PrawfsBlawg

IRS and the political valence of constitutional litigation

I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.

In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?

• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).

• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?

• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.

• Lots of those darn conclusory  and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.

• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?

The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.

9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion

Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:

The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:

A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

 B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

 The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).

After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.

Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.

That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:

The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.

Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.

These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.

Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.

By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:

 

1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.

2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).

3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 "were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out"). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.

4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman's right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: "But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open[] up the scissors [and stick in] a high-powered suction tube into the opening, and suck[] the baby’s brains out” was not enough in Gonzales to justify a complete prohibition."

What happens next? Rehearing en banc is possible but my guess is it won't happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon's opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court's prior precedent, a view I could easily see several Justices wanting to "correct".

- I. Glenn Cohen

Marty Redish and A Jurisdictional Perspective on New York Times

The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.

My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.

Here is the abstract:

New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.

Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.

“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case

At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:

“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”

The exchange is all the more curious because, despite her scepticism, Kagan signed on to the Court’s holding that the Medicaid expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.

First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.

In Sebelius, for the first time in its history, the Court found such unconstitutional ‘compulsion’ in the deal offered to States in order to expand Medicaid under the ACA. In finding the Medicaid expansion unconstitutional, the Court contrasted the ACA case with the facts of the Dole case, wherein Congress “had threatened to withhold five percent of a State’s federal highway funds if the State did not raise its drinking age to 21.”In discussing Dole, the Sebelius Court determined that “that the inducement was not impermissibly coercive, because Congress was offering only ‘relatively mild encouragement to the States’,” and the Court noted that it was “less than half of one percent of South Dakota’s budget at the time” such that “[w]hether to accept the drinking age change ‘remain[ed] the prerogative of the States not merely in theory but in fact’.”

By contrast, when evaluating the Medicare expansion under the ACA, the Sebelius Court held that the

financial “inducement” Congress has chosen is much more than “rela- tively mild encouragement” – it is a gun to the head [...] A State that opts out of the Affordable Care Act’s expansion in health care cover- age thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs [...] The threatened loss of over 10 percent of a State’s overall budget, in contrast [to Dole], is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.

I argue that this analysis is fundamentally misguided, and (if I may say so) I have some fun doing it! As I summarize the argument structure: If the new terms offered by the Medicaid expansion were not coercive, the old terms were not coercive, and the change in terms was not coercive, I find it hard to understand how seven Supreme Court Justices could have concluded that coercion was afoot; the only plausible explanation is that these seven Justices in Sebelius fundamentally misunderstood coercion. This misunderstanding becomes only more manifest when we ask exactly ‘who’ has been coerced, and see the way in which personifying the States as answer obfuscates rather than clarifies matters.

The paper is out, but I will be doing a book chapter adapting it so comments still very much approeciated.

- I. Glenn Cohen

"Constitution USA" with Peter Sagal

"Constitution USA" (more here) premieres tonight, on your local PBS station.  It's hosted by Peter Sagal, of "Wait Wait . . . Don't Tell Me!", and includes bits with a number of law profs (including me, I'm afraid -- that's a whole lotta bald!) about speech, federalism, civil rights, religious liberty, and lots of other things.  I've seen some clips, and the show looks to be a lot of fun!  Check it out, tell your students, etc., etc.

What Rational Basis Review Really Means

Thank you to Dan and the rest of the Prawfs regulars for having me back! I'll be blogging lightly for the next few days due to other commitments, but I hope to make up for it later in the month.  Most of my posts will deal with individual constitutional rights.

Meanwhile, I came across a case the other day that I thought might interest my fellow constitutional law professors, particularly those who are, at this busy time of year, immersed in answering student questions or designing their final exams.  It's not a new case, but it helps reveal exactly how little is required for the government to survive rational basis review.

The case is an unpublished case from the Second Circuit -- Jordan v. City of New London, 225 F.3d 645, 2000 WL 1210820 (2d Cir. Aug. 23, 2000).  There, the Second Circuit rejected the claims of a man who was barred from becoming a police officer because his score on an intelligence test was too high.  He scored 33 points -- the equivalent of an IQ of 125 -- and the New London Police Department interviewed only candidates whose scores ranged from 120-127 "to prevent frequent job turnover caused by hiring overqualified applicants."  The city's argument was that high-scoring prospective officers are more likely to become bored quickly and move on to other jobs, thereby wasting the resources that were invested in their training.

The Second Circuit held that even in the absence of a proven statistical correlation between high scores and turnover resulting from low job satisfaction, the city was entitled to rely on materials from the test-maker that said such a relationship existed or might exist, even though those materials themselves also cited no evidence of such a relationship.  Moreover, the Second Circuit did not publish the case, suggesting that it viewed its decision as uncontroversial.

The purpose of my post isn't to agree or disagree with the result.  It's simply to provide (another) example professors might use to demonstrate how much support courts require in order for the government to survive rational basis review.  And the answer appears to be:  not much.

 

First Amendment on campus

Here are a couple of stories  about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.

The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.

Nevertheless, this sort of assignment raises some dicey issues, were anyone to object. While school curricula need not offer accommodations to students who object to particular assignments on religious grounds, is there a line when those assignments leave the bounds of the classroom and the course and venture into discussions, debates, and activities in the public at large? Alternatively, is there a difference between having to write a paper taking an objectionable position and having to participate physically in an activity that expresses that same position? And how should we handle  internships and externships, which straddle the line between the classroom and the broader world and broader public discussion.

My wife teaches social work and encounters (either personally or in stories in the profession) these issues frequently. Social work imposes a code of ethics (to which social work students are expected to abide) requiring them to be educated about and understand "social diversity and oppression" with respect to every group or basis imaginable, which often is interpreted to mean students cannot opt-out of treating or working with objectionable groups or using methods with which they disagree. Most social work programs required courses in "diversity." And internships are a required, central part of social work education, so the issues potentially arise in and out of the classroom. So, for example, one public university settled a case with a student who was disciplined for failing to sign a letter in support of same-sex marriage that was going to be sent out publicly; the religious advocacy group that represented the student urged this class v. broader public line.

For some related thoughts, see this piece by Stanley Fish discussing a controversy at Florida Atlantic University (my neighbor just up I-95) over an assignment purporting to force students to stomp on a paper with Jesus's name or image. Fish mentions a case in which a Mormon theatre student at the University of Utah sued when forced to play a particular role in an acting class exercise that she alleged interfered with her religious beliefs.

The second story is from the University of Arizona, where a few students, led by a guy who calls himself "Brother Dean Samuel," counter-protested a Take Back the Night Rally with signs reading "You Deserve Rape" (a closer look at other of Brother Dean's expresion shows that he, not unlike Westboro Baptist, apparently hates everyone who isn't him). His signs received a large above-the-fold story in the Arizona Daily Wildcat, which Brother, of course, gleefully retweeted. There was a tepid statement from the university that the speech is protected and he "has yet to, at this point, violate the student code of conduct."

Actually, the most anger was directed towards the Daily Wildcat for reporting on Brother Dean and giving him the forum he is looking for and would not get, or warrant, otherwise. The paper responded, basically emphasizing the obligation to report bad or unhappy news, the importance of Brandeisian counter-speech, and the fact that ignoring a problem does not make it go away (comparing, e.g., Westboro Baptist, bullying, and Jim Crow). Fair enough as to the Brandeisian point, I suppose. But the third point seems flat wrong, at least as applied to this situation, because their analogies are inapt. In terms of ignorability, there is a fairly obvious difference between an unjust soci0-political system that wields actual political power and negatively affects people's lives and one schmuck who wants to hear himself spout stupid ideas. Reporting on and publicizing the latter, and helping him reach a broader audience with his absurd thoughts, actually gives him power he would not otherwise have. This is not to suggest the paper was wrong to publish the story, but only to suggest that it is not as simple as their statement suggests.

Also, if the idea is to encourage counter-speech, the paper's approach is arguably counter-productive. Suppose a group of students is trying to decide whether to counter-protest. Under the paper's logic, the counter-protest makes this a large Page-1, above-the-fold "story," resulting in greater coverage and dissemination of Brother Dean's stupidity. So perhaps the better approach is for the counter-speakers is to stay home, avoid "creating" a story, and allow Brother Dean to remain ignored, by them and the paper.

Third, back at FIU. I spent this year working on a university committee, lead by the university's general counsel, to make recommendations about new regulations for on-campus demonstrations, in the wake of some conflicts that arose with Occupy here and on other campuses, notably UC. It was a fun experience. But I came away from it convinced of the need to include in undergrad orientation some discussion and education on the role of the First Amendment, public demonstrations, and civil disobedience, particularly on a college campus. Which our students could use. "Freedom of speech is a privilege"? Yeah, a teach-in on the First Amendment may be a good idea.

Why fan speech matters

If you want proof that sports fan speech matters, that it has strong political content, and that the stands of sporting events are a site for genuine First Amendment activity, look no further than last night's Boston Bruins game, the first game played in Boston since the Marathon bombing.

 

Sporting events remain the only place in which adults regularly gather and engage in patriotic rituals, so the game marked one of the first ordinary events in which people could come together in an expression of patriotism, support, and healing in the wake of a tragedy. It is a great moment--and also an unquestionably political one and an unquestionably expressive one.

Jurisdiction (of every shape and kind), Merits, and Kiobel

SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.

The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.

But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.

The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:

The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.

In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.

Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).

The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.

 

The limits of governmental standing

Having now listened to the justiciability portions of the arguments in Windsor and Hollingsworth, I return squarely to an issue I glanced at here, argued more explicitly in some presentations of that paper, and may hope to return to at some point in the future:

When the government (whether federal or state) is unquestionably the real party in interest in constitutional litigation, why should Article III care who appears as "the government" or who represents (or purports to represent) the government's position and interest? Adverseness, the real concern underlying standing, is present simply because the government is a party to the case. Who (really what part of the government) makes the government's case does not affect adverseness and therefore should not be an Article III concern. It may implicate other constitutional provisions and concerns--the Take Care Clause or the Guarantee Clause--as well placing on governments the burden of legislating and planning for how those representatives will be identified. But the courts really should not care about it fas to the basic demand for a case or controversy.

Line of the Day--Non-Marriage Edition

People have been tweeting and writing about various lines to come out of yesterday's arguments in Hollingsworth, whether played for laughs or as portentous. Here's one that slipped in, both because it's not about same-sex marriage or standing and because it's kind of inside baseball:

Early in his argument opposing Prop 8 and arguing that the proponents lacked standing, Ted Olson suggested that a state could appoint a special officer to defend a ballot initiative where elected officials choose not to do so. When Justice Scalia wondered how the governor who refused to defend the initiative can be expected to appoint someone else to do so, Olson responded: "Well, that happens all the time. As you may recall in the case of--well, let's not spend too much time on independent counsel provisions."

Explanation here.

SCOTUS doings

Two items of interest involving SCOTUS (not having anything to do with one another, except relating to SCOTUS's docket):

1) The Court today granted cert in Madigan v. Levin, which considers whether state and local employees can bring constitutional claims of age discrimination through § 1983 rather than going through the ADEA. The Seventh Circuit said they could, a departure from several other circuits. But most of those decisions came before SCOTUS' 2009 decision in Fitzgerald v. Barnstable Sch. Comm., where the Court held that a student could bring sexual harassment claims against a school and school officials under both Title IX and the Constitution. Fitzgerald emphasized the differences between the constitutional and statutory claims--including the identities of liable defendants and the applicable legal standards. The Seventh Circuit was the first court to apply Fitzgerald's analysis to the ADEA or other employment discrimination statutes.

The logic of Fitzgerald means the Seventh Circuit should be affirmed. Plus, I spent time in my book on § 1983 litigation discussing Levin as the appropriate application of Fitzgerald to other civil rights laws. I hope the Court doesn't somehow make me look bad on this

2) Mike Dorf discusses Holingsworth and Windsor, arguing that these cases are not likely to trigger massive resistance (a la the response to Brown) and thus are not appropriate for Bickelian passive virtues or Sagerian underenforcement. I agree with Dorf that if the Court recognizes a broad right to marriage equality, massive resistance is nearly impossible to imagine. But it is worth considering why.

The key is, what would massive resistance to Hollingsworth look like? Implementing Brown (even if the Southern states had actually tried to implement it in good faith) required a massive restructuring of the state educational system. And faced with resistance, federal courts felt hampered in their ability to compel compliance, given the costs and burdens involved. Whether or not those were legitimate reasons for the courts to stay their hand (either in Brown or later), the concerns are absent as to marriage equality. A decision in Hollingsworth holding that the 14th Amendment requires marriage equality would involve states issuing licenses when people ask for them, without any fundamental change to institutional structures. I suppose all the officials in a state could conspire to not issue licenses to same-sex couples. But any such resistance could be remedied with a simple injunction ordering compliance, an order that federal courts would be more willing to issue and vigorously enforce, since it would not impose great (or, for that matter, any) costs on the state.

