Thursday, October 30, 2014

A Mistake Regarding Korematsu

Thanks to Ilya Somin for his additional comments in our "debate" about whether Justice Thomas's jurisprudence would support Korematsu.   Respectfully though, Ilya is factually incorrect in saying neither Mr. Korematsu nor other interned Japanese-Americans were convicted of any crimes.  Here is what Ilya wrote:

"But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision."   http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/more-on-clarence-thomas-and-korematsu/

Actually, Korematsu was convicted of a crime as were other Japanese-Americans in the camps.  http://korematsuinstitute.org/institute/aboutfred/  Thus by Ilya's logic, Justice Thomas's view that prisoners have reduced rights, say to due process or colorblindness, would apply. These were clearly wartime prison camps with some unfairly convicted people there, including those thought to be disloyal. There is lots of literature on these camps confirming this. More generally, I think Ilya downplays the situation in these camps, by augmenting the rights of people there, though I know Ilya opposes the Korematsu decision and I know Ilya writes in good faith.

Second Ilya continues to defend Justice Thomas by saying Hamdi was an enemy combatant, unlike Korematsu.  But Justice Thomas's almost plenary authority language about executive power in wartime, and his stated aversion to judicial involvement, are inconsistent with limiting his view just to combatants.  In other words, Ilya makes a nice lawyerly distinction that does not make a difference in the analysis.  I have previously quoted some of Justice Thomas's language in Hamdi, and its breadth is stunning.  http://prawfsblawg.blogs.com/prawfsblawg/2014/10/justice-clarence-thomas-and-korematsu-the-sequel.html#more  Presumably this is one reason why he was alone in dissent.  Moreover, though not an enemy combatant, Fred Korematsu would have been a convicted wartime prisoner to Thomas as just mentioned.

Third high level American military authorities justified their discriminatory imprisonment of Japanese-Americans based in part on the risks of a supposed west coast invasion.  These were not just state or local prison officials. Thomas would have likely seen that danger (given who predicted it) as greater than, for example, the likely danger of an east coast Al Qaeda invasion of the same scope (which was never predicted).  Al Qaeda was, and is, horrific and enaged in an abominable attack, but Al Qaeda was not thought of as an invasion danger of the World War II scope.  That 's why I believe Justice Thomas would have been even more deferential to the government in World War II.

In my earlier post, I agreed with Ilya that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus."  But my response was not limited to a consensus situation.  Thomas often writes openly about his disagreement with precedent or with other commonly held views.  I think of Thomas's view that the Establishment Clause is not "incorporated" which he has written about.  Thomas showed no written reticence, however, in describing the Korematsu facts either in Fisher or Grutter. 

But my bottom line in this post is that Fred Korematsu was convicted, a prisoner, and would have had almost no rights in the Thomas view of wartime or prisoners.

 

Posted by Mark kende on October 30, 2014 at 02:49 PM in Constitutional thoughts | Permalink | Comments (3)

Monday, October 27, 2014

State Courts Choosing to Follow Federal Precedents

Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:

One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.

Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:

I.  Doctrine

Doctrinally, the closest (and most recent) case on point is the Supreme Court's 2008 decision in Danforth v. Minnesota. Danforth was a case about the ability of prisoners to retroactively invoke "new" Supreme Court decisions that were handed down after their direct criminal appeal became final. The Supreme Court has erected a very high bar to when such "new" rules can be retroactively enforced via federal habeas petitions, and the Court had already held that its 2004 Confrontation Clause ruling in Crawford v. Washington was not retroactively enforceable in federal habeas petitions. 

But Danforth held that state courts are free, as a matter of state law, to give retroactive effect to new Supreme Court decisions like Crawford in state collateral post-conviction proceedings. In other words, if one accepts that the Supreme Court's interpretation of a constitutional provision is itself federal law, Danforth holds that state courts can choose whether or not federal law (Crawford) that wouldn't be binding in a federal post-conviction proceeding can nevertheless be binding in a state post-conviction proceeding. (That this is what Danforth necessarily allows is made quite clear by Chief Justice Roberts' rather sharp dissent.)

At least as a matter of current doctrine, then, there's at least some support for the notion that state courts can, indeed, choose whether and under what circumstances they will be bound by federal precedents that wouldn't otherwise be binding. Michael may well believe that Danforth is wrongly decided. But if it isn't, it seems difficult to square with his conclusion that " a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control."

II.  Policy

Separate from Danforth, I have to say that this result makes sense to me. If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don't see how that raises any kind of federal constitutional concern under the Supremacy Clause.

It may be silly (or wrong) as a matter of state law, but it seems to me that that's up to the relevant state (whether through its legislature or court of last resort) to decide. Of course, by dint of the structure of appellate jurisdiction, state courts are usually bound as a matter of federal law by the Supreme Court's interpretations of federal law--but Danforth is a rare example of a case in which that's not true. And state courts are never bound as a matter of federal law by the lower federal courts' interpretations of federal law. And so it should follow that the same logic applies to decisions of lower federal courts interpreting federal laws--that a state can choose to be bound by that decision as a matter of state law, and that nothing in federal law (including the Constitution) either requires them to so choose, or prevents them from doing so.

Posted by Steve Vladeck on October 27, 2014 at 09:41 AM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (1)

Should Apprendi Apply to Substantive Reasonableness Review?

A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here's some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court's denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.

Under Apprendi and related cases, the Sixth Amendment requires that juries (not judges) find all facts that increase defendants’ sentences (either the maximum or the minimum). Imagine, for example, that theft has a sentencing range of 0-10 and theft using a firearm has a range of 0-15. If a defendant is convicted of theft, can a judge find that the defendant used a firearm and impose 15? No. In Booker and related cases, the Court extended this principle to sentencing guidelines. So imagine that theft has a range of 0-15, but sentencing guidelines dictate a punishment of 10 unless the defendant used a firearm. The sentencing guideline would then operate just like the theft statute in the first example. It would set a ceiling that could be exceeded only if a judge found a fact—namely, that the defendant used a firearm. The solution adopted in Booker was to make the guidelines advisory, so that the Sixth Amendment ceiling in the last hypo would be set by the mandatory 0-15 statute, not by the advisory guideline. So far, so good.

The new frontier in this area has to do with reasonableness review. After Booker, the guidelines are advisory, but federal courts of appeals still review sentences for procedural and substantive reasonableness. In Rita v. United States, the Court gave some guidance about how to conduct this review, and Justice Scalia drafted an insightful concurrence that foresaw a problem to come. Scalia’s concern was that, as appellate courts established a jurisprudence of substantive reasonableness, the result would be a set of effective sentencing maxima. To adapt the earlier example, imagine that the statutory sentencing range for theft is 0-15 and that a court of appeals finds that a sentence of more than 10 is reasonable only if accompanied by a factual finding that the defendant used a firearm. The upshot would be that a sentence of 10 would have become the maximum possible sentence without any judicially found facts. Sentences over that amount would then violate the Sixth Amendment, even if a judge found that the defendant used a firearm.

The Court just denied cert in the first strong vehicle for review of this question, with Justice Scalia and two of his colleagues, Justices Thomas and Ginsburg, dissenting. (The fact that Justice Ginsburg joined the dissent is especially noteworthy, because she was the swing vote in favor of the Booker remedy and so is largely responsible for the current doctrine of substantive reasonableness review.) The constitutionality of post-Booker substantive reasonableness review is definitely an important question that the Court should eventually resolve. But I’m not so sure that the Court should extend Booker and find a violation in this context. My hesitancy stems from important functional differences between: (i) mandatory sentencing guidelines that are promulgated by legislatures or agencies and (ii) judicial precedents on substantive reasonableness review.

Consider the once-mandatory federal sentencing guidelines that prevailed before Booker. Under that system, Congress both enacted criminal statutes and exerted control over the U.S. Sentencing Commission that promulgated the guidelines. Because it had control over both statutory sentencing ranges and guidelines ranges, Congress could exert mandatory control over criminal punishments—at juries’ expense—by raising statutory maximums and then instructing the Commission to require additional judicial fact-finding pursuant to mandatory sentencing rules.  Clearly, Booker hasn’t prevented Congress from engaging in this behavior or from otherwise shifting fact-finding responsibilities away from juries and toward judges. Indeed, the Booker remedy—finding the guidelines advisory—was widely criticized for paradoxically empowering judges, not the juries actually mentioned in the Sixth Amendment. These critics had a point: How can Booker promote the right to jury trial, when it had no direct effect on jury fact-finding?

One possible answer is that Booker indirectly promoted jury fact-finding by reshaping long-term legislative incentives. After Booker, Congress can no longer increase its own control over sentencing outcomes by shifting fact-finding responsibility toward judges operating under mandatory guidelines. The mandatory guidelines, after all, are now unconstitutional. Instead, Congress can shift fact-finding away from juries and toward the sentencing phase only by empowering judges operating without mandatory guidelines. Put another way, Booker holds that the only way for Congress to establish mandatory sentencing rules is to shift fact-finding responsibility toward the trial, where juries find facts. Congress’s desire to control mandatory sentencing rules thus reinforces, and no longer undermines, its willingness to promote jury fact-finding. Booker might therefore be compared with other constitutional doctrines that (as Matthew Stephenson put it) “raise the costs to government decision-makers of enacting constitutionally problematic policies, rather than attempting to designate certain government actions, or categories of government actions, as permissible or impermissible.”

This functional argument suggests that the Apprendi rule most forcefully applies to sentencing rules created by legislatures and agencies, and not to sentencing rules that are crafted by independent federal judges. The temptation to circumvent the jury arises when the same entity (or coordinated pair of entities) has control over both statutory sentencing ranges and mandatory sentencing rules. Congress had both types of control before Booker. But Congress can’t count on federal judges to impose the mandatory sentencing rules that Congress itself desires. Unlike the Sentencing Commission, the federal courts are independent of the political branches. And while Booker reasonableness review represents a gloss on a federal statute, the statutory gloss facilitates judicial discretion rather than curbing it. So if Congress legislates higher statutory sentencing ranges and writes up new guidelines, the federal courts are free to accept or reject those advisory results. Unless federal courts of appeals predictably fashion reasonableness rules in the manner that Congress desires, the legislature’s desire for mandatory sentencing rules would cut in favor of jury fact-finding, even if substantive reasonableness review flourished.

Admittedly, this last point places a lot of weight on federal judges' willingness to deviate from the advisory guidelines in ways that will frustrate Congress. And while evidence on post-Booker sentencing is mixed and complex, it's fair to say that the guidelines, while frequently set aside, are still taken seriously. To the extent that the guidelines are advisory-in-name-but-followed-in-fact, Congress still has some reason to circumvent the jury by shifting fact-finding to the sentencing phase. But the more direct solution to that problem would be to make clearer that sentencing courts can and often should deviate from the guidelines. What the independent judiciary does, after all, is within its own control. This is why Scalia's Rita concurrence was wrong to worry that "this Court could prescribe that the only reasonable sentences are those consistent with the same mandatory Guidelines that Booker invalidated." Instead of blatantly deferring to Congress in that way, the Court can easily move in the opposite direction. For example, it could partially overrule Rita and prohibit the circuit courts from presuming that in-guideline sentences are reasonable. Given this and other potential solutions, it seems an overreaction to cure any residual form of legislative influence by taking Justice Scalia's advice and declaring each district court judge the final word on the substantive reasonableness of sentencing--a result that raises serious uniformity and fairness concerns.

Of course, the Supreme Court hasn’t quite articulated the functional argument outlined above, which is subject to a lot of questions and potential objections. Of particular note, any attempt to view Booker as directed specifically toward legislative incentives would have to address the history of the Sixth Amendment and how it bears on this question, particularly because the Court’s recent jurisprudence in this area has been so extensively grounded in originalism. But that will have to be a topic for another day.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on October 27, 2014 at 12:33 AM in Constitutional thoughts | Permalink | Comments (6)

Thursday, October 23, 2014

Justice Clarence Thomas and Korematsu: The Sequel

I blogged here on October 15, about an article of mine that was published this year in the Harvard Journal of Racial & Ethnic Justice titled “Justice Clarence Thomas’s Korematsu Problem.”  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 .   Legal scholar Ilya Somin at the Volokh Conspiracy has authored an interesting and lengthy post critiquing parts of the article.  http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/20/does-justice-thomas-endorse-the-supreme-courts-notorious-decision-inkorematsu-v-united-states/    Respectfully, I think Ilya is wrong.

First, Ilya and I actually agree on several things.  We agree that Justice Thomas was wrong in his Hamdi dissent because Thomas granted excessive power to the President during wartime.  Even Justice Scalia, contre Thomas, acknowledged that a U.S. citizen could not be held virtually incommunicado, without formal charges, and interrogated indefinitely, whether the person was an enemy combatant or not. 

Yet Justice Thomas in Hamdi wrote that:  “The Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and this authority carries with it broad discretion.”  Thomas also writes earlier that, “The Founders intended that the President have primary responsibility – along with the necessary power – to protect national security and to conduct the nation’s foreign relations.”  Further Thomas quotes from another case where the Supreme Court says that, “"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous."  Thomas also touts the advantage of the “unitary executive” and the executive’s role as the “sole organ” and “single hand” in such matters.  I want to add that the decision was 8-1 with Thomas the lone dissenter taking this extraordinary position.  He is way out on a limb in finding this U.S. citizen has virtually no rights.  And it’s important to note that Justice Thomas was wrong even though Hamdi was labeled an enemy combatant.  Thomas also indicates that he believe courts should hesitate to intervene in such decisions.  All of these views are consistent with Korematsu.

Second, Ilya and I agree that Justice Thomas’ dissent in Johnson v. California is inconsistent with the Thomas view that the government must be color-blind.  Justice Thomas said that California could racially segregate prisoners at intake for security reasons.  Again as in Korematsu, for Thomas, security concerns trump color-blindness. 

