PrawfsBlawg

SCOTUS Symposium: A Pair of Posts on Abbasi's Flawed Historical, Analytical, and Theoretical Foundations

I'm embarrassingly late to the non-stop party that is the Prawfs end-of-Term symposium, but thought I should at least flag here a pair of posts I've written elsewhere about Monday's decision in Ziglar v. Abbasi, why I think it's the clubhouse leader for most important ruling of the Term, and why that—and it—should bother all of us (a lot).

On Monday, over at Just Security, I wrote a post about "the four key analytical moves Justice Kennedy makes in laying the groundwork for the holding that courts shouldn’t recognize such 'Bivens' claims here (or in most other contexts), and break down why each of the moves is independently problematic." In a nutshell, the Abbasi opinion (1) ignored the rich history of common-law damages remedies against federal officers; (2) refused to grapple with the (potentially constitutional) implications of the Westfall Act, which has been read to foreclose previously available state-law remedies for federal constitutional violations; (3) accepted the deeply problematic analogy to the role of courts in implying statutory causes of action; and (4) held out habeas petitions as a meaningful alternative remedy for the constitutional violations alleged by the plaintiffs.

Today, I have a post up at Lawfare that more directly confronts the normative claim at the heart of Justice Kennedy's opinion—that judge-made remedies for constitutional violations, especially in national security cases, represent an undue intrusion into the prerogatives of the political branches (and more so than claims for prospective relief). As today's post suggests, 

[T]here are three different defects in his normative case against Bivens: First, it rests on a view of the intrusive effect of Bivens that is not just wholly unsubstantiated but also internally inconsistent as a logical matter. Second, it incorporates into Bivens concerns about undue intrusion that other doctrines already account for in more nuanced, sophisticated ways. Third, and most importantly, it assumes that damages actions represent a greater intrusion into the function of the political branches in general (and in national security cases, specifically) than does prospective relief (like injunctions, habeas, etc). That’s a theory of the separation of powers that, frankly, makes no sense. Certainly one can reasonably be opposed to an aggressive judicial role in national security cases in general, or in cases seeking prospective relief, specifically. But the idea that judicial recognition of an after-the-fact damages suit represents a greater threat to the separation of powers than judicial imposition of an injunction against ongoing national security policies (ranging from the 1973 bombing of Cambodia to military detention at Guantánamo to the travel ban) is, for lack of a better word, nuts.

Anyway, since neither Just Security nor Lawfare allows comments (directly, at least), I thought I'd flag these contributions here in case they provoke further discussion...

The New Constitutional Right to Post-Conviction Habeas

For decades, the dominant working assumptions of the Supreme Court's post-conviction habeas corpus jurisprudence have been that (1) federal post-conviction remedies are generally a matter of legislative grace; and (2) as Justice Alito reiterated last Term in his concurrence in Foster v. Chatman, "[s]tates are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstances in which claims may be relitigated." In a new paper we've just posted to SSRN, Carlos Vázquez and I argue that, in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court directly rejected the first assumption, and, in the process, indirectly but necessarily undermined the second. 

To make a long story short, although Montgomery looked like a fairly typical habeas retroactivity case under Teague v. Lane (asking whether Miller v. Alabama fit into an exception to Teague's general bar on retroactive enforcement via habeas of "new rules" of constitutional law), it had a jurisdictional wrinkle--to wit, why the Supreme Court had appellate jurisdiction over the Louisiana state court's holding that Miller was not retroactive under Teague. Although the parties defended the Court's jurisdiction on the ground that the state court's analysis of Miller was "interwoven" with federal law (and thus not independent thereof), Justice Kennedy's majority opinion based the Court's jurisdiction on a much broader conclusion--that the exception to Teague for new "substantive" rules of constitutional law is constitutionally grounded, and thus directly binds the states (as a matter of federal law) in their post-conviction proceedings. Thus, Montgomery recognized for the first time at least some circumstances in which the Constitution (and not just the federal habeas statute) confers a right to a post-conviction remedy--at bottom, to enforce new "substantive" rules of constitutional law handed down by the Supreme Court after the petitioner's conviction became final.

The much more interesting question (to which we turn in Part II of our paper) is the forum in which such a remedy is constitutionally required. As we argue (in some detail), the Supreme Court’s Supremacy Clause jurisprudence, especially the 2009 decision in Haywood v. Drown, establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts—even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. Indeed, as we explain, the state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction (even implicitly) over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and that the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners. 

Needless to say, this analysis calls into question at least some features of contemporary post-conviction habeas jurisprudence (especially for second-or-successive federal petitioners), and raises a bunch of questions about how far beyond Teague's substantive exception this newfound right to collateral post-conviction review extends. We try to sketch out some thoughts on these issues in Part III, but if we're right about the importance of Montgomery (especially in light of Haywood), then we hope our paper is the beginning of a much broader academic and judicial reassessment of the scope and shape of contemporary collateral post-conviction remedies, not the end. 

And, although it should go without saying, we'd surely welcome comments, suggestions, and feedback...

Last Call for Nominations for Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The AALS Section on Federal Courts is pleased to announce the fifth 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 2017 AALS Annual Meeting in San Francisco, CA. 

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, 2016 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2016), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.

Nominations (and questions about the award) should be directed to Prof. Bradford Clark at George Washington University Law School ([email protected]). Without exception, allnominations must be received by 11:59 p.m. (EDT) on September 15, 2016. Nominations will be reviewed by a prize committee comprised of Professors Curtis Bradley (Duke), Bradford Clark (George Washington), Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), and Caleb Nelson (Virginia), with the result announced at the Federal Courts section program at the 2017 AALS Annual Meeting.

The Subtle But Serious Flaw in the Supreme Court's Welch Ruling

This morning, to just about no one's surprise, the Supreme Court held in Welch v. United States that its June 2015 decision in Johnson v. United States--invalidating on vagueness grounds the "residual clause" of the Armed Career Criminal Act--is "substantive," and may therefore be retroactively enforced by federal prisoners even through collateral post-conviction review. In English, even for those prisoners whose direct appeals were already over, Welch allows them to pursue relief based upon Johnson, which could mean reduced sentences (and, potentially, immediate release) for hundreds--if not thousands--of federal prisoners. And to its credit, the Court really hustled--handing down the decision just 19 days after argument, presumably with an eye toward the one-year statute of limitations for Johnson-based claims (which runs on June 26). So far, so good.

But as I've blogged about at some length previously (and explained in a short piece in the latest issue of the Federal Sentencing Reporter), the problem Johnson raised in the lower courts had two distinct layers to it: The obvious one (is Johnson retroactive), and the far more subtle one (how can lower courts tell when new Supreme Court rulings like Johnson are retroactive). Whether because of the compressed schedule, the short-handed Court, or a more general disinclination to reach that issue, Welch says absolutely nothing about this second layer--and, in the process, does nothing to avoid the same mess that Johnson produced in the lower courts from recurring in the future.

In a nutshell, here's the problem: For prisoners who have already had one bite at the post-conviction apple, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes harsh restrictions on second-or-successive claims for post-conviction relief. Not only must applicants first obtain the permission of the relevant court of appeals, but permission will only be granted, as relevant here, if the applicant can show that he can likely benefit from "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." In other words, for second-or-successive petitioners, the new rule doesn't just have to be retroactive; it has to have been "made retroactive" by the Supreme Court.

In Tyler v. Cain, the Supreme Court clarified that only it, and not the lower courts, can "ma[k]e" a new rule retroactive. But the Justices were unclear on how they so provide. For instance, Justice O'Connor's concurring opinion suggested that, if a Supreme Court ruling at T₀ provides that all "substantive" new rules are retroactive, then a Supreme Court decision at T₁ articulating a new substantive rule is "made retroactive" by the earlier ruling at T_0. But Justice Thomas's majority opinion was more rigid, suggesting that the Court has to expressly make the new rule retroactive (presumably after it is handed down), and the lower courts have divided over which is the correct framework. Thus, after Johnson, a majority of circuits held that the Court's pre-Johnson holdings with regard to the retroactivity of substantive rulings necessarily "made" Johnson retroactive; two circuits held that Johnson wasn't substantive in the first place (and therefore wasn't retroactive); and the Tenth Circuit, most significantly, held that, even if Johnson was substantive, the Supreme Court had not "made" it retroactive. In other words, even the courts that agreed Johnson was "substantive" disagreed over whether that meant that the Supreme Court had already "made" it retroactive.

As I've argued before, it would be easy enough for the Supreme Court to resolve this split--and the open question raised by the distinction between the Thomas and O'Connor opinions in Tyler. And the post-Johnson mess was a perfect opportunity to do so, since Johnson is the exact kind of ruling likely to fall right in the middle of the split (that is, a ruling that is almost certainly substantive, but where there's any room for doubt). But rather than clarifying whether the Thomas or O'Connor approach is the correct one for lower courts to follow going forward, all the Court held today was that Johnson is substantive, and can therefore be retroactively enforced even by second-or-successive applicants, full stop.

To be sure, some lower courts might read into Welch the conclusion that all substantive holdings are retroactive, but the Supreme Court had already held exactly that (in Schriro v. Summerlin), and that didn't stop the Tenth Circuit from still requiring a separate ruling that expressly "made" Johnson retroactive. The Supreme Court provided that ruling this morning in Welch, but did nothing to prevent a court like the Tenth Circuit from demanding the same thing the next time the Court hands down a new substantive rule--or to thereby prevent the exact same headaches that Johnson caused from recurring. As a result, Welch will go into the books as a small but important win for federal prisoners, but a gigantic missed opportunity for clarity in future retroactivity cases.

