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Sunday, March 11, 2018

May States Discriminate Against Federal Personnel by Selectively Withholding or Regulating State Property? A Reply to Ilya Somin

Ilya Somin has a thoughtful response to my earlier post about California's recent legislation imposing special duties or limits on people or facilities who assist the feds in implementing immigration law. I argued that the Supremacy clause normally prohibits states from undermining federal policy by discriminating against federal officials. Ilya replies that there is no such "anti-discrimination" principle implied by the Supremacy clause. As he puts it,

There is nothing to that effect in the text of the Constitution. The Supremacy Clause only requires the states (and others) to obey federal law. It does not require them to help enforce it or to give the federal government the same services and assistance available to private parties or to state and local officials. (emphasis added).
I emphasize that last sentence, not only because it highlights Ilya's and my disagreement but also because it shows how our dispute exists in Baseline Hell -- the place where disputants grasp at straws like the "direct" versus "indirect" distinction to distinguish invasions of rights from mere refusals to deal. Ilya takes the position that, just so long as state law does not "directly seize federal assets," state law can freely discriminate against federal officers enforcing federal law, even when the state law has the purpose and effect of impeding federal law enforcement. Precedent and common sense, however, suggest that this position cannot be right.

Start with precedent: SCOTUS has repeatedly that "State law may run afoul of the Supremacy Clause in two distinct ways: the law may regulate the Government directly or discriminate against it, or it may conflict with an affirmative command of Congress." North Dakota v. United States, 495 U.S. 423, 434 (1990) (emphasis added). SCOTUS, in short, expressly recognizes that, in addition to "direct" burdens, the Supremacy clause bars "discriminatory" burdens. Common sense requires this natural extension of intergovernmental immunity: Otherwise, the states could do "indirectly" what they are barred from doing "directly," which, as Ilya and I both know from innumerable other contexts, is the sort of thing that the so-called doctrine of unconstitutional conditions prohibits.

A few hypothetical problems, however, illustrate why one does not need a precedent to see that common sense requires a limit on states' power to impose "indirect" discriminatory burdens on the feds. Imagine that California barred federal employees from driving on state-owned roads: Is Ilya seriously contending that this selective prohibition would not violate the Supremacy clause? Or what about my original hypothetical: Suppose that state courthouses charged federal lawyers and law enforcement officers a special fee to enter state courthouses -- or barred them altogether from entering: Will Ilya bite the bullet by re-affirming his position that the Supremacy clause "does not require [states] to help enforce [federal law] or to give the federal government the same services and assistance available to private parties"? Of course not: these sorts of discriminatory refusals to provide the feds with services extended to all other parties practically amount to fines on the feds. If the "direct" fine is prohibited by the Supremacy clause, then the "indirect" discriminatory refusal to provide services must also be prohibited.

There is a larger point buried in this arcane dispute over the scope of Supremacy: Neither the good old "direct/indirect" distinction nor the good old "non-discrimination" principle can guide us out of Baseline Hell, because that infernal battlefield resist being navigated by merely doctrinal phrases. The point of my original post was to argue that there must be some limit on the Supremacy clause's non-discrimination principle in order to accommodate Printz. The point of Printz, after all, is to allow the states to resist federal policy priorities with which the states disagree, and such resistance requires some sorts of discriminatory refusal to lend state personnel and property to aid those priorities.

But which sorts of refusals are allowed? In Baseline Hell, there cannot be crisp answers to this question. Sure, we will invoke the usual hackneyed legal boilerplate -- "direct/indirect," "similarly situated," "proprietary/governmental," and so forth -- but beneath these phrases lies an inevitably raw policy decision: How much power should the states have to trip up the feds? Twenty years ago, I argued that the answer turns on the monopoly power of the states. Discriminatory refusal of the states to permit their police forces to enforce federal law should probably be fine, because the feds can hire a parallel federal force. Discriminatory refusal to let the feds use state roads, however, is too much state power: The feds cannot build a parallel road system on which to chase the bad guys (especially if the bad guys are driving on the other state-owned road system).

