Wednesday, July 29, 2015
The Virtues and Vices of Casebook Supplements
My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.
As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.
I. The Virtues of Casebook Supplements
- Current-ness. This is the easy one: Like pocket parts in the good ole' days, supplements help to ensure that the classroom materials are current. In some fields, the value of current-ness may spring almost entirely from piquing student interest and curiosity by covering current "hot" topics. In others (like national security and counterterrorism law), current-ness is a virtual necessity, given how much the entire structure of the field can change in a short period (see, e.g., Edward Snowden), and not just how much individual aspects of the relevant doctrines can evolve.
- Efficiency. It's certainly true, of course, that individual teachers can and should provide their own materials to satisfy the current-ness values noted above. But supplements are, from a market perspective, deeply efficient. Rather than having dozens of individual professors creating their own excerpts of overly lengthy opinions (I'm looking at you, Second Circuit), supplements centralize the labor.
- Continual pedagogical reassessment. It would be one thing, of course, if supplements were merely collated excerpts of new materials. But supplements also allow casebook authors to constantly revisit pedagogical choices made in the last edition--and to decide whether certain materials should be taught differently, whether in light of intervening developments or just further reflection. To that end, adopters and users of supplements benefit not just from the primary source materials excerpted and collated in the supplement, but from the pedagogical choices the authors make about which materials to include, how much those materials should be annotated with introductory discussion and/or notes and questions, and so on. As with everything else on this list, not all supplements are alike. But the more a supplement reflects a conscious choice about which (and how much of the) new materials should be included, the more pedagogically valuable it is as compared to DIY case excerpts.
- Making the next edition (somewhat) easier. Related but distinct from this last benefit, the work that authors put into the supplement should also, in theory, make the next edition of the book at least somewhat easier. After all, if the authors use the supplement as an annual opportunity to ensure that individual chapters are up-to-date and pedagogically coherent, it should be somewhat easier to produce a new edition once a critical mass of new material has accumulated. To be sure, the new edition of a book is likely to be more than just the sum of the previous supplements--but, based upon personal experience at least, it feels like a far lighter lift to plan a new edition when many of the updates have already been contemplated.
II. The Vices of Casebook Supplements
- Cost to students. The vice of which I am the most mindful is the cost of supplements to students, especially in proportion to the supplement's utility. I've long thought that supplements are priced even more aggressively than the casebooks themselves, and have, at various points, declined to assign supplements because I was using too little of the material to justify the cost. My usual rule of thumb is that I need to assign at least 1/4 of a supplement before I'll ask my students to buy it, and even then, the supplement needs to do more than just excerpt cases. Of course, the increasing move toward electronic materials may mitigate at least some of these costs--but not get rid of them.
- Shelf-life. Related to the sticker price of the supplement is its terribly limited shelf-life. Although every book is different, over two-thirds of the material in our 2015-16 supplement, to take just one example, is new this year. Thus, supplements have zero resale value--and are, in many ways, a sunk cost to students.
- Labor costs. Given the above vices, along with information deficits (publishers aren't always on the ball about publicizing supplemental materials), the percentage of adopters who also adopt the supplement is never 100%, and may, in some cases, be far lower. And the lower that # is, the harder it is to justify the (often substantial) labor costs that go into producing a supplement. Again, every field is different. But speaking just for me and my co-authors, it took the better part of the past two months for the four of us to put together this year's edition--labor that we certainly enjoyed, but that is a fairly substantial investment.
III. Closing Reflections
I'm sure I've missed some obvious pros and cons in the above description, and would welcome folks' thoughts in the comments. I also suspect that the choice whether to assign a casebook supplement is deeply field- (and even casebook-) specific. And supplements play an increasingly interesting role in the potential transition to electronic course materials--perhaps providing real-time updates online will come to replace the annual print supplement (we already do both for our adopters). But insofar as these considerations can be generalized, the real question I keep grappling with is how we can maximize the upsides of supplements while minimizing their downsides...
Tuesday, July 07, 2015
John Yoo and Me on the Supreme Court and the Separation of Powers
As part of "Celebrate Liberty" month (a joint project of the Federalist Society and the Washington Times), today's Times includes dueling op-eds by John Yoo and me on the separation of powers after and in light of the most recent Supreme Court Term. Here's John's piece; here's mine.
Perhaps not surprisingly, both pieces focus on the marriage cases. John's starts from the premise that "the Supreme Court cannot finally determine any fundamental constitutional dispute," and goes from there to urge popular resistance to the decision from those who disagree--not through disobedience or defiance, but rather "by seeking judicial nominees who will restore primary control over family law and marriage to the states." Thus, as John concludes, "Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not."
My piece takes somewhat of a different view. Seizing upon the Obergefell dissenters' claims about the anti-democratic nature of the decision, I argue that an ambitious Supreme Court is actually a healthy thing for the separation of powers (as Madison argued in the Federalist No. 51), so long as the Court is properly exercising judicial power in the formal sense--by deciding cases and controversies within its jurisdiction. Thus, as I conclude, "it’s long-past time that we learned the difference between rulings that exercise judicial power that doesn’t exist, and those that exercise established judicial power to reach a result with which we disagree." It's one thing to criticize Obergefell for reaching the wrong answer to the constitutional question; it's quite another to criticize it for answering that question in the first place. (And the same works in reverse--progressives might critique Heller, Citizens United, and Shelby County on the merits, but it's hard to dispute the claim that the constitutional questions in those cases were properly before the Court, but cf. Fisher.)
Even though we didn't have a chance to see each other's drafts in advance (or, as such, to respond to each otther), I actually think these pieces fit quite nicely--and help to illuminate the ever-ongoing debate over the proper judicial role.
Wednesday, April 15, 2015
The Fifth Circuit Jumps the Non-Article III Shark
A big thanks to Will Baude for alerting me to yesterday's fascinating decision by the Fifth Circuit in United States v. Hollingsworth, in which a divided panel upheld the constitutionality of a non-Article III magistrate judge trying without the defendant's consent a petty criminal offense committed on a "federal enclave." Hollingsworth is a great case for federal courts nerds, because it brings together two different threads of the Supreme Court's jurisprudence regarding non-Article III federal adjudication: (1) Congress's power to relegate certain matters to non-Article III magistrate judges; and (2) Congress's power to relegate certain matters to non-Article III "territorial" courts. Unfortunately, Hollingsworth combines these threads in a manner that utterly confuses them. Thus, although the panel reached what in my view is the right result, it did so for deeply flawed reasons, which I elaborate upon below the fold.
The facts of Hollingsworth are pretty straightforward; David Hollingsworth was tried and convicted before a federal magistrate judge in the Eastern District of Louisiana for simple assault at the Naval Air Station Joint Reverse Base New Orleans in Belle Chasse, a "federal enclave" that is within the "special maritime and territorial jurisdiction of the United States." No one disputes that Hollingsworth's crime is a "petty offense" under federal law, because the maximum sentence he could have received was six months' imprisonment. Hollingsworth was tried without a jury before a non-Article III federal judge, and, after an unsuccessful appeal to the district court, appealed his conviction to the Fifth Circuit on the grounds that such a trial (without his consent) before a non-Article III judge violated Article III and his Sixth Amendment right to a jury trial.
Writing for a 2-1 majority, Judge Clement held that Hollingsworth's claims were foreclosed by the Supreme Court's 1973 decision in Palmore v. United States. Palmore, readers may recall, upheld Congress's power to create a non-Article III court of general jurisdiction within the District of Columbia, almost entirely based upon Justice White's (flawed) analogy of the D.C. Superior Court to state courts. But while Palmore's reasoning has been heavily criticized, the basic proposition it establishes (that Congress can establish non-Article III courts in federal territories) is generally accepted today. Thus, Judge Clement concludes, "[U]nder Palmore, Hollingsworth has no constitutional right to trial before an Art. III court. . . . Pursuant to Clause 17, Congress could have referred all trials for crimes committed at Belle Chasse to an Article I judge, including felony trials.But Congress chose to refer only trials for petty offenses to federal magistrate judges."
In other words, Judge Clement reads into Congress's (in her view, greater) power to create non-Article III courts in federal territories the arguably lesser power to have magistrate judges try all offenses committed within those territories--and it's just Congress's good graces that stopped it from empowering magistrate judges to try anything other than petty offenses in this case.
The problem with this analysis is that it misreads the relevant statutes, and thereby conflates two very different justifications for non-Article III adjudication. The justification for territorial courts is tied entirely to Congress's unique (and plenary) regulatory power over federal territories; the justification for trying petty offenses before magistrate judges is tied entirely to a different consideration--that there's no right to trial by jury in such cases, regardless of where they are committed (indeed, this is the almost tautological conclusion of Part II of Judge Clement's opinion). Thus, Hollingsworth was tried under the general (and aterritiorial) statutory authority that empowers federal magistrate judges to try petty offenses without a jury even if the defendant doesn't consent.
Indeed, the only reason why the territorial location is significant in Hollingsworth is because simple assault is only a federal offense (albeit a petty one) when committed within the "special maritime and territorial jurisdiction of the United States." But once it's established that Hollingsworth has committed a federal offense, the fact that it was committed on a federal enclave is irrelevant to the statutory (and, in my view, constitutional) authority of the magistrate judge. In other words, Hollingsworth has nothing at all to do with Palmore. Given that I don't think it follows from Palmore that magistrate judges can try any offense committed on federal territory (for a bunch of reasons that I plan to elaborate upon in future writings), it was therefore completely unnecessary for the Fifth Circuit to decide this (novel) question.
Instead, the real question is whether non-Article III magistrate judges may generally try petty offenses without the defendant's consent. But as I've explained at some length in my (hot-off-the-presses) article on military courts, the Supreme Court has long equated the validity of non-Article III adjudication, at least in criminal cases, with the absence of a right to trial by jury. Note that this doesn't explain Palmore (where the defendant clearly did have a right to trial by jury), but that it does explain, among other lines of jurisprudence, nearly all of the Court's military justice case law, and the power of non-Article III federal courts in the insular territories (where the jury-trial provisions arguably don't apply) to try all criminal offenses.
In other words, instead of relying upon a settled line of non-Article III precedent (pursuant to which, contra Judge Higginson's dissent, non-Article III judges are allowed to try petty offenses), the Fifth Circuit unnecessarily (and, in my view, improperly) extended Palmore--a troubling enough precedent in its own right--to allow Congress to subject all offenses committed on federal territories to trial by magistrate judges.
Tuesday, March 31, 2015
Armstrong: Is Utterly Disingenuous Statutory Interpretation Ever Worth It?
In a nutshell, a 5-4 conservative majority (the usual suspects, but for Breyer and Kennedy switching sides) held that Medicaid providers may not pursue suits for injunctive relief against state officers who allegedly violate the "equal access" provision of the Medicaid act because (1) the Supremacy Clause itself doesn't provide a freestanding cause of action; and (2) even if such a cause of action has traditionally been available in equity, Congress displaced such remedies when it enacted Medicaid in 1965 (or, at the very least, when it codified the equal access provision in 1989). [Full disclosure: I co-authored a brief on behalf of former HHS officials as amici curiae in support of the Respondents.]
As a result, the only way to enforce the "equal access" mandate--one of the most significant substantive requirements of the Medicaid program--is for the Department of Health and Human Services to withhold Medicaid funding from violating states, something the Department neither has the ability nor the inclination to do. But whereas I had warned in an earlier post that a bad result in Armstrong could mean doom for Ex parte Young (which I elsewhere described as the sleeper Federal Courts case of the Court's October 2014 Term), the hyper-specific focus on the equal access provision in both Justice Scalia's majority opinion and Justice Breyer's concurrence almost certainly reduces the precedential effect of today's decision. The only downside (for anyone other than Medicaid recipients and providers, anyway), is that it does so at the expense of any shred of credibility--reigniting the debate over the virtues (and vices) of "this train only" analyses.
I. Congress's Intent to Foreclose Equitable Relief
The basic thrust of Justice Scalia's majority opinion has three prongs: (1) the Supremacy Clause does not provide a freestanding cause of action; (2) causes of action to enjoin allegedly preempted state laws probably are available under traditional principles of equity; but (3) in the Medicaid statute, Congress intended to displace those principles, much as the Court held with respect to the Indian Gaming Regulatory Act in Seminole Tribe. Federal Courts scholars can (and surely will) debate the significance of (1) in light of (2), but the heart of the matter is (3).
In the key passage of the majority opinion, Justice Scalia invokes two aspects of the equal access provision that, in his view, demonstrate Congress's intent to foreclose traditional equitable remedies: "First, the sole remedy Congress provided for a State’s failure to comply with Medicaid’s requirements—for the State’s 'breach' of the Spending Clause contract—is the withholding of Medicaid funds by the Secretary of Health and Human Services." Second, while "[t]he provision for the Secretary’s enforcement by withholding funds might not, by itself, preclude the availability of equitable relief. . . . it does so when combined with the judicially unadministrable nature of §30(A)’s text." Thus, "[t]he sheer complexity associated with enforcing §30(A), coupled with the express provision of an administrative remedy, shows that the Medicaid Act precludes private enforcement of §30(A) in the courts."
There are two separate, but equally fatal flaws with this analysis:
First, the equal access provision is not remotely "unadministrable." In the immediate wake of the equal access mandate’s enactment, HHS not only acquiesced to judicial administration of the provision; it actively participated in the process. Indeed, from 1989 through Gonzaga (after which private suits to enforce the equal access provision became far more difficult), there were any number of cases in which courts considered whether state Medicaid plans were consistent with the equal access provision. But even if there weren't this history (which Justice Scalia completely ignores), the logic is in any event internally inconsistent. After all, the more aggressive administrative review that Justice Scalia holds out as the alternative to private enforcement would presumably only increase the number of adverse actions taken by HHS--and, as such, administrative appeals by states--which would return the question of state compliance with the equal access provision to the courts.
Second, if the point of this exercise is to divine Congress's intent, how could the creation of an administrative review scheme (in 1965) thereby communicate Congress's view that it means for a provision it enacted 24 years later to not be judicially administrable? Of course, it can't. What matters is what Congress thought in 1989 when it codified the equal access provision. And if the touchstone of Justice Scalia's analysis is Congress's intent, how does he reconcile this analysis with the familiar (if nowhere mentioned) presumption that Congress must speak clearly when it wishes to displace traditionally available equitable remedies? (Needless to say, no such clarity can be found in the 1989 statute.) At a more fundamental level, if congressional intent is so essential to Justice Scalia's analysis, why is there no discussion whatsoever of the history of the equal access provision, or what Congress thought it was doing when it codified what had previously been a regulatory requirement in 1989? (Or how the regulation had been interpreted prior to 1989--and whether Congress was codifying that understanding?)
Taken together, these two flaws suggest that Justice Scalia was attempting to do through the back door what he must not have had five votes to do through the front: To incorporate the deeply skeptical approach to implied causes of action in cases like Sandoval and Gonzaga into the context of Ex parte Young-like suits for injunctive relief against state officers for violating federal law. As in Sandoval and Gonzaga, the congressional intent question seems really to be asking whether Congress meant for the right at issue to be privately enforceable; but if it did, then there'd be no need for implied causes of action--the statute would be read to furnish one expressly.
The difference between Sandoval and Gonzaga, on the one hand, and Armstrong, on the other, is that this inquiry now takes the form of congressional intent for "judicial administrability," and it remains to be seen how skeptically lower courts will approach that inquiry going forward. Whether Armstrong will be a big deal or a little deal depends entirely on the answer to that question.
II. The Resurgence of Westside Mothers
Compared to the flaws documented above, the "plurality" part of Justice Scalia's opinion---Part IV--hardly merits a mention. But it's still alarming that, in a case where it didn't matter, four Justices still went out of their way to dredge up the long-since-discredited "Westside Mothers" approach to Spending Clause statutes, named after a district court decision that held that Spending Clause statutes are more like "contracts" for constitutional purposes than they are Acts of Congress--which, among other things, means they ought not to be enforcable by third-party beneficiaries.
What's more troubling than the revitalization of this idea in the abstract is what Justice Scalia does with it--erecting a presumption that statutes won't authorize private parties to challenge Spending Clause statutes absent some "unambiguously conferred" right to sue (citing Gonzaga). To be sure, this part of the opinion was only joined by Chief Justice Roberts and Justices Thomas and Alito--but it doesn't bode well for future efforts to enforce any Spending Clause statutes against states absent an express cause of action (and, as in Gonzaga, perhaps even then).
III. Justice Breyer's Inexplicable Deference to the Agency
Lots of folks may have been most surprised by Justice Breyer's role here--joining the otherwise conservative majority while Justice Kennedy sided with the dissent. To be honest, I wasn't; many of us who were involved in Armstrong had long assumed that he was the key, and his opinion concurring in the judgment makes quite clear his near-absolute preference to defer to administrative enforcement where complex cooperative regimes are implicated. In his words, "If the Secretary of Health and Human Services concludes that a State is failing to follow legally required federal rules, the Secretary can withhold federal funds. If withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules."
Had Justice Breyer actually read the amicus brief by former HHS officials (yes, I'm biased), he might have understood the naivete of resting on the specter of administrative enforcement here. Indeed, as we explained in detail, it has never been HHS's position that private enforcement of the equal access provision would in any way interfere with the Secretary's ability to enforce Medicaid more generally; it's only been the Justice Department's position. I'm all for deferring to agencies on matters within their expertise, but doesn't that deference also suggest that we ought to listen to them when they say they're not in a position to enforce this provision by themselves? Breyer closes his concurrence by suggesting that "Congress decided to vest broad discretion in the agency to interpret and to enforce § 30(A)." Of course that's true. But if the agency's position is that its enforcement of federal law is aided, not hindered, by private suits, why shouldn't that matter? There may well be an answer; Justice Breyer doesn't say.
