Monday, January 12, 2015
More on rotating Chief Justices
At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.
But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?
(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief. This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]
The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.
Monday, January 05, 2015
Merging systems in the wrong direction
I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.
First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."
Tuesday, December 23, 2014
Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong
Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:
Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?
As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).
One of the interesting back-stories to Douglas, which I covered in some detail on this blog, was the aggressive (and, in my view, disappointing) anti-private-enforcement position taken by the Solicitor General in an amicus brief filed in support of California. Leaving aside the controversial merits of the SG's Douglas brief, it was also a position that was radically inconsistent with the historical position of the Department of Health & Human Services (HHS) on the private enforcement question, especially with regard to "Section 30(A)"--the Medicaid Act's requirement that states set reimbursement levels high enough so that Medicaid recipients are able to have "equal access" to median quality medical care. Without this "equal access" mandate, economic pressures would almost certainly lead states to reimburse providers at the lowest possible levels, which in turn would likely relegate Medicaid recipients to the worst available providers. The problem, as the ACA litigation helped demonstrate, is that HHS doesn't have a lot of choices when faced with a state violating the Medicaid Act. The only real "stick" HHS possesses in such a scenario is the drastic remedy of cutting off Medicaid funding--which punishes the beneficiaries far more than it punishes recalcitrant states.
To that end, and tellingly, HHS did not sign the SG's Douglas brief, even though it had signed the SG's more equivocal cert.-stage amicus in the same case (which had recommended that the Court not take the case). Instead, in Douglas, I helped to put together an amicus brief on behalf of "Former HHS Officials," explaining why, because of the reality described above, (1) HHS has historically supported private enforcement of the Medicaid Act (and Section 30(A) in particular); and (2) partly as a result of this historical pattern, and partly for other reasons, lacks the institutional, political, financial, or administrative resources effectively to enforce Medicaid all by itself.
As in Douglas, the SG has once again sided with the states in Armstrong--albeit in an amicus brief that appears, at first blush, to be far more modest. Instead of opposing Supremacy Clause-based claims for injunctive relief in general, the SG's Armstrong amicus punts on that question, arguing that the Court need not resolve that general issue because "recognition of a private right of action under the Supremacy Clause in this case would be incompatible with the statute, the methods for its enforcement, and respondents’ claim."
And as in Douglas, a group of former HHS officials (including 15 senior administrators from three different administrations, led by former Secretaries Califano and Shalala) has now filed an amicus brief disputing the SG's position--and documenting how,
Since the early days of the Medicaid program, federal courts have recognized that providers may sue to ensure that state Medicaid plans conform to the requirements of federal law. Congress intended for such enforcement, and HHS has understood—and come to rely upon—its existence.
The brief, which I co-authored along with Matt Hoffman and Andrew Kim from Goodwin Procter, is in some important ways different from the brief we filed back in Douglas. There, our focus was on the SG's (since abandoned) position that private enforcement of the Medicaid regime would generally interefere with HHS's enforcement authorities and discretion. Here, our focus is on the SG's more modest claim about congressional intent and judicial enforcability of Section 30(A). Thus, the SG's Armstrong brief argues that Congress never intended for such private enforcement--and, even if it did, that courts would struggle to provide such enforcement given the vague language of the "equal access" provision's mandates.
Our brief rejects both of those claims, demonstrating how, not only have courts routinely applied Section 30(A)'s procedural and substantive requirements without serious difficulty (and, indeed, would have to do the same thing if HHS started to reject state Medicaid plans on the ground that they violate Section 30(A)), but how that provision--one of the Medicaid Act's most important requirements--would effectively be unenforcable without private enforcement by Medicaid beneficiaries or providers through some vehicle.
In other words, insofar as the SG's brief tries to duck the larger question implicated in Armstrong by arguing that Section 30(A) is an especially weak federal statute to enforce through such a Supremacy Clause-based injunctive action, our brief argues that it is, in fact, a textbook case for such a claim--since it is an essential federal mandate against states that, without such private enforcement, would almost certainly be frustrated.
Monday, December 15, 2014
(Mis)trusting States To Run Elections
The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law. I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews. But that is unfortunate, because it is both doctrinally wrong and practically dangerous.
As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice. Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny. Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest. But often the state is not really trying to achieve election integrity, at least not principally. There are often partisan motivations behind an election regulation. How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters? Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.
Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face. Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.
After the jump I explain the problems with this approach.
Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner. This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules. In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.
The deference is also dangerous. States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong). This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra. But partisan motiviations should play no role in how we structure our elections.
The Court should not defer so readily to a state's election process. Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.
Here is the abstract of the article, for those who want more on this argument:
Comments are welcome!
Monday, December 08, 2014
The Scope of Voting Rights Under Article I: Understanding the Problem
My current project, Protecting Political Participation Through the Voter Qualifications Clause of Article I, tries to determine the scope of the voting rights that are protected by Article I, Section 2 of the Constitution, which provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” I find this particular clause fascinating because the Supreme Court once relied on it to ground some of its one person, one vote and constitutional voting rights jurisprudence, but this provision has since fallen into obscurity because of mistakes that the Court made in the same cases that initially looked to Article I to protect the right to vote.
In Wesberry v. Sanders (the lesser-known companion case to Reynolds v. Sims), the Court held that the states’ failure to reapportion their congressional districts violated Article I, Section 2. Similarly, in Harper v. Virginia Board of Elections, the Court read Article I, Section 2 to create a fundamental right to vote in federal elections. Problems arose, however, when the Court tried to determine which provision of the Constitution protects the right to vote in state elections. Thus, in Reynolds v. Sims, the Court held that the states’ failure to reapportion their state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment (rather than Article I, Section 2). Harper likewise found the right to vote in state elections to be protected by the Equal Protection Clause.
Treating the right to vote in state elections as a fundamental interest protected by the Equal Protection Clause has led to several problems in the Court’s jurisprudence. Notably, neither Harper nor Reynolds stand for the proposition that the right to vote in state elections has to exist, even if the corresponding right to vote in federal elections must exist. Grounding the right to vote in state elections in the Equal Protection Clause, according to the Court, permits states to choose whether to extend the right to vote to its citizens, but once available, has to be offered on equal terms. This notion of the right to vote as optional, rather than mandatory, is contrary to the traditional conception of the right to vote as a fundamental right that is “preservative of all other rights.” In addition, the equal protection framework, modified in decisions subsequent to Harper to be more deferential to state authority, has come to dominate the assessment of all regulations governing the right to vote, regardless if the law applies to state elections, federal elections, or both. Thus, the importance of the right to vote in federal elections, as originally protected by Article I, has gotten lost in the evolution of the Court’s standard of review from one that strictly scrutinizes state voter qualification standards to a balancing test that is extremely deferential to state authority.
I find this state of affairs to be completely perplexing given that the Voter Qualifications Clause provides that, with respect to voter qualifications for federal elections, “the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” Because this provision makes federal voting rights dependent upon participation in state elections, this framework suggests that the right to vote in state elections is not optional (as an Equal Protection analysis would suggest) and it has to broadly available in order to protect the fundamental right to vote in federal elections. In my next post, I will provide more evidence to show why this reading of Article I is the correct one.
State Judges and the Right to Vote
If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election. But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.
But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote. Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections. Below the fold I provide some details of my study of state judges and the right to vote.
This inquiry reveals some interesting trends.
First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others. State court activity on voting rights is much more robust than federal court decision making in this area. Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions. Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges. Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.
These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote. I'd be delighted for comments and thoughts on the piece. Here is the abstract:
State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.
Thursday, December 04, 2014
Prosecuting police--the role of the grand-jury pool
Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.
But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.
The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.
But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.
Tuesday, December 02, 2014
Michael Brown and the return of Brandenburg
A colleague asks a question:
Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).
Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?
* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.
I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.
Wednesday, November 26, 2014
Ferguson – What Now? (guest post)
This is the final post on Ferguson from Timothy Zick:
Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction. As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.” The facts are still coming in, but by most accounts police were not the instigators. The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities. While their frustration may be understandable, their actions were obviously neither wise nor constructive. The violence was not, as some have suggested, inevitable. Whatever their underlying causes or motivations, the riots were a choice.
There will be additional protests and demonstrations in Ferguson and elsewhere. Hopefully they will be vocal, but peaceful, events. The issues are worth demonstrating about. But as I wrote in my previous post, public sympathy will not be with the protesters forever. Last night may have been a tipping point. The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on. Many left behind will have expressed their outrage, or have been affected by the actions of those who did so. What will be the legacy of the Ferguson protests (past, present, and future)?
In the wake of last night’s events, hopelessness seems to be pervasive – particularly among many Ferguson residents, who have been witnesses to the conflict from the beginning. The protests and demonstrations have not been empty or meaningless events. They have pricked the public conscience, highlighted grievances, jump-started conversations about social and political issues, and demanded attention from public officials. It would be unfortunate if rioters tarnished or diminished some or all of these important accomplishments. What happens next depends on forces that lie beyond public streets and other public forums. Too often, protesters do not follow action in the streets with concrete social and political activity. Protests and demonstrations are not ends in themselves. They can be catalysts for change, but only if organizations and associations work to channel their outrage and energy. Expressions of outrage from civil rights leaders are fine. But Ferguson desperately needs an organization, preferably a local group, to take the lead. Other elements of the community can also work toward policy changes. Rioters can trade bricks for ballots, residents can work toward rebuilding or strengthening community ties, and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities. What’s next for Ferguson is not at all certain. The protests and demonstrations have created an opportunity and suggested an agenda that includes criminal justice reform and protection for civil rights. For the sake of Ferguson itself, let’s hope that peaceful activists seize that opportunity.
Monday, November 24, 2014
The costs of public protest (guest post)
The following is another guest post from Timothy Zick (William & Mary).
Some of my First Amendment work has focused on highlighting the social, political, and constitutional benefits of public protests. Protests can also impose serious costs. Mass protests can be particularly invasive forms of contention. They disrupt routines, alter urban and other landscapes, and inconvenience entire communities. Some of these effects may actually make a protest more effective – unlike a pamphlet or this blog post, a mass protest cannot easily be ignored. Still, for those caught in its path, a public protest (or a prolonged series of them) can impose very real and significant costs.
Some of the costs of the Ferguson protests (past and anticipated), have received some media attention. Merchants are concerned that the prolonged state of unrest will harm their enterprises. Ferguson schools have been closed in anticipation of the grand jury’s decision. And there are the costs of policing the protests themselves, which can add up to millions (including the cost of any civil rights lawsuits and settlements, as New York City and other jurisdictions have learned). The psychological costs can also be significant. Living in an environment of daily conflict and protest policing can take its toll on communities. For example, many people seemed to lose patience with the Occupy protests – not just because of the tangible costs they imposed, but also owing to the emotional and psychological strain associated with long-term “occupation.”
Recognizing these costs does not diminish rights of free speech and peaceable assembly. Indeed, it places First Amendment rights in appropriate perspective. In general, we cherish and protect these rights despite their significant financial and other costs. We collectively accept these burdens as the price of expressive freedoms. We subsidize them, even when the distribution of costs sometimes seems unfair. (We also have the right to complain about this unfairness.) However, as protest organizers should know, there are limits to public tolerance. There is a point at which public support begins to wane and the effectiveness of public contention begins to diminish. Sooner or later, protesters will need to channel their outdoor energies to indoor political and other arenas. As Michael Brown’s father suggested in a video appeal to protesters, the time will come when protest will need to be translated into policy changes. To some degree, the mark of a successful protest movement is its ability to effect meaningful change. Protests have inherent worth. But the subsidies and sacrifices are all the more “worth it” insofar as they facilitate or produce something tangible, meaningful, and lasting.
