From NBC - 2: ACLU reaches out to Collier school district over anthem protestor ban

Possible test case?

Do students have a right to protest?

- Click here for the article.

The Collier County School District is reacting to a principal's announcement that he would ban students from sporting events if they sit during the national anthem.

The American Civil Liberties Union of Florida has reached out to the school district after what they call a restriction of freedom of speech. In response, the district said it recognizes a student's First Amendment right to express thoughts and ideas as long as the student isn't being disruptive.

NBC2 first told you Wednesday about Lely High School's new policy, but the school district said Thursday it's a misunderstanding, saying Principal Ryan Nemeth's message was taken out of context and he regrets what he said.

Last Friday morning, Lely High students watched as their principal took to the morning announcements to speak about the national anthem.

"You will stand, you will stay quiet. If you don't, you're going to be sent home. No refund."

From the American Constitution Society: Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

A recently published book talks about how organized citizens groups have been able to transform constitutional law by developing and pursuing court cases that force the Supreme Court to reconsider the meaning of the Constitution.

- Click here for a summary from the author.

President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.

In my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, I tell this story, tracing the strategic choices and incremental victories and losses that ultimately brought us marriage equality. I also show how the individual right to bear arms, dismissed as a fraud by Chief Justice Warren Burger in 1990, became a constitutional right in 2008. Here, too, the key lies in civil society, and in particular in the National Rifle Association, almost certainly the most effective civil rights organization in the United States today. The story of how the NRA prompted recognition of an individual right to bear arms after courts had denied one existed for 100 years has striking parallels to the marriage equality campaign and provides important lessons for anyone seeking constitutional change, whether in a liberal or conservative direction.

Finally, I ask what made President George W. Bush curtail so many of his most aggressive counter-terrorism measures by the time he left office, given the history of courts and Congress deferring to presidents in times of crisis. Here again, the answer lies in the work of civil society groups—such as the Center for Constitutional Rights, the ACLU, Human Rights First, and Reprieve. The challenges human rights groups faced were quite different, but they, too, had to seek alternative forums from the Court itself if they were to succeed in pushing back against Bush and Cheney.

Through these three accounts, I seek to show that the real movers of constitutional change are not the elite lawyers who argue before the Supreme Court, nor the Justices themselves—although both sets of actors of course play a part—but ordinary citizens, working together to make their own shared vision of constitutional ideals into constitutional law. In this sense, you might even say, it is “citizens united” who are the true drivers of constitutional change, and the real “living Constitution.” The book underscores the central importance of groups like the American Constitution Society to the vitality of our Constitution, argues that healthy constitutionalism requires, in addition to the separation of powers and judicial review, a robust and engaged civil society, and provides a template for action.

What is the Mountain States Legal Foundation?

The previous post mentions a court case challenging the constitutionality of President Clinton's decision to establish a number of national monuments during his term - as President Obama did last week.

The court case was filed by an interest group called the Mountain States Legal Foundation.

Interest groups are discussed in several sections in class. One of the ways such groups can have an impact on public policy is through the courts. A key strategy is to issue test cases, which simply attempts to force the Supreme Court use its power of judicial review to determine whether a law or executive action is in keeping with what the Constitution allows.

The Mountain States Legal Foundation has done so - so far unsuccessfully - against the Antiquities Act which has been used to restrict the ability of industry to have access to mineral resources in the west. They have been involved in a number of other court cases attempting to limit federal agency activity in the west.

Here's a bit from the Wikipedia Page on the group:

MSLF was incorporated in Colorado in 1977 by western business leaders concerned that advocates for constitutional liberties, property rights, and economic activity were not present during important legal battles. Initially created with funding by the National Legal Center and Joseph Coors, MSLF's first president was James G. Watt. On behalf of his corporate sponsors, Watt initiated lawsuits opposingaffirmative action, limiting safety inspection of businesses, and preventing the implementation of reduced utility rates for the elderly.

It's worth noting that James Watt was appointed Secretary of the Interior in President Reagan's Administration. This meant that for a period of time the interest group had control over the executive agency that implemented the laws that affected that group.

For more on the group:

- Their website.
- Huffington Post: Mountain States Legal Foundation.

For related topics:

- Agency - or Regulatory - Capture.
- Test Cases

Who is James Bopp Jr.?

He is one of the attorneys leading the charge to get the courts to overturn campaign finance laws - generally based on the idea that they violate free speech rights. He was mentioned in the post below on the Supreme Court's refusal to hear a case challenging Iowa's campaign finance laws. He was also involved in the McCutcheon decision. In class today we considered his being an example of an interest group - or policy advocate - using the courts as their preferred way of changing public policy.

Folks like this are responsible for many changes in public policy.

- Here's the Wikipedia on him.

On campaign finance, Bopp worked as a legal advisor to Citizens United leading up to their victory in the Supreme Court decision Citizens United v. Federal Election Commission.[7] Another of Bopp's initiatives was bringing a lawsuit challenging what he believes to be a low limit for reporting campaign donations and the open way in which information on such donations is shared in California.

