Monday, November 23, 2015

Should Non-Citizens Be Allowed to Vote? (Local Law Edition)

Municipalities have vast powers to define the electorate, as I explained when noting that some local jurisdictions have expanded voting rights to sixteen- and seventeen-year-olds.  Similarly, some municipalities have granted the right to vote to non-citizens.  Studying these local laws on voting rights is vital to understanding and protecting the right to vote more generally.

Currently there are six Maryland towns that allow non-citizens to vote in all city elections.  Two Massachusetts cities, Cambridge and Amherst, have also passed laws granting the right to vote to non-citizens, but these ordinances cannot go into effect unless the state legislature approves them.  In Chicago, non-citizens may vote in school board elections.  New York City also used to allow non-citizens to vote for school board until the city disbanded the elected school boards in 2002.

Some local jurisdictions are debating whether to expand the voter rolls to include non-citizens.  New York City, for instance, is considering an ordinance to allow aliens to vote in all city elections, which would add up to 800,000 people to the voting rolls. The proposal, debated in 2013, would allow non-citizen legal residents who have lived in New York City for six months to vote in mayoral and city council elections.  Although thirty-one of the fifty-one New York City Council Members supported the ordinance two years ago, Mayor Michael Bloomberg opposed it, and the Speaker of the Council blocked a final vote on the law. There is speculation that the measure could come before the City Council again, especially as current Mayor Bill de Blasio might support the idea.  Non-citizen voting is also being debated internationally, such as in Toronto, Vancouver, and in various European countries.

There are both theoretical and practical reasons for expanding voting rights to non-citizens.  As Professor Jamie Raskin explained in a law review article, “the disenfranchisement of aliens at the local level is vulnerable to deep theoretical objections since resident aliens — who are governed, taxed, and often drafted just like citizens — have a strong democratic claim to being considered members, indeed citizens, of their local communities.”  Moreover, local residents – whether they are citizens or not – care about, and should have a say in, local affairs.  Allowing them to vote facilitates greater participation in the community, which will encourage these voters to become citizens.

Of course, there may be good policy reasons not to expand suffrage to non-citizens, such as that voting is one of the key rights of citizenship, and that expanding the franchise for only certain elections is a logistical nightmare with separate ballots for federal, state, and local offices. 

The point here is not to comment upon the merits of those policy questions -- although they have even greater salience these days given our current debates on immigration.  Instead, what is key is that this discussion is occurring at the local level.  Municipal laws have driven the debate over expanding the franchise. The voting rights community should take notice.  If we want better protection for the right to vote, then we need to shift our focus to look at municipal laws.

Posted by Josh Douglas on November 23, 2015 at 02:09 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (1)

Seeking the truth

Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means  I really was looking for the truth.

Posted by Howard Wasserman on November 23, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, November 17, 2015

Scalia (sort of) gets it, the media (still) doesn't

According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter  from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.

A few thoughts after the jump.

First, why did Scalia limit it only to those rulings that are not sufficiently textual or originalist--that is, rulings with which Scalia likely agrees? The departmentalist question should not turn on the "correctness" (methodological or substantive) of the decision. If political-branch officials possess authority to independently interpret the Constitution in the face of conflicting judicial rulings and to act on their own constitutional understandings, that authority applies to all constitutional decisions. If Scalia is serious, limiting it only to sufficiently originalist decisions makes no sense and undermines the accurate procedural point in service of a textualist/originalist hobby horse.

Second, Millhiser attempts to explain the procedure in the final three paragraphs, but he gets it completely wrong. His two biggest mistakes were suggesting that 1) this reduces the Court to an advisory body and 2) enforcement through future litigation is merely "conceivable." The whole point  is that future litigation guarantees enforcement because, unlike executive officials, lower courts are bound by the Court's judgments; so when lower courts apply precedent to new parties in a new judgment, that new judgment is binding on those officials. He is correct that this is complex and potentially expensive. But that is inherent in the nature of the judicial power, under which a judgment in one case is generally limited to determining the rights and obligations of the parties to that case And the costs is mitigated (somewhat) by  the availability of attorney's fees. Unfortunately, Millhiser does not mention (or grasp) either point.

Finally, Millhiser allows that Scalia's approach could be correct with respect to "decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil," but not to "a decision that allows Americans to marry the person that they love." Nothing like neutral procedure applied neutrally.

Posted by Howard Wasserman on November 17, 2015 at 09:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (20)

"It sounds so simple I just got to go"

A few weeks ago I had the privilege of speaking before the Mexican Electoral Tribunal in Mexico City at a conference titled "Two Paths in the Law of Democracy." The conference was sponsored by the Mexican Electoral Tribunal and the University of Texas.  The U.S. delegation consisted of five American scholars who study election law and politics, and we presented on various aspects of election law to the researchers, staff, and judges of the Tribunal.  It was a fascinating experience and I learned a lot.

Mexico, as a young democracy, is trying to learn best practices for running free and fair elections.  Yet there is so much that we can learn from the Mexican experience as well -- both procedurally and substantively.  

For example, as the very existence of the Tribunal demonstrates, Mexico has a federal agency that is charged with administering elections.  This Tribunal also includes a court that decides all election disputes.  Although we, too, have two federal agencies that focus on elections -- the Federal Election Commission and the Electoral Assistance Commission -- neither are very effective, especially because they often deadlock along partisan lines on most important issues.  In addition, our regular courts hear election law controversies, and we all know how well that has gone.  Mexico has figured out a way to, at least initially, avoid this partisan deadlock, and its Tribunal and court are well-respected and effective at administering elections in a way that people perceive as generally independent.  Perhaps this is because the members of the Tribunal are non-political and because of the strong research and education focus of its activities.

Substantively, Mexico has figured out some things that we are still struggling to solve.  For instance, partisan gerrymandering is not allowed in Mexican redistricting, which is conducted by the independent Tribunal.  (That said, there are still questions about whether Mexico has sacrificed transparency in the process and whether politics still infiltrates the resulting maps.)  Similarly, there seem to be fewer Election Day mistakes at the polls in Mexico, perhaps due to the robust educational and training programs the Tribunal puts on throughout the country.

Just traveling to Mexico City was a learning experience itself.  It is a fascinating place with beautiful museums, amazing tacos, and extremely nice people.  The researchers at the Tribunal are among the most respected people at the agency.  There is a true commitment to understanding American election law to discern best practices for their own system.  And our hosts showed us genuine sincerity, respect, deference, and collegiality.

This experience demonstrates the importance of looking beyond our borders to improve our own laws and legal structures.  Although we often espouse American exceptionalism, we also deal with the same kinds of issues and share the same kinds of struggles as places all over the world.  We can learn a lot from other countries, especially newer democracies where the rules are not as entrenched.  The Mexican Electoral Tribunal invited the American scholars so it could learn how we do things in an effort to improve its own processes, but of course with any exchange like this, we learned as much, if not more, from them.  This further suggests that we should not shy away from looking to international norms when evaluating our own rules and laws--whether in legislative debates or judicial decisions.

Oh, Mexico -- It sounds so sweet with the sun sinking low.  It sure was.


Posted by Josh Douglas on November 17, 2015 at 11:15 AM in Constitutional thoughts, Culture, International Law, Law and Politics | Permalink | Comments (0)

Monday, November 16, 2015

How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term. But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years--issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem--the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain. Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions. Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari--and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler. Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling.

I.  AEDPA and Tyler v. Cain

Of all of AEDPA's restrictions on post-conviction relief, perhaps none are more sweeping than the limits on "second-or-successive" petitions filed in federal courts by state or federal prisoners. As relevant here, AEDPA requires petitioners in such cases to first get permission to file such a claim from the Court of Appeals, which may only "certify" the claim if, as relevant here, it relies upon "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

In other words, unless the claim is based upon newly discovered evidence, second-or-successive petitions can only go forward when they rest upon new Supreme Court decisions that, under Teague v. Lane, may be enforced retroactively. (Under Teague, new "substantive" rules may be retroactively enforced, whereas new "procedural" rules may not, unless they are "watershed" rules of criminal procedure). That part is clear (or, at least, well understood). What's less clear is the meaning of the word "made" in the emphasized language above: Must the Supreme Court expressly state that the particular new rule in question is retroactive, or is it enough that the retroactivity of the rule obviously follows from--and is effectively settled by--other existing Supreme Court retroactivity precedents? 

In Tyler v. Cain, the Justices considered this very question, and ruled, 5-4, that "a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." But Justice O'Connor, whose vote was necessary to the result, opened the door to a slightly broader interpretation in her concurrence. As she wrote,

a single case that expressly holds a rule to be retroactive is not a sine qua non for the satisfaction of this statutory provision. This Court instead may “ma[k]e” a new rule retroactive through multiple holdings that logically dictate the retroactivity of the new rule. . . . [I]f we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have “made” the given rule retroactive to cases on collateral review.

In the 14 years since Tyler, the lower courts have generally followed Justice O'Connor's concurrence, rather than Justice Thomas's majority opinion. The debate, instead, has focused on whether particular rulings qualify as a "Case Two." The latest battleground on this question involves the Court's June decision in Johnson.

II.  Johnson and the Circuit Split

In Johnson, as noted above, an 8-1 Court struck down the so-called "residual clause" of the ACCA on the ground that it is impermissibly vague. As a result, not only are sentences based upon the residual clause no longer valid, but individuals who have already served what would otherwise be the statutory maximum (10 years) are presumably entitled to release, since there is no longer any positive authority for their continuing incarceration. Although there's therefore little question that Johnson falls on the "substantive" side of the Teague line, there's also nothing in Justice Scalia's opinion for the Court that says as much--and that therefore clarifies, per Justice O'Connor's Tyler concurrence, that Johnson's new rule is "of that particular type." In other words, Johnson may or may not be a "Case Two," depending upon whether the Court has to expressly say that it's a substantive rule, or whether it's enough that, based upon prior decisions, it's clear that its rule is substantive.

That's the issue on which lower courts have divided. As of this writing, five circuits (the First, Second, Seventh, Eighth, and Ninth) have authorized second-or-successive claims based upon Johnson, with the First, and Seventh providing detailed opinions explaining that, in their view, it's sufficiently clear from existing Supreme Court precedent that Johnson's rule is substantive, and is therefore an example of Justice O'Connor's "Case Two." Three circuits (the Fifth, Tenth, and Eleventh--over a dissent) have held to the contrary--reading Justice O'Connor's concurrence to require some explicit recognition by the Court that a new rule is "of that particular type," i.e., substantive for purposes of retroactive enforcement.

This circuit split is deeply problematic in two respects: First, it creates massive inequities as between federal prisoners convicted under ACCA's residual clause in the five circuits that have allowed second-or-successive Johnson claims and the three that haven't--with those in the latter category now in prison pursuant to convictions that, at the very least, should trigger resentencing, if not (for those who have served 10 years) outright release. Second, because AEPDA imposes a rigid one-year statute of limitations on second-or-successive claims, those serving potentially unlawful sentences have a closing window within which to obtain relief based upon Johnson. Under AEDPA, such claims must be filed by June 26, 2016--the one-year anniversary of Johnson itself. Thus, the circuit split needs to be resolved by the end of this Supreme Court Term--if not sooner.

Usually, of course, there's an easy way to resolve a circuit split like this one; the Court just grants certiorari to review one (or more) of the circuit-level decisions. Here, however, that's not possible: AEDPA itself takes away the Court's certiorari jurisdiction in cases in which the Court of Appeals denies certification (which insulates the Fifth, Tenth, and Eleventh Circuit decisions from review), and the party that lost in the other five circuits that granted certificates--the federal government--hasn't sought certiorari, ostensibly because it agrees that Johnson can be enforced retroactively in second-or-successive cases. 

Thus, AEDPA, TylerJohnson, and the government's litigating position have produced something of a perfect storm--where there's a major circuit split, and no immediately obvious way for the Supreme Court to resolve it. Enter In re Butler, a petition for an "original" writ of habeas corpus from the Supreme Court.

III.  The Supreme Court's "Original" Habeas Jurisdiction

There are few topics in Federal Courts in which there's a bigger disconnect between academic interest and real-world significance than the Supreme Court's so-called "original" habeas jurisdiction -- "'original' in the sense of being filed in the first instance in [the Supreme] Court, but nonetheless for constitutional purposes an exercise of [the] Court's appellate (rather than original) jurisdiction." Ever since Ex parte McCardle, the Court has alluded to "original" habeas writs as a crucial constitutional backstop -- "an unorthodox but sometimes necessary means of exercising review in situations where other avenues for relief are either practically or formally unavailable." Thus, the theoretical availability of original habeas has allowed the Court to sidestep the grave constitutional questions that would otherwise have arisen from various efforts to strip the Court's appellate jurisdiction in habeas cases, including in McCardle itself, and, more recently, Felker v. Turpin.

In Felker itself, the Court was also dealing with AEDPA's limits on its certiorari jurisdiction over second-or-successive petitions, and had no trouble recognizing its power to issue "original" writs of habeas corpus, which AEDPA left untouched, as an available remedy in appropriate cases--and one that obviated constitutional objections to AEDPA under the Exceptions Clause of Article III. As Justice Souter warned in his concurrence, though, "if it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination were closed, the question whether the statute exceeded Congress's Exceptions Clause power would be open." And, in an eerily prescient coda, he added, "The question could arise if the courts of appeals adopted divergent interpretations of the gatekeeper standard," i.e., exactly what has happened after Johnson.

Justice Souter's warning has proven prophetic; although the Court has received a number of serious, significant original habeas applications in the 19 years since Felker, it has yet to grant a single one, even in a 1999 retroactivity case in which the federal government agreed that original habeas was warranted on remarkably similar facts [the issue in that case was eventually resolved--against retroactivity--in Tyler]. Some of these petitions have come in high-profile capital cases, such as those of Troy Davis and Warren Lee Hill, where original habeas was the only way to prevent potentially unconstitutional executions. But whereas those cases may present more emotionally stirring narratives, the Johnson retroactivity issue is, in some ways, a cleaner vehicle for an original writ, since (1) the question before the Court isn't a "merits" question, but a simple retroactivivty question; and (2) the relevant statutes specifically contemplate that the Supreme Court, and not the lower courts (or state courts), will provide the definitive answer to that question. At the very least, if the Court wasn't going to grant in cases like Davis and Hill, and if it's not going to use original habeas to resolve disputes like the Johnson retroactivity issue, then original habeas really is a historical relic--and the constitutional questions Justice Souter worried about might finally have to be confronted.