Where Ilya and I part ways is on what inference can be drawn from these decisions, and from other statements that Justice Thomas has made.  I think Justice Thomas’s statements on executive power during wartime are consistent with the Korematsu decision, in that his easy acceptance of asserted national security concerns (his Hamdi dissent), and his judicial caution when security is at stake, trump his normally passionate commitment to color-blindness (his Johnson dissent).  Ilya think this is a stretch for several reasons.

Ilya initially has a dilemma because in the Fisher v. Texas affirmative action, Justice Thomas cites to Korematsu as supporting the forcible relocation of Japanese-Americans on the west coast even under strict scrutiny.  Thomas in Fisher said that Korematsu found the internment “had a definite and close relationship to the prevention of espionage and sabotage.”  But Ilya then says that Justice Thomas is only “summarizing” Korematsu without necessarily approving it (despite Thomas’s recitation of the facts).  This is odd.  For example, at the end of his essay Ilya says that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus.”  By that logic, one would suspect Justice Thomas cited Korematsu approvingly in Fisher.  Thomas could have cited other cases.  The citation by Thomas is even more troubling because, as Ilya admits, the Court in Korematsu did not really use strict scrutiny.    

Second, Ilya says that Hamdi is distinguishable from Korematsu because the President declared Hamdi to be an enemy combatant whereas the “Japanese Americans interned during World War II were not in prison, and had never been convicted of any crime or even charged with one.”  Respectfully, I think Ilya has it backwards.  The alleged grave national security concerns asserted by American military leaders and by the President regarding Japanese-American loyalty on the west coast, and regarding the supposed danger of invasion, would have likely created far greater national security worries for Justice Thomas than a single enemy combatant.  Moreover, Thomas’s views in Johnson show his deference to allowing prison officials to take race into account, yet how can one suggest the Japanese-American internment camps were not the essential equivalent of prisons. 

Third, Justice Thomas curiously omits mentioning Korematsu in Hamdi despite Korematsu’s obvious relevance, though Justice Thomas cites other World War II cases favoring executive power.  This raises the question of what is to be gained by the omission.  One answer is that Justice Thomas can avoid stating his view of the case.  Fourth, Ilya indicates one of his objections to Korematsu is that the government provided false information.  I agree with him here.  Yet Justice Thomas has apparently never written a sentence (despite numerous chances) expressing this concern about Korematsu, and Thomas also ignored the possibility that the government lied about Hamdi’s supposed dangerousness since Hamdi was released so quickly.  Thomas’s Hamdan dissent for example says nothing of the Hamdi release.  Once again, a la Korematsu, Justice Thomas does not generally question military decision-making.   

Ilya correctly points out that John Yoo has criticized Korematsu.  That’s a good thing.  It would be great if Justice Thomas did the same, but Justice Thomas instead continues to treat the case like standard equal protection material.  Overall, the evidence shows that Justice Thomas’s wartime, and security focused, jurisprudence is well in line with the majority’s approach in Korematsu.  

 

Posted by Mark kende on October 23, 2014 at 07:10 PM in Constitutional thoughts | Permalink | Comments (1)

Monday, October 20, 2014

Misunderstanding Rule 11

Via Slate, the lame-duck attorney general of Arizona cited FRCP 11 sanctions as a basis for no longer defending (or appealing, although that would be covered by FRAP 38) same-sex marriage bans. The argument, it seems, is that defending the bans (or appealing) would be seen as imposing unnecessary delay or expense or as a frivolous argument not warranted by existing law. Mark Stern at Slate and Josh Blackman both see this more as a political move. I want to suggest it must be, because the argument is wrong legally.

First, FRCP 11(b)(1) only prohibits actions done for the purpose of causing delay or expense. It is surely a legitimate purpose for government to obtain a definitive and binding Supreme Court ruling on an issue of constitutional import.

Second, since SCOTUS has not spoken on the issue, it cannot be said that Arizona's constitutional arguments, even if a clear loser in the Ninth Circuit, are frivolous before SCOTUS. As Josh points out, neither SCOTUS's undoing of stays or cert. denials are binding precedent. And the state always can pose an argument for "modifying, or reversing existing law," perhaps by seeking en banc Ninth Circuit review. Or the state can skip unfriendly Ninth Circuit law by seeking cert before the court of appeals judgment. But any of those options requires that the state first defend and appeal to the Ninth Circuit. Surely FRCP 11 cannot be read to cut-off such litigation strategies.

Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?

Posted by Howard Wasserman on October 20, 2014 at 06:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Friday, October 17, 2014

Giving reasons

Richard's post on the problems created in Dart Cherokee by the court of appeals failure to explain its reasoning and Gerard Magliocca's CoOp post on recent examples of SCOTUS issuing procedural orders affecting constitutional litigation without explanation share a common theme--to what extent do courts, particularly reviewing courts, have an obligation to explain themselves. That obligation might be to reviewing courts, lower courts, current litigants, future litigants, or the public at large.

The problem is that the desire to provide explanation potentially butts against case-management concerns and the difficulty (if not impossibility) of providing reasoned explanations for every decision, including procedural decisions such as declination of discretionary review (the issue in Dart), cert. denials, and stays (or releases of stays) pending review. Courts do not have the time or resources to provide full-on reasons for every decision, particularly where reasons require consensus on a multi-member court. Then we have to figure out whether less-than-complete reasoning is better or worse than no reasoning at all. And we potentially fall back into the debates of the late '90s and early '00s about non-precedential opinions and the problems they create.

Importantly, neither Richard nor Gerard argues that courts should do this in every case, but only special cases--where failing to explain wuld effectively insulate a decision from review or the issues are signficant enough that special guidance is needed. I would reiterate that the decisions prompting the discussion involve particular procedural concerns rather than the ultimate merits.

Posted by Howard Wasserman on October 17, 2014 at 11:48 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Wednesday, October 15, 2014

Justice Clarence Thomas and Korematsu

Recently, there was a discussion on the lawcourt listserv about the worst U.S. Supreme Court decisions ever.  On a related note, this past summer, my short article titled "Justice Clarence Thomas's Korematsu Problem" was published in the Harvard Journal of Racial & Ethnic Justice, and posted on SSRN.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868   Ironically, the issue of whether the Court should formally repudiate Korematsu was also raised in a separate cert. petition during the period I worked on the piece.  Further, Ilya Somin had a post or two on the issue of repudiation, if I recall correctly.  Looking back on the article, I confess that I'm still stunned that Justice Thomas's view of war related executive power, as taken from his judicial opinions, would seem to support Korematsu.  The abstract is below.  Contrary thoughts or arguments are welcome.  Or perhaps I should not be stunned.

ABSTRACT

The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision.  This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case.  Two cases provide the major evidence.  First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights. 

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process.  California argued this minimized racial violence.  Thomas therefore abandoned his well-known position of racial color-blindness in the case.  The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu.  The essay also addresses several counter-arguments.  While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.

Posted by Mark kende on October 15, 2014 at 04:39 PM in Article Spotlight, Constitutional thoughts | Permalink | Comments (7)

Ebola, Epidemics, and Federalism

The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.

1. State Quarantines: The “Dormant” or Impliedly Preemptive Commerce Clause and Interstate Travel

What if State A wants to shut out persons or goods from State B on the ground that they might be contaminated with a public health hazard? This seems like regulation of interstate commerce, which Article I of the Constitution places within the control of Congress. Clearly, then, Congress could pass legislation on this point. It’s possible, however, that Congress hasn’t enacted or never enacts relevant legislation. Under the “dormant” Commerce Clause doctrine, state law on matters of interstate commerce can be impliedly preempted even if there is no relevant federal legislation.

In Chemical Waste Management v. Hunt (1992), the Court discussed its line of “quarantine cases," block quoting the following nineteenth century statement:

In the exercise of its police powers, a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to the health or which would endanger the lives or property of its people. But if the State, under the guise of exerting its police powers, should make such exclusion or prohibition applicable solely to articles, of that kind, that may be produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in conflict with the Constitution of the United States.

In other words, bona fide quarantines are permissible, even though states can’t normally discriminate against goods from other states. An analogous distinction might apply in connection with persons and the constitutional right to interstate travel discussed in Saenz v. Roe (1999).

2. Federal Quarantines: The Necessary and Proper Clause and Commerce Clause

Does the federal government have the power to establish quarantines? This issue came up during the oral argument in the 2010 case United States v. Comstock. The question presented was whether the federal government had authority to civilly commit certain offenders after they had completed their federal prison sentences. The government argued that this power existed in light of the public danger that the offenders posed. The relevant constitutional authority stemmed from the Necessary and Proper Clause, in conjunction with whatever separate authority authorized the federal prison sentence in the first place. During the oral argument, then-Solicitor General Elena Kagan analogized the federal law to a quarantine. Here is the key exchange:

GENERAL KAGAN: ... I will give you an example, Justice Scalia. I mean, suppose that there was some very contagious form of drug-resistant tuberculosis that had -- had become prevalent in the prison system, and States were not able to deal with that, with quarantining these people upon their release date. And Congress said: You know, the best thing to do is to have the Federal Government act as the appropriate quarantining authority because we don't think that States are able to step up and deal with this problem. Would anybody say that the Federal Government would not have Article I power to effect that kind of public safety measure? And the exact same thing is true here. This is exactly what Congress is doing here, is to make sure that mentally ill, sexually dangerous --

JUSTICE KENNEDY: When I was thinking about your hypothetical I thought, well, that's a pretty easy commerce power argument. I — I notice that in — in the government’s position you don’t argue the Commerce Clause very much, and I — we have got at Morrison v. Bronkalla looking at you and Printz, and so forth. … But suppose Congress said: There is a class of committable, dangerous sex offenders that are crossing State lines and using interstate facilities, and made those findings. Would that be sufficient to establish a Federal commitment law?

In this exchange, Justice Kennedy seems to view the quarantine hypothetical as too easy for the government and as possibly beside the point, given that the government wasn’t relying directly or exclusively on the Commerce Clause. However, it's not entirely clear whether Justice Kennedy was talking about a quarantine within a state (which might have to rely on a combination of the Commerce Clause and the Necessary and Proper Clause) or simply a quarantine at a state border (which would be a relatively straightforward regulation of interstate commerce). Justice Kagan's hypothetical seemed designed to capture both scenarios.

Comstock ultimately upheld the federal commitment law by a 7-2 vote, with several members of the majority writing separately. Per Justice Breyer, the majority based its decision on a multi-factor analysis. Factor #3 raised the quarantine point:

If a federal prisoner is infected with a communicable disease that threatens others, surely it would be "necessary and proper" for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others (even if not threatening an interstate epidemic, cf. Art. I, § 8, cl. 3). And if confinement of such an individual is a "necessary and proper" thing to do, then how could it not be similarly "necessary and proper" to confine an individual whose mental illness threatens others to the same degree?

This passage appears to approve of federal efforts under the Necessary and Proper Clause to contain epidemics "even" without a threatened "interstate epidemic." For that reason, the passage suggests that the federal government has a great deal of flexibility in establishing quarantine measures, even apart from emergencies and far from state and federal borders. Still, this point is arguably dicta and arose in the context of the release of federal prisoners. So the passage doesn’t necessarily approve of all possible federal health measures.

3. Federal Inoculation Programs: The Necessary and Proper Clause, Commerce Clause, and Anti-Commandeering

Can the federal government go beyond quarantine measures, such as by requiring people to be inoculated against a plague? This “inoculation mandate” hypothetical prominently arose in connection with NFIB v. Sebelius, the 2012 challenge to the Affordable Care Act. The relevant question presented was whether the federal government had authority under the Commerce Clause and Necessary and Proper Clause to require private persons to purchase health insurance or pay a penalty. (The Court would ultimately sustain the law by construing the penalty as a tax for constitutional purposes.)

At oral argument, Justice Breyer tried to test the limits of the challengers’ theory—and, more to the point, the limits that the challengers would impose on the federal government. The resulting exchange prominently involved the 2000 case United States v. Morrison, where the Court narrowly struck down part of the Violence Against Women Act for exceeding federal legislative power.

JUSTICE BREYER: I'm just picking on something. I'd like to just -- if it turned out there was some terrible epidemic sweeping the United States, and we couldn't say that more than 40 or 50 percent -- I can make the number as high as I want -- but the -- the -- you'd say the Federal Government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical.

CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against --

JUSTICE BREYER: Is your answer to that yes or no?

CARVIN: Oh, I'm sorry; my answer is no, they couldn't do it, because Morrison --

JUSTICE BREYER: No, they could not do it.

CARVIN: Yes.

JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there's -- okay, fine. Go ahead.

CARVIN: May --

JUSTICE BREYER: Please turn to Justice Kagan.

CARVIN: May I just please explain why?

JUSTICE BREYER: Yes.

CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the -- and it has huge effects on the health care of our country. Congress found that it increased health care costs by -

JUSTICE BREYER: I agree with you that --

CARVIN: Well, but --

JUSTICE BREYER: -- that it had huge negative effects but the majority thought that was a local matter.

JUSTICE SCALIA: I think that's his point.

This exchange suggests that, in the view of some or even most Justices, mandatory inoculation is near the outer limit of what the federal government can do to combat epidemics.

This wasn't the first time that Justice Scalia seemed unconcerned with an inoculation hypothetical: in Printz v. United States, which held that Congress lacks authority to command state officers, Justice Stevens's dissent argued that the majority's anti-commandeering rule might thwart "the mass inoculation of children to forestall an epidemic." The Printz majority was unmoved. Perhaps the Court believed that federalism entrusted such situations to state officers operating under state law. Or perhaps the Court envisioned the immediate expansion of federal health agencies in times of need.