According the Campaign Legal Center, Bopp filed 21 of the 31 lawsuits it associated with challenging campaign finance regulations. All told, Bopp has spent 30 years fighting limits on campaign spending and is credited with changing the political landscape of the 2012 election. According to the Center for Responsive Politics. “It’s safe to say that groups on the left and right have Jim Bopp to thank for their new-found freedom.”In an interview with PBS' Frontline in 2012, Bopp said he was defending a "basically absolute" interpretation of the right to political free speech under the First Amendment. As such, he said he is working to eliminate or significantly loosen campaign spending limits and to eliminate donor-name-reporting requirements.

Bopp represented Phil Thalheimer and Associated Builders & Contractors PAC versus City of San Diego.[11] According to how the case was viewed in Hawaii, provided a PAC made "solely independent expenditures ...the case foreclosed the argument that the State has a justifiable interest in preventing corruption or the appearance of corruption in regulating independent expenditures"

A federal judge overturns Texas' abortion laws

I predicted this in class (thank you very much).

The district court judge applied existing precedence to the case, which is why this is no surprise. Texas now gets to take the appeal to the 5th Circuit and the loser there will appeal to the Supreme Court. Then the fireworks will fly because the court may then be in a position to change the precedence established in previous abortion cases, including Roe v. Wade.

Which is probably the long term goal of supporters of the bill anyway.

Justices Reject Request for Fast Health Law Ruling

This is major news from the NYT:

The Supreme Court on Monday turned back an unusual request from Virginia to put the state’s challenge to the new federal health care law on a fast track. The court’s one-line order offered no reasoning, and there were no noted dissenting votes.

Nor was there any indication that any justices had disqualified themselves from the case. The court’s practice is to note such recusals, and it now appears almost certain that all nine justices will hear cases challenging the law when they reach the court in the ordinary course, probably in the term that starts in October.

A Test Case?

So in class today we had some fun tossing around a kooky little idea. Let's say you consider environmentalism to be akin to religious belief -- the whole "mother earth" Wicca type thing. If that's true (if) then isn't the Environmental Protection Agency, an executive agency designed to promote environmentalism (a religious belief) a form of state religion? If so (again, if) than doesn't the EPA violate the establishment clause?

I'll offer extra credit points to whoever want to put a brief together making that argument. We could have a press conference and announce a lawsuit. I bet Glenn Beck will take us seriously even if we dont.

Arizona Immigration Law: Possibly Unconstitutional, Certainly Popular

Arizona's recently passed immigration legislation may prove unconstitutional since it intrudes on the national government's authority over immigration matter. There are also questions about whether its enforcement will lead to racial profiling, which could violate the equal protection clause. There are arguments that it is constitutional however, including this one from the law's author. Challenges have already begun, though as with similar challenges to health care legislation, it is unclear that anyone has standing to sue yet.

Regardless, a small majority of people who have heard of the law, like it.

David Broder thinks the passage of this law adds to the argument that Congress is broken.

Guns in the News

Here are a couple of stories involving gun rights:

1 - Gun owners demonstrate their right to openly carry guns in Starbucks.

2 - McDonald v. City of Chicago is about to be heard by the Supreme Court. It's a challenge to Chicago's gun control laws and will provide the court an opportunity to apply its DC v. Heller decision to state and local governments through the 14th Amendment.

A few useful links:

- USA Today.
- Wikipedia.
- ChicagoGunCase.com.

A Brewing Test Case

A federal trial in San Francisco may end up forcing the Supreme Court to rule on whether the equal protection clause of the 14th Amendment makes laws against gay marriage unconstitutional.

- New Battle on California Ban
- Gay Marriage: The Case from the Left
- Oral arguments, prior convictions
- Children no requirement for marriage, trial told

Is Politics Inherently Corrupt?

A good question by Jonathan Rauch:

On the Supreme Court's desk at the moment, ripe for a decision any day now, is a case you may have heard about. In Citizens United v. Federal Election Commission, the Court may decide whether to open the floodgates to unlimited political spending by business corporations. Both sides are bracing for a potential blockbuster.

Meanwhile, another case, eclipsed by Citizens United but also important, is scheduled to be heard this month by the U.S. Court of Appeals for the District of Columbia Circuit. SpeechNow.org v. Federal Election Commission is not a headline-grabber, but it confronts the courts and campaign finance regulators with a critical question they would prefer to avoid. Is political gratitude a form of corruption?

read on....

Gay Divorce in Texas

Can gay couples married elsewhere, be divorced in Texas? A Dallas judge says yes, but seems to want to mostly pick a constitutional fight with Section 32 of the Texas Bill of Rights.

- NYT.

Man Arrested for Saying He Hates the Police

This might have legs. I wouldn't be surprised to see a test case to come out of this. The Gates arrest might have the unintended consequence of persuading more people to think of disorderly conduct arrests as merely tools for police to stifle protest.

"People talk about the Gates thing in terms of race, but it's an ongoing problem of police using disorderly conduct to shut people up."

