Tuesday, June 11, 2013
Acquiescence is in the news. The Obama administration has announced that it will make Plan B available in a single pill, over the counter, for women of all ages, assuming that will comply with a district court's prior ruling. Meanwhile an Illinois has prosecutor has announced that he will start allowing Illinoisians to carry concealed weapons, even though the legislature has not yet repealed Illinois's public gun ban. A Seventh Circuit decision had held the law unconstitutional, but the Illinois courts have so far disagreed.
I am not sure whether either decision is the right one, although both may be. As for Plan B, it's a little odd for the administration to let a single district court make regulatory law for the entire country without even an appeal. (Remember all of that talk in the administration's DOMA briefs about how important it was for the issue to be resolved nationwide rather than left to the lower courts?) On the other hand, perhaps the administration was inclined to make the pill more widely available, and the court simply set the agenda or provided a political excuse.
As for the Illinois prosecutions, the disagreement among the prosecutors and the disagreement between state and federal courts suggests that a higher power will have to resolve this sooner or later. And the case for acquiescence until then is not obvious. The Seventh Circuit doesn't sit in review of state prosecutions, and under AEDPA the court of appeals decision is irrelevant to collateral attack. If the prosecutor doesn't think the statute is constitutional, perhaps he shouldn't enforce it, but if he does I'm not so sure why he cares what the Seventh Circuit thinks.
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My guess is that a local prosecutor in Madison County, IL prosecutor was inclined to view it as unconstitutional and can use the 7th Cir. decision as political cover. Although I agree with your criticism of the way he is framing his decisions.
We could see this process all over again, depending on what SCOTUS does in Hollingsworth. If the Court decides that the sponsors lacked standing to appeal, the district court decision would stand. We then see how many local officials will abide by the district court decision, even if they don't have to.
Posted by: Howard Wasserman | Jun 11, 2013 7:55:05 AM
The Obama administration's "enforce but not defend" policy with regard to DOMA was explicitly predicated on its respect for the prior Congress that enacted it. In this context, of course the Obama administration needs a national ruling; taking it at its word, it sees itself as obligated to enforce the law wherever the courts permit it to be enforced, and so without the ability to straightforwardly get a national ruling there would be an inconsistent and messy patchwork of policy.
Here, however, a judge ruled against the Obama administration's own decision, and rather than choose to fight it, the Obama administration has chosen to reverse its decision instead. The closer analogy for that would be if Congress had chosen to repeal DOMA Sec. 3 after the district court ruling in Gill v. OPM.
Posted by: JHW | Jun 11, 2013 8:17:59 AM
On Plan B, it's not really a single district court making a rogue foray into regulatory policymaking but rather a district court enforcing the regulatory policy preferences of the administrative agency over those of the White House. During the Bush administration, FDA higher-ups overruled staff and scientific advisory panel recommendations to make Plan B more widely available based on political and social policy concerns. In the Obama administration, the FDA approved wider availability for Plan B but HHS Secretary Sebelius publicly overruled this decision, apparently the first time a HHS Secretary had ever invoked this power. To me, the interesting issue with Plan B is not the court-executive dimension but rather the intra-executive branch dimension, i.e., the expert administrative agency vs. the politically accountable White House.
Posted by: Greg Reilly | Jun 11, 2013 1:47:14 PM
Fair points. I've also heard the theory that the political interference with the agency's decision was itself a political ploy-- the goal being to publicly tack to the right during the 2012 election while counting on the court to force the administration to do what it really wanted to all along. I have no idea if that theory is true, but it seems plausible to me.
Posted by: William Baude | Jun 11, 2013 3:31:10 PM
RE: "If the prosecutor doesn't think the statute is constitutional, perhaps he shouldn't enforce it, but if he does I'm not so sure why he cares what the Seventh Circuit thinks." Maybe the prosecutor thinks that the Seventh Circuit's opinion has epistemic value for pointing towards the right answer, even if it doesn't have legal authority over him.
Also, I wonder if there may be other legal sources for the Seventh Circuit to have authority over the prosecutors? Could a Section 1983 claim work in a federal district court to enjoin such prosecutions or get damages?
Posted by: ctr | Jun 11, 2013 4:41:59 PM
Not damages--he would have prosecutorial immunity. I suppose a § 1983 action to enjoin a particular prosecution might allow that plaintiff to take advantage of the Seventh Circuit view. But the prosecutor could avoid that by initiating a prosecution and triggering abstention, placing himself firmly in state court and the general view that the statute is constitutionally valid.
Posted by: Howard Wasserman | Jun 11, 2013 5:12:13 PM
It does seem to me you could sue the police officers for damages under 1983, although if there's a conviction the suit would be barred by Heck v. Humphrey. And even without a conviction, the Supreme Court would probably find that the circuit split made it impossible for the plaintiffs to pierce qualified immunity.
Posted by: William Baude | Jun 11, 2013 6:31:12 PM