Tuesday, February 24, 2015
Another twist in the march to marriage equality
Two weeks ago, Judge Granade enjoined Mobile Probate Judge Don Davis to stop enforcing the state's SSM ban and to begin issuing marriage licenses to same-sex couples. Last week, Davis refused to grant a second-parent adoption to Cari Searcy and Kimberly McKeand, the plaintiffs in the first action in which Judge Granade invalidated the state ban. Davis entered an interlocutory decree granting Searcy temporary parental rights, but declining to issue a final adoption order until after SCOTUS decides the Marriage Cases this spring. Searcy and McKeand have filed a new action against Davis, seeking not only an injunction, but also compensatory and punitive damages (I have not been able to find the complaint).
First, this illustrates the importance of determining the true and proper scope of an injunction. In Strawser, the Court enjoined Davis from enforcing the SSM ban and to issue licenses to Strawser and some other named plaintiffs. But that is the limit of the court order. It does not and cannot apply to enforcing (or not) the SSM ban as to anyone else or in any other context. Thus, the argument that Davis is bound by any court order to grant this adoption is wrong. Otherwise, we have, at most, persuasive authority that the SSM ban is unconstitutional, nothing more.
Second, this new lawsuit seems to have other problems. Adoption decisions by probate judges, unlike decisions to grant or deny marriage licenses, appear to be judicial in nature, involving petitions, hearings, evidence, interlocutory and final orders, and appeals. This raises a couple of issues. First, if this is a judicial act, Davis is absolutely immune from damages--Davis was named in Searcy's original action and this was one argument he made in his motion to dismiss. And if Davis was acting in a judicial capacity, then under § 1983 the plaintiffs at this point can only obtain a declaratory judgment but not an injunction. Second, if this is a judicial act, this action should be barred by Rooker-Feldman--Searcy and McKeand are state court losers (they did not get the remedy they wanted in state court) and functionally are asking the federal court to reverse the state court decision. This argument is a bit weaker within the Eleventh Circuit, as there is some district court caselaw that Rooker-Feldman only applies to final state court decisions but not interlocutory orders. Still, if Davis was wrong to deny the adoption in a state judicial proceeding, the plaintiff's move is to appeal, not to run to federal court.
Update: Thanks to commenter Edward Still for sharing the Complaint, which is as bad as I thought. It asks for an injunction against a judge without having gotten a declaratory judgment; it asks for damages and attorney's fees against a judge for what the complaint itself makes clear is a judicial act; and it asks the district court to "strike" an order of a state-court judge and to command that state judge to grant parties relief. I am not big on Rule 11 sanctions against civil rights plaintiffs, but this one asks for so much that is so obviously legally barred by clear statutory language as to be a bit ridiculous.
Friday, February 20, 2015
Levels of Generality in Means/Ends Analysis
It is a familiar lesson of U.S. constitutional doctrine that the outputs of decision rules will sometimes depend on the level of generality with which their inputs are defined. This theme is perhaps most evident in substantive due process doctrine: Defining a liberty interest in broad terms can increase the likelihood of its qualifying as “fundamental,” just as defining the interest in narrow terms can reduce that likelihood. But generality levels can make a difference in other areas of the law as well. A “right” may be more likely to qualify as “clearly established” for purposes of a qualified immunity defense if we characterize that right broadly rather than narrowly, a “matter” may be more likely to qualify as “of a public concern” when the matter itself is defined abstractly rather than specifically, a “power” may be more likely to qualify as “great substantive and independent” (and hence not implied by the enumerated powers of Article I) if the power is described in general rather than specific terms, and so forth. In these and other contexts, the outcome of a doctrinal inquiry can depend not just on the content of its evaluative criteria (e.g., what does it mean for a right to be “fundamental”?, what matters are and are not of “public concern”?, what does it mean for a power to be “great substantive and independent”?, etc.), but also on how one defines/describes/characterizes the objects to which those criteria apply (e.g., what is the “liberty interest” whose “fundamentality” is at issue, what is the “matter” whose “public-concerned-ness” we are evaluating?, what is the “power” whose “greatness”/“independence” we are measuring?, etc.).
I’d originally figured that this insight applied with equal force to the various forms of means/ends analysis that pervade constitutional law. Means/ends analysis, after all, requires some estimation of the strength of a “government interest” said to justify a constitutionally suspect enactment, and the strength of that interest will in turn depend on the level of generality with which we define it. Think, for instance, of Holder v. Humanitarian Law Project. There the Court rejected an as-applied First Amendment challenge to the federal “material support” statute, brought by plaintiffs “seek[ing] to facilitate only the lawful, nonviolent purposes” of foreign groups designated to be terrorist organizations. One can define the government interest in HLP at different levels of generality. From most to least specific, the interest might be characterized as that of (1) “cutting off support for the lawful, nonviolent activities of foreign organizations designated as terrorist groups,” (2) “undermining foreign organizations designated to be terrorist groups,” (3) “undermining foreign terrorist groups,” (4) “combating terrorism,” or (5) “promoting national security,” with a bunch of intermediate options in between. And as the generality-level of the government interest increases, so too should the ease of demonstrating that interest’s overall importance. (All else equal, for instance, the government will have less difficulty in highlighting the vital importance of “national security” than that of “cutting off support for the lawful, nonviolent activities of foreign organizations designated to be terrorist groups.”) In that sense, means/ends analysis does indeed seem to be at least somewhat sensitive to changes in generality-levels, with increased generality levels yielding increased odds of a government-friendly result.
But things turn out not to be so simple, as something interesting happens when we proceed to ask whether the law is sufficiently closely related to the government interest we have identified. Here, we encounter something akin to the opposite relationship between generality-levels and justificatory ease: the more generally we have characterized the government interest, the more difficult it will become to show the requisite means/ends fit. It would not be difficult to show that the material support statute is “necessary to further” the government’s interest in “cutting off support for the lawful, nonviolent activities of foreign organizations designated as terrorist groups”—that objective, after all, is precisely what the material support statute purports to pursue. But would the law count as necessary to further the more generally defined interest in “promoting national security”? Maybe, but maybe not. The problem is that the government can “promote national security” in many more possible ways than it can “cut off support for the lawful, nonviolent activities of foreign organizations designated to be terrorist groups.” And the wider the range of potential means of achieving an interest, the more likely it becomes that a “less restrictive” or “less discriminatory” means will emerge from the heap—thus demonstrating that the chosen means was fatally over- or underinclusive with respect to the interest in question.
In other words, broadening our characterization of the government interest may make things easier for the government (and more difficult for the challengers) when evaluating the strength of the interest, but it will then make things more difficult for the government (and easier for the challengers) when evaluating the degree of fit between the interest and a challenged law.
That’s not to say that the government can’t ever win an argument about “means” where the relevant “end” has been defined in highly general terms. Indeed, the government did end up winning in HLP, notwithstanding the Court’s decision to characterize the government interest broadly rather than narrowly (the Court went with Option #4, “combating terrorism”). Rather, the point is that because it focuses attention on both means and ends, means/ends analysis may manage to mitigate the influence of generality-levels on the ultimate outcome of the test. One can ratchet-up the generality level of the government interest to assist in justifying the ends, but one must then pay a price when attempting to justify the means. And one can ratchet-down the generality level to assist in justifying the means, but one must then pay a price when attempting to justify the ends. As long as one maintains the same description of the government interest throughout the analysis, then there should be some level of equilibration across the two prongs of the test.
Now before anyone starts publishing banner headlines about this observation, let me identify a few grounds for skepticism. The hypothesis I've offered may turn out to be (a) false or (b) trivial:
- Why the hypothesis may be false: Even if everything I've said is right, it still might be true that the generality levels matter more at the first step of the inquiry than at the second. In other words, the chosen generality-level of the government interest may exert a major positive influence on whether or not that interest counts as “compelling,” “important,” “legitimate,” or what have you, while exerting only a minor negative influence on whether there is a sufficiently close fit between the interest itself and the law under review. If that is true, then means/ends analysis would remain highly susceptible to manipulation via characterizations of the relevant government interest, with the positive effects of high-generality at the “ends” stage of the inquiry drowning out its negative effects at the “means” stage of the inquiry.
- Why the hypothesis may be trivial: I can imagine two arguments to this effect—one grounded in cynicism and the other grounded in optimism, with both concerning the overall constraining effect of doctrinal rules.
- The cynic’s argument would maintain that even if means/ends analysis is not sensitive to fluctuations in the generality-level of a government interest, means/ends analysis as a whole remains malleable, manipulable, and ultimately non-constraining in a myriad other ways. A judge who is dead-set on upholding a law subject to strict scrutiny (or striking down a law subject to rational basis review) can always find always find the arguments necessary to justify the desired means/ends result, no matter what how generally or non-generally the interest has been defined. So the cynic would say, it doesn't much matter whether my hypothesis is right or wrong. Even if it is right, the outcomes will be what they will be because judges can and will manipulate other parts of the means/ends test to go where they want to go.
