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.
Monday, January 24, 2011
The Most Inexplicable One-Year Delay in Appellate History?
With a tip of the hat to Dwight Sullivan at CAAFlog and to Bobby Chesney at Lawfare, let me be at least the third person to note today's decisions by several judges of the Court of Military Commission Review to recuse from deciding the pending appeals in Hamdan and al-Bahlul, both of which were argued to that court a year ago this Friday.
I don't have any quibble with the reasons given by Chief Judge O'Toole for recusing. If anything, his is an admirable view of the need for these proceedings to be as hallowed and conflict-free as possible. Rather, my exasperation, like Bobby's, is with why it has taken so long for things to progress to this point. There are currently no other cases pending before the CMCR. There is no question that the party that loses in the CMCR will appeal (as of right) to the D.C. Circuit. And, under 10 U.S.C. 950g(d), the D.C. Circuit "may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the [CMCR], and shall take action only with respect to matters of law, including the sufficiency of the evidence to support the verdict." In other words, the CMCR's decisions in these cases, whatever they are, won't have much of an effect on the D.C. Circuit, which would review legal issues de novo in any event. The only thing that matters is some decision from which the losing party can properly take an appeal.
As I wrote last year in an article surveying the merits of the jurisdictional issues, "It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders." Last week's news that the Administration is considering re-commencing the commissions adds only further urgency to the timely resolution of these questions. And yet, until and unless the CMCR decides these questions in Hamdan and al-Bahlul, and appeals are taken to the D.C. Circuit (and, perhaps, to the Supreme Court), those questions will remain unanswered.
Suffice it to say, the time has long since passed for the CMCR, however constituted, to do its job--and get out of the way.
Wednesday, January 12, 2011
On Counting to Five (Without Justice Kagan) in the Guantanamo Cases
Throughout Justice Kagan's confirmation process, a lot of virtual ink was spilled on the recusal issue, and the extent to which her prior service as Solicitor General would preclude her from participating in a not-insignificant percentage of the Court's docket. The consensus that seemed to emerge was that (1) these concerns were overblown; and (2) even if they weren't, recusal would be at most a short-term issue, and would not generally interfere with either the Court's workload or its ability to continue to play its assigned role within our legal system.
In at least one area, though, it seems that Justice Kagan's recusals may well be of massive, long-term significance: the continuing habeas litigation arising out of Guantanamo. At last count, there are currently eight different petitions for certiorari before the Court in Guantanamo cases, which between them raise a battery of issues going to (1) the power of the federal courts to effectuate the release of detainees who have prevailed in their habeas cases; (2) the power of the federal courts to provide notice and a hearing before a detainee is involuntarily transferred to their home country or somewhere else; and (3) the proper procedural, evidentiary, and substantive standards to govern disposition of the merits of these cases. And in light of yesterday's denial of rehearing en banc by the D.C. Circuit in Abdah v. Obama (over three dissents), it seems increasingly clear that there is no majority of active D.C. Circuit judges who wish to revisit what their court has already done in these areas.
The underlying question is whether, in its jurisprudence, the D.C. Circuit has actively subverted or otherwise undermined the Supreme Court's 2008 decision in Boumediene. My own view, as I've suggested before, is that it has, but I accept that I may be in the minority. What cannot be gainsaid, though, is that this is an important question, and one on which the Supreme Court's views might be rather helpful. So assume, for the sake of argument, that the D.C. Circuit has in fact misapplied or otherwise misread Boumediene. Then what?
Enter, Justice Kagan. So far as I understand, in each of the eight Guantanamo cases where any action by the Court has been necessary, such action has included a notation that she is recused. On the (potentially incorrect) assumption that she is recused from all matters Guantanamo, that creates a difficult math problem: Four of the current Justices clearly think that Boumediene was wrongly decided, given that they dissented in that case (and rather sharply, at that). As such, to whatever extent the D.C. Circuit is undermining Boumediene, they may well not object. There are at most four Justices on the other side, who both (1) think Boumediene was rightly decided; and (2) might conclude that a number of these D.C. Circuit decisions are misapplications thereof. And there would be no reason for those four to vote to grant certiorari if it were clear that there was no fifth vote on the merits.
