Wednesday, July 10, 2013

A Missed Opportunity: Cert. Grant in Air Wisconsin v. Hoeper

In June the Roberts Court granted certiorari in its first libel case, Air Wisconsin Airlines
Corp. v. Hoeper
, __P.3d__, 2012 WL 907764 (Colo. 2012), cert. granted __U.S__
(June 17, 2013). For a media lawyer, this development should be exciting. Unfortunately the Supreme Court granted certiorari limited to a narrow question of relatively little relevance to the media. Here's the story. 

In Hoeper an employee of Air Wisconsin Airlines informed the Transportation Safety Administration that an Air Wisconsin pilot was a possible threat and might be unstable. Earlier in the day, the pilot had failed a flight simulation test and had lost his temper, shouting and cursing at Air Wisconsin employees conducting the test. Air Wisconsin previously had stated it would fire the pilot if he failed the test. After the pilot’s outburst, employees of Air Wisconsin discussed his behavior and the fact that a TSA program allowed him to carry a weapon on an aircraft. An employee then reported the pilot to TSA as mentally unstable, potentially armed, and disgruntled over having been fired that day. The pilot sued for defamation.

Air Wisconsin moved for summary judgment based on the ATSA immunity provisions, but the trial judge denied the motion on the grounds that “the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.” After rejecting the airline’s claim of immunity, the jury found its statements to TSA were defamatory and made with actual malice. The trial judge entered the jury’s verdict of $1.4 million, and the airline appealed. A Colorado court of appeals affirmed, holding that the jury’s finding of actual malice was supported by clear and convincing evidence, and that statements at issue were neither opinion nor substantially true.

The Supreme Court of Colorado affirmed. Although the trial court erred in “submitting the immunity question to the jury” rather than determining the question as a matter of law before trial, the Colorado Supreme Court held that the error was harmless because Air Wisconsin’s statements were not entitled to immunity. Under the ATSA, an air carrier is not entitled to immunity for reporting a security threat to TSA if the report is made with knowledge or reckless disregard of its falsity. The Colorado Supreme Court determined “based on the record evidence” that Air Wisconsin’s defamatory statements were made with reckless disregard as to their falsity. Indeed, the court found that clear and convincing evidence supported the jury’s finding of actual malice. The court also determined that the statement that the pilot was “mentally unstable” and thus a threat to airline security was not a protected opinion but instead implied a false assertion of fact. The court found “substantial and sufficient” evidence to support the jury’s determination that the statements were false.

Three justices, dissenting in part, contended that the court’s opinion “threatens to undermine the federal system for reporting flight risks.” The dissent contended that the air carrier’s statements about the pilot were substantially true, because the pilot had indeed had an angry outburst during a training session and was facing termination at the time Air Wisconsin employees reported him to TSA. According to the dissent, Air Wisconsin thus was entitled to immunity as a matter of law.

Obviously the scope of air carrier immunity under the ATSA is an important question, and a narrow interpretation of that immunity might deter air carriers from reporting employees who pose threats to air safety to the TSA. From a media lawyer's perspective, the case raises another important question, and one with which lower courts have struggled: Must courts engage in independent appellate review of jury determinations of falsity in defamation cases involving matters of public concern?  The Supreme Court long ago held that courts must engage in independent appellate review of the jury's actual malice determinations, and actual malice must be established with "convincing clarity." See Bose; Sullivan. "Actual malice," of course, is a term of art meaning knowledge or reckless disregard of falsity. Because the actual malice determination is so closely linked with the falsity issue, some but obviously not all lower courts have assumed that they must independently review jury determinations for "clear and convincing evidence" of falsity. Indeed, the Reporter's Committee for Freedom of the Press filed an amicus brief in support of Air Wisconsin's petition for certiorari, urging the Court to take the case to resolve the uncertainty among lower courts regarding whether independent appellate review of falsity determinations is required.

Alas, the Supreme Court granted cert limited to the question whether a court may deny an air carrier statutory immunity under ATSA for reporting an employee as a threat, without first determining that the air carrier's report was materially false. As documented here, the Roberts Court has shown little interest in addressing the concerns of the Fourth Estate, and its limited grant in Hoeper arguably continues that trend.


Posted by Lyrissa Lidsky on July 10, 2013 at 11:22 AM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (0) | TrackBack

Friday, July 05, 2013

Justice Kagan for Emperor

If you're working today, then here's a brief respite: an awesome interview Elena Kagan did recently with Jeff Rosen at the Aspen Ideas Festival. (H/t: Garance.)

(She indicated that she reads Scotusblog, Volokh Conspiracy, and How Appealing, and some other things, including things law professors write. I take that as code for her devotion to reading Prawfsblawg too. So in case she's reading, hope you're enjoying your summer, Madame Justice.)

Yes, I heart Elena.

Posted by Dan Markel on July 5, 2013 at 11:41 AM in Article Spotlight, Blogging, Constitutional thoughts | Permalink | Comments (1) | TrackBack

Thursday, July 04, 2013

When Police Question Young Suspects

Two years ago, Justice Sotomayor delivered the opinion of the Court in JDB v. North Carolina, an important decision and one to which I had a personal connection.  When I had been practicing in the juvenile delinquency courts of North Carolina for only a year, UNC's Juvenile Justice Clinic was appointed to represent a young man who was the co-defendant to JDB, a 13-year-old special education student at one of our local middle schools (the one my older daughter currently attends).  Weeks earlier, the Chapel Hill juvenile police investigator at the time, DiCostanzo, had been stymied from questioning JDB at his home about a string of neighborhood burglaries (JDB's grandmother, who was his legal guardian, had not allowed it), so DiCostanzo went to Smith Middle School to talk to the boy there.  DiCostanzo had the school resource officer (a uniformed cop on detail to the school) take JDB out of his social studies class and bring him to a small conference room where they were joined by the assistant principal (the school disciplinarian) and another adult who was an administrative intern.  

Long story short -- the adults closed the door and began questioning JDB who initially denied any involvement in the crimes, but after they told him to "do the right thing" and threatened to place him in juvenile detention, he confessed.  Because DiCostanzo et al. didn't consider the questioning to be custodial, JDB's grandmother was never contacted (which was required for custodial interrogation of juveniles under the NC Juvenile Code), and he wasn't given Miranda or told he could leave, make a phone call, etc.  At the motion to suppress hearing in the local juvenile court, I sat and watched JDB's public defender expertly cross-examine DiCostanzo, clearly showing that as a result of JDB's age/youth/student status, no one in his position would have felt free to leave the conference room -- or, for that matter, challenge two police officers and school administrators.  Although I was angry when the suppression motion was denied, I was hardly surprised, as I had become long resigned to the fact that common sense rarely prevailed in juvenile court.  

About six years later, I paid the fee to join the USSC bar, drove up to D.C., and sat several rows away from the justices when the case was argued.  At one point, Justice Breyer asked with no small degree of sarcasm, "And what is the terrible thing, the awful thing that has to happen if the officer isn't sure whether this individual thinks he's in custody or not?  Suppose the officer just isn't sure.  What terrible thing happens?"  He paused and then said, "The terrible thing that happens is you have to give them a Miranda warning."  To which Justice Scalia responded, ""We don't want Miranda warnings to be given where they are unnecessary because they are only necessary to prevent coercion, and where there's no coercion, we want confessions, don't we?" To emphasize his point, he added, "It's a good thing to have the bad guys confess that they're bad guys, right?"  Breyer, of course, recognized the irony -- that giving Miranda has a negligible effect on most interrogations, particularly if the suspect is a 13-year-old boy questioned at school.  In contrast, Scalia didn't want criminal suspects -- no matter their age -- to have any perceived advantage.

I was heartened when the decision came down several months later and the liberal justices -- joined by Justice Kennedy -- reversed the denial of JDB's suppression motion (which the NC appellate courts had affirmed) and remanded the case to address whether interrogation was custodial taking into account the boy's age at the time.  In relying on Roper v. Simmons (ending the juvenile death penalty) and Graham v. Florida (ending JLWOP for non-homicide offenses), the Court held that "officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult." As can happen with even Supreme Court decisions, no action in the North Carolina courts has yet to be taken, as JDB is no longer a juvenile and perhaps feels no great incentive to pursue the matter.

I've been thinking of all of this of late, as I learned from Josh Tepfer and Steve Drizin of Northwestern Law's Center on Wrongful Convictions of Youth (CWCY) about several recent instances of interrogations of teenagers in Tennessee and elsewhere in which confessions were given in homicide cases only after the police made extreme threats, including promises that the suspect would face the death penalty if he didn't confess (a legal impossibility given Roper) or that the suspect would be raped in prison on a daily basis if he didn't confess.  The cases have been resolved in a variety of ways; in two matters the motions to suppress were supported by strong amicus briefs from CWCY, which led to favorable plea deals for the juveniles; in the case of 17-year-old Codey Miller, the confession was suppressed by the judge who called the interrogation practices of the police "mind-boggling"; in the case of 14-year-old Jonathan Ray, the confession was also suppressed, though the case has not yet been resolved; in the case of 19-year-old Carlos Campbell, the motion to suppress the confession was denied and it's unclear whether there will be an appeal; and in a recent decision by the Kentucky Supreme Court, the conviction of 17-year-old Garrett Dye was reversed and a new trial ordered after holding that his confession was involuntary.  

Because the fact patterns in these cases are clearly different than JDB, as the parties agreed that police questioning was custodial and Miranda warnings were given, the legal issues raised are also somewhat different (Was the Miranda waiver involuntary?  Was the right to counsel invoked?  Was the confession coered?), but the critical questions remain the same:  should the rules that apply to the questioning of juveniles, and the standards by which courts review interrogations of kids, be different than those for adult suspects?  If so, what should be different?  The principle reform has been mandatory recording (either audio or video) of the interrogations of suspects, whether juveniles or adults, something that has been successfully adopted in 17 states and Washington, D.C., either by legislatures or courts.  Mandating that juveniles be given counsel prior to custodial interrogation is a proposal that has yet to gain much traction (likely for pragmatic as well as philosophical reasons), with states preferring to provide "parental notification" before police can question youth, which rarely helps as most parents are as unfamiliar with how best to handle these situations as their children.  Given that most police officers receive fewer than 10 hours of juvenile interview and interrogation training over their entire careers, another proposal is that law enforcement should be regularly trained consistent with the best practices established by the International Association of Chiefs of Police and be directed not to use aggressive or deceptive strategies when questioning minors.  

Your thoughts?  Please share in the comments. 


Posted by Tamar Birckhead on July 4, 2013 at 01:55 PM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (9) | TrackBack

Monday, July 01, 2013

Sneak and Peek

Thanks to Dan & Co for having me.

My main topic for the month:  Sneak and Peek searches, aka Delayed Notice Search Warrants, aka Black Bag jobs.

What’s a sneak and peek search?  Simple:  the police conduct a covert search of a home or business when the occupant is away.  Sometime later, they give the occupant notice of the search—maybe days, weeks or months (today, 90 days is most common).

Covert government surveillance is all the rage these days, but most of the discussion focuses on high-tech surveillance that involves packet switching and $2 billion NSA data centers in the Utah desert.  Sneak and peek searching is old school—any fool with a crowbar can break into your house while you are gone and look through your stuff.  Even the smug Amish have to worry about the FBI secretly looking through their handcrafted cabinets. 

So check this out—the government has discovered that "breaking into people's homes while they are away" is a very useful tool.  There's been a (largely unnoticed) explosion in sneak and peek searches in the past 6+ years:

  Figure 1 Delayed Notice Search Warrants Issued

The chart is from my forthcoming article, Jonathan Witmer-Rich, The Rapid Rise of “Sneak and Peak” Searches, and the Fourth Amendment “Rule Requiring Notice,” 41 Pepperdine Law Review __ (2014), Figure 1, draft available here on SSRN.  (Data for FY 2012 will be available sometime this month; I'll share it with you when I have it; I'll bet anybody $37.33 that the number goes up not down.)

Back in 2005, in a speech at U. Richmond Law School, James Comey—President Obama’s nominee for FBI Director—said that “[w]e in law enforcement do not call them [sneak and peek warrants] . . . because it conveys this image that we are looking through your sock drawer while you are taking a nap.”  James Comey, Fighting Terrorism and Preserving Civil Liberties, 40 U. Rich. L. Rev. 403, 410 (2006). 

Ha ha!  What a ridiculous image!  Of course police do not do this while you are taking a nap.  You might wake up and discover them!  Otherwise, this is a pretty good description of a covert search—police secretly looking through your sock drawer, when you are away.  Police do not like that image.  It's alarming because it's accurate.