In NFIB, however, some Justices seemed to take a different view of mandatory federal inoculation. In particular, Justice Alito suggested that there might be a distinction between Justice Breyer's inoculation hypothetical and the Affordable Care Act's insurance mandate:

JUSTICE ALITO: Mr. Carvin, isn't there this a difference between Justice Breyer's hypothetical and the law that we have before us here? In his hypothetical, the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there's cost-shifting is because the government has mandated that. It has required hospitals to provide emergency treatment; and, instead of paying for that through a tax which would be borne by everybody, it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

Justice Alito's distinction is a fairly subtle one, and it doesn't directly rest on the potential need for federal public health measures. Still, Justice Alito's remarks suggest that a majority of the current Court would sustain federal inoculation mandates, despite the fact that most justices in NFIB disapproved of the arguably analogous healthcare insurance mandate.

Of course, we shouldn't read too much into statements during oral argument, particularly because even committed skeptics of federal authority might view the issue differently during an actual emergency. But, as the exchange in NFIB suggests, it may be worthwhile to think through some of these questions before the emergency arrives.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on October 15, 2014 at 02:57 PM in Constitutional thoughts | Permalink | Comments (2)

Tuesday, October 14, 2014

Supremacy and uniformity

I generally have been understanding, if not sympathetic, to the Court's odd behavior with respect to marriage equality of late. I understood the underlying idea that the Court need not act if the circuits are taking care of business. And I am ok with the Court dropping hints in one direction (as it arguably did in denying the five cases at the beginning of the term). But two things give me some pause.

The first is this post by Mike Dorf arguing that the Court's refusal to get involved is not a problem at the inter-circuit level, but at intra-state level, where a federal court of appeals and state high court might disagree, creating some confusion. He offers an interesting example: A federal circuit court recognizes the right to marriage equality and the executive responds by ordering clerks to issue marriage licenses to same-sex couples. But then a spousal privilege dispute arises in a state proceeding and the state supreme court refuses to recognize the privilege because, in its view, same-sex marriages are not constitutionally required. (The case has an added wrinkle--the state supreme court also disregarding the state executive's decision to issue the marriage license, which ought to be controlling). Nevertheless, it illustrates the multiple contexts and postures in which these issues arise.

The second was re-reading the justiciability discussion in Windsor in preparation for it (and Hollingsworth) in Fed Courts this week. I had forgotten how much Kennedy emphasized "the Supreme Court's primary role in determining the constitutionality of a law" and the Court's duty to address its constitutionality (what Scalia in dissent rejected as a "jaw-dropping . . . assertion of judicial supremacy"). Despite that rhetoric, the Court now seems in far less of a rush to perform that role.

Posted by Howard Wasserman on October 14, 2014 at 05:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, October 10, 2014

More on prosyletizing police

On Wednesday, I discussed a lawsuit brought by an Indiana woman who alleges that a police officer, at the end of a traffic stop, asked her about accepting Jesus as her lord and savior and gave her literature about an area Baptist ministry.

In my Civil Rights class on Thursday, we had an extended discussion of the case (the timing of the suit was perfect--we were finishing Qualified Immunity) that drove home for me the real chance that the officer will be able to successfully argue that the right was not clearly established. There probably is no case law on factual point--a police officer distributing religious material during a traffic stop without an explicit threat or punishment. Cases about proselytizing teachers are analogous (the complaint repeatedly alleges that the plaintiff did not feel free to leave, setting up a similar captive-audience situation combined with an implicit threat of punishment), but perhaps distinguishable in context. While there likely were department regs setting out proper conduct during a traffic stop, there likely was not an express prohibition on proselytizing. And there is a question of whether the stop was still ongoing. Is this the equivalent of selling foster children into slavery (Judge Posner's favorite example), so obvious that general anti-establishment principles are sufficient to clearly establish? Can we say the officer was "plainly incompetent" in believing it was constitutionally permissible to do this?

Update: On speaking with a colleague, I may be slightly more optimistic, as he points to two more avenues through which this right might be clearly established. First, officers are trained and should know that they cannot exceed the scope of a traffic stop in a way that is explicitly or implicitly coercive--to ask the driver on a date, to ask the driver for money, to sell their daughter's girl scout cookies, or to discuss who the driver is going to vote for in the next sheriff election; what the officer did here is not different in any meaningful way. Second, officers should know generally that they cannot stand in the public square and proselytize while in uniform and on-duty; that should put them on notice that they cannot do it during a traffic stop. Again, it all involves moving from general principles, so much depends on how willing the court is to see those general principles as establishing broad obligations of which a reasonable officer should have been aware.

Ultimately, it may not matter, as my guess is the officer (indemnified and represented by the city) will settle, as the case is not worth much money. But it reflects just how difficult life can be for § 1983 plaintiffs.

Posted by Howard Wasserman on October 10, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, October 08, 2014

Clearly established?

Back in June, we learned that at least the Eighth Circuit believes the right to burn a flag is clearly established. I wonder what the Seventh Circuit will think of the right not to have a police officer proselytize and hand-out information about a church in the course of a traffic stop.

Posted by Howard Wasserman on October 8, 2014 at 01:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law Review Review | Permalink | Comments (0)

Tuesday, October 07, 2014

The politics of sports

Here is (somewhat lengthy) video of a Ferguson protest outside Busch Stadium in St. Lousi before last night's National League Division Series game between the Cardinals and Dodgers. One fan wears a Cardinals jersey with "I am Darren Wilson" on the back; many fans engage the protesters with some not-unexpected-but-unfortunate racist vitriol.

But this highlights my long-held point that sports and politics are inextricably mixed. The protesters picked an ideal forum: Millions of people watching, thousands of people milling about, and an event that touched on civic pride and heart--all to protest conditions and issues that call some of that pride into question, prompting some reactions that illustrate precisely why that pride should be questioned.

Posted by Howard Wasserman on October 7, 2014 at 12:10 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 06, 2014

Is it unseemly for SCOTUS to wait? (Updated)

Calvin Massey tries to figure out why SCOTUS declined to take a marriage-equality case. One possibility he offered is that "the Court is just avoiding the issue, hoping that the circuit courts will do the job for them," a possibility Massey calls "unseemly."

But is it unseemly and, if so, why? One reason to have "One Supreme Court" is to ensure uniformity of federal law. But if that uniformity comes anyway, is it really necessary that SCOTUS speak (or, as Dahlia Lithwick put it, lead) on any particular issue? Is there anything inherently wrong with SCOTUS waiting for a circuit split or for a circuit to get it "wrong"? Especially when the denial of cert. drops such a big hint to lower courts (particularly the Sixth Circuit, which seemed, based on oral argument, to be most inclined to uphold a state ban) to fall in line or risk being reversed later in the term?

Update: Neil Siegel frames the denials in line with the halfway decision in Windsor, as a Bickelian Court deciding as little as possible while dropping hints to direct the further conversation. Pivoting off that, it shows that our understanding of Bickel and passive virtues must be court-specific. Whereas Bickel likely imagined leaving the national conversation to the political branches and outside the Article III judiciary, here, it is unlikely any states will be suddenly motivated to legislate marriage equality. Instead, the conversation that SCOTUS is encouraging is in the lower federal courts, tasked with reading tea leaves (in Windsor and now in the cert. denials) and moving the discussion forward.

But is that what Bickel had in mind? Certainly multiple regional districts and circuits allow more "national conversation" and evolution than one final-and-thus-infallible decision of one Supreme Court. But these decisions still are being made by the same body of unelected-and-unaccountable life-tenured federal judges, drawn from the same pool and sharing the same orientation as the members of SCOTUS. That seems a very different conversation from the one Bickel imagined in promoting, for example, standing (which applies to all federal courts).

Posted by Howard Wasserman on October 6, 2014 at 05:27 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, October 03, 2014

The Right to be Forgotten

Much of my scholarship concerns comparative constitutional law. An interesting example of such topics being addressed, beyond a law journal, is the recent article by Jeffrey Toobin in the Sep. 29 New Yorker titled "The Solace of Oblivion," http://www.newyorker.com/magazine/2014/09/29/solace-oblivion.  His article focuses on a European Court of Justice ruling that essentially ordered Google to delete any links to information regarding an individual in Spain, who had cleared up some financial difficulties that had been previously written about on the Internet. The ECJ said individuals had a right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed."  From a U.S. First Amendment perspective, such a ruling would almost certainly be an untenable speech restriction, especially given the vagueness and overbreadth of these criteria. 

The article includes an interview with the Austrian born Oxford professor who is considered by Toobin to be the "intellectual godfather" of this right to be forgotten.  The professor apparently sees analogies between Google retaining links to permanent blemishes about people on the one hand, and the Stasi, or other surveillance states, keeping records on people.  It's a short fascinating article that I recommend to folks who want to learn more about the differences between American and European approaches to these issues.  Students would find it especially accessible.  The article has special relevance now in light of disclosures regarding NSA and other surveillance actions in the U.S.  Yale Law Professor James Whitman wrote a seminal law review article addressing some of the underlying philosophical differences between the U.S. and Europe on privacy that has some similarities.   "The Two Western Cultures of Privacy:  Dignity Versus Liberty," 113 Yale L.J. 1151 (2003-4), http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers     

Posted by Mark kende on October 3, 2014 at 04:41 PM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Web/Tech | Permalink | Comments (0)

Can't They Read on the Fifth Circuit?

With a highly troublesome reading of the U.S. Supreme Court's opinion in Planned Parenthood v. Casey, the U.S. Court of Appeals for the Fifth Circuit managed to uphold a statute that has closed many abortion clinics in Texas, at least for the time being. The statute requires abortion clinics to meet standards for ambulatory surgery clinics, and the costs of doing so are unaffordable for the majority of abortion clinics. According to the New York Times

Thirteen clinics whose facilities do not meet the new standards were to be closed overnight, leaving Texas — a state with 5.4 million women of reproductive age, ranking second in the country — with eight abortion providers, all in Houston, Austin and two other metropolitan regions. No abortion facilities will be open west or south of San Antonio.

At issue was whether the statute imposes an "undue burden" on pregnant women seeking an abortion in Texas and is therefore unconstitutional. The district court found an undue burden because some women will have to travel 500 miles to reach an abortion clinic and therefore incur a substantial hardship from the increased time and expense of the travel. The women will have problems with child care, transportation, and getting time off from work.

The Fifth Circuit overrode the district court on the ground that Casey requires challengers to demonstrate that an abortion regulation imposes an undue burden "in a large fraction of the cases in which it is relevant." Since the women who live great distances from remaining clinics are not a "large fraction" of pregnant women in Texas, the appellate court upheld the clinic standards regulation.

But that reading ignores half of the Casey standard. Yes, the Casey Court referred to a large fraction of the cases, but it also referred to the cases for which the regulation "is relevant." Thus, when the Casey Court struck down Pennsylvania's spousal notification requirement, it observed that abortion regulations "must be judged by reference to those for whom it is an actual rather than an irrelevant restriction." Indeed in Casey, the spousal notification requirement would have been an undue burden for less than one percent of women seeking abortions in the state.

It is not always easy to interpret Supreme Court opinions, but the Fifth Circuit's reading is not tenable. Fortunately, this is only a temporary ruling pending a full appeal before the Circuit, and the Fifth Circuit will not have the final word on this matter.

[cross-posted at HealthLawProfs and orentlicher.tumblr.com]

Posted by David Orentlicher on October 3, 2014 at 09:00 AM in Constitutional thoughts, Current Affairs, Gender | Permalink | Comments (6)

Thursday, October 02, 2014

Is Ex parte Young Doomed?

Among the 11 cases in which the Supreme Court granted certiorari this morning is Armstrong v. Exceptional Child Center, a case out of Idaho (via the Ninth Circuit) that asks "Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute." This is the exact same question that the Supreme Court had before it--and narrowly ducked--two years ago in Douglas v. Independent Living Center of Southern California, a case I've written about here previously. And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs--or, as I'll explain below, the future availability of remedies under Ex parte Young.

In Douglas, a 5-4 majority vacated the Ninth Circuit's affirmative answer to that question based upon an intervening change in the administrative posture in the case--without endorsing or criticizing the Court of Appeals' ruling. But in a strongly worded dissent on behalf of himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts argued that such remedies under the Supremacy Clause should not be available, lest the Supremacy Clause provide litigants with a means of making an end-run around their inability to enforce section 30(A) (the Medicaid statute's critical requirement that states fund Medicaid at levels sufficient to guarantee "equal access" to quality providers) either directly or via 42 U.S.C. § 1983. For Chief Justice Roberts, Douglas should have followed directly from the Court's earlier decisions in Alexander v. Sandoval (limiting direct enforcement) and Gonzaga University v. Doe (limiting 1983). Taking those cases one crucial step further, the Douglas dissent would have held, for the first time, that litigants may not pursue injunctive relief against state officers for violations of federal law under Ex parte Young unless the underlying federal law is itself privately enforceable. 

The reason why such a conclusion would not be inconsistent with Ex parte Young and its progeny, the Chief Justice explained, is because "Those cases . . . present quite different questions involving the pre-emptive assertion in equity of a defense that would otherwise have been available in the State's enforcement proceedings at law.” This hyper-narrow view of the scope of Ex parte Young, which was most forcefully advanced in a 2008 Stanford Law Review article by UVa Professor John Harrison, has never been embraced by a majority of the Supreme Court, and cannot be squared with any number of subsequent Supreme Court decisions. As Justice Scalia reiterated just three years ago, “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’" And because of these modest prerequisites, as then-Justice Rehnquist wrote in 1974, Ex parte Young "has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.” In other words, litigants have been able to use Ex parte Young to affirmatively and prospectively vindicate federal rights against state officers whether or not they are otherwise facing state enforcement proceedings in which those rights might provide a defense. On the Douglas dissenters' view, such remedies would only be available when such enforcement proceedings were nigh... 