Sunday, November 23, 2014
Judicial Elections and Historical Irony
Last week I was privileged to participate in a conference in New Mexico on the judiciary. The debates and assigned readings focused especially on judicial elections (a new issue-area for me). There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).
“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states. This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).
With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify. Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.
In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects). It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).
The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time. The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…) For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.
My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power. Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.
This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop). Meanwhile, this change in the role of judges may also have coincided with the decline of juries.
If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive? (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)
It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion. At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges. Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar. Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet. Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures. I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).
In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable. In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation. Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight. (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)
John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)
John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).
Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)
Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)
G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)
Friday, November 21, 2014
DOJ weighs in
Seeming to share my sense of where the burden should lie, Eric Holder released video urging law enforcement and protesters to collaborate on plans to keep the peace should protests occur in Ferguson. He reminded protesters that historically successful movements have relied on nonviolence, while calling on police to seek ways to keep order while respecting constitutional rights. In addition, DOJ officials spoke with Missouri Governor Jay Nixon about the decision to declare a preemptive state of emergency, calling that an escalation of the situation that "sent the wrong message." DOJ also released a resource guide for policies and training on community policing and handling public protest (although it seems a bit late in the day for that).
This is a good reminder of the unique role that DOJ and the Attorney General can, and sometimes do, play in these sorts of localized conflicts, remaining above the simplified law-enforcement fray.
Thursday, November 20, 2014
Zick on public protest and Ferguson
Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri. I’ll probably add just a few posts to his excellent commentary, depending on how things develop.
The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns: advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson. In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.Of course, the protests themselves have occupied center stage. The media are attracted to conflict, and the conflict is important. Once again, we have seen the delicate balancing of tolerance and respect for public assembly and speech with the need for order and public safety playing out in real time. And once again, the results have been disappointing - or worse. As I argue in my book, Speech Out of Doors, a variety of legal and non-legal forces have combined to challenge traditional protests and other public modes of contention and dissent. Howard has thoughtfully posted on some of the problems associated with the militarization of public places and escalated force protest policing (e.g., here and here). Chapter 7 of my book examines militarization at various public events, including national party conventions, presidential inaugurals, and world summits. Militarization has been on the rise, in part owing to post-9/11 federal dollars flowing to local police departments. As Ferguson shows, local police forces across the nation are now equipped with the tools of militarization. Some have used surveillance, shows of force, and other military tactics in policing local events.
Of course, the possession of military-style equipment does not guarantee the use of escalated force. Police forces can and do act with appropriate restraint. Some of Howard’s commenters have asked about evidence for the link between militarization and protester responses. Social scientists have carefully studied protest policing, and they have argued in favor of a “negotiated management” style in part owing to the costs of escalated force policing. Of course, there is historical evidence that escalated force leads to violent confrontations – the 1968 Democratic National Convention in Chicago, the WTO debacle in Seattle in 1999, and recent national party conventions in Boston, New York, and elsewhere. Sure, some protesters at these events were looking for violence. And sure, sometimes police need to respond with force. But as Howard’s posts suggest, one of the problems with militarization is the attitude it sends about public protests and public places. As a mindset, militarization can exacerbate and even invite conflict. This was one reason many police departments abandoned escalated force policing. It’s come back, in the form of militarization. I’m skeptical that we can keep arming police to the hilt while expecting them to exercise restraint in the face of angry and emotional crowds. When officers divide streets into military-style grids and gird for battle, even peaceful protesters and reporters are at risk. To be clear, there is no excuse for lawless behavior by protesters. Nor is criticism of militarization meant to suggest “anything goes” protest policing. Balance, proportionality, and forbearance are required. But too frequently of late, these things have been in short supply at public events.
To their credit, Ferguson officials have tried everything from personnel changes to personal apologies in an effort to calm the public and preserve rights to peacefully protest and assemble. Nevertheless, today there is a sense of foreboding in the press and on the blogs (including this one) about what will happen next. Last night’s arrests of protesters outside a barricaded police station may be a harbinger of things to come, in Ferguson and elsewhere.
Rules of engagement, ctd.
In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.
Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we really need to state that rule?)
We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.
Wednesday, November 19, 2014
Rules of engagement
One of the commentators on my earlier post asked what I would suggest as an alternative to calling out the National Guard. This is a start: Negotiations between law enforcement and protest leaders about "rules of engagement" in any upcoming protests following the grand jury decision. As Tim Zick described in his book, such negotiations have become a significant aspect of public protest, especially large, planned gatherings targeting specific times, places, and events. And while one would think that the First Amendment should be the only necessary rule of engagement, past events in Ferguson (and elsewhere) suggest that a clear body of rules, agreed upon and understood by all involved, might be a way to ease tensions from the start.
Unfortunately, one sticking point seems to be whether police will forego riot gear, armored vehicles, and tear gas in the first instance--in other words, police not working from a presumption that the gathering is a riot and protesters are combatants.
Tuesday, November 18, 2014
You can't have it both ways
Fox News (yeah, I know) reports that the FBI is warning law enforcement officials nationwide that the failure of the grand jury to indict Off. Darren Wilson is "likely" to lead to violence. In particular, they are saying that police and property may be targeted and that there may be cyberattacks by people "exploiting" the event as a way to engage in unlawful activity. Of course, the FBI also "stressed the 'importance of remaining aware of the protections afforded to the all U.S. persons exercising their First Amendment rights of freedom of speech and freedom of assembly.'”
Sorry, but you cannot have it both ways. If you put law enforcement (and the national guard) on High Alert for attempts to undermine society, it is impossible for them to simultaneously remain aware of the First Amendment, for fear of guessing wrong. And since it is impossible to tell the exploiters from the exercisers, the only solution is to get everyone off the streets.
This does not end well.
Prior restraint: How far have we really come?
In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.
In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).
* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."
So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.
Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?
Monday, November 17, 2014
Inevitable conflict and the state of the First Amendment
This story reports on some planned protests in and around Ferguson when, as expected, a state grand jury declines to indict Off. Darren Wilson in the shooting death of Michael Brown. And this story reports that the governor has declared a state of emergency and called in the National Guard in anticipate of protests when, as expect, the grand jury declines to indict.
But those moves together make violent conflict inevitable. Ferguson was defined, in part, by the way in which militarized police behaved like soldiers in a war zone and reacted to potentially peaceful assembly accordingly. How can it possibly go better if the solution is to bring in actual soldiers? Moreover, note the governor's logic--the possibility of people taking to the streets to protest against a perceived injustice, absent any indication that things will turn violent constitutes a state of emergency warranting immediate activation and placement of the state's military force.
The First Amendment at least purports to recognize public streets and sidewalks as places that "time immeorial" have been reserved for expression. But the governor seems to believe that the possibility of streets being used for that "time immemorial" purpose is, by its nature, a threat to public order.
Update: Here is another take on it. And to answer a commenter's question: There has to be a way to be prepared and to take precautions that does not involve treating the possibility of protest as an emergency that threatens civil society. This type of response is virtually guaranteed to produce violence: "We're in a state of emergency, you're on the street, we're going to move you off the street by force." And now we have either 1) protesters resisting, triggering violence or 2) protesters peacably leaving, but not being able to exercise their constitutional rights to peaceably assemble and speak. Surely there must be some middle ground.
Monday, November 10, 2014
Is a flag-burning amendment on the Republican congressional agenda? I have not heard anyone talking about it, but recent history suggests it is inevitable. The last time the Republicans controlled both houses, in the 109th Congress (2005-07), a proposal passed the House and failed the Senate by one vote. [Ed: A proposal was introduced in one house or the other every Congress from the Gingrich Revolution until the Democrats regained control in 2009]. Republicans will hold around 244 seats in the House and 52 or 53 (depending on the Louisiana run-off) in the Senate. With likely defections from Democrats who do not want to vote against such an amendment, the numbers would seem to be there.
Is this something that Republicans are going to expend time and energy on? Is it likely to pass?
Friday, November 07, 2014
Greetings from Sixth Circuit Country
Greetings from Memphis! I'm here today at the University of Memphis Cecil C. Humphreys School of Law to discuss Hobby Lobby alongside Steven Green, including what should be a fun Q&A session moderated by Steven Mulroy. Steven Green is one of the authors of the Church-State scholars amicus brief in Hobby Lobby. And I recently wrote up some of my--somewhat evolving--thoughts on Hobby Lobby in an article titled Religious Institutionalism, Implied Consent and the Value of Voluntarism, 88 S.Cal. L. Rev. (forthcoming 2015), where I elaborate on my theory of "implied consent" institutionalism.
But given yesterday's Sixth Circuit decision on same-sex marraige, I'm thinking more and more about Paul Horwitz's recent piece in the Harvard Law Review, "The Hobby Lobby Moment" (if you haven't read it yet, you should). I find myself very much in agreement with Paul's analysis, especially his articulation of how the firestorm around Hobby Lobby had so much to do with the intersection of same-sex marriage and our evolving views on the commercial marketplace. If Paul is right, then yesterday's decision--and the significant likelihood that the decision will lead to the Supreme Court finally have to grant cert in a same-sex marriage case--means that we may very well see more of the debates that propelled Hobby Lobby into the public consciousness.
Thursday, November 06, 2014
Here's your circuit split on marriage equality
A 2-1 decision from the Sixth Circuit, authored by Judge Sutton, with Judge Daughtrey in dissent. Media reports indicate the focus is on respecting the will of the voters and the state power to define marriage.
The Sixth Circuit remains majority Republican appointees (all by one of the Bushes), to the extent such crude measures tell us anything. So en banc seems unlikely, unless even Republican-appointed judges do not want to be on the wrong side of this. Still, it appears this is now teed-up for SCOTUS to resolve later this term.
Perhaps more later. Update: Well, the media reports are correct. Sutton's lengthy introduction, before the analysis: "And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?"Sutton did make two cute rhetorical moves with Loving. First, he insisted that the Court assumed marriage only encompassed opposite-sex unions, since the Court did not say differently and because the couple in Loving where not same-sex. Second is this: "Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage." But this seems too clever by a half--all definitions of a thing are based on eligibility requirements for the definition of that thing. Is Sutton really suggesting that Loving would have come out differently if, instead of the law saying "If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony," it said "marriage shall only be between two white persons or two black persons"?
Say this: Sutton hit every possible argument and issue surrounding marriage equality (although he soft-pedaled his discussion of the "marriage is for men and the women they accidentally knock-up" argument). So the opinion presents a good vehicle for thorough consideration (and reversal).
Finally, a question: Judge Daughtrey in her dissent described at length the facts underlying the claim by the Michigan plaintiffs. Under Michigan law, unmarried couples cannot jointly adopt, which means only one parent is the legal parent of the child and there is no guarantee that, if the legal parent dies, the child will be allowed to stay with the other, non-legal parent. But that imposes huge financial costs on the state, if it has to bring that child into the foster care system, not to mention the human and social cost to the child and the entire system. But if the ban on same-sex marriage imposes such costs, doesn't that render it irrational, if not based on animus?
Seeeking balance in uncontested elections
It seems I am not alone in my confusion and concern about states not placing unopposed candidates on the ballots, as this list of stories suggests (H/T: My colleague Tom Baker). In Oregon two years ago, people were angry about having to pay to print GOP primary ballots with only one name. And there was an interesting controversy in Indiana about three years ago. In 2010, the state passed a law removing unopposed candidates for municipal office from the ballot. In 2011, several local bodies insisted on printing ballots that included unopposed candidates, even though it then required that two additional polling places be opened, at public cost. In early 2012, a bill to repeal the 2010 law unanimously passed the state Senate, although I have not been able to find out what happened after that.