IV. Howard's § 1983 Question
Finally, I'd be remiss in not saying a quick word about the question Howard raised in his post--whether, for folks like me (and Justice Sotomayor, in her dissent), the suits in equity we believe are available renders § 1983 superfluous. Candidly, I think Howard has the matter entirely backwards. If one assumes that courts will hesitate to infer causes of action for injunctive relief from background principles of equity when Congress has spoken expressly to the matter at hand, then it's § 1983 that should have rendered the cause of action at issue in Armstrong superfluous--not the other way around.
It's worth reiterating that the equal access provision was routinely enforced through suits for injunctive relief under § 1983 in the 13 years between when it was formally codified and when the Supreme Court scaled back the availability of § 1983 suits in Gonzaga. (One especially poignant case in point is an en banc Third Circuit decision written in 2002 by then-Judge Alito.) Thus, the fact that Howard is even asking this question after and in light of Armstrong shows how successful the Court has been in changing the narrative--from the general availability of causes of action like the one in Armstrong as recently as 15 years ago to their increasing (if not categorical) unavailability today. But for Sandoval, Gonzaga, and a run of other decisions, plaintiffs might not be left with falling back on implied remedies that had previously been overrun by far clearer cause-of-action rules.
To be sure, the Armstrong Court didn't go so far as Chief Justice Roberts suggested it ought to in his dissent in Douglas, and so perhaps did not do as much damage to Ex parte Young and other theories of federal remedies as I (among others) had feared. But is a decision based on an utterly disingenuous interpretation of a critically important federal statute so much better?
Thursday, February 12, 2015
Amanda Frost on Chief Justice Moore and the "Inferior" Federal Courts
[The following guest post is by my friend and WCL colleague Amanda Frost:]
Alabama Chief Justice Roy Moore is making news again. As reported on this blog by Howard Wasserman, he has advised Alabama probate judges to ignore an Alabama federal district court’s ruling that Alabama’s ban on same sex marriage is unconstitutional. In a fascinating memo laying out his position, Moore argues that state courts are not obligated to follow lower federal courts’ decisions. I’m very interested in this question, and I recently wrote an article examining the constitutional relationship between state courts and the lower federal courts. (My article was cited by an Alabama Supreme Court Justice Bolin, who concurred in that Court’s decision on Monday refusing to “clarify” the question for the probate judges.)I begin my article by noting that states and lower federal courts often disagree over the meaning of federal constitutional law, creating intra-state splits that can linger for years before the Supreme Court grants certiorari to resolve them. Those splits occur because most (though not all) state courts adopt the mainstream view that they need not follow lower federal court precedent. But the constitutional arguments for that position are surprisingly shaky. For example, Chief Justice Moore (like others) argues that state courts don’t have to follow lower federal court precedent because lower federal courts don’t review state court decisions. But of course appellate review is not the primary reason that one court follows another’s precedent. (If it were, then all federal courts should be free to ignore state supreme courts’ views on state law, since state courts never review federal court decisions.)
True, as a constitutional matter Congress is under no obligation to establish lower federal courts, and thus the Framers accepted the possibility that state courts would decide all federal questions in the first instance. But Congress has created a large network of “inferior” federal courts, so perhaps the presumption should now be that these courts’ decisions “preempt” conflicting state court decisions. Moreover, the Framers assumed that Supreme Court review would always be available to reverse recalcitrant (or simply wrongheaded) state judges who failed to follow federal law. That was true in the early days of our nation, but in an era in which the Supreme Court reviews no more than a handful of state court decisions each year, it makes sense to require state courts to avoid creating intra-state splits by following their regional court of appeals.
Some might argue that requiring state courts to follow lower federal court precedent would impinge on state sovereignty. But state sovereignty arguments in favor of state court independence seem particularly weak in our cooperative system in which state courts are required to hear federal issues whether they want to or not, and are also required to follow the precedent set by the U.S. Supreme Court. Moreover, state executive branch officials are required to follow lower federal court decisions, so why shouldn’t state judges be required to do so too? [Aside: In my view, Chief Justice Moore errs by failing to acknowledge that state probate judges are acting as executive branch officials, and not judges, when they grant marriage licenses.]
In my article, I acknowledge that state courts are unlikely to start following lower federal court precedent just because the constitutional underpinnings for that position are weak. But I argue that Congress, or even the Supreme Court, could establish a rule requiring state courts to follow their regional federal court of appeals. This would preserve the benefits of “percolation,” by which an issue gets thoroughly vetted in the lower courts before Supreme Court review, but would also avoid the problem of intra-state conflicts. If such a rule were in place, Chief Justice Moore would have one less leg to stand on.
Wednesday, February 04, 2015
With Amici Like These...: A Response to Josh Blackman on Law Professor-Authored Amicus Briefs
Over at his eponymous blog, Josh Blackman wonders out loud about the ethical propriety of a law professor co-authoring an amicus brief when they are one of the listed amici--that is, of being both one of the parties to an amicus brief and one of its authors, hearkening back to the old line about the lawyer who represents himself having a fool for a client. As Josh writes,
The role of the scholar and that of the advocate is different. I don’t know that I can do both simultaneously. As a scholar, I go out of my way to charitably describe both sides of an argument (as best as I can). As an advocate, this tact would be foolish, and possibly unethical to the extent that it impaired my client’s case. As a professor, I would be hesitant to make an argument that hasn’t been completely thought through, as it may impact my scholarly reputation. As an advocate, especially in litigation that is moving quickly, a much more lax standard would apply to provide the tribunal with the best arguments counsel can muster. As an advocate there are certain arguments I would not be comfortable making as a scholar, and vice versa.
Admittedly, I have a dog in this fight, as I have written a number of amicus briefs over the years, many (but not most) of which have been on behalf of groups of law professors that included me. So folks should take my (negative) reaction with a significant grain of salt. That said, I have two principal critiques of Josh's reaction--one that goes to how he frames the problem, and one that goes to the role of amicus briefs, more generally.
First, with regard to Josh's framing of the distinction between the advocate and the scholar, this is, in many ways, just a retread of Dick Fallon's more famous attack on scholarly amicus briefs from a few years back. On the merits, though, it's worth emphasizing that, although counsel on an amicus brief do have ethical obligations, those obligations are to their clients (i.e., the amici), and not to the party (if any) in whose behalf the brief is filed. Thus, the advocate's job is is to zealously describe the amici's position--and not necessarily to take sides as between the parties.
Indeed, some of the most effective law professor amicus briefs are those filed in support of neither party--where the brief is meant simply to educate the court about the particular expertise of the amici. In those contexts, I just don't see the tension Josh identifies--unless, as Fallon worried three years ago, law professors are signing (and co-authoring) briefs they haven't thought through. That's definitely a problem, but it's not an indictment of law professor briefs, writ large. Indeed, it's both my practice and my experience that folks who sign onto the briefs in which I'm involved only do so when they have thought through the issues and when they agree with the underlying position taken by the brief. So long as that's true, what's the ethical difference between a professor who associates herself with that position (by signing the brief) and involving herself in explicating that position (by co-authoring it)?
Second, as a practical matter, I've always viewed the purpose (and best practices) of law professor amicus briefs to be to illuminate relevant aspects of the case that are beyond either the interest or the experience of the parties--and to do so in a way that does not come across like a party's brief, but that rather takes more of an academic high road. (Indeed, various court rules require amicus briefs to offer arguments not made by the parties.) If we agree that at least most law professor amicus briefs should aspire to this model, then it's usually quite beneficial, if not essential, to have an academic lawyer who is also one of the substantive experts involved in the drafting--since she may often have a better handle on the academic position(s) the brief is designed to take than practicing lawyers who spend their lives in the litigation trenches. In other words, it's not just that I see no ethical problem with academics co-authoring academic amicus briefs; it's that I think it redounds only to the benefit of those briefs--and of their likelihood of at once (1) accurately conveying the amici's position; (2) in a manner likely to be considered a "true" amicus brief. Otherwise, what Josh is suggesting is that academic experts either not involve themselves in drafting the brief that is ultimately on their behalf, or not include themselves as one of the experts whenever they have helped to draft the argument--even when their academic expertise and their legal drafting perfectly dovetail.
Don't get me wrong: I agree, and always have agreed, with Fallon's central charge that too many law professors sign too many amicus briefs without thinking carefully about the position the brief is taking or how that position is both (1) one on which the signing scholar has relevant expertise; and (2) something the scholar completely supports. But there are plenty of law professor amicus briefs to the contrary that take narrow and academic positions on specific substantive issues not adequately briefed by the parties. In those cases, not only do I not see a problem with those professors involved in writing the brief also signing on as amici if they have the relevant expertise; it's my experience that such bookended involvement only tends to make the brief more useful to the courts, and, therefore, more effective.
Tuesday, January 20, 2015
The Sleeper Case of the Supreme Court's October 2014 Term?
Over at SCOTUSblog, Will Baude has posted a helpful (and helpfully concise) preview of the oral argument that will take place before the Supreme Court later this morning in Armstrong v. Exceptional Child Center, a case I've blogged about before (and in which I've filed an amicus brief on behalf of former HHS officials and in support of the Respondents--the Medicaid providers). Rather than rehashing the arguments made by the parties or amici (or my prior posts), I wanted to use this post to make a different claim. Specifically, as I aim to demonstrate below the fold, in a Supreme Court Term the headlines from which will almost certainly be dominated by some combination of same-sex marriage, ACA subsidies, and passports for Jerusalem-born U.S. citizens, Armstrong could well be the biggest sleeper--the case that flies under the radar of all but the most ardent Court-watchers (or federal courts nerds), but produces the most significant long-term consequences for the American legal system.
I. The Underlying Debate in Armstrong
Among other things, Will's preview for SCOTUSblog does a really nice job of identifying the two very different threads of jurisprudence that Armstrong brings together: (1) the Supreme Court's late-developing but sweeping hostility to inferring causes of action from statutes that don't expressly provide them; and (2) the Court's longstanding practice of allowing litigants to pursue injunctive relief for constitutional violations notwithstanding the absence of an express cause of action authorizing such relief in many cases. Armstrong falls into this gap because the plaintiffs are private parties seeking to enforce a federal statute against a state officer--and they thereby have a federal statutory claim buttressed by the Constitution's Supremacy Clause. In other words, the plaintiffs are seeking to enforce the Constitution insofar as they are seeking to use it to stop a state officer from violating a federal statute.
Thus, Armstrong is different from purely statutory cases--where private parties seek to enforce federal statutes against other private parties--and from more classical constitutional cases--where private parties seek to enforce constitutional rights against government officers. As Will frames it, "[their] claim has both a statutory element and a constitutional element. This raises the question whether it should be analogized to the statutory cause-of-action cases or the constitutional ones." And although the Supreme Court has expressly recognized the existence of a Supremacy Clause-based cause of action in such cases, it hasn't revisited that line of precedent since its more recent decisions (Alexander v. Sandoval and Gonzaga University v. Doe foremost among them) scaling back implied statutory remedies.
Trying to salvage some kind of middle ground, the federal government, as amicus curiae in support of Idaho, has argued that the Court needn't resolve that larger question because, whether or not any federal statutes can be enforced against state officers this way, the statutory provision at issue--the "equal access" mandate of the Medicaid Act--was never meant to be one of them. But if the Justices are convinced by the contrary arguments about the Medicaid Act offered by the former HHS officials' brief (I'm biased), then the Court is indeed faced with this stark choice--between treating these claims as subject to the skepticism of the Sandoval / Gonzaga line of cases, or as subject to the body of cases unhesitatingly allowing such narrow claims for injunctive relief.
II. The Douglas Dissent--and Its Potential Consequences
As Will explains, we already have a pretty good idea how at least four of the Justices will vote, since, when this exact issue was before the Court in 2012 (in Douglas v. Independent Living Center of Southern California), Chief Justice Roberts wrote a lengthy dissent on behalf of himself and Justices Scalia, Thomas, and Alito that would have rejected the availability of a Supremacy Clause-based cause of action. In the Chief's words,
[T]o say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U.S.C. §1983 jurisprudence. . . . This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.
As I've written before at some length, this argument doesn't actually follow; among other things, the plaintiffs in Douglas and Armstrong are seeking injunctive relief against a state officer grounded in the Supremacy Clause--a hypernarrow claim that would be available in a far smaller class of cases (and against far fewer potential defendants) than those foreclosed by Sandoval, Gonzaga, and their progeny. Thus, (1) recognizing such a cause of action would not provide an "end-run" in the vast majority of cases; and (2) in those cases in which it would provide such an "end-run," such an end-run is necessarily grounded in the Constitution (via the Supremacy Clause), which is simply not implicated in the Sandoval / Gonzaga line of cases.
Separate from its analytical shortcomings, the more serious problem with the Chief Justice's dissent in Douglas is its implications. After all, it's hard to see why the same logic, if it attracts a fifth vote, wouldn't apply to "classic" constitutional claims, as well. Is it somehow less unconstitutional for a state officer to violate a federal statute than it is for a state or federal officer to violate the Bill of Rights and/or the Fourteenth Amendment? If not, why would litigants be allowed to pursue injunctive relief without an express cause of action in the latter class of cases, but not the former? Chief Justice Roberts didn't really answer this question in his Douglas dissent; he merely suggested that his reasoning wouldn't apply to "the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law." Thus, as I wrote after Douglas,
The dissenters would have limited Supremacy Clause-based injunctions to situations in which (1) the underlying federal right was itself privately enforceable, or (2) injunctive relief was sought to preempt an impending state enforcement proceeding. Whether or not such a result would be normatively desirable, it would be inordinately momentous, for it would suggest that the Supremacy Clause is only violated by a state’s actual enforcement of a preempted federal law, and not merely the enactment or potential enforcement thereof. In any case in which the underlying federal right could be violated without a state enforcement action, the Douglas dissenters would foreclose injunctive relief unless Congress specifically provided a cause of action.
To be sure, those who agree with Chief Justice Roberts might respond that, for constitutional provisions (unlike statutory provisions), litigants could still rely upon 42 U.S.C. § 1983 to provide a cause of action--and so injunctive relief would still be available to enforce the Bill of Rights and the Fourteenth Amendment (at least, until the Court applies Gonzaga's reasoning to such claims). But, criticallly, that caveat would not apply to claims for injunctive relief against federal officers (§ 1983 only provides a cause of action against state officers). Thus, if Armstrong comes out along the lines of the Chief Justice's Douglas dissent, it will become much harder, overnight, for parties to enforce the Constitution against the federal government.
Even if the Court finds some way to split the difference between Supremacy Clause-based claims and claims to enforce constitutional "rights," five votes for the Chief's dissent in Douglas would still make it all-but impossible to enforce most federal statutes against state officers--and, more generally, for any party to pursue Supremacy Clause-based injunctive relief in the federal courts in cases in which there is no express cause of action. This is so because federal statutes are seldom invoked as defenses to state enforcement proceedings. Indeed, the federal statutes that matter the most tend to be those, like Medicaid, that impose affirmative duties on the states--duties that can be violated through omission or inaction, i.e., by a state not enforcing anything.
Lest this discussion seem too ethereal, consider the complaint brought by Nebraska and Wyoming against Colorado directly in the Supreme Court challenging Colorado's legalization of marijuana. For starters, it's worth flagging the fact that both Nebraska and Wyoming joined an amicus brief in support of Idaho in Armstrong that categorically argued against allowing suits for injunctive relief grounded in the Supremacy Clause (but see page 1 of their Complaint against Colorado--invoking the Supremacy Clause as the basis for relief). As Jonathan Adler rightly pointed out at the Volokh Conspiracy, such hypocrisy certainly makes these states look like "fair-weather federalists."
Politics aside, the more important point is that the Nebraska and Wyoming complaint reflects how deeply ingrained the availability of injunctive relief under the Supremacy Clause is--whether the plaintiffs are states or Medicaid providers. If Armstrong reverses that longstanding assumption, it will make it much more difficult for litigants to (1) enforce constitutional rights against federal officers; and (2) prevent state officers from violating federal law. That makes it a hugely important case--and my vote for the potential "sleeper" of the Court's October 2014 Term.
Tuesday, December 23, 2014
Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong
Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:
Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?
As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).
One of the interesting back-stories to Douglas, which I covered in some detail on this blog, was the aggressive (and, in my view, disappointing) anti-private-enforcement position taken by the Solicitor General in an amicus brief filed in support of California. Leaving aside the controversial merits of the SG's Douglas brief, it was also a position that was radically inconsistent with the historical position of the Department of Health & Human Services (HHS) on the private enforcement question, especially with regard to "Section 30(A)"--the Medicaid Act's requirement that states set reimbursement levels high enough so that Medicaid recipients are able to have "equal access" to median quality medical care. Without this "equal access" mandate, economic pressures would almost certainly lead states to reimburse providers at the lowest possible levels, which in turn would likely relegate Medicaid recipients to the worst available providers. The problem, as the ACA litigation helped demonstrate, is that HHS doesn't have a lot of choices when faced with a state violating the Medicaid Act. The only real "stick" HHS possesses in such a scenario is the drastic remedy of cutting off Medicaid funding--which punishes the beneficiaries far more than it punishes recalcitrant states.
To that end, and tellingly, HHS did not sign the SG's Douglas brief, even though it had signed the SG's more equivocal cert.-stage amicus in the same case (which had recommended that the Court not take the case). Instead, in Douglas, I helped to put together an amicus brief on behalf of "Former HHS Officials," explaining why, because of the reality described above, (1) HHS has historically supported private enforcement of the Medicaid Act (and Section 30(A) in particular); and (2) partly as a result of this historical pattern, and partly for other reasons, lacks the institutional, political, financial, or administrative resources effectively to enforce Medicaid all by itself.
As in Douglas, the SG has once again sided with the states in Armstrong--albeit in an amicus brief that appears, at first blush, to be far more modest. Instead of opposing Supremacy Clause-based claims for injunctive relief in general, the SG's Armstrong amicus punts on that question, arguing that the Court need not resolve that general issue because "recognition of a private right of action under the Supremacy Clause in this case would be incompatible with the statute, the methods for its enforcement, and respondents’ claim."