[Full disclosure: I signed onto an amicus brief in support of Welch, albeit on a different issue--whether the Teague retroactivity framework even applies to federal prisoners.]

Can Dead Justices Vote?

The stunning news of Justice Scalia's passing has understandably (if, perhaps, a bit too quickly) provoked speculation about the fate of cases from this Term (especially those already argued--and, thus, voted upon) in which his vote was necessary to a majority... As Tom Goldstein noted at SCOTUSblog, we could see a bunch of orders dismissing such cases by an equally divided Court. We could also see orders setting some of these cases for reargument next Term (which is the far-more-common historical practice in cases in which the 4-4 division may only be temporary). Or we could see some combination of both. We could also see efforts by the Court to find narrower grounds in some of these cases that might command a Scalia-less majority (e.g., relying on procedural vehicles to avoid the merits). 

Whatever happens, the assumption necessarily uniting all of these analyses is that Justice Scalia's votes in all of these cases became void upon his death--i.e., that, where the decision has not yet been handed down, it doesn't matter whether his vote had already been cast (or even memorialized in a draft majority or dissenting opinion), because it was necessarily tentative up until the moment that the Court's judgment is handed down. That is certainly the practice in the Courts of Appeals (where there is far more precedent for such morbid matters), where federal law expressly outlines the powers of a two-judge panel to proceed without a third judge--and where each circuit's rules require the appointment of a new panel member in any case in which the remaining judges are evenly divided.

And there is every reason to believe that the same should hold for the Supreme Court--that the Court cannot hand down a ruling going forward based upon a decisive vote by Justice Scalia. But at least where Justice Scalia's vote is not dispositive, there's at least one equivocal precedent for noting a late colleague's views: Justice Frankfurter's dissent in D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946), which closes with the notation that “The late Chief Justice participated in the hearing and disposition of this case and had joined in this dissent.” By way of context, Gangi was decided on April 29, 1946, just one week after Chief Justice Stone had died from a cerebral hemorrhage that he suffered while reading his dissent in Girouard v. United States (the opinions in Gangi may therefore have already been finalized prior to Chief Justice Stone's passing). And even counting Chief Justice Stone's vote, the result was still 5-3 instead of 5-2 (with Justice Jackson, still at Nuremberg, recused). Perhaps even more curiously, Frankfurter's notation does not appear in the U.S. Reports, but does appear in the Supreme Court Reporter (and, thus, on Westlaw), both of which include a notation (missing from the U.S. Reports) that the dissenting opinion was amended on June 10, 1946 (six weeks after it was filed). 

It's quite possible that the reason for this discrepancy is well documented in Justice Frankfurter's papers--and on my list of things to check the next time I'm at the Library of Congress's Manuscript Division. But given that the U.S. Reports are published after the Supreme Court Reporter, I have to wonder, at least tentatively, if Justice Frankfurter (either on his own or at some of his colleagues' suggestion) eventually thought better of such an awkward notation...

Vehicle Problems vs. Unusual Vehicles: The Supreme Court's Bizarre Cert. Grant in Welch

This afternoon, the Supreme Court granted certiorari in Welch v. United States, a case that raises a question I've written about previously ad nauseam--whether the Court's June 2015 decision in Johnson v. United States may be retroactively enforced by federal prisoners in both original and second-or-successive petitions for post-conviction relief. The headline is straightforward; Welch means the Court will almost certainly resolve the 6-2-1 circuit split on that issue before AEDPA's one-year statute of limitations runs in June, which is, in my view, a Very Good Thing. And given that the Solicitor General agrees with Welch on the merits (it recommended a GVR at the cert. stage), the odds of the Court siding with the six circuits that have held that Johnson is substantive, and thus retroactively enforceable, seem high.

All that said, the fact that the Justices chose Welch as the vehicle through which to reach this question is bizarre in at least two respects:

First, Welch comes to the Court in a strange (and to my knowledge, unique) procedural posture: The Eleventh Circuit denied his application for a certificate of appealability _before_ the Supreme Court decided Johnson. That doesn't mean the Eleventh Circuit was right in denying his COA (it sure could've seen Johnson coming); it just means that a Supreme Court decision now holding that Johnson can be enforced retroactively going forward wouldn't actually reverse the Eleventh Circuit's holding in Welch; it would merely provide a new ground on which he may pursue a certificate of appealability. (The Eleventh Circuit denied a petition for rehearing after Johnson, but that's not usually enough to justify a cert. grant.)

Second, and related, Welch is presumably such an attractive vehicle for the Justices because it's a regular petition for certiorari after judgment, over which the Court only has jurisdiction because his is a first (and not second-or-successive) motion for post-conviction relief. For second-or-successive petitioners, relief doesn't depend just upon whether a new rule of constitutional law articulated by the Supreme Court (like Johnson) is substantive, but whether it has been "made retroactive" by the Supreme Court. In other words, it's at least theoretically possible that the Court could confirm that Johnson is substantive (which is all Welch needs in order to win), without taking the next step of holding that such a conclusion necessarily "makes" it retroactive, such that the decision wouldn't actually settle the circuit split (or allow second-or-successive petitioners in the Fifth, Tenth, or Eleventh Circuits to prevail). 

Neither of these problems are fatal; the strange posture has no bearing on the Court's jurisdiction, and I have to think that the Court will make it clear, if it holds that Johnson is substantive, that it can also therefore be enforced retroactively in second-or-successive petitions as well as in cases like Welch. But it does highlight why Welch is an especially strange vehicle through which to take up the Johnson retroactivity circuit split, in contrast to the petition for certiorari before judgment in Harrimon, and especially the petitions for original writs of habeas corpus in Sharp and Williams (both of which are second-or-successive cases). Indeed, perhaps for those reasons, in the government's various briefs in those cases arguing why the Court should wait for a more "appropriate" vehicle, Welch was never mentioned...

As for why this matters going forward, it suggests, if nothing else, that when confronted with a choice between cases with vehicle problems, and cases presenting unusual vehicles (like original habeas or cert. before judgment), the Court is far more inclined to rely upon the former. I leave it to others whether, in the long term, that's a healthy practice (since, among other things, it makes the vehicle problems seem completely discretionary). It certainly seems in this context to perpetuate the effective unavailability of extraordinary relief even in cases in which the Court's criteria appear to be satisfied--and to therefore raise the constitutional questions the Court ducked in Felker v. Turpin.

Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?

I've already written a pair of posts about the very significant current conflict among the circuits over the retroactive effect of the Supreme Court's June 2015 in Johnson v. United States, and the extent to which the Court may need to use an application for extraordinary relief (perhaps including an "original" writ of habeas corpus) to resolve that split--given (1) the unavailability of certiorari to review denials of second-or-successive habeas petitions; (2) government's agreement that Johnson may be retroactively enforced; and (3) the one-year statute of limitations, which likely requires all Johnson-based claims to be filed by June 26, 2016. And in my most recent post, I noted that the Solicitor General had already recommended denial of review in one case by reference to three pending "original" applications--perhaps hinting that it would support the Court's using one or all of those cases as a vehicle for settling the circuit split (and clarifying that Johnson is indeed retroactive).

Or not.

In the past week, the government has effectively mooted one of the three original cases (by completely reversing a position it had taken earlier in different litigation involving the same prisoner), and has filed briefs opposing extraordinary relief in the other two. As I explain in the post that follows, these actions (and the arguments in the briefs) give rise at least to the appearance that, even though the Solicitor General agrees that Johnson is retroactive on the merits and should therefore be enforceable by federal prisoners through both original and second-or-successive applications for post-conviction relief, the government is perfectly content to run out the clock--and to not support efforts to have the Supreme Court so hold before next June's deadline.

I.  Mooting Butler

Of the pending "original" applications, one of the most compelling was that filed by Juan Deshannon Butler, a prisoner in the Tenth Circuit (which had held that, whether or not Johnson is retroactive, it had not yet been "made retroactive" by the Supreme Court). Butler's case was an easy one because there was no question that, but for ACCA's residual clause, he could only have served a maximum of ten years in prison (and he'd already served more). In other words, if Johnson applied to Butler's case, he was entitled to an order of immediate release. 

But Butler had another habeas petition pending in the U.S. District Court for the District of Arizona, arguing that one of his prior convictions didn't qualify under ACCA as a statutory matter because, under the Supreme Court's 2009 decision in Chambers, not all "escape" offenses constitute "violent felonies" under ACCA. The government had previously opposed this claim--and even obtained an order from the district court denying it on the merits. Yet, curiously, once Butler had filed his original habeas petition, the government filed a new brief withdrawing its opposition, and suggesting that Butler was entitled to relief on the Chambers claim. As a result, last Wednesday, the district court ordered Butler's release--which led the parties to voluntarily dismiss his original habeas application before the Supreme Court. It's always nice for the government to concede error (if error there was), but the timing of the complete-180 on Butler's Chambers claim seems more than a little curious...

II.  Opposing Triplett

Then, on Monday, the government filed its response to the petition for an original writ of mandamus in Triplett, opposing such relief because, among other things, it is not entirely clear whether Johnson will make a difference in Triplett's case--that is, whether, but for the residual clause, he would not have received the same sentence. That argument isn't that surprising; in effect, the government is saying, Triplett isn't a great vehicle for resolving the Johnson question because it might not actually matter in his case.

