A Remedy for Torture

There is a very interesting case working its way through the American court system concerning torture. An American citizen, who was recently convicted of planning a terrorist attacks, claimed that he was tortured during his pre-trial detainment. The torture, he claims, was a direct result of legal memos drafted by one of President Bush's legal advisors. And now the tortured wants to hold the person who instigated the torture process accountable. The question for the court: can a detainee who was tortured sue the person responsible for providing the opinion that torture is legal. The answer, at least so far, appears to be yes. More on the very interesting Padilla v. Yoo case can be found at the online magazine Slate.

The Rare Impeachment

Students in many of my classes have discussed at one point or another the process for removing the President, high executive officers and federal judges: impeachment. Between 1797 and 2008, only 17 individuals have been impeached, and of those only seven were removed. In short, this is a rare event in American history. Which is what makes last week's impeachment of U.S. Federal Court Judge Samuel Kent extraordinary. Judge Kent was recently convicted of obstruction of justice related to charges of sexual assault that were brought against him. Now in prison, Judge Kent remains a federal judge until he resigns or is removed. After last week's action in the House of Representatives, removal is looking increasingly likely. The Houston Chronicle has more.

UPDATE - According to the Associated Press, the process is now moving to the U.S. Senate.

Commercial Speech

Just how much protection does commercial speech have under the First Amendment? That is the question that is being raised after Congress recently passed a law prohibiting tobacco advertising within 1000 feet (304 meters) of schools. The law contains other speech restrictions as well. Wednesday's New York Times has an interesting piece on the legislation, which President Obama says he will sign, and the constitutional issues. As the Times points out:

Commercial free speech is not an absolute right, legal experts say. There are clear limits, for instance, on false advertising and on promotion of illegal activity. The issue grows more complicated if the advertising is both truthful and concerns a legal activity, like smoking by adults.

The Supreme Court in 1980 said such speech can be restricted only if it would directly advance a “substantial government interest” and the regulation was “narrowly tailored” to fit the interest. In the case of the new tobacco law, Congress specifically defined the government interest as a reduction in youth smoking.

But the tobacco industry denies that any of its advertising is aimed at young people.

The American Civil Liberties Union (ACLU) has also taken issue with the law saying that the legislation’s limits on commercial speech are broader than needed to accomplish the goal of reducing under-age smoking, i.e. the law is not narrowly tailored.

State Sovereignty

By now students in my constitutional law courses are likely sick of hearing me talk about the historical and on-going dispute concerning state sovereignty. As students will surely recall, this topic is the focus of our discussions concerning the Commerce Clause, Necessary and Proper Clause and the 10th Amendment. But rest assured that I do not drone on about this for nothing. This is a real and current debate, ever more so as this article in yesterday's Los Angeles Times points out.

It appears that some legislators in western states are not all that happy with President Obama and have decided that now is the time to challenge the power of the federal government. How do they intend to do this? Pass laws, especially dealing with gun control, that are in direct conflict to federal law with the hope that the courts will get involved in the dispute and overturn prior rulings that have given the federal government broad power. As the Times piece points out:

Supporters of the bill want the Supreme Court to eliminate gun controls and, eventually, curtail Washington's ability to set policy on a wide range of issues, including education, civil rights, law enforcement and land use.

As an aside, don't you find it somewhat disturbing that the modern cases challenging federal power seem to only involve sex (U.S. v. Morrison), drugs (Gonzales v. Raich) and guns (U.S. v. Lopez)?

The Role of Bias in Jury Selection

The Baltimore Sun had a very interesting piece in yesterday's paper about the role that stereotypes play in jury selection:

Before a high-profile federal trial began in Baltimore last month, lawyers for the three black defendants filed a motion claiming that the prosecution deliberately - and illegally - dismissed black jury candidates to pack the panel with whites.

"They want a jury that may be sympathetic to the death sentence," defense attorney Archangelo Tuminelli said.

But the judge ultimately ruled that the allegation was wrong. And, it turns out, the stereotype might be, too.

I highly recommend reading the rest of the article here.

Same Sex Marriage

What is the future of same-sex marriage in America? Students in my American Constitutional Law courses learned that the federal courts have not been a very friendly place for gay rights advocates primarily because they have not been open to treating gay and lesbians as a "suspect class." Thus, federal courts have had no problem finding laws such as the military's Don't Ask Don't Tell policy or the Defense of Marriage Act to be perfectly constitutional. But lawsuits in state courts have recently been far more successful. Georgetown law professor David Cole has a wonderful piece in next month's New York Review of Books about the history and future of same-sex marriage in the United States. It is worth a quick glance. At the very least, students should consider the three reasons Cole says are put forth by the government as why laws banning same-sex marriage are rationally related to a legitimate government interest:

(1) the state is responsible for preserving the traditional conception of marriage; (2) limiting marriage to heterosexual couples furthers the state's interests in promoting procreation and/or healthy childrearing; and (3) the state has a legitimate interest in refusing to condone homosexual behavior that it deems immoral.

Should any of these reasons be enough for the state to pass the rational basis test under the Equal Protection Clause?

More in case you were wondering

A few days ago I posted a link to a Miami Herald story explaining why politicians do not want Guantanamo Bay closed. In short, no politician wants to be responsible for having these detainees moved onto American soil. Put another way, no one wants the detainees in their state or city. No one except a small town in Montana that is actually lobbying FOR the chance to house the detainees from Guantanamo Bay. CNN has more.

Pot Revisted

Last year around this time I posted a piece about the medical marijuana law in California. My constitutional law students should be familiar with the case the concepts discussed as we covered both in class:

One of the more important recently decided Commerce Clause cases dealt with whether the federal government could enforce federal anti-drugs in California after voters there decided to legalize marijuana for medicinal purposes. (see Raich v. Gonzalez) The answer given by the U.S. Supreme Court was yes, the Feds can arrest people for using marijuana even if users are doing so pursuant to California state law. The question many students must have is: so is it still legal to purchase marijuana in California, under state law, for medicinal purposes? The quick answer is under state law YES, but people who use the drug still run the risk of being arrested by federal agents under federal law. But it gets even more confusing. The San Diego Union-Tribune newspaper recently reported that San Diego County is suing the State of California to repeal the medical marijuana laws. Lawyers for San Diego and San Bernardino counties will argue that the state cannot force counties to issue identification cards to qualified medical marijuana patients because the drug is illegal under federal law.

A few months later a California appeals court ruled that the federal law did not preempt the state law and ordered the two counties to issue medical marijuana licenses under the state law. The counties, of course, appealed their case to the U.S. Supreme Court (remember, because the federal law is at issue, the U.S. Supreme Court can have the final say). The Court declined to hear the case, letting the lower court ruling stand. As the L.A. Times reminds us:

Four years ago, the Supreme Court ruled that Congress and the federal government had the constitutional authority to regulate the sale and use of marijuana under its power over interstate commerce. The 6-3 decision, in the case of Gonzales vs. Raich, rejected the claim that personal use of homegrown marijuana was off-limits to federal authority. But the court did not rule on whether a state's law allowing medical use of marijuana was void because it conflicted with the federal law.

By rejecting the case, the Supreme Court is not saying that no conflict exists. It is simply saying that it does not want to review the California appeals court case. Thus, the issue is "settled" until the U.S. Supreme decides to revisit the issue via another case, if it ever does decide to do this.

In Case You Were Wondering . . .

. . . why the U.S. Senate recently voted to withhold money from the President that could be used to close the detention center at Guantanamo Bay, this story from the Miami Herald does a nice job explaining why politicians are having cold feet over this issue.