Here's what I will be doing in my posts this month:

1.  Giving a more detailed empirical description of the rapid rise of sneak and peek searching.

2.  Looking at the history of sneak and peek searching (aka "black bag" jobs).

3.  Arguing that notice is part of Fourth Amendment reasonableness, and so delayed notice warrants require serious Fourth Amendment scrutiny.  Most lower courts to date have rejected this proposition, at least in the context of delayed notice search warrants.

4.  Arguing that the current statutory regime is a total failure, and is facilitating the explosive growth in covert searching.

5.  Giving some solutions to limit the number of covert searches that can be done, while still preserving this tool for when it is really important.


Posted by Jonathan Witmer-Rich on July 1, 2013 at 10:12 AM in Constitutional thoughts, Criminal Law | Permalink | Comments (3) | TrackBack

Sunday, June 30, 2013

Adoptive Couple v. Baby Girl (3 of 4): On the Portrayal of Dusten Brown as a Deadbeat Dad

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here and part 2 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. Today’s post is about the case’s implications for how we think about fatherhood and parenthood.

As a matter of federal Indian law, it was easy to support Dusten Brown and the Cherokee Nation in this case. The more difficult question has been whether we would feel differently about the case if Indian law were not involved. Should we really have any sympathy for a deadbeat dad who didn’t do right by his child and then later changed his mind and tried to undermine the mother’s decision? But again the case is not so simple. Veronica’s parents were engaged when she was conceived. When he learned of the pregnancy, her father pressured her mother to get married even sooner. She broke off the engagement. Fighting over text messages, she gave him the choice between paying child support and relinquishing his rights. He chose relinquishment (he says he thought he was simply agreeing to give her full custody). He was stationed at Fort Sill and was preparing to deploy. He probably thought his ex would take better care of the baby (and would need full parental rights if he didn’t return from Iraq), and she seems to have made it clear she didn’t want him around. He had no idea she planned to give the baby up for adoption. 

He didn’t pay any child support or reach out to his child until she was four months old. His behavior during the breakup was rash and immature, and his failure to pay child support, help his ex through her pregnancy, and parent his daughter shouldn’t be applauded. It can be painful to feel like we are championing the rights of irresponsible fathers when we know all too well that the price of their mistakes falls on the mothers. But the dissenting Justices (including all the women) understood the complexity of this too:

In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much.

As soon as Brown found out about the pending adoption (it was arranged without his involvement, and he found out when he was served with papers days before he was to leave the country), he fought it. He got a lawyer. He indicated when served that he did not consent to the adoption. He sought a stay of the adoption proceedings. He tried to have Veronica placed with his parents while he was away, but the Capiobiancos wanted to keep Veronica while the courts considered whether to grant the adoption. Brown was overseas for more than a year, and he returned to court when he came back to continue opposing the adoption. This story, rather than Brown’s lack of interest in his daughter, explains why the adoption hearing took place when Veronica was two and had already been living with the Capiobiancos for most of her life.  

Biology v. Action

The Court seems to embrace South Carolina’s “biology plus” formulation for establishing paternity, reflecting the larger trend in family law towards preferring functional over formal family structures. “Biology plus” means that paternity is established with DNA and then outward signs of interest in the child, like paying for prenatal appointments, preparing a nursery, and so forth. Concern about Brown’s outward signs of commitment to fatherhood is odd because women aren’t held to the same standard during pregnancy and birth. Women who choose to carry a pregnancy full term aren’t required to pay for their appointments, prepare a nursery, and so forth to show that they deserve to keep a child; so long as they aren’t smoking, drinking, or doing drugs, commitment to being a parent is all assumed in the choice to deliver the infant. This is not to defend Brown for not pitching in financially at the outset: there is no denying the reality that most unmarried women do the bulk of care work and pay most of the expenses involved in having children. But we should be careful about how we frame fatherhood through ministerial duties. In other cases, biology reigns – biological parents can’t avoid paying child support (even if you’re a sperm donor for a lesbian couple), so why doesn’t biology matter in the same way here? As Justice Scalia noted in his dissent: “It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is ‘in the best interest of the child.’”

This isn’t about a blind allegiance to biology: valuing functional families has beneficial effects. Allowing the law to view function in concert with biology has served to help stabilize LGBT, single parent, and adoptive parent families. But adhering too closely to a functional model of parenthood, especially when the actions deemed most important involve the provision of material resources, may further weaken non-normative families. When functionality in the form of privilege outweighs biology, there is no room for the possibility that unquantifiable aspects in biological relationships bind people together. The questions raised about Brown’s parental fitness seem to be an opportunistic preference for the functional model of parenting over the biological. If biological parents with low income, poor educational attainments, and limited choices are held to a standard like Brown was, and they do not perform commitment to parenting in the way that white, middle and upper class parenting norms suggest is appropriate, will they be deemed unfit parents? 

Setting Standards for Fatherhood

It is understandable why some states treat an unmarried biological father’s financial and emotional contributions as different issues. The state seeks private financial support for children; a focus on financial support makes sense because a child will benefit from having more material resources. For many single mothers who have had to shoulder the care and keeping of children, having courts inquire into the biological father’s relationship with the child provides an avenue for preventing abuse and intrusion from a parent who in the past has neglected parental obligations and may not have the best interests of the child at heart. It may even make sense for financial contributions to stand as a proxy for an emotional commitment to parent a child. However, requiring financial support from unmarried men in lieu of recognizing other forms of parental contributions does not just neutrally value those different kinds of contributions to a child’s life. This restrictive viewpoint values financial support more than emotional carework and leads some men to believe that fatherhood is solely about providing financial resources. Another twist is that the norms for performing rightful fatherhood, often aligning with stereotypes about race and income level, may be impossible or repugnant to some men. As a feminist, I find it troubling when men are not held financially accountable for their children, but I find it equally troubling when men are discouraged from doing carework and relationship building. 

In this case, when the majority and the media talk about Brown, they give him very little room to do what mothers do all the time – change his mind. When non-Indian birth mothers who plan to relinquish children for adoption give birth, usually they have a time period, albeit a short one, right after delivery in which to change their minds. Rather than condemn Brown for his behavior during the pregnancy and first four months of Veronica’s life, the time lapse should be understood as a period in which he came to terms with his parental responsibilities. Although only anecdotal, my days in practice led me to believe delayed timeframes for unmarried fathers wasn’t uncommon. Without fanfare or major changes to statutory support guidelines, when an unmarried father who has not played any role in a child’s life appears before the court to establish paternity, judges simply add up the costs of prenatal care and delivery, divide it in half, and add that amount as back support to the regular support order. More importantly, Justice Sotomayor points out that ICWA gave Brown a statutorily protected right to change his mind “up to the time a final decree of adoption was entered” and the petitioners agreed with the South Carolina Supreme Court that Brown had never given valid consent for Veronica’s adoption. That returns us to the point where Brown’s status as a parent with any rights at all hinged on a functional performance of fatherhood that the majority determined Brown did not meet.  

What Does the Holding Mean for Brown and Other Indian Fathers?

Justice Sotomayor’s dissent highlights how the majority’s interpretation makes Indian parents without custody vulnerable to a confusing “illogical piecemeal scheme.” This case could be interpreted to reach Indian parents who have “embraced the financial and emotional responsibilities for parenting” but do not have custody. The majority’s view of fatherhood requirements provides a limited vision of fatherhood. Although the majority speaks in terms of custody, it is important to recognize that formal custody is only obtained when a father can and does perform according to mainstream norms and has the legal resources to attain custody if there has been a dispute with the birth mother. If this view is extended to other parents, communities that have historically been unable or unwilling to keep mainstream norms are especially vulnerable to losing their children to the other birth parent or to the state. But failure to adhere to mainstream parenting norms, or even a failure to parent perfectly according to anyone’s norms, doesn’t mean that they aren’t good parents or that their contributions should be devalued. An older, but still relevant, study about African American fathers’ contributions to family life is available here.

Matthew Fletcher hints here that Justice Breyer’s question, “Could these provisions [Section 1915(a)(1-3)] allow an absentee father to re-enter the special statutory order of preference with support from the tribe, and subject to a court’s consideration of ‘good cause?’” could help Brown. Justice Breyer’s concurrence, while not quite imagining the range of circumstances that unmarried Indian fathers could have, does give voice to the concern that the majority view is too restrictive. Whether the restrictiveness that gives him concern is specific only to unmarried Indian fathers or pertains to all unmarried fathers, he is not wrong that we should be concerned about the laws and social norms for defining unmarried parenthood as the rapidly growing number of people who are opting out of marriage doesn’t appear to be slowing.

Posted by Addie Rolnick on June 30, 2013 at 04:30 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.

Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger[] all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence  has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.

The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.

The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement. 

But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race  - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)  

Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?

That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.

Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack

Saturday, June 29, 2013

Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters

I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful. 

 Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.

What Exactly Is the Indian Child Welfare Act?

The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible. 

In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.  

The Facts

Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding”  - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.

This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.

How the Court Narrowed ICWA

It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her

(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)

The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.

For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked. 


Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack

Constitutional Avoidance in Baby Girl

After listening to the oral arguments in Adoptive Couple v. Baby Girl, I expected the final opinion or some separate writings to have a lot of discussion of constitutional law (perhaps through the lens of constitutional avoidance).  But I expected it to be about equal protection-- I expected hints that members of the Supreme Court thought that modern Indian law was highly troubling as a matter of disparate racial treatment, perhaps with further hints that some members of the Court would reconsider (or at least radically narrow) Morton v. Mancari

So in fact I was surprised to see absolutely none.  Justice Alito says of the dissent, in one sentence, "Such an interpretation would raise equal protection concerns, but the plain text of §§ 1912(f) and (d) makes clear that neither provision applies in the present context."  Justice Thomas's opinion (more on which in a second) contains only a footnote saying he won't reach the issues. ("I need not address this argument because I am satisfied that Congress lacks authority to regulate the child custody proceedings in this case.")  Based on where things seemed headed at argument, supporters of modern Indian law ought to regard this case as dodging a bullet. 

(For that reason I wholly disagree with Eric Posner's assessment that "the majority has laid the groundwork for a future equal protection challenge to Indian classifications and fortified its position that the equal protection clause bans racial preferences like affirmative action."  Maybe they will do so in a future case, but they haven't done so here, and if they do it, it will be in an opinion joined by Justice Scalia and not one joined by Justice Breyer.  Given Breyer's concurrence, why would he join an opinion that lays the "groundwork" that Posner suggests?)

That said, Justice Thomas's concurring opinion is astounding.  It's a surprising, radical rethinking of federal enumerated power over Indians, making the (expected) point that Thomas's narrow view of the interstate commerce clause implies a narrow view of the Indian commerce clause.  Basically, it's an inversion of the argument that Akhil Amar has made that early perspectives on the Indian commerce clause should demonstrate a broad view of the interstate clause.  But more than that, it also has an interesting and narrow reading of "Indian tribes," ultimately concluding that "the ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress — namely, the power to regulate trade with Indian tribes living beyond state borders."

For all of these conclusions, Thomas relies extremely heavily on Robert Natelson's Original Understanding of the Indian Commerce Clause, (and a little on Sai Prakash) although I can't tell for sure if Thomas's conclusions perfectly match theirs.  But Jacob Levy argues that Thomas has the original intent entirely backwards:

Thomas is right that the Indian Commerce Clause should not be read in the Lone Wolf/ Kagama way to grant plenary power over all Indian affairs. But he's so utterly wrong about the jurisdiction to which the clause applies that the conclusion ends up backward: he would grant plenary power *to the states*, and declare the clause a dead letter now that there is no part of Indian Country that lies outside state boundaries. There is simply no evidence that the Founders envisioned the extinction of Indian Commerce Clause jurisdiction and a complete transfer of power to the states.

I am not sure where I stand on all of this.  Levy's paper on Madison's drafting of the Indian Commerce Clause (and the material it contains) is enough to convince me that Thomas is going a little too fast here, and that the extreme version of the argument he seems to be sketching may be wrong as an originalist matter.  But I'm not yet sure exactly where Thomas or Natelson go wrong, if they do.  Thomas is plainly right to reject federal "plenary power" over Indians.  But are things like the end of the treaty era, or the Indian Citizenship Act relevant to federal power?  There I am less sure.

Maybe it is time to rethink the federal Indian power.  Or at least to figure out where it comes from and what it is.