- The optimist’s argument would focus instead on what has thus far been an unstated (and undefended) premise of my argument—namely, that choices among generality-levels are to some extent arbitrary and difficult to predict ex ante. But if that point turns out to be false—if, in other words, there does exist a coherent, predictable, and defensible way of identifying the operative generality level of a given constitutional input, then any “equilibrating” or “self-regulating” process built-in to means/ends analysis would be of only marginal significance. Either way, the optimist would maintain, means/ends analysis would operate in a principled fashion—either levels of generality matter, in which case means/ends analysis is influenced by a principled legal choice, or levels of generality do not matter, in which case means/ends analysis will still be influenced by other principled legal choices.
Wednesday, February 18, 2015
Collins on Terrorist's Veto
Great post from Ron Collins at CoOp on the need for democratic society's to stand firm in the face of the terrorist veto, which he calls the "savage cousin of the heckler's veto."
Tuesday, February 17, 2015
And more crazy in Alabama
With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.
The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.
First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.
Second, as has frequently been the case here, the big question is one of Alabama law--how much control the attorney general has over privately initiated litigation on behalf of the State. The Attorney General can seize control over litigation initiated as the state by local prosecutors and other executive officers; it is less clear whether he can do the same when suit is brought by private actors. The plaintiffs argue for a a broad understanding of FRCP 65 as to the scope of injunctions.
Third, as predicted, the state tries to play the abstention card. Also as predicted, they screwed it up. The state tries to argue that the Anti-Injunction Act bars the federal court from enjoining this pending state proceeding, emphasizing the narrowness of the statute's exceptions. But one exception is when Congress expressly authorizes an injunction by statute, which it did in enacting § 1983. Strawser and all other actions challenging SSM bans are § 1983 actions, so the AIA imposes no limit on the injunction here. The state also tries to argue Rooker-Feldman, a doctrine which also has no application here, since the plaintiffs are not state-court losers or even parties to the state court action.
Sunday, February 15, 2015
If possible, Alabama could get more confusing
Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.
So how will this play out and what effect will it have?
This sort of mandamus action has been attempted before, in a slightly different context. In Oklahoma and South Carolina, state attorneys general sought to mandamus individual county clerks who intended to issue licenses in light of a federal appeals court decision invalidating SSM bans in other states. These clerks were under no federal injunction and there had been no decision addressing bans in their own states. But now-binding Fourteenth Amendment precedent made legally certain what would happen in any federal action challenging those bans, so the clerks were simply avoiding that lawsuit and injunction. The mandamus was intended to make the clerks wait and not to issue licenses unless and until compelled to do so.
In Alabama, probate judges other than Don Davis of Mobile who are issuing marriage licenses are doing so on the persuasive force of the district decision, but without an injunction. They, too, are trying to avoid a lawsuit, one whose outcome is both more and less obvious than in the other two cases. Here, there is only persuasive, and not binding, federal precedent, although it involves a declaration as to this state's marriage ban.
The mandamus action raises a whole series of state-law questions. One is whether these organizations have standing, as their only injury seems to be that probate judges are doing something the petitioners don't like. It also would require the court to conclude that a probate judge is forbidden (not simply not obligated, forbidden) from adhering to district court precedent. It is not clear whether the petition also will require the court to decide the constitutionality of its marriage ban, which would be the only federal issue in play; otherwise, any decision is insulated from SCOTUS review.
The mandamus petitioners rely on one fundamental misunderstanding--that the only court of competent jurisdiction to declare the state's marriage-equality ban unconstitutional is SCOTUS. This erroneously minimizes the effect of lower-court precedent. While only SCOTUS precedent binds state courts, here probate judges are performing administrative functions; they can be sued in federal court, where circuit court precedent will be binding and district court precedent is at least persuasive. Again, I really believe the question of federal precedent in state court is beside the point. And in taking this step, petitioners misunderstand that point.
Finally, if the mandamus issues, the real effect will depend on how broad the order is. If it simply applies until a probate judge comes under a federal-court injunction, then its effect is more practical than legal. Formally, no probate judge has any direct legal obligation to issue a license until sued in federal court and enjoined; the mandamus would simply provide a court order emphasizing that reality. It would force every couple seeking a license to sue every probate judge individually, rather than allowing couples to gain the benefit of persuasive authority. This is inconvenient and inefficient (although not costly, since plaintiffs should get attorney's fees), but not a significant change to the landscape of actual legal obligations. The mandamus also would open the door to the probate judges trying to raise Younger, Rooker-Feldman, Pullman, and Burford in the federal district court; this is what happened in both the Oklahoma and South Carolina cases, although both courts soundly and properly rejected those arguments.
On the other hand, if the mandamus bars probate judges from issuing any licenses until SCOTUS decides the issue of marriage equality, we have genuine problems. The inevitable federal injunction would set up the very direct conflict and confusion the petitioners purport to be trying to resolve. There actually would be directly conflicting orders--a state mandamus prohibiting every probate judge from issuing a license and a federal injunction commanding a named probate judge to do so.
Thursday, February 12, 2015
Now we have a meaningful federal order
The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.
So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:
1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.
2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.
3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.
4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.
Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2. In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.
Bazelon sort-of defends Roy Moore
Emily Bazelon makes a sort-of defense of Roy Moore in The New York Times Magazine, turning out many of the arguments I have been making here.
Wednesday, February 11, 2015
Dorf on Roy Moore and Alabama
Mike Dorf's take on Roy Moore and the events in Alabama. Mike concludes "that while Chief Justice Moore's memo was a lawyerly piece of work, it ultimately does not advance his (distasteful) cause. It's at best a cover for his Faubusian agenda." He argues that Moore ultimately was playing a losing hand because couples always could sue the probate judges in federal court (because, as I have argued, issuing the licenses is not a judicial function). In playing it, therefore, Moore was simply trying to play Orval Faubus (or George Wallace, to keep it in the same retrograde state).
I agree that Moore likely is doing all this for bigoted reasons. But that is not necessarily established by the fact that the probate judges could be sued and enjoined. I never read Moore as denying that or denying that this would change the analysis and their obligations (certainly some probate judges recognized as much). Moreover, what difference should it make that Moore's position will ultimately prove a loser? The question is whether it is wrong to force the plaintiffs go through the process of establishing their legal rights and of not departing your preferred position (non-issuance) unless formally compelled to do so, even when you know exactly how it will play out (and even when it likely will cost the taxpayers attorney's fees).
There is an obvious comparison between Alabama and Florida. In both states, officials charged with issuing licenses (county clerks in Florida, probate judges in Alabama) took the position that they were not bound by the initial district court order or opinion invalidating the state ban. And in both, the federal court issued a "clarification" that the earlier injunction did not compel any non-parties to issue licenses, but the Constitution did (whatever that means). But then they part ways. In Florida, the county clerks folded their tents following the clarifying order and began issuing licenses across the state,* although I they were not legally compelled to do so by that clarification and did so only as a strategic choice of avoiding being sued. But the Alabama probate judges, and Moore, have not done the same; unlike the Florida clerks, they seem intent on making the plaintiffs take the steps of obtaining those individualized federal injunctions.
* Mostly. Clerks in several counties avoided having to issue licenses to same-sex couples by ceasing issuing licenses at all.
So two questions: 1) Why is Alabama playing out differently. Is it Moore and other officials playing Wallace/Faubus by demanding formal legal processes? 2) Is it wrong of them to demand those processes be followed (and by that I mean not merely less preferable or more expensive, but morally or legally wrong)?
Tuesday, February 10, 2015
The irony of trying to have it both ways
Much of what is happening with same-sex marriage in Alabama right now is a product of a hierarchical and geographically dispersed judiciary. The district courts hear cases first and may decide quickly, but the decision (beyond the parties themselves) has limited precedential value. The courts of appeals and SCOTUS create sweeping binding precedent, but it takes longer to get those decisions.
Had the Eleventh Circuit or SCOTUS ruled that the Fourteenth Amendment prohibits same-sex marriage bans, the obligations of state officials would be clearer. It would be certain that any district court would order them to issue the license because the precedent would be binding and that to not issue licenses would subject them to contempt. It also would be certain they would be on the hook for attorney's fees. And they may even be on the hook for damages, because the law would be clearly established. But we are still early in the process in Alabama, so we only have a persuasive-but-not-binding opinion from a district court. And we see what we would expect--it is persuading some actors, not persuading others; when lawsuits start coming, it may persuade some district courts and not persuade others.
In the short term, of course, this may give us Swiss cheese--one report this morning said 16 out of 67 counties are issuing licenses. Uniformity within the state comes with that binding precedent from the reviewing court. But it takes time.
There is a way to avoid Swiss cheese, of course: Have the district court decision and order stayed pending appeal. Then everyone will be able to marry at the same time--once the reviewing court provides binding precedent that same-sex marriage bans are invalid, after which everyone is bound. Of course, no one on the pro-marriage equality side wants to wait. I would guess everyone would strongly prefer marriages in 16 counties to marriages in none.
But that is the choice. You can have marriages begin without binding precedent, but not every official or court will go along with the precedent, so not everyone will gain the benefit of it. Or you can get uniformity from the eventual binding precedent so that everyone will be bound and everyone will benefit, but you have to wait. You cannot get both. And while frustrating, it is wrong to attribute this procedural reality to malfeasance by state officials.
