Category Archives: Law: Constitutional Law

A three-judge panel of the Eleventh Circuit has today overturned an injunction blocking the Miami-Dade School Board from removing a children's book ¡Vamos a Cuba! from elementary and middle school libraries. The case below was ACLU of Fla, Inc. v. Miami-Dade County Sch. Bd., 439 F. Supp. 2d 1242 (S.D. Fla. 2006).

The district court found, for the purposes of the preliminary injunction, that “the majority of the Miami-Dade County School Board members intended by their removal of the books to deny schoolchildren access to ideas or points-of-view with which the school officials disagreed, and that this intent was the decisive factor in their removal decision.” The court also found “that the School Board’s claim of ‘inaccuracies’ is a guise and pretext for ‘political orthodoxy.’” (52)

The Court of Appeals disagreed. To get to that result required deciding a fairly technical point of law in a highly disputable way, followed by a judgment call on the merits that is perhaps less disputable, but still open to real doubt.

For those who came in late, ¡Vamos a Cuba! (the Spanish version of “A Visit To Cuba”) is a pretty lousy cut and paste of a children's book, aimed at beginning readers ages 4-8. It's one in a series of formulaic picture books about life in foreign countries, and not, apparently, one of the best in this rather unexciting series. (Other countries in this lets-market-to-libraries series include Puerto Rico, Costa Rica, Colombia, Brazil, Cambodia, Egypt, the United Kingdom (plus separate books on England, Northern Ireland, Scotland, and Wales), Canada, Vietnam, Australia, China, Japan, Mexico, Italy, Israel, Ireland, India, Greece, Germany, and France.)

A parent complained about the book presenting a sanitized vision of life in Cuba – it doesn't mention any hardships, communism, or even poverty, as do some other books about Cambodia or Vietnam. The school system conducted a four-level review, each of which recommended keeping the book despite some pretty dumb factual errors such as misidentifying some '60s cave paintings as one of Cuba's 1000-year-old ones.

The Superintendent agreed the book shouldn't be pulled, but proposed putting a sticker in the book that would say

ATTENTION STUDENTS AND PARENTS

This book was purchased by your school as part of a series of books on many foreign countries. Some of the information provided in this book about life in Cuba under that nation’s communist dictatorship is incorrect or incomplete enough to be inaccurate. For an accurate depiction of life in Cuba, Miami-Dade County Public Schools recommends the following books that can be found in this school’s library.

• Cuba for Kids by Ismael Roque-Velasco

The final level of review was the (elected, political) School Board itself. It voted 6-3 to take the series off the shelf. Anyone who lived through that moment here knows that emotions ran high, that some Board members said they felt personally at risk to their safety if they voted “wrong” and that the decision was conducted in charged, political atmosphere. That doesn't mean I can read the Board members' minds – but from contemporary accounts, the circumstantial evidence seemed fairly strong.

The District Court, aware of all this, enjoined the removal on the grounds that the Board's motives were not book quality, but politics, which would be a First Amendment violation. The District Court said:

While the debate was couched in terms of “inaccuracies” contained in the Cuba Books, the real issue was that the Cuba Books were content-neutral and scrupulously apolitical, and did not reflect, as viewed by the majority of the School Board members, the true evil of Castro's government and the oppression of the Cuban people. Thus, the majority was significantly motivated to remove the books because of their disagreement with the content-neutral views expressed in the Cuba Books, essentially the view that “People in Cuba eat, play and go to school like you.”

439 F. Supp. 2d at 1283.

The Eleventh Circuit, 2-1, reversed.

The critical legal move in the decision relates to the standard of review for factual determinations concerning motive.

Ordinarily, motive is a question of fact, found by the trier of fact, and reviewed deferentially under a “clear error” standard by the Court of Appeals – in contrast to legal issues which that court decides de novo. But in this case, the majority argued that it should review the motive question de novo because it decides the case,

“Unlike the question of motive in retaliation cases, motive in this case is not just a preliminary issue. Instead, discerning the nature of the Board’s motive will, under the standard we are assuming applies, determine the plaintiffs’ First Amendment claim.