And yet, Douglas came within one vote of cementing this far narrower understanding of the availability of such relief. And Justice Kennedy (who joined Justice Breyer's majority opinion in Douglas that ducked the issue) has already expressed at least some support for this view of Ex parte Young elsewhere. After Douglas came out, I wrote a short essay about the bullet that the Douglas Court dodged. With this morning's grant in Alexander, it increasingly appears that any solace one might have taken from that result may well be short-lived.

[Full disclosure: I co-authored an amicus brief on behalf of former HHS officials in support of the Respondent in Douglas--which argued, contrary to the position advanced by the Solicitor General in his amicus brief, that HHS has historically understood private enforcement of the equal access provision to be a critical part of the Medicaid scheme.]

Posted by Steve Vladeck on October 2, 2014 at 12:23 PM in Blogging, Civil Procedure, Constitutional thoughts, Scholarship in the Courts, Steve Vladeck | Permalink | Comments (10)

Tuesday, September 30, 2014

Ebola in the United States—Some Resources for the Law School Curriculum

Law students have lots of things competing for their attention, but one topic I’ve found of general interest this fall is Ebola.  Although the topic is obvious low-hanging fruit for those of us in the health law crowd, I’d suggest there’s plenty to keep Constitutional Law, Torts, Commercial Law, International Law, immigration, etc. going as well.  An infectious disease like Ebola triggers concerns about shipping, air travel, and, of course, quarantine, search, and seizure.

Today’s news that a Texas hospital has diagnosed a patient already in the United States was inevitable-and provides an opportunity to throw a legal spotlight on the laws of quarantine and isolation.   As a matter of Constitutional Law, the President of the United States can take any measure necessary to protect the nation’s security, remember President Bush’s plan to use the military to control pandemic flu (see an overview from the CRS or the plan itself),  or  interstate commerce, but only individual states have the power to take action addressing health issues that do not threaten the safety of the country as a whole.   That’s because individual states, but not the federal government, retain “police power” to promote the health of their citizens even in the absence of a threat to others.  Here’s a helpful article.  This overview of emergency legal powers, specific to Ebola, comes from the Robert Wood Johnson foundation supported Network for Public Health.  Here is some more general information comparing state and federal authority from the CDC and a great overview from the Congressional Research Service.  While Ebola itself is low on the list of the scariest diseases we in the U.S. risk catching (here’s a list from for those who don’t have enough to worry about), it is interesting to see how quickly it happened given that estimates of only a few weeks ago were that the probability was no more than 25%.  Here’s how Vox explained it using visuals.

 

Posted by Jennifer Bard on September 30, 2014 at 06:45 PM in Constitutional thoughts | Permalink | Comments (0)

Balance of video

This piece in Sunday's Times offers a different perspective on the race to equip police officers with body cameras--they are law enforcement's response to increasingly ubiquitous amateur citizen videos, which the piece describes as "hav[ing] become part of the fabric of urban democracy." This turns the narrative somewhat on its head. Supporters of the right to record (including me) have generally argued that the citizen's right is essential in response to increasing police-controlled recording (through dash cams, street cameras, recorded station-house interviews, and other surveillance). As I put it once, citizen recording produces "a balance of power in which all sides can record most police-public encounters occurring on the street and in the stationhouse. Big Brother is watching the people, but the people are watching him."

But articles such as this one suggest that police see that balance as having shifted too far towards the public. Body cams--the latest technology--now are seen as a way for the government to restore that balance.

Posted by Howard Wasserman on September 30, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 23, 2014

The Washington Redskins, the Lanham Act, and Article III

As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.

I.  The Lanham Act's Cause of Action for "Adverse" Parties

In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:

an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.

But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:

Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.

Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.

II.  The Case-or-Controversy Requirement

But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.

The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.

On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.

As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...

III.  The Equities

Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)

Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.

Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)

Monday, September 22, 2014

Stone on sex discrimination and professional sports

The following is by my colleague (and past GuestPrawf) Kerri Stone, responding to my post on how professional sports teams and leagues respond to sex discrimination.

The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.

Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.

Title VII prohibits racial, sex-based, and other discrimination in the workplace. It is clear that while the statute’s goal is to eradicate the erosion of individuals’ terms, conditions, or privileges of employment because of discrimination, it is not supposed to function as a general civility code, requiring anyone to change the way they think, feel, or express themselves when that expression is not anchored to workplace-based harassment or deprivation. In other words, as the Supreme Court has put it, “discrimination in the air,” unmoored from some adverse action or campaign of workplace harassment, is not actionable; it is only when discrimination is “brought to the ground and visited upon an employee,” that it becomes something for which we permit legal recovery.

It is interesting, then, that there has been such pressure on sports teams and leagues to undertake voluntarily to do what the law does not require them to do—to distance themselves from those who espouse racist, sexist, or other offensive views. To be sure, if the Mets executive who alleges that she was taunted and fired for being an unwed mom-to-be persuades a trier that these things did, indeed, happen, she will prevail in court. But what about the rest of the outrage? The offenses unaccompanied by legal harm? What if the executive had not been fired and her teasing had not risen to the rather high threshold of intolerability and consistency needed to render it actionable harassment as opposed to mere, permissible incivility? The public needs to understand that the law does not necessarily comport with public sentiment on these issues. “Discrimination in the air” is not actionable.

Moreover, the public needs to appreciate the fact that while high-profile shaming and pressure on professional sports organizations may effectuate the kind of personnel and cultural changes that the law cannot, discrimination—both in the air and grounded upon employees—is rife in all kinds of workplaces. There are no high profile campaigns of shame at a typical truckstop diner or even in a big box store chain. But the same sense of “humor” that allegedly compelled the Mets higher-up to continually joke about the morality of single motherhood or fuels racially stereotyped depictions, contempt, or observations in the upper echelons of the NBA or Major League Baseball also pervades everyday workplaces. And often, employees are either not believed when they report it, or even if they are, it does not matter because the hostility or microaggressions, as they have been termed, are not anchored to an adverse action or part and parcel of actionable harassment. The difference is that in these lower-profile cases, no one cares. The highers-up who harbor these views are often high up enough on the ladder to be valued and thus retained, unscathed, by employers, but anonymous and uncared-about enough to elude public shaming or outcry. The law’s gaps and holes allow us to be selective about how and when we, as a society, can demand justice in the form of the censure or termination of those who express discriminatory, stereotyped, or just plain hateful beliefs, and that selectivity breeds inconsistency and randomness even more dramatic across workplaces than that decried by Professor Wasserman in his sports blog.

Is it time for the law to come into line with the wishes and expectations of society as evinced by the decrying of “discrimination in the air” that we have seen in the media in response to what is going on in professional sports? Or is it the case that if all of those who demand the firing of high profile racists or sexists wouldn't really want the law to require what they are demanding if they thought it through? It is wholly inconsistent for us to say that we demand the ouster of a team coach or manager on the basis of his sentiments unmoored from action, but that we wish for less glamorous, less known, but perhaps as well compensated bosses in the private sector to retain an absolute right to their private dealings and expressions, with no job consequences?

Posted by Howard Wasserman on September 22, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Thursday, September 18, 2014

Cameras and unintended consequences

In the rush to video record everything so we always know for sure "what happened," it is important not to lose sight of the risk of unintended consequences. Two studies, not directly involving police and body cams, illustrate the point.

In The Atlantic, Derek Thompson argues that one major cause of the drop in offense and scoring over the past 5+ years is introduction in 2006 of video systems to review and evaluate umpire performance in calling balls and strikes. The intended effect was to teach umpires the "correct" strike zone and produce more accurate umpiring (indeed, several umpires were fired when video showed their ball/strike calls to be inadequate). But that accurate strike zone was a lower strike zone, with more pitches around the batter's knees now being called strikes, causing pitchers to learn to throw low in the strike zone. Low pitches are harder to hit, especially with power, so they produce more ground balls and more strikeouts (Thompson says the increase in strikeouts since 2008--called and swinging--is entirely on pitches lower in the zone). As a result, this more-accurate zone produces less scoring. The problem is that this lower-scoring game is not as popular nationally (based on game-of-the-week ratings and national fan recognition of star players) as the power-driven game of the late '90s and early '00s. And there is your unintended consequence--MLB used video to successfully increase accuracy, but accuracy fundamentally changed the game. And arguably made it less popular.

On the Harvard Business Review Blog, Ethan Bernstein (a professor in the B-school) argues that the increase in transparency that video brings may stifle worker creativity. He explains that "[k]nowing that their managers and others will closely evaluate and penalize any questionable recorded behavior, workers are likely to do only what is expected of them, slavishly adhering to even the most picayune protocols." In an article, Bernstein found such lack of creativity in assembly-line workers, who avoid potentially useful time-saving methods in favor of doing everything precisely by the book. And while supportive of body cams, Bernstein is concerned that they will have a similar effect on law enforcement.

With respect to public officials such as police (the people who will be wearing cameras), official immunity (especially qualified immunity) is driven by similar concerns for over-deterrence. Officials enjoy immunity so they can exercise their learned judgment and discretion vigorously; immunity also encourages creativity in job performance that may be beneficial. We do want officials to play it overly safe, avoiding any risk of liability by steering so far away from the constitutional line, where doing so may leave significant performance and enforcement gaps.* Perhaps we should at least be aware that, in equipping officers with cameras, we may be creating the same disincentives that immunity was designed to eliminate--officers will play always play it "safe" and steer clear of the line for fear that, even if not unconstitutional or unlawful, their behavior "looks bad" to the people who are going to see the video and reach conclusions based on nothing more than the video. Bernstein's solution is to promote video and transparency in the use of body cams, but to create some "zones of privacy," in which video is used for education and training rather than punishment, thereby providing officers the needed "breathing space."

    * I would argue that current qualified immunity strikes the wrong balance, too heavily weighting over-deterrence at the loss of accountability. But I recognize that both need to be taken into consideration.

The point is that police body cameras are as likely to produce unintended consequences as video in baseball or video monitoring of UPS drivers and assembly-line workers. Those unintended consequences must be considered and addressed by departments in establishing careful and clear rules and policies for camerause. And they should ring as another reason to treat cameras as one good idea, not as a complete solution.

Posted by Howard Wasserman on September 18, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, September 17, 2014

Happy Constitution Day--Some Thoughts on Constitutional Issues in Health Law

As readers of this blog already know, today is Constitution Day.  An occasion mandated by Congress that requires every institution of education receiving federal funding (which includes nearly all colleges and universities) to present some sort of "programming" related to the Constitution.   In the context of suggesting that it may be an Unconstitutional mandate in regard to k-12 schools, Slate offered a history of where this idea came from and how it became law.

Since our TTU Health Sciences Center is a separate entity from TTU University, it is required to have its own, separate Constitution day event and it's been my honor as an adjunct faculty member to give the "Constitution Day Address" since the law took effect in 2004.   At the beginning, it was an interesting challenge because, of course, the word "Health" appears nowhere in the Constitution.  But what started as a service project turned into more as I developed a course for the law school based on one taught first by Maryann Boblinski at the University of Houston (now dean at the University of British Columbia) on Constitutional Issues in Health Law (and yes, this extends far beyond Obama care) to capture topics like First Amendment Issues in Prescription Drug Off-Label marketing, Entitlements, and, of course, the Right to Refuse Treatment, Non-Right to Physician suicide issues that get covered in a traditional bioethics class.   Last year we looked at (and re-enacted the oral argument from) Hobby Lobby and this spring will focus on Halbig v. Burwell.

There have always been Constitutional issues in health care and fine constitutional work done by health law academics [more name checks to come--but to make an incomplete list of some giants,  Sandy Johnson, Marshall Kapp, Diane Hoffman,  Karen Rothenberg,  Judith Daar, Alan Meisel, Paul Lombardo, Fran Miller, Rebecca Dressler, Mark Rothstein, Lori Anderson, Tim Jost and Mark Hall(now I really need to stop--the danger always in starting to list names is to leave people out)  but --but it was the intense attention brought by the Obamacare Constitutionality cases (that in my opinion had almost nothing to do with health care, but that's another post) that has attracted interest both locally (last year I had 11 students, this spring 30) and more broadly.   I've been working with my research assistant to put the course material into a package that can be used by others interested teaching a similar course--and who knows, maybe someday a book.

Happy Constitution Day,<2014 Constitution Day Flyer.pdf>

Posted by Jennifer Bard on September 17, 2014 at 12:11 PM in Constitutional thoughts | Permalink | Comments (2)

Tuesday, September 16, 2014

Scientific misconduct and the First Amendment

This proposal to make scientific misconduct a crime would seem to raise serious First Amendment problems, certainly under the Kennedy plurality in United States v. Alvarez. If false statements are not categorically unprotected, regulations must survive strict scrutiny, and counter-speech is always available, it seems to me that any attempt to regulate false scientific results are as vulnerable as the ban on false statements about military service. Interestingly, such a criminal prohibition might fare better under the squishier balancing proposed by Breyer's Alvarez concurrence, given the more tangible harms from false scientific research (Andrew Wakefield, anyone?). But I do not think receipt of salary from the university should matter; we do not prosecute people for not doing their jobs well, even intentionally. And to the extent a scientist receives grant money requiring honest research and produces false results, charges of fraud or false monetary claims already should be available.

Posted by Howard Wasserman on September 16, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Friday, September 12, 2014

Federal control of all police prosecutions?

Having St. Louis County Prosecutor Robert McCulloch decide whether to prosecute Darren Wilson in the shooting death of Michael Brown raises several concerns, notably related to his comments and actions during the Ferguson protests/riots (depending on your perspective) and a generally poor track record with such cases. But McCulloch and the question of a Wilson prosecution illustrate a general problem for even the  best-of-faith DAs having to prosecute local police officers. The relationship is too close and often too cozy. Alternatively, the decision to pursue charges against one officer may harm a prosecutor's relationship with the police going forward, with negative consequences to law enforcement.