And the media does not help
Most counties in Alabama were not issuing licenses as of yesterday, not improperly so as a matter of process. But you would not know it from the media, with headlines such as Most Alabama Counties Defy Feds by Blocking Gay Marriage (ABC News, complete with video of George Wallace in the doorway) and Judicial Defiance in Alabama: Same-sex marriage begins, but most counties refuse (Wash. Post); The Supreme Court Refused to Stop Gay Marriage in Alabama, But the State's Governor and Chief Justice Are Refusing to Listen (TNR); and Alabama's Roy Moore Defies Federal Order, Refuses to Allow Gay Marriage (Slate's Mark Joseph Stern, who can't help himself, calling it a "stunning display of defiance against the judiciary").
Monday, February 09, 2015
Measels--An Update and Some Constitutional Issues
So things are moving fast on the Measles front. Today I’m going to do a quick overview of mandatory vaccination for childhood disease and later this week what it tells us about our efforts to prepare for a bioterrorism event (spoiler, nothing good).
The measles outbreak has spread now to 17 states and the District of Columbia. And things are worse than they seem. The current “outbreak” (the number of cases that can be traced back to the original Disneyland exposure) signals how many people in the U.S. lack immunity not just to measles, but most likely to the other two deadly diseases which the MMR vaccine protects against—Mumps and Rubella (German Measles). For an overview of the damage done by Andrew Wakefield’s now discredited article see here. See how Megyn Kelly explains it here. Last year I gathered some resources specific to young adults, and they are here.
Rubella poses a serious risk to developing fetuses. According to the CDC A pregnant woman has “at least a 20% chance of damage to the fetus if….infected early in pregnancy.” This damage is called CRS-congenital rubella syndrome. Warning-you may want to take my word that this potential damage is serious rather than read this very descriptive CDC report . Mumps is also quite serious. Again a warning, it may be enough to know that the virus causes swelling in various body parts and can be a contributing factor to infertility or low fertility in a small but real percentage of men who become infected.
Moreover, it seems unlikely that MMR is the only vaccine these children lack. They are also at risk for polio, diphtheria, tetanus, whooping cough, chickenpox, hepatitis B(and no, it’s not just a sexually transmitted disease),meningococcal disease , and something really unpleasant for which there is now a vaccine—rotavirus. Here’s the list.
The public focus has turned very quickly to law and ending vaccination exemptions, see here and here, —so these are some resources if this comes up. Top legal experts like Professor Lawrence O. Gostin are making clear, there is no Constitutional requirement to exempt anyone from mandatory vaccination in the face of a credible threat to the public’s health. The Supreme Court in held Jacobson v. Massachusetts that the individual states have full authority to pass mandatory vaccination laws and that they are not obligated to give exemptions for reasons of philosophy or preference. For more background on the Constitutional issues see Prof. Parmet here, here, and here and Professor Edward P. Richards. The situation is a closer call when it comes to religion, but not much. As Justice Ginsberg points out in her dissenting opinion in Burwell v. Hobby Lobby, “Religious objections to immunization programs are not hypothetical.” 134 S.Ct. 2751, 2805, n. 31 (2014). And in terms of an adult’s right to claim a religious exemption from medical care for a minor, the law is if anything clearer. Even when making a “martyr” of oneself doesn’t pose a threat to others, a state still has the power to intervene when the religious belief is claimed on behalf of a minor. Here’s a helpful overview by the Congressional Research Service about vaccination laws in the US and here's one that looks at laws overseas.You may be interested to know that the CDC is tracing several outbreaks at the moment including Listeria monocytogenes from caramel apples and sprouts
No contempt for you
Motion for Contempt denied--as expected and as appropriate. Judge Granade emphasized that Judge Davis is not a party. And she pointed out that her clarification order "noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law." In other words, plaintiffs' lawyers, pay attention to what the judge tells you.
Same-sex marriage comes to Alabama
Read the whole thing for reports and photos of same-sex marriages in Alabama (my favorite is the two African-American women posing with the white male judge who married them in Birmingham--maybe we have come some ways.. Roy Moore's Sunday gambit had mixed results; marriages are taking place throughout the state, although not in particular counties. Lawyers are preparing to file an action in federal court against the probate judge in Mobile asking for an injunction--exactly how this should play out.
[Update: Or not. The lawyers for a couple actually filed a Motion for Contempt and Immediate Relief against Judge Don Davis, probate judge in Mobile. But since Davis is not a party to the original action or subject to the original injunction, he cannot be held in contempt by this judge. All they had to do was file a new action, which would have been assigned to Judge Granade for a new preliminary injunction. This is insane.]
[One More: Marty Lederman reminds me that Judge Davis was originally a party to the case, but was dismissed with prejudice for reasons I cannot fathom, beyond, again, no one knows what they're doing here. But it is even less possible to hold in contempt a person who was explicitly dismissed from the case.]
SCOTUS this morning denied a stay in Searcy, from which Justices Thomas and Scalia dissented. In response, AG Luther Strange clarified that, while he is barred from enforcing Alabama's ban, he has no power to issue license, and that probate judges should consult their attorneys and associations.
Josh Blackman has some thoughts on Thomas's dissent. I may have more to say later.
Ever looking to escalate, Alabama's Chief Justice Roy Moore has issued an Administrative Order stating:
Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with [Alabama's constitutional and statutory prohibitions on same-sex marriage].
Moore seems to be relying on the fact that no probate judge is subject to Judge Granade's order. So we probably need to read this as implicitly applying "as of Sunday, February 8," but no longer effective when probate judges start getting enjoined by federal district courts on Monday morning.
But Moore's move now has me thinking that commenters to my earlier posts had it right--Moore is the statewide officer who should be named as defendant, with an injunction ordering him to order the state's probate judges to issue licenses. Moore clearly has set himself up as the official with the power to control the enforcement of this particular state law by controlling what state probate judges do, much as California's AG could control county clerks and order them all to issue licenses. Moore concedes he is acting in an administrative capacity. And since this is not a decision arising from actual litigation, neither Younger nor Rooker-Feldman should come into play.
Sunday, February 08, 2015
More from Alabama
This article lays out the competing sides of the dispute pretty well. And it shows how complicated this may be getting and how confused many people are by this area of the law.
First, the article talks about Alabama probate judges being jailed for contempt. This would be utterly impossible--Judge Granade cannot hold in contempt anyone who was not party to the federal action, which is only the state AG. But the story then clarifies that contempt would be for violating a future order against a probate judge sued on Monday for refusing to issue a license, not for violating Judge Granade's original order. Which is right, although unlikely--at least Judge Bowden has stated that he will comply with any injunction that may issue should he be sued.
Second, someone mentions the possibility of "sanctions" against the judges, including attorney's fees. This is one of the things Judge Granade mentioned in her "clarification" order, which block-quotes from Judge Hinkle's similar clarifying order in the Florida case
Calling this a "sanction" is wrong, in that it suggests wrongdoing by the non-issuing judge for which he would be punished. Instead, fees would be a routine part of the injunction action. Under § 1988(b), a prevailing party can recover attorney's fees; this would cover a same-sex couple that sues and obtains an injunction ordering the judge to issue the license because the state SSM ban violates the Fourteenth Amendment.
But the attorney's fee question gets another layer because Alabama has vested the licensing power in judicial officers. Section 1988(b) has an exception--"in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction." This was added in 1996, along with an amendment to § 1983 which limits the availability of injunctions against a "judicial officer for an act or omission taken in such officer’s judicial capacity." The amendments together were intended to limit the effect of the Court's 1984 decision in Pulliam v. Allen, which held that absolute judicial immunity does not extend to injunctions or attorney's fees. The effect is to grant judges absolute immunity from attorney's fees to the same extent they enjoy absoulute immunity from damages--whenever they acted in a judicial capacity or performe a judicial function and did not act in the complete absence of jurisdiction.
It seems pretty clear that issuing a marriage license lacks the hallmarks of a judicial function (adversary proceedings, appellate review, formal processes) and lacks the exercise of the learned judgment that characterizes judicial decisionmaking and justifies judicial immunity. This is a purely ministerial function, such that a judge acts in an executive capacity in performing it. As such, a probate judge refusing to issue a license would not enjoy judicial immunity from an action for damages,* would not fall within the exception to § 1983 regarding injunctions against judges, and would not fall within the exception to § 1988(b) regarding attorney's fees against judges.
* A judge performing an executive function still can claim qualified immunity. And since it is not clearly established in Alabama that a ban on same-sex marriage is unconstitutional, any Alabama probate judge sued next week almost certainly would enjoy qualified immunity.
Attorney's fees play an interesting and unexpected function in a situation like this--they act as a deterrent to recalcitrant state officials. While formally not bound by the district court decision invalidating the SSM, the threat of attorney's fees puts these officials to a choice: 1) Force plaintiffs to go through the additional step of another lawsuit to obtain an (almost-certain-to-issue) injunction at the risk of having to pay fees or 2) Go along with the district court, even if not legally obligated to do so, to avoid fees. Neither option is right or wrong, but § 1988(b) puts a thumb on the scales in favor of the latter.
