At the U.S. Supreme Court:

Originally reported June 2012.

REICHLE VS. HOWARDS

The Supreme Court issued a decision in Reichle v. Howards this week, a case involving a confrontation between then Vice-President Richard Cheney and a member of the public, Steven Howards.

Howards was arrested by members of the Secret Service, agents Reichle and Doyle, after he interacted with the Vice President at a mall in Colorado.  Howards was critical of the Vice President, asking him “how many kids he killed that day,” and he also touched the Vice President on the shoulder.  When Howards lied about touching the Vice President during subsequent questioning by the Secret Service, he was arrested.

Charges against Howards were dropped, but Howards sued the Secret Service agents, Reichle and Doyle, petitioners in the Supreme Court, claiming his constitutional right to free speech was infringed by the arrest, which he saw as a retaliatory act, resulting from the expression of his political views.

The legal issue of the case at a preliminary stage was the immunity from liability that Secret Service agents should be accorded in the conduct of their official duties.   The court accepted certiorari on two related issues concerning such liability.

First, should the agents receive qualified immunity because there was not clearly-established law at the time of the incident — regarding liability for infringement of first amendment rights in the course of an arrest? Qualified immunity shields government officials from civil damages liability, unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.

Secondly, should the agents receive absolute immunity because there was probable cause for the arrest?  The Supreme Court has held that there is absolute immunity from First Amendment claims in the context of retaliatory prosecutions if probable cause existed.  Some federal jurisdictions have also held that if there is probable cause for making an arrest, then this is a complete defense to a claim of First Amendment violation by retaliatory arrest.

Both of my earlier podcasts on this case, at the certiorari stage and again at the oral argument stage, focused primarily on the question of whether the legitimate grounds for arrest (probable cause) provided a basis for absolute immunity.  As it turns out, the Supreme Court decided not to decide this issue, despite a split of authority in the Circuit Courts of Appeal on this point.

Instead, the Court, with Justice Clarence Thomas writing, in an opinion joined by five justices, held that the law — whether retaliatory arrest could be a basis for liability — was not clearly established at the time of the incident.   This, in itself, provided the qualified immunity that would protect the Secret Service agents from suit in this case.

The High Court reversed the 3rd Circuit Court of Appeals, which had held that the law was clearly established, and that probable cause did not automatically defeat a First Amendment retaliatory arrest claim.   Thomas noted that his approach “comports with our usual reluctance to decide constitutional questions unnecessarily.”

In an opinion marked by subtle distinctions, Thomas explained that “courts may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all.”

Thomas explained the court’s reasoning: “This clearly established standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties, by ensuring that officials can reasonably anticipate when their conduct may give rise to liability for damages.”

Thomas also noted that the Supreme Court’s position on retaliatory prosecution in Hartman v. Moore – a case finding qualified immunity existed in the context of retaliatory prosecution — “injected uncertainty into the law in the tenth as well as other circuits because of the similarity between retaliatory prosecution – for which Hartman held probable cause was a basis for immunity — and retaliatory arrest for which Hartman did not make a determination.

Thomas was careful not to suggest that the instant case decided the issue of absolute immunity either.  Instead, he said only that clearly-established law governing liability did not exist at the time of the incident.

Justice Ginsburg, in a concurrence joined by Justice Breyer, agreed that Secret Service agents such as petitioners Reichle and Doyle, were entitled to qualified immunity, saying that their responsibilities protecting officials necessitated immunity so long as their decisions were rational, but Ginsburg would not recognize qualified immunity based on lack of clearly-established law for ordinary law-enforcement officers.  Ginsburg distinguished Hartman because retaliatory prosecution was different than what ordinary law enforcement officers consider in terms of arrests.  Hartman was inapplicable and thus did not add any confusion to the law as it concerned ordinary law enforcement officers.

The majority found that the clearly-established law standard was not satisfied in the context of First Amendment liability for retaliatory-arrest claims.  Uncertainty existed where the Supreme Court had never recognized a First Amendment right to free speech in the face of probable cause for arrest, and there was a split of authority in the circuits on the issue.