But the government's opposition also suggested that mandamus would not be appropriate in any Johnson case because "the courts of appeals are 'openly divided' on the question whether this Court has 'made' Johnson retroactive to cases on collateral review. The absence of a definitive ruling from this Court on that question, coupled with the division of opinion on the issue in the courts of appeals, shows that petitioner’s right to relief, if any, is not 'clear and indisputable.'" Thus, even though the government agrees that Johnson is retroactive (and has been "made retroactive" by prior Supreme Court decisions), its opposition in Triplett rests on the argument that a writ of mandamus won't ever be appropriate where the lower courts are divided--even if the government is on the same side as the petitioner in arguing that one side of that split is clearly erroneous.

And although the government noted the serious timing issue raised by AEDPA, it suggested that such a concern could not "make it appropriate to conduct review through mandamus where the conditions for issuing the writ are not otherwise satisfied." Instead, the government suggested, the Court should wait for an ordinary petition for certiorari (which could conceivably come through the Fifth Circuit, which has held that Johnson is not even substantive--let alone that it has not been "made retroactive"), or rely upon the pending original habeas cases, including Sharp.

III.  Opposing Sharp

Then, today, the Solicitor General filed his response to the original habeas petition in Sharp--and argued against it. In particular, the SG's brief rests almost entirely on the prospect of "ordinary" certiorari review via a district court's denial of a first 2255 motion in a case out of the Fifth Circuit, and notes that a petition for certiorari before judgment has now been filed (although still not docketed) in one such case--Harrimon v. United States. Thus, the SG concludes, "The continued availability of certiorari review in that context undercuts petitioner’s suggestion . . . that exceptional circumstances exist that warrant the exercise of habeas jurisdiction."

There are two obvious problems with this line of reasoning: First, the government is hardly conceding that it will support certiorari in Harrimon (or a similar case), especially the extraordinary remedy of certiorari before judgment. After all, in its oppositions in both Triplett and Sharp, it argued that AEDPA's one-year statute of limitations is not a justification for extraordinary relief not supported by other factors; why would certiorari before judgment be any different?

Second, even if the government were eventually to support certiorari in a case out of the Fifth Circuit (perhaps after judgment), time is increasingly of the essence. Recall from the recent spat over Texas's request for an extension in Texas v. United States that the Solicitor General took the view that, for a case to be briefed and argued in the "ordinary course" during the current Term, it would need to be considered by the Justices no later than their January 15 Conference. And yet, the petition in Harrimon hasn't even been docketed yet--let alone scheduled such that the government's brief in response (assuming one is called for) would be filed in time to be distributed for the January 15 Conference. (I'm not optimistic.) Nor does there appear to be any other ordinary certiorari petition from the Fifth Circuit in which full briefing will be complete in time for the January 15 Conference.

Thus, the clock is running out for the Supreme Court to issue a decision that will clarify that Johnson is retroactive in time for virtually all of the prisoners who would benefit from such a ruling to take advantage of it. As we explained in our amicus brief in Butler, there's no jurisdictional obstacle to the issuance of relief in an original habeas case like Sharp, and there's no reason why an extraordinary writ should be denied just because there's a remote, entirely speculative possibility that an ordinary remedy "might" be available in time.

Thus, the Supreme Court should ignore the Solicitor General in Sharp, and set the matter for plenary briefing and argument. Otherwise, the Solicitor General just might succeed in running out the clock on thousands of federal prisoners--whether or not he means to.

The Johnson Retroactivity Circuit Split Plot Thickens...

A few weeks ago, I wrote a rather lengthy post about the circuit split over whether the Supreme Court's June 2015 decision in Johnson v. United States both (1) is "substantive" (and therefore retroactively enforceable by federal prisoners filing their initial claims for collateral post-conviction relief); and (2) has been "made retroactive" by the Supreme Court (and can therefore provide the basis for a second-or-successive application for collateral post-conviction relief). As I explained then, unlike the typical circuit split, a combination of the jurisdictional limitations imposed by AEDPA and the government's litigating position (that the answer to both questions is "yes") has seemed, at least to date, to deprive the Supreme Court of a "normal" way to resolve this circuit split, suggesting instead that the matter be resolved through the Court's seldom-utilized authority to issue extraordinary writs, including an "original" writ of habeas corpus. As importantly, the clock is running; it's widely believed that AEDPA's one-year statute of limitations will require all Johnson-based claims to be filed by June 26, 2016, no matter when the Supreme Court clarifies its retroactive application.

Well, the plots, such as they are, are thickening...

The Supreme Court now has before it at least three petitions for original habeas writs (In re Butler, In re Sharp, and In re Triplett), along with at least one petition for a writ of mandamus (also in Triplett). My own view is that original habeas makes more sense in this context than mandamus, especially since the Justices may agree, even in holding that Johnson is retroactive, that they hadn't previously "made" Johnson retroactive, and so the lower-court decisions refusing to certify second-or-successive petitions aren't erroneous (and, thus, subject to correction via mandamus). For more on this, see the habeas scholars' amicus brief in support of the petition for original habeas in Butler (that I co-authored). But whether it's habeas or mandamus, the bottom line would be the same: using the Court's power to issue extraordinary writs to sidestep AEDPA.

To that end, the Court has ordered the Solicitor General to respond (a very unusual step in an extraordinary writ case) to the habeas petitions in Butler and Sharp, and to the mandamus petition in Triplett. Those responses are all due sometime in December, and it will be fascinating to see what position the SG takes, since the government generally supports Johnson retroactivity, generally dislikes extraordinary relief, and has yet to take a position on whether all Johnson claims must be filed by June 26, 2016 (such that the Supreme Court would have to take and decide the issue sooner, rather than later).

One clue may be found in a brief the Solicitor General filed on Wednesday in opposition to certiorari in another case--Hammons v. United States. Here's the key passage:

If the Court decides to exercise its jurisdiction under the All Writs Act, 28 U.S.C. 1651(a), to resolve the conflict in the courts of appeals on the question whether Johnson has been made retroactive to cases on collateral review, there is a petition for a writ of mandamus currently pending before the Court that expressly asks the Court to address that question through its authority under the All Writs Act and therefore, unlike this petition for a writ of certiorari, specifically addresses the strict standards applicable to an exercise of that jurisdiction. See In re Triplett, No. 15-625 (filed Nov. 10, 2015). The government's response to the petition for a writ of mandamus in Triplett is currently due on December 14, 2015. 

There are also three pending petitions for a writ of habeas corpus that ask the Court to address the question of Johnson's retroactivity through the Court's authority to issue writs of habeas corpus under 28 U.S.C. 2241. See In re Butler, No.. 15-578 (filed Nov. 3, 2015); In re Triplett, No. 15-626 (filed Nov. 10, 2015); In re Sharp, No. 15-646 (filed Nov. 16, 2015). . . . The Court has ordered a response from the United States in Butler, which is currently due on December 18, 2015. It has also ordered a response in Sharp, which is currently due on December 30, 2015. The Court may therefore wish to hold this petition until it acts on the petition for a writ of mandamus filed in Triplett or any of the petitions for a writ of habeas corpus.  

Perhaps this passage is meant to suggest that the government will not oppose extraordinary relief--whether through mandamus in Triplett or habeas in Butler, Sharp, and/or Triplett--as a way for the Justices to settle the Johnson retroactivity question. If so, then the Supreme Court may well be on the verge of doing something it hasn't done in decades (and of settling a messy, messy circuit split in the process).

How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term. But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years--issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem--the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain. Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions. Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari--and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler. Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling.

I.  AEDPA and Tyler v. Cain

Of all of AEDPA's restrictions on post-conviction relief, perhaps none are more sweeping than the limits on "second-or-successive" petitions filed in federal courts by state or federal prisoners. As relevant here, AEDPA requires petitioners in such cases to first get permission to file such a claim from the Court of Appeals, which may only "certify" the claim if, as relevant here, it relies upon "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

In other words, unless the claim is based upon newly discovered evidence, second-or-successive petitions can only go forward when they rest upon new Supreme Court decisions that, under Teague v. Lane, may be enforced retroactively. (Under Teague, new "substantive" rules may be retroactively enforced, whereas new "procedural" rules may not, unless they are "watershed" rules of criminal procedure). That part is clear (or, at least, well understood). What's less clear is the meaning of the word "made" in the emphasized language above: Must the Supreme Court expressly state that the particular new rule in question is retroactive, or is it enough that the retroactivity of the rule obviously follows from--and is effectively settled by--other existing Supreme Court retroactivity precedents? 

In Tyler v. Cain, the Justices considered this very question, and ruled, 5-4, that "a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." But Justice O'Connor, whose vote was necessary to the result, opened the door to a slightly broader interpretation in her concurrence. As she wrote,

a single case that expressly holds a rule to be retroactive is not a sine qua non for the satisfaction of this statutory provision. This Court instead may “ma[k]e” a new rule retroactive through multiple holdings that logically dictate the retroactivity of the new rule. . . . [I]f we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have “made” the given rule retroactive to cases on collateral review.

In the 14 years since Tyler, the lower courts have generally followed Justice O'Connor's concurrence, rather than Justice Thomas's majority opinion. The debate, instead, has focused on whether particular rulings qualify as a "Case Two." The latest battleground on this question involves the Court's June decision in Johnson.