IV.  Using Original Habeas to Solve the Problem

If you're still reading, hopefully I've convinced you by now that the Court should grant an original writ of habeas corpus to resolve the Johnson retroactivity issue (or, at the very least, should set the matter for full briefing and argument). There's at least one other pending original application raising the same question, but what makes Butler so attractive is the sentencing issue--because he has already served 10 years, he's entitled to outright release if Johnson is enforceable through a second-or-successive petition, meaning that the Court could simply grant habeas relief and be done. But should the Court do more than just grant the writ? Briefly, let me sketch out two further steps the Court can take--and then explain why, in my view, one is clearly better than the other:

A.  Hold that Johnson is Retroactive

Beyond simply granting the writ in Butler's case (which would leave other cases unsettled), the easiest way out, which would take about a paragraph, would be to expressly hold that Johnson is a "substantive" rule under Teague, and to therefore "ma[k]e" it retroactively enforceable in second-or-successive petitions under AEDPA. Such a ruling would then allow prisoners in the Fifth, Tenth, and Eleventh Circuits to obtain relief--including resentencing and, in cases like Butler, outright release. That wouldn't resolve the circuit split; it would simply moot it, since there would no longer be any question over whether the Supreme Court had "made" Johnson retroactive.

B.  Resolve the Circuit Split Over the Meaning of Tyler

The shortcoming of that approach is that, while it would moot the circuit split over Johnson, it wouldn't resolve the cause of the circuit split--i.e., lingering disagreement over the meaning of Justice O'Connor's Tyler concurrence. Thus, to avoid this exact scenario from arising again, the Court could use an original writ in a case like Butler to clarify who has the better of Tyler--the circuits that interpret it liberally to allow retroactive enforcement whenever it is sufficiently clear that a new rule is substantive, or the circuits that interpret it narrowly to require the Supreme Court to specifically say that a new rule is substantive. I have my own views on how the Justices should answer that question (both on the merits and to spare them from having to take pointless follow-on cases after each new rule is announced). But however this question is resolved, it should be clear that settling it in the context of Johnson will have a salutary effect for future litigation. 

*                              *                              *

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction--and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives. But there's a difference between elusive remedies and illusory ones. For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve. If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions. Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority--and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

Posted by Steve Vladeck on November 16, 2015 at 10:54 AM in Civil Procedure, Constitutional thoughts, Criminal Law, Steve Vladeck | Permalink | Comments (16)

Thursday, November 12, 2015

A monkey, an animal rights organization and a primatologist walk into a federal court

Thus begins the argument section of the motion to dismiss in the copyright infringement lawsuit filed on behalf of a crested macaque whose "selfies" (the macaque pressed the shutter of a camera he pulled away from a photographer) were published by the camera owner. The motion argues both lack of standing and failure to state a claim, both based on the argument that copyright protections do not extend to non-human animals. As I argued in my prior post, I believe that under Lexmark the proper basis for dismissing is failure to state a claim.

I confess that, while I typically don't like this type of jokey writing move, it somehow works here.

Posted by Howard Wasserman on November 12, 2015 at 03:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Monday, October 26, 2015

Multiplying Loaves and Fishes: Why Congressional Debt-Ceiling Brinkmanship May Plunge Us into Economic Depression and How President Obama Can Save Us from Going Back to the Breadlines

The following post is by Jessica Berch and Chad DeVeaux (both of Concordia). They will be guest-blogging in December. But the timing of the new debt-ceiling debate made an early post appropriate.

The Gospels tell us that Jesus multiplied “five loaves and two fishes,” providing a bounty sufficient to feed 5,000 hungry souls. Apparently, House Republicans expect President Obama to perform a similar miracle. On November 3, the Treasury will exhaust its funds. If Congress does not raise the debt ceiling by that date, authorizing the Government to borrow money, the nation may face an unprecedented economic cataclysm. 

As New York Magazine’s Jonathan Chait has observed, only “the most ideologically hardened or borderline sociopath” would “weaponize the debt ceiling”; to do so, one “must be willing to inflict harm on millions of innocent people.” Bloomberg Business explained that a federal default would be orders of magnitude worse than the Great Recession of 2008: “The $12 trillion of outstanding Government debt is 23 times the $517 billion Lehman owed when it filed for bankruptcy on Sept. 15, 2008.”

Following up on earlier work, The Fourth Zone of Presidential Power, (Conn. L. Rev.), we are writing an article entitled Once More unto the (Fiscal) Breach, addressing the president’s options in this latest crisis. 

Federal statutes command the president to implement a myriad of programs and projects. Other laws instruct him to obtain the revenue necessary to subsidize these endeavors by collecting taxes and borrowing funds. The debt-ceiling statute caps the amount of money the Government can borrow at any particular time. Based on the level of revenue the Government is permitted to collect through taxation, basic arithmetic dictates that the president will need to borrow funds exceeding the debt limit to comply with Congress’s appropriation mandates.

If Congress does not raise the debt-ceiling by November 3, the president will face a no-win scenario that Professors Neil Buchanan and Michael Dorf have coined the “trilemma.” He will be forced to choose among three options. He may: (1) ignore the appropriations statutes and cancel spending programs; (2) employ the so-called “nuclear option”—disregard the debt ceiling and borrow sufficient funds to pay for Congress’s appropriations; or (3) unilaterally raise tax rates to produce sufficient revenue to fund Congress’s appropriations. Each of these choices violates an express statutory command.

And each of these choices is also implicitly authorized by the other commands. The power “to execute” a law “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006).

Professors Buchanan and Dorf argue that any choice the president makes will violate the Constitution “because he will have failed to execute at least one duly enacted law of the United States.”  As Professor Buchanan recently noted, “He has nothing but unconstitutional choices.”

We disagree.

The true test of the president’s options in the trilemma lies within the labyrinth of Justice Jackson’s seminal opinion in the Youngstown Steel Seizure Case. As the Supreme Court reaffirmed last June, “in considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework . . . .” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083 (2015). Evaluation of the president’s options in the impending standoff constitutes a paradigmatic question of the scope of presidential power.

In Youngstown, Justice Jackson asserted that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template to evaluate the scope of executive power.

In the first zone, “the president acts pursuant to . . . express or implied” congressional authorization. Endowed with such legislative approval, the president’s power “is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” In the second zone, “the president acts in absence of either a congressional grant or denial of authority.”  In this “zone of twilight,” Congress and the president possess authority that is either “concurrent” or “its distribution is uncertain.” Zone three involves situations where “the president takes measures incompatible with the express or implied will of Congress.” Here, “his power is at its lowest ebb, for . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

At first blush, each of the president’s three options appears to fall into the third zone of Justice Jackson’s taxonomy. Short of multiplying loaves and fishes, every conceivable alternative—unilaterally cancelling federal programs, increasing taxation, or borrowing more money—stands in direct conflict with an express congressional command. Article I bestows the powers to “tax,” “spend,” and “borrow” exclusively upon Congress. Thus, such authority is far removed from those plenary powers that the president may wield irrespective of congressional will.  

Professor Lawrence Tribe echoed this reasoning, noting that “the president’s power drops . . . to its ‘lowest ebb’ when exercised against the express will of Congress.” So, “if the president could usurp the congressional power to borrow, what would stop him from taking over all [of Congress’s] other powers, as well?”

Again, we disagree. On closer examination, the standoffs do not fit within any of the zones identified by Justice Jackson.

Professors Tribe, Buchanan, and Dorf analyze each of the president’s options and Congress’s corresponding legislative commands in isolation. But this view ignores the more nuanced conception of presidential power implicit in Justice Jackson’s framework. As Jackson observed, “the actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.” For this reason, the Court unanimously recognized in Dames & Moore v. Regan, that in applying Youngstown’s principles, when multiple statutes bear upon the president’s powers, the scope of his authority cannot be gleaned by looking at any single law in isolation, but from careful consideration of “the general tenor” of all of Congress’s commands viewed collectively.

Justice Jackson’s three zones contemplate coherent legislative action falling within “a spectrum running from explicit congressional authorization to explicit congressional prohibition.” Congress may sanction presidential action, it may be silent on the subject, or it may prohibit it. Congressional acts in conformity with any of these three coherent choices will affect the president’s powers accordingly. But in the impending trilemma, Congress’s acts—viewed collectively—present the president with a paradox. Congress has directed the president to take specified action and simultaneously forbade him from taking that very same action. Such contradictory legislative instructions cannot find a home anywhere within Youngstown’s existing taxonomy. As such, the present standoff requires the expansion of Youngstown’s spectrum to accommodate a previously uncontemplated fourth zone of presidential power. 

So what principles should apply in this new fourth zone of power?

Dames & Moore recognized that congressional action “evinc[ing] legislative intent to accord the president broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’” In cases falling within the traditional three-zone scheme, such legislative conduct is only considered “pertinent when the president’s action falls within the second [zone]—that is, when he ‘acts in absence of either a congressional grant or denial of authority.’” Medellín v. Texas, 552 U.S. 491, 528 (2008). This is so because when Congress commands the president to undertake (or refrain from undertaking) a particular action, the Constitution normally affords him no discretion. He “must confine himself to his executive duties—to obey and execute, not make the laws.”

But when Congress gives the president contradictory commands, the president cannot simply “obey and execute” Congress’s instructions; obeying one command necessarily requires disobeying another. For this reason, zone two’s invitation principle should be applied in the fourth zone of the Youngstown scheme. Contradictory legislative instructions, by their nature, implicitly “accord the president broad discretion.”

The president’s plenary power “to execute” a law promulgated by Congress “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” And “it is a flawed and unreasonable construction” to read the Acts of Congress “in a manner that demands the impossible.” Thus, when Congress commands the president to complete a particular task but expressly denies him those powers “essential to its due exercise,” the only way to construe these conflicting legislative instructions in a manner that does not “demand[] the impossible” is to infer a congressional intent to “accord the president broad discretion”—to entrust him to make tradeoffs to best accommodate the conflicting mandates.

In the trilemma, the interaction between the debt-ceiling statute and the relevant taxing and spending laws render compliance with all three statutory mandates impossible. Congress commanded the president to complete a task—implement specified programs—but denied him the “authorities essential to its due exercise”—the power to acquire sufficient revenue to pay for the mandated expenditures.

Because statutes are not interpreted “in a manner that demands the impossible,” “the general tenor” of Congress’s commands, read collectively, inherently “‘invite’ ‘measures on independent presidential responsibility.’”

Since the president cannot fully comply with all of Congress’s commands, the statutory impasse invests the president with discretion to implement any of the three options addressed above. He may cancel federal programs to reduce spending, direct the Treasury to borrow funds in excess of the debt ceiling, or even order modest tax increases to satisfy the Government’s fiscal obligations. But he should not stand idly by and allow Congress to plunge us into a Global Economic Depression.

Posted by Howard Wasserman on October 26, 2015 at 11:01 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (9)

Tuesday, October 20, 2015

Is It Unconstitutional to Apply Erie to D.C. Law?

Last December, I wrote a post about the strangeness that arises from the applicability of Erie (pursuant to which federal courts in diversity cases apply the state substantive law dictated by the choice-of-law rules in the state in which they sit) to the District of Columbia. Although it's strange to apply Erie in the federal territories at all, it's especially strange in D.C., which is the only one of the six federal territories in which the court receiving deference under Erie was created (and is controlled) by Congress, as opposed to the territorial legislature. Thus, as my post last December noted, when they follow Erie, the Article III D.C. district court and D.C. Circuit are necessarily deferring to an Article I court's interpretation of federal law (to wit, the D.C. Code). And although this result is not remotely compelled by the Rules of Decision Act, the (Article III) D.C. courts have nevertheless chosen to adopt it for purposes of convenience and litigation efficiency, if nothing else. 

The more I think about this issue, the more I wonder if this approach isn't just "strange," but also one that raises constitutional concerns. After all, it's well settled that Congress may not give non-Article III actors (whether non-Article III judges or Article I or Article II entities) supervisory authority over Article III courts, but the application of Erie to D.C. at least theoretically gives the D.C. Court of Appeals a supervisory power over some federal law within the District vis-a-vis their Article III brethren, even if it lacks authority over the latter's decisions. Thus, could Congress really compel a lower Article III court to follow an Article I court's interpretation of federal law (whether in general or as limited to the "local" federal law of D.C.)? This surely goes much further than Chevron, since, among other things, there's no room under Erie to set aside the Article I court's unreasonable interpretations of ambiguous "local" law...

But even if you don't find that argument compelling, what if the Supreme Court were ever presented with a question of D.C. local law? Wouldn't there be a serious problem under Article III with following Erie in such a case, given that the Supreme Court would, insofar as it applied Erie to the District of Columbia, necessarily be deferring to an inferior Article I federal court on a question of federal law (as compared to deferring to an independent state supreme court on a question of state law)? Although I'm somewhat ambivalent about the constitutional problem with applying Erie in the Article III D.C. lower courts, the constitutional problem with applying it in the Supreme Court seems manifest.

To be sure, an obvious rejoinder is that, unlike the D.C. district court and D.C. Circuit, the Supreme Court has never chosen to follow Erie in such a case, and so the constitutional question hasn't arisen. And in an appropriate future case, the Supreme Court could certainly choose not to follow Erie then, too. So if the constitutional problem only arises at the Supreme Court level (and again, I'm still not sure it's that limited), it can easily be avoided by the Justices if and when it presents itself.

