Tuesday, March 01, 2016

Read the text, Senator

If you want to score debater's points by claiming your fidelity to the text as against your interlocutor's atextualism, you need to make sure you actually get the text right.

Case in point: Republican Sen.. Charles Grassley's SCOTUSBlog commentary, responding to President Obama's own SCOTUSBlog commentary about his power and obligation to "appoint" a successor to Justice Scalia. Not so, Grassley insists--"The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent." Obama thus is under a "fundamental misunderstanding" of the constitutional text, which shows that any justice he will put forward will similarly disregard the text.

Except: "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." So the President does not only nominate; he appoints, although with advice and consent of the Senate.

If Grassley's point is that both branches are involved in choosing a Supreme Court Justice, he is absolutely correct. And the Senate is perfectly within its constitutional power (if not necessarily its obligation to govern responsibly and effectively) to withhold that consent. But this is entirely a political calculation--the expectation that he (and the rest of the Senate GOP) will be ideologically opposed to any Obama Justice. Grassley was trying to avoid the politics by grounding his argument in constitutional text, as well as being a bit pedantic in the process. But if so, you cannot get the text wrong.

Posted by Howard Wasserman on March 1, 2016 at 02:00 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Sunday, February 28, 2016

Claim: There is nothing wrong with politically motivated prosecutions (of genuinely guilty political candidates).

Here's an ethical hypo that isn't really a hypo at all.  Suppose a U.S. Attorney from the opposite party has strong reason to believe that a leading---and very dangerous and scary---presidential candidate was guilty of a serious federal felony---if, for example, that candidate were currently embroiled in multiple lawsuits, including one by a major state Attorney General, alleging that the candidate in question had led a fraudulent scheme to bilk thousands of people of their hard-earned money with a fake "university"---allegations that, if true, would also clearly meet the elements of various criminal fraud statutes.

Should that U.S. attorney investigate, and, if s/he finds probable cause, prosecute?  Even in an election year?

I'm inclined to think yes: even though it would lead to cries of "politically motivated prosecution," there's nothing particularly wrong with politically motivated prosecutions: if one wishes to run for the highest office in the land, one probably shouldn't go commit a bunch of felonies; if one does commit the felonies then run, one is fair game.* Plus, there's something grim about the idea that one can get de facto immunity from one's felonies by running for president. Especially when the candidate is, as noted, not just an ordinary political opponent, or even an extremist political opponent, but a terrifying, openly racist, demagogue. 

 

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edit: at least when the felonies are classic malum in se crimes like conning people out of their money. I might feel differently if we were talking about, e.g., victimless drug crimes.

Posted by Paul Gowder on February 28, 2016 at 12:07 PM in Criminal Law, Law and Politics | Permalink | Comments (12)

Tuesday, February 16, 2016

The West Wing may not be the best source for resolving political problems

Let me begin by saying that I loved The West Wing while it was on, before I decided Aaron Sorkin's writing was unbearable and repetitious. I even wrote something (no longer available online) about the show's many story lines about presidential and vice-presidential succession, which has always been a constitutional fascination. And in broad strokes, the show kind-of predicted the four players in the 2008 Presidential race.

Lisa McElroy (Drexel) writes in Slate about The West Wing's apparent solution to our current Supreme Court dilemma: Presented with a chance to replace a deceased conservative justice but facing a Republican Senate, second-term President Bartlet creates a bargain by making two ideologically extreme appointments--a very liberal woman as Chief and a very conservative man, hoping the Senate will go for the trade-off.  I recalled the episode when I heard about Scalia's death last weekend. I do not remember if I believed this was a good idea when the episode aired in March 2004; I believe it is a terrible idea now (although that might just reflect how I feel about Sorkin's work).

First, it required that White House staffers create a second vacancy by convincing/coercing/strong-arming the Chief Justice into retiring.  We no longer applaud (or should applaud) Johnson-esque tactics when it comes to the President and the Court. But Sorkin loves the "honesty" of such straight-talking methods and ends-justify-means strategies, even if in real-life they come across as noxious. I would not want an Obama aide directly lobbying Ginsburg or Breyer to retire.

Second, what the show depicts seems to me a terrible trade for the Democrats. Yes, the Democrats get to appoint the Chief (which has not happened since Fred Vinson in 1946). And that is significant for assigning opinions and perhaps for the future direction of the Federal Rules of Civil Procedure. But an even trade does nothing for the Democrats in terms of the cases that matter, since it does not alter the judicial-ideological balance on the Court.* Sorkin was decrying an influx of "moderates" on the Court and wanting something on the poles. But the current Court is all poles, with no real middle at all. That means that a single appointment truly changes the ideological balance. To put it in modern terms: I would not want to see Obama appoint, say, Goodwin Liu and then replace Breyer with, say, Brett Kavanaugh.**

[*] Updated: Lisa tells me that the dialogue does indeed reveal the Court's make-up: six "centrists," two staunch conservatives, and one clarion voice articulating a liberal vision who may have been close to retirement. This basically reflects the Court in October Term 1990: Rehnquist and Scalia as the conservatives, Marshall alone as the liberal voice (Brennan had just retired), and White, Powell, Blackmun, Stevens, O'Connor, and Souter forming the middle. 

[**] The resulting Court--Roberts, Kennedy, Thomas, [ed: forgot him the first draft], Ginsburg, Alito, Sotomayor, Kagan, Liu, Kavanaugh--would leave us exactly where we are, only with the clock reset by a conservative who would be on the Court for another 30 years joining three conservatives likely to serve for another twenty. As a Democrat, it certainly would undermine one of the reasons I have been happy to control the White House these past seven years and why I believe this election is so important.

Worse, the new liberal chief was a decade older than the new conservative associate justice (going by the age of the actors at the time--Glenn Close was 56, while William Fichtner was 47). In actuarial terms, he was likely to remain on the Court, and thus to wield influence, longer than she was.

Third, the episode celebrates across-the-aisle disagreement, engagement, and friendship as a practical solution. Some have offered the friendship between Ginsburg and Scalia as a model for what Obama and Mitch McConnell and Paul Ryan might follow. But lost in all this is that, despite their friendship, Scalia and Ginsburg rarely agreed on key constitutional issues. And their friendship did nothing to enable either to sway the other. Recall Ginsburg's moving tribute to her friend: "when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation." Not that Ginsburg was convinced or moved to change her mind; only that she made the arguments for her position stronger. Which is, perhaps, good for the development of the law (that is Lisa's take-away). It does nothing for political impasse--Obama and McConnell can sing duets all they want, that is not going to produce any actual legislation. And it does not change the dynamics that five conservative Justices always get their way in the face of four liberal Justices. (This is as legal realist as I get, I think).

Finally, the episode bothers me because, put in a room together, the two federal judges/prospective nominees begin arguing constitutional law--as if this is what judges do when they get together in social settings (this was, of course, necessary for President Bartlet to see the benefit of two smart opposites engaging one another). Worse (and ironically, given the show's obvious political views), the dialogue made the conservative judge seem like he was right and smarter than the liberal. It included the following exchange (this is paraphrasing somewhat, from memory):

    Lang (Close): If we followed your way [presumably meaning Originalism], we would still have slavery and women couldn't vote.

    Mulready (Fichtner): And hence the Thirteenth, Fourteenth, and Fifteenth Nineteenth Amendments.

   Lang: Well, thank you for that.

But that actually is the answer--consider the text and its meaning at the time, but when an amendment overrides some provision, follow the amendment. Yes, slavery was part of the Constitution, until those parts of the Constitution were overridden by the Thirteenth Amendment. And saying otherwise just makes the position sound silly.

I know, I know--it is only a TV show.