II.  Johnson and the Circuit Split

In Johnson, as noted above, an 8-1 Court struck down the so-called "residual clause" of the ACCA on the ground that it is impermissibly vague. As a result, not only are sentences based upon the residual clause no longer valid, but individuals who have already served what would otherwise be the statutory maximum (10 years) are presumably entitled to release, since there is no longer any positive authority for their continuing incarceration. Although there's therefore little question that Johnson falls on the "substantive" side of the Teague line, there's also nothing in Justice Scalia's opinion for the Court that says as much--and that therefore clarifies, per Justice O'Connor's Tyler concurrence, that Johnson's new rule is "of that particular type." In other words, Johnson may or may not be a "Case Two," depending upon whether the Court has to expressly say that it's a substantive rule, or whether it's enough that, based upon prior decisions, it's clear that its rule is substantive.

That's the issue on which lower courts have divided. As of this writing, five circuits (the First, Second, Seventh, Eighth, and Ninth) have authorized second-or-successive claims based upon Johnson, with the First, and Seventh providing detailed opinions explaining that, in their view, it's sufficiently clear from existing Supreme Court precedent that Johnson's rule is substantive, and is therefore an example of Justice O'Connor's "Case Two." Three circuits (the Fifth, Tenth, and Eleventh--over a dissent) have held to the contrary--reading Justice O'Connor's concurrence to require some explicit recognition by the Court that a new rule is "of that particular type," i.e., substantive for purposes of retroactive enforcement.

This circuit split is deeply problematic in two respects: First, it creates massive inequities as between federal prisoners convicted under ACCA's residual clause in the five circuits that have allowed second-or-successive Johnson claims and the three that haven't--with those in the latter category now in prison pursuant to convictions that, at the very least, should trigger resentencing, if not (for those who have served 10 years) outright release. Second, because AEPDA imposes a rigid one-year statute of limitations on second-or-successive claims, those serving potentially unlawful sentences have a closing window within which to obtain relief based upon Johnson. Under AEDPA, such claims must be filed by June 26, 2016--the one-year anniversary of Johnson itself. Thus, the circuit split needs to be resolved by the end of this Supreme Court Term--if not sooner.

Usually, of course, there's an easy way to resolve a circuit split like this one; the Court just grants certiorari to review one (or more) of the circuit-level decisions. Here, however, that's not possible: AEDPA itself takes away the Court's certiorari jurisdiction in cases in which the Court of Appeals denies certification (which insulates the Fifth, Tenth, and Eleventh Circuit decisions from review), and the party that lost in the other five circuits that granted certificates--the federal government--hasn't sought certiorari, ostensibly because it agrees that Johnson can be enforced retroactively in second-or-successive cases. 

Thus, AEDPA, Tyler, Johnson, and the government's litigating position have produced something of a perfect storm--where there's a major circuit split, and no immediately obvious way for the Supreme Court to resolve it. Enter In re Butler, a petition for an "original" writ of habeas corpus from the Supreme Court.

III.  The Supreme Court's "Original" Habeas Jurisdiction

There are few topics in Federal Courts in which there's a bigger disconnect between academic interest and real-world significance than the Supreme Court's so-called "original" habeas jurisdiction -- "'original' in the sense of being filed in the first instance in [the Supreme] Court, but nonetheless for constitutional purposes an exercise of [the] Court's appellate (rather than original) jurisdiction." Ever since Ex parte McCardle, the Court has alluded to "original" habeas writs as a crucial constitutional backstop -- "an unorthodox but sometimes necessary means of exercising review in situations where other avenues for relief are either practically or formally unavailable." Thus, the theoretical availability of original habeas has allowed the Court to sidestep the grave constitutional questions that would otherwise have arisen from various efforts to strip the Court's appellate jurisdiction in habeas cases, including in McCardle itself, and, more recently, Felker v. Turpin.

In Felker itself, the Court was also dealing with AEDPA's limits on its certiorari jurisdiction over second-or-successive petitions, and had no trouble recognizing its power to issue "original" writs of habeas corpus, which AEDPA left untouched, as an available remedy in appropriate cases--and one that obviated constitutional objections to AEDPA under the Exceptions Clause of Article III. As Justice Souter warned in his concurrence, though, "if it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination were closed, the question whether the statute exceeded Congress's Exceptions Clause power would be open." And, in an eerily prescient coda, he added, "The question could arise if the courts of appeals adopted divergent interpretations of the gatekeeper standard," i.e., exactly what has happened after Johnson.

Justice Souter's warning has proven prophetic; although the Court has received a number of serious, significant original habeas applications in the 19 years since Felker, it has yet to grant a single one, even in a 1999 retroactivity case in which the federal government agreed that original habeas was warranted on remarkably similar facts [the issue in that case was eventually resolved--against retroactivity--in Tyler]. Some of these petitions have come in high-profile capital cases, such as those of Troy Davis and Warren Lee Hill, where original habeas was the only way to prevent potentially unconstitutional executions. But whereas those cases may present more emotionally stirring narratives, the Johnson retroactivity issue is, in some ways, a cleaner vehicle for an original writ, since (1) the question before the Court isn't a "merits" question, but a simple retroactivivty question; and (2) the relevant statutes specifically contemplate that the Supreme Court, and not the lower courts (or state courts), will provide the definitive answer to that question. At the very least, if the Court wasn't going to grant in cases like Davis and Hill, and if it's not going to use original habeas to resolve disputes like the Johnson retroactivity issue, then original habeas really is a historical relic--and the constitutional questions Justice Souter worried about might finally have to be confronted.

IV.  Using Original Habeas to Solve the Problem

If you're still reading, hopefully I've convinced you by now that the Court should grant an original writ of habeas corpus to resolve the Johnson retroactivity issue (or, at the very least, should set the matter for full briefing and argument). There's at least one other pending original application raising the same question, but what makes Butler so attractive is the sentencing issue--because he has already served 10 years, he's entitled to outright release if Johnson is enforceable through a second-or-successive petition, meaning that the Court could simply grant habeas relief and be done. But should the Court do more than just grant the writ? Briefly, let me sketch out two further steps the Court can take--and then explain why, in my view, one is clearly better than the other:

A.  Hold that Johnson is Retroactive

Beyond simply granting the writ in Butler's case (which would leave other cases unsettled), the easiest way out, which would take about a paragraph, would be to expressly hold that Johnson is a "substantive" rule under Teague, and to therefore "ma[k]e" it retroactively enforceable in second-or-successive petitions under AEDPA. Such a ruling would then allow prisoners in the Fifth, Tenth, and Eleventh Circuits to obtain relief--including resentencing and, in cases like Butler, outright release. That wouldn't resolve the circuit split; it would simply moot it, since there would no longer be any question over whether the Supreme Court had "made" Johnson retroactive.

B.  Resolve the Circuit Split Over the Meaning of Tyler

The shortcoming of that approach is that, while it would moot the circuit split over Johnson, it wouldn't resolve the cause of the circuit split--i.e., lingering disagreement over the meaning of Justice O'Connor's Tyler concurrence. Thus, to avoid this exact scenario from arising again, the Court could use an original writ in a case like Butler to clarify who has the better of Tyler--the circuits that interpret it liberally to allow retroactive enforcement whenever it is sufficiently clear that a new rule is substantive, or the circuits that interpret it narrowly to require the Supreme Court to specifically say that a new rule is substantive. I have my own views on how the Justices should answer that question (both on the merits and to spare them from having to take pointless follow-on cases after each new rule is announced). But however this question is resolved, it should be clear that settling it in the context of Johnson will have a salutary effect for future litigation. 

*                              *                              *

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction--and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives. But there's a difference between elusive remedies and illusory ones. For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve. If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions. Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority--and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

Is It Unconstitutional to Apply Erie to D.C. Law?

Last December, I wrote a post about the strangeness that arises from the applicability of Erie (pursuant to which federal courts in diversity cases apply the state substantive law dictated by the choice-of-law rules in the state in which they sit) to the District of Columbia. Although it's strange to apply Erie in the federal territories at all, it's especially strange in D.C., which is the only one of the six federal territories in which the court receiving deference under Erie was created (and is controlled) by Congress, as opposed to the territorial legislature. Thus, as my post last December noted, when they follow Erie, the Article III D.C. district court and D.C. Circuit are necessarily deferring to an Article I court's interpretation of federal law (to wit, the D.C. Code). And although this result is not remotely compelled by the Rules of Decision Act, the (Article III) D.C. courts have nevertheless chosen to adopt it for purposes of convenience and litigation efficiency, if nothing else. 

The more I think about this issue, the more I wonder if this approach isn't just "strange," but also one that raises constitutional concerns. After all, it's well settled that Congress may not give non-Article III actors (whether non-Article III judges or Article I or Article II entities) supervisory authority over Article III courts, but the application of Erie to D.C. at least theoretically gives the D.C. Court of Appeals a supervisory power over some federal law within the District vis-a-vis their Article III brethren, even if it lacks authority over the latter's decisions. Thus, could Congress really compel a lower Article III court to follow an Article I court's interpretation of federal law (whether in general or as limited to the "local" federal law of D.C.)? This surely goes much further than Chevron, since, among other things, there's no room under Erie to set aside the Article I court's unreasonable interpretations of ambiguous "local" law...

But even if you don't find that argument compelling, what if the Supreme Court were ever presented with a question of D.C. local law? Wouldn't there be a serious problem under Article III with following Erie in such a case, given that the Supreme Court would, insofar as it applied Erie to the District of Columbia, necessarily be deferring to an inferior Article I federal court on a question of federal law (as compared to deferring to an independent state supreme court on a question of state law)? Although I'm somewhat ambivalent about the constitutional problem with applying Erie in the Article III D.C. lower courts, the constitutional problem with applying it in the Supreme Court seems manifest.