What this means for practical purposes, is that until and unless one of the Boumediene dissenters is willing to even consider chastising the D.C. Circuit for refusing to follow a decision from which they themselves dissented, the D.C. Circuit will necessarily get to have the last word(s) in the Guantanamo habeas litigation. Perhaps Chief Justice Roberts will have his own Dickerson moment?
Tuesday, January 04, 2011
Thursday's Con Law Panels @ AALS
Thanks to the labor strife and a host of other issues, my sense is that there have been a number of last-minute (i.e., post-program printing) changes to the composition of panels at this week's AALS Annual Meeting. One in particular that I wanted to flag (at least partially for selfish reasons) is Thursday's Section on Constitutional Law session on "American Constitutionalism in Global Perspective." The session is actually two different panels -- one on "American Constitutionalism in International Perspective," and one on "American Constitutionalism in Comparative Perspective." The panels are devoted to the ongoing debate over just how much international/comparative law should affect American constitutionalism and constitutional interpretation, and I suspect both sets of discussions will be lively, to say the least.
The "International" panel includes Mike Ramsey from the University of San Diego, Michael Van Alstine from the University of Maryland, Carlos Vasquez from Georgetown, and yours truly, and is being moderated by Mark Graber from the University of Maryland. The "Comparative" panel includes Penelope Andrews from Valparaiso, Heinz Klug from Wisconsin, Vicki Jackson from Georgetown, Kim Lane Scheppele from Princeton, and Miguel Schor from Suffolk, and is being moderated by Garrett Epps from the University of Baltimore.
The session is scheduled to run from 2:00 to 5:00 on Thursday, in the Embarcadero Room on the third floor of the Parc 55. And I promise to say lots of nice things about Article I's Define and Punish Clause... (and then take them all back during the Prawfs/Co-Op Happy Hour later that night.)
Remember Jose Padilla? (Apparently, the Eleventh Circuit Doesn't...)
Bobby's post about the still-outstanding decisions of the Court of Military Commission Review in the Hamdan and al-Bahlul appeals reminded me of another important post-9/11 case that's still under submission -- the appeal by Jose Padilla and his co-defendants of their conviction in the U.S. District Court for the Southern District of Florida, and the government's cross-appeal of Padilla's (relatively lenient) sentence.
The appeal was argued before a three-judge panel of the Eleventh Circuit (Dubina, Barkett, Pryor) on January 13, 2010 -- that is, a year ago next Thursday. (See here for a contemporaneous media report on the argument.) Given the passage of time, it seems virtually certain that someone is dissenting. But who, and on which issues? This could matter quite a lot, since Padilla's arguments also go to some of the key issues in the civilian prosecution of Ahmed Ghailani -- and any subsequent potential civilian prosecution of a former "enemy combatant." And although a one-year delay is hardly exceptional in the Courts of Appeals, it does seem odd that such an important, high-profile, criminal appeal would take so long...
Monday, December 20, 2010
Constitutional Authority for Legislation in the 112th Congress (the House, Anyway)
Making the electronic rounds over the weekend was a proposed rules change by the incoming Republican leadership in the House, to require any new bill to include a statement identifying the particular source of constitutional authority for the substance of the legislation. In particular, the new language to Clause 7 of Rule XII would specify that:
A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution. The statement shall appear in a portion of the Record designated for that purpose and be made publicly available in electronic form by the Clerk.”
I haven't thought that hard about this rules change, but it strikes me as a fairly silly political trick that will be utterly devoid of legal significance. It's not just that Congress has never had to specifically identify the source of its power for legislation in the past; it's that, if memory serves, the courts have often upheld legislation based on powers other than the one (or two) most obvious / likely candidates, whether or not Congress identified that provision as a source of its power. Nevermind the separate but equally distinct possibility that a bill will be amended between introduction and passage to regulate based on different enumerated powers than those initially identified by the bill's sponsor...