Posted by Will Baude on June 29, 2013 at 03:04 AM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

First came OPM

That didn't take long. Not only has California begun issuing marriage licenses to same-sex couples but SCOTUSBlog reports that OPM has ordered federal agencies to provide federal spousal benefits to same-sex spouses of federal employees, thus triggering one of the first executive decisions that must grapple with the DOMA choice of law problem.  Lyle Denniston reads the OPM memo "to indicate that the benefits would be keyed only to the status of legal marriage of the employee, wherever it was performed and regardless of where they now live." 

That may be so, (and I assume Lyle has talked to folks in the executive branch who read the memo this way) but the memo itself is actually strangely cagey about this.  It simply refers to those "who have legally married" or "are in legal same-sex marriages."  Perhaps this is intended to assume that any marriage lawful in the place of celebration is a "legal marriage," but it is not obvious to me why. 

For example, suppose a couple lives in an anti-evasive marriage state, and travels to Iowa or Massachusetts to marry, without ever changing their residency.  It would be fair to say that as a matter of their domicile state's law, they have not entered into a legal marriage, but rather an illegal one.  So saying that the benefits will apply to all "legal" marriages just triggers the choice of law question -- what do you mean, "legal"?

If this is how the executive branch intends to deal with the choice of law question, I am dispirited.

[UPDATE: Chris Geidner: "'Yes, these benefits will be available to any Federal employee or annuitant who has a valid marriage license, regardless of their State of residency,' Thomas Richards, OPM director of communications, told BuzzFeed Friday afternoon."

I assume that "valid" means "valid" under license-state law, regardless of whether it is valid under other states' laws.]

Posted by Will Baude on June 29, 2013 at 12:08 AM in Constitutional thoughts | Permalink | Comments (9) | TrackBack

Friday, June 28, 2013

Congressional Power and the Reconstruction Amendments

Some folks (e.g., over at Balkanization) have been criticizing Shelby County for ignoring the Reconstruction Amendments and focusing excessively on the antbellum Constitution. I entirely agree with the normative premise that it's a mistake to ignore Reconstruction. (This is one of the reasons that Hugo Black's dissent in Katzenbach sounds so off -- the Declaration of Independence and the writings of James Madison are not obviously relevant to a case about the 14th and 15th Amendments.)

And yet I'm not sure that it's actually a fair criticism of Shelby County, which does repeatedly refer to the Fifteenth Amendment. To be sure, the opinion also spends a surprising amount of time dwelling on some elements of the original Constitution, and especially McCulloch. But that may not actually be the same kind of mistake as Hugo Black's.

Much of the scholarship and historical briefing that has defended a very expansive view of Congress's enforcement authority under the Reconstruction amendments, relies on the way that the framers of the Reconstruction amendments wrapped themselves in the Supreme Court's broad interpretations of Congressional power in McCulloch and Prigg. (By the way, Akhil Amar's superb America's Constitution: A Biography scores its first SCOTUS citation in the Shelby County dissent.)

Yet even McCulloch had its limits, such as the "great substantive and independent powers" language I've written about, and the "letter and spirit" language the majority invokes. So by relying on McCulloch, the majority may actually be in the ballpark of the type of Congressional power and deference envisioned by the Reconstruction amendments. Now perhaps the majority should have talked about Reconstruction more than it did. But if it had, which side would that have helped?

Suppose that Reconstruction had taken place in the wrong states, or that Reconstruction had continued for fifty years, and that it was no longer clear whether there was any continuing need for it in the originally reconstructed states. Skeptics of the Act might well suggest that at that point, the original Reconstruction power would provide only slim support for continued federal supervision.


Posted by Will Baude on June 28, 2013 at 11:23 AM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

Thursday, June 27, 2013

"Great Substantive and Independent Powers"

I realize that to most people it's not even the fifth-most-interesting case decided this week, but I was particularly surprised and pleased to see Chief Justice Roberts's concurrence on Monday in United States v. Kebodeaux.  I am not sure whether the majority was right about the actual question presented (federal power over sex offenders), but I do have substantial praise for the Chief's views of the Necessary and Proper Clause:

While the Necessary and Proper Clause authorizes congressional action “incidental to [an enumerated] power, and conducive to its beneficial exercise,” Chief Justice Marshall was emphatic that no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” [McCulloch.] ... It is difficult to imagine a clearer example of such a “great substantive and independent power” than the power to “help protect the public . . . and alleviate public safety concerns,” ante, at 8. I find it implausible to suppose—and impossible to support—that the Framers intended to confer such authority by implication rather than expression. A power of that magnitude vested in the Federal Government is not “consist[ent] with the letter and spirit of the constitution,” [McCulloch] and thus not a “proper [means] for carrying into Execution” the enumerated powers of the Federal Government,
U. S. Const., Art. I, §8, cl. 18.

Until very recently, the reference to "great substantive and independent power" in McCulloch has gotten shocking little attention.  But it's invoked in the Chief's controlling opinion in NFIB v. Sebelius, and I also discuss it at length in my article on federal eminent domain and the Necessary and Proper Clause.  Indeed, as I explain in the article, variations on that same idea were invoked during constitutional debates many years before McCulloch, and are part of the original meaning of the Necessary and Proper Clause.  The greater a power, the less likely it is that it can be found by implication.  (I use the terminology "great power" in part because Madison said "great and important power," and in part because "great substantive and independent" is a real mouthful.) 

In any event, it looks like the idea is increasingly relevant to at least one Justice's thinking about the Necessary and Proper Clause, so I'd encourage people to read my article. :) 

Actually, speaking of increasing relevance, you can find pieces of the same idea in the Court's opinion (also written by the Chief) in Shelby County.  In its discussion of McCulloch, the Court writes:

The dissent proceeds from a flawed premise. It quotes the famous sentence from McCulloch v. Maryland, 4 Wheat. 316, 421 (1819), with the following emphasis: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Post, at 9 (emphasis in dissent). But this case is about a part of the sentence that the dissent does not emphasize—the part that asks whether a legislative means is “consist[ent] with the letter and spirit of the constitution.”

Now compare the last sentence of that blockquote with the one above from Kebodeaux.  In Kebodeaux, the Chief suggests that under the "letter and spirit of the constitution," an unenumerated "great power" can't be implied; it has to be granted explicitly if at all.  The repetition of that passage in Shelby County suggests that a similar idea is at work.  And in any event, you can see a similar concept throughout the opinion.  While Congress has broad enforcement power under the Fifteenth Amendment, the Court argues that the extraordinary and unusual nature of the Section 5 remedy make it harder to sustain under the general grant of McCulloch-like enforcement authority under the Reconstruction Amendments.

I suspect we'll see more of this next term.

Posted by Will Baude on June 27, 2013 at 03:02 AM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Wednesday, June 26, 2013

What's next in California?

Right or wrong (I believe wrong), Hollingsworth  finds no standing to appeal to either to the court of appeals or SCOTUS, vacates the Ninth Circuit decision invalidating Prop 8, and reinstates (or at least sets the stage for reinstating) the broad injunction issues by Judge Walker in the Northern District of California.

So what happens now?

The first step is for the Ninth Circuit to lift the stay on the district court injunction, which it will do when the case is back in its jurisdiction, as part of an order dismissing the appeal for lack of appellate jurisdiction. California Attorney General Kamala Harris announced that she would immediately ask the court of appeals to lift the stay.

But then we must figure out what, exactly, the injunction does. Judge Walker wrote: "Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official [state and county] defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8."

The case was not brought as a class action, but only on behalf of two couples who sought marriage licenses in two counties (Los Angeles and Alameda). So the most appropriate injunction would prohibit enforcement of Prop 8 (i.e., would require issuing licenses) only as to those two couples and only by the two county clerks and the state officials named as defendants. On the other hand, Walker's injunction is written to be much broader, prohibiting all enforcement by the named defendants, and those subject to the named defendants control or supervision, against all persons. Indeed, Justice Kennedy described the injunction as "statewide" (hard to know if he was happy or unhappy with that).

Even if the injunction is erroneously overbroad, it is not clear what could be done about that. An overbroad injunction could be the basis for an FRCP 60(b)(6) Motion to Modify, as"any other reason" justifying relief from the injunction. But who could or would make that motion? The logic of Hollingsworth is that the initiative proponents lost all standing once the district court entered judgment (a judgment which does not bind or compel the proponents to do or not do anything). And it is unlikely the named defendants would do so (since they wanted to lose the case and be subject to the injunction in the first place).

The difference affects how the next couples would proceed. If the injunction does not apply statewide or to all couples, the next couple denied a license would have to file a new federal lawsuit. In LA or Alameda, they probably could use the Perry injunction for preclusive effect; in other counties, Any couple could use the injunction as persuasive authority [ed: corrected]. On the other hand, if the injunction applies statewide, any couple denied a license enjoys the benefit of the existing injunction; they could go straight to Judge Walker (or whichever other judge is supervising the injunction, since Judge Walker retired) and obtain the license through a Motion to Enforce and a threat of sanctions against the state or county officials who refused to grant the license.

AG Harris potentially mooted that issue, concluding in an opinion letter to the governor (dated June 3 and written in anticipation of this ruling) that the injunction does apply statewide. Because the plaintiffs brought a facial challenge to Prop 8, its invalidation means there is no possible constitutional application of the law for the named defendants as to any applicants (although this reasoning does not seem quite right to me). Further, she concludes that all county registrars and clerks are under the control and supervision of the Director and Deputy Director of the Department of Public Health (both named defendants) and therefore qualifiy as "other persons in active concert or participation" with parties who are bound by the injunction under FRCP 65(d)(2)(C). She insists that all clerks be given notice of the injunction and of her conclusion that they are subject to it, which a DPH official did today (although telling clerks to wait until the Ninth Circuit lifts the stay). In other words, high-ranking state officials insist that, as soon as the Ninth Circuit lifts the stay, California is back where it was in the four months in 2008 prior to the passage of Prop 8, when same-sex marriage was legal throughout California.

But what happens if a county clerk who was not a named defendant continues to believe that Prop 8 is constitutionally valid (e.g., the Clerk in Imperial County, who tried unsuccessfully to intervene in the district court) and disagrees with Harris' determination that he is subject to the injunction? One possibility is that this unknown clerk, being bound by the injunction, could now make that FRCP 60 motion to modify the overbroad injunction. Another is he could refuse to grant a license to a couple, then oppose the subsequent motion to enforce  by challenging the scope of the injunction (as to him and as to the new license applicants) and whether he is subject to control or supervision of DPH. Of course, because the scope of DPH's control or supervision is a state law issue, the district court may have to certify that question to the California Supreme Court. Another possibility is that DPH has the power to  remove a recalcitrant county clerk or to directly intervene to override the actions of a county clerk who fails to follow commands (akin to the power some state attorneys general have to supersede the actions of county-level prosecutors); whether DPH has such power is also a question of California law.

All of which is to say that SCOTUS's decision leaves in place a broad Fourteenth Amendment ruling on the constitutionality of Prop 8. But it also leaves all sorts of procedural issues, federal and state, for the lower courts to work out.

Update: Marty Lederman gives his views of what happens next, closing on several additional practical points worth highlighting. First, if a couple did have to litigate anew, they'd almost certainly win, having not only the Walker injunction as authority, but also the language in Windsor. Second, Marty doubted any clerk would bother refusing to issue licenses, because it simply will not be worth the bother or effort and ultimately will fail. Third, as a result, once the Minnesota law takes effect on August 1 and once the stay is lifted, same-sex marriage will be legal in 13 states and D.C.

Posted by Howard Wasserman on June 26, 2013 at 11:48 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (29) | TrackBack

Respectfully, up yours!

I noticed that Scalia's dissent in Windsor was not respectfully offered (color me shocked!) but Alito's was. Kennedy charmingly referred to his dissent in Perry twice as being respectfully offered, no doubt out of some awareness of the fragility of coalitions in that case.

So, for those of you Kremlin-watchers curious about the mores of SCOTUS denizens, here's a question: do you think the number of dissents offered "respectfully" has increased under CJ Roberts? Declined? Is Scalia the principal Justice who offers dissents disrespectfully or non-respectfully? Anyone want to run the numbers? Ross Davies, this is a Green Bag piece in the making!

It would also be interesting to see if there's any change in the pattern of dissents being respectfully tendered before and after Bush v. Gore.  One thing that seems impressionistically clear to me: despite the sound and fury following cases like Bush v. Gore or even the ACA cases from last year, my sense is that the Court proceeds to do its business w/o much damage let alone influence from earlier cases overhanging. Life moves on. As it should. Unless it doesn't--I'm open to seeing the data :-)

Posted by Dan Markel on June 26, 2013 at 05:16 PM in Constitutional thoughts, Current Affairs, Dan Markel | Permalink | Comments (4) | TrackBack

What is Scalia talking about?

