Wednesday, March 25, 2015
If not Holmes, then Kennedy?
Ron Collins discusses a new book by First Amendment scholar Burt Neuborne, Madison's Music: On Reading the First Amendment. NYU Law hosted a program on the book last week, featuring Justice Sotomayor. In the book, Neuborne refers to Justice Kennedy as "the most important First Amendment Judge that has ever sat on the Supreme Court."
When his book The Great Dissent was published in 2013, Thomas Healy had an exchange with Mike Dorf in which he wondered who might have led the charge on free speech had Holmes not changed his mind in Abrams; Healy ran through a number of names but found all lacking. In my new article, I argue that Justice Brennan (who Healy did not mention in his blog post) would have been the justice to take that lead, discussing the various areas in which Brennan set out (or tried to set out) a uniquely speech-protective First Amendment vision and often succeeded in pulling majorities with him.
Neuborne's book and his comments at NYU present Kennedy as another answer to that question. In the paper, I refer to Kennedy as Brennan's "speech-protective heir," particularly once he had been on the Court for a few years. So could/would Kennedy have been that First Amendment leader without Holmes or Brennan before him (put to one side the impossibility of the counter-factual)? In many areas--notably corporate speech and campaign finance--Kennedy outstrips Brennan in protecting expression. Quantitative studies (one by Eugene Volokh and one by Ashutosh Bhagwat) reveal Kennedy's voting record to overwhelmingly favor free-speech claimants.
I did not think of Kennedy when I was writing the paper. Partly this is because the paper focuses on the First Amendment connections between Holmes and Brennan. Partly this is because Kennedy remains on the Court, so it is more difficult to assess him within the bigger historic picture.
More problematically, Kennedy's First Amendment near-absolutism gets lost in the unfortunately simplistic liberal/conservative rhetoric used to describe the Court, which overlaps with the newish trend that protection of free speech is not the automatically liberal position (as it generally was in Brennan's day). And there is the even-more-simplistic view of Kennedy as the swing vote who tips the balance in every case and at whom the attorneys all direct their arguments (this notion is captured in the line, which I have heard over and over from a practicing attorney, that "you don't count to 5, you count to Kennedy"). Whatever the truth of that view in many constitutional cases, it simply is not true in First Amendment cases. Kennedy is a sure thing for the free-speech claimant; lawyers need to worry about people like Justice Breyer.
Tuesday, March 24, 2015
"The Theocracy Brief"?
At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures). Here's the primary part of the post:
Some briefs are just downright weird. In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject. I have no opinion on whether what they say is correct. I know nothing about it. I do have an opinion on whether what they say has any relevance. It does not.
Last time I checked, the United States of America was not a theocracy. Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.
If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment? Of course not. So why would the teachings of the Catholic Church have any greater relevance? Because five of the current Justices of the Supreme Court happen to be Catholic? I am quite sure all five have the integrity not to let such an argument influence them.
* I don't know if they do, and truth of the "if" is not necessary to the point being made.
As it happens, the amicus brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case. It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.
Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that. But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" -- about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why. Just FYI."
Monday, March 23, 2015
A Texas bill that is both stupid and unconstitutional
There are stupid laws, there are unconstitutional laws, and then there is this bill introduced in the Texas House by Rep. Jason Villalba. The bill would define "interruption,disruption, impediment, or interference" with police (already a crime) to include a person "filming, recording, photographing, or documenting the officer within 25 feet of the officer," 100 feet if the person is carrying a handgun. The bill includes an exception for mainstream news media (defined in the bill). Breitbart Texas has a story, including reactions from various advocacy groups and Rep. Villalba's efforts to defend his creation on Twitter by insisting that it protects police without prohibiting recording or efforts to hold police accountable.
Assuming that recording public events is protected First Amendment activity (the Fifth Circuit has yet to decide the issue), this law would be in an immense amount of trouble. Where to begin?It is not clear how the simple act of filming, recording, or documenting from 22 feet away, without more, can constitute "interruption, disruption, impediment, or interference." Certainly, a general prohibition on interference could be applied to expressive activity and need only survive intermediate scrutiny under O'Brien. But defining expressive activity as interference raises different constitutional issues. The only interference/impediment from recording alone is that the act of being recorded will cause the officer to change his behavior lest he be caught on camera doing something wrong. If that is the goal, the law would have to satisfy strict scrutiny.
The bill treats expressive conduct differently than non-expressive conduct that implicates the same government concerns. A person who is not "filming, recording, photographing, or documenting" can be within the 25-foot mark, even if he has a handgun. In other words, where I can go depends on whether I am engaging in expressive activity. But if being within 25 feet of the officer interferes, it interferes whether the person is recording or just watching the events. A 25-foot buffer zone around police officers probably might be permissible; limiting that buffer zone only to those engaged in expressive activity is not. That makes the law underinclusive. And worse, it is underinclusive in a way that singles out expressive over non-expressive conduct.
The differential treatment of the mainstream media from non-traditional media and individuals cannot survive strict scrutiny (I doubt it could survive rational basis review), which applies when a law regulates based on speaker identity. Again, no way it survives strict scrutiny, because there is no reason that MSM recording is different from individual or blogger recording in terms of the government interest.
Finally, the real effect of this bill is less on bystander witnesses than on suspects or those in immediate contact with suspects. People directly involved in confrontations with police--themselves or their friends--will not be permitted to record when the police initiate contact. In other words, no Eric Garner video. The cynic in me says that is Villalba really is trying to do.
This has no chance of surviving constitutional scrutiny. It should have little chance of passing. The question is how much this guy wants to stick to his guns. The interesting question is, based on the Breitbart piece, it is Republicans/Libertarians/conservatives who are pushing back on this.
The First Amendment and the Redskins trademark, Part I: Government speech
The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is the first several guest posts on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog
The ACLU recently filed an amicus brief in the Washington Redskins trademark case, arguing that the Patent and Trademark Office’s (PTO) cancellation of Redskins registrations constitutes viewpoint discrimination contrary to the First Amendment, and urging the federal court to strike down those portions of Section 2(a) of the Lanham Act that prohibit the registration of “immoral,” “scandalous,” or “disparage[ing]” marks. We are deeply concerned with the ACLU’s position. Its proposal to thrust First Amendment law into an area of commercial regulation in unprecedented ways would wreak havoc with trademark law’s careful balance of concerns for property rights, economic exchange, and consumer protection. We believe that the ACLU’s fundamental misunderstanding of trademark law has caused it to misapply First Amendment doctrine.
In this first post, we wish to focus on the ACLU’s invocation of two First Amendment doctrines: viewpoint discrimination and unconstitutional conditions (we leave for a separate post whether the commercial speech doctrine might be appropriate). The ACLU’s position erroneously elides the various forms of government regulation and their contexts, treating trademark law like criminal law, municipal ordinances dealing with protests, laws creating public fora, and public subsidies. But the strongest First Amendment doctrines designed to ensure robust public debate simply don’t map on to trademark regulation without creating a major upheaval in trademark law. First Amendment doctrine requires strict scrutiny whenever there is a direct, content-based regulation of private speech. The federal trademark registry, however, does not operate like a direct regulation of private speech, nor does it create a forum for the expression of private speech.Congress’s power to regulate trademarks flows from, and is constrained by its constitutional authority over interstate commerce. Federal registration of a mark confers certain benefits (e.g., registration is treated as prima facie evidence of validity and ownership of a mark, gives a nationwide priority over subsequent users, and offers access to certain remedies), but it does not create rights. These advantages are more procedural in nature than substantive, closer to internal court rules than criminal laws, permit ordinances, or public subsidies. Trademark rights are instead established by common law from the actual commercial use of the mark; these rights can be asserted in federal court without a registration. It is in this crucial sense that the Lanham Act does not directly regulate expression as such—certainly not in the same way that a criminal law preventing offensive speech, a regulation banning parades without a permit, or even laws that subsidize private speech do. Section 2(a) does not prohibit the utterance of the word “Redskins” or attach any conditions on anyone’s use of that term.
This provision simply refuses to confer the benefits of registration on the Washington football team. The team would still retain the right to assert itself as the first and exclusive user of the term for commercial purposes under federal law. Consequently, the provision offers the Native American challengers in this case only the possibility of a symbolic victory—there would be no need for the team to change its name as it may still use and enforce the mark. Section 2(a) neither chills the free expression of ideas nor inhibits robust public debate.
Unable to point to a public forum or a direct inhibition of expression, the ACLU contends that the PTO registry imposes an unconstitutional condition on speech. In support of this proposition, the ACLU cites Legal Services Corporation v. Velazquez, where the Supreme Court struck down a federal law that prevented publicly-funded legal services lawyers from challenging “existing law.” As Robert has discussed elsewhere, this restriction of subsidized advocacy was tantamount to a ban on anti-government speech. But there is nowhere near the same threat to freedom of expression entailed by Section 2(a) of the Lanham Act—it is not even in the same ballpark. After cancellation of its registration, the Washington football team remains just as free to use the Redskins marks, in commerce or political discourse. Moreover, the fact that registration is cancelled in no way inhibits the mark user’s legally-oriented expression or distorts the normal operations of the legal system, two findings central to the Velazquez ruling. Section 2(a) does not restrict what lawyers can say in court and does not even prevent the mark’s owner from relying on statutory and common law trademark doctrines. It imposes no condition whatsoever on non-commercial expression. As Adam Cox and Adam Samaha have shown, truly unconstitutional conditions are rare, and virtually every constitutional issue can be reframed as an allegedly unconstitutional condition (as the ACLU has done). It is a mistake to do that here.
Closer examination of the idea of viewpoint discrimination shows that it doesn’t really capture how Section 2(a) of the Lanham Act actually works. That concept has been invoked in cases where there is a serious fear of chilling of political speech, i.e., when one side in a debate has to fight with an arm tied behind her back. But there’s no serious concern that anyone’s ideological message is hampered or distorted by the Lanham Act.
Section 2(a) does not turn on a speaker’s actual perspective on an issue. It instead permits an objective determination that a mark, regardless of the owner’s viewpoint, will be perceived as disparaging by the referenced group when used in commerce. Someone who wishes to coopt a disparaging term for positive ends may be barred from registry just as someone whose intended use is to disparage. Thus, Section 2(a) operates without regard to the ideological intention of a speaker. For example, the PTO refused the registration of the mark “The Slants” finding it was disparaging to Asian Americans despite the fact that the applicant was a band whose members are Asian and who intended to take on stereotypes about Asians. The applicant’s viewpoint was irrelevant.
