That’s the title of a new article by Gary Lawson and me, in Boston University’s American Journal of Law and Medicine, in a symposium issue on the PPACA. Except that unlike Alice, the PPACA neither becomes a Queen, nor wakes up to return to reality. Written before the oral argument, the article provides an overview of some of the main constitutional and linguistic topics at play in the PPACA cases.
An interesting case in Michigan, in which a Tax Tribunal decision was reversed by Camp Retreats Foundation, Inc. v. Township of Marathon (Mich. Ct. App. May 15, 2012). The question is whether a camp was exempt from property taxes; the camp was rentable by the general public (and sometimes rented by the public), but it was mostly used by Muslim groups, “because (i) the facilities were constructed so that separate ‘villages’ are available to boys and girls such that a ‘conducive environment’ is created to ‘manage the two genders,’ and (ii) word of mouth of the availability of the subject facilities was generated through Muslim lines of communication.” The main user was a summer camp that had a pretty clearly Muslim focus, with a good deal of time devoted to prayer and study of the Koran, and with the rules providing that:
All participants must observe Islamic laws, which includes but is not limited to, good moral standards, maintaining proper hijab, keeping away from backbiting and gossiping, presenting oneself with respect and dignity, maintaining decency with appropriate clothing and more. Brothers and sisters must show respect for each other. Any misconduct may lead to expulsion from the camp if deemed necessary.
Under Michigan law, a property-owning organization is treated as a charitable organization and can therefore claim tax-exempt status for its property when it is organized “for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government” and at the same time “does not offer its charity on a discriminatory basis by choosing who, among the group it purports to serve, deserves the services.” The Township argued that Camp Retreats didn’t qualify, because, in relevant part,
1) it discriminates in determining who can use the subject property, 2) participation in the Tawheed Summer Camp, sponsored by Petitioner’s parent organization, and the primary user of the subject facilities, is conditioned specifically on observance of Islamic laws and management, [and] 3) Petitioner has not established by testimony or exhibits that Petitioner’s purpose is to “bring people’s minds or hearts under the influence of education or religion,” nor do they “relieve people’s bodies from disease, suffering or constraint[.]“
The Tax Tribunal concluded that Camp Retreats was indeed not a charity, because it was “is chiefly organized for recreational purposes rather than for charitable purposes.” The Tribunal’s opinion didn’t discuss the “bringing … minds or hearts under the influence of … religion” part of the test, and relied on the fact that the articles of incorporation for the camp focused on recreation rather than religion.
The Michigan Court of Appeals reversed, reasoning that the tax tribunal should have looked at how the property was actually used rather than focusing on what the articles of incorporation said, and that the actual use of the property was indeed charitable under Michigan law:
In reaching [its] conclusions, the Tribunal disregarded its own factual determination that the facility was chiefly used as camp for children and families of the Muslim faith, and in so doing misapplied the law. We find that the property fulfills the requirements of a charity because its primary use focuses on “bring[ing] people’s minds or hearts under the influence of … religion,” and it offers this charity on a nondiscriminatory basis.
Continue reading ‘Tax Exemption Law and Camp Predominantly Used by Muslims’ »
Kyle Graham takes a look into this critical question. My own name can be turned into “Ink Error,” which certainly was true of my first article or two. Entertain yourself here.
Supreme Court Justice Stephen Breyer has had a home robbed twice in the past three months. First burglars raided his Carribbean vacation home, while Breyer was there with guests. Then, earlier this month, his Washington, D.C. home was robbed too.
I was happy to hear that the cloture vote on the nomination of Paul Watford to the Ninth Circuit will be held Monday, and I very much hope that Paul will be confirmed. For those interested, here’s my post praising Paul, whom I know well, Orin’s post praising Paul, my letter to the Senate Judiciary Committee urging that Paul be confirmed, and many Kozinski clerks’ letter urging the same. UPDATE: See also these letters from local prominent conservative lawyers (both former presidents of the L.A. Federalist Society chapter), Henry Weissmann and Jeremy Rosen, plus the General Counsels of CIRCOR, Verizon, Mattel, and Google.
This morning, in Shelby County, Alabama v. Holder, a divided panel of the U.S. Court of Appeals for the D.C. Circuit rejected a constitutional challenge to Section 5 of the Voting Rights Act. The 60+ page opinion for the Court by Judge Tatel (joined by Judge Griffith) begins:
: In Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504 (2009), the Supreme Court raised serious questions about the continued constitutionality of section 5 of the Voting Rights Act of 1965. Section 5 prohibits certain “covered jurisdictions” from making any change in their voting procedures without first demonstrating to either the Attorney General or a three-judge district court in Washington that the change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets. Although the Court had no occasion to resolve these questions, they are now squarely before us. Shelby County, Alabama, a covered jurisdiction, contends that when Congress reauthorized section 5 in 2006, it exceeded its enumerated powers. The district court disagreed and granted summary judgment for the Attorney General. For the reasons set forth in this opinion, we affirm.
