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.
Thursday, October 01, 2015
U.S. v. Klein returns to SCOTUS
I spent the better part of two years a few years ago writing about United States v. Klein, including a number of posts here. The Court this morning granted cert. in Bank Markazi v. Peterson on whether Klein's separation-of-powers principle is violated by a statutory provision blocking certain Iranian-controlled assets for use in satisfying U.S. terrorism-related judgments against Iran.
Section 8772 of Title 22 provides that certain Iranian-controlled assets are subject to execution or attachment to satisfy money judgments against Iran "for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources." The assets described are specifically identified as the ones targeted in Peterson (which is mentioned by name) and which already had been restrained by the court in that case prior to enactment of the law. The statute requires that the court hold a hearing and determine whether Iran owns the assets, in whole or in part.
Bank Markazi argued below that the law violates the principle of Klein by improperly compelling the court to reach a preordained result--namely that Iran owns these assets. It emphasized that § (b) refers to the Peterson litigation by name and that the result of any judicial hearing is preordained, since Iran's interests in the assets was known and established before § 8772 was enacted. Nevertheless, the Second Circuit rejected the Klein argument, insisting that § 8772 changed applicable law for a pending case, but still required an independent judicial determination and application. Nor was it problematic that the law was drafted for a specific, identified litigation, something the Court had previously found did not equate with compelling an outcome. Section 8772 did not dictate an outcome; it only changed the law in a way likely to produce, through judicial application of the amended law, Congress' preferred outcome. But the likelihood of an outcome does not signal congressional dictation of an outcome; "[i]ndeed, it would be unusual for there to be more than one likely outcome when Congress changes the law for a pending case with a developed factual record."
Interestingly, the Second Circuit opinion contains some language that might have teed the case up for cert. In an act of understatement, the court acknowledged that the line between a valid change in law and an invalid legislative adjudication "is often difficult to draw." In fact, "there may be little functional difference between § 8772 and a hypothetical statute directing the courts to find that the assets at issue in this case are subject to attachment under existing law, which might raise more concerns." The court made clear that § 8772 did not cross the constitutional line because of the Court's guidance in Robertson.
So perhaps the Court is looking for a chance to reconsider Robertson and that line. Indeed, the ease with which courts can characterize just about any enactment as a change of law rather than a congressional compulsion is part of why Klein's "no dictating outcomes" principle carries so little force. This case might give the Court a chance to breathe some life into Klein.
Monday, September 28, 2015
Monkeying around with copyright law
PETA has filed a copyright infringement action on behalf of a crested macaque; the defendant is a nature photographer who used selfies that the macaque "took" by pressing the shutter button on a camera that he grabbed away from the defendant.
The lawsuit raises an interesting (although I believe easy) question of statutory standing and the zone of interests of the copyright laws--namely, whether a non-human enjoys rights under the statute. This article explains why the answer should be no. The lawsuit is also reminiscent of a 2011 lawsuit that PETA brought against Sea World on behalf of five Orcas, claiming a violation of the Thirteenth Amendment. The court dismissed for lack of standing, concluding that the Thirteenth Amendment only protected human beings, although I argued it would have been more appropriate to dismiss on the merits for failure to state a claim. In the interim, SCOTUS decided in Lexmark International v. Static Control that whether a plaintiff falls within the "zone of interests" of a statute (and we can, I think, expand this to the zone of interests of the applicable substantive law) is properly a merits question. It should follow that, to the extent a macaque does not have rights under the Copyright Act, the complaint should be dismissed on the merits.
One other question: Is this worthwhile as a sample pleading for Civ Pro? While the lawsuit is a loser, and perhaps even frivolous, the complaint is well-drafted, includes a lot of factual detail, and illustrates the form and structure of a federal complaint. Is the content too off-the-wall for these purposes?
Thursday, September 24, 2015
Justice and fairness v. procedure
Judge Bunning declined to stay his order extending the injunction against Kim Davis to all eligible couples. (H/T: Marty Lederman). Bunning explained:
Had the Court declined to clarify that its ruling applied to all eligible couples seeking a marriage license in Rowan County, it would have effectively granted Plaintiffs’ request for injunctive relief and left other eligible couples at the mercy of Davis’ “no marriage licenses” policy, which the Court found to be in violation of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Such an approach would not only create piecemeal litigation, it would be inconsistent with basic principles of justice and fairness. Thus, when the need arose, the Court clarified that its ruling applied with equal force to all marriage license applicants in Rowan County, regardless of their involvement in this litigation. (emphasis added).
Perhaps he is right about justice and fairness. But he is flat wrong on the procedure. What Bunning describes as "piecemeal litigation" is simply "litigation," which adjudicates and resolves the obligations of parties, not the entire world. The way to avoid the feared piecemeal litigation is to certify the class, as the plaintiffs requested, a move Bunning continues to resist. Otherwise, new couples are free to file new suits or seek to join or intervene in the pending action. Short of that, Bunning lacks the power to broaden the injunction in this way. And this remains the one issue on which Davis might actually prevail.
Settlement in Tolan v. Cotton
Last year, SCOTUS summarily reversed a grant of summary judgment against a plaintiff in a § 1983 action, concluding that the district court had impermissibly resolved disputed facts in defining the factual context for purposes of qualified immunity. I wrote about the case, arguing that, through some procedural confusion, it might indicate a new scrutiny of this sort of sub silentio fact-finding on qualified immunity.
SCOTUS remanded the case to the Fifth Circuit to reconsider whether other, undisputed facts supported qualified immunity; the Fifth Circuit sent it back to the district court. In September, the court granted summary judgment in favor of the city and sent the individual claim to trial, commenting that SCOTUS would not "be satisfied if we didn’t take this case to trial." After one day of trial, the case settled for $ 110,000, a typical outcome for cases that do not go away on summary judgment and a typical settlement amount for a claim involving serious-but-not-life-threatening injuries. (H/T: Jonah Gelbach of Penn).