(Slip. Op, Page 56)

The Court of Appeal majority argued that to defer would be to in effect surrender its appellate power. The substantive legal test on school library book removals (tracing back to Board Of Education v. Pico, 457 U.S. 853 (1982)) is whether School Board “disliked the ideas contained in it and by removal of the book sought to prescribe political orthodoxy or other matters of opinion.” Thus, the Eleventh Circuit is right to say that the motive question more or less decides this case. What's less clear is whether it follows that it gets to reopen the issue. It's an issue that just might make the decision get the Supreme Court's attention were a cert petition to be filed.

Having decided that the standard was de novo review of the motive question, the court then re-examined the (in)accuracy question de novo, and decided that the were enough factual inaccuracies to justify what the School Board did, and that these inaccuracies were in fact the Board's actual motive. In my opinion, the first point is more plausible than the second.

There's a more subtle, but equally important, issue lurking in this decision, although one that is not as cleanly presented as it might be and thus somewhat less likely to get the Supreme Court's attention. For those who see the Board's decision as justified – or justifiable – by the inaccuracies in the book, the critical inaccuracies are not the various small dumb mistakes in this cut and paste of a book. The Court of Appeals majority said,

Whatever else it prohibits, the First Amendment does not forbid a school board from removing a book because it contains factual inaccuracies, whether they be of commission or omission. There is no constitutional right to have books containing misstatements of objective facts shelved in a school library. (51)

Is that quite so obvious? The critical sins in this book are – and the Board was forthright about this – sins of omission. By focusing only on things about life in Cuba that would be familiar to Americans – people eat and go to school – the book left out that which is abnormal in Cuba – rationing, communism, tourist/native economic apartheid and so on.

Can a School Board constitutionally remove a book from library shelves because it thinks it's too one-sided? Presumably not if the one-sidedness is presented as opinion. But what if the claim is that the presentation of the facts is slanted by omission? That, I think is both a hard question and (until now) an open one.

The majority's argument is well summed up in one of its examples,

And what about a book about life in the antebellum South that asserted: “People in the old South ate, worked, and went to school like you do,” neglecting to mention anything about slavery and the millions of human beings who lived and died in bondage? [Board Br. 11] Would we describe that book as “apolitical”? Would a school board be forbidden from removing the book from its library shelves because the book’s distortions were through omissions, or because it went against “politically orthodox views”? Would removal of the book be prohibited on the ground that it was motivated by the book’s failure to contain enough “negative political information” about the pre-Civil War South?

I really do think this is a close question once the book is on the shelf. Pulling it for leaving out important facts undoubtedly available in other books is perilously close to the evil identified by the 4-Justice Supreme Court plurality in Pico: “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'” Pico, 457 U.S. at 872.

The world is not coming to an end because the School Board is able to get rid of a pretty crummy book. It would be nice, however, not to set a precedent that encourages our School Board – far from a paragon of civic virtue – to get into the book reviewing business.

[Note: this is a very long decision — 177 pages! — and I may amend the preliminary thoughts above once I've had a chance to read it more carefully.]

On Inauguration Day I wondered aloud about the extent of the new President’s power to overturn the “Don’t Ask, Don’t Tell” regulations in that they rules had been more or less set into stone by a subsequent statute,

… the Obama transition team last week reiterated in the most unequivocal terms its commitment to abolishing the “don’t ask, don’t tell” policy for the military. Given that it is entrenched in law, 10 U.S.C. § 654, that may require more than the stroke of a pen, although certainly the existing rules could be weakened without an Act of Congress.

It was the sort of legal issue that comes up a lot while blogging: something that you think ought to be simple, but you look it up…and it’s not so simple. That leaves a choice: (1) do serious research, letting a hobby eat into work time, but maybe finding something worth writing about professionally as well as recreationally, (2) guess; (3) drop it; (4) write around the problem.

As often as not I pick door #4 and go on with my life. But this time I guessed.

Comes now Prof. Jackie Gardina of the Vermont Law School to argue in Let the Small Changes Begin: President Obama, Executive Power, and Don’t Ask Don’t Tell, that the question I posed does have an answer, and that I guessed right.