Justice Scalia spends the last part of his standing discussion in Windsor criticizing Justice Alito's separate dissent arguing that BLAG (although not the United States) had standing to appeal to the Second Circuit and to SCOTUS. Scalia argues that this opens the door to Congress suing the executive in federal court for declining to enforce federal law (or for enforcing it inadequately). Alito certainly does not say this or even imply it (at least on my reading of that part of his opinion, which I've now done five times). Does it necessarily follow from allowing Congress to defend a law when the President declines to do so? Scalia's vision is appealing: only the executive enforces and defends federal law and if he fails to do so, the law goes unenforced/undefended and Congress is left to non-litigation means (impeachment, cutting off funds, etc.) to persuade/cajole the President to act.

True, there administrative problems that could result if Congress can trump executive litigation/enforcement decisions with which it disagrees. But it seems to me that Alito's theory of standing is, at the federal level, precisely what the majority in Hollingsworth (written by Roberts, joined by Scalia) demands when the state executive declines to enforce or defend: BLAG is part of an elected body, part of the government, and subject to the popular and electoral check of The People. That same theory should work the same way at the federal level.

Posted by Howard Wasserman on June 26, 2013 at 03:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Sex, morality, and relationships

Cynthia highlights Justice Kennedy's emphasis on DOMA's effect on children, particularly a sentence emphasizing how DOMA "humiliates" children of same-sex couples. But look at the immediately preceding sentence on p. 23: "The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify."

So the Constitution protects moral and sexual choices, but the State protects the relationship. Even though the relationship logically arises from those constitutionally protected moral and sexual choices. Is it logically possible to not take the next step to conclude that the Constitution also protects the relationship?

Posted by Howard Wasserman on June 26, 2013 at 02:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Federalism and DOMA

I've already seen some confusion about whether it's fair to describe Justice Kennedy's opinion in Windsor as relying on "federalism." Compare, for example, the majority opinion ("it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism") with the Chief Justice's dissent ("I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.") with Scalia's ("Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of the 'usual tradition of recognizing and accepting state definitions of marriage' continue.  What to make of this?").

It seems to me that the answer is: Windsor is an equal protection decision to which federalism is relevant, both because it shores up the interest on Windsor's side and it diminishes or eliminates many of the interests on the federal government's side.  In this way, Kennedy's opinion is in keeping with Judge Boudin's opinion for the First Circuit in Gill, which did something similar, and is like the arguments I discuss at the beginning of my DOMA article.

The confusion arises from some terminological confusion that began at oral argument.  One "federalism" argument was the one that Kennedy and Boudin subscribe to-- that federalism influences the strength of the equal protection claim.  But there was also a very different federalism argument made in an amicus brief for Ernie Young and other federalism scholars-- that DOMA is unconstitutional as a matter of enumerated powers and state sovereignty, independent of the discrimination issue.  That question, Justice Kennedy declines to speak to. ("It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.").

One other thing while I'm at it.  Today's scenario -- DOMA unconstitutional, state laws intact for now -- means that same-sex couples and the federal government now have to confront a series of complicated and difficult choice of law questions (as Justice Scalia points out in dissent, and as I wrote about last year).  The immediate consequences will depend a lot on what the executive branch does (and especially whether it tries to coordinate its agencies' different positions on choice of marriage law) and how the courts react.  As Justice Kennedy said in explaining why the Court needed to decide this case:

The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. ... Rights and privileges of hundreds of thousands of persons would be adversely affected ...; the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. ... the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved.

The same could be said about the undecided choice of law issues. That said, it's still not too late for Congress to repeal DOMA and replace it with a choice of law rule. And perhaps the administration has a plan for how to deal with the fallout.  Otherwise, it's about to become a lot more interesting to be a choice of law scholar.

Posted by Will Baude on June 26, 2013 at 01:45 PM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (4) | TrackBack

Tuesday, June 25, 2013

Shelby County Highlights

The Chief writes well and clearly.  For those of you who have not yet had time to read Shelby County, but would like a little taste of the key passages:

  • "Under [Respondents'] theory, however, §5 would be effectively immune from scrutiny; no matter how 'clean' the record of covered jurisdictions, the argument could always bemade that it was deterrence that accounted for the good behavior."
  • "It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. . . . But history did not end in 1965."
  • "The [Fifteenth] Amendment is not designed to punish for the past; its purpose is to ensure a better future."
  • "Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time."
  • "Viewing the preclearance requirements as targeting [second generation barriers] simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote-dilution."
  • "[T]his case is about a part of [McCulloch] that the dissent does not emphasize—the part that asks whether a legislative means is 'consist[ent] with the letter and spirit of the constitution.'"
  • "[F]our years ago, in an opinion joined by two of today’s dissenters, the Court expressly stated that '[t]he Act’s preclearance requirement and its coverage formula raise serious constitutionalquestions.' The dissent does not explain how those 'serious constitutional questions' became untenable in four short years."
  • "[I]n [Northwest Austin], we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional."

Posted by Will Baude on June 25, 2013 at 05:30 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Monday, June 24, 2013

So Where WAS Fisher Anyway?

Two weeks ago I posted some hypotheses about why it was taking the Supreme Court such an unusually long time to publish the opinion in Fisher v. Texas, its last October case.  Now that the opinion is out, we have some good reason to think that all of my hypotheses -- at least when I got down to specifics -- were wrong.

1:  I suggested a "very long" majority and a "very long" lead dissent.  Well, Justice Kennedy's majority opinion is 13 pages; the dissent is 4.  So much for that theory.

2: I suggested that there had been some kind of major "flip" in the case -- in particular that "Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it."  But no, the final opinion invalidates Texas's program the Fifth Circuit's opinion on the narrow, Grutter-based grounds I had expected all along. [EDIT: Thanks for the correction, Micah!]

3:  I suggested that another justice might have written a long concurring opinion getting into a nasty back-and-forth with the lead dissent.  But Justice Ginsburg's lone dissent is only four pages long, and it did not provoke substantial writing from anybody.

4:  Finally, I suggested that Justice Thomas might write a long concurring opinion getting into the original meaning of the 14th Amendment and finally providing a judicial explanation for how the colorblindness rule that Scalia and Thomas subscribe to (and sometimes derive from Brown) can be squared with the original history of the 14th Amendment. 

This one came the closest -- Justice Thomas did write a long concurring opinion -- but it's not nearly long enough to explain the unusual delay, and even more puzzlingly, it doesn't discuss originalism in any serious detail.  There's a brief mention of slavery, and otherwise all of the originalist heavy lifting is delegated to a page-long discussion of the Iowa Supreme Court's previously obscure 1866 decision in Clark v. Board of Directors.  (The case is cited in the briefs and Brown and Sweatt, which is probably how it made its way into the concurrence, although it is also cited in Michael McConnell's Originalism and the Desegregation Decisions and Chris Green's Originalism and the Sense-Reference Distinction, either of which I could imagine Justice Thomas's reading.)

So what did happen?  Obviously my own reliability at guessing is subject to serious question.  But my new guess is that there was a long struggle to get five Justices to join a single opinion.  From Justice Scalia's and Thomas's concurrences, I wouldn't be surprised if they initially refused to join an opinion that seemed to reaffirm Grutter.  At the same time, I wouldn't be surprised if Justices Breyer and Sotomayor initially refused to join an opinion that seemed to narrow Grutter. 

Justice Kennedy could have simply written an opinion for 3 and relied on the Marks Rule to make it the controlling precedent for lower courts, but there's something unsatisfying about that, especially in a high-profile case.  So maybe he had to spend a while trying to get two more votes from either his right flank or left flank (and ultimately got more than he needed by writing a short and relatively unobjectionable opinion).  There's plenty about this theory that I haven't fully fleshed out, but that's my new best guess, since I doubt it took eight months for Justice Thomas to write 20 pages.  But obviously you shouldn't take my word for it!

Posted by Will Baude on June 24, 2013 at 03:26 PM in Constitutional thoughts, Judicial Process, Life of Law Schools | Permalink | Comments (10) | TrackBack

Saturday, June 22, 2013

Dismissing the DOMA Case

Apparently "the rumor sweeping DC this past week" is that the Supreme Court will decide that it lacks jurisdiction in the DOMA case, and thus will dismiss the case without ruling on DOMA's constitutionality. Adam Winkler discusses the scenario in the New Republic (and seems to think that the consequences of doing so would be quite bad).  A friend asked me what I thought of the rumor.  Well: 

First, dismissing the case for lack of jurisdiction would be the right thing to do.  Invocations of the Supreme Court's jurisdiction, like any federal court's, require the invoking parties to have a real problem that they want the court to do something about.  But neither Windsor nor the United States has such a problem here.  Both of them got the result in the district court and in the Second Circuit that they wanted, and we can tell that because they're asking the Supreme Court to affirm.  An appeal where both parties want the Court to affirm is an appeal where there's no standing.  (Note for SCOTUS nerds-- this is different from the rare but consistent occasions where both parties want the Court to reverse and the Court appoints an amicus; those cases have prudential adverseness problems, but they don't have standing problems.) 

And as for BLAG's participation, 28 U.S.C. 516 limits the  "the conduct of litigation in which the United States" is a party to "officers of the Department of Justice," "except as otherwise authorized by law."  No law delegates that authority in this case to BLAG. 

In my view the only thing making this difficult is the Supreme Court's (apparent) earlier conclusion that it had jurisdiction in INS v. Chadha, but that case's reasoning isn't well explained and may not be correct or applicable.  (The always insightful Marty Lederman has responses to some of these concerns here, though he takes a much more doctrinal and less conceptual approach to the question; I don't actually mean for this post to substitute for the extensive briefing on the question.)

Second, with all that said, I still think it's highly unlikely that the Court will dismiss the case.  Of course oral arguments don't always predict case outcomes, but during the arguments over jurisdiction in the DOMA case the Court seemed very sympathetic to BLAG's position that there was standing.  (E.g., Paul Clement: "And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case. I mean, that's what you get under their view of the world, and that doesn't serve as separation of powers." Justice Kennedy: "That -- that would give you intellectual whiplash. I'm going to have to think about that.").  And it would be easy to write an opinion that finds jurisdiction with very little discussion, citing Chadha and moving on.  Dealing with the question without much explanation might irritate some professors of federal jurisdiction, but the Court doesn't always care what they think.

Third, if the Court does dismiss DOMA for lack of jurisdiction-- as it should-- the consequences would hardly be disastrous.  The result is simply that the parties can't appeal if neither of them wants the appellate court to do anything.  As soon as any court actually upholds DOMA, there will be appellate jurisdiction.  (One recent district court decision in the Ninth Circuit has arguably upheld DOMA.)

Winkler mentions this:

There is one possible route back to the Supreme Court. If someone challenges DOMA and loses, he or she would have the right to appeal. It’s hard to see that happening, however, given that the administration refuses to defend the law. Every challenger should win.

But it's worth emphasizing what this really means. If any court upholds DOMA, there will be jurisdiction in the Supreme Court. And if not-- if every single court to consider DOMA's constitutionality strikes it down-- the Supreme Court's intervention won't be needed, because DOMA will be invalid everywhere its constitutionality is raised. At that point, even the Obama administration would probably stop enforcing it.

Posted by Will Baude on June 22, 2013 at 11:32 AM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (10) | TrackBack

Thursday, June 20, 2013

Baude on Spillenger on Extraterritoriality and the Constitution

More on today's decisions (and perhaps a few more comments on my prosecutorial comment post) when I'm not running to grab a plane (the story of my life).  For now, I just wanted to cross-promote a post I have today on JOTWELL, State Boundaries and Constitutional Limits.  From the post:

Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure.  But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today. ...

And from the conclusion:
By the way, so far as I know, this piece has not yet been picked up by a law journal. Student editors who are reading this: grab it while you can!

Posted by Will Baude on June 20, 2013 at 03:20 PM in Civil Procedure, Constitutional thoughts, Law Review Review | Permalink | Comments (0) | TrackBack

Tuesday, June 18, 2013

Libel Law, Linking, and "Scam"

Although I'm a little late to the party in writing about Redmond v. Gawker Media, I thought I'd highlight it here because, though lamentably unpublished , the decision has interesting implications for online libel cases, even though the court that decided it seems to have misunderstood the Supreme Court's decision in Milkovich v. Lorain Journal.