State courts and the First Amendment

One of the great debates in Federal Courts/Civil Rights Litigation is over parity and whether state courts can or will vigorously protect and enforce federal constitutional rights. Most obviously, Younger abstention--and the criticism of Younger--reflects the divide on this belief.

But consider a case such as People v. Oduwole, in which an Illinois intermediate appellate court (in the rural western part of the state, no less) unanimously reversed a conviction for attempting to make a terrorist threat, where the threat consisted of little more than words scribbled on a piece of paper (he claims they were rap lyrics) and buried in the back of his car. While not explicitly a First Amendment case, the court emphasizes that, in the absence of any substantial step towards threatening someone, Oduwole's "writings, as abhorrent as they might be, amount to mere thoughts." It's not clear that a federal judge, even one steeped in life tenure, guaranteed salary, and the professional orientation of the federal judiciary, could have said it better.

On the other hand, perhaps in federal court the trial judge would have made that statement, rather than having a jury convict in less than four hours and forcing the defendant to appeal a conviction before gaining his release.

Oddball SCOTUS Cases

The purpose of this post is to crowdsource an issue that Suja Thomas has identified.

I got the idea from seeing Suja’s presentation at AALS this year, in which she argued that Twombly, Wal-Mart, and Ricci are oddball cases—cases with atypical facts in which the Court made broad changes to the law in a way that significantly affects cases with more typical facts.  She has written an article entitled The Oddball Doctrine: How Atypical Cases Make Bad Law in which she argues that the Court should exercise restraint by not making  legal changes in these types of cases.  During Suja’s presentation, it occurred to me that the Oddball Doctrine could apply to many of the Court’s recent arbitration decisions.

An example is ATT Mobility v. Concepción, in which the Court enforced a class-action waiver in a consumer arbitration agreement.  The arbitration agreement at issue in Concepción strongly favored the consumer – for example, it included a provision (added by AT&T after the Concepcións had filed suit) requiring AT&T to pay $7500 to a consumer if an arbitrator awarded the consumer an amount greater than AT&T’s largest settlement offer at the time of arbitrator selection.  Anyone even vaguely familiar with consumer arbitration knows that 99.99% of the time they skew very strongly in favor of the company – not the consumer. 

Had the Court enforced a class-action waiver in the far-more-typical consumer-arbitration factual scenario in which the prohibition of a class action makes it impossible for consumers to individually advance their low-dollar claims, the Court would have invited a political (perhaps Congressional) backlash.  But by choosing for certiorari that one-in-a-million case in which the class-action waiver favored the consumer, the Court was able to create a broadly applicable legal rule permitting companies to prohibit class actions in all arbitration agreements.

My new article argues that the Supreme Court recently has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash.  See Oddball Arbitration.  My question for Prawfsblawg readers is: do you see Thomas’s Oddball Doctrine in other areas of the law?

Rick Bales

Two current items on the filibuster

Two events have the filibuster, and conversations about filibuster reform, back in the news today. First, Republicans are (silently, of course) filibustering President Obama's nominee to the D.C. Circuit, apparently because she litigated cases that Republicans don't like (specifically against gun manufacturers), which disqualifies her from being a judge. Anyone who did not see this coming after the Democratic capitulation (again!) on filibuster reform is not paying attention. The fact that Carl Levin (as quoted in the linked piece) believed that anything would change shows how much is wrong with the Senate and with the Democratic Party.

Second, Rand Paul (supported by Mike Lee and Ted Cruz) is staging a talking filibuster of the nomination of John Brennan as Director of the CIA. This at least gives some reform advocates some of what they want--the end to silent filibusters and forcing Republicans to take and hold the floor (and the heat) for their delay efforts. Paul has been at it since 11:45 a.m. EST, so just over four hours now. Stay tuned. [Update: Still going as of 11:15 p.m.--coming up on 12 hours. Here is another piece reflecting the "this is the way filibusters ought to be" view]

Further update: It ended around 12:30, after 12 hours and 52--as everyone, incluindg Paul will note, a little more than halfway to Strom Thurmond's record filibuter. This does appear to have been effective at calling attention to the issues Paul wanted to highlight. The press found it entertaining, as did some of the public that pays attention to any of this. But a big part of that might just be the novelty of the talking filibuster. And if the minority had to do this every single time they opposed a court of appeals nominee, the novelty would wear off, particularly for the public and particularly if other business is not getting done. I previously have thought that the mandatory return of the talking filibuster--one of the filibuster-reform proposals that's been made--would be ineffective, actually creating more of a burden on the majority. But perhaps it would be a way to get rid of the routine filibuster (which really is the problem) without having to drastically rewrite Senate rules about what is and isn't a proper filibuster target.

A symposium on Fleming & McClain's "Ordered Liberty"

Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new book, Ordered Liberty.  My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here.  Among other things, I wrote:

At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so.  But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.

So, a more focused thought on a particular part of the book:  In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.”  Fair enough — these case do indeed illustrate these struggles.  But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.”  That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions.  To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.

- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf

Jim and Linda respond to me, here.  Time to get to work on a reply!

Lyons, Clapper, and types of constitutional challenges

In writing about standing in the context of § 1983 constitutional actions, I have argued that it is easier to get standing to challenge enforcement of a law that regulates citizens' primary conduct than to challenge a law that regulates what the executive can do in the course of investigating and enforcing those laws--that is, the manner in which the executive operates.

This explains, for example, City of Los Angeles v. Lyons. The Court held that an individual lacks standing to challenge police department policies on the use of force (there, it was a particular type of chokehold) during encounters with citizens; it was entirely speculative that the plaintiff would: 1) break some law, 2) be stopped or arrested by police, 3) have the confrontation escalate, and 4) have the chokehold applied by that officer, thus he could not show an injury-in-fact. Compare, for example, a plaintiff who wants to operate a nude-dancing bar challenging a municipal ordinance prohibiting nude dancing; he shows injury by alleging that he owns the bar and wants to have nude dancing but is prevented from doing so by the likely enforcement of the ordinance that directly regulates his primary conduct. The Court is generally more receptive to standing in the latter than the former situation, because the injury is more obvious. The Court accepts as non-speculative that a plaintiff will engage in intended conduct that may violate a direct regulation and, if he does, that regulation will be enforced against him. It is less willing to accept that a plaintiff will engage in conduct that may bring him in contact with the police and thus subject him to the police methods of enforcement or investigation.

Yesterday's decision in Clapper falls on the Lyons side of that procedural line. Section 1881a authorized certain actions by government in the course of investigating overseas misconduct. Just as it was impermissibly speculative that police would stop and choke Mr. Lyons, it was impermissibly speculative that the government would choose to record the plaintiffs' conversations or that FISC would approve that surveillance. The result, of course, is that likely no one has standing to challenge the manner in which the executive investigates or enforces the laws, unless and until a person is actually investigated and subject to those investigative methods.

Clapper is groundbreaking and seems to do something new with standing in its insistence that a plaintiff show surveillance, and thus injury, was "certainly impending." But the context of the case fits fairly neatly in ground that Lyons already had lain.

So much for unanimity

Keep with this week's theme of procedure and jurisdiction, SCOTUS today decided Clapper v. Amnesty Int'l., Inc., holding that a collection of attorneys, journalists, and activists lacked standing to challenge the constitutionality of certain surveillance provisions of the FISA Amendments Act of 2008.

The decision was 5-4 along the expected lines. While I stand by my suggestion that most of the Court's recent jurisdiction decisions have been unanimous or close to it, I should have included standing as the exception. There always has been a strong political/ideological valence to standing, particularly as it affects constitutional litigation. Actually, this is what made the birther lawsuits fun, as well as the ACA litigation if the courts had delved into it--standing doctrine, created in cases with plaintiffs trying to litigate "liberal/progressive" constitutional causes, being used to the disadvantage of plaintiffs trying to litigate "conservative" constitutional causes. It would have been interesting to see how the five-justice majority might have responded in that situation.

The "Mini-Cruel and Unusual Punishments Clauses" of the 1783 State Customs Legislation

I thought I would take a break from pissing people off to write about some additional evidence I had never seen before today on the original understanding of the Cruel and Unusual Punishments Clause.  This evidence further supports the views that (1) the Clause encompasses a proportionality principle and (2) that proportionality principle takes as its benchmark the punishment norms of the individual States.  On April 18, 1783, Congress, under the Articles of Confederation, passed a customs act, imposing duties on certain imports, in order to pay off the country’s war debt.  As was required under the Articles, each of the thirteen States then had to pass ratifying legislation in order for the customs act to go into effect.  Each of them did so.  Interestingly enough, in a majority of the state legislation affirming the new federal customs act, the States inserted what can be called a mini-Bill of Rights.  Each of these States apparently recognized that Congress could punish its citizens for failure to pay the new duties.  These States inserted a proviso that, in essence, required that Congress bring such an action in a court of that state and follow state procedures:  there was a clause requiring warrants to search dwelling houses, trial by jury, and so forth.  Six of these States – Georgia, Massachusetts, New Hampshire, Pennsylvania, Rhode Island, and South Carolina – included a “mini-Cruel and Unusual Punishments Clause.”  Virginia included a “mini-Excessive Fines Clause” but not a “mini-Cruel and Unusual Punishments Clause.”

Pennsylvania and Rhode Island forbade Congress from imposing “unusual punishments” for violations of the new act.  Read in the context of a paragraph that generally requires Congress to follow state criminal procedure (e.g., “the proceedings shall be in the usual form”), and to bring the action in a state court, it is certainly reasonable to read “unusual punishments” as referring to what is usual or unusual in that State.  This is greatly strengthened by the language used by Georgia, Massachusetts, New Hampshire, and South Carolina:  each forbade the infliction of punishment that is “cruel or unusual in this state” (or in Massachusetts, “in this Commonwealth).

This further supports the notion that when state ratifying conventions began proposing amendments to the Constitution a scant four years later, they used “cruel and unusual punishment” (or “cruel or unusual punishment”) as a shorthand way of limiting federal punishments to that which was “cruel and unusual” (or “cruel or unusual”) in each particular State.  At the very least, it supports the notion that this was a widely shared understanding.  Of course, critics will say that the whole point of the Constitution was to make federal laws uniform in a way that they were not under the Articles.  But the point of the Bill of Rights, as I have argued, was to push back on that enforced uniformity and retain for the States a measure of autonomy that was otherwise being taken away by the Constitution, including autonomy on setting the outer bounds of criminal punishment for offenses punishable by the States.

At the same time, this new evidence is pretty strong evidence that “cruel and unusual” and “cruel or unusual” were used in the 1780s to refer to punishments that were disproportionate.  That is to say, it refutes the view held by Justices Scalia and Thomas that the language was understood as covering only methods of punishment, those that inflict a tortuous or lingering death or inflict pain for pain’s sake.  One can scarcely imagine that the six States mentioned were really concerned that those evading the new customs laws would suffer the same treatment that awaited traitors under English common law – partial hanging, disembowelment while alive, drawing and quartering, and beheading – or that Congress would devise an ingenious and painful non-capital punishment for the loathsome smuggler.  To the contrary, my understanding is that criminal prosecutions for smuggling were rare; the government was typically content with civil forfeiture of the goods and the vessel in which they were found.  It thus appears more likely that these States were concerned that, if smugglers were to be punished, they would be punished more harshly than they could be under state law but with something short of a tortuous, painful death.  This is especially so when considering that some of the legislation further limited the penalty to forfeiture of the goods and vessel “in cases of prosecution in rem.”  Indeed, that is probably why Virginia included only a mini-Excessive Fines Clause, and six States apparently did not consider the danger serious enough even to include any such provision.

Political Participation and Libel Law

The news today is that Sheldon Adelson is suing the Wall Street Journal for libel.  So here's my question.  If Adelson is deemed a public figure because of his very public involvement in electoral politics, then does imposition of the actual malice standard constitute a burden on that political participation, in violation of the First Amendment?  My intuition is that that can't be right: the whole question of whether someone is a public figure turns largely on whether the person has injected himself into the public discourse.  Since presumably you do that by engaging in speech, it can't be an unconstitutional burden on free speech to impose a higher liability standard: if it were then much of the "public figure/higher fault standard" structure is suspect.

But then what about Davis v. FEC, the "Millionaire's Amendment" case?  If Davis stands for the proposition that a person's spending of his own money to influence the outcome of an election can't trigger burdens on that person or his speech (or, rather, that such burdens have to satisfy a high standard), then isn't that what's going on here?  Adelson participates in politics -- that leads to his becoming a public figure -- which in turn leads to his having to satisfy the actual malice standard -- that leads to any alleged libel likely going uncorrected.