Posted by Howard Wasserman on February 16, 2016 at 07:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Monday, February 15, 2016

The Peter Principle and the Supreme Court

I have not waded into the discussion of Justice Scalia's death and what happens next, although I commend what others have written here. I am in complete agreement with three things Richard Friedman (Michigan) wrote on the ConLawProf listserv: 1) This debate is entirely political and if the partisan institutional positions were flipped, so would the partisan institutional arguments; 2) The President can nominate whoever he wants before January 20, 2017, and the Senate can reject or refuse to act on any nomination within that time; 3) Senate custom is dead.

Given that (especially # 2), some thoughts/questions as we go forward:

1) (The question that gives the post its title): Does it really matter that some potential highly-qualified-to-force-the-Senate's-hand nominee (notably Sri Srinivasan) was confirmed to a lower court 97-0? Putting aside that this is all politics. Is it truly irrational for a Senator to conclude that someone could be qualified for a lower federal court and not for SCOTUS? For constitutional purposes, there is no difference in qualifications. (In fact, nothing in Article III requires appointment to any particular court, as opposed to confirmation as a federal judge). But Congress having established a statutory regime in which a judge must be separately nominated and confirmed to every seat, can't a Senator believe that someone who is good enough to be a lower-court judge is not acceptable as a SCOTUS justice? I am not saying that is the case with Srinivasan. It's just that the suggestion that Senate Republicans would accept (or be politically compelled, or embarrassed into accepting) someone because of the prior vote does not follow.

2) I also wonder about the following, with respect to the White House's seemingly quick rejection of a recess appointment (the Senate is, perhaps, in recess until February 22).

A recess appointment would likely be construed by a Republican-controlled Senate, not to mention Republican candidates for President, as subverting the intention of the nomination process laid out by the Constitution. That’s an argument—with some merit—that Obama surely wants to avoid as the White House simultaneously looks to lean heavily on the president’s constitutional responsibility to choose a justice and the Senate’s constitutional duty to confirm a reasonable selection.

But couldn't the White House successfully frame it as follows: "The Senate Majority Leader announced, within less than one day of Justice Scalia's death, that it would not  even vote on any nomination the President makes, despite his constitutionally established term continuing for another 11 months. Given this, the decision to make a recess appointment reflects not a subversion of the process, but taking the Majority Leader at his word that no confirmation could happen with the Senate in session."

3) Here is an imprecise historical analogue that, at least in counter-factual, captures a lot of what is happening politically (Michael Dorf wrote about this at Dorf on Law, although I cannot find the post). Thurgood Marshall retired in summer 1991.* And while Marshall reportedly did not want to give the appointment to George H.W. Bush, at that point it seemed certain that Bush would be re-elected, so there was no point in waiting (plus, all indications are that Marshall stayed too long, anyway and his health was failing). Of course, things had changed dramatically just one year later--it was clear the President was in trouble and he would go on to lose that November. The counter-factual is always what if Marshall could have hung around for just one more term, until say, June 1992; no one suggests he needed to stay until June 1993, after Clinton had taken office (Marshall died four days after Clinton was inaugurated). The implication is that by June 1992, no nominee would have been confirmed until after November--and once Bush lost, the nomination would await the new President. Of course, this would have put us in our current spot in reverse--a soon-to-be-leaving-office Republican President and a Democratic-opposition Senate refusing to confirm any nominee until we see what happens in November.

[*] Yes, not an election year. But surely the line cannot be January 1, especially when elections have already begun, particularly by the party out of power, by the previous summer.

Posted by Howard Wasserman on February 15, 2016 at 03:42 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (18)

Sunday, February 14, 2016

Justice Scalia and Election Law

As someone who focuses primarily on election law, the implications of Justice Scalia's death are monumental. Virtually every aspect of election law might be different with an Obama appointee replacing Scalia.  From redistricting, to campaign finance, to voter ID, to the next Bush v. Gore, here is a breakdown of the various areas that may be impacted by the next Justice:

Redistricting:

First, there is the obvious impact on this Term's one-person, one-vote case, Evenwel, on whether states must use citizen-voting age population (a count of eligible voters), instead of total population, as the measure for achieving population equality between districts.  I think this case was going to come down in favor of allowing the state to choose which measure to use, so Justice Scalia's death may not change this result.  But if he was going to vote with the other conservatives and require states to use citizen-voting age population, that probably would have been a 5-4 decision.  Now it will be 4-4, meaning that the lower court, allowing total population, will be affirmed.  There could also be an immediate impact on North Carolina's request for a stay of recent a lower court decision striking down that state's congressional maps.

Second -- and this is a big one -- the federal courts might finally be able to police partisan gerrymandering.  In a 2003 decision, Vieth v. Jubelirer, Justice Scalia wrote for a 4-Justice plurality that claims of partisan gerrymandering are nonjusticiable, because there is no manageable standard for a court to use to separate "good" politics from "bad" in the redistricting context.  Four Justices -- the so-called "liberals" -- came up with various standards to use; Justice Kennedy did not like any of the standards but wanted to leave the door open to a potential standard in the future. (The Court in essence affirmed this split in 2006 in LULAC v. Perry.) Now, if a new Justice agrees with one of the standards (such as Justice Kennedy's invocation of the First Amendment for these cases), there would be 5 votes to police partisan gerrymandering.  That is, the Court could become even more enmeshed in policing the worst political abuses in drawing district lines.  The Court could go deeper into the "political thicket."

Third, there could be an effect on the scope of redistricting decisions involving race -- including the racial gerrymandering cases under the Equal Protection Clause and minority vote dilution claims under Section 2 of the Voting Rights Act.  In essence, a new Justice may be more willing to invoke the Equal Protection Clause or the Voting Rights Act to ensure greater minority representation in the drawing of district lines.

Voting Rights Act:

A new Supreme Court appointment may have major implications for the Voting Rights Act.  Shelby County v. Holder, which effectively gutted the Section 5 preclearance mechanism, was a 5-4 decision.  There has been some concern among the voting rights community that the Court could invalidate Section 5 further if the DOJ  successfully places Texas under preclearance (under the "bail in" mechanism of Section 3), or that Section 2 (which prohibits discrimination in voting nationwide) could be in jeopardy.  But now, with only 4 true conservative votes, these aspects of the Voting Rights Act may live on much longer.  In addition, a new Obama-appointed Justice would likely uphold any new coverage formula for Section 5 that Congress could pass (although, of course, the likelihood of Congress acting is pretty slim).

Campaign Finance:

In the 10 years of the Roberts Court, the conservative majority has struck down virtually every campaign finance provision it has considered, typically on a 5-4 vote.  Of course, the most notable decision was Citizen United v. FEC.  But there have been other significant cases as well, such as McCutcheon (striking down aggregate contribution limitations) and Arizona Free Enterprise (invalidating matching funds in public financing).  Unless the new Justice holds stare decisis above jurisprudential considerations, these recent precedents are, all of a sudden, in question.  In essence, the past 10 years have been marked by significant deregulation of money in politics.  A new Justice may call the entire foundation of recent campaign law into question.

Voter ID:

In 2008, in Crawford v. Marion County Election Board, the Court ruled, 6-3 to uphold Indiana's voter ID law, which then was considered the strictest in the nation.  States around the country followed suit, passing their own strict voter ID measures.

Yet the vote breakdown of the 6 Justices in Crawford was important:  Justice Stevens wrote the plurality, joined by Chief Justice Roberts and Justice Kennedy, ruling on somewhat narrow grounds that the challengers did not have sufficient evidence to strike down Indiana's law in a facial challenge.  Importantly, the plurality left the door open to as-applied challenges with a stronger evidentiary record of the burdens the law imposed on voters.  Justice Scalia, joined by Justices Thomas and Alito, concurred in the judgment.  He would have upheld all voter ID laws on their face; Scalia disagreed with the plurality's approach to invite further as-applied litigation.  Justices Ginsburg, Breyer, and Souter dissented.