An interesting side note: Tolan sought to have District Judge Melinda Harmon recuse over comments she made at the pretrial hearing on the eve of trial. The basis for the motion was a newspaper article reporting on the conference; the article quoted Harmon as saying she was tempted to grant summary judgment on the individual claim, but read SCOTUS as hinting that the case should go to trial. The article also quoted her as saying she was "confident" and "had faith" in her opinion and thought she was right the first time.
The court rightly denied the motion. She stated that some of the statements were taken out of context and referred to the claim against the city, not the individual officer. Other statements involved legalities and interpretations of law, with no discussion of what material facts might be undisputed or not. Moreover, there is nothing improper with the judge stating that she continues to believe she was right about her initial summary judgment decision on the individual claim (the one SCOTUS reversed). My experience is that district judges always continue to believe they were right even after being reversed. But that does not impair their ability to apply and follow that decision, much less indicate favoritism or antagonism towards the party against whom they originally ruled. Otherwise, a case should be assigned to a new district judge whenever there is a reverse-and-remand, which would create all sorts of unworkable procedural problems in complex cases.
Sunday, September 20, 2015
Deparmentalism, popular constitutionalism, and constitutional politics
Joey Fishkin writes at Balkinization about the race among GOP presidential candidates to undo birthright citizenship. Fishkin identifies several approaches--an "old school" departmentalism espoused by Mike Huckabee, in which the President can ignore Supreme Court precedent, a moderate approached advocated by Donald Trump (and echoed by Rand Paul and Ted Cruz) that acknowledges the Court's "ultimate authority" in constitutional interpretation, and pure judicial supremacy suggested by Carly Fiorina, under which only a constitutional amendment can challenge Supreme Court precedent.
Fioria to one side, I am not sure the distinction between Trump et al and Huckabee is as sharp as Fishkin suggests. In fact, either approach envisions both the power of the President and Congress to disagree with and disregard SCOTUS precedent and the interpretive role for SCOTUS.
President Trump must initiate birthright citizenship as a live constitutional issue--for example, signing a law providing that children of undocumented immigrants are not citizens and are subject to removal or commencing removal proceedings against U.S.-born children of undocumented immigrants. Either move would be in so-called "defiance" or "disobedience" to (admittedly old) precedent on the meaning of "subject to the jurisdiction" in § 1 of the Fourteenth Amendment, based on President Trump's independent assessment (supported by constitutional "experts") of the meaning of § 1. That interpretive independence is a key feature of departmentalism, which holds that the President does not violate his "Take Care" obligations or his constitutional oath by acting contrary to even SCOTUS precedent. Either move also triggers a role for the Court, as the judiciary almost certainly will be called on to consider the issues, whether in reviewing a removal decision or in evaluating the constitutional validity of the statute in a pre-enforcement challenge, and render a judgment in a specific challenge, based on the court's own constitutional analysis.
The difference among the candidates may be what happens next. Under a middle-ground departmentalism, the President must abide by and enforce the judgment in those specific cases. But he can continue to act in disagreement with the opinion underlying that judgment (as by, for example, initiating new removal proceedings against new individuals), until a new judgment bars him from doing so as to particular individuals. Eventually, the repeated losing will become politically and financially expensive and he will stop the cycle. This does seem a middle ground between where Fishkin places Huckabee (who seems to believe obeying an individual judgment constitutes "judicial tyranny") and Trump (whom Fishkin seems to presume would fall in line with SCOTUS precedent after the first decision).
For present purposes, I would be content to hear Trump argue, in essence: "My constitutional vision, supported by constitutional experts, is that § 1 does not guarantee birthright citizenship to the children of non-citizens, I am unconvinced by the Supreme Court's 120-year-old decision to the contrary, and, as President, I will act on that constitutional vision in the following ways. I do not need a constitutional amendment in the first instance."
But Fishkin offers a way in which departmentalism and popular constitutionalism overlap. The judiciary can be influenced and ultimately swayed by "experts" whose advocacy (in and out of court) make heretofore unexpected constitutional positions seem reasonable and proper to the public and thus to the court. Those experts similarly can influence the popular branches in their departmental constitutional analysis and their subsequent actions (described above) to put the issues in play and in front of the courts. In other words, I describe above a process of the executive repeatedly losing. Fishkin suggests that departmentalism, girded by popular constitutionalism, may lead to an ultimate constitutional victory in the courts.
Saturday, September 19, 2015
Lederman on Kim Davis
At Balkinization, Marty Lederman discusses whether Kim Davis is violating the district court order, issued when she was released from custody, prohibiting her from interfering with the efforts of deputy clerks to issue marriage licenses to all eligible couples. Lederman questions whether some changes Davis has made to the forms--removing her name, the name of her office, the name of the county, and the position of the deputy clerk--constitute interference.
I trust Marty's analysis. But then we have two questions. The first is whether there is interference (and thus contempt) if the altered licenses are deemed valid, as the governor announced last week. The other is whether, even if Davis is interfering and thus is in contempt, Bunning will jail her, given the circus that surrounded it the last time.
Friday, September 18, 2015
Sixth Circuit denies Kim Davis another stay
The Sixth Circuit on Thursday denied Kim Davis a stay pending appeal of the order extending the original injunction to bar her from denying licenses to any eligible couples (the extended injunction was issued the same day Judge Bunning jailed Davis for contempt). (H/T: Religion Clause Blog and Josh Blackman) Davis never asked the district court for a stay pending appeal, as required by Federal Rule of Appellate Procedure 8(a)(1)(A), and the court of appeals refused to accept "extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be hearing" as basis for finding that it would be "impracticable" to move in the district court, as required by FRAP 8(a)(2)(A)(i).
The latter conclusion is fair, I suppose, since the argument basically accuses the district court of having it in for Davis. Nevertheless, there is something strange about asking a district court to stay an injunction that he just entered by finding that the defendant has a substantial likelihood of success on appeal--in other words, there is a substantial likelihood that the district court was wrong. We do not require trial courts to make a similar confession of likely error in any other context. It also seems like a waste here--Davis will now ask Bunning for a stay, he will deny it, and the issue will be back with the court of appeals in a week or two.