To be sure, an obvious rejoinder is that, unlike the D.C. district court and D.C. Circuit, the Supreme Court has never chosen to follow Erie in such a case, and so the constitutional question hasn't arisen. And in an appropriate future case, the Supreme Court could certainly choose not to follow Erie then, too. So if the constitutional problem only arises at the Supreme Court level (and again, I'm still not sure it's that limited), it can easily be avoided by the Justices if and when it presents itself.

But insofar as a refusal on the part of the Supreme Court to be bound by D.C. law as interpreted by the D.C. Court of Appeals would solve the constitutional problem, it seems to me that it also undermines the pragmatic justification the Article III D.C. lower courts have advanced for adopting Erie, since it suggests that, in fact, there will be cases in which the Article III courts will be constitutionally bound to reach an independent interpretation as to the meaning of D.C. law--and that those cases will come through the very courts voluntarily choosing to defer.

The Virtues and Vices of Casebook Supplements

My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.

As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.

I.  The Virtues of Casebook Supplements

1. Current-ness. This is the easy one: Like pocket parts in the good ole' days, supplements help to ensure that the classroom materials are current. In some fields, the value of current-ness may spring almost entirely from piquing student interest and curiosity by covering current "hot" topics. In others (like national security and counterterrorism law), current-ness is a virtual necessity, given how much the entire structure of the field can change in a short period (see, e.g., Edward Snowden), and not just how much individual aspects of the relevant doctrines can evolve. 
2. Efficiency. It's certainly true, of course, that individual teachers can and should provide their own materials to satisfy the current-ness values noted above. But supplements are, from a market perspective, deeply efficient. Rather than having dozens of individual professors creating their own excerpts of overly lengthy opinions (I'm looking at you, Second Circuit), supplements centralize the labor.
3. Continual pedagogical reassessment. It would be one thing, of course, if supplements were merely collated excerpts of new materials. But supplements also allow casebook authors to constantly revisit pedagogical choices made in the last edition--and to decide whether certain materials should be taught differently, whether in light of intervening developments or just further reflection. To that end, adopters and users of supplements benefit not just from the primary source materials excerpted and collated in the supplement, but from the pedagogical choices the authors make about which materials to include, how much those materials should be annotated with introductory discussion and/or notes and questions, and so on. As with everything else on this list, not all supplements are alike. But the more a supplement reflects a conscious choice about which (and how much of the) new materials should be included, the more pedagogically valuable it is as compared to DIY case excerpts.
4. Making the next edition (somewhat) easier. Related but distinct from this last benefit, the work that authors put into the supplement should also, in theory, make the next edition of the book at least somewhat easier. After all, if the authors use the supplement as an annual opportunity to ensure that individual chapters are up-to-date and pedagogically coherent, it should be somewhat easier to produce a new edition once a critical mass of new material has accumulated. To be sure, the new edition of a book is likely to be more than just the sum of the previous supplements--but, based upon personal experience at least, it feels like a far lighter lift to plan a new edition when many of the updates have already been contemplated.

II.  The Vices of Casebook Supplements

1. Cost to students. The vice of which I am the most mindful is the cost of supplements to students, especially in proportion to the supplement's utility. I've long thought that supplements are priced even more aggressively than the casebooks themselves, and have, at various points, declined to assign supplements because I was using too little of the material to justify the cost. My usual rule of thumb is that I need to assign at least 1/4 of a supplement before I'll ask my students to buy it, and even then, the supplement needs to do more than just excerpt cases. Of course, the increasing move toward electronic materials may mitigate at least some of these costs--but not get rid of them.
2. Shelf-life. Related to the sticker price of the supplement is its terribly limited shelf-life. Although every book is different, over two-thirds of the material in our 2015-16 supplement, to take just one example, is new this year. Thus, supplements have zero resale value--and are, in many ways, a sunk cost to students.
3. Labor costs. Given the above vices, along with information deficits (publishers aren't always on the ball about publicizing supplemental materials), the percentage of adopters who also adopt the supplement is never 100%, and may, in some cases, be far lower. And the lower that # is, the harder it is to justify the (often substantial) labor costs that go into producing a supplement. Again, every field is different. But speaking just for me and my co-authors, it took the better part of the past two months for the four of us to put together this year's edition--labor that we certainly enjoyed, but that is a fairly substantial investment. 

III.  Closing Reflections

I'm sure I've missed some obvious pros and cons in the above description, and would welcome folks' thoughts in the comments. I also suspect that the choice whether to assign a casebook supplement is deeply field- (and even casebook-) specific. And supplements play an increasingly interesting role in the potential transition to electronic course materials--perhaps providing real-time updates online will come to replace the annual print supplement (we already do both for our adopters). But insofar as these considerations can be generalized, the real question I keep grappling with is how we can maximize the upsides of supplements while minimizing their downsides...

John Yoo and Me on the Supreme Court and the Separation of Powers

As part of "Celebrate Liberty" month (a joint project of the Federalist Society and the Washington Times), today's Times includes dueling op-eds by John Yoo and me on the separation of powers after and in light of the most recent Supreme Court Term. Here's John's piece; here's mine.

Perhaps not surprisingly, both pieces focus on the marriage cases. John's starts from the premise that "the Supreme Court cannot finally determine any fundamental constitutional dispute," and goes from there to urge popular resistance to the decision from those who disagree--not through disobedience or defiance, but rather "by seeking judicial nominees who will restore primary control over family law and marriage to the states." Thus, as John concludes, "Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not." 

My piece takes somewhat of a different view. Seizing upon the Obergefell dissenters' claims about the anti-democratic nature of the decision, I argue that an ambitious Supreme Court is actually a healthy thing for the separation of powers (as Madison argued in the Federalist No. 51), so long as the Court is properly exercising judicial power in the formal sense--by deciding cases and controversies within its jurisdiction. Thus, as I conclude, "it’s long-past time that we learned the difference between rulings that exercise judicial power that doesn’t exist, and those that exercise established judicial power to reach a result with which we disagree." It's one thing to criticize Obergefell for reaching the wrong answer to the constitutional question; it's quite another to criticize it for answering that question in the first place. (And the same works in reverse--progressives might critique Heller, Citizens United, and Shelby County on the merits, but it's hard to dispute the claim that the constitutional questions in those cases were properly before the Court, but cf. Fisher.)

Even though we didn't have a chance to see each other's drafts in advance (or, as such, to respond to each otther), I actually think these pieces fit quite nicely--and help to illuminate the ever-ongoing debate over the proper judicial role.

The Fifth Circuit Jumps the Non-Article III Shark

A big thanks to Will Baude for alerting me to yesterday's fascinating decision by the Fifth Circuit in United States v. Hollingsworth, in which a divided panel upheld the constitutionality of a non-Article III magistrate judge trying without the defendant's consent a petty criminal offense committed on a "federal enclave." Hollingsworth is a great case for federal courts nerds, because it brings together two different threads of the Supreme Court's jurisprudence regarding non-Article III federal adjudication: (1) Congress's power to relegate certain matters to non-Article III magistrate judges; and (2) Congress's power to relegate certain matters to non-Article III "territorial" courts. Unfortunately, Hollingsworth combines these threads in a manner that utterly confuses them. Thus, although the panel reached what in my view is the right result, it did so for deeply flawed reasons, which I elaborate upon below the fold.

The facts of Hollingsworth are pretty straightforward; David Hollingsworth was tried and convicted before a federal magistrate judge in the Eastern District of Louisiana for simple assault at the Naval Air Station Joint Reverse Base New Orleans in Belle Chasse, a "federal enclave" that is within the "special maritime and territorial jurisdiction of the United States." No one disputes that Hollingsworth's crime is a "petty offense" under federal law, because the maximum sentence he could have received was six months' imprisonment. Hollingsworth was tried without a jury before a non-Article III federal judge, and, after an unsuccessful appeal to the district court, appealed his conviction to the Fifth Circuit on the grounds that such a trial (without his consent) before a non-Article III judge violated Article III and his Sixth Amendment right to a jury trial. 

Writing for a 2-1 majority, Judge Clement held that Hollingsworth's claims were foreclosed by the Supreme Court's 1973 decision in Palmore v. United States. Palmore, readers may recall, upheld Congress's power to create a non-Article III court of general jurisdiction within the District of Columbia, almost entirely based upon Justice White's (flawed) analogy of the D.C. Superior Court to state courts. But while Palmore's reasoning has been heavily criticized, the basic proposition it establishes (that Congress can establish non-Article III courts in federal territories) is generally accepted today. Thus, Judge Clement concludes, "[U]nder Palmore, Hollingsworth has no constitutional right to trial before an Art. III court. . . . Pursuant to Clause 17, Congress could have referred all trials for crimes committed at Belle Chasse to an Article I judge, including felony trials.But Congress chose to refer only trials for petty offenses to federal magistrate judges."

In other words, Judge Clement reads into Congress's (in her view, greater) power to create non-Article III courts in federal territories the arguably lesser power to have magistrate judges try all offenses committed within those territories--and it's just Congress's good graces that stopped it from empowering magistrate judges to try anything other than petty offenses in this case. 