Do folks disagree? That is, does anyone think that a court would strike down a federal law that is a valid exercise of Congress's constitutional authority on the ground that it's not a valid exercise of the power Congress thought (or "said") it was exercising? If not, is this federalism-inspired theater? Something more sinister?
Friday, December 17, 2010
Trifurcating the Espionage Act? Me on ACSblog on L'Affair Assange
Over at ACSblog, I have a guest post up about yesterday's House Judiciary Committee hearing on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks." In particular, I suggest that yesterday's hearing may have produced the conclusion that the true "answer" to the current problems with the Espionage Act is three different statutes--one for spies, one for government employees and contractors, and one for private citizens with no specific intent to benefit a foreign power. The devil is in the details, of course (especially for the third statute, which raises tons of First Amendment concerns), but my own view is that this would be a pretty good start...
Thursday, December 16, 2010
All Espionage Act, All the Time...
For those who haven't yet had their weekly fix of all-things WikiLeaks and the Espionage Act, I'll be testifying later this morning at a hearing before the full House Judiciary Committee on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks." The hearing is supposed to be covered live by C-SPAN3 starting at 10 a.m. (EST) (here), and the testimony should be up on the Committee's page by later today.
Given both the topic and the witness list, it promises to be an interesting discussion...
Wednesday, December 08, 2010
The Best One-Sentence Summary of Why the Espionage Act is a Mess
Apropos the continuing obsession with L'Affair Assange (and the various degrees of hysteria relating to the viewing of Wiki-leaked documents by ordinary people), I thought I'd post this quote, which comes from congressional testimony given in 1979 by Anthony A. Lapham, then the General Counsel of CIA. There's a lot more to say about how the Espionage Act might apply to WikiLeaks, but to get a sense of the problem raised by the Espionage Act's myriad ambiguities, here is the nutshell version:
On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.
I dare say, little has changed in the last 31 years.
Friday, December 03, 2010
Doe, Atamirzayeva, and Fallujah: When Stealth Overruling Produces Incoherent Doctrine
Thanks to the irreplaceable Bobby Chesney, I've had a chance to read through last month's decision by the Court of Federal Claims throwing out a takings claim (among others) by an Iraqi citizen whose house was occupied by the Marines (who razed a wall around the house) during the Battle of Fallujah in 2004. The opinion itself is worth a read, but, at least with respect to the takings claim, the gist of it is two-fold: (1) the takings claim is not justiciable because it arose in the context of active combat operations by the armed forces, and is therefore covered by the so-called "military necessity" doctrine; and (2) in the alternative, because the plaintiff is a non-citizen with no significant contacts to the United States, he lacks standing to enforce the Takings Clause against the United States.
In this post, I want to skip over the first holding, not because it isn't interesting or controversial, but because I think it follows from the precedents cited by Judge Miller (even if those precedents are themselves troubling, for reasons I've written about before). Rather, I want to focus on the second holding, i.e., that a non-citizen outside the territorial United States must have substantial contacts with the United States in order to have standing to enforce constitutional rights.
The standing holding isn't new--it follows (as the Court of Federal Claims explains) from a 2008 Federal Circuit decision, Atamirzayeva v. United States. Part of what makes Atamirzayeva so remarkable is that the court there articulated this "contacts" requirement, rather than simply hold that non-citizens outside the territorial United States cannot enforce the Takings Clause. The latter route was foreclosed by a 1953 Court of Claims decision, Turney v. United States, that had allowed such a claim to go forward. As the Federal Circuit (which is bound to follow pre-1982 Court of Claims decisions) explained in Atamirzayeva,
The Philippine corporation that was the claimant in Turney had three significant connections to the United States. First, the corporation had been formed by two United States citizens. Second, the corporation received its ownership interest in the surplus property by assignment from those United States citizens. Third, after liquidation of the corporation, a United States citizen was appointed as the liquidating trustee and the plaintiff in the Court of Claims action. Ms. Atamirzayeva, by contrast, has not pleaded any relationship, business or otherwise, with the United States. As pleaded, her only connections with the United States are that her cafeteria was adjacent to the U.S. Embassy and that embassy officials directed the seizure. Her relationship with the United States is therefore not analogous to the relationship between the claimant corporation and the United States in Turney.
