Individual liberties

  • November 4, 2014
    Guest Post

    by Lawrence O. Gostin, University Professor and Founding O’Neill Chair in Global Health Law at Georgetown University Law Center, and Eric A. Friedman, Associate at O’Neill Institute for National and Global Health Law at Georgetown University Law Center.

    As fears of Ebola sweep the nation, several governors are instituting quarantine and other restrictive policies based on fear, not science. These appear to reflect political agendas and responding to the public’s clamoring for greater protection, expressed as an over-abundance of caution. But the rule of law stands precisely to prevent the state from depriving individuals of liberty based on irrational or exaggerated public fear. Legal standards on the state’s police powers to protect the public’s health and safety are well developed. Civil confinement of individuals who have not committed an offense is a massive deprivation of liberty that requires a clear justification beyond public fear. State statutes and constitutional law require sound scientific evidence of significant risk, reflecting a delicate balance between public health and civil liberties. Current quarantines (and calls for travel bans) are reminiscent of 19th Century views of walling off borders, which is impossible in a modern globalized world.

    The touchstone of the law is public health necessity. Imposed quarantines represent a significant burden on people’s liberty, leading courts and legislators to create a high standard that must be met for mandatory quarantines. States such as New York require that quarantines be “necessary” to protect the public’s health. New Jersey's quarantine law requires a quarantine to be “by the least restrictive means necessary to protect the public health.” Simply put, a quarantine that is at odds with public health and scientific knowledge is also at odds with the law.

  • October 8, 2014

    by Caroline Cox

    Ned Resnikoff reports for MSNBC on Integrity Staffing Solutions v. Busk, a labor case that is being heard before the Supreme Court this morning. The case questions whether workers should be paid overtime for the time spent waiting on mandatory security checks.

    In The Nation, Zoë Carpenter reports that the debate over abortion access is headed to the Supreme Court.

    Mugambi Jouet writes for the New Republic on what Attorney General Eric Holder does not understand about the death penalty.

    In the blog for the Brennan Center for Justice, Victoria Bassetti argues that the recent spate of political scandals reveals the dangers of money in politics.

    Lyle Denniston offers for SCOTUSblog the latest updates on the decision from the U.S. Court of Appeals for the Ninth Circuit to clear the way for same-sex marriages in Idaho and Nevada and the Supreme Court’s order to postpone the ruling.

    In Bloomberg View, Noah Felman takes a look at Tuesday’s oral arguments in Holt v. Hobbs, a case concerning whether a Muslim inmate could be forced to shave his beard. 

  • April 25, 2014

    On Monday, the Supreme Court “declined to review an executive order issued by Florida Governor Rick Scott that had required all state employees take random drug tests,” leaving in place a decision by the U.S. Court of Appeals for the Eleventh Circuit that Gov. Scott’s order was too broad.
     
    Shalini Goel Agarwal of the American Civil Liberties Union, who represents the American Federation of State, County and Municipal Employees in the litigation, stated that “without a threat to public safety or a suspicion of drug use, people can't be required to sacrifice their constitutional rights in order to serve the people of Florida.” Lawrence Hurley at Reuters has the story.
     
    On Tuesday, the high court heard oral argument for a case involving “a request from television broadcasters to shut down Aereo, an Internet start-up they say threatens the economic viability of their businesses.” Adam Liptak at The New York Times breaks down American Broadcasting Companies, Inc. v. Aereo, Inc.
     
    Writing for The Daily Beast, Michael Waldman explains why, when it comes to “executive actions to improve our democracy” President Obama “should go further on voting and transparency to make government work better.”
     
    TPM’s Sahil Kapur notes “the Supreme Court's unprecedented public clash over race.”
  • December 16, 2013

    by Nicholas Alexiou

    In a potentially significant ruling, Judge Richard Leon of the U.S. District Court for the District of Columbia has found that the National Security Agency’s (NSA) bulk collection of phone metadata program likely violates the Fourth Amendment.

    In Klayman et al. v. Obama et al., Plaintiffs Larry Klayman (founder of the conservative Judicial Watch and Freedom Watch) and Charles Strange (father of a Michael Strange, a slain Cryptologist Technician with Navy SEAL Team VI, who has been a vocal opponent of President Obama) allege, in part, that the NSA collection program violates the First, Fourth and Fifth Amendment of the U.S. Constitution. They sought a preliminary injunction that would prohibit the NSA from collecting the plaintiff’s call records under the existing collection program, require the destruction of all records already collected, and prohibit the “querying” of any metadata already collected.

    Judge Leon has found that plaintiffs have standing to challenge the NSA’s program, regardless of whether the program was in accordance with the rulings of the Foreign Intelligence Surveillance Court (FISC), and that the plaintiffs have shown both “a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.” Therefore, Judge Leon granted, in part, plaintiff’s motion for a preliminary injunction; but recognizing the “significant national security interests at stake . . . and the novelty of the constitution issues” the injunction is stayed pending an appeal. Finding sufficient evidence to grant the preliminary injunction on Fourth Amendment grounds, Judge Leon did not address either the First or Fifth Amendment arguments.

    In analyzing the Fourth Amendment question, Judge Leon notes that the scope and technological sophistication of the NSA program far surpasses any other governmental surveillance program previously examined by the judiciary. In 1979, the Supreme Court ruled in Smith v. United States that an individual had no legitimate expectation of privacy in the numbers they dialed on their phone, for they were voluntarily submitting them to the telephone company. Therefore, a pen register installed by the police without a warrant was not barred by the Fourth Amendment as it did not constitute a “search.”

  • October 21, 2013
    Guest Post
    by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center.
     
    * This piece is cross-posted at CAC’s Text & History Blog.
     
    The government shutdown may have ended, but the hardline conservative attack on the Affordable Care Act hasn’t. In the coming months, the Supreme Court will decide whether to hear challenges brought by secular, for-profit corporations and their owners to a key provision of the ACA that requires certain employers to provide female employees with health insurance that covers all FDA-approved contraceptives. The ACA already exempts religious employers from the duty to provide contraceptive coverage, but these secular, for-profit corporations insist they are entitled to exemption as well. In its own challenge earlier this year, Hobby Lobby, an arts and crafts chain, succeeded in persuading the United States Court of Appeals for the Tenth Circuit to accept a truly remarkable proposition: that the corporate entity itself is a person exercising religion and is entitled, on grounds of religious conscience, to deny its female employees health insurance coverage for FDA-approved contraceptives. Two other federal circuits have rejected this analysis, and the Supreme Court has been asked to resolve the split between the federal courts of appeal. If, as is widely expected, the Court agrees to hear Hobby Lobby, the case will be vitally important on a broad range of issues: corporate personhood and the rights of business corporations, women’s health, employee rights, the role of religion in the workplace and more.
     
    In the 225 years since the ratification of the Constitution, the Supreme Court has never held that secular, for-profit corporations are entitled to the Constitution’s protection of the free exercise religion. As we explain more fully in this legal brief and issue brief, it should not do so now.
     
    From the Founding on, the Constitution’s protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional traditions for the obvious reason that a business corporation lacks the basic human capacities – reason, dignity, and conscience – at the core of the Free Exercise Clause.   No decision of the Supreme Court, not even Citizens United, has ever invested business corporations with the basic rights of human dignity and conscience. To do so would be a mistake of huge proportions, deeply inconsistent with the text and history of the Constitution and the precedents of the Supreme Court.