It is notable that the extension of the injunction was not, as plaintiffs requested and many (including me) assumed, in anticipation of class certification. Instead, the district court extended the injunction in recognition of two other individual actions challenging Davis' no-marriage policy. (H/T: Marty Lederman for the analysis). I am not sure that is a valid basis for extending the injunction (where as expanding in anticipation of class status would be), so Davis may actually have one small argument that is not doomed to total failure.
Tuesday, September 08, 2015
Kim Davis released from custody
Kim Davis has been released from custody and had the contempt sanction lifted, based on the plaintiffs' report that they had received marriage licenses and that deputy clerks were issuing licenses to "all legally eligible couples." The court furthered barred Davis from interfer[ing] in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples." (H/T: Marty Lederman).
As written, however, the new order brings us back to the recurring problem we have seen with most district court injunctions: This has not been certified as a class action, so the injunction was satisfied when the named plaintiffs received their licenses. Further, Davis cannot properly be held in contempt for interfering with the issuance of licenses to other couples; those licenses are not formally happening on the strength of the court's order, so Davis would not formally be defying the court's order. Of course, if she attempts to push that point, the plaintiffs will simply ask Judge Bunning to certify the class, thereby expanding the injunction to that scope. The wiser move is for Davis to stand aside and let her deputies voluntarily comply.
Monday, September 07, 2015
When Political Correctness Was, Well, Correct
It's a pleasure to join PrawfsBlawg as a September guest blogger. I thought I would use my first entry to indulge my fascination with language, more specifically with Lawtalk -- words and expressions that have both legal and cultural significance. So let's talk about 'politically correct' and its strange reversal of meaning. It's hard to resist something so thoroughly in the news. (HT to my Lawtalk co-author James Clapp, who is a master of digging out historic uses of language and who wrote our book's discussion of 'politically correct').
These days, some politicians are throwing around the term 'politically correct' like dirty Kleenex. Donald Trump has probably gotten the most headlines that way: "I think the big problem this country has is being politically correct. I’ve been challenged by so many people and I don’t, frankly, have time for total political correctness. And to be honest with you, this country doesn’t have time, either." Thus he invokes fears of Mexican immigrant rapists, expresses disdain for "anchor babies," mimics broken English in discussing Asian business people, and makes so many horrifying remarks about women that I've lost count. Those who question his accuracy, his policies, or his choice of words are easily dismissed with that easy insult: they are just being politically correct. And so a charge that something is politically correct becomes a charge that it undesirable and untrue.
It's not just politicians. Court cases reflect this dismissive use of the phrase by ordinary citizens. For example, a California court tells the story of a doctor who, while performing surgery in the presence of an African-American nursing instructor, kept up a running commentary on race that included appalling remarks such as this: "You don't see 'no colored allowed' signs posted on doors anymore. I hate all this politically correct crap. People are afraid to tell the truth. . . . A pure white race, that's how it should be." [Williams v. Vartivarian, 2003 WL 361274].
But did you know that the phrase goes back at least to the founding generation, and was once a compliment? James Wilson -- a signer of the Declaration of Independence and SCOTUS Justice -- put the words together as early as 1793. Arguing that the federal government derives its powers not from the states but from the people of all the states together, he bemoaned the sloppy use of language about the government:
Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial language. Is a toast asked? "The United States" instead of the "People of the United States" is the toast given. This is not politically correct. [Chisholm v. Georgia]
Wilson meant that the toast was not an accurate characterization of the government structure established by the Constitution. 'Correct,' or the alternative adjective 'right,' were also used to signal philosophical approval. Thomas Jefferson happily predicted that graduates of his new University of Virginia would carry forth into government service "the correct principles of our day." The most influential use of 'politically right' appeared in a 1786 oration dedicated to Benjamin Franklin: "Nothing can be politically right that is morally wrong; and no necessity can ever sanctify a law, that is contrary to equity." (This quote was later much used by anti-slavery crusaders to counter the argument that slavery must be tolerated as a politically expedient tool to maintain national unity). Being politically correct, then, was a Good Thing.
In a century that saw political conformity enforced by the likes of Hitler and Stalin, the phrase 'politically correct' lost its identity as a straightforward compliment. In the 1970s, the term 'politically correct' reappeared in the United States as a kind of wry lingo within progressive groups seeking greater inclusion and recognition of women and African-Americans. Although useful in internal debates (meaning something like 'consistent with our political ideals'), it was often used with self-mocking humor. In the 1980s, however, conservative politicians used this shorthand as a way to characterize the liberal positions as too dogmatic. By the 1990s, the media picked up the phrase, and opposition to 'political correctness' became the insult of choice for those who did not want to use inclusive language and did not want to reconsider the subjects or people taught in our schools. Any sense that 'correct' meant 'accurate' pretty much disappeared. [Scary experiment for today's pop-culture meaning: put "politically correct" into Google or Google Images, and see what you get.]
The reversal of meaning became particularly clear in the educational context in a statement by Lynne Cheney when she was chair of the National Endowment for the Humanities (when George H.W. Bush was President). The NEH commissioned a group of educators to devise national standards for teaching history, but when the draft was released Cheney hated them. In a statement that would have puzzled both Jefferson (who used 'correct' to mean ideologically desirable) and Wilson (who used 'correct' to mean accurate), Cheney said, "I've received dozens of phone calls from people worried that the standards represent not only a politically correct version of history, but a version of history that's not true."
Here's my suggestion: let's lose "politically correct" from our collective vocabulary. It's a content-free insult, deflecting thoughtful debate -- a label that avoids both fact check and policy discussion. Let it go.
