Saturday, February 13, 2016
Does Donald Trump Have Standing to Keep Ted Cruz off of the Ballot?
The other day Donald Trump claimed, on Twitter, that he has standing to challenge Ted Cruz's eligibility to be president. The substantive question revolves around whether Cruz is a "natural born citizen" because he was born in Canada.
Rick Hasen, who should always be trusted when it comes to matters of election law, suggests that Trump would have standing based on the notion of "competitive standing": in essence, Cruz's (improper) appearance on the ballot makes the election more competitive for Trump. Trump is therefore injured by having to run a campaign against an opponent who might not be eligible for the office.
I'm not convinced.Most fundamentally, the cases invoking the "competitive standing" doctrine all involved the government providing some benefit on some candidates but not others, thereby putting the candidate at a "competitive" disadvantage in the campaign. In one case, Ralph Nader had standing because he objected to participating in a presidential debate sponsored by corporate donors. He suffered an injury, as compared to his rivals, because of the decision to hold the debate in a manner that was contrary to the message of his campaign -- making the election fundamentally less competitive for him because he could not reach voters who would watch the debate. In the cases giving "competitive standing" to political parties, there was direct evidence that the governmental action would directly cause added expenses: for example, when the Republican Party in Texas sought to remove Tom DeLay from the ballot and substitute a new candidate, the Texas Democratic Party suffered an injury-in-fact in the need to mount a completely different campaign against a different opponent. Courts have also found an injury to a political party when the party's nominee will face stiffer competition, i.e., leading to added expenses, but this relates to the general election, when ideological lines are clearer.
Here, the added expense to Trump seems fairly speculative. How can he demonstrate that Cruz's placement on the ballot has harmed him directly? Maybe all of Cruz's supporters would vote for Ben Carson. Can he point to any direct campaign expenses that he has incurred, and would not have, if Cruz were not on the ballot? That is, how does Cruz's placement on the ballot directly cause any injuries to Trump? Is it because he is the front runner, meaning that Jim Gilmore would not have had standing (before he dropped out, of course)? Further, this situation seems different from the government sponsoring a debate but having rules that effectively exclude one candidate, providing a clear competitive disadvantage to that candidate.
At a minimum, this does not seem to be a clear-cut case. To be sure, Trump could sue in state court under various state standing doctrines, or have a state's ballot commission rule on Cruz's eligibility. (Derek Muller is compiling these various lawsuits, brought by voters, here.) And he could sue after the election in each state, saying that his loss of delegates was caused directly by Cruz winning some of those ballots when Cruz was ineligible. But I think that a pre-election suit to try to take Cruz off of the ballot is a much harder road. Trump would need to show that this "competitive standing" doctrine should extend beyond political parties at a general election, beyond a conferral of actual benefits to some candidates but not others, but to the mere appearance of an additional candidate on the ballot, when the election has not yet taken place.
My guess is that a federal court will not want to wade into the murkiness of Trump's standing and will wait for the political process to play out, or for after the election in that state, to make a ruling. If it does reach the question of Trump's standing, then there are good arguments against his ability to bring this suit.
Wednesday, February 10, 2016
Ferguson consent decree falls apart, DOJ sues
The proposed consent decree between DOJ and the City of Ferguson has fallen apart, after the City Council on Tuesday night approved the deal, but demanded seven changes to the deal, mostly involving extended deadlines and limits on costs. DOJ wasted no team in filing a civil action today, alleging patterns and practices of various police abuses, in violation of § 14141 (via the First, Fourth, and Fourteenth Amendments) and Title VI. The complaint contains all the things we already knew from earlier DOJ reports.
I am somewhat surprised DOJ jumped to a lawsuit so quickly, rather than trying a bit of additional negotiation. My guess is DOJ was ticked that the Council would undermine seven months of negotiation in single night. Life imitating art imitating life?
Where do Republicans go?
The refrain among Democrats, liberals, and progressives on the eve of a presidential election is always "If [insert Republican candidate] wins, I'm moving to Canada." (Dahlia Lithwick offers guidance).
Where do Republicans and conservatives threaten to go if Bernie Sanders wins?
Tuesday, February 09, 2016
Three-Judge Courts and Precedent: An Election Law Procedural Quirk
Must three-judge federal district courts follow the law of the circuit in which they sit?
Three-judge district courts are an anomaly, used mostly in certain election law disputes such as statewide redistricting claims and some campaign finance litigation. In these cases, the initial single judge refers a qualifying case to the chief judge of the circuit, who will constitute a three-judge district court. (The Supreme Court clarified, this term, that the single judge may not consider the merits, but must refer all qualifying cases to the chief judge for the creation of a three-judge district court.) The chief judge assigns a circuit judge and two district judges to serve as the three-judge court. The court sits like a normal trial court, making findings of fact and conclusions of law. Decisions of this court are appealable directly to the U.S. Supreme Court, skipping the court of appeals stage. Congress created this procedure for cases that will uniquely benefit from faster resolution and multiple minds at the outset, as the decisions are often seen as less biased and more legitimate. (For more on this process, see my article The Procedure of Election Law in Federal Courts.)
Sometimes, these courts face questions that the circuit court in which they sit have already decided. A circuit court ruling on a particular point of law would be binding on a single district judge. Are these appellate decisions also binding precedent on a three-judge district court? Although most three-judge district courts have said that they must follow circuit precedent, they are wrong. I explain why after the jump.
Assume that a plaintiff brings a redistricting case under the Voting Rights Act, arguing that the mapmakers did not create enough "influence districts," where minority voters, even though not a majority, can still have a meaningful impact on who wins. Assume further that the circuit court has ruled, in a separate case that does not go through the three-judge district court process, that the Voting Rights Act does not permit a claim for influence districts. Must the three-judge court, as a matter of binding precedent, follow that circuit court ruling?
Three-judge district courts considering this question have largely assumed that they must follow circuit law. But they have provided very little discussion on this point. The analysis has been conclusory, at best. Courts typically write something like "we are bound by precedent in this circuit," without more. Indeed, my initial research has found only one three-judge district court that has gone the other way, holding that, while certainly persuasive, it was not bound to follow circuit law as mandatory.
This minority view is correct if one thinks about the difference between superior and inferior courts. Put simply, because the circuit will never review the decision of the three-judge district court, it is not a superior court to that three-judge district panel. If it has no power of review, then its decisions cannot be binding precedent. To be sure, its decisions are highly persuasive, but the only court that has binding authority over the three-judge district court is the U.S. Supreme Court. That is the only court that could reverse the three-judge district court for not following its decisions.
Thus, if judges are bound by “higher” courts in the judicial hierarchy, than the converse also must be true: judges need not follow decisions of courts that are not directly above them. Indeed, this is the reason why one district judge need not follow the ruling of a prior district judge, and why one circuit court is not required to rule consistently with another circuit court. (The prior panel rule within a circuit, however, cuts the other way. I will address why the prior panel rule does not change the analysis in a future post--or at least in the article that will come out of this analysis.)
In sum, the circuit court is not directly above the three-judge district court -- even though that court is a district court sitting within the circuit -- meaning that the circuit court's decisions are not binding precedent. Although perhaps a seemingly minor problem, this analysis should change how three-judge district courts consider various issues that may arise. It also has important consequences for the U.S. Supreme Court, which I will address later.
Friday, February 05, 2016
Power or Participation? Consensus in Political Deliberation
How should we structure our democratic institutions? Do we worry about political power, and so seek to maximize the ways in which political authorities are accountable to the public? Here we might emphasize reciprocity as a core feature of political institutions. Or to maximize the public’s participation in the political process. On the one hand, accountability checks the unbridled power of the political elite. On the other hand, public opinion is likely to be ill-formed or easily manipulated, more the result of passion than reason or knowledge, as Madison worried in Federalist 10? If we are worried about an ill-informed public, then we might promote a form of participation that allows political representatives to discount public opinion, even while maximizing public participation in selecting those representatives or even canvassing opinion.
The debate about political process has become especially important in the policing context. The Final Report of the President’s Task Force on 21st Century Policing enthusiastically endorsed procedural justice as the best way for the police to build trust and legitimacy within their communities. Procedural justice has been endorsed on the other side of the Atlantic as a means of promoting consensus based policing. Drawing on research from organizations whose members share a common purpose, procedural justice argues that we ought to adopt procedures that encourage participation, and treat the participants respectfully, beneficently, and neutrally.We might think that fair procedures are ones that guarantee participation, but not influence. What matters is that authorities have a duty to allow participation, and convince participants that they are treated neutrally, respectfully, and as members of the same group, not that authorities must in practice so treat participants. We might think that while a fair procedure does not guarantee participation, it need not preclude it: a participative procedure would be one in which authorities and subordinates see each other as part of the same organization, with the same interests, and so would come to the same conclusions were everyone consulted. What matters most, however, is that the organization generate the right result, and that subordinates comply with that result. Because participative procedures maximize the likelihood of compliance, what matters is participation rather than influence or accountability (what we might call reciprocity). A version of this thesis can be found in Madison’s Federalist 10; and something like it has been described as unitary democracy by Jane Mansbridge. And it seems to be at the heart of procedural justice.
Consensus democracy is compatible with idea that authorities may be, for various reasons, justified in encouraging subordinate participation in the process of decision-making—giving subordinates a voice—while at the same time misrepresenting the amount of influence the subordinates wield in the process. If the goal is to ensure compliance or cooperation, and everyone would agree on the outcome if they were sufficiently well-informed and rational, then it does not undermine the subordinate’s interests in the right result that they are mistaken about the extent of their influence, particularly if they are more likely to reach that result without sanction (and, from the perspective of the authority, without expensive inducement).
But what of dissensus democracy, where there is no right result, or where there is a split authority (such as the tripartite structure of American government) or where the interests of the public conflict in certain ways with the interests of the government? Should we value compliance or cooperation with the authority and so accept as fair those procedures that more effectively produce these effects; or should we instead opt for a process that permits, not just participation, but also reciprocal accountability. That sort of procedure would not only require participation, but also power-sharing, among the members of the organization, or of the community, or of the country.