It is quite possible that Justice Stevens voted with the conservative justices, and wrote the plurality opinion, because of what I have termed "strategic compromise."  Justice Stevens may have been concerned that, if he did not write a more moderate opinion upholding the law and instead joined the dissent, then Chief Justice Roberts and Justice Kennedy may have instead joined Justice Scalia's opinion, foreclosing any possible challenges to voter ID laws in the future.   That is, without Justice Stevens taking the lead for a more moderate view, Justice Scalia's opinion could have become the lead opinion for a 5-4 conservative majority.

Without Justice Scalia, and with Justices Sotomayor and Kagan on the Court, the consideration of a voter ID law could look very different.  It is quite possible that, with an Obama appointee, there will be 5 Justices to strike down a strict voter ID law (such as Texas's, which the 5th Circuit invalidated; that court is currently deciding whether to take the case en banc).  

In sum, a new Justice could create a new majority that will look much more skeptically at voter ID laws.

Other election administration issues:

One of the problems with the Court's recent election law doctrine, as I have argued, is that the Court unduly defers to states in how they run their elections.  This means that state legislatures, the majority of which are Republican-controlled, have great leeway in enacting rules for election administration.  Under heightened scrutiny, it is usually the state that has the burden of justifying a law that infringes on the fundamental right to vote.  But the Court's recent jurisprudence has been backward on this point: it has deferred to a state's  interest, usually agreeing that a general assertion of preserving "election integrity" justifies a law that impacts voting rights.  That is, all states must do is say "election integrity," and the Court has accepted that justification at face value without scrutinizing more closely the real reason behind a law.

A new Justice will (hopefully) understand the fallacy of this approach, and instead require states to provide specific, detailed justifications for its voting rules.  This is not to say that the Court should strike down every election regulation.  Instead, it means that states must more carefully explain the precise rationale for a voting rule.

On a practical level, this might have an impact on cases about early voting, registration rules, provisional balloting, last-minute litigation (the so-called Purcell Principle), and scores of other issues.  A change in the level of detail and evidence states must provide to justify their election laws could have a major impact on the scope of election litigation -- thereby affecting the manner in which we vote.

Trump v. Clinton:

Bush v. Gore was a 5-4 decision.  What will happen if this year's presidential election goes into overtime, and the courts must become involved once again?  Although not likely, it is not impossible either.  Before Justice Scalia's death, the Court had 5 Republican appointees and 4 Democratic appointees.  If Obama is successful in appointing a new Justice, that political split will be 5-4 in the other direction.  For those who think that the Court's election law doctrine is influenced by the Justice's personal ideologies (a claim that is only partially true, in my opinion), then this shift could have huge implications on how the Court might resolve a disputed election. 

A new Justice will have an obvious impact on the hot-button issues of the day: abortion, affirmative action, gun rights, etc.  Add election law to the mix.

Posted by Josh Douglas on February 14, 2016 at 12:46 PM in Law and Politics | Permalink | Comments (2)

Saturday, February 13, 2016

Does Donald Trump Have Standing to Keep Ted Cruz off of the Ballot?

The other day Donald Trump claimed, on Twitter, that he has standing to challenge Ted Cruz's eligibility to be president.  The substantive question revolves around whether Cruz is a "natural born citizen" because he was born in Canada.

Rick Hasen, who should always be trusted when it comes to matters of election law, suggests that Trump would have standing based on the notion of "competitive standing": in essence, Cruz's (improper) appearance on the ballot makes the election more competitive for Trump.  Trump is therefore injured by having to run a campaign against an opponent who might not be eligible for the office. 

I'm not convinced.

Most fundamentally, the cases invoking the "competitive standing" doctrine all involved the government providing some benefit on some candidates but not others, thereby putting the candidate at a "competitive" disadvantage in the campaign.  In one case, Ralph Nader had standing because he objected to participating in a presidential debate sponsored by corporate donors.  He suffered an injury, as compared to his rivals, because of the decision to hold the debate in a manner that was contrary to the message of his campaign -- making the election fundamentally less competitive for him because he could not reach voters who would watch the debate.  In the cases giving "competitive standing" to political parties, there was direct evidence that the governmental action would directly cause added expenses: for example, when the Republican Party in Texas sought to remove Tom DeLay from the ballot and substitute a new candidate, the Texas Democratic Party suffered an injury-in-fact in the need to mount a completely different campaign against a different opponent.  Courts have also found an injury to a political party when the party's nominee will face stiffer competition, i.e., leading to added expenses, but this relates to the general election, when ideological lines are clearer.

Here, the added expense to Trump seems fairly speculative.  How can he demonstrate that Cruz's placement on the ballot has harmed him directly?  Maybe all of Cruz's supporters would vote for Ben Carson. Can he point to any direct campaign expenses that he has incurred, and would not have, if Cruz were not on the ballot?  That is, how does Cruz's placement on the ballot directly cause any injuries to Trump? Is it because he is the front runner, meaning that Jim Gilmore would not have had standing (before he dropped out, of course)? Further, this situation seems different from the government sponsoring a debate but having rules that effectively exclude one candidate, providing a clear competitive disadvantage to that candidate.

At a minimum, this does not seem to be a clear-cut case.  To be sure, Trump could sue in state court under various state standing doctrines, or have a state's ballot commission rule on Cruz's eligibility.  (Derek Muller is compiling these various lawsuits, brought by voters, here.)  And he could sue after the election in each state, saying that his loss of delegates was caused directly by Cruz winning some of those ballots when Cruz was ineligible.  But I think that a pre-election suit to try to take Cruz off of the ballot is a much harder road. Trump would need to show that this "competitive standing" doctrine should extend beyond political parties at a general election, beyond a conferral of actual benefits to some candidates but not others, but to the mere appearance of an additional candidate on the ballot, when the election has not yet taken place.

My guess is that a federal court will not want to wade into the murkiness of Trump's standing and will wait for the political process to play out, or for after the election in that state, to make a ruling. If it does reach the question of Trump's standing, then there are good arguments against his ability to bring this suit.

[Update: Rick Hasen responds here. We certainly agree on one point: Trump will lose this case one way or the other, whether it is on standing or the merits.]

Posted by Josh Douglas on February 13, 2016 at 12:31 PM in Law and Politics | Permalink | Comments (5)

Wednesday, February 10, 2016

Ferguson consent decree falls apart, DOJ sues

The proposed consent decree between DOJ and the City of Ferguson has fallen apart, after the City Council on Tuesday night approved the deal, but demanded seven changes to the deal, mostly involving extended deadlines and limits on costs. DOJ wasted no team in filing a civil action today, alleging patterns and practices of various police abuses, in violation of § 14141 (via the First, Fourth, and Fourteenth Amendments) and Title VI. The complaint contains all the things we already knew from earlier DOJ reports.

I am somewhat surprised DOJ jumped to a lawsuit so quickly, rather than trying a bit of additional negotiation. My guess is DOJ was ticked that the Council would undermine seven months of negotiation in  single night. Life imitating art imitating life?

Posted by Howard Wasserman on February 10, 2016 at 08:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Where do Republicans go?

The refrain among Democrats, liberals, and progressives on the eve of a presidential election is always "If [insert Republican candidate] wins, I'm moving to Canada." (Dahlia Lithwick offers guidance).

Where do Republicans and conservatives threaten to go if Bernie Sanders wins?

Posted by Howard Wasserman on February 10, 2016 at 06:51 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, February 09, 2016

Three-Judge Courts and Precedent: An Election Law Procedural Quirk

Must three-judge federal district courts follow the law of the circuit in which they sit?  