What if it doesn't pass and other questions about Lessig 2016
Larry Lessig successfully crowd-funded his $ 1 million and is running for President as a single-issue "referendum candidate"--he will serve as President only until passage of the Citizen Equality Act of 2017, after which he will resign and have his Vice President (preferably a liberal such as Elizabeth Warren or Bernie Sanders) become President.
I generally think this is silly. And I say this while supporting pretty much all of the substantive provisions of the Act and as someone who might support a Lessig-type as a presidential candidate (if I thought he could win a general election, which I don't). But a few questions--none of them new or original, but I throw them out here:
1) What if the law does not pass in his first term? Would he seek reelection in 2020?
2) What does it mean for the law to "pass"? Must every piece pass? If not, how many pieces? Must it pass in the current form or are amendments permissible? If not, how watered-down can a version be to still constitute "passing" so as to trigger his resignation?
3) Does he resign after the legislation is signed? Or does he wait around for completion of judicial review? Nothing in the Act seems constitutionally questionable. Of course, in 2009, we all would have said that the health-insurance market affects interstate commerce. And what happens if some (or all) pieces are declared invalid.
4) If he fails to resign as promised, is that an impeachable-and-removable offense?
5) Accepting that legislation takes months even in a functioning Congress (which we surely do not have), how will Lessig handle all the other presidential responsibilities or who will he delegate them to? Will the VP be handling most of these other presidential duties? How will he fill judicial and executive vacancies? Is it fair to question whether he cares about these "mundane" aspects of the presidency and to be concerned that he doesn't?
6) Is it fair game during the election and "debates" to prod Lessig about his views and plans on other issues, accepting that he will have to do other things as President, at least for some period of time? Will he answer these questions and will he answer them well?
7) Are substantial numbers of Democratic voters this detached from political reality? At least part of the frustration with the Obama presidency involved the extraordinary (and unrealistic) expectations when he entered the White House, which he could not possibly meet.* And he began his presidency with substantial majorities in both houses and a filibuster-proof majority in the Senate. And he still could not get done everything he wanted or tried to do, at least not in the absolute way he wanted.
* No, that was not the only problem. But it has played a role in the perception of his achievements as President.
What makes Lessig (or those who would support him) think he will have any more success, especially since he definitely will not have a House majority and almost uncertainly will not have a Senate majority. Does he (or his voters) believe putting the word "referendum" into his candidacy will actually give him more of a mandate than Obama enjoyed despite having received 70 million votes and 365 Electoral votes? Does he (or his voters) believe Mitch McConnell, John Boehner, or any of the representatives who might lose their seats under a non-gerrymandered proportional representation scheme will care?
8) Aren't all the incentives for Republicans to oppose and drag their feet on this (beyond even the ordinary perverse incentives of divided government)? The longer it drags on, the longer they keep in office someone who really does not want to be President. And the longer it drags on (or the legislation does not pass), the easier to run against Lessig in 2018 and 2020 as a failure who could not achieve his one (and only) presidential goal. "Presidential failure," not "congressional recalcitrance," is always the narrative on which the press, and thus the public, seize.
Sunday, September 06, 2015
Many other takes on the Kim Davis mess (Updated)
Both from Balkinization. Marty Lederman parses Kentucky law and suggests that either the deputy-issued licenses are invalid or there was no need to hold Davis in contempt it was improper to throw Davis in jail (the contempt order was proper). Mark Graber discusses a "class bias in rights" (which Paul already commented on), under which rights that inure, in whole or in part, to the wealthy are more easily implemented than those that inure largely to the less wealthy.
Both are worth a read.
Update: Mike Dorf adds his take, arguing that a district court has broad powers to remedy constitutional violations, even where those remedies might otherwise violate state law. Thus, even if Davis's name/consent ordinarily is necessary, once it became necessary for licenses to issue without her name (in order to ensure compliance with the underlying injunction), those licenses could be made valid. Note that Mike and Marty agree that it was unnecessary to put Davis in jail.
Further Update: More from Sam Bagenstos (Michigan) in The New Republic.
Friday, September 04, 2015
Out George Wallace-ing George Wallace
I was quoted (mostly out of context) in yesterday's New York Times on Kim Davis; I said that Davis was "out George Wallace-ing George Wallace." Wallace's stand in the schoolhouse door, and accompanying speech, remain one of the signature moments of Massive Resistance to Brown and integration. But after making his speech, Wallace stood down when facing the Attorney General, rather than being hauled off by a federalized National Guard or facing a contempt charges (the University had been enjoined to allow Vivian Malone and James Hood to register and Wallace had been enjoined not to interfere with the prior injunction). Wallace made his point and had his moment, but in the end chose not to defy the forcible execution of a court order or to go to jail for a lost cause.
What does it say about society, this issue, current politics, and attitudes towards the judiciary that Davis believed it necessary or proper to take that next step? Is it that she believes she is fighting for conscience rather than secular principles such as federalism? Is her stand less popular locally or nationally than was Wallace's, necessitating the bigger step in order to be heard? Is her stand more popular locally or nationally, such that she garners more support and sympathy by going to jail than Wallace would have? How does the relative popularity of Obergefell as opposed to Brown affect the respective choices each make.
Does Davis go down as this generation's George Wallace? She might, if only because she is proving so rare. According to this WaPo story, citing the group Freedom to Marry, there are only a handful of counties (fewer than 20) in Southern states refusing to issue licenses, at least as a matter of formal office policies.*
* And 13 of those are in Alabama, where probate judges are waiting for the Supreme Court of Alabama to lift the mandamus prohibiting them from issuing licenses (or for SCOTUS to quickly reverse if the Supreme Court of Alabama refuses to lift the mandamus).
Marriage licenses issuing in Rowan County
Here and here. The first couple--William Smith and James Yates--were not parties to the litigation. No word on whether the license was issued in Kim Davis' name or whether it is valid if issued over her command not to. That probably is moot; it would arise only if a marriage officiant refuses to recognize the license or someone somewhere down the line refuses to recognize the marriage as valid, neither of which is likely to occur.