And as in Douglas, a group of former HHS officials (including 15 senior administrators from three different administrations, led by former Secretaries Califano and Shalala) has now filed an amicus brief disputing the SG's position--and documenting how,
Since the early days of the Medicaid program, federal courts have recognized that providers may sue to ensure that state Medicaid plans conform to the requirements of federal law. Congress intended for such enforcement, and HHS has understood—and come to rely upon—its existence.
The brief, which I co-authored along with Matt Hoffman and Andrew Kim from Goodwin Procter, is in some important ways different from the brief we filed back in Douglas. There, our focus was on the SG's (since abandoned) position that private enforcement of the Medicaid regime would generally interefere with HHS's enforcement authorities and discretion. Here, our focus is on the SG's more modest claim about congressional intent and judicial enforcability of Section 30(A). Thus, the SG's Armstrong brief argues that Congress never intended for such private enforcement--and, even if it did, that courts would struggle to provide such enforcement given the vague language of the "equal access" provision's mandates.
Our brief rejects both of those claims, demonstrating how, not only have courts routinely applied Section 30(A)'s procedural and substantive requirements without serious difficulty (and, indeed, would have to do the same thing if HHS started to reject state Medicaid plans on the ground that they violate Section 30(A)), but how that provision--one of the Medicaid Act's most important requirements--would effectively be unenforcable without private enforcement by Medicaid beneficiaries or providers through some vehicle.
In other words, insofar as the SG's brief tries to duck the larger question implicated in Armstrong by arguing that Section 30(A) is an especially weak federal statute to enforce through such a Supremacy Clause-based injunctive action, our brief argues that it is, in fact, a textbook case for such a claim--since it is an essential federal mandate against states that, without such private enforcement, would almost certainly be frustrated.
Tuesday, December 16, 2014
Erie and/in the District of Columbia
An otherwise routine decision this morning from the D.C. Circuit raised a question I must confess to never before having considered: Why do the Article III D.C. district court and D.C. Circuit consider themselves bound to follow the Article I District of Columbia Court of Appeals on questions of "District of Columbia" law? After all, (1) D.C. is not a state; and (2) D.C. is not covered by the Rules of Decision Act (which, unlike plenty of other federal statutes, does not treat D.C. like a state); and (3) the provisions of the D.C. Code (and, presumably, the decisional law of the D.C. Superior Court and D.C. Court of Appeals) are, for constitutional purposes, federal law--such that it's not even clear the Rules of Decision Act would apply even if it did treat D.C. as a state. Thus, not only is a federal court sitting in diversity and applying D.C. law not bound by the Rules of Decision Act to follow the decisions of the D.C. Court of Appeals; there actually is something that seems untoward about an Article III court being bound by a non-Article III court's interpretation of federal law--even where that federal law is only of local applicability.
Fortunately, hours ten minutes of research led me to the following footnote in a 1979 D.C. Circuit decision, which appears to be the originating citation for all subsequent statements that the Article III D.C. courts defer to the D.C. Court of Appeals on questions of D.C. law:
We do not mean to imply that application of District of Columbia law is mandated by Erie R. R. v. Tompkins, 304 U.S. 64 (1938). In the first place, Congress, when [it bifurcated the D.C. courts into separate Article I and Article III tribunals in 1970], did not amend the Rules of Decision Act, 28 U.S.C. § 1652 (1976), to include the District of Columbia within its ambit. Had Congress wished the Rules of Decision Act to govern in situations such as the one before us, it could easily have revised the act after the fashion of 28 U.S.C. § 1332(d) (1976), which denominates the District of Columbia a “state” for purposes of diversity jurisdiction. Secondly, the constitutional considerations discussed in Erie have no force in this context, for the District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment.
Nevertheless, we have in past diversity cases looked to the District of Columbia's courts to provide the applicable choice of law principles and substantive rules of decision. That seems proper because the Court Reform Act made the District of Columbia Court of Appeals the “highest court” of the District, and thus the principal arbiter of District law . . . . Indeed, were we not to yield a measure of deference to the District of Columbia Court of Appeals, two courts neither of which could review the other's decisions would engage independently in the process of formulating the local law of the District. That would subvert the dual aims of Erie: discouraging forum shopping and promoting uniformity within any given jurisdiction on matters of local substantive law.
Other than the suggestion that the D.C. Court of Appeals should have the final say on D.C. law (a matter which, again, seems to ignore the extent to which D.C. law is federal law, at least for constitutional purposes), this argument seems quite persuasive to me as a normative matter. But what it means in practice is that the only reason today that Article III judges must defer to the D.C. Court of Appeals on questions of D.C. law is because the D.C. Circuit itself has said so--and so stare decisis, and not the Rules of Decision Act or principles of federalism--carries all the weight (and would not bind federal courts outside of the D.C. Circuit in diversity cases in which choice-of-law rules compel application of D.C. substantive law).
Monday, October 27, 2014
State Courts Choosing to Follow Federal Precedents
Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:
One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.
Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:
Doctrinally, the closest (and most recent) case on point is the Supreme Court's 2008 decision in Danforth v. Minnesota. Danforth was a case about the ability of prisoners to retroactively invoke "new" Supreme Court decisions that were handed down after their direct criminal appeal became final. The Supreme Court has erected a very high bar to when such "new" rules can be retroactively enforced via federal habeas petitions, and the Court had already held that its 2004 Confrontation Clause ruling in Crawford v. Washington was not retroactively enforceable in federal habeas petitions.
But Danforth held that state courts are free, as a matter of state law, to give retroactive effect to new Supreme Court decisions like Crawford in state collateral post-conviction proceedings. In other words, if one accepts that the Supreme Court's interpretation of a constitutional provision is itself federal law, Danforth holds that state courts can choose whether or not federal law (Crawford) that wouldn't be binding in a federal post-conviction proceeding can nevertheless be binding in a state post-conviction proceeding. (That this is what Danforth necessarily allows is made quite clear by Chief Justice Roberts' rather sharp dissent.)
At least as a matter of current doctrine, then, there's at least some support for the notion that state courts can, indeed, choose whether and under what circumstances they will be bound by federal precedents that wouldn't otherwise be binding. Michael may well believe that Danforth is wrongly decided. But if it isn't, it seems difficult to square with his conclusion that " a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control."
Separate from Danforth, I have to say that this result makes sense to me. If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don't see how that raises any kind of federal constitutional concern under the Supremacy Clause.
It may be silly (or wrong) as a matter of state law, but it seems to me that that's up to the relevant state (whether through its legislature or court of last resort) to decide. Of course, by dint of the structure of appellate jurisdiction, state courts are usually bound as a matter of federal law by the Supreme Court's interpretations of federal law--but Danforth is a rare example of a case in which that's not true. And state courts are never bound as a matter of federal law by the lower federal courts' interpretations of federal law. And so it should follow that the same logic applies to decisions of lower federal courts interpreting federal laws--that a state can choose to be bound by that decision as a matter of state law, and that nothing in federal law (including the Constitution) either requires them to so choose, or prevents them from doing so.
Saturday, October 25, 2014
The "Oral Argument" Podcast
I realize that, for some, podcasts are very five years ago. But for those who still partake, one of my favorite legal podcasts is "Oral Argument," produced by (and starring) my friends (and University of Georgia School of Law Professors) Joe Miller and Christian Turner. Unfortunately, in this week's episode, they fell victim to one of the classic blunders: They had me as the guest. Among other things, we talked in detail about the minefield that is the availability of private remedies to challenge government action (see, e.g., Howard's post on the Eleventh Amendment). The catalyst of the discussion is the Armstrong case the Supreme Court is scheduled to hear during its upcoming Term (which, as I've previously written here, could be the real sleeper of the Term if the Court scales back the availabity of Ex parte Young relief).
This week's blip notwithstanding, the other episodes have been quite entertaining (and enlightening), at least for nerds like me...
Thursday, October 02, 2014
Is Ex parte Young Doomed?
Among the 11 cases in which the Supreme Court granted certiorari this morning is Armstrong v. Exceptional Child Center, a case out of Idaho (via the Ninth Circuit) that asks "Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute." This is the exact same question that the Supreme Court had before it--and narrowly ducked--two years ago in Douglas v. Independent Living Center of Southern California, a case I've written about here previously. And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs--or, as I'll explain below, the future availability of remedies under Ex parte Young.
In Douglas, a 5-4 majority vacated the Ninth Circuit's affirmative answer to that question based upon an intervening change in the administrative posture in the case--without endorsing or criticizing the Court of Appeals' ruling. But in a strongly worded dissent on behalf of himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts argued that such remedies under the Supremacy Clause should not be available, lest the Supremacy Clause provide litigants with a means of making an end-run around their inability to enforce section 30(A) (the Medicaid statute's critical requirement that states fund Medicaid at levels sufficient to guarantee "equal access" to quality providers) either directly or via 42 U.S.C. § 1983. For Chief Justice Roberts, Douglas should have followed directly from the Court's earlier decisions in Alexander v. Sandoval (limiting direct enforcement) and Gonzaga University v. Doe (limiting 1983). Taking those cases one crucial step further, the Douglas dissent would have held, for the first time, that litigants may not pursue injunctive relief against state officers for violations of federal law under Ex parte Young unless the underlying federal law is itself privately enforceable.
The reason why such a conclusion would not be inconsistent with Ex parte Young and its progeny, the Chief Justice explained, is because "Those cases . . . present quite different questions involving the pre-emptive assertion in equity of a defense that would otherwise have been available in the State's enforcement proceedings at law.” This hyper-narrow view of the scope of Ex parte Young, which was most forcefully advanced in a 2008 Stanford Law Review article by UVa Professor John Harrison, has never been embraced by a majority of the Supreme Court, and cannot be squared with any number of subsequent Supreme Court decisions. As Justice Scalia reiterated just three years ago, “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’" And because of these modest prerequisites, as then-Justice Rehnquist wrote in 1974, Ex parte Young "has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.” In other words, litigants have been able to use Ex parte Young to affirmatively and prospectively vindicate federal rights against state officers whether or not they are otherwise facing state enforcement proceedings in which those rights might provide a defense. On the Douglas dissenters' view, such remedies would only be available when such enforcement proceedings were nigh...
And yet, Douglas came within one vote of cementing this far narrower understanding of the availability of such relief. And Justice Kennedy (who joined Justice Breyer's majority opinion in Douglas that ducked the issue) has already expressed at least some support for this view of Ex parte Young elsewhere. After Douglas came out, I wrote a short essay about the bullet that the Douglas Court dodged. With this morning's grant in Alexander, it increasingly appears that any solace one might have taken from that result may well be short-lived.
[Full disclosure: I co-authored an amicus brief on behalf of former HHS officials in support of the Respondent in Douglas--which argued, contrary to the position advanced by the Solicitor General in his amicus brief, that HHS has historically understood private enforcement of the equal access provision to be a critical part of the Medicaid scheme.]
Tuesday, September 23, 2014
The Washington Redskins, the Lanham Act, and Article III
As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.
I. The Lanham Act's Cause of Action for "Adverse" Parties
In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:
an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.
But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:
Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.
Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.
II. The Case-or-Controversy Requirement
But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.
The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.
On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.
As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...
III. The Equities
Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)
Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.
Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)
Thursday, July 25, 2013
AALS Section on Federal Courts: Annual Award for Best Untenured Article
The AALS Section on Federal Courts is pleased to announce the second annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2014 AALS Annual Meeting in New York.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2013 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2013), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (firstname.lastname@example.org), Chair-Elect of the AALS Section on Federal Courts. Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2013. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Judith Resnik (Yale), and me, with the result announced at the Federal Courts section program at the 2014 AALS Annual Meeting.
Tuesday, January 08, 2013
Pendent Appellate Jurisdiction and the Collateral Order Doctrine
Although it has become a settled feature of federal courts jurisprudence, the “collateral order doctrine” first articulated by the Supreme Court in 1949 continues to provoke judicial and academic criticism. "Accordingly," as a unanimous Court stressed in 2006, "we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope," lest it come to "overpower the substantial finality interests [the final judgment rule] is meant to further."
Notwithstanding the strong policy judgment enmeshed within the final judgment rule and the consistent rhetoric of the Court's collateral order opinions, I have a new essay up on SSRN in which I aim to demonstrate that the Justices have in fact effected a dramatic (if largely unnoticed) expansion of the collateral order doctrine in recent years — one that, by its nature, applies specifically to private suits seeking damages against government officers in their personal capacity. Starting from the now-settled holding that a government officer’s official immunity is an immediately appealable collateral order (at least as to the relevant legal questions), the Court has used the obscure and obtuse doctrine of “pendent appellate jurisdiction” to sub silentio shoehorn into interlocutory appellate review of a trial court’s contested denial of official immunity (1) whether the plaintiff’s complaint satisfies the applicable pleading standards; (2) the elements of the plaintiff’s cause of action; and (3) the very existence of such a cause of action. More to the point, these expansions have come with exceptionally little analysis, with two of these three jurisdictional holdings buried in footnotes.
In addition to flying in the face of longstanding precedent, the more troubling analytical implication of this trend is to both formally and functionally vitiate the longstanding distinction between litigation immunities and defenses to liability. To the extent that officer defendants might now be able to press most potential legal defenses on interlocutory appeal of a denial of a motion to dismiss even where they are not entitled to official immunity, such defenses will necessarily become functional immunities from suit in any case in which they are validly invoked — and will make it that much harder (and more expensive) for plaintiffs to recover even in cases in which they are not. If the Justices truly intended such a result, even if only in officer suits, one could at least have expected them to say more about it than the cryptic discussions that have sufficed to date. As the essay concludes, had they done so, they might have realized that such a result is incredibly difficult to defend as a matter of law, policy, precedent, or prudence.
Needless to say, I'd welcome comments, criticisms, objections, etc.!
Wednesday, August 01, 2012
AALS Award for Best Untenured Article on the Law of Federal Jurisdiction
The AALS Section on Federal Courts is pleased to announce the creation of an annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty members at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2013 AALS Annual Meeting in New Orleans.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those in the field of Federal Courts law that were published by a recognized journal during the twelve-month period ending on September 1, 2012 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2012), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Steve Vladeck at American University Washington College of Law (email@example.com), Chair-Elect of the AALS Section on Federal Courts. Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2012. Nominations will be reviewed by a prize committee comprised of Professors Richard H. Fallon, Jr. (Harvard), Amanda Frost (American), and Carlos Vázquez (Georgetown), with the result announced at the Federal Courts section program at the 2013 AALS Annual Meeting.
Friday, June 29, 2012
The 2011 Term and the Progressive Legal Agenda
With the ACA decision in the rearview mirror, I thought I'd take a quick stab at a more holistic reaction to the Supreme Court term that effectively came to a close yesterday. And at first blush, it certainly seems as if the October 2011 Term was a shockingly successful one for progressives--especially if one considers the bullets that were dodged. Maybe it's just that the bar is so low in light of the past few Terms, but here are a few highlights:
- In the headline-grabbing cases from this week, the Court came within one vote of invalidating the entire ACA; within two votes of leaving all of SB 1070 intact; and within one vote of allowing juvenile life without parole to persist. And yet, we wake up today with the ACA intact, SB 1070 largely gone, and juvenile life without parole a relic of a misbegotten past.
- In the same week, six Justices held that the First Amendment prevents the government from criminalizing harmless lying; and the Court dumped a case that many suspected would recognize new limits on Congress's power to empower private citizens to sue to enforce federal laws.
- Going back a few months, this was also the Term where the Court came within one vote of eviscerating Ex parte Young, only to punt; where 5-4 majorities produced surprisingly progressive decisions in three high-profile ineffective-assistance-of-counsel cases (to say nothing of the 7-2 outcome in Maples); and where the Court made a splashy, if limited, step into the Fourth Amendment consequences of 21st-century technology.
- And, lest we forget, the Court also found ways to duck huge constitutional questions in both FCC v. Fox and in the Texas redistricting case back in January, sidestepping the soon-to-be-squarely presented question about the continuing constitutionality of the preclearance regime created by section 5 of the Voting Rights Act.
I don't mean to oversell the point. I have to think that progressives certainly won't be happy with decisions like Knox v. SEIU; the double-jeopardy analysis in Blueford; Florence (the prison strip-search case); Coleman (the FMLA/Section 5 case); and a host of decisions (and decisions not to decide) that I'm sure I'm forgetting and/or underselling. And it also says everything about how low progressive expectations are that the Court ducking big decisions is, in many cases, tantamount to a progressive "victory." But even some of the "defeats" for progressives came on far narrower terms than they might have, such as the reasoning-less summary reversal in ATP v. Bullock (the Citizens United sequel)--which would almost certainly have looked much different on plenary review.
To be sure, there are storm clouds on the progressive legal horizon: the UT affirmative action case; Shelby County and the future of the VRA; the reargument in Kiobel; the Article III standing question in the constitutional challenge to the FISA Amendments Act; and a host of other cases in the food chain in which the Court's conservative majority is likely to assert itself at the expense of progressives. But that's next year. For now, I imagine most progressives will look back on the 2011 Term with a massive sigh of relief about what could've been, but wasn't.
Thursday, June 28, 2012
The ACA and the Marbury Meme: Two Reactions
In light of the e-forrests being felled over today's Supreme Court decision re: the Affordable Care Act, I'm loathe to say much of anything, both because (1) life goes on; and (2) we're reaching that point in the proceedings where everything has been said, it's just that not everyone has said it.