But insofar as a refusal on the part of the Supreme Court to be bound by D.C. law as interpreted by the D.C. Court of Appeals would solve the constitutional problem, it seems to me that it also undermines the pragmatic justification the Article III D.C. lower courts have advanced for adopting Erie, since it suggests that, in fact, there will be cases in which the Article III courts will be constitutionally bound to reach an independent interpretation as to the meaning of D.C. law--and that those cases will come through the very courts voluntarily choosing to defer.

Posted by Steve Vladeck on October 20, 2015 at 03:53 PM in Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink | Comments (17)

The rival of my rival is . . .

This defies words. (H/T: Josh Blackman). Westboro Baptist yesterday picketed outside the Rowan County Clerk's Office in a protest of Kim Davis, for her sins of being divorced and of failing to obey her oath to follow the law. Apparently "all sin" is "awful," so adultery, same-sex marriage, and oath-breaking all stand on the same footing.* I wonder what LGBTQ groups are thinking right about now.

* Never mind that Davis does not violate her oath by not following SCOTUS precedent--I do not expect the Westboro folks to understand the precedent/judgment distinction).

Posted by Howard Wasserman on October 20, 2015 at 09:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, October 19, 2015

Merits and mootness

In my writing here and elsewhere, I have argued that much of what is labeled as subject-matter jurisdiction, sovereign immunity, and standing are all better understood as being about the merits of a claim rather than Article III adjudicative thresholds. (I discuss standing in a forthcoming essay on next month's arguments in Spokeo v. Robins). And ripeness has somewhat been absorbed into standing. But that I thought the one threshold that might survive and make jurisdictional sense was mootness.

That is, until I listened to last week's arguments in Campbell-Ewald v. Gomez.

The issue is whether a case becomes moot when a defendant makes an offer of judgment that gives the plaintiff everything he asked for in the lawsuit and how that affects his status as representative plaintiff of a still-to-be-certified class. Counsel for Gomez and for the support of Gomez both framed their arguments in the difference between a court entering (or even forcing) a final-and-enforceable judgment based on the parties' agreement and a court dismissing an action for want of jurisdiction as moot. The former gives the plaintiff the judicial relief he requested when he filed the lawsuit, just as if the court had decided the merits.

Counsel for the U.S. described the practice of district courts (which I recall following as a clerk): Upon notification of a settlement, the court would enter a consent decree (in a prospective case) or dismiss a damages claim while retaining jurisdiction to enforce the terms of the settlement. No one ever thought to describe this as mootness. Both attorneys explained why what the Justices were talking about in Article III terms as an absence of adversariness could easily (and in some cases, more properly) be recharacterized in merits terms, as the end of a present dispute that gave the defendant an affirmative defense and justified the entry of judgment. When the plaintiff has received everything he asks for, the defendant has a defense against any finding of liability, since the injury (which exists) has been remedied.

This is an unusual case in which to discuss mootness, since the plaintiff was primarily seeking retrospective relief for past harm. Mootness generaly occurs where an ongoing real-world injury has somehow ceased. With retrospective relief, however, the injury already has occurred and the judicial remedy sought is merely compensation for an already-completed injury; it does not cause the injury to cease.

But even with prospective relief, the merits characterization makes more sense. Take, for example, a constitutional challenge to a repealed statute. The plaintiff's rights are no longer being violated and he no longer is being injured by the defendant's conduct, since there is no longer a threat of enforcement. But it makes more sense to say the defendant wins on the merits because the plaintiff's rights are no longer being violated and the defendant is no longer subject to liability, just as it makes more sense (under the Fletcher model) to say the defendant wins on the merits because it cannot be liable when the plaintiff's rights were never violated in the first place.

I have to give this some more thought, especially once the Court decides the case.

Posted by Howard Wasserman on October 19, 2015 at 08:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, October 14, 2015

Judicial departmentalism

Kevin Walsh has coined  the term to perfectly capture the precedent/judgment/departmentalism distinction I have been drawing and that Josh Blackman and I make: "Judicial Departmentalism." (H/T: Rick, in a comment to my prior post). The idea is that SCOTUS precedent and vertical stare decisis control what happens within the judiciary.* But they do not control the actions of anyone outside the judiciary, particularly officials in the other branches of government, who remain free to act on their own constitutional understandings in terms of the legislation they propose, the way they enforce laws, etc. At bottom, Kevin argues, the American Principles Project is rejecting judicial supremacy in favor of judicial departmentalism.

* The APP statement acknowledges the supremacy of the Supreme Court over the federal judiciary, although does not mention state judiciaries. I default to James Pfander's argument that a state court deciding a federal issue is a "Tribunal inferior to the Supreme Court," thus part of the federal judiciary and bound by vertical stare decisis to the same extent as a federal district court.

Of course, judicial departmentalism inevitably morphs into judicial supremacy, because the actions of public officials contrary to binding SCOTUS precedent will eventually find their way into court, where vertical stare decision and judicial departmentalism will compel the court to issue a judgment compelling the officer to abide by the precedent. And the executive cannot act contrary to a judgment directed at him--stated differently, the specific judgment pulls the officer into the judicial department. Moreover, a number of rules that the judiciary applies functionally enforce, or at least incentivize, judiciary supremacy: 1) FRCP 11 requires lawyers and parties to bring cases that are supported by existing law or a nonfrivolous argument for overturning that law, meaning law as established by SCOTUS; 2) qualified immunity is lost and damages possible against a public official who disregards SCOTUS precedent; and 3) the knowledge that an official will certainly be enjoined by a court applying SCOTUS precedent may cause the official to fall in line. [Ed: I guess I should add state Rules of Professional Responsibility, although I know less about these; based on comments to my earlier post, it sounds as if they limit lawyers' freedom to advise their government clients not to feel tied to judicial supremacy]

But the fact that we (likely, if not certainly) reach the same result at the end of the does not mean there are not multiple steps involved, that everyone is bound everywhere by what SCOTUS says about the Constitution, or that our system is, in fact, one of judicial supremacy.

Posted by Howard Wasserman on October 14, 2015 at 11:08 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Tuesday, October 13, 2015

Lawyerly obligations, precedent, and judgments

A group of conservative academics, under the name "American Principles Project," has issued a statement calling for constitutional resistance to Obergefell and calling on presidential candidates to refuse to treat it as binding precedent. The statement essentially relies on a comparison between Obergefell and Dred Scott--that is, between a decision allowing same-sex couples to enjoy the same benefits and protections as any other couple and a decision categorically denying rights to a group of people based on their race.

I have not blogged about this before, finding both the rhetoric in the statement and the rhetoric of the responses absurdly over-the-top (even while agreeing with the basic idea that public officials can act contrary to Obergefell if believing it wrong). But Lyle Denniston has this post at the National Constitution Center Blog arguing that lawyers who sign and follow the call are acting contrary to their ethical/professional-responsibility obligations. In particular, Denniston insists that a lawyer fails to show "respect" for precedent in arguing that it should not be treated as binding or controlling in similar cases. He also points to Kim Davis as an example of what happens when a public official refuses to treat a decision as binding.

The point about ethical obligations cannot be right. Denniston analogizes to a Michigan lawyer disciplined for calling a panel of judges "Nazis" and "jackasses." Accepting that decision as consistent with the First Amendment, a personal attack on judges is a far cry from the sorts of legal arguments and positions lawyers can take on matters of public concern, including the state of the law and what the state of the law should be. It also cannot be that a lawyer can be sanctioned for arguing that a court disregard or overturn even binding precedent. Arguing that Obergefell is wrong, even egregiously, abuse-of-power wrong, is not the same as personally attacking the judge.

The reference to Davis at the end of the post is even more off-base, as it again misunderstands the meaning of precedent and the difference between judgments and precedents. Davis was not held in contempt for arguing that Obergefell was not or should not be binding precedent. She was held in contempt for ignoring a court order, aimed directly at her in a case to which she was a party, that applied Obergefell. But prior to  the entry of that order, she did nothing that would subject her to contempt. And one cannot be in contempt of precedent. Denniston is right that "it is now accepted, very widely if not universally, that a Supreme Court decision . . . dictates the outcome when the same issue arises in a new case." But that still requires a new case in which the precedent dictates the outcome. And until that new case comes along, no one is in contempt. And no lawyer who signs the form or advocates resistance to Obergefell, in or out of court, can possibly be subject to professional sanction.

Posted by Howard Wasserman on October 13, 2015 at 06:28 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Predictable comments

The first episode of C-SPAN's Landmark Cases covered Marbury. It was an interesting program, mostly a discussion between Akhil Amar and attorney Cliff Sloan, who has written a book on the case. The discussion tells the full historical and political context of the case.

I was struck by a few things. And as to all, I recognize that this program is not pitched at lawyers and law students. But if the purpose is to elevate the conversation, perhaps some better editing was in order.

First, in interview excerpts, both Chief Justice Roberts and Justice Ginsburg entirely conflate judicial review and judicial supremacy, stating that Marbury recognized  that the Court can review constitutionality and its word on that is final. The second does not follow from the first, of course. Amar pushed back; while insisting that he is not a Kim Davis supporter,* he pointed to Andrew Jackson vetoing the bank and Jefferson pardoning those convicted under the Alien and Sedition Acts. How do those who espouse judicial supremacy explain those actions? It seems to me there are only two possibilities: 1) Both presidents acted unconstitutionally (because inconsistent with the Court's interpretation), but in a way not subject to judicial review or 2) Both presidents acted constitutionally, in which case the Court does not have the final say on constitutional meaning. I presume both Roberts and Ginsburg know this and were using shorthand for a lay audience.

* As I have argued, Davis only begins as a story about shared constitutional interpretation, but  ends as being about the finality and exclusivity of judgments.

Second, there is an interview excerpt with Rep. Bob Goodlatte, the Chair of the House Judiciary Committee, who says the problem is that there is often too much judicial review. He then complains about two situations: 1) the Court using judicial review to make up the Constitution where there is nothing to be found and 2) the Court refusing to recognize in the Constitution what "most people" know is there. For those of you scoring at home, # 1 is Roe, # 2 is NFIB. But the good or bad of judicial review should not be about decisions you happen to think are wrong. Again, I know I should not expect more from a member of Congress.

Third, even crazy people listen and try to call into C-SPAN. One of the callers started rambling about two religions that want to impose their law on everyone else: "the Jewish law and the Sharia law." To the caller's credit, when the host asked what this had to do with Marbury, the caller said "nothing."

Posted by Howard Wasserman on October 13, 2015 at 01:56 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Thursday, October 08, 2015

It's going to get pricey

Michigan has agreed to pay $1.9 million in attorneys fees to the plaintiffs who successfully challenged the state's same-sex marriage ban. That is in the same ballpark as Wisconsin paying $ 1.055 million in fees (that case only went to the court of appeals, not to SCOTUS).

Kim Davis must know that her stunt is going to get very expensive very quickly.

Posted by Howard Wasserman on October 8, 2015 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, October 03, 2015

"Landmark Cases" on C-SPAN

C-SPAN has produced (in conjunction with the National Constitution Center) a new weekly series called Landmark Cases. (H/T: Faculty Lounge). The series premieres tomorrow evening with Marbury and concludes on December 21 with Roe. In between, the series hits on Dred Scot, Slaughterhouse, Lochner, Schenck, Korematsu, Youngstown Steel, Brown, Mapp, Baker v. Carr, and Miranda.

Apparently there have been no landmark cases since 1973. And the choice of Schenck over Abrams (where someone at least stood-up for the First Amendment claimant) or New York Times (where the First Amendment claimant prevailed) is an interesting one.

Posted by Howard Wasserman on October 3, 2015 at 11:33 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, October 01, 2015

U.S. v. Klein returns to SCOTUS

I spent the better part of two years a few years ago writing about United States v. Klein, including a number of posts here. The Court this morning granted cert. in Bank Markazi v. Peterson on whether Klein's separation-of-powers principle is violated by a statutory provision blocking certain Iranian-controlled assets for use in satisfying U.S. terrorism-related judgments against Iran.

Section 8772 of Title 22 provides that certain Iranian-controlled assets are subject to execution or attachment to satisfy money judgments against Iran "for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources." The assets described are specifically identified as the ones targeted in Peterson (which is mentioned by name) and which already had been restrained by the court in that case prior to enactment of the law. The statute requires that the court hold a hearing and determine whether Iran owns the assets, in whole or in part.

Bank Markazi argued below that the law violates the principle of Klein by improperly compelling the court to reach a preordained result--namely that Iran owns these assets. It emphasized that § (b) refers to the Peterson litigation by name and that the result of any judicial hearing is preordained, since Iran's interests in the assets was known and established before § 8772 was enacted. Nevertheless, the Second Circuit rejected the Klein argument, insisting that § 8772 changed applicable law for a pending case, but still required an independent judicial determination and application. Nor was it problematic that the law was drafted for a specific, identified litigation, something the Court had previously found did not equate with compelling an outcome. Section 8772 did not dictate an outcome; it only changed the law in a way likely to produce, through judicial application of the amended law, Congress' preferred outcome. But the likelihood of an outcome does not signal congressional dictation of an outcome; "[i]ndeed, it would be unusual for there to be more than one likely outcome when Congress changes the law for a pending case with a developed factual record."

Interestingly, the Second Circuit opinion contains some language that might have teed the case up for cert. In an act of understatement, the court acknowledged that the line between a valid change in law and an invalid legislative adjudication "is often difficult to draw." In fact, "there may be little functional difference between § 8772 and a hypothetical statute directing the courts to find that the assets at issue in this case are subject to attachment under existing law, which might raise more concerns." The court made clear that § 8772 did not cross the constitutional line because of the Court's guidance in Robertson.

So perhaps the Court is looking for a chance to reconsider Robertson and that line. Indeed, the ease with which courts can characterize just about any enactment as a change of law rather than a congressional compulsion is part of why Klein's "no dictating outcomes" principle carries so little force. This case might give the Court a chance to breathe some life into Klein.