Moreover, enforcement of Section 2(a) does not prevent the utterance of noncommercial pro-Redskins speech, just as it does not prohibit the utterance of non-commercial anti-Redskins speech. Decisions like Rosenberger v. Rectors of Virginia and R.A.V. v. City of St. Paul are simply inapposite.
We think that the best analogue for this type of government regulation is government speech. Under that body of caselaw, the PTO registry constitutes “government speech” rather than regulation of private speech. The doctrine permits government-wide latitude to design its own programs and express its own views, consistent with Congress’s mix of commercial and ideological goals. Reliance on this doctrine would recognize that the PTO registry simply is not a forum created for the exchange of private ideas; rather, it is a tool to facilitate Congress’s goals of regulating interstate commerce and protecting a diverse population of consumers from business practices that foster racial discrimination and stereotyping. These core programmatic goals place Section 2(a) well within the reasoning of two government-speech rulings by the Supreme Court: Rust v. Sullivan, where Congress barred government-funded doctors from advising about the availability of abortion, and FCC v. Pacifica Foundation, which permitted Congress to protect listeners from “obscene, indecent, or profane” broadcasts.
Accepting the ACLU’s invitation to apply First Amendment law maximally to the PTO registry would improperly convert the registry into a free speech forum. It would force the PTO to register all manner of marks, interfering with the government’s delicate balance of regulatory objectives.
A ruling in this case against the football team does express the government’s belief, after careful fact finding, that the term “Redskins,” as used by the Washington football team in commerce, is disparaging to an entire group of people. Under the government speech doctrine, Congress is free to express the view that racially-inflected commerce is wrong, that certain ideas harm consumers in a pluralistic marketplace, and that government sanction of the trademark’s usage might inhibit commercial activity. The PTO, relying on Section 2(a), has expressed that view here, leaving private actors at liberty to agree or disagree.
Finally, consider what actually happens when the PTO refuses to register a mark on the ground that it is “disparaging.” It means that the mark owner cannot claim that the federal government has endorsed or supported that expression for commercial reasons. But he or she can continue to use it in public debate. Moreover, to the extent that the benefits of registration hinder the mark owner from excluding others from using the term in commercial activity, the absence of a registration guarantees a more robust public debate. That result seems far more consistent with ensuring wide-open conversation on matters of public importance than a federal court ruling invalidating this portion of Section 2(a).
The emergence of political hate
An interesting take on hyper-partisanship and deeper political commitments from Keith Humphreys at RBC. But is he right about this being a new phenomenon? I am not so sure.
People hated Lincoln so much they tried to leave the country. Some of the rhetoric directed against, say, Jefferson or Andrew Jackson or FDR was as hateful and hate-filled as anything directed at Clinton, GWB, or Obama, or that will be directed at Hillary. And as for the niche press, the image of the impartial press dates, at the earliest, to the mid-19th century. If we go back to the Founding, there was a Federalist press and an Anti-Federalist press and the lines between them were clear and the rhetoric emerging from them was hostile much in the way Keith describes--that is why John Adams wanted the Alien and Sedition Acts.
Tuesday, March 17, 2015
Scope of injunctions
A recurring problem in the marriage-equality litigation--not only in Alabama, although it has obviously reared its head there--is confusion about the scope of a civil rights injunction and declaratory judgment. The constant refrain from me and many others is that any injunction applies only as to the named defendant(s) and as to the named plaintiffs. The injunction--as opposed to the court's reasoning and the power of precedent--does not legally compel anyone else to do anything or for the defendant to do anything as to any person not named as a plaintiff. But there has been pushback (particularly in a Con Law prof listserv conversation), particularly over the lack of SCOTUS precedent explicitly establishing this point.
In both cases, multiple people wanted to engage in particular conduct but were prohibited from doing so by a state or local law--handbilling outside a shopping center in Steffel, perating nude-dancing establishments in Doran--that arguably violated the First Amendment. Also in both cases, one person was a defendant in an ongoing state criminal prosecution. And in both cases, SCOTUS held that Younger did not bar the action by those people who were not parties to those ongoing state proceedings. The key was that the federal action (and resulting injunction or declaratory judgment) would not interfere with any ongoing state proceeding, since the federal plaintiffs were not involved in any such proceedings, so there were no comity problems.
But implicit in both decisions is that the federal injunction also would not interfere with the pending proceeding against a different person, even when instituted by the same government official. In other words, enjoining Doran from prosecuting Salem Inn did not prohibit him from continuing to prosecute M&L (the bar that had violated the ordinance and been issued a summons) and enjoining Thompson from prosecuting Steffel did not prohibit him from continuing to prosecute Steffel's friend (who already had been charged with criminal trespass). This must mean that the injunction binds only the named defendant as to the named plaintiff. At most, the federal court's reasoning might convince the official to drop the state case. But he would not have been "ignoring" or "defying" the federal court to continue with the state proceeding against someone other than the federal plaintiff because he carried no legal obligation as to any other person. If enjoining Doran as to Salem also would have enjoined him as to M&L, then the Younger analysis would have changed, because the injunction as to Salem would have interfered with the ongoing state proceeding.
We can see the parallel to the federal litigation in Alabama. A federal court has enjoined Probate Judge Don Davis from enforcing the state's SSM ban as to the four or five couples in Strawser, just as the federal court enjoined Doran not to enforce the nude-dancing ordinance against Salem. But that injunction cannot prohibit Davis from enforcing the ban as to any other non-party couple (by not granting them a license), just as the injunction could not prohibit Doran from enforcing the ordinance against M&L, which no longer was a party to the federal action.
Again, SCOTUS did not speak about the scope of injunctions in either Doran or Steffel. But it clearly understood injunctions in this way. And that, it seems to me, resolves at least this part of the shouting in Alabama.
Judge Granade refused to stay the preliminary injunction against Probate Judge Don Davis ordering him not to enforce the state SSM ban in deciding on marriage licenses. The linked story insists that this now creates a conflict for Davis, as he remains under both the state mandamus declaring the SSM ban constitutionally valid and prohibiting him from issuing licenses to same-sex couples and a federal injunction declaring the ban invalid and ordering him to issue licenses.
But is there actually a conflict? Granade has not yet acted on the plaintiffs' motion to amend and certify a class action. Without that, what we have against him is a federal declaratory judgment of constitutional invalidity that is persuasive-only and an injunction that he already has satisfied as to the currently named plaintiffs (there are four or five at this point, all of whom have been granted licenses). So Davis is under no current federal obligation to issue a license to anyone who does not already have one, thus he faces no conflict with the mandamus prohibiting him from issuing licenses to same-sex couples. Judge Granade's opinion by itself imposes no obligation on him to do anything, so it alone does not create conflicting obligations. That is the fundamental mistake everyone is making.
Fortuitously, here is Will Baude (Chicago) making a similar argument in The Times,* not as to marriage but as to the Affordable Care Act. Baude argues that, if the plaintiffs prevail in King, the administration can comply with the Court's judgment as to the four named plaintiffs, but continue granting subsidies to everyone else, since the Court's order does not apply to them and nothing requires the government to extend the reasoning of an opinion to other people. (H/T: My colleague Tom Baker, who refers to this as the "Dred Scott Move"). In essence, the state mandamus is forcing Davis to do the same--not extend Judge Granade's reasoning to other couples.
If the administration can legally (even if not politically) do this with a Supreme Court opinion, then certainly Don Davis can legally do this with an opinion from Judge Granade.
* On a different note: The headline on Will's op-ed--Could Obama Bypass the Supreme Court--perfectly captures the media's fundamental confusion about how judicial decisionmaking operates. Will's very point is that Obama would not be bypassing the Supreme Court at all in doing this, that he would be complying with the Court's order but not extending its reasoning, which typically is done only as a matter of convenience (to avoid getting sued again and again), not legal obligation. So in no way would this be "bypassing" anything. The headline writer clearly missed that point.
Monday, March 16, 2015
Defending the barely defensible
This weekend, I published two guest commentaries for JURIST defending some reprehensible folks. First, I argue that Oklahoma's expulsion of the SAE members over the racist chant on the bus probably violates the First Amendment. Second, I try to bring some procedural sanity to the discussion of same-sex marriage in Alabama (this puts together everything I have been writing here for the past month or so).
Friday, March 13, 2015
Stacking the rhetorical deck
I think we can agree on the following two propositions: 1) It is a bad thing when someone shoots a police officer. 2) It is a bad thing when a police officer shoots an unarmed 11-year-old or chokes to death a man selling loose cigarettes.
But only the critics/reformers/protesters of police abuse are forced to fall all over themselves to condemn a shooting that has nothing to do with them. There is no similar pressure on police or police officials to disavow an absurd pattern of abuse by their fellow officers. In fact, police (quite literally) turn on any public official who dares to criticize one of their own.
So the story is now going to be that President Obama did not quickly or forcefully enough condemn a shooting that no rational thinks was right and that has nothing to do with efforts to reform police pratices, but not a documented pattern of police abuses that some people are still defending.
Thursday, March 12, 2015
Maybe the ACLU has given up on free speech
Via Ron Collins at CoOp, here are two statements from the leadership of the Oklahoma ACLU, applauding the president's decision to punish the students, but calling on him to ensure that the students receive due process. No mention of the First Amendment.
Tuesday, March 10, 2015
First Amendment suspended at Oklahoma?
The two Oklahoma University students leading the racist chant aboard an SAE party bus have been expelled, according to a statement by the university's president, because they created a hostile learning environment for others. The president emphasized that the speech "impacted the entire university community as it was also distributed on social media."
I have no idea if the students will sue, as they may just want to crawl back under their rock. But if they do go to court, no way the expulsion can withstand First Amendment scrutiny, right? "Hostile learning environment" is not a recognized category of unprotected speech, unless you can squeeze it into some pre-existing category such as fighting words, true threats, or incitement and this plainly is neither.
Wow, between Roy Moore and these schmucks, I'm on a roll this month.
Update: Eugene Volokh weighs in, reaching the same conclusion that this expulsion is improper. He focuses on several points, including that racist speech remains fully protected (outside of threats or fighting words), as do references to violence that are not immediately threatening.