Nevertheless, I wanted to interject two brief rejoinders to one of the memes lurking in the (ever-proliferating) analyses of today's decision--i.e., that Chief Justice Roberts' majority opinion was a political masterstroke (a la Marbury v. Madison) insofar as it allowed him to save the Court while "gutting" the Commerce Clause; or, on different terms, that "supporters of limited government" lost the battle, but may have won / be winning the war. Examples of the former include Larry Solum @ LTB and Tom Scocca @ Slate; examples of the latter include Ilya Somin @ SCOTUSblog and (I'm sure) lots of others I haven't read. Whether this narrative is coming from folks trying to put a positive spin on what to them is a disappointing result or otherwise, I suspect it's going to be one of the common themes in the more studied post-morterms, and at least initially, I'm not convinced:
1. NFIB Isn't Another Marbury. Leaving aside the fact that the case name just doesn't roll off the tongue the same way, I have a hard time seeing much in the Chief's opinion that resembles Marbury at anything other than a hopelessly abstract and superficial level. For starters, Chief Justice Marshall's masterstroke in Marbury was expanding the Court's literal power in a manner that didn't require him to rule against President Jefferson--to the contrary, striking down section 13 of the Judiciary Act of 1789 deprived him of his authority to rule for the side with which his politics were sympathetic. The Federalists didn't win in the long-term; the Court did. Nothing in NFIB v. Sebelius, in contrast, expands the Court's jurisdiction beyond where it stood yesterday, or its unquestioned power to invalidate state and federal laws that are inconsistent with the Constitution (see, e.g., the joint dissent). Although the Chief's opinion surely has institutional value (insofar as, in the eyes of many, it maintained the Court's legitimacy), I dare say that nothing is true about the Court as an institution tomorrow that wasn't true yesterday. And whether NFIB ends up as more of a boon to Democrats or Republicans, it's hard to see how the Court wins in the long-term from today's decision in any way other than because it didn't lose--avoiding the enmity and bitterness of a jaded and disappointed progressive community.
Some might respond that the analogy to Marbury isn't about institutional power, but rather doctrinal misdirection: Hiding important substantive law behind a decision that seems to come out the other way, so that the Court achieves substantive results in the long-term that institutional concerns prevented it from claiming more immediately. Thus, Scocca, suggests, "Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory." Even if this were a fair reading of Marbury (does anyone besides Federal Courts nerds actually care in the long term about Congress's power over the Supreme Court's original jurisdiction), it assumes facts not in evidence about NFIB, specifically that the Chief's Commerce Clause and Spending Clause analyses will have significant weight going forward. That brings me to...
2. It's Spending, Not Commerce, That's Going To Matter. The assumption behind this entire narrative is that Chief Justice Roberts' majority opinion materially advances the ball with regard to constitutional limits on the Commerce and Clause, and is therefore a strategic, if not tactical, victory for those opposed to expansive views of the federal government's regulatory powers. Although I think there's a lot to this claim with respect to the Spending Clause, I'm far less convinced re: commerce. After all, (1) there's a non-frivolous argument that the Commerce Clause analysis is dicta (I just don't buy the necessary-to-the-result analysis); and (2) even if it is a holding, I can't think of a single other statute (or widely discussed proposal) that is vulnerable to the narrowly circumscribed Commerce Clause problems the Chief identifies in his opinion. Corey Yung is unquestionably right that there are lots of quiet penalties for inactivity in federal law. But few that look just like this--that was the whole point, remember? So might today's decision affect how Congress legislates going forward? Sure. The next time Congress wants to take an unprecedented step to require Americans to participate in a market in which there is a plausible claim they would otherwise stay out of, it'll matter whether the Chief's analysis was dicta or a holding. I, for one, will not be holding my breath in anticipation.
As for the Spending Clause, I really do think that, given what the Court (including Justices Breyer and Kagan) did here, today's result is not as sweeping a win for the Obama Administration as many had hoped for / reported. Indeed, I basically agree entirely with what Sam Bagenstos had to say re: how this might matter going forward. Without question, the substantive constraints on Spending Clause statutes will affect future legislation and litigation (albeit probably very little, ironically, with regard to the Medicaid expansion itself, thanks to both (1) the five-Justice Booker-remedy move; and (2) the terms of the ACA deal, which will likely prove too good to pass up even as a pure bribe). And even if the effects are overstated, it's not every day that the Supreme Court recognizes a limit on a particular source of Congress's powers for the first time in 75 years. But, and again unlike Marbury, there was no misdirection here. This was just a different holding on an analytically different issue that just happened to arise in the same case. Had the issues been resolved in separate opinions, or wholly separate cases, we wouldn't even think of the Marbury analogy. And as big a deal as the Spending Clause holding is, as mixed a bag as it makes what happened today, and as important as it may be in the future, none of those does a Marbury make. Sometimes a pig is just a pig.
Tuesday, June 26, 2012
The Math of 5-4 Summary Reversals (or, What I Don't Get About Bullock)
I'm late to the party re: the Supreme Court's 5-4 summary reversal yesterday in the "Citizens United sequel," American Tradition Partnership, Inc. v. Bullock. More to the point, I'm not an expert on campaign finance law specifically, or the First Amendment generally, so I'm not sure I have much to add to the various substantive reactions percolating around / pervading the blogosphere. Instead, the fed courts nerd in me gravitated toward the oddity of the disposition--a 5-4 per curiam summary reversal. While there have cerainly been 5-4 per curiams before, and 5-4 decisions without argument (see Garcia v. Texas for an example of both), off the top of my head, I couldn't think of a single 5-4 summary reversal--and my copy of Stern & Gressman is 4000 miles (and one very big ocean) away.
The reason why 5-4 summary reversals are so unusual is actually somewhat straightforward: As we know, it only takes four votes to grant a petition for certiorari, whereas it (usually) takes five votes for dispositions on the merits--including summary reversals. Whether because it would undermine the four-to-grant rule or for some other reason, the Court by tradition has historically given precedence to four votes for plenary review over five votes for a summary reversal. Thus, a 5-4 summary reversal could only occur if both (1) exactly four Justices object to a summary reversal; and (2) not all of those four want plenary review. [Note that this also explains why the old belief in a "rule of six" for summary reversals probably was never true--five will suffice so long as the other four don't all prefer plenary review.] And needless to say, although either scenario is relatively common, their confluence is not, for reasons I elaborate upon below the fold...
One possibile situation in which such an outcome could occur is where the four dissenters would have summarily affirmed the decision below--and are therefore dissenting on the merits, rather than on the summary disposition (an example of this appears to be the Court's last 5-4 summary reversal: Riggan v. Virginia, 384 U.S. 152 (1968), which I found through this blog post). For obvious reasons, I have to think that this is a vanishingly small set of cases.
The second way such an outcome could arise is what happened in Bullock: where at least one of the four opponents of summary reversal votes to deny certiorari rather than to grant plenary review (in Bullock, all four of the "dissenters" so voted). In a typical error correction case, one could imagine this happening if some of the dissenting Justices just didn't think the decision below was worth the Court's time one way or the other. Indeed, examples abound of 6-3, 7-2, or 8-1 summary reversals where at least one Justice objected on such terms without expressing a view as to either the merits or the form of the disposition. Perhaps it's just a fluke that there aren't similar examples of such a split in a 5-4 summary reversal; perhaps it's a reflection of deeper institutional realities, since it would be odd if five Justices thought an error so egregious as to warrant a summary reversal and the other four thought the error utterly unworthy of correction.
But whatever else Bullock was, it wasn't a typical error correction case--as made abundantly clear by the Ginsburg/Breyer opinion respecting the stay. And that's where things get interesting...
Let's start with the obvious: I think Rick Hasen is exactly right to suggest that such a move by the lefties is actually a "relative victory" for campaign finance reformers, given the extent to which "[t]aking the case would have been an opportunity for the majority of Supreme Court justices to make things worse [from the reformers' perspective], such as by suggesting that limits on direct contributions to candidates are unconstitutional." I'd only add the stare decisis point: separate from what the Justices didn't have a chance to decide, even what they did decide, i.e., that Citizens United applies to state campaign finance laws, will not have the same value qua stare decisis going forward, since "[a] summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion." That won't matter in the short term, but it certainly could matter if the day comes when there are no longer five strong votes to defend Citizens United...
To be sure, I don't think any of this analysis is particulary earth-shattering. Whatever one thinks about the merits of Justice Breyer's move, it's a relatively obvious one, at least once it became clear that there were five unshakeable votes to slap down the Montana Supreme Court. But if it really was that clear, then the less obvious, more interesting question becomes why the conservative Justices acquiesced, since nothing would have stopped any four of the five Justices in the majority from opting for plenary review instead of a summary disposition.
Monday, April 30, 2012
YLJ Online on the Implications of Douglas
As part of it's new "Summary Judgment" feature, the Yale Law Journal Online has a series of three essays up today on the Supreme Court's February 22 decision in Douglas v. Independent Living Center of Southern California, a case about which I, Rick, and others have blogged previously.
All three essays are worth reading, but I particularly enjoyed Rochelle Bobroff's take on the relationship between Douglas and the Court's 2011 decision in Astra USA, Inc. v. Santa Clara County, and Cathy Sharkey's really interesting reflection on the merits of Justice Breyer's majority opinion--and how preemption claims should affect / precipitate / provoke agency action. [My far less interesting piece on the potential implications of the Chief's dissent picks up on some of the posts I've previously written about the case...]
For those looking for quick (and hopefully provocative) diversions from exam writing / grading (or too embarrassed to watch game 2 of the Knicks / Heat series)...
Sunday, March 25, 2012
An ACA Amicus Brief Worth Reading: The SEIU on the Medicaid Coercion Question
As Eric Lichtblau's front-page story in today's New York Times suggests, the Supreme Court has been a bit oversaturated with amicus briefs in the ACA litigation, to the tune of 136 briefs (on top of the extensive briefing by the parties themselves) on the four issues the Justices will consider this week. Given that staggering number, and the very real likelihood that exceedingly few of those amicus briefs will therefore be given careful consideration, I thought I'd write to flag one particular brief that, to my mind, truly stands out: The brief of the SEIU on the Medicaid coercion question--the part of the cert. grant that, to me at least, makes the least sense. Below the fold, I offer some reflections on the parties' briefing, and why the SEIU brief, in my view, makes such an important and noteworthy contribution.
I. The Issue and the Parties' Framing
At SCOTUSblog, Lyle Denniston has a typically comprehensive discussion of the Medicaid question in "Part IV" of his ACA argument preview. Suffice it to say, the issue is whether the expansion of Medicaid eligibility in the ACA, which the parties agree would be severable from the rest of the bill if the minimum essential coverage provision were invalidated, itself violates the Tenth Amendment by "coercing" the states--along the lines Chief Justice Rehnquist hinted at in his majority opinion in South Dakota v. Dole. Arguing that "this coercion challenge is in a class of its own," the states' principal contention is that the ACA did not really present states with a choice when it came to accepting the expansion in Medicaid eligiblity. Yes, states could simply opt out of Medicaid, but the reality of current economic and budgetary constraints belies the feasibility of such an option.
In its briefing, the federal government's response strikes me as fairly tame, focusing on the extent to which the federal government, and not the states, will bear virtually all of the new economic burden imposed by the expansion in Medicaid eligibility. As the brief explains,
From 2014 through 2016, the federal government will pay 100% of the costs of providing medical assistance associated with the extension of eligibility. That amount will gradually decrease, to 95% in 2017, 94% in 2018, and 93% in 2019. In 2020 and thereafter, the federal government will pay 90% of these costs. That level of support significantly exceeds the typical federal contribution rates, which range from 50% to 83% of a State’s Medicaid expenditures and which have generally averaged 57%.
These statistics are telling not just because they belie the states' claim that the expansion in Medicaid eligibility will impose a particularly onerous (and coercive) burden on them (later on, the government's brief suggests that the expansion in Medicaid eligiblity may actually save states money in the long term), but because they also help identify the real stopping-point of the states' argument, i.e., that Medicaid itself is unconstitutionally coercive. True, the states don't ever actually suggest as much (per the "class of its own" line quoted above), but it's hard to see how a limited expansion in Medicaid eligibility (for which the federal government is almost entirely financially responsible) could violate the Tenth Amendment when Medicaid itself doesn't.
The states' answer, such as it is, is that they have become so dependent upon Medicaid funding that they're in no position meaningfully to evaluate the merits of any expansion in Medicaid eligibility--that Medicaid itself may not be coercive, but any mandatory change to its scope is. Although the states stop short of framing Medicaid as a "vested right," the crux of their argument is that Medicaid has created a form of functional dependency on federal funding, which is why expansions like that created by the ACA don't really give states a "choice."
II. The SEIU Brief and the Unconvincing Distinction Between the ACA and Medicaid Itself
Enter, the SEIU amicus brief, which can fairly be described as rejecting the feasibility of the distinction the states try to articulate, i.e., that there is a "constitutionally relevant and judicially manageable distinction between the pre-existing federal spending program [the states] desire to continue and the expanded program they challenge." In far more detail than the federal government's brief (which, to be fair, had other fish to fry), the SEIU brief focuses on the necessary implication of the states' argument--that Medicaid has in effect become a "vested right," and that, while the original program may itself be permissible, the expansion is necessarily coercive.
Thus, the SEIU brief proceeds to make three points: First, there is no precedent supporting the idea that states "gain a 'vested' or otherwise constitutionally protected interest in the continuation of a federal-state cooperative spending program after Congress determines that continued federal subsidization of such a program is no longer its preferred course." Indeed, the Supplemental Security Income (SSI) program stands as decisive proof to the contrary, since Congress in 1972 converted it from a cooperative federal-state spending program to a solely federal spending program.
Second, precedent aside,
Petitioners essentially argue that States face tremendous political pressures from their own residents to provide similar benefits to those in pre-expansion Medicaid, but would face difficulties in doing so absent federal funds because increasing local taxes would be politically intolerable. Judging these assertions in any meaningful way, if they were deemed legally relevant, would enmesh the judiciary in evaluating the relative strengths of various local political pressures and the relative merits of possible political tradeoffs.
For a host of reasons, the brief explains, courts are ill-equipped to enter into such a "realm of quintessentially political decision-making regarding the relative importance and inter-relationship of different aspects of a federal spending program that Congress has linked together as necessary to promote the general welfare."
Third, and most tellingly, accepting the states' argument "not only would treat the States in a manner highly inconsistent with the constitutional plan — i.e., treat them as dependent entities in need of forced federal assistance, secured by judicial intervention — but it also would mean that Congress’ authority to define the scope of the programs it is willing to fund is limited by either the States’ present desires or the spending decisions of prior Congresses." But as the brief argues, clearly, Congress could terminate the Medicaid program in its entirety, and then create a brand-new program that is virtually identical to the current Medicaid program as expanded by the ACA. If both of those steps are constitutionally permissible, where is the flaw, here?
Whatever else one might say about the minimum essential coverage provision, or the ACA litigation more generally, I've never been particularly convinced that the Medicaid challenge is a serious one--and the SEIU brief, to my mind, goes a long way toward explaining why. At the end of the day, I have to think that the only chance the states have at succeeding on this claim is to convince the Court that it can meaningfully be distinghished from a challenge to Medicaid, writ large. There may be folks out there who don't think this distinction matters because Medicaid itself, in their view, raises similar constitutional concerns. However plausible this argument is descriptively, I think it's a non-starter before this--or any other--Supreme Court. Ultimately, then, if the SEIU brief does nothing else, it rather conclusively proves why the distinction on which the states have seized ultimately fails to persuade. But that may be the only point that matters...
Wednesday, March 21, 2012
Things You Oughta Know If You Teach Federal Courts
At Dan's request, I thought I'd put together the following thoughts for those prawfs who are either new to, or contemplating jumping into, Federal Courts. At the outset, let me just say something that I think most teachers of Federal Courts believe: It is at once the hardest and most interesting class I teach, and I constantly encounter greater challenges--both substantively and pedagogically--in this course than in any of my other classes. That could just be me, though, so please take what follows below the fold with however many grains of salt such an opening warrants.
I. What Is Federal Courts?
No two people will answer this question the same way, and yet it will necessarily drive virtually every aspect of how you structure the course, which materials you use, what kind of pedagogical approach you pursue, etc. To my mind, there are three classical views of the course:
- as an advanced civil procedure course, with special focus on some of the nastier and more intricate questions of subject-matter jurisdiction, removal jurisdiction and procedure, "complete preemption," appellate jurisdiction and procedure, class actions, the jurisdiction and procedure of the U.S. Supreme Court, etc.
- as an advanced constitutional law course, with special focus on justiciability doctrine (different schools cover this to varying degrees in the intro con law course(s)), the constitutional scope of federal jurisdiction, the constitutional limits on federal jurisdiction, Congress's power over federal jurisdiction, the constitutional relationship between federal and state courts, the constitutional rules governing non-Article III courts, etc.
- as a federal remedies course, with special focus on federal common law, implied causes of action, Bivens remedies, § 1983, sovereign and official immunity, abstention doctrines, and habeas.
I very much doubt that any Federal Courts class sticks entirely to one of these three conceptions. But a lot of how you structure the course and which materials you use will depend on how heavily you want to borrow from each of these models. To similar effect, different Federal Courts casebooks work to differing degrees based on your own comfort level with (and attraction toward) each of these models.
My own view, as will become apparent, is to teach Federal Courts as primarily models (2) and (3)--that very little of the class is merely about how particular statutes are actually applied. Instead, I've always seen Federal Courts as a far deeper inquiry into the unique role and constraints on the federal courts within the federal system, and so I've gravitated in that direction. Put another way, if most public law classes in law school (including constitutional law) are Calculus, in which students merely apply the structural rules (e.g., the Fundamental Theorem of Calculus), Federal Courts is Analysis, in which we prove why those rules are. Here, that means the course is devoted to explaining both why the Federal Courts are such an integral part of the federal system (including why federal courts can play roles that state courts cannot), and how the Federal Courts preserve their ability to continue to play that role going forward. But again, that might just be me...
II. Three Credits or Four?
Although a handful of schools (e.g., Harvard) offer a five-credit Federal Courts class (a boy can dream...), the far more realistic issue most of us will confront is whether the course should cover three or four credits. I'm horribly biased here, but I think that, virtually no matter how you answer Question I, above, it's difficult to squeeze all this material into three credits. That said, if you don't have a choice, I think a three-credit Federal Courts class will necessarily either (1) stick to only one of the models described above; or (2) borrow far less heavily from each, and be more of a survey course.