Posted by Howard Wasserman on October 1, 2015 at 01:55 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Thursday, September 24, 2015

Justice and fairness v. procedure

Judge Bunning declined to stay his order extending the injunction against Kim Davis to all eligible couples. (H/T: Marty Lederman). Bunning explained:

Had the Court declined to clarify that its ruling applied to all eligible couples seeking a marriage license in Rowan County, it would have effectively granted Plaintiffs’ request for injunctive relief and left other eligible couples at the mercy of Davis’ “no marriage licenses” policy, which the Court found to be in violation of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Such an approach would not only create piecemeal litigation, it would be inconsistent with basic principles of justice and fairness. Thus, when the need arose, the Court clarified that its ruling applied with equal force to all marriage license applicants in Rowan County, regardless of their involvement in this litigation. (emphasis added).

Perhaps he is right about justice and fairness. But he is flat wrong on the procedure. What Bunning describes as "piecemeal litigation" is simply "litigation," which adjudicates and resolves the obligations of parties, not the entire world. The way to avoid the feared piecemeal litigation is to certify the class, as the plaintiffs requested, a move Bunning continues to resist. Otherwise, new couples are free to file new suits or seek to join or intervene in the pending action. Short of that, Bunning lacks the power to broaden the injunction in this way. And this remains the one issue on which Davis might actually prevail.

Posted by Howard Wasserman on September 24, 2015 at 10:01 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Settlement in Tolan v. Cotton

Last year, SCOTUS summarily reversed a grant of summary judgment against a plaintiff in a § 1983 action, concluding that the district court had impermissibly resolved disputed facts in defining the factual context for purposes of qualified immunity. I wrote about the case, arguing that, through some procedural confusion, it might indicate a new scrutiny of this sort of sub silentio fact-finding on qualified immunity.

SCOTUS remanded the case to the Fifth Circuit to reconsider whether other, undisputed facts supported qualified immunity; the Fifth Circuit sent it back to the district court. In September, the court granted summary judgment in favor of the city and sent the individual claim to trial, commenting that SCOTUS would not "be satisfied if we didn’t take this case to trial." After one day of trial, the case settled for $ 110,000, a typical outcome for cases that do not go away on summary judgment and a typical settlement amount for a claim involving serious-but-not-life-threatening injuries. (H/T: Jonah Gelbach of Penn).

An interesting side note: Tolan sought to have District Judge Melinda Harmon recuse over comments she made at the pretrial hearing on the eve of trial. The basis for the motion was a newspaper article reporting on the conference; the article quoted Harmon as saying she was tempted to grant summary judgment on the individual claim, but read SCOTUS as hinting that the case should go to trial. The article also quoted her as saying she was "confident" and "had faith" in her opinion and thought she was right the first time.

The court rightly denied the motion. She stated that some of the statements were taken out of context and referred to the claim against the city, not the individual officer. Other statements involved legalities and interpretations of law, with no discussion of what material facts might be undisputed or not. Moreover, there is nothing improper with the judge stating that she continues to believe she was right about her initial summary judgment decision on the individual claim (the one SCOTUS reversed). My experience is that district judges always continue to believe they were right even after being reversed. But that does not impair their ability to apply and follow that decision, much less indicate favoritism or antagonism towards the party against whom they originally ruled. Otherwise, a case should be assigned to a new district judge whenever there is a reverse-and-remand, which would create all sorts of unworkable procedural problems in complex cases.

Posted by Howard Wasserman on September 24, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, September 20, 2015

Deparmentalism, popular constitutionalism, and constitutional politics

Joey Fishkin writes at Balkinization about the race among GOP presidential candidates to undo birthright citizenship. Fishkin identifies several approaches--an "old school" departmentalism espoused by Mike Huckabee, in which the President can ignore Supreme Court precedent, a moderate approached advocated by Donald Trump (and echoed by Rand Paul and Ted Cruz) that acknowledges the Court's "ultimate authority" in constitutional interpretation, and pure judicial supremacy suggested by Carly Fiorina, under which only a constitutional amendment can challenge Supreme Court precedent.

Fioria to one side, I am not sure the distinction between Trump et al and Huckabee is as sharp as Fishkin suggests. In fact, either approach envisions both the power of the President and Congress to disagree with and disregard SCOTUS precedent and the interpretive role for SCOTUS.

President Trump must initiate birthright citizenship as a live constitutional issue--for example, signing a law providing that children of undocumented immigrants are not citizens and are subject to removal or commencing removal  proceedings against U.S.-born children of undocumented immigrants. Either move would be in so-called "defiance" or "disobedience" to (admittedly old) precedent on the meaning of "subject to the jurisdiction" in § 1 of the Fourteenth Amendment, based on President Trump's independent assessment (supported by constitutional "experts") of the meaning of § 1. That interpretive independence is a key feature of departmentalism, which holds that the President does not violate his "Take Care" obligations or his constitutional oath by acting contrary to even SCOTUS precedent. Either move also triggers a role for the Court, as the judiciary almost certainly will be called on to consider the issues, whether in reviewing a removal decision or in evaluating the constitutional validity of the statute in a pre-enforcement challenge, and render a judgment in a specific challenge, based on the court's own constitutional analysis.

The difference among the candidates may be what happens next. Under a middle-ground departmentalism, the President must abide by and enforce the judgment in those specific cases. But he can continue to act in disagreement with the opinion underlying that judgment (as by, for example, initiating new removal proceedings against new individuals),  until a new judgment bars him from doing so as to particular individuals. Eventually, the repeated losing will become politically and financially expensive and he will stop the cycle. This does seem a middle ground between where Fishkin places Huckabee (who seems to believe obeying an individual judgment constitutes "judicial tyranny") and Trump (whom Fishkin seems to presume would fall in line with SCOTUS precedent after the first decision).

For present purposes, I would be content to hear Trump argue, in essence: "My constitutional vision, supported by constitutional experts, is that § 1 does not guarantee birthright citizenship to the children of non-citizens, I am unconvinced by the Supreme Court's 120-year-old decision to the contrary, and, as President, I will act on that constitutional vision in the following ways. I do not need a constitutional amendment in the first instance."

But Fishkin offers a way in which departmentalism and popular constitutionalism overlap. The judiciary can be influenced and ultimately swayed by "experts" whose advocacy (in and out of court) make heretofore unexpected constitutional positions seem reasonable and proper to the public and thus to the court. Those experts similarly can influence the popular branches in their departmental constitutional analysis and their subsequent actions (described above) to put the issues in play and in front of the courts. In other words, I describe above a process of the executive repeatedly losing. Fishkin suggests that departmentalism, girded by popular constitutionalism, may lead to an ultimate constitutional victory in the courts.

Posted by Howard Wasserman on September 20, 2015 at 10:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, September 18, 2015

Sixth Circuit denies Kim Davis another stay

The Sixth Circuit on Thursday denied Kim Davis a stay pending appeal of the order extending the original injunction to bar her from denying licenses to any eligible couples (the extended injunction was issued the same day Judge Bunning jailed Davis for contempt). (H/T: Religion Clause Blog and Josh Blackman) Davis never asked the district court for a stay pending appeal, as required by Federal Rule of Appellate Procedure 8(a)(1)(A), and the court of appeals refused to accept "extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be hearing" as basis for finding that it would be "impracticable" to move in the district court, as required by FRAP 8(a)(2)(A)(i).

The latter conclusion is fair, I suppose, since the argument basically accuses the district court of having it in for Davis. Nevertheless, there is something strange about asking a district court to stay an injunction that he just entered by finding that the defendant has a substantial likelihood of success on appeal--in other words, there is a substantial likelihood that the district court was wrong. We do not require trial courts to make a similar confession of likely error in any other context. It also seems like a waste here--Davis will now ask Bunning for a stay, he will deny it, and the issue will be back with the court of appeals in a week or two.

It is notable that the extension of the injunction was not, as plaintiffs requested and many (including me) assumed, in anticipation of class certification. Instead, the district court extended the injunction in recognition of two other individual actions challenging Davis' no-marriage policy. (H/T: Marty Lederman for the analysis). I am not sure that is a valid basis for extending the injunction (where as expanding in anticipation of class status would be), so Davis may actually have one small argument that is not doomed to total failure.

Posted by Howard Wasserman on September 18, 2015 at 01:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Monday, September 14, 2015

Texas, Abortion, and the Supreme Court – Part II

As I noted in an earlier post, several Texas abortion providers have filed a petition for certiorari in Whole Women’s Health v. Cole, asking the U.S. Supreme Court to decide on the constitutionality of a Texas state law requiring abortion providers to have admitting privileges at a local hospital and requiring all abortion clinics to qualify as ambulatory surgical centers (ASCs), including requirements that are more demanding than those that apply to other, similar facilities that do not provide abortions. Here is my brief analysis of the legal issues in that case. (Note that this analysis is only of the “undue-burden” issues; there is also a res judicata issue in that case, which I will not analyze.) 

The plaintiffs in Whole Women's Health claim that the admitting-privileges and ASC requirements are unconstitutional because, under the standard identified in Planned Parenthood v. Casey, they impose an undue burden on the right to abortion. There are basically two ways in which these requirements can be seen to impose an undue burden. 

First, they will close three quarters of the abortion clinics in Texas, reducing the number from 40 to 10. The law would therefore drastically reduce abortion access for women in Texas, essentially making the procedure completely unavailable for a large swath of Texas residents. The problem would be particularly acute in the Rio Grande Valley, which is a largely impoverished area that would be left without any abortion provider at all (indeed, a recent study listed two metropolitan areas in the Rio Grande Valley as the two poorest cities in the country). 

Although the undue burden standard is notoriously amorphous, there seems to be good argument that a requirement that closes so many clinics and reduces access so dramatically-- in practical terms eliminating the right to seek an abortion for a large number of women -- would have to constitute an undue burden. In other words, if anything is an undue burden, this is.

At the same time, this theory raises the question of just how many clinic closings is too many. There is no easy answer to that question. If a state enacted a law that would have the effect of closing every clinic in the state, it would seem to constitute a clear undue burden for women in that state. But how close to that line can a state come without violating the undue burden standard? Moreover, what if the clinics were being closed because they were all being operated by incompetent physicians, or because they were unsanitary?  (That is emphatically not the case here, but I pose that hypothetical because it raises the question of whether undue burden can be judged based on the impact on access alone.)

That’s the first argument. The second argument is related. It says that the Texas law imposes an undue burden because it dramatically reduces abortion access without having a similarly significant health benefit to women in Texas. The state justifies the ASC and admitting privileges requirements as measures that protect health and safety. Yet, there is no evidence whatsoever that these requirements actually do advance any health or safety interest. So, the plaintiffs argue, the burden on abortion is “undue” because it has little positive impact in advancing the state’s purported interest while imposing a heavy burden on abortion access. In other words, in determining whether a burden is “undue,” courts should weigh the effect on abortion access against the extent to which the restriction actually advances a legitimate state interest. 

The circuits are currently split on whether to engage in this sort of balancing test. As the plaintiffs’ cert petition notes, the Seventh and Ninth Circuits hold that this sort of balancing is required by the undue burden test, whereas the Fifth and perhaps Sixth Circuits have rejected it.

Again, it seems the plaintiffs have a very strong argument here.  The balancing-test model makes sense of the hypothetical I presented above, in which the state’s clinics were being closed due to real, rather than unsubstantiated, health and safety concerns. In addition, if the undue-burden test doesn’t take the legitimacy of the state’s interest or the mean-end fit into account, then it starts to look a lot like a rational-basis standard of review, according to which any asserted state interest in health and safety, no matter how pretextual, is permitted to justify closing of clinics, as long as it doesn’t close all, or virtually all of the clinics.

So, that’s the big-picture overview of the legal claims in the case. In my third and final post on this case, I’ll do a brief evaluation of the likelihood that the Court will take the case and how it might decide it.

Posted by Jessie Hill on September 14, 2015 at 10:25 AM in Constitutional thoughts | Permalink | Comments (19)

Tuesday, September 08, 2015

Kim Davis released from custody

Kim Davis has been released from custody and had the contempt sanction lifted, based on the plaintiffs' report that they had received marriage licenses and that deputy clerks were issuing licenses to "all legally eligible couples." The court furthered barred Davis from  interfer[ing] in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples." (H/T: Marty Lederman).

As written, however, the new order brings us back to the recurring problem we have seen with most district court injunctions: This has not been certified as a class action, so the injunction was satisfied when the named plaintiffs received their licenses. Further, Davis cannot properly be held in contempt for interfering with the issuance of licenses to other couples; those licenses are not  formally happening on the strength of the court's order, so Davis would not formally be defying the court's order. Of course, if she attempts to push that point, the plaintiffs will simply ask Judge Bunning to certify the class, thereby expanding the injunction to that scope. The wiser move is for Davis to stand aside and let her deputies voluntarily comply.

Posted by Howard Wasserman on September 8, 2015 at 01:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, September 07, 2015

What if it doesn't pass and other questions about Lessig 2016

Larry Lessig successfully crowd-funded his $ 1 million and is running for President as a single-issue "referendum candidate"--he will serve as President only until passage of the Citizen Equality Act of 2017, after which he will resign and have his Vice President (preferably a liberal such as Elizabeth Warren or Bernie Sanders) become President.

I generally think this is silly. And I say this while supporting pretty much all of the substantive provisions of the Act and as someone who might support a Lessig-type as a presidential candidate (if I thought he could win a general election, which I don't). But a few questions--none of them new or original, but I throw them out here:

1) What if the law does not pass in his first term? Would he seek reelection in 2020?

2) What does it mean for the law to "pass"? Must every piece pass? If not, how many pieces? Must it pass in the current form or are amendments permissible? If not, how watered-down can a version be to still constitute "passing" so as to trigger his resignation?

3) Does he resign after the legislation is signed? Or does he wait around for completion of judicial review? Nothing in the Act seems constitutionally questionable. Of course, in 2009, we all would have said that the health-insurance market affects interstate commerce. And what happens if some (or all) pieces are declared invalid.

4) If he fails to resign as promised, is that an impeachable-and-removable offense?