The debate is an old one, but it has practical urgency in the context of policing. The four-part procedure I described above—participant voice; authority neutrality, respectfulness, and beneficence—are the features of procedural justice which promise to reign in police use-of-force at the same time as more effectively ensuring compliance and cooperation than other methods, baed on inputs like law-abidingness, and outputs like crime reduction or even avoiding criminal sanctions. A core issue is whether compliance and cooperation with the police is a goal that we all share. For example, we have the right to terminate police encounters by walking away and refusing to answer questions; and even if arrested we have the right not to comply by declining to speak during an interrogation. Should we also have the right to challenge the police to justify taking us into custody or searching us by articulating their grounds for doing so? Should the police be dynamically responsive to our facts or reasons or can they ignore our input while still providing for our participation as a way of mollifying us and getting us to comply? Famously, police interrogations follow a two-part process in which the interrogator first determines whether the suspect is guilty or not (the unitary purpose) and then uses various psychological techniques to induce compliance, both at the waiver and at the confession stage of the proceedings. The technique is so powerful, studies show, that some suspects will not only confess, but actually convince themselves that their interrogator was right and they were mistaken about what actually happened.
How structure fair procedures to maximize participant power and participation presents difficult questions. Whatever the answer, procedural justice provides a fascinating account of the way in which the structural features of our interactions with authorities can have important psychological and behavioral consequences, consequences that are of deep democratic significance.
Thursday, February 04, 2016
Who is making the 700,000 FOIA requests the government receives every year?
The Freedom of Information Act has been making a bit of news recently, as Congress considers proposed reforms, and the House has even passed a bill that would effectuate the most significant changes to the statute in nearly a decade. Many of the proposals are excellent, and, if enacted, would certainly strengthen the public’s right to access government records.
But a more structural problem plagues FOIA, one that I explore in depth in my forthcoming article: it was designed to perform one function and, to a large extent, it is used to serve others. What purpose was it designed to serve? Mostly journalists’ interest in reporting the news to the public. In fact, it may even be fair to say that the news media essentially drafted the law. In 1953, Harold Cross wrote a book called “The People’s Right to Know” in his capacity as an advisor to the American Society of Newspaper Editors, the most prominent journalism association at the time. After documenting the patchwork of existing access laws, most of which fell woefully short of journalists’ needs, Cross called on Congress to legislate a right to access public records. Because the book garnered interest in Congress, Cross himself subsequently become the legal adviser to the special subcommittee in the House of Representatives tasked with drafting the law, and journalists mostly staffed the committee. That is, journalists were crafting the very contours of the law, not just its vision.
And the vision was equally important to Congress. The whole idea of a public records’ access law designed for journalists was that the news media could use the law to inform the public about government activities, thereby enhancing the public’s ability to participate in democratic governance and hold elected officials accountable. The legislative history of FOIA is replete with references for the need to have an informed electorate as vital to a democratic society.
The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.
In my study, I focus on one group of these other requesters: commercial requesters. Commercial requesting has previously been poorly or only anecdotally understood, and I thus seek in my paper to document an in-depth account of how commercial interests are served by FOIA. To that end, I conducted case studies of particular agencies with significant numbers of commercial requesters whose data on FOIA usage I obtained by filing my own FOIA requests, and at each of these agencies I ended up studying, the amount of commercial requesting is very significant.
I will leave you with those perhaps surprising statistics, and will elaborate in my next post on the various ways in which commercial entities are using FOIA as part of their profit making enterprise.
Tuesday, February 02, 2016
Thanks to Howard for the invitation and the welcome. I am truly delighted to be guest blogging on Prawfs this month. For those of you I have yet to have the pleasure to know, I am a long-time die-hard proceduralist. I teach Civil Procedure, Administrative Law, and Federal Courts, and this semester for the first time, have added perhaps my first “substantive” course, National Security Law. Although any good proceduralist knows the substance/procedure dichotomy is murky, if not entirely false, I will admit that the move away from procedure has in fact felt uncomfortable, though certainly exciting.
In some ways, teaching National Security Law was the next, inevitable step for me. I have written about procedural aspects of government secrecy for essentially my whole (short) academic career. For a long time I fought full engagement with national security, hoping instead to address problems with procedural rights and remedies for all kinds of secrecy equally. But the truth is that our deepest government secrecy problems today concern security, and national security secrets are not treated the same as other secrets.
As you may have guessed by now, I am planning to use my time here to share my thoughts on the intersection between government secrecy, procedural justice, and national security. Before I get to national security, though, I will begin with a few posts on a slightly orthogonal topic: the corporate and commercial use of the Freedom of Information Act. I will share with you some of the findings I report in my forthcoming article FOIA, Inc., which is based on original data collected from six federal agencies’ records. While I think the findings are, in and of themselves, quite surprising and worthy of consideration, I hope by the end of my series, when I engage more fully with national security secrecy, I can make the connection between these two threads apparent.
I am looking forward to the month!
Sunday, January 31, 2016
Donald Trumps the 22d Amendment
have heard of the Twenty-Second Amendment?
The Supreme Court, On Demand
It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.
The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.
In 2011, the Judicial Conference of the United States authorized a pilot program for periodically recording civil proceedings in fourteen federal district courts. The proceedings are then uploaded to the U.S. Courts website, where they are indexed and accompanied by additional information on the case. The entire process is conducted by the courts themselves, without media cameras or external video processing. The result has been a video library of hundreds of proceedings, ranging from pretrial conferences to summary judgment hearings to multi-day trials. The videos have been viewed hundreds of thousands of times.
The success of the district court pilot, which I explore in much more detail here, offers an excellent blueprint for a parallel Supreme Court program.
First, as the district court pilot has shown, both practicing lawyers and ordinary citizens stand to learn a great deal from actually watching Supreme Court proceedings. Watching the Court in action educates those in the legal profession about procedures before the Court, the issues of particular interest to the Justices, and ways in which an attorney might capture the interest and attention of the Court. For the public, watching the Court in action is all the more important: rather than allowing journalists and comedians define the Court’s work after the fact, the public can go straight to the source. Many studies suggest that watching an event on video (whether delayed or through live streaming) carries many of the cognitive benefits accrued from watching a live event. Whether the public would take advantage of this educational opportunity in any serious way is an open question, but at least that opportunity would exist.
Second, a recording (and/or live streaming) program would bolster the Court’s public legitimacy, by openly demonstrating the court’s commitment to transparency and accountability. Public support for the Supreme Court has been hovering at or below 50% for much of the past decade. At the same time, the public is increasingly seeking information through screen time. Watching the Court in action can demystify the judicial process and reduce public reliance in the messaging of politicians, reporters, and editorial writers. Supreme Court Justices, like all federal judges, are public servants. If they are proud of their work, they should welcome public viewing.
Finally, it suggests how the courts can achieve these educational and transparency goals without relying on the news media—the primary public concern of the Justices. Just as cameras have been placed in unobtrusive locations within district courtrooms, and the final recordings made available on the courts’ website, so too can recordings of Supreme Court proceedings be made available on its website, accompanied by rich contextual matter. The Supreme Court can also easily provide live streaming of oral arguments and case announcements without threatening the dignity or solemnity of the proceedings. Indeed, it may avoid the alternative, John Oliver-style, treatments. If the Court really wants to have some control over its own message, it cannot close its eyes and ears to the realities of the twenty-first century.
At least, we can hope.
N.B. -- The district court program has been an excellent resource for my teaching, and I recommend it highly for others whose students cannot as a practical matter visit the courthouse to observe proceedings.
Thursday, January 28, 2016
Ferguson consent decree
DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.
Monday, January 25, 2016
More judicial departmentalism
A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.
First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]
Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.
Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.
Saturday, January 23, 2016
Show (audibly), don't tell
Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.
Wednesday, January 13, 2016
Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?
I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth. Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances. Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen. (See also classic Charles Gordon article here). In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original).
There is a catch, though, that has apparently not been addressed. Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen. However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28. In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision. Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement. But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence.
The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas. Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen. But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this. Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him. Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so. I would love to hear what other people think.
Sunday, January 10, 2016
Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.
1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.
[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.
The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.
2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.
Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.
3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.
[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.
4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?
Thursday, January 07, 2016
Speaking of judicial selection...
Monday, January 04, 2016
The Last Days of Elected Judges (1966 edition)
Happy New Year! It’s great to be back at Prawfs for another go-round. I thought I would start with an unusual find: while cleaning out my parents’ basement last month, I came across a yellowed but otherwise pristine copy of the Intermountain Jewish News, dated November 4, 1966. The IJN was (and is) a significant paper for the Jewish community in Denver and the Rocky Mountain West, and the edition I found was printed just days before the November 1966 general election—the last time that Colorado’s state judges would run for office. In that same election, voters passed Amendment 3, which ushered in a merit selection system: judges would henceforth be chosen by the governor from a slate prepared by a nonpartisan nominating committee, and subjected to retention elections at the end of their terms. Put another way, on Election Day 1966, Colorado voters chose their judges at the ballot box while simultaneously removing their ability to do so in the future. Fifty years later, that 1966 edition of the IJN provides a nice snapshot of a judiciary—and an electorate—struggling to balance a tradition of direct democracy with the promise of fair and impartial courts.
Colorado was the fifth state to adopt a merit selection system, and advocates of merit selection had to overcome both 90 years of state history (judges had always been directly elected) and the sense that nothing was particularly wrong with the existing system. There had been relatively little scandal or symptoms of crisis in the state judiciary in the 1950s and 1960s. Indeed, many of the men on the judicial ballot that November were widely viewed as persons of integrity, excellent jurists, and dedicated contributors to civic life. Sherman Finesilver, then seeking reelection to a state trial court position in Denver, would later serve nearly a quarter-century on the federal bench. Mitchel Johns was an active member of the local Elks lodge, and Saul Pinchick an active member of B’nai B’rith. Neil Horan, already an experienced incumbent, would survive the 1966 election and later preside over litigation concerning Colorado voters’ rejection of the 1976 Winter Olympics.
It was hard enough just to get merit selection on the ballot. The Colorado Bar Association (CBA) had recommended the end of partisan judicial elections as far back as 1940, when Missouri became the first state to adopt the merit selection system. But proposed ballot initiatives failed to make it through the Colorado legislature in 1949, 1957 and 1959. Still, support slowly grew. When yet another effort by the CBA failed in the legislature by one vote in 1965, the CBA and the League of Women Voters took to the streets and collected more than 47,000 signatures in favor of the ballot initiative. Merit selection, in the form of Amendment 3, would finally be up for a vote in 1966. It proposed sweeping changes to the Colorado Constitution, replacing direct election of judges with a system of nominating commissions, gubernatorial selection, retention elections, and formal judicial disciplinary measures.
