Tag Archives: constitution

DNA collection of arrested individuals

This month, the Supreme Court will hear arguments on the issue of whether it is constitutional for the State to require DNA collection of arrested individuals.  The case is Maryland v. King.  The argument is set for February 26, 2013.

As way of background:

  • The federal government and at least 26 states (including California, Illinois, and Florida) take DNA samples from some or all who are arrested but not yet convicted of serious crimes.
  • Last month, President Obama signed into law the Katie Sepich Enhanced DNA Collection Act.  The statute will help pay the start-up costs for other states to begin testing people who are arrested.

So what does this issue mean?  The issue is whether the State, without a search warrant, can take a DNA swap of an arrested individual – who has not been convicted.

The Maryland Court of Appeals stated the 4th amendment, which bars unreasonable searches, protects people who haven’t been convicted from having to provide DNA evidence.  In addition, the court stated, “Although arrestees do not have all the expectations of privacy enjoyed by the general public, the presumption of innocence bestows on them greater protections than convicted felons, parolees or probationers.”

The Maryland Court of Appeals further explained that DNA samples “contain a massive amount of deeply personal information.”

 

Advertisements

Leave a comment

Filed under civil rights, Privacy Rights, waiver

More on NLRB Recess Appointments

There is much talk on the D.C. Circuit Court of Appeals’ ruling that the President’s NLRB recess appointments was unconstitutional.

Shortly thereafter, the NLRB released a press release stating:

The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld.  It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other court of appeals.

Below is a compilation of pending cases, as put together by SCOTUS Blog by Lyle Denniston:

  • D.C. Circuit — fifteen other challenges pending, most if not all of which will be decided on the basis of last Friday’s ruling.  The cases are either in the briefing stage, or awaiting a briefing schedule.
  • Second Circuit — one case, in briefing.
  • Third Circuit — three cases, one set for argument March 19 NLRB v. New Vista Nursing, docket 11-3440; one case being held for that case, another in briefing.
  • Fourth Circuit — four cases, one set for argument March 22 NLRB v. Enterprise Leasing Co. SE, docket 12-1514; others in briefing.
  • Fifth Circuit — one case, in briefing.Sixth Circuit — one case, in briefing.
  • Seventh Circuit — two cases: one decided, but not on the merits of the appointments power; one in briefing.Ninth Circuit — one case, in briefing.
  • Eleventh Circuit — one case, in briefing.
  • The only federal appeals courts in which no such cases are pending are the First, Eighth, and Tenth.

via Spreading challenge to appointment power UPDATED : SCOTUSblog.

Leave a comment

Filed under Appellate, courts, District Court, labor, legal decision, legal research, NLRB, union

Judge refuses to dismiss Ten Commandments case

The District Court for the Western District of Pennsylvania allowed a case challenging the Ten Commandments monument to proceed.

This case arises from the installation of a large stone monument in front of the Valley High School.  Plaintiffs argue that this is a violation of the First Amendment’s prohibiting the government from endorsing a religion.  The district court refused to remove the Ten Commandments monument.  The district’s argument is that the Ten Commandments monument is a historical landmark.

The district asked the federal court to dismiss the lawsuit.  The District Court denied the motion, stating that the case has “sufficient merit” to proceed to the discovery phase.

 

via Judge refuses to dismiss Ten Commandments case | TribLIVE.

Leave a comment

Filed under civil rights, legal decision

Gun regulation: pinning States against Federal Government

I came across this very interesting piece of news.  Mississippi and Texas proposed and called for bills to make it illegal to enforce any of the new federal gun control measures.

Mississippi Governor Bryant called for a bill that would make it illegal for state and local enforcement to enforce any executive order from the President.  Similarly, in Texas, State Representative Toth introduced the “Firearms Protection Act.”  The bill would make “any federal law banning semi-automatic firearms or limiting the size of gun magazines unenforceable within the state’s boundaries” and “anyone trying to enforce a federal gun ban could face felony charges under the proposal.”