Senior Judge Williams dissented. His opinion begins:
Section 5 of the Voting Rights Act imposes rather extraordinary burdens on “covered” jurisdictions—nine states (and every jurisdiction therein), plus a host of jurisdictions scattered through several other states. See Voting Section, U.S. Dep’t of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited May 9, 2012) (listing the covered jurisdictions). Unless and until released from coverage (a process discussed below), each of these jurisdictions must seek the Justice Department’s approval for every contemplated change in election procedures, however trivial. See 42 U.S.C. § 1973c. Alternatively, it can seek approval from a three-judge district court in the District of Columbia. See id. Below I’ll address the criteria by which the Department and courts assess these proposals; for now, suffice it to say that the act not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.
Section 4(b) of the act states two criteria by which jurisdictions are chosen for this special treatment: whether a jurisdiction had (1) a “test or device” restricting the opportunity to register or vote and (2) a voter registration or turnout rate below 50%. See 42 U.S.C. § 1973b(b). But § 4(b) specifies that the elections for which these two criteria are measured must be ones that took place several decades ago. The freshest, most recent data relate to conditions in November 1972—34 years before Congress extended the act for another 25 years (and thus 59 years before the extension’s scheduled expiration). See id. The oldest data—and a jurisdiction included because of the oldest data is every bit as covered as one condemned under the newest—are another eight years older. See id.
Of course sometimes a skilled dart-thrower can hit the bull’s eye throwing a dart backwards over his shoulder. As I will try to show below, Congress hasn’t proven so adept. Whether the criteria are viewed in absolute terms (are they adequate in themselves to justify the extraordinary burdens of § 5?) or in relative ones (do they draw a rational line between covered and uncovered jurisdictions?), they seem to me defective. They are not, in my view, “congruent and proportional,” as required by controlling Supreme Court precedent. My colleagues find they are. I dissent.
Next stop, the Supreme Court.
There are so many reasons why drug prohibition is objectionable, it is hard to enumerate them all. In my Utah Law Review article, The Harmful Side Effects of Drug Prohibition, I try to systematically survey just the “consequentialist” arguments against this socially-destructive social policy. If I were to revise this article today, I suppose I would emphasize even more than I did how destructive the “War on Drugs” has been to the black community, perhaps especially because of the incarceration of thousands of black men, depriving their children of fathers, but also because of how the black market profits from the illicit drug trade supports the gang structure that preys upon the community and sucks up its kids. Then there is the differential enforcement of drug laws in minority communities. And I would emphasize how the abnormal profits to be made from black market drugs is systematically destroying the entire political culture of Mexico. All this to stop some people from getting high.
But, as I said, the problem with assessing the War on Drugs is that there are so many harmful “side effects” of drug prohibition that it is difficult even to know where to begin. This article is my effort to be as comprehensive about these effects, yet still be accessible. Here is the abstract:
Some drugs make people feel good. That is why some people use them. Some of these drugs are alleged to have side effects so destructive that many advise against their use. The same may be said about statutes that attempt to prohibit the manufacture, sale, and use of drugs. Advocating drug prohibition makes some people feel good because they think they are “doing something” about what they believe to be a serious social problem. Others who support these laws are not so altruistically motivated. Employees of law enforcement bureaus and academics who receive government grants to study drug use, for example, may gain financially from drug prohibition. But as with using drugs, using drug laws can have moral and practical side effects so destructive that they argue against ever using legal institutions in this manner.
This article will not attempt to identify and “weigh” the costs of drug use against the costs of drug laws. Instead, it will focus exclusively on identifying the harmful side effects of drug law enforcement and showing why these effects are unavoidable. So one-sided a treatment is justified for two reasons. First, a cost-benefit or cost-cost analysis may simply be impossible. Second, discussions by persons who support illegalizing drugs usually emphasize only the harmful effects of drug use while largely ignoring the serious costs of such policies. By exclusively relating the other side of the story, this article is intended to inject some balance into the normal debate.
The harmful side-effects of drug laws have long been noted by a number of commentators, although among the general public the facts are not as well known as they should be. More importantly, even people who agree about the facts fail to grasp that it is the nature of the means — coercion — chosen to pursue the suppression of voluntary consumptive activity that makes these effects unavoidable. This vital and overlooked connection is the main subject of this article.
You can download it here.
Adam White finds Jeffrey Toobin re-writing history in his much discussed New Yorker article on Citizens United. As Toobin set up the story, Citizens United was a little case, involving a “narrow” statutory question. According to Toobin’s New Yorker article, “There did not see to be a lot riding on the outcome.”
White finds Toobin’s account “preposterous.” As White notes, the day before the argument the NYT editorial page inveighed against the “wide array” of “sweeping” and “dangerous” claims made by Citizens United. Likewise SCOTUSBlog’s Lyle Denniston noted CU was asking the Court for “a sweeping rejection of congressional authority to regulate campaign spendingby corporations.” A CNN analyst named Jeffrey Toobin made the same point, opining the day of the oral argument that CU has “a pretty good case” and that the Court could “either say you have to come up with another way to regulate or this kind of regulation is simply unconstitutional.”
I was out of town most of last week and I wasn’t planning on blogging any more on the increasingly bizarre saga of Elizabeth Warren’s claim to Native American ancestry, which as of the current moment appears to be entirely unsubstantiated. But I was surprised to see Brian Leiter’s post doubling-down in his defense of Warren–and calling me a “Stalinist” to boot (although I confess it is not clear why or how he is using that term). So I hope you will indulge me while I respond.