Leaving aside the fact that, as the Federal Circuit itself recognized, "the court in Turney did not state that the plaintiff was required to demonstrate any connection with the United States," what's particularly distressing about Atamirzayeva is how it has since been understood, i.e., as requiring a showing of substantial contacts to the United States in order to have standing to enforce constitutional rights. Indeed, although the Atamirzayeva court did not itself use the word "standing," the Court of Federal Claims in Doe used it repeatedly, ultimately concluding that no standing exists because of the lack of contacts.
In other words, rather than go en banc and overrule Turney, the Federal Circuit in Atamirzayeva molded onto Turney a "standing" requirement that may render the original holding largely unenforceable (let alone other cases that have recognized limited circumstances in which constitutional provisions can be enforced by non-citizens outside the United States). If this isn't stealth overruling (to steal Barry Friedman's term), I'm not sure what is.
More than stealth overruling, though, this approach makes no doctrinal sense. It's black-letter law that, to make out a case for Article III standing, plaintiffs must show injury-in-fact, causation, and redressability. Unless Doe's claim is patently frivolous (and it's hard to see how it is--clearly, the Court of Federal Claims didn't think so), it seems that all three prongs are easily satisfied here. That Doe might lose on the merits (e.g., if the courts ultimately conclude that the Takings Clause doesn't apply to the property of non-citizens located outside the territorial United States) is beside the point in ascertaining whether he has standing to bring the suit in the first place. And if the Federal Circuit is increasingly moving toward a view of "standing" that turns on the merits of a plaintiff's claim, that could have enormous (and unintended) consequences in a wide run of cases. At the very least, it deflects attention from the true issue, which is when, if ever, the Constitution constrains the conduct of our government vis-a-vis non-citizens abroad.
Reasonable people will surely disagree on the answer to that question, but at least that's the right question, as opposed to the one articulated in Atamirzayeva and followed in Doe. And so, even if the result in Doe is correct (which it may well be, given the first holding and the fact that the standing discussion was in the alternative), the reasoning is yet further proof of the dangers of stealth overruling--that it sometimes produces new understandings of doctrine that are analytically incoherent, rather than taking the underlying question on its face.
Wednesday, December 01, 2010
VOPA v. Stewart and the Future of Ex parte Young
I've blogged before at some length about the issue presented in Virginia Office for Protection and Advocacy v. Stewart, a case that is scheduled to be argued before the Supreme Court later this (Wednesday) morning (and in which I co-authored amicus briefs in support of certiorari and in support of the Petitioner on the merits). In short, the question is whether a public agency created by a state pursuant to a federal Spending Clause statute may invoke the doctrine of Ex parte Young in suits for prospective relief against a state officer allegedly acting in violation of federal law--i.e., in circumstances in which the ability of a private agency to sue under Ex parte Young is unquestioned. The Fourth Circuit, in an opinion by Judge J. Harvie Wilkinson III, said no. [The unanimous en banc Seventh Circuit has since come out the other way.]
I won't reiterate the substantive arguments here. They're addressed at some length in my earlier post, and at even greater length in this contribution to the Charleston Law Review's Supreme Court Preview. Rather, I thought I'd take a brief moment to reflect on the implications of a decision affirming the Fourth Circuit and barring an Ex parte Young suit here. In particular, although Ex parte Young is often described (whether appropriately or not) as a "fiction," it has become a necessary fiction, providing useful balance between the sovereign immunity that the Supreme Court has read the Constitution to confer upon the states and the need to vindicate the supremacy of federal law as against state officers. As one of the more influential Federal Courts treatises puts it, the decision has proven “indispensable to the establishment of constitutional government and the rule of law.” And yet, that may be jeopardized if the decision below is upheld.
