October 2012

  • October 31, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


    Fr. Robert Araujo, Professor of Law at Loyola University Chicago, and Richard Garnett, Professor of Law & Political Science at the University of Notre Dame, have posted critical reactions on Mirror of Justice to my ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.”

    Many of Fr. Araujo’s questions are answered in the Issue Brief, but one comment deserves a direct response. He suggests that I have elevated statutory and regulatory claims to no-cost contraception under the Affordable Care Act over more fundamental constitutional claims under the Free Exercise Clause, which he believes is violated by the mandate. One hears this free exercise rhetoric frequently from mandate opponents, but it misreads constitutional history and misunderstands the content of free exercise rights.

    The Free Exercise Clause does not protect a right of believers to be excused or exempted from complying with laws that generally apply to the rest of society, even when such laws burden their religious exercise. The Supreme Court has rarely recognized rights to free exercise exemptions, and then only in a few instances between the early 1960s and the late 1980s. The Court decisively rejected a general right to free-exercise exemptions in Employment Division v. Smith (1990), which it has repeatedly affirmed in the years since, most recently in Christian Legal Society v. Martinez (2010).

  • October 31, 2012

    by Jeremy Leaming

    In a number of states, Republican lawmakers have gone to great lengths to make voting a major pain. The Department of Justice, civil liberties groups and others have successfully fought to blunt many of those efforts. Now, in addition to Republican eagerness to limit voting, Hurricane Sandy has wrought large swaths devastation on the East Coast. Not only did Sandy knock out some early voting times in several states, it has left many of them with more work to ensure they will be prepared for Election Day.

    Michael Cooper, in a piece for The New York Times, says the “obstacles are formidable. More than 8.2 million households were without power by midday Tuesday, with more than a fifth of them in swing states – a potential problem in an age when the voting process, which once consisted of stuffing paper ballots into boxes, has been electrified.”

    Cooper’s piece notes that federal law gives states the ability to choose electors on a “subsequent day,” if they fail to do so on Election Day. But “prominent election lawyer Jerry H. Goldfeder says that while it may be legally “simple,” for states to choose how they might provide more voting opportunities after Election Day, “historically, politically and logistically, it would be highly extraordinary and unique event in American history.” Goldfeder said it likely makes more sense for Congress to clarify federal law to provide for a unified response to elections impacted by terrorist attacks or natural disasters.

    Some states as Cooper notes have restored some early voting periods. (For example, Maryland Gov. Martin O’ Malley ordered early voting centers to reopen on Oct. 31 and extended early voting until 9 p.m. on Nov. 2 at those centers.)

  • October 31, 2012
    Guest Post

    By Professor David D. Cole, Professor of Law, Georgetown Law


    What if the government was tapping your phone unconstitutionally and there was nothing you could do about it? You’d be living in the United States of America, at least as understood by the Justice Department. Solicitor General Donald Verrilli, Jr., argued in the Supreme Court on Monday, October 29, that, for all practical purposes, the government’s authority to intercept Americans’ international phone calls and emails could not be challenged by the very people most likely to be harmed by it – lawyers, journalists, and human rights activists who regularly engage in such international communications on the very subjects and with the very people the government is likely to be monitoring. Resolution of the case, Clapper v. Amnesty International, may determine whether the most expansive government spying program ever authorized by Congress will be subject to adversarial constitutional review. 

    The Bush administration famously argued that the president’s actions in “engaging the enemy” in the “war on terror” could not be limited by the other branches. It used that argument to justify a secret warrantless wiretapping program run by the National Security Agency that monitored United States citizens’ international communications, in contravention of a criminal statute.  Richard Nixon similarly asserted, when asked by David Frost why he thought he could authorize warrantless wiretapping during the Vietnam War, that “if the President does it, that means it’s not illegal.” To his credit, President Obama has rejected these theories of uncheckable power.  But in defending the most sweeping electronic surveillance authority Congress has ever enacted, he has sought a similar result by contending that, for all practical purposes, the surveillance cannot be challenged in court.

  • October 31, 2012
    Guest Post

    By J. Amy Dillard, Associate Professor of Law, University of Baltimore School of Law


    This morning, the U.S. Supreme Court will hear two cases that address whether the sniff of a dog constitutes a search of a home under the Fourth Amendment and whether a trained drug-sniffing dog’s “alert” gives probable cause for a warrantless search of a vehicle. 

    Where citizens have very low expectations of privacy like the exterior of luggage in an airport terminal, the Court has held that the warrantless sniff of a dog does not violate the Fourth Amendment. But in Florida v. Jardines, a trained police dog, without a warrant, sniffed the front porch and door of a home, where the occupant’s Fourth Amendment privacy interests were at her strongest; he alerted that drugs were within the home by sitting down at the front door. Based on the dog’s alert, police obtained a warrant to search the home and found marijuana plants. At issue in Jardines is whether the defendant had a Fourth Amendment interest in protecting the exterior of her home from a sniffing dog. In Florida v. Harris, the Court must address the reliability of a trained drug-sniffing dog and determine what evidence the government must offer of that reliability when the dog provides the fundamental piece of evidence supporting probable cause to justify a warrantless search of a vehicle. In Harris,a police officer responded to an alert by a trained police dog on the exterior handle of a vehicle and, relying on that dog’s alert, entered the vehicle without a warrant and seized drug contraband. 

  • October 26, 2012
    by E. Sebastian Arduengo
     
    Indiana lawmakers in 2005 enacted an onerous voter ID law, despite the fact that there was no evidence of any voter fraud on any scale in Indiana. Nevertheless the U.S. Supreme Court upheld the lawon the grounds that the interest of the state in reducing fraud was greater than the burdens placed on part of the population in obtaining the requisite ID.
     
    Since that ruling several states, most of them controlled by Republican lawmakers, have pushed similarly rigid voter ID laws, among others to create hurdles to voting for minorities, low-income people, the elderly and students. Many of the efforts to make voting an arduous process are predicated on the claim that voter fraud must be stamped out. But the voter fraud claim is not only tired, it’s wobbly.
     
    The New Yorker’s Jane Mayer explores the groups and an attorney who are bent on eradicating voter fraud. Hans von Spakovsky, a Republican lawyer, former Bush administration official and now, senior legal fellow at the Heritage Foundation is the “man who has stoked fear about imposters at the polls,” according to the articles subtitle. As part of the Bush administration, von Spakovsky worked in the Department of Justice’s election division when it cracked down on election fraud, primarily resulting in the sacking of David Iglesias, the U.S. attorney for New Mexico for failing to find any prosecutable voter fraud. Nationwide, the five-year-long investigation only resulted in eighty-six convictions for any election-related crimes.
     
    After the 2008 Election von Spakovsky, worked with the American Legislative Exchange Council, a group that used Indiana’s voter ID law as a model for other states to reproduce. In the last two years, Republican lawmakers have introduced voter ID measures in 37 states, and four states have passed laws that require voters to present a photo ID at the polls. Even more insidious are laws that allow “citizen’s groups” to challenge the eligibility of local voters. Mayer’s article also provides a glimpse of what it was like to have your voter eligibility challenged.