This sort of policy-laden distinction between a state's impeding federal policy "too much" by withholding state-owned resource for which there are insufficient substitutes and the states' impeding federal policy to a permissible degree is just too mushy and policy-laden ever to incorporate directly into the doctrine. The official Supremacy doctrine will, therefore, continue to limp along with conclusory phrases like "discrimination," "generally applicable laws," and so forth. That's how one feels one's way in the murky terrain of Baseline Hell: Pretend to "do law" with canned, empty magic words while legislating incrementally based on one's intuitions about what will make a federal system work.

In the context of these new California laws, the practicalities of the situation probably (IMHO) allow California to withhold the services of their law enforcement officers from detaining people for immigration offenses but do not allow California to harass private detention facilities by imposing additional inspections unjustified by any material difference between facilities that help the feds implement immigration laws and those that do not. (Ilya notes that immigration detainees aree frequently abused in custody. No doubt -- but more than ordinary inmates in California's wretched prison system? I doubt it). But I am not wedded to this ultimate legal conclusion.

The only point on which I will not budge is the general idea that the Supremacy clause contains some sort of "anti-discrimination" principle that imposes some sort of limit on California's power to withhold its property and personnel from the feds. That there is such a principle is simply well-settled law. That the principle's application in any given situation is a muddy mess is equally well-settled. Welcome to Baseline Hell!

Posted by Rick Hills on March 11, 2018 at 01:19 AM | Permalink


Ahhh...now I am getting a much better idea of what you mean by baseline hell Rick and I agree with it. Let me give you an example from psychology. Psychologist like to draw a distinction between "perception" and "judgment" with these concepts closely paralleling Kantian ideas of "receptivity" and "agency". Yet most, perhaps all, psychologists view these terms as just /ways of talking/ about the mind, as there is no genetic coding of either perception or judgment. The psychological faculties of perception and judgment don't form a line or a hierarchy, they form a circle.

From a psychological point of view take any descriptive dichotomy and reduce it far enough and then end result will always be "baseline hell" or what physicists call Schroedinger's Cat. Is it state action and or inaction? Open the box!

Posted by: James | Mar 12, 2018 7:41:49 PM

Marty writes:

“The point of Printz is *not* ‘to allow the states to resist federal policy priorities with which the states disagree.’ If it were, then McCulloch, Gibbons and 1,001 preemption decisions would be called into question....”. Instead, “What Printz prohibits, instead, is a federal dictate that state officials ‘administer or enforce a federal regulatory program" against their own residents’.... ”

As usual, Marty, the poor quality of my prose sabotaged my point. So I will try again:

The point of my post was to question the coherence of the distinction that you rightly note is key to Printz. As you say, Printz rests on an action/inaction distinction — or, as the doctrine would have it, the commandeering/preemption distinction. Contrary to your implication, however, Printz DOES entitle states to resist federal policy priorities through inaction. Printz entitles a state to say (for instance), “we hate your silly ban on the use and sale of marijuana, so we will instruct our cops NOT to enforce that ban, precisely for the purpose of making that ban less effective in our state.” As you note, the states may NOT pursue the end of resisting federal policies through “action” — for instance, by instructing their cops to write more traffic tickets for any person suspected of enforcing federal anti-marijuana laws. But the reason is not that there is some general ban on states’ impeding federal policy: there isn’t. There is just a ban on states’ impeding federal policy through “action.”

Any doctrine that lands on an action/inaction distinction lands one squarely in baseline hell, because the baseline defining “action” is left undefined and controversial. If the state says to its officers, “do NOT respond to ICE detainer requests,” has the state “acted” in a way that is implicitly preempted by the INA? Or has the state merely abstained from action? The statement “don’t respond to detainer requests from ICE” sure looks like an action, right? After all, the state legislature had to DO something — make a motion, vote on a bill, send the bill to the governor, etc. But the effect of that law also seems to be mere inaction: State officers merely sit on their hands, doing nothing, when the feds call.