Monday, March 09, 2015
I see your mandamus and raise you a class action
In response to last week's Writ of Mandamus by the Supreme Court of Alabama, the plaintiffs in Strawser have moved to amend the complaint to add some new plaintiffs and one new probate-judge defendant and to have the entire thing certified as a plaintiff and defendant class action. (H/T: Lyle Denniston). If successful, the move will allow Judge Granade to enjoin every probate judge to issue a license to every same-sex couple in the state.
It also seems to set-up a direct conflict between orders of a state supreme court and a lower federal court, although that may be more illusory than real. The arguments surrounding the mandamus recognize that the mandamus only controlled judges not under a federal injunction requiring them to issue licenses; recall that Judge Don Davis (at the time the only probate judge subject to an injunction) was ordered to show that he was under the injunction, presumably to be released from the mandamus. By those terms, if a class injunction issues, every probate judge should be given an opportunity to make that showing, after which the mandamus should give way.
Wednesday, March 04, 2015
ACLU responds to Ron Collins
So, it appears I was sort-of right. As ACLU Exec Director Anthony Romero responds to Ron Collins, the organizations Workplan excluded free expression because other civil liberties issues involve bigger, broader, more systematic challenges involving more coordinated efforts. Free expression involves one-off individual cases into which both the national office and, especially, local affiliates regularly get involved, but which are less in need of coordinated national efforts. So it is not that the ACLU has declared victory, but that the nature of challenges to free expression are different than the challenges in other civil liberties areas.
Is this a satisfying explanation?
Update: As if to prove its point that it still loves the First Amendment and is still willing to defend the liberty of loathsome speakers to say loathsome things: The ACLU filed an amicus in the dispute over the Washington NFL Team nickname, arguing that the Lanham Act limitation on "disparaging" trademarks is viewpoint discriminatory and violates the First Amendment. (H/T: Ron, who heard directly from ACLU Exec Director Anthony Romero).
Missing the signals
Ed: This post originally was published under Dan's name because I was inadvertently signed-in on our administrative password. My apologies.
The worst thing that can be said about the Supreme Court of Alabama's mandamus decision (besides its legal reasoning, which on a quick read seems wrong and somewhat intemperate) is that the court disregarded the "signals" that have been emanating from the Court since the fall (if not since Windsor itself) about the likely outcome on this issue. A question for the signalling people (Richard and others): Does a lower court act inappropriately if it ignores (willfully or otherwise) signals and insists on applying only the formally established precedent? In a way, this feels like another aspect of the question of whether lower courts should decide cases by attempting to "predict" what SCOTUS will do or by applying their own best judgment and analysis to reach what they believe is the correct result.
Tuesday, March 03, 2015
Adam beat me to the announcement of the Supreme Court of Alabama issuing the mandamus ordering all non-enjoined probate judges to cease issuing marriage licenses (it is nice to have another Fed Courts geek around for a month). I have written about the mandamus petition before, but I will repeat the key points.
SCOTA is going out of its way to make its voice heard on marriage equality. This is arrogant and probably wrong, since none of the arguments against SSM hold water. But it cannot be regarded as "defiant" in any way, since the court is not acting in defiance of any legal authority.
This ultimately is entirely symbolic. As Adam notes, the mandamus order makes clear that it does not/will not apply to Judge Davis to the extent he is under the federal injunction to issue licenses to anyone. Presumably, any later-issued federal injunctions, against Davis or any other probate judge as to any other couples, will be grounds to release that judge from the mandamus, thereby avoiding any conflict with a federal order (this was Alabama's position in opposing a motion in the Southern District to stay the mandamus action). The mandamus solidifies the legal status quo--anyone wanting a license must sue the appropriate probate judge and obtain a federal court injunction.
Two wrinkles. First is that the probate-judge defendant in that future federal action may try to argue abstention, although I expect the argument to fail, for the same reasons it failed in Oklahoma and South Carolina. Second, I wonder if anyone will ask SCOTUS to stay the mandamus pending review. [Update: An emailer reminds me that SCOTUS review might be impossible, since no license-seeker is a party to the state court action. One of the respondent probate judges would have to petition, but I don't know that any of them cares enough to appeal.]
Alabama Supreme Court Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples
As you may know (Howard has had some excellent coverage), we’re in the midst of a real-life fed-courts hypo here in Alabama as litigation continues over the state’s ban on same-sex marriage. There was another development this evening, when the Alabama Supreme Court issued a 134-page per curiam opinion enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.
The ruling was prompted by a petition for a writ of mandamus that was filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. The petition named four probate judges who had been issuing same-sex marriage licenses as respondents, and designated all other Alabama probate judges as “Judge Does ##1-63.” One of those Doe judges, Judge Enslen of Elmore County, sought to have the Alabama ban enforced and was redesignated as an additional relator-petitioner.
This evening’s order acknowledges that one Alabama probate judge—Judge Davis of Mobile County—is the subject of a federal injunction issued by Judge Callie Granade, who back in January had declared Alabama’s ban unconstitutional.
Here’s the full text of the order that appears at the end of today’s Alabama Supreme Court opinion:
The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
If you want to get up to speed on what’s been going on, you can find copies of all the important orders, filings, and other documents at the Civil Procedure & Federal Courts Blog.
Tuesday, February 24, 2015
Another twist in the march to marriage equality
Two weeks ago, Judge Granade enjoined Mobile Probate Judge Don Davis to stop enforcing the state's SSM ban and to begin issuing marriage licenses to same-sex couples. Last week, Davis refused to grant a second-parent adoption to Cari Searcy and Kimberly McKeand, the plaintiffs in the first action in which Judge Granade invalidated the state ban. Davis entered an interlocutory decree granting Searcy temporary parental rights, but declining to issue a final adoption order until after SCOTUS decides the Marriage Cases this spring. Searcy and McKeand have filed a new action against Davis, seeking not only an injunction, but also compensatory and punitive damages (I have not been able to find the complaint).
First, this illustrates the importance of determining the true and proper scope of an injunction. In Strawser, the Court enjoined Davis from enforcing the SSM ban and to issue licenses to Strawser and some other named plaintiffs. But that is the limit of the court order. It does not and cannot apply to enforcing (or not) the SSM ban as to anyone else or in any other context. Thus, the argument that Davis is bound by any court order to grant this adoption is wrong. Otherwise, we have, at most, persuasive authority that the SSM ban is unconstitutional, nothing more.
Second, this new lawsuit seems to have other problems. Adoption decisions by probate judges, unlike decisions to grant or deny marriage licenses, appear to be judicial in nature, involving petitions, hearings, evidence, interlocutory and final orders, and appeals. This raises a couple of issues. First, if this is a judicial act, Davis is absolutely immune from damages--Davis was named in Searcy's original action and this was one argument he made in his motion to dismiss. And if Davis was acting in a judicial capacity, then under § 1983 the plaintiffs at this point can only obtain a declaratory judgment but not an injunction. Second, if this is a judicial act, this action should be barred by Rooker-Feldman--Searcy and McKeand are state court losers (they did not get the remedy they wanted in state court) and functionally are asking the federal court to reverse the state court decision. This argument is a bit weaker within the Eleventh Circuit, as there is some district court caselaw that Rooker-Feldman only applies to final state court decisions but not interlocutory orders. Still, if Davis was wrong to deny the adoption in a state judicial proceeding, the plaintiff's move is to appeal, not to run to federal court.
Update: Thanks to commenter Edward Still for sharing the Complaint, which is as bad as I thought. It asks for an injunction against a judge without having gotten a declaratory judgment; it asks for damages and attorney's fees against a judge for what the complaint itself makes clear is a judicial act; and it asks the district court to "strike" an order of a state-court judge and to command that state judge to grant parties relief. I am not big on Rule 11 sanctions against civil rights plaintiffs, but this one asks for so much that is so obviously legally barred by clear statutory language as to be a bit ridiculous.
Friday, February 20, 2015
Levels of Generality in Means/Ends Analysis
It is a familiar lesson of U.S. constitutional doctrine that the outputs of decision rules will sometimes depend on the level of generality with which their inputs are defined. This theme is perhaps most evident in substantive due process doctrine: Defining a liberty interest in broad terms can increase the likelihood of its qualifying as “fundamental,” just as defining the interest in narrow terms can reduce that likelihood. But generality levels can make a difference in other areas of the law as well. A “right” may be more likely to qualify as “clearly established” for purposes of a qualified immunity defense if we characterize that right broadly rather than narrowly, a “matter” may be more likely to qualify as “of a public concern” when the matter itself is defined abstractly rather than specifically, a “power” may be more likely to qualify as “great substantive and independent” (and hence not implied by the enumerated powers of Article I) if the power is described in general rather than specific terms, and so forth. In these and other contexts, the outcome of a doctrinal inquiry can depend not just on the content of its evaluative criteria (e.g., what does it mean for a right to be “fundamental”?, what matters are and are not of “public concern”?, what does it mean for a power to be “great substantive and independent”?, etc.), but also on how one defines/describes/characterizes the objects to which those criteria apply (e.g., what is the “liberty interest” whose “fundamentality” is at issue, what is the “matter” whose “public-concerned-ness” we are evaluating?, what is the “power” whose “greatness”/“independence” we are measuring?, etc.).
I’d originally figured that this insight applied with equal force to the various forms of means/ends analysis that pervade constitutional law. Means/ends analysis, after all, requires some estimation of the strength of a “government interest” said to justify a constitutionally suspect enactment, and the strength of that interest will in turn depend on the level of generality with which we define it. Think, for instance, of Holder v. Humanitarian Law Project. There the Court rejected an as-applied First Amendment challenge to the federal “material support” statute, brought by plaintiffs “seek[ing] to facilitate only the lawful, nonviolent purposes” of foreign groups designated to be terrorist organizations. One can define the government interest in HLP at different levels of generality. From most to least specific, the interest might be characterized as that of (1) “cutting off support for the lawful, nonviolent activities of foreign organizations designated as terrorist groups,” (2) “undermining foreign organizations designated to be terrorist groups,” (3) “undermining foreign terrorist groups,” (4) “combating terrorism,” or (5) “promoting national security,” with a bunch of intermediate options in between. And as the generality-level of the government interest increases, so too should the ease of demonstrating that interest’s overall importance. (All else equal, for instance, the government will have less difficulty in highlighting the vital importance of “national security” than that of “cutting off support for the lawful, nonviolent activities of foreign organizations designated to be terrorist groups.”) In that sense, means/ends analysis does indeed seem to be at least somewhat sensitive to changes in generality-levels, with increased generality levels yielding increased odds of a government-friendly result.