Thomas also considered whether there might be clearly-established law within a federal circuit despite conflicting decisions in other circuits, but found, “assuming arguendo that controlling court of appeals authority could be a dispositive source of clearly established law in the circumstances of this case, the Tenth Circuit’s cases do not satisfy the clearly established standard here.”

Justice Kagan did not participate in this case.

At the U.S. Supreme Court:

Bond vs. The United States

The US Supreme Court accepted certiorari this week in the case Bond vs. The United States.  In 2011 the high court decided, as a preliminary issue in the same case, that petitioner Carole Bond of Pennsylvania had standing to challenge her prosecution under federal law.  Bond had been prosecuted in federal court under the Chemical Weapons Convention Implementation Act, which criminalized the use of chemicals as chemical weapons under American law in conjunction with the adoption and implementation under international treaty of the Chemical Weapons Convention.

The facts, which led to Bond’s prosecution, concern her attempt to injure or kill a former friend after the woman was discovered to have had an affair with and to have had a child with Bond’s husband.  Bond was a microbiologist and when she decided to harm her former friend, she relied on her professional expertise to employ toxic chemical compounds in her assault.  Over a period of three months Bond repeatedly applied two different chemical compounds on the victim’s house and car door handles and mailbox.  The victim observed and avoided the chemicals on several occasions.  She alerted the local police but the police did not identify the chemicals or find evidence that linked them to Bond.  At one point the victim did receive a minor burn on her thumb from contact with the chemicals.  A federal investigation by the postal service determined that the substances were toxic chemicals 10-chlorophenoxarsine and potassium dichromate and traced the evidence to Bond.  Bond was arrested and prosecuted by federal authorities and eventually pled guilty to violations of the chemical weapons implementation act and was sentenced to six years in prison, although she reserved her right to appeal.

After the Supreme Court decided that Bond had standing to challenge her federal prosecution, her case was remanded to the Third Circuit Court of Appeals.  There Bond argued that her case was essentially a local criminal matter appropriately subject to state criminal law relating to assault.  Her constitutional claim was that the federal government did not have power to step into the area of state criminal law and to prosecute her under the Chemical Weapons Act.

Bond is not disputing that there are federal crimes, such as an attack on a federal official.  But Bond argues that the government must derive its authority in federal criminal law from the substantive federal issue involved.  Here the only federal issue was that there was an international treaty and the substantive federal legislation had been enacted to implement the treaty.

Bond argued that the Chemical Weapons legislation was meant to prohibit the use of chemicals in warfare.  This would be a legitimate federal purpose as the federal government has authority through the constitutional roles of the executive and congress related to warfare.  However, in applying the Chemical Weapons law outside of the context of war in an area of criminal law where the states had traditional authority, Bond argued the prosecution violated the 10th Amendment protection of state authority from encroachment by the federal government.

The Chemical Weapons Act law does not only regulate the type of chemical that are so dangerous that they are only found in military stockpiles.  It applies broadly to any chemical that “through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”

However, the Act is limited by an exclusion of chemicals that are used for any “peaceful purpose related to an industrial, agricultural, research, medical or pharmaceutical activity or other activity.

Bond claimed that her prosecution under federal law violated the constitution because the facts of her case should not be seen as presenting use of a chemical weapon.  Since the government did prosecute her under that theory, Bond argued the federal chemical weapons statute intruded on state authority in its application to her.

The Court of Appeals rejected Bond’s challenge to her prosecution.  The Third Circuit found that the fact that Congress had enacted the Chemical Weapons Implementation Act in order to meet the government’s obligations under the treaty was sufficient to confer federal authority.  Congress has the authority to enact legislation to implement a valid treaty under the Constitution’s Necessary and Proper Clause.  The Third Circuit did not consider there to be limits on that authority once conferred.  The third circuit decision raised the question of whether it made sense for such an expansion of federal authority based upon a treaty negotiated with another country, and this was expressly contained in a concurrence, but the Court believed it was bound by an earlier Supreme Court case, Missouri v. Holland from 1920, which stated in dictum that “if [a] treaty is valid there can be no dispute about the validity of the statue [implementing that treaty] under Art 1, Section 8, as a necessary and proper means to execute the powers of the Government.” The Third Circuit concluded that principles of federalism “will ordinarily impose no limitation on Congress’s ability to write laws supporting treaties.”