The problem with this analysis is that it misreads the relevant statutes, and thereby conflates two very different justifications for non-Article III adjudication. The justification for territorial courts is tied entirely to Congress's unique (and plenary) regulatory power over federal territories; the justification for trying petty offenses before magistrate judges is tied entirely to a different consideration--that there's no right to trial by jury in such cases, regardless of where they are committed (indeed, this is the almost tautological conclusion of Part II of Judge Clement's opinion). Thus, Hollingsworth was tried under the general (and aterritiorial) statutory authority that empowers federal magistrate judges to try petty offenses without a jury even if the defendant doesn't consent.

Indeed, the only reason why the territorial location is significant in Hollingsworth is because simple assault is only a federal offense (albeit a petty one) when committed within the "special maritime and territorial jurisdiction of the United States." But once it's established that Hollingsworth has committed a federal offense, the fact that it was committed on a federal enclave is irrelevant to the statutory (and, in my view, constitutional) authority of the magistrate judge. In other words, Hollingsworth has nothing at all to do with Palmore. Given that I don't think it follows from Palmore that magistrate judges can try any offense committed on federal territory (for a bunch of reasons that I plan to elaborate upon in future writings), it was therefore completely unnecessary for the Fifth Circuit to decide this (novel) question.

Instead, the real question is whether non-Article III magistrate judges may generally try petty offenses without the defendant's consent. But as I've explained at some length in my (hot-off-the-presses) article on military courts, the Supreme Court has long equated the validity of non-Article III adjudication, at least in criminal cases, with the absence of a right to trial by jury. Note that this doesn't explain Palmore (where the defendant clearly did have a right to trial by jury), but that it does explain, among other lines of jurisprudence, nearly all of the Court's military justice case law, and the power of non-Article III federal courts in the insular territories (where the jury-trial provisions arguably don't apply) to try all criminal offenses.

In other words, instead of relying upon a settled line of non-Article III precedent (pursuant to which, contra Judge Higginson's dissent, non-Article III judges are allowed to try petty offenses), the Fifth Circuit unnecessarily (and, in my view, improperly) extended Palmore--a troubling enough precedent in its own right--to allow Congress to subject all offenses committed on federal territories to trial by magistrate judges. 

Oy.

Armstrong: Is Utterly Disingenuous Statutory Interpretation Ever Worth It?

Howard already promised that my reaction to today's Supreme Court decision in Armstrong v. Exceptional Child Center would be "blistering," and I'd hate to disappoint.

In a nutshell, a 5-4 conservative majority (the usual suspects, but for Breyer and Kennedy switching sides) held that Medicaid providers may not pursue suits for injunctive relief against state officers who allegedly violate the "equal access" provision of the Medicaid act because (1) the Supremacy Clause itself doesn't provide a freestanding cause of action; and (2) even if such a cause of action has traditionally been available in equity, Congress displaced such remedies when it enacted Medicaid in 1965 (or, at the very least, when it codified the equal access provision in 1989). [Full disclosure: I co-authored a brief on behalf of former HHS officials as amici curiae in support of the Respondents.]

As a result, the only way to enforce the "equal access" mandate--one of the most significant substantive requirements of the Medicaid program--is for the Department of Health and Human Services to withhold Medicaid funding from violating states, something the Department neither has the ability nor the inclination to do. But whereas I had warned in an earlier post that a bad result in Armstrong could mean doom for Ex parte Young (which I elsewhere described as the sleeper Federal Courts case of the Court's October 2014 Term), the hyper-specific focus on the equal access provision in both Justice Scalia's majority opinion and Justice Breyer's concurrence almost certainly reduces the precedential effect of today's decision. The only downside (for anyone other than Medicaid recipients and providers, anyway), is that it does so at the expense of any shred of credibility--reigniting the debate over the virtues (and vices) of "this train only" analyses.

I.  Congress's Intent to Foreclose Equitable Relief

The basic thrust of Justice Scalia's majority opinion has three prongs: (1) the Supremacy Clause does not provide a freestanding cause of action; (2) causes of action to enjoin allegedly preempted state laws probably are available under traditional principles of equity; but (3) in the Medicaid statute, Congress intended to displace those principles, much as the Court held with respect to the Indian Gaming Regulatory Act in Seminole Tribe. Federal Courts scholars can (and surely will) debate the significance of (1) in light of (2), but the heart of the matter is (3).

In the key passage of the majority opinion, Justice Scalia invokes two aspects of the equal access provision that, in his view, demonstrate Congress's intent to foreclose traditional equitable remedies: "First, the sole remedy Congress provided for a State’s failure to comply with Medicaid’s requirements—for the State’s 'breach' of the Spending Clause contract—is the withholding of Medicaid funds by the Secretary of Health and Human Services." Second, while "[t]he provision for the Secretary’s enforcement by withholding funds might not, by itself, preclude the availability of equitable relief. . . . it does so when combined with the judicially unadministrable nature of §30(A)’s text." Thus, "[t]he sheer complexity associated with enforcing §30(A), coupled with the express provision of an administrative remedy, shows that the Medicaid Act precludes private enforcement of §30(A) in the courts."

There are two separate, but equally fatal flaws with this analysis:

First, the equal access provision is not remotely "unadministrable." In the immediate wake of the equal access mandate’s enactment, HHS not only acquiesced to judicial administration of the provision; it actively participated in the process. Indeed, from 1989 through Gonzaga (after which private suits to enforce the equal access provision became far more difficult), there were any number of cases in which courts considered whether state Medicaid plans were consistent with the equal access provision. But even if there weren't this history (which Justice Scalia completely ignores), the logic is in any event internally inconsistent. After all, the more aggressive administrative review that Justice Scalia holds out as the alternative to private enforcement would presumably only increase the number of adverse actions taken by HHS--and, as such, administrative appeals by states--which would return the question of state compliance with the equal access provision to the courts. 

Second, if the point of this exercise is to divine Congress's intent, how could the creation of an administrative review scheme (in 1965) thereby communicate Congress's view that it means for a provision it enacted 24 years later to not be judicially administrable? Of course, it can't. What matters is what Congress thought in 1989 when it codified the equal access provision. And if the touchstone of Justice Scalia's analysis is Congress's intent, how does he reconcile this analysis with the familiar (if nowhere mentioned) presumption that Congress must speak clearly when it wishes to displace traditionally available equitable remedies? (Needless to say, no such clarity can be found in the 1989 statute.) At a more fundamental level, if congressional intent is so essential to Justice Scalia's analysis, why is there no discussion whatsoever of the history of the equal access provision, or what Congress thought it was doing when it codified what had previously been a regulatory requirement in 1989? (Or how the regulation had been interpreted prior to 1989--and whether Congress was codifying that understanding?)

Taken together, these two flaws suggest that Justice Scalia was attempting to do through the back door what he must not have had five votes to do through the front: To incorporate the deeply skeptical approach to implied causes of action in cases like Sandoval and Gonzaga into the context of Ex parte Young-like suits for injunctive relief against state officers for violating federal law. As in Sandoval and Gonzaga, the congressional intent question seems really to be asking whether Congress meant for the right at issue to be privately enforceable; but if it did, then there'd be no need for implied causes of action--the statute would be read to furnish one expressly.

The difference between Sandoval and Gonzaga, on the one hand, and Armstrong, on the other, is that this inquiry now takes the form of congressional intent for "judicial administrability," and it remains to be seen how skeptically lower courts will approach that inquiry going forward. Whether Armstrong will be a big deal or a little deal depends entirely on the answer to that question.

II.  The Resurgence of Westside Mothers

Compared to the flaws documented above, the "plurality" part of Justice Scalia's opinion---Part IV--hardly merits a mention. But it's still alarming that, in a case where it didn't matter, four Justices still went out of their way to dredge up the long-since-discredited "Westside Mothers" approach to Spending Clause statutes, named after a district court decision that held that Spending Clause statutes are more like "contracts" for constitutional purposes than they are Acts of Congress--which, among other things, means they ought not to be enforcable by third-party beneficiaries. 

What's more troubling than the revitalization of this idea in the abstract is what Justice Scalia does with it--erecting a presumption that statutes won't authorize private parties to challenge Spending Clause statutes absent some "unambiguously conferred" right to sue (citing Gonzaga). To be sure, this part of the opinion was only joined by Chief Justice Roberts and Justices Thomas and Alito--but it doesn't bode well for future efforts to enforce any Spending Clause statutes against states absent an express cause of action (and, as in Gonzaga, perhaps even then).

III.  Justice Breyer's Inexplicable Deference to the Agency

Lots of folks may have been most surprised by Justice Breyer's role here--joining the otherwise conservative majority while Justice Kennedy sided with the dissent. To be honest, I wasn't; many of us who were involved in Armstrong had long assumed that he was the key, and his opinion concurring in the judgment makes quite clear his near-absolute preference to defer to administrative enforcement where complex cooperative regimes are implicated. In his words, "If the Secretary of Health and Human Services concludes that a State is failing to follow legally required federal rules, the Secretary can withhold federal funds. If withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules."

Had Justice Breyer actually read the amicus brief by former HHS officials (yes, I'm biased), he might have understood the naivete of resting on the specter of administrative enforcement here. Indeed, as we explained in detail, it has never been HHS's position that private enforcement of the equal access provision would in any way interfere with the Secretary's ability to enforce Medicaid more generally; it's only been the Justice Department's position. I'm all for deferring to agencies on matters within their expertise, but doesn't that deference also suggest that we ought to listen to them when they say they're not in a position to enforce this provision by themselves? Breyer closes his concurrence by suggesting that "Congress decided to vest broad discretion in the agency to interpret and to enforce § 30(A)." Of course that's true. But if the agency's position is that its enforcement of federal law is aided, not hindered, by private suits, why shouldn't that matter? There may well be an answer; Justice Breyer doesn't say.