Redmond involved claims against "new media" company Gawker Media based on an article on its tech blog Gizmodo titled Smoke and Mirrors: The Greatest Scam in Tech. The article criticized a new tech "startup," calling it " just the latest in a string of seemingly failed tech startups that spans back about two decades, all conceived, helmed and seemingly driven into the ground by one man: Scott Redmond." The article further suggested that Redmond, the CEO of the new company, used “technobabble” to promote products that were not “technologically feasible”  and that his “ventures rarely—if ever—work.”  In other words, the article implied, and the title of the blog post stated explicitly, that Redmond’s business model was a “scam.” Redmond complained to Gizmodo in a lengthy and detailed email, and Gizmodo posted Redmond's email on the site. Regardless, Redmond sued Gawker and the authors of the post for libel and false light. Defendants filed a motion to strike under Califonia’s anti-SLAPP statute. The trial court granted the motion, and the California appellate court affirmed.

Unsurprisingly, the appellate court found that the Gizmodo article concerned an “issue of public interest,” as defined by the anti-SLAPP statute, because Redmond actively sought publicity for his company. The court described “the Gizmodo article [as] a warning to a segment of the public—consumers and investors in the tech company—that [Redmond's] claims about his latest technology were not credible.” This part of the decision is entirely non-controversial, and the court's interpretation of "public interest" is consistent with the goal of anti-SLAPP laws to prevent libel suits from being used to chill speech on matters of significant public interest.

More controversial is the court's determination that Gizmodo's use of the term “scam” was not defamatory (and thus Redmond could not show a probability of prevailing). The court noted that “’scam’ means different things to different people and is used to describe a wide range of conduct;” while the court's assertion is correct, surely at least one of the "different things" that "scam" can mean is defamatory. [For a similar statement, see McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) ]. While the term "scam" is usually hyberbole or name-calling, in some contexts the term acts as an accusation of criminal fraud, especially when accompanied by assertions of deliberate deception for personal gain. However, the court found that "scam" was not defamatory as used in the Gizmodo article, relying heavily on the fact that the authors gave links to “evidence” about the fates of Redmond's prior companies and his method of marketing his new one.  The court concluded that the statement that Redmond's company was a “scam” was “incapable of being proven true or false.”

It is clear that the court's categorization of the statements about Redmond as “opinion rather than fact” relied on online context--both the conventions of the blog and its linguistic style. The court asserted that the article contained only statements of opinion because it was “completely transparent,” revealing all the “sources upon which the authors rel[ied] for their conclusions” and containing “active links to many of the original sources.” Technology-enabled transparency, according to the court,  “put [readers] in a position to draw their own conclusions about [the CEO] and his ventures.” The court also stressed the blog's  “casual first-person style." The authors of the article, according to the court, made “little pretense of objectivity,” thereby putting “reasonable reader[s]” on notice that they were reading “subjective opinions.”

As attractive as this reasoning is, especially to free speech advocates and technophiles, one should read the Redmond decision with caution because it almost certainly overgeneralizes about the types of "opinion" that are constitutionally protected. The Supreme Court's 1990 decision in Milkovich v. Lorain Journal clearly and forcefully indicates that a statement is not constitutionally protected simply because a reader would understand it to reflect the author's subjective point of view.  Instead, the Milkovich Court held that a purported "opinion"  can harm reputation just as much as explicit factual assertions, at least when it implies the existence of defamatory objective facts. Hence, the Court declared that the statement "In my opinion Jones is a liar" can be just as damaging to the reputation of Jones as the statement "Jones is a liar," because readers may assume unstated defamatory facts underlie the supposedly "subjective" opinion. Moreover, even if the author states the underlying facts on which the conclusion is based, the statement can still be defamatory  if the underlying facts are incorrect or incomplete, or if the author draws erroneous conclusions from them. The Court therefore rejected the proposition that defamatory statements should be protected as long as it is clear they reflect the authors' point of view, or as long as they accurately state the facts on which they are based.  [This analysis is freely borrowed from  this article at pp. 924-25, full citations are included there.]


Posted by Lyrissa Lidsky on June 18, 2013 at 03:24 PM in Blogging, Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (2) | TrackBack

Repealing the Federal Eminent Domain Power

Ilya Somin notes the renewed House action on the Private Property Rights Protection Act, a federal bill that would eliminate funding for economic development takings like those that would be forbidden by the Kelo dissent.  As Ilya also notes, the bill seems unlikely to become law, but the fact that there is any activity at all is a sign that at least some members of Congress would like to cast a symbolic vote for narrowing eminent domain authority, even if it's an authority that the judiciary has upheld.

If so, may I suggest a new way for members of Congress to do that?  By repealing the federal eminent domain power.  Since 1875, the Supreme Court has held that the federal government has the power to take land through eminent domain.  But as I explain at length in the most recent issue of the Yale Law Journal, that decision was probably wrong as an original matter, and was certainly inconsistent with the very widespread understanding and tradition from the Founding until the Civil War.  Congress repeatedly avoided using eminent domain (except in the District and territories); when it needed land, the states took it.  Even the Supreme Court agreed.

The most that can be said for the modern understanding is that the Supreme Court has upheld it.  But the supporters of the Private Property Rights Protection Act have shown that they're willing to pursue their own views of the proper scope of eminent domain, even if the judiciary would uphold a broader one.  So perhaps

If that's too radical, there's an alternative.  Current federal law doesn't require any specific Congressional authorization for a federal taking.  Under 40 U.S.C. 3113:

An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so.

At a minimum, the House could propose a bill repealing this statute, and requiring that exercises of constitutionally dubious federal eminent domain authority be specifically authorized by Congress.

Posted by Will Baude on June 18, 2013 at 03:40 AM in Constitutional thoughts, Law and Politics, Property | Permalink | Comments (1) | TrackBack

Monday, June 17, 2013

Today's Decisions

I've noted a few of these points already on Twitter, but here are some items of minor interest to me in this morning's decisions from the Supreme Court.  (For more thorough coverage, go to SCOTUSBlog; for my own more thorough thoughts, come visit here later.)


  • Justice Thomas writes an opinion joined by the four "liberal" Justices.  I can't think of a time this has happened since Atlantic Sounding v. Townsend and United States v. Bajakajian, and both of those were before Justices Sotomayor and Kagan joined the Court.  If that's right, I'm pretty sure this is the first time Justice Thomas has assigned a majority opinion as the senior-most Justice.  [UPDATE:  As a commenter points out, not actually the first time for a CT assignment, or even for this lineup.  But still unusual.]
  • It's interesting that Justice Alito launches a full-on criticism of Apprendi in his dissent (including a citation to the brilliant Jonathan Mitchell, former GMU law professor and current SG of Texas); but it's also interesting that none of the other dissenters (including the Chief and Justice Kennedy) join in.
  • Not for the first time, I despair of the Court having a coherent theory of stare decisis.  Not that there aren't coherent theories, just that the Court doesn't have them.


  • Justice Thomas's reiterated suggestion that Griffin v. California should be overruled reminds me of why I like Justice Thomas so much.

Inter Tribal Council of Arizona:

  • Admin law scholars or ambitious students looking for a nice essay topic, see footnote 10: "The [Commission] currently lacks a quorum—indeed, the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to 'compel agency action unlawfully withheld or unreasonably delayed.' 5 U. S. C. §706(1). It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking."
  • Justice Thomas's willingness to break the don't-cite-Bush-v.-Gore taboo is another reason I like Justice Thomas so much.


  • That's a lot of citations to legal scholarship in the majority opinion.  (I counted 18, but I was counting quickly, and there were a lot of repeat citations to Areeda and Hovenkamp.)


  • I was skimming the opinion without noticing who was the author until I got to page 26: "The amount of damages sought in the complaint is based on the number of persons,over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case."  Must be Justice Kennedy! I thought.
  • The fearsome foursome of Scalia, Ginsburg, Kagan, and Sotomayor are once again in dissent.

Posted by Will Baude on June 17, 2013 at 02:38 PM in Constitutional thoughts, Judicial Process, Law and Politics | Permalink | Comments (6) | TrackBack

Saturday, June 15, 2013

How Could Surveillance Violate the First Amendment?

Howard asks an interesting question about surveillance and the First Amendment.  In her concurrence last term in United States v. Jones, Justice Sotomayor said: "Awareness that the Government may be watching chills associational and expressive freedoms."  But she didn't provide a citation for this proposition, and the one citation in the rest of the paragraph is to Judge Flaum's concurrence in the Seventh Circuit decision in Cuevas-Perez, which doesn't discuss freedom of expression.  So what might Justice Sotomayor be talking about, and is there any merit to it?

The closest analogy I could come up with are the claims for a reporters' privilege in Branzburg v. Hayes.  There, the press argues that the First Amendment gives it a privilege against testifying in court in certain cases.  There too, the idea seems to be that secrecy and free expression are intertwined, and that people won't talk to the press if they know that the government might later force them to testify about it.  But the court rejected the claims in Branzburg and has shown no sign of reviving them in the more modern era.  And if anything, the reporters' privilege cases seem to have stronger intuitive force than an anti-NSA "chilling effect" claim; so if the reporters cases fail, the NSA claims fail a fortiori.

The other analogy I could come up with are the Seventh Circuit "Red Squad" cases, which deal with a series of First Amendment challenges to the FBI's investigations and surveillance of various left wing groups (including the ACLU, which is leading one of the new NSA lawsuits).  (E.g. here and here.)  While the opinions mostly deal with some interesting questions about equitable remedies, the underlying, successful claims were First Amendment claims.

But the core of the Red Squad claims was retaliation and selective prosecution-- that groups had been picked for burdensome or chilling investigations because of their political views, and perhaps in order to suppress those political views.  By contrast, from what we know of the NSA programs, they do not have this problem.  Whatever their flaws under the statutes and the Fourth Amendment, the collection of data from domestic targets like the ACLU doesn't appear to be targetted (so far as we know); it appears to be indiscriminate.  While being indiscriminate might create problems for the program under other law, it actually insulates it from a Red Squad retaliation claim. 

Laird v. Tatum, a 1972 Supreme Court case dismissing a surveillance lawsuit for lack of standing confronted a similar chilling effect claim; while the Court did not rule on the merits, it appeared to make a similar assumption-- that the First Amendment might regulate selective targetting on the basis of political viewpoint, but not the chilling effect of indiscriminate information gathering.  The Court noted that it had never found a prohibited "chilling effect" to "arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual."

So I am skeptical that the First Amendment is a useful way to challenge for challenging the NSA surveillance programs, at least in the absence of retaliation or selective prosecution.  But the ACLU has a lot of clever lawyers, so it may well be that they will come up with something that I have not.

Posted by Will Baude on June 15, 2013 at 12:03 PM in Constitutional thoughts, First Amendment | Permalink | Comments (14) | TrackBack

Surveillance and the First Amendment

A different question on the PRISM lawsuits: Does surveillance, without more, violate the First Amendment? And if so, how? The argument is that having government watching who and when I'm calling chills my speech and my willingness to engage in important speech. Are there cases holding that government action that chills speech, but does not impose or threaten any formal legal consequence, states a First Amendment violation? For a low-tech comparison, if a municipal government announced that police would video record all public gatherings (which presumably would impose a comparable chill), would that state a First Amendment violation?


Posted by Howard Wasserman on June 15, 2013 at 08:38 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4) | TrackBack

Thursday, June 13, 2013

Selling Made-To-Order Embryos and the Split on the Right

The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:

The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”

Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I  use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).

The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.

The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."

By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)

Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered.  I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.

[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.


Posted by Ivan Cohen on June 13, 2013 at 02:09 PM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics | Permalink | Comments (0) | TrackBack

Tuesday, June 11, 2013

Obeying Judges

Acquiescence is in the news.  The Obama administration has announced that it will make Plan B available in a single pill, over the counter, for women of all ages, assuming that will comply with a district court's prior ruling.  Meanwhile an Illinois has prosecutor has announced that he will start allowing Illinoisians to carry concealed weapons, even though the legislature has not yet repealed Illinois's public gun ban.  A Seventh Circuit decision had held the law unconstitutional, but the Illinois courts have so far disagreed.

I am not sure whether either decision is the right one, although both may be.  As for Plan B, it's a little odd for the administration to let a single district court make regulatory law for the entire country without even an appeal.  (Remember all of that talk in the administration's DOMA briefs about how important it was for the issue to be resolved nationwide rather than left to the lower courts?)  On the other hand, perhaps the administration was inclined to make the pill more widely available, and the court simply set the agenda or provided a political excuse.