The question is, of course, how would a federal statute or executive decision interact with the Second Amendment to the Constitution.  The second amendment provides,

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The Supreme Court’s most indicative decisions call for an interesting debate.  The Supreme Court has ruled that the government can enforce several restrictions on the right to bear arms.  Presser v. Illinois, 116 US 252 (1886) (upholding the state’s or Congress’s regulation of militias); Miller v. Texas, 135 US 535 (1894) (upholding the state’s ability to press criminal charges for owning an unlicensed gun);  Robertson v. Baldwin, 165 US 275 (1897) (upholding state’s regulation of concealed weapons); and United States v. Miller, 307 US 174 (1939) (upholding the National Firearms Act which banned the interstate transportation of unregistered Title II weapons).

This, however, does not mean that we would know to what extent a regulation would be constitutional.

via State Lawmakers Say No to President Obamas Gun Control Proposal – ABC News.

Leave a comment

Filed under civil rights, Pending Legislation

California Can Make Cuts To Medi-Cal Health Care Program

The Ninth Circuit held that California could make cuts to the Medi-Cal Health Care program and vacated all injunctions against California.  The opinion can be accessed here.  As the three-judge panel stated,

Medicaid, as a voluntary program, does not create property rights.

In 2011, plaintiffs (a Medi-Cal beneficiary, 5 pharmacies, a pharmacy organization, an independent living center, and a CA association of independent living centers) sued California and the U.S. Dep’t of Health and Human Services to block the cuts under the Medicaid Act.  The district court granted injunctions against California, blocking the enactment of the cuts.  The Ninth Circuit, on appeal, vacated these injunctions.

The Ninth Circuit stated that Chevron U.S.A v. Natural Resources Defense Council requires deference to Sebelius’ interpretation of California’s amendment to its Medicaid plan – called a state plan amendment.  The Ninth Circuit stated,

Considering all the evidence of Chevron-esque delegation in these cases, we hold that the balance tips to the side of deference – both to the secretary’s implicit interpretation that states are not required to follow any specific methodology in submitting SPAs [state plan amendment] and to its explicit determination that the SPAs at issue comply with federal law.

The decision notes that Medicaid “is a colossal undertaking,” with joint funding from the U.S. government and the states.

Congress explicitly granted the secretary authority to determine whether a state’s Medicaid plan complies with federal law.

The secretary understands the [Medicaid] Act and is especially cognizant of the all-important yet sometimes competing interests of efficiency, economy, quality of care, and beneficiary access.

The Ninth Circuit also concluded that plaintiffs’ claims that California violated the supremacy clause was unlikely to prevail under Douglas v. Independent Living Center (2012).  The Court explained,

Even assuming that the supremacy clause provides a private right of action – the secretary has reasonably determined that the state’s reimbursement rates comply with § 30(A) [of the Medicaid Act].

via Courthouse News Service.

Leave a comment

Filed under Appellate, civil rights, courts, District Court, legal decision, Supreme Court

VA Can’t Refuse To Treat Medical Conditions Of Inmates

The District Court for the Western District of Virginia refused to dismiss a class action alleging that a womens prison in Virginia fails to treat medical conditions as a way to cut costs.

Five prisoners at Fluvanna Correction Center for Women FCCW in Troy, Va., are leading the charge against the Virginia Department of Corrections VDOC, which they say routinely violates Eighth Amendment rights and shows deliberate indifference to medical needs.

U.S. District Judge Norman Moon denied the states motion to dismiss Tuesday.

“Plaintiffs allege that, as a result of cost-saving concerns, medical personnel at FCCW have failed, or refused, to invest the time or effort required to acknowledge, examine, diagnose and treat them with respect to existing or potentially serious medical problems and concerns,” he wrote. “Indeed, the complaint is replete with specific examples of how Plaintiffs have been adversely affected as a result of this concern.”