Dictum is language in an opinion or decision by a court that is not fundamental to the holding of the case.  Dictum is not given the weight of precedent, but where the dictum is from a Supreme Court decision lower courts look to the language of the high court for the Court’s reasoning and interpretation.

In fact, there is a split of authorities in the circuit courts of appeal as to whether a valid treaty can expand the federal governments constitutional authority beyond enumerated powers.  The Ninth Circuit considered a closely related question of the effect of a treaty’s impact and concluded, that “treaty provisions which create domestic law and have the same effect as legislation must be subject to the same substantive limitations as any other legislation.”  The 2nd and 11th circuits have followed Holland, while other circuits not.  In addition, Holland was decided in 1920 and more recent judicial trends towards federalism and states rights call in to question the applicability of the language contained in Holland.

The Supreme Court will hear argument on Bond v. the United States later this term.

On Innovation

My response to the White House’s Advise the Adviser outreach, February 9, 2011:

Differentiate between infrastructure that serves consumers and infrastructure of innovation.  Invest in infrastructure for innovation.  That is education, basic science, and public or public-private programs that make technological leaps that are then capitalized on by the next generation of entrepreneurs and by society.  NASA and Star Wars are perfect examples.  Whether going to the moon or a missile shield were important or successful, the resulting advance in science caused by these programs served business and society.  I am not saying anything new here except that infrastructure for consumers — roads and bridges for example, are not necessary for innovation in the 21st century and thus are actually to some extent government spending that removes money from the possibility of innovation.

On the other hand, all the money spent on medical information systems, as the President has already suggested, will serve innovation, business prospects and societies worldwide.

When you cut spending on roads, car travel may become more difficult and more expensive.  But that may be as it should be. Of course, the government is the engine for public infrastructure.  But don’t think that this creates innovation, jobs, and the next advance in standard of living.  People can innovate over the Internet, over the phone, in their garage.  Real innovation comes from having purpose, opportunity, drive, ability, etc.

From a PR perspective, I don’t think the President has made this distinction clear.  Similarly, the worldwide community can participate in American innovation through the Internet.  We can be the engine of technological advance.  What we need is the proper goals and investment in areas that will be productive.

A Mission to the Moon project or Manhattan project devoted to alternative energy, global education, medical information collection and organization, pharmaceutical basic science, are all areas that could bring leaps of innovation resulting in prosperity at home and eventually abroad.

Podcast FCC v. AT&T

By Marc Seltzer; the following podcast was originally broadcast at via iTunes on January 16, 2011 at Supreme Podcast.

. . .

This week the Supreme Court heard oral arguments in a case titled Federal Communications Commission v. AT & T.

The case comes out of the third Circuit, which includes the states Delaware, New Jersey and Pennsylvania, after a three judge appellate panel there decided in favor of AT&T, and the Federal Communications Commission, or FCC, petitioned the Supreme Court for review.

The case concerns the potential release of documents contained in an FCC investigation file.

The FCC, a federal agency, conducted an investigation into potential overcharging of the government by AT&T on a technology project for the New London school district.  AT&T had called the billing issues to the government’s attention after its own internal investigation and subsequently reached an agreement to resolve the issue.  However, a trade association, including competitors of AT&T, filed a Freedom of Information Act request, commonly referred to as a “FOIA,” seeking release of the FCC file.  The file included internal e-mails providing pricing and billing information, the names of employees involved in the billing issue, and AT&T’s internal assessments of the employee’s violations.

The FOIA request required government officials to turn over documents unless an exemption applies.

AT&T asserted that a law enforcement investigation exemption, #7, applied to information in the government’s possession, which is private, and if released would be an “unwarranted invasion of personal privacy.”