III. To Hart & Wechsler or Not To Hart & Wechsler?
There are a lot of Federal Courts casebooks out there, and many of them are quite good by almost any standard. But I think the question of casebook choice is still best framed as Hart & Wechsler vs. the field, especially if you gravitate toward a combination of models (2) and (3) from above. As I tell my students every year,
Hart & Wechsler . . . is a wonderful book for everything except teaching. It is maddeningly rhetorical, hyper-dense, and includes far too much significant material in the notes after cases . . . and footnotes . . . . That being said, it is a simply invaluable reference and the gold standard when it comes to federal courts casebooks — the entire field of federal courts owes much of its origins to the first edition, published in 1953. By the end of the semester, you may come to hate the book, but I truly believe that it is the best way to fully appreciate the (often endless) complexities of the questions that we will be studying.
And year after year, I pay for that choice in my student evaluations, most of which express deep frustration at a casebook that provides plenty of questions, but no answers (of course, it does provide answers, but that's the point). Having tried teaching the course once from another book, though, it's been my experience that there's an upside to Hart & Wechsler, too--that students develop a deeper appreciation for the nuance that infects most serious Federal Courts issues, and that they realize how much the "law" of Federal Courts is defined by negative inference from the subtleties of what the Supreme Court has not done and/or never said.
That said, there are compelling reasons not to adopt Hart & Wechsler. Its density makes it hard to cover as much material in the same amount of time; it's much harder for us as professors in the classroom, because we have to spend far more time helping the students divine the "rules," such as they are, from the Federal Courts canon; and it makes for unhappy (or at least overworked) students, who, no matter how hard you try to convince them otherwise, will remain convinced that you're a sadist for choosing that book, as opposed to its competitors. My own experience has been that, all that said, the pros outweigh the cons, but it's a decision every Federal Courts prawf has to make for themselves. And if you go with the field, it's a fantastic and deep bench; then, I think the real key is finding the book that hews most closely to your intuitive sense of both scope and order of coverage.
IV. To Habeas Or Not To Habeas?
Regardless of which book you use, there are a ton of difficult coverage questions in Federal Courts, because you just can't cover everything. But the one coverage question that looms above all others is whether or not to cover habeas. These days, if you choose to teach jurisdiction-stripping, you almost have to spend some time on habeas, thanks to Boumediene (if not St. Cyr, Rasul, and Hamdan). But covering post-conviction habeas as a remedy is a unit unto itself, and there's just no way to do it quickly (unlike, say Bivens or Supreme Court review of state courts). I've tried lots of different tacks, but have never been able to squeeze post-conviction habeas into fewer than four classes. Even then, that's one session on the Suspension Clause and its historical understanding; one session on Brown v. Allen and Fay v. Noia; one session on procedural default and retroactivity; and one session on AEDPA. It's almost professional misconduct to try to cover procedural default and retroactivity in one 110-minute session, to say nothing of covering AEDPA in that time. But then the question is whether to not cover habeas at all, since the alternative is to let it swallow up one-third of the syllabus.
My own answer, going forward, is to not cover post-conviction habeas in Federal Courts; it's just not useful to teach it at the level of superficiality that I inevitably have to in condensing it to four sessions. But I'm long-winded. There may be ways to do so, or to cover it adequately in six or seven sessions. Either way, I think this coverage decision has to come early on, because a lot of "smaller" coverage decisions will follow.
V. External Resources for New and Aspiring Federal Courts Prawfs
Finally, in addition to a link to my materials from the last time I taught the course, I'd be remiss in not noting that there is an amazingly helpful, thoughtful, and friendly cohort of Federal Courts professors, especially those on the more junior-ish side. About five years ago, Amanda Frost and I started the "Junior Federal Courts Faculty Workshop" as an opportunity for up-and-coming Federal Courts prawfs to get to present work with senior commentators, and also to come see what our colleagues are up to. We're both extremely gratified (and excited) to see that the Workshop has taken on a life of its own, and Tara Leigh Grove at William & Mary has already begun putting together the fifth annual gathering, scheduled for October 25-27, 2012, in Williamsburg.
The AALS Section on Federal Courts is also a good group to get involved with. As evidenced by the fact that I'm the Chair-Elect, we're not a very hierarchical bunch, and we usually put on pretty Federal Courts-nerd-satisfying programming @ AALS--including a panel discussion at AALS 2013 on "Non-Article III Courts: Problems of Principle and Practice." The inestimable Don Doernberg at Pace Law School maintains a listserve for Federal Courts issues, which, in what must be a rare complaint for such lists, could stand in my view to be more active.
There are also some great blogs to follow if you're so inclined, especially the "Civil Procedure & Federal Courts Blog," run by Robin Effron (Brooklyn), Cynthia Fountaine (Southern Illinois), Patricia Moore (St. Thomas), and Adam Steinman (Seton Hall).
I actually think we could stand to have more such resources in the Federal Courts world, but it's certainly the case that new and aspiring Federal Courts prawfs have plenty of places to look for help, guidance, and support, when jumping into the "organic chemistry" of law school.
But I'm curious if folks disagree with any of the above, or would add other observations. The (e-)floor is yours!
Wednesday, February 22, 2012
Chief Justice Roberts and the Supremacy Clause "Near-Miss" in Douglas v. Indep. Living Ctr.
There's a lot to say about the Supreme Court's decision this morning in Douglas v. Independent Living Center of Southern California, a case I've written and blogged about fairly extensively (and in which I submitted an amicus brief on behalf of former HHS officials).
Going into the oral argument, the case appeared to present the issue of whether the "equal access" provision of federal Medicaid law could be enforced by Medicaid beneficaries via the Supremacy Clause in a suit for injunctive relief against a (arguably preempted) state law, even though the same plaintiffs could not enforce the equal access provision directly or under 42 U.S.C. § 1983. The Ninth Circuit had said yes, and given both the cert. grant and the Obama Administration's amicus brief to the contrary, there was reason to believe that the Court would say no--not just in this specific case, but that, in general, the Supremacy Clause could never be used to obtain injunctive relief on a preemption claim (that a state officer was enforcing a state law in violation of federal law) when the federal statute allegedly being violated was not otherwise privately enforceable.
Whatever one thinks about the merits of such a result, I think folks would generally agree that this would have been a remarkably important outcome for the future of Federal Courts jurisprudence. And as I explain below the fold, at least four Justices, led by Chief Justice Roberts, would have gone there--all the more reason, methinks, to be relieved that the majority ducked....Writing for a 5-4 majority (Kennedy + the lefties), Justice Breyer held that intervening developments (to wit, HHS's approval of California's Medicaid plan amendments--which presumably means HHS now believes that the amendments as modified don't violate the equal access provision) fundamentally changes the nature of the question presented. Now, from the majority's perspective, instead of arguing that the California rate-cut violates the equal access provision, the plaintiffs' real claim is that HHS acted arbitrarily and capriciously in concluding that it doesn't... Thus, the Court vacated and remanded for further proceedings.
But what's far more interesting is Chief Justice Roberts' dissent. Notwithstanding his assertion that "The question presented in the certiorari petitions is narrow," the Chief would have held that the Supremacy Clause never provides a general basis for pursuing injunctive relief against a preempted state statute if the federal statute creating the conflict cannot be privately enforced. In his words,
[I]f Congress does not intend for a statute to supplya cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause itself must provide one. . . . Indeed, to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right ofaction and 42 U. S. C. § 1983 jurisprudence. We have emphasized that “where the text and structure of a statute provide no indication that Congress intends to createnew individual rights, there is no basis for a private suit,whether under § 1983 or under an implied right of action.” This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simplyby invoking a right of action under the Supremacy Clause to the exact same effect.
The problem with the Chief's analysis is that the case law to which he alludes is almost entirely about claims for damages, not injunctive relief. Whatever else one might say about the Court's jurisprudence in that regard, it has not yet incorporated the rules of Alexander v. Sandoval and Gonzaga University v. Doe into claims for injunctive relief under the Supremacy Clause, and for good reason. If one could only obtain an injunction against a state officer for violations of federal statutes that are themselves privately enforceable, that would turn the doctrine of Ex parte Young on its head--converting it from a cause of action into nothing more than the answer to why defendant officers wouldn't have a sovereign immunity defense to a suit directly under the relevant federal statute.
To be fair, the Chief doesn't ignore this point. Instead, he tackles it head-on:
Those cases [under Ex parte Young] . . . present quite different questions involving “the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law.” Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. ___, ___ (2011) (KENNEDY, J., concurring) (slip op., at 1). Nothing of that sort is at issue here; the respondents are not subject to or threatened with any enforcement proceeding like the one in Ex parte Young. They simply seek a private cause of action Congress chose not to provide.
Before today, only Justice Kennedy (among the current Justices) had ever argued that Ex parte Young was so confined--that is, to "the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law." In the very case in which he said it last Term, Justice Scalia (who joined the Chief's dissent today) reiterated for the majority that Ex parte Young only requires a "straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."
Reasonable people may disagree about whether Ex parte Young should be so limited; the critical point is that, before today, the Court has never so limited it--and so by ducking, the majority avoided a potentially momentous holding on the availability vel non of injunctive relief to enforce federal statutes. Thus, in trying to come up with a pithy summary for today's result, the best I can do (notwithstanding George Carlin's well-taken objection to the term, i.e., "oh look--they nearly missed!") is that, thanks to Justice Kennedy, this was a Supremacy Clause near-miss...
Tuesday, January 03, 2012
"Teaching How We Teach" Panel @ AALS
For those coming to our neck of the woods for AALS this week, I thought I'd flag what I hope will be a particuarly useful program for newer prawfs that, due to its late-Saturday program placement, might otherwise have gone overlooked. The program is titled "Teaching How We Teach: Lessons from the Classroom for New Law Professors," and features five fantastic teachers (Rachel Croskery-Roberts from Irvine; Ken Dau-Schmidt from Indiana; Mary Anne Franks from Miami; my colleague Cynthia Jones from American; and Gowri Ramachandran from Southwestern), all of whom will offer some reflections and advice on a wide-ranging of teaching issues--from how to choose a casebook/structure a syllabus to how to deal with obstreperous students; manage conversations about politically sensitive and/or emotionally fraught topics; and a host of other difficult issues for which we're not always as prepared as we'd like to be.
The program is sponsored by the AALS Section on New Law Professors and co-sponsored by the Section on Teaching Methods, and will take place Saturday, January 7, from 3:30 to 5:15 p.m. in Delaware Suite B on the lobby level of the Marriott Wardman Park...
Tuesday, December 27, 2011
"Better Know a Justice" in 1L Constitutional Law?
Although I've been blogging more frequently as of late over @ Lawfare, I still hope to have relevant non-national security things to chat about here @ Prawfs. Further to that, among the tweaks I'm considering for my first-year Constitutional Law course this spring is an idea I'd "borrow" from Stephen Colbert--apropos his "Better Know a District" segments on The Colbert Report, I thought it might be fun to begin each of my 39 class sessions by giving the students background and biographical information on a specific Supreme Court Justice who's particularly relevant to that day's class (via Powerpoint--duh!). So, on Youngstown day, we'd begin with Justice Jackson, and so on... With a couple of doubles or triples and no repeats, I figure I can get through about 45-50 of the 110 different people to serve on the Court (Kagan is #112, but the official list counts Rutledge and Hughes twice.)
There are obvious shortcomings to this approach, including that the focus will invariably skew toward the modern Court (neither Justice Lamar makes the cut under my current draft); that every day can't be Justice O'Connor or Justice Kennedy day; that choosing a Justice on one side of a particular case versus the other might skew the students' perception of the decision; that focusing on Supreme Court Justices (as opposed to lower-court judges, Presidents, or key legislators) further entrenches the already overly court-centric view 1Ls take away from con law, and so on. So far, I haven't been convinced that any of these are dealbreakers compared to the payout on the students' part--which to my mind will include a deeper appreciation for the individual personalities who figure in our study of constitutional law, and, I hope, a greater ability to see the jurisprudence of individual Justices evolve over time. But I'm curious for additional reactions. Do folks think this is a decent idea? A really stupid idea? Both?
Monday, November 21, 2011
The Military Jurisdiction Case of the Century Gets One Step Closer...
About six weeks ago, I blogged about the Army Court of Criminal Appeals' July decision in United States v. Ali, upholding (for the first time) the constitutionality of the 2006 amendment to Article 2(a)(10) of the Uniform Code of Military Justice, which authorizes the trial by court-martial of civilian contractors accompanying armed forces in the field during "contingency operations." As I wrote then (and have described in print elsewhere), there's a fairly powerful line of Supreme Court cases suggesting a bright constitutional line (at least other than during times of declared war) between military jurisdiction over servicemembers and military jurisdiction over civilians, no matter what their affiliation with the military happens to be. The current Court certainly may not be inclined to hew to that line (indeed, the relevant precedents are all at least a half-century old), but given the extent to which the role of contractors in contingency operations only continues to grow, it's a close (and important) enough question that it seems likely to grab the Justices' attention...
Indeed, the biggest obstacle to the Supreme Court eventually resolving this issue was the Court of Appeals for the Armed Forces (CAAF), which had the discretion not to review the ACCA's decision. And under 28 U.S.C. 1259(4), the Supreme Court lacks certiorari jurisdiction over a decision by CAAF not to review a particular case. So if CAAF denied review, the only remaining option would have been for Ali collaterally to attack his conviction in a habeas petition in federal district court.
That obstacle is now out of the way. With a big hat tip to CAAFlog, it appears that CAAF last Friday granted review in Ali, and the first of three issues presented is the constitutional elephant in the room, i.e., "[W]hether the military judge erred in ruling that the court had jurisdiction to try [Ali] and thereby violated the Due Process Clause of the Fifth and Sixth Amendments by refusing to dismiss the charges and specifications." It's hard to predict how CAAF will rule on this question, but either way it will be worth watching--both in its own right and as a preview of the distinctly possible Supreme Court review to follow.
Sunday, November 13, 2011
Hearty congrats to Steve Vladeck on his marriage last night to Karen Shafrir. We're all very excited for you both, Steve and Karen!
Tuesday, November 08, 2011
The Timing of Seven-Sky
Without saying anything about the merits of today's D.C. Circuit decision in Seven-Sky v. Holder, the most interesting thing may be the timing: Today is the D.C. Circuit's last decision day before Thursday--when the Justices are apparently discussing Florida v. HHS in Conference.
Coincidence, I'm sure...
Friday, November 04, 2011
Bobby Chesney on Me on the NDAA
Over at Lawfare, Bobby Chesney has a very thoughtful (and thorough) reply to my ACSblog guest-post from earlier this week about the troubling detention provisions of the National Defense Authorization Act--and why section 1031 (clarifying the government's detention authority) is at least as important as the far-more-discussed sections 1032 (mandatory military custody) and 1033 (bar on transfers). I think it's safe to boil Bobby's reply down to three points: (1) that the concern I raised about the NDAA applying to a whole host of terrorist organizations far afield of al Qaeda and its close affiliates only applies if courts misread the text of the NDAA; (2) that the concern I raised about authorizing detention beyond what's been recognized under IHL depends on assumptions about IHL that may not be true; and (3) that the language concerning detention of U.S. citizens may well do exactly what I said it does, but then the question should be whether or not that's a good thing.
On the third point, I think we're on the same page: let's all just admit that 1031(d) would authorize the detention of U.S. citizens and LPRs within the territorial United States, and fight about whether we're okay with that. Something tells me that members of Congress might react differently if this understanding were clearer on the face of the statute. And on the first point, I think it boils down to how comfortable one is with ambiguity. Bobby may have more faith than I do that the D.C. district court (and, given its track record, the D.C. Circuit) will read this language narrowly...
But the key to me is the second point: whether authorizing detention based on "direct support" would somehow contravene IHL.Bobby is surely right that IHL is not a model of clarity on this point, even if we could agree whether ordinary rules governing international armed conflicts (IAC) apply to the non-international armed conflict (NIAC) with al Qaeda et al. (and good luck getting folks to agree on that point). But to me there is a world of difference between detention based on membership and that based on what Bobby calls "non-member support." And although the Administration and the D.C. Circuit have consistently blurred this distinction, the district courts haven't. Consider, in that vein, this discussion by Judge Bates in Hamlily, in specific regard to the so-called "March 13" definition:
although this concept may be attractive from a policy perspective, and indeed could be the basis for the development of future domestic legislation or international law, there is at this time no justification-in the AUMF or the law of war-for such an approach. The law of war permits detention of individuals who were “part of” one of the organizations targeted by the AUMF. That is the outer limit of the Executive's detention authority as stated in the AUMF and consistent with the law of war. Detaining an individual who “substantially supports” such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war.
Bates went on to explain that support might help to establish de facto membership; the key, though, was that support by itself wasn't enough.
To be fair, the D.C. Circuit has shown nowhere near this kind of nuance in its discussion of the detention standard. Then again, as Bobby himself points out, there hasn't been a case in the D.C. Circuit to date in which the court rested the government's detention authority on support, rather than membership--so all those discussions are dicta. Bobby may well be right that "the new statute if adopted would resolve the issue legislatively rather than judicially. That could be a feature rather than a bug of 1031(b)(2), however, in terms of which bodies ideally should be responsible for deciding whom the US should categorize as detainable." Whereas reasonable people may disagree about the institutional competence issue, my point is only that, whether one agrees or disagrees with the wisdom of such a legislative development, it's a very big deal--and worth more attention than it has thus far received.