Or is the answer that libel is different because the plaintiff, by being a public figure, can vindicate the reputational interest that libel is designed to protect to begin with?  So in that case Adelson doesn't lose anything by virtue of his having a tougher time in court -- he can protect his reputation through self-help, and that's all that libel law ultimately cares about.  If that's the right analysis then I'd be tempted to ask by Davis himself couldn't just spend his own money and get his message out: that's his self-help, which remains in competition with the opposing (or in this case, libelous) speech that stays out there in the market.  And in both cases, the end result is more speech.  But that's a more detailed argument, that gets to the merits (or lack thereof) of Davis itself.

Any thoughts?

Federalism Battles in the War on Drugs: Cruel and Unusual Punishment

Given the advent of state legalization of marijuana for medicinal – and now in two States, recreational – purposes, the federalism battles in the war on drugs can be expected to grow in intensity.  In President Obama’s first term, the U.S. Attorneys in California took an aggressive stance on medical marijuana facilities, threatening their owners and, in some cases, even the landlords that rented them space, with criminal prosecution under federal law.  Now some of those chickens have come home to roost.  Last month, California medical marijuana dispensary operator Aaron Sandusky received ten years in federal prison.

Let that sink in for a moment:  a decade in prison for conduct that is perfectly legal under state law.

Cases like Sandusky’s form part of the reason I have called for a more robust reading of the Eighth Amendment as it applies in federal cases.  That last sentence, a stickler might note, is redundant:  the Eighth Amendment applies only in federal cases.  But we have gotten so used to speaking of the Eighth-Amendment-as-incorporated-by-the-Fourteenth as simply “the Eighth Amendment” that I feel the caveat is necessary.  Indeed, that is part of the problem I have identified.  The “Eighth Amendment” standard the Supreme Court has developed in non-capital cases stems entirely from state cases:  Rummel v. Estelle, Hutto v. Davis, Solem v. Helm, Harmelin v. Michigan, Ewing v. California, and Lockyer v. Andrade.  That is to say, they are Fourteenth Amendment cases and not, strictly speaking, Eighth Amendment cases (and I think that, as attorneys, we should always be “strictly speaking”).  That standard is extraordinarily deferential to legislative decisions.  In effect, if the legislature could reasonably think that the carceral sentence in question served one of the goals of punishment – deterrence, incapacitation, rehabilitation, or retribution – the punishment meets constitutional requirements.  But that standard is so deferential to legislative judgments in large part because it comes from cases involving state legislative judgments.  There is a heavy dose of federalism in the cases listed above.

Such deference is misplaced when it comes to the judgment of Congress, for it was precisely the judgment of Congress – not the executive or judicial branch – that the Cruel and Unusual Punishments Clause was meant to check.  We know this because, for one thing, the Eighth Amendment (like most of the Bill of Rights) was originally going to be placed within the text of Article I before Congress decided to list the amendments out as addenda to the Constitution.  For another, the few statements made during the ratification period about the need for a clause banning cruel and unusual punishments were aimed at the danger of Congress creating such punishments.  I do not pretend to know precisely what the framers and ratifiers of the Eighth Amendment thought “cruel and unusual punishments” were.  But I do think they would be stunned to find out that, in essence, Congress can punish in any way that it wants.

Once we determine that the Cruel and Unusual Punishments Clause was originally understood as containing some requirement of proportionality, and the overwhelming evidence is that it does (I will explain in a later post why the Scalia-Thomas view to the contrary is erroneous), the difficult task is determining the benchmark:  to what do federally imposed punishments have to be proportionate?  For me, especially given the states’-rights orientation of the Anti-Federalists, who demanded the addition of the Bill of Rights, the best answer is the punishment meted out by the States.  That may mean that federal punishments for an offense cannot exceed:  how the States generally punish for that offense; or the harshest punishment meted out by any State for that offense; or how that offense is punished by the State in which the crime occurred.  I prefer the last option for reasons explained in my work – it is probably most in line with what the Anti-Federalists were thinking.  It is also easily administrable, at least compared to the first option.

Mr. Sandusky’s case represents an extreme example, where his actions do not even constitute an offense under state law.  But his case also fits within what I think the Anti-Federalists were most afraid of.  One wishes we could just ask George Mason or Patrick Henry:  does your Cruel and Unusual Punishments Clause forbid Congress from punishing someone who committed an act that the State could have criminalized but chose not to?  I think I know what they would say.

The Rational Basis Mini-War of OT 1980

Rational basis review often seems to be a stepchild of equal protection scholarship, except when scholars perceive that the court in the given case is really not doing rational basis review at all.  (The standard examples of such covert heightened review are City of Cleburne v. Cleburne Living Center and Romer v. Evans.)  This decision to largely ignore rationality review is unfortunate.    The requirement that government act only in pursuit of a legitimate, public-regarding purpose, and that it be reasonable when it does so, is one of the foundational rules of the Fourteenth Amendment. 

Of course, aggressive judicial policing of that requirement triggers allegations of judicial legislating, Lochnerizing, and other epithets.  And it's standard learning that, as a historical matter, judicial withdrawal from the practice of second-guessing garden-variety social and economic regulation has included a refusal to engage in serious rationality review -- at least when that review is not a cover for heightened scrutiny, as is often suspected of Cleburne and Romer. 

But there's more that can be said, and should be said.  Justice Stevens had some creative thoughts about rational basis review, as I discuss in this paper from a couple of years ago.  But other justices did, too.  Most notably, Justice Brennan and Justice Rehnquist engaged in fascinating little mini-war over the correct approach to rational basis review, and the components of such review, in the OT 1980 term.  In December 1980, in Railroad Retirement Bd v. Fritz, the two justices squared off over Justice Brennan's famous description of Justice Rehnquist's extremely deferential style of rationality review as "tautological."  The latter's oh-snap conclusion to his footnote engaging Justice Brennan's approach -- "The comments in the dissenting [Brennan] opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion." -- is by itself worth inclusion in a casebook as an exemplar of, to pardon the pun, non-rational argumentation.  Still, Justice Rehnquist had a point: Justice Brennan's argument for testing legislation against the legislature's actual purpose created difficult practical and conceptual problems, convincing even an otherwise-sympathetic Justice Stevens to conclude that Brennan's approach was not workable.

The war continued on two fronts that term. In Schweiker v. Wilson, decided in March of 1981, it was Justice Powell's turn to take up the mantle of ratcheting rationality review up a notch.  Joined by Justice Brennan, Justice Marshall (who had joined Brennan's Fritz dissent) and the previously-sympathetic Justice Stevens, he essentially agreed with Brennan's argument for heightened fit review when the legislature's goal is not apparent from the legislative history.  A few weeks later Justice Brennan himself renewed a version of the fight, in the dormant commerce context.  In an opinion concurring in the decision to strike down the Iowa law in Kassel v. Consolidated Freightways, he argued that the law should be evaluated based on the legislature's stated purpose, rather than the purpose furthered by the state's lawyers in litigation defending the law.  Again Justice Marshall came with him, but this time he had no other allies.  Justice Rehnquist, dissenting, renewed his Fritz attack on this sort of more intrusive review.  Again using colorful language, and citing their battle a few months before in Fritz, he wrote that Brennan's argument "calls to mind what was said of the Roman Legions: that they may have lost battles, but they never lost a war, since they never let a war end until they had won it."

But Rehnquist's analogy to the never-say-quit Roman legions seems to have been inapt.  The mini-war over rational basis review appears (at least at first glance) to have ended with the OT 1980 term.  As discussed in the paper I referenced earlier, Justice Stevens went on to think creatively about garden-variety rational basis review.  And remants of the debate resurfaced in cases like Nordlinger v. Hahn.  But I'm not sure Justice Brennan ever re-engaged.  If my initial impression is correct, this war was intense, and implicated some pretty fundamental issues in American constitutionalism, but burned itself out quickly.  Like I said, it has the makings of a fascinating little story.

The Rehnquist Conversion

Thinking about the Court's cert. grant yesterday in McCutcheon (the campaign contribution case) reminded me of a question I've wondered about for a while, but have never researched: Chief Justice Rehnquist's conversion to a view of the First Amendment hostile to campaign finance regulation.

It's easy, with the line-up ever since at least McConnell v. FEC (the 2003 case upholding most of McCain-Feingold), to see campaign finance issues as an issue that cuts precisely along the Court's liberal-conservative faultline.  But it wasn't always that way.  On the liberal/moderate side, Justice White was always sympathetic to regulation, Justice Marshall became more sympathetic, while Justice Brennan tried to split the baby, most notably in FEC v. Massachusetts Citizens for Life but also more fundamentally in Buckley v. Valeo (if the speculation is correct that Justice Brennan wrote the key parts of the campaign finance part of that per curiam opinion).  On the other side of the ledger, Justice Scalia was never sympathetic to such regulation, while -- to the point of this post -- then-Justice Rehnquist appeared to have no problem with most of that regulation.  He dissented in First National Bank of Boston v. Bellotti, the 1978 case that in the modern era established at least the abstract proposition that corporate political speech was protected.  He wrote the majority opinion in FEC v. National Right to Work Committee, the 1982 case that endorsed congressional concern with corporations using "war chests" to influence the political process, and deferring to congressional judgments about the best way to regulate them.  He wrote the dissent in the aforementioned Mass. Citizens for Life, arguing -- contra Brennan -- that even a pure advocacy corporation could be subject to limits on its political spending.  And he joined Justice Marshall's 1990 opinion in Austin v. Michigan Chamber of Commerce, the case that became the whipping boy for First Amendment-based attacks on campaign finance regulation until it was largely overruled in Citizens United.  But by McConnell Chief Justice Rehnquist had changed, firmly joining the anti-regulation bloc. 

So what happened?  Was his shift just an artifact of the jurisprudential politicization of this issue after Austin?  Did he ever explain it?  Maybe this question has been asked and answered -- I have not done any research.  But it's surely one of the more fundamental issue shifts a justice has performed in the modern era.  And, given the 5-4 nature of the campaign finance issue since McConnell, it's also one of the most consequential.

Dorf on cameras in the courtroom

Mike Dorf offers some thoughts on cameras in the courtroom (particularly SCOTUS and appellate courts), in light of Justice Sotomayor's recent announcement that she would not support allowing cameras into oral argument (a switch from the position she took during her confirmation hearing). He does a good job rejecting the arguments that people will not understand what is going on and that the justices and/or attorneys will grandstand for the cameras. He also adds a nice First Amendment twist--at the very least, the burden of persuasion that these harms may occur rests with the opponents of cameras (the "censors") rather with than the proponents of cameras. I had not thought of that in my prior comments, but it is a great point.

Why no First Amendment?

So far this term, the Supreme Court has only one First Amendment case on its docket--Agency for International Deveopment v. Alliance for Open Society International, Inc., which considers whether a federal law requiring organizations to explicitly oppose prostitution and sex trafficking as a condition for receiving federal funds to provide HIV and AIDS programs overseas. This contrasts with the previous years of the Roberts Court, which had seen a general uptick in First Amendment cases from the late Rehnquist Court, to the tune of 10-15 cases per year.

Any thoughts, speculation, guesses, or general spitballing as to the drop-off this term? One-year fluke? No cert-worthy cases? Has the current Court reached a general consensus on First Amendment (at least Free Speech Clause) matters for the moment?

I participate in an annual end-of-term panel on the Court's First Amendment cases and the panel organizers last week circulated an email wondering what we should talk about (not sure we can get two hours on whether AIDS prevention programs are government speech for Rust purposes). One possibility is to try to speculate on what exactly is going on this year.

Update: And as if on cue. The case likely will be for next term, however.

Curbing Our Enthusiasm: Do We Need Conservative Chaperones at the Progressive Party?

My friend Peter Berkowitz, a scholar at Stanford’s Hoover Institution, has written a self-help book for conservatives.  In Constitutional Conservativism, just published by Hoover’s own press, Berkowitz argues that conservatives can regain coherence and relevance as a political force through repositioning themselves as the voice of moderation and restraint in public life.  But, rightly, Berkowitz insists that conservatives need first to moderate themselves in order to claim justly that they can counterbalance the supposed excesses of progressivism.   Thus, to stake the territory of moderation, conservatives must abandon “the attempt to dismantle or even substantially roll back the welfare and regulatory state” and “refrain from attempting to use the federal government to enforce the traditional understanding of sex, marriage, and family.”