The debate over Amendment 3 was vigorous and vocal in the months leading up to the election. Proponents urged adoption as a means of improving the overall quality of the judiciary, promising that judges would not be prone (or at least less prone) to the pull of partisan politics, and that nonpartisan nominating commissions could focus on finding the best people for the job. (Indeed, in a somewhat Pollyanna-ish take, proponents argued in the state’s 1966 voter guide that under merit selection, “The courts would be completely removed from politics.”) Opponents urged that citizens should not give up their right to directly choose judges, a method that both held judges directly accountable to the people and checked the influence of the governor on the judiciary.
The judicial candidates were caught in the middle of the debate. Amendment 3 was premised in part on the notion that elected judges were inferior to appointed ones. Candidates had to show that they were qualified and impartial, even as they had to work within the existing party system to have a chance at success. They walked this tightrope by tailoring their campaign ephemera for the most part to avoid any hint of politics--a strategy still used by judges even in highly partisan election states today. Only three of the ten candidates placing ads in that November 1966 edition of the IJN made mention of their party affiliation. Most emphasized only their professional qualifications: experience, professional skills, and ties to the local community.
Election Day proved to be a mixed bag for the incumbents. Justice Edward Day, a Democrat, was reelected to the state supreme court by the skin of his teeth, coming in third in the race for three open seats behind two Republican challengers. Justice Albert Frantz, who had each been elected in 1956 as part of a near-sweep by the Democrats, was not so lucky. He placed fourth in at-large balloting, just a few thousand votes behind Day, and lost his seat. The trial judges highlighted here—Pinchick, Horan, Johns, and Finesilver—were all reelected and became long-serving jurists.
Amendment 3 also fared well on Election Day, passing by a margin of 53% to 47%. One key to victory for the merit selection proponents was the emphasis on retention elections: voters were not being asked to give up their franchise, but rather to exercise it in a different, ostensibly less partisan, way. It no doubt helped reformers as well that voters in 1966 reelected John Love, a popular and trusted governor, who would be charged with the final appointment decisions under the new system.
There are some useful lessons to be drawn from this history. Colorado’s shift in 1966 was certainly in part a product of bar association’s determination, the state’s political culture, and the era itself. But merit selection was also possible because it was presented as an integrated package of reforms. Nonpartisan selection commissions, gubernatorial appointment, retention elections, and a judicial discipline commission each provided a piece of the “quality judges” puzzle. (A final piece, judicial performance evaluation, was added in 1988.) Removing any of these components, or instituting them in a piecemeal way, would weaken both the appeal and the efficacy of the merit selection system.
The ghosts of 1966 may only live in basement files, but the issues surrounding judicial selection methods are far from settled. States continue to experiment with variations of contested judicial elections, merit selection, legislative appointment, and lifetime appointment. Nor is the federal judiciary immune from the larger discussion: Senator Ted Cruz recently called for retention elections—but only retention elections—for U.S. Supreme Court Justices. I will examine that idea more closely in a coming post.
Sunday, January 03, 2016
Legislative Jurisdiction and Adjudicative Jurisdiction
I am late to writing about the oral argument in Dollar General Corp. v. Mississippi Band of Choctaw Indians, which took place early in December; the case concerns the scope of tribal court jurisdiction in civil actions against non-Tribe members. There was a great deal of discussion of the difference between legislative (or regulatory) jurisdiction and adjudicatory jurisdiction and the connection between them. In particular, there was some question whether, if a sovereign possesses regulatory jurisdiction, it also has adjudicative jurisdiction over any claims for violations of those regulations.
Since the distinction between these two forms of jurisdiction is important to the jurisdiction/merits divide, I am curious to see what the Court has to say on the issue.
Saturday, January 02, 2016
Chief Justice Roberts on speedier civil litigation . . . and dueling?
Chief Justice Roberts' 2015 Year-End Report on the Federal Judiciary focused on the amendments to the discovery and case-management portions of the Federal Rules of Civil Procedure and the need for the rules, courts, and attorneys to speed-up civil litigation. Roberts calls the amendments "a major stride toward a better federal court system," but insists they work "only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change." Adam Liptak covers the report; he includes interviews with several Civ Pro profs questioning the wisdom or necessity of the rules, so at least 1/3 of that triumvirate is not on board.
It is difficult not to read Roberts' facially neutral comments about delays in litigation--he calls out both those who make burdensome discovery requests as well as those who evade legitimate requests through dilatory tactics--as not reflecting the anti-plaintiff slant of much of this Court's procedure jurisprudence. "Speedier litigation" is generally code for getting defendants out of litigation more quickly. Plaintiffs do not win cases quickly, only defendants do; it takes time and effort for plaintiffs to gather the information they need and to carry their burden of persuasion (which only can be done at trial, in any event). But the incentive structure built into these amendments is almost certainly to limit what will be made available to requesting parties far more than to halt dilatory actions by producing parties. This almost certainly works against plaintiffs who depend on discovery to uncover information that in many cases is uniquely and exclusively in defendants' possession or control and unobtainable other than through discovery (e.g., employment discrimination, constitutional cases, and other cases that turn on defendant intent). And by emphasizing the need for speed and efficiency, Roberts' Report appears to be pushing district judges towards that understanding.
Roberts praises those district judges who are "knowledgeable, actively engaged, and accessible early in the process" as best able to resolve cases fairly and efficiently. But this stands in interesting tension with Twiqbal, which ratched the pleading standards precisely because the Court did not trust district judges to effectively manage cases in a way that would protect government defendants against burdensome litigation. But now we have formal rules, and official encouragement from the Chief Justice, promoting just such management. Does this mean that we trust district judges across the board and can return to pre-Iqbal pleading? Of course not, seeing as how the amendments also eliminated FRCP 84 and the Forms precisely because the Forms were inconsistent with Twiqbal. Instead, this smacks of Roberts not-so-subtly hinting which direction judges should be exercising this (not actually new) managerial discretion for those cases that manage to survive pleading and get into discovery.
Roberts begins and ends the Report with a discussion of dueling, its horrors, and its demise--just the sort of distracting and irrelevant rhetorical flourish that I often criticize in his opinion writing. And it feels just as glaring and out of place here. His point seems to be that dueling became obsolete when government began providing functional alternative dispute-resolution mechanisms. Thus, federal litigation must be speedier and more efficient so that it does not make a return to dueling look good by comparison or become the equivalent of a fictional 15-year feud between two Napoleonic-Era French cavalry officers. As he puts it, "We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result." His attempted connection seems especially strained in that dueling, at least as practiced in England and the U.S., was not primarily a method of dispute resolution; it was about restoring honor for perceived personal slights more than determining who was in the "right" in a legal dispute. Dueling thus was different than earlier practices of trial by combat, which rested on the belief that whoever prevailed in combat must have been in the right. It also means that the availability of functional courts would not have mattered all that much, since the personal conflicts settled by duel could not necessarily be transferred into a judicial proceeding.
Update: Michael Dorf argues that the Report can be seen as Roberts' attempt to shape the rules beyond his other three opportunities--appointing the rules committees, voting on the Rules themselves, and interpreting them in later litigation.
Wednesday, December 09, 2015
Does it matter?
Last week, Dana Milbank insisted that Donald Trump is a bigot and racist. His point is that Trump had crossed some line: "[A]t some point, you’re not merely saying things that could be construed as bigoted: You are a bigot." Put differently, "the large number of instances over an extended period add up to a pattern of bigotry." It is a label he will not place on any other candidate, not even Ben Carson, who has said similarly stupid things, just less often.
But does it really matter whether Trump is a bigot or just says bigoted things? Does the label really mean that much? Does it make him any less qualified for the presidency? Isn't it enough that he says anti-X things and proposes anti-X policies; do we need the next step of saying he hates X to make the point? Is it that eighth instance of saying bigoted things--what pushes him over the line to "a bigot"--that makes the difference? Or can I know that I will not vote for him (and that no right-thinking person could vote for him) based on the first seven?
Tuesday, December 08, 2015
Bell v. Hood lives
I am beginning to think of Bell v. Hood the way Justice Scalia thinks about about the Lemon Test: "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried." The Court's recent turn to a broader and sharper awareness of what is merits should require the interment of Bell, which strips courts of jurisdiction over federal claims that are "wholly insubstantial and frivolous." After all, if the question of whether the conduct challenged is reached (and thus prohibited by) a law (or, as I like to say, "who can sue whom for what conduct and what remedy") is a merits question, it should always be a merits question, regardless of the strength of the claim of right.
There were some questions during argument in Shapiro v. McManus hinting that Bell might be on the table, especially given recent jurisdictionality cases that did not even cite Bell. Alas, it was not to be. A unanimous Court, per Justice Scalia, held that any case challenging the constitutional of congressional apportionment must be referred to a three-judge district court and cannot be dismissed by the single district judge. (I wrote about the case for SCOTUSblog). The limited exception, for "insubstantial" constitutional claims, incorporates Bell for "wholly insubstantial and frivolous" claims only, while "[a]bsent such frivolity," failure to state a claim for relief remains a judgment on the merits.
Bell thus survives and is now explicitly incorporated into the three-judge court analysis. In other words, some weak-on-the-merits claims, if the merits are weak enough, still can be dismissed for lack of jurisdiction. And so we continue to be haunted by unwarranted and unnecessary jurisdiction/merits overlap.
Technically . . .
I have no interest in wading into the morass over Judge Posner and Eric Segall's NYT op-ed suggesting that Justice Scalia believes that majoritarian religious preferences can trump minority rights--here is Corey Yung's effort, which began on Twitter. Segall responded to criticisms from NRO's Ed Whelan and Northwestern's John McGinnis. The esponse references Scalia's purported comments at Princeton that Obergefell is not directly binding on non-party public officials, to which Segall says "That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience."
This is why I forbid my students from using the word "technically." (Imagine Yoda voice: "There is no technically; only correct or incorrect."). And in this case, Scalia is correct, full stop. Judgments themselves are not binding on non-parties and precedent is only binding on courts in future litigation, not on executive or legislative officials. Scalia's statement is incomplete, as it does not finish the point that the subsequent litigation against recalcitrant officials is binding on those officials (note that Scalia did not suggest that lower courts are not bound by Obergefell) and may impose other costs on them, such as attorney's fees, sanctions for non-compliance, and perhaps some limits on the arguments one can offer in litigation.