But things turn out not to be so simple, as something interesting happens when we proceed to ask whether the law is sufficiently closely related to the government interest we have identified. Here, we encounter something akin to the opposite relationship between generality-levels and justificatory ease: the more generally we have characterized the government interest, the more difficult it will become to show the requisite means/ends fit. It would not be difficult to show that the material support statute is “necessary to further” the government’s interest in “cutting off support for the lawful, nonviolent activities of foreign organizations designated as terrorist groups”—that objective, after all, is precisely what the material support statute purports to pursue. But would the law count as necessary to further the more generally defined interest in “promoting national security”? Maybe, but maybe not. The problem is that the government can “promote national security” in many more possible ways than it can “cut off support for the lawful, nonviolent activities of foreign organizations designated to be terrorist groups.” And the wider the range of potential means of achieving an interest, the more likely it becomes that a “less restrictive” or “less discriminatory” means will emerge from the heap—thus demonstrating that the chosen means was fatally over- or underinclusive with respect to the interest in question.
In other words, broadening our characterization of the government interest may make things easier for the government (and more difficult for the challengers) when evaluating the strength of the interest, but it will then make things more difficult for the government (and easier for the challengers) when evaluating the degree of fit between the interest and a challenged law.
That’s not to say that the government can’t ever win an argument about “means” where the relevant “end” has been defined in highly general terms. Indeed, the government did end up winning in HLP, notwithstanding the Court’s decision to characterize the government interest broadly rather than narrowly (the Court went with Option #4, “combating terrorism”). Rather, the point is that because it focuses attention on both means and ends, means/ends analysis may manage to mitigate the influence of generality-levels on the ultimate outcome of the test. One can ratchet-up the generality level of the government interest to assist in justifying the ends, but one must then pay a price when attempting to justify the means. And one can ratchet-down the generality level to assist in justifying the means, but one must then pay a price when attempting to justify the ends. As long as one maintains the same description of the government interest throughout the analysis, then there should be some level of equilibration across the two prongs of the test.
Now before anyone starts publishing banner headlines about this observation, let me identify a few grounds for skepticism. The hypothesis I've offered may turn out to be (a) false or (b) trivial:
- Why the hypothesis may be false: Even if everything I've said is right, it still might be true that the generality levels matter more at the first step of the inquiry than at the second. In other words, the chosen generality-level of the government interest may exert a major positive influence on whether or not that interest counts as “compelling,” “important,” “legitimate,” or what have you, while exerting only a minor negative influence on whether there is a sufficiently close fit between the interest itself and the law under review. If that is true, then means/ends analysis would remain highly susceptible to manipulation via characterizations of the relevant government interest, with the positive effects of high-generality at the “ends” stage of the inquiry drowning out its negative effects at the “means” stage of the inquiry.
- Why the hypothesis may be trivial: I can imagine two arguments to this effect—one grounded in cynicism and the other grounded in optimism, with both concerning the overall constraining effect of doctrinal rules.
- The cynic’s argument would maintain that even if means/ends analysis is not sensitive to fluctuations in the generality-level of a government interest, means/ends analysis as a whole remains malleable, manipulable, and ultimately non-constraining in a myriad other ways. A judge who is dead-set on upholding a law subject to strict scrutiny (or striking down a law subject to rational basis review) can always find always find the arguments necessary to justify the desired means/ends result, no matter what how generally or non-generally the interest has been defined. So the cynic would say, it doesn't much matter whether my hypothesis is right or wrong. Even if it is right, the outcomes will be what they will be because judges can and will manipulate other parts of the means/ends test to go where they want to go.
- The optimist’s argument would focus instead on what has thus far been an unstated (and undefended) premise of my argument—namely, that choices among generality-levels are to some extent arbitrary and difficult to predict ex ante. But if that point turns out to be false—if, in other words, there does exist a coherent, predictable, and defensible way of identifying the operative generality level of a given constitutional input, then any “equilibrating” or “self-regulating” process built-in to means/ends analysis would be of only marginal significance. Either way, the optimist would maintain, means/ends analysis would operate in a principled fashion—either levels of generality matter, in which case means/ends analysis is influenced by a principled legal choice, or levels of generality do not matter, in which case means/ends analysis will still be influenced by other principled legal choices.
Wednesday, February 18, 2015
Collins on Terrorist's Veto
Great post from Ron Collins at CoOp on the need for democratic society's to stand firm in the face of the terrorist veto, which he calls the "savage cousin of the heckler's veto."
Tuesday, February 17, 2015
And more crazy in Alabama
With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.
The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.
First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.
Second, as has frequently been the case here, the big question is one of Alabama law--how much control the attorney general has over privately initiated litigation on behalf of the State. The Attorney General can seize control over litigation initiated as the state by local prosecutors and other executive officers; it is less clear whether he can do the same when suit is brought by private actors. The plaintiffs argue for a a broad understanding of FRCP 65 as to the scope of injunctions.
Third, as predicted, the state tries to play the abstention card. Also as predicted, they screwed it up. The state tries to argue that the Anti-Injunction Act bars the federal court from enjoining this pending state proceeding, emphasizing the narrowness of the statute's exceptions. But one exception is when Congress expressly authorizes an injunction by statute, which it did in enacting § 1983. Strawser and all other actions challenging SSM bans are § 1983 actions, so the AIA imposes no limit on the injunction here. The state also tries to argue Rooker-Feldman, a doctrine which also has no application here, since the plaintiffs are not state-court losers or even parties to the state court action.
Sunday, February 15, 2015
If possible, Alabama could get more confusing
Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.
So how will this play out and what effect will it have?
This sort of mandamus action has been attempted before, in a slightly different context. In Oklahoma and South Carolina, state attorneys general sought to mandamus individual county clerks who intended to issue licenses in light of a federal appeals court decision invalidating SSM bans in other states. These clerks were under no federal injunction and there had been no decision addressing bans in their own states. But now-binding Fourteenth Amendment precedent made legally certain what would happen in any federal action challenging those bans, so the clerks were simply avoiding that lawsuit and injunction. The mandamus was intended to make the clerks wait and not to issue licenses unless and until compelled to do so.
In Alabama, probate judges other than Don Davis of Mobile who are issuing marriage licenses are doing so on the persuasive force of the district decision, but without an injunction. They, too, are trying to avoid a lawsuit, one whose outcome is both more and less obvious than in the other two cases. Here, there is only persuasive, and not binding, federal precedent, although it involves a declaration as to this state's marriage ban.
The mandamus action raises a whole series of state-law questions. One is whether these organizations have standing, as their only injury seems to be that probate judges are doing something the petitioners don't like. It also would require the court to conclude that a probate judge is forbidden (not simply not obligated, forbidden) from adhering to district court precedent. It is not clear whether the petition also will require the court to decide the constitutionality of its marriage ban, which would be the only federal issue in play; otherwise, any decision is insulated from SCOTUS review.
The mandamus petitioners rely on one fundamental misunderstanding--that the only court of competent jurisdiction to declare the state's marriage-equality ban unconstitutional is SCOTUS. This erroneously minimizes the effect of lower-court precedent. While only SCOTUS precedent binds state courts, here probate judges are performing administrative functions; they can be sued in federal court, where circuit court precedent will be binding and district court precedent is at least persuasive. Again, I really believe the question of federal precedent in state court is beside the point. And in taking this step, petitioners misunderstand that point.
Finally, if the mandamus issues, the real effect will depend on how broad the order is. If it simply applies until a probate judge comes under a federal-court injunction, then its effect is more practical than legal. Formally, no probate judge has any direct legal obligation to issue a license until sued in federal court and enjoined; the mandamus would simply provide a court order emphasizing that reality. It would force every couple seeking a license to sue every probate judge individually, rather than allowing couples to gain the benefit of persuasive authority. This is inconvenient and inefficient (although not costly, since plaintiffs should get attorney's fees), but not a significant change to the landscape of actual legal obligations. The mandamus also would open the door to the probate judges trying to raise Younger, Rooker-Feldman, Pullman, and Burford in the federal district court; this is what happened in both the Oklahoma and South Carolina cases, although both courts soundly and properly rejected those arguments.
On the other hand, if the mandamus bars probate judges from issuing any licenses until SCOTUS decides the issue of marriage equality, we have genuine problems. The inevitable federal injunction would set up the very direct conflict and confusion the petitioners purport to be trying to resolve. There actually would be directly conflicting orders--a state mandamus prohibiting every probate judge from issuing a license and a federal injunction commanding a named probate judge to do so.
Thursday, February 12, 2015
Now we have a meaningful federal order
The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.
So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:
1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.
2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.
3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.
4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.
Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2. In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.
Bazelon sort-of defends Roy Moore
Emily Bazelon makes a sort-of defense of Roy Moore in The New York Times Magazine, turning out many of the arguments I have been making here.
Wednesday, February 11, 2015
Dorf on Roy Moore and Alabama
Mike Dorf's take on Roy Moore and the events in Alabama. Mike concludes "that while Chief Justice Moore's memo was a lawyerly piece of work, it ultimately does not advance his (distasteful) cause. It's at best a cover for his Faubusian agenda." He argues that Moore ultimately was playing a losing hand because couples always could sue the probate judges in federal court (because, as I have argued, issuing the licenses is not a judicial function). In playing it, therefore, Moore was simply trying to play Orval Faubus (or George Wallace, to keep it in the same retrograde state).
I agree that Moore likely is doing all this for bigoted reasons. But that is not necessarily established by the fact that the probate judges could be sued and enjoined. I never read Moore as denying that or denying that this would change the analysis and their obligations (certainly some probate judges recognized as much). Moreover, what difference should it make that Moore's position will ultimately prove a loser? The question is whether it is wrong to force the plaintiffs go through the process of establishing their legal rights and of not departing your preferred position (non-issuance) unless formally compelled to do so, even when you know exactly how it will play out (and even when it likely will cost the taxpayers attorney's fees).