Three-judge district courts are an anomaly, used mostly in certain election law disputes such as statewide redistricting claims and some campaign finance litigation.  In these cases, the initial single judge refers a qualifying case to the chief judge of the circuit, who will constitute a three-judge district court.  (The Supreme Court clarified, this term, that the single judge may not consider the merits, but must refer all qualifying cases to the chief judge for the creation of a three-judge district court.)  The chief judge assigns a circuit judge and two district judges to serve as the three-judge court.  The court sits like a normal trial court, making findings of fact and conclusions of law.  Decisions of this court are appealable directly to the U.S. Supreme Court, skipping the court of appeals stage.  Congress created this procedure for cases that will uniquely benefit from faster resolution and multiple minds at the outset, as the decisions are often seen as less biased and more legitimate. (For more on this process, see my article The Procedure of Election Law in Federal Courts.)

Sometimes, these courts face questions that the circuit court in which they sit have already decided.  A circuit court ruling on a particular point of law would be binding on a single district judge.  Are these appellate decisions also binding precedent on a three-judge district court? Although most three-judge district courts have said that they must follow circuit precedent, they are wrong.  I explain why after the jump.

Assume that a plaintiff brings a redistricting case under the Voting Rights Act, arguing that the mapmakers did not create enough "influence districts," where minority voters, even though not a majority, can still have a meaningful impact on who wins.  Assume further that the circuit court has ruled, in a separate case that does not go through the three-judge district court process, that the Voting Rights Act does not permit a claim for influence districts.  Must the three-judge court, as a matter of binding precedent, follow that circuit court ruling?

Three-judge district courts considering this question have largely assumed that they must follow circuit law. But they have provided very little discussion on this point.  The analysis has been conclusory, at best.  Courts typically write something like "we are bound by precedent in this circuit," without more.  Indeed, my initial research has found only one three-judge district court that has gone the other way, holding that, while certainly persuasive, it was not bound to follow circuit law as mandatory.

This minority view is correct if one thinks about the difference between superior and inferior courts.  Put simply, because the circuit will never review the decision of the three-judge district court, it is not a superior court to that three-judge district panel.  If it has no power of review, then its decisions cannot be binding precedent.  To be sure, its decisions are highly persuasive, but the only court that has binding authority over the three-judge district court is the U.S. Supreme Court.  That is the only court that could reverse the three-judge district court for not following its decisions.

Thus, if judges are bound by “higher” courts in the judicial hierarchy, than the converse also must be true: judges need not follow decisions of courts that are not directly above them. Indeed, this is the reason why one district judge need not follow the ruling of a prior district judge, and why one circuit court is not required to rule consistently with another circuit court.  (The prior panel rule within a circuit, however, cuts the other way. I will address why the prior panel rule does not change the analysis in a future post--or at least in the article that will come out of this analysis.)

In sum, the circuit court is not directly above the three-judge district court -- even though that court is a district court sitting within the circuit -- meaning that the circuit court's decisions are not binding precedent.  Although perhaps a seemingly minor problem, this analysis should change how three-judge district courts consider various issues that may arise.  It also has important consequences for the U.S. Supreme Court, which I will address later. 

Posted by Josh Douglas on February 9, 2016 at 01:36 PM in Civil Procedure, Law and Politics | Permalink | Comments (6)

Friday, February 05, 2016

Power or Participation? Consensus in Political Deliberation

How should we structure our democratic institutions? Do we worry about political power, and so seek to maximize the ways in which political authorities are accountable to the public? Here we might emphasize reciprocity as a core feature of political institutions. Or to maximize the public’s participation in the political process. On the one hand, accountability checks the unbridled power of the political elite. On the other hand, public opinion is likely to be ill-formed or easily manipulated, more the result of passion than reason or knowledge, as Madison worried in Federalist 10? If we are worried about an ill-informed public, then we might promote a form of participation that allows political representatives to discount public opinion, even while maximizing public participation in selecting those representatives or even canvassing opinion.

The debate about political process has become especially important in the policing context. The Final Report of the President’s Task Force on 21st Century Policing enthusiastically endorsed procedural justice as the best way for the police to build trust and legitimacy within their communities. Procedural justice has been endorsed on the other side of the Atlantic as a means of promoting consensus based policing. Drawing on research from organizations whose members share a common purpose, procedural justice argues that we ought to adopt procedures that encourage participation, and treat the participants respectfully, beneficently, and neutrally.

We might think that fair procedures are ones that guarantee participation, but not influence. What matters is that authorities have a duty to allow participation, and convince participants that they are treated neutrally, respectfully, and as members of the same group, not that authorities must in practice so treat participants. We might think that while a fair procedure does not guarantee participation, it need not preclude it: a participative procedure would be one in which authorities and subordinates see each other as part of the same organization, with the same interests, and so would come to the same conclusions were everyone consulted. What matters most, however, is that the organization generate the right result, and that subordinates comply with that result. Because participative procedures maximize the likelihood of compliance, what matters is participation rather than influence or accountability (what we might call reciprocity). A version of this thesis can be found in Madison’s Federalist 10; and something like it has been described as unitary democracy by Jane Mansbridge. And it seems to be at the heart of procedural justice.

Consensus democracy is compatible with idea that authorities may be, for various reasons, justified in encouraging subordinate participation in the process of decision-making—giving subordinates a voice—while at the same time misrepresenting the amount of influence the subordinates wield in the process. If the goal is to ensure compliance or cooperation, and everyone would agree on the outcome if they were sufficiently well-informed and rational, then it does not undermine the subordinate’s interests in the right result that they are mistaken about the extent of their influence, particularly if they are more likely to reach that result without sanction (and, from the perspective of the authority, without expensive inducement).

But what of dissensus democracy, where there is no right result, or where there is a split authority (such as the tripartite structure of American government) or where the interests of the public conflict in certain ways with the interests of the government? Should we value compliance or cooperation with the authority and so accept as fair those procedures that more effectively produce these effects; or should we instead opt for a process that permits, not just participation, but also reciprocal accountability. That sort of procedure would not only require participation, but also power-sharing, among the members of the organization, or of the community, or of the country.

The debate is an old one, but it has practical urgency in the context of policing. The four-part procedure I described above—participant voice; authority neutrality, respectfulness, and beneficence—are the features of procedural justice which promise to reign in police use-of-force at the same time as more effectively ensuring compliance and cooperation than other methods, baed on inputs like law-abidingness, and outputs like crime reduction or even avoiding criminal sanctions. A core issue is whether compliance and cooperation with the police is a goal that we all share. For example, we have the right to terminate police encounters by walking away and refusing to answer questions; and even if arrested we have the right not to comply by declining to speak during an interrogation. Should we also have the right to challenge the police to justify taking us into custody or searching us by articulating their grounds for doing so? Should the police be dynamically responsive to our facts or reasons or can they ignore our input while still providing for our participation as a way of mollifying us and getting us to comply? Famously, police interrogations follow a two-part process in which the interrogator first determines whether the suspect is guilty or not (the unitary purpose) and then uses various psychological techniques to induce compliance, both at the waiver and at the confession stage of the proceedings. The technique is so powerful, studies show, that some suspects will not only confess, but actually convince themselves that their interrogator was right and they were mistaken about what actually happened.

How structure fair procedures to maximize participant power and participation presents difficult questions. Whatever the answer, procedural justice provides a fascinating account of the way in which the structural features of our interactions with authorities can have important psychological and behavioral consequences, consequences that are of deep democratic significance.

Posted by Eric Miller on February 5, 2016 at 12:24 PM in Criminal Law, Deliberation and voices, Law and Politics | Permalink | Comments (0)

Thursday, February 04, 2016

Who is making the 700,000 FOIA requests the government receives every year?