IV.  Howard's § 1983 Question

Finally, I'd be remiss in not saying a quick word about the question Howard raised in his post--whether, for folks like me (and Justice Sotomayor, in her dissent), the suits in equity we believe are available renders § 1983 superfluous. Candidly, I think Howard has the matter entirely backwards. If one assumes that courts will hesitate to infer causes of action for injunctive relief from background principles of equity when Congress has spoken expressly to the matter at hand, then it's § 1983 that should have rendered the cause of action at issue in Armstrong superfluous--not the other way around.

It's worth reiterating that the equal access provision was routinely enforced through suits for injunctive relief under § 1983 in the 13 years between when it was formally codified and when the Supreme Court scaled back the availability of § 1983 suits in Gonzaga. (One especially poignant case in point is an en banc Third Circuit decision written in 2002 by then-Judge Alito.) Thus, the fact that Howard is even asking this question after and in light of Armstrong shows how successful the Court has been in changing the narrative--from the general availability of causes of action like the one in Armstrong as recently as 15 years ago to their increasing (if not categorical) unavailability today. But for Sandoval, Gonzaga, and a run of other decisions, plaintiffs might not be left with falling back on implied remedies that had previously been overrun by far clearer cause-of-action rules. 

To be sure, the Armstrong Court didn't go so far as Chief Justice Roberts suggested it ought to in his dissent in Douglas, and so perhaps did not do as much damage to Ex parte Young and other theories of federal remedies as I (among others) had feared. But is a decision based on an utterly disingenuous interpretation of a critically important federal statute so much better?

Amanda Frost on Chief Justice Moore and the "Inferior" Federal Courts

[The following guest post is by my friend and WCL colleague Amanda Frost:]

Alabama Chief Justice Roy Moore is making news again.  As reported on this blog by Howard Wasserman, he has advised Alabama probate judges to ignore an Alabama federal district court’s ruling that Alabama’s ban on same sex marriage is unconstitutional.  In a fascinating memo laying out his position, Moore argues that state courts are not obligated to follow lower federal courts’ decisions.  I’m very interested in this question, and I recently wrote an article examining the constitutional relationship between state courts and the lower federal courts.  (My article was cited by an Alabama Supreme Court Justice Bolin, who concurred in that Court’s decision on Monday refusing to “clarify” the question for the probate judges.)

I begin my article by noting that states and lower federal courts often disagree over the meaning of federal constitutional law, creating intra-state splits that can linger for years before the Supreme Court grants certiorari to resolve them.  Those splits occur because most (though not all) state courts adopt the mainstream view that they need not follow lower federal court precedent.  But the constitutional arguments for that position are surprisingly shaky.  For example, Chief Justice Moore (like others) argues that state courts don’t have to follow lower federal court precedent because lower federal courts don’t review state court decisions.  But of course appellate review is not the primary reason that one court follows another’s precedent.  (If it were, then all federal courts should be free to ignore state supreme courts’ views on state law, since state courts never review federal court decisions.) 

True, as a constitutional matter Congress is under no obligation to establish lower federal courts, and thus the Framers accepted the possibility that state courts would decide all federal questions in the first instance.  But Congress has created a large network of “inferior” federal courts, so perhaps the presumption should now be that these courts’ decisions “preempt” conflicting state court decisions.  Moreover, the Framers assumed that Supreme Court review would always be available to reverse recalcitrant (or simply wrongheaded) state judges who failed to follow federal law.  That was true in the early days of our nation, but in an era in which the Supreme Court reviews no more than a handful of state court decisions each year, it makes sense to require state courts to avoid creating intra-state splits by following their regional court of appeals. 

Some might argue that requiring state courts to follow lower federal court precedent would impinge on state sovereignty.  But state sovereignty arguments in favor of state court independence seem particularly weak in our cooperative system in which state courts are required to hear federal issues whether they want to or not, and are also required to follow the precedent set by the U.S. Supreme Court.  Moreover, state executive branch officials are required to follow lower federal court decisions, so why shouldn’t state judges be required to do so too?  [Aside:  In my view, Chief Justice Moore errs by failing to acknowledge that state probate judges are acting as executive branch officials, and not judges, when they grant marriage licenses.]

In my article, I acknowledge that state courts are unlikely to start following lower federal court precedent just because the constitutional underpinnings for that position are weak.  But I argue that Congress, or even the Supreme Court, could establish a rule requiring state courts to follow their regional federal court of appeals.   This would preserve the benefits of “percolation,” by which an issue gets thoroughly vetted in the lower courts before Supreme Court review, but would also avoid the problem of intra-state conflicts.  If such a rule were in place, Chief Justice Moore would have one less leg to stand on.

With Amici Like These...: A Response to Josh Blackman on Law Professor-Authored Amicus Briefs

Over at his eponymous blog, Josh Blackman wonders out loud about the ethical propriety of a law professor co-authoring an amicus brief when they are one of the listed amici--that is, of being both one of the parties to an amicus brief and one of its authors, hearkening back to the old line about the lawyer who represents himself having a fool for a client. As Josh writes,

The role of the scholar and that of the advocate is different. I don’t know that I can do both simultaneously. As a scholar, I go out of my way to charitably describe both sides of an argument (as best as I can). As an advocate, this tact would be foolish, and possibly unethical to the extent that it impaired my client’s case. As a professor, I would be hesitant to make an argument that hasn’t been completely thought through, as it may impact my scholarly reputation. As an advocate, especially in litigation that is moving quickly, a much more lax standard would apply to provide the tribunal with the best arguments counsel can muster. As an advocate there are certain arguments I would not be comfortable making as a scholar, and vice versa.

Admittedly, I have a dog in this fight, as I have written a number of amicus briefs over the years, many (but not most) of which have been on behalf of groups of law professors that included me. So folks should take my (negative) reaction with a significant grain of salt. That said, I have two principal critiques of Josh's reaction--one that goes to how he frames the problem, and one that goes to the role of amicus briefs, more generally.

First, with regard to Josh's framing of the distinction between the advocate and the scholar, this is, in many ways, just a retread of Dick Fallon's more famous attack on scholarly amicus briefs from a few years back. On the merits, though, it's worth emphasizing that, although counsel on an amicus brief do have ethical obligations, those obligations are to their clients (i.e., the amici), and not to the party (if any) in whose behalf the brief is filed. Thus, the advocate's job is is to zealously describe the amici's position--and not necessarily to take sides as between the parties.

Indeed, some of the most effective law professor amicus briefs are those filed in support of neither party--where the brief is meant simply to educate the court about the particular expertise of the amici. In those contexts, I just don't see the tension Josh identifies--unless, as Fallon worried three years ago, law professors are signing (and co-authoring) briefs they haven't thought through. That's definitely a problem, but it's not an indictment of law professor briefs, writ large. Indeed, it's both my practice and my experience that folks who sign onto the briefs in which I'm involved only do so when they have thought through the issues and when they agree with the underlying position taken by the brief. So long as that's true, what's the ethical difference between a professor who associates herself with that position (by signing the brief) and involving herself in explicating that position (by co-authoring it)? 

Second, as a practical matter, I've always viewed the purpose (and best practices) of law professor amicus briefs to be to illuminate relevant aspects of the case that are beyond either the interest or the experience of the parties--and to do so in a way that does not come across like a party's brief, but that rather takes more of an academic high road. (Indeed, various court rules require amicus briefs to offer arguments not made by the parties.) If we agree that at least most law professor amicus briefs should aspire to this model, then it's usually quite beneficial, if not essential, to have an academic lawyer who is also one of the substantive experts involved in the drafting--since she may often have a better handle on the academic position(s) the brief is designed to take than practicing lawyers who spend their lives in the litigation trenches. In other words, it's not just that I see no ethical problem with academics co-authoring academic amicus briefs; it's that I think it redounds only to the benefit of those briefs--and of their likelihood of at once (1) accurately conveying the amici's position; (2) in a manner likely to be considered a "true" amicus brief. Otherwise, what Josh is suggesting is that academic experts either not involve themselves in drafting the brief that is ultimately on their behalf, or not include themselves as one of the experts whenever they have helped to draft the argument--even when their academic expertise and their legal drafting perfectly dovetail.

Don't get me wrong: I agree, and always have agreed, with Fallon's central charge that too many law professors sign too many amicus briefs without thinking carefully about the position the brief is taking or how that position is both (1) one on which the signing scholar has relevant expertise; and (2) something the scholar completely supports. But there are plenty of law professor amicus briefs to the contrary that take narrow and academic positions on specific substantive issues not adequately briefed by the parties. In those cases, not only do I not see a problem with those professors involved in writing the brief also signing on as amici if they have the relevant expertise; it's my experience that such bookended involvement only tends to make the brief more useful to the courts, and, therefore, more effective.

 

The Sleeper Case of the Supreme Court's October 2014 Term?

Over at SCOTUSblog, Will Baude has posted a helpful (and helpfully concise) preview of the oral argument that will take place before the Supreme Court later this morning in Armstrong v. Exceptional Child Center, a case I've blogged about before (and in which I've filed an amicus brief on behalf of former HHS officials and in support of the Respondents--the Medicaid providers). Rather than rehashing the arguments made by the parties or amici (or my prior posts), I wanted to use this post to make a different claim. Specifically, as I aim to demonstrate below the fold, in a Supreme Court Term the headlines from which will almost certainly be dominated by some combination of same-sex marriage, ACA subsidies, and passports for Jerusalem-born U.S. citizens, Armstrong could well be the biggest sleeper--the case that flies under the radar of all but the most ardent Court-watchers (or federal courts nerds), but produces the most significant long-term consequences for the American legal system. 