Saturday, February 07, 2015
Ben Bowden, a probate judge in Covington County, AL, announced on Friday that, on his reading of the law, he will not issue marriage licenses to same-sex couples on Monday, when the stay of a district court injunction expires. Bowden concluded that he the district court decision and injunction invalidating the state's marriage-equality ban is not binding on him, thus he will continue to follow the state-law ban until an appropriate court directs him otherwise.
So the issue now is queued up. A couple wanting a license in Covington County can now sue Judge Bowden for an injunction compelling him to issue the license; the issue is ripe, given Bowden's announcement, and the couple will have standing. Covington County is located in the Southern District, so the case likely will be assigned to Judge Granade (most districts have a rule sending "related cases," often broadly defined, to the same judge); she will quickly issue an order reaffirming her earlier opinion that the marriage-equality ban is unconstitutional, ordering Bowden to issue the license, and refusing to stay the order. And Bowden recognized that he will be sued and insisted that he would "fully comply" with an order in a case to which he is a party.
Obviously, this is not the most efficient way of doing things. But the point is that couples will be able to get their licenses, probably on Monday, in fairly short order.
Thursday, February 05, 2015
Plaut v. Spendthrift Farm and the Sequencing of Constitutional Claims
Plaut v. Spendthrift Farm is a separation-of-powers decision concerning Congress’s (lack of) power to mandate the reopening of final judgments in federal courts. Specifically, the Court in Plaut held that Congress had violated constitutional separation-of-powers requirements by requiring U.S. district courts to reinstate certain federal securities-fraud cases that they had previously dismissed as time-barred. The separation-of-powers issue is interesting in its own right, but I’ve lately found myself wondering about a separate aspect of the opinion—namely, the Court’s justification for its decision not to address an alternative argument concerning the defendants’ due process rights under the Fifth Amendment.
That the Court in Plaut prioritized resolution of one constitutional issue over another is hardly remarkable: Litigants in Supreme Court cases routinely assert alternative constitutional grounds for relief, and the Court very often chooses to focus on one such ground while leaving the resolution of the other constitutional claims for another day. But Plaut is unusual in that the Court offered some explanation as to why it had chosen to sequence one constitutional claim (i.e., the separation of powers claim) ahead of another (i.e., the due process claim). Specifically, as Justice Scalia observed for the Plaut majority, resolution of the separation-of-powers claim would affect only the powers of the federal government, whereas resolution of the due process claim “might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment.” The separation-of-powers claim therefore presented the “narrower ground for adjudication of the constitutional questions in this case,” and that was enough to justify the Court’s decision to “consider it first.”
Let’s call this the “Plaut presumption”: It’s a sort of variation/extension on the constitutional avoidance principles set forth in TVA v. Ashwander—applicable not to cases in which the Court considers both constitutional and nonconstitutional grounds for a holding, but rather to cases in which all of the potential grounds are constitutionally-based. The Plaut presumption, in other words, calls for an intra-constitutional evaluation of narrowness, so as to yield a sequencing of constitutional adjudication that proceeds from most to least narrow.
Now, without looking into it the matter in much depth, I would hazard to guess that the Court has not fully committed itself to the Plaut presumption: In other words, I suspect we could identify several cases (both pre- and post-Plaut) in which the Court has arguably deviated from the course of confronting alternative constitutional arguments in a descending order of narrowness. Still, the Plaut presumption remains at least theoretically interesting in light of its suggestion that one constitutional “ground for adjudication” can qualify as “narrower” than another, which in turn raises the question of how to evaluate the comparative narrowness/breadth of two or more constitutional claims. If, in other words, we were fully committed to the Plaut presumption, what criteria of narrowness should we look to in sequencing the resolution of multiple constitutional questions? Here are a few possibilities:
- Geographic Scope: This is the criterion relied on by the majority in Plaut. The separation-of-powers question counted as narrower than the due process question because the former carried implications for the federal government whereas the latter carried implications for both the federal government and state governments. This criterion is sensible enough on its own terms: all else equal, a holding that binds 51 jurisdictions would seem to be broader than a holding that binds only one such jurisdiction. Still, the “geographic scope” criterion gets us only so far: Lots of cases, for instance, will involve claims that government action violates multiple constitutional rights—rights that apply more or less equally against the federal and state governments. Lots of other cases will involve multiple alternative claims concerning Article I and constitutional structure—claims that have little, if anything, to do with the states. In those sorts of cases, then, geographic scope alone cannot be definitive. What is more, as we will soon see, focusing exclusively on geographic criteria might obscure other important features bearing on the overall narrowness/breadth of a given constitutional claim.
- Political Reversibility: One of the reasons why Ashwander favors the resolution of nonconstitutional over constitutional claims is that the former, unlike the latter, are reversible through political means. At first glance, that logic would seem inapplicable to cases involving only constitutional claims, but on further investigation some possibly useful distinctions might emerge. For example, suppose that plaintiffs have challenged a state law on the ground that it violates dormant Commerce Clause doctrine and also Privileges and Immunities Clause doctrine. Plaut’s agenda-setting logic would likely favor prioritization of the dormant Commerce Clause claim (on the theory that Congress can always override a dormant Commerce Clause decision—but not a P&I decision—with which it disagrees). And to the extent there exist other politically reversible rules of “constitutional common law,” Plaut would favor resolving claims arising under those rules before claims arising under the operative constitutional propositions themselves. (And, of course, if ever a party argued that a law violated, inter alia, the unamendable constitutional guarantee of equal state representation in the Senate, then that claim should be pushed to the very, very back of the line!)
- Means of Compliance: Related to, but ultimately distinct from, the question of political irreversibility is the relative degree of flexibility political actors would have in complying with a given constitutional holding. To take an abstract example, striking down a government program on procedural due process grounds might often afford the government a greater degree of remedial leeway than would striking down the same program on substantive due process grounds: the procedural due process holding would simply limit the means by which the government could deprive an individual of life, liberty, or property, whereas the substantive due process holding would categorically foreclose the government from achieving the deprivation, period. Similarly, perhaps, the Constitution’s equality-related guarantees will provide a “narrower” basis for decision than the Constitution’s substantive-guarantees, in the sense that the former might sometimes permit the government to choose between subjecting either everyone or no one to a form of preferential treatment, whereas the latter will always require the government to pursue the former course. And, we could imagine other more context-specific bases for concluding that different theories of constitutional harm might afford government actors more or less regulatory freedom in the choice of how to alleviate that harm.
- Precedential Impact: Another axis along which to evaluate the relative narrowness of alternative constitutional grounds for relief would relate to the precedential status quo. Suppose that one constitutional claim rests on a rule of constitutional law that is well established and applies clearly to the facts of a case; suppose that an alternative constitutional claim rests on a murkier constitutional standard whose application to the facts is anything but clear. Under these circumstances, we might understand the Plaut presumption to favor the “easy” constitutional claim over the “difficult” constitutional claim, on the theory that resolving the easy claim will merely confirm a point we already understood the applicable precedents to establish, whereas resolving the difficult claim will be more likely to result in a “new” rule of constitutional law that we had not previously encountered. And it would apply even more forcefully in cases presenting a theory of constitutional relief that depend on a reconsideration of previous decisions. (Why go to the trouble of confronting difficult questions about stare decisis, the argument would go, when you could reach the same result without overruling any prior precedents at all.)
Anyway, those are some preliminary thoughts as to how someone fully committed to the Plaut presumption might go about applying it in future cases. Interesting questions remain, however, as to (a) whether it's worth thinking about narrowness at all in Plaut-like cases; (b) if so, whether additional criteria of narrowness should factor into the inquiry (and/or whether any of my proposed criteria should be excluded); and (c) what to do when one criterion of narrowness appears to conflict with another. Suppose, for instance, that litigants have challenged a federal law on both structural and rights-based grounds, and suppose further that the rights-based argument already has some support for it under existing law whereas the structural argument presents a genuine question of first impression. The “geographic-scope” criterion would favor resolution of the structural argument prior to the rights-based argument, whereas the “precedential-impact” criterion would favor the opposite approach. How, under the Plaut presumption, should we sequence the issues?
A final thought involves how these criteria might influence our thinking about the sequencing rule of Ashwander itself. Ashwander, as I’ve noted above, embraces the “political reversibility” criterion of narrowness. But we can imagine constitutional/nonconstitutional cases in which that criterion might run up against others that point in the other direction. Suppose, for instance, that challengers to a law had asserted a fairly straightforward constitutional ground for relief and a much more complicated/uncertain statutory ground for relief? Or what about the choice between a structural constitutional claim that would impact only the federal government, and a rights-based nonconstitutional claim that would impact both the feds and the states? Ashwander would say: “address the nonconstitutional claim first.” But if variables like precedential impact and geographic scope are also relevant to our evaluation of the claims’ respective narrowness, then even from a pro-minimalist, pro-avoidance standpoint, we might at least sometimes want to reach the constitutional issue before confronting its nonconstitutional counterpart.