Supreme Court precedent on FOIA generally has embraced a balancing act.  In one recent noteworthy case, United States DOD v. ACLU, over the release of photographs of prisoner abuse by the US military, the high court explained:
Congress established in FOIA a “basic policy”
favoring disclosure, but it simultaneously recognized
that “important interests [are] served by the exemptions.”
Those exemptions embody Congress’s commonsense
determination that “public disclosure is not always
in the public interest.”  For that reason, the “Court consistently
has taken a practical approach” in interpreting FOIA’s
exemptions, in order to strike a “workable balance.”

The FCC reviewed AT&T’s request to keep the government’s files secret and decided that the personal privacy exemptions did not protect corporations from the release of private information:  “A corporation, as a matter of law, has no ‘personal privacy.'”

AT & T challenged the FCC decision by filing a lawsuit in federal district court, claiming that Exemption 7 for personal privacy applied to corporations.  AT&T argued that “person” is defined in the FCC exemptions to include an individual, partnership, corporation, association, or public or private organization other than an agency.”  If person included corporation, AT&T argued, it followed that personal privacy would include corporate privacy.  However, the district court agreed with the FCC, finding that a corporation could not claim protection of a personal privacy exemption.  Person may be defined as corporation, but personal was not defined, and neither case law nor common usage conceived of personal as applying to corporations.

On appeal, the Third Circuit Court of Appeals reversed, agreeing with AT&T that the use of the world person included corporate or other entities and the words personal privacy included information of a corporation such as AT & T.  Neither the Third Circuit nor the district court conducted the second part of the exemption inquiry to determine, if the law protected corporations’ privacy interests, did the evidence in this instance require withholding documents in order to protect those interests.

The US supreme court will now decide if the FCC was right in rejecting AT&T’s claim to a personal privacy interest.

In oral argument, the justices appeared skeptical of AT &T’s attempt to include corporations or other entities within the language of personal privacy, especially given no traditional of doing so.  Discussing why the issue did not appear to have come up before, Justice Breyer said:

“Well, one reason might be that this has really never been a problem because all the legitimate — or most of them, anyway — that these organizations that have interests in privacy are actually taken care of by the other 17 exemptions here.”

Justice Scalia: “Another reason might be that personal — nobody ever thought that personal privacy would cover this.”

AT&T’s counsel,  Jeff Kleinberg, raised the issue of the use of FOIA by commercial competitors.

“Increasingly, FOIA is being used by – by competitors and legal adversaries to obtain information, not about what the government is doing, not about what the government is up to, but about what evidence the government might have gathered from private parties.”

But Justice Ginzberg asked: “Is that a reason to change what was the understanding of Exemption 7?”

The justices then inquired into the understanding of the exemption at the time that FOIA was created.

Attorney Kleinberg:
Well, Your Honor, the –Attorney General Levy’s memorandum did not go into a long discussion or description of the analysis. It simply said it does not appear or does not seem to apply to corporations.

Justice Scalia, somewhat rhetorically looking for congressional intent stated,
“But if Attorney General Levy’s description, which was — which was issued for the purpose of telling all the agencies of the Federal government what this new statute meant — and it had a lot of ambiguities in it — if that was wrong about -about this subject, you would have thought somebody would have objected.
I mean, did some members of Congress who -who had passed FOIA say, this is outrageous; what about the personal privacy of General Motors? I’m not aware of any objections along those lines.”

Making Sense of Obama’s Tax Compromise

Marc Seltzer © 2010

By Marc Seltzer; originally published at care2.com on December 8, 2010.

. . .

The Obama compromise, which renews existing tax rates for middle class and wealthy Americans and continues tax incentives aimed at speeding economic recovery is not as simple as it seems.

At first it appears that the President allowed wealthy Americans, who have done exceedingly well in the past decade and generally survived the economic crisis with losses, but not foreclosures or unemployment, to win a battle in class warfare.  It is true that letting the Bush tax cuts (for Americans earning more than $250,000) expire would have forced the wealthy to contribute significantly more to the public budget when high unemployment and underemployment were causing a great deal of stress and suffering to middle and lower class workers. In a simple contest over redistribution of wealth, wealth won.