Years ago, my colleague Daryl Levinson published a piece on “Framing Constitutional Transactions” (http://digitalcommons.law.yale.edu/ylj/vol111/iss6/2/ ) that makes much the same point I am trying to make — that the distinction on which you hammer is largely a matter of characterization dependent on shared by unspoken and hard-to-articulate norms about what is “normal” state behavior departure from which constitutes impermissible, implicitly preempted “action.”

My only friendly amendment to Daryl’s point? When those norms are contested, one lands in baseline hell.

Posted by: Rick Hills | Mar 12, 2018 7:19:14 PM

I haven't examined the statutes and facts closely enough to opine on whether the California laws violate the nondiscrimination principle you describe, Rick. I do think, however, that you're significantly overreading Printz. The point of Printz is *not* "to allow the states to resist federal policy priorities with which the states disagree." If it were, then McCulloch, Gibbons and 1001 preemption decisions would be called into question--not to mention, e.g., Baker v. South Carolina and Reno v. Condon. (It's not even about allowing states to "refuse to expend their resources on federal priorities," broadly speaking--although I don't think a U.S. win in the California lawsuit would require any such state expenditure--would it?) Indeed, Scalia himself freely acknowledges the commonplace, constitutionally acceptable "duty owed to the National Government, on the part of all state officials, to enact, enforce, and interpret state law in such fashion as not to obstruct the operation of federal law, and the attendant reality that all state actions constituting such obstruction, even legislative acts, are ipso facto invalid."

What Printz prohibits, instead, is a federal dictate that state officials "administer or enforce a federal regulatory program" against their own residents (except in those cases where it is permissible, of course, which Scalia and SOC are at pains to distinguish). The key line: "The power of the Federal Government would be augmented immeasurably if it were able to impress into its service--and at no cost to itself--the police officers of the 50 States." As far as I can tell (but perhaps I've overlooked something), nothing in the U.S. lawsuit aims at such a role for state officials, even as a matter of nondiscrimination. (Of course, it is a nice question why the principle was implicated in Printz itself, in which the sheriffs were only required to make a menial computer search--not to enforce federal law in any meaningful way against gun purchasers.) I am hardly a fan of that suit, but I don't see the Printz problem in it.

Posted by: Marty Lederman | Mar 12, 2018 11:11:30 AM

Asher writes: “if your rule were actually doctrine, it would lead to what you see as correct decisions in all cases.”

Asher, I do not see my doctrine dictating outcomes, if that doctrine’s “rule” consists of nothing more than: “States, subject the feds to the same laws as everyone else — except when discriminating against their policies is really, really important for your autonomy (in which case you can discriminate) or is really, really burdensome on the feds (in which case you can’t).” That’s not a “rule”: That’s just a vague maxim of sound policy. I am pretty sure that the Left nd Right Justices would apply that “rule” according to their lights, and it would lead to a variety of outcomes hard to predict, some correct, some not, by my lights.

But I tend to be a bit more cynical about doctrine than your average prof.

Posted by: Rick Hills | Mar 11, 2018 6:32:03 PM

Your rule about monopoly power doesn't sound too mushy to incorporate directly into the doctrine to me; it sounds much *less* mushy than the actual doctrine, which you've probably accurately described as conclusory, murky and empty. Perhaps it's too policy-laden (and too distant from actually glossing the Supremacy Clause) to be doctrine, but if so, it shouldn't determine outcomes in some subterranean way either. Personally I have no objection to your rule being doctrine, but if there's something wrong with its being doctrine it shouldn't be shadow doctrine either. I don't understand what you want; you are always bemoaning "Baseline Hell," but your solution apparently is to stay in it while only subtextually doing something else. At least one problem with that is that if, say, the Supreme Court internally thinks in terms of your rule in this case, should they hear it, neither lower courts nor future panels of the Supreme Court will know that they did so and may continue to sincerely grapple with the meaning of a bunch of contentless labels. But if your rule were actually doctrine, it would lead to what you see as correct decisions in all cases.

Posted by: Asher Steinberg | Mar 11, 2018 12:36:48 PM

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