Tuesday, February 03, 2015
Help wanted for a seminar on "Prohibition"
Last Spring, as I was teaching my first-year Constitutional Law course, I was listening to Daniel Okrent's very engaging book, "Last Call: The Rise and Fall of Prohibition." In many ways -- some of which I'd appreciated before, and others I hadn't -- the book's subject connected interestingly with the big questions and themes of the first-year course (which, at Notre Dame, focuses on "structure"). I had so many occasions to refer to the book in class, I started to worry that my students were getting the idea that I am obsessed with alcohol and its regulation.
A few years ago, Eugene Volokh and others helped me to appreciate the ways in which the Second Amendment can serve as a "teaching tool" in Constitutional Law. It strikes me that the experience with Prohibition - how it came about, what it tells us about constitutional amendments and grassroots political movements, how it connects with questions about the census, redistricting, federalism, and the Fourth Amendment, etc. - could serve, similarly, as a teaching tool or vehicle. Have any Prawfsblawg readers or bloggers taught Prohibition, or used it as a lens through which to look at the Constitution and constitutional law? Any suggestions about how it could be done?
Well, because I am slow and prone to procrastination, I am just now (finally) getting around to thinking about putting together a seminar course on the topic. I continue to think there's a lot of really interesting ways that our experiment with Prohibition could serve as a vehicle for examining, and pulling together, a bunch of interesting questions, including questions about the subjects mentioned in my earlier post.
So, here's a bleg: Does anyone know of any similar courses that are being offered or that have been offered elsewhere? And, does anyone have any ideas for topics that might be covered in such a seminar? Much appreciated! (We will, of course, be home-brewing as part of our coursework.)
Monday, February 02, 2015
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland. My focus will be on legal issues, but lets start with an overview. As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here. Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home. This is a very helpful graphic. In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States. But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time. Globally, 400 (mostly) children die of measles every day, 16 die every hour. Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.
The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated. It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.
Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old. There are also counter-indications (more about them later) about who shouldn’t get the vaccine. Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before. Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection. And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.
The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state. Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation. Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.
To be continued.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)
Friday, January 30, 2015
LBJ and the Supreme Court
This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).
Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.
First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).
Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.
Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true.
So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:
1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?
* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.
2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?
Tuesday, January 27, 2015
Extending Unequal Second Amendment Rights
Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens. We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen. But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm.
We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites. (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.) Then there's Driving While Black. I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.
And that's a sticky problem. Under current law, there isn't much you can do except to change police conduct from within. Courts don't have a lot of sway. Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search. That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.
With the expansion of the Second Amendment, we have a chance to think more about the problem early on. Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights. But it seems likely that these new rights will not be extended equally. First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will embed historical racial disparities in arrest, prosecution, and conviction. Theres more, however. In my mind, the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include the right to carry a gun and not get stopped and searched for doing so. In that respect, I fear we won't deliver equal rights.And those disparities only reflect the burdens imposed by the state. It doesn't even touch about the fact that private citizens may be unwilling to tolerate the equal extension of gun possession rights. As long as people consider African-American + gun as a crime in progress, which was the Wal-Mart case - a gun carry permit will never confer upon African-Americans the same freedom to carry.
So what to do? One possibility is to say: it's inappropriate to extend rights to one population if every population can't receive an equal benefit. The contrary view is to see the Second Amendment just like the Fourth Amendment: a right which society will have to struggle to enforce equally but which, given its constitutional basis, ought to be extended as far as possible immediately. (And of course most Second Amendment advocates will argue that there is no extension going on here - only a much-delayed enforcement of an existing right.) But is there a third way? Could we view it as a property right which is impaired when a person is subject to a search? Might there be a novel Fifth Amendment claim here? Could we impose a tax on guns that is used to fund a statutory compensation scheme? Is there a way, other than the exclusionary rule, to disincentive police over-reach? (Something like Richard Myers' Fourth Amendment Small Claims Court?)
This is all half-baked, but it's a problem that troubles me. I'd love thoughts.
Monday, January 26, 2015
Nursing Homes as Guardians of Their Debtor Patients
If you saw today's New York Times article on New York nursing homes seeking guardianship over residents in order to collect outstanding debt, under Article 81 of the Mental Hygiene Law, you may also have questions.
Section 81.19 of the Mental Hygiene Law specifies (emphasis added):
(e) Unless the court finds that no other person or corporation is available or willing to act
as guardian, or to provide needed services for the incapacitated person, the following persons or
corporations may not serve as guardian:
1. one whose only interest in the person alleged to be incapacitated is that of a
2. one, other than a relative, who is a provider, or the employee of a provider, of
health care, day care, educational, or residential services to the incapacitated person, whether
direct or indirect.
If a corporate entity may petition or threaten to obtain guardianship over a current resident in order to resolve an outstanding disputed debt owed to the corporate entity and withdraw the petition as soon as the debt is paid in full, what can guardianship law mean in New York?
Sunday, January 25, 2015
The process of marriage equality, once again
This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.
Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.
With all that, calling everyone a bigot in a legal document is not particularly helpful.
Thursday, January 22, 2015
Sutter Health vs. Blue Shield: War of the Gargantuas
When I think about calls for increased consumer activation in health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets.
But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.
In order to have been a savvy purchaser of health insurance through California's Exchange (or, even, outside the exchange through this fall's most recent open enrollment period for commercial insurance), you would also have to have known something about the the health insurance and health care services contracting world. Can we reasonably expect consumers to master this, to ferret out what they really need to know?
Most Northern California employers have a fall open enrollment period. Covered California's open enrollment for 2015 runs from November 15, 2014 to February 15, 2015.
Here's what your employer (or exchange) surely didn't tell health insurance shoppers in Northern California this past fall:
3. They bargain fiercely right through and past the open enrollment deadline over the next year's contract rates.
4. Even a behemoth such as Blue Shield of California has, historically, been unable to bring Sutter to heel. Sutter's tremendous market power in Sacramento and the Bay Area is one of the drivers of high health care costs in those areas.
4. Decisions that are made after the close of your open enrollment period -- such as their contractual terms or, as announced this year, their decision to maybe not contract at all, may be announced once open enrollment is closed or very near to its closure.
5. The decision by a major provider to exit an established health plan after the close of the open enrollment period is apparently not deemed a qualifying life event allowing for special enrollment under Covered California. California's largest employers have been conspicuously silent on whether such an announcment is a qualifying event for out of open enrollment insurance plan change.
So the chat boards are lighting up. Can it be that a change in a health plan's coverage options in a highly concentrated market such as Sacramento or the East Bay is not a a trigger for special enrollment rights ? You mean you didn't know all this already?
Watch out where Gargantua steps.
Tuesday, January 20, 2015
Some thoughts on Holt v. Hobbs
First, it seems to me that the opinion by Justice Alito is exceptionally well crafted. It should win a Green Bag award or something. It touches the necessary bases and stops. The language is clear and functional. (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.) One knows, at every point in the analysis, where one is.
Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so that it reaches no farther than did the more narrow of the Court's Free Exercise Clause decisions. Here, he rejected the notion (which some earlier cases might have endorsed) that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.
Third, Justice Alito reminded readers that "RLUIPA . . . applies to an exercise of religion regardless of whether it is 'compelled'" by the claimant's religious beliefs or traditions. (Put another way, RFRA and RLUIPA do more, as Justice Alito reads them, than protect religious claimants from being compelled to do what they believe their religion absolutely forbids.) Fourth, and related, the lead opinion insists that "the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is 'not limited to beliefs which are shared by all of the members of a religious sect.'" So, it would not be relevant to the "substantial burden" inquiry under RLUIPA if not all Muslims believe men must grow beards.
These last three points, together, are very helpful, I think, in helping me think about the idea of "substantial burdens" in the accommodation-of-religion context. What it is that we are asking about, I think, when we ask about "substantiality" is not the power or weight of the belief, or its centrality, or its orthodoxy, or its plausibility. We are asking, instead, about the nature, weight, size, etc., of the government's imposition on the sincerely asserted religious belief or practice-obligation. There is no question, for example, that a Roman Catholic's obligation to worthily receive the Eucharist at least once a year is a very serious one, but a neutral and generally applicable law that, in application, (somehow) increased the cost to Catholics of doing so by $.01 would not impose a "substantial" burden on religious exercise. Here, in Holt, the question is whether the penalty imposed or threatened by the government is substantial. And, it is.
Next, the Court was appropriately underwhelmed by the invocation - in broad and general terms -- of a "compelling interest" in prison security and safety. Rather, "RLUIPA, like RFRA, contemplates a 'more focused' inquiry and 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'––the particular claimant whose sincere exercise of religion is being substantially burdened." And, relatedly, the Court meaningfully -- while giving appropriate consideration to the prison context -- engaged the question whether applying the prison-grooming rule to the claimant, without exception, was the least-restrictive means of accomplishing the government's important goals.
In a separate opinion, Justices Ginsburg and Sotomayor clarified (and perhaps qualified) their agreement with the lead opinion. Justice Ginsburg wrote:
Unlike the exemption this Court approved in Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating
petitioner’s religious belief in this case would not
detrimentally affect others who do not share petitioner’s
belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2,
7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that
understanding, I join the Court’s opinion.
While I understand why Justice Alito (and others who joined his opinion) would not think it necessary to respond to this statement, I also wish one of the Justices had. The claim that it violates the Establishment Clause to accommodate religion in ways that impose costs or burdens on third parties is one that, of course, is advanced by a number of very smart people, but I do not think it is correct -- at least, not as a broad, general matter. As I see it (see more here), the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry.