As for the Illinois prosecutions, the disagreement among the prosecutors and the disagreement between state and federal courts suggests that a higher power will have to resolve this sooner or later.  And the case for acquiescence until then is not obvious.  The Seventh Circuit doesn't sit in review of state prosecutions, and under AEDPA the court of appeals decision is irrelevant to collateral attack.  If the prosecutor doesn't think the statute is constitutional, perhaps he shouldn't enforce it, but if he does I'm not so sure why he cares what the Seventh Circuit thinks.

Posted by Will Baude on June 11, 2013 at 06:00 AM in Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (7) | TrackBack

Monday, June 10, 2013

Judges Gone Wild?

I couldn't help but think that this judge's behavior, earlier today, is an example of imperious official action. The judge was all set to accept the defendant's plea bargain, but because the offender, footballer Chad Johnson, gave a playful slap on the backside to his lawyer during the hearing, in response to a question asked by the judge regarding whether he was satisfied with his counsel, she rejected the bargain, which called for no jail time, and gave him 30 days in jail. You can read more about it here and see the footage from the court. (H/t: atl). Stephen A. Smith's apt albeit volcanic reaction on ESPN emphasizes the socio-legal realities of why Johnson was an idiot here. It's true that Johnson is  a criminal wife-beating a**hole, and, in this context, acted imprudently, but is the bum-slap really the kind of thing that warrants jail when it was not otherwise about to happen? It doesn't warrant the judge's behavior in my mind, and instead strikes me as the kind of official tyranny and hot-headed hubris that rule of law constraints are meant to prevent. The quickness of the decision also suggests the need for courts to impose a mandatory cooling-off period between the time they reach a decision re: liability and the time they impose a sentence.

Cf. some of the problems of judicial discretion more generally.  And of course, this seems right in the same vein as Judge Marvin Frankel's famous story in Criminal Sentences: Law Without Order about the judge who, over cocktails, acknowledged elevating a defendant's sentence by a year simply because the offender had been disrespectful to the judge that day.  


Posted by Dan Markel on June 10, 2013 at 05:50 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel, Sports | Permalink | Comments (10) | TrackBack

Sunday, June 09, 2013

Did Justice Powell Know He Had A Gay Clerk?

If you just looked at the front page of today's New York Times, you might not know from headline ("Exhibit A for a Major Shift: Justices' Gay Clerks") that it contains what seems to be a major historical revelation.  Most people familiar with the Court's progression from Bowers v. Hardwick to Lawrence v. Texas are also familiar with a sad and ironic statement attributed to Justice Powell: In the course of changing his vote to uphold the law, he was reported to have said "I don't believe I've ever met a homosexual," even as he had a gay clerk at the time.

Well, according to today's story, Justice Powell may have said that, but he knew that it was not true:

C. Cabell Chinnis, a gay lawyer who practices law in Palo Alto, Calif., was one of Justice Powell’s clerks as the justice was struggling with how to vote in the Hardwick case. In an interview, Mr. Chinnis said his boss must have known about his sexual orientation. “He had met my boyfriend,” Mr. Chinnis said.

Indeed, the justice sought him out for advice precisely because he wanted to learn about the mechanics of gay sex, Mr. Chinnis said, recalling an uncomfortable exchange on the subject. “This 78-year-old man is asking me about erections at the Supreme Court,” he said. ...

“It’s more important to me to make love to the person I love,” Mr. Chinnis remembered saying, “than to vote for a judge in a local election.”

Now maybe this is common knowledge to those who've been following the history of the Court more closely than I have.  But Powell's Wikipedia page says he didn't know, his 2002 obituary in the New York Times suggests he didn't, as do many other stories.  So correct me if I'm wrong, but if true, this seems like big news.

[Of course it's also possible that Mr. Chinnis's comments have been mis-reported or taken out of context.  Courting Justice, by Joyce Murdoch and Deborah Price reports that none of Powell's clerks ever came out to him, and includes quotations from Mr. Chinnis that suggest a slightly different account.  But it's hard to tell for sure.]

Posted by Will Baude on June 9, 2013 at 10:39 AM in Constitutional thoughts, Workplace Law | Permalink | Comments (1) | TrackBack

Friday, June 07, 2013

Where's Fisher?

With the Supreme Court's announcement that it will move to issuing opinions twice a week, it is fair to say we're hitting the final stretch of the term.  And it's moderately interesting that the Court has not yet issued its opinion in Fisher v. University of Texas.  Yes, the case is a big and controversial one, and its common for those cases to take a long time to come out.  But it was argued in October, and the Court usually has all of its October opinions out long before June, no matter how controversial they are.  (OT 2011's last October opinion: April 2; OT 2010's last: March 29; OT 2009's: April 28; OT 2008's: April 21.)

So what's taking so long? Keeping in mind the high likelihood that the majority opinion was assigned to Justice Kennedy, and that the argument appeared to favor petitioner, I have four hypotheses for the delay:

  1. Just slow going.  Perhaps the majority opinion is just very long, with a very long lead dissent assigned to a justice who writes pretty slowly.  This is possible, of course, but the delay is sufficiently unusual that I think it's likely something more is going on.

  2. Changing the course.  Perhaps there has been a substantial change in the opinion during the course of drafting-- quite possibly by Justice Kennedy himself. The two most obvious possibilities would be that Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it.  I continue to think that both of these hypotheses are wrong, and that the case will be reversed on narrow-tailoring grounds that purport to leave Grutter intact, but I no longer have as high a degree of confidence in that prediction.

  3. Reinforcements.  Justice Kennedy's majority opinions usually avoid getting into extensive fisticuffs with the dissent.  Perhaps, after reading the dissent, another justice in the majority has decided to write a responsive concurring opinion that responds in detail to all of the dissent's claims.  (My nominee for such an opinion would be Justice Alito, perhaps in a reprise of the Alito/Kennedy division of labor in Ricci v. DeStefano.)  This adds significant time because the concurrence doesn't even get started until after the dissent has circulated, and there can also be a ton of last-minute revisions.

  4. Originalism.  Justices Thomas and Scalia have never provided very much of an explanation for how their view that the 14th Amendment requires symmetrical colorblindness is consistent with the Amendment's original meaning.  There are plausible arguments available to them, as Mike Rappaport has recently shown, but they haven't talked about them much.  Perhaps one of them has finally decided to get into the issue, perhaps after being provoked by some comments in the dissent.  (My nominee for such an opinion would be Justice Thomas, perhaps in a reprise of some of his famously long separate opinions like Holder v. Hall or U.S Term Limits v. Thornton.)

Of course it's very hard for those outside the building to correctly guess what's going on inside.  (Mark Walsh has a few more hypotheses about the delay here.) But I suppose that before my guest-blogging stint is up, we shall see.


Posted by Will Baude on June 7, 2013 at 09:00 AM in Constitutional thoughts, Judicial Process | Permalink | Comments (3) | TrackBack

Thursday, June 06, 2013

Hey hey Guthrie

I've spent a lot of the past year thinking about the outer limits of the scope of the Necessary and Proper Clause (or as I now call them, the "great powers" that cannot be implied and must be expressly granted to the federal government).  Examples are always a little tricky to come by, in part because the easiest cases don't arise.  So one frequently-used example comes from the Supreme Court's opinion in Coyle v. Smith-- Congress can't tell a state where to locate its state capital.

The case also involves a bunch of complicated equal-footing stuff, but the central story is that Congress tried to tell the newly-created state of Oklahoma that it had to keep its capital in its old location, Guthrie, for seven years or so, but a bunch of voters in the state decided to move it to Oklahoma City before the time was up.  What I've recently become puzzled by (after a friend raised at a conference this week) is: Why did Congress care where the capital of Oklahoma was?

I've spent longer than I'd care to admit poking into this, and I'm just perplexed.  I found this old first-hand account of the decision to move the capital, but it contains nothing intelligible about why Congress had included the Guthrie condition.  Do any readers have any guesses or leads?

Posted by Will Baude on June 6, 2013 at 03:22 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

If You Don't Like Prisons That Much, Then Why "Let Judges Be Judges?"

One of my ongoing concerns about many in the academy's infatuation with individualized sentencing and the preservation of substantial judicial discretion when it comes to sentencing is that there is a tendency to obscure what judicial discretion will do. Lots of folks complain about how structured sentencing (particularly in the Fed system) means that prosecutors now run the show and that judges are less powerful than they were (or would be) in indeterminate (fully discretionary) sentencing regimes. Lots of these academic voices, however, are pretty lefty/libertarian/pro-defendant/anti-mass incarceration (pick one or more of these). The problem as I see it is that the presence of substantial judicial sentencing power will often lead to stiffer sentences, not more lenient ones. That's because prosecutors and defense lawyers often bargain away charges, facts, etc, and by not sharing the existence of those facts/charges, the sentencing judges are left to defer to the deals struck by the insider repeat players. But when judges have concerns that these deals are being struck in a way that's anti-retributive or bad for public safety, they often want to have the information that would allow them to impose LONGER sentences.  In sum, I bet that the more judicial discretion there is, and the more information judges have, the longer the sentences will be. 

This is, of course, an empirical hypothesis, and happily, there is some good empirical support for the proposition I'm noting. Kevin Reitz wrote a fantastically important and understudied piece in the Texas Law Review showing, among other things, that states with indeterminate sentencing have among the highest rates of incarceration. 

But anecdotally, you need a good story to see this dynamic, and Doug Berman's Sentencing blog has the story you need to see this. As the story goes, Judge Stephanie Rose on the fed bench in Iowa is excoriating the federal prosecutor's office for not disclosing more information about defendants that would lead to stiffer sentences. To my mind, this is an illuminating example of a much larger problem. Normatively, of course, indeterminate/discretionary sentencing doesn't have to lead to higher punishment levels necessarily, but it shouldn't be suprising that the contingent forces tend to work in that way.

--One last note. I've been watching The West Wing on Netflix while working out for the last few weeks, and I noticed that, at one point in one of the episodes, late Season 1 or early Season 2, Aaron Sorkin/Jed Bartlet seemed to think that empowering judges with substantial sentencing discretion was an obviously attractive thing to do from the liberal political perspective of the Bartlet presidency. I found this, um, unconvincing, notwithstanding my general intoxication with the show.  

Posted by Dan Markel on June 6, 2013 at 11:33 AM in Article Spotlight, Blogging, Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (2) | TrackBack

Wednesday, June 05, 2013

Some Reactions to Maryland v. King, and a Question for Barry Friedman and other 4A Friends

I have done only a bit more than skim Maryland v. King, and because I'm not really a Fourth Amendment guy, I'm preserving my strategic ambivalence about the outcome as a matter of doctrine. But I have a policy question for NYU's Barry Friedman along with a few other hasty reactions.

First, Barry writes the following in Slate, :

"Did the fact that Alonzo King was accused (not convicted) of pulling a shotgun on some folks provide a better reason to believe he’d committed an unrelated rape than that anyone else walking the streets had done so? Hardly."

It seems to me that Barry's posing either a specific or a general empirical question, neither of which I possess excellent knowledge about, although I bet there are good proxies out there for saying we know more than nothing.  In fact, I bet the reason law enforcement wants access to DNA of arrestees is because of their view that arrestees provide, on the margin, a better pool to capture DNA from than a random selection of the population at large.  Law enforcement interests here are driven by Big Data patterns that suggest that felony arrestees are likelier to be tied to other crimes than non-felony arrestees.  That's an empirical claim and Barry doesn't provide any links or data to suggest that we should doubt that claim's truth.

From a crime control perspective, would it be better if we had a DNA swab of every person and new baby? Sure, assuming the integrity of the collection. Indeed, Friedman thinks this would be permissible under the 4A (were Congress to pass it) but it's not likely to be authorized by Congress anytime soon.  (Btw, would a nation-wide DNA registry itself be unconstitutional under the 4A? Distributed benefits and costs might save it from the suspicionless problem. Curious for thoughts.)

But as long as a) we are not swabbing every new baby and all existing persons to create a national DNA database, and b) we are taking the time to inventory and identify felony arrestees, can anyone doubt that someone arrested for a felony is, on the margin, more likely to be guilty of some other offense that's out there?