The Freedom of Information Act has been making a bit of news recently, as Congress considers proposed reforms, and the House has even passed a bill that would effectuate the most significant changes to the statute in nearly a decade. Many of the proposals are excellent, and, if enacted, would certainly strengthen the public’s right to access government records.

But a more structural problem plagues FOIA, one that I explore in depth in my forthcoming article: it was designed to perform one function and, to a large extent, it is used to serve others. What purpose was it designed to serve? Mostly journalists’ interest in reporting the news to the public. In fact, it may even be fair to say that the news media essentially drafted the law. In 1953, Harold Cross wrote a book called “The People’s Right to Know” in his capacity as an advisor to the American Society of Newspaper Editors, the most prominent journalism association at the time. After documenting the patchwork of existing access laws, most of which fell woefully short of journalists’ needs, Cross called on Congress to legislate a right to access public records. Because the book garnered interest in Congress, Cross himself subsequently become the legal adviser to the special subcommittee in the House of Representatives tasked with drafting the law, and journalists mostly staffed the committee. That is, journalists were crafting the very contours of the law, not just its vision.

And the vision was equally important to Congress. The whole idea of a public records’ access law designed for journalists was that the news media could use the law to inform the public about government activities, thereby enhancing the public’s ability to participate in democratic governance and hold elected officials accountable. The legislative history of FOIA is replete with references for the need to have an informed electorate as vital to a democratic society.

The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.

In my study, I focus on one group of these other requesters: commercial requesters. Commercial requesting has previously been poorly or only anecdotally understood, and I thus seek in my paper to document an in-depth account of how commercial interests are served by FOIA. To that end, I conducted case studies of particular agencies with significant numbers of commercial requesters whose data on FOIA usage I obtained by filing my own FOIA requests, and at each of these agencies I ended up studying, the amount of commercial requesting is very significant.

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I will leave you with those perhaps surprising statistics, and will elaborate in my next post on the various ways in which commercial entities are using FOIA as part of their profit making enterprise.

Posted by Margaret Kwoka on February 4, 2016 at 10:59 AM in Information and Technology, Law and Politics | Permalink | Comments (1)

Tuesday, February 02, 2016

Introduction

Thanks to Howard for the invitation and the welcome. I am truly delighted to be guest blogging on Prawfs this month. For those of you I have yet to have the pleasure to know, I am a long-time die-hard proceduralist. I teach Civil Procedure, Administrative Law, and Federal Courts, and this semester for the first time, have added perhaps my first “substantive” course, National Security Law. Although any good proceduralist knows the substance/procedure dichotomy is murky, if not entirely false, I will admit that the move away from procedure has in fact felt uncomfortable, though certainly exciting.

In some ways, teaching National Security Law was the next, inevitable step for me. I have written about procedural aspects of government secrecy for essentially my whole (short) academic career. For a long time I fought full engagement with national security, hoping instead to address problems with procedural rights and remedies for all kinds of secrecy equally. But the truth is that our deepest government secrecy problems today concern security, and national security secrets are not treated the same as other secrets.

As you may have guessed by now, I am planning to use my time here to share my thoughts on the intersection between government secrecy, procedural justice, and national security. Before I get to national security, though, I will begin with a few posts on a slightly orthogonal topic: the corporate and commercial use of the Freedom of Information Act. I will share with you some of the findings I report in my forthcoming article FOIA, Inc., which is based on original data collected from six federal agencies’ records. While I think the findings are, in and of themselves, quite surprising and worthy of consideration, I hope by the end of my series, when I engage more fully with national security secrecy, I can make the connection between these two threads apparent.

I am looking forward to the month!

Posted by Margaret Kwoka on February 2, 2016 at 11:07 AM in Blogging, Civil Procedure, Information and Technology, International Law, Law and Politics | Permalink | Comments (0)

Sunday, January 31, 2016

Donald Trumps the 22d Amendment

Do you think the makers Trump-plate_129363_240278_579x

 

 

 

 

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and wearers

 

 

 

have heard of the Twenty-Second Amendment?

Posted by Howard Wasserman on January 31, 2016 at 07:54 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

The Supreme Court, On Demand

It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.

The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.

In 2011, the Judicial Conference of the United States authorized a pilot program for periodically recording civil proceedings in fourteen federal district courts.  The proceedings are then uploaded to the U.S. Courts website, where they are indexed and accompanied by additional information on the case. The entire process is conducted by the courts themselves, without media cameras or external video processing. The result has been a video library of hundreds of proceedings, ranging from pretrial conferences to summary judgment hearings to multi-day trials. The videos have been viewed hundreds of thousands of times.

The success of the district court pilot, which I explore in  much more detail here, offers an excellent blueprint for a parallel Supreme Court program.

First, as the district court pilot has shown, both practicing lawyers and ordinary citizens stand to learn a great deal from actually watching Supreme Court proceedings. Watching the Court in action educates those in the legal profession about procedures before the Court, the issues of particular interest to the Justices, and ways in which an attorney might capture the interest and attention of the Court. For the public, watching the Court in action is all the more important: rather than allowing journalists and comedians define the Court’s work after the fact, the public can go straight to the source. Many studies suggest that watching an event on video (whether delayed or through live streaming) carries many of the cognitive benefits accrued from watching a live event. Whether the public would take advantage of this educational opportunity in any serious way is an open question, but at least that opportunity would exist.

Second, a recording (and/or live streaming) program would bolster the Court’s public legitimacy, by openly demonstrating the court’s commitment to transparency and accountability. Public support for the Supreme Court has been hovering at or below 50% for much of the past decade. At the same time, the public is increasingly seeking information through screen time. Watching the Court in action can demystify the judicial process and reduce public reliance in the messaging of politicians, reporters, and editorial writers. Supreme Court Justices, like all federal judges, are public servants. If they are proud of their work, they should welcome public viewing.

Finally, it suggests how the courts can achieve these educational and transparency goals without relying on the news media—the primary public concern of the Justices. Just as cameras have been placed in unobtrusive locations within district courtrooms, and the final recordings made available on the courts’ website, so too can recordings of Supreme Court proceedings be made available on its website, accompanied by rich contextual matter. The Supreme Court can also easily provide live streaming of oral arguments and case announcements without threatening the dignity or solemnity of the proceedings. Indeed, it may avoid the alternative, John Oliver-style, treatments. If the Court really wants to have some control over its own message, it cannot close its eyes and ears to the realities of the twenty-first century.

At least, we can hope.

N.B. -- The district court program has been an excellent resource for my teaching, and I recommend it highly for others whose students cannot as a practical matter visit the courthouse to observe proceedings.

Posted by Jordan Singer on January 31, 2016 at 12:14 PM in Judicial Process, Law and Politics, Television, Web/Tech | Permalink | Comments (7)

Thursday, January 28, 2016

Ferguson consent decree

DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.

Posted by Howard Wasserman on January 28, 2016 at 01:04 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, January 25, 2016

More judicial departmentalism

A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.

First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]

Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.

Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.

Posted by Howard Wasserman on January 25, 2016 at 01:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, January 23, 2016

Show (audibly), don't tell

Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.

Posted by Howard Wasserman on January 23, 2016 at 05:52 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 13, 2016

Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?

I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth.  Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances.  Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen.  (See also classic Charles Gordon article here).  In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original). 

There is a catch, though, that has apparently not been addressed.  Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen.  However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28.  In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision.  Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement.  But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence. 

The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas.  Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen.  But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this.  Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him.  Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so.  I would love to hear what other people think.

Update: My intellectual heroes Jack Balkin and Akhil Amar also discuss the issue. Prof. Balkin and Prof. Amar each recently gave wonderful lectures at UC Davis Law.