To be sure, the Court has recognized constraints on "EPY" over the years. Thus, Edelman v. Jordan controversially limited relief under Ex parte Young to claims for prospective, rather than retrospective, relief. And Pennhurst II held that Ex parte Young could not be used to pursue prospective relief against state officers for violations of state law. But with one sui generis (and largely marginalized) exception, the Court has otherwise emphasized, in Justice Scalia's words, that "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.”
That brings me to Stewart. To hold, as the Fourth Circuit did, that the identity of the plaintiff can sometimes factor into the availability a cause of action under Ex parte Young is to turn this "straightforward inquiry" on its head for reasons I've previously suggested, and to thereby potentially open the door to Young's demise. Yes, this is a unique case about a situation that doesn't arise very often (i.e., a state agency suing a state officer for violating a federal statute that the state agency is specifically empowered to enforce), but the underlying analytical premise of Ex parte Young doesn't admit of such considerations. Indeed, Young rests on the conclusion that state officers aren't in fact "the state" for Eleventh Amendment purposes when they continue to act in violation of federal law. One is hard-pressed to see how the legal status of the plaintiff meaningfully affects that analysis...
Moreover, even if one finds the Fourth Circuit's "intramural" concern persuasive, there is a serious floodgates problem; the conclusion that these kinds of case-specific circumstances do -- and should -- impact the availability vel non of relief necessarily opens the door to other considerations that might also factor in. Just for starters, these could include the nature of the federal right being enforced; the good (or bad) faith of the state officer; the potential availability of other remedies; and so on. Young's saving grace both practically and analytically is the simplicity of its core premise, and that's what's at stake later today.
Tuesday, November 23, 2010
Me on ACSblog on Ghailani
Although I'm a bit late to the party, I have a guest post up today over at ACSblog on last week's near-acquittal (that term itself is telling) in the Ghailani prosecution. The post isn't about the result so much as it's a critique of one of the more original responses thereto...
Friday, November 19, 2010
In Which the Miami Heat Are Shocked To Learn That They Play in Miami...
As a former Miami resident (let alone a former NBA fan), this is absolutely hilarious (and totally unsurprising).
Thursday, November 11, 2010
Must Second Amendment Originalism Account for the Militia Clauses?
Both because plenty of others are far more well-versed in the debates than I am and because my own views are a bit odd, I've largely stayed out of the Second Amendment conversations invigorated by Heller and McDonald, and the concomitant debates over originalism in constitutional interpretation. There's one place, though, where Second Amendment originalism does dovetail with some work I've done, and that's with regard to the "Militia Clauses" of Article I, which empower Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," and "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
To get to the point, here's my basic thought: As I've argued at some length elsewhere, the "militia" for constitutional purposes has basically become a dead-letter, thanks to both Congress and the Supreme Court. Congress has rendered the militia obsolete by (1) authorizing use of the federal regulars in circumstances where the Constitution appears to only contemplate use of the militia; and (2) setting up a "dual enlistment" system with the National Guard pursuant to which guardsmen are always federal regulars (and not militia) for constitutional purposes, even when they're only acting in their non-federal capacity. And the Supreme Court has sanctioned these developments in a series of lesser-known decisions, especially the Selective Draft Law Cases during World War I (which rejected an argument that draftees could only be used in the circumstances specified in the Calling Forth Clause) and Perpich v. Department of Defense in 1990 (which rejected a similar argument with regard to guardsmen).
If all of the above is true, i.e., if history (along with Congress and the courts) has rendered Article I's reliance upon the "militia" obsolete, should that have any bearing on whether we look to the original understanding of the militia in interpreting the Second Amendment? I recognize, as I must, that the ship has basically sailed. But isn't there at least an academic argument that where different provisions of the Constitution refer to the same entity, it makes little sense to apply different methodologies to interpreting those distinct provisions? Or, put another way, if Heller and McDonald are methodologically correct, might the Selective Draft Law Cases and Perpich be wrong?