There is an obvious comparison between Alabama and Florida. In both states, officials charged with issuing licenses (county clerks in Florida, probate judges in Alabama) took the position that they were not bound by the initial district court order or opinion invalidating the state ban. And in both, the federal court issued a "clarification" that the earlier injunction did not compel any non-parties to issue licenses, but the Constitution did (whatever that means). But then they part ways. In Florida, the county clerks folded their tents following the clarifying order and began issuing licenses across the state,* although I they were not legally compelled to do so by that clarification and did so only as a strategic choice of avoiding being sued. But the Alabama probate judges, and Moore, have not done the same; unlike the Florida clerks, they seem intent on making the plaintiffs take the steps of obtaining those individualized federal injunctions.
* Mostly. Clerks in several counties avoided having to issue licenses to same-sex couples by ceasing issuing licenses at all.
So two questions: 1) Why is Alabama playing out differently. Is it Moore and other officials playing Wallace/Faubus by demanding formal legal processes? 2) Is it wrong of them to demand those processes be followed (and by that I mean not merely less preferable or more expensive, but morally or legally wrong)?
Tuesday, February 10, 2015
The irony of trying to have it both ways
Much of what is happening with same-sex marriage in Alabama right now is a product of a hierarchical and geographically dispersed judiciary. The district courts hear cases first and may decide quickly, but the decision (beyond the parties themselves) has limited precedential value. The courts of appeals and SCOTUS create sweeping binding precedent, but it takes longer to get those decisions.
Had the Eleventh Circuit or SCOTUS ruled that the Fourteenth Amendment prohibits same-sex marriage bans, the obligations of state officials would be clearer. It would be certain that any district court would order them to issue the license because the precedent would be binding and that to not issue licenses would subject them to contempt. It also would be certain they would be on the hook for attorney's fees. And they may even be on the hook for damages, because the law would be clearly established. But we are still early in the process in Alabama, so we only have a persuasive-but-not-binding opinion from a district court. And we see what we would expect--it is persuading some actors, not persuading others; when lawsuits start coming, it may persuade some district courts and not persuade others.
In the short term, of course, this may give us Swiss cheese--one report this morning said 16 out of 67 counties are issuing licenses. Uniformity within the state comes with that binding precedent from the reviewing court. But it takes time.
There is a way to avoid Swiss cheese, of course: Have the district court decision and order stayed pending appeal. Then everyone will be able to marry at the same time--once the reviewing court provides binding precedent that same-sex marriage bans are invalid, after which everyone is bound. Of course, no one on the pro-marriage equality side wants to wait. I would guess everyone would strongly prefer marriages in 16 counties to marriages in none.
But that is the choice. You can have marriages begin without binding precedent, but not every official or court will go along with the precedent, so not everyone will gain the benefit of it. Or you can get uniformity from the eventual binding precedent so that everyone will be bound and everyone will benefit, but you have to wait. You cannot get both. And while frustrating, it is wrong to attribute this procedural reality to malfeasance by state officials.
And the media does not help
Most counties in Alabama were not issuing licenses as of yesterday, not improperly so as a matter of process. But you would not know it from the media, with headlines such as Most Alabama Counties Defy Feds by Blocking Gay Marriage (ABC News, complete with video of George Wallace in the doorway) and Judicial Defiance in Alabama: Same-sex marriage begins, but most counties refuse (Wash. Post); The Supreme Court Refused to Stop Gay Marriage in Alabama, But the State's Governor and Chief Justice Are Refusing to Listen (TNR); and Alabama's Roy Moore Defies Federal Order, Refuses to Allow Gay Marriage (Slate's Mark Joseph Stern, who can't help himself, calling it a "stunning display of defiance against the judiciary").
Monday, February 09, 2015
Measels--An Update and Some Constitutional Issues
So things are moving fast on the Measles front. Today I’m going to do a quick overview of mandatory vaccination for childhood disease and later this week what it tells us about our efforts to prepare for a bioterrorism event (spoiler, nothing good).
The measles outbreak has spread now to 17 states and the District of Columbia. And things are worse than they seem. The current “outbreak” (the number of cases that can be traced back to the original Disneyland exposure) signals how many people in the U.S. lack immunity not just to measles, but most likely to the other two deadly diseases which the MMR vaccine protects against—Mumps and Rubella (German Measles). For an overview of the damage done by Andrew Wakefield’s now discredited article see here. See how Megyn Kelly explains it here. Last year I gathered some resources specific to young adults, and they are here.
Rubella poses a serious risk to developing fetuses. According to the CDC A pregnant woman has “at least a 20% chance of damage to the fetus if….infected early in pregnancy.” This damage is called CRS-congenital rubella syndrome. Warning-you may want to take my word that this potential damage is serious rather than read this very descriptive CDC report . Mumps is also quite serious. Again a warning, it may be enough to know that the virus causes swelling in various body parts and can be a contributing factor to infertility or low fertility in a small but real percentage of men who become infected.
Moreover, it seems unlikely that MMR is the only vaccine these children lack. They are also at risk for polio, diphtheria, tetanus, whooping cough, chickenpox, hepatitis B(and no, it’s not just a sexually transmitted disease),meningococcal disease , and something really unpleasant for which there is now a vaccine—rotavirus. Here’s the list.
The public focus has turned very quickly to law and ending vaccination exemptions, see here and here, —so these are some resources if this comes up. Top legal experts like Professor Lawrence O. Gostin are making clear, there is no Constitutional requirement to exempt anyone from mandatory vaccination in the face of a credible threat to the public’s health. The Supreme Court in held Jacobson v. Massachusetts that the individual states have full authority to pass mandatory vaccination laws and that they are not obligated to give exemptions for reasons of philosophy or preference. For more background on the Constitutional issues see Prof. Parmet here, here, and here and Professor Edward P. Richards. The situation is a closer call when it comes to religion, but not much. As Justice Ginsberg points out in her dissenting opinion in Burwell v. Hobby Lobby, “Religious objections to immunization programs are not hypothetical.” 134 S.Ct. 2751, 2805, n. 31 (2014). And in terms of an adult’s right to claim a religious exemption from medical care for a minor, the law is if anything clearer. Even when making a “martyr” of oneself doesn’t pose a threat to others, a state still has the power to intervene when the religious belief is claimed on behalf of a minor. Here’s a helpful overview by the Congressional Research Service about vaccination laws in the US and here's one that looks at laws overseas.You may be interested to know that the CDC is tracing several outbreaks at the moment including Listeria monocytogenes from caramel apples and sprouts
No contempt for you
Motion for Contempt denied--as expected and as appropriate. Judge Granade emphasized that Judge Davis is not a party. And she pointed out that her clarification order "noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law." In other words, plaintiffs' lawyers, pay attention to what the judge tells you.
Same-sex marriage comes to Alabama
Read the whole thing for reports and photos of same-sex marriages in Alabama (my favorite is the two African-American women posing with the white male judge who married them in Birmingham--maybe we have come some ways.. Roy Moore's Sunday gambit had mixed results; marriages are taking place throughout the state, although not in particular counties. Lawyers are preparing to file an action in federal court against the probate judge in Mobile asking for an injunction--exactly how this should play out.
[Update: Or not. The lawyers for a couple actually filed a Motion for Contempt and Immediate Relief against Judge Don Davis, probate judge in Mobile. But since Davis is not a party to the original action or subject to the original injunction, he cannot be held in contempt by this judge. All they had to do was file a new action, which would have been assigned to Judge Granade for a new preliminary injunction. This is insane.]
[One More: Marty Lederman reminds me that Judge Davis was originally a party to the case, but was dismissed with prejudice for reasons I cannot fathom, beyond, again, no one knows what they're doing here. But it is even less possible to hold in contempt a person who was explicitly dismissed from the case.]
SCOTUS this morning denied a stay in Searcy, from which Justices Thomas and Scalia dissented. In response, AG Luther Strange clarified that, while he is barred from enforcing Alabama's ban, he has no power to issue license, and that probate judges should consult their attorneys and associations.
Josh Blackman has some thoughts on Thomas's dissent. I may have more to say later.
Ever looking to escalate, Alabama's Chief Justice Roy Moore has issued an Administrative Order stating:
Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with [Alabama's constitutional and statutory prohibitions on same-sex marriage].
Moore seems to be relying on the fact that no probate judge is subject to Judge Granade's order. So we probably need to read this as implicitly applying "as of Sunday, February 8," but no longer effective when probate judges start getting enjoined by federal district courts on Monday morning.
But Moore's move now has me thinking that commenters to my earlier posts had it right--Moore is the statewide officer who should be named as defendant, with an injunction ordering him to order the state's probate judges to issue licenses. Moore clearly has set himself up as the official with the power to control the enforcement of this particular state law by controlling what state probate judges do, much as California's AG could control county clerks and order them all to issue licenses. Moore concedes he is acting in an administrative capacity. And since this is not a decision arising from actual litigation, neither Younger nor Rooker-Feldman should come into play.
Sunday, February 08, 2015
More from Alabama
This article lays out the competing sides of the dispute pretty well. And it shows how complicated this may be getting and how confused many people are by this area of the law.
First, the article talks about Alabama probate judges being jailed for contempt. This would be utterly impossible--Judge Granade cannot hold in contempt anyone who was not party to the federal action, which is only the state AG. But the story then clarifies that contempt would be for violating a future order against a probate judge sued on Monday for refusing to issue a license, not for violating Judge Granade's original order. Which is right, although unlikely--at least Judge Bowden has stated that he will comply with any injunction that may issue should he be sued.
Second, someone mentions the possibility of "sanctions" against the judges, including attorney's fees. This is one of the things Judge Granade mentioned in her "clarification" order, which block-quotes from Judge Hinkle's similar clarifying order in the Florida case
Calling this a "sanction" is wrong, in that it suggests wrongdoing by the non-issuing judge for which he would be punished. Instead, fees would be a routine part of the injunction action. Under § 1988(b), a prevailing party can recover attorney's fees; this would cover a same-sex couple that sues and obtains an injunction ordering the judge to issue the license because the state SSM ban violates the Fourteenth Amendment.