Posted by Jack Chin on January 13, 2016 at 11:16 PM in Immigration, Law and Politics | Permalink | Comments (34)

Sunday, January 10, 2016

Student-athlete speech

Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.

[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.

1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.

The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.

2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.

Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.

3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.

[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.

4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?

Posted by Howard Wasserman on January 10, 2016 at 10:11 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Thursday, January 07, 2016

Speaking of judicial selection...

Arizona has a new merit-selected supreme court justice, Clint Bolick.  And he has a scorpion tattoo on his index finger.

Posted by Jordan Singer on January 7, 2016 at 09:54 AM in Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, January 04, 2016

The Last Days of Elected Judges (1966 edition)

Yes on 3

Happy New Year! It’s great to be back at Prawfs for another go-round. I thought I would start with an unusual find: while cleaning out my parents’ basement last month, I came across a yellowed but otherwise pristine copy of the Intermountain Jewish News, dated November 4, 1966. The IJN was (and is) a significant paper for the Jewish community in Denver and the Rocky Mountain West, and the edition I found was printed just days before the November 1966 general election—the last time that Colorado’s state judges would run for office. In that same election, voters passed Amendment 3, which ushered in a merit selection system: judges would henceforth be chosen by the governor from a slate prepared by a nonpartisan nominating committee, and subjected to retention elections at the end of their terms. Put another way, on Election Day 1966, Colorado voters chose their judges at the ballot box while simultaneously removing their ability to do so in the future. Fifty years later, that 1966 edition of the IJN provides a nice snapshot of a judiciary—and an electorate—struggling to balance a tradition of direct democracy with the promise of fair and impartial courts.

Colorado was the fifth state to adopt a merit selection system, and advocates of merit selection had to overcome both 90 years of state history (judges had always been directly elected) and the sense that nothing was particularly wrong with the existing system. There had been relatively little scandal or symptoms of crisis in the state judiciary in the 1950s and 1960s. Indeed, many of the men on the judicial ballot that November were widely viewed as persons of integrity, excellent jurists, and dedicated contributors to civic life. Sherman Finesilver, then seeking reelection to a state trial court position in Denver, would later serve nearly a quarter-century on the federal bench. Mitchel Johns was an active member of the local Elks lodge, and Saul Pinchick an active member of B’nai B’rith. Neil Horan, already an experienced incumbent, would survive the 1966 election and later preside over litigation concerning Colorado voters’ rejection of the 1976 Winter Olympics.

Pinchick

It was hard enough just to get merit selection on the ballot. The Colorado Bar Association (CBA) had recommended the end of partisan judicial elections as far back as 1940, when Missouri became the first state to adopt the merit selection system. But proposed ballot initiatives failed to make it through the Colorado legislature in 1949, 1957 and 1959. Still, support slowly grew. When yet another effort by the CBA failed in the legislature by one vote in 1965, the CBA and the League of Women Voters took to the streets and collected more than 47,000 signatures in favor of the ballot initiative. Merit selection, in the form of Amendment 3, would finally be up for a vote in 1966. It proposed sweeping changes to the Colorado Constitution, replacing direct election of judges with a system of nominating commissions, gubernatorial selection, retention elections, and formal judicial disciplinary measures.

The debate over Amendment 3 was vigorous and vocal in the months leading up to the election. Proponents urged adoption as a means of improving the overall quality of the judiciary, promising that judges would not be prone (or at least less prone) to the pull of partisan politics, and that nonpartisan nominating commissions could focus on finding the best people for the job. (Indeed, in a somewhat Pollyanna-ish take, proponents argued in the state’s 1966 voter guide that under merit selection, “The courts would be completely removed from politics.”) Opponents urged that citizens should not give up their right to directly choose judges, a method that both held judges directly accountable to the people and checked the influence of the governor on the judiciary.

The judicial candidates were caught in the middle of the debate. Amendment 3 was premised in part on the notion that elected judges were inferior to appointed ones. Candidates had to show that they were qualified and impartial, even as they had to work within the existing party system to have a chance at success. They walked this tightrope by tailoring their campaign ephemera for the most part to avoid any hint of politics--a strategy still used by judges even in highly partisan election states today. Only three of the ten candidates placing ads in that November 1966 edition of the IJN made mention of their party affiliation. Most emphasized only their professional qualifications: experience, professional skills, and ties to the local community.

Election Day proved to be a mixed bag for the incumbents. Justice Edward Day, a Democrat, was reelected to the state supreme court by the skin of his teeth, coming in third in the race for three open seats behind two Republican challengers. Justice Albert Frantz, who had each been elected in 1956 as part of a near-sweep by the Democrats, was not so lucky. He placed fourth in at-large balloting, just a few thousand votes behind Day, and lost his seat. The trial judges highlighted here—Pinchick, Horan, Johns, and Finesilver—were all reelected and became long-serving jurists.

Frantz

Amendment 3 also fared well on Election Day, passing by a margin of 53% to 47%. One key to victory for the merit selection proponents was the emphasis on retention elections: voters were not being asked to give up their franchise, but rather to exercise it in a different, ostensibly less partisan, way. It no doubt helped reformers as well that voters in 1966 reelected John Love, a popular and trusted governor, who would be charged with the final appointment decisions under the new system.

There are some useful lessons to be drawn from this history. Colorado’s shift in 1966 was certainly in part a product of bar association’s determination, the state’s political culture, and the era itself. But merit selection was also possible because it was presented as an integrated package of reforms. Nonpartisan selection commissions, gubernatorial appointment, retention elections, and a judicial discipline commission each provided a piece of the “quality judges” puzzle. (A final piece, judicial performance evaluation, was added in 1988.) Removing any of these components, or instituting them in a piecemeal way, would weaken both the appeal and the efficacy of the merit selection system.

The ghosts of 1966 may only live in basement files, but the issues surrounding judicial selection methods are far from settled. States continue to experiment with variations of contested judicial elections, merit selection, legislative appointment, and lifetime appointment. Nor is the federal judiciary immune from the larger discussion: Senator Ted Cruz recently called for retention elections—but only retention elections—for U.S. Supreme Court Justices. I will examine that idea more closely in a coming post.

Posted by Jordan Singer on January 4, 2016 at 01:41 PM in Judicial Process, Law and Politics | Permalink | Comments (4)

Sunday, January 03, 2016

Legislative Jurisdiction and Adjudicative Jurisdiction

I am late to writing about the oral argument in Dollar General Corp. v. Mississippi Band of Choctaw Indians, which took place early in December; the case concerns the scope of tribal court jurisdiction in civil actions against non-Tribe members. There was a great deal of discussion of the difference between legislative (or regulatory) jurisdiction and adjudicatory jurisdiction and the connection between them. In particular, there was some question whether, if a sovereign possesses regulatory jurisdiction, it also has adjudicative jurisdiction over any claims for violations of those regulations.

Since the distinction between these two forms of jurisdiction is important to the jurisdiction/merits divide, I am curious to see what the Court has to say on the issue.

Posted by Howard Wasserman on January 3, 2016 at 06:13 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 02, 2016

Chief Justice Roberts on speedier civil litigation . . . and dueling?

Chief Justice Roberts' 2015 Year-End Report on the Federal Judiciary focused on the amendments to the discovery and case-management portions of the Federal Rules of Civil Procedure and the need for the rules, courts, and attorneys to speed-up civil litigation. Roberts calls the amendments "a major stride toward a better federal court system," but insists they work "only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change." Adam Liptak covers the report; he includes interviews with several Civ Pro profs questioning the wisdom or necessity of the rules, so at least 1/3 of that triumvirate is not on board.