HR 256

Leo Berman (R-Tyler) wants to pick a fight with the 14th Amendment.

His bill is specifically designed to provoke a legal dispute that could wind up in the Supreme Court forcing it to decide whether the 14th Amendment requires that the children of illegal immigrants be granted citizenship if born on U.S. soil:

State Rep. Leo Berman ramped up his support today for a proposal that would challenge the concept of birthright citizenship for U.S.-born children of illegal immigrants with the hopes that passage of such a measure would trigger a federal lawsuit.

Speaking to a group of about 20 members of the Minuteman Civil Defense Corps., Berman said if his proposal to prohibit automatic citizenship for U.S.-born children of undocumented immigrants passes it would undoubtedly spark a court fight that he hopes lands in the U.S. Supreme Court.

"That's exactly what we're looking for," said Berman, R-Tyler. "We want to be sued into federal court where our attorney general can take this all the way to the U.S. Supreme Court."

Berman's argument is based on the notion that the 14th Amendment, which says all persons born in the U.S. shall be granted citizenship, does not "apply to foreigners."

"We hope that at some point and time some judge will say 'you're absolutely right. It doesn't apply to illegal aliens,'" Berman said.

The Second Amendment Challenge

While we were on our break, the Supreme Court heard arguments on the constitutionality of Washington DC's gun laws. This is a classic test case, I've posted on the circumstances surrounding it previously. The case goes beyond the limited issues surrounding DC, but to the heart of the meaning of the amendment as it is phrased. Since it refers to a militia, does it provide for an individual or collective right?

Here is a link to the Washington Posts' summary of the amicus briefs presented to the court.
And this link takes you to the oral argument transcript.

Scalia Speaks

Antonin Scalia is increasingly vocal about past cases he would like to overturn. All thoughts of stare decisis and judicial restraint are seemingly placed off to the side.

Test Case

Fascinating article in today's Washington Post about Robert A. Levy, the non-gun owning, wealthy resident of Naples, Florida (and lawyer and fellow at the Cato Institute) who funded and organized the law suit against the D.C.' s gun control laws.

This is a classic example of a test case, much in the vein of Brown v. Board of Ed. and Griswold v. Conn. Levy thought it up and pushed it forward under the guise of D.C. residents.

Here's a key part of the article:

Before they filed the lawsuit in February 2003, arguing
that the city's gun statute violates the Second Amendment's
language on the right to bear arms, Levy and Clark M.
Neily III, a public-interest lawyer, spent months carefully
assembling a cast of plaintiffs, Levy said.

"We wanted gender diversity," he said. "We wanted racial
diversity, economic diversity, age diversity." The plaintiffs
had to be D.C. residents who believed fervently in gun rights
and wanted loaded weapons in their homes for self-defense.
And they had to be respectable.

"No Looney Tunes," Levy said. "You know, you don't want
the guy who just signed up for the militia. And no criminal
records. You want law-abiding citizens."

He and Neily worked the phones. "We called all our contacts
in the legal community," Levy said. "We looked at the
newspapers: Who was writing on the subject? Who was sending
letters to the editor about gun laws?" They scoured the city.
"Friends lead you to other friends, and you just keep talking
and talking to people, until finally you have your clients."

They found dozens of likely plaintiffs, Levy said. They
went with three men and three women, from their mid-20s
to early 60s, four of them white and two black. They found
a mortgage broker from Georgetown and a neighborhood
activist in a crime-scarred area of Northeast Washington.
They also lined up a communications lawyer, a government
office worker and a courthouse security guard. In their
disparate walks of life, the six shared an eagerness to
arm themselves.

Levy knew only one of them: Tom G. Palmer, 50,
a Cato colleague who is gay.

Notice the care that goes into selecting the plaintiffs. This points out that this really isn't their case, it's Levy's. So why does he do it? The story goes on to state that Levy's motivation has less to do with gon controal than with civil liberties:

What matters most to him is whether the statute unjustly
infringes on personal liberties. He doesn't dispute that
"reasonable" gun controls are permissible under the Second
Amendment. But the District's law amounts to "an outright
prohibition," Levy said, and "that offends my constitutional
sensibilities."

My question is whether it is appropriate for a resident of one state to engineer an attack on a statute in another region of the country--not another state in this case because this is in Washington D.C.

Does this make anyone uncomfortable? Uneasy?

Is this not judicial activism, and if successful, doesn't it vindicate recent efforts to use the courts to change public policy? After all, a right often pits a minority against a majority--often a local or state majority--and an individual liberty guaranteed by the Constitution is a legitimate subject for the courts, even if it negates that actions of democratically attuned local authorities.

There are of course two ways to look at this: substantively and procedurally. The proceduralist looks at how policy is established while one who is only interested in the substantive outcome looks to the end result, no matter how it was attained. This raises a dilemma for gun rights activists who are concerned about the increasing power of the courts. Though this victory may be substantively appealing, does it increase the procedural power of the court in a manner which may come back to haunt them?