5) Accepting that legislation takes months even in a functioning Congress (which we surely do not have), how will Lessig handle all the other presidential responsibilities or who will he delegate them to? Will the VP be handling most of these other presidential duties? How will he fill judicial and executive vacancies? Is it fair to question whether he cares about these "mundane" aspects of the presidency and to be concerned that he doesn't?

6) Is it fair game during the election and "debates" to prod Lessig about his views and plans on other issues, accepting that he will have to do other things as President, at least for some period of time? Will he answer these questions and will he answer them well?

7) Are substantial numbers of Democratic voters this detached from political reality? At least part of the frustration with the Obama presidency involved the extraordinary (and unrealistic) expectations when he entered the White House, which he could not possibly meet.* And he began his presidency with substantial majorities in both houses and a filibuster-proof majority in the Senate. And he still could not get done everything he wanted or tried to do, at least not in the absolute way he wanted.

* No, that was not the only problem. But it has played a role in the perception of his achievements as President.

What makes Lessig (or those who would support him) think he will have any more success, especially since he definitely will not have a House majority and almost uncertainly will not have a Senate majority. Does he (or his voters) believe putting the word "referendum" into his candidacy will actually give him more of a mandate than Obama enjoyed despite having received 70 million votes and 365 Electoral votes? Does he (or his voters) believe Mitch McConnell, John Boehner, or any of the representatives who might lose their seats under a non-gerrymandered proportional representation scheme will care?

8) Aren't all the incentives for Republicans to oppose and drag their feet on this (beyond even the ordinary perverse incentives of divided government)? The longer it drags on, the longer they keep in office someone who really does not want to be President. And the longer it drags on (or the legislation does not pass), the easier to run against Lessig in 2018 and 2020 as a failure who could not achieve his one (and only) presidential goal. "Presidential failure," not "congressional recalcitrance," is always the narrative on which the press, and thus the public, seize.

Posted by Howard Wasserman on September 7, 2015 at 08:22 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, September 06, 2015

Many other takes on the Kim Davis mess (Updated)

Both from Balkinization. Marty Lederman parses Kentucky law and suggests that either the deputy-issued licenses are invalid or there was no need to hold Davis in contempt it was improper to throw Davis in jail (the contempt order was proper). Mark Graber discusses a "class bias in rights" (which Paul already commented on), under which rights that inure, in whole or in part, to the wealthy are more easily implemented than those that inure largely to the less wealthy.

Both are worth a read.

Update: Mike Dorf adds his take, arguing that a district court has broad powers to remedy constitutional violations, even where those remedies might otherwise violate state law. Thus, even if Davis's  name/consent ordinarily is necessary, once it became necessary for licenses to issue without her name (in order to ensure compliance with the underlying injunction), those licenses could be made valid. Note that Mike and Marty agree that it was unnecessary to put Davis in jail.

Further Update: More from Sam Bagenstos (Michigan) in The New Republic.

Posted by Howard Wasserman on September 6, 2015 at 05:32 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, September 04, 2015

Out George Wallace-ing George Wallace

I was quoted (mostly out of context) in yesterday's New York Times on Kim Davis; I said that Davis was "out George Wallace-ing George Wallace." Wallace's stand in the schoolhouse door, and accompanying speech, remain one of the signature moments of Massive Resistance to Brown and integration. But after making his speech, Wallace stood down when facing the Attorney General, rather than being hauled off by a federalized National Guard or facing a contempt charges (the University had been enjoined to allow Vivian Malone and James Hood to register and Wallace had been enjoined not to interfere with the prior injunction). Wallace made his point and had his moment, but in the end chose not to defy the forcible execution of a court order or to go to jail for a lost cause.

What does it say about society, this issue, current politics, and attitudes towards the judiciary that Davis believed it necessary or proper to take that next step? Is it that she believes she is fighting for conscience rather than secular principles such as federalism?  Is her stand less popular locally or nationally than was Wallace's, necessitating the bigger step in order to be heard? Is her stand more popular locally or nationally, such that she garners more support and sympathy by going to jail than Wallace would have? How does the relative popularity of Obergefell as opposed to Brown affect the respective choices each make.

Does Davis go down as this generation's George Wallace? She might, if only because she is proving so rare. According to this WaPo story, citing the group Freedom to Marry, there are only a handful of counties (fewer than 20) in Southern states refusing to issue licenses, at least as a matter of formal office policies.*

* And 13 of those are in Alabama, where probate judges are waiting for the Supreme Court of Alabama to lift the mandamus prohibiting them from issuing licenses (or for SCOTUS to quickly reverse if the Supreme Court of Alabama refuses to lift the mandamus).

Posted by Howard Wasserman on September 4, 2015 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (19)

Marriage licenses issuing in Rowan County

Here and here. The first couple--William Smith and James Yates--were not parties to the litigation. No word on whether the license was issued in Kim Davis' name or whether it is valid if issued over her command not to. That probably is moot; it would arise only if a marriage officiant refuses to recognize the license or someone somewhere down the line refuses to recognize the marriage as valid, neither of which is likely to occur.

Davis remains in jail, probably until next week. It may come down to whether, if she returns to her job, she intends to order her staff to again stop issuing licenses.

By the way, note the rhetoric floating around here: Davis's husband is quoted as saying "Just because five Supreme Court judges make a ruling, it’s not a law." Now regardless of how silly that statement is on its own, it is notable that blame for his wife being in jail is being placed on the shoulders of the Supreme Court and Obergefell. But the problem is not that Davis ignored the Supreme Court, at least not directly; the problem is that she ignored a district court order directed at her.

Posted by Howard Wasserman on September 4, 2015 at 09:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, September 03, 2015

Kim Davis (not Jim or Garfield) jailed for contempt

Judge David Bunning has held Kim Davis in contempt and had her jailed. Bunning apparently pointed to the fact that members of the public are raising money to cover the fines (damn crowd-funding) as evidence that fines alone would not work. This is civil contempt, so she will be released as soon as she agrees to comply with the injunction and issue licenses.

So Davis is now a martyr to the cause, probably what she and her lawyers wanted. It raises a couple of questions: 1) Does this provide grounds for the governor or other state-level official to remove her from office (a question of Kentucky law)? 2) Is Davis now "unable" to issue licenses, opening the door for the county judge to do it, as a commenter to an earlier post suggested? 3) If the county judge begins issuing licenses, does that get Davis out of jail? 4) If the county judge begins issuing licenses, does it moot the case once the plaintiffs get their licenses from the judge (the answer to this one is probably not, because I expect Bunning to go back and certify a class).

For what it is worth, the judicial process is working as it should in all of this. No one said it should be pretty.

Update: Five of the six employees of the office (all but Davis's son) have promised to issue licenses beginning tomorrow, filling out the forms in Davis' name. Bunning also indicated he will lift the contempt order in a few days if employees issue licenses. Davis could have stayed out of jail by agreeing not to interfere with her employees issuing licenses, but she said she could not do so consistent with her conscience. There may be a question of whether those licenses can be valid if issued in defiance of office policy. But I suppose it will be enough that the form is properly completed with Davis' name on it by a duly employed clerk.

Posted by Howard Wasserman on September 3, 2015 at 02:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Tinkering with the machinery of marriage

Jonathan Adler explains why Kim Davis cannot, and should not be able to, use her personal religious beliefs to refuse to issue licenses to same-sex couples; if her conscience prevents her from doing this, she must resign. Adler points to a 2002 essay by Justice Scalia, in which Scalia explained why, if he believed capital punishment immoral, he must resign from the bench--his personal morality cannot override his judicial obligations. Adler argues that Davis similarly cannot use her personal religious morality to refuse to participate in (paraphrasing Harry Blackmun) the machinery of marriage.

But is there a middle ground between violating religious beliefs and resignation--recusal. Could a Justice Scalia whose religious views prevent him from affirming a death sentence recuse from all such cases? If so, that seems to be what Davis is doing here--recusing herself from the one function that runs afoul of her beliefs, while being ready and willing to perform other functions, even as to same-sex couples.

I am not suggesting Davis should win--she shouldn't. But does the reason have less to do with an absolute prohibition on this type of moral refusal to perform a public function and more with whether the attempted accommodation sufficiently protects the rights of couples seeking marriage licenses?

Posted by Howard Wasserman on September 3, 2015 at 10:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Tuesday, September 01, 2015

Contempt proceeding in Rowan County

The ACLU today moved to hold Kim Davis in contempt for refusing to allow her office to issue marriage licenses, asking for "financial penalties" seemingly tied to the compensation she continues to receive from the state despite not performing her functions. The motion does not ask for jail time, likely realized that is what she and/or her attorneys want. Judge Bunning has scheduled a hearing for Thursday.

More interestingly, the ACLU also moved the court to clarify the preliminary injunction to "state unambiguously that the preliminary injunction applies not only to future marriage license requests submitted by the four named Plaintiff couples in this action, but also to requests submitted by other individuals who are legally eligible to marry in Kentucky." The motion states that the action was filed as a "putative class action," although the court has never addressed or resolved the class certification issue. So the motion appears to be asking the court, in the guise of clarifying its injunction, to convert it into a class-wide injunction without ever doing the FRCP 23 analysis of whether certification is appropriate. Can the court do this?

Posted by Howard Wasserman on September 1, 2015 at 04:27 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Monday, August 31, 2015

Serving two masters in Rowan County, KY? (Further Updates)

I am not a fan of Slate's Mark Joseph Stern, who I think has been both wrong and shrill about the procedure in the marriage-equality litigation. But I wonder if he is onto something with this piece about the connection between Kim Davis, the Rowan (Ky) Clerk of Court who is ignoring a federal injunction (and no, even under the view of departmentalism I have been pushing, you can't do that), and her attorneys from the Liberty Counsel, a religious-conservative advocacy group.

Stern posits that the lawyers are taking her for a ride, using her to push their legal-ideological agenda without regard to her best legal interests, recalling Derrick Bell's famous discussion of attorney-client conflicts in desegregation litigation. One commenter on Stern's post posited that she was offered a ride and willingly accepted. And I have suggested that Davis would be perfectly happy to become a martyr to this cause--although who knows if this is her lawyers or her. Either way, if Stern is right that the lawyers advised Davis to ignore the injunction and be held in contempt, that is troubling, since it raises the possibility that she will be unable to challenge any contempt sanctions later on.

Stern reports that Davis has moved for a stay of the injunction from SCOTUS, in a petition that attempts to minimize the effect of Obergefell and to treat the dissents as binding authority. No way four justices sign-off on that. So now we see what happens when the whole thing is back in the district court.

Update: Justice Kagan (the Sixth Circuit Justice) referred the petition to the full Court, which denied it without comment or published dissent. So now we see whether Davis is really willing to go to jail (or pay hefty fines) over this.

Further Update: Davis continued refusing to issue licenses, this time on video. The irony (which no one is going to catch) is that the couple in the video--David Moore and David Ermold--are not among the eight (four couples) named plaintiffs. So Davis actually is not in contempt in denying them the license.

Posted by Howard Wasserman on August 31, 2015 at 03:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (11)

Thursday, August 27, 2015

Decision time

The Sixth Circuit has declined to stay the injunction against the County Clerk of Rowan County, Ky; her office is refusing to issue any marriage licenses, citing religious liberty, to avoid having to issue licenses to same-sex couples. The court was emphatic that there was "little or no likelihood" that the clerk would prevail on her appeal. Because the injunction runs against the clerk in her official capacity and thus against the clerk's office, "it cannot be defensibly argued that the holder of the Rowan County Clerk’s office . . . may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court."*

[*] I would have put this point slightly differently, although the basic idea--the clerk is going to lose--is right.

So we now are set for the clerk to be held in contempt, which, as I said before, is what she and many others in this post-Obergefell crusade probably have wanted all along. Look for her to be featured in a new Ted Cruz video very soon.

Posted by Howard Wasserman on August 27, 2015 at 12:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, August 26, 2015

Do not go gentle into that Nebraska night

Nebraska has asked the Eighth Circuit for rehearing en banc on whether the challenge to its same-sex marriage ban is moot in light of Obergefell and its promise to comply. The court earlier this month rejected the argument, concluding that Obergefell only spoke to the bans from Kentucky, Tennessee, Ohio, and Michigan and that whatever the state's promises not to enforce, the marriage ban remains on the books. Interestingly, the rehearing petition is even more explicit that this is all about denying the plaintiffs prevailing-party status and eligibility for attorneys' fees.

I have written previously about why I do not believe these cases are moot--or at most the appeal is moot, but plaintiffs retain prevailing-party status because they previously obtained a preliminary injunction. I will add here  that under my conception of departmentalism and the nature of precedent, Obergefell is largely beside the point for the state. Because precedent (even from SCOTUS) is not legally (as opposed to practically) binding on state officials' real-world conduct, that decision is not compelling them to do anything. What we have here is simple voluntary cessation, prompted by precedent and the state's voluntary choice to follow that precedent (rather than waiting until a court applies Obergefell and enjoins them). And voluntary cessation is generally not sufficient to moot a case. Ironically, then, this approach--which most civil-rights supporters likely would find anathema--is beneficial to plaintiffs trying to avoid mootness caused by new precedent.

One more thought, courtesy of Josh Blackman, my co-author: The state seems to spending a lot of money on this side issue. Simply put, the state is gambling: If it works, they lessen (and perhaps, although likely not, eliminate) all attorneys' fees; if it doesn't, they are driving those fees up even more. Of course, as Joanna Schwartz suggests, having to pay may not matter much to the government.

Posted by Howard Wasserman on August 26, 2015 at 06:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Saturday, August 22, 2015

The hole in Mireles v. Waco

One of the cases that sets students off in my Civil Rights class is Mireles v. Waco, in which the Court held that a judge enjoyed absolute immunity from a § 1983 suit that he ordered courtroom deputies to use excessive force in bringing a lawyer into the courtroom. They are particularly put off by the suggestion that the judge' absolute immunity means the plaintiff should sue the officers who used excessive force and who are not entitled to absolute immunity (although they likely can succeed on qualified immunity, as they reasonably could have believed their conduct was lawful because ordered by a judge).