First, let me say again what I expressed at the outset–I have known from highly-credible sources for a decade that in the past Warren identified herself as a Native American in order to put herself in a position to benefit from hiring preferences (I am certain that Brian knows this now too). She was quite outspoken about it at times in the past and, as her current defenses have suggested, she believed that she was entitled to claim it. So there would have been no reason for her to not identify as such and in fact she was apparently quite unapologetic about it at the time. As for the current kerfuffle, at most she has said that she can’t recall whether she did so as part of the Harvard process but hasn’t addressed whether she did so earlier in her career (raise your hand if you “don’t recall” whether you ever considered yourself to be a minority). And, of course, Harvard must’ve gotten the information from somewhere (and as has been noted, it couldn’t have been from the AALS Directory, which doesn’t fine-grain the classification to that extent). Warren has been mum on the topic as to whether she ever checked the “Native” box at some point and has ignored Scott Brown’s requests that she release her employment applications, such as her AALS form.
For those who still claim to be uncertain about this note one final point–that the only competing explanation that she has offered is that she identified herself as minority only in order to find similar people with whom to have lunch. There is no option C–either she did it only to find people with whom to have lunch (which she acknowledges never actually happened) or she did it at least in part to put herself in a position to benefit from hiring preferences. Moreover, note that the arguments are not symmetrical–she and her defenders must be claiming that she had zero intent to put herself in position to gain a hiring preference by identifying as a minority. My impression is that there are some people who really want to believe that there is some other explanation–but there isn’t. That’s the only alternative. So if you want to question whether she intended to put herself in a position to benefit from hiring preferences then you must be implicitly endorsing her “lunch” explanation. If so, then please come on out and say expressly that you endorse her explanation. Because those are the only two options on the table. So if you disagree with what I’m saying and questioning my sources then please state that you are endorsing what she said.
Second, Brian seems to believe for some reason that the issue here is whether Warren actually benefited from a hiring preference. Of course it is not (as my post makes eminently clear). The issue I raised is whether Warren made assertions as part of the law school hiring process in order to put herself in a position to benefit from a hiring preference for which she had no foundation. Whether she actually benefited from resume fraud is beside the point, just as it was beside the point whether Yahoo’s recently-sacked CEO gained that position because he claimed to have a computer science major 20 years ago. Would it matter if he could demonstrate that he would have been hired to be CEO anyway even if he hadn’t lied about having a computer science degree? I don’t think so–or at least it didn’t matter to Yahoo’s directors. (In fact, we at George Mason rescinded an offer to a candidate a few years ago because we discovered that the person had misrepresented his/her resume). Or consider another example–would it matter if a tenure candidate had plagiarized, say, three articles, if he had a sufficient number of non-plagiarized articles to be granted tenure? I would hope not. (Although I acknowledge that Harvard may have different standards on this issue.)
Third, regardless of why she did it,Warren herself actually had no verifiable basis for her self-identification as Native American. At the very least her initial claim was grossly reckless and with no objective foundation–it appears that she herself has never had any foundation for the claim beyond “family lore” and her “high cheekbones.” And, in fact, the accuracy of the statement is increasingly falling into question. To the extent that any supporting evidence has trickled out, it has not been provided by her (nor, interestingly enough, did she ever expressly endorse anything that was produced by others). Now it turns out that the New England Historical Genealogical Society, which had been the source for the widely-reported claim that she might be 1/32 Cherokee, has rescinded its earlier conclusion and now says “We have no proof that Elizabeth Warren’s great great great grandmother O.C. Sarah Smith either is or is not of Cherokee descent.” The story adds, “Their announcement came in the wake of an official report from an Oklahoma county clerk that said a document purporting to prove Warren’s Cherokee roots — her great great great grandmother’s marriage license application — does not exist.” A Cherokee genealogist has similarly stated that she can find no evidence to support Warren’s claim. At this point her claim appears to be entirely unsupported as an objective matter and it appears that she herself had no basis for it originally.
Fourth, Brian’s post also states the obvious–that there is plenty of bad blood between Elizabeth and myself. But, of course, the only reason that this issue is interesting and relevant today is because Warren is running for the U.S. Senate and is the most prominent law professor in America at this moment.
So, I guess I’ll conclude by asking the obvious question: if a very prominent conservative law professor (say, for example, John Yoo) had misrepresented himself throughout his professorial career in the manner that Elizabeth Warren has would Brian still consider it to be “the non-issue du jour“? Really?
I’m not sure what a “Stalinist” is. But I would think that ignoring a prominent person’s misdeeds just because you like her politics, and attacking the messenger instead, just might fit the bill.
Update: Sorry, I forgot to mention this report about Texas and Penn, that indicate that she was listed as white at Texas and at U Penn records that list her as minority faculty there in at least one context but her full employment records haven’t been released there.
In the recent case of Bowlby v. City of Aberdeen, the Fifth Circuit Court of Appeals just ruled that Fourteenth Amendment Due Process Clause property rights claims can be filed in federal court, despite the fact that the Supreme Court’s 1985 Williamson County decision bars many Takings Clause property rights claims from federal courts.
Robert Thomas of the Inverse Condemnation blog has a good summary of the relevant issues:
If you tried to explain the practical results of Williamson County’s ripeness requirements to someone not familiar in the last 30 years of regulatory takings jurisprudence, they would probably think you were joking….