This article advocates that President Obama should act unilaterally to change how the Department of Defense (DoD) implements Don’t Ask Don’t Tell. It is a controversial position and not one generally supported even by those seeking to repeal the law. Given President Clinton’s experience attempting to lift the ban on gays and lesbians openly serving in the armed forces, proponents of repeal are hesitant to suggest that President Obama act without first building consensus within the military and Congress. It is widely perceived that President Clinton’s efforts to initiate change backfired, leading to the DoD’s discriminatory policy being codified and slowing his legislative agenda. Conventional wisdom holds that to avoid the mistakes of the Clinton Administration, President Obama must not push Congress or the military too quickly.

President Obama should not wait for Congress to act. He has both the constitutional and statutory authority to implement change immediately. In Part II, I discuss the historical context of Don’t Ask Don’t, specifically focusing on the lessons of the Clinton era and President Clinton’s successful use of executive power to affect gay and lesbian service members. In Part III, I explain why President Obama must act pending congressional action, describing the status of repeal efforts in Congress and exploring potential barriers to success. I also explore the recent circuit court decisions on Don’t Ask Don’t Tell which interestingly set the stage for President Obama’s first executive decision on the issue – whether to seek certiorari in Witt v. Air Force. Finally, Part IV provides examples of five amendments to the current DoD directives implementing the statute that would improve the lives of the estimated 65,000 gay and lesbian members serving under the shadow of the statute.

The crux of the argument seems to be these propositions (footnotes omitted):

• “President Obama has the constitutional authority to alter the implementation of the statute. Article II, § 2 identifies the President as the ‘Commander in Chief of the Army and Navy of the United States’ and the Supreme Court has stated unequivocally that the President has the prerogative to establish rules and regulations for the armed forces.” (Page 22)
• “The Executive may also exercise whatever authority Congress provides within a specific statute. While Congress also has the constitutional authority to establish rules regulating the military, it can delegate that authority to the Executive.” (Page 22)
• “Congress has delegated to the Secretary of Defense the authority to develop the regulations necessary to implement Don’t Ask Don’t Tell” — but hasn’t delegated the power to suspend the Act; thus if the Presidential power to suspend it, pending future Congressional repeal, exists, that authority must come straight from the Constitution. (Page 23)
• Under Youngstown that Constitutional authority doesn’t extend to straight repeal. But it does allow for substantial amendment of the existing regulations. (Page 23ff)

That sounds plausible to me.

In When Is a Search Not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping, Josh Dugan has written the most interesting article I've ever read on the Third Amendment to the US Constitution.

OK, it is in fact the only article I've ever read on the Third Amendment, and that alone made it interesting. But there's more.

Here's the key part of the conclusion:

… the Amendment prescribes practical rules for limiting the enforcement power of the most coercive and dangerous organ of government power: the military. The Amendment’s proscription against military enforcement of civilian law is evident in the founding debates and documents and is the best explanation for the Amendment in the larger constitutional scheme. This explanation also frees the Third Amendment from offering a redundant protection already contained in the Fourth Amendment. Far from being irrelevant to contemporary constitutional law, the Third Amendment could have an enormous role to play in today’s constitutional schema. As the military establishment grows and its role confronting terrorism expands within the United States, the Third Amendment provides the proper backdrop against which to analyze those military actions which intrude on an individual’s life and constitute traditional law enforcement functions, such as wiretapping. This test would categorically bar the military from enforcing the law against civilians during peacetime but would allow the military to do so without any further conditions, so long as the activities were approved by Congress, during time of war.

While the structural argument based on comparing the Third Amendment to the Fourth Amendment is on first glance plausible, it's new to me and I have to think about it more before I'm willing to commit myself to accepting it.

I do have to wonder about the history. I don't know enough to form a view as to how accurate it is, and would like to know a lot more about how, if the argument that the Third Amendment's ban on “quartering” was seen as addressing something general about military-civilian enforcement relationships rather than something fairly specific about military intrusion into the home, this reading got so quickly forgotten. Certainly the article's account of Story's position didn't seem to me to support the author's account nearly as much as he seemed to think it did…

But despite these doubts, it's a fun read for constitutional law mavens.