This may seem like just another pitch that the Republican Party ought to recapture the political center.  But Berkowitz grounds his argument in a conception of conservativism (and progressivism) that he finds, above all, in Edmund Burke.  He may well overestimate the extent to which Burke’s attack on the fanaticism of the French revolutionaries can be applied to American progressives.  But in rather anti-Burkean fashion, Berkowitz tells American conservatives that they need to get a theory before they can get moderation, whereas Burke himself tended to identify political theory with political immoderation.  Of course, Burke was theorizing in his very attack on theory, and awareness of this paradox permeates the fine, illuminating treatment of Burke’s ideas in Constitutional Conservativism.  

According to Berkowitz, the moderation taught by Burke consists in an awareness of the human costs and risks involved in violently breaking with tradition, of seeking perfection rather than reasonable improvement in laws and society, and of being unwilling to tolerate compromise, error and even an element of abuse and injustice in political life.    But to be true to his own objection to the universalism of theory (and Berkowitz notes this) Burke has to admit that there are times and places where only sweeping change or radical upheaval can establish or re-establish a healthy polity (“as a last resort”).   Is it possible that the New Deal and the Sixties (where the standard conservative narratives most liken American progressives to Burke’s Jacobins) were two such moments of necessary transformative politics?   And transformative politics inevitably gives rise to hopes that cannot fully be satisfied, to expectations that will be not met.   As Tocqueville observed, “the generation that witnesses the end of a great revolution is always anxious, discontented and sad.”  Was the retrenchment represented by Reaganism in the US built so much on a conservative legacy of political moderation as on the exploitation, in various ways, of post-Sixties depression or disappointment?  The question is whether and how one distinguishes political moderation from mere disillusionment with political idealism.          

            Berkowitz, who, cautions against viewing compromise as an end in itself, does not want to dispense with political idealism.  He is only against conservative political idealism.  While admirable as personal values or social norms, respect for private property, free enterprise, the traditional family, piety etc., are nevertheless not themselves suitable as political ideals.  It is just that they are useful if not indispensable for checking or moderating progressive political idealism when it veers too far in the direction of overbearing governmental bureaucracy or secular social engineering.  In sum, conservatives are valuable because they know too much of a good thing when they see it.   And that means that progressivism is, in fine, a good thing.  

But is it correct that we progressives need conservatives as our chaperones?   Though reviled by conservatives, were not FDR and more recently Ted Kennedy masters of compromise and coalition-building, knowing when to push forward and when to back off?   And what of Bill Clinton?  The jury is out but I venture Obama will prove no slouch either as a practitioner of prudent progressivism.

As for theory, there is a strong case that the progressive Montesquieu is a sounder source of political moderation for progressives than any conservative thinker.  This suggestion is supported by Berkowitz’s own turn in his argument from Edmund Burke to the framers.  Those (according to Berkowitz) consummate practitioners and expounders of political moderation were also, and especially the greatest of them, revolutionaries—establishing, in most un-Burkean fashion, a constitutional order on the rights of man and the abstract principles of self-government.   

And they were students of Montesquieu.  As noted, Berkowitz has difficulty articulating any independent political ideal or value for which moderation stands-he is constantly presenting it as a negative principle of necessary constraint or limitation on excess.  But Montesquieu’s grounding of political moderation in gentleness and unprejudiced understanding does connect moderation to a positive conception of human goodness.  I venture that Montesquieu comes closer to the spirit of Berkowitz’s idea (and to Peter as I know him as a person, I might add) than Burke’s idealization of the actual, which, as Leo Strauss very perceptively noted in Natural Right and History, points toward that fateful replacement of G-d by History on which the worst excesses of left and right in the last century were built.        

 

Federal Gun Control and Local Law Enforcement

In the past few weeks, since President Obama has proposed new federal gun legislation, there has been a spate of statements issued by local law enforcement officials that they will refuse to enforce any federal gun control laws that they deem to be unconstitutional.  Most but not all of these officials are sheriffs and most but not all are in the southern and western States.  This has led to a spate of news stories in the mainstream media, suggesting or stating explicitly that there is something untoward or unusual about local officials declaring that they will not enforce a federal law.  This local piece, on this letter from Boone County, Kentucky Sheriff Michael Helmig, is typical.  Sheriff Helmig’s letter states:  “I do not believe the Federal Government . . . has the right to dictate to the states, counties or municipalities any mandate, regulation or administrative rule that violates the United States Constitution . . . .”

But, as my colleague John Bickers points out in the news piece, Sheriff Helmig is attacking a straw man.  Everyone agrees that the federal government cannot “dictate” to local state actors that they enforce any federal law, irrespective of whether the underlying law is constitutionally suspect.  The very act of forcing local officials to enforce federal law itself would be unconstitutional under the anti-commandeering principle.

So is all this – the sheriffs’ letters and the media’s reportage of them – much ado about nothing?  Well, yes and no.  Although local law enforcement officials cannot, consistently with the Constitution, be conscripted to enforce federal law, they can and often do participate voluntarily.  To give just one example, enforcement of federal narcotics laws often involve state and federal law enforcement working together.  But pretending that they can be required to enforce federal law and that they will refuse to enforce this law as a matter of principle makes them appear courageous and plays better with the voters than admitting that they can always pick and choose which federal laws to help enforce.  Likewise, the media’s portrayal of obstinate southern and western lawmen defying federal authority is a much more interesting and familiar tale for their readers than the true storyline.

What is the Holding of Baze v. Rees?

One of the skills I try to get my students to practice in Criminal Procedure and my death penalty seminar is to extract the holdings of Supreme Court cases where there is no majority opinion.  The Supreme Court’s Marks rule says:  “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”  But sometimes Marks is difficult to apply; Baze v. Rees may be a case in point.  In Baze, the Supreme Court upheld the three-drug lethal injection protocol in use in most death penalty states against a challenge that the protocol implicated an unacceptable risk of severe pain if not performed properly.  In brief, the protocol calls for the administration of sodium thiopental, which should render the condemned unconscious; then pancuronium bromide, a paralytic that prevents spasms and also stops respiration; and finally potassium chloride, which stops the heart and causes death.  The potential danger is that if the first drug is not administered properly, the inmate will not be fully unconscious and will suffer greatly as the pancuronium bromide begins to asphyxiate him and the potassium chloride courses through his veins, causing an intense burning sensation until it finally stops the heart.

Chief Justice Roberts’ opinion, joined by Justices Kennedy and Alito, determined that a method of execution violates the Constitution only if it creates “a substantial risk of serious harm,” and only then if there is an alternative that “significantly reduces” that risk and is both “feasible” and “readily implemented.”  Justice Stevens, concurring in the judgment, agreed with this standard, and agreed that the petitioners did not meet it, but cautioned that a case with “a more complete record” on a proffered alternative method could lead to a different result.  Justice Thomas, joined by Justice Scalia, concurred in the judgment on the ground that the Cruel and Unusual Punishments Clause is not concerned at all with the mere risk of pain.  Rather, according to them, the Clause forbids only the deliberate infliction of pain.  Justice Breyer’s concurrence in the judgment was similar to that of Justice Stevens’ in that he focused on the petitioners’ failure to make a sufficient record regarding a proffered alternative method of execution, but he agreed with the more flexible “untoward risk” standard set forth in Justice Ginsburg’s dissent.  That dissent, joined by Justice Souter, argued that the Constitution is violated by an “untoward, readily avoidable risk of inflicting severe and unnecessary pain.”  That standard is a flexible one whereby even a less than substantial risk of pain could constitute an Eighth Amendment violation if the pain itself were severe enough and the means of avoiding it sufficiently easy.  She would have remanded for a determination based on this standard.

The issue of which opinion in Baze represents the holding is critically important.  At the time of the Baze litigation, the alternative proposed by the petitioners, a single large dose of sodium thiopental, had never been tested.  Today, however, at least five States have adopted the single-drug protocol and it has been used over a dozen times, apparently with no adverse results.  But without more proof that a maladministration of the first drug of a three-drug protocol is a substantial possibility, a challenge to the three-drug protocol should meet the same fate as in Baze if Chief Justice Roberts’ opinion were controlling.  On the other hand, a challenge today might be successful if something more akin to Justice Stevens’ and Justice Breyer’s opinions were deemed controlling, as they seemed to rely more upon the absence in the record of a legitimate, tested alternative.

At first blush, the Chief Justice’s plurality opinion appears to be the controlling opinion pursuant to the Marks rule:  since Justices Thomas and Scalia would find that the Eighth Amendment is not violated unless the State deliberately inflicts pain during an execution, Chief Justice Roberts’ opinion supplies the third, fourth, and fifth votes for affirmance on the narrowest grounds:  risk of pain can indeed violate the Eighth Amendment but only if that risk reaches some threshold of substantiality.

But consider what one Justice said during oral argument in a different death penalty case, Kennedy v. Louisiana, ironically on the same day Baze was decided.  The issue in Kennedy was whether the Eighth Amendment categorically bars the death penalty for child rapists.  A question arose during argument as to which opinion in Coker v. Georgia represented the holding.  A plurality of four Justices in Coker had written that the death penalty is categorically barred for rape of an adult woman.  Justices Brennan and Marshall each concurred in the judgment based on their view that the death penalty was always unconstitutional.  And Justice Powell concurred in the judgment in part and dissented in part based on the view that the death penalty for rape was barred in this case but he would not rule out the death penalty for particularly egregious rapes.

During the Kennedy argument, Jeffrey Fisher, counsel for Kennedy, characterized the plurality opinion in Coker in controlling:  it was narrower than the Brennan/Marshall view that the death penalty is always unconstitutional so it represented the narrowest grounds for reversal.  But one Justice chimed in with an interesting observation:  “That’s [a] strange way of making a majority, isn't it? * * *  Two people who think even the death penalty for murder is no good, they're going to form the majority of people who consider whether a lawful death penalty can be imposed for rape.  I think at least in those circumstances, you have to discount the people who would not allow the death penalty under any circumstances for any crime.”  Prof. Fisher objected:  “Well, I'm not aware of any wrinkle in this Court's jurisprudence that says that if a Justice is too far out of the mainstream that their vote is discounted.”  The Justice persisted that such a Justice “is not considering the issue that is before the Court. The issue before the Court is whether . . . a permissible death penalty can be imposed for this crime.  These parties say there's no such thing as a permissible death penalty.  I mean . . . if that wrinkle isn't there, we should iron it in pretty quickly.”

If this reasoning were to prevail, the impact on Baze would be considerable.  On this line of logic, one could arguably ignore Justice Thomas’ separate opinion in Baze, joined by Justice Scalia.  Since “[t]he issue before the Court is whether” the risk implicated by the three-drug protocol is too high; and Justices Thomas and Justice Scalia “say there’s no such thing as a” risk that’s too high for Eighth Amendment purposes; then “you have to discount the people who would not” look at any risk of severe pain as being too high to violate the Eighth Amendment.  Indeed, of all the separate opinions in Baze, Justice Thomas’ is the most “far out of the mainstream.”  The dissent is actually closer in character to the plurality opinion, since both recognize the factors that must be taken into account in determining whether a risk of pain during an execution is too high.  They simply disagree on how to weigh those factors.

Discounting the views of Justices Thomas and Scalia, Justice Breyer’s opinion actually becomes the controlling one for purposes of the Marks rule.  I should say that this does not seem to me to be a good way of approaching the Marks rule, for whether a Justice is “not considering the issue that is before the Court” seems largely dependant on how one frames “the issue that is before the Court.”  I should also say that the plurality opinion in Baze appears to me to be the most attractive normatively.  Be that as it may, if the approach to Marks discussed at the oral argument in Kennedy has the apparent support of a sitting Justice, perhaps those challenging execution protocols should sit up and take notice.

And the Justice who proposed this interesting way of applying the Marks rule?  Justice Scalia, of course.

Westboro Baptist and marriage equality

Jason Mazzone at Balkinization links to an amicus brief filed by Westboro Baptist Church (of "God hates [everyone but us]" and Snyder v. Phelps fame) in the DOMA case--which, he points out, does not actually cite to any provision of the Constitution. And I would add that the Table of Authorities cites fewer cases (8) than Bible verses (35). I've already said that I find the primary merits argument hard to believe or take seriously. Is Westboro's argument really all that much worse?

The summary of the argument is after the jump.

The government has responsibility to protect the health, safety and welfare of the people. Of all the harms that a society can face, none are worse than incurring the wrath of God by a blatant policy of defiance of and disobedience to His plain standard. This nation was founded on Bible principles, and the laws of America arose from Scriptural precepts. America has erred in making fornication, adultery, divorce, remarriage, abortion-for-convenience-on-demand and sodomy, standard fare in this country. It is time to reverse that course, and for this Court to squarely hold that the governments of America have a compelling interest in upholding traditional opposite-sex marriage, and further in protecting the people from
the devastating effects of same-sex marriage. Separation of church and state, while prohibiting government from interfering in issues of doctrine or church governance, does not prohibit the government from promulgating laws that institute the standards of God on moral issues. Just as the government is empowered to outlaw murder, the government is empowered to outlaw same-sex marriage. This nation that God blessed and built into a super power is going to perish if this Court and the governments of this land bless same-sex marriage through government license. WBC pleads for reversal.

