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.
From ABA Journal News:
The U.S. Justice Department is threatening to sue a controversial Arizona sheriff for civil rights violations because of his treatment of Hispanics.
The department’s civil rights division revealed a possible lawsuit after settlement talks broke down with Maricopa County Sheriff Joe Arpaio, according to Reuters and the Washington Post. “We believe that you are wasting time and not negotiating in good faith,” the department said in a letter to Arpaio’s lawyer.
A Justice Department report released in December accused the sheriff’s department of using racial profiling against Hispanics in police stops and denying them services in jail.
The DOJ says Arpaio’s lawyers have twice called off settlement negotiations at the last minute, according to the Post account. After cancelation of a March 1 meeting, Arpaio held a news conference to claim President Obama’s birth certificate is a forgery. Now Arpaio is complaining about the feds’ demand for a court-appointed monitor.
via DOJ Threatens to Sue Sheriff Joe Arpaio for Civil Rights Violations – News – ABA Journal.
This case comes to no suprise
Ramlogan v. 1199, ___F.Supp. 2d _____S.D.N.Y. Jan. 12, 2012, is case summarizing DFR law. What is most interesting is footnote 3 where the court indicated that state law discrimination claims are preempted by federal DFR law.
Footnote 3 provides,
Although the complaint does not reference federal, plaintiffs state law claims allege conduct that is within defendant’s duty of fair representation and, thus, they are preempted by federal law. See, e.g. Zuckerman v. Volumes Services America. Inc., 304 F.Supp.2d 365, 373 (E.D.N.Y. 2004)(finding that the plaintiffs state law claim alleging that the union discriminated against her on account of her disability by failing to file a grievance on her behalf and to refer the matter to arbitration amounted to a claim for breach of the duty of fair representation and was, thus, preempted by federal law; Marrero v. City of New York, No. 02 Civ. 6634, 2003 WL 1621921, at *3 (S.D.N.Y. Mar. 28, 2003)(finding that the plaintiffs claim alleging that the union failed to represent him fairly at grievance hearings imposed no new duty on the union that was not already required by the duty of fair representation and, thus, was preempted by federal law.
via Adjunct Law Prof Blog.
On March 20th, the Supreme Court issued it’s opinion in Coleman v. Md. Ct. App., holding that Congress lacked the power to abrogate state immunity from suits for damages for violations of the FMLA’s self-care provisions.
The FMLA creates a private right of action for equitable relief and damages “against any employer (including a public agency) in any Federal or State court.” 29 USC 2617(a)(2). The FMLA states that an employee is entitled up to 12 weeks of unpaid leave per year for:
- [“family-care provisions” (A), (B), and (C)] (A) the care of a newborn son or daughter; (B) the adoption or foster-care placement of a child; (C) the care of a spouse, son, daughter, or parent with a serious medical condition; and
- [“self-care provision” (D)] (D) the employee’s own serious health condition when the condition interfere with the employee’s ability to perform at work.
The Coleman case deals with (D), dubbed the “self-care provision” by the Supreme Court. The Supreme Court, written by Justice Kennedy, ruled that the waiver of States’ immunity was not present at the self-care provision because the legislature was not concerned with sex-based discrimination with respect to the self-care provision; unlike in the family-care provisions. See, e.g., Nevada Dep’t of Human Resources v. Hibbs, 538 US 721 (2003) (upholding waiver of States’ immunity with respect to the family-care provision (C) because States had family-leave policies that differentiated on the basis of sex).
The Supreme Court relied on amicus curiae brief citing to the BLS which showed that when the FMLA was enacted, 95% of full-time state and local employees were covered by paid sick leave plans and 96% of such employees enjoyed short-term disability protection. The Supreme Court concluded based on the record that men and women were out on medical leave approximately equally. Citing H.R. Rep. No. 101-28, pt. 1, p. 15 (1989). Further, the legislative history revealed a concern for economic burdens and not sex discrimination. Citing S.R. Rep. No. 103-3, pp. 11-12 (1993); H.R. Rep. No. 101-28, p. 23 (1989). Consequently, the Supreme Court dismissed the case on the grounds that the self-care provision was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination.
The Supreme Court also shot down the argument that the self-care provision is a necessary adjunct to the family-care provisions. Justice Kennedy highlighted that Congress made no findings or received any testimony that suggested that the availability of self-care leave equalized the expected amount of FMLA leave men and women will take. Justice Kennedy pointed that there was no evidence that women took more leave than men, or that employers assumed that women would take more leave time than men.
Lastly, the Supreme Court rejected petitioner’s argument regarding the disparate impact effect the leave restrictions would have on women. The Supreme Court noted that the provision must be directed at a pattern of constitutional violations.