Davis remains in jail, probably until next week. It may come down to whether, if she returns to her job, she intends to order her staff to again stop issuing licenses.
By the way, note the rhetoric floating around here: Davis's husband is quoted as saying "Just because five Supreme Court judges make a ruling, it’s not a law." Now regardless of how silly that statement is on its own, it is notable that blame for his wife being in jail is being placed on the shoulders of the Supreme Court and Obergefell. But the problem is not that Davis ignored the Supreme Court, at least not directly; the problem is that she ignored a district court order directed at her.
Thursday, September 03, 2015
Kim Davis (not Jim or Garfield) jailed for contempt
Judge David Bunning has held Kim Davis in contempt and had her jailed. Bunning apparently pointed to the fact that members of the public are raising money to cover the fines (damn crowd-funding) as evidence that fines alone would not work. This is civil contempt, so she will be released as soon as she agrees to comply with the injunction and issue licenses.
So Davis is now a martyr to the cause, probably what she and her lawyers wanted. It raises a couple of questions: 1) Does this provide grounds for the governor or other state-level official to remove her from office (a question of Kentucky law)? 2) Is Davis now "unable" to issue licenses, opening the door for the county judge to do it, as a commenter to an earlier post suggested? 3) If the county judge begins issuing licenses, does that get Davis out of jail? 4) If the county judge begins issuing licenses, does it moot the case once the plaintiffs get their licenses from the judge (the answer to this one is probably not, because I expect Bunning to go back and certify a class).
For what it is worth, the judicial process is working as it should in all of this. No one said it should be pretty.
Update: Five of the six employees of the office (all but Davis's son) have promised to issue licenses beginning tomorrow, filling out the forms in Davis' name. Bunning also indicated he will lift the contempt order in a few days if employees issue licenses. Davis could have stayed out of jail by agreeing not to interfere with her employees issuing licenses, but she said she could not do so consistent with her conscience. There may be a question of whether those licenses can be valid if issued in defiance of office policy. But I suppose it will be enough that the form is properly completed with Davis' name on it by a duly employed clerk.
Monday, August 31, 2015
Gabilondo on the Cuba embargo
My FIU colleague Jose Gabilondo explores how the Obama Administration might unilaterally end the Cuba embargo, or at least set it up to be challenged by a private party. It is an elegant solution, tied to the connections between legislation and administrative rulemaking.
The standing question he mentions is interesting, but seemingly manageable. If the sole basis for the embargo is regulations enacted solely pursuant to a constitutionally defective statute with no inherent executive discretion and that statute is the only thing legally prohibiting a company from doing business in Cuba, then standing to challenge the statute seems plain. And after Zivotofsky and Bond (interestingly, both Kennedy opinions), it is clear that a private plaintiff can raise pure separation-of-power and federalism arguments in challenging the validity of federal statutes.
Saturday, July 18, 2015
Marriage Ban Proponents Slept Through a Revolution: But Not the One You Think
In his last Sunday sermon, Martin Luther King, Jr. told the story of Rip Van Winkle. He went up the mountain during the reign of King George III of England and woke twenty years later during George Washington's presidency. Rip missed out on a lot of change. Dr. King stated that sometimes, "people find themselves living amid a great period of social change and yet fail to develop the new attitudes, the new mental responses - that new situations demand. [Like Rip], they end up sleeping through a revolution."
Marriage ban proponents did not sleep through the gay rights revolution, they slept through a revolution in the popular understanding and meaning of "family." In Obergefell v. Hodges, they dogmatically clung to a losing argument. Limiting marriage to a man and a woman, they insisted, is optimal for children. As explained in my previous post, the Obergefell majority disagreed. Marriage ban proponents' error was in their failure to acknowledge that "hundred of thousands of children [are] being raised by same sex couples."
Times have changed. Today, many communities, not just the LGBT community, understand that "family" does not have to be restricted by notions of marital status (or legitimacy), sex, biology, or proscribed gender roles. Marriage ban proponents had plenty of notice that the Supreme Court appreciated these societal changes. Barely two years prior to Obergefell, in striking down DOMA in United States v. Windsor, the majority made clear that the moral and sexual choices of same-sex couples were protected by the Constitution. The Court, without reference to biology or gender, also strongly emphasized that DOMA harmed same-sex couples and their children.
The failure of marriage ban proponents to recognize and adapt, or "develop new mental responses," to the changing social understanding of family is why they could not defend their position. That they offered no new justifications laid bare their simple preference that children of opposite-sex couples would be valued by law over children of same-sex couples. Their reliance on old tropes -- man-woman biology arguments and responsible procreation theories -- became the rhetorical sheep lulling them to sleep. And they have been asleep for a long time now. Fortunately, the Supreme Court did not join in the slumber.
Tuesday, July 14, 2015
Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality
This puts together much of what I have been writing here about the mess in Alabama between January and the Court's decision in Obergefell. I reach the same basic conclusion--obnoxious Roy Moore rhetoric aside, everything that happened in Alabama in those six months was consistent with the judicial process and with the traditional scope of injunctions and district court precedent.
Friday, July 10, 2015
So it seems everyone thought Nebraska had a great idea on how to end marriage-equality litigation while avoiding attorney's fees. Arkansas and South Dakota have joined Nebraska in asking the Eighth Circuit to dismiss appeals as moot and vacate the various injunctions. Kansas is asking the Tenth Circuit District of Kansas to do the same. And now Alabama is asking the Northern District of Alabama (in a recognition suit that had not yet proceeded to even a preliminary injunction) to do the same.When I wrote about Nebraska's mootness argument, I explained why voluntary cessation from the state agreeing to abide by Obergefell should not be sufficient to moot the case, or at least not sufficient to justify vacating the district court judgment and order. But looking at these new motions, particularly from Alabama, I I think I have identified a more fundamental problem in their arguments. State officials are arguing that Obergefell conclusively resolved the constitutional question of same-sex marriage across the country, so there is nothing for the district courts to do here and no need for a district court judgment and injunction against officials in these states.