But the attorney's fee question gets another layer because Alabama has vested the licensing power in judicial officers. Section 1988(b) has an exception--"in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction." This was added in 1996, along with an amendment to § 1983 which limits the availability of injunctions against a "judicial officer for an act or omission taken in such officer’s judicial capacity." The amendments together were intended to limit the effect of the Court's 1984 decision in Pulliam v. Allen, which held that absolute judicial immunity does not extend to injunctions or attorney's fees. The effect is to grant judges absolute immunity from attorney's fees to the same extent they enjoy absoulute immunity from damages--whenever they acted in a judicial capacity or performe a judicial function and did not act in the complete absence of jurisdiction.
It seems pretty clear that issuing a marriage license lacks the hallmarks of a judicial function (adversary proceedings, appellate review, formal processes) and lacks the exercise of the learned judgment that characterizes judicial decisionmaking and justifies judicial immunity. This is a purely ministerial function, such that a judge acts in an executive capacity in performing it. As such, a probate judge refusing to issue a license would not enjoy judicial immunity from an action for damages,* would not fall within the exception to § 1983 regarding injunctions against judges, and would not fall within the exception to § 1988(b) regarding attorney's fees against judges.
* A judge performing an executive function still can claim qualified immunity. And since it is not clearly established in Alabama that a ban on same-sex marriage is unconstitutional, any Alabama probate judge sued next week almost certainly would enjoy qualified immunity.
Attorney's fees play an interesting and unexpected function in a situation like this--they act as a deterrent to recalcitrant state officials. While formally not bound by the district court decision invalidating the SSM, the threat of attorney's fees puts these officials to a choice: 1) Force plaintiffs to go through the additional step of another lawsuit to obtain an (almost-certain-to-issue) injunction at the risk of having to pay fees or 2) Go along with the district court, even if not legally obligated to do so, to avoid fees. Neither option is right or wrong, but § 1988(b) puts a thumb on the scales in favor of the latter.
Saturday, February 07, 2015
Ben Bowden, a probate judge in Covington County, AL, announced on Friday that, on his reading of the law, he will not issue marriage licenses to same-sex couples on Monday, when the stay of a district court injunction expires. Bowden concluded that he the district court decision and injunction invalidating the state's marriage-equality ban is not binding on him, thus he will continue to follow the state-law ban until an appropriate court directs him otherwise.
So the issue now is queued up. A couple wanting a license in Covington County can now sue Judge Bowden for an injunction compelling him to issue the license; the issue is ripe, given Bowden's announcement, and the couple will have standing. Covington County is located in the Southern District, so the case likely will be assigned to Judge Granade (most districts have a rule sending "related cases," often broadly defined, to the same judge); she will quickly issue an order reaffirming her earlier opinion that the marriage-equality ban is unconstitutional, ordering Bowden to issue the license, and refusing to stay the order. And Bowden recognized that he will be sued and insisted that he would "fully comply" with an order in a case to which he is a party.
Obviously, this is not the most efficient way of doing things. But the point is that couples will be able to get their licenses, probably on Monday, in fairly short order.
Thursday, February 05, 2015
Plaut v. Spendthrift Farm and the Sequencing of Constitutional Claims
Plaut v. Spendthrift Farm is a separation-of-powers decision concerning Congress’s (lack of) power to mandate the reopening of final judgments in federal courts. Specifically, the Court in Plaut held that Congress had violated constitutional separation-of-powers requirements by requiring U.S. district courts to reinstate certain federal securities-fraud cases that they had previously dismissed as time-barred. The separation-of-powers issue is interesting in its own right, but I’ve lately found myself wondering about a separate aspect of the opinion—namely, the Court’s justification for its decision not to address an alternative argument concerning the defendants’ due process rights under the Fifth Amendment.
That the Court in Plaut prioritized resolution of one constitutional issue over another is hardly remarkable: Litigants in Supreme Court cases routinely assert alternative constitutional grounds for relief, and the Court very often chooses to focus on one such ground while leaving the resolution of the other constitutional claims for another day. But Plaut is unusual in that the Court offered some explanation as to why it had chosen to sequence one constitutional claim (i.e., the separation of powers claim) ahead of another (i.e., the due process claim). Specifically, as Justice Scalia observed for the Plaut majority, resolution of the separation-of-powers claim would affect only the powers of the federal government, whereas resolution of the due process claim “might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment.” The separation-of-powers claim therefore presented the “narrower ground for adjudication of the constitutional questions in this case,” and that was enough to justify the Court’s decision to “consider it first.”
Let’s call this the “Plaut presumption”: It’s a sort of variation/extension on the constitutional avoidance principles set forth in TVA v. Ashwander—applicable not to cases in which the Court considers both constitutional and nonconstitutional grounds for a holding, but rather to cases in which all of the potential grounds are constitutionally-based. The Plaut presumption, in other words, calls for an intra-constitutional evaluation of narrowness, so as to yield a sequencing of constitutional adjudication that proceeds from most to least narrow.
Now, without looking into it the matter in much depth, I would hazard to guess that the Court has not fully committed itself to the Plaut presumption: In other words, I suspect we could identify several cases (both pre- and post-Plaut) in which the Court has arguably deviated from the course of confronting alternative constitutional arguments in a descending order of narrowness. Still, the Plaut presumption remains at least theoretically interesting in light of its suggestion that one constitutional “ground for adjudication” can qualify as “narrower” than another, which in turn raises the question of how to evaluate the comparative narrowness/breadth of two or more constitutional claims. If, in other words, we were fully committed to the Plaut presumption, what criteria of narrowness should we look to in sequencing the resolution of multiple constitutional questions? Here are a few possibilities:
- Geographic Scope: This is the criterion relied on by the majority in Plaut. The separation-of-powers question counted as narrower than the due process question because the former carried implications for the federal government whereas the latter carried implications for both the federal government and state governments. This criterion is sensible enough on its own terms: all else equal, a holding that binds 51 jurisdictions would seem to be broader than a holding that binds only one such jurisdiction. Still, the “geographic scope” criterion gets us only so far: Lots of cases, for instance, will involve claims that government action violates multiple constitutional rights—rights that apply more or less equally against the federal and state governments. Lots of other cases will involve multiple alternative claims concerning Article I and constitutional structure—claims that have little, if anything, to do with the states. In those sorts of cases, then, geographic scope alone cannot be definitive. What is more, as we will soon see, focusing exclusively on geographic criteria might obscure other important features bearing on the overall narrowness/breadth of a given constitutional claim.
- Political Reversibility: One of the reasons why Ashwander favors the resolution of nonconstitutional over constitutional claims is that the former, unlike the latter, are reversible through political means. At first glance, that logic would seem inapplicable to cases involving only constitutional claims, but on further investigation some possibly useful distinctions might emerge. For example, suppose that plaintiffs have challenged a state law on the ground that it violates dormant Commerce Clause doctrine and also Privileges and Immunities Clause doctrine. Plaut’s agenda-setting logic would likely favor prioritization of the dormant Commerce Clause claim (on the theory that Congress can always override a dormant Commerce Clause decision—but not a P&I decision—with which it disagrees). And to the extent there exist other politically reversible rules of “constitutional common law,” Plaut would favor resolving claims arising under those rules before claims arising under the operative constitutional propositions themselves. (And, of course, if ever a party argued that a law violated, inter alia, the unamendable constitutional guarantee of equal state representation in the Senate, then that claim should be pushed to the very, very back of the line!)
- Means of Compliance: Related to, but ultimately distinct from, the question of political irreversibility is the relative degree of flexibility political actors would have in complying with a given constitutional holding. To take an abstract example, striking down a government program on procedural due process grounds might often afford the government a greater degree of remedial leeway than would striking down the same program on substantive due process grounds: the procedural due process holding would simply limit the means by which the government could deprive an individual of life, liberty, or property, whereas the substantive due process holding would categorically foreclose the government from achieving the deprivation, period. Similarly, perhaps, the Constitution’s equality-related guarantees will provide a “narrower” basis for decision than the Constitution’s substantive-guarantees, in the sense that the former might sometimes permit the government to choose between subjecting either everyone or no one to a form of preferential treatment, whereas the latter will always require the government to pursue the former course. And, we could imagine other more context-specific bases for concluding that different theories of constitutional harm might afford government actors more or less regulatory freedom in the choice of how to alleviate that harm.
- Precedential Impact: Another axis along which to evaluate the relative narrowness of alternative constitutional grounds for relief would relate to the precedential status quo. Suppose that one constitutional claim rests on a rule of constitutional law that is well established and applies clearly to the facts of a case; suppose that an alternative constitutional claim rests on a murkier constitutional standard whose application to the facts is anything but clear. Under these circumstances, we might understand the Plaut presumption to favor the “easy” constitutional claim over the “difficult” constitutional claim, on the theory that resolving the easy claim will merely confirm a point we already understood the applicable precedents to establish, whereas resolving the difficult claim will be more likely to result in a “new” rule of constitutional law that we had not previously encountered. And it would apply even more forcefully in cases presenting a theory of constitutional relief that depend on a reconsideration of previous decisions. (Why go to the trouble of confronting difficult questions about stare decisis, the argument would go, when you could reach the same result without overruling any prior precedents at all.)
Anyway, those are some preliminary thoughts as to how someone fully committed to the Plaut presumption might go about applying it in future cases. Interesting questions remain, however, as to (a) whether it's worth thinking about narrowness at all in Plaut-like cases; (b) if so, whether additional criteria of narrowness should factor into the inquiry (and/or whether any of my proposed criteria should be excluded); and (c) what to do when one criterion of narrowness appears to conflict with another. Suppose, for instance, that litigants have challenged a federal law on both structural and rights-based grounds, and suppose further that the rights-based argument already has some support for it under existing law whereas the structural argument presents a genuine question of first impression. The “geographic-scope” criterion would favor resolution of the structural argument prior to the rights-based argument, whereas the “precedential-impact” criterion would favor the opposite approach. How, under the Plaut presumption, should we sequence the issues?
A final thought involves how these criteria might influence our thinking about the sequencing rule of Ashwander itself. Ashwander, as I’ve noted above, embraces the “political reversibility” criterion of narrowness. But we can imagine constitutional/nonconstitutional cases in which that criterion might run up against others that point in the other direction. Suppose, for instance, that challengers to a law had asserted a fairly straightforward constitutional ground for relief and a much more complicated/uncertain statutory ground for relief? Or what about the choice between a structural constitutional claim that would impact only the federal government, and a rights-based nonconstitutional claim that would impact both the feds and the states? Ashwander would say: “address the nonconstitutional claim first.” But if variables like precedential impact and geographic scope are also relevant to our evaluation of the claims’ respective narrowness, then even from a pro-minimalist, pro-avoidance standpoint, we might at least sometimes want to reach the constitutional issue before confronting its nonconstitutional counterpart.