Wednesday, November 02, 2011
The War on Terrorism and the National Defense Authorization Act (NDAA)
I had been staying pretty quiet in blog-land on the significance of the detainee provisions in the Senate Armed Services Committee's version of the National Defense Authorization Act, but Sunday's Washington Post editorial was a bridge too far. Indeed, as I explain in more detail in this ACSblog guest post, although much of the public attention to the NDAA has been, like the Post's, to sections 1032 and 1033 (mandatory military detention and spending restrictions on transfers), perhaps the most significant provision is section 1031, which "updates" the scope of the government's detention authority (and, in my view, dramatically expands it both at home and overseas). The Post nevertheless called this provision "wise." Suffice it to say, I disagree.
Friday, October 21, 2011
The Passive-Aggressive Virtues
As part of a series of papers reflecting on the post-September 11 decade (and in light of next month's fiftieth anniversary of Bickel's Harvard Law Review Foreword), the Columbia Law Review Sidebar has posted an essay by me titled "The Passive-Aggressive Virtues."
I'll leave the details to readers, but the gist of the paper is that the Supreme Court's approach to terrorism cases over the past decade has not been activist or passive as a general matter, but has instead featured repeated judicial intervention when institutional self-preservation was at issue, but withdrawal (bordering on abdication) in cases more purely raising the "merits" of particular counterterrorism policies. Although the paper doesn't take an absolute bottom line on whether this is a "good" or "bad" thing, I do try to suggest ways in which this kind of passive-aggressive judicial decisionmaking may not have as salutary an effect as most might think--and ways in which it might not be better than the (perhaps equally unappealing) alternatives.
As always, I'd welcome reactions/comments/etc.
Tuesday, October 11, 2011
Courts-Martial for Contractors: U.S. v. Ali and the Path to the Supreme Court
A couple of years ago, I blogged about a habeas petition seeking collaterally to bar the trial by court-martial of a civilian contractor for his alleged role in destroying by arson a Predator drone in Iraq. The government dropped that case, and so the habeas petition went away...
But the underlying issue--the constitutionality of a 2006 amendment to the Uniform Code of Military Justice that authorizes the trial by court-martial of "persons serving with or accompanying an armed force in the field" during a "contingency operation" (in addition to the preexisting jurisdiction during "a time of declared war")--is back again, thanks to the federal government's trial by court-martial of Alaa Mohammad Ali (a civilian contractor) for offenses committed in Iraq. Ali pled guilty while preserving his right to appeal of the constitutionality of the military's assertion of jurisdiction. In July, the Army Court of Criminal Appeals (ACCA) affirmed, resting on the conclusion that:
[W]e can discern no manner in which the exercise of military jurisdiction over a non-U.S. citizen who knowingly accepted employment supporting U.S. forces in a combat zone during a declared contingency operation would be fundamentally hostile to either military or civilian due process, nor have we found any Supreme Court precedent that specifically precludes the exercise of such jurisdiction.
My own view is that the ACCA's opinion is dancing on the head of a series of pins given the Supreme Court's near-total repudiation of military jurisdiction over non-servicemembers in a host of decisions culminating with the January 18, 1960 trilogy--Kinsella v. United States ex rel. Singleton, Grisham v. Hagen, and McElroy v. United States ex rel. Guagliardo. That doesn't mean, of course, that this Supreme Court will feel the same way; only that I suspect this case is headed that way, and in a hurry...
Of course, the Court of Appeals for the Armed Forces would have to grant review first, since the Supreme Court lacks certiorari jurisdiction over the military courts in cases in which CAAF denies review, but one constitutional problem at a time!
Justice Stevens and State Sovereign Immunity
Lots of folks have been writing about Justice Stevens' new memoir, Five Chiefs, and the various interesting tidbits and/or omissions in/from the book. One point I haven't seen addressed yet, though, is the book's near-obsession with the topic of state sovereign immunity, especially in its summary of the Rehnquist Court and the Epilogue. It's quite striking to me, for example, that in a Term that included Wal-Mart, Concepcion, al-Kidd, Bennett, Winn, and a host of other cases (i.e., the October 2010 Term), Justice Stevens singled out VOPA v. Stewart in the book's Epilogue as perhaps the most significant decision the Court handed down last year.
Don't get me wrong--I've written quite a bit on why Stewart was and is such an important case; I just never thought anyone else agreed with me! More to the point, I wonder if others reading the book had the same reaction that I did--and have any explanation for why, of all the cases with which to end such a story, Justice Stevens decided to go with a little tiny case about the ability of state-created agencies to pursue relief under Ex parte Young? I have my own thoughts, including that, from Justice Stevens' perspective, state sovereign immunity might be one of the more vulnerable bodies of Rehnquist Court jurisprudence going forward (see, e.g., his majority opinion in Central Virginia Community College v. Katz), but am curious if I'm alone on this one...
Saturday, August 06, 2011
The HHS Position in Independent Living Center
A little over two months ago, I wrote about the Obama Administration's eye-opening amicus brief in support of the Petitioner in Douglas v. Independent Living Center of Southern California, in which the Supreme Court is set to hear oral argument on October 3. Briefly, the issue in Douglas is whether private parties may pursue an injunction under the Supremacy Clause against a California state law that, by cutting Medicaid reimbursement rates 10% across-the-board, arguably violates the "equal access" provision of the federal Medicaid Act [42 U.S.C. § 1396a(a)(30)(A)]. Although the SG had initially recommended denying cert., in part on the ground that there was no circuit split on the cause-of-action question, once the Court took the case, the SG sided with California on the merits, arguing that private enforcement of the equal access provision would (1) be inconsistent with the statutory scheme; and (2) interfere with the Secretary of HHS's discretion.
As I noted at the time, this was a particularly curious argument for the SG to make given that (1) no HHS officials were on the merits brief (even though the relevant folks had been on the brief recommending a denial of certiorari); and (2) HHS has historically supported, rather than opposed, private enforcement. Indeed, a New York Times article had suggested that the merits brief was the culmination of a rather nasty behind-the-scenes battle between the Justice Department, HHS, and the White House--one in which HHS lost.
For better or worse, the HHS position now has a voice, in the form of an amicus brief that I filed yesterday on behalf of a dozen former senior HHS officials, including Secretaries Califano and Shalala. As we explain in the brief, partly because HHS has always understood private enforcement to be part of the Medicaid scheme, the Department has neither the financial, legal, logistical, nor political wherewithal comprehensively to enforce § 30(A) against the states. Moreover, leaving aside the fact that HHS has never made such a claim, the argument that private enforcement interferes with the Secretary's discretion appears to neglect settled principles of administrative law.
As with any amicus brief, I very much doubt that it will have any bearing on the Court's view of the merits. At the very least, though, it hopefully provides a worthwhile rejoinder to the rather surprising arguments advanced by the Justice Department...
Tuesday, July 19, 2011
The D.C. Circuit Amends Omar -- And Makes it Worse?!?
Last month, I wrote a pair of posts about the D.C. Circuit's June 21 opinion in Omar v. McHugh, which held, for the first time, that Congress has the power to completely divest the federal courts of jurisdiction over a potentially meritorious habeas petition in a case where the detainee was protected by the Suspension Clause. Suffice it to say, I was somewhat critical at the time of Judge Kavanaugh's reasoning for the majority.
In a rather curious move, the Omar panel has sua sponte amended the original opinion (here's the order; here's the new opinion). And while it's not at all clear what prompted these amendments (perhaps an effort on the majority's part to weaken the case for en banc review?), I think it's safe to say that the changes are far more than semantic. Below the fold, I try to explain both why the changes matter, and why, in my view, they make this opinion that much more indefensible.First, here's the one paragraph that the majority added to its original opinion (it begins on page 20 of the new slip opinion; the emphasis is mine):
None of this means that the Executive Branch may detain or transfer Americans or individuals in U.S. territory at will, without any judicial review of the positive legal authority for the detention or transfer. In light of the Constitution's guarantee of habeas corpus, Congress cannot deny an American citizen or detainee in U.S. territory the ability to contest the positive legal authority (and in some situations, also the factual basis) for his detention or transfer unless Congress suspends the writ because of rebellion or invasion. See Boumediene v. Bush, 553 U.S. 723, 785–86 (2008). In the earlier iteration of this litigation, Omar raised the habeas argument that the Government lacks constitutional or statutory authority to transfer him to Iraqi authorities. The Supreme Court addressed Omar's argument and determined that the Executive Branch had the affirmative authority to transfer Omar. See Munaf v. Geren, 553 U.S. 674, 704 (2008). (For wartime military transfers, Article II and the relevant Authorization to Use Military Force generally give the Executive legal authority to transfer.) Here, we are addressing Omar's separate argument, not about the positive legal authority or factual basis for his transfer, but rather about conditions in the receiving country. The Supreme Court addressed that argument as well in Munaf, and it concluded that a right to judicial review of conditions in the receiving country has not traditionally been part of the habeas or due process inquiry with respect to transfers. See id. at 700–03. Therefore, Congress need not give transferees such as Omar a right to judicial review of conditions in the receiving country.
Although the above paragraph clearly reflects an attempt by the majority to dilute the impact of its original holding, it nevertheless suffers from three critical flaws, each of which Judge Griffith points out in his (amended) concurrence in the judgment: First, as I explained in more detail in one of my earlier posts, it just doesn't follow that the absence of prior examples of meritorious claims proves that there was no right to judicial review--it could just as easily mean, as it does here, that there was no statutory basis for relief in such cases prior to the enactment of the FARR Act. Thus, once more, the Omar majority conflates the jurisdiction of the federal courts with the detainee's entitlement to relief.
Second, it's just ridiculous to suggest, as the majority appears to here, that its analysis of Congress's power follows from Munaf. The Omar majority cites Munaf, but once again fails to consider its critical limiting passage (from the cited pages; emphasis again is mine; citations omitted):
Petitioners briefly argue that their claims of potential torture may not be readily dismissed on the basis of these principles because the FARR Act prohibits transfer when torture may result. Neither petitioner asserted a FARR Act claim in his petition for habeas, and the Act was not raised in any of the certiorari filings before this Court. Even in their merits brief in this Court, the habeas petitioners hardly discuss the issue. The Government treats the issue in kind. Under such circumstances we will not consider the question.
Third, and more fundamentally, rather than ameliorate the damage done by the original opinion, the amended opinion introduces a new, novel, and ultimately unconvincing distinction into habeas jurisprudence: the difference between the government's "positive legal authority" for detention/transfer and a statutory right forbidding detention/transfer. Thus, the majority suggests, Munaf affirmed the existence of the former, and Congress properly took away jurisdiction over the latter.
I think Judge Griffith has it exactly right that "the difference [is] no more than 'empty semantics.'" Worse than that, it completely ignores the extent to which habeas, in requiring the government to show that it has legal authority to continue to detain the prisoner, necessarily encompasses claims both that the government lacks authority, and that whatever authority the government has is overridden by the prisoner's individual rights. Detention can be unlawful either because the government lacks the authority to detain (as in many of the Guantanamo cases), or because otherwise lawful detention is nevertheless in violation of the defendant's constitutional, statutory, or treaty-based rights. Even if one didn't think this were true as a matter of constitutional law, it's written right into the habeas statute in 28 U.S.C. § 2241(c)(3).
In short, then, if the majority's goal was to mitigate the damage of its original opinion, my own view is that they failed--and rather forcefully, at that. When Omar merely stood for the proposition that Congress, without suspending habeas, lawfully may divest the federal courts of jurisdiction over an existing substantive claim for relief simply because it could never have created that ground for relief in the first place, it was inconsistent with Boumediene and wrong in its own right. But now, standing for the distinct proposition that the Suspension Clause protects challenges to the government's "positive legal authority" for detention, but not claims founded on the individual rights of the prisoner, Omar isn't just wrong and/or inconsistent with precedent; it's utterly incoherent.
Wednesday, July 13, 2011
Proxy Detention and the Habeas Statute
Bobby's post from yesterday about the potential habeas petition arising out of the CIA's "proxy" detention of non-citizens in Somalia raises a host of interesting jurisdictional questions, some of which I've addressed previously. For now, though, let me offer one slight quibble--not with the larger thesis of Bobby's post, but with one of the analytical threads contained therein:
Bobby assumes that whether Abu Ali (the 2004 D.D.C. decision sustaining jurisdiction in a proxy detention case) applies to non-citizens held outside the territorial United States turns on the scope of the Suspension Clause in light of Boumediene. I'm not so sure that's true. Congress in the Military Commissions Act of 2006 did not take away statutory habeas jurisdiction over all non-citizens held outside the United States, but rather only over petitions by "an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (emphasis added). In other words, the MCA only withdraws habeas jurisdiction over individuals who are formally detained by the United States under the auspices of the AUMF. Based on what we know about the Somalia detention operation, there seems to be at least an argument that this is not such a case...
Ultimately, for non-citizens who are detained outside the United States for other purposes (whatever they may be), the MCA simply doesn't apply, and instead the question is the same as that which the Court addressed in Rasul, i.e., whether the federal courts may exercise jurisdiction over a proper respondent.
Thursday, June 23, 2011
Omar and the Suspension Clause, Part II
The more I re-read Judge Kavanaugh's majority opinion in Omar v. McHugh (holding that the REAL ID Act does not violate the Suspension Clause to the extent that it bars individuals not in removal proceedings from challenging their transfer to another country on the ground that they credibly fear torture or other forms of mistreatment there), the more baffled I am by the court's "historical" analysis of the Suspension Clause.
As I tried to explain yesterday, the majority's analysis rests on a faulty premise--i.e., that if Congress has the power to repeal the underlying basis for habeas relief (here, the Foreign Affairs Reform and Restructuring Act of 1998, or "FARRA"), it must have the "lesser" power to take away federal habeas jurisdiction to provide such relief (even as it leaves FARRA intact). This view, which recived strongest sanction in Justice Scalia's dissent in St. Cyr, just doesn't hold up to scrutiny (as such, and unsurprisingly, it wasn't invoked by either Scalia or Chief Justice Roberts in their separate dissents in Boumediene).
But back of Judge Kavanaugh's analytical misstep is a deeper (and more troubling) mischaracterization of the role that history (and precedent) should play in Suspension Clause analysis.Consider this passage from the majority opinion:
In habeas cases, we seek guidance from history “addressing the specific question before us.” Here, the history is clear on the specific question before us. Historically, a would-be transferee such as Omar has possessed no right to judicial review of conditions the transferee might face in another country. As the Court said in Munaf: “Habeas corpus has been held not to be a valid means of inquiry into the treatment the relator is anticipated to receive in the requesting state.” Instead, as Munaf explained, history demonstrates that “it is for the political branches, not the Judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”
First, although the quotation from Munaf is accurate, it doesn't bear the weight Judge Kavanaugh would place upon it. (If it did, the Supreme Court's decision would've been law-of-the-case, and all of this would've been moot). Instead, Munaf went out of its way to reserve the precise issue decided in Omar--whether a properly pleaded FARRA claim provided a basis for habeas relief not otherwise provided by the Due Process Clause or any other federal law. [See especially footnote 6 of Chief Justice Roberts' opinion and all of Justice Souter's concurrence.]
Second, and related, this reasoning is a perversion of what Boumediene meant when it said that "history" matters in understanding the Suspension Clause. It simply isn't the case that "a would-be transferee such as Omar has possessed no right to judicial review of conditions the transferee might face in another country." It's just that, prior to FARRA's implementation of the UN Convention Against Torture, nothing other than the Due Process Clause would have provided a constraint on the government's power to transfer/extradite/remove an individual who credibly feared mistreatment where he was being sent. In other words, Judge Kavanaugh assumes that, because there were no meritorious cases prior to FARRA, there must not have been a right to judicial review.
But this assumption fails both as matter of history and logic. Taking the history first, it is now well-established (by Paul Halliday, among others, as I've explained) that writs of habeas corpus could be (and often were) used to challenge potentially unlawful transfers in pre-revolutionary England. Thus, at the time of the Founding, it was an accepted part of habeas practice in England to use the writ to challenge transfers to potentially unlawful overseas custody. And so if the Suspension Clause protects, "at a minimum," the writ as it existed in 1789, it should protect that... This says nothing of whether the overseas custody actually is unlawful, but that's the whole point--it's a merits question, not jurisdictional.
And even if the history didn't bear this out (or didn't matter), the majority's logic still doesn't follow. Assuming arguendo that there was no right to judicial review before FARRA (on the ground that there was no basis for relief), it doesn't follow that there is therefore no right after FARRA (which now provides a basis for relief). This is why Omar is at once so important and so wrong: Prior cases (see, e.g., Johnson v. Eisentrager) have erroneously conflated, or been read to conflate, the lack of a merits claim with the lack of habeas. But Omar is the first appellate opinion with which I am familiar in which a U.S. court has held that, where the Suspension Clause applies, it is not violated by an Act of Congress that takes away habeas jurisdiction and fails to provide any alternative remedy, even while leaving the underlying claim for substantive relief intact. Eisentrager never said as much. Munaf never said as much. Kiyemba II never said as much.
The short of it is that Omar calls into question any reading of the Suspension Clause as protecting any claim for relief not grounded expressly in the Constitution. That's a terrifying prospect, and it is just plain wrong.
Update: It's probably worth noting that the en banc Ninth Circuit case I mentioned yesterday that could raise a similar constitutional issue--Trinidad y Garcia v. Benov--is being argued later this morning in Pasadena...
Wednesday, June 22, 2011
The D.C. Circuit Vitiates the Suspension Clause (in a Non-Guantanamo Case, To Boot)
I've written before (both here and more formally) about the post-Boumediene Guantanamo litigation in the D.C. Circuit, and the extent to which I've been at least somewhat unconvinced by the charge that the Court of Appeals has been engaged in a massive conspiracy to subvert the Supreme Court's 2008 decision, recognizing that the Guantanamo detainees are entitled to pursue meaningful habeas relief in the federal courts.
That was until yesterday.