Reforming the Pardon Attorney Office: Some Preliminary Thoughts

I'm home now, after a few days in NYC last week, where Eric Johnson (Illinois) and Rachel Barkow (NYU) presented drafts at the crim law theory colloquium. Rachel's cool paper lays out the case for moving control over federal prison, foresenics and clemency policy outside of the DOJ. You can find an early draft on SSRN and I think it's coming out later this year in Va L Rev. The discussion with others about Rachel's paper got me thinking again about the federal pardon office in particular and whether (or how) governments should dispense mercy. Because of the recent NYT editorial on clemency reform, there are a number of folks and organizations urgently interested in reform of the Office of the Pardon Attorney. This is in part because Obama's record on distributing pardons is especially low when compared to other recent presidents. (Rachel's paper provides data on that; former pardon attorney Margy Love has been a one-woman crusader on that front too.) Unlike Rachel or Margy, I won't say Obama's record low number of pardons is necessarily stingy. That conclusion presupposes too much to reach that assessment, though I can imagine I might reach the same conclusion if I had the time to review all the petitions myself.

And that goes to my main point. It seems to me that if we're going to have reform of the Pardon Attorney's office, one thing we should try to do is unpack the reasons for clemency to better facilitate understanding and democratic accountability. Often the word clemency is used in broad-brushed ways, and by using it without care or precision, we lose the opportunity to move the conversation forward in useful ways. Accordingly, if we are going to reform the Pardon Attorney's office, and if states are interested in similar developments, then we should at least do our best to shape sites for clemency in ways that are honest even if they are not meant to do (only) justice.

Specifically, clemency sites like the executive pardon can be used to advance justice in its retributive texture. These are the easier cases for clemency and they arise when executive branch officials have substantial doubts about the accuracy of the conviction now, or perhaps because they believe the punishment is too severe (in relation to the offender's moral or legal desert). When officials are faced with classic Type I errors, these clemency sites are attractive and necessary because of the way in which they can be used to reduce or correct such errors--and they are especially attractive when decisions are subjected to some kind of deferential review--as I have argued.

In addition to promoting justice and correcting injustices, clemency sites like the Pardon Attorney could also be used to advance mercy, understood as I roughly defined it once (somewhat controversially), as leniency motivated by compassion, redemption, grace, caprice or bias. Thus, when pardons are bestowed because of a person's post-conviction heroic deeds, or because Christmas is coming, or because the offender has come to Jesus, or because the person's family is close to the President, then such dispensations of leniency should be identified as mercy with particular explanations offered for the leniency.* Here, the decision is made to extend leniency independent of its putative benefits toward crime control.

Finally, clemency sites such as the Pardon Power could also be used to advance straightforward policy goals regarding individual prevention and crime control. On this view, pardons are a way to address and scale back punishments that are unnecessary with respect to the threats posed by particular offenders. Perhaps this offender is no longer a sex offender threat because he has voluntarily sought chemical castration and otherwise completed all treatments; perhaps that violent offender has become an invalid through an accident he suffered while in prison. With this goal of individual prevention in mind, the Pardon Attorney could be used as a space (especially in a world without parole) to re-assess threats of dangerousness that earlier motivated officials to apply a custodial or otherwise onerous sanction that is no longer required from a social self-defense perspective.

Again, I'm not saying I necessarily endorse or oppose all pardons that are merciful or prospectively utilitarian from an individual prevention perspective, but I know that others are attracted to those kinds of pardons. It seems to me that if we're going to have a pardon attorney perform any role related to remitting punishments, it would be a good idea if we could determine which box the President thought a particular offender's petition for clemency belonged in, and why. I doubt that too many people make their ultimate decisions about who to support politically based on who receives clemency and why, but if we do think the Office of the Pardon Attorney has fallen into unjustified dis-use, it might be because such decision-making has in the past been inadequately sorted and scrutinized. Justice, mercy, and prospective utility would be a first pass attempt at trying to get the Pardon attorney, and offices like it at the state level, to think more sure-footedly about what they are doing and why.

*My published and probably still current view is that leniency motivated by any of these mercy reasons are all problematic even if not equally so from the perspective of retributive justice or liberalism properly understood. But my own view on this doesn't matter for the limited purposes of trying to come up with reforms of the Pardon attorney. I understand that not everyone is a retributivist or even a liberal and that some folks want the law to have spaces for interstitial discretion that redounds to the benefit of defendants--even if those benefits cannot be justified on their own feet but rather in service to some other good such as the desire to simply have less punishment. 

Marriage: Because only straight people can get knocked up

This story from the LA Times is a week old, but it describes part of the argument in the briefs defending the prohibition on same-sex marriage (as to both Prop 8 and DOMA), roughly as follows: Marriage is a unique institution necessary to handle unintended and unplanned pregnancies and to ensure that "irresponsible procreation" does not become a burden or drain on society. While same-sex couples only reproduce through careful advance planning, heterosexual couples can, and often do, reproduce carelessly and unintentionally. In other words, marriage is for straight people because only straight people can get knocked up or can knock someone up.

I have not read the briefs and I probably should know better than to rely on MSM reports of a legal brief, but is that really part, much less the core, of the argument? Is there more to the argument that the story omits? We have gone--seemingly in the space of this one litigation--from marriage as a sacred institution needing preservation from those who would defile it to marriage as a way to handle irresponsible-but-fertile fornicators. On this argument, marriage is intended for the very people who probably should not be together.

(H/T on both the Times story and the title from my colleage Tracy Pearl).

 

Hello and Happy Groundhog Day

Thanks to Dan and the gang for inviting me to guest post on Prawfs once more.  For those who don’t know my work, my main interests are in criminal law, criminal procedure, constitutional law, sentencing, and the death penalty.  My most recent, and ongoing, research has focused on looking at the extent to which federalism constraints are built into the Bill of Rights, tying limitations on federal power to the norms of the States.  You can expect some of my posts to be on this research and other ideas I’ve had for scholarship, as well as pending Supreme Court cases, thoughts on teaching, and, well . . . my philosophy is that a blog post should be somewhere between a law review article and the "You Know What Really Grinds My Gears?" segment from Family Guy.

As has been my practice in the past, I will not respond to anonymous or pseudonymous comments.  As one prominent legal scholar recently wrote:  “If you have an argument, make it, and use your name.”

For my initial post I was going to honor Groundhog Day – the movie, not the day – by simply cutting and pasting one of my posts from last year.  However, I was concerned that no one would notice.  But I will perhaps give you an eerie sense of déjà vu by discussing my view of the Cruel and Unusual Punishments Clause in my opening post.  My main area of interest had been the federal death penalty in non-death States.  I had made the argument that the Cruel and Unusual Punishments Clause could be understood as forbidding the federal government from inflicting a type of punishment not authorized by the laws of the State where the criminal conduct occurred.

In my latest work, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. 69 (2012), published last November, I update my research and expand on that argument.  I think one can articulate my claims in three ways.  First, I argue that, because the Supreme Court’s jurisprudence on the Cruel and Unusual Punishments Clause as applied to carceral sentences stems from state, not federal, cases it is exceedingly deferential (except for the recent juvenile LWOP cases) largely due to considerations of federalism.  Therefore, a more robust and searching analysis is appropriate in looking at whether federal sentences of imprisonment constitute “cruel and unusual punishment.”  Second, I argue that such a more searching analysis should look to the laws of the several States to determine whether a federal punishment is “cruel and unusual.”  That is to say, if a federal defendant is punished more harshly for an offense than he could be in any State, the punishment is “cruel and unusual.”  And I give a few recent examples where this has happened.  Finally, I suggest that the proper comparator may be, not the States generally, but the State where the criminal conduct occurred.  This would mean that a federal sentence is “cruel and unusual” if it exceeds what the defendant could have received in state court for the same crime in the State where it occurred.

As in my prior work, I rely heavily on the claim that we ought to give primacy to the general views of the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as a way of preserving both individual rights and state sovereignty.  I suggest that an emphasis on the views of the Anti-Federalists should give us a more state-centered, and perhaps state-specific, interpretation of the Bill of Rights than is currently the case.

I’ll leave it at that for now, and go into some of the nitty-gritty and possible implications and further applications of these ideas in later posts.

The nature of online speech

At CoOp, Danielle Citron and Mary Anne Franks have numerous posts about the problem of revenge-porn sites. Keeping with that theme of misogyny on the internet, here are posts by Ann Friedman at New York Magazine and Amanda Marcotte at Slate offering advice on how to deal with "the creeps, the weirdoes, the bug-eyed nutters, and the sleazeballs in fedoras" who show up in on-line comments sections. Marcotte in particular makes what I think is a nice point: These days everyone owns a computer, which means that the creepy guy on the subway or the paranoid guy in the bank line also have access to comments sections. But, she argues, if this guy is just annoying in the former contexts, he should not be legitimately powerful in the latter context.

I am not a woman and I write on a blog read by a relatively small, niche audience of thoughtful and intelligent people; so I will not try to be overly sanguine about the trash (and purveyors of trash) who go after female opinion writers on-line. But I would try to build something on Marcotte's point. There is not necessarily more vitriol or more hateful, misogynistic speech out there than twenty or thirty years ago, nor are there necessarily more people who hold such beliefs. But there  are infinitely more forums in which they can express those views, pretty much at will and without any external filter. That obviously is one thing the internet has wrought. But the internet also has wrought infinitely more forums (this blog included) for thoughtful, intelligent commentary about a host of things by a lot of different people.

The question, of course, is whether the benefits of the latter are worth the costs of the former.

Roe v. Wade at 40

Today is the 40th anniversary of Roe v. Wade.  For me (but not, I realize, for most of my friends and colleagues in the legal academy), it is a sad day and the fact that it follows on the heels of our celebration of the life and work of Dr. King is dissonance-creating.  I realize that many regard the ruling as a welcome step in the direction of equality-under-law-and-in-fact for women (and perhaps also as a needed correction to an excessive influence on law of religious morality), and I'm not (I promise!) looking for a fight but, for me, the decision was a badly reasoned overreach, marked a set-back for human equality, and has had negative effects on our politics, on the judicial-nominations process, and on our constitutional doctrine.  We could have done, and can do, better. 

In any event, several hundred students from Notre Dame are leaving this afternoon (snowstorm notwithstanding) for the March for Life in Washington, D.C.  They'll be joined by tens of thousands of others and, I imagine, ignored by the national media.  But, I wish them the best.  And, I still think John Hart Ely was right.

Jurisdictionality and discretionary review

SCOTUS on Tuesday decided Lozman v. City of Riviera Beach, holding that a floating house was not a "vessel" for purpose of admiralty law because it was not "used, or capabale of being used, as a means of transportation on water." The Court thus held there was no jurisdiction over a municipality's attempt to establish and enforce a maritime lien on a floating house (a picture of which is included in the Appendix to the opinion) moored in its marina.

Two questions/comments on the case.

First a comment. As I wrote after oral argument, I still believe this case suffers from jurisdiction/merits conflation, although it was not discussed at all. Building on what I wrote in October: "Vessel" does not appear in the statute granting  admiralty jurisdiction, which states simply that district courts have original and exclusive jurisdiction over "[a]ny civil case of admiralty or maritime jurisidiction." Rather, the word appears in the Maritime Lien Act, which is the substantive law establishing a lien and a cause of action for a "person providing necessaries to a vessel." The Court then had to interpret the Rules of Construcion Act to define vessel for purposes of the MLA.

Thus, the meaning of vessel, and whether the thing at issue here is a vessel, should be a merits question. I cannot see any difference between whether something is a vessel subject to a maritime line and whether someone is an "employer" or "employee" in a Title VII action, both of which are treated as merits issues. One difference, I suppose, is that if a creditor attempts to take a lien on a res that turns out not to be a vessel, the creditor still can take a lien on the property, but the claim  reverts to one under state law. On the other hand, if a named defendant turns out not to be an "employer" under Title VII, the claim does not revert to anything; it simply fails. I don't buy the distinction, however. The Lozman opinion spends 15 pages trying to find the meaning of one word--vessel--that appears not in the jurisdictional grant, but in a separate statute that creates a cause of action and contains no jurisdictional language. Recent case law suggests that statute should be treated as substantive and whether it is satisfied as a merits question.