Finally: today's opinion offers a very, very welcome counter to the unfair and inaccurate assertion one hears in some quarters that concerns about "religious liberty" are merely "dog whistles" or "fig leaves" for bigotry and prejudice, and so can be dismissed as such. Some invocations of "religious liberty," and some demands for accommodation, have been, are, and will be insincere, or morally offensive, or simply ungrantable. Many others will not. We should take the time to distinguish -- carefully, thoughtfully, reasonably sympathetically -- between the two.
Sunday, January 18, 2015
Justice Rehnquist, Religious Freedom, and the Constitution
I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution." I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist. And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court: Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief. Here's the abstract:
It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.
Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.
Wednesday, January 14, 2015
The influence of the Justices' religious beliefs
There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?" The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.
I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases. (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")
Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants. (Here's a WSJ thing I did on this subject a few years ago.) I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific):
[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.
That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete. (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.") For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters." I am skeptical. For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs. It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid. It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment.
I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court. Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean. For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs." And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."
Tuesday, January 13, 2015
Guaranteed salary and understanding the Supremacy Clause
Bills have been introduced in Texas and South Carolina attempting to prevent courts from recognizing same-sex marriages, in part by controlling salaries and funding. The Texas bill prohibits any state or local government employee from recognizing, granting, or enforcing a same-sex marriage license, with anyone who does losing her salary; a separate provision extends this to state judges. The bill also requires the court to dismiss any constitutional challenge to the law and to require plaintiffs to pay fees. The South Carolina bill is similar--no recognizing, granting, or enforcing same-sex marriage licenses, no public funds or salaries spent for doing so, required dismissal of any challenges to the law, while also specifically prohibting the use of any public funds to enforce any court order (including, presumably, a federal court order) to issue a same-sex marriage license.
Obviously, neither bill has a remote chance of passing; trying to stop marriage equality is simply a fool's errand at this point. And there are too many constitutional defects to count. But I want to highlight a couple.
First, a shout-out to the unsung Article III protection--judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Everyone focuses on life tenure as the great bulwark of judicial independence (or as a bad idea whose time has passed); there is less focus on guaranteed salary, even though, as these crazy bills show, it otherwise would be a prime target for a legislature angling to control constitutional adjudication.
Second, I have questioned Slate's Mark Joseph Stern before for the legal errors in his articles (I have no idea if he has a J.D.). Today, he argues that these bills are in "clear violation" of the Supremacy Clause by imposing a sanction on a judge who is just following federal law as declared by the Fourth Circuit (which includes South Carolina) and many, many federal district courts. But neither a federal court of appeals nor a federal district court binds a state court. A state court is free to ignore these decisions. And, at least as a matter of the Supremacy Clause, a state legislature is free to compel its courts to ignore those decisions (there may be other reasons the legislature cannot do this). So why make up reasons that are simply wrong.
Third, what would the Constitution of either state have to say, specifically about the provisions requiring state courts to dismiss challenges to these laws. During the Theresa Schiavo Controversy, the Florida Supreme Court adopted a principle very much like United States v. Klein as a matter of state separation of powers. These bills run afoul of Klein's idea that legislatures cannot tell courts how to decide cases, to the extent that principle applies to state governmental structures.
Monday, January 12, 2015
More on rotating Chief Justices
At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.
But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?
(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief. This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]
The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.
Monday, January 05, 2015
Merging systems in the wrong direction
I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.
First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."
Tuesday, December 23, 2014
Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong
Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:
Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?
As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).
One of the interesting back-stories to Douglas, which I covered in some detail on this blog, was the aggressive (and, in my view, disappointing) anti-private-enforcement position taken by the Solicitor General in an amicus brief filed in support of California. Leaving aside the controversial merits of the SG's Douglas brief, it was also a position that was radically inconsistent with the historical position of the Department of Health & Human Services (HHS) on the private enforcement question, especially with regard to "Section 30(A)"--the Medicaid Act's requirement that states set reimbursement levels high enough so that Medicaid recipients are able to have "equal access" to median quality medical care. Without this "equal access" mandate, economic pressures would almost certainly lead states to reimburse providers at the lowest possible levels, which in turn would likely relegate Medicaid recipients to the worst available providers. The problem, as the ACA litigation helped demonstrate, is that HHS doesn't have a lot of choices when faced with a state violating the Medicaid Act. The only real "stick" HHS possesses in such a scenario is the drastic remedy of cutting off Medicaid funding--which punishes the beneficiaries far more than it punishes recalcitrant states.
To that end, and tellingly, HHS did not sign the SG's Douglas brief, even though it had signed the SG's more equivocal cert.-stage amicus in the same case (which had recommended that the Court not take the case). Instead, in Douglas, I helped to put together an amicus brief on behalf of "Former HHS Officials," explaining why, because of the reality described above, (1) HHS has historically supported private enforcement of the Medicaid Act (and Section 30(A) in particular); and (2) partly as a result of this historical pattern, and partly for other reasons, lacks the institutional, political, financial, or administrative resources effectively to enforce Medicaid all by itself.
As in Douglas, the SG has once again sided with the states in Armstrong--albeit in an amicus brief that appears, at first blush, to be far more modest. Instead of opposing Supremacy Clause-based claims for injunctive relief in general, the SG's Armstrong amicus punts on that question, arguing that the Court need not resolve that general issue because "recognition of a private right of action under the Supremacy Clause in this case would be incompatible with the statute, the methods for its enforcement, and respondents’ claim."
And as in Douglas, a group of former HHS officials (including 15 senior administrators from three different administrations, led by former Secretaries Califano and Shalala) has now filed an amicus brief disputing the SG's position--and documenting how,
Since the early days of the Medicaid program, federal courts have recognized that providers may sue to ensure that state Medicaid plans conform to the requirements of federal law. Congress intended for such enforcement, and HHS has understood—and come to rely upon—its existence.
The brief, which I co-authored along with Matt Hoffman and Andrew Kim from Goodwin Procter, is in some important ways different from the brief we filed back in Douglas. There, our focus was on the SG's (since abandoned) position that private enforcement of the Medicaid regime would generally interefere with HHS's enforcement authorities and discretion. Here, our focus is on the SG's more modest claim about congressional intent and judicial enforcability of Section 30(A). Thus, the SG's Armstrong brief argues that Congress never intended for such private enforcement--and, even if it did, that courts would struggle to provide such enforcement given the vague language of the "equal access" provision's mandates.
Our brief rejects both of those claims, demonstrating how, not only have courts routinely applied Section 30(A)'s procedural and substantive requirements without serious difficulty (and, indeed, would have to do the same thing if HHS started to reject state Medicaid plans on the ground that they violate Section 30(A)), but how that provision--one of the Medicaid Act's most important requirements--would effectively be unenforcable without private enforcement by Medicaid beneficiaries or providers through some vehicle.
In other words, insofar as the SG's brief tries to duck the larger question implicated in Armstrong by arguing that Section 30(A) is an especially weak federal statute to enforce through such a Supremacy Clause-based injunctive action, our brief argues that it is, in fact, a textbook case for such a claim--since it is an essential federal mandate against states that, without such private enforcement, would almost certainly be frustrated.
Monday, December 15, 2014
(Mis)trusting States To Run Elections
The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law. I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews. But that is unfortunate, because it is both doctrinally wrong and practically dangerous.
As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice. Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny. Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest. But often the state is not really trying to achieve election integrity, at least not principally. There are often partisan motivations behind an election regulation. How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters? Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.
Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face. Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.
After the jump I explain the problems with this approach.
Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner. This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules. In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.
The deference is also dangerous. States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong). This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra. But partisan motiviations should play no role in how we structure our elections.
The Court should not defer so readily to a state's election process. Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.
Here is the abstract of the article, for those who want more on this argument:
Comments are welcome!
Monday, December 08, 2014
The Scope of Voting Rights Under Article I: Understanding the Problem
My current project, Protecting Political Participation Through the Voter Qualifications Clause of Article I, tries to determine the scope of the voting rights that are protected by Article I, Section 2 of the Constitution, which provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” I find this particular clause fascinating because the Supreme Court once relied on it to ground some of its one person, one vote and constitutional voting rights jurisprudence, but this provision has since fallen into obscurity because of mistakes that the Court made in the same cases that initially looked to Article I to protect the right to vote.
In Wesberry v. Sanders (the lesser-known companion case to Reynolds v. Sims), the Court held that the states’ failure to reapportion their congressional districts violated Article I, Section 2. Similarly, in Harper v. Virginia Board of Elections, the Court read Article I, Section 2 to create a fundamental right to vote in federal elections. Problems arose, however, when the Court tried to determine which provision of the Constitution protects the right to vote in state elections. Thus, in Reynolds v. Sims, the Court held that the states’ failure to reapportion their state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment (rather than Article I, Section 2). Harper likewise found the right to vote in state elections to be protected by the Equal Protection Clause.
