Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, January 22, 2010

Not Just Narrowly Tailored, But Gently Tailored As Well

While one could no doubt run an entire constitutional law seminar on the features that are found in yesterday’s 183-page opinion, Citizens United v. Federal Elections Commission, I was drawn to one part in particular – the majority’s contention that bureaucratic red tape can stifle political speech just as much as the censor’s blue pencil.

So, while most commentators were expressing concern over the rivers of corporate money that may cascade around political campaigns in the years ahead, I was thinking about how the decision could impact the remainder of the regulatory landscape. It seemed to me that provisions of the Bi-Partisan Campaign Reform Act may not be the only regulations that fall under the standards announced yesterday.

Try this thought experiment: Take your favorite campaign finance requirement and consider the remarks of Associate Justice Anthony Kennedy:

The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation....


As additional rules are created for regulating political speech, any speech arguably within their reach is chilled. Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” These entities are subject to separate rules for 33 different types of political speech. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. In fact, after this Court in [Wisconsin Right to Life v. FEC] adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling.

This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.

Now, not only will government regulations of political activity need to be narrowly tailored and further a compelling state interest, it appears that they will also need to be gently tailored for a comfortable fit.

Wednesday, January 20, 2010

OAH Releases its "Video Guide to Hearings" to Aid Unrepresented Parties

The Minnesota Office of Administrative Hearings, in partnership with Senate Media Services, developed this 8-minute video as an aid to persons with contested cases who appear on their own behalf, without an attorney.

The video guide is meant as a supplement to OAH's Contested Case Hearing Guide; delivering some of that content in a format that is both more accessible and user friendly.

Monday, January 18, 2010

Oral Argument in U.S. v. Comstock Has Echos of M'Culloch v. Maryland

Last Tuesday, the Supreme Court of the United States heard oral argument in the case of U.S. v. Graydon Earl Comstock, Jr. In Comstock, the court considers whether Congress has the authority to enact a statute providing for the indefinite civil commitment of "sexually dangerous persons” who are in the custody of the Bureau of Prisons, but whose federal prison sentence is at an end. Is civil commitment of dangerous persons an enumerated power of Congress – and if so, which power?

This kind of dispute is as old as our federal system. In 1816, resolving the challenge to Congress’ power to charter a Bank of the United States, Chief Justice John Marshall announced the legal standard and defined the field of combat for so many future struggles; including this one. As Marshall famously wrote in M'Culloch v. Maryland:
[S]hould congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.
Thus, whether it was a federally-chartered Bank in 1816, or a treatment facility for dangerous persons today, the central question is the connection between an enumerated federal power and the means that Congress has chosen to exercise that power.

As Tuesday’s oral argument revealed, indefinite treatment of dangerous persons without regard to an underlying prison sentence, is, at best, at the outer periphery of Congress’ Article I powers. Indeed, Solicitor General Elena Kagan had great difficulty in identifying which enumerated power Congress was exercising when enacting the commitment statute. Consider these exchanges with a skeptical Justice Antonin Scalia:
JUSTICE SCALIA: What -- what -- what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?

GENERAL KAGAN: I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public.


JUSTICE SCALIA: .... I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying upon.

GENERAL KAGAN: I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.
The other important echo from 1816 was Justice Stevens’ frequent reminder that it was not the province of the Supreme Court to inquire into the utility of the underlying statute – this, he asserted, the Court was obliged to assume – only the authority for the treatment program. The reminders sought to refocus his colleagues from a discussion of federal policy to one of federal power.

And as much as the United States’ position seemed to be taking on water during Tuesday’s argument, the patient-detainees also had their challenges. Assistant Federal Public Defender G. Alan DuBois had considerable difficulty in addressing whether Congress had the power to detain (and quarantine) prisoners with infectious diseases at the end of their prison sentences. Was not, Justices Breyer and Stevens wondered aloud, detaining a sexually dangerous person in federal custody analogous to quarantining a federal prisoner with drug-resistant and highly-contagious tuberculosis? Was the federal sovereign incapable of meeting such a threat?

The entire transcript from last Tuesday’s argument, which really is worth reading and thinking about, is accessible here.

Monday, January 11, 2010

Digital Remedies for Counsel with Colds

Since the temperatures plummeted to well below zero a few weeks ago, I have struggled against a cold that I have not been able to shake. I am down; then I rally for a few days; and then I am down again. Up and down. Up and down. It has been awful.

During the down phases of this winter roller-coaster, I have swallowed a river of cold medicine and listened to a lot of podcasts. Much of both left a bad taste in my mouth; but occasionally, I would happen upon a dose of something really wonderful.

Here is a list of presentations that are available for downloading that will stimulate even a brain that is addled by a super-size load of pseudoephedrine:

• Professor Burt Nueborne of the Brennan Center for Justice at the New York University School of Law and Professor Randy E. Barnett of the Georgetown University Law Center discuss the benefits and hazards of reading the Bill of Rights as part of integrated whole rather than a decalogue of ten distinct provisions; accessible here.

• Judge Guido Calabresi, of the U.S. Court of Appeals for the Second Circuit, and Judge Frank H. Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit, wrangle over the proper method of deciding cases when presented with applications of a statute that the Legislature never considered; accessible here.

• Clark Neily, of the Institute for Justice, and Professor Kurt Lash, of the Loyola Law School, discuss the meaning of the Privileges and Immunities Clause and whether it provides a basis for incorporating some or all of the Bill of Rights against the states; accessible here.

• An all-star panel – Justice Samuel A. Alito, of the Supreme Court of the United States, Judge Michael W. McConnell, formerly of the United States Court of Appeals for the Tenth Circuit; Walter E. Dellinger III, formerly the United States Solicitor General; Pepperdine School of Law Dean and former Solicitor General Kenneth W. Starr; and Professor of Law Douglas W. Kmiec -- discuss “Lawyering and the Craft of Judicial Opinion Writing;” accessible here.

If you like any of these podcasts, be sure to send me an E-mail.

I am not shaking anyone’s hand until at least July….