Tuesday, February 03, 2015
Help wanted for a seminar on "Prohibition"
Last Spring, as I was teaching my first-year Constitutional Law course, I was listening to Daniel Okrent's very engaging book, "Last Call: The Rise and Fall of Prohibition." In many ways -- some of which I'd appreciated before, and others I hadn't -- the book's subject connected interestingly with the big questions and themes of the first-year course (which, at Notre Dame, focuses on "structure"). I had so many occasions to refer to the book in class, I started to worry that my students were getting the idea that I am obsessed with alcohol and its regulation.
A few years ago, Eugene Volokh and others helped me to appreciate the ways in which the Second Amendment can serve as a "teaching tool" in Constitutional Law. It strikes me that the experience with Prohibition - how it came about, what it tells us about constitutional amendments and grassroots political movements, how it connects with questions about the census, redistricting, federalism, and the Fourth Amendment, etc. - could serve, similarly, as a teaching tool or vehicle. Have any Prawfsblawg readers or bloggers taught Prohibition, or used it as a lens through which to look at the Constitution and constitutional law? Any suggestions about how it could be done?
Well, because I am slow and prone to procrastination, I am just now (finally) getting around to thinking about putting together a seminar course on the topic. I continue to think there's a lot of really interesting ways that our experiment with Prohibition could serve as a vehicle for examining, and pulling together, a bunch of interesting questions, including questions about the subjects mentioned in my earlier post.
So, here's a bleg: Does anyone know of any similar courses that are being offered or that have been offered elsewhere? And, does anyone have any ideas for topics that might be covered in such a seminar? Much appreciated! (We will, of course, be home-brewing as part of our coursework.)
Monday, February 02, 2015
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland. My focus will be on legal issues, but lets start with an overview. As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here. Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home. This is a very helpful graphic. In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States. But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time. Globally, 400 (mostly) children die of measles every day, 16 die every hour. Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.
The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated. It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.
Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old. There are also counter-indications (more about them later) about who shouldn’t get the vaccine. Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before. Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection. And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.
The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state. Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation. Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.
To be continued.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)
Friday, January 30, 2015
LBJ and the Supreme Court
This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).
Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.
First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).
Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.
Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true.
So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:
1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?
* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.
2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?
Tuesday, January 27, 2015
Extending Unequal Second Amendment Rights
Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens. We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen. But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm.
We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites. (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.) Then there's Driving While Black. I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.
And that's a sticky problem. Under current law, there isn't much you can do except to change police conduct from within. Courts don't have a lot of sway. Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search. That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.
With the expansion of the Second Amendment, we have a chance to think more about the problem early on. Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights. But it seems likely that these new rights will not be extended equally. First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will embed historical racial disparities in arrest, prosecution, and conviction. Theres more, however. In my mind, the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include the right to carry a gun and not get stopped and searched for doing so. In that respect, I fear we won't deliver equal rights.And those disparities only reflect the burdens imposed by the state. It doesn't even touch about the fact that private citizens may be unwilling to tolerate the equal extension of gun possession rights. As long as people consider African-American + gun as a crime in progress, which was the Wal-Mart case - a gun carry permit will never confer upon African-Americans the same freedom to carry.
So what to do? One possibility is to say: it's inappropriate to extend rights to one population if every population can't receive an equal benefit. The contrary view is to see the Second Amendment just like the Fourth Amendment: a right which society will have to struggle to enforce equally but which, given its constitutional basis, ought to be extended as far as possible immediately. (And of course most Second Amendment advocates will argue that there is no extension going on here - only a much-delayed enforcement of an existing right.) But is there a third way? Could we view it as a property right which is impaired when a person is subject to a search? Might there be a novel Fifth Amendment claim here? Could we impose a tax on guns that is used to fund a statutory compensation scheme? Is there a way, other than the exclusionary rule, to disincentive police over-reach? (Something like Richard Myers' Fourth Amendment Small Claims Court?)
This is all half-baked, but it's a problem that troubles me. I'd love thoughts.
Monday, January 26, 2015
Nursing Homes as Guardians of Their Debtor Patients
If you saw today's New York Times article on New York nursing homes seeking guardianship over residents in order to collect outstanding debt, under Article 81 of the Mental Hygiene Law, you may also have questions.
Section 81.19 of the Mental Hygiene Law specifies (emphasis added):
(e) Unless the court finds that no other person or corporation is available or willing to act
as guardian, or to provide needed services for the incapacitated person, the following persons or
corporations may not serve as guardian:
1. one whose only interest in the person alleged to be incapacitated is that of a
2. one, other than a relative, who is a provider, or the employee of a provider, of
health care, day care, educational, or residential services to the incapacitated person, whether
direct or indirect.
If a corporate entity may petition or threaten to obtain guardianship over a current resident in order to resolve an outstanding disputed debt owed to the corporate entity and withdraw the petition as soon as the debt is paid in full, what can guardianship law mean in New York?
Sunday, January 25, 2015
The process of marriage equality, once again
This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.
Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.
With all that, calling everyone a bigot in a legal document is not particularly helpful.
Thursday, January 22, 2015
Sutter Health vs. Blue Shield: War of the Gargantuas
When I think about calls for increased consumer activation in health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets.
But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.
In order to have been a savvy purchaser of health insurance through California's Exchange (or, even, outside the exchange through this fall's most recent open enrollment period for commercial insurance), you would also have to have known something about the the health insurance and health care services contracting world. Can we reasonably expect consumers to master this, to ferret out what they really need to know?
Most Northern California employers have a fall open enrollment period. Covered California's open enrollment for 2015 runs from November 15, 2014 to February 15, 2015.
Here's what your employer (or exchange) surely didn't tell health insurance shoppers in Northern California this past fall:
3. They bargain fiercely right through and past the open enrollment deadline over the next year's contract rates.
4. Even a behemoth such as Blue Shield of California has, historically, been unable to bring Sutter to heel. Sutter's tremendous market power in Sacramento and the Bay Area is one of the drivers of high health care costs in those areas.
4. Decisions that are made after the close of your open enrollment period -- such as their contractual terms or, as announced this year, their decision to maybe not contract at all, may be announced once open enrollment is closed or very near to its closure.
5. The decision by a major provider to exit an established health plan after the close of the open enrollment period is apparently not deemed a qualifying life event allowing for special enrollment under Covered California. California's largest employers have been conspicuously silent on whether such an announcment is a qualifying event for out of open enrollment insurance plan change.
So the chat boards are lighting up. Can it be that a change in a health plan's coverage options in a highly concentrated market such as Sacramento or the East Bay is not a a trigger for special enrollment rights ? You mean you didn't know all this already?
Watch out where Gargantua steps.
Tuesday, January 20, 2015
Some thoughts on Holt v. Hobbs
First, it seems to me that the opinion by Justice Alito is exceptionally well crafted. It should win a Green Bag award or something. It touches the necessary bases and stops. The language is clear and functional. (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.) One knows, at every point in the analysis, where one is.
Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so that it reaches no farther than did the more narrow of the Court's Free Exercise Clause decisions. Here, he rejected the notion (which some earlier cases might have endorsed) that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.
Third, Justice Alito reminded readers that "RLUIPA . . . applies to an exercise of religion regardless of whether it is 'compelled'" by the claimant's religious beliefs or traditions. (Put another way, RFRA and RLUIPA do more, as Justice Alito reads them, than protect religious claimants from being compelled to do what they believe their religion absolutely forbids.) Fourth, and related, the lead opinion insists that "the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is 'not limited to beliefs which are shared by all of the members of a religious sect.'" So, it would not be relevant to the "substantial burden" inquiry under RLUIPA if not all Muslims believe men must grow beards.
These last three points, together, are very helpful, I think, in helping me think about the idea of "substantial burdens" in the accommodation-of-religion context. What it is that we are asking about, I think, when we ask about "substantiality" is not the power or weight of the belief, or its centrality, or its orthodoxy, or its plausibility. We are asking, instead, about the nature, weight, size, etc., of the government's imposition on the sincerely asserted religious belief or practice-obligation. There is no question, for example, that a Roman Catholic's obligation to worthily receive the Eucharist at least once a year is a very serious one, but a neutral and generally applicable law that, in application, (somehow) increased the cost to Catholics of doing so by $.01 would not impose a "substantial" burden on religious exercise. Here, in Holt, the question is whether the penalty imposed or threatened by the government is substantial. And, it is.
Next, the Court was appropriately underwhelmed by the invocation - in broad and general terms -- of a "compelling interest" in prison security and safety. Rather, "RLUIPA, like RFRA, contemplates a 'more focused' inquiry and 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'––the particular claimant whose sincere exercise of religion is being substantially burdened." And, relatedly, the Court meaningfully -- while giving appropriate consideration to the prison context -- engaged the question whether applying the prison-grooming rule to the claimant, without exception, was the least-restrictive means of accomplishing the government's important goals.
In a separate opinion, Justices Ginsburg and Sotomayor clarified (and perhaps qualified) their agreement with the lead opinion. Justice Ginsburg wrote:
Unlike the exemption this Court approved in Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating
petitioner’s religious belief in this case would not
detrimentally affect others who do not share petitioner’s
belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2,
7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that
understanding, I join the Court’s opinion.
While I understand why Justice Alito (and others who joined his opinion) would not think it necessary to respond to this statement, I also wish one of the Justices had. The claim that it violates the Establishment Clause to accommodate religion in ways that impose costs or burdens on third parties is one that, of course, is advanced by a number of very smart people, but I do not think it is correct -- at least, not as a broad, general matter. As I see it (see more here), the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry.
Finally: today's opinion offers a very, very welcome counter to the unfair and inaccurate assertion one hears in some quarters that concerns about "religious liberty" are merely "dog whistles" or "fig leaves" for bigotry and prejudice, and so can be dismissed as such. Some invocations of "religious liberty," and some demands for accommodation, have been, are, and will be insincere, or morally offensive, or simply ungrantable. Many others will not. We should take the time to distinguish -- carefully, thoughtfully, reasonably sympathetically -- between the two.