If the goal in jurisdictional analysis is simplicity (as the Court again repeats here), my approach is the simplest: The city's allegation that the object it is asserting the lien on is a vessel grants admiralty jurisdiction-full stop. If it then turns out not to be a vessel, then the city's claim for a maritime lien fails on the merits. And we end up in the same place--the city's claim fails.

Second, a question, first raised by a colleague: Why did the Court take this case? Given the discretionary nature of its jurisdiction and how few cases the Court hears in a term, why would it spend a slot on this case? Justice Breyer's majority opinion insists the grant was "[i]n light of uncertainty among the Circuits about application of the term 'capable'" in the definition of vessel. But aren't there more pressing issues of federal law with similar "uncertainty" that would be more worthy of the extraordinarily small amount of time and attention that the Court is willing to spend?

A few thoughts, although I am not sure any explains it. One is that admiralty is a uniquely federal area of law that does not come up all that often but that does have to be dealt with. So SCOTUS's responsibility for supervising the federal courts and federal law might prompt the justices to reach a bit more to find an admiralty case. This also plays into the view, expressed by one of my former professors, that the Court should take some obscure cases every so often, just to keep everyone honest (the prof had the non-delegation doctrine in mind, but admiralty also would do). Another possibility is that this is an example of the Court engaging, as it occasionally does, in some error correction, taking a case simply because the justices believe the lower court erred. Of course, the Court typically will do that only when significant federal interests are at stake, so we come back to the question of whether admiralty and the definition of vessel qualifies.

Anyone have other explanations for this grant and this decision?

Emancipation Proclamation, ctd

Following on my post on Tuesday's sesquicentennial of the Emancipation Proclamation and this Faculty Lounge discussion of whether, where, and how the Proclamation should be covered in law school: Consider the letter to President Lincoln from Annie Davis, an enslaved woman in Maryland asking for advice on how she can become free, since her mistress will not release her.

The letter is dated April 25, 1864--almost 16 months after Lincoln signed the Emancipation Proclamation. By its terms, the Proclamation applied only to enumerated states, all of which had seceeded. Maryland (along with Missouri and Kentucky) had slavery, although it remained loyal to the Union. Lincoln obviously did not want to risk alienating those areas that had remained in the Union. In addition, the Proclamation did not reach portions of Louisiana and what became West Virginia, which similarly remained loyal.

The result, of course, is that the Proclamation was of  limited legal effect of its own force. No one considering itself subject to a presidential proclamation was bound by it. Those bound by it did not consider themselves subject to a presidential proclamation. It merely set the stage for emancipation once the Union military captured and controlled areas in the South (Lincoln signed it as an exercise of his Commander-in-Chief power). Otherwise, its power was rhetorical--changing the meaning and purpose of the Civil War and making ending slavery a moral imperative to be carried out in subsequent enactments.

All of which, it seems to me, is worth teaching law students --as a matter of history, politics, and civics (which they may very well not have learned in high school or college) and as a matter of how "law" actually works.

Emancipation Proclamation

Today marks the sesquicentennial of the Emancipation Proclamation, which made the Civil War explicitly about ending the institution of slavery. The timing is appropriate, given the success of Lincoln and its focus on a different legal document and process to emerge from Lincoln's presidency (good posts on the legal procedures in the movie here, here, and here).

Foreign Travel by Members of Congress (Part III)

As I explained previously (here and here), I’ve been writing a piece that examines Congress's involvement in international diplomacy. One half of the article documents the nature and extent of the contemporary practice, while the other analyzes that practice from a separation-of-powers angle. As the data in the last post demonstrated, legislative diplomacy in the form of CODEL travel is a major form of engagement between the United States and foreign countries. Now I want to discuss some of the reasons why the numbers from the last post are significant.

First, the findings at least partially contradict the common perception that CODEL travel is nothing more than a series of taxpayer-funded boondoggles for profligate legislators. With places such as Afghanistan, Iraq, and Pakistan among the most common destinations, and with members of congressional committees such as Foreign Affairs and Armed Services traveling more than their counterparts on other committees, it is apparent that something other than vacationing is going on. Wikileaks confirms as much—an overwhelming majority of the State Department cables show legislators using foreign travel to gather information about economic, political, and social conditions in host countries. The idea, it seems, is that legislators can educate themselves by meeting with foreign officials and personally observing foreign conditions, and in turn use their knowledge to develop more effective legislative solutions to foreign policy problems. Wikileaks shows that another rationale for CODEL travel is lobbying; legislators often use their meetings with foreign officials to press foreign governments to act in ways that promote U.S. interests or, less frequently, the interests of specific constituents. One might fairly question whether CODELs are an effective means of pursuing these goals, but it’s clear that the goals generally are not sightseeing and leisure. The intermittent public debate on CODEL expenditures needs to acknowledge that.

Second, the results show that the conduct of foreign relations is, from an institutional perspective, more complicated than commonly assumed. In practice, diplomacy is not an executive prerogative; it’s a crowded field occupied by the President, State Department, and other executive actors, plus both chambers of Congress. And in practice, the Senate is not necessarily more involved in foreign relations than the House. As I explained before, House members participated in CODELs even more frequently than their Senate counterparts in 2009, both in aggregate and on a per-legislator basis. 

Finally, I think the results are significant because they call for some new thinking about the separation of powers in the context of foreign affairs. A few aspects of the doctrine should be pretty straightforward: Legislative diplomacy generally cannot intrude upon diplomatic functions—such as negotiating treaties—that Article II assigns to the President, and communications carried out for the purpose of fact-finding are constitutional as an exercise of Congress’s implied power to investigate in furtherance of enumerated Article I powers. But beyond that, formalist analysis is probably unable adequately to account for the contemporary practice. For example, as a textual matter is it unclear why CODELs can lobby foreign governments, and why Senator Kerry could undertake missions to Pakistan and Afghanistan on President Obama’s behalf. The alternative is to adopt a functionalist analysis that renders legislative diplomacy constitutional as a form of constitutional custom, or as the product of an executive delegation of Article II diplomacy power, but doing so results in a series of additional complications. Functionalism, for example, typically isn’t used for converse analyses of these kinds; the more common inquiry—such as in Youngstown—is whether custom or legislative delegation supports a gloss on executive power. Moreover, the possibility of executive delegation would operate in tension with the principle of the unitary executive. In working through these issues, I hope to develop a few insights for con law folks and those involved in legislative diplomacy, and also to illustrate one way in which Congress exerts more influence in foreign affairs than is often assumed. I’ll share a draft soon on SSRN.

Thoughts on presidential succession

I had not thought about this until it was pointed out, but the death of Hawaii Sen. Daniel Inouye brings with it a change in the President pro tempore of the Senate. That office now passes to Sen. Patrick Leahy, the senior-most Senate Democrat. At Slate, Matthew Yglesias argues against having the P/P/T third in the line of presidential succession. Yglesias primarily focuses on the fact that the P/P/T is not even a chosen or recognized party leader; in fact, the only qualification to be P/P/T is to be really old and a member of the majority party.

Ironically, Yglesias points out, Leahy also chairs the Judiciary Committee, meaning he now has the power to at least begin the process of creating a better line of succession by pulling himself out of it. (It is not clear whether Yglesias wants to move to  cabinet-only succession and also remove the Speaker of the House from the succession order or whether he just wants to acknowledge the realities of Senate structure and the differences between the House and Senate).

The Pathological Perspective, Guns, and Deinstitutionalization

I offer here an observation on some of the post-Sandy Hook debate.  It doesn't have any clear policy implications one way or another, but it nonetheless struck me.

Almost 30 years ago, Vince Blasi famously argued that we should take a "pathological perspective" on the First Amendment.  He argued that we should interpret the First Amendment such that it is best positioned to do maximum work in the "worst of times" -- the times "when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically."  It seems to me that a lot (though far from all) of the advocacy of rights of gun ownership in this country takes a similar pathological perspective.  Thus we hear that gun ownership is necessary to prevent tyranny, and that we have to be worried about the government disarming the populace.  

Yet when we have a mass shooting, we often hear from gun rights advocates (again, far from all of them), that the problem is not lax gun laws but the deinstitutionalization of people with mental illness.  David Kopel's op-ed in today's Wall Street Journal contains a few grafs making this argument.  What's striking to me is this: Much (though, again, far from all) advocacy of deinstitutionalization in the 1960s particularly was itself driven by a pathological perspective.  Some (though far from all) advocates of deinstitutionalization argued that the government would use its power to institutionalize as a means of detaining and torturing dissenters, outcasts, or peceived deviants.  And they had then-current examples (from the Soviet Union) where governments were doing just that.  (For a hint at these issues, see page 15 and note 63 of this article.)

Given the pathological perspective on these two issues, one might be tempted to ask gun rights advocates, What makes you think that a government that is so tyrranical that we will need to overthrow it by force can be trusted with the power of locking people up based on assertions of mental illness or predictions of dangerousness without the benefit of a criminal process?  Okay, a bit of a cute question, and the policy issues for both gun and mental health laws are difficult and complicated ones on which reasonable people can disagree.  For myself, I'm not sure that a pathological perspective on gun rights or deinstitutionalization makes a whole lot of sense.  For one thing, it likely leads us to ignore the day-to-day threats to freedom that make far more of a practical difference to our lives in expected-value terms than does the exceedingly unlikely "worst of times."  And if we do get to the "worst of times," I'm not sure how much value "parchment barriers" (or even pistols and rifles) will have for us in practical terms.  But I thought the parallel in the arguments was striking.

Doing the waive at the ballpark

Via Nathaniel Grow (who teaches Legal Studies in the business school at Georgia): The image at left (click to enlarge) is a page from the October issue of Yankees Magazine and features the team's ticket policy. Note the underlined language in the inset at the top--fans acknowledge that team policies banning foul/abusive language and obscene/indecent clothing do not violate their free speech rights and they waive any free-speech objections to those policies or their enforcement.

I find it interesting that the team is now framing its attempts to regulate fan expression explicitly  in free-speech terms. It suggests their recognition of my core argument--that fan expression, even profane or objectionable fan expression, is subject to First Amendment protection and analysis. This policy is an effort to wiggle away from that legal reality. Of course, the idea of "acknowledg[ing]] and agree[ing]" that something does not violate one's rights when it probably does is pretty Orwellian. It goes well beyond a waiver of a claim into a compelled agreement to an alternate reality.

More fundamentally, even as a straight waiver, it cannot possible be enforceable. Assume for the moment the Yankees are a state actor in managing the ballpark--I argued they were with respect to the old Yankee Stadium, which was owned by the City of New York, although the analysis changes for the new ballpark, which is privately owned but (largely) publicly built.  The government cannot condition access to a public forum on a person waiving their right to challenge constitutionally suspect limitations on their speech in that forum (imagine a parade permit saying "As a condition of accepting this permit, you agree that police can halt the parade if your speech is objectionable"). Nor is this saved by the fan's compelled acknowledgement that "such time, place and manner of [sic] the restrictions are reasonable." While it is telling that the team is using those precise words, a TPM restriction must be content-neutral; a ban on foul language and indecent clothing is so obviously not content-neutral.

Finally, I do note that the waiver only applies to dirty words and dirty clothes and not to other possible free-speech violations, such as compelling fans to remain standing by their seats for "God Bless America" or other forced patriotism. I wonder if that is an oversight or if the team has genuinely given up on those efforts.

Foreign Travel by Members of Congress (Part II)

As I mentioned in my previous post, I’ve been writing an article on the subject of international diplomacy by members of Congress, with an emphasis on congressional delegations (“CODELs”) to foreign countries. Information about CODEL practice has been pretty limited, so one of my purposes has been simply to provide a more complete account of how frequently CODELs travel overseas, who is participating, where they go, and what they do when they get there. To do so, I collected information from the State Department cables that Wikileaks released to the public in 2010-11, many of which provide detailed accounts of meetings between members of Congress and foreign governments. I also collected information from official reports on publicly and privately financed congressional travel. Some of the reports were published in the Congressional Record pursuant to federal statute; others were published in accordance with House and Senate ethics rules. The data is quite voluminous, so I focused only on travel that happened in 2009—the most recent year for which the available information is the most complete. Counting each country visit by each legislator as one trip, and adding the data from the various sources, I came up with the following.

A total of 420 federal legislators, or approximately 79% of the combined membership of the House and Senate, completed slightly more than 2000 trips abroad in 2009. Members of the House were responsible for 84.5% of this travel, for an average of 4.0 trips per member, while members of the Senate were responsible for 15.5%, for an individual average of 3.2 trips. Legislators from both parties participated in comparable measure: Democrats averaged 4.09 trips per legislator, while Republicans averaged 3.56.