It is difficult not to read Roberts' facially neutral comments about delays in litigation--he calls out both those who make burdensome discovery requests as well as those who evade legitimate requests through dilatory tactics--as not reflecting the anti-plaintiff slant of much of this Court's procedure jurisprudence. "Speedier litigation" is generally code for getting defendants out of litigation more quickly. Plaintiffs do not win cases quickly, only defendants do; it takes time and effort for plaintiffs to gather the information they need and to carry their burden of persuasion (which only can be done at trial, in any event). But the incentive structure built into these amendments is almost certainly to limit what will be made available to requesting parties far more than to halt dilatory actions by producing parties. This almost certainly works against plaintiffs who depend on discovery to uncover information that in many cases is uniquely and exclusively in defendants' possession or control and unobtainable other than through discovery (e.g., employment discrimination, constitutional cases, and other cases that turn on defendant intent). And by emphasizing the need for speed and efficiency, Roberts' Report appears to be pushing district judges towards that understanding.

Roberts praises those district judges who are "knowledgeable, actively engaged, and accessible early in the process" as best able to resolve cases fairly and efficiently. But this stands in interesting tension with Twiqbal, which ratched the pleading standards precisely because the Court did not trust district judges to effectively manage cases in a way that would protect government defendants against burdensome litigation. But now we have formal rules, and official encouragement from the Chief Justice, promoting just such management. Does this mean that we trust district judges across the board and can return to pre-Iqbal pleading? Of course not, seeing as how the amendments also eliminated FRCP 84 and the Forms precisely because the Forms were inconsistent with Twiqbal. Instead, this smacks of Roberts not-so-subtly hinting which direction judges should be exercising this (not actually new) managerial discretion for those cases that manage to survive pleading and get into discovery.

Roberts begins and ends the Report with a discussion of dueling, its horrors, and its demise--just the sort of distracting and irrelevant rhetorical flourish that I often criticize in his opinion writing. And it feels just as glaring and out of place here. His point seems to be that dueling became obsolete when government began providing functional alternative dispute-resolution mechanisms. Thus, federal litigation must be speedier and more efficient so that it does not make a return to dueling look good by comparison or become the equivalent of a fictional 15-year feud between two Napoleonic-Era French cavalry officers. As he puts it, "We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result." His attempted connection seems especially strained in that dueling, at least as practiced in England and the U.S., was not primarily a method of dispute resolution; it was about restoring honor for perceived personal slights more than determining who was in the "right" in a legal dispute. Dueling thus was different than earlier practices of trial by combat, which rested on the belief that whoever prevailed in combat must have been in the right. It also means that the availability of functional courts would not have mattered all that much, since the personal conflicts settled by duel could not necessarily be transferred into a judicial proceeding.

Update: Michael Dorf argues that the Report can be seen as Roberts' attempt to shape the rules beyond his other three opportunities--appointing the rules committees, voting on the Rules themselves, and interpreting them in later litigation.

Posted by Howard Wasserman on January 2, 2016 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, December 09, 2015

Does it matter?

Last week, Dana Milbank insisted that Donald Trump is a bigot and racist. His point is that Trump had crossed some line: "[A]t some point, you’re not merely saying things that could be construed as bigoted: You are a bigot." Put differently, "the large number of instances over an extended period add up to a pattern of bigotry." It is a label he will not place on any other candidate, not even Ben Carson, who has said similarly stupid things, just less often.

But does it really matter whether Trump is a bigot or just says bigoted things? Does the label really mean that much? Does it make him any less qualified for the presidency? Isn't it enough that he says anti-X  things and proposes anti-X policies; do we need the next step of saying he hates X to make the point? Is it that eighth instance of saying bigoted things--what pushes him over the line to "a bigot"--that makes the difference? Or can I know that I will not vote for him (and that no right-thinking person could vote for him) based on the first seven?

Posted by Howard Wasserman on December 9, 2015 at 11:45 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, December 08, 2015

Bell v. Hood lives

I am beginning to think of Bell v. Hood  the way Justice Scalia thinks about about the Lemon Test: "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried."  The Court's recent turn to a broader and sharper awareness of what is merits should require the interment of Bell, which strips courts of jurisdiction over federal claims that are "wholly insubstantial and frivolous." After all, if the question of whether the conduct challenged is reached (and thus prohibited by) a law (or, as I like to say, "who can sue whom for what conduct and what remedy")  is a merits question, it should always be a merits question, regardless of the strength of the claim of right.

There were some questions during argument in Shapiro v. McManus hinting that Bell might be on the table, especially given recent jurisdictionality cases that did not even cite Bell. Alas, it was not to be. A unanimous Court, per Justice Scalia, held that any case challenging the constitutional of congressional apportionment must be referred to a three-judge district court and cannot be dismissed by the single district judge. (I wrote about the case for SCOTUSblog). The limited exception, for "insubstantial" constitutional claims, incorporates Bell for "wholly insubstantial and frivolous" claims only, while "[a]bsent such frivolity," failure to state a claim for relief remains a judgment on the merits.

Bell thus survives and is now explicitly incorporated into the three-judge court analysis. In other words, some weak-on-the-merits claims, if the merits are weak enough, still can be dismissed for lack of jurisdiction. And so we continue to be haunted by unwarranted and unnecessary jurisdiction/merits overlap.

Posted by Howard Wasserman on December 8, 2015 at 05:21 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Technically . . .

I have no interest in wading into the morass over Judge Posner and Eric Segall's NYT op-ed suggesting that Justice Scalia believes that majoritarian religious preferences can trump minority rights--here is Corey Yung's effort, which began on Twitter. Segall responded to criticisms from NRO's Ed Whelan and Northwestern's John McGinnis. The esponse references Scalia's purported comments at Princeton that Obergefell is not directly binding on non-party public officials, to which Segall says "That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience."

This is why I forbid my students from using the word "technically." (Imagine Yoda voice: "There is no technically; only correct or incorrect."). And in this case, Scalia is correct, full stop. Judgments themselves are not binding on non-parties and precedent is only binding on courts in future litigation, not on executive or legislative officials. Scalia's statement is incomplete, as it does not finish the point that the subsequent litigation against recalcitrant officials is binding on those officials (note that Scalia did not suggest that lower courts are not bound by Obergefell) and may impose other costs on them, such as attorney's fees, sanctions for non-compliance, and perhaps some limits on the arguments one can offer in litigation.

It is similarly problematic to suggest that a Supreme Court Justice should not express this legally correct and accurate proposition. If Justices should not explain how constitutional litigation actually operates, who should?

Posted by Howard Wasserman on December 8, 2015 at 08:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, December 06, 2015

State action puzzle

Video captured (link contains multiple videos) numerous incidents of security getting very physical with University of Houston fans attempting to run onto the field following UH's victory in the American Athletic Conference Football Championship. The game was played at the stadium on UH's campus and security was provided by CSC, a private contractor. The most telling images are GIFs of one officer throwing roundhouse punches at a fan lying on the ground and video of another officer body-slamming a fan, only to be loudly called out by two officials in different-colored shirts. UH announced that it is terminating its contract with CSC and looking into any appropriate legal action.

First, it seems pretty clear that CSC and its employees acted under color of state law for any coming § 1983 actions. They were contracted by a state agency to perform the government function of providing security at a public event in a publicly owned stadium. Some might depend on the terms of the contract with CSC and how much control or supervision UH wielded.

Second, I cannot help but notice that most of the student-trespassers (and make no mistake, they are not allowed on the field) shown being tackled are white and many of the security officers are black. It is difficult to not read something into the swift and angry university (i.e., government) reaction, especially compared to the typical response when the victims of police violence are black. This is not to say I am disappointed but UH's response, only that I wonder if it would have been different if the student-trespassers were black and the authority figures white.

Posted by Howard Wasserman on December 6, 2015 at 10:58 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, November 30, 2015

Even dogs can vote?!?!?!