It is similarly problematic to suggest that a Supreme Court Justice should not express this legally correct and accurate proposition. If Justices should not explain how constitutional litigation actually operates, who should?
Sunday, December 06, 2015
State action puzzle
Video captured (link contains multiple videos) numerous incidents of security getting very physical with University of Houston fans attempting to run onto the field following UH's victory in the American Athletic Conference Football Championship. The game was played at the stadium on UH's campus and security was provided by CSC, a private contractor. The most telling images are GIFs of one officer throwing roundhouse punches at a fan lying on the ground and video of another officer body-slamming a fan, only to be loudly called out by two officials in different-colored shirts. UH announced that it is terminating its contract with CSC and looking into any appropriate legal action.
First, it seems pretty clear that CSC and its employees acted under color of state law for any coming § 1983 actions. They were contracted by a state agency to perform the government function of providing security at a public event in a publicly owned stadium. Some might depend on the terms of the contract with CSC and how much control or supervision UH wielded.
Second, I cannot help but notice that most of the student-trespassers (and make no mistake, they are not allowed on the field) shown being tackled are white and many of the security officers are black. It is difficult to not read something into the swift and angry university (i.e., government) reaction, especially compared to the typical response when the victims of police violence are black. This is not to say I am disappointed but UH's response, only that I wonder if it would have been different if the student-trespassers were black and the authority figures white.
Monday, November 30, 2015
Even dogs can vote?!?!?!
Just kidding. I haven't found anywhere in the country that actually allows animals to vote, despite some claims that dogs have registered and voted. In fact, allegations of dogs voting -- including a springer-spaniel named Ritzy Mekler -- was one of the arguments behind the initial push for voter ID laws. Senator Kit Bond claimed that Ritzy Mekler voted in St. Louis elections in 2000, and he was the author and primary supporter of the voter ID rule put into the federal Help America Vote Act of 2002. (Bond's arguments were largely debunked.) Various states, including Indiana and Georgia, followed suit with their own, stricter state-level versions, and the rest, they say, is history. I recount this history of voter ID requirements in a chapter of the new Election Law Stories book, due out sometime next spring. (I am a co-editor of the book, along with Gene Mazo.) Forget holiday shopping; it will make a great May Day gift next year!
If you've enjoyed this discussion of election law this month, particularly on local election rules, please come to the AALS Section on Election Law panel, which is titled "Election Law at the Local Level." We have a great group of speakers that will address various aspects of local control over elections. It is on Friday, Jan. 8 at 10:30.
Vote early, vote often (well, as often as there are elections, but vote only once in each of them!). Thanks for a fun month. I'll see you all (virtually) soon.
Friday, November 27, 2015
Even 12-year-olds can vote?!
From December 5-12 any residents of Cambridge, Ma. (including non-citizens) who are at least 12 years old may vote in the city's Participatory Budgeting election. Residents will be able to vote for up to 6 projects, out of 23, to fund using $600,000 of the City's FY17 capital budget.
In addition to the low voting age, there are other interesting features of this election as well. It will happen over a week -- call it Election Week -- and residents may vote online or at various events throughout the city. Online voting is available in English and Spanish, while paper ballots will be available in English, Spanish, Portuguese, Haitian Creole, Chinese, Amharic, and Arabic.
This is the second time the city has used a Participatory Budgeting election to decide how to allocate some of its funds. It is unclear what turnout -- especially among the 12-18 year old group -- was like in the first round, but the city was happy enough with the results that it decided to use the process again for FY17. 12 is the lowest voting age I have seen for any election in the U.S. I'm eager to learn whether many young people are voting in this Participatory Budgeting election, and how the low voting age is seen among the electorate.
If anything, this is yet another example of a franchise-enhancing rule created at the local level -- the basis of my research for the next few months. I'll be grateful for any thoughts or insights any of you might have on the topic.
Tuesday, November 24, 2015
Election Results? Lies! Let's Recount
Monday, November 23, 2015
Should Non-Citizens Be Allowed to Vote? (Local Law Edition)
Municipalities have vast powers to define the electorate, as I explained when noting that some local jurisdictions have expanded voting rights to sixteen- and seventeen-year-olds. Similarly, some municipalities have granted the right to vote to non-citizens. Studying these local laws on voting rights is vital to understanding and protecting the right to vote more generally.
Currently there are six Maryland towns that allow non-citizens to vote in all city elections. Two Massachusetts cities, Cambridge and Amherst, have also passed laws granting the right to vote to non-citizens, but these ordinances cannot go into effect unless the state legislature approves them. In Chicago, non-citizens may vote in school board elections. New York City also used to allow non-citizens to vote for school board until the city disbanded the elected school boards in 2002.
Some local jurisdictions are debating whether to expand the voter rolls to include non-citizens. New York City, for instance, is considering an ordinance to allow aliens to vote in all city elections, which would add up to 800,000 people to the voting rolls. The proposal, debated in 2013, would allow non-citizen legal residents who have lived in New York City for six months to vote in mayoral and city council elections. Although thirty-one of the fifty-one New York City Council Members supported the ordinance two years ago, Mayor Michael Bloomberg opposed it, and the Speaker of the Council blocked a final vote on the law. There is speculation that the measure could come before the City Council again, especially as current Mayor Bill de Blasio might support the idea. Non-citizen voting is also being debated internationally, such as in Toronto, Vancouver, and in various European countries.
There are both theoretical and practical reasons for expanding voting rights to non-citizens. As Professor Jamie Raskin explained in a law review article, “the disenfranchisement of aliens at the local level is vulnerable to deep theoretical objections since resident aliens — who are governed, taxed, and often drafted just like citizens — have a strong democratic claim to being considered members, indeed citizens, of their local communities.” Moreover, local residents – whether they are citizens or not – care about, and should have a say in, local affairs. Allowing them to vote facilitates greater participation in the community, which will encourage these voters to become citizens.
Of course, there may be good policy reasons not to expand suffrage to non-citizens, such as that voting is one of the key rights of citizenship, and that expanding the franchise for only certain elections is a logistical nightmare with separate ballots for federal, state, and local offices.
The point here is not to comment upon the merits of those policy questions -- although they have even greater salience these days given our current debates on immigration. Instead, what is key is that this discussion is occurring at the local level. Municipal laws have driven the debate over expanding the franchise. The voting rights community should take notice. If we want better protection for the right to vote, then we need to shift our focus to look at municipal laws.
Seeking the truth
Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means I really was looking for the truth.
Thursday, November 19, 2015
Setting the Record Straight on Resettlement of Syrian Refugees
The following is by Jill Goldenziel, former guest Prawf, FOD, and a research fellow at Harvard Kennedy School's International Security Program of the Belfer Center for Science and International Affairs and a Senior Fellow at the University of Pennsylvania's Fox Leadership Program.
In the wake of the Paris attacks, 27 U.S. governors and several presidential candidates have called for Syrian refugee resettlement to be halted. Members of Congress have drafted legislation that would cease resettlement immediately. In light of these debates, it’s important to remember the legal framework governing refugee resettlement in the U.S.—along with some important facts.
- A refugee, according to international law and U.S. law, is someone who flees his country of origin due to a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group.
- Refugees undergo extensive checks before resettlement in the U.S., often lasting 2-3 years. They are first screened by the U.N. Refugee Agency, who then refers them to the U.S. for resettlement. They then undergo a rigorous 13-step process of interviews, background checks, security clearances, and medical screenings, detailed here: http://goo.gl/lw8qTb. Beyond this, Syrians get an extra level of scrutiny.
- At any stage of the process, any refugee deemed to be a security threat is screened out and will not be resettled in the U.S.
- Once refugees arrive, the State Department’s Bureau of Population, Refugees, and Migration coordinates their admission and placement, and the Department of Health and Human Services’ Office of Refugee Resettlement provides case management services, assists with transitions, and helps with short-term medical and financial needs. More about this process can be found here. http://goo.gl/9JizS0.
- In other words, authorities know who the refugees are and where they are going. They will eventually be free to move throughout the U.S., just as other citizens do, but it won’t be easy for them to slip under the radar.
- Governors have virtually no authority not to accept refugees for resettlement in their states if the federal government says they must do so. They can make life difficult for refugees by opposing their presence, but doing so would be against states’ interests in keeping public order.
- Of Syrians resettled in the U.S. since 2011, half are children, ¼ are adults over 60, 2% are single men of combat age, half are male, and half are female.
- During the vetting process, refugees referred by the U.N. to the U.S. for resettlement remain in their countries of first asylum—for Syrians, primarily Jordan, Turkey, and Lebanon. They are not allowed to leave these countries while they are waiting.
- Many refugees don’t want to be resettled in the U.S. because the waiting periods are so long and because the social welfare net is much smaller in the U.S. than in other countries.
- For the financial year ending in 2016, the U.S. has agreed to accept 85,000 refugees, including 10,000 Syrians. By 2017, the number will increase to 100,000 total refugees, and it is expected that the number of Syrians will increase as well.
- This is hardly the first time that the U.S. has accepted refugees from states known to harbor terrorists. The U.S. has resettled more than 100,000 Iraqi refugees since the 2003 invasion. Stringent background checks have ensured that they have posed a minimal security threat to the U.S. security clearances for Syrians are even tougher.
This post is adapted from my fact sheet originally published by the Harvard Kennedy School’s Belfer Center for Science and International Affairs.
Tuesday, November 17, 2015
Scalia (sort of) gets it, the media (still) doesn't
According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.
A few thoughts after the jump.
First, why did Scalia limit it only to those rulings that are not sufficiently textual or originalist--that is, rulings with which Scalia likely agrees? The departmentalist question should not turn on the "correctness" (methodological or substantive) of the decision. If political-branch officials possess authority to independently interpret the Constitution in the face of conflicting judicial rulings and to act on their own constitutional understandings, that authority applies to all constitutional decisions. If Scalia is serious, limiting it only to sufficiently originalist decisions makes no sense and undermines the accurate procedural point in service of a textualist/originalist hobby horse.