But this seems like the wrong solution to the problem: Moving charging decisions exclusively into the hands of federal prosecutors, apparently even for state prosecutions in state court. The author extrapolates from the successful federal prosecution of Rodney King following his state-court acquittal; it "would have been more efficient and confidence-inspiring, however, if the federal lawyers had been in charge from the start."

First, the problem  in the King case was not with the county prosecutor's office, which brought and vigorously pursued state charges. The federal government (and federal lawyers) became involved only after the jury acquitted and only pursuant to specific policies governing successive prosecutions. The federal government never would have gotten involved (efficiently or not)  if the state jury had gotten the case "correct" (as that is commonly understood in that case). So to jump from an (arguably) erroneous acquittal in King (or in a lower-profile, non-death case such as this one, that just shows how hard it is to convict cops even in the most-vigorous prosecution) to a blanket condemnation of the ability or willingness of all state prosecutors to prosecute police seems extreme. Similarly, it is extreme to go from one arguably conflicted prosecutor in Ferguson to that same blanket condemnation.

Second, how are federal prosecutors competent or appropriate to make charging decisions under state law? I guess the argument is that they are smart lawyers who can figure it out. But federal prosecutors prosecute federal crimes, not state crimes, leaving them with no special knowledge of the law and procedure of that state (or even any knowledge the law of that state--an AUSA need not be a member of a local Bar). This will be exacerbated if the decision is taken on not by the US Attorney Office for that district, but by Main Justice. So in gaining "independence," we potentially lose expertise in the applicable law.

So this proposal makes sense only if the idea really is that police shootings  should be prosecuted exclusively as federal civil rights violations, never as state crimes (such as murder or attempted murder or aggravated assault). That certainly resolves the efficiency concerns--everything goes straight to federal prosecutors, federal substantive law, and federal court, and we need never wait around to see what state officials do or what happens in state court. But it comes at the expense of some federalism considerations. I am no big believer in federalism, but an across-the-board assumption that crimes should go automatically and exclusively to federal law--not an as one option but as the only choice--seems excessive. Which is not to say federal prosecution is n0t appropriate in many of these cases, including in the Brown shooting; only that it should not be the sole option.  I also wonder if § 242, which requires specific intent to deprive a person of their constitutional rights, can be proven in many of these shootings. Finally, there might be resource limitations preventing the federal government from investigating and prosecuting every single police shooting. All of which means the net result could actually be fewer prosecutions or convictions against police.

The federal-prosecutor proposal unfortunately distracts from some good ideas in the piece, namely requiring that police shootings be investigated by a special prosecutor brought in from another county. Better still, I would argue, bring in the state attorney general, which can better (not perfectly, perhaps) bring distance from all local passion and politics, while retaining expertise in state law and state prosecutions.

Oddly, Levine points to the George Zimmerman prosecution as a positive example in which a special prosecutor was brought in after the local prosecutor refused to charge. Of course, Zimmerman was acquitted, in part because the special prosecutor overcharged and generally put on a terrible case. Moreover, Zimmerman was not a police shooting. So it appears Levine really is arguing that no local prosecutor should ever handle a high-profile or controversial case. But if those cases also should be taken from them, then why have local prosecutors at all--just to handle cases no one cares about?

Posted by Howard Wasserman on September 12, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, September 11, 2014

Is Hobby Lobby a Precedent on Jurisdiction?

Erin Morrow Hawley has written a fascinating short piece entitled “The Jurisdictional Question in Hobby Lobby.” Hawley’s basic claim is that all nine Justices in Hobby Lobby made “a serious mistake” in failing to address, much less mention, a jurisdictional problem. This incident calls to mind the Court’s controversial rule against ascribing precedential force to implicit jurisdictional findings.

Here’s Hawley’s argument in a nutshell. Under the Anti-Injunction Act (AIA), federal courts lack jurisdiction to hear challenges to taxes unless the challenger has already paid the tax. In the challenge to the Affordable Care Act a couple years ago, the Court said that, despite the AIA, it did have jurisdiction to hear a challenge to the Act’s mandate. Why? Because the Act expressly called the mandate a “penalty,” not a “tax.” Hawley argues that, under the reasoning of the healthcare case, the law at issue in Hobby Lobby should have been deemed a tax for AIA purposes. Why? Because this time Congress did call the provision at issue a “tax.” Therefore, AIA's jurisdictional rule applied, and the Hobby Lobby challengers should have had to pay the tax before filing suit. Yet not a single Justice in Hobby Lobby raised this arguably fatal jurisdictional problem.

How could this have happened? Hawley outlines possibilities that could be placed into three categories. First, the Court might have had a secret theory for why the AIA posed no jurisdictional bar. Second, the Court might have just missed the issue. Finally, the Justices might have had long-term strategic reasons to sweep the problem under the rug.

These three types of explanation aren’t mutually exclusive, and a combination of them may provide the best guess for what happened. When Hobby Lobby reached the Court, the AIA issue wasn’t front and center, as it had been in the healthcare case. Instead, the Government—which is normally vigorous in raising jurisdictional points—didn't press the matter. This meant that a Justice who did notice the issue would have to overcome a lot of inertia to make it into a big deal. And for what? The majority probably didn’t want to be distracted by an issue that hadn’t been briefed. And if the dissenters had pressed the AIA, then the majority would likely have declared the AIA to be non-jurisdictional: as Hawley argues—both in her piece and in an amicus brief she filed in Hobby Lobby—moving the AIA into the non-jurisdictional column would have been consistent with other recent cases. Or perhaps the majority would have followed the decision below in construing the challenge as a claim against a regulatory mandate, not the tax associated with it. But all this is just speculation. As Hawley notes, we “may never be certain why” the Court didn't address the AIA.

Hawley’s argument calls to mind a decade-old Supreme Court case raising similar issues. In Hibbs v. Winn, the Court reviewed the AIA’s cousin for state taxes, the Tax Injunction Act (TIA). Per Justice Ginsburg, the Court found no TIA bar in part because: “In a procession of cases not rationally distinguishable from this one, no Justice or member of the bar of this Court ever raised a [TIA] objection that, according to the petitioner in this case, should have caused us to order dismissal of the action for want of jurisdiction.” Justice Stevens concurred to argue that Congress had acquiesced in the “procession of cases” that Ginsburg alluded to. In sharp contrast, Justice Kennedy and three of his colleagues would have found a TIA bar, despite the Court’s “procession” of silent decisions. For these dissenters, “our failure to consider a question hardly equates to a thing’s being decided.” Thus, the Court’s earlier “exercise of federal jurisdiction does not and cannot establish jurisdiction.”

In light of Hibbs, it’s interesting to wonder how the Roberts Court would deal with Hawley’s argument, if it were to arise in the future. On the one hand, Hobby Lobby is just one decision—hardly a “procession”—so perhaps even Justice Ginsburg would not view its silence as evidence of the AIA’s scope. On the other hand, the Hibbs dissenters were all part of the Hobby Lobby majority and so might be reluctant to suggest that they had previously issued an ultra vires decision of such magnitude.

The big-picture lesson here is that doctrinal arguments based on precedential silence are generally unreliable. Instead of supporting whatever point you might want to make, a lacuna in a judicial opinion—even a Supreme Court opinion—could just be a blunder. As the Court itself put it almost a century ago: “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”

And it can take quite a bit for an issue to be “brought to the attention of the court.” In Hobby Lobby, for instance, the lower-court opinions discussed the AIA at some length, finding that it did not apply. In addition, Hawley's amicus brief in Hobby Lobby argued that the “first and foremost” reason for finding no AIA bar was that the AIA “is not jurisdictional.” With so much agreement that the AIA posed no obstacle, albeit for different reasons, the Court let the issue slip by.

The next time someone argues that a silent court must have had a particular point in mind, remember Hawley and Hobby Lobby.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on September 11, 2014 at 03:11 PM in Constitutional thoughts | Permalink | Comments (0)

Friday, September 05, 2014

Destroying marriage to save it

A thought, brought into relief by Judge Posner's opinion for the Seventh Circuit (go here for highlights):

Have efforts to defend marriage-equality bans crossed over into Ben Tre territory, where they are destroying the town to save it? States' legal efforts to "preserve" marriage as a heterosexual institution have denuded that institution. They no longer defend it as a sancrosanct and powerful institution reflecting long-term intimate arrangements by committed adults who love and care about one another; instead, it has become a metaphorical prison to place fornicators who unintentionally produce a pregnancy. As Posner put it: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure." Opponents of marriage equality insist, without evidence (a point Posner nailed Wisconsin on), that allowing same-sex couples to marry would cause heterosexuals not to marry. But speaking as a heterosexual, I am not sure I would really want to join the marriage club that most states claim to have established.

Posted by Howard Wasserman on September 5, 2014 at 03:30 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Wednesday, September 03, 2014

The myth of body cams

This Slate piece by two criminology professors who have studied the issues. They doubt cameras will prevent another Ferguson shooting, which is almost certainly true. But they also found (from studies of police in Mesa, AZ) found changes in police behavior--officers with cameras conducted fewer stop-and-frisks and arrests, although they wrote more citations. They also initiated more contacts with citizens, perhaps after observing behavior for longer to ensure themselves they were seeing wrongdoing before initiating contact.

Posted by Howard Wasserman on September 3, 2014 at 04:05 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, August 29, 2014

Video Chutzpah, defined

Stories have begun circulating about an incident in Minneapolis in January, in which officers seemed to escalate a situation in which a man was sitting in a restricted area near a public space, then used a TASER when he refused to give his name and attempted to walk away. Charges (trespass and "obstruction of the legal process") were dropped in July. Yesterday, the chief of the St. Paul Police defended the officers, beginning with: "As is often the case, the video does not show the totality of the circumstances."

He is right, of course. But that is certainly not going to be his line or the officers' line when they inevitably move for summary judgment in the inevitable § 1983 action.

Posted by Howard Wasserman on August 29, 2014 at 11:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Another SCOTUS counter-factual: Justice Posner?

Many sites are talking about Wednesday's Seventh Circuit arguments in challenges to same-sex marriage bans in Indiana and Wisconsin. Judge Posner was in rare form in shredding the states' arguments in support of the bans, particularly in the Wisconsin case (several of the links have either the full audio or audio clips). As usual, there is the debate about whether this is Posner being a bully (Josh Blackman says yes) or Posner being Posner and attacking bad legal arguments and bad lawyering (in fairness to Josh's viewpoint, Posner does not give the lawyers room to answer in real detail).

But the argument highlights Posner's uniqueness as a conservative-but-iconoclastic judge. And sparks this question: What if Posner had been the nominee for the late Reagan/Bush I openings--Scalia, Kennedy (after Bork and Ginsburg both went down), or Souter (replacing Brennan, a fitting seat, since Posner famously clerked for Brennan)? Was he ever truly in the running for any of those seats? Would his academic writings have done him in (thus, making the term "Posnered")? Alternatively, assuming Posner has become more iconoclastic over the years, would he have gone the other direction had he reached the pinnacle (as some say Scalia has gone)?

More importantly, would things be different? And, if so, how? Replace Scalia or Kennedy with Posner and Carhart (upholding Nebraska's ban on D&X abortions) Gonzales v. Carhart (upholding the federal ban on D&X abortions) comes out the other way. In spring/summer 1998, while still living in Chicago, I attended arguments in the challenge to Wisconsin's D&X ban; it sounded an awful lot lot like Wednesday's arguments. Not sure what Posner would have done on Bush v. Gore had he actually been there on the ground and not writing about it ex post. On the other hand, replace the speech-protective Kennedy with Posner and the First Amendment might look somewhat different.

Posted by Howard Wasserman on August 29, 2014 at 08:42 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, August 27, 2014

Two from Dorf on policing and body cameras

Two posts from Mike Dorf--one supporting use of body cams and one considering the effect and future of broken-windows policing, which necessarily increases the number of police-citizen law-enforcement encounters, which necessarily means increasing recording of those encounters. Mike share my view that cameras are a good idea but not a panacea.

Posted by Howard Wasserman on August 27, 2014 at 11:27 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, August 25, 2014

Heien and Certificates of Reasonable Cause

Near the start of its new term, the Supreme Court will hear argument in Heien v. North Carolina, which poses the question whether a police officer violated the Fourth Amendment when he performed a traffic stop based on a mistake of law. When the case was granted, I suggested that Heien involves the "other" rule of lenity--that is, the notion that government officers (not criminal defendants) should be given clear notice before suffering personal consequences for having performed illegal action. The briefs in the case have now been filed, and they contain a surprise: a significant chunk of the briefing revolves around founding-era customs law. That history provides a fascinating point of comparison for current law and practice.

Founding-era history makes its biggest appearance in the amicus brief for the United States. Here's the background. At the founding, customs officials engaged in searches and seizures in order to confiscate illicit goods. Once confiscated, the goods were subject to forfeiture proceedings in which the putative owner could appear and defend the property. Federal statutes provided that, if the owner won the case, the court had the option of approving a "certificate" of "reasonable cause" or "probable cause" that would immunize the customs official from suit. The United States argues that these certificates regularly issued in cases where the seizure of goods was the result of a reasonable mistake of law.

Here is an excerpt from one of the statutes (Act of July 31, 1789, ch. 5, § 36, 1 Stat. 47) that the United States cites:

And when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares or merchandise, and judgment shall be given for the claimant or claimants; if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the same court shall cause a proper certificate or entry to be made thereof, and in such case the claimant shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor be liable to action, judgment or suit, on account of such seizure or prosecution.