[U]nder Williamson County, a property owner alleging a violation of her express federal constitutional right prohibiting takings without just compensation cannot bring that federal constitutional claim in a federal court. Instead, she is first required to present her state claim for compensation to a state court before she can even think of a federal action. And if she loses in state court, she will be deemed to have also litigated the federal claim, even if she expressly did not. Williamson County’s rationale was that there is no violation of the Fifth Amendment by a state or local government unless and until the property owner could both show that there was a taking, and that the state had denied compensation. So, you see, you have to lose your state takings claim to ripen your federal takings claim….
Williamson County gets particularly bizarre when courts extend it beyond the takings clause, since what thin justification exists for the rule is grounded in the language of the Fifth Amendment. Yet, the lower federal courts regularly apply it to Equal Protection and Due Process Claims, somehow transforming Williamson County from a limited takings requirement to a full-blown bar to the federal courthouse door for any plaintiff alleging a property-related claim….
Well, in Bowlby v. City of Aberdeen, No. 11-60279 (May 14, 2012), the U.S. Court of Appeals for the Fifth Circuit provided a different view, and injected a modicum of reality into the strange world of Williamson County. We won’t go too far into the case’s details, except to say that the plaintiff had a business permit, which the City summarily revoked. She sued in federal court for a taking and for procedural due process and equal protection violations, and the court promptly dismissed her complaint under Williamson County. She did not pursue an appeal of the takings dismissal, but asserted that Williamson County’s state litigation requirement of that case did not require dismissal of the due process or equal protection claim…..
The Fifth Circuit reversed, concluding that Williamson County is applicable only to takings claims, and not due process or equal protection [property rights] claims.
The Fifth Circuit is correct in ruling that there is precedent indicating that Takings Clause claims are treated differently from Due Process Clause and equal protection claims (see pp. 10-11 of the opinion). On the other hand, the logic of Williamson County is broad enough to cover not only other types of property rights cases, but nearly all constitutional rights claims against state and local governments. For example, if a state government tries to suppress an individual’s freedom of speech, we could require him to sue in state court because the government action might turn out to have been illegal under state law, or a violation of the state constitution. The same goes for any action by state or local government that might violate the federal constituion: there’s always a chance that a state court might strike it down as a violation of state law. Williamson County ruled that this possibility requires takings claims to be litigated in state court and then (in most cases) barred from federal court even if the property owner loses her state case. But the same “logic” readily applies to most other constitutional cases against state and local governments.
As I explained here, this arbitrary singling out of takings cases is one more example of the second class status of property rights in modern constitutional jurisprudence. In the 2005 San Remo case, four justices – including Justice Kennedy and Justice O’Connor, joined Chief Justice William Rehnquist’s concurring opinion arguing that the Court should reverse Williamson County and allow Takings Clause cases the same access to federal courts routinely extended to citizens asserting other violations of other constitutional rights:
The Court.. remark[s], that state courts are more familiar with the issues involved in local land-use and zoning regulations, and it suggests that this makes it proper to relegate federal takings claims to state court. Ante, at 23. But it is not apparent that any such expertise matches the type of historically grounded, federalism-based interests we found necessary to our decision in Fair Assessment. In any event, the Court has not explained why we should hand authority over federal takings claims to state courts, based simply on their relative familiarity with local land-use decisions and proceedings, while allowing plaintiffs to proceed directly to federal court in cases involving, for example, challenges to municipal land-use regulations based on the First Amendment….
Williamson County’s state-litigation rule has created some real anomalies, justifying our revisiting the issue. For example, our holding today ensures that litigants who go to state court to seek compensation will likely be unable later to assert their federal takings claims in federal court….
I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic.
Hopefully, the Supreme Court will eventually change its position on this issue, much as Rehnquist did.
UPDATE: Joshua Thompson of the Pacific Legal Foundation has more information about the case here. PLF filed an amicus brief supporting the property owner, which was extensively relied on by the Fifth Circuit in its decision.
UPDATE #2: Since property rights issues often split jurists along ideological lines, it is perhaps worth noting that all three judges on this panel were Democratic appointees.
UPDATE #3: I should briefly explain why it matters that these cases be able to go forward in federal court rather than state court. In many cases, state judges will protect federal constitutional rights just as well as federal courts do. In some situations, however, that will not be the case, either because the state judges are less competent than their federal counterparts or because they are less willing to uphold claims against the state government that they serve. The latter is particularly likely in cases where state judges (many of whom are elected) are part of the same political coalition as the state officials whose actions are being challenged as unconstitutional. As the Supreme Court explained in the famous case of Martin v. Hunter’s Lessee (1816):
It is… argued, that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own [federal] courts…. [A]dmitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wisdom, as those of the courts of the United States, (which we very cheerfully admit,) it does not aid the argument. It is manifest that the constitution has proceeded upon a theory of its own…. The constitution has presumed…. that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals.
The U.S. Justice Department opined May 14 that the First Amendment does secure such a right, reaffirming a January letter that I had missed. “Recording governmental officers engaged in public duties,” the letter reasons, “is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”
The letter, addressed to the Baltimore Police Department based on the Department’s past interference with such recording, is consistent with the Seventh Circuit’s May 8 decision in ACLU v. Alvarez (which it doesn’t cite) and the First Circuit’s decision in Glik v. Cunliffe (which it does cite, together with some other cases).