Weighing against those cost considerations include the risk of voter enthusiasm, the dampening of interest (and thus willingness to vote) of supporters of the unopposed candidate, and possible down-ballot effects. On the other hand, the cost-saving concerns disappear when the ballots also contain candidates for national and statewide office and all those polling places are open anyway. For example, Miami-Dade County had to print ballots containing all the statewide offices, plus US House candidates, for the other districts that are within the county (for example, Joe Garcia's district) and the polling places within the district had to be opened. Similarly, the polling places within my district were all open and people within my district had to have ballots with all those statewide offices. Would it have really cost that much more money to include the US House race on those ballots?
None of these is of constitutional magnitude, of course, just of policy wisdom.
Tuesday, November 04, 2014
Election law as contextual: a universal truth? (And, happy election day to U.S. readers!)
I am grateful to Dan Markel for this chance to spend another month in conversation at Prawfsblawg. As with my last go-around, my focus is on U.S. election law. This time, however, I get to talk about election laws on an election day.
When the voting and vote counting unfold, we’re bound to see election laws and administrative practices in the news. Even if the odds-makers are proven correct in their forecast of an election day that is characterized by relatively low voter turn-out and relatively few close contests, there will be questions or controversies about the effects of heightened voter identification requirements, the counting of provisional ballots, the scheduling and ballot design for a gubernatorial run-off, and the like. Those of us who follow politics have come to instinctively associate some of these contested laws and practices with a particular effect (a tendency to expand or narrow the electorate), and with a particular political valence (a tendency to disenfranchise or dilute the votes of one or another party or racial or socioeconomic group).Of course, election rules, such as the new voter identification requirements in Texas, will, at times have their strongest bite in the lives of individuals (see, e.g., Eric Kennie’s story at http://www.theguardian.com/us-news/2014/oct/27/texas-vote-id-proof-certificate-minority-law). But politicos and scholars usually train their attention more on election rules as they might tip a contest for a particular candidate or party. To be sure, different political camps tend to have different empirical and normative premises about election rules’ operations. Voter i.d. requirements are about culling the poor, the disabled, and racial minorities from the electorate. They are a procedural tool for disenfranchising eligible voters. Or, no, these requirements are about screening out fraud and low-information voters. They are about protecting the eligible and informed voters from vote dilution. All sides, however, can instinctively agree on a rule’s expected effect and valence: Strict voter i.d. rules contract rather than expand the electorate, and they can be expected to do so to the benefit of Republicans.
I now want to take many steps back from the immediacy of these voter i.d. rules and today’s election. (It’s not like you have any election results to follow!) I want to consider whether perceived regularities in the consequences of elections laws (large and small) may hold true across many different contexts.
Political scientists (one of my tribes) have often assumed that the answer is “yes”, and they have precisely defined their scholarly enterprise to be a search for the generalizations that will not be context-bound. The successes of this research program have been real. We have learned that election rules can exhibit regularities, sometimes ones that operate behind the backs of the political actors. A particularly successful example is Duverger’s Law which states that legislative elections by single-member-district and ‘first-past-the-post’ rules (such as in the U.S., Canada, and Great Britain) are correlated with two-party systems while proportional-representation rules are correlated with multiparty systems.
This generalization is powerfully universal. Except when it isn’t. Many times, political scientists have found the need to qualify it. It fails to hold true in a country where there is no widely shared information or expectations about the different parties’ electoral prospects, or in a political culture where voters do not mind ‘wasting’ their votes on a third-party candidate who can’t win (Powell 2013). It fails to hold true in a federal system at the national level if the national parties are really sectional parties (Chhibber and Kollman 2004.) And so on.
If even Duverger’s Law is highly context-bound, then we may suspect that there are few, if any, (non-trivial) regularities in the consequences of election rules that are not similarly context-bound. And in fact, G. Bingham Powell has used this example to make a (to me) compelling case that the proper study of the scientific ‘laws’ of election law can’t be (or, at least, it can’t be restricted to) a search for big universals. Even when generalizations are prized over local knowledge, election laws need to be studied closer to the ground in order to unearth the local and temporal conditions that may limit an otherwise robust pattern, or that may set in motion a new one.
Duverger himself recognized that the consequences of election rules are mediated by context, and he classified some of these contextual factors as (1) “the mechanical” (the interaction between votes and election rules if the latter are properly administered—conditions that may depend on the strength of a country’s tradition of rule of law and technical competence) and (2) “the strategic” (the effects of citizen or elite anticipations of these mechanical operations).
We might think about recent voter identification laws in a similar fashion: Under current conditions, heightened documentation requirements can be expected, at least at the margins, to disproportionately shave the vote totals for some Democratic-leaning constituencies. This effect may seem almost mechanical. Yet, as we have apparently witnessed in recent years, some election reforms that raise the costs of voting for particular classes of voters (such as proof of citizenship requirements, or cut-backs in early voting days like ‘Souls to the Polls”) can occasionally result in an increase in the vote totals through the mechanism of ‘backlash’ mobilization against the reality or perception that the reform was an intentional form of disenfranchisement. (On such backlash, see, e.g., Rick Hasen’s Voting Wars). My (perhaps, not so social-scientific) spin on this example: human agency and innovation matter.
Powell offers his insights about the contextual nature of election law for the sake of a positive research program into election laws’ consequences. I, however, want to use these insights to conclude with two simple points that are more normative in nature.
First, as citizens or election reformers, the contextual nature of election rules means that we should be wary of categorical judgments about particular election rules. Changes in the environment, human behavior, or the law's internal design may flip expected realities. (Just as, at one time, the secret ballot served to free humble tenant voters from the pressure of their landlords, so at another time and place, it worked to disenfranchise the humble illiterate…) Voter documentation requirements, for example—if they are the responsibility of government, and not voters themselves—may have an entirely different effect and valence than what we’ve come to expect in the U.S.
To judge from the experience in some countries at least, it seems possible that voter documentation can operate to expand, not contract, the electorate, and that it can operate without benefit to a particular party (other than the ‘partisan’ benefit that is likely to accrue from fully documenting an eligible electorate). If this is right, then—yes, of course—government-controlled voter i.d. will run into other objections (such as those of the civil libertarians worried about runaway uses of national i.d.). But the point stands that our political (politicized?) instincts about the natural effect and valence of voter id would no longer hold.
Second, if the consequences of most or all election rules are highly context-bound—meaning that an election law that is benign in one context can be malign in the next—then the quality of our processes and institutions for evaluating and changing election rules may be far more important than the static quality of any particular election rule. I’ll say more about this latter point at another time.
Now back to the immediacy of election results and (perhaps) election administration debacles.
Pradeep Chhibber and Ken Kollman, The Formation of National Party Systems: Federalism and Party Competition in Canada, Great Britain, India, and the United States. Princeton: Princeton University Press, 2004.
Maurice Duverger, Political Parties: Their Organization and Activity in the Modern State. New York: John Wiley, 1954.
Richard L. Hasen, The Voting Wars: From Florida 2000 to the Next Election Meltdown. New Haven: Yale, 2012.
G. Bingham Powell, Jr., “Representation in Context: Election Laws and Ideological Congruence Between Citizens and Governments,” Perspectives on Politics, Vol. 11/No. 1, March 2013.
Sunday, November 02, 2014
Executive Power Restrained -- the South African Experience, and Thanks
Given the recent dialogue here about executive power, but on a very different sub-topic, I thought it would be worth mentioning that the South African Constitutional Court has issued several decisions that have used strong judicial review to limit executive power in situations where corruption may be involved. The rulings are extraordinary from an American perspective. In the first case, Glenister II (2011), the Court actually invalidated the existence of a new national anti-corruption prosecutorial entity, as being insufficiently independent to satisfy general constitutional requirements of promoting democracy, fighting corruption, etc. The Court also controversially relied on international anti-corruption conventions. One reason the Court was skeptical of the new entity was that the African National Congress dominated government had effectively disbanded a more aggressive and powerful national anti-corruption entity in troubling circumstances, so the Court was finding the replacement body to be insufficient. In another case, Democratic Alliance v. President of the Republic (2012), the Court invalidated President Jacob Zuma's selection of a national prosecuting authority, a Mr. Simelane, based on allegations that Simelane had demonstrable integrity problems, and based on the President allegedly not paying heed to these problems. I have authored a short article on these cases and a few others that can be found here. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476649 In the U.S., there would have been standing and political question problems in both situations so these are bold decisions.
I mention these decisions in part to show how national high courts do not always have to be overly deferential to executive power assertions even in delicate situations. On a final note, thanks to the folks at Prawfs Blawg for letting me participate again. Also, special thanks to Ilya Somin for the interesting Korematsu debate. For those who want another perspective on our debate, take a look at Professor Eric Muller's post on the question (he is certainly a preeminent Korematsu-Hirabayashi expert). http://www.thefacultylounge.org/2014/11/the-kende-somin-debate-on-justice-thomas-and-korematsu-and-hirabayashi.html And God bless Dan Markel, his family, and friends.
Friday, October 31, 2014
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. But I just cast a ballot in Florida that did not have a slot for U.S. House on it. The representative for my district is Ileana Ros-Lehtinen, who ran unopposed with no pre-qualified possible write-in candidates. Under Florida Statutes § 101.151(b)(7), "[e]xcept for justices or judges seeking retention, the names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."
Administratively, this makes sense, I suppose. Why print hundreds of thousands of ballots when it is only going to take one ballot to elect the candidate? And the states do control the time, place, and manner of holding House elections, so Florida can pursue such administrative choices and conveniences when the outcome is determined. Nevertheless, there seems something odd about the state essentially declaring as the winner of a popular election someone who never actually stood before her constituency for consideration at the relevant moment, which is when they are casting ballots. It also strips voters (inclduing me, I will confess) of the opportunity to use the ballot for expressive purposes, perhaps by leaving that space blank. While leaving the spot blank means I still would not have cast a vote in this contest, it would have been my choice not to cast that vote, not the state's.* And if other people did the same thing, there might be meaning to the difference between the votes Ros-Lehtinen received and the total votes cast by people in this district.
* I recognize, of course, that the Supreme Court has made clear that ballots are not intended to serve expressive purposes.
Finally, I presume that, while Florida is a strange place with strange laws, it is not alone in this practice.
Thursday, October 30, 2014
A Mistake Regarding Korematsu
Thanks to Ilya Somin for his additional comments in our "debate" about whether Justice Thomas's jurisprudence would support Korematsu. Respectfully though, Ilya is factually incorrect in saying neither Mr. Korematsu nor other interned Japanese-Americans were convicted of any crimes. Here is what Ilya wrote:
"But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision." http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/more-on-clarence-thomas-and-korematsu/
Actually, Korematsu was convicted of a crime as were other Japanese-Americans in the camps. http://korematsuinstitute.org/institute/aboutfred/ Thus by Ilya's logic, Justice Thomas's view that prisoners have reduced rights, say to due process or colorblindness, would apply. These were clearly wartime prison camps with some unfairly convicted people there, including those thought to be disloyal. There is lots of literature on these camps confirming this. More generally, I think Ilya downplays the situation in these camps, by augmenting the rights of people there, though I know Ilya opposes the Korematsu decision and I know Ilya writes in good faith.
Second Ilya continues to defend Justice Thomas by saying Hamdi was an enemy combatant, unlike Korematsu. But Justice Thomas's almost plenary authority language about executive power in wartime, and his stated aversion to judicial involvement, are inconsistent with limiting his view just to combatants. In other words, Ilya makes a nice lawyerly distinction that does not make a difference in the analysis. I have previously quoted some of Justice Thomas's language in Hamdi, and its breadth is stunning. http://prawfsblawg.blogs.com/prawfsblawg/2014/10/justice-clarence-thomas-and-korematsu-the-sequel.html#more Presumably this is one reason why he was alone in dissent. Moreover, though not an enemy combatant, Fred Korematsu would have been a convicted wartime prisoner to Thomas as just mentioned.