And here's a discussion of a key case, from the amicus brief for the United States:

In United States v. Riddle[,] a customs collector seized certain goods because he believed that a merchant who arranged their importation had violated a customs statute by creating a set of false invoices, even though the consignee declared the goods' true value to customs officials. This Court held that the collector was incorrect to believe the false invoices violated the statute, concluding that “[t]he law did not intend to punish the intention, but the attempt to defraud the revenue.” Nevertheless, Chief Justice Marshall concluded that the customs inspector was entitled to a “certificate of probable cause” for the seizure because “the construction of the law was liable to some question.” “A doubt as to the true construction of the law,” Chief Justice Marshall explained, “is as reasonable a cause for seizure as a doubt respecting the fact.”

In his reply brief, petitioner argues in part that the relevant historical baseline is actually a common law rule that mistakes of law were no defense to suit. In addition, petitioner argues that immunity schemes are simply irrelevant to the question of reasonableness. If the founding-era statutes are analogous to any modern principle of law, petitioner argues, they are relevant not to the Reasonableness Clause of the Fourth Amendment, but rather to the modern doctrine of qualified immunity (that is, the non-constitutional doctrine that officers can generally be held personally liable for constitutional violations only if they have transgressed clearly established law). Here's a key passage from petitioner's reply brief:

The sole purpose of the Founding-era customs statutes was to immunize collectors from damages for concededly wrongful seizures. The statutes, that is, were nothing more than a precursor to the concept of qualified immunity now implemented on a more universal basis under 42 U.S.C. § 1983. Even though the customs statutes used the term “probable cause” to implement the immunity they created, the circumstances under which courts found the statutes satisfied tell us no more about the meaning of “probable cause” under the Fourth Amendment than the circumstances under which modern courts immunize officers for “reasonable” illegal searches tell us about what the term “reasonable” means under the Fourth Amendment.

Petitioner's argument about qualified immunity is of considerable academic interest. Some commentators think that founding-era Fourth Amendment practice is at least in tension with modern immunity doctrines, which generally allow Fourth Amendment plaintiffs to recover damages only if they can overcome qualified immunity. According to these scholars, a central purpose of the Fourth Amendment was to make officers personally liable at tort for "unreasonable" searches and seizures. But if reasonable mistakes of law could shield officers from liability, then qualified immunity jurisprudence starts to look more like a return to the founding than a break from it. Under both regimes, courts have the ability to make a precedential finding of unlawful official action, but then immunize the officer for having made a reasonable mistake of law.

But were these very early customs statutes constitutional? Or did they authorize impermissible post-search warrants -- despite the Fourth Amendment's requirement that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"? There are many possible answers. To suggest a few, perhaps the Fourth Amendment wasn't originally understood to guarantee any tort remedy against officers. Alternatively, the Fourth Amendment's reference to "persons, houses, papers, and effects" might not have protected ships and cargo, perhaps based in part on an early notion of exigency. It's also possible that a search cannot be unreasonable if it is based on a reasonable mistake of law -- in which case, issuing a certificate would have been tantamount to finding no Fourth Amendment violation at all. The existence of "reasonable cause" would make the seizure itself reasonable.

Finally, the founding-era certificates might inspire new approaches to Fourth Amendment remedies today. One interesting feature of the certificates is that they issued in forfeiture proceedings initiated by customs officials, but in effect adjudicated private plaintiffs' ability to bring damages lawsuits. In this way, the certificate process promoted efficiency by allowing the judicial system to avoid duplicative legal proceedings -- much as though the officer had sought a declaratory judgment against the property owner. Something similar is imaginable today. In adjudicating suppression motions, for instance, judges could issue "certificates" to resolve issues that might arise in private damages actions against police. Assuming that such a practice would be constitutional, it would harness the effort that goes into suppression proceedings and use it to either avoid or facilitate resolution of potential damages suits.

Heien was always a fascinating and important case. The historical issues it raises only make it more so.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on August 25, 2014 at 06:58 PM in Constitutional thoughts | Permalink | Comments (1)

Friday, August 22, 2014

Talking about free speech or talking about racial justice?

The focus of public and media conversation on Ferguson has shfted. We are talking less about the triggering events--the possible murder/possible unconstitutionally excessive police shooting of Michael Brown,(*) the underlying racial atmosphere that made that shooting more likely, and systematic constitutional problems within the Ferguson Police Department--than about the First Amendment problems with how police have responded (and continue to respond) to peaceful protests in a public forum.(**) This has become a miniature of the Civil Rights Movement. When protesters hit the streets in the South and Bull Connor, et al., responded as they did, the legal conversation, at least in the courts, turned to the First Amendment and away from the underlying racial problems and racist policies that the protesters were attacking and seeking to change. The cases that reached SCOTUS arising from the events on the ground largely dealt with First Amendment rights to protestsit in, crticize, organize, and advocate against the racist and discriminatory policies and practices in the South, without real discussion or resolution about their legality, constitutionality, or morality. Certainly these all were important victories for the movement and its members (as well as for society as a whole), but they can feel sterile when the underlying injustices are forgotten or pushed below the surface. The Court itself never directly tackled the underlying constitutional validity of most pieces of Jim Crow (primarily because Congress did it for them).

 (*) Although the competence and commitment of the county prosecutor to vigorously prosecute a police officer has moved to the front of the line for the moment. Since the grand jury might take two months, this will go away soon, unless the governor preemptively appoints a special prosecutor.

(**) While somewhat overstated, Dahlia Lithwick makes some good points comparing police responses to these protests (which, unfortunately, likely will not be successfully litigated after the fact) with what the Supreme Court said in McCullen v. Coakley was constitutionally required, particularly about potential distinctions between protest and counseling.

On one hand, this is appropriate for the First Amendment. The whole point of free speech is that constitutional protection for protest, advocacy, and criticism of government should not turn on the subject of that protest, advocacy, or criticism or its underlying morality. It does not matter whether protesters are complaining about racism, police misconduct, the minimum wage, or United States's tolerance of homosexuality bringing about God's wrath--what matters is that their peaceful protest enjoys First Amendment protection. On the other hand, as Harry Kalven and Burt Neuborne both have argued, the concerns about ending discrimination silently informed the free speech jurisprudence of the early '60s--without necessarily saying so, the Court protected free speech precisely so the underlying system of racism and segregation could be attacked and, hopefully, changed.

But that leaves a nice question whether we (courts, the law, and the public) miss something by not talking more explicitly about the underlying issues leading to the protests and the First Amendment violations. And, more cynically, whether the national outrage over Ferguson that has latched onto the First Amendment concerns (because everyone feels and cares about "their" First Amendment rights personally) frees us to ignore the underlying racial injustice (which is personally disconnected from most people).

Posted by Howard Wasserman on August 22, 2014 at 10:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Would “Pattern or Practice” Litigation Work in Ferguson?

The following guest post is by Stephen Rushin, a VAP at Illinois.

Earlier this week, Howard wrote an interesting post about the possibility of DOJ intervention into the Ferguson Police Department under 42 U.S.C. § 14141. This statute gives the Attorney General authority to initiate structural reform litigation against local police agencies engaged in a “pattern or practice” of misconduct.

This post raised some important questions. How might the DOJ use § 14141 to reform the Ferguson Police Department? And would it work? Over the last two years, I've been empirically studying the DOJ’s use of § 14141 litigation in American police departments as part of my doctoral dissertation. I am in the process of converting this dissertation into a book (in contract with the Cambridge University Press) that argues that § 14141 is the most effective legal mechanism available to combat police misconduct. So it is safe to say that I am a strong proponent of § 14141 litigation. But this regulatory mechanism is not without its limitations. After the jump, I’ll breakdown what we know about § 14141, and I’ll describe how this sort of structural reform litigation could work in Ferguson. 

Let me start with a little background. Since Congress passed § 14141 in 1994, the DOJ has used the measure to reform police departments in cities all across the country, including Los Angeles, Washington, D.C., New Orleans, Pittsburgh, Cincinnati, Albuquerque, Seattle, Detroit. One of my earlier articles documents all of the formal DOJ action under § 14141. Below is a map showing all DOJ action under this statute (this doesn’t include DOJ action in Puerto Rico and the Virgin Islands). That same article also describes trends in DOJ enforcement of § 14141 over time.

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In practice the DOJ has settled virtually all § 14141 cases through largely extrajudicial negotiations. One notable exception is the recent litigation in Alamance County, North Carolina. In a forthcoming article, I draw on original interviews to describe and evaluate this largely “off-the-books” process and theorize on its effectiveness. Scholars like Mary Fan (UW Seattle) have argued that this sort of bargaining of constitutional reforms in the shadow of the law “may yield smarter and farther reaching reforms.” And as Howard alluded to in his earlier post, Rachel Harmon and Kami Chavis Simmons have made valuable contributions in this field by describing how the federal government could use § 14141 to bring about more widespread and effective change in local police departments.  

Studies in Los Angeles, Pittsburgh, and Cincinnati have suggested that § 14141 litigation can help police departments reduce misconduct. In my research, I argue that federal intervention via § 14141 helps reduce misconduct in several ways. For one thing, it forces municipalities to prioritize investment in police reform. Preventing unconstitutional misconduct is expensive. Take New Orleans as an example. There, estimates place the annual cost of the consent decrees facing the New Orleans Police Department and Orleans Parish Prison at around $18 to $33.5 million. In confronting such an immediate financial burden, communities are left with two options: reallocate scarce municipal resources to the cause of police reform, or generate more revenue through higher taxes. While this might seem troubling, interview participants in my study suggest that municipalities can recoup some of this cost through future reductions in civil suits for officer misconduct. As one city official in Detroit told me, “the amount of money that we have saved on lawsuits that we had endured for years … have paid for the cost of implementation of the monitoring two or three times” over.

Federal intervention via § 14141 also commonly spurs municipalities to bring in outside, reform-minded leadership to their police department. Federal intervention arms these local police leaders with legal cover to implement potentially unpopular, but necessary reforms. And it utilizes external monitoring to ensure that frontline officers substantively comply with top-down mandates.

That is the good news. But this regulatory method is far from perfect. For one thing, virtually all interview participants that took part in my study acknowledged that § 14141 litigation is most effective when the local police and political leadership are supportive of the reform. In 2010, Assistant U.S. Attorney Tom Perez announced that the Civil Rights Division was again “open for business” and would aggressively use its authority under § 14141 to reform local police departments. Even so, real questions remain about whether the DOJ can effectively use § 14141 to force reform in a municipality that defiantly and obstinately opposes federal intervention.  

There are also serious questions about the sustainability of reforms achieved via § 14141. For example, in Pittsburgh, Police Chief Robert McNeilly oversaw the city’s Bureau of Police throughout the implementation of § 14141 reforms. During his process, McNeilly was an ardent supporter of federal intervention, despite fierce backlash from his own officers. After federal oversight ended, though, the newly elected Pittsburgh mayor removed McNeilly from his post. Since then, the Bureau “is now sliding back towards where it was” before federal intervention. One of McNeilly’s successors, Chief Nathan Harper, is currently serving an 18-month prison sentence on corruption-related charges. And the current Pittsburgh mayor recently acknowledged that the Bureau had regressed so much that it may be “on the verge of another consent decree.”

All of this is to say that § 14141 is not a silver bullet. If a full DOJ investigation finds evidence of a pattern or practice of police misconduct in Ferguson, the use of § 14141 may help facilitate organizational change. At the end of the day, though, long-lasting reform in the Ferguson police department will require more than § 14141. It will require dedication by local politicians, supportive leadership in the police department, and organizational buy-in by frontline officers.

Posted by Howard Wasserman on August 22, 2014 at 10:00 AM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Thursday, August 21, 2014

Two-way video

Police body cameras are often seen as a panacea in police-public relations and in controlling police misconduct. Judge Scheindlin endorsed them during closing arguments in the New York stop-and-frisk trial. As I have written before, I support the idea, although I doubt it is an ultimate answer, since video is not as certain as many proponents make it out to be.

But events in Ferguson show a different reason that body cameras are not alone sufficient--we need to see all the actors in the exchange; it is not enough to see who the officer is looking at and perhaps hear what the officer is saying, we also need to see the officer. I was reminded of this by looking at the video after the jump. All of which may be to say that body cams are great, but they do not obviate a rigorous First Amendment right of citizens to video their interactions with police, wherever and however they occur. The effect would not be the same if we only heard the officer's voice, without seeing him pointing a rifle at unarmed civilians who do not appear to be committing any crime. (Reports indicate the officer has been removed from duty).

 

On a different video-related point: Will Baude tries to find good arguments against the right to record, but finds all lacking. I agree, but would add an additional spin: Whatever their attitudes towards public recording (Will says police unions generally oppose it), police generally seem supportive of bodycams, dashcams, and other recording technology that they use and control. But that means recording is not the real concern, police control over it is. But obviously the government cannot be the sole actor with the power to record public events.

Posted by Howard Wasserman on August 21, 2014 at 10:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Wednesday, August 20, 2014

Who's Afraid of Assuming Federal Jurisdiction?

In the Supreme Court's much-discussed Hobby Lobby decision (decided at the end of June), the Court addressed whether for-profit corporations should be able to assert claims under the Religious Freedom Restoration Act (RFRA). The majority answered “yes” for a variety of reasons, mostly involving the statute’s text and history. But at one juncture, the majority and dissent also jousted over a pre-RFRA decision called Gallagher v. Crown Kosher Super Market. In the opinion of the Hobby Lobby majority, Gallagher “suggests, if anything, that for-profit corporations possess [free exercise] rights.”

Gallagher is a remarkable decision. In short, a plurality of the Court assumed standing before reaching the merits—contrary to the general rule later established in Steel Co. v. Citizens for a Better Environment. And, almost as remarkably, both the majority and the dissent in Hobby Lobby appear to be in denial about it. Hobby Lobby thus represents an interesting example of the Court’s willingness to engage in doctrinal revisionism. And, on inspection, the Court’s revisionism could have been done better.