Yesterday’s Wall Street Journal reports:
Iranian rapper Shahin Najafi … is now being dubbed the Salman Rushdie of music after two influential clerics in Iran issued fatwas — religious edicts — justifying his murder on grounds of blasphemy [based on a song in which Najafi calls on a Shiite saint, Ali an-Naqi, to save Iran] ….
Mr. Najafi … lives [in Germany] and, since last week, has been in hiding under the protection of German police….
The senior clerics empowered to issue fatwas act independently of the government — but anyone who carries out a death fatwa is granted impunity under Iranian law….
An Iranian website, Shia-Online, [has] put a $100,000 bounty on Mr. Najafi’s head ….
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments
The just-enacted Ariz. Rev. Stat. § 41-1493.04 provides, in relevant part:
B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.
C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.
And “exercise of religion” is defined (in § 41-1493.01) very broadly:
“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
I take it that the new provision doesn’t literally mean that the government shall not deny a person an appointment or position based on the person’s ability to act in a particular way, since everybody is able to do so. It’s also possible that section C will be read not just as not authorizing criminal conduct (a meaning that’s relevant to section A, which I hope to blog about separately), but as also exempting criminal conduct from section B, though that is not section C’s literal meaning. The new law, coupled with the old, would then essentially mean:
Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s … [non-criminal] [action or inaction that is] substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
Even read this way, though, the statute would be quite remarkably broad. Government officeholders and board and commission members are often selected based on their ideological beliefs and certainly on their past actions. People who discriminate based on race or religion or sexual orientation in their companies – whether such discrimination is civilly actionable or not – might not be selected for membership on a human rights commission. Notorious advocates of the use of faith healing instead of traditional medicine might not be selected for a medical regulatory board.
Lawyers who have violated bar rules (for instance, by breaching client confidences, even for powerful moral reasons) might not be selected for membership on bar disciplinary committees. People who live in households that are essentially polygamous (but don’t try to engage in a formal polygamous marriage) might not be appointed as family court judges. [UPDATE: Likewise, people who have publicly stated that they oppose the death penalty under all circumstances might not be appointed to the Board of Executive Clemency.] The list could go on.
Yet, if taken seriously, this law would bar all such selection decisions, if the person’s discriminatory conduct, public support for faith healing, breach of client confidences, [UPDATE: public opposition to the death penalty], or polygamy were religiously motivated. Even if the appointing official is not at all motivated by the prospective appointee’s religiosity, but is focused solely on the appointee’s past conduct, the law bars discrimination even based on that conduct, so long as the appointee engaged in that conduct for religious reasons.
This seems to me to be wrong. There are good arguments for having laws that authorize presumptive exemptions for people who have religious objections (or, I think, secular conscientious objections) to generally applicable laws. But (1) those arguments are much weaker, I think, when we’re not talking about the government acting as sovereign, restricting what we do, but are talking about the government acting as employer of high-level decisionmakers. (Note that “public office” in Arizona refers not to all public employment, but to certain kinds of relatively high-level decisionmaking appointments.) And (2) they make sense only to the extent that they call for a presumptive exemption that can be overcome by a showing of sufficient government need, not a categorical exemption.
Thus, for instance, federal religious accommodation law requires employers (private and governmental) to accommodate employees’ religiously motivated behavior when such accommodation doesn’t impose “undue hardship” on the employer. State Religious Freedom Restoration Acts (including such an act that has been the law in Arizona for some years) could be read as imposing similar protection, or as providing higher protection that can only be overcome by a showing that the government has a “compelling interest” in restricting its employees’ religiously motivated behavior.
But this law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law.
On Monday, a federal district court struck down a new National Labor Relations Board rule that would have accelerated the pace of union certification elections. According to the court’s opinion the NLRB lacked a quorum when it adopted the rule. The opinion begins:
According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.
On December 22, 2011, the National Labor Relations Board published a rule that amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining. Two of the Board’s three members voted in favor of adopting the final rule. The third member of the Board, Brian Hayes, did not cast a vote. Because Hayes had previously voted against initiating the rulemaking and against proceeding with the drafting and publication of the final rule, the Board nevertheless determined that he had “effectively indicated his opposition.”
In this suit, Plaintiffs – the Chamber of Commerce of the United States of America and the Coalition for a Democratic Workforce – challenge the final rule on myriad grounds. The Court, however, reaches only their first contention: that the rule was adopted without the statutorily required quorum. Absent limited circumstances not present here, the Board must muster a quorum of three members in order to act. Because Member Hayes did not participate in the decision to adopt the final rule, Plaintiffs argue, the other two members of the Board lacked the authority to effect its promulgation. The NLRB, on the other hand, maintains that all three members participated in the rulemaking in the relevant sense and, accordingly, that the quorum requirement was satisfied. The agency has now filed a Motion for Summary Judgment and an Alternative Partial Motion to Dismiss, and Plaintiffs have filed a Motion for Summary Judgment.
Plaintiffs are correct. Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle. Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand. The Court, consequently, will grant Plaintiffs’ Motion and deny Defendant’s.
A new study suggests those who drink coffee live longer, even if they stick to decaf. Time for another cup.