Third high level American military authorities justified their discriminatory imprisonment of Japanese-Americans based in part on the risks of a supposed west coast invasion. These were not just state or local prison officials. Thomas would have likely seen that danger (given who predicted it) as greater than, for example, the likely danger of an east coast Al Qaeda invasion of the same scope (which was never predicted). Al Qaeda was, and is, horrific and enaged in an abominable attack, but Al Qaeda was not thought of as an invasion danger of the World War II scope. That 's why I believe Justice Thomas would have been even more deferential to the government in World War II.
In my earlier post, I agreed with Ilya that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus." But my response was not limited to a consensus situation. Thomas often writes openly about his disagreement with precedent or with other commonly held views. I think of Thomas's view that the Establishment Clause is not "incorporated" which he has written about. Thomas showed no written reticence, however, in describing the Korematsu facts either in Fisher or Grutter.
But my bottom line in this post is that Fred Korematsu was convicted, a prisoner, and would have had almost no rights in the Thomas view of wartime or prisoners.
Monday, October 27, 2014
State Courts Choosing to Follow Federal Precedents
Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:
One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.
Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:
Doctrinally, the closest (and most recent) case on point is the Supreme Court's 2008 decision in Danforth v. Minnesota. Danforth was a case about the ability of prisoners to retroactively invoke "new" Supreme Court decisions that were handed down after their direct criminal appeal became final. The Supreme Court has erected a very high bar to when such "new" rules can be retroactively enforced via federal habeas petitions, and the Court had already held that its 2004 Confrontation Clause ruling in Crawford v. Washington was not retroactively enforceable in federal habeas petitions.
But Danforth held that state courts are free, as a matter of state law, to give retroactive effect to new Supreme Court decisions like Crawford in state collateral post-conviction proceedings. In other words, if one accepts that the Supreme Court's interpretation of a constitutional provision is itself federal law, Danforth holds that state courts can choose whether or not federal law (Crawford) that wouldn't be binding in a federal post-conviction proceeding can nevertheless be binding in a state post-conviction proceeding. (That this is what Danforth necessarily allows is made quite clear by Chief Justice Roberts' rather sharp dissent.)
At least as a matter of current doctrine, then, there's at least some support for the notion that state courts can, indeed, choose whether and under what circumstances they will be bound by federal precedents that wouldn't otherwise be binding. Michael may well believe that Danforth is wrongly decided. But if it isn't, it seems difficult to square with his conclusion that " a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control."
Separate from Danforth, I have to say that this result makes sense to me. If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don't see how that raises any kind of federal constitutional concern under the Supremacy Clause.
It may be silly (or wrong) as a matter of state law, but it seems to me that that's up to the relevant state (whether through its legislature or court of last resort) to decide. Of course, by dint of the structure of appellate jurisdiction, state courts are usually bound as a matter of federal law by the Supreme Court's interpretations of federal law--but Danforth is a rare example of a case in which that's not true. And state courts are never bound as a matter of federal law by the lower federal courts' interpretations of federal law. And so it should follow that the same logic applies to decisions of lower federal courts interpreting federal laws--that a state can choose to be bound by that decision as a matter of state law, and that nothing in federal law (including the Constitution) either requires them to so choose, or prevents them from doing so.
Should Apprendi Apply to Substantive Reasonableness Review?
A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here's some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court's denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.
Under Apprendi and related cases, the Sixth Amendment requires that juries (not judges) find all facts that increase defendants’ sentences (either the maximum or the minimum). Imagine, for example, that theft has a sentencing range of 0-10 and theft using a firearm has a range of 0-15. If a defendant is convicted of theft, can a judge find that the defendant used a firearm and impose 15? No. In Booker and related cases, the Court extended this principle to sentencing guidelines. So imagine that theft has a range of 0-15, but sentencing guidelines dictate a punishment of 10 unless the defendant used a firearm. The sentencing guideline would then operate just like the theft statute in the first example. It would set a ceiling that could be exceeded only if a judge found a fact—namely, that the defendant used a firearm. The solution adopted in Booker was to make the guidelines advisory, so that the Sixth Amendment ceiling in the last hypo would be set by the mandatory 0-15 statute, not by the advisory guideline. So far, so good.
The new frontier in this area has to do with reasonableness review. After Booker, the guidelines are advisory, but federal courts of appeals still review sentences for procedural and substantive reasonableness. In Rita v. United States, the Court gave some guidance about how to conduct this review, and Justice Scalia drafted an insightful concurrence that foresaw a problem to come. Scalia’s concern was that, as appellate courts established a jurisprudence of substantive reasonableness, the result would be a set of effective sentencing maxima. To adapt the earlier example, imagine that the statutory sentencing range for theft is 0-15 and that a court of appeals finds that a sentence of more than 10 is reasonable only if accompanied by a factual finding that the defendant used a firearm. The upshot would be that a sentence of 10 would have become the maximum possible sentence without any judicially found facts. Sentences over that amount would then violate the Sixth Amendment, even if a judge found that the defendant used a firearm.
The Court just denied cert in the first strong vehicle for review of this question, with Justice Scalia and two of his colleagues, Justices Thomas and Ginsburg, dissenting. (The fact that Justice Ginsburg joined the dissent is especially noteworthy, because she was the swing vote in favor of the Booker remedy and so is largely responsible for the current doctrine of substantive reasonableness review.) The constitutionality of post-Booker substantive reasonableness review is definitely an important question that the Court should eventually resolve. But I’m not so sure that the Court should extend Booker and find a violation in this context. My hesitancy stems from important functional differences between: (i) mandatory sentencing guidelines that are promulgated by legislatures or agencies and (ii) judicial precedents on substantive reasonableness review.
Consider the once-mandatory federal sentencing guidelines that prevailed before Booker. Under that system, Congress both enacted criminal statutes and exerted control over the U.S. Sentencing Commission that promulgated the guidelines. Because it had control over both statutory sentencing ranges and guidelines ranges, Congress could exert mandatory control over criminal punishments—at juries’ expense—by raising statutory maximums and then instructing the Commission to require additional judicial fact-finding pursuant to mandatory sentencing rules. Clearly, Booker hasn’t prevented Congress from engaging in this behavior or from otherwise shifting fact-finding responsibilities away from juries and toward judges. Indeed, the Booker remedy—finding the guidelines advisory—was widely criticized for paradoxically empowering judges, not the juries actually mentioned in the Sixth Amendment. These critics had a point: How can Booker promote the right to jury trial, when it had no direct effect on jury fact-finding?
One possible answer is that Booker indirectly promoted jury fact-finding by reshaping long-term legislative incentives. After Booker, Congress can no longer increase its own control over sentencing outcomes by shifting fact-finding responsibility toward judges operating under mandatory guidelines. The mandatory guidelines, after all, are now unconstitutional. Instead, Congress can shift fact-finding away from juries and toward the sentencing phase only by empowering judges operating without mandatory guidelines. Put another way, Booker holds that the only way for Congress to establish mandatory sentencing rules is to shift fact-finding responsibility toward the trial, where juries find facts. Congress’s desire to control mandatory sentencing rules thus reinforces, and no longer undermines, its willingness to promote jury fact-finding. Booker might therefore be compared with other constitutional doctrines that (as Matthew Stephenson put it) “raise the costs to government decision-makers of enacting constitutionally problematic policies, rather than attempting to designate certain government actions, or categories of government actions, as permissible or impermissible.”
This functional argument suggests that the Apprendi rule most forcefully applies to sentencing rules created by legislatures and agencies, and not to sentencing rules that are crafted by independent federal judges. The temptation to circumvent the jury arises when the same entity (or coordinated pair of entities) has control over both statutory sentencing ranges and mandatory sentencing rules. Congress had both types of control before Booker. But Congress can’t count on federal judges to impose the mandatory sentencing rules that Congress itself desires. Unlike the Sentencing Commission, the federal courts are independent of the political branches. And while Booker reasonableness review represents a gloss on a federal statute, the statutory gloss facilitates judicial discretion rather than curbing it. So if Congress legislates higher statutory sentencing ranges and writes up new guidelines, the federal courts are free to accept or reject those advisory results. Unless federal courts of appeals predictably fashion reasonableness rules in the manner that Congress desires, the legislature’s desire for mandatory sentencing rules would cut in favor of jury fact-finding, even if substantive reasonableness review flourished.
Admittedly, this last point places a lot of weight on federal judges' willingness to deviate from the advisory guidelines in ways that will frustrate Congress. And while evidence on post-Booker sentencing is mixed and complex, it's fair to say that the guidelines, while frequently set aside, are still taken seriously. To the extent that the guidelines are advisory-in-name-but-followed-in-fact, Congress still has some reason to circumvent the jury by shifting fact-finding to the sentencing phase. But the more direct solution to that problem would be to make clearer that sentencing courts can and often should deviate from the guidelines. What the independent judiciary does, after all, is within its own control. This is why Scalia's Rita concurrence was wrong to worry that "this Court could prescribe that the only reasonable sentences are those consistent with the same mandatory Guidelines that Booker invalidated." Instead of blatantly deferring to Congress in that way, the Court can easily move in the opposite direction. For example, it could partially overrule Rita and prohibit the circuit courts from presuming that in-guideline sentences are reasonable. Given this and other potential solutions, it seems an overreaction to cure any residual form of legislative influence by taking Justice Scalia's advice and declaring each district court judge the final word on the substantive reasonableness of sentencing--a result that raises serious uniformity and fairness concerns.
Of course, the Supreme Court hasn’t quite articulated the functional argument outlined above, which is subject to a lot of questions and potential objections. Of particular note, any attempt to view Booker as directed specifically toward legislative incentives would have to address the history of the Sixth Amendment and how it bears on this question, particularly because the Court’s recent jurisprudence in this area has been so extensively grounded in originalism. But that will have to be a topic for another day.
The above is cross-posted from Re's Judicata.
Thursday, October 23, 2014
Justice Clarence Thomas and Korematsu: The Sequel
I blogged here on October 15, about an article of mine that was published this year in the Harvard Journal of Racial & Ethnic Justice titled “Justice Clarence Thomas’s Korematsu Problem.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 . Legal scholar Ilya Somin at the Volokh Conspiracy has authored an interesting and lengthy post critiquing parts of the article. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/20/does-justice-thomas-endorse-the-supreme-courts-notorious-decision-inkorematsu-v-united-states/ Respectfully, I think Ilya is wrong.
First, Ilya and I actually agree on several things. We agree that Justice Thomas was wrong in his Hamdi dissent because Thomas granted excessive power to the President during wartime. Even Justice Scalia, contre Thomas, acknowledged that a U.S. citizen could not be held virtually incommunicado, without formal charges, and interrogated indefinitely, whether the person was an enemy combatant or not.
Yet Justice Thomas in Hamdi wrote that: “The Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and this authority carries with it broad discretion.” Thomas also writes earlier that, “The Founders intended that the President have primary responsibility – along with the necessary power – to protect national security and to conduct the nation’s foreign relations.” Further Thomas quotes from another case where the Supreme Court says that, “"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." Thomas also touts the advantage of the “unitary executive” and the executive’s role as the “sole organ” and “single hand” in such matters. I want to add that the decision was 8-1 with Thomas the lone dissenter taking this extraordinary position. He is way out on a limb in finding this U.S. citizen has virtually no rights. And it’s important to note that Justice Thomas was wrong even though Hamdi was labeled an enemy combatant. Thomas also indicates that he believe courts should hesitate to intervene in such decisions. All of these views are consistent with Korematsu.
Second, Ilya and I agree that Justice Thomas’ dissent in Johnson v. California is inconsistent with the Thomas view that the government must be color-blind. Justice Thomas said that California could racially segregate prisoners at intake for security reasons. Again as in Korematsu, for Thomas, security concerns trump color-blindness.