That gap leads to Demuth v. County of Los Angeles, in which a Ninth Circuit panel (per Judge Kozinski) held that a deputy sheriff was not entitled to qualified immunity when he arrested an assistant public defender (at her own snarky request) in carrying out a judicial order to bring the attorney into the courtroom. There are a number of distinctions between this case and Mireles, including, as the court emphasized, that the judge did not order the deputy to arrest or otherwise force the attorney into the courtroom (the precise order was to bring the attorney and, if she refused, to bring her supervisor). The implication is that the deputy would have had immunity had the judge ordered the arrested.

Judge Kozinski closes the opinion by insisting that the case was an unfortunate waste of time and money over damages that "seem hardly more than nominal," which could have been resolved by "an admission that the deputy violated Demuth's constitutional rights, followed by mutual apologies and a handshake." (In fact, the deputy conceded that he did violate Demuth's rights in arresting her). The sticky point was qualified immunity, which officers assert even to avoid nominal damages. So while this seems an extreme case, it is a good example supporting Jim Pfander's argument that if a plaintiff explicitly seeks only nominal damages, the action should be treated as one for an injunction and qualified immunity should not be available. This gives us deterrence of this sort of small-scale violations* without imposing the fear of personal liability and chilling effect that justifies qualified immunity.

[*] In the absence of physical injury or wrongful incarceration, many constitutional claims involve small-money injuries for brief-but-unconstitutional detentions or encounters. But those encounters are at the heart of the policing problems in Ferguson and elsewhere, which eventually blow up to something larger. So perhaps making it easier for plaintiffs to prevail on those claims offers a step towards eliminating constitutional violations, large and small.

By the way, I do not want to sound too optimistic about the decision. The court cited no similar case law, instead relying on general, well-understood principles of when an arrest is forbidden to reach the conclusion that no reasonable officer could have believed this arrest was valid. So this case feels like a good candidate for a summary reversal of a denial of qualified immunity.

Posted by Howard Wasserman on August 22, 2015 at 11:08 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Thursday, August 20, 2015

The Poor: Twice the Victims of Lochner

The build up until now:  The poor are politically powerless and unable to defend themselves in politics against laws harmful to their interests that might be motivated by antipathy toward them.  Yet the Court does not consider the poor a discrete and insular minority entitled to special judicial protection from democratic politics.  What gives?  I think the explanation for this anomaly can be found in Lochner.  The case for which several tomes have been written involved a challenge to a regulation that limited the number of hours bakers could work.  The Supreme Court struck down the regulation explaining that it infringed on the Due Process liberty of contract.  An underlying assumption seemed to be that employees had the market power to negotiate contracts that protected their health and well-being thus rendering regulations of work conditions arbitrary and unnecessary.   Over the next thirty years, courts struck down many laws designed to protect mostly poor workers and other vulnerable participants in the capitalist market economy - these groups were the victims of the Lochner era. 

Then came the political reaction and judicial repudiation of the Due Process liberty of contract.  After the supposed "switch in time that saved nine," the Court in a series of opinions in the late 1930s and early 1940s determined that it was not consistent with the judicial role for it to intervene into economic and social welfare legislation.  Rather than closely scrutinizing such laws to see if they violated the Due Process Clause, the Court held that it would only apply rational basis review to such democratic actions.  Most of the focus has been on the Court's repudiation, at least for the moment, of the notion that the Due Process Clause protected a substantive right against arbitrary interference.  But another part of the Lochner repudiation was the Court's rejection of heavy handed judicial intervention into the democratic process through the close scrutiny and usual invalidation of democratically enacted laws.  More (including an Alanis Morisette shout out) below the fold ...

For democratic actions protective of the poor, the repudiation of heavy handed judicial intervention is perhaps a good thing.  But the reaction to Lochner has since been used as an excuse to not closely scrutinize economic and social welfare legislation harmful to the poor and other vulnerable participants in the market economy.  In a series of cases in the 1970s, the Court determined that deferential rational basis review was the appropriate level of scrutiny for economic and social welfare legislative actions, even if such actions were harmful to the poor and other vulnerable groups.  To closely scrutinize these legislative actions would require the heavy handed judicial intervention into democratic politics that led to the  crisis of judicial legitimacy during the Lochner era that the Court wanted to avoid. 

And there is something to that concern.  Say the Court determined that the poor were a suspect class because members of the group lacked the political power to defend themselves in democratic politics.  The Court would then have to closely scrutinize state actions imposing fees on the use of government goods and services, reducing government benefits such as welfare, food stamps, and Medicaid, and increasing taxes on lower income individuals.  The Court, with memories of Lochner floating in its head, doesn't want to be in the business of closely scrutinizing such laws. 

The poor and other vulnerable members in our capitalist market economy have thus been victimized a second time by Lochner, this time by the judicial reaction to Lochner.  As Alanis Morissette might question: Isn't it ironic, don't you think?  While I have lost all capacity of understanding what is truly ironic after that song,  might this be the irony of Lochner, don't you think?  What this reaction to Lochner suggests is that the Court is unwilling to provide special judicial protection to the poor not because they have the capacity to defend themselves in democratic politics.  But rather because there are too many laws that negatively impact the group.   

Surely this is unsatisfying, at least for some of us.  Even if we are concerned about too much judicial intervention into democratic politics, it certainly does not seem to be consistent with American republican values to simply leave a vulnerable minority group unprotected, subject to the vagaries of ideological winds.  But if we accept the Court's preferences as legitimate, is there a way to provide judicial protection to the politically powerless and vulnerable poor while avoiding such extreme judicial intervention into democratic politics?          

Posted by Bertrall Ross on August 20, 2015 at 12:21 PM in Constitutional thoughts | Permalink | Comments (5)

Tuesday, August 18, 2015

Settlement in Hood County, TX

A couple initially denied a marriage license by the County Clerk of Hood County, TX, has settled the lawsuit, recovering more than $ 44,000 in attorney's fees.

On one hand, as I argued here, the availability of attorney's fees will make "resistance" to Obergefell quite expensive and, eventually, unpopular. On the other hand, how did the plaintiffs in this case rack up that much in attorney's fees? The office issued them the license a few hours after the complaint was filed, so the only expenses to that point should have been drafting and filing the complaint, which could not possibly cost that much. And settling seems an odd move by the county here, since the case should have been moot once the license issued.

Posted by Howard Wasserman on August 18, 2015 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Monday, August 17, 2015

Show Me a Hero

If you don't think civil rights litigation can make a good mini-series, check out HBO's Show Me a Hero, co-written by The Wire's David Simon. The series tells the story of the housing desegregation litigation in Yonkers, N.Y., in the 1980s and efforts by the city to fight an injunction requiring the building of 200 units in the white part of town. The six-hour program airs in three two-hour blocks on Sundays; the first aired last night (and will be repeated throughout the coming week). Some highly positive reviews here, here, and here. SCOTUS got one crack at this case in Spallone v. United States, in which the Court reversed a district court order imposing contempt fines against individual members of the city council for refusing to vote to approve a long-term housing plan that would spend federal dollars as required by the original injunction.

Based on the first two hours, this is definitely worth the viewing time.

Posted by Howard Wasserman on August 17, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, August 14, 2015

Why marriage licenses?

A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:

What is so special about issuing marriage licenses?

All of the action has been around clerks and clerks offices having to issue licenses to same-sex couples and demanding opt-outs from that ministerial task based on deeply held religious beliefs. But it seems to me that public officials and employees are required to process and handle all sorts of forms, requests, and documents that require them to recognize and treat as married same-sex couples. And this would seem to be just as much in violation of their deeply held religious beliefs. To name just a few:

• Granting a second-parent adoption to a same-sex couple (which requires a finding that the adopting parent is the spouse of the biological parent)

• Processing a death certificate listing a same-sex spouse (this was the claim at issue in Obergefell itself)

• Processing the paperwork for a person to receive health insurance and benefits from her state-employee same-sex spouse

• Processing a name change on a drivers' license for a same-sex couple who married and want to combine names or where one person wants to take the other's name

• Processing a joint tax return for a same-sex couple

I am sure there are others that I am not thinking of. And that is before we get into private actors and public-accommodation laws. Or less misiterial issues, such as police officers responding to domestic-violence calls or hospital staff allowing a person to make medical decisions (without a written advance directive) from a same-sex spouse. Yet we do not hear about similar opt-out requests in any of these contexts. And when state officials, such as Texas AG Ken Paxton, endorse these accommodations, they only spoke about protecting against having to issue licenses and never these or similar duties.

Wouldn't the religious-objection logic apply equally to each of these situations? And if not, why not?

Posted by Howard Wasserman on August 14, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Thursday, August 13, 2015

A first take on recalcitrant county clerks

Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.

Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).

Thoughts after the jump.

1) The policy involved here was especially broad. The clerk did not argue that she should not personally have to issue licenses but that another staffer in the office would. Rather, she objected to licenses being issued in her  name as the county clerk, insisting that doing so both compelled her to speak and cause her to endorse and enable conduct that violates her religious beliefs.

2) The case was less about Obergefell than about the general fundamental right to marry (which, under Obergefell, applies equally to same- and opposite-sex couples). The right was substantially burdened for all couples either having to go to a neighboring county to receive a license or get the license from the county judge (who is authorized to issue licenses if the clerk is unable to do so). Interestingly, unlike the Fifth Circuit in the clinic-regulation cases, the court recognized that requiring people to travel (perhaps as long as an hour) to another county could burden those who like the financial, physical, or practical means to travel and thus should not be considered a less-burdensome alternative.

3) The court held that Kentucky county clerks act as state, rather than county, officials in making office policies with respect to issuing marriage licenses. This does not affect an action for injunctive relief. But it does affect the potential for plaintiffs to pursue damages against recalcitrant officials and offices, which is another tool for ensuring compliance with Supreme Court precedent. Damages are not available against state (as opposed to local) entities, so the clerk's office cannot be sued for damages,* although the clerk herself could be sued both for her own refusal to issue licenses, as well as for her role in supervising or ordering her employees not to issue licenses. But being able to sue the office means the plaintiffs would not have to deal with qualified immunity, which is not available to municipalities. The clerk herself can raise qualified immunity, which means damages are not going to be available, at least until a significant body of law builds up.

[*] The court here attributed it to the Eleventh Amendment, a common and unfortunate mistake. Section 1983 (the source of a constitutional damages action) is § 5 legislation that, at least in constitutional cases, is congruent and proportionate to the rights protected by § 1 of the Fourteenth Amendment. The problem is that the Court held that Congress did not abrogate sovereign immunity because "persons" in § 1983 does not include sovereigns. But, as the doctrine developed, Congress could have done so. Thus, the unavailability of damages against the state on constitutional claims is a product of statutory interpretation, not the Constitution.

Update: Note the nuance with respect to the couple denied the license this morning. The clerk is not in contempt because the injunction only protects the five named couples and only obligates her to issue licenses to those five couples. This new couple has to go back to Judge Bunning (either in a new lawsuit or by intervening) and have the injunction extended. Then someone can hold the clerk in contempt--which, frankly, is exactly what she is hoping will happen.

Further Update: This story reports that one of the plaintiff couples (including the named plaintiff) also tried to get licenses on Thursday and were denied. And now the clerk can be held in contempt.

Posted by Howard Wasserman on August 13, 2015 at 09:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Wednesday, August 12, 2015

The Process of Marriage Equality

The Process of Marriage Equality, co-authored with Josh Blackman (South Texas), is now up on SSRN and coming to a journal office near you. This is a comprehensive take on the unique civ pro/fed courts/jurisdiction issues that arose during the litigation campaign leading to Obergefell. It incorporates and expands on my earlier discussions of some of these issues, published here and at Northwestern Law Review Online, and the stuff Josh has been writing at his blog.

The abstract is after the jump.

This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions. 

Posted by Howard Wasserman on August 12, 2015 at 01:49 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Tuesday, August 11, 2015

Following Obergefell in the lower courts

Lots of action within the Eighth Circuit in the lower courts on how to apply Obergefell to bans in other states. Judge Crabtree of the District of Kansas* issued an initial order (H/T: Lyle Denniston at SCOTUSBlog, who has a nice summary of the decision, as well as some other development). The Eight Circuit issued substantially identical per curiam orders in appeals involving laws from Nebraska, South Dakota, and Arkansas, affirming preliminary injunctions or final judgments invalidating the laws in those states.

* Which is not located in the Eighth Circuit.

Some comments after the jump.

First, Judge Crabtree nails the connection between Obergefell and this case. The SCOTUS decision "considered same-sex marriage bans enacted in Michigan, Ohio, Kentucky, and Tennessee. It did not rule, at least not directly, on Kansas’ ban against such marriages. The Court’s job now is to apply Obergefell to the Kansas law." Once he reached the merits, the judge necessarily concluded that Obergefell resolves the plaintiffs' constitutional claim and entitles them to judgment on their claims for relief. The Eighth Circuit similarly applied Obergefell to conclude that the challenged laws are unconstitutional.

Second, the courts rejected the arguments that Obergefell moots these challenges. They all recognized that, because Obergefell itself compelled no action by officials in these four states, their mootness arguments amount to promises of voluntary cessation, which typically is not enough to moot a case. The marriage bans remain on the books in every state. At best, officials in Kansas seemed to be moving towards compliance with Obergefell, but had not yet gotten there (for example, it still was not clear a same-sex married couple could file a joint tax return or change names on drivers' licenses), but had not necessarily gotten there. And the fact that officials in every state are issuing licenses to same-sex couples is not sufficient, since that was being done on the strength of a district court's original injunction.

Third, in what might be an interesting development (one I had not previously thought of), the court of appeals and district court both suggested that the states' efforts at voluntary compliance perhaps affected whether permanent injunctive relief is unnecessary or impermissible. Judge Crabtree ordered further briefing on the question and the Eighth Circuit left it to the district courts on remand. Compliance was not a question of constitutional mootness, but of the court's discretionary equity analysis. Importantly, however, this did not affect declaratory relief, which remained proper and which will be entered in every case. This is significant for purposes of plaintiffs recovering attorney's fees--a declaratory judgment, even unaccompanied by an injunction, is sufficient to make them prevailing parties.