Second, Millhiser attempts to explain the procedure in the final three paragraphs, but he gets it completely wrong. His two biggest mistakes were suggesting that 1) this reduces the Court to an advisory body and 2) enforcement through future litigation is merely "conceivable." The whole point is that future litigation guarantees enforcement because, unlike executive officials, lower courts are bound by the Court's judgments; so when lower courts apply precedent to new parties in a new judgment, that new judgment is binding on those officials. He is correct that this is complex and potentially expensive. But that is inherent in the nature of the judicial power, under which a judgment in one case is generally limited to determining the rights and obligations of the parties to that case And the costs is mitigated (somewhat) by the availability of attorney's fees. Unfortunately, Millhiser does not mention (or grasp) either point.
Finally, Millhiser allows that Scalia's approach could be correct with respect to "decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil," but not to "a decision that allows Americans to marry the person that they love." Nothing like neutral procedure applied neutrally.
"It sounds so simple I just got to go"
A few weeks ago I had the privilege of speaking before the Mexican Electoral Tribunal in Mexico City at a conference titled "Two Paths in the Law of Democracy." The conference was sponsored by the Mexican Electoral Tribunal and the University of Texas. The U.S. delegation consisted of five American scholars who study election law and politics, and we presented on various aspects of election law to the researchers, staff, and judges of the Tribunal. It was a fascinating experience and I learned a lot.
Mexico, as a young democracy, is trying to learn best practices for running free and fair elections. Yet there is so much that we can learn from the Mexican experience as well -- both procedurally and substantively.
For example, as the very existence of the Tribunal demonstrates, Mexico has a federal agency that is charged with administering elections. This Tribunal also includes a court that decides all election disputes. Although we, too, have two federal agencies that focus on elections -- the Federal Election Commission and the Electoral Assistance Commission -- neither are very effective, especially because they often deadlock along partisan lines on most important issues. In addition, our regular courts hear election law controversies, and we all know how well that has gone. Mexico has figured out a way to, at least initially, avoid this partisan deadlock, and its Tribunal and court are well-respected and effective at administering elections in a way that people perceive as generally independent. Perhaps this is because the members of the Tribunal are non-political and because of the strong research and education focus of its activities.
Substantively, Mexico has figured out some things that we are still struggling to solve. For instance, partisan gerrymandering is not allowed in Mexican redistricting, which is conducted by the independent Tribunal. (That said, there are still questions about whether Mexico has sacrificed transparency in the process and whether politics still infiltrates the resulting maps.) Similarly, there seem to be fewer Election Day mistakes at the polls in Mexico, perhaps due to the robust educational and training programs the Tribunal puts on throughout the country.
Just traveling to Mexico City was a learning experience itself. It is a fascinating place with beautiful museums, amazing tacos, and extremely nice people. The researchers at the Tribunal are among the most respected people at the agency. There is a true commitment to understanding American election law to discern best practices for their own system. And our hosts showed us genuine sincerity, respect, deference, and collegiality.
This experience demonstrates the importance of looking beyond our borders to improve our own laws and legal structures. Although we often espouse American exceptionalism, we also deal with the same kinds of issues and share the same kinds of struggles as places all over the world. We can learn a lot from other countries, especially newer democracies where the rules are not as entrenched. The Mexican Electoral Tribunal invited the American scholars so it could learn how we do things in an effort to improve its own processes, but of course with any exchange like this, we learned as much, if not more, from them. This further suggests that we should not shy away from looking to international norms when evaluating our own rules and laws--whether in legislative debates or judicial decisions.
Saturday, November 14, 2015
Guess we like France now
A nice gesture. Of course, it was not so long ago that Congress was banning the word "French" from its cafeteria.
Update: Mike Dorf explains and elaborates on what I had in mind.
Thursday, November 12, 2015
A monkey, an animal rights organization and a primatologist walk into a federal court
Thus begins the argument section of the motion to dismiss in the copyright infringement lawsuit filed on behalf of a crested macaque whose "selfies" (the macaque pressed the shutter of a camera he pulled away from a photographer) were published by the camera owner. The motion argues both lack of standing and failure to state a claim, both based on the argument that copyright protections do not extend to non-human animals. As I argued in my prior post, I believe that under Lexmark the proper basis for dismissing is failure to state a claim.
I confess that, while I typically don't like this type of jokey writing move, it somehow works here.
Tuesday, November 10, 2015
Legal arguments and public perceptions
Beth Thornburg of SMU coined the term "pleading as press release"--plaintiffs drafting pleadings with an intentional eye towards how the most dramatic allegations will be reported in the press and how the case will be framed and understood by the public. And they do this even where occasionally over-the-top allegations have nothing to do with the needs or requirements of pleading and even as the allegations may have the unintended effect of turning the judge off.
The flip side is playing out in the Washington Professional Football Team trademark litigation, now before the Fourth Circuit. The team's opening brief devoted a great deal of space identifying dozens of other trademarks--many containing offensive words and epithets--that have been registered without incident. (See, especially, p.4 and p.24 & n.4). These examples support the sensible First Amendment arguments that 1) the government does not endorse all such marks so as to make them government speech and 2) the Washington Professional Football Team's trademark should not and cannot be singled out from the many other, offensive marks that have been registered.
Of course, that is not how the media has covered or discussed the argument. Instead, the team has been ridiculed for, essentially, arguing that it is no worse than SLUTSEEKERS dating service, TAKE YO PANTIES OFF clothing, or CAPITALISM SUCKS DONKEY BALLS. There is an obvious incoherence between the team defending the nickname as "honoring" Native Americans while also insisting that it receive the legal treatment of SHANK THE B!T@H board game. Whatever the legal merit of the argument, the press and the public cannot help but mock it and turn it into a criticism of the team--and no one mocks well as HBO's John Oliver, after the jump.
All of which is to say that legal argument in a high-profile case can be a two-edged sword, especially as it relates to sports and may draw in a new media and public audience. Sometimes the legal argument you need to make is one that will be viewed in a very different light by the public. Of course, the reality is that opposition to the nickname is so deep and so strong in some public and media segments that any legal position other than changing the name and surrendering the trademark, will be criticized and mocked.
Monday, November 09, 2015
Is Justice Breyer trying to be Judge Posner?
Justice Breyer has developed a distinctive style of asking questions in oral argument--declarative statements summing up the case, often interrupted by asides and tangents, rhetorical questions, and clipped questions demanding "yes or no" answers and often allowing for little explanation. And he asks them in a demanding, sometimes angry, sometimes confrontational tone. In the domineering tone and insistence on one-word answers (although not the rambling asides), it calls to mind Judge Posner at his most-authoritarian (think of the marriage-equality arguments).
Is this deliberate? And has it gotten more noticeable on Breyer's part in recent years?
First Amendment activity all over the place
A quick shout-out on a bunch of recent events and issues, unified by being about free speech.
1) Approximately 30 African-American members of the University of Missouri football team have announced that they are suspending participation in all football activities--in other words, they are going on strike--until Mizzou President Tim Wolfe is resigned or fired. Student are angered over his non-response to a recent series of racially charged incidents on campus, most recently the display of a swastika made of feces. Although the entire team is not on strike, Head Coach Gary Pinkel and the non-African-American team members are supporting the strike and standing behind their teammates. There is a long history of athletes as political advocates. There also is a current hypocrisy--fans wondering why athletes aren't more political like in the old days, then lambasting those who don't "stick to the game." So it will be interesting to see how this plays out. [Update: Wolfe has resigned.]
2) Yale University is up in arms in a week-long back-and-forth over the conflict between cultural sensitivity in Halloween costumes and free speech. The gist is that the university sent a campus-wide email asking students to be sensitive in their choice of Halloween costumes, which prompted two (married) administrators to question whether the university should be dictating choices of Halloween costumes. That triggered an overwhelming response, with more than 700 students signing an open letter calling the administrators' comments "offensive" and having the effect of "invalidat[ing]" the existence of historically disadvantaged groups on campus. There have multiple protests, including several directed at the two administrators, calling for an apology and/or their resignations. The common theme, as always, is that this defense of free speech has rendered Yale an "unsafe space."
3) I finally got around to reading Bible Believers v. Wayne County (which I wrote about briefly). The majority opinion is a wonderful read, a tour de force on free speech, the problem of the heckler's veto, and the obligations of police in keeping the peace when conflicting groups collide. Unfortunately, I am not sure either the qualified immunity analysis (finding that the rights were clearly established) or the municipal liability analysis (finding that the county corporation counsel was a final policymaking in advising the police officers on the scene, triggering liability for the county). [Update: In light of this, the reversal on qualified immunity seems more likely, as does the Court not even giving the question a full merits hearing.]
4) The primary dissent in Bible Believers is also interesting for the way it explores the problem of minority and majority speech, with the assumption the Bible Believers were a majority group who had succeeded not only in shouting down a minority group, but in getting money from the government to allow them to do it. Here is the dissent's encapsulation of the case:
Yes, you can get the police to help you attack and disrupt something like a minority cultural identity fair, even if the police are not inclined to do so. Tell the police your plans ahead of time, and bring photographers. Get a determined group of disrupters and go in with the most offensive and incendiary chants, slogans, insults, and symbols—the more offensive the better. The object is to stir up some physical response. Then, when things get rough (your goal), insist that the police protect you, and (ironically) your First Amendment rights, by serving as a protective guard. The peace officers cannot at that point tell you to leave, even to avoid injury to you, because if the peace officers do that, they will have to pay you damages. Faced with the choice of allowing you to be an injured martyr (keep your cameras ready) or serving as a protective guard as the disruption escalates, the peace officers will doubtless choose the latter and become your phalanx. It's a win-win situation for you, and a lose-lose situation for the minority group putting on the fair.
The court's opinion insists that minority/majority should have nothing to do with the First Amendment analysis. But the dissent framing does relate to Mark Tushnet's concerns about competing hecklers. The answer, in part, is to recall that "heckling" is protected speech--that is, assuming time and place is appropriate, the First Amendment protects me in trying to shout down a competing speaker. It only becomes a heckler's veto--and a First Amendment violation--when the state steps in to formally support one heckler by shutting down the other through legal sanction or force.
Thursday, November 05, 2015
Shapiro argument and the future of Bell v. Hood
Josh gave his thoughts having watched the argument in Shapiro v. McManus. My SCOTUSBlog recap--alas, based only on the transcript--has now posted. (Obviously, I agree with Josh that video (or at least audio) should be made available immediately). I am especially looking forward to hearing Justice Scalia say "Wow" and "It's extraterrestrial."