Yesterday, in Gagne v. Booker, the full U.S. Court of Appeals for the Sixth Circuit splintered along unusual lines over the application of Michigan’s rape-shield statute to exclude evidence relating to the complaining witness’ prior sexual conduct with the defendant. Lewis Rodney Gagne was accused of gang raping his ex-girlfriend and sought to introduce evidence that she had consented to rough, group sex with Gagne and other men on at least one prior occasion. The trial court refused to admit this evidence due to Michigan’s rape shield law. In his habeas petition, Gagne claimed the trial court’s decision violated his constitutional right to present an effective defense. The distrcit court granted Gagne habeas relief and a three-judge panel of the Sixth Circuit affirmed (then with an amended opinion). Sitting en banc, the Sixth Circuit reversed, 11-5.
What makes this decision particularly interesting is the procedural posture of the case, the appeal of a denial of a writ of habeas corpus, as the Sixth often splits along ideological lines in habeas cases. Here, however, the judges did not split along traditional ideological lines. Chief Judge Alice Batchelder delivered the opinion of the court denying habeas relief with an opinion for a seven judge plurality. Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin joinedthe Chief Judge. Judge Moore concurred in the judgment only, joined by Cole and Clay, as did Judge White. Judge Kethledge dissented, joined by Judges Martin, Norris, Rogers and Stranch.
Judge Katherine B. Forrest of the Southern District of New York, a freshly-appointed Obama nominee, issued a surprising ruling on Wednesday preliminarily enjoining Congress’s recent law providing the President with the authority to detain individuals indefinitely as part of the war on terror. I find Judge Forrest’s analysis quite puzzling, so I thought I would blog a bit about the opinion.
The law is Section 1021 of the National Defense Authorization Act for Fiscal Year 2012. Entitled “Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force,” the Section states:
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
Some readers may recall that President Obama issued a signing statement when he signed the bill that added a cautious note about this provision. It stated in relevant part:
Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.
In this case, Hedges v. Obama, Congress’s statement about the Executive Branch’s power has been challenged as facially unconstitutional by a group of plaintiffs, consisting primarily of a member of the Icelandic Parliament; a London-based pro-Wikieaks activist; and two U.S. based journalists who write about the war on terror. The plaintiffs claim that Congress’s effort to provide the executive branch indefinite detention power makes them fear that they are “subject to prosecution under Section 1021,” and that the law infringes upon their First and Fifth Amendment rights. In defending the law, DOJ has taken the view that the law merely restates the Executive Brach’s power under the AUMF. Although DOJ declined to say whether the detention power could cover any of the individual plaintiffs, DOJ also claimed that the plaintiffs lacked standing.
In her opinion, Judge Forrest finds that the plaintiffs have standing to challenge the law because they might be “prosecuted” under the law, particularly because DOJ refused to answer whether the law covered any of the individual plaintiffs. She then preliminarily enjoins the law because it likely violates the First and Fifth Amendments. The key to the First Amendment analysis seems to be this passage:
Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.
Applying strict scrutiny to the question of whether there is a compelling government interest that outweighs infringement upon First Amendment rights, the Court finds that plaintiffs have shown a likelihood of success that there is not. Again, that is particularly so in light of the Government’s position that §1021 does no more than the AUMF; therefore, the infringing potential for § 1021 may well be unintentional, but it is real nonetheless. There is no doubt that the type of speech in which Hedges, O’Brien, Wargalla, and Jonsdottir engage is political in nature. It is also likely that some of their views may be extreme and unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.
. . .This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.
Judge Forrest next concludes that the law also is likely void for vagueness under the Fifth Amendment because it doesn’t indicate clearly what conduct Congress is subjecting to criminal penalties. First, she concludes that Congress’s effort to give the President detention power is effectively a criminal law:
[T]his Court preliminarily finds that § 1021, which could be used for the indeterminate military detention, is sufficiently akin to a criminal statute to be treated as such. At the hearing on this motion, the Government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under § 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years. In relevant part, then, that is the analytical equivalent of a penal statute.
Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”
Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I’m not sure it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law facially on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct. You could have an as-applied challenge to detention under the First Amendment, but I don’t see how a law expressing Congress’s view of the Executive Branch’s detention power can be subject to this sort of facial challenge. Also, I don’t understand why Judge Forrest sees DOJ’s refusal to say whether the law authorizes the detention of any of the individual plaintiffs likely renders the law facially unconstitutional. I can see why it helps grant standing under Clapper, but why does it indicate the unconstitutionality of the statute on the merits? Further, Judge Forrest’s view that Section 1021 is akin to a criminal statute because it might be used to justify military detention strikes me as odd: The authority that Section 1021 tries to reaffirm is not detention relating to criminal authorities, so I don’t know why the statement of authority is “the analytical equivalent” of a crime. Finally, I’m not sure how a member of the Icelandic Parliament who lives in Iceland has standing to bring a facial challenge to a federal law. What U.S. constitutional rights does an Icelandic member of parliament have that this law might violate? I realize that the Second Circuit’s view of standing is now super-broad under the recent Clapper case, which DOJ recently asked the Supreme Court to review, but I’m not sure I follow how Article III standing is that broad.