Sunday, January 18, 2015
Justice Rehnquist, Religious Freedom, and the Constitution
I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution." I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist. And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court: Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief. Here's the abstract:
It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.
Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.
Wednesday, January 14, 2015
The influence of the Justices' religious beliefs
There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?" The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.
I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases. (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")
Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants. (Here's a WSJ thing I did on this subject a few years ago.) I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific):
[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.
That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete. (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.") For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters." I am skeptical. For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs. It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid. It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment.
I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court. Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean. For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs." And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."
Tuesday, January 13, 2015
Guaranteed salary and understanding the Supremacy Clause
Bills have been introduced in Texas and South Carolina attempting to prevent courts from recognizing same-sex marriages, in part by controlling salaries and funding. The Texas bill prohibits any state or local government employee from recognizing, granting, or enforcing a same-sex marriage license, with anyone who does losing her salary; a separate provision extends this to state judges. The bill also requires the court to dismiss any constitutional challenge to the law and to require plaintiffs to pay fees. The South Carolina bill is similar--no recognizing, granting, or enforcing same-sex marriage licenses, no public funds or salaries spent for doing so, required dismissal of any challenges to the law, while also specifically prohibting the use of any public funds to enforce any court order (including, presumably, a federal court order) to issue a same-sex marriage license.
Obviously, neither bill has a remote chance of passing; trying to stop marriage equality is simply a fool's errand at this point. And there are too many constitutional defects to count. But I want to highlight a couple.
First, a shout-out to the unsung Article III protection--judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Everyone focuses on life tenure as the great bulwark of judicial independence (or as a bad idea whose time has passed); there is less focus on guaranteed salary, even though, as these crazy bills show, it otherwise would be a prime target for a legislature angling to control constitutional adjudication.
Second, I have questioned Slate's Mark Joseph Stern before for the legal errors in his articles (I have no idea if he has a J.D.). Today, he argues that these bills are in "clear violation" of the Supremacy Clause by imposing a sanction on a judge who is just following federal law as declared by the Fourth Circuit (which includes South Carolina) and many, many federal district courts. But neither a federal court of appeals nor a federal district court binds a state court. A state court is free to ignore these decisions. And, at least as a matter of the Supremacy Clause, a state legislature is free to compel its courts to ignore those decisions (there may be other reasons the legislature cannot do this). So why make up reasons that are simply wrong.
Third, what would the Constitution of either state have to say, specifically about the provisions requiring state courts to dismiss challenges to these laws. During the Theresa Schiavo Controversy, the Florida Supreme Court adopted a principle very much like United States v. Klein as a matter of state separation of powers. These bills run afoul of Klein's idea that legislatures cannot tell courts how to decide cases, to the extent that principle applies to state governmental structures.
Monday, January 12, 2015
More on rotating Chief Justices
At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.
But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?
(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief. This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]
The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.
Monday, January 05, 2015
Merging systems in the wrong direction
I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.
First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."
Tuesday, December 23, 2014
Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong
Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:
Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?
As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).
One of the interesting back-stories to Douglas, which I covered in some detail on this blog, was the aggressive (and, in my view, disappointing) anti-private-enforcement position taken by the Solicitor General in an amicus brief filed in support of California. Leaving aside the controversial merits of the SG's Douglas brief, it was also a position that was radically inconsistent with the historical position of the Department of Health & Human Services (HHS) on the private enforcement question, especially with regard to "Section 30(A)"--the Medicaid Act's requirement that states set reimbursement levels high enough so that Medicaid recipients are able to have "equal access" to median quality medical care. Without this "equal access" mandate, economic pressures would almost certainly lead states to reimburse providers at the lowest possible levels, which in turn would likely relegate Medicaid recipients to the worst available providers. The problem, as the ACA litigation helped demonstrate, is that HHS doesn't have a lot of choices when faced with a state violating the Medicaid Act. The only real "stick" HHS possesses in such a scenario is the drastic remedy of cutting off Medicaid funding--which punishes the beneficiaries far more than it punishes recalcitrant states.
To that end, and tellingly, HHS did not sign the SG's Douglas brief, even though it had signed the SG's more equivocal cert.-stage amicus in the same case (which had recommended that the Court not take the case). Instead, in Douglas, I helped to put together an amicus brief on behalf of "Former HHS Officials," explaining why, because of the reality described above, (1) HHS has historically supported private enforcement of the Medicaid Act (and Section 30(A) in particular); and (2) partly as a result of this historical pattern, and partly for other reasons, lacks the institutional, political, financial, or administrative resources effectively to enforce Medicaid all by itself.
As in Douglas, the SG has once again sided with the states in Armstrong--albeit in an amicus brief that appears, at first blush, to be far more modest. Instead of opposing Supremacy Clause-based claims for injunctive relief in general, the SG's Armstrong amicus punts on that question, arguing that the Court need not resolve that general issue because "recognition of a private right of action under the Supremacy Clause in this case would be incompatible with the statute, the methods for its enforcement, and respondents’ claim."
And as in Douglas, a group of former HHS officials (including 15 senior administrators from three different administrations, led by former Secretaries Califano and Shalala) has now filed an amicus brief disputing the SG's position--and documenting how,
Since the early days of the Medicaid program, federal courts have recognized that providers may sue to ensure that state Medicaid plans conform to the requirements of federal law. Congress intended for such enforcement, and HHS has understood—and come to rely upon—its existence.
The brief, which I co-authored along with Matt Hoffman and Andrew Kim from Goodwin Procter, is in some important ways different from the brief we filed back in Douglas. There, our focus was on the SG's (since abandoned) position that private enforcement of the Medicaid regime would generally interefere with HHS's enforcement authorities and discretion. Here, our focus is on the SG's more modest claim about congressional intent and judicial enforcability of Section 30(A). Thus, the SG's Armstrong brief argues that Congress never intended for such private enforcement--and, even if it did, that courts would struggle to provide such enforcement given the vague language of the "equal access" provision's mandates.
Our brief rejects both of those claims, demonstrating how, not only have courts routinely applied Section 30(A)'s procedural and substantive requirements without serious difficulty (and, indeed, would have to do the same thing if HHS started to reject state Medicaid plans on the ground that they violate Section 30(A)), but how that provision--one of the Medicaid Act's most important requirements--would effectively be unenforcable without private enforcement by Medicaid beneficiaries or providers through some vehicle.
In other words, insofar as the SG's brief tries to duck the larger question implicated in Armstrong by arguing that Section 30(A) is an especially weak federal statute to enforce through such a Supremacy Clause-based injunctive action, our brief argues that it is, in fact, a textbook case for such a claim--since it is an essential federal mandate against states that, without such private enforcement, would almost certainly be frustrated.
Monday, December 15, 2014
(Mis)trusting States To Run Elections
The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law. I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews. But that is unfortunate, because it is both doctrinally wrong and practically dangerous.
As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice. Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny. Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest. But often the state is not really trying to achieve election integrity, at least not principally. There are often partisan motivations behind an election regulation. How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters? Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.
Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face. Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.
After the jump I explain the problems with this approach.
Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner. This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules. In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.
The deference is also dangerous. States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong). This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra. But partisan motiviations should play no role in how we structure our elections.
The Court should not defer so readily to a state's election process. Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.
Here is the abstract of the article, for those who want more on this argument:
Comments are welcome!
Monday, December 08, 2014
The Scope of Voting Rights Under Article I: Understanding the Problem
My current project, Protecting Political Participation Through the Voter Qualifications Clause of Article I, tries to determine the scope of the voting rights that are protected by Article I, Section 2 of the Constitution, which provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” I find this particular clause fascinating because the Supreme Court once relied on it to ground some of its one person, one vote and constitutional voting rights jurisprudence, but this provision has since fallen into obscurity because of mistakes that the Court made in the same cases that initially looked to Article I to protect the right to vote.
In Wesberry v. Sanders (the lesser-known companion case to Reynolds v. Sims), the Court held that the states’ failure to reapportion their congressional districts violated Article I, Section 2. Similarly, in Harper v. Virginia Board of Elections, the Court read Article I, Section 2 to create a fundamental right to vote in federal elections. Problems arose, however, when the Court tried to determine which provision of the Constitution protects the right to vote in state elections. Thus, in Reynolds v. Sims, the Court held that the states’ failure to reapportion their state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment (rather than Article I, Section 2). Harper likewise found the right to vote in state elections to be protected by the Equal Protection Clause.
Treating the right to vote in state elections as a fundamental interest protected by the Equal Protection Clause has led to several problems in the Court’s jurisprudence. Notably, neither Harper nor Reynolds stand for the proposition that the right to vote in state elections has to exist, even if the corresponding right to vote in federal elections must exist. Grounding the right to vote in state elections in the Equal Protection Clause, according to the Court, permits states to choose whether to extend the right to vote to its citizens, but once available, has to be offered on equal terms. This notion of the right to vote as optional, rather than mandatory, is contrary to the traditional conception of the right to vote as a fundamental right that is “preservative of all other rights.” In addition, the equal protection framework, modified in decisions subsequent to Harper to be more deferential to state authority, has come to dominate the assessment of all regulations governing the right to vote, regardless if the law applies to state elections, federal elections, or both. Thus, the importance of the right to vote in federal elections, as originally protected by Article I, has gotten lost in the evolution of the Court’s standard of review from one that strictly scrutinizes state voter qualification standards to a balancing test that is extremely deferential to state authority.
I find this state of affairs to be completely perplexing given that the Voter Qualifications Clause provides that, with respect to voter qualifications for federal elections, “the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” Because this provision makes federal voting rights dependent upon participation in state elections, this framework suggests that the right to vote in state elections is not optional (as an Equal Protection analysis would suggest) and it has to broadly available in order to protect the fundamental right to vote in federal elections. In my next post, I will provide more evidence to show why this reading of Article I is the correct one.
State Judges and the Right to Vote
If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election. But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.
But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote. Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections. Below the fold I provide some details of my study of state judges and the right to vote.
This inquiry reveals some interesting trends.
First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others. State court activity on voting rights is much more robust than federal court decision making in this area. Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions. Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges. Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.
These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote. I'd be delighted for comments and thoughts on the piece. Here is the abstract:
State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.