Where Ilya and I part ways is on what inference can be drawn from these decisions, and from other statements that Justice Thomas has made. I think Justice Thomas’s statements on executive power during wartime are consistent with the Korematsu decision, in that his easy acceptance of asserted national security concerns (his Hamdi dissent), and his judicial caution when security is at stake, trump his normally passionate commitment to color-blindness (his Johnson dissent). Ilya think this is a stretch for several reasons.
Ilya initially has a dilemma because in the Fisher v. Texas affirmative action, Justice Thomas cites to Korematsu as supporting the forcible relocation of Japanese-Americans on the west coast even under strict scrutiny. Thomas in Fisher said that Korematsu found the internment “had a definite and close relationship to the prevention of espionage and sabotage.” But Ilya then says that Justice Thomas is only “summarizing” Korematsu without necessarily approving it (despite Thomas’s recitation of the facts). This is odd. For example, at the end of his essay Ilya says that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus.” By that logic, one would suspect Justice Thomas cited Korematsu approvingly in Fisher. Thomas could have cited other cases. The citation by Thomas is even more troubling because, as Ilya admits, the Court in Korematsu did not really use strict scrutiny.
Second, Ilya says that Hamdi is distinguishable from Korematsu because the President declared Hamdi to be an enemy combatant whereas the “Japanese Americans interned during World War II were not in prison, and had never been convicted of any crime or even charged with one.” Respectfully, I think Ilya has it backwards. The alleged grave national security concerns asserted by American military leaders and by the President regarding Japanese-American loyalty on the west coast, and regarding the supposed danger of invasion, would have likely created far greater national security worries for Justice Thomas than a single enemy combatant. Moreover, Thomas’s views in Johnson show his deference to allowing prison officials to take race into account, yet how can one suggest the Japanese-American internment camps were not the essential equivalent of prisons.
Third, Justice Thomas curiously omits mentioning Korematsu in Hamdi despite Korematsu’s obvious relevance, though Justice Thomas cites other World War II cases favoring executive power. This raises the question of what is to be gained by the omission. One answer is that Justice Thomas can avoid stating his view of the case. Fourth, Ilya indicates one of his objections to Korematsu is that the government provided false information. I agree with him here. Yet Justice Thomas has apparently never written a sentence (despite numerous chances) expressing this concern about Korematsu, and Thomas also ignored the possibility that the government lied about Hamdi’s supposed dangerousness since Hamdi was released so quickly. Thomas’s Hamdan dissent for example says nothing of the Hamdi release. Once again, a la Korematsu, Justice Thomas does not generally question military decision-making.
Ilya correctly points out that John Yoo has criticized Korematsu. That’s a good thing. It would be great if Justice Thomas did the same, but Justice Thomas instead continues to treat the case like standard equal protection material. Overall, the evidence shows that Justice Thomas’s wartime, and security focused, jurisprudence is well in line with the majority’s approach in Korematsu.
Monday, October 20, 2014
Misunderstanding Rule 11
Via Slate, the lame-duck attorney general of Arizona cited FRCP 11 sanctions as a basis for no longer defending (or appealing, although that would be covered by FRAP 38) same-sex marriage bans. The argument, it seems, is that defending the bans (or appealing) would be seen as imposing unnecessary delay or expense or as a frivolous argument not warranted by existing law. Mark Stern at Slate and Josh Blackman both see this more as a political move. I want to suggest it must be, because the argument is wrong legally.First, FRCP 11(b)(1) only prohibits actions done for the purpose of causing delay or expense. It is surely a legitimate purpose for government to obtain a definitive and binding Supreme Court ruling on an issue of constitutional import.
Second, since SCOTUS has not spoken on the issue, it cannot be said that Arizona's constitutional arguments, even if a clear loser in the Ninth Circuit, are frivolous before SCOTUS. As Josh points out, neither SCOTUS's undoing of stays or cert. denials are binding precedent. And the state always can pose an argument for "modifying, or reversing existing law," perhaps by seeking en banc Ninth Circuit review. Or the state can skip unfriendly Ninth Circuit law by seeking cert before the court of appeals judgment. But any of those options requires that the state first defend and appeal to the Ninth Circuit. Surely FRCP 11 cannot be read to cut-off such litigation strategies.
Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?
Friday, October 17, 2014
Richard's post on the problems created in Dart Cherokee by the court of appeals failure to explain its reasoning and Gerard Magliocca's CoOp post on recent examples of SCOTUS issuing procedural orders affecting constitutional litigation without explanation share a common theme--to what extent do courts, particularly reviewing courts, have an obligation to explain themselves. That obligation might be to reviewing courts, lower courts, current litigants, future litigants, or the public at large.
The problem is that the desire to provide explanation potentially butts against case-management concerns and the difficulty (if not impossibility) of providing reasoned explanations for every decision, including procedural decisions such as declination of discretionary review (the issue in Dart), cert. denials, and stays (or releases of stays) pending review. Courts do not have the time or resources to provide full-on reasons for every decision, particularly where reasons require consensus on a multi-member court. Then we have to figure out whether less-than-complete reasoning is better or worse than no reasoning at all. And we potentially fall back into the debates of the late '90s and early '00s about non-precedential opinions and the problems they create.
Importantly, neither Richard nor Gerard argues that courts should do this in every case, but only special cases--where failing to explain wuld effectively insulate a decision from review or the issues are signficant enough that special guidance is needed. I would reiterate that the decisions prompting the discussion involve particular procedural concerns rather than the ultimate merits.
Wednesday, October 15, 2014
Justice Clarence Thomas and Korematsu
Recently, there was a discussion on the lawcourt listserv about the worst U.S. Supreme Court decisions ever. On a related note, this past summer, my short article titled "Justice Clarence Thomas's Korematsu Problem" was published in the Harvard Journal of Racial & Ethnic Justice, and posted on SSRN. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 Ironically, the issue of whether the Court should formally repudiate Korematsu was also raised in a separate cert. petition during the period I worked on the piece. Further, Ilya Somin had a post or two on the issue of repudiation, if I recall correctly. Looking back on the article, I confess that I'm still stunned that Justice Thomas's view of war related executive power, as taken from his judicial opinions, would seem to support Korematsu. The abstract is below. Contrary thoughts or arguments are welcome. Or perhaps I should not be stunned.
The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision. This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case. Two cases provide the major evidence. First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights.
Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process. California argued this minimized racial violence. Thomas therefore abandoned his well-known position of racial color-blindness in the case. The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu. The essay also addresses several counter-arguments. While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.
Ebola, Epidemics, and Federalism
The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.
1. State Quarantines: The “Dormant” or Impliedly Preemptive Commerce Clause and Interstate Travel
What if State A wants to shut out persons or goods from State B on the ground that they might be contaminated with a public health hazard? This seems like regulation of interstate commerce, which Article I of the Constitution places within the control of Congress. Clearly, then, Congress could pass legislation on this point. It’s possible, however, that Congress hasn’t enacted or never enacts relevant legislation. Under the “dormant” Commerce Clause doctrine, state law on matters of interstate commerce can be impliedly preempted even if there is no relevant federal legislation.
In Chemical Waste Management v. Hunt (1992), the Court discussed its line of “quarantine cases," block quoting the following nineteenth century statement:
In the exercise of its police powers, a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to the health or which would endanger the lives or property of its people. But if the State, under the guise of exerting its police powers, should make such exclusion or prohibition applicable solely to articles, of that kind, that may be produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in conflict with the Constitution of the United States.
In other words, bona fide quarantines are permissible, even though states can’t normally discriminate against goods from other states. An analogous distinction might apply in connection with persons and the constitutional right to interstate travel discussed in Saenz v. Roe (1999).
2. Federal Quarantines: The Necessary and Proper Clause and Commerce Clause
Does the federal government have the power to establish quarantines? This issue came up during the oral argument in the 2010 case United States v. Comstock. The question presented was whether the federal government had authority to civilly commit certain offenders after they had completed their federal prison sentences. The government argued that this power existed in light of the public danger that the offenders posed. The relevant constitutional authority stemmed from the Necessary and Proper Clause, in conjunction with whatever separate authority authorized the federal prison sentence in the first place. During the oral argument, then-Solicitor General Elena Kagan analogized the federal law to a quarantine. Here is the key exchange:
GENERAL KAGAN: ... I will give you an example, Justice Scalia. I mean, suppose that there was some very contagious form of drug-resistant tuberculosis that had -- had become prevalent in the prison system, and States were not able to deal with that, with quarantining these people upon their release date. And Congress said: You know, the best thing to do is to have the Federal Government act as the appropriate quarantining authority because we don't think that States are able to step up and deal with this problem. Would anybody say that the Federal Government would not have Article I power to effect that kind of public safety measure? And the exact same thing is true here. This is exactly what Congress is doing here, is to make sure that mentally ill, sexually dangerous --
JUSTICE KENNEDY: When I was thinking about your hypothetical I thought, well, that's a pretty easy commerce power argument. I — I notice that in — in the government’s position you don’t argue the Commerce Clause very much, and I — we have got at Morrison v. Bronkalla looking at you and Printz, and so forth. … But suppose Congress said: There is a class of committable, dangerous sex offenders that are crossing State lines and using interstate facilities, and made those findings. Would that be sufficient to establish a Federal commitment law?
In this exchange, Justice Kennedy seems to view the quarantine hypothetical as too easy for the government and as possibly beside the point, given that the government wasn’t relying directly or exclusively on the Commerce Clause. However, it's not entirely clear whether Justice Kennedy was talking about a quarantine within a state (which might have to rely on a combination of the Commerce Clause and the Necessary and Proper Clause) or simply a quarantine at a state border (which would be a relatively straightforward regulation of interstate commerce). Justice Kagan's hypothetical seemed designed to capture both scenarios.
Comstock ultimately upheld the federal commitment law by a 7-2 vote, with several members of the majority writing separately. Per Justice Breyer, the majority based its decision on a multi-factor analysis. Factor #3 raised the quarantine point:
If a federal prisoner is infected with a communicable disease that threatens others, surely it would be "necessary and proper" for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others (even if not threatening an interstate epidemic, cf. Art. I, § 8, cl. 3). And if confinement of such an individual is a "necessary and proper" thing to do, then how could it not be similarly "necessary and proper" to confine an individual whose mental illness threatens others to the same degree?
This passage appears to approve of federal efforts under the Necessary and Proper Clause to contain epidemics "even" without a threatened "interstate epidemic." For that reason, the passage suggests that the federal government has a great deal of flexibility in establishing quarantine measures, even apart from emergencies and far from state and federal borders. Still, this point is arguably dicta and arose in the context of the release of federal prisoners. So the passage doesn’t necessarily approve of all possible federal health measures.
3. Federal Inoculation Programs: The Necessary and Proper Clause, Commerce Clause, and Anti-Commandeering
Can the federal government go beyond quarantine measures, such as by requiring people to be inoculated against a plague? This “inoculation mandate” hypothetical prominently arose in connection with NFIB v. Sebelius, the 2012 challenge to the Affordable Care Act. The relevant question presented was whether the federal government had authority under the Commerce Clause and Necessary and Proper Clause to require private persons to purchase health insurance or pay a penalty. (The Court would ultimately sustain the law by construing the penalty as a tax for constitutional purposes.)
At oral argument, Justice Breyer tried to test the limits of the challengers’ theory—and, more to the point, the limits that the challengers would impose on the federal government. The resulting exchange prominently involved the 2000 case United States v. Morrison, where the Court narrowly struck down part of the Violence Against Women Act for exceeding federal legislative power.
JUSTICE BREYER: I'm just picking on something. I'd like to just -- if it turned out there was some terrible epidemic sweeping the United States, and we couldn't say that more than 40 or 50 percent -- I can make the number as high as I want -- but the -- the -- you'd say the Federal Government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical.
CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against --
JUSTICE BREYER: Is your answer to that yes or no?
CARVIN: Oh, I'm sorry; my answer is no, they couldn't do it, because Morrison --
JUSTICE BREYER: No, they could not do it.
JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there's -- okay, fine. Go ahead.
CARVIN: May --
JUSTICE BREYER: Please turn to Justice Kagan.
CARVIN: May I just please explain why?
JUSTICE BREYER: Yes.
CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the -- and it has huge effects on the health care of our country. Congress found that it increased health care costs by -
JUSTICE BREYER: I agree with you that --
CARVIN: Well, but --
JUSTICE BREYER: -- that it had huge negative effects but the majority thought that was a local matter.
JUSTICE SCALIA: I think that's his point.
This exchange suggests that, in the view of some or even most Justices, mandatory inoculation is near the outer limit of what the federal government can do to combat epidemics.
This wasn't the first time that Justice Scalia seemed unconcerned with an inoculation hypothetical: in Printz v. United States, which held that Congress lacks authority to command state officers, Justice Stevens's dissent argued that the majority's anti-commandeering rule might thwart "the mass inoculation of children to forestall an epidemic." The Printz majority was unmoved. Perhaps the Court believed that federalism entrusted such situations to state officers operating under state law. Or perhaps the Court envisioned the immediate expansion of federal health agencies in times of need.
In NFIB, however, some Justices seemed to take a different view of mandatory federal inoculation. In particular, Justice Alito suggested that there might be a distinction between Justice Breyer's inoculation hypothetical and the Affordable Care Act's insurance mandate:
JUSTICE ALITO: Mr. Carvin, isn't there this a difference between Justice Breyer's hypothetical and the law that we have before us here? In his hypothetical, the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there's cost-shifting is because the government has mandated that. It has required hospitals to provide emergency treatment; and, instead of paying for that through a tax which would be borne by everybody, it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.
Justice Alito's distinction is a fairly subtle one, and it doesn't directly rest on the potential need for federal public health measures. Still, Justice Alito's remarks suggest that a majority of the current Court would sustain federal inoculation mandates, despite the fact that most justices in NFIB disapproved of the arguably analogous healthcare insurance mandate.
Of course, we shouldn't read too much into statements during oral argument, particularly because even committed skeptics of federal authority might view the issue differently during an actual emergency. But, as the exchange in NFIB suggests, it may be worthwhile to think through some of these questions before the emergency arrives.
The above is cross-posted from Re's Judicata.
Tuesday, October 14, 2014
Supremacy and uniformity
I generally have been understanding, if not sympathetic, to the Court's odd behavior with respect to marriage equality of late. I understood the underlying idea that the Court need not act if the circuits are taking care of business. And I am ok with the Court dropping hints in one direction (as it arguably did in denying the five cases at the beginning of the term). But two things give me some pause.
The first is this post by Mike Dorf arguing that the Court's refusal to get involved is not a problem at the inter-circuit level, but at intra-state level, where a federal court of appeals and state high court might disagree, creating some confusion. He offers an interesting example: A federal circuit court recognizes the right to marriage equality and the executive responds by ordering clerks to issue marriage licenses to same-sex couples. But then a spousal privilege dispute arises in a state proceeding and the state supreme court refuses to recognize the privilege because, in its view, same-sex marriages are not constitutionally required. (The case has an added wrinkle--the state supreme court also disregarding the state executive's decision to issue the marriage license, which ought to be controlling). Nevertheless, it illustrates the multiple contexts and postures in which these issues arise.
The second was re-reading the justiciability discussion in Windsor in preparation for it (and Hollingsworth) in Fed Courts this week. I had forgotten how much Kennedy emphasized "the Supreme Court's primary role in determining the constitutionality of a law" and the Court's duty to address its constitutionality (what Scalia in dissent rejected as a "jaw-dropping . . . assertion of judicial supremacy"). Despite that rhetoric, the Court now seems in far less of a rush to perform that role.
Friday, October 10, 2014
More on prosyletizing police
On Wednesday, I discussed a lawsuit brought by an Indiana woman who alleges that a police officer, at the end of a traffic stop, asked her about accepting Jesus as her lord and savior and gave her literature about an area Baptist ministry.
In my Civil Rights class on Thursday, we had an extended discussion of the case (the timing of the suit was perfect--we were finishing Qualified Immunity) that drove home for me the real chance that the officer will be able to successfully argue that the right was not clearly established. There probably is no case law on factual point--a police officer distributing religious material during a traffic stop without an explicit threat or punishment. Cases about proselytizing teachers are analogous (the complaint repeatedly alleges that the plaintiff did not feel free to leave, setting up a similar captive-audience situation combined with an implicit threat of punishment), but perhaps distinguishable in context. While there likely were department regs setting out proper conduct during a traffic stop, there likely was not an express prohibition on proselytizing. And there is a question of whether the stop was still ongoing. Is this the equivalent of selling foster children into slavery (Judge Posner's favorite example), so obvious that general anti-establishment principles are sufficient to clearly establish? Can we say the officer was "plainly incompetent" in believing it was constitutionally permissible to do this?
Update: On speaking with a colleague, I may be slightly more optimistic, as he points to two more avenues through which this right might be clearly established. First, officers are trained and should know that they cannot exceed the scope of a traffic stop in a way that is explicitly or implicitly coercive--to ask the driver on a date, to ask the driver for money, to sell their daughter's girl scout cookies, or to discuss who the driver is going to vote for in the next sheriff election; what the officer did here is not different in any meaningful way. Second, officers should know generally that they cannot stand in the public square and proselytize while in uniform and on-duty; that should put them on notice that they cannot do it during a traffic stop. Again, it all involves moving from general principles, so much depends on how willing the court is to see those general principles as establishing broad obligations of which a reasonable officer should have been aware.
Ultimately, it may not matter, as my guess is the officer (indemnified and represented by the city) will settle, as the case is not worth much money. But it reflects just how difficult life can be for § 1983 plaintiffs.
Wednesday, October 08, 2014
Back in June, we learned that at least the Eighth Circuit believes the right to burn a flag is clearly established. I wonder what the Seventh Circuit will think of the right not to have a police officer proselytize and hand-out information about a church in the course of a traffic stop.
Tuesday, October 07, 2014
The politics of sports
Here is (somewhat lengthy) video of a Ferguson protest outside Busch Stadium in St. Lousi before last night's National League Division Series game between the Cardinals and Dodgers. One fan wears a Cardinals jersey with "I am Darren Wilson" on the back; many fans engage the protesters with some not-unexpected-but-unfortunate racist vitriol.
But this highlights my long-held point that sports and politics are inextricably mixed. The protesters picked an ideal forum: Millions of people watching, thousands of people milling about, and an event that touched on civic pride and heart--all to protest conditions and issues that call some of that pride into question, prompting some reactions that illustrate precisely why that pride should be questioned.
Monday, October 06, 2014
Is it unseemly for SCOTUS to wait? (Updated)
Calvin Massey tries to figure out why SCOTUS declined to take a marriage-equality case. One possibility he offered is that "the Court is just avoiding the issue, hoping that the circuit courts will do the job for them," a possibility Massey calls "unseemly."
But is it unseemly and, if so, why? One reason to have "One Supreme Court" is to ensure uniformity of federal law. But if that uniformity comes anyway, is it really necessary that SCOTUS speak (or, as Dahlia Lithwick put it, lead) on any particular issue? Is there anything inherently wrong with SCOTUS waiting for a circuit split or for a circuit to get it "wrong"? Especially when the denial of cert. drops such a big hint to lower courts (particularly the Sixth Circuit, which seemed, based on oral argument, to be most inclined to uphold a state ban) to fall in line or risk being reversed later in the term?
Update: Neil Siegel frames the denials in line with the halfway decision in Windsor, as a Bickelian Court deciding as little as possible while dropping hints to direct the further conversation. Pivoting off that, it shows that our understanding of Bickel and passive virtues must be court-specific. Whereas Bickel likely imagined leaving the national conversation to the political branches and outside the Article III judiciary, here, it is unlikely any states will be suddenly motivated to legislate marriage equality. Instead, the conversation that SCOTUS is encouraging is in the lower federal courts, tasked with reading tea leaves (in Windsor and now in the cert. denials) and moving the discussion forward.
But is that what Bickel had in mind? Certainly multiple regional districts and circuits allow more "national conversation" and evolution than one final-and-thus-infallible decision of one Supreme Court. But these decisions still are being made by the same body of unelected-and-unaccountable life-tenured federal judges, drawn from the same pool and sharing the same orientation as the members of SCOTUS. That seems a very different conversation from the one Bickel imagined in promoting, for example, standing (which applies to all federal courts).
Friday, October 03, 2014
The Right to be Forgotten
Much of my scholarship concerns comparative constitutional law. An interesting example of such topics being addressed, beyond a law journal, is the recent article by Jeffrey Toobin in the Sep. 29 New Yorker titled "The Solace of Oblivion," http://www.newyorker.com/magazine/2014/09/29/solace-oblivion. His article focuses on a European Court of Justice ruling that essentially ordered Google to delete any links to information regarding an individual in Spain, who had cleared up some financial difficulties that had been previously written about on the Internet. The ECJ said individuals had a right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed." From a U.S. First Amendment perspective, such a ruling would almost certainly be an untenable speech restriction, especially given the vagueness and overbreadth of these criteria.
The article includes an interview with the Austrian born Oxford professor who is considered by Toobin to be the "intellectual godfather" of this right to be forgotten. The professor apparently sees analogies between Google retaining links to permanent blemishes about people on the one hand, and the Stasi, or other surveillance states, keeping records on people. It's a short fascinating article that I recommend to folks who want to learn more about the differences between American and European approaches to these issues. Students would find it especially accessible. The article has special relevance now in light of disclosures regarding NSA and other surveillance actions in the U.S. Yale Law Professor James Whitman wrote a seminal law review article addressing some of the underlying philosophical differences between the U.S. and Europe on privacy that has some similarities. "The Two Western Cultures of Privacy: Dignity Versus Liberty," 113 Yale L.J. 1151 (2003-4), http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers
Can't They Read on the Fifth Circuit?
With a highly troublesome reading of the U.S. Supreme Court's opinion in Planned Parenthood v. Casey, the U.S. Court of Appeals for the Fifth Circuit managed to uphold a statute that has closed many abortion clinics in Texas, at least for the time being. The statute requires abortion clinics to meet standards for ambulatory surgery clinics, and the costs of doing so are unaffordable for the majority of abortion clinics. According to the New York Times,
Thirteen clinics whose facilities do not meet the new standards were to be closed overnight, leaving Texas — a state with 5.4 million women of reproductive age, ranking second in the country — with eight abortion providers, all in Houston, Austin and two other metropolitan regions. No abortion facilities will be open west or south of San Antonio.
At issue was whether the statute imposes an "undue burden" on pregnant women seeking an abortion in Texas and is therefore unconstitutional. The district court found an undue burden because some women will have to travel 500 miles to reach an abortion clinic and therefore incur a substantial hardship from the increased time and expense of the travel. The women will have problems with child care, transportation, and getting time off from work.
The Fifth Circuit overrode the district court on the ground that Casey requires challengers to demonstrate that an abortion regulation imposes an undue burden "in a large fraction of the cases in which it is relevant." Since the women who live great distances from remaining clinics are not a "large fraction" of pregnant women in Texas, the appellate court upheld the clinic standards regulation.
But that reading ignores half of the Casey standard. Yes, the Casey Court referred to a large fraction of the cases, but it also referred to the cases for which the regulation "is relevant." Thus, when the Casey Court struck down Pennsylvania's spousal notification requirement, it observed that abortion regulations "must be judged by reference to those for whom it is an actual rather than an irrelevant restriction." Indeed in Casey, the spousal notification requirement would have been an undue burden for less than one percent of women seeking abortions in the state.