Treating the right to vote in state elections as a fundamental interest protected by the Equal Protection Clause has led to several problems in the Court’s jurisprudence. Notably, neither Harper nor Reynolds stand for the proposition that the right to vote in state elections has to exist, even if the corresponding right to vote in federal elections must exist. Grounding the right to vote in state elections in the Equal Protection Clause, according to the Court, permits states to choose whether to extend the right to vote to its citizens, but once available, has to be offered on equal terms. This notion of the right to vote as optional, rather than mandatory, is contrary to the traditional conception of the right to vote as a fundamental right that is “preservative of all other rights.” In addition, the equal protection framework, modified in decisions subsequent to Harper to be more deferential to state authority, has come to dominate the assessment of all regulations governing the right to vote, regardless if the law applies to state elections, federal elections, or both. Thus, the importance of the right to vote in federal elections, as originally protected by Article I, has gotten lost in the evolution of the Court’s standard of review from one that strictly scrutinizes state voter qualification standards to a balancing test that is extremely deferential to state authority.
I find this state of affairs to be completely perplexing given that the Voter Qualifications Clause provides that, with respect to voter qualifications for federal elections, “the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” Because this provision makes federal voting rights dependent upon participation in state elections, this framework suggests that the right to vote in state elections is not optional (as an Equal Protection analysis would suggest) and it has to broadly available in order to protect the fundamental right to vote in federal elections. In my next post, I will provide more evidence to show why this reading of Article I is the correct one.
State Judges and the Right to Vote
If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election. But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.
But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote. Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections. Below the fold I provide some details of my study of state judges and the right to vote.
This inquiry reveals some interesting trends.
First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others. State court activity on voting rights is much more robust than federal court decision making in this area. Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions. Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges. Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.
These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote. I'd be delighted for comments and thoughts on the piece. Here is the abstract:
State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.
Thursday, December 04, 2014
Prosecuting police--the role of the grand-jury pool
Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.
But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.
The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.
But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.
Tuesday, December 02, 2014
Michael Brown and the return of Brandenburg
A colleague asks a question:
Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).
Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?
* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.
I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.
Wednesday, November 26, 2014
Ferguson – What Now? (guest post)
This is the final post on Ferguson from Timothy Zick:
Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction. As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.” The facts are still coming in, but by most accounts police were not the instigators. The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities. While their frustration may be understandable, their actions were obviously neither wise nor constructive. The violence was not, as some have suggested, inevitable. Whatever their underlying causes or motivations, the riots were a choice.
There will be additional protests and demonstrations in Ferguson and elsewhere. Hopefully they will be vocal, but peaceful, events. The issues are worth demonstrating about. But as I wrote in my previous post, public sympathy will not be with the protesters forever. Last night may have been a tipping point. The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on. Many left behind will have expressed their outrage, or have been affected by the actions of those who did so. What will be the legacy of the Ferguson protests (past, present, and future)?
In the wake of last night’s events, hopelessness seems to be pervasive – particularly among many Ferguson residents, who have been witnesses to the conflict from the beginning. The protests and demonstrations have not been empty or meaningless events. They have pricked the public conscience, highlighted grievances, jump-started conversations about social and political issues, and demanded attention from public officials. It would be unfortunate if rioters tarnished or diminished some or all of these important accomplishments. What happens next depends on forces that lie beyond public streets and other public forums. Too often, protesters do not follow action in the streets with concrete social and political activity. Protests and demonstrations are not ends in themselves. They can be catalysts for change, but only if organizations and associations work to channel their outrage and energy. Expressions of outrage from civil rights leaders are fine. But Ferguson desperately needs an organization, preferably a local group, to take the lead. Other elements of the community can also work toward policy changes. Rioters can trade bricks for ballots, residents can work toward rebuilding or strengthening community ties, and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities. What’s next for Ferguson is not at all certain. The protests and demonstrations have created an opportunity and suggested an agenda that includes criminal justice reform and protection for civil rights. For the sake of Ferguson itself, let’s hope that peaceful activists seize that opportunity.
Monday, November 24, 2014
The costs of public protest (guest post)
The following is another guest post from Timothy Zick (William & Mary).
Some of my First Amendment work has focused on highlighting the social, political, and constitutional benefits of public protests. Protests can also impose serious costs. Mass protests can be particularly invasive forms of contention. They disrupt routines, alter urban and other landscapes, and inconvenience entire communities. Some of these effects may actually make a protest more effective – unlike a pamphlet or this blog post, a mass protest cannot easily be ignored. Still, for those caught in its path, a public protest (or a prolonged series of them) can impose very real and significant costs.
Some of the costs of the Ferguson protests (past and anticipated), have received some media attention. Merchants are concerned that the prolonged state of unrest will harm their enterprises. Ferguson schools have been closed in anticipation of the grand jury’s decision. And there are the costs of policing the protests themselves, which can add up to millions (including the cost of any civil rights lawsuits and settlements, as New York City and other jurisdictions have learned). The psychological costs can also be significant. Living in an environment of daily conflict and protest policing can take its toll on communities. For example, many people seemed to lose patience with the Occupy protests – not just because of the tangible costs they imposed, but also owing to the emotional and psychological strain associated with long-term “occupation.”
Recognizing these costs does not diminish rights of free speech and peaceable assembly. Indeed, it places First Amendment rights in appropriate perspective. In general, we cherish and protect these rights despite their significant financial and other costs. We collectively accept these burdens as the price of expressive freedoms. We subsidize them, even when the distribution of costs sometimes seems unfair. (We also have the right to complain about this unfairness.) However, as protest organizers should know, there are limits to public tolerance. There is a point at which public support begins to wane and the effectiveness of public contention begins to diminish. Sooner or later, protesters will need to channel their outdoor energies to indoor political and other arenas. As Michael Brown’s father suggested in a video appeal to protesters, the time will come when protest will need to be translated into policy changes. To some degree, the mark of a successful protest movement is its ability to effect meaningful change. Protests have inherent worth. But the subsidies and sacrifices are all the more “worth it” insofar as they facilitate or produce something tangible, meaningful, and lasting.
Sunday, November 23, 2014
Judicial Elections and Historical Irony
Last week I was privileged to participate in a conference in New Mexico on the judiciary. The debates and assigned readings focused especially on judicial elections (a new issue-area for me). There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).
“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states. This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).
With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify. Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.
In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects). It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).
The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time. The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…) For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.
My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power. Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.
This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop). Meanwhile, this change in the role of judges may also have coincided with the decline of juries.
If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive? (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)
It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion. At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges. Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar. Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet. Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures. I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).
In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable. In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation. Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight. (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)
John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)
John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).
Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)
Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)
G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)
Friday, November 21, 2014
DOJ weighs in
Seeming to share my sense of where the burden should lie, Eric Holder released video urging law enforcement and protesters to collaborate on plans to keep the peace should protests occur in Ferguson. He reminded protesters that historically successful movements have relied on nonviolence, while calling on police to seek ways to keep order while respecting constitutional rights. In addition, DOJ officials spoke with Missouri Governor Jay Nixon about the decision to declare a preemptive state of emergency, calling that an escalation of the situation that "sent the wrong message." DOJ also released a resource guide for policies and training on community policing and handling public protest (although it seems a bit late in the day for that).
This is a good reminder of the unique role that DOJ and the Attorney General can, and sometimes do, play in these sorts of localized conflicts, remaining above the simplified law-enforcement fray.
Thursday, November 20, 2014
Zick on public protest and Ferguson
Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri. I’ll probably add just a few posts to his excellent commentary, depending on how things develop.
The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns: advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson. In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.Of course, the protests themselves have occupied center stage. The media are attracted to conflict, and the conflict is important. Once again, we have seen the delicate balancing of tolerance and respect for public assembly and speech with the need for order and public safety playing out in real time. And once again, the results have been disappointing - or worse. As I argue in my book, Speech Out of Doors, a variety of legal and non-legal forces have combined to challenge traditional protests and other public modes of contention and dissent. Howard has thoughtfully posted on some of the problems associated with the militarization of public places and escalated force protest policing (e.g., here and here). Chapter 7 of my book examines militarization at various public events, including national party conventions, presidential inaugurals, and world summits. Militarization has been on the rise, in part owing to post-9/11 federal dollars flowing to local police departments. As Ferguson shows, local police forces across the nation are now equipped with the tools of militarization. Some have used surveillance, shows of force, and other military tactics in policing local events.
Of course, the possession of military-style equipment does not guarantee the use of escalated force. Police forces can and do act with appropriate restraint. Some of Howard’s commenters have asked about evidence for the link between militarization and protester responses. Social scientists have carefully studied protest policing, and they have argued in favor of a “negotiated management” style in part owing to the costs of escalated force policing. Of course, there is historical evidence that escalated force leads to violent confrontations – the 1968 Democratic National Convention in Chicago, the WTO debacle in Seattle in 1999, and recent national party conventions in Boston, New York, and elsewhere. Sure, some protesters at these events were looking for violence. And sure, sometimes police need to respond with force. But as Howard’s posts suggest, one of the problems with militarization is the attitude it sends about public protests and public places. As a mindset, militarization can exacerbate and even invite conflict. This was one reason many police departments abandoned escalated force policing. It’s come back, in the form of militarization. I’m skeptical that we can keep arming police to the hilt while expecting them to exercise restraint in the face of angry and emotional crowds. When officers divide streets into military-style grids and gird for battle, even peaceful protesters and reporters are at risk. To be clear, there is no excuse for lawless behavior by protesters. Nor is criticism of militarization meant to suggest “anything goes” protest policing. Balance, proportionality, and forbearance are required. But too frequently of late, these things have been in short supply at public events.