Gallagher involved a Free Exercise Clause challenge against Sunday closing laws. The plaintiffs included customers of a kosher market, the kosher market itself, and a rabbi. In addition to addressing the merits, the defendants vigorously disputed whether any of the plaintiffs – either individual or corporate – had standing to sue.The Court splintered. A plurality, led by Chief Justice Warren, found no violation based on another case, Braunfeld v. Brown, decided on the very same day: "Since the decision in that case rejects the contentions presented by these appellees on the merits, we need not decide whether appellees have standing to raise these questions." Meanwhile, the concurring and dissenting justices didn't specifically address the majority's reservation. Because the plurality expressly reserved standing and no other justices complained about it, Gallagher seems like powerful evidence that it was once accepted practice to assume standing on the way toward the merits.

Remarkably, the Hobby Lobby majority and dissent papered over the Gallagher Court's reservation of jurisdiction.

Start with the Hobby Lobby majority’s oddly misleading summary of Gallagher. At the outset, the Hobby Lobby majority observed that the Gallagher defendants “argued that the corporation lacked ‘standing’ to assert a free-exercise claim.” The Hobby Lobby majority then dropped a footnote indicating that the defendants had objected to the corporate plaintiff's standing. Finally, the Hobby Lobby majority noted that the Gallagher plurality had "reserved decision on the question whether the corporation had 'standing' to raise the claim." But the defendants in Gallagher had vigorously argued not just that the corporation lacked standing, but that none of the plaintiffs had standing. And the Gallagher plurality expressly reserved whether “appellees” had standing, without limiting that reservation to the corporate party.

The Hobby Lobby dissent gamely engaged in the same revisionist account, wherein Gallagher assumed only corporate standing. “True,” the Hobby Lobby dissent conceded, “one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews.” However, the “other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” The Hobby Lobby dissent offered this line of reasoning specifically to help explain why "the plurality [in Gallagher] stated it could pretermit the question 'whether appellees ha[d] standing.'" Perhaps the Gallagher plurality should have resolved the standing issue by focusing on the non-corporate plaintiffs, as the Hobby Lobby dissent suggested. But that approach doesn’t line up with what was actually argued or reserved in Gallagher.

Fortunately, there's another, better way to harmonize Gallagher with now-settled notions of federal jurisdiction. The key is that the Gallagher plurality adjudicated the merits based on another case issued the very same day. That scenario triggers a kind of exception (recognized in Steel Co.) for cases where there is “a merits issue dispositively resolved in a companion case.” The basic idea is that, if your claim was just rejected on the merits, then there’s no longer a substantial federal question for purposes of federal jurisdiction. So while Gallagher’s use of hypothetical jurisdiction was unusually blatant, it doesn’t contradict the rule against assuming jurisdiction—or, at least, doesn’t contradict it to any greater extent than already allowed by Steel Co. itself.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on August 20, 2014 at 11:59 PM in Constitutional thoughts | Permalink | Comments (1)

More on police "pattern or practice" in Ferguson

Andrew Ferguson (UDC) has an essay at HuffPost discussing the potential for mapping and predictive technologies to look not only at where crime occurs (its primary current use), but also where police officers are at given times and what they are doing. We thus can identify and map "problematic" police-citizen interactions, thereby showing where individual officers may be acting improperly (e.g., making a high volume of stops without recovering any wrongdoing) and showing patterns of misconduct. The technology also would provide policymakers the notice necessary to establish municipal liability.

Posted by Howard Wasserman on August 20, 2014 at 05:31 PM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink | Comments (0)

Tuesday, August 19, 2014

Reforming the Ferguson Police Department

This Slate piece discusses the potential use of 42 U.S.C. § 14141 against the Ferguson Police Department in the wake of recent events. That section authorizes DOJ to investigate and bring civil litigation against a "pattern or practice" by law enforcement organizations that violates the Constitution; DOJ can seek an injunction or consent decree or, more likely, enter into a Memorandum of Agreement about reforms to be made by the agency. 

Section 14141 was seen as a big step when it was enacted as part of the Violent Crime Control and Law Enforcement Act of 1993, a way to make-up for the perceived under-use of criminal civil rights prosecutions under § 242. Actual practice has been disappointing to many commentators, as Rachel Harmon (U VA) and Kami Chavis Simmons (Wake Forest) have discussed. In particular, they note that the focus of investigations has been on smaller cities, such as Pittsburgh, rather than large cities such as New York and Chicago (although the Slate article discusses an agreement--not sure if it was a consent decree or MOA--with Los Angeles that has been found effective). Certainly, this is the type of high-profile situation that would overcome federal inertia and prompt a response.

One problem is whether there can be a finding of a "pattern or practice" in Ferguson. Certainly the past week has demonstrated some potential misconduct and abuse of power by individual officers. And the department as a whole has handled the entire fallout badly (for example, of 78 people arrested last night, 75 were for failing to disperse when ordered, which brings us back to the problem of how police do (and are allowed) to respond to lawful assembly and protest whenever they also can point to the slightest risk of violence). And the militarized response certainly reflects department policies and practices, although typical of what many police departments are now doing. But there is a nice question whether awful response in a single situation, even one as high-profile as this, is sufficient to warrant federal intervention or whether it necessarily indicates broader problems.

The best hope may be that DOJ goes to Ferguson in a cooperative stance, looking not to pursue litigation, but to convince the department to accept an MOA, particularly in light of the awful optics of the past week. When my current dean headed the Civil Rights Division, he favored this approach, believing it created buy-in from the local government without an adversarial posture or the need to establish pattern or practice.

Posted by Howard Wasserman on August 19, 2014 at 04:15 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

JOTWELL: Understanding Prophylactic Supreme Court Decisions

William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis. 

Posted by Lyrissa Lidsky on August 19, 2014 at 11:53 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Lyrissa Lidsky | Permalink | Comments (0)

Monday, August 18, 2014

Can Standing Immunize Surveillance Programs From Judicial Review?

One of the abiding issues in standing doctrine is whether federal courts should care when legal violations seem to produce no viable plaintiffs. This issue has been particularly salient in debates about secret government surveillance. In recent weeks, yet another surveillance program has started to come into view, and commentators are again wondering whether anyone can challenge the program in court. What’s perhaps most interesting about this latest round of the controversy is that both sides can plausibly rely on the Court’s most recent decision on the issue.

I discussed this set of issues in a recent article entitled “Relative Standing.” Here’s the basic idea. In easy standing cases, plaintiffs assert common law injuries that have long been thought appropriate for judicial relief. Those historical practices give content to the idea of an “injury in fact.” But, in hard cases, the Court lacks a sound basis in historical practice and so the idea of an “injury in fact” lacks any stable meaning. In grappling with this problem, the Court has tended to make standing available only to plaintiffs with the strongest interest in seeking relief. This approach navigates a pair of widespread intuitions. On the one hand, standing doctrine shouldn’t make it impossible for federal courts to vindicate important principles of public law. On the other hand, standing doctrine shouldn’t give everyone an automatic ability to rush to federal court. In balancing these competing values, relative standing allows the Court to muddle through.

Relative standing made an appearance in the Court’s highly divisive 2013 decision in Clapper v. Amnesty International, USA. That case involved a suit by attorneys and journalists who interacted with people suspected of being terrorists. The plaintiffs believed that they were subject to surveillance by the government and so took precautions, such as traveling to meet clients instead of using the phone. These costly measures seemed to rest on something more than mere conjecture or speculation. As Justice Kennedy put it during the oral argument: “I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute.” Therefore, the plaintiffs' allegations seemed like a credible source of factual injury, broadly understood.

Yet a majority of the Court (Justice Kennedy included) found that the plaintiffs’ claim was too speculative to sustain standing. Near the final pages of its opinion, the Court appeared to reject relative standing as irrelevant, stating: “the assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” However, the Court then proceeded to devote two pages of analysis to this supposedly irrelevant consideration. Of particular note, the Court suggested that people prosecuted based on potentially unlawful surveillance would be notified of that fact. And even if the defendants themselves couldn't obtain relief, their attorneys could. Sounding a distinctly relativistic note, the Court suggested that these alternative claimants had a “stronger” evidentiary basis for standing.

Clapper’s relativistic arguments were problematic. To be sure, Clapper was correct that alternative and even superior claimants were possible. But the Court failed to show that anyone who could actually sue had a greater interest in doing so than the plaintiffs. When the Court decided Clapper, the government had informed no defendants that they had been monitored pursuant to the challenged program. That left only two possibilities: either there were no defendants legally entitled to notification, or there were such defendants and the government had failed to give them notice. Either way, the “stronger” plaintiffs that the Court had imagined would not exist. In overlooking this problem, the Court let hypothetical plaintiffs defeat real ones.

We now know that, when Clapper was decided, the government was not in fact giving defendants legally required notice. Only after Solicitor General Verilli initiated an internal executive branch debate did the government belatedly supply notice to at least some defendants, thereby raising the possibility of a justiciable case. From one standpoint, these developments could be viewed as vindication for Clapper, since the Court’s holding might not ultimately prevent a ruling on the challenged surveillance program. But that appraisal would be too generous. The government chose to supply notice to defendants only after secretly failing to do so for several years. Moreover, the government could still employ the surveillance program indefinitely without ever engaging in new disclosures, so long as it does not use discovered information in ways that trigger disclosure obligations. Constitutional rights should not depend on whether the executive branch chooses to create a justiciable case.

Recently, attention has turned to another government surveillance program, apart from the one that was at issue in Clapper. This other program is conducted not under federal statutory authority, but under Executive Order 12,333. According to a recent article by Charlie Savage, it appears that the government is using this program in a way that is deliberately designed to avoid triggering notification requirements:

In practice, officials said, the government already avoids [introducing evidence obtained directly from 12333 intercepts], so as not to have to divulge the origins of the evidence in court. But the officials contend that defendants have no right to know if 12333 intercepts provided a tip from which investigators derived other evidence.

So if new plaintiffs challenge EO 12,333 intercepts, the government may not be prepared to make the same notice guarantees that appeared in Clapper.

Over at Just Security, ACLU attorney Patrick Toomey has provided a thoughtful analysis of these developments. Part of Toomey’s discussion suggests that relative standing could play a role here:

In Clapper, the Supreme Court indicated that notice to criminal defendants would ensure that there was some path to judicial review of the FISA Amendments Act. Not so, it appears, with E.O. 12,333 surveillance. Has DOJ invented, in essence, a foreign-intelligence exception to judicial review? Or does DOJ’s no-notice policy mean civil plaintiffs have standing to challenge E.O. 12,333 surveillance in the courts?

Toomey raises this point as a provocative question, which is appropriate given that Clapper purported to discount relative standing considerations, just before discussing them. What’s more, the four dissenting justices in Clapper plausibly argued that standing could be found without reference to relative considerations. So it’s quite possible that these problems will be resolved—one way or another—within the conventional standing framework.

Still, it seems fair to say that relative standing will form an important part of the debate. And it should.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on August 18, 2014 at 04:36 PM in Constitutional thoughts | Permalink | Comments (3)

Friday, August 15, 2014

First Amendment repealed in Ferguson, MO

Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.

Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done,  but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.

Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?

Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).

Posted by Howard Wasserman on August 15, 2014 at 09:31 AM in Constitutional thoughts, Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (2)

Wednesday, August 13, 2014

Social and Legal Prejudice in Runyon v. United States

Runyon v. United States is a pending capital case in which the defendant has filed for cert and the United States sought eleven extensions of time before filing its brief in opposition earlier this month. As Amy Howe observed on SCOTUSBlog, the government’s highly unusual series of extensions delayed the Court’s consideration for almost a year.

Runyon is notable in part because it involves the interaction of prejudice in two senses—social and legal. In other words, Runyon asks whether prejudice in the sense of legal injury resulted from the government’s use of prejudice in the sense of social stereotypes.

The defendant in Runyon was convicted of performing murder for hire, and his cert petition raises questions concerning harmless error and cumulative error. During the penalty phase, the defendant sought to establish, as a mitigating circumstance, that the people who hired him to commit the murder were equally culpable and would not be sentenced to death. To rebut that argument, the government showed jurors a video of the defendant's interrogation in which the defendant failed to admit his role in the offense. However, the lengthy interrogation video also included numerous objectionable statements on the part of the police. Here are a few examples, all taken from the petition for cert:

  • “You know, if you’re an honorable Asian man and your integrity is intact and you have any respect for anybody at all, then you’ll do the right thing today, okay?”
  • “If you asked God for forgiveness, do you believe that He’ll forgive you for that? You can repent your sins, can’t you?”
  • “But don’t let me walk out of that, that door right there thinking that you’re some piece of shit that murdered a U.S. naval officer and didn’t have enough respect to man up when he — when it was done.”
  • “[W]hat do you think twelve reasonable people would, uh, conclude from that? . . . [T]hey’re going to make you out to be a monster, man.”

The interrogation video was meant to go to whether the defendant had cooperated and shown remorse, as compared with the other defendants. But the interrogators' remarks insinuated clearly improper reasons for treating this defendant differently from the others.  These improper reasons could have shaped the jury's perceptions of the defendant and his failure to confess. While none of these statements drew a specific objection, the trial court directed the jury not to rely on the officers’ statements and required the jurors to sign a statement that race and religion didn’t figure into their reasoning.

The Fourth Circuit affirmed the convictions in Runyon while noting that the interrogation statements were “stereotyping” and “insulting” and should not have been presented to the jury. But the court didn’t think that the capital sentence was a close call. After noting that the defendant had arguably forfeited any objection to the offensive remarks, the court applied regular harmless error analysis and found harmlessness. In its opposition brief, the government argues in part that the case is a poor vehicle because plain error review should apply—even though the Fourth Circuit chose not to rely on it.

