by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law and ACS Faculty Advisor, University of California, Irvine School of Law
United States v. Apel, which I argued in the Supreme Court on December 4, involves the right to protest outside of a closed military base. Vandenberg Air Force Base, located in California, is surrounded by a fenced perimeter and entering requires going through a gate with an armed guard. About two hundred yards from the perimeter the military has painted a green line on the ground. Just outside this green line is Highway 1, Pacific Coast Highway. The military has given an easement to California for Highway 1, which is a fully open road with no signs to even indicate that it is part of the base. On the edge of Highway 1, on the public side of the green line, there is a designated protest zone.
My client, Dennis Apel, has been protesting outside of Vandenberg Air Force Base for the last 17 years. In 2003, right before the Iraq war, he threw blood against the wall, just inside the green line, which says, “Vandenberg Air Force Base.” He was convicted of vandalism and spent a short time in jail. He was issued a bar order keeping him from the base. In 2007, he went into the base in violation of his bar letter and was given a letter permanently barring him from entering Vandenberg.
On several occasions in 2010, he went to protest at Vandenberg. He always stayed on the public side of the green line in the public protest area on Highway 1. Military officials said that he was on base property in violation of the bar letter and ordered him to leave; when he refused he was prosecuted and convicted for violating 18 U.S.C. §1382, which prohibits entering a military base after a person has been barred.
The United States Court of Appeals for the Ninth Circuit reversed his conviction holding that §1382 applies only if the United States has exclusive possession of the area. This is in accord with the approach followed for decades, in the Ninth Circuit and courts throughout the country.
The United States government sought certiorari and argued that §1382 applies to all of the area owned by the United States and that national security was jeopardized by the Ninth Circuit’s approach. There were two questions before the Supreme Court: first, does §1382 apply to this public protest zone? Second, if so, does the First Amendment protect a right to engage in peaceful protest?
Last week the U.S. Supreme Court agreed to review two lower court decisions involving for-profit businesses seeking religious exemptions from the Affordable Care Act’s so-called “contraception mandate.” The mandate requires that employer healthcare plans cover all FDA-approved contraception without “cost-sharing”—that is, without a copayment or other out-of-pocket patient expense beyond the monthly plan premium. Churches and other “houses of worship” are fully exempt from the mandate, and there is a regulatory accommodation for religious nonprofits like religiously affiliated colleges and hospitals, which excuses them from complying with the mandate so long as they certify that compliance violates the tenets of their affiliated religion.
For-profit employers whose religious beliefs condemn the use of some or all of the mandated contraceptives have challenged the mandate under the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from imposing a “substantial burden” on a person’s religious practices unless it is pursuing an exceptionally important goal that it cannot accomplish in another way. These employers are claiming that RFRA grants them the same kind of exemption as has been granted to churches, synagogues, and other religious congregations, even though they are unambiguously secular enterprises like craft stores, auto parts manufacturers, construction companies, and medical supply businesses. (I examined the weaknesses in these cases in an ACS Issue Brief last fall).
One of the mandate decisions the Court will review, Hobby Lobby Stores, Inc. v. Sebelius(10th Cir. June 27, 2013), decided that a for-profit corporation that operates a nation-wide chain of craft stores is a “person” who “exercises religion” under RFRA and thus is entitled to its protections. The other decision, Conestoga Wood Specialties Corporation v. Sebelius(3rd Cir. July 26, 2013) went the other way, finding that a for-profit corporation that operates a cabinet-making business is not protected by RFRA, and additionally holding that the mandate does not violate free exercise rights protected by the First Amendment.
In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.” Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003. Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.
The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering. According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security. This is an enormous power: critics charge that it effectively places the president above the law. Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.
The Food and Drug Administration recently announced its tentative determination that most of the trans fatty acids in our diets – specifically, partially hydrogenated oils (PHOs) – are not “generally recognized as safe” within the meaning of the Food, Drug, and Cosmetic Act, and thus must be regulated as food additives. If the FDA finalizes this determination, then food manufacturers would need to obtain the approval of the FDA before selling PHOs in any food or as food ingredients. Approval would then depend, in turn, on a determination by the FDA that PHOs were safe after all. In this way, a final determination by the FDA that PHOs are not “generally recognized as safe” would effectively amount to a ban on their use in food.
The FDA’s proposed finding is a huge deal for public health. The agency estimates that eliminating PHOs from the food supply could prevent as many as 7,000 fatal heart attacks each year, plus up to 20,000 nonfatal heart attacks. Numerous scientific studies and expert review panels have drawn a link between dietary intake of trans fatty acids, blood cholesterol levels, and coronary heart disease. Additional studies have found that consumption of trans fatty acids may have other adverse health effects as well, perhaps even including an increased risk of diabetes.
There will be plenty of scrutiny of the FDA’s proposal in the weeks to come. For now, I want to point out one aspect of the proposal that might not be obvious. Although the determination of whether PHOs are “generally recognized as safe” is a strictly scientific one, one that demands “a reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use,” the FDA nevertheless appended a cost-benefit report to its preliminary scientific finding.
This past June, the Supreme Court struck down a key provision in “arguably one of the most successful acts passed by Congress in any area,” said Richard Reuben, the James Lewis Parks Professor of Law at the University of Missouri School of Law, at a recent event on Shelby County v. Holder hosted by the ACS University of Missouri School of Law Student Chapter.
The affected provision of the Voting Rights Act, Section 4(b), contains the coverage formula for determining which jurisdictions are subject to a preclearance requirement before they can amend their voting laws. Section 5 details the logistics of the requirement, which was designed to target states and local governments with a history of discriminatory practices. By declaring Section 4(b) unconstitutional under the claim that the formula was based on obsolete data, the Court essentially nullified Section 5. States that were once required to have a federal court or the Department of Justice sign off on changes to voter law may now proceed unchecked.
Appeals to Section 2 result from policies or practices in voting areas with a discriminatory purpose or result. Sadly, explained Ms. Fernandes, these after-the-fact remedies often take a long time, are very expensive and result in complicated litigation. Violations of the Fifteenth Amendment may also be remedied by preclearance requirements set forth in Section 3(c). Yet intentional discrimination must be a predicate in these cases, she said, and courts do not often find said discrimination.
In a post-Shelby world, Ms. Fernandes identified the need for a new, data-driven preclearance formula; the expansion of federal courts’ ability to institute preclearance requirements; and public notice and disclosure of voting law changes.