On Friday the Supreme Court refused to revive a Michigan law that barred straight-ticket voting, reports Adam Liptak of The New York Times.
Sen. Bob Casey posted an editorial to Mediumin which he calls for an end to the senatorial obstruction leaving judicial vacancies unattended on federal courts.
Constitutional scholar Akhil Reed Amar is featured on an episode of the Diane Rehm Show during which he describes how to interpret the pressing issues Americans face today through the lens of the constitution.
University of Texas at Austin Law Professor Stephen Vladek stresses the importance of trusting existing institutions. In an op-ed for Star-Telegram, Vladek asserts that civilian courts, not expensive military commissions, are the best places to bring justice to enemies of the United States.
The terrorist attacks in Paris leave us all horrified – as do the attacks in Lebanon last week that have received less public attention worldwide. Terrorism is meant to make people afraid, and it does its job. Part of what we must do in responding to these attacks is to manage our fear and prevent it from ruling us or pushing us (or our elected officials) to make bad decisions.
These candidates surely want to find a way to take meaningful action to keep Americans and others safe from ISIS. (Though Sen. Cruz leveled the very troubling and baseless charge that President Obama “does not wish to defend this country.”) But many are making a serious mistake by speaking about ISIS and terrorism in ways that draw religious lines between Christians and Muslims. This is not a matter of “political correctness,” it is a matter of logic, fact and reason. Of course ISIS is Islamic. But ISIS practices a form of Islam that the vast majority of Muslims reject. In fact, ISIS has terrorized and killed many Muslims it sees as apostates. It may well serve ISIS’s purposes to describe its terrorist acts as part of a religious war: After the Paris attacks, ISIS referred to France as “the carrier of the banner of the Cross in Europe” and a leader of “the convoy of the Crusader campaign [i.e. the military campaign against ISIS in Iraq and Syria].”
by Jennifer Daskal, Assistant Professor of Law, American University Washington College of Law. Follow her on Twitter @jendaskal. [Cross-posted at Just Security]
Yesterday the Second Circuit declared the NSA’s bulk telephone metadata program unlawful. Specifically, it ruled that it was unauthorized by section 215 of the USA PATRIOT Act (and thus did not reach the constitutional law questions). At the same time, however, it declined to grant an injunction that would have halted the program and instead sent the case back to the district court to reconsider the issues. As the Second Circuit recognized, many of the issues — many of which could may be mooted by congressional action (or inaction) between now and June 1, when this key statutory provision is set to expire.
The program’s continuing operation, at least for the next few weeks, has prompted commentators such as Orin Kerr to describe the ruling as “merely symbolic.” I disagree. To be sure, the telephony metadata program has long been given outsized attention relative to its impact and importance. But the ruling has significant import nonetheless —not just for what it means for the continued operation of the program, but for the range of interconnected areas that the opinion addresses. Below are four key, and substantive, implications of the ruling.
1. Collection Matters
The Second Circuit resoundingly rejected the government’s argument that there is no cognizable injury until data is actually analyzed and reviewed. According to the government, appellants had no standing because they could not establish that the metadata associated with their telephone calls (i.e. the numbers called, received, and duration of the call) had actually been analyzed, rather than merely collected; absent subsequent review, the suffered no injury in fact. The government makes analogous arguments with respect to other forms of bulk collection: Don’t worry — we have robust limitations as to who can access the data and why.
The Second Circuit was not persuaded, and rightly so. As the Second Circuit concluded, collection is properly analyzed as a government seizure. If the collection is unlawful, then “appellants have suffered a concrete and particularized injury,” even without a subsequent review by human actors. In other words, collection matters, even if the subsequent use restrictions are robust and strictly followed. That’s because we have a separate privacy interest not just in how the government uses our data, but in the government’s collection of our data in the first place.
Today, a panel of the U.S. Court of Appeals for the Second Circuit issued its unanimous opinion in American Civil Liberties Union v. Clapper, giving privacy advocates a victory they have long been seeking in holding that Section 215 of the PATRIOT Act does not authorize the bulk collection of telephone metadata. Because the Second Circuit found that bulk telephone metadata collection is not permitted by the statute, the court did not reach the constitutional question of whether it would comport with the Fourth Amendment. Additionally, despite vacating and remanding the lower court’s judgment, the Second Circuit did not enjoin the government from continuing the collection of metadata under Section 215, reasoning that the statute is set to expire on June 1, 2015 and there is significant legislative activity on the horizon that could impact the legal issues in play.
As an initial matter, Judge Gerald Lynch’s opinion held that the ACLU and its affiliates were not precluded from bringing an action seeking an injunction against the government’s collection program. Although the government argued that no private cause of action was permitted, the court held that the government’s reliance on “bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the [Administrative Procedure Act’s] authorization of challenges to government action” was not sufficient to overcome the strong presumption against the preclusion of judicial review.
As to the program’s validity under Section 215, the court reviewed whether the statute authorized the creation of a “historical repository of information” where the “sheer volume of information sought is staggering.” The court did not accept the government’s argument that data collection under Section 215 is analogous to the permissiveness provided to prosecution requests for grand jury subpoenas, which cannot be denied unless a court determines “that there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject matter of the investigation.” The court distinguished those subpoenas as bound by the facts of a particular investigation and a finite timeframe, while the Section 215 metadata collection program had no limitations on subject matter, individuals, or time, and there was no requirement of relevance to any particular set of facts.
In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race. The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not. It was, instead, a reasonable, good faith response to the way things were. In 1954, in Brown v. Board of Education, the Court changed its mind. Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.
This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history. Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.
But how does this constitutional progress occur? It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality. Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment. It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious. It is the judicial recognition of a change that occurs, first and primarily, outside the courts.
That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity. Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.