Fourth, Kansas tried to argue that the injunction requiring the state-employee health plan administrator to include same-sex spouses in the plan violated the Eleventh Amendment because it required money from the state in the form of benefits. But the court rejected this argument quickly and correctly--this falls into the "prospective compliance" exception, under which a purely prospective injunction is not barred by the Eleventh Amendment, even if compliance costs the state money.

Update I: In response to Maureen's comment, I shorthanded the point too much. A declaratory judgment alone will not always merit attorney's fees. But in the marriage cases, it should be, as there has been a change in the defendants' behavior and in the relationship between the defendants and the plaintiffs.

Update II: An alert reader points me to Sam Bray's The Myth of the Mild Declaratory Judgment (reviewed by Marin Levy here). Sam's theory is that declaratory judgments and injunctions represent alternative remedies, each appropriate in a different type of case. Under that theory, a D/J without an injunction is the appropriate remedy in the marriage cases, which require a change of behavior but minimal judicial oversight or monitoring.

Posted by Howard Wasserman on August 11, 2015 at 05:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Middle ground on departmentalism

Michael Dorf discusses Mike Huckabee's (unwitting? incomplete?) endorsement of departmentalism during last week's GOP presidential debate. Huckabee explained that he considers fetuses "persons" for Fifth and Fourteenth Amendment purposes and, as Dorf understands him, would act on that constitutional understanding. And Huckabee spoke not just of pushing a personhood constitutional amendment, but of a "bolder" approach." But, Dorf argues, Huckabee did not seem to realize that "his 'bolder' option--acting to protect the rights of the unborn (rights the Supreme Court has never recognized), even when that abridges the rights of women (rights that the Court has recognized repeatedly)--was, in effect, advocacy of "uncivil disobedience by a president," bringing him into direct conflict with the Supreme Court.

But is it necessarily a conflict? And is any conflict problematic? And how might the conflict arise and play out?

In my current article (more on that in a few days), I discuss and endorse Gary Lawson's "middle ground" approach to departmentalism. Lawson distinguishes between judgments and precedent; he argues that the President must abide by and enforce the former, but remains free to disregard the latter if it conflicts with his independent constitutional vision. In other words, if the Court adopts a constitutional rule and issues an injunction requiring the President to act (or refrain from acting) in a given way, he must abide by that injunction, even if he disagrees with the Court's constitutional conclusions.*

[*] With respect to the President, there is a second component to judgments, because the President also is responsible for enforcing federal judgments even if not party to them (e.g., enforcing a federal judgment enjoining the state from enforcing an abortion ban).

But, as I have been arguing with respect to the marriage-equality litigation, the injunction applies to the specific parties in that case, but extends no further. Thus, the President's obligation to follow the Court extends only as far as the judgment in that case, but not to other cases, issues, and parties. Instead, the President can act on his independent constitutional vision, even in the face of competing Supreme Court precedent. Of course, the courts remain bound to apply Supreme Court precedent when the President's actions reach the stage of judicial challenge or enforcement. And they will apply that precedent to produce a judgment against him, which, under Lawson's theory, he will then be obligated to enforce and obey.

Lawson's departmentalism rests on the idea that what courts uniquely do is decide cases and issue judgments, which control everyone who is subject to them or their obligations. But the power to interpret the Constitution simpliciter is not unique to the courts; it instead resides in all public officials (federal, state, and local) who swear an oath to uphold the Constitution. Only when the judicial interpretation is reduced to a judgment does it become supreme--and then only within the limited scope of that judgment.

How this plays out with a President Huckabee committed to the belief that fetuses are constitutional persons depends on what he tries to do. The point is that none of the following examples should be labeled defiance or disobedience.

   • Decline to enforce a law such as the Free Access to Clinic Entrances Act, thereby allowing protesters to make it impossible (at least as a matter of federal law) for women to gain access to clinics and to exercise their rights. No real conflict here. For one thing, the Constitution does not require F.A.C.E. or require that the federal government act to protect women seeking access to clinics. This is unlikely in any event, as Dorf notes that Huckabee has indicated his belief that the President must enforce all laws, even those he disagrees with)

   • Pursue federal murder charges against a woman who terminates a pregnancy in the first month, because, in his view, this woman took a human life and should be prosecuted (put aside federal jurisdictional issues for the moment). This prosecution would be invalid under Roe. Charges are sure to be dismissed or any conviction almost certainly would be reversed or overturned. But Huckabee does not engage in "uncivil disobedience" in pursuing this prosecution. Although clear precedent renders the prosecution futile (which Huckabee certainly knows from the start), he can act on his constitutional vision in initiating and pursuing charges. Once the courts dismisses those charges in light of precedent, Huckabee must comply with that order, although  he also could initiate a new prosecution against someone else until that case is also dismissed.

   • Sign and enforce a bill outlawing all abortions in all circumstances. Again, this law would clearly conflict with Supreme Court precedent. But the point of Lawson's approach is that there is nothing unlawful about the act of signing the bill or taking steps to prosecute people under it, so long as he believes it is constitutional. This is so even if he can predict that courts will declare the law unconstitutional. Obviously, he would be immediately enjoined from enforcing the law by a district court applying Supreme Court precedent. And any efforts to enforce it almost certainly would result in dismissal of the charges. And the President must abide by those judgments as to all plaintiffs.

So why don't more presidents do this? And why would Huckabee himself likely not do this? One answer is that there are political limitations to these moves. The public perception and media reportage would be that Huckabee is disobeying or defying the Supreme Court.While incorrect (absent a specific court order in a specific case), the force of that narrative is strong and may overwhelm his constitutional convictions. The public would not countenance the President prosecuting women for murder or signing laws that everyone knows will be declared invalid. Fair enough. But Lawson's point is that this is precisely how the system should work.

The point is that it would be politics pushing Huckabee away from acting on his unique vision in the face of a competing judicial vision. Neither the Constitution nor the structure of the federal government has that effect solely on the strength of precedent, as opposed to an eventual binding judgment.

Posted by Howard Wasserman on August 11, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (27)

Monday, August 10, 2015

The Curious Case of the Suspect De-Classification of Wealth

The last episode left off with a cliff hanger of sorts: a foreign LLM student in my Con Law class asked me why we never discussed economic class and the poor?  I followed up with a question in the last blog asking why we as legal scholars do not engage class and the poor more than we do now.  One response is that legal scholarship tends to follow what the Supreme Court does.  Since the Supreme Court rarely engages economic class and the poor, neither do most legal scholars.  But why doesn't the Supreme Court address controversies involving economic class and the poor? Focusing more narrowly on equal protection doctrine, I explained to my student that we do not engage economic class and the poor because wealth is not a suspect classification and the poor are not a suspect class.  The Court only applies a very deferential rational basis review to laws that classify on the basis of wealth and there just isn't much interesting to say about rational basis review unless, of course, the review has some bite to it. This is where I show my students the famous Val Kilmer bite in Top Gun, if you don't know the scene involving Maverick and Iceman you need to check it out ... that, my friends, is the bite of rational basis review with bite.  So my answer to the student was a very simple, unsophisticated hornbook one, but one that I thought was right.  

But then the student asked: why aren't the poor treated as a suspect class?  She went through the criteria for determining a suspect class established in case law and argued that they all would be satisfied.  (1) The poor arguably share obvious or distinguishable characteristics based on where they live and what they possess (I teach that immutability has faded as a relevant criteria in light of the alienage cases and subsequent judicial broadening of the criteria to include the obvious or distinguishable nature of the trait); (2) the poor have suffered a history of discrimination; (3) being poor is not relevant to a person's ability to contribute to society (a criteria the Court used to reject claims that the disabled and the aged made for suspect class status); and (4) the poor are politically powerless.  I pushed back on each of these points, but I ultimately agreed with the student.  I then explained that the Court in San Antonio Independent School Districts v. Rodriguez declared that wealth was not a suspect classification and I encouraged her to read the case for herself as the reasoning for this determination would be provided there.  I then decided read the case for myself and discovered something quite curious.   

The Court in Rodriguez never declared that wealth was not a suspect classification.  In the case, residents of a property-tax poor school district brought an equal protection challenge to a school financing system that apportioned money to school districts on the basis of property taxes.  The challengers relying on an earlier Supreme Court case in which the Court declared that "lines drawn on the basis of wealth or property, like those of race or traditionally disfavored," claimed that the school finance system discriminated against a suspect class, the poor, and should be subject to strict scrutiny.  The Court disagreed, but not because it determined that wealth was not a suspect classification.   Instead, the Court explained that the school financing system did not actually classify on the basis of wealth.  According to the majority, the challengers "made no effort to demonstrate that [the school financing system] operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level."  The Court, therefore, did not need to decide whether the poor were a suspect class. 

The decision was not entirely devoid of a suspect class determination.  The Court did hold that the challengers' claim that the law discriminated "against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts," involved a class that was too large, diverse, and amorphous to be considered suspect.  In other words, residents of a property-tax poor district, which included wealthy, middle class, and poor individuals, would not be considered a suspect class.  I re-read the case a second time, a third time, and was left floored.  How I understood the case contradicted assertions in a leading Constitutional Law casebook, Constitutional Law hornbook, and several law review articles.  Why do leading scholars cite to Rodriguez as denying suspect classification status to wealth when it never did any such thing?  Is it still an open question?

But then I read cases that cited Rodriguez and what I found was even more curious.  In the case of Maher v. Roe decided four years after Rodriguez, the Court citing to Rodriguez asserted that it "ha[d] never held that financial need alone identifies a suspect class for purposes of equal protection analysis."  All true, but ultimately unresponsive to the question of whether the poor are a suspect class.  Then in the case of Harris v. McRae decided three years after Maher, the Court without any reasoning and citing only to Maher concluded "poverty, standing alone, is not a suspect classification."  And that is end of the story of wealth as a suspect classification.  

Since establishing the suspect class standard in 1973, the Court has denied every group's claim to suspect class status.  But it has never treated any group's claim in the same superficial and disingenuous manner as it treated the claim of the poor.  Why is that the case and more importantly, perhaps, why have Constitutional Law scholars, for the most part, accepted the judicial denial of suspect class status to the poor premised on nothing more than judicial fiat?  Is the cynical answer provided to my prior post the right one - that the problems of the bottom 5% (or perhaps bottom 20%) aren't terribly pressing for those in the top 5%?   

Posted by Bertrall Ross on August 10, 2015 at 01:15 PM in Constitutional thoughts | Permalink | Comments (18)

Wednesday, August 05, 2015

Whither class, whither the poor in legal scholarship?

In 2004, the American Political Science Association Task Force on Inequality and American Democracy issued a report on American Democracy in an Age of Rising Inequality.  It started with a damning critique of American Democracy:

"Today ... the voices of American citizens are raised and heard unequally.  The privileged participate more than others and are increasingly well organized to press their demands on government.  Public officials, in turn, are much more responsive to the privileged than to average citizens and the least affluent.  Citizens with lower or moderate incomes speak with a whisper that is lost to the ears of inattentive government officials, while the advantaged roar with clarity and consistency that policy-makers readily hear and routinely follow." 

The task force report was associated with a significant increase in focus on class-based political inequality and the political power of the poor in political science.  The empirical findings were quite stunning.  In the book Unequal Democracy, Larry Bartels examining senate roll call votes in the late 1980s and early 1990s and the ideological views of different income classes found that while "senators seem to have been quite responsive to the ideological views of their middle and high-income constituents, ... the views of low-income constituents had no discernible impact on the voting behavior of their senators."  In Affluence and Influence, Martin Gilens examining a range of government policies and the survey-based preferences of persons in different income classes similarly found that "government policy bears absolutely no relationship to the degree of support or opposition among the poor."  It was only when the poor shared the views of the wealthy and middle classes that government policy accorded with their preferences.  Several other scholars have joined the fray adding further empirical richness by testing other measures of the political power of the poor and legislative responsiveness to the interest of different income groups. 

In light of the Great Recession and its aftermath, this scholarship is quite timely.  Economic inequality has only grown.  The Occupy Movement focused attention on growing wealth disparities and even politicians are talking a bit more about inequality with some deigning to look beyond the middle class and mention the poor (with low-income individuals being the preferred label of Republicans and working families being the preferred label of Democrats).  Given the Law and Order type orientation of legal scholarship (ripped from the headlines and straight into your law reviews), you would think that we would be all over this.  But my hein online searches into legal scholarship on economic class has yielded disappointing results.  There was a flurry of legal scholarship in the heady days of the late 1960s and early 1970s when the focus was on welfare rights and special judicial protection for the poor.  There was another flurry in the mid-1990s when legal scholars debated whether class-based affirmative action should substitute for race-based affirmative action.  And that's about it. 

I don't mean to suggest that legal scholarship is bereft of discussions about economic class.  Often it is implicated in scholarship on other issues such as race, gender, disability, criminal procedure, bankruptcy, etc.  And over the last several years, poverty law conferences have been organized, Class Crits have emerged, and even a Poverty Law casebook has been written.  But my sense is that class and issues of poverty law remain in the backwoods of legal scholarship.  And I would go further in suggesting that it is in the deep backwoods of legal scholarship on the Equal Protection Clause.  

Why do we as legal scholars not engage class and the poor more than we do now?  A couple of years ago, a foreign LLM student came up to me at the end of my Con Law course and asked why we never discussed economic class and the poor?   In full justificatory mode, I fumbled for an answer that upon later research proved to be entirely unsatisfying.  Since then I have thought of other answers.  But before I offer mine, I would love to hear yours.  And if you think we optimally engage issues of economic class and the poor in legal scholarship, I'd love to hear those perspectives as well. 