My reaction may partially reflect my familiarity with the many statutes that Congress has passed authorizing federal agents to make criminal arrests — that is, detentions for criminal activity. For example, 18 U.S.C. 3052 authorizes FBI agents to “make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” This is a statute that tries to define executive power, not to punish conduct. It would be pretty strange if a group of plaintiffs could file a civil lawsuit, express fear that they might be arrested by the FBI, and thereby obtain an injunction against warrantless arrest under 3052 if DOJ refuses to say if the plaintiffs might be arrested — all on the ground that 3052 authorizes detention and is therefore like a criminal statute, while it isn’t sufficiently clear as to what conduct it “prohibits.” Such a suit would seem quite strange because 3052 doesn’t “prohibit” anything; it merely provides for a detention power to help enforce conduct prohibited elsewhere. I’m not sure why Section 1021 should be treated differently.
Anyway, Judge Forrest’s decision has more symbolic importance than actual importance: It’s not clear what it even means to enjoin a law that expresses Congress’s view about executive power. And this is just a preliminary injunction ruling, not a final ruling on the merits. But I thought the opinion is pretty interesting nonetheless, and I look forward to comments from readers who think there is more to the decision than I am currently seeing. (I should add that Glenn Greenwald — a harsh critic of the detention law on policy grounds — has a post celebrating the decision that runs through some of its reasoning. Glenn doesn’t express a view as to whether the decision is persuasive as a matter of law, but he does call the ruling “amazing” and indicates that he saw the case as an “uphill battle” for the plaintiffs and that he did not expect the plaintiffs to succeed. For Glenn’s views, see here.)
UPDATE: For more good questions about the decision, check out the LawFare Blog: In particular, Steve Vladeck’s post, Why Hedges v. Obama is Terribly Perplexing, and Bobby Chesney’s post, Issues with Hedges v. Obama, and a Call for Suggestions for Statutory Language Defining Associated Forces.
Pacquiao was scheduled for an interview on Wednesday afternoon with Mario Lopez of TV’s “Extra” at The Grove in Los Angeles, but … Grove VP of corporate affairs Bill Reich … [issued a statement that] read, “Based on news reports of statements made by Mr. Pacquiao we have made it be known that he is not welcome at The Grove and will not be interviewed here now or in the future. The Grove is a gathering place for all Angelenos and not a place for intolerance[.]“
According to the CBS piece, Pacquaio — who is also a congressman in the Philippines — “told the National Conservative Examiner that he believes the Bible is very clear on the issue of homosexuality and that the President’s comments are in direct contradiction to Scripture,” saying “God’s words first”; “Obey God’s law first before considering the laws of man.” Then the writer of the article quoted the Leviticus passage stating, “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.” Pacquaio now denies having quoted Leviticus on this or otherwise “stat[ing] that anyone in the gay community ‘deserved death,’” but it’s possible that the Grove VP believed that Pacquaio had indeed made such a statement.
In any event, it appears that the Grove, as a pretty large open-air shopping mall, is barred by the California Constitution, as interpreted by the California Supreme Court in Robins v. PruneYard Shopping Center (1979) and Fashion Valley Mall v. NLRB (2007), from excluding Pacquaio. The California courts have held that speech is just as protected against content-based restrictions by these large shopping mall owners as it is against content-based restrictions by the government in its role as owner of sidewalks and parks; and this is true even when the content of the speech may undermine the shopping center’s (and its tenants’) business interests (e.g., when it calls for a boycott of some of the tenants). I think that likewise the shopping center can’t restrict speech based on its moral disapproval of the speaker’s political views, or its perception that other patrons might find those views offensive.
To be sure, here the restriction is imposed based on the content and viewpoint of the speaker’s outside speech, and not necessarily the content of the likely speech in the mall. But I think that, one way or the other, the Grove’s restriction would be treated as content-based and violative of the California Constitution (though it seems unlikely that Pacquaio or his prospective interviewer will sue the Grove over this).
I say this just as a description of California law; I don’t think that the California Supreme Court’s decision in Robins was a sound interpretation of the California Constitution, and I’m pleased that only about half a dozen state courts, when I last checked, have taken a similar view of their state constitutions. Thanks to Daniel Watts for the pointer.
My co-authored law school textbook Firearms Law & the Second Amendment; Regulation, Rights, and Policy (Aspen Casebook Series) is currently battling with Ted Nugent’s God, Guns & Rock’N'Roll for #1 in Amazon.com sales rankings in the “Gun Control” category. We held the lead a few hours ago, but The Nuge has clawed his way back to #1 in the last hour.
In July 1798, Congress enacted a direct tax to raise revenue for national defense against France. The “House Tax” imposed taxes on land, houses, and slaves. As required by Article I, section 9, clause 4 of the Constitution, this direct tax was apportioned by state population. Fries’s Rebellion, which was eventually suppressed by President Adams, involved violent resistance to this tax, based on the claim that the tax was unconstitutional. Because the direct tax was properly apportioned, it seems perfectly constitutional to me. Does anyone know the specifics of the constitutional objection to the House Tax?
When it’s pushed by the Republican leadership, is located in a politically important state, and is carefully written to avoid the official definition of an “earmark.” (HT: Instapundit)
One of the crucial hallmarks of the so-called New Originalism is the recognition that there is a difference between two types of activities: the activity of interpretation and the activity of construction. Interpretation is the activity of ascertaining the semantic meaning of a text, including both its express and implied meanings, and taking into account the context of its utterance. In short it is the effort to discern as accurately as possible the information conveyed by a text. Construction is the activity of putting that meaning into action, or applying that meaning to particular cases and controversies when the information provided by the text is insufficient on its own and requires some sort of supplementation. Original public meaning originalism is the empirical enterprise of identifying the public meaning of the text at the time of its enactment, and it accepts the normative principle that this meaning is “binding” — just how binding is a matter of some dispute among originalists – unless properly changed.