Now, and in a non-Guantanamo case, to boot, a divided panel of the D.C. Circuit has effectively held that Congress has the power to divest the federal courts of jurisdiction over a claim that an individual's detention is unlawful. As I explain below the fold, the majority's efforts to disitnguish Boumediene notwithstanding, yesterday's decision in Omar v. McHugh creates a far more serious tension with that Supreme Court decision than anything the Court of Appeals has held thus far vis-a-vis Guantanamo, and in a manner that was completely unecessary to reach the same holding. Put simply, if the D.C. Circuit is right, then Boumediene is a pretty weak precedent, indeed.First, the background. Omar is the decision on remand in one-half of the case that the Supreme Court decided on the same day as Boumediene, Munaf v. Geren. In Munaf, the Supreme Court held that the federal courts have jurisdiction to entertain habeas petitions brought by U.S. citizens detained in Iraq under the auspices of the "Multinational Force-Iraq," who sought to block their transfer to Iraqi custody on the ground that they credibly feared torture or other forms of persecution if transferred. The Court then went on to reject the detainees' claims on the merits, holding that, because the government averred that the detainees did not credibly fear mistreatment if transferred, and because the detainees had not offered evidence contraverting the government's assertions, they had no entitlement to habeas relief. As Chief Justice Roberts noted in a key footnote, "We hold that these habeas petitions raise no claim for relief under the FARR Act and express no opinion on whether Munaf and Omar may be permitted to amend their respective pleadings to raise such a claim on remand." (emphasis added).
On remand, Omar properly raised his claim under the "FARR" (Foreign Affairs Reform and Restructuring) Act, i.e., that his transfer to Iraqi custody would violate the principle of non-refoulment enmeshed within the U.N. Convention Against Torture and implemented in FARRA. But the district court held that jurisdiction was foreclosed by the REAL ID Act of 2005, part of which (8 U.S.C. § 1252(a)(4)) provides that,
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture.
Thus, the REAL ID Act effectively precludes FARRA-based habeas relief, and, as a result, any remedy for FARRA-based claims where the detainee is not subject to (or able to utilize) immigration removal proceedings. In so holding, the district court concluded that the D.C. Circuit had already resolved this question in Kiyemba II. And yet, even if this is true, Kiyemba II nowhere confronted or passed on the argument that, so construed, the REAL ID Act would violate the Suspension Clause.
That's where yesterday's decision comes in. Writing for himself and Judge Ginsburg, Judge Kavanaugh specifically concluded that the REAL ID Act does not violate the Suspension Clause, even though it cuts off a detainee's access to any judicial remedy for allegedly unlawful detention. In particular, Kavanaugh's opinion picks up the analytical thread underlying Justice Scalia's dissent in INS v. St. Cyr, i.e., that Congress can take away habeas jurisdiction over claims for which Congress did not have to provide a forum in the first place. Thus, because Congress didn't have to enact FARRA, Congress could, by statute, remove the power of the federal courts over such claims. As Judge Kavanaugh wrote,
even if the REAL ID Act took away a statutory right that the FARR Act had previously granted, that scenario poses no constitutional problem. Congress does not amend the Constitution, or alter the scope of the constitutional writ of habeas corpus, whenever it amends a statutory right that might be available in a habeas case. Congress thus remains generally free to undo a statute that applies in habeas cases, just as it can undo other statutory rights that it has created.
This is both true and beside the point, because the REAL ID Act did not actually repeal FARRA. It simply takes away jurisdiction while leaving the underlying substantive law intact. So unless FARRA never created a right not to be transferred in violation of CAT in the first place (which would be an odd result for a statute specifically designed to implement CAT), this analysis conflates Congress's power over subconstitutional rights with Congress's power over federal jurisdiction. Yes, Congress could simply repeal FARRA, which would unquestionably deprive Omar of any claim for relief. But so long as FARRA remains on the books, Congress cannot take away federal habeas jurisdiction over such a claim without providing an adequate alternative remedy. That's Boumediene: The Suspension Clause, where it applies, protects a detainee's access to a federal court for a habeas remedy (or an adequate alternative) for any colorable claim that his detention is unlawful.
In his concurrence in the judgment, Judge Griffith (reprising parts of his dissent in Kiyemba II) totally gets this distinction, noting at the ouset that:
When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful. Because Congress may not deprive Omar of access to the courts without suspending the writ or repealing the statutory basis for his claim, neither of which it has done here, we must consider his argument on the merits.
Griffith nevertheless concurs, because he believes Omar loses on the merits--that FARRA wasn't meant to cover cases in which the detainee is already in the country his transfer to which he is seeking to block. [I'll save thoughts on that issue for another time.] The relevant point for present purposes is that, unless the majority disagrees with Griffith's analysis on the merits (and I have a hard time believing that they would), this would have been a far less controversial (or damaging) ground on which to affirm the district court. That is, narrower grounds were easily available... Instead, the majority went out of its way to hold that REAL ID doesn't violate the Suspension Clause, based on an understanding of the Suspension Clause rejected by the majority in Boumediene.
More to the point, this decision, if left intact, will have teeth. The en banc Ninth Circuit is currently considering a similar issue in Trinidad y Garcia v. Benov, an extradition case. And there are dozens of immigration cases every year in which petitioners are not in a position to raise CAT claims in a petition for review, and therefore run into REAL ID's bar on pursuing CAT relief in habeas petitions. But even beyond REAL ID, if Congress can take away habeas jurisdiction over any claim for relief founded on a statute or treaty, Boumediene is virtually a dead-letter. After all, none of the Guantanamo detainees have constitutional claims as their central argument against the legality of their detention, and in any event, habeas is about unlawful detention, not unconstitutional detention.
Tuesday, June 14, 2011
The District of the District of Columbia??
This has to go down as the silliest distraction in the history of legal writing (and boy if that isn't saying something), but for entirely insignificant reasons, I've recently had to rehash one of the stupidest debates we ever had during my law journal days--what the proper name / citation form of the D.C. district court should be. And blogging isn't worth it if I can't share the silliness of my distractions, right?
Let's start with the obvious: The court refers to itself as the "United States District Court for the District of Columbia." In other words, the U.S. District Court for a place, i.e., the District of Columbia. But the South Carolina district court isn't the "United States District Court for South Carolina"; rather, it's the "United States District Court for the District of South Carolina," "D.S.C." in Bluebook terms. So, in the name of the D.C. district court, the second word "District" is serving two distinct purposes--one to refer to the judicial district, and one to refer to part of the name of the judicial district. Indeed, the Bluebook itself recognizes this, since the jurisdictional abbreviation is "D.D.C.," not "D.C." And 28 U.S.C. § 132(a) provides that "There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district."
So should the D.C. federal district court instead be named (and known as) the "U.S. District Court for the [Judicial] District of [Place] the District of Columbia"? Or should we drop the first "D." from the jurisdictional identifier for the (properly named) U.S. District Court for the District of Columbia? The fate of humanity itself may rest in the balance...
Friday, June 03, 2011
Call for Papers: AALS Section on Federal Courts
The AALS Section on Federal Courts is pleased to announce a call for papers in conjunction with the 2012 Annual Meeting of the Association of American Law Schools, to be held January 4–8, 2012, in Washington, D.C.
The topic of the section program at the 2012 Annual Meeting (Saturday, January 7, 1:30–3:15 p.m.) is “War, Terrorism, and the Federal Courts Ten Years After 9/11.” To that end, the panel will focus on the unique issues that federal courts have confronted during (and relating to) the conflict against al Qaeda and related terrorist groups, and how that body of jurisprudence has—and may yet—affect the role of the federal courts more generally going forward. Papers submitted in connection with the call should focus on this topic, or any specific aspect thereof, and should be between 15,000 and 30,000 words, including footnotes. [More details below the fold...]
One paper will be selected from the call, and will be published in Volume 61 of the American University Law Review, alongside contributions from the invited panelists—including Curtis Bradley (Duke), Judith Resnik (Yale), Steve Vladeck (American), and the Honorable Brett Kavanaugh (U.S. Court of Appeals for the D.C. Circuit). In addition, the author of the selected paper will be invited to participate in the Federal Courts section panel at the 2012 Annual Meeting.
To be considered, papers must be submitted via e-mail to Steve Vladeck, American University Washington College of Law (firstname.lastname@example.org). All full-time faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.
The deadline for submission is 11:59 p.m. (EDT) on Monday, August 29, 2011. Papers will be selected after review by an ad hoc committee composed of members of the Executive Committee of the AALS Section on Federal Courts. The selected author will be notified by Monday, October 3, 2011, and will be responsible for paying their annual meeting registration fee and travel expenses.
Wednesday, June 01, 2011
Enforcing Medicaid's Equal Access Provision: The Obama Administration's Disappointing Amicus Brief in Independent Living Center
Over the weekend, the New York Times ran a thorough story summarizing an amicus brief the Obama Administration filed last week in Douglas v. Independent Living Center, the trio of monumental Medicaid cases that the Supreme Court is set to hear next Term. As the article notes, the Administration's brief sides quite forcefully with the State of California (the Petitioner in Douglas), and against the Ninth Circuit, which had held that the Supremacy Clause itself provides a cause of action for an injunction to enforce one of the most important provisions of the Medicaid Act--the so-called "equal access" provision. That provision [42 U.S.C. 1396a(a)(30)(A)] requires states to set reimbursement rates that are "sufficient to enlist enough providers so that care and services are available under [Medicaid] at least to the extent that such care and services are available to the general population in the geographic area." Here, plaintiffs challenged a series of drastic across-the-board reductions in Medicaid reimbursement rates by California, allegedly in violation of the Medicaid Act's "equal access" mandate.
In short, the government's brief argues that there is no express cause of action to enforce the "equal access" provision (true); that the Supreme Court has never squarely held that the Supremacy Clause provides a cause of action for injunctive relief to enforce a federal statute against an allegedly preempted state law (debatable at best); and that such a cause of action in this case would "not be compatible with the nature of the statutory scheme."
Skipping over the second issue, it's the Obama Administration's position on the third issue that is what I find so disappointing both legally and politically.
The heart of the matter comes in the following passage on page 26 of the brief:
If private parties who lack a statutory cause of action could simply style their suit as a preemption action to enjoin state officials from enforcing a state law that was adopted to implement the State’s undertakings pursuant to the program, the result would be in considerable tension with Congress’s decision not to confer a private right of action to enforce state compliance.
Legally, I'm not sure this even follows. Congress's decision not to confer a private right of action (1) came in 1965, before the Court's contemporary jurisprudence disfavoring implied remedies; (2) could have reflected the understanding that the only defendants in suits to enforce the equal access provision would be state officers, who could be sued (as was then clear thanks to Monroe v. Pape) under Section 1983; and (3) could just as easily have reflected a wariness of damages remedies for violation of the equal access provision, without any intent to foreclose equitable relief.
And in any event, the government's brief conveniently neglects to note that, at least until the Supreme Court's decision in Gonzaga University v. Doe, every circuit to reach the issue had concluded that the equal access provision could be enforced through Section 1983--holdings that necessarily relied on the conclusion that Congress did mean for the equal access provision to be privately enforceable. To be sure, Gonzaga changes that calculus dramatically (as post-Gonzaga courts have recognized vis-a-vis the equal access provision, which is why Independent Living Center is a Supremacy Clause case), but if the question for Supremacy Clause purposes is simply whether there is tension with Congress's decision not to confer a private right of action, it seems to me that the pre-Gonzaga cases suggest quite forcefully that the answer is no. In point of fact, private enforcement of the equal access provision was the central means by which that provision was enforced for the first 37 years that it was on the books, an understanding that was both shared and repeatedly endorsed by the Department of Health and Human Services (and its predecessor, the Department of Health, Education, and Welfare), at least until Gonzaga.
Thus, the implicit argument that the Administration relies upon, but does not articulate, is that Gonzaga did not just change the standard for determining whether federal statutes are enforceabile via Section 1983; it also necessarily changed the standard for determining whether federal statutes can be enforced against state laws that they preempt via the Supremacy Clause. That would be an incredibly significant (and, in my view, disturbing) result, yet it comes through only between the lines.
Separate from the brief's rather conclusory legal analysis, it's the politics of the brief that I find completely baffling. The same Administration, when asked for its views on whether certiorari should be granted, recommended a denial--because of both the unique facts of this case, and the absence of a circuit split on the central (cause of action) issue.[Curiously--or perhaps tellingly--that brief was joined by various attorneys from the Department of Health & Human Services, including the Acting General Counsel, whereas the merits brief was not... one can only speculate, but it seems entirely possible that the merits brief is the outcome of an internal battle that HHS lost, which would be particularly ironic as I note below].
To be sure, the CVSG brief avoided taking a firm position on the underlying enforceability question, but if the Administration was willing to leave the Ninth Circuit decision intact at that point, what makes it necessary to go after it at the merits stage, as opposed to sitting this one out?
The implicit answer the brief gives is fairly typical for implied cause-of-action cases, i.e., that federal enforcement actions are theoretically available, and that private enforcement would produce potentially inconsistent judicial interpretations of the equal access provision that could interfere with the Secretary of Health and Human Services' authority to administer the Medicaid Act. [Here's the irony.] Of course, that position should have supported a grant, rather than a denial, in the invitation brief. Clearly, something changed behind the scenes, and the merits brief thereby represents a shift in policy that, if endorsed by the Supreme Court, would make it all-but-impossible to enforce the equal access mandate--one of the most important statutory requirements of the Medicaid program.
This may seem like a lot of huffing and puffing over a hypertechnical Federal Courts issue about an even more hypertechnical statute. But as Professor Abby Moncrieff has put it,
enforcing § 30(A)’s requirements is necessary to ensure that Medicaid programs abide by their legal commitment to provide healthcare to the poor. The states must have flexibility in their rate-setting methodologies, but they are statutorily required—and should be judicially required—to pay a reasonable price for the services they buy.
Why would this Administration all of a sudden decide that it disagrees?
Update: A helpful reader pointed out that it's standard practice for the government to file on the merits in any case in which the Court seeks its views at the cert. stage. I thought that was only true when the government recommends a grant, but that at least explains why the Administration filed. It still does nothing to explain why this was the result...
Tuesday, May 24, 2011
The Obama Administration and the NDAA
I've been rather critical of the Obama Administration, both on this blog and elsewhere, for what might best be described as a frustrating degree of timidity when it comes to some of the key national security debates of the day, particularly where detainee issues are concerned. Thus, although I had been troubled by the Administration's silence on the "new AUMF" buried within the House version of the National Defense Authorization Act, and the restrictions on the President's power to transfer detainees either stateside or to third-party countries, it hadn't exactly been surprising...
With that in mind, I was quite pleased by the discussion of the detainee provisions in the NDAA contained within the Statement of Administration Policy released today. Quoting from it in relevant part:
The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion. The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees. Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests. . . . The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts - a powerful tool that must remain an available option. . . . If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President's senior advisors would recommend a veto.
Kudos to the Administration for finally taking a public stand on these issues--not to mention the right one, in my book. For more, see Bobby Chesney's insightful take over at Lawfare.
Monday, May 16, 2011
Is the AUMF Broke? (And If Not, Why Fix It?)
There's been a lot of discussion over the past few weeks in D.C. about the "Chairman's Markup" to the National Defense Authorization Act, especially the provisions that would "reaffirm" the conflict that Congress initially authorized in the September 18, 2001 Authorization for Use of Military Force (AUMF)--i.e., the use of military force against those groups that were responsible for the September 11 attacks.
What is surprising to me about the current debate is just how little detail one hears from supporters of the "new" AUMF for why it is a necessary piece of legislation, and for what authority the new legislation would provide that the existing statute does not. To my knowledge, the Obama Administration has not publicly suggested that it needs any additional authority from Congress in the context of ongoing military counterterrorism operations, and for better or worse, the case law coming out of the D.C. Circuit supports a fairly expansive interpretation of at least the detention authority provided by the 2001 statute, largely vitiating any argument that broader detention authority is the justification for the new bill. So if it's not about detention, and if the Administration doesn't think it's necessary, what gives?
The irony is that it's folks like yours truly who are discontent with the status quo, in large part because I don't think the AUMF can fairly be read to sweep as broadly as the D.C. Circuit has held that it does. But are there those who think the D.C. Circuit is largely getting these issues right who still think we need a new statute? If so, why? That, to me, is the key question here, and I continue to be floored by just how little supporters of the new bill have addressed it...
Wednesday, May 11, 2011
The D.C. Circuit After Boumediene
Speaking of self-promotion... Those who have been following the Guantanamo litigation and/or the ongoing debate over the "new AUMF" language in the NDAA are probably well-acquanited with the debate over whether the D.C. Circuit in its post-Boumediene jurisprudence has attempted to undermine the Supreme Court's June 2008 decision, which held that the Guantanamo detainees are entitled to the full protections of the Suspension Clause.
For those who would like to read more, or who could use (what I hope is) a useful capsule summary of the jurisprudence to date, I have a new paper on SSRN (part of a sympoisum for the Seton Hall Law Review) that analyzes the bulk of the D.C. Circuit's post-Boumediene Guantanamo case law in light of this charge. Not to ruin the punch-line, but the essay concludes that the hostility to Boumediene (and, as significantly, Hamdi) can be ascribed to no more than four of the D.C. Circuit's judges. The rest of the Court of Appeals has generally hewed to a more moderate line, and has even rebuffed their outlier colleagues in a few significant cases. That's not to commend the results in all of the court's decisions, many of which I find quite disturbing (some deeply so). Rather, it's to suggest that, for the most part, the core of the D.C. Circuit is acting consistently with what little guidance the Supreme Court has offered--a point we would do well to keep in mind in the context of the very live debate over whether statutory reform of the AUMF is necessary...
Monday, April 25, 2011
The Real Reason Why K&S Dumped DOMA?
I haven't seen all of the stories on today's news re: King & Spaulding, former SG Paul Clement, and the DOMA litigation, but I wonder if we might be missing part of why this case became increasingly unpopular within K&S... Apparently, the following clause was in the contract between the House of Representatives and the firm:
[P]artners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.