Posted by Bertrall Ross on August 5, 2015 at 11:39 AM in Constitutional thoughts | Permalink | Comments (4)

Tuesday, July 14, 2015

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality

My essay Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace has been published at Northwestern University Law Review Online.

This puts together much of what I have been writing here about the mess in Alabama between January and the Court's decision in Obergefell. I reach the same basic conclusion--obnoxious Roy Moore rhetoric aside, everything that happened in Alabama in those six months was consistent with the judicial process and with the traditional scope of injunctions and district court precedent.

Posted by Howard Wasserman on July 14, 2015 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, July 10, 2015

Mootness spreads

So it seems everyone thought Nebraska had a great idea on how to end marriage-equality litigation while avoiding attorney's fees. Arkansas and South Dakota have joined Nebraska in asking the Eighth Circuit to dismiss appeals as moot and vacate the various injunctions. Kansas is asking the Tenth Circuit District of Kansas to do the same. And now Alabama is asking the Northern District of Alabama (in a recognition suit that had not yet proceeded to even a preliminary injunction) to do the same.

When I wrote about Nebraska's mootness argument, I explained why voluntary cessation from the state agreeing to abide by Obergefell should not be sufficient to moot the case, or at least not sufficient to justify vacating the district court judgment and order. But looking at these new motions, particularly from Alabama, I I think I have identified a more fundamental problem in their arguments. State officials are arguing that Obergefell conclusively resolved the constitutional question of same-sex marriage across the country, so there is nothing for the district courts to do here and no need for a district court judgment and injunction against officials in these states.

But that misunderstands what a Supreme Court opinion does and how precedent operates. The Supreme Court decision established the operative constitutional framework and analysis, but it it spoke only to the laws in Ohio, Michigan, Kentucky, and Tennessee and the obligations of officials in those states. As to any other state, it is necessary for another court to apply that constitutional framework, as precedent, to the laws and actions in that state. Even if the answer is obvious, since the precedent is binding and there is no way to distinguish it, that additional step is necessary, at least so long as there remains a genuine threat that this other state's anti-SSM laws might be enforced (and within the parameters of mootness doctrine).

In a sense, the states are trying to have it both ways. For months, many states and state officials insisted that a decision by a lower federal court was not binding on non-parties, did not require non-parties to do anything, and did not protect non-parties. This argument was, in fact, correct, although it happened to work to the state's advantage. Now states are trying to argue that a SCOTUS decision is, in essence, a nationwide injunction applicable to all bans on same-sex marriage and to all officials in all 50 states. This argument is, in fact, incorrect, although it also works to the state's advantage.

The most ironic example of this is Kansas. After the Tenth Circuit twice declared that the Fourteenth Amendment guarantees a right to marriage equality (in cases from Utah and Oklahoma) the Kansas Attorney General initiated a state mandamus action to stop a Kansas county clerk from issuing licenses to same-sex couples until a judge in the District of Kansas decided a constitutional challenge to Kansas' ban. Clearly, in the AG's view, binding precedent was not alone sufficient to justify compliance; there needed to be a decision by a court expressly addressing Kansas law and its enforcement by Kansas officials. And never did Kansas officials suggest that the Tenth Circuit's constitutional decision mooted the challenge to Kansas' law. But the Tenth Circuit's decision on the meaning of the Fourteenth Amendment is as binding on federal courts within the Tenth Circuit as a decision by SCOTUS. So if the extra step is necessary to apply circuit precedent, it must also be necessary to apply SCOTUS precedent.

Posted by Howard Wasserman on July 10, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, July 08, 2015


Same-sex couples in recalcitrant counties and states have a problem, as illustrated by this case in Hood County, TX. Recall what happened: The county dragged its feet in issuing license to same-sex couples, a couple sued for an injunction compelling the license, the county within a few hours relented and issued the license. As I said previously, the case is now moot, but the plaintiffs are not prevailing parties because they did not obtain a judicial decree guaranteeing that license, therefore they cannot recover attorney's fees (which would be small anyway--just the amount to draft  short complaint and TRO motion and file the thing). But attorney's fees are the driving force for compliance--recalcitrance needs to become expensive in order for officials to fall in line.

One solution would be for the court to impose sanctions on the clerk. But then the question is from what source? Rule 11 only applies to papers and other things presented to the court; here, the case has become moot before the defendant clerk has even appeared, much less presented something to the court. Section 1927 only applies to attorneys, and then only for conduct that "multiples" proceedings. So that leaves the court's inherent authority to sanction, including through attorney's fees, in order to compensate, deter, or punish. So does inherent sanction authority reach the type of (mis)conduct we see here: Pre-litigation refusal to comply with precedent, forcing a lawsuit, and immediately acquiescing before the court has an opportunity to hear the case? (In contrast to forcing a lawsuit in order to argue for overturning Obergefell)?

Posted by Howard Wasserman on July 8, 2015 at 02:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, July 06, 2015

What can plaintiffs sue for after Obergefell?

A same-sex couple sued the County Clerk of Hood County, TX in the Northern District of Texas on Monday, after they were denied a marriage license (purportedly because the office did not yet have appropriate forms). With several hours of the suit being filed, the office issued the license. Precisely how it should go.

Here is where it gets tricky: According to the above article, the plaintiffs want their attorneys' fees and say they will not drop the lawsuit "until the clerk’s office agrees to issue marriage licenses to 'all couples, gay and straight, without delay.'" But neither of those things should happen:

1) The lawsuit is now moot and should be dismissed as such, since the plaintiffs got what they sued for--their marriage license.

2) The plaintiffs lack standing to seek relief for all couples, gay and straight. So it sounds nice, but that is not how litigation works. Perhaps if they certify as a class action, although I need to see the complaint to know whether they are trying to do that. Of course, that does not resolve the mootness problem.

3) The plaintiffs probably will not get attorneys' fees, since they are not prevailing parties. The defendants complied without any judicial order or injunction. And even though compliance was obtained because of the lawsuit and the certainty of liability, the Supreme Court rejected the so-called catalyst theory of attorneys' fees, demanding that a party prevails only if they obtain some judicial decree in their favor.

4) The solution for the plaintiffs may be to sue for money damages for the inconvenience and humiliation caused by  delay unique to same-sex couples. Assuming that short delay constitutes a violation, the claim only would be worth $ 1 in nominal damages, but it avoids mootness and prevailing-party issues.

Posted by Howard Wasserman on July 6, 2015 at 02:21 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, July 01, 2015

Marriage and Other Favored Unions

So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.


Associations of Workers and the NLRA

Congress passed the National Labor Relations Act years ago and, with it, enacted a particular vision of what worker associations should be and how they should operate. That vision included both (1) exclusive representation[1] and (2) a commitment to the view that the interests of workers and employers are fundamentally opposed and antagonistic.  

At first the NLRA benefited workers (if rapidly increasing unionization rates are any indication), but over time that has largely ceased to be the case. The government restricted covered labor organization activity and the Act stifled the ability of covered workers to develop innovative forms of worker organizations that could better help them achieve their particular interest. One example of this stifling (and one that I discuss in a forthcoming article) comes out of the Act’s prohibition on company “support” of labor organizations. This ban has in turn dramatically limited the development of mutually beneficial collaborations between workers and companies looking to sell themselves to consumers as “conscious capitalists.” As a result of the Act’s narrow vision of appropriate worker organization, it is not surprising that innovative forms of worker organization (the Fair Food Council being just one example) have only occurred among workers who are not covered by the NLRA at all.  

 In short, when the government favors a particular vision of worker association – even with good intentions – it also frustrates experimentation with other forms – forms that may in fact be better for at least some workers.   

Associations of Individuals and Marriage

 Something similar might be said about marriage. Like the vision of worker organization demanded by the NLRA, marriage (including same-sex marriage) is but one of the many forms romantic and family associations can take. And like a traditional labor union, a traditional marriage (same-sex marriage included) will work better for some than others. The government, however, does much to encourage traditional marriage. Spousal privilege and military, social security, and immigration benefits being just a few examples. And these benefits, like all incentives, serve to promote marriage over non-matrimonial forms of romantic and family association. Those benefits alone might already have been enough to stifle experimentation with other forms. But the majority opinion in Obergefell, if its love letter to marriage is read and its views adopted, imposes an arguably different and more potent type of cost on would-be experimenters: stigma. As the majority sees it, marriage is of “transcendent importance” and “promise[es] nobility and dignity to all persons”. It is marriage that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Without it, “children suffer the stigma of knowing their families are somehow lesser.” (emphasis added). Given all this, a reader would think marriage the sole means by which we come to flourish in relationships – that families and romantic relations structured without it truly are lesser. On that view, failure to get on board with the institution really does deserve to be stigmatized.  

For those who think the Court’s substantive view on marriage’s importance right and the government’s subsequent promotion of it good, this all won’t seem bad. But for those who think the highest ideals of love and family might be better achieved – at least for them – through other forms of association, the majority’s reification of the centrality of marriage to the good life will strike them as yet another barrier to a future where those ideals can be realized. As with the story of worker associations, it might take us a long time to realize that the government’s “help” of our association of choice today won’t actually be so helpful tomorrow.



[1] A few argue exclusive representation was not required from the start but it certainly was treated as such soon afterward. Either way, my point is the same.  

Posted by Heather Whitney on July 1, 2015 at 07:00 AM in Constitutional thoughts, Culture, Current Affairs, Employment and Labor Law, Law and Politics, Workplace Law | Permalink | Comments (0)

Tuesday, June 30, 2015

Some movement in Alabama

After a smattering of news and small initial steps in response to Obergefell in Alabama, Monday produced some definitive news.

1) Counsel for the plaintiff class in Strawser has taken the position that the stay on Judge Granade's class injunction lifted as soon as SCOTUS issued its opinion. Granade's order stated that the injunction was stayed "until the Supreme Court issues its ruling" in Obergefell, which happened at 10 a.m. Friday. Thus, the injunction--binding every probate judge in the state to issue a license to any same-sex couple who requests one and otherwise qualifies--is in force and readily enforceable by contempt. Unlike in Nebraska, there was no need for a motion to lift the stay.

2) Plaintiff counsel notified defense counsel of this view and asked defense counsel to notify each probate judge that they were subject to the injunction and could be subject to contempt proceedings if they failed to comply. Plaintiff counsel particularly noted the variance, including some probate judges waiting for SCOTUS to issue its mandate, others issuing licenses to opposite-sex but not same-sex couples, and others not issuing licenses at all.

3) The Association of County Commissions of Alabama, which provides probate judges with liability insurance, recommended "that probate judges begin issuing marriage licenses to same-sex couples in the same manner and pursuant to the same requirements applied to traditional couples." Not sure about that "traditional couples" phrasing, but you get the point. This is just a recommendation. But since the ACCA is the one that indemnifies the probate judges if they get sued, hit with attorney's fees, or held in contempt for non-compliance, the recommendation might carry some weight.

4) The Supreme Court of Alabama issued an order in the mandamus case reminding probate judges that the parties in Obergefell have 25 days to seek rehearing and ordering new briefing and motions to be filed by July 6. Presumably, the briefing on two points: 1) arguing that the mandamus must be vacated because its underlying reasoning does not survive Obergefell and/or 2) arguing that each probate judge should be released from the mandamus because each is bound by the now-enforceable district court injunction.

This order sent everyone scrambling to figure out what it meant. The confusion was compounded (naturally) by Roy Moore, who apparently believes that SCOTUS decisions do not take effect until the period for rehearing has passed. Moore first argued that probate judges were prohibited from issuing marriage licenses until the period for rehearing lapsed; he then said that no probate judge was required to issue licenses within that period, insisting that the issue is "stalled" in Alabama until SCOTUS can no longer grant rehearing. Of course, that ignores the fact that the real work in Alabama is being done not by Obergefell, but by Judge Granade's injunction, which became enforceable immediately.

Posted by Howard Wasserman on June 30, 2015 at 12:24 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, June 29, 2015

The Most Dangerous Precedent (or, A Silly Extravagance)

In today’s concurrence to Glossip v. Gross, Justice Scalia identifies a precedent that “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.” 

The villain is Trop v. Dulles, 356 U.S. 86 (1958), which held that it was unconstitutional to strip a native-born American of his 14th-Amendment-provided citizenship as punishment for briefly deserting his military post while serving in Morocco in 1944.  (“He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base.”)  The mischief arises from a passage frequently quoted from Chief Justice Warren’s plurality to the effect that the Cruel and Unusual Punishment Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Let’s leave aside that the Trop language is a tolerable paraphrase of Weems v. United States, 217 U.S. 349 (1910), which rejected an originalist approach to the Eighth Amendment to hold that fifteen years of hard labor for falsifying a public document was unconstitutional.  Has Trop caused more mischief “to our society” than any other case that Justice Scalia can think of?  Even if you disagree with the Trop language, at worst it means that a handful of persons can successfully challenge an extraordinary criminal sentence, and that a larger handful can make colorable but unsuccessful challenges to theirs.  This is worse for society than any other case that the justice has decried?  Than the decisions mandating a right to abortion, to sodomy, to same-sex marriage, or to coeducation at the Virginia Military Institute?  No, society is most harmed by jurisprudence that prevents the government from getting as close as it possibly can to the very edge of cruel and unusual punishment.

In a post from last week, I argued that some fire-breathing dissents can be worth teaching in an introductory Con Law class.  But now that Justice Scalia has declared, in his Obergefell dissent, that one should expect “separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression,” I need to add a note of caution.  A silly extravagance like the overblown attack on Trop v. Dulles can teach students lessons that I would prefer not to impart: that it’s more important to sound good than to be correct (long live truthiness); that consistency is the hobgoblin of small minds; that picking your battles is for suckers; and that once you’ve risen to a prominent place in your profession, nobody can stop you from phoning it in.  These lessons may have bits of truth to them, but I’d rather focus on others.

(Apologies for shooting fish in a barrel, but since we're talking about the quality of legal prose...)

Posted by Aaron Caplan on June 29, 2015 at 06:37 PM in Constitutional thoughts, Teaching Law | Permalink | Comments (0)