The decision states that officials with the Virginia Department of Corrections allegedly received hundreds of grievances, which should have notified them of a continuing problem at the prison facility.  Consequently, Judge Moon held that the class may proceed.

“Given that plaintiffs have alleged that the VDOC defendants remained inactive despite personal knowledge of information disclosing alleged ongoing deficiencies in medical care, plaintiffs Eighth Amendment claim may proceed against them directly.”

The complaint alleges the prison refused to treat medical conditions in the following examples of the putative class representatives.

  • The prison failed to give the proper dosage of medication prescribed to Cynthia Scott after she was diagnosed with sarcoidosis, a disease that formed nodules in her lungs, spleen and liver. Scott also allegedly developed a blood clot in her leg that was left untreated until it traveled to her lungs.
  • Bobinette Fearce, a second named plaintiff, says she has degenerative disc disease, causing her chronic pain. The prison doctors allegedly refused to give her enough Tylenol to alleviate her pain. She also claims to suffer from incontinence and must wear a diaper at all times, but an FCCW doctor said she is “too old to be afforded the surgery that would correct her bladder condition.”
  • Patricia Knight says that a stroke caused her to lose grip strength and made walking difficult. Because her conditions allegedly prevent her from performing any prison job, Knight says she cannot afford the $5 “co-pay” for prison medical visits and therefore gets little medical care.
  • Marguerite Richardson says she visited the medical staff when she developed a number of boils on her leg. A test found that she had a highly contagious antibiotic-resistant infection, but the prison waited five months to give her medication to treat the infection, the complaint states.
  • Rebecca Scott, the fifth plaintiff, allegedly suffers from recurring tonsillitis. She says an FCCW doctor told her he “does not believe in removal of tonsils by surgery,” that the prison has rejected her requests to see an outside specialist.

via Courthouse News Service.

Leave a comment

Filed under civil rights, legal decision

AG Holder Letter to 5th Circuit Affirms Judicial Power to Strike Unconstitutional Laws

In a letter Thursday to three federal appeals court judges, U.S. Attorney General Eric Holder has reiterated what he calls “the long-standing, historical position of the United States regarding judicial review of the constitutionality of federal legislation.”

Although the judicial branch, appropriately, often opts to defer to the judgment of Congress, it nonetheless has the power to strike laws that it determines to be unconstitutional, Holder writes. His unusual letter was requested by the New Orleans-based 5th U.S. Circuit Court of Appeals panel on Tuesday after President Barack Obama suggested that a U.S. Supreme Court ruling against the administration’s position in a pending case over the constitutionality of his health care reform law would constitute extraordinary “judicial activism.”

Think Progress provides a link to the AG’s missive (PDF).

“While duly recognizing the courts’ authority to engage in judicial review,” Holder wrote, “the executive branch has often urged courts to respect the legislative judgments of Congress.” Tuesday’s remarks by President Obama, he concludes, “were fully consistent with the principles described herein.”

via AG Holder Letter to 5th Circuit Affirms Judicial Power to Strike Unconstitutional Laws, Backs Obama – News – ABA Journal.

Leave a comment

Filed under civil rights, courts, Judges, Supreme Court

Is a debt ceiling constitutional?

From ABA Journal Daily News:

On Friday, President Obama rejected the idea, the New York Times reports. “I have talked to my lawyers,” he said. “They are not persuaded that that is a winning argument.”

At issue is this provision: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

The sentence was intended to ensure the payment of Union debt after the Civil War, though it was more broadly written, the Times says. The newspaper interviewed law professors about the implications. Some said the provision does, indeed, allow Obama to ignore the debt ceiling. Others said it bars Congress from an actual default on existing debts. Some said Obama has power to act in an emergency, no matter what the 14th Amendment says.

Many raised the issue of whether the courts would be willing to decide the issue, if Obama ignored the ceiling and a suit were filed. “This is largely a political question,” said Yale law professor Jack Balkin.

Leave a comment

Filed under Pending Legislation