To their credit, Ferguson officials have tried everything from personnel changes to personal apologies in an effort to calm the public and preserve rights to peacefully protest and assemble. Nevertheless, today there is a sense of foreboding in the press and on the blogs (including this one) about what will happen next. Last night’s arrests of protesters outside a barricaded police station may be a harbinger of things to come, in Ferguson and elsewhere.
Rules of engagement, ctd.
In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.
Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we really need to state that rule?)
We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.
Wednesday, November 19, 2014
Rules of engagement
One of the commentators on my earlier post asked what I would suggest as an alternative to calling out the National Guard. This is a start: Negotiations between law enforcement and protest leaders about "rules of engagement" in any upcoming protests following the grand jury decision. As Tim Zick described in his book, such negotiations have become a significant aspect of public protest, especially large, planned gatherings targeting specific times, places, and events. And while one would think that the First Amendment should be the only necessary rule of engagement, past events in Ferguson (and elsewhere) suggest that a clear body of rules, agreed upon and understood by all involved, might be a way to ease tensions from the start.
Unfortunately, one sticking point seems to be whether police will forego riot gear, armored vehicles, and tear gas in the first instance--in other words, police not working from a presumption that the gathering is a riot and protesters are combatants.
Tuesday, November 18, 2014
You can't have it both ways
Fox News (yeah, I know) reports that the FBI is warning law enforcement officials nationwide that the failure of the grand jury to indict Off. Darren Wilson is "likely" to lead to violence. In particular, they are saying that police and property may be targeted and that there may be cyberattacks by people "exploiting" the event as a way to engage in unlawful activity. Of course, the FBI also "stressed the 'importance of remaining aware of the protections afforded to the all U.S. persons exercising their First Amendment rights of freedom of speech and freedom of assembly.'”
Sorry, but you cannot have it both ways. If you put law enforcement (and the national guard) on High Alert for attempts to undermine society, it is impossible for them to simultaneously remain aware of the First Amendment, for fear of guessing wrong. And since it is impossible to tell the exploiters from the exercisers, the only solution is to get everyone off the streets.
This does not end well.
Prior restraint: How far have we really come?
In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.
In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).
* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."
So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.
Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?
Monday, November 17, 2014
Inevitable conflict and the state of the First Amendment
This story reports on some planned protests in and around Ferguson when, as expected, a state grand jury declines to indict Off. Darren Wilson in the shooting death of Michael Brown. And this story reports that the governor has declared a state of emergency and called in the National Guard in anticipate of protests when, as expect, the grand jury declines to indict.
But those moves together make violent conflict inevitable. Ferguson was defined, in part, by the way in which militarized police behaved like soldiers in a war zone and reacted to potentially peaceful assembly accordingly. How can it possibly go better if the solution is to bring in actual soldiers? Moreover, note the governor's logic--the possibility of people taking to the streets to protest against a perceived injustice, absent any indication that things will turn violent constitutes a state of emergency warranting immediate activation and placement of the state's military force.
The First Amendment at least purports to recognize public streets and sidewalks as places that "time immeorial" have been reserved for expression. But the governor seems to believe that the possibility of streets being used for that "time immemorial" purpose is, by its nature, a threat to public order.
Update: Here is another take on it. And to answer a commenter's question: There has to be a way to be prepared and to take precautions that does not involve treating the possibility of protest as an emergency that threatens civil society. This type of response is virtually guaranteed to produce violence: "We're in a state of emergency, you're on the street, we're going to move you off the street by force." And now we have either 1) protesters resisting, triggering violence or 2) protesters peacably leaving, but not being able to exercise their constitutional rights to peaceably assemble and speak. Surely there must be some middle ground.
Monday, November 10, 2014
Is a flag-burning amendment on the Republican congressional agenda? I have not heard anyone talking about it, but recent history suggests it is inevitable. The last time the Republicans controlled both houses, in the 109th Congress (2005-07), a proposal passed the House and failed the Senate by one vote. [Ed: A proposal was introduced in one house or the other every Congress from the Gingrich Revolution until the Democrats regained control in 2009]. Republicans will hold around 244 seats in the House and 52 or 53 (depending on the Louisiana run-off) in the Senate. With likely defections from Democrats who do not want to vote against such an amendment, the numbers would seem to be there.
Is this something that Republicans are going to expend time and energy on? Is it likely to pass?
Friday, November 07, 2014
Greetings from Sixth Circuit Country
Greetings from Memphis! I'm here today at the University of Memphis Cecil C. Humphreys School of Law to discuss Hobby Lobby alongside Steven Green, including what should be a fun Q&A session moderated by Steven Mulroy. Steven Green is one of the authors of the Church-State scholars amicus brief in Hobby Lobby. And I recently wrote up some of my--somewhat evolving--thoughts on Hobby Lobby in an article titled Religious Institutionalism, Implied Consent and the Value of Voluntarism, 88 S.Cal. L. Rev. (forthcoming 2015), where I elaborate on my theory of "implied consent" institutionalism.
But given yesterday's Sixth Circuit decision on same-sex marraige, I'm thinking more and more about Paul Horwitz's recent piece in the Harvard Law Review, "The Hobby Lobby Moment" (if you haven't read it yet, you should). I find myself very much in agreement with Paul's analysis, especially his articulation of how the firestorm around Hobby Lobby had so much to do with the intersection of same-sex marriage and our evolving views on the commercial marketplace. If Paul is right, then yesterday's decision--and the significant likelihood that the decision will lead to the Supreme Court finally have to grant cert in a same-sex marriage case--means that we may very well see more of the debates that propelled Hobby Lobby into the public consciousness.
Thursday, November 06, 2014
Here's your circuit split on marriage equality
A 2-1 decision from the Sixth Circuit, authored by Judge Sutton, with Judge Daughtrey in dissent. Media reports indicate the focus is on respecting the will of the voters and the state power to define marriage.
The Sixth Circuit remains majority Republican appointees (all by one of the Bushes), to the extent such crude measures tell us anything. So en banc seems unlikely, unless even Republican-appointed judges do not want to be on the wrong side of this. Still, it appears this is now teed-up for SCOTUS to resolve later this term.
Perhaps more later. Update: Well, the media reports are correct. Sutton's lengthy introduction, before the analysis: "And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?"Sutton did make two cute rhetorical moves with Loving. First, he insisted that the Court assumed marriage only encompassed opposite-sex unions, since the Court did not say differently and because the couple in Loving where not same-sex. Second is this: "Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage." But this seems too clever by a half--all definitions of a thing are based on eligibility requirements for the definition of that thing. Is Sutton really suggesting that Loving would have come out differently if, instead of the law saying "If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony," it said "marriage shall only be between two white persons or two black persons"?
Say this: Sutton hit every possible argument and issue surrounding marriage equality (although he soft-pedaled his discussion of the "marriage is for men and the women they accidentally knock-up" argument). So the opinion presents a good vehicle for thorough consideration (and reversal).
Finally, a question: Judge Daughtrey in her dissent described at length the facts underlying the claim by the Michigan plaintiffs. Under Michigan law, unmarried couples cannot jointly adopt, which means only one parent is the legal parent of the child and there is no guarantee that, if the legal parent dies, the child will be allowed to stay with the other, non-legal parent. But that imposes huge financial costs on the state, if it has to bring that child into the foster care system, not to mention the human and social cost to the child and the entire system. But if the ban on same-sex marriage imposes such costs, doesn't that render it irrational, if not based on animus?
Seeeking balance in uncontested elections
It seems I am not alone in my confusion and concern about states not placing unopposed candidates on the ballots, as this list of stories suggests (H/T: My colleague Tom Baker). In Oregon two years ago, people were angry about having to pay to print GOP primary ballots with only one name. And there was an interesting controversy in Indiana about three years ago. In 2010, the state passed a law removing unopposed candidates for municipal office from the ballot. In 2011, several local bodies insisted on printing ballots that included unopposed candidates, even though it then required that two additional polling places be opened, at public cost. In early 2012, a bill to repeal the 2010 law unanimously passed the state Senate, although I have not been able to find out what happened after that.
Weighing against those cost considerations include the risk of voter enthusiasm, the dampening of interest (and thus willingness to vote) of supporters of the unopposed candidate, and possible down-ballot effects. On the other hand, the cost-saving concerns disappear when the ballots also contain candidates for national and statewide office and all those polling places are open anyway. For example, Miami-Dade County had to print ballots containing all the statewide offices, plus US House candidates, for the other districts that are within the county (for example, Joe Garcia's district) and the polling places within the district had to be opened. Similarly, the polling places within my district were all open and people within my district had to have ballots with all those statewide offices. Would it have really cost that much more money to include the US House race on those ballots?
None of these is of constitutional magnitude, of course, just of policy wisdom.