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March 2010

March 31, 2010
Obama's Approach to Environmental Policies Taking Shape
The Obama administration's approach to environmental protections crystallized this week with several announcements generating a cacophony of responses.

Late last week, the Environmental Protection Agency (EPA) proposed to veto what Mike Lillis at The Washington Independent described as the largest mountaintop mine in West Virginia. "Mountaintop removal [or mining] refers to the process of blowing the tops off of mountains to uncover the seams of coal inside," Lillis writes. "The soil, rock, trees and other debris are then pushed into adjacent valleys, often burying tiny streams representing the headwaters of larger rivers below."

Environmentalists celebrated the move, indicating that they were hopeful that the proposal would be acted on by the Agency following its publication on April 2, and a 60-day public comment period.

This morning, however, environmental advocates saw two of their most-favored positions drop off of the Obama administration's agenda.

Speaking on CNBC, Interior Secretary Ken Salazar said that "cap-and-trade is not in the lexicon any more." Some observers indicated that the statement was a careful back-pedaling away from the policy, which seemed doomed to die in the Senate.
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Executive power, Environmental protection, Economic, Workplace and Environment Regulation, Separation of Powers and Federalism, Cap and Trade, Mountaintop Mining, Mountaintop Removal, Offshore Drilling, President Obama, Secretary Ken Salazar
March 31, 2010
High Court: Attorneys Must Inform Defendants of Immigration Consequences
A fragmented Supreme Court issued its opinion in the case of non-citizen Jose Padilla, who followed his attorney's advice to plead guilty for marijuana possession and was subsequently deported. Padilla, born in Honduras, has lived in the United States legally for over 40 years and served as a member of the U.S. Armed Forces during the Vietnam War.

In Padilla v. Kentucky, the Court determined that trial attorneys have a constitutional obligation to inform their clients of the immigration-related consequences of a criminal conviction. The Court, however, did not throw out the petitioner's conviction based on ineffective assistance of counsel, setting aside the issue of whether Padilla was prejudiced by his counsel's shortcomings. Rather, the case was remanded to the Kentucky Supreme Court to resolve that question.

"It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the 'mercies of incompetent counsel,''' Justice John Paul Stevens wrote for the five-justice majority.

''To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,'' Stevens wrote. ''Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."
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Supreme Court, Other courts, Immigration, Criminal Justice, Deportation, Ineffective Assistance of Counsel, Justice Antonin Scalia, Justice John Paul Stevens, Justice Samuel Alito, Marijuana, Padilla v. Kentucky, Sixth Amendment
March 30, 2010
Domestic Violence Survivor Pleads for Recognition
Prosecutors and criminal defense attorneys are set to clash with family law experts and domestic violence (DV) survivors tomorrow at the U.S. Supreme Court. In Robertson v. U.S. ex rel. Watson, the issue before the Court is who should be the named enforcer of restraining orders, and thus, who is eligible to bring criminal contempt against one violating that order.

The National Law Journal characterizes the case as "a little-noticed U.S. Supreme Court case that [advocates for DV survivors] say could make it much harder for battered women and men to enforce restraining orders against their abusers." Family law experts who filed an amicus brief in the case argue that DV survivors should have the right to enforce restraining orders in the District of Columbia and at least 14 states permitting private prosecution. They say that, otherwise, restraining order enforcement delayed by a prosecutor's busy schedule could prove perilous for those continuing to face aggression from their abusers.

SCOTUSblog recited the facts as follows:

The case involves a District of Columbia man, John Robertson, who was convicted of contempt of a local court created by Congress after a prosecution by his estranged girlfriend, Wykenna Watson, who had obtained a protection order against him.
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Access to Justice, Procedural barriers to court, Supreme Court, criminal defense attorneys, Domestic Violence, Family Law, prosecutors, Restraining Orders, Robertson v. U.S. ex rel. Watson
March 30, 2010
Ohio AG: Health Care Suit Countrary to Precedent
Clerking for two Supreme Court justices taught Ohio Attorney General Richard Cordray about the value of precedent, he said this week, explaining why his state would not join the suit of 13 attorneys general challenging health care reform. In the late-1980s, Cordray served in the chambers of Justices Byron White and Anthony Kennedy, whose constitutional law teachings he referenced in his statement regarding health care reform.