Legislators engaged in diplomacy unevenly. While some never went abroad even once, fifty-four legislators made at least 10 foreign trips during the year; the most frequent fliers were Eni Faleomavaega (24 trips) (D-AS), Jim McDermott (21) (D-WA), Adam Smith (17) (D-WA), Gabrielle Giffords (16) (D-AZ), Sheila Jackson-Lee (16) (D-TX), Lindsey Graham (15) (R-SC), Gregory Meeks (15) (D-NY), Jeff Miller (15) (R-FL), Solomon Ortiz (15) (D-TX), Dana Rohrabacher (15) (R-CA), and Joe Wilson (15) (R-SC). By comparison, Secretary Clinton made 51 trips to foreign countries over the same period.

Legislators traveled widely. CODELs visited at least 117 countries in 2009. The most frequent destinations were Afghanistan (139 trips), Israel (134), Kuwait (119), United Arab Emirates (86), Germany (73), Iraq (72), Pakistan (53), Jordan (49), Belgium (47), and Italy (47). An overwhelming majority of this travel was publicly funded.

Finally, members of congressional committees with jurisdiction over foreign affairs and related matters were more likely to participate in CODELs than other legislators. The tables below contain information for the committees with the highest and lowest member-trip averages.

Table 1 – House Committee Travel (2009)

Committee	Total Member Trips	Trips Per Member
Foreign Affairs	324	6.89
Armed Services	404	6.62
Intelligence	134	6.09
Standards of Official Conduct	56	5.60
Education and Labor	224	4.57
. . .	. . .	. . .
House Administration	21	2.33

Table 2 – Senate Committee Travel (2009)

Committee	Total Member Trips	Trips Per Member
Foreign Relations	105	5.53
Armed Services	119	4.58
Judiciary	79	4.16
Homeland Security	62	3.65
Agriculture, Nutrition & Forestry	74	3.52
. . .	. . .	. . .
Veterans’ Affairs	20	1.33

In my next post, I’ll offer a few observations about why I think these results are significant, and why they raise some interesting separation of powers questions.

Foreign Travel by Members of Congress (Part I)

The Constitution allocates power over the conduct of foreign relations primarily to the executive, but diplomacy by Congress is common. Members of the House and Senate frequently travel overseas as part of congressional delegations—or “CODELs”—to meet with foreign officials, and foreign officials often make stops on Capitol Hill to discuss legislation. In recent years, visiting heads of state such as Benjamin Netanyahu and Lee Myung-bak have even issued formal addresses to Congress. Moreover, these practices are nothing new; federal legislators and foreign officials have been communicating with each other ever since the First Congress convened in 1789.

I think these practices are fascinating for a couple of reasons. First, no one really has a sense for how frequently they occur, where legislators are traveling, or why they go there. News media rarely mention foreign lobbying of Congress. Some media outlets have called attention to expenses incurred by Nancy Pelosi and others during various trips abroad, but there are no complete reports on the nature and extent of contacts between federal legislators and foreign governments. Yet these contacts constitute a significant mode of engagement between the United States and the rest of the world, and have a real impact on the way in which other nations perceive U.S. policy.

Second, I think the diplomatic contacts are fascinating because they challenge the prevailing understanding that diplomacy is a prerogative of the executive branch. Most analyses don’t seem to acknowledge that legislative diplomacy occurs, much less address the extent of its constitutionality. One resulting problem is theoretical: the gap between theory and practice means either that Congress systematically violates the separation of powers, or that the prevailing understanding of executive power is at least incomplete, and possibly incorrect. A second problem is practical: lacking a theoretical foundation, legislative diplomacy occurs in a constitutional void that imposes no principled limits on the conduct of members of the House and Senate, and offers no guidance on the extent to which planned communications are permissible.

I’m currently writing an article—entitled “Legislative Diplomacy”—that addresses these issues. One purpose is empirical. I use evidence from Wikileaks and a variety of public reports on congressional travel to provide an extensive account of the nature and volume of contemporary diplomacy by Congress. This evidence shows that legislative diplomacy is surprisingly frequent, widespread, and longstanding. The other purpose of the article is to offer a constitutional analysis of the contemporary practice. In my next post, I’ll share some of the data I collected. 

The Bizarre Opposition to New Hampshire's Voting Rights Act Bailout Suit

The Center for Individual Rights is a highly regarded and effective conservative public interest firm.  For a number of years, one of CIR’s causes has been to challenge the constitutionality of Section 5 of the Voting Rights Act.  Section 5, of course, is the preclearance provision.  It prohibits certain “covered jurisdictions” with a history of voting discrimination from making changes in their voting practices without first showing federal officials that the changes aren’t discriminatory in purpose or effect.  Sixteen states are covered jurisdictions in whole or in part.  They are mostly, but not entirely, states in the South.

In a petition for certiorari it filed this past July, CIR argued that “any delay” in eliminating Section 5 “is intolerable for the millions of citizens of covered state and local jurisdictions who are currently being deprived of their freedom to exercise a voice in shaping the destiny of their own times without having to rely upon the processes that control a remote central power.”  (I’ve omitted internal quotation marks and a citation.)  CIR argued that Section 5’s continuing existence created an “ongoing loss of [those citizens’] basic right to self-governance” that “is especially troubling given the perversely aggressive and onerous manner in which Section 5 has recently be[en] applied.”  (The Court did not grant that petition, but it did agree to consider Section 5’s constitutionality in Shelby County v. Holder, which will be argued later this Term.) 

In light of that position, strongly expressed by CIR just this past July, I found it somewhat bizarre to see that last week CIR filed a motion to intervene to oppose an effort by New Hampshire (which has 10 covered townships) to “bail out” from Section 5.  (The Voting Rights Act has always provided a method for covered jurisdictions to bail out by satisfying certain criteria designed to demonstrate that preclearance is no longer necessary for a given jurisdiction.)  And even more bizarre was the rationale the motion offered for intervening:  CIR’s client, who appears to be a Republican Party activist in New Hampshire, “receives the benefit of the special remedial provisions of the Voting Rights Act because every statewide law effecting any change in voting in any of the Covered Towns must be ‘precleared’ under Section 5 by either the Attorney General of the United States or [the D.C. District] Court.  * * *.  Movant wants to continue to receive the benefit of such review and, accordingly, has an interest in ensuring that New Hampshire’s statewide election laws continue to be subjected to that review.” 

So wait a minute:  What was, in July, an “intolerable” deprivation of the “freedom” of citizens in states like New Hampshire “to exercise a voice in shaping the destiny of their own times without having to rely upon the processes that control a remote central power”—a deprivation that had been applied in a “perversely aggressive and onerous manner” and that CIR wanted to end as soon as possible—is, just five months later, a “benefit” to those same citizens that must be continued?  Forgive the snapping of heads. 

Here’s what I think is really going on.  When the Supreme Court last considered (and ultimately ducked) the constitutionality of Section 5 in the Northwest Austin case, the argument that seemed to get the strongest traction for the challengers was that the statute’s coverage was outdated.  The argument ran, in part, like this: although the statute originally may have covered the jurisdictions in which voting discrimination was the biggest threat, things had gotten sufficiently better in at least some of the covered jurisdictions that preclearance was no longer necessary there. 

The Voting Rights Act’s bailout provision is an obvious way to help tailor the preclearance requirement’s coverage to current conditions.  If the Department of Justice and the courts allow individual jurisdictions to bail out once the preclearance requirement is no longer necessary in those jurisdictions, they can eliminate or substantially reduce what many seem to think is the present-day overinclusiveness of the statute’s coverage formula.  And, indeed, the Northwest Austin Court seemed to recognize this precise point when it held that “underlying constitutional concerns compel[led] a broader reading of the bailout provision” than was apparent from that provision’s plain text.

So here’s my sense of what’s driving CIR’s bizarre New Hampshire pleading: With Shelby County now before the Court, Section 5’s opponents want desperately to show that bailout is not an effective way of tailoring the statute to current problems.  If the entire State of New Hampshire can bail out, that is a significant blow to their argument.  Thus, they want to block New Hampshire from bailing out.  Not incidentally, they want to cast doubt on the legitimacy of the wave of bailouts that the Department of Justice agreed to after Northwest Austin made clear that the bailout provision should be interpreted more broadly. 

But they have a problem.  The Department of Justice really has taken seriously the Supreme Court’s suggestion in Northwest Austin that bailouts are an essential means of tailoring the current coverage of Section 5.  For the statute’s opponents to argue that its coverage is intolerably broad and imposes substantial costs on covered jurisdictions, then to turn around and argue that a state like New Hampshire should be forced to remain covered even if DOJ believes that the bailout criteria are satisfied, is really too cute by half.  Does CIR really believe that New Hampshire should be required to submit to preclearance of its voting changes?  I kind of doubt it.  But it sure would be helpful to a constitutional challenge to the statute if CIR could keep the state from bailing out.

(I should disclose that, while serving as Principal Deputy Assistant Attorney General for Civil Rights at DOJ until mid-2011, I had at least some involvement with almost every substantive issue that the Civil Rights Division addressed, including the issues I’m discussing here.  In particular, as the reviewer of the Division’s Appellate Section, I argued Shelby County in the district court and supervised the briefing in CIR’s earlier challenge to Section 5, LaRoque v. Holder.)

Standing and marriage equality

SCOTUS today granted cert on two marriage-equality cases--the Prop 8 case out of the Ninth Circuit (Hollingsworth v. Perry) and one of the Defense of Marriage Act cases (United States v. Windsor, the one out of the Second Circuit, involving a woman seeking a refund on taxes paid on her late same-sex spouses death). The Court also ordered briefing on a bunch of Article III standing issues in both cases. The standing issue in Hollingsworth is whether the proponents of the ballot initiative had standing to intervene to defend the law in the trial court or to appeal the adverse district court ruling, once the governor and attorney general declined to defend it; the Ninth Circuit, relying on the California Supreme Court's answer to a certified question, held that the proponents had standing to represent the interests of the state. For Windsor, the issues are whether the executive can appeal to SCOTUS (since it formally prevailed in the lower courts by getting what it wanted--the law was invalidated) and whether the Bipartisan Legal Advocacy Group ("BLAG"), a committee of House Republicans who took up defense of the law when DOJ changed its litigation position, have standing to defend the law at all.

Earlier this year, Matthew Hall (Georgia) and I had an exchange in Fordham Law Review on these underlying standing issues; it is worth flagging. Matt argues for a deeper theoretical understanding of "standing to defend," using the marriage cases as an exemplar; he concludes that the Prop 8 proponents have standing, but BLAG does not. My response argues that if we just dump the idea of sovereign immunity, we would not need to have this conversation at all; either the United States or the State of California could be sued and could defend and appeal by name. And we would not have to waste all this time and energy figuring out who the "right" or "proper" defendant is, because the government entity obviously is a proper and interested party in a case involving the constitutionality of its laws.

One other note: David Cruz (USC) has a blog and has written about the standing issues throughout the Prop 8 litigation, including this post sharply criticizing the Ninth Circuit's standing decision and its conclusion that the initiative proponents somehow have received delegated authority from the state executive to defend the law in court.

Final Thoughts on Deference, and Signing Off

            In my last three posts (here, here and here) I’ve tried to make the argument for a principled approach to what I’ve called “the deference question.”  The challenge is to craft meaningful rules that sensibly reflect our understanding of the proper roles of Congress and the courts, and that are both flexible enough to accommodate different situations and rigid enough to constrain judges’ temptations to validate findings then like and invalidate those they don’t.

            It’s understandable to feel unconvinced by my analysis.  Indeed, at the conclusion of my paper I caution that courts likely choose underlying judicial doctrine in part because of the role the chosen rules would allocate to Congress.  For example, consider U.S. v. Morrison, where the Court announced that non-economic criminal activity was likely simply beyond Congress’s commerce power.  That doctrinal choice was likely motivated, at least in part, by a concern that allowing Congress to find facts uncovering a connection between criminal activity and interstate commerce would allow Congress to regulate whenever it wanted by “finding” convenient facts.  If in fact the Court’s choice was motivated by a desire to exclude a role from congressional fact-finding, then it’s easy to despair of the Court’s willingness to engage in a principled dialogue with Congress about the latter’s fact-finding role.

The hope, though, is that deference principles of the type I suggested in my paper would give the Court comfort that acknowledging a role for congressional factfinding would not amount to giving away the store.   Of course, taking this approach would require the Court to engage in principled review of congressional factfinding.  That review can sound disrespectful, and inappropriate for a court.  But if the alternative is simply denying any congressional in some regulatory areas, then it might be worth the effort, as long as the deference principles are good ones.  Hence the importance, I think, of this project.

That’s it for me; I’ve overstayed my stint long enough.  Good luck on exams (writing, taking and grading) and be safe in the holidays.  And thanks, as always, to Dan and the entire Prawfs community.