But that misunderstands what a Supreme Court opinion does and how precedent operates. The Supreme Court decision established the operative constitutional framework and analysis, but it it spoke only to the laws in Ohio, Michigan, Kentucky, and Tennessee and the obligations of officials in those states. As to any other state, it is necessary for another court to apply that constitutional framework, as precedent, to the laws and actions in that state. Even if the answer is obvious, since the precedent is binding and there is no way to distinguish it, that additional step is necessary, at least so long as there remains a genuine threat that this other state's anti-SSM laws might be enforced (and within the parameters of mootness doctrine).
In a sense, the states are trying to have it both ways. For months, many states and state officials insisted that a decision by a lower federal court was not binding on non-parties, did not require non-parties to do anything, and did not protect non-parties. This argument was, in fact, correct, although it happened to work to the state's advantage. Now states are trying to argue that a SCOTUS decision is, in essence, a nationwide injunction applicable to all bans on same-sex marriage and to all officials in all 50 states. This argument is, in fact, incorrect, although it also works to the state's advantage.
The most ironic example of this is Kansas. After the Tenth Circuit twice declared that the Fourteenth Amendment guarantees a right to marriage equality (in cases from Utah and Oklahoma) the Kansas Attorney General initiated a state mandamus action to stop a Kansas county clerk from issuing licenses to same-sex couples until a judge in the District of Kansas decided a constitutional challenge to Kansas' ban. Clearly, in the AG's view, binding precedent was not alone sufficient to justify compliance; there needed to be a decision by a court expressly addressing Kansas law and its enforcement by Kansas officials. And never did Kansas officials suggest that the Tenth Circuit's constitutional decision mooted the challenge to Kansas' law. But the Tenth Circuit's decision on the meaning of the Fourteenth Amendment is as binding on federal courts within the Tenth Circuit as a decision by SCOTUS. So if the extra step is necessary to apply circuit precedent, it must also be necessary to apply SCOTUS precedent.
Wednesday, July 08, 2015
Same-sex couples in recalcitrant counties and states have a problem, as illustrated by this case in Hood County, TX. Recall what happened: The county dragged its feet in issuing license to same-sex couples, a couple sued for an injunction compelling the license, the county within a few hours relented and issued the license. As I said previously, the case is now moot, but the plaintiffs are not prevailing parties because they did not obtain a judicial decree guaranteeing that license, therefore they cannot recover attorney's fees (which would be small anyway--just the amount to draft short complaint and TRO motion and file the thing). But attorney's fees are the driving force for compliance--recalcitrance needs to become expensive in order for officials to fall in line.
One solution would be for the court to impose sanctions on the clerk. But then the question is from what source? Rule 11 only applies to papers and other things presented to the court; here, the case has become moot before the defendant clerk has even appeared, much less presented something to the court. Section 1927 only applies to attorneys, and then only for conduct that "multiples" proceedings. So that leaves the court's inherent authority to sanction, including through attorney's fees, in order to compensate, deter, or punish. So does inherent sanction authority reach the type of (mis)conduct we see here: Pre-litigation refusal to comply with precedent, forcing a lawsuit, and immediately acquiescing before the court has an opportunity to hear the case? (In contrast to forcing a lawsuit in order to argue for overturning Obergefell)?
Monday, July 06, 2015
What can plaintiffs sue for after Obergefell?
A same-sex couple sued the County Clerk of Hood County, TX in the Northern District of Texas on Monday, after they were denied a marriage license (purportedly because the office did not yet have appropriate forms). With several hours of the suit being filed, the office issued the license. Precisely how it should go.
Here is where it gets tricky: According to the above article, the plaintiffs want their attorneys' fees and say they will not drop the lawsuit "until the clerk’s office agrees to issue marriage licenses to 'all couples, gay and straight, without delay.'" But neither of those things should happen:
1) The lawsuit is now moot and should be dismissed as such, since the plaintiffs got what they sued for--their marriage license.
2) The plaintiffs lack standing to seek relief for all couples, gay and straight. So it sounds nice, but that is not how litigation works. Perhaps if they certify as a class action, although I need to see the complaint to know whether they are trying to do that. Of course, that does not resolve the mootness problem.
3) The plaintiffs probably will not get attorneys' fees, since they are not prevailing parties. The defendants complied without any judicial order or injunction. And even though compliance was obtained because of the lawsuit and the certainty of liability, the Supreme Court rejected the so-called catalyst theory of attorneys' fees, demanding that a party prevails only if they obtain some judicial decree in their favor.
4) The solution for the plaintiffs may be to sue for money damages for the inconvenience and humiliation caused by delay unique to same-sex couples. Assuming that short delay constitutes a violation, the claim only would be worth $ 1 in nominal damages, but it avoids mootness and prevailing-party issues.
Paul closed comments on his excellent post on the distinction between empathy and sympathy (and, as a third element, compassion). I will just second Paul's remarks by recommending Thomas Colby's 2012 article in Minnesota Law Review, which I reviewed for JOTWELL. As I wrote here, this exchange between Sen. Kyl and Elena Kagan during Kagan's 2010 nomination hearings both exposed the confusion many have over the terms and had the potential to explain the role empathy actually plays in judging, although I don't think anyone recognized it at the time.
Wednesday, July 01, 2015
Marriage and Other Favored Unions
So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.
Associations of Workers and the NLRA
Congress passed the National Labor Relations Act years ago and, with it, enacted a particular vision of what worker associations should be and how they should operate. That vision included both (1) exclusive representation and (2) a commitment to the view that the interests of workers and employers are fundamentally opposed and antagonistic.
At first the NLRA benefited workers (if rapidly increasing unionization rates are any indication), but over time that has largely ceased to be the case. The government restricted covered labor organization activity and the Act stifled the ability of covered workers to develop innovative forms of worker organizations that could better help them achieve their particular interest. One example of this stifling (and one that I discuss in a forthcoming article) comes out of the Act’s prohibition on company “support” of labor organizations. This ban has in turn dramatically limited the development of mutually beneficial collaborations between workers and companies looking to sell themselves to consumers as “conscious capitalists.” As a result of the Act’s narrow vision of appropriate worker organization, it is not surprising that innovative forms of worker organization (the Fair Food Council being just one example) have only occurred among workers who are not covered by the NLRA at all.