It is not always easy to interpret Supreme Court opinions, but the Fifth Circuit's reading is not tenable. Fortunately, this is only a temporary ruling pending a full appeal before the Circuit, and the Fifth Circuit will not have the final word on this matter.
[cross-posted at HealthLawProfs and orentlicher.tumblr.com]
Thursday, October 02, 2014
Is Ex parte Young Doomed?
Among the 11 cases in which the Supreme Court granted certiorari this morning is Armstrong v. Exceptional Child Center, a case out of Idaho (via the Ninth Circuit) that asks "Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute." This is the exact same question that the Supreme Court had before it--and narrowly ducked--two years ago in Douglas v. Independent Living Center of Southern California, a case I've written about here previously. And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs--or, as I'll explain below, the future availability of remedies under Ex parte Young.
In Douglas, a 5-4 majority vacated the Ninth Circuit's affirmative answer to that question based upon an intervening change in the administrative posture in the case--without endorsing or criticizing the Court of Appeals' ruling. But in a strongly worded dissent on behalf of himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts argued that such remedies under the Supremacy Clause should not be available, lest the Supremacy Clause provide litigants with a means of making an end-run around their inability to enforce section 30(A) (the Medicaid statute's critical requirement that states fund Medicaid at levels sufficient to guarantee "equal access" to quality providers) either directly or via 42 U.S.C. § 1983. For Chief Justice Roberts, Douglas should have followed directly from the Court's earlier decisions in Alexander v. Sandoval (limiting direct enforcement) and Gonzaga University v. Doe (limiting 1983). Taking those cases one crucial step further, the Douglas dissent would have held, for the first time, that litigants may not pursue injunctive relief against state officers for violations of federal law under Ex parte Young unless the underlying federal law is itself privately enforceable.
The reason why such a conclusion would not be inconsistent with Ex parte Young and its progeny, the Chief Justice explained, is because "Those cases . . . present quite different questions involving the pre-emptive assertion in equity of a defense that would otherwise have been available in the State's enforcement proceedings at law.” This hyper-narrow view of the scope of Ex parte Young, which was most forcefully advanced in a 2008 Stanford Law Review article by UVa Professor John Harrison, has never been embraced by a majority of the Supreme Court, and cannot be squared with any number of subsequent Supreme Court decisions. As Justice Scalia reiterated just three years ago, “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’" And because of these modest prerequisites, as then-Justice Rehnquist wrote in 1974, Ex parte Young "has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.” In other words, litigants have been able to use Ex parte Young to affirmatively and prospectively vindicate federal rights against state officers whether or not they are otherwise facing state enforcement proceedings in which those rights might provide a defense. On the Douglas dissenters' view, such remedies would only be available when such enforcement proceedings were nigh...
And yet, Douglas came within one vote of cementing this far narrower understanding of the availability of such relief. And Justice Kennedy (who joined Justice Breyer's majority opinion in Douglas that ducked the issue) has already expressed at least some support for this view of Ex parte Young elsewhere. After Douglas came out, I wrote a short essay about the bullet that the Douglas Court dodged. With this morning's grant in Alexander, it increasingly appears that any solace one might have taken from that result may well be short-lived.
[Full disclosure: I co-authored an amicus brief on behalf of former HHS officials in support of the Respondent in Douglas--which argued, contrary to the position advanced by the Solicitor General in his amicus brief, that HHS has historically understood private enforcement of the equal access provision to be a critical part of the Medicaid scheme.]
Tuesday, September 30, 2014
Ebola in the United States—Some Resources for the Law School Curriculum
Law students have lots of things competing for their attention, but one topic I’ve found of general interest this fall is Ebola. Although the topic is obvious low-hanging fruit for those of us in the health law crowd, I’d suggest there’s plenty to keep Constitutional Law, Torts, Commercial Law, International Law, immigration, etc. going as well. An infectious disease like Ebola triggers concerns about shipping, air travel, and, of course, quarantine, search, and seizure.
Today’s news that a Texas hospital has diagnosed a patient already in the United States was inevitable-and provides an opportunity to throw a legal spotlight on the laws of quarantine and isolation. As a matter of Constitutional Law, the President of the United States can take any measure necessary to protect the nation’s security, remember President Bush’s plan to use the military to control pandemic flu (see an overview from the CRS or the plan itself), or interstate commerce, but only individual states have the power to take action addressing health issues that do not threaten the safety of the country as a whole. That’s because individual states, but not the federal government, retain “police power” to promote the health of their citizens even in the absence of a threat to others. Here’s a helpful article. This overview of emergency legal powers, specific to Ebola, comes from the Robert Wood Johnson foundation supported Network for Public Health. Here is some more general information comparing state and federal authority from the CDC and a great overview from the Congressional Research Service. While Ebola itself is low on the list of the scariest diseases we in the U.S. risk catching (here’s a list from for those who don’t have enough to worry about), it is interesting to see how quickly it happened given that estimates of only a few weeks ago were that the probability was no more than 25%. Here’s how Vox explained it using visuals.
Balance of video
This piece in Sunday's Times offers a different perspective on the race to equip police officers with body cameras--they are law enforcement's response to increasingly ubiquitous amateur citizen videos, which the piece describes as "hav[ing] become part of the fabric of urban democracy." This turns the narrative somewhat on its head. Supporters of the right to record (including me) have generally argued that the citizen's right is essential in response to increasing police-controlled recording (through dash cams, street cameras, recorded station-house interviews, and other surveillance). As I put it once, citizen recording produces "a balance of power in which all sides can record most police-public encounters occurring on the street and in the stationhouse. Big Brother is watching the people, but the people are watching him."
But articles such as this one suggest that police see that balance as having shifted too far towards the public. Body cams--the latest technology--now are seen as a way for the government to restore that balance.
Tuesday, September 23, 2014
The Washington Redskins, the Lanham Act, and Article III
As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.
I. The Lanham Act's Cause of Action for "Adverse" Parties
In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:
an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.
But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:
Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.
Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.
II. The Case-or-Controversy Requirement
But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.
The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.
On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.
As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...
III. The Equities
Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)
Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.
Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)
Monday, September 22, 2014
Stone on sex discrimination and professional sports
The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.
Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.Title VII prohibits racial, sex-based, and other discrimination in the workplace. It is clear that while the statute’s goal is to eradicate the erosion of individuals’ terms, conditions, or privileges of employment because of discrimination, it is not supposed to function as a general civility code, requiring anyone to change the way they think, feel, or express themselves when that expression is not anchored to workplace-based harassment or deprivation. In other words, as the Supreme Court has put it, “discrimination in the air,” unmoored from some adverse action or campaign of workplace harassment, is not actionable; it is only when discrimination is “brought to the ground and visited upon an employee,” that it becomes something for which we permit legal recovery.
It is interesting, then, that there has been such pressure on sports teams and leagues to undertake voluntarily to do what the law does not require them to do—to distance themselves from those who espouse racist, sexist, or other offensive views. To be sure, if the Mets executive who alleges that she was taunted and fired for being an unwed mom-to-be persuades a trier that these things did, indeed, happen, she will prevail in court. But what about the rest of the outrage? The offenses unaccompanied by legal harm? What if the executive had not been fired and her teasing had not risen to the rather high threshold of intolerability and consistency needed to render it actionable harassment as opposed to mere, permissible incivility? The public needs to understand that the law does not necessarily comport with public sentiment on these issues. “Discrimination in the air” is not actionable.
Moreover, the public needs to appreciate the fact that while high-profile shaming and pressure on professional sports organizations may effectuate the kind of personnel and cultural changes that the law cannot, discrimination—both in the air and grounded upon employees—is rife in all kinds of workplaces. There are no high profile campaigns of shame at a typical truckstop diner or even in a big box store chain. But the same sense of “humor” that allegedly compelled the Mets higher-up to continually joke about the morality of single motherhood or fuels racially stereotyped depictions, contempt, or observations in the upper echelons of the NBA or Major League Baseball also pervades everyday workplaces. And often, employees are either not believed when they report it, or even if they are, it does not matter because the hostility or microaggressions, as they have been termed, are not anchored to an adverse action or part and parcel of actionable harassment. The difference is that in these lower-profile cases, no one cares. The highers-up who harbor these views are often high up enough on the ladder to be valued and thus retained, unscathed, by employers, but anonymous and uncared-about enough to elude public shaming or outcry. The law’s gaps and holes allow us to be selective about how and when we, as a society, can demand justice in the form of the censure or termination of those who express discriminatory, stereotyped, or just plain hateful beliefs, and that selectivity breeds inconsistency and randomness even more dramatic across workplaces than that decried by Professor Wasserman in his sports blog.
Is it time for the law to come into line with the wishes and expectations of society as evinced by the decrying of “discrimination in the air” that we have seen in the media in response to what is going on in professional sports? Or is it the case that if all of those who demand the firing of high profile racists or sexists wouldn't really want the law to require what they are demanding if they thought it through? It is wholly inconsistent for us to say that we demand the ouster of a team coach or manager on the basis of his sentiments unmoored from action, but that we wish for less glamorous, less known, but perhaps as well compensated bosses in the private sector to retain an absolute right to their private dealings and expressions, with no job consequences?
Thursday, September 18, 2014
Cameras and unintended consequences
In the rush to video record everything so we always know for sure "what happened," it is important not to lose sight of the risk of unintended consequences. Two studies, not directly involving police and body cams, illustrate the point.
In The Atlantic, Derek Thompson argues that one major cause of the drop in offense and scoring over the past 5+ years is introduction in 2006 of video systems to review and evaluate umpire performance in calling balls and strikes. The intended effect was to teach umpires the "correct" strike zone and produce more accurate umpiring (indeed, several umpires were fired when video showed their ball/strike calls to be inadequate). But that accurate strike zone was a lower strike zone, with more pitches around the batter's knees now being called strikes, causing pitchers to learn to throw low in the strike zone. Low pitches are harder to hit, especially with power, so they produce more ground balls and more strikeouts (Thompson says the increase in strikeouts since 2008--called and swinging--is entirely on pitches lower in the zone). As a result, this more-accurate zone produces less scoring. The problem is that this lower-scoring game is not as popular nationally (based on game-of-the-week ratings and national fan recognition of star players) as the power-driven game of the late '90s and early '00s. And there is your unintended consequence--MLB used video to successfully increase accuracy, but accuracy fundamentally changed the game. And arguably made it less popular.
On the Harvard Business Review Blog, Ethan Bernstein (a professor in the B-school) argues that the increase in transparency that video brings may stifle worker creativity. He explains that "[k]nowing that their managers and others will closely evaluate and penalize any questionable recorded behavior, workers are likely to do only what is expected of them, slavishly adhering to even the most picayune protocols." In an article, Bernstein found such lack of creativity in assembly-line workers, who avoid potentially useful time-saving methods in favor of doing everything precisely by the book. And while supportive of body cams, Bernstein is concerned that they will have a similar effect on law enforcement.With respect to public officials such as police (the people who will be wearing cameras), official immunity (especially qualified immunity) is driven by similar concerns for over-deterrence. Officials enjoy immunity so they can exercise their learned judgment and discretion vigorously; immunity also encourages creativity in job performance that may be beneficial. We do want officials to play it overly safe, avoiding any risk of liability by steering so far away from the constitutional line, where doing so may leave significant performance and enforcement gaps.* Perhaps we should at least be aware that, in equipping officers with cameras, we may be creating the same disincentives that immunity was designed to eliminate--officers will play always play it "safe" and steer clear of the line for fear that, even if not unconstitutional or unlawful, their behavior "looks bad" to the people who are going to see the video and reach conclusions based on nothing more than the video. Bernstein's solution is to promote video and transparency in the use of body cams, but to create some "zones of privacy," in which video is used for education and training rather than punishment, thereby providing officers the needed "breathing space."