In the larger context, the President’s compromise may have been a significant achievement.  The President is working to stimulate the economy to speed economic recovery.  The best way that he could have done this without continuing tax cuts for upper incomes would have been to let those tax cuts expire and separately to provide a major new stimulus to the economy.  This could have taken the form of a half-trillion dollar infrastructure program or multi-year green-energy committment to make American energy consumption more efficient and take a leadership role (now held by China) in developing green-energy technology.  However, there was not enough support in Congress, let alone the public at large, for such a major new stimulus program.

Without new stimulus spending, the higher tax rates, as Bush tax cuts expired, would have taken money out of the private economy.  This money would go as tax revenue to pay down the deficit, but would not create new public spending or jobs without additional stimulus legislation.

This is the real problem.  The economic recovery is not yet fast enough or strong enough to endure, without harm, tax hikes, absent a corresponding increase in stimulus from another source.  Yet no other stimulus was politically available.

This put the President in the position of having to accept a renewal of all the Bush tax cuts, to keep the economy from losing steam, at least while the economic recovery was weak.  The two-year tax-cut extension was the estimate of that vulnerable window of time.

Importantly, the high-income tax cuts were not the whole deal, they were only the Republicans’ bargaining chip.  As David Leonhardt reports in the New York Times, the President got unemployment benefits extended, a cut in the payroll tax and some business taxes and college tuition tax credits in addition to continuing the lower tax rates for middle income earners.  The President’s package amounts to significant new stimulus over and above continuing the Bush tax rates.  Economists like Paul Krugman and Christina Romer have said, since the financial crisis, that more stimulus was needed to keep the economy growing and to support employment.  The fight in Congress and in the general public has been about how much to spend on stimulus, in light of the deficit and the Republican preference for free-market solutions and lower stimulus spending.

Seen in this light, the President was able to provide significant governmental support for economic and job growth, at the cost of lower tax rates for the wealthiest two percent of Americans than was the President’s preference.  The President ran for office asserting that wealthy Americans should pay a greater share of the nation’s tax burden to insure that all Americans could afford health care and the continuance of social safety-net programs.  However, the economy was not yet in crisis, the unemployment rate not near 10%.  In the current circumstances, the President must focus first on supporting the economy with stimulus and spending, even in the face of the deficit and his stated belief that wealthy Americans should, in the long term, contribute more.

As the growth rate improves, and unemployment comes down, it will be appropriate to cut spending and raise taxes to balance the budget and make decisions about fair contributions from different income earners in society.  For those that believe in a more progressive income tax with higher earners paying more than the historically low levels they pay today, the real fight will be in two years’ time, when the economy is stronger, and the primary consideration of a tax hike on the affluent will be social justice and the great disparity in incomes between rich and poor, rather than the impact on the overall economy.

Economists will still argue about how much impact tax hikes on wealthy Americans will have on the wider economy and politicians will continue to argue about the social justice goals of a progressive tax system, but the context should be quite different.  Hopefully, substantially more of the millions of unemployed Americans will be back at work and the growth rate will have continued to improve.

UPDATE DECEMBER 11, 2010:  Bill Clinton discusses tax compromise

Marc Seltzer is also a contributor to SupremePodcast.com, a weekly U.S. Supreme Court case review podcast.

Airport Security Protests Fizzle and Inspections Continue as They Must

By Marc Seltzer; originally published at care2.com on December 6, 2010. (The original posting received more than 100 comments, often strongly disapproving, which can be seen at the care2.com link.)

. . .

Protests against airline security procedures did not materialize last week despite a media campaign in which a variety of hopeful instigators clamored that the public would not tolerate the invasion of privacy.  While the new procedures — x-ray technology that sees through clothes and pat downs that include private parts — are bound to make people uncomfortable, the vast majority of passengers accept that the threat of attack is serious and the security measures reasonable.

The sniping at the Obama administration and the Transportation Security Administration (TSA) and claims that TSA procedures are unconstitutional on the one hand and misguided on the other don’t hold up to scrutiny.  First of all, flying is optional.  We choose to do it by paying for a ticket and accepting the rules that go with the privilege of flying.  The government, rather than the private airline companies, conduct security operations, but no one is forcing passengers to get in line.  Second, flying is not something you do in the confines of your home, where you would expect the most 4th amendment protection from government search and seizure.  The question of whether it’s reasonable to conduct these admittedly invasive searches in an airport security line depends on the level of protection needed and the availability of other options.