In short, when the government favors a particular vision of worker association – even with good intentions – it also frustrates experimentation with other forms – forms that may in fact be better for at least some workers.
Associations of Individuals and Marriage
Something similar might be said about marriage. Like the vision of worker organization demanded by the NLRA, marriage (including same-sex marriage) is but one of the many forms romantic and family associations can take. And like a traditional labor union, a traditional marriage (same-sex marriage included) will work better for some than others. The government, however, does much to encourage traditional marriage. Spousal privilege and military, social security, and immigration benefits being just a few examples. And these benefits, like all incentives, serve to promote marriage over non-matrimonial forms of romantic and family association. Those benefits alone might already have been enough to stifle experimentation with other forms. But the majority opinion in Obergefell, if its love letter to marriage is read and its views adopted, imposes an arguably different and more potent type of cost on would-be experimenters: stigma. As the majority sees it, marriage is of “transcendent importance” and “promise[es] nobility and dignity to all persons”. It is marriage that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Without it, “children suffer the stigma of knowing their families are somehow lesser.” (emphasis added). Given all this, a reader would think marriage the sole means by which we come to flourish in relationships – that families and romantic relations structured without it truly are lesser. On that view, failure to get on board with the institution really does deserve to be stigmatized.
For those who think the Court’s substantive view on marriage’s importance right and the government’s subsequent promotion of it good, this all won’t seem bad. But for those who think the highest ideals of love and family might be better achieved – at least for them – through other forms of association, the majority’s reification of the centrality of marriage to the good life will strike them as yet another barrier to a future where those ideals can be realized. As with the story of worker associations, it might take us a long time to realize that the government’s “help” of our association of choice today won’t actually be so helpful tomorrow.
 A few argue exclusive representation was not required from the start but it certainly was treated as such soon afterward. Either way, my point is the same.
Tuesday, June 30, 2015
An unusual role
During Monday's SCOTUSBlog opinion-announcement LiveBlog, a reader asked about how often Justice Thomas assigns opinions. And I realized that the answer is "not very often." Given seniority and the ideological/jurisprudential position of the various justices, Thomas only assigns the opinion if he is in the majority and the Chief, Scalia, and Kennedy (the three justices senior to him) are not. And that just does not happen very often. Thomas is in agreement (at least as to judgment) with the Chief 69% of the time, with Scalia 77 % of the time, and Kennedy 65 % of the time. And then he assigns only if he also has four of the justices who are junior to him (with whom, other than Alito, he agrees far less often) going along with him.
And I then realized that one of his rare assignments was Walker v. SCV. And he gave the opinion to Breyer, which is an interesting move. Ron Collins argued that Thomas's vote in this case may have been influenced by his unique perception of a racist symbol such as the Confederate Flag and how the First Amendment should treat such symbols. (Dahlia Lithwick and Garrett Epps made a similar point about Walker in a podcast and Epps wrote about it in the Atlantic). If so, one might have expected Thomas to keep the case for himself, precisely so he could talk about that unique symbol and how it might have affected the First Amendment analysis. Or we might have expected him to keep the case simply because he so rarely gets to assign.
Anyway, another unique feature of Walker, a case which could have some long-ranging effects.
Some movement in Alabama
1) Counsel for the plaintiff class in Strawser has taken the position that the stay on Judge Granade's class injunction lifted as soon as SCOTUS issued its opinion. Granade's order stated that the injunction was stayed "until the Supreme Court issues its ruling" in Obergefell, which happened at 10 a.m. Friday. Thus, the injunction--binding every probate judge in the state to issue a license to any same-sex couple who requests one and otherwise qualifies--is in force and readily enforceable by contempt. Unlike in Nebraska, there was no need for a motion to lift the stay.
2) Plaintiff counsel notified defense counsel of this view and asked defense counsel to notify each probate judge that they were subject to the injunction and could be subject to contempt proceedings if they failed to comply. Plaintiff counsel particularly noted the variance, including some probate judges waiting for SCOTUS to issue its mandate, others issuing licenses to opposite-sex but not same-sex couples, and others not issuing licenses at all.
3) The Association of County Commissions of Alabama, which provides probate judges with liability insurance, recommended "that probate judges begin issuing marriage licenses to same-sex couples in the same manner and pursuant to the same requirements applied to traditional couples." Not sure about that "traditional couples" phrasing, but you get the point. This is just a recommendation. But since the ACCA is the one that indemnifies the probate judges if they get sued, hit with attorney's fees, or held in contempt for non-compliance, the recommendation might carry some weight.
4) The Supreme Court of Alabama issued an order in the mandamus case reminding probate judges that the parties in Obergefell have 25 days to seek rehearing and ordering new briefing and motions to be filed by July 6. Presumably, the briefing on two points: 1) arguing that the mandamus must be vacated because its underlying reasoning does not survive Obergefell and/or 2) arguing that each probate judge should be released from the mandamus because each is bound by the now-enforceable district court injunction.
This order sent everyone scrambling to figure out what it meant. The confusion was compounded (naturally) by Roy Moore, who apparently believes that SCOTUS decisions do not take effect until the period for rehearing has passed. Moore first argued that probate judges were prohibited from issuing marriage licenses until the period for rehearing lapsed; he then said that no probate judge was required to issue licenses within that period, insisting that the issue is "stalled" in Alabama until SCOTUS can no longer grant rehearing. Of course, that ignores the fact that the real work in Alabama is being done not by Obergefell, but by Judge Granade's injunction, which became enforceable immediately.