Although the labels “interpretation” and “construction” are not necessary, unless one gets the underlying distinction between these two types of activities, one simply does not understand what the New Originalism is about. For those who are interested in originalism, I have posted to SSRN, Interpretation and Construction, an 8-page essay that I gave as a speech at the Federalist Society National Student Symposium in Philadelphia. This short summary of the distinction does it somewhat better justice than the single paragraph above. You can download it here.
Here is the Abstract:
In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined.
This essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called “interpretation”— for example, something like “semantic interpretation” and “applicative interpretation.” Still, the terms “interpretation” and “construction” are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution.
The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.
We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.
The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)
Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)
Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.
The National Law Journal reports that the White House is largely to blame for the high number of vacancies on the federal bench.
Democrats have held conference calls and hosted activists from around the country to say the reason fewer federal judges have been confirmed during the last three years is clear: Republicans in the Senate have used their powers to stall most of the president’s nominees, even the noncontroversial ones.
But as a window appears to be closing at least temporarily to send any new judicial nominees to Capitol Hill, law professors and advocacy groups say Obama could have had more judges confirmed to the bench had he simply made more nominations over his first three-plus years in office.
Since Obama took office, he’s had a chance to make nominations for 241 federal judgeships. Some of them — 55 — were vacant slots held over from the Bush administration. Obama has nominated 188 judges, and the Senate has approved 147 of them. That leaves a current total of 94 vacancies — 77 vacant slots and 17 held by judges who have said they plan to retire. (The president can nominate a new judge before the position becomes vacant.)
At this point in their presidencies, George W. Bush had nominated 220 judges for 236 positions, and Bill Clinton had nominated 231 out of 260, according to a report by the Alliance for Justice, a left-leaning court advocacy group.
And despite filibuster threats and other behind-the-scenes delaying tactics, senators have confirmed Obama’s judicial picks at the same rate — roughly three out of four — as during the Clinton and Bush terms.
This is not a new observation, but it’s worth repeating. Without question Republicans have made it difficult to move judicial nominees, much as Democrats did when Presidents Bush and Bush were in the White House. Republicans have also resorted to the filibuster, prompting some on the other side to reconsider its use for judicial nominations. GOP opposition may have prompted more careful and extensive vetting and discouraged the naming of controversial nominees. In any event, obstruction of nominees is now the norm — and this norm is unlikely to change unless there is a pre-election deal, perhaps like the one I outlined here. Until such a deal can be made, judicial nominees will get slow-walked to the bench no matter which party is in charge.
Richmond Times-Dispatch columnist A. Barton Hinkle recently published this piece on a case of eminent domain abuse in Virginia:
As a general rule, progressives do not get worked up about property rights the way conservatives do. This is a mistake — as a case out of Norfolk shows.
To the progressive eye, property is bound up with materialism and wealth and greed and other yucky things. But property is also bound up with some things progressives hold dear. And even progressives were outraged when, in its 2005 Kelo decision, the Supreme Court said governments could take property from the poor and give to the rich.
That is what has been happening in Norfolk, where the city’s Redevelopment and Housing Authority has been using eminent domain to take dozens of pieces of private property for resale to a foundation run by Old Dominion University. The housing authority has been collecting commissions on the sales; the foundation has then been turning the property over to developers for their use as part of a swanky new University Village.
Among those properties is the building that houses Central Radio, whose story was detailed here back in May 2010. Some years ago, Norfolk offered to buy the property for a lowball price of $700,000 (more than a decade before, a developer had offered more than $1 million). Central Radio’s president, Bob Wilson, turned the city down. So the city slapped a spurious designation of “blighted” on the property and condemned it.
Norfolk couldn’t get away with that today. Virginia’s General Assembly has sharply curtailed such abusive use of eminent domain, precisely because of cases such as this one and others like it….
But the legislature’s changes to eminent-domain law included a grandfather clause, allowing Norfolk to proceed. Wilson is naturally cheesed off. He has vented his frustration by putting up on the side of his building a protest banner. (“50 years on this street,” it reads. “78 years in Norfolk. 100 workers. Threatened by eminent domain.” The words “eminent domain abuse” are surrounded by a red circle with a slash through it.)
But Norfolk officials apparently feel it is not enough to take away Wilson’s property. They also are trying to take away his right to free speech, by insisting that his banner violates the city’s sign ordinance….
Hinkle correctly notes that this is just one of several recent cases around the country in which local governments and influential developers not only engaged in dubious takings, but also tried to prevent property owners from speaking out against them. As he also points out, Virginia is one of a minority of states that has enacted strong post-Kelo eminent domain reform that will constrain abusive condemnations in the future. But as I documented in this article, in many other states reform still has a long way to go. Even in Virginia, eminent domain reform will not be fully secure in the long run until it has been incorporated into the state constitution, as well as statutory law.
Because blight and “economic development” takings tend to victimize the poor and politically weak for the benefit of the wealthy and politically powerful, they have generated widespread opposition on the left as well as the right. We will need greater cross-ideological cooperation on this issue to fully address the problem.