The Arms Trade Treaty: A Response to the Second Amendment Critique

Shortly after the election, the Obama Administration announced its support for U.N. efforts to develop a new treaty regulating international trade in conventional arms. The terms are still far from settled, but draft provisions from a U.N. conference last summer provide a rough guide on how the treaty might work. I'd like to highlight some of the key provisions and then address a Second Amendment objection that I’ve heard from some treaty critics. 

The latest draft suggests that the treaty would have several basic features. First, it would establish a limited number of categorically prohibited international transfers. These include transfers in violation of a measure adopted by the U.N. Security Council pursuant to the Council’s peacekeeping authority; transfers in violation of other international obligations; and transfers made for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes. Second, the treaty would limit the power of states to export conventional arms by requiring assessments on whether proposed exports would contribute to or undermine peace and security. Mandatory considerations would include whether the arms could be used to commit a serious violation of international humanitarian law, human rights law, or an offense under international treaties relating to terrorism. In the event of an “overriding risk” of one of these consequences, the treaty would prohibit the exporting state from authorizing the transfer. The treaty would also require exporting states to “consider taking feasible measures” to make sure that the arms are not diverted to the illicit market, used to commit gender-based violence, or used by transnational organized crime. Third, the treaty would impose obligations on arms-importing states. These parties would be obligated to provide information to help their exporting counterparts complete the required risk assessments. Importing states would also have to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” Other provisions impose restrictions on brokering and mandate record-keeping and reporting.

Some U.S. critics of the draft treaty have argued that it would violate the Second Amendment, but I think this objection has some major weaknesses. First, most of the restrictions would simply have no effect on the right to keep and bear arms. Here’s the proposed list of regulated items: battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and “small arms and light weapons.” As Heller explained, the Second Amendment’s reference to “arms” applies only “to weapons . . . not specifically designed for military use and . . . not employed in a military capacity.” The result is that all but the last items on the list—“small arms and light weapons”—plainly fall outside of constitutional protection. Moreover, even to the extent that the treaty applies to arms covered by the Second Amendment, significant portions of the treaty would not interfere with the right to “keep and bear” those arms. For example, provisions that would restrict exportation—in a sense the very opposite of “keep[ing]” and “bear[ing]”—from the United States surely raise no constitutional problem. And as a practical matter, it’s hard to see how the prohibitions on transfers in violation of Security Council measures or for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes would interfere with the right of U.S. citizens to keep and bear arms.

The only non-frivolous argument against the treaty focuses on its import restrictions. As explained above, the treaty would require states to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” The opponents’ argument seems to be that these provisions would require the United States to adopt restrictive measures that would themselves infringe upon the right to bear arms. But several observations undercut that argument. First, it’s actually not clear that the provisions would require the United States to adopt any new restrictions. Federal law currently imposes permit and registration requirements on arms importers, bars some imports based on country of origin, mandates broker registration, and authorizes criminal penalties against violators. There is no textual basis for concluding that these measures are anything short of “adequate” and “appropriate.” As long as that’s the case, no new import restrictions would be necessary in the United States, and the treaty would violate the Second Amendment only if the existing federal restrictions do. Treaty opponents seem unwilling to challenge longstanding federal law in this way.

Second, even if the treaty were to require something more restrictive than current federal law, it’s still not clear that the additional restrictions would be unconstitutional. Post-Heller, lower courts have held that the level of scrutiny applied to a regulation depends on the degree to which the law burdens the right and the nature of the conduct being regulated. Where a regulation does not impose a severe burden or does not implicate the right’s core—i.e., “defense of hearth and home” by “law-abiding, responsible citizens”—courts have applied intermediate scrutiny. In doing so, they have upheld restrictions such as registration requirements and licensing fees. Critics of the ATT would have to establish that the contemplated minimum import restrictions would fail under this framework even while a variety of other regulations have survived. I have not encountered a persuasive argument about why that would be the case, particularly given the important national interests in favor of controlling transnational arms flows.

Finally, even assuming the contemplated import restrictions are constitutionally suspect, the United States could simply join the treaty subject to a reservation ensuring that the restrictions raise no constitutional problem. We did something similar with respect to the Genocide Convention and, more recently, entered a Constitution-based reservation to the Torture Convention. The reservation here would have to comport with the object and purpose of the ATT, but a Second Amendment-based reservation could meet that requirement, as several parts of the treaty draft reflect a purpose of respecting national laws.

The treaty text is far from finalized, so it’s possible that the drafting process will generate Second Amendment problems that are currently absent. But I think the real barrier to U.S. ratification won’t be the Constitution; it will be political: Practically speaking, fierce opposition from U.S. arms manufacturers is guaranteed. In 2011, U.S. arms-export agreements with developing nations amounted to $66.3 billion, or an astounding 78.7% of the total global market share. It is hard to believe that the Senate will be able to withstand the likely tidal wave of pro-export lobbying. 

The Deference Question, Part I: Why Care?

Aside from my possibly oddball interest in the class of one doctrine (reflected this month here, here and here), another lost cause academic interest I have concerns the role of Congress in the project of constitutional construction.  I've written about this issue the most in the context of congressional power to enforce the Fourteenth Amendment (and the Equal Protection clause in particular), but in a recent paper I take on the deference question -- that is, the question of the amount and type of deference Congress is owed when, in the course of legislating on matters affecting individual rights, it finds facts.

Despite some really fine recent work on deference questions more generally (in particular by Eric Berger at Nebraska, here and here), the question remains, as John McGinnis and Charles Mulaney write, "radically undertheorized."  Why?  I suspect a lot of the reticence stems from the sense that deference determinations, maybe even more than other areas of constitutional doctrine, are politically driven.  There are platitudes available to support either a deference or no deference position, and Supreme Court justices appear at times to be doing nothing more than simply picking the platitude that yields the desired outcome.  This may not be terribly surprising to public law scholars: if it's not universally accepted it's at least widely suspected that the amount of deference administrative agencies enjoy when their policies are subject to judicial review turns on how the challenged policy jibes with the reviewing judge's political predilections.  Why should it be any different with judicial review of congressional fact-findings?

But the deference question deserves more than a shrug of the shoulders and a cynical conclusion that "it's all politics."  Fact-findings provide the main opportunity for Congress to help apply the constitutional rules announced by the Court.  Even though that role raises the serious risk that Congress could use its fact-finding power to wrest from the Court the power to interpret law, a rule denying Congress any deference to its fact-findings would deprive it of any meaningful role in filling in constitutional meaning left unfilled by the Court's often-vague legal tests.  For what it's worth, the Court itself at least ostensibly recognizes a role for congressional fact-finding.  And finally, as a practical matter, such findings matter.  For example, the amount of deference the Court gives to Congress's findings supporting the Voting Rights Act's extension will likely heavily influence the result in the challenge to the VRA that's currently pending.  

So I think the deference question matters.  I understand the objection that, even if it does matter, no workable standards guide the inquiry.  In my next post I'll explain the theoretical bases for analyzing deference issues. In the subsequent post I'll discuss several deference principles I offer in the article.

The Class of One at the Supreme Court III: The Court and the Public Purpose Requirement

In my two prior posts on the class of one (here and here) I explained that in Engquist v. Oregon Dept of Agriculture the Supreme Court adopted a blunt approach to cabining the class of one theory, which it had interpreted expansively eight years earlier in Village of Willowbrook v. Olech.  In Engquist the Court held that government employment claims could not be brought on a class of one theory, explaining that such claims were a poor fit with the class of one idea.  In my last post, I explained why I thought the Court’s analysis was flawed.

I want to finish my analysis of Engquist (on the day the Court is considering a cert. petition in the Del Marcelle case I mentioned in my first post) by explaining briefly my thoughts about the larger implications of Engquist’s approach.  The class of one is a “small” doctrine.  As a practical matter it rarely yields wins for the plaintiff (although it might provide the grist for favorable settlements by allowing a larger variety of claims to pass the pleading stage).  And as a conceptual matter it seems at first blush far removed from the concerns about race, sex and other class-based discrimination that occupy most people who think about equal protection.  But Engquist’s analysis does create a problem for larger equal protection principles.

Recall that under one reading of Engquist, employment claims simply do not violate the class of one principle.  This is the case (under this reading) even though a plaintiff alleges that she was the victim of discrimination based on animus – that is, discrimination explicitly based on some improper motive (as opposed to “innocent” discrimination that lacks a rational basis).  Indeed, the plaintiff in Engquist itself pled (and apparently proved) such animus.  Yet the Court rejected her claim.

In rejecting her claim, the Court vindicated a government action that was expressly infected with an improper government purpose.  This seems to me to be pretty significant.  One can agree that it’s impossible for courts to police all government discrimination that lacks a good justification; one can even agree that in many situations it’s impossible or inappropriate for courts to police discrimination that lacks any clear justification at all.  Such results flow from appropriate judicial deference, and recognition of either the burdened group’s political access and/or the court’s own inability to test discrimination with a sufficiently finely-tuned scale.  It’s the rational basis standard. But shielding government from liability for action that a jury has concluded was explicitly motivated by improper motives, as Engquist did, goes a step beyond all this.  In particular, it allows government officials to act for purely private reasons, or what is sometimes short-handed as “animus.”

Of course, “animus” (I put the word in quotes because it may not be the most accurate descriptor of all private-regarding purposes) is often the implied conclusion of courts doing equal protection analysis.  In Richmond v. J.A. Croson Justice O’Connor talked about strict scrutiny’s role in “smoking out” illegitimate government uses of race.  In Romer v. Evans the Court concluded that Amendment 2 reflected animus against gays and lesbians, in part because there was no legitimate justification to which Amendment 2 had a reasonable connection.  But it may be difficult, or inappropriate, for courts to perform such analysis in class of one cases, given how frequently such cases could arise – essentially, anytime government treated a person differently from another person.  But that just makes Ms. Engquist’s lawsuit all the more unusual, in that she alleged and proved actual bad motive.  So why not allow the case to go forward?

Indeed, if courts don’t allow such a lawsuit to go forward, then perhaps we have witnessed a bigger change in constitutional law than first meets the eye.  A basic requirement of American constitutionalism is that government act in pursuit of a public purpose.  Engquist seems to allow private regarding action.  Of course the rational basis standard presumably allows much such action to survive judicial review.  What’s interesting is that, in Heller v. Doe Justice Scalia wrote (in footnote 27) that the rational basis standard, rather than being simply a judicially-crafted rule that enforced as much of the equal protection guarantee as courts could manage, instead constituted the true constitutional rule.  And the case he cited for that proposition?  Engquist.

Jeff Powell at Duke has argued that this footnote in Heller is significant for widening the scope of government discretion, and lessening the scope for legal limits on that discretion.  I think he’s right.  He also suggests – as I do in this working paper – that the footnote’s expansion of constitutional room for private-regarding government action marks a significant change in American constitutionalism.  All this makes Engquist a very unfortunate decision.  But given Justice Scalia’s more explicit statement on precisely this point in Heller, maybe Engquist, and its distortion of the class of one, is just an illustration of a broader troubing development in American constitutional law.

The Varieties of Co-Religionist Commerce II

As I promised (or threatened?) in my last post, I want to think about "co-religionist commerce" by dividing it up into institutionalist and non-institutionalist domains.  In the past, I''ve written and blogged a bit about non-institutional co-religionist commerce - and I'll probably say a bit more about it sometime later this month - but I've recently been working on the institutional side of things in a recent article, Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. (forthcoming 2013).

As per the title, what I have in mind in the institutional context are some of the debates over "church autonomy" - that is, debates over the autonomy granted religious institutions over internal decision-making and disputes resolution.  Popular advocates of what we might term "religious institutionalism" (i.e. strong protection of religious institutional autonomy) include Prawfs own Rick Garnett (e.g. here) and Paul Hortwitz (e.g. here) and also Steven Smith (e.g. here).  Recent debates on this front include those over the contraception mandate and those over the ministerial exception, which (at a minimum) exempts the relationship between churches and their ministers from liability under various anti-discrimination statutes.  Among other issues, both of these examples represent some of the inherent complexities of co-religionist commerce; it is frequently difficult to establish the appropriate boundaries for the interpretation, enforcement and regulation of conduct that is motivated by both religious and commercial interests mix.

As has been discussed here on Prawfs previously, there has been some recent push back against this type of religious institutionalism, most notably the recent article by Richard Schragger and Micah Schwartzman, "Against Religious Institutionalism."  Much of this criticism has focused on whether religious institutions should have an rights that are not simply derivative of the individual rights of their members.  Schragger and Schwartzman simply don't see the existence of a religious institution as adding any reason for increased constitutional protections.

In my next post, I'll give my own take, which tries to strike a balance in between religious institutionalists and their critics.