Let me add one additional point. There was some discussion in the case about Bell v. Hood, which stands for the proposition that a federal claim that is "wholly insubstantial" does not arise under federal law. Bell is an anomaly, an unwarranted and rarely used exception to the general (and correct) rule that failure to state a claim does not deprive a court of jurisdiction. It remains as an unfortunate barrier to a clean merits-jurisdiction line. SCOTUS had held in several cases pre-1976 (the date of enactment of the current three-judge court statute) that a single judge can dismiss an insubstantial claim. Several questions and comments from the bench suggested that those cases incorporated Bell, making the single-judge insubstantiality dismissal a jurisdictional one.
At the same time, Justice Scalia raised the possibility during the argument that those pre-1976 cases should be overruled, narrowing the situations in which the single judge can refuse to refer the case for appointment of the three-judge court (presumably to the non-satisfaction of § 2284(a)). If so, is there any chance that the Court would take Bell with it? I hope so, but it does not appear likely. The Court has largely ignored or minimized Bell in most of its recent merits-not-jurisdiction cases, without taking the time to overrule it. On the other hand, Justice Kagan offered several comments/questions indicating that she is very comfortable with Bell and the idea that some "completely ridiculous" claims can be dismissed on jurisdictional grounds, even if the analysis looks "kind of mertis-y."
Wednesday, November 04, 2015
Top Ten Thoughts on Visiting the U.S. Supreme Court Today to Hear Shapiro v. McManus (and One Bonus Prediction On Its Outcome!)
I had the good fortune and privilege of attending oral arguments this morning at the U.S. Supreme Court. I was there in particular to listen to the argument in Shapiro v. McManus, an election law dispute that asks whether a single district judge can dismiss a redistricting case instead of referring it to a three-judge district court. (Howard previewed the case here).
I co-authored (with Michael Solimine of U. of Cincinnati) an amicus brief in the case, which stemmed from two of my articles on election law and procedure. It was fun to sit in on the oral argument given that I knew so much about the case.
The last time I visited the Court, I was in law school, so I had a much different experience this time as a lawyer and law professor. Here are some observations:
1. I was glad someone had told me to bring a quarter! Cell phones and other electronic devices are not allowed in the courtroom, and there are lockers down the hallway for such items. But the lockers cost 25 cents. Thankfully I was prepared!
2. The formalities of visiting the Court did not seem as…formal as the first time I went. I expected the decorum, nobility, and seriousness of the Court’s proceedings. Maybe this is simply because I now have much more experience going to courtrooms!
3. Once the justices take the bench, the Chief Justice admits new members to the Supreme Court bar. I had looked into doing this, but as my bar license is currently inactive, I am not eligible. Still, this process, with the Chief Justice formally admitting each person, is surely a nice highlight of these lawyers’ careers, and if I ever go back to active status it is something I would like to do.
4. The written transcript of oral argument really does not do justice, in my opinion, to the dynamics of the courtroom. In my view, virtually all of the justices seemed to agree with the petitioner and were quite skeptical of the state’s argument in Shapiro, yet I do not think the cold transcript adequately reflects this reality. Facial expressions, the tone of the questioning, and the nonverbal reactions all paint a much different picture of what was going on in the courtroom.
5. My last point makes me an even bigger proponent of allowing video recording of the Court’s oral arguments. There is no justifiable reason to shroud the Court in secrecy by allowing only written transcripts and audio recordings of the proceedings. When Justice Alito visited the University of Kentucky a few weeks ago, he remarked that allowing cameras in the courtroom would lead lawyers to perform for the cameras and not the justices, and that late-night TV would make a mockery of the arguments. This is wholly unpersuasive. The lawyers want to win their case, not play to a TV audience, and in any event they can make their pitch to the media afterward if they want to; late-night TV already spoofs oral argument. Being there in person – or seeing the video of the proceeding – would help Americans understand this branch of government. The Court champions transparency (through disclosure) as the best cure for the problems of campaign financing – why won’t it apply that same standard of transparency to itself? In an era in which only 30% of Americans vote, shouldn’t we do all we can to encourage civic education?
6. Recognizing when to end your argument and sit down – when you have more time left – is probably one of the hardest things a lawyer must do. Michael Kimberly, arguing for the petitioner, did this beautifully. It was clear from the tenor of the argument that most of the justices agreed with his points. In fact, several, like Justice Scalia, seemed to want to go further and rule that a single judge may never dismiss a redistricting case without sending it to a three-judge court, a position Mr. Kimberly did not advocate (he agreed that he would win if the Court went that route but noted that it did not have to reach that far in this case, as he was advocating for a “wholly insubstantial” standard instead, meaning that a single judge may dismiss the case only if the claim is "wholly insubstantial"). When, after about 19 minutes of mostly-friendly questioning, it seemed clear that he had answered the justices questions to their satisfaction, he chose to cede the remainder of his time. At that point, there was nothing left to say, and going further could have only done damage to his case. Yet many lawyers would not be able to resist the temptation to press further points or try to shore up the argument even more. Sitting down is often the better strategy, difficult as that might be.
7. It is never a good idea to make new arguments at oral argument that were not addressed in the briefs. Justice Scalia questioned Mr. Sullivan, Maryland’s lawyer, about why he did not make an argument about certain prior cases in his brief, and Mr. Sullivan first stammered before retorting “Well, you know, I’m trying to provide value now in addition to what we had in the brief.” (Mr. Sullivan’s stammering is not reflected in the oral argument transcript.) Some observers suggested that Mr. Sullivan gamely parried the question. I disagree. With all due respect, I think Mr. Sullivan hurt his case with a comment that seemed almost glib. Again, this was my initial impression while sitting in the courtroom. And perhaps there was no better way for Mr. Sullivan to respond. Still, this exchange shows the immense importance of strong briefing. It’s also probably a bad idea to bring up “extraterrestrials” unless you are sure that all justices know to what you are referring—this reference by Mr. Sullivan ate up several minutes as Justice Scalia questioned what he meant.
8. It is always better to make your best argument up front and not rely on the justices to do it for you – something I try to teach our moot court students. About midway through Maryland’s argument, Justice Breyer finally highlighted what should have been the state’s key point: requiring a three-judge court will increase the Supreme Court’s mandatory review docket, as these decisions skip the court of appeals stage and are directly appealable to the Court. Chief Justice Roberts then picked up on this point. It would have been much better for Mr. Sullivan to lead off with this idea from the outset.
9. All lawyers should go visit the Court at some point. It truly is an invaluable experience.
10. I love D.C. You just never know what – or who – you are going to see. As I left the Court and walked by the U.S. Capitol, I happened to run into a press conference featuring Senator (and presidential candidate) Bernie Sanders. I then stumbled upon a monument to Senator Robert Taft (William Howard Taft’s son), which I did not know existed. And I had about 30 minutes to kill, so I went to Ford’s Theater, something I never did during my 9 years living in D.C. but something I have wanted to do even more after recently reading the book Manhunt. Next time you are in D.C. try to carve out a little bit of time to do something interesting – the city is a great place to explore!
11. And here is a bonus thought: although it is never a good idea to read the tea leaves, I predict a reversal in Shapiro, quite likely 9-0.
Epps on Feiner
Garrett Epps writes in The Atlantic about the continued effect of Feiner v. New York and the hecklers' veto in the First Amendment, especially as it affects minority groups whose speech may be subject to greater audience abuse and more concerted efforts by protesters to interfere. Epps' jumping-off point is the divided en banc Sixth Circuit decision in Bible Believers v. Wayne County, which held that police should have protected a Christian group protesting at the Arab International Festival in Dearborn, MI.
Update: Mark Tushnet discusses the Epps piece and describes what Tushnet calls a "puzzle" about hecklers vetos in this case. We actually had competing hecklers--1) the Bible Believers were heckling the Festival and its participants (themselves engaged in expressive activity) and 2) the festival participants tried to shout down the Bible Believers--each trying to veto the speech of the other. And there has not been another Arab International Festival since the one in 2012, meaning heckler # 1 was successful in its efforts, while also being found by the Sixth Circuit to have been subject to a hecklers' veto by heckler # 2. In other words, Tushnet argues, "the people protected against a heckler's veto used their First Amendment rights to induce others not to exercise their First Amendment right."
Argument in Shapiro v. McManus
SCOTUS hears argument today in Shapiro v. McManus, considering when a single district judge can dismiss under FRCP 12(b)(6) a case that is supposed to be decided by a three-judge district court. My SCOTUSBlog preview posted two weeks ago; I will have comments on the argument later today or tomorrow.
Tuesday, November 03, 2015
Go to a Different Blog
It's great to be here!
For my first post this month, I'm going to do something odd -- tell you to go to *different* blog. (Hopefully Howard and the Prawfs gang won't take away my keys!) That's right: today is Election Day, and the students in the University of Kentucky's Election Law Society are running an election analysis blog. They'll be posting about election law issues that will arise during the vote casting and counting process -- for Kentucky elections and nationwide. Every post is vetted by me first, so (hopefully) they are substantively sound.
So go vote -- and then hop on over to http://www.uky.edu/electionlaw for a jolly-good Election Day time!
Monday, November 02, 2015
Vanderbilt Law Review Roundtable: Spokeo v. Robins
I had the pleasure of participating in the new Vanderbilt Law Review En Banc Supreme Court Roundtable on Spokeo, Inc. v. Robins (being argued today). My essay argues for William Fletcher's conception of standing-as-merits and why that approach is especially appropriate in this type of statutory case. The Roundtable features contributions from Heather Elliot (Alabama), Andy Hessick (Utah), Jonathan Siegel (George Washington), Max Stearns (Maryland), and Joan Steinman (Chicago-Kent).
Monday, October 26, 2015
Multiplying Loaves and Fishes: Why Congressional Debt-Ceiling Brinkmanship May Plunge Us into Economic Depression and How President Obama Can Save Us from Going Back to the Breadlines
The following post is by Jessica Berch and Chad DeVeaux (both of Concordia). They will be guest-blogging in December. But the timing of the new debt-ceiling debate made an early post appropriate.
The Gospels tell us that Jesus multiplied “five loaves and two fishes,” providing a bounty sufficient to feed 5,000 hungry souls. Apparently, House Republicans expect President Obama to perform a similar miracle. On November 3, the Treasury will exhaust its funds. If Congress does not raise the debt ceiling by that date, authorizing the Government to borrow money, the nation may face an unprecedented economic cataclysm.