Just kidding.  I haven't found anywhere in the country that actually allows animals to vote, despite some claims that dogs have registered and voted.  In fact, allegations of dogs voting -- including a springer-spaniel named Ritzy Mekler -- was one of the arguments behind the initial push for voter ID laws.  Senator Kit Bond claimed that Ritzy Mekler voted in St. Louis elections in 2000, and he was the author and primary supporter of the voter ID rule put into the federal Help America Vote Act of 2002.  (Bond's arguments were largely debunked.)  Various states, including Indiana and Georgia, followed suit with their own, stricter state-level versions, and the rest, they say, is history.  I recount this history of voter ID requirements in a chapter of the new Election Law Stories book, due out sometime next spring.  (I am a co-editor of the book, along with Gene Mazo.) Forget holiday shopping; it will make a great May Day gift next year!

If you've enjoyed this discussion of election law this month, particularly on local election rules, please come to the AALS Section on Election Law panel, which is titled "Election Law at the Local Level."  We have a great group of speakers that will address various aspects of local control over elections.  It is on Friday, Jan. 8 at 10:30.

Vote early, vote often (well, as often as there are elections, but vote only once in each of them!).  Thanks for a fun month.  I'll see you all (virtually) soon.

Posted by Josh Douglas on November 30, 2015 at 12:27 PM in Law and Politics | Permalink | Comments (0)

Friday, November 27, 2015

Even 12-year-olds can vote?!

From December 5-12 any residents of Cambridge, Ma. (including non-citizens) who are at least 12 years old may vote in the city's Participatory Budgeting election.  Residents will be able to vote for up to 6 projects, out of 23, to fund using $600,000 of the City's FY17 capital budget.

In addition to the low voting age, there are other interesting features of this election as well.  It will happen over a week -- call it Election Week -- and residents may vote online or at various events throughout the city.  Online voting is available in English and Spanish, while paper ballots will be available in English, Spanish, Portuguese, Haitian Creole, Chinese, Amharic, and Arabic. 

This is the second time the city has used a Participatory Budgeting election to decide how to allocate some of its funds.  It is unclear what turnout -- especially among the 12-18 year old group -- was like in the first round, but the city was happy enough with the results that it decided to use the process again for FY17.  12 is the lowest voting age I have seen for any election in the U.S.  I'm eager to learn whether many young people are voting in this Participatory Budgeting election, and how the low voting age is seen among the electorate.  

If anything, this is yet another example of a franchise-enhancing rule created at the local level -- the basis of my research for the next few months.  I'll be grateful for any thoughts or insights any of you might have on the topic.

Cambridge voting age 12

Posted by Josh Douglas on November 27, 2015 at 04:35 PM in Law and Politics | Permalink | Comments (7)

Tuesday, November 24, 2015

Election Results? Lies! Let's Recount

Fun fact of the day: if you rearrange the letters in "Election Results," it becomes "Lies! Let's Recount." Isn't it ironic?  (h/t Brutally Honest Entrepreneur)

Posted by Josh Douglas on November 24, 2015 at 10:08 AM in Law and Politics | Permalink | Comments (2)

Monday, November 23, 2015

Should Non-Citizens Be Allowed to Vote? (Local Law Edition)

Municipalities have vast powers to define the electorate, as I explained when noting that some local jurisdictions have expanded voting rights to sixteen- and seventeen-year-olds.  Similarly, some municipalities have granted the right to vote to non-citizens.  Studying these local laws on voting rights is vital to understanding and protecting the right to vote more generally.

Currently there are six Maryland towns that allow non-citizens to vote in all city elections.  Two Massachusetts cities, Cambridge and Amherst, have also passed laws granting the right to vote to non-citizens, but these ordinances cannot go into effect unless the state legislature approves them.  In Chicago, non-citizens may vote in school board elections.  New York City also used to allow non-citizens to vote for school board until the city disbanded the elected school boards in 2002.

Some local jurisdictions are debating whether to expand the voter rolls to include non-citizens.  New York City, for instance, is considering an ordinance to allow aliens to vote in all city elections, which would add up to 800,000 people to the voting rolls. The proposal, debated in 2013, would allow non-citizen legal residents who have lived in New York City for six months to vote in mayoral and city council elections.  Although thirty-one of the fifty-one New York City Council Members supported the ordinance two years ago, Mayor Michael Bloomberg opposed it, and the Speaker of the Council blocked a final vote on the law. There is speculation that the measure could come before the City Council again, especially as current Mayor Bill de Blasio might support the idea.  Non-citizen voting is also being debated internationally, such as in Toronto, Vancouver, and in various European countries.

There are both theoretical and practical reasons for expanding voting rights to non-citizens.  As Professor Jamie Raskin explained in a law review article, “the disenfranchisement of aliens at the local level is vulnerable to deep theoretical objections since resident aliens — who are governed, taxed, and often drafted just like citizens — have a strong democratic claim to being considered members, indeed citizens, of their local communities.”  Moreover, local residents – whether they are citizens or not – care about, and should have a say in, local affairs.  Allowing them to vote facilitates greater participation in the community, which will encourage these voters to become citizens.

Of course, there may be good policy reasons not to expand suffrage to non-citizens, such as that voting is one of the key rights of citizenship, and that expanding the franchise for only certain elections is a logistical nightmare with separate ballots for federal, state, and local offices. 

The point here is not to comment upon the merits of those policy questions -- although they have even greater salience these days given our current debates on immigration.  Instead, what is key is that this discussion is occurring at the local level.  Municipal laws have driven the debate over expanding the franchise. The voting rights community should take notice.  If we want better protection for the right to vote, then we need to shift our focus to look at municipal laws.

Posted by Josh Douglas on November 23, 2015 at 02:09 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (1)

Seeking the truth

Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means  I really was looking for the truth.

Posted by Howard Wasserman on November 23, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on November 19, 2015 at 04:08 PM in International Law, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on November 17, 2015 at 09:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (20)

"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.

Oh, Mexico -- It sounds so sweet with the sun sinking low.  It sure was.

 

Posted by Josh Douglas on November 17, 2015 at 11:15 AM in Constitutional thoughts, Culture, International Law, Law and Politics | Permalink | Comments (0)

Saturday, November 14, 2015

Guess we like France now

CTzOnyRU8AEip-BLeading the charge onto the field at the start of today's Army-Tulane football game.

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.

Posted by Howard Wasserman on November 14, 2015 at 04:13 PM in Howard Wasserman, Law and Politics | Permalink | Comments (11)

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.

Posted by Howard Wasserman on November 12, 2015 at 03:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

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.

 

Posted by Howard Wasserman on November 10, 2015 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

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?

Posted by Howard Wasserman on November 9, 2015 at 05:28 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

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.

Posted by Howard Wasserman on November 9, 2015 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

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."

Posted by Howard Wasserman on November 5, 2015 at 01:34 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

Posted by Josh Douglas on November 4, 2015 at 05:40 PM in Civil Procedure, Law and Politics | Permalink | Comments (2)

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."

Posted by Howard Wasserman on November 4, 2015 at 11:17 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

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.

Posted by Howard Wasserman on November 4, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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!

Posted by Josh Douglas on November 3, 2015 at 09:22 AM in Blogging, Current Affairs, Law and Politics | Permalink | Comments (2)

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).

Posted by Howard Wasserman on November 2, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.”

We disagree.

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.

Posted by Howard Wasserman on October 26, 2015 at 11:01 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (9)

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).

Posted by Howard Wasserman on October 20, 2015 at 09:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

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.

That is, until I listened to last week's arguments in Campbell-Ewald v. Gomez.

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.

Posted by Howard Wasserman on October 19, 2015 at 08:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, October 14, 2015

Judicial departmentalism

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.

Posted by Howard Wasserman on October 14, 2015 at 11:08 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)