I see that President Obama had the Chief Justice re-administer the oath of office (correctly) this time in an 'abundance of caution' following the imperfect recitation of the oath the first time (due to mis-prompting by the Chief during the Inaugural).

I don't think there are in fact four federal judges in the country who would have held that Obama was not in fact the President at all relevant times were the issue to have gone to trial. Even so, I agree that the re-administration of the oath of office was a fairly costless way for Team Obama to pacify the wingnuts and ultra-orthodox strict constructionists who might have been baying at the moon on this issue.

I post now, after it's (almost) all over only to make two points:

• Those commentators (not naming names, sorry) who said the entire issue could never be decided on the merits due to the lack of probable plaintiffs with standing were in my humble opinion simply wrong. Any bill signed by the purported President would not in fact be law if the person signing it were not the office-holder. Ditto for any official act by anyone nominated by a non-President. There would have been armies of people with standing. Which makes me wonder whether Obama, in a further excess of caution, re-signed any first-day documents (such as the Cabinet nominations) post-re-administration of the Oath. In for a penny, in for a pound, I say.

• Other than the fact that it would have cast an unwelcome and unnecessary cloud on a Presidency that has enough to worry about already, it actually would have been a fun case to watch. Since I believe every judge would have been results-oriented on this one, the process of getting to that result might have produced some interesting anti-formalist doctrine that might have had knock-on effects in other areas.

Update (1/22): From Political Animal,

Just for the record, Obama really was president after the first oath, and everything he did yesterday was legit. In 1789, George Washington was president for seven weeks before he'd taken the oath, but he still had all the authority of the office.

That sounds like contemporaneous construction to me.

I don't usually like to throw questions out to the lazyweb, but this is the first week of classes which is always busy.

So here's my question: the Senate has started a whole round of confirmation hearings for Cabinet and other top appointments by president-elect Barack Obama. But as far as the Constitution is concerned, only the President, not the President-elect, can make nominations to government jobs. The Senate is of course free to hold hearings about whatever it wants, and there is no constitutional requirement for a committee to do anything prior to the full Senate's exercise of its 'advice and consent' power. But I don't see how the full Senate could vote on a nomination without there being an actual official nomination.

Legally, I can see two ways for this to work. Either the incumbent has already made a courtesy nomination, which I think is highly unlikely, or the Senate is front-running on the actual nomination, which will come as soon as Mr. Obama is inaugurated. In the first version, the full Senate can vote any time; in the second version the Senate can't actually vote until January 20, after the nomination officially happens. (There is of course at least one more possibility, which is that the niceties are not being observed. Yet even if there were a transitional statute that applied I don't see how it could trump the Constitutional provisions governing appointments of the leading Officers of the United States.)

NPR, at least, reports that,

Kerry has said he plans to hold a committee vote before week's end, setting up a scenario where the Senate could confirm [Sen.] Clinton before Obama is sworn in Jan. 20, and a new senator named to fill her New York seat.

If that's right, my second scenario is wrong. But then again, maybe that's not right.

Anyone know the actual facts?

Seems like I may have wasted my time writing that pardon post (Bush “Revokes” A Pardon (When Do Pardons Vest?))… The New York Times has a statement from the White House on the pardon revocation:

Based on information that has subsequently come to light, the president has directed the pardon attorney not to execute and deliver a grant of clemency to Mr. Toussie. The pardon attorney has not provided a recommendation on Mr. Toussie’s case because it was filed less than five years from completion of his sentence. The president believes that the pardon attorney should have an opportunity to review this case before a decision on clemency is made.

If we can believe what the Bush administration says (can we?) this suggests pretty strongly that we were at what I called “step one” — nothing had been signed or sealed. In which case, legally, it's a non-issue.

Update (12/26): Brian Kalt argues, with some reason, that maybe I gave up too easy. The key fact — as I suggested half-heartedly above, but couldn't quite bring myself to believe — is that the White House may have been misleading us about whether a formal pardon was actually executed. Here's part of what Prof. Kalt writes,

The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn't purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”

Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn't hold up.

Could this be another example of what Brad DeLong says: “The Bush Administration: Worse than You Can Imagine Even Though You Know It Is Worse than You Can Imagine”?