Monday, June 29, 2015
Two thoughts on Paul's post about the prose in Justice Kennedy's Obergefell opinion:
1) If you had asked me as of 9:57 a.m. Friday, I would have predicted the vote would be 6-3, with the Chief joining the majority. And at least part of the reason I thought he would join the majority was to keep the opinion away from Kennedy--either by writing it himself or giving it to Justice Ginsburg--so as to get a narrower, less flowery, clearer, likely more Equal Protection focus.
2) Judge Posner's opinion, while a blast to read (at least if you agree with his conclusions), was criticized in some circles as similarly not placing itself within the ordinary (he uses "conventional") doctrinal framework. He did not commit to a standard of review, not resolving the fundamental rights questions, using cost-benefit balancing analysis that was neither heightened nor strict scrutiny, while insisting that the difference was semantic more than substantive. Posner's opinion is noteworthy for the way it tears apart (and makes fun of) the state's arguments in support of SSM bans. But Posner departs from the typical judicial style as much as Kennedy does.
Texas responds to Obergefell
Texas Attorney General Ken Paxton has issued a non-binding opinion letter about implementation of Obergefell. Paxton concludes that 1) county clerks and their employees retain religious freedoms that may allow them to opt-out of issuing licenses to same-sex couples, but it will be fact-dependent and 2) State judges and county justices of the peace may similarly seek an opt-out, depending on the facts. The county clerk in Bell County followed the letter to announce that her office would issue licenses to same-sex couples, with individual employees able to seek an opt-out. Josh Blackman has detailed thoughts; Josh argues that this becomes a matter of staffing, rising to a constitutional problem only if no one in the office is willing to issue licenses to same-sex couples or if there are excessive delays or administrative difficulties.
I believe Josh basically has it right, although I would offer a few caveats.
First, as Josh notes and as I argued in a listserv discussion, dignitary harms caused by discriminatory delays or by being sent to a special line or a different clerk (to say nothing of the extreme case in which the clerk gives a lecture against same-sex marriage before moving the couple to a different line), may be challenged in an action for damages, even if the couple gets the license. The claim probably is worth only $ 1 in nominal damages, but it could proceed and could produce a judgment against the clerk and/or the office. There is a qualified immunity question that goes to the scope of Obergefell--does it mean there is a right of same-sex couples to obtain licenses and to marry in all respects on the same terms (vis a vis the State) as opposite-sex couples. A supervisory or municipal liability claim also is likely if the delays and dignitary harms were caused by employees carrying out formal policies.
Second (and this may be because my religious beliefs do not cause me to oppose same-sex marriage), even recognizing the administrative need, this makes me uneasy because it smacks bit of separate-but-equal. It relies on separate lines and separate clerks. Only it now is being presented as the least restrictive means for the government to satisfy its compelling interest in issuing marriage licenses to qualifying couples. I suppose if it is done respectfully (and a listserv comment indicated this has been working well in Utah), there is not a problem. But if we all can agree that a clerk's office could not have a special line for mixed-race or interfaith couples (assuming we can), why are same-sex couples and same-sex marriages different? Alternatively, could that concern be resolved by broadening the opt-out to extend not only to opposition to same-sex marriage, but also to other religious objections to other licenses?
Third, what happens if there is only one clerk in the office who will issue these licenses? Can he never break for lunch? Must the office, at least for marriage licenses, shut down for that hour? I do not imagine the office could say "No licenses to same-sex couples from noon-1 p.m."
Sunday, June 28, 2015
Is the question moot?
Immediately following Obergefell, Nebraska moved in the Eighth Circuit to lift the stay of a district court injunction invalidating the state's ban. In its motion, Nebraska argued that the case is moot because the Attorney General has certified that he will comply with Obergefell and no longer enforce the Nebraska ban. The motion cites to cases (from the Eighth and Seventh Circuits) holding moot challenges to laws that had been declared unconstitutional in a separate case by a controlling court. It also argues that this case is not capable-of-repetition-yet-evading-review, because the state's promise to comply with Obergefell means no one in Nebraska will be denied a license.
This argument seems wrong to me, at least as the state presents it. The government's promise not to enforce a law is generally not sufficient to moot a case (without implicating C/R/Y/E/R). A state can moot a case by repealing a state law, but Nebraska has not done so (and likely will not). The cases Nebraska cites are not on point, because Nebraska's marriage ban has not been declared unconstitutional. The bans in other states have been declared unconstitutional in a decision that, as binding precedent, likely will result in Nebraska's ban being declared unconstitutional. But that is different than a declaration as to Nebraska's law.
I did find one case (not cited by Nebraska), Christian Coalition of Alabama v. Cole (11th Cir. 2004), holding that a constitutional challenge to state judicial canons was moot as a result of precedent from a different state. There, the state judicial ethics commission represented that it would not enforce a canon in light of SCOTUS precedent declaring invalid a similar judicial canon from Minnesota, mooting a challenge because there was no threat of any judicial candidate being sanctioned. This case suggests that Nebraska is correct. Moreover, in asking whether voluntary cessation has mooted the case, courts link the possibility of a renewed enforcement back to standing. Given Obergefell and Nebraska's commitment to abiding by it, a new couple initiating a challenge to its ban likely would be held to lack standing (unless actually denied a license). In the absence of any indication that the plaintiffs in the pending action will be denied a license because of the AG's representation, perhaps the case has indeed become moot.
But this seems a dodge when litigation is already pending and when the district court already has entered an injunction prohibiting enforcement of this particular law. The point of Obergefell is to make clear that the district court decision and injunction both were correct. It seems appropriate to allow that declaration about Nebraska law and that injunction (which, as I have argued, only affects the plaintiff couples anyway) to take effect in light of Obergefell. Otherwise, wouldn't most cases become moot after many GVRs?
Of course, this just may be one more way in which marriage-equality litigation is unique. We have multiple states with identical laws all being challenged at the same time by plaintiffs seeking to engage in identical conduct, with one Supreme Court decision resolving the constitutional of every law in every state as to all possible sets of facts. That is not true of all constitutional litigation.