As New York Magazine’s Jonathan Chait has observed, only “the most ideologically hardened or borderline sociopath” would “weaponize the debt ceiling”; to do so, one “must be willing to inflict harm on millions of innocent people.” Bloomberg Business explained that a federal default would be orders of magnitude worse than the Great Recession of 2008: “The $12 trillion of outstanding Government debt is 23 times the $517 billion Lehman owed when it filed for bankruptcy on Sept. 15, 2008.”
Following up on earlier work, The Fourth Zone of Presidential Power, (Conn. L. Rev.), we are writing an article entitled Once More unto the (Fiscal) Breach, addressing the president’s options in this latest crisis.
Federal statutes command the president to implement a myriad of programs and projects. Other laws instruct him to obtain the revenue necessary to subsidize these endeavors by collecting taxes and borrowing funds. The debt-ceiling statute caps the amount of money the Government can borrow at any particular time. Based on the level of revenue the Government is permitted to collect through taxation, basic arithmetic dictates that the president will need to borrow funds exceeding the debt limit to comply with Congress’s appropriation mandates.
If Congress does not raise the debt-ceiling by November 3, the president will face a no-win scenario that Professors Neil Buchanan and Michael Dorf have coined the “trilemma.” He will be forced to choose among three options. He may: (1) ignore the appropriations statutes and cancel spending programs; (2) employ the so-called “nuclear option”—disregard the debt ceiling and borrow sufficient funds to pay for Congress’s appropriations; or (3) unilaterally raise tax rates to produce sufficient revenue to fund Congress’s appropriations. Each of these choices violates an express statutory command.
And each of these choices is also implicitly authorized by the other commands. The power “to execute” a law “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006).
Professors Buchanan and Dorf argue that any choice the president makes will violate the Constitution “because he will have failed to execute at least one duly enacted law of the United States.” As Professor Buchanan recently noted, “He has nothing but unconstitutional choices.”
The true test of the president’s options in the trilemma lies within the labyrinth of Justice Jackson’s seminal opinion in the Youngstown Steel Seizure Case. As the Supreme Court reaffirmed last June, “in considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework . . . .” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083 (2015). Evaluation of the president’s options in the impending standoff constitutes a paradigmatic question of the scope of presidential power.
In Youngstown, Justice Jackson asserted that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template to evaluate the scope of executive power.
In the first zone, “the president acts pursuant to . . . express or implied” congressional authorization. Endowed with such legislative approval, the president’s power “is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” In the second zone, “the president acts in absence of either a congressional grant or denial of authority.” In this “zone of twilight,” Congress and the president possess authority that is either “concurrent” or “its distribution is uncertain.” Zone three involves situations where “the president takes measures incompatible with the express or implied will of Congress.” Here, “his power is at its lowest ebb, for . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
At first blush, each of the president’s three options appears to fall into the third zone of Justice Jackson’s taxonomy. Short of multiplying loaves and fishes, every conceivable alternative—unilaterally cancelling federal programs, increasing taxation, or borrowing more money—stands in direct conflict with an express congressional command. Article I bestows the powers to “tax,” “spend,” and “borrow” exclusively upon Congress. Thus, such authority is far removed from those plenary powers that the president may wield irrespective of congressional will.
Professor Lawrence Tribe echoed this reasoning, noting that “the president’s power drops . . . to its ‘lowest ebb’ when exercised against the express will of Congress.” So, “if the president could usurp the congressional power to borrow, what would stop him from taking over all [of Congress’s] other powers, as well?”
Again, we disagree. On closer examination, the standoffs do not fit within any of the zones identified by Justice Jackson.
Professors Tribe, Buchanan, and Dorf analyze each of the president’s options and Congress’s corresponding legislative commands in isolation. But this view ignores the more nuanced conception of presidential power implicit in Justice Jackson’s framework. As Jackson observed, “the actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.” For this reason, the Court unanimously recognized in Dames & Moore v. Regan, that in applying Youngstown’s principles, when multiple statutes bear upon the president’s powers, the scope of his authority cannot be gleaned by looking at any single law in isolation, but from careful consideration of “the general tenor” of all of Congress’s commands viewed collectively.
Justice Jackson’s three zones contemplate coherent legislative action falling within “a spectrum running from explicit congressional authorization to explicit congressional prohibition.” Congress may sanction presidential action, it may be silent on the subject, or it may prohibit it. Congressional acts in conformity with any of these three coherent choices will affect the president’s powers accordingly. But in the impending trilemma, Congress’s acts—viewed collectively—present the president with a paradox. Congress has directed the president to take specified action and simultaneously forbade him from taking that very same action. Such contradictory legislative instructions cannot find a home anywhere within Youngstown’s existing taxonomy. As such, the present standoff requires the expansion of Youngstown’s spectrum to accommodate a previously uncontemplated fourth zone of presidential power.
So what principles should apply in this new fourth zone of power?
Dames & Moore recognized that congressional action “evinc[ing] legislative intent to accord the president broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’” In cases falling within the traditional three-zone scheme, such legislative conduct is only considered “pertinent when the president’s action falls within the second [zone]—that is, when he ‘acts in absence of either a congressional grant or denial of authority.’” Medellín v. Texas, 552 U.S. 491, 528 (2008). This is so because when Congress commands the president to undertake (or refrain from undertaking) a particular action, the Constitution normally affords him no discretion. He “must confine himself to his executive duties—to obey and execute, not make the laws.”
But when Congress gives the president contradictory commands, the president cannot simply “obey and execute” Congress’s instructions; obeying one command necessarily requires disobeying another. For this reason, zone two’s invitation principle should be applied in the fourth zone of the Youngstown scheme. Contradictory legislative instructions, by their nature, implicitly “accord the president broad discretion.”
The president’s plenary power “to execute” a law promulgated by Congress “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” And “it is a flawed and unreasonable construction” to read the Acts of Congress “in a manner that demands the impossible.” Thus, when Congress commands the president to complete a particular task but expressly denies him those powers “essential to its due exercise,” the only way to construe these conflicting legislative instructions in a manner that does not “demand the impossible” is to infer a congressional intent to “accord the president broad discretion”—to entrust him to make tradeoffs to best accommodate the conflicting mandates.
In the trilemma, the interaction between the debt-ceiling statute and the relevant taxing and spending laws render compliance with all three statutory mandates impossible. Congress commanded the president to complete a task—implement specified programs—but denied him the “authorities essential to its due exercise”—the power to acquire sufficient revenue to pay for the mandated expenditures.
Because statutes are not interpreted “in a manner that demands the impossible,” “the general tenor” of Congress’s commands, read collectively, inherently “‘invite’ ‘measures on independent presidential responsibility.’”
Since the president cannot fully comply with all of Congress’s commands, the statutory impasse invests the president with discretion to implement any of the three options addressed above. He may cancel federal programs to reduce spending, direct the Treasury to borrow funds in excess of the debt ceiling, or even order modest tax increases to satisfy the Government’s fiscal obligations. But he should not stand idly by and allow Congress to plunge us into a Global Economic Depression.
Tuesday, October 20, 2015
The rival of my rival is . . .
This defies words. (H/T: Josh Blackman). Westboro Baptist yesterday picketed outside the Rowan County Clerk's Office in a protest of Kim Davis, for her sins of being divorced and of failing to obey her oath to follow the law. Apparently "all sin" is "awful," so adultery, same-sex marriage, and oath-breaking all stand on the same footing.* I wonder what LGBTQ groups are thinking right about now.
* Never mind that Davis does not violate her oath by not following SCOTUS precedent--I do not expect the Westboro folks to understand the precedent/judgment distinction).
Monday, October 19, 2015
Merits and mootness
In my writing here and elsewhere, I have argued that much of what is labeled as subject-matter jurisdiction, sovereign immunity, and standing are all better understood as being about the merits of a claim rather than Article III adjudicative thresholds. (I discuss standing in a forthcoming essay on next month's arguments in Spokeo v. Robins). And ripeness has somewhat been absorbed into standing. But that I thought the one threshold that might survive and make jurisdictional sense was mootness.
The issue is whether a case becomes moot when a defendant makes an offer of judgment that gives the plaintiff everything he asked for in the lawsuit and how that affects his status as representative plaintiff of a still-to-be-certified class. Counsel for Gomez and for the U.S.in support of Gomez both framed their arguments in the difference between a court entering (or even forcing) a final-and-enforceable judgment based on the parties' agreement and a court dismissing an action for want of jurisdiction as moot. The former gives the plaintiff the judicial relief he requested when he filed the lawsuit, just as if the court had decided the merits.
Counsel for the U.S. described the practice of district courts (which I recall following as a clerk): Upon notification of a settlement, the court would enter a consent decree (in a prospective case) or dismiss a damages claim while retaining jurisdiction to enforce the terms of the settlement. No one ever thought to describe this as mootness. Both attorneys explained why what the Justices were talking about in Article III terms as an absence of adversariness could easily (and in some cases, more properly) be recharacterized in merits terms, as the end of a present dispute that gave the defendant an affirmative defense and justified the entry of judgment. When the plaintiff has received everything he asks for, the defendant has a defense against any finding of liability, since the injury (which exists) has been remedied.
This is an unusual case in which to discuss mootness, since the plaintiff was primarily seeking retrospective relief for past harm. Mootness generaly occurs where an ongoing real-world injury has somehow ceased. With retrospective relief, however, the injury already has occurred and the judicial remedy sought is merely compensation for an already-completed injury; it does not cause the injury to cease.
But even with prospective relief, the merits characterization makes more sense. Take, for example, a constitutional challenge to a repealed statute. The plaintiff's rights are no longer being violated and he no longer is being injured by the defendant's conduct, since there is no longer a threat of enforcement. But it makes more sense to say the defendant wins on the merits because the plaintiff's rights are no longer being violated and the defendant is no longer subject to liability, just as it makes more sense (under the Fletcher model) to say the defendant wins on the merits because it cannot be liable when the plaintiff's rights were never violated in the first place.
I have to give this some more thought, especially once the Court decides the case.