I'm not saying there aren't doctrinal or other reasons that should restrain the DNA swabs. But simply as a matter of statistics or common experience, I'm left wondering  what supports the pretty heterodox view Barry offers that felony arrestees are not in fact more likely to have ties to other crimes than a randomly selected individual? Yes, I recognize that the value of the signal of a felony arrest is not the same as the signal of a felony conviction, but ... if we were going to block the swabs for crime-control purposes on constitutional grounds, let's at least be aware of what's being traded off in the name of constitutional fidelity.  And while we're at it, let's not forget that wide DNA access has the capacity not only to reduce Type II errors, but also to exonerate and thus redress Type I errors too. Fixing false positives is a constitutional value as well as a moral imperative for state officials. I'm not sure the 4th amendment claims advanced by the dissenters and their supporters are adequately sensitive to that, even if the majority implies this is happening already as a matter of fact.*

2.  I agree with Scalia's dissent that  the "identification" arguments on behalf of the DNA swabs are more make-weight than the straightforward though constitutionally more tricky arguments in favor of clearing cases and fixing mistakes. That's because the police could always use the DNA swab to promote their administrative needs (e.g., ensuring that the offender doesn't have a record of violence toward prison officials or communicable diseases that would have to be taken into account for housing him) without using the DNA swab to scope out possible relevance to other crimes.

3. The Court's special needs doctrine allows for suspicionless searches of the public in order to regulate safety or achieve other non-crime detection goals of certain policy weight. Here are two reasons for thinking that the majority's result is correct even if not its reasoning.

a) It's not that far a stretch to say that given the criminal justice system's interests in ensuring that the institutions of punishment are taking adequate care and precaution for the wellbeing of inmates and officials, that the population of felony arrestees is distinct from the population at large, and thus the goal of using DNA to ferret out possible dangerousness or illness is one that should pass muster on special needs grounds. But the reason I  don't love this argument is because if taken on good faith, it would not permit allowing the DNA information to be used to exonerate previously convicted offenders. That would probably be too close to the crime-detection purposes that the special needs doctrine is supposed to be attentive to. However, one might slice the constitutional baloney very thinly and say: DNA swabs are constitutional for administrative purposes pre-conviction, and they are also constitutional for purposes of exonerating others, but they can't be used as the basis to clear other cases against the defendant whose cheek is being swabbed.

b) Speaking of slicing constitutional baloney thinly, I didn't see this argument and it seems worth consideration too--though I detest it because I'm doubtful of the constitutionality and morality of the underlying practices. Here goes: Crime detection is distinct from calibrating punishment. In indeterminate sentencing regimes as well as structured sentencing that allows for "real offense" sentencing instead of (my preferred) charge offense sentencing, the admission of the DNA evidence as a tie to other crimes should be permitted for purposes of sentencing offenders on an individualized basis on the basis of conduct not proven to the jury beyond a reasonable doubt.  So, say King is in Texas and convicted of aggravated assault, which leaves him open to  a 5-99 year spread under the statute for first degree felonies.  The sentencing judge/jury/parole folks can all take into account that he's been tied via DNA to other rapes, even though not convicted of those rapes.  Poof. The sentence for the assault goes up, we don't bother with charging and convicting King for the rapes, and we rest our heads on the pillow of Williams v. New York.  Sentencing is distinct from crime-detection. Right? How awesome is that. Ick.



*Scalia notes in his dissent (fn.2) that the Type I error redress option is not currently available b/c of the way the FBI runs its DNA databases. That could be fixed of course, and should be.




Posted by Dan Markel on June 5, 2013 at 03:54 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (10) | TrackBack

(When) Was Fingerprinting Unconstitutional?

One of my main items of business during this blogging stint is to write about this month's Supreme Court cases as the term wraps up.  So the first order of business is Monday's cases.  I fear I don't have anything interesting to say about Hillman v. Maretta, the group life insurance case that a friend described as "the most preempted law ever."  And while a lot of people have written things about Maryland v. King, I thought I'd throw in my own thoughts.

I'm more sympathetic to the dissent's reasoning than I expected to be.  When I first saw the case granted, I confidently predicted a reversal and I wasn't even sure there would be a dissent.   But I do now see why the dissent thinks this is a questionable extension of the special needs doctrine.  It's common ground that the police can't just go search your house or your off-site car or your gym locker without suspicion when you've been arrested, so it needs a story about why DNA is different.  And the claim that the DNA searches are largely for identification purposes rather than crime-solving purposes seems implausible.

That said, I don't think Justice Scalia does a good job of distinguishing DNA from fingerprints.  As I read it, the dissent actually trots out three different arguments about why its view doesn't forbid the routine fingerprinting of those who are arrested.

  1. Fingerprinting is not a search. ("The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question.")  Possible, but Justice Scalia seems unwilling to actually commit to this argument, he just mentions it and moves on.

  2. Fingerprinting really is for identification purposes. ("Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).")  Possible, but this argument relies heavily on computer databases that were only created in the late 1990s, and fingerprinting has been around for a lot longer than that.

  3. Fingerprinting was unconstitutional for a long time (and maybe still is?). ("The 'great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence,' and so we were never asked to decidethe legitimacy of the practice ... but it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for 'generations' before it was possible to use it effectively for identification.") Justice Scalia's views about the IAFIS database would seem to imply that routine fingerprinting was unconstitutional until it became part of an identification system.  But he is oddly non-commital.  The Court didn't "bless" it, and it was not "uncontroversial," but was it actually wrong?

As best I can tell, the dissent's view is a combination of 2 and 3, with 1 mentioned but not seriously contended.  If so, that's somewhat surprising.  At the oral argument in Hollingsworth v. Perry, Justice Scalia pestered Ted Olson with the question:  "When did it become unconstitutional to exclude homosexual couples from marriage?" and seemed incredulous that the constitutional answer could have changed more recently than the enactment of the 14th Amendment.  It seems fair to ask him the same question about the constitutionality of fingerprinting.

[CORRECTION:  I originally mistyped "affirmance" instead of "reversal" above.]

Posted by Will Baude on June 5, 2013 at 12:15 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (5) | TrackBack

Tuesday, May 28, 2013


Two high-profile federal trials are currently challenging controversial law-enforcement practices. In Arizona, District Judge G. Murrary Snow enjoined Maricopa County Sheriff Joe Arpaio's programs aimed at stopping and detaining undocumented individuals, finding that the program involved racial profiling in violation of the Fourteenth Amendment and that the sheriff lacked authority to seize people on nothing more than reasonable suspicion of being in the country unlawfully. In New York, District Judge Shira Scheindlin is presiding over a trial challenging NYPD's stop-and-frisk policies and is widely expected to hold that the program is unconstitutional, also under both the Fourth Amendment and equal protection.

One question: How do the plaintiffs have standing in either case? Both cases are class actions, brought on behalf of all persons who will be subject to these various programs; for example, the Arizona action was on behalf of “[a]ll Latino persons who, since January 2007, have been or will be in the future stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County Arizona.” The lead plaintiffs in both cases are individuals who have been subject to these unconstitutional law-enforcement programs in the past. No damages are sought in either case, only declaratory and injunctive relief.

But  Clapper and Lyons seem to suggest that a plaintiff can obtain standing to challenge law-enforcement policies only by showing a certainty or high likelihood that they will be subject to enforcement efforts in the future. Even accepting the breadth of the challenged municipal policies,  standing requires that this plaintiff show that he himself will be subject to enforcement efforts pursuant to those policies. And Lyons tells us that past harm is not sufficient to establish future harm; that someone was subject to unconstitutional enforcement efforts in the past (as was the plaintiff in Lyons, as well as the lead plaintiffs here) does not mean he will be subject to enforcement efforts in the future.

So how is either case different than those precedents for standing purposes? The only apparent difference is that both are class actions, while neither Clapper nor Lyons was. But should that be enough for Article III purposes? That seems to place a lot of substantive import on a procedural mechanism. I cannot imagine the five-justice majorities in either case would accept that the standing limits they imposed are overcome by nothing more than Rule 23. Are there any other differences that, in light of current doctrine, justify standing in these cases in light of Clapper and Lyons?

Posted by Howard Wasserman on May 28, 2013 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4) | TrackBack

Hey, look . . . there's an administrative state!

This WaPo piece by Jonathan Turley ("The rise of the fourth branch of government") was welcome (because it will be seen, I suspect, by at least some of my students as adding some plausibility to my own suggestions in class that the place and role of the "administrative state" in our constitutional structure raise tricky questions) but also kind of funny: "The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding.  We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government."  Whoa . . .  who knew?

Posted by Rick Garnett on May 28, 2013 at 09:05 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0) | TrackBack

Thursday, May 23, 2013

Gruesomeness and the First Amendment

As one who is interested in both women's reproductive rights and the First Amendment, I find issues at their intersection of those protections to be inherently fascinating. One such set of issues surrounds abortion protests, and a particularly thorny question under that broad rubric involves the permissibility of restrictions on the display of gruesome or graphic images of dismembered fetuses. Usually, such arguably content-basedrestrictions, which appear to raise First Amendment concerns, are justified as protecting children from the disturbing imagery.

Now, it appears the formidable Eugene Volokh has filed a cert petition in a case involving just such a restriction, in the form of a state-court injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age." The permissibility of restrictions like this has been the subject of a circuit split, and the Supreme Court is set to discuss the petition at its May 30 conference.

A few random thoughts follow the jump:

First, there are many problems with this sort of restriction that make me uncomfortable, not the least of which are the vagueness of the term "gruesome" and the problem of limiting what can be displayed in public because of concerns about the possibility that young (perhaps only very young) children might be disturbed by it.

At the same time, though, I do think there is a category of speech (really, imagery) that is so visually--one might even say viscerally--disturbing that there may well be a compelling interest in protecting children from it. Moreover, I say "compelling," because I'm assuming this is a content-based restriction requiring strict scrutiny, but I'm not completely sure that's true. This might be viewed as a content-neutral restriction on the manner of speech, justified by concerns about the physical impact ("secondary effects"?) of that speech on others -- not because of the message conveyed but because of the way it is conveyed. Of course, the problem is that it is exceedingly difficult to distinguish the medium from the message here.

Yet, at the same time, these sorts of arguments run smack up against Brown v. Entertainment Merchants Ass'n, where the Supreme Court made it clear, once again, that the only horror we can't expose our children to is sex. Only sexual content is so forbidden, so disturbing, and so inappropriate for children that it can be off-limits to them when it is constitutionally protected to adults. To be clear, I don't think sexually explicit content is usually appropriate for minors, and I also don't favor lots of new limits on speech in the name of protecting minors. But I really don't get the rationale, other than tradition, for drawing this sort of line between sex and violence or other content that is likely equally upsetting to children. 

Finally, and a little more tangentially, I think the extent to which debates about abortion are often driven by a sort of "graphic-ness," in the sense of a highly visual orientation, both in the imagery but also in the language of Supreme Court cases, is peculiar and fascinating, as I have briefly explored elsewhere.

Posted by Jessie Hill on May 23, 2013 at 04:24 PM in Constitutional thoughts, First Amendment | Permalink | Comments (1) | TrackBack

Police Body Cams

This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in  the trial  challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.

Posted by Howard Wasserman on May 23, 2013 at 03:50 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Wednesday, May 22, 2013

IRS and the political valence of constitutional litigation

I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.

In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?

• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).

• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?

• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.

• Lots of those darn conclusory  and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.

• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?

The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.

Posted by Howard Wasserman on May 22, 2013 at 02:34 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack

9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion

Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:

The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:

A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

 B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

 The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).

After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.

Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.

That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:

The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.

Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.

These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.

Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.

By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:


1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.

2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).

3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 "were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out"). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.

4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman's right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: "But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open[] up the scissors [and stick in] a high-powered suction tube into the opening, and suck[] the baby’s brains out” was not enough in Gonzales to justify a complete prohibition."

What happens next? Rehearing en banc is possible but my guess is it won't happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon's opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court's prior precedent, a view I could easily see several Justices wanting to "correct".

- I. Glenn Cohen

Posted by Ivan Cohen on May 22, 2013 at 11:39 AM in Constitutional thoughts, Gender | Permalink | Comments (6) | TrackBack

Sunday, May 12, 2013

Marty Redish and A Jurisdictional Perspective on New York Times

The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.

My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.

Here is the abstract:

New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.

Posted by Howard Wasserman on May 12, 2013 at 09:42 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack

Wednesday, May 08, 2013

“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case

At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:

“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”

The exchange is all the more curious because, despite her scepticism, Kagan signed on to the Court’s holding that the Medicaid expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.

First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.

In Sebelius, for the first time in its history, the Court found such unconstitutional ‘compulsion’ in the deal offered to States in order to expand Medicaid under the ACA. In finding the Medicaid expansion unconstitutional, the Court contrasted the ACA case with the facts of the Dole case, wherein Congress “had threatened to withhold five percent of a State’s federal highway funds if the State did not raise its drinking age to 21.”In discussing Dole, the Sebelius Court determined that “that the inducement was not impermissibly coercive, because Congress was offering only ‘relatively mild encouragement to the States’,” and the Court noted that it was “less than half of one percent of South Dakota’s budget at the time” such that “[w]hether to accept the drinking age change ‘remain[ed] the prerogative of the States not merely in theory but in fact’.”