One aspect of Runyon calls to mind the harmless-error petition that the Court granted but then dismissed in Vasquez v. United States. During the 2012 Vasquez oral argument, the Justices pressed counsel on whether harmlessness should be tested by inquiring into the thought processes of the actual jury, as opposed to a hypothetical “rational” jury. Most of the justices seemed to think that the answer was yes, despite the government’s hesitancy on that point. As compared with VasquezRunyon’s question presented is better framed to reach the actual/hypothetical jury issue. According to the defendant, the court of appeals in Runyon failed to account for the actual jury’s signals that the case was close. For example, the jury declined to recommend capital punishment on all capital charges.

Another, related aspect of Runyon calls to mind Justice Sotomayor’s 2013 statement respecting denial of cert in Calhoun v. United States. The central fact in Calhoun was that the prosecutor had made the following remark to the jury: “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?" This appeal to racial guilt, Sotomayor made clear, was unacceptable. Still, Sotomayor “did not disagree” with the Court’s denial of cert in light of the case's vehicle problems: the defendant had forfeited any claim of prejudice or structural error, and the defendant’s claim was reviewable only for plain error. Sotomayor concluded her statement with these words: “I hope never to see a case like this again.” A similar sentiment may explain why the government sought so many extensions in Runyon, despite having already taken a position on the question presented in Vasquez.

It will be interesting to see whether the Court views Runyon as a more certworthy version of either Vasquez or Calhoun—or both.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on August 13, 2014 at 04:57 PM in Constitutional thoughts | Permalink | Comments (0)

Tuesday, August 12, 2014

Jurisdictional elements and merits

Here is a Ninth Circuit decision properly analyzing jurisdictionality in a Lanham Act case. The court held that the requirement that a trademark be "use[d] in commerce" is an element of the trademark claim and does not go to the court's jurisdiction over the claim. Relying on Arbaugh, the court held that the substantive provisions of the Lanham Act do not contain jurisdictional language and the actual jurisdictional grants for trademark cases (§ 1331 and 15 U.S.C. § 1121(a), along with 28 U.S.C. § 1338, which the court did not mention) do not use this language. Thus, "use in commerce" goes to the merits, not jurisdiction. This is spot-on analysis and the court made relatively light work of the arguments.

The court did not discuss it in these terms, but this case demonstrates the confusion created by so-called jurisdictional elements. The "use in commerce" element hooks the Lanham Act into Congress' Commerce power--Congress lacks the power (the jurisdiction) under that clause to regulate trademarks not used in interstate commerce. The "jurisdiction" here is Congress' prescriptive or legislative jurisdiction, its authority to prescribe legal rules to regulate real-world conduct. An internal limitation on congressional legislative power--like an external limitation such as the First Amendment ministerial exemption--constitutionally limits the scope of the legal rule and thus the rights granted and duties imposed under that rule.

But jurisdictional elements write that prescriptive-jurisdictional limitation into the statute, and the statutory claim, itself. Rather than absence of "use in commerce" rendering the statute unconstitutional as applied (as with a minister's ADA claim against a church), the failure of the jurisdictional element means the statute by its terms does not "reach" the conduct at issue. A Lanham Act plaintiff must prove "use in commerce" just as it must prove "reproduction, counterfeit, copy, or colorable imitation of a registered mark;" both go to whether there is an existing legal rule imposing liability on these defendants on the real-world facts at issue and thus whether the plaintiff's infringement claim has merit. In that regard, a jurisdictional element functions the same as an ordinary element of a statute. The jurisdictional element is there for a different reason than an ordinary element, but its role is the same--it controls the "reach" of the statute, which is uniformly understood as a merits concern. And it has nothing to do with whether the court has adjudicative jurisdiction to hear and resolve a claim because it is "arising under" that statute.

Posted by Howard Wasserman on August 12, 2014 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Monday, August 11, 2014

Informal survey

Informal survey time (I raised this on some listservs last week and wanted to try a different audience):

If you were to make a short list of five (5) of the most important free speech opinions (majority, concurrence, or dissent), what would they be? I want to drop a footnote in the intro of an article, so I welcome input. I am looking for both rhetorical and practical power, as well as rhetorical and practical effect in the development of modern, speech-protective free speech jurisprudence. Note that since I am focusing on the development of the broad free speech protection we have in the U.S., I am primarily looking for opinions that sided with the speech claimant.

My tentative list (in no particular order): 1) Holmes dissent in Abrams; 2) Brandeis concurrence in Whitney; 3) Barnette; 4) Sullivan; 5) Cohen v. California (I originally had Texas v. Johnson or Reno v. ACLU here, but people convinced me that Cohen is more significant).

Have at it.

Posted by Howard Wasserman on August 11, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, August 07, 2014

"Freedom of Religion and the Freedom of the Church"

Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church."  (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.)  Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously).  Here's a bit:

Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.”[4] However, he continued, “it has again taken center stage.” It seems that it has.[5] Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”[6]

But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?

 

Posted by Rick Garnett on August 7, 2014 at 09:37 AM in Constitutional thoughts, Religion, Rick Hills | Permalink | Comments (0)

Saturday, July 19, 2014

Chokeholds and clearly established rights

This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).

I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:

1) What will the court do with the video on summary judgment? As I wrote in a  draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.

2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).

3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).

Posted by Howard Wasserman on July 19, 2014 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Thursday, July 17, 2014

Marriage equality in Florida

Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.

Several quick thoughts:

1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.

2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.

3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.

4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?

Posted by Howard Wasserman on July 17, 2014 at 04:05 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Wednesday, July 16, 2014

What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision

The indispensable Doug "not that subway fugitive" Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment's ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven't been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything's possible. I am after all getting older.)

Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won't stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.

Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:

"Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years."

"Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide,
or causes other than execution by the State of California."

"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts."  But of those 49, the "State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time." 

A few points here.

First, what's left unsaid by Judge Carney, so far as I can tell, is whether the state has abandoned efforts to resentence to death the remaining 39, or accepts that 39 out of the 81 people originally sentenced to death should in fact not be sentenced to death.  If the state is committed to resentencing the 39 to the death penalty, then it's not clear that the facts adduced here have much traction; all they show is that the system is hyper vigilant at the post-conviction review stage.  On the flip side, if the state basically concedes that 39 out of the 81 people should not or cannot be resentenced to death, then we have an almost 50% error rate in the initial distribution of the death penalty. As a purely prudential/consequentialist matter, that error rate strikes me as quite worrisome (independent of my constitutional or retributivist concerns). Indeed, unless such error rates were valuable in creating a higher deterrence through random terror effect, which I doubt, I suspect if I were the DP czar, I would be seriously concerned that the death penalty cases are a complete regulatory failure. Perhaps it's time to re-read Robert Morgenthau's famous oped about why prosecutors with resource constraints and a crime-fighting streak should oppose the death penalty

Second, if 81 people have had a decision on the merits and exhausted all judicial review, it does seem a puzzle as to why there's an ostensible delay of YEARS between those decisions and the executions. Maybe the explanation is in the appendix that I didn't see; but in its opinion, the court notes that California hasn't executed anyone since 2006. Are there delays resulting from California's executioners waiting for the clemency process to be exhausted in addition to the post-conviction judicial review? Wouldn't that be worth knowing about?

Third, the defendant, Mr. Jones, and the Court here seem to think that only a random few people are selected for execution. If that were true, I could see why the constitution should step in and eliminate that randomness in distribution.  But I'm not convinced yet that the source of delay is inherently random or arbitrary (terms the court conflates here).  I guess I take issue with the claim that the Court offers: "a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose." I could well imagine that a rational legislature or jury would in fact understand their votes to constitute a view to execute subject to stringent review out of a desire to cause death to the defendant but only as long as and once the process has run out. Flipping it around as the fed Cal court does may seem rhetorically nifty, but it's not exactly a model of intellectual generosity to citizens and officials who disagree in good faith.

Fourth, while I understand and accept the claim advanced that deterrence is undermined by delay, it's not the case that harm prevention generally is necessarily undermined by procedural delay. Confidence in the system's accuracy or fairness in a death penalty tribunal might be thought to bolster compliance--this is the mantra that Bentham(!), Tom Tyler and Paul Robinson have all adopted. Inasmuch as the delays bolster confidence and compliance generally, which I take to be a fragile but possible relationship, then the part of the court's opinion addressing deterrence moves too quickly, in part b/c it makes the same mistake Eighth Amendment caselaw makes too frequently: by quickly conflating deterrence with harm prevention generally.

Fourth, the retribution analysis by the court (p21-22) also moves too quickly. I don't accept as persuasive the invocation of authority (citations to Rehnquist and Powell and Fletcher) as opposed to argument the claim that retribution is undermined by delay attributable to post-conviction review. The court takes that proposition for granted but it again conflates retributive justice with satisfaction of communal preferences for condemnation.  Moreover, it assumes that the wrong against retributive justice ideals associated with executing a few of all those sentenced to death is the same regardless of whether the reason is because of the drag of post-conviction review or because someone is selected for execution based on his race (or, hypothetically, the race of his victim).  But I don't think that's right at all. 

In short, if we accept arguendo the controversial premise that capital punishment is consistent with retributive justice (a premise I reject), it doesn't follow that delay attributable to judicial review of the underlying accuracy or respect for the defendant's constitutional rights is antithetical to retributive justice. Indeed, the respect for accuracy manifested by an exhausting (albeit exasperating) forensic process could reasonably be thought to bolster the retributive value of the execution. 

 I don't want to signal an overly skeptical posture; I'm still unsure about what my views are here. I support striking down the d/p on Eighth Amendment grounds generally but for the reasons I've suggested, I'm less certain this court's arguments are the right arguments to bolster that constitutional claim. Regardless, I hope the dispute has the effect of spurring  proper funding for capital appeals and post-conviction review so the delays are less likely to materialize. [Of course, I agree with Doug Berman's general view that the d/p is a sideshow to the more mundane and pernicious and pervasive problems with noncapital punishment.] That said, the claim that "justice" delayed is no justice at all, and indeed, unconstititional, needs more work -- so it seems to me.  I'm not defending the claim that the delays are worthwhile, but I don't see how this opinion explains adequately how the delays harm the defendant once a) the defendant wants to benefit from the procedural wrangle, and b) the public has an interest in ensuring that justice appears to be done properly, ie, with appropriate judicial or executive clemency review for severe sentences.

 

Posted by Dan Markel on July 16, 2014 at 07:16 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (8)

Two (more) op-eds on Hobby Lobby

Ann Lipton has nicely captured the zeitgeist with the notion that "there is something of an obligation for all corporate law bloggers to weigh in on Hobby Lobby."  Today, for example, the Conglomerate is starting up on its second Hobby Lobby symposium.  So it is with some trepidation that I highlight for you two additional pieces on that speak to this case once again.  First, Brett McDonnell defends the decision from a progressive perspective in "Ideological Blind Spots: The Left on Hobby Lobby," appearing in the Minneapolis Star-Tribune.  Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context.  The op-ed also recounts the history of RFRA, which overturned Justice Scalia's Smith opinion, and points out that progressives have traditionally been defenders of religious liberty and toleration.  The op-ed has (at this point in time) 716 comments, which kind of puts us blawgs to shame.

Second, Grant Hayden and I have penned "Who Controls Corporate Culture?", which appears this morning in the St. Louis Post-Dispatch.  Although not written with this intention, it is actually a nice complement/rejoinder to Brett's piece.  It argues that folks are riled up about Hobby Lobby in part because the company's 13,000 employees had no role in making the decision.  If corporations are going to be according political and religious rights, we argue, the employees need a voice in choosing how to exercise them, particularly when the primary impact is on employees.

Posted by Matt Bodie on July 16, 2014 at 10:57 AM in Constitutional thoughts, Corporate, Current Affairs, Workplace Law | Permalink | Comments (3)

Thursday, July 03, 2014

Federalism, RFRA, and Free Exercise in the next Hobby Lobby

Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.

A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.

Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.

Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.

On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.

Posted by Howard Wasserman on July 3, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Sunday, June 29, 2014

Principles and political preferences in the First Amendment

Implicit in these comments is the suggestion that conservatives on SCOTUS are using the First Amendment as a "weapon" to further the conservative political agenda, a "trojan horse" swallowing every other right we cherish. Thus, supposedly speech-protective decisions such as McCullen, McCutcheon, and, everyone assumes, Quinn are wrong, if not illegitimate.

Some of the cricitism is fair, particularly as to Justice Alito, who is highly selective as to the free speech interests he votes in favor of and when. Emily Bazelon correctly points out the striking difference between how solicitous Alito was for the emotional fragility of funeral-goers faced with unwanted offensive speech in his dissent in Snyder v. Phelps, which did not carry over to women seeking access to reproductive health care. But this has always been true of Alito on many issues. During his confirmation hearings, he spoke at length about the difficulties his Italian-immigrant family suffered, although he has rarely voted in the direction of ethnic minorities dealing with, for example, voter suppression. On the other hand, the criticism is less warranted as to Justice Kennedy and, it increasingly appears, the Chief.

In any event, does that inconsistency mean the decisions are wrong? In the case of McCullen and, to hit the big one, Citizens United, I (and at least a few other people) would say no, as a matter of First Amendment principle. Alternatively, can we hurl the same inconsistency criticism at these critics, who are "breaking up" with the First Amendment because it now is being used to protect speakers and interests that they don't like? Alito is striking a balance among "cherished" rights, just as these critics are. But Sam Alito strikes the balance differently than Emily Bazelon or Dahlia Lithwick. Fair enough. But neither should be deemed more legitimate than the other.

Posted by Howard Wasserman on June 29, 2014 at 05:15 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (2)