Whether or not there are legal problems with enforcing such a provision against the many employees of King & Spaulding, isn't it likely that internal opposition within the firm in light of this proviso might have had just as much to do with today's news as the external, political pressure?
Update: This is what I get for not staying glued to my computer. See Huffington Post for more on the contract issues... But if this meme is already out there, how come it's not part of any of today's coverage?
Update, Part II: See also Metro Weekly's coverage here.
Monday, April 04, 2011
What Is a "Tenth Amendment" Claim?
Over at The Cockle Bur, Timothy Sandefur has a helpful post summarizing the interesting amicus brief that he filed last week in support of Virginia's challenge to the individual mandate in the Fourth Circuit, largely responding to (and attacking) arguments that we made in our amicus brief in support of the government in the same case. [In short, we argued that Virginia doesn't have standing; Tim's brief argues that it does.]
I'll leave it to interested readers to decide whose brief is more convincing, but there's one fundamental analytical disagreement that I think dominates the differences in our position: The heart of the brief in support of Virgina's standing is the premise that, wholly distinct from parens patriae standing (which settled precedent denies to states in suits against the federal government), states suffer their own freestanding Tenth Amendment injury whenever Congress passes a statute in excess of its enumerated powers. Indeed, as the brief rightly notes, indviduals generally lack standing to enforce the Tenth Amendment, except perhaps as a defense in criminal prosecutions (depending on what the Supreme Court does with the Bond case it has this Term). It should logically follow that, where individuals lack standing, states don't...
Here's where I think we're talking past each other: I had always thought that there's a meaningful analytical difference, at least these days, between a "pure" Tenth Amendment claim and a claim that Congress has exceeded its Article I powers. Thus, cases like New York v. United States and Printz are examples of the former, where Congress is injuring states directly by commandeering their legislative/executive policy. Congress might have the enumerated power to enact the legislation in the abstract, but the Tenth Amendment injury is in how the law applies to the states. In contrast, cases like Lopez and Morrison aren't "Tenth Amendment" cases, since Congress isn't directly telling the states to do (or not do) anything. As Justice Douglas explained in 1941, in this context, "The amendment states but a truism that all is retained which has not been surrendered." Yes, the Tenth Amendment presumably reserves power to the states, but--in marked contrast to the commandeering cases--it doesn't inform the analysis of whether Congress has exceeded its authority. It should follow, if Massachusetts v. Mellon and its progeny mean anything, that states generally lack standing to challenge the constitutionality of legislation in this latter category, but have standing to challenge the constitutionality of legislation in the former, commandeering context.
If that distinction is correct, then I'm hard-pressed to see how the state challenges to the individual mandate fall on the pro-standing side of that line--or, if they do, how any challenge to congressional power doesn't. The short of the argument, as I understand it, is that Congress is preventing the states from enforcing their own laws on the subject, but that's always true where there's a conflict between state and federal law. Congress isn't "commandeering" states to do anything. And unlike in New York and Printz, the federal statute is directed at private, rather than state, conduct. If this is nevertheless a "Tenth Amendment" claim, what isn't?
Monday, March 07, 2011
Does Virginia Have Standing to Challenge the Individual Mandate?
In an amicus brief (that I co-authored) filed today in the Fourth Circuit in Virginia ex rel. Cuccinelli v. Sebelius, a group of pretty distinguished Federal Courts professors says "no," and rather emphatically at that.
The brief itself lays out the argument in far clearer detail, but the short version is that states can't (and shouldn't be able to) overcome the bar on parens patriae standing against the federal government merely by passing a state law that provokes a conflict with the allegedly unconstitutional federal law. Because the constitutionality of the individual mandate in no way turns on laws like the Virginia Health Care Freedom Act, Virginia is, in fact, simply suing to vindicate the rights of its citizens -- something that decades of settled precedent bars it from doing, and (as we explain) for good reason.
This doesn't mean that the various challenges to the individual mandate won't (or shouldn't) go forward; it just means that, when they do, private parties, and not states, should be the plaintiffs...
Monday, February 28, 2011
An Al-Kidd Reality Check: The Myth of Non-Statutory "National Security" Detention
In cross-posts at Volokh and SCOTUSblog, Orin Kerr takes issue with the government’s litigation strategy in Ashcroft v. al-Kidd, the material witness/Fourth Amendment/qualified immunity appeal in which the Supreme Court is set to hear argument on Wednesday. Orin’s argument is worth reading in full, but I will focus on his principal point -- that, when it comes to the substantive Fourth Amendment question in the case, "DOJ is making an argument with one arm tied behind its back.” I don’t think that’s right. Instead, as I explain below the fold, DOJ does not, in fact, have available the alternative “national security detention” argument that Orin believes it is avoiding.
As Orin notes, DOJ's merits-based argument is argument is that because it has available a criminal law enforcement justification for detaining someone under the material witness statute, it does not violate the Fourth Amendment if the government’s “real” reason for the detention is instead a national security objective, such as interrogating the detainee to discover if he has information about possible future national security threats.
What Orin finds curious is that DOJ is not arguing that the national security justification is itself an independent ground for the detention. As Orin puts it, “DOJ never makes the argument that its use of the material witness statute for national security reasons is permitted by its national security detention powers. . . . DOJ is arguing that the Court shouldn’t even look at its non-law-enforcement purpose and therefore shouldn’t get into its national security powers. . . ." This choice puzzles Orin. He writes that “[i]t’s not clear to me why DOJ has limited its argument in this way. But . . . [t]he Justices presumably will want to know . . . what DOJ thinks its national security powers are.” What this overlooks is that the government is probably forgoing such an argument because it does not have any such “national security” power to detain a U.S. citizen for over two weeks (as happened to al-Kidd). Indeed, I think it's fairly clear that neither the Constitution nor any federal statute affords the government such authority, at least in this case.
For starters, federal law specifically forbids it. The so-called Non-Detention Act, 18 U.S.C. § 4001(a), provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” In Hamdi, the government argued that this prohibition does not apply to military detention. The Court did not specifically rule on that question, but as I wrote way back when, its earlier decision in Howe v. Smith had held that “[t]his argument . . . fails to give adequate weight to the plain language of § 4001(a) proscribing detention of any kind by the United States, absent a congressional grant of authority to detain.”
To be sure, as Hamdi itself suggests, the Non-Detention Act is merely a baseline restriction: It does not prevent Congress from authorizing “national security detention.” (Indeed, the Hamdi Court went on to hold that Hamdi’s detention was authorized by the 2001 Authorization for Use of Military Force.) The material witness statute might well provide such authority in some cases – the government’s argument is that it did so in the al-Kidd case. Orin’s puzzlement, however, is why DOJ is not also citing a stand-alone “national security” basis for al-Kidd's detention, rather than falling back on the material witness statute.
The reason for DOJ's reticence on that score is that Congress has not afforded the Executive such an authority. Section 412 of the USA PATRIOT Act does authorize the detention of non-citizens suspected of terrorism-related activities for up to seven days, before the detainee must either be (1) charged with a crime; (2) placed in removal proceedings; or (3) released. But that authority would not help in al-Kidd, both because he is a citizen and because his detention more than doubled the seven-day statutory limit. Moreover, as Orin himself notes, DOJ urged Congress during the debate over the PATRIOT Act to enact a broader statute authorizing national security detentions that might cover the case here, but that “proposal proved controversial and was never passed.”
It might be argued instead that the AUMF authorizes the very “national security detention” Orin contemplates. It is very much an open question whether the AUMF does (and constitutionally could) authorize the detention of individuals, especially U.S. persons, who are apprehended within the United States and alleged to be enemy forces, among the persons covered by the terms of the AUMF. That was the question raised in both the Padilla (U.S. citizen) and al-Marri (lawfully resident non-citizen) cases, which the Supreme Court did not resolve because the government returned the two detainees to criminal custody. But whatever the government's national security detention authority might be as to members of enemy forces captured inside the United States, the AUMF cannot be of assistance here; the government is not alleging that al-Kidd is part of enemy forces, or otherwise covered in any way by the terms of the AUMF.
Nor am I aware of any extant statutory authority for long-term “national security detention” beyond what the material witness statute, the USA PATRIOT Act (for non-citizens), and the AUMF provide. Together with the prohibition of the Non-Detention Act, this absence of statutory authority explains why the government’s sole argument for its authority to detain al-Kidd is based on the material witness statute. To be fair, If I’m reading his posts correctly, Orin appears to think that the Fourth Amendment itself might provide the government with the authority that the U.S. Code does not for a long-term “national security” detention of a U.S. citizen. But I had always understood the Fourth Amendment as only limiting the government’s power to seize persons – not as creating such powers.
In short, then, it seems to me that the Justice Department isn’t forgoing any important arguments here. Leaving aside whether or not former Attorney General Ashcroft is entitled to qualified immunity, the underlying merits issue is whether the material witness statute authorized al-Kidd’s detention -- and, if it did, whether that detention nevertheless violated the Fourth Amendment if the government’s motives were pretextual in the way al-Kidd alleges (allegations that must be taken as true at this stage of the litigation). It's still an important and tricky case to be sure, but I just don't see Orin's dog that didn't bark...
Update: Orin's posted a thoughtful reply, for which I'm quite thankful. I agree with Orin that Virginia v. Moore appears to stand for the (in my view, not entirely obvious) proposition that the mere fact that a seizure is ultra vires is not conclusive of its reasonableness for Fourth Amendment purposes. At the risk of drawing out this exchange longer than is merited, Orin's response provokes two additional thoughts on my end:
First, crystallizing the argument as Orin has only reinforces to me the reasons why DOJ didn't make it part of their argument on the merits before the Supreme Court. After all, to make the argument that al-Kidd's seizure was reasonable on national security grounds, DOJ would have to concede that it had nothing whatsoever to do with the material witness statute, since it's hardly an alternative theory that fits the same facts. So framed, the government would be litigating the case on even weaker terrain--conceding a statutory violation and resting everything on Moore, where the issue was the legality of the initial arrest, rather than the subsequent detention.
Second, and related, I can't imagine the Justices will see the issue here as settled by Moore. It's one thing to argue that certain seizures are consistent with the Fourth Amendment regardless of whether they're authorized by statute, but that's in the short term (as in Moore). It's another thing entirely to think that the Fourth Amendment would also tolerate continuing detention beyond the initial seizure in the face of contrary statutory authority -- especially where, as here, a federal statute specifically forbids precisely that category of detention (i.e., detention without statutory authority). Of course, one response is that it's difficult to draw the line between what the Fourth Amendment might tolerate initially and what it won't abide in the long term, but isn't that the entire point of the 48-hour rule articulated by the Court in County of Riverside? I'm not the criminal procedure expert that Orin is, but it strikes me that Moore would be irreconcilable with County of Riverside if it stood for the proposition that the Fourth Amendment tolerates detention past 48 hours in the absence of other, statutory authority.
Given that, although I appreciate what Orin's arguing, I still can't see how the wiser course for DOJ would have been to argue for "national security" detention.
Saturday, February 19, 2011
Judge Randolph Pulls Another Fast One--But Will Anyone Notice?
Tuesday's decision by a D.C. Circuit panel (Henderson, Williams, Randolph) to vacate and remand the grant of habeas relief in Hatim v. Gates is hardly surprising. As the per curiam opinion notes, there have been a number of D.C. Circuit decisions since the district court ordered Hatim's release that call at least some of the trial court's analysis into question. So reconsideration in light of these intervening decisions seems, at first blush, totally uncontroversial.
Buried in the three-page order, however, is a critically important--and dangerously wrong--holding that will likely prejudice Hatim's case on remand (and any number of cases to follow). Here's the relevant language:
The district court ruled that the military could detain only individuals who were “part of” al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that “those who purposefully and materially support” al-Qaida or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how. As the district court stated in issuing the stay, Al-Bihani “calls into question” a “key determination[ ]” upon which the order rested.
Just to be clear, the key here is the notion that anyone who "purposefully and materially support[s]" al Qaeda or the Taliban can be detained indefinitely, whether or not they're in any way affiliated with either group, and whether or not they come anywhere near the definition of a "belligerent" under international humanitarian law. (After all, the famous "little old lady in Switzerland" who gives money to certain Islamic charities may be materially supporting al Qaeda...)
Suffice it to say, it's an amazingly broad--and momentous--holding. So what? Well, (1) the Obama Administration has never affirmatively argued in a habeas case that the scope of the AUMF should be understood by reference to the MCA; (2) such a conclusion was, at best, dicta in Al-Bihani (which is why the district court in Hatim said Al-Bihani only "call[ed] into question" Hatim's argument, rather than foreclosed it); and (3) there is clear and compelling evidence that, dicta or not, Al-Bihani's analysis on this issue was just plain wrong.
More on (2) and (3) below the fold...
Al-Bihani and the Dangerous Conflation of the AUMF and the MCA
The heart of the Hatim panel's "purposeful and material support" holding is borrowed from this discussion by Judge Brown for herself and Judge Kavanaugh in Al-Bihani (my emphasis added):
The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” . . . The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government's detention authority logically covers a category of persons no narrower than is covered by its military commission authority. . . . [F]or this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.
In short, Al-Bihani read the definition of who can be tried under the MCA as expanding, albeit sub silentio, the scope of detention authority under the AUMF.
There are two problems with this view: First, it doesn't follow logically that those who can lawfully be tried by a military commission are a subset of those who can be lawfully detained without trial. Under IHL, these are two very different categories of detainees, whose status presents two distinct sets of questions. Second, even if that conclusion could follow as a matter of logic, it is abundantly clear from the MCA's legislative history that Congress in no way meant or intended to impact the substantive scope of the AUMF through its definition of who could be tried by a military commission. Quite to the contrary--the House Armed Services Committee's report accompanying the MCA expressly notes that the divergence between the AUMF and MCA definitions reflected the committee's disagreement that "the United States must be engaged in armed conflict to try an alien unlawful enemy combatant engaged in hostilities against the United States." That is, the difference was a deliberate choice to reflect the different standards and rules applicable to military trials vs. noncriminal detention under IHL. Thus, it's not only a logical fallacy to read the MCA as expanding the scope of the AUMF's detention authority; it runs directly counter to the intent of those who wrote the latter statute.
The AUMF/MCA Conflation as Dicta
Judge Brown's logical fallacy notwithstanding, one might still conclude that the Hatim panel was bound to follow this discussion. Except that it's clear that this point was dicta in Al-Bihani, since the panel there concluded that Al-Bihani was clearly "part of" al Qaeda, mooting the question of whether he could be detained simply because he provided "purposeful and material support" thereto.
Nor should it surprise anyone that Al-Bihani is full of inconvenient dicta. Judge Williams' concurrence in that case made exactly that point. And the D.C. Circuit all-but went en banc to overrule (or, at least, dicta-ize) one of the panel's other holdings--i.e., that the laws of war have no bearing on the scope of the government's detention authority under the AUMF.
Thus, Hatim was not merely "following" Al-Bihani; it converted wholly unnecessary (and woefully incorrect) dicta into a holding, and without anything in the way of analysis. Moreover (and this is key), Judge Brown's reliance on the MCA in Al-Bihani came only after she rejected the Obama Administration's argument that the scope of the AUMF should be understood by reference to international law--that is, the conflation of the AUMF and the MCA necessarily followed upon her rejection of international law as the relevant constraint, a position that was itself dismissed by the rest of the D.C. Circuit in the non-en banc manuevering last August. So to reaffirm that logic (as the Hatim panel did) after its necessary predicate (Al-Bihani's holding vis-a-vis international law) had been vitiated is even less convincing than the original holding might have been on its face.
So this leads to my real question: As it becomes increasingly clear that a small but vocal minority of the D.C. Circuit (Judges Brown, Kavanaugh, and Randolph, in particular) will apparently find any way in any case to adopt holdings that (1) go beyond even what the government is asking for in these cases (see, e.g., Randolph's lament about the standard of review in Al-Adahi); and (2) are indefensible as a matter of law and logic, is anyone else on that court going to notice?
Don't get me wrong--the answer in Hatim's case may end up being the same. And the other judges of the D.C. Circuit may well reach the same results in these cases as their more aggressive colleagues. But my gripe is not about the merits; it's about the indifferent attitude that the rest of the court seems to have toward the analysis being deployed by these three jurists, and the damage that is being done to the substantive and procedural law governing detention going forward. The more these decisions pile up, the more a pattern is developing in which panels that include one or more of Judges Brown, Kavanaugh, or Randolph find seemingly uncontroversial ways to reach sweeping new holdings that have dramatic effects on the shape of the law. And if the Supreme Court isn't in a position to say anything about it, that leaves the other seven active judges of the D.C. Circuit. Let's just hope they're paying attention...
Update: A helpful reader pointed me to even more specific language in the 2009 MCA's "conference" report (of which I was unaware), which provides that the statute's definition of who may be tried "is included for the purpose of establishing persons subject to trial by military commission in accordance with section 948c, of title 10, United States Code, and is not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of war or for any other purpose." If this doesn't prove how wrong Al-Bihani is on this point (and how wrong Hatim is to adopt it sans analysis), I'm not sure what will.
Even worse, imagine the implications of a world where anyone who "purposefully and materially supports" al Qaeda could be detained indefinitely at Guantanamo or elsewhere... I dare say that there's a pretty good reason why neither the Obama Administration nor any judge (other than Brown, Kavanaugh, and now Randolph) has ever argued for a standard so completely divorced from the laws of war.
Friday, February 18, 2011
The New Habeas Revisionism: Shameless Plug (and Overdue Thanks)
In the Friday afternoon shameless self-promotion department, my essay reviewing Paul Halliday's Habeas Corpus: From England to Empire is finally out, in the February 2011 issue of the Harvard Law Review. Because HLR's (silly!) policy wouldn't allow me to say the following in my author footnote, let me take this opportunity to express my heartfelt thanks to Zach Schauf, Jaime Eagan, and David Caldwell, who made this about as productive and enjoyable an editing experience as I've ever experienced--and whose substantive contributions to the final product cannot be overstated.