For those folks who take an interest in the direction in which American law is moving, this is a big week. On Monday the Supreme Court of the United States began its fall term, a term during which it will hear fewer than 100 cases, but many of those cases will have a major impact on the development of American law. It is also an important week in the law because many lawyers and jurists are beginning to ask some tough questions of the killing of an American citizen, Anwar al-Awlaki, by a Hellfire missile fired by a drone in Yemen last week.
On the Supreme Court front there will be a number of important cases — some with major political and social impact, others with major legal impact — coming up. Certainly, the most widely watched will be the challenge to the national health care reform law. Very few pieces of federal legislation have attracted more controversy than the health care reform law passed by Congress under the direction of President Obama. It has been a leading cause of the increasing power of the American right and has been challenged by numerous states.
The results of the various legal challenges in the lower federal courts have been mixed, and people on both sides of the issue have been waiting for the Supreme Court to decide the constitutionality of the legislation. If the court decides to decide the case this term (as of the time of writing this column, no decision had been made) it will be the most important case of the term. How the court will, in fact, decide the various constitutional issues presented by the legislation is difficult to predict, but there is no question that once the decision comes down it will be of massive political and social importance.
Less widely followed but, in some ways as important, are a series of cases also coming before the court this term that will help define individuals’ right to privacy under the Fourth Amendment and the extent to which churches and other religious institutions are free from federal regulation under the First Amendment. The GPS case, U.S. v. Jones, will decide whether law enforcement officials may secretly use a global positioning device attached to a suspect’s car to track his movements without obtaining a warrant. Three lower federal courts have considered this question. Two have ruled that no warrant is necessary. One has ruled that it is. The Supreme Court will now have the final say on this issue, and its decision will shape privacy law under the Fourth Amendment potentially for decades to come.
The First Amendment case, Hosanna-Taylor Evangelical Lutheran Church and School v. the Equal Employment Opportunity Commission, concerns the scope of what has come to be known as the “ministerial exception,” a doctrine that holds that the federal government cannot interfere in employment decisions made by churches and other religious institutions on the grounds that such interference would violated the churches’ religious freedom. In the case coming before the Supreme Court this term, the justices will be asked to decide whether this “ministerial exception” extends to teachers in religious schools charged with teaching religious subjects. The Court, of course, may also take the opportunity to revisit the “ministerial exception” as a whole.
As to the al-Awlaki killing, there are few Americans who are not happy to see the elimination of a known terrorist. On the other hand, this particular terrorist was an American citizen, albeit living abroad. His killing did not follow a trial for his alleged crimes nor were any legal arguments put forth by the government as to the justification for executing an American citizen without a trial and due process.
The problem here is not the fact that al-Awlaki was a threat to U.S. security who had to be eliminated. Rather it’s a question as to whether the U.S. government can simply decide to kill American citizens whom it deems to be dangerous to national security without trial or legal process. Do American citizens lose their basic civil and constitutional rights when they travel outside the United States? One important legal question is whether the United States considered al-Awlaki to be an enemy combatant operating in a war zone. The government has yet to address these matters and, until they do, many lawyer and others are concerned about what this killing signals. As a precedent, without explanation, the al-Awlaki killing has rather frightening implications.