The suit filed by 12 Republican attorneys general and one Democrat has raised hackles, though experts have questioned its chances for success. The suit has caused public clashes between the governors and attorneys general of six states.

"Anybody who proposes something like this is either ignorant -- I mean, deeply ignorant -- or just grandstanding in a preposterous way," said Charles Fried, former solicitor general under President Ronald Reagan. "It is simply a political ploy and a pathetic one at that."

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Fidelity to the Constitution, Federalism, Supreme Court, Other courts, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Separation of Powers and Federalism, Charles Fried, Dahlia Lithwick, Health Care Reform, Richard Cordray, Simon Lazarus
March 30, 2010
The Occlusion of Equality in Campaign Finance Law
Guest Post
By Daniel P. Tokaji, an associate professor of law at Ohio State University's Moritz College of law and associate director of Election Law @ Moritz; Mr. Tokaji is also a member of the ACS Board of Directors.

Last Thursday, federal courts decided two significant campaign finance cases. In SpeechNow.org v. Federal Election Commission, the D.C. Circuit struck down limits on contributions to a nonprofit group that sought to make independent expenditures for and against federal candidates. In the other case, Republican National Committee v. Federal Election Commission, the D.C. federal district court upheld provisions of the Bipartisan Campaign Reform Act (commonly known as "McCain-Feingold") limiting "soft money" contributions to political parties. These decisions follow the U.S. Supreme Court's January decision in Citizens United v. Federal Election Commission, which struck down a prohibition on corporate expenditures for or against federal candidates.

The details of these cases can be mind-numbing, especially for those who don't closely follow this area of law. Focusing on the details, moreover, can cause us to miss the bigger picture.

This comment steps back from the fine points of campaign finance law to examine the overarching problem with the Supreme Court's campaign finance jurisprudence - namely, its rejection of equality as a central value in our democracy. The body of law that the Court has developed over three and one-half decades has led not only to a stunted constitutional doctrine, but also to an impoverished public discourse. Ironically, the effect of the Court's First Amendment jurisprudence has been to suppress discussion of equality as a justification for regulating politics. For those of us who believe that equality is a central democratic value, a reinvigoration of this discourse is long overdue.

Buckley's Rejection of the Equality Rationale

The central problem can be traced to a sentence in Buckley v. Valeo, the Supreme Court's 1976 decision setting the framework for judicial review of contribution and expenditure limits. According to Buckley: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." With these words, the Court took off the table the argument that spending limits might actually enhance our democratic discourse. Buckley presumed that a system of unlimited campaign expenditures works best and, at the same time, eliminated the promotion of systemic equality as a basis for spending limits. The prevention of corruption or its appearance became the sole permissible justification for limits on individual spending.

In the decades following Buckley, the constitutional debate over campaign finance too often got sidetracked over whether money was really speech or, as Justice Stevens argued, "property ... not speech." This is the wrong question. Whether or not money is speech, it clearly facilitates political expression. Money is necessary to have one's political views heard, and therefore to participate meaningfully in campaign-related debates.

The observation that money facilitates speech doesn't end the constitutional inquiry, however, but is just the beginning. If one accepts the proposition that money facilitates political speech, a corollary is that those without resources aren't able to participate meaningfully in the conversations of democracy. The have-nots in our society therefore enjoy less political influence than the haves - and much less than the have-alots. In a society committed to political equality, this state of affairs is deeply troubling.

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Campaign finance, Constitutional Interpretation and Change, Democracy and Voting, Campaign Finance, Citizens v. FEC, Daniel Tokaji, Guest Post, SpeechNow.org v. Federal Election Commission