Wednesday, October 14, 2015
Kevin Walsh has coined the term to perfectly capture the precedent/judgment/departmentalism distinction I have been drawing and that Josh Blackman and I make: "Judicial Departmentalism." (H/T: Rick, in a comment to my prior post). The idea is that SCOTUS precedent and vertical stare decisis control what happens within the judiciary.* But they do not control the actions of anyone outside the judiciary, particularly officials in the other branches of government, who remain free to act on their own constitutional understandings in terms of the legislation they propose, the way they enforce laws, etc. At bottom, Kevin argues, the American Principles Project is rejecting judicial supremacy in favor of judicial departmentalism.
* The APP statement acknowledges the supremacy of the Supreme Court over the federal judiciary, although does not mention state judiciaries. I default to James Pfander's argument that a state court deciding a federal issue is a "Tribunal inferior to the Supreme Court," thus part of the federal judiciary and bound by vertical stare decisis to the same extent as a federal district court.
Of course, judicial departmentalism inevitably morphs into judicial supremacy, because the actions of public officials contrary to binding SCOTUS precedent will eventually find their way into court, where vertical stare decision and judicial departmentalism will compel the court to issue a judgment compelling the officer to abide by the precedent. And the executive cannot act contrary to a judgment directed at him--stated differently, the specific judgment pulls the officer into the judicial department. Moreover, a number of rules that the judiciary applies functionally enforce, or at least incentivize, judiciary supremacy: 1) FRCP 11 requires lawyers and parties to bring cases that are supported by existing law or a nonfrivolous argument for overturning that law, meaning law as established by SCOTUS; 2) qualified immunity is lost and damages possible against a public official who disregards SCOTUS precedent; and 3) the knowledge that an official will certainly be enjoined by a court applying SCOTUS precedent may cause the official to fall in line. [Ed: I guess I should add state Rules of Professional Responsibility, although I know less about these; based on comments to my earlier post, it sounds as if they limit lawyers' freedom to advise their government clients not to feel tied to judicial supremacy]
But the fact that we (likely, if not certainly) reach the same result at the end of the does not mean there are not multiple steps involved, that everyone is bound everywhere by what SCOTUS says about the Constitution, or that our system is, in fact, one of judicial supremacy.
Tuesday, October 13, 2015
Lawyerly obligations, precedent, and judgments
A group of conservative academics, under the name "American Principles Project," has issued a statement calling for constitutional resistance to Obergefell and calling on presidential candidates to refuse to treat it as binding precedent. The statement essentially relies on a comparison between Obergefell and Dred Scott--that is, between a decision allowing same-sex couples to enjoy the same benefits and protections as any other couple and a decision categorically denying rights to a group of people based on their race.
I have not blogged about this before, finding both the rhetoric in the statement and the rhetoric of the responses absurdly over-the-top (even while agreeing with the basic idea that public officials can act contrary to Obergefell if believing it wrong). But Lyle Denniston has this post at the National Constitution Center Blog arguing that lawyers who sign and follow the call are acting contrary to their ethical/professional-responsibility obligations. In particular, Denniston insists that a lawyer fails to show "respect" for precedent in arguing that it should not be treated as binding or controlling in similar cases. He also points to Kim Davis as an example of what happens when a public official refuses to treat a decision as binding.The point about ethical obligations cannot be right. Denniston analogizes to a Michigan lawyer disciplined for calling a panel of judges "Nazis" and "jackasses." Accepting that decision as consistent with the First Amendment, a personal attack on judges is a far cry from the sorts of legal arguments and positions lawyers can take on matters of public concern, including the state of the law and what the state of the law should be. It also cannot be that a lawyer can be sanctioned for arguing that a court disregard or overturn even binding precedent. Arguing that Obergefell is wrong, even egregiously, abuse-of-power wrong, is not the same as personally attacking the judge.
The reference to Davis at the end of the post is even more off-base, as it again misunderstands the meaning of precedent and the difference between judgments and precedents. Davis was not held in contempt for arguing that Obergefell was not or should not be binding precedent. She was held in contempt for ignoring a court order, aimed directly at her in a case to which she was a party, that applied Obergefell. But prior to the entry of that order, she did nothing that would subject her to contempt. And one cannot be in contempt of precedent. Denniston is right that "it is now accepted, very widely if not universally, that a Supreme Court decision . . . dictates the outcome when the same issue arises in a new case." But that still requires a new case in which the precedent dictates the outcome. And until that new case comes along, no one is in contempt. And no lawyer who signs the form or advocates resistance to Obergefell, in or out of court, can possibly be subject to professional sanction.
Thursday, October 08, 2015
It's going to get pricey
Michigan has agreed to pay $1.9 million in attorneys fees to the plaintiffs who successfully challenged the state's same-sex marriage ban. That is in the same ballpark as Wisconsin paying $ 1.055 million in fees (that case only went to the court of appeals, not to SCOTUS).
Kim Davis must know that her stunt is going to get very expensive very quickly.
Rethinking Kitty Genovese
The New Yorker reviews a new documentary that screened this week at the New York Film Festival--a reexamination of the murder of Kitty Genovese, produced by and starring Bill Genovese, one of Kitty's younger brothers. The film attempts to reinvestigate the murder and the response to it. Similarly, a 2014 New Yorker story explored how the media created the "bystander apathy" narrative and how it almost immediately took hold, to the point that it actually affected the State's decisions in prosecuting the case.
That narrative remains sticky. In my 1L Crim Law class, we read an early New York Times story about the murder (The Times and editor A.M. Rosenthal was the great engine of the apathy narrative) for a discussion of the law/morality divide and when liability should attach to inaction. At a Torah study a few weeks ago, a participant referred to this story, and its common narrative, to illustrate some principle about how the Torah commands us to treat people.
Never mind that the best understanding of the story (as discussed in both of the New Yorker pieces and in the film) is that several neighbors did try to help. This includes at least two who called the police (police records show one call and that the response to that call was that the police were aware of the attack, suggesting at least one earlier call).
A few new themes emerge from the film and from the review.
One is that Kitty and her roommate, Mary Ann Zielonko, were in a lesbian relationship; interviews with Zielonko offer a portrait of gay life in New York in the early 1960s (when homosexual conduct was unlawful).
Another idea is that some neighbors explained that they believed the fight to be a lovers' quarrel and/or a drunken argument that spilled out of a nearby bar. Thus, the neighbors' (and the police) non-response may have been borne not of apathy, but of the common legal and social assumptions of the time--that domestic violence was not unlawful and not the concern of either police or neighbors, but was a private matter for the couple to work-out between them. In that regard, intervention would have been, in a social sense, wrong.
Of course, the apathy narrative is what has kept this story alive for fifty years. Indeed, Rosenthal (who died in 2006, but was interviewed for the film) continues to defend his coverage by the fact that it became a world-wide and historical incident. If it were just a story illustrating our then-benighted approach to domestic violence and gender issues, we probably would not still be talking about it.
Wednesday, October 07, 2015
Should the Umpqua shooter's mother be liable?
Chris Harper-Mercer was 26 years old when he killed 9 people last week. He was a troubled young man living at home, who should not have had access to guns. And yet he had access to 14 of them. http://www.nytimes.com/2015/10/06/us/mother-of-oregon-gunman-wrote-of-keeping-firearms.html?_r=0
Chris lived with his mother, Laurel Harper. Laurel bragged about keeping fully loaded magazines for her AR-15 and AK-47 semiautomatic rifles in easy access in her house. Laurel also knew that Chris had emotional problems. Should Laurel, and other parents of mass shooters, be held liable for the actions of their adult children?
Professor Shaundra Lewis, (Thurgood Marshall School of Law), asks this question in her timely piece, The Cost of Raising a Killer--Parental Liability for the Parents of Adult Mass Murderers, 61 Villanova L. Rev. 1 (forthcoming 2015). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2669869 As she explains in her abstract:
[T]he shooter’s parents almost always knew their offspring were seriously mentally ill beforehand . . . Despite knowing her son was severely mentally unstable, Nancy [Lanza] left her son home unsupervised with unfettered access to her arsenal of weapons while she went on vacation. This provided her son with the perfect opportunity to make a practice run to Sandy Hook Elementary School, where he later used her firearms to shoot and kill kindergartners and first-graders.
Using Nancy Lanza’s case and other notorious mass shooting cases as examples, this article [explores] if, and under what circumstances, a parent can be held civilly liable for their adult child’s mass shooting pursuant to general common law negligence jurisprudence [particularly] parental negligence law. [It first] address[es] whether there can be parental liability for parents of adult mass shooters based upon a special relationship under current law. [Then it analyzes] negligence [doctrines] in general and its complexities, as well as explores whether a duty to protect or warn can be established in mass shooting cases. [Next it] examines whether the parents in the real-life examples referenced above breached a duty to protect or warn [and] whether those parents’ breaches caused the shooting victims’ injuries or deaths. [The Article] concludes that in some circumstances parents can, and should, be held liable for their misfeasance or nonfeasance that leads to their child’s mass killing. It further posits that the . . . possibility of parents being subjected to financial liability for their child’s mass shooting will not only incentivize parents to take more aggressive measures to keep firearms out of their mentally unstable child’s hands but to obtain the mental health assistance their child so desperately needs—measures that in the end will make everyone (including their child) safer. [The Article concludes with] advice to parents for dealing with significantly mentally ill, adult offspring residing in their home.
Although I agree that financial liability would incentive parents to limit access to guns, I wonder whether it might also encourage parents to cut ties with their adult children precisely when they need the most support. Nonetheless, Lewis’s article shines a light on the sadly recurring question of whether parents should be responsible for the preventable actions of their adult children.
I’m Andy Kim, Assistant Professor at Concordia University School of Law. My own research focuses on criminal law and empirical analysis of the law. I’ll be guest blogging for the month. Hope you enjoy!
Saturday, October 03, 2015
"Landmark Cases" on C-SPAN
C-SPAN has produced (in conjunction with the National Constitution Center) a new weekly series called Landmark Cases. (H/T: Faculty Lounge). The series premieres tomorrow evening with Marbury and concludes on December 21 with Roe. In between, the series hits on Dred Scot, Slaughterhouse, Lochner, Schenck, Korematsu, Youngstown Steel, Brown, Mapp, Baker v. Carr, and Miranda.
Apparently there have been no landmark cases since 1973. And the choice of Schenck over Abrams (where someone at least stood-up for the First Amendment claimant) or New York Times (where the First Amendment claimant prevailed) is an interesting one.