While the U.S. has been lucky that the shoe bomber, underwear bomber and other attempts have failed to bring down a plane, there is a clear threat to aviation security.  The procedures are the best that experts can come up with at this moment.  No doubt less invasive, and more effective, machines are on the drawing board.

Another argument is that the scanners and pat downs can’t stop every conceivable threat.  True, but the new procedures increase the chances of a successful inspection for dangerous materials.  They take more time, they see more, and they make it more difficult to plan and carry out an attack.  That is enough to justify their use, even if something slips through.

The people in aviation security, from front line screeners to administration decision makers, deserve credit for doing a difficult job where a single mistake can cost many lives and the enemy actively tries to exploit errors and weaknesses.

Marc Seltzer is also a contributor to SupremePodcast.com, a weekly U.S. Supreme Court case review podcast.

Winning the Argument on Tax Cuts and Government Spending

By Marc Seltzer; originally published at care2.com on December 5, 2010.

. . .

It’s a funny thing.  Only about two percent of Americans make up the wealthiest two percent of Americans.  How is it then that so many Americans are willing to stand with Republicans in their efforts to lower taxes on the top two percent?

What is it about slogans like “no more taxes,” and “government spending is out of control” that are so appealing to the other ninety-eight percent of Americans?  The 98% don’t really pay all that much in taxes, and they recoup a substantial amount of what they do pay through their use of social programs such as Social Security, Medicare, Veteran’s benefits, welfare, public education, transportation, environmental protection and unemployment insurance, etc.

Liberal commentators often skip over this question and jump into the fray accusing Republicans of greed, manipulation and deception.  Rachel Maddow recently expressed concern that Democrats would compromise on the Bush tax cuts.  She railed against the Republicans’ consistent refusal to compromise and extolled Vermont Senator Bernie Sanders for blasting Republicans for cutting taxes on the wealthy at the same time as they complain about debt and deficits.

SANDERS: “We are now faced with the issue of what we do with the Bush tax cuts of 2001 and 2003, and if you can believe it, we have people here, many of my Republican colleagues who tell us, oh, I am so concerned with debt and deficits, I am terribly concerned with a trillion dollar national debt, terribly concerned, but wait a minute, its very important that we give, over a ten year period, 700 billion in tax breaks to the top 2 percent.”

“We talk about a lot of things on the floor of the Senate, but somehow we forget to talk about the reality of who is winning in this economy and who is losing, and it is very clear to anyone who spends two minutes studying the issue, the people on top are doing extraordinarily well at the same time as the middle class is collapsing and poverty is increasing.”

This is true, so why don’t Americans vote 98-2 in support of taxes and government spending?  Why don’t Democrats have more traction when they argue for raising taxes on the wealthy and spending money on social programs?

Could it be that Americans don’t feel good about taxes and government spending because they really are naturally wary of big government?  Remember that the nation was born of the fundamental principles that power corrupts and authority must be held in check.  Yet the size and scope of government today dwarfs any monarchy or authority that the founding fathers could even have imagined.  The British Empire of old doesn’t hold a candle to present day Washington.

This isn’t to say that Social Security and Medicare shouldn’t be revered and safeguarded.  But costly foreign wars and catastrophic financial mismanagement have caused more than the usual doubt or despair over government.

Anyone who argues in the public arena that taxes must be collected and spending authorized would do well to respect the public’s healthy skepticism. To speak to this concern is to talk about good management practices and improved efficiency; more persons served and better services with lower costs.  This doesn’t have to hide the difficult decisions about balancing budgets and taking care of our fellow citizens.  But it’s not enough to say the rich can afford to pay, or that Republicans want to cut spending on social programs, and think that you’ve won the argument.

Americans know that the breakdown in good government is in part because government’s very size and financial power have turned it into an unwieldy, unaccountable beast.  How the public regains control is not yet known, but those working to preserve the social safety net, should avoid collisions with the public’s genuine desire for government reform.

. . .

Check out my U.S. Supreme Court case law podcasts at supremepodcast.com.