By contrast, when evaluating the Medicare expansion under the ACA, the Sebelius Court held that the

financial “inducement” Congress has chosen is much more than “rela- tively mild encouragement” – it is a gun to the head [...] A State that opts out of the Affordable Care Act’s expansion in health care cover- age thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs [...] The threatened loss of over 10 percent of a State’s overall budget, in contrast [to Dole], is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.

I argue that this analysis is fundamentally misguided, and (if I may say so) I have some fun doing it! As I summarize the argument structure: If the new terms offered by the Medicaid expansion were not coercive, the old terms were not coercive, and the change in terms was not coercive, I find it hard to understand how seven Supreme Court Justices could have concluded that coercion was afoot; the only plausible explanation is that these seven Justices in Sebelius fundamentally misunderstood coercion. This misunderstanding becomes only more manifest when we ask exactly ‘who’ has been coerced, and see the way in which personifying the States as answer obfuscates rather than clarifies matters.

The paper is out, but I will be doing a book chapter adapting it so comments still very much approeciated.

- I. Glenn Cohen

Posted by Ivan Cohen on May 8, 2013 at 12:01 PM in Article Spotlight, Constitutional thoughts, Current Affairs, Legal Theory, Peer-Reviewed Journals | Permalink | Comments (11) | TrackBack

Tuesday, May 07, 2013

"Constitution USA" with Peter Sagal

"Constitution USA" (more here) premieres tonight, on your local PBS station.  It's hosted by Peter Sagal, of "Wait Wait . . . Don't Tell Me!", and includes bits with a number of law profs (including me, I'm afraid -- that's a whole lotta bald!) about speech, federalism, civil rights, religious liberty, and lots of other things.  I've seen some clips, and the show looks to be a lot of fun!  Check it out, tell your students, etc., etc.

Posted by Rick Garnett on May 7, 2013 at 03:31 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0) | TrackBack

Saturday, May 04, 2013

What Rational Basis Review Really Means

Thank you to Dan and the rest of the Prawfs regulars for having me back! I'll be blogging lightly for the next few days due to other commitments, but I hope to make up for it later in the month.  Most of my posts will deal with individual constitutional rights.

Meanwhile, I came across a case the other day that I thought might interest my fellow constitutional law professors, particularly those who are, at this busy time of year, immersed in answering student questions or designing their final exams.  It's not a new case, but it helps reveal exactly how little is required for the government to survive rational basis review.

The case is an unpublished case from the Second Circuit -- Jordan v. City of New London, 225 F.3d 645, 2000 WL 1210820 (2d Cir. Aug. 23, 2000).  There, the Second Circuit rejected the claims of a man who was barred from becoming a police officer because his score on an intelligence test was too high.  He scored 33 points -- the equivalent of an IQ of 125 -- and the New London Police Department interviewed only candidates whose scores ranged from 120-127 "to prevent frequent job turnover caused by hiring overqualified applicants."  The city's argument was that high-scoring prospective officers are more likely to become bored quickly and move on to other jobs, thereby wasting the resources that were invested in their training.

The Second Circuit held that even in the absence of a proven statistical correlation between high scores and turnover resulting from low job satisfaction, the city was entitled to rely on materials from the test-maker that said such a relationship existed or might exist, even though those materials themselves also cited no evidence of such a relationship.  Moreover, the Second Circuit did not publish the case, suggesting that it viewed its decision as uncontroversial.

The purpose of my post isn't to agree or disagree with the result.  It's simply to provide (another) example professors might use to demonstrate how much support courts require in order for the government to survive rational basis review.  And the answer appears to be:  not much.


Posted by Nancy Leong on May 4, 2013 at 09:29 AM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Monday, April 29, 2013

First Amendment on campus

Here are a couple of stories  about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.

The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.

Nevertheless, this sort of assignment raises some dicey issues, were anyone to object. While school curricula need not offer accommodations to students who object to particular assignments on religious grounds, is there a line when those assignments leave the bounds of the classroom and the course and venture into discussions, debates, and activities in the public at large? Alternatively, is there a difference between having to write a paper taking an objectionable position and having to participate physically in an activity that expresses that same position? And how should we handle  internships and externships, which straddle the line between the classroom and the broader world and broader public discussion.

My wife teaches social work and encounters (either personally or in stories in the profession) these issues frequently. Social work imposes a code of ethics (to which social work students are expected to abide) requiring them to be educated about and understand "social diversity and oppression" with respect to every group or basis imaginable, which often is interpreted to mean students cannot opt-out of treating or working with objectionable groups or using methods with which they disagree. Most social work programs required courses in "diversity." And internships are a required, central part of social work education, so the issues potentially arise in and out of the classroom. So, for example, one public university settled a case with a student who was disciplined for failing to sign a letter in support of same-sex marriage that was going to be sent out publicly; the religious advocacy group that represented the student urged this class v. broader public line.

For some related thoughts, see this piece by Stanley Fish discussing a controversy at Florida Atlantic University (my neighbor just up I-95) over an assignment purporting to force students to stomp on a paper with Jesus's name or image. Fish mentions a case in which a Mormon theatre student at the University of Utah sued when forced to play a particular role in an acting class exercise that she alleged interfered with her religious beliefs.

The second story is from the University of Arizona, where a few students, led by a guy who calls himself "Brother Dean Samuel," counter-protested a Take Back the Night Rally with signs reading "You Deserve Rape" (a closer look at other of Brother Dean's expresion shows that he, not unlike Westboro Baptist, apparently hates everyone who isn't him). His signs received a large above-the-fold story in the Arizona Daily Wildcat, which Brother, of course, gleefully retweeted. There was a tepid statement from the university that the speech is protected and he "has yet to, at this point, violate the student code of conduct."

Actually, the most anger was directed towards the Daily Wildcat for reporting on Brother Dean and giving him the forum he is looking for and would not get, or warrant, otherwise. The paper responded, basically emphasizing the obligation to report bad or unhappy news, the importance of Brandeisian counter-speech, and the fact that ignoring a problem does not make it go away (comparing, e.g., Westboro Baptist, bullying, and Jim Crow). Fair enough as to the Brandeisian point, I suppose. But the third point seems flat wrong, at least as applied to this situation, because their analogies are inapt. In terms of ignorability, there is a fairly obvious difference between an unjust soci0-political system that wields actual political power and negatively affects people's lives and one schmuck who wants to hear himself spout stupid ideas. Reporting on and publicizing the latter, and helping him reach a broader audience with his absurd thoughts, actually gives him power he would not otherwise have. This is not to suggest the paper was wrong to publish the story, but only to suggest that it is not as simple as their statement suggests.

Also, if the idea is to encourage counter-speech, the paper's approach is arguably counter-productive. Suppose a group of students is trying to decide whether to counter-protest. Under the paper's logic, the counter-protest makes this a large Page-1, above-the-fold "story," resulting in greater coverage and dissemination of Brother Dean's stupidity. So perhaps the better approach is for the counter-speakers is to stay home, avoid "creating" a story, and allow Brother Dean to remain ignored, by them and the paper.

Third, back at FIU. I spent this year working on a university committee, lead by the university's general counsel, to make recommendations about new regulations for on-campus demonstrations, in the wake of some conflicts that arose with Occupy here and on other campuses, notably UC. It was a fun experience. But I came away from it convinced of the need to include in undergrad orientation some discussion and education on the role of the First Amendment, public demonstrations, and civil disobedience, particularly on a college campus. Which our students could use. "Freedom of speech is a privilege"? Yeah, a teach-in on the First Amendment may be a good idea.

Posted by Howard Wasserman on April 29, 2013 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4) | TrackBack

Thursday, April 18, 2013

Why fan speech matters

If you want proof that sports fan speech matters, that it has strong political content, and that the stands of sporting events are a site for genuine First Amendment activity, look no further than last night's Boston Bruins game, the first game played in Boston since the Marathon bombing.


Sporting events remain the only place in which adults regularly gather and engage in patriotic rituals, so the game marked one of the first ordinary events in which people could come together in an expression of patriotism, support, and healing in the wake of a tragedy. It is a great moment--and also an unquestionably political one and an unquestionably expressive one.

Posted by Howard Wasserman on April 18, 2013 at 08:19 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5) | TrackBack

Jurisdiction (of every shape and kind), Merits, and Kiobel

SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.

The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.

But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.

The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:

The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.

In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.

Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).

The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.


Posted by Howard Wasserman on April 18, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3) | TrackBack

Monday, April 01, 2013

The limits of governmental standing

Having now listened to the justiciability portions of the arguments in Windsor and Hollingsworth, I return squarely to an issue I glanced at here, argued more explicitly in some presentations of that paper, and may hope to return to at some point in the future:

When the government (whether federal or state) is unquestionably the real party in interest in constitutional litigation, why should Article III care who appears as "the government" or who represents (or purports to represent) the government's position and interest? Adverseness, the real concern underlying standing, is present simply because the government is a party to the case. Who (really what part of the government) makes the government's case does not affect adverseness and therefore should not be an Article III concern. It may implicate other constitutional provisions and concerns--the Take Care Clause or the Guarantee Clause--as well placing on governments the burden of legislating and planning for how those representatives will be identified. But the courts really should not care about it fas to the basic demand for a case or controversy.

Posted by Howard Wasserman on April 1, 2013 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3) | TrackBack

Tuesday, March 26, 2013

Line of the Day--Non-Marriage Edition

People have been tweeting and writing about various lines to come out of yesterday's arguments in Hollingsworth, whether played for laughs or as portentous. Here's one that slipped in, both because it's not about same-sex marriage or standing and because it's kind of inside baseball:

Early in his argument opposing Prop 8 and arguing that the proponents lacked standing, Ted Olson suggested that a state could appoint a special officer to defend a ballot initiative where elected officials choose not to do so. When Justice Scalia wondered how the governor who refused to defend the initiative can be expected to appoint someone else to do so, Olson responded: "Well, that happens all the time. As you may recall in the case of--well, let's not spend too much time on independent counsel provisions."

Explanation here.

Posted by Howard Wasserman on March 26, 2013 at 11:56 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Monday, March 18, 2013

SCOTUS doings

Two items of interest involving SCOTUS (not having anything to do with one another, except relating to SCOTUS's docket):

1) The Court today granted cert in Madigan v. Levin, which considers whether state and local employees can bring constitutional claims of age discrimination through § 1983 rather than going through the ADEA. The Seventh Circuit said they could, a departure from several other circuits. But most of those decisions came before SCOTUS' 2009 decision in Fitzgerald v. Barnstable Sch. Comm., where the Court held that a student could bring sexual harassment claims against a school and school officials under both Title IX and the Constitution. Fitzgerald emphasized the differences between the constitutional and statutory claims--including the identities of liable defendants and the applicable legal standards. The Seventh Circuit was the first court to apply Fitzgerald's analysis to the ADEA or other employment discrimination statutes.

The logic of Fitzgerald means the Seventh Circuit should be affirmed. Plus, I spent time in my book on § 1983 litigation discussing Levin as the appropriate application of Fitzgerald to other civil rights laws. I hope the Court doesn't somehow make me look bad on this

2) Mike Dorf discusses Holingsworth and Windsor, arguing that these cases are not likely to trigger massive resistance (a la the response to Brown) and thus are not appropriate for Bickelian passive virtues or Sagerian underenforcement. I agree with Dorf that if the Court recognizes a broad right to marriage equality, massive resistance is nearly impossible to imagine. But it is worth considering why.

The key is, what would massive resistance to Hollingsworth look like? Implementing Brown (even if the Southern states had actually tried to implement it in good faith) required a massive restructuring of the state educational system. And faced with resistance, federal courts felt hampered in their ability to compel compliance, given the costs and burdens involved. Whether or not those were legitimate reasons for the courts to stay their hand (either in Brown or later), the concerns are absent as to marriage equality. A decision in Hollingsworth holding that the 14th Amendment requires marriage equality would involve states issuing licenses when people ask for them, without any fundamental change to institutional structures. I suppose all the officials in a state could conspire to not issue licenses to same-sex couples. But any such resistance could be remedied with a simple injunction ordering compliance, an order that federal courts would be more willing to issue and vigorously enforce, since it would not impose great (or, for that matter, any) costs on the state.

Posted by Howard Wasserman on March 18, 2013 at 03:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack