Extending Presidential Privilege to the Limit

The words presidential privilege do not appear anywhere in the U.S. Constitution. Yet, the U.S. Supreme Court has consistently held that the President has the right to engage in confidential conversations with his advisers, unless these conversations concern potentially criminal activity. The Bush Administration has pushed the idea of privilege to unseen limits. First, they claimed that discussions between the Vice-President and his advisers could be shielded by presidential privilege, even if the President himself was not involved in the discussions. The U.S. Supreme Court agreed. Then they claimed that internal e-mails between the Attorney General and his advisers enjoyed presidential privilege protection. This remains an open question. And now the Administration is claiming that the privilege allows the President to withhold documents from a congressional investigation into whether he pressured the Environmental Protection Agency to weaken decisions on smog and greenhouse gases. At what point does this idea of privilege interfere with the basic principles of checks and balances contained within the Constitution?

Puting the Cross on License Plates

The State of South Carolina will soon be offering a license plate to its drives with a Christian cross on it, as well as the words "I believe." Anyone who has been to the States might have noticed that one can find a variety of different license plates within a given state. While in Florida last year, I noticed license plates containing environmental themes ("protect our reefs" and "save the manatee"), sports themes (NASCAR, University of Florida, Florida State University) and family themes ("family first" or "family values"). click here for a complete list of Florida specialty license plates.

The question here isn't whether states can have specialty plates, but what happens when one of these specialty plates contains a message that may violate the Constitution. As students in both my classes this semester know, the First Amendment of the U.S. Constitution contains the Establish Clause, among other clauses. This clause has been interpreted by the Court to require some semblance of a separation of church and state. So when a state provides a license plate with an unmistakable Christian symbol on it, does this act violate the Establishment Clause? The courts will most surely be asked to decide this question in the near future.

What Free Speech?

A few weeks ago 34 demonstrators were convicted of violating a law that prohibits holding demonstrations on the grounds of the U.S. Supreme Court. The question this obliviously raises is doesn't such a law violate the First Amendment right to free speech? The answer is probably not. Our discussion in class concerning freedom of speech has dealt mostly with something called "traditional public forums". These generally include streets, sidewalks and public parks. People have an almost unlimited right to engage in speech in this type of forum. But the courts have uniformly held that not all government property can be considered a traditional public forum. In fact, most government property is not considered a public forum and thus speech on this property can be regulated far easier.

Why make a distinction between a traditional public forum and other government property? Generally because the Courts have been sympathetic to the government's position that allowing speech on all government property in any manner would interfere with workings of the government. Imagine if the government had to allow protesters onto military bases or into prisons. Clearly, this kind of expressive activity would interfere with the ability of government to carry out it's mission, whatever that mission might be on the property in question. For purposes of this class, students don't need to know this distinction, but I hope it helps explain why these protesters, who entered the grounds of the Supreme Court, were arrested.

Establishing Obscenity

The Tampa Tribune has a nice piece, which tries to explain how obscenity laws in the United States are enforced. The title of the article, Standards Of Obscenity Are Murky, says it all. As we discussed in Con Law class last week, trying to spot this form of non-speech is not easy. Unfortunately for a pornographer who calls himself Max Hardcore, a jury in Tampa recently was able to weed through this murky area of the law and find his films to be obscene. Which means Mr. Hardcore will soon be serving hard time for violating obscenity laws.

• see also Jurors in Max Hardcore Porn Trial Seek Clarification
• see also Adult Movie Producer Found Guilty in Obscenity Trial

Don't Ask, Don't Tell - An Update

During U.S. Constitutional law lecture a few weeks ago, I used the issue of gays in the military to illustrate how courts generally apply the rational basis test (as you recall, this is the lowest level of scrutiny applied to due process and equal protection claims). Well, it turns out that at least one court now believes that the military's policy of "Don't Ask, Don't Tell" should be judged using a level of scrutiny somewhere between strict and rational basis. Here's why.

A few years ago the U.S. Supreme Court struck down a Texas statute that outlawed consensual homosexual sex. (see Lawrence v. Texas). According to many commentators, and three judges on the First Circuit Court of Appeals, the decision in Lawrence recognized "a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label." In short, the Court didn't use the rational basis test to deal with this law that classified gays and lesbians differently then heterosexual couples, which is how courts had always dealt with such classifications in the past.

But even using this "new" level of scrutiny that falls between strict scrutiny and rational basis, the First Circuit Court of Appeals still found the Don't Ask, Don't Tell policy to be constitutional. How?

The court began it's analysis by noting that "Lawrence balanced the strength of the state's asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners' private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied." In short, the Lawrence Court weighed the "protected liberty interest" as noted above, against the state's interest in stopping "immoral conduct." In the end, the Lawrence Court felt that individual right was more important.

Lawrence truly was a departure from past reviews of laws that classified gays and lesbians differently, i.e. using the rational basis test. A rational basis analysis "does not permit consideration of the strength of the individual's interest or the extent of the intrusion on that interest caused by the law; the focus is entirely on the rationality of the state's reason for enacting the law," said the First Circuit Court of Appeals. In Lawrence, the Court most certainly looked at the individual interest at stake.

So the First Circuit Court of Appeals now had to use this new approach to judge the military policy at issue. And they did so rather quickly, saying basically that when it comes to matters of the military, courts have always shown deference to Congress because: 1) Congress is in a much better position than the courts to determine the proper workings of the military and; 2) the U.S. Constitution specifically gives Congress the power to raise and support armed forces. The Court then noted that the policy in question was created after a careful and thorough review noting that Congress:

focused explicitly on the effect that the Act could have on constitutional rights of homosexuals, concluding that "if the Supreme Court should reverse its ruling in Bowers and hold that private consensual homosexual acts between adults may not be prosecuted in civilian society, this would not alter the committee's judgment as to the effect of homosexual conduct in the armed forces. . . . Congress ultimately concluded that the voluminous evidentiary record supported adopting a policy of separating certain homosexuals from military service to preserve the "high morale, good order and discipline, and unit cohesion" of the troops.

In short, concerning matters of the military, courts should basically defer to Congress, which is really what Courts generally do when applying the rational basis test. Which begs the question. Did the First Circuit really use something other than the rational basis test in concluding that the policy did not violate the Constitution? It doesn't appear so.

How Not to Conduct a Jury Trial

Students learning about common law sometimes question whether the jury system is an efficient and just way to run a legal system. News out of Sydney, Australia may support the proposition that in fact jury trials are a waste of time, not to mention a waste of money. At least this particular trial was. Yesterday a judge presiding over a three-month-long jury trial that cost the state over a $1 million dismissed the jury before they could reach a verdict because it was discovered that at least four members of the jury spent a good deal of time in the jury box playing Sudoku when they should have been paying attention to the trial. There is no law prohibiting jurors from being inattentive, even if the inattentiveness results in the judge ordering a retrial. Apparently, officials in the state of New South Wales are considering a rewrite of their jury rules that would, at the very least, prohibit jurors from playing games while sitting in the jury box. Probably not a bad idea.

Enforcing Medical Marijuana Laws

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.

So, under California law it is the local government (in this case county government) that must help carry out the medical marijuana law, but the counties are beginning to question whether this is wise (and lawful) in light of the aforementioned U.S. Supreme Court decision. Ah, the joys of federalism.

UPDATE - A California court has ruled that California's medical marijuana laws do not violate federal law saying, "The purpose of the (federal law) is to combat recreational drug use, not to regulate a state's medical practices." It is possible that this ruling will be appealed to California Supreme Court.

Interpreting State Constitutions

As has been noted on several occasions in American Constitutional Law class, an individual state may grant more rights to people under it's constitution than are available under the federal constitution. But there may also be instances where a state constitution places more limitations government. For instance, the United States Supreme Court has held the giving parents vouchers (money) to help pay for tuition charged by religious schools did not violate the Establishment Clause found in the First Amendment of the U.S. Constitution. But many states, including Arizona, have a clause in their constitution that specifically prohibits state money from being used in any manner related to religion. So it was no surprise that the Arizona Supreme Court recently ruled that school vouchers given out by the State of Arizona violated the Arizona constitution. So, to review, the U.S. Supreme Court said this practice does not violate the U.S. Constitution, but the Arizona Supreme Court said that it DID violate the Arizona constitution. Federalism in the U.S. isn't always easy to comprehend.

Picking Judges

Students of American Constitutional Law are by now quite familiar with how federal judges are selected. Thus, it goes without saying that the upcoming President election is important not only because it will determine who the next leader of America is, but is also important because it will likely determine whether the U.S. Supreme Court becomes more liberal or conservative. Syndicated columnist Linda Chavez, with whom I rarely agree, has an interesting article arguing why the issue of judicial nominations should be, but is not, an important criteria for selecting the next President.