and unable to box for several years. Ali’s conviction was affirmed by the court of appeals the following year.

The Supreme Court ruled unanimously in Ali’s favor in 1971. The government conceded in the Supreme Court that Ali’s belief was both based on his religion and sincere, two of the three requirements to sustain conscientious objector status. This allowed the Court to reverse the judgment because it was unclear upon which basis Ali’s claim had been decided by the State Appeal Board.

In pursuing his conscientious objector status, Ali engaged in the freedom of conscience that is enshrined in the Bill of Rights. He also accepted the consequences of his actions without bitterness and with grace. According to news reports, when asked after his Supreme Court victory if he intended to sue after being kept out of boxing while his case was appealed, he said no -- both sides did what they thought was right.