* I would argue that current qualified immunity strikes the wrong balance, too heavily weighting over-deterrence at the loss of accountability. But I recognize that both need to be taken into consideration.
The point is that police body cameras are as likely to produce unintended consequences as video in baseball or video monitoring of UPS drivers and assembly-line workers. Those unintended consequences must be considered and addressed by departments in establishing careful and clear rules and policies for camerause. And they should ring as another reason to treat cameras as one good idea, not as a complete solution.
Wednesday, September 17, 2014
Happy Constitution Day--Some Thoughts on Constitutional Issues in Health Law
As readers of this blog already know, today is Constitution Day. An occasion mandated by Congress that requires every institution of education receiving federal funding (which includes nearly all colleges and universities) to present some sort of "programming" related to the Constitution. In the context of suggesting that it may be an Unconstitutional mandate in regard to k-12 schools, Slate offered a history of where this idea came from and how it became law.
Since our TTU Health Sciences Center is a separate entity from TTU University, it is required to have its own, separate Constitution day event and it's been my honor as an adjunct faculty member to give the "Constitution Day Address" since the law took effect in 2004. At the beginning, it was an interesting challenge because, of course, the word "Health" appears nowhere in the Constitution. But what started as a service project turned into more as I developed a course for the law school based on one taught first by Maryann Boblinski at the University of Houston (now dean at the University of British Columbia) on Constitutional Issues in Health Law (and yes, this extends far beyond Obama care) to capture topics like First Amendment Issues in Prescription Drug Off-Label marketing, Entitlements, and, of course, the Right to Refuse Treatment, Non-Right to Physician suicide issues that get covered in a traditional bioethics class. Last year we looked at (and re-enacted the oral argument from) Hobby Lobby and this spring will focus on Halbig v. Burwell.
There have always been Constitutional issues in health care and fine constitutional work done by health law academics [more name checks to come--but to make an incomplete list of some giants, Sandy Johnson, Marshall Kapp, Diane Hoffman, Karen Rothenberg, Judith Daar, Alan Meisel, Paul Lombardo, Fran Miller, Rebecca Dressler, Mark Rothstein, Lori Anderson, Tim Jost and Mark Hall(now I really need to stop--the danger always in starting to list names is to leave people out) but --but it was the intense attention brought by the Obamacare Constitutionality cases (that in my opinion had almost nothing to do with health care, but that's another post) that has attracted interest both locally (last year I had 11 students, this spring 30) and more broadly. I've been working with my research assistant to put the course material into a package that can be used by others interested teaching a similar course--and who knows, maybe someday a book.
Happy Constitution Day,
Tuesday, September 16, 2014
Scientific misconduct and the First Amendment
This proposal to make scientific misconduct a crime would seem to raise serious First Amendment problems, certainly under the Kennedy plurality in United States v. Alvarez. If false statements are not categorically unprotected, regulations must survive strict scrutiny, and counter-speech is always available, it seems to me that any attempt to regulate false scientific results are as vulnerable as the ban on false statements about military service. Interestingly, such a criminal prohibition might fare better under the squishier balancing proposed by Breyer's Alvarez concurrence, given the more tangible harms from false scientific research (Andrew Wakefield, anyone?). But I do not think receipt of salary from the university should matter; we do not prosecute people for not doing their jobs well, even intentionally. And to the extent a scientist receives grant money requiring honest research and produces false results, charges of fraud or false monetary claims already should be available.
Friday, September 12, 2014
Federal control of all police prosecutions?
Having St. Louis County Prosecutor Robert McCulloch decide whether to prosecute Darren Wilson in the shooting death of Michael Brown raises several concerns, notably related to his comments and actions during the Ferguson protests/riots (depending on your perspective) and a generally poor track record with such cases. But McCulloch and the question of a Wilson prosecution illustrate a general problem for even the best-of-faith DAs having to prosecute local police officers. The relationship is too close and often too cozy. Alternatively, the decision to pursue charges against one officer may harm a prosecutor's relationship with the police going forward, with negative consequences to law enforcement.
But this seems like the wrong solution to the problem: Moving charging decisions exclusively into the hands of federal prosecutors, apparently even for state prosecutions in state court. The author extrapolates from the successful federal prosecution of Rodney King following his state-court acquittal; it "would have been more efficient and confidence-inspiring, however, if the federal lawyers had been in charge from the start."First, the problem in the King case was not with the county prosecutor's office, which brought and vigorously pursued state charges. The federal government (and federal lawyers) became involved only after the jury acquitted and only pursuant to specific policies governing successive prosecutions. The federal government never would have gotten involved (efficiently or not) if the state jury had gotten the case "correct" (as that is commonly understood in that case). So to jump from an (arguably) erroneous acquittal in King (or in a lower-profile, non-death case such as this one, that just shows how hard it is to convict cops even in the most-vigorous prosecution) to a blanket condemnation of the ability or willingness of all state prosecutors to prosecute police seems extreme. Similarly, it is extreme to go from one arguably conflicted prosecutor in Ferguson to that same blanket condemnation.
Second, how are federal prosecutors competent or appropriate to make charging decisions under state law? I guess the argument is that they are smart lawyers who can figure it out. But federal prosecutors prosecute federal crimes, not state crimes, leaving them with no special knowledge of the law and procedure of that state (or even any knowledge the law of that state--an AUSA need not be a member of a local Bar). This will be exacerbated if the decision is taken on not by the US Attorney Office for that district, but by Main Justice. So in gaining "independence," we potentially lose expertise in the applicable law.
So this proposal makes sense only if the idea really is that police shootings should be prosecuted exclusively as federal civil rights violations, never as state crimes (such as murder or attempted murder or aggravated assault). That certainly resolves the efficiency concerns--everything goes straight to federal prosecutors, federal substantive law, and federal court, and we need never wait around to see what state officials do or what happens in state court. But it comes at the expense of some federalism considerations. I am no big believer in federalism, but an across-the-board assumption that crimes should go automatically and exclusively to federal law--not an as one option but as the only choice--seems excessive. Which is not to say federal prosecution is n0t appropriate in many of these cases, including in the Brown shooting; only that it should not be the sole option. I also wonder if § 242, which requires specific intent to deprive a person of their constitutional rights, can be proven in many of these shootings. Finally, there might be resource limitations preventing the federal government from investigating and prosecuting every single police shooting. All of which means the net result could actually be fewer prosecutions or convictions against police.
The federal-prosecutor proposal unfortunately distracts from some good ideas in the piece, namely requiring that police shootings be investigated by a special prosecutor brought in from another county. Better still, I would argue, bring in the state attorney general, which can better (not perfectly, perhaps) bring distance from all local passion and politics, while retaining expertise in state law and state prosecutions.
Oddly, Levine points to the George Zimmerman prosecution as a positive example in which a special prosecutor was brought in after the local prosecutor refused to charge. Of course, Zimmerman was acquitted, in part because the special prosecutor overcharged and generally put on a terrible case. Moreover, Zimmerman was not a police shooting. So it appears Levine really is arguing that no local prosecutor should ever handle a high-profile or controversial case. But if those cases also should be taken from them, then why have local prosecutors at all--just to handle cases no one cares about?
Thursday, September 11, 2014
Is Hobby Lobby a Precedent on Jurisdiction?
Erin Morrow Hawley has written a fascinating short piece entitled “The Jurisdictional Question in Hobby Lobby.” Hawley’s basic claim is that all nine Justices in Hobby Lobby made “a serious mistake” in failing to address, much less mention, a jurisdictional problem. This incident calls to mind the Court’s controversial rule against ascribing precedential force to implicit jurisdictional findings.
Here’s Hawley’s argument in a nutshell. Under the Anti-Injunction Act (AIA), federal courts lack jurisdiction to hear challenges to taxes unless the challenger has already paid the tax. In the challenge to the Affordable Care Act a couple years ago, the Court said that, despite the AIA, it did have jurisdiction to hear a challenge to the Act’s mandate. Why? Because the Act expressly called the mandate a “penalty,” not a “tax.” Hawley argues that, under the reasoning of the healthcare case, the law at issue in Hobby Lobby should have been deemed a tax for AIA purposes. Why? Because this time Congress did call the provision at issue a “tax.” Therefore, AIA's jurisdictional rule applied, and the Hobby Lobby challengers should have had to pay the tax before filing suit. Yet not a single Justice in Hobby Lobby raised this arguably fatal jurisdictional problem.
How could this have happened? Hawley outlines possibilities that could be placed into three categories. First, the Court might have had a secret theory for why the AIA posed no jurisdictional bar. Second, the Court might have just missed the issue. Finally, the Justices might have had long-term strategic reasons to sweep the problem under the rug.
These three types of explanation aren’t mutually exclusive, and a combination of them may provide the best guess for what happened. When Hobby Lobby reached the Court, the AIA issue wasn’t front and center, as it had been in the healthcare case. Instead, the Government—which is normally vigorous in raising jurisdictional points—didn't press the matter. This meant that a Justice who did notice the issue would have to overcome a lot of inertia to make it into a big deal. And for what? The majority probably didn’t want to be distracted by an issue that hadn’t been briefed. And if the dissenters had pressed the AIA, then the majority would likely have declared the AIA to be non-jurisdictional: as Hawley argues—both in her piece and in an amicus brief she filed in Hobby Lobby—moving the AIA into the non-jurisdictional column would have been consistent with other recent cases. Or perhaps the majority would have followed the decision below in construing the challenge as a claim against a regulatory mandate, not the tax associated with it. But all this is just speculation. As Hawley notes, we “may never be certain why” the Court didn't address the AIA.
Hawley’s argument calls to mind a decade-old Supreme Court case raising similar issues. In Hibbs v. Winn, the Court reviewed the AIA’s cousin for state taxes, the Tax Injunction Act (TIA). Per Justice Ginsburg, the Court found no TIA bar in part because: “In a procession of cases not rationally distinguishable from this one, no Justice or member of the bar of this Court ever raised a [TIA] objection that, according to the petitioner in this case, should have caused us to order dismissal of the action for want of jurisdiction.” Justice Stevens concurred to argue that Congress had acquiesced in the “procession of cases” that Ginsburg alluded to. In sharp contrast, Justice Kennedy and three of his colleagues would have found a TIA bar, despite the Court’s “procession” of silent decisions. For these dissenters, “our failure to consider a question hardly equates to a thing’s being decided.” Thus, the Court’s earlier “exercise of federal jurisdiction does not and cannot establish jurisdiction.”
In light of Hibbs, it’s interesting to wonder how the Roberts Court would deal with Hawley’s argument, if it were to arise in the future. On the one hand, Hobby Lobby is just one decision—hardly a “procession”—so perhaps even Justice Ginsburg would not view its silence as evidence of the AIA’s scope. On the other hand, the Hibbs dissenters were all part of the Hobby Lobby majority and so might be reluctant to suggest that they had previously issued an ultra vires decision of such magnitude.
The big-picture lesson here is that doctrinal arguments based on precedential silence are generally unreliable. Instead of supporting whatever point you might want to make, a lacuna in a judicial opinion—even a Supreme Court opinion—could just be a blunder. As the Court itself put it almost a century ago: “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”
And it can take quite a bit for an issue to be “brought to the attention of the court.” In Hobby Lobby, for instance, the lower-court opinions discussed the AIA at some length, finding that it did not apply. In addition, Hawley's amicus brief in Hobby Lobby argued that the “first and foremost” reason for finding no AIA bar was that the AIA “is not jurisdictional.” With so much agreement that the AIA posed no obstacle, albeit for different reasons, the Court let the issue slip by.
The next time someone argues that a silent court must have had a particular point in mind, remember Hawley and Hobby Lobby.
The above is cross-posted from Re's Judicata.