I.  The Underlying Debate in Armstrong

Among other things, Will's preview for SCOTUSblog does a really nice job of identifying the two very different threads of jurisprudence that Armstrong brings together: (1) the Supreme Court's late-developing but sweeping hostility to inferring causes of action from statutes that don't expressly provide them; and (2) the Court's longstanding practice of allowing litigants to pursue injunctive relief for constitutional violations notwithstanding the absence of an express cause of action authorizing such relief in many cases. Armstrong falls into this gap because the plaintiffs are private parties seeking to enforce a federal statute against a state officer--and they thereby have a federal statutory claim buttressed by the Constitution's Supremacy Clause. In other words, the plaintiffs are seeking to enforce the Constitution insofar as they are seeking to use it to stop a state officer from violating a federal statute.

Thus, Armstrong is different from purely statutory cases--where private parties seek to enforce federal statutes against other private parties--and from more classical constitutional cases--where private parties seek to enforce constitutional rights against government officers. As Will frames it, "[their] claim has both a statutory element and a constitutional element.  This raises the question whether it should be analogized to the statutory cause-of-action cases or the constitutional ones." And although the Supreme Court has expressly recognized the existence of a Supremacy Clause-based cause of action in such cases, it hasn't revisited that line of precedent since its more recent decisions (Alexander v. Sandoval and Gonzaga University v. Doe foremost among them) scaling back implied statutory remedies.

Trying to salvage some kind of middle ground, the federal government, as amicus curiae in support of Idaho, has argued that the Court needn't resolve that larger question because, whether or not any federal statutes can be enforced against state officers this way, the statutory provision at issue--the "equal access" mandate of the Medicaid Act--was never meant to be one of them. But if the Justices are convinced by the contrary arguments about the Medicaid Act offered by the former HHS officials' brief (I'm biased), then the Court is indeed faced with this stark choice--between treating these claims as subject to the skepticism of the Sandoval / Gonzaga line of cases, or as subject to the body of cases unhesitatingly allowing such narrow claims for injunctive relief.

II.  The Douglas Dissent--and Its Potential Consequences

As Will explains, we already have a pretty good idea how at least four of the Justices will vote, since, when this exact issue was before the Court in 2012 (in Douglas v. Independent Living Center of Southern California), Chief Justice Roberts wrote a lengthy dissent on behalf of himself and Justices Scalia, Thomas, and Alito that would have rejected the availability of a Supremacy Clause-based cause of action. In the Chief's words, 

[T]o say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U.S.C. §1983 jurisprudence. . . . This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.

As I've written before at some length, this argument doesn't actually follow; among other things, the plaintiffs in Douglas and Armstrong are seeking injunctive relief against a state officer grounded in the Supremacy Clause--a hypernarrow claim that would be available in a far smaller class of cases (and against far fewer potential defendants) than those foreclosed by Sandoval, Gonzaga, and their progeny. Thus, (1) recognizing such a cause of action would not provide an "end-run" in the vast majority of cases; and (2) in those cases in which it would provide such an "end-run," such an end-run is necessarily grounded in the Constitution (via the Supremacy Clause), which is simply not implicated in the Sandoval / Gonzaga line of cases. 

Separate from its analytical shortcomings, the more serious problem with the Chief Justice's dissent in Douglas is its implications. After all, it's hard to see why the same logic, if it attracts a fifth vote, wouldn't apply to "classic" constitutional claims, as well. Is it somehow less unconstitutional for a state officer to violate a federal statute than it is for a state or federal officer to violate the Bill of Rights and/or the Fourteenth Amendment? If not, why would litigants be allowed to pursue injunctive relief without an express cause of action in the latter class of cases, but not the former? Chief Justice Roberts didn't really answer this question in his Douglas dissent; he merely suggested that his reasoning wouldn't apply to "the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law." Thus, as I wrote after Douglas,

The dissenters would have limited Supremacy Clause-based injunctions to situations in which (1) the underlying federal right was itself privately enforceable, or (2) injunctive relief was sought to preempt an impending state enforcement proceeding. Whether or not such a result would be normatively desirable, it would be inordinately momentous, for it would suggest that the Supremacy Clause is only violated by a state’s actual enforcement of a preempted federal law, and not merely the enactment or potential enforcement thereof. In any case in which the underlying federal right could be violated without a state enforcement action, the Douglas dissenters would foreclose injunctive relief unless Congress specifically provided a cause of action.

To be sure, those who agree with Chief Justice Roberts might respond that, for constitutional provisions (unlike statutory provisions), litigants could still rely upon 42 U.S.C. § 1983 to provide a cause of action--and so injunctive relief would still be available to enforce the Bill of Rights and the Fourteenth Amendment (at least, until the Court applies Gonzaga's reasoning to such claims). But, criticallly, that caveat would not apply to claims for injunctive relief against federal officers (§ 1983 only provides a cause of action against state officers). Thus, if Armstrong comes out along the lines of the Chief Justice's Douglas dissent, it will become much harder, overnight, for parties to enforce the Constitution against the federal government.

Even if the Court finds some way to split the difference between Supremacy Clause-based claims and claims to enforce constitutional "rights," five votes for the Chief's dissent in Douglas would still make it all-but impossible to enforce most federal statutes against state officers--and, more generally, for any party to pursue Supremacy Clause-based injunctive relief in the federal courts in cases in which there is no express cause of action. This is so because federal statutes are seldom invoked as defenses to state enforcement proceedings. Indeed, the federal statutes that matter the most tend to be those, like Medicaid, that impose affirmative duties on the states--duties that can be violated through omission or inaction, i.e., by a state not enforcing anything. 

Lest this discussion seem too ethereal, consider the complaint brought by Nebraska and Wyoming against Colorado directly in the Supreme Court challenging Colorado's legalization of marijuana. For starters, it's worth flagging the fact that both Nebraska and Wyoming joined an amicus brief in support of Idaho in Armstrong that categorically argued against allowing suits for injunctive relief grounded in the Supremacy Clause (but see page 1 of their Complaint against Colorado--invoking the Supremacy Clause as the basis for relief). As Jonathan Adler rightly pointed out at the Volokh Conspiracy, such hypocrisy certainly makes these states look like "fair-weather federalists." 

Politics aside, the more important point is that the Nebraska and Wyoming complaint reflects how deeply ingrained the availability of injunctive relief under the Supremacy Clause is--whether the plaintiffs are states or Medicaid providers. If Armstrong reverses that longstanding assumption, it will make it much more difficult for litigants to (1) enforce constitutional rights against federal officers; and (2) prevent state officers from violating federal law. That makes it a hugely important case--and my vote for the potential "sleeper" of the Court's October 2014 Term.

Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong

Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:

Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?

As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).

One of the interesting back-stories to Douglas, which I covered in some detail on this blog, was the aggressive (and, in my view, disappointing) anti-private-enforcement position taken by the Solicitor General in an amicus brief filed in support of California. Leaving aside the controversial merits of the SG's Douglas brief, it was also a position that was radically inconsistent with the historical position of the Department of Health & Human Services (HHS) on the private enforcement question, especially with regard to "Section 30(A)"--the Medicaid Act's requirement that states set reimbursement levels high enough so that Medicaid recipients are able to have "equal access" to median quality medical care. Without this "equal access" mandate, economic pressures would almost certainly lead states to reimburse providers at the lowest possible levels, which in turn would likely relegate Medicaid recipients to the worst available providers. The problem, as the ACA litigation helped demonstrate, is that HHS doesn't have a lot of choices when faced with a state violating the Medicaid Act. The only real "stick" HHS possesses in such a scenario is the drastic remedy of cutting off Medicaid funding--which punishes the beneficiaries far more than it punishes recalcitrant states.

To that end, and tellingly, HHS did not sign the SG's Douglas brief, even though it had signed the SG's more equivocal cert.-stage amicus in the same case (which had recommended that the Court not take the case). Instead, in Douglas, I helped to put together an amicus brief on behalf of "Former HHS Officials," explaining why, because of the reality described above, (1) HHS has historically supported private enforcement of the Medicaid Act (and Section 30(A) in particular); and (2) partly as a result of this historical pattern, and partly for other reasons, lacks the institutional, political, financial, or administrative resources effectively to enforce Medicaid all by itself. 

As in Douglas, the SG has once again sided with the states in Armstrong--albeit in an amicus brief that appears, at first blush, to be far more modest. Instead of opposing Supremacy Clause-based claims for injunctive relief in general, the SG's Armstrong amicus punts on that question, arguing that the Court need not resolve that general issue because "recognition of a private right of action under the Supremacy Clause in this case would be incompatible with the statute, the methods for its enforcement, and respondents’ claim."

And as in Douglas, a group of former HHS officials (including 15 senior administrators from three different administrations, led by former Secretaries Califano and Shalala) has now filed an amicus brief disputing the SG's position--and documenting how, 

Since the early days of the Medicaid program, federal courts have recognized that providers may sue to ensure that state Medicaid plans conform to the requirements of federal law. Congress intended for such enforcement, and HHS has understood—and come to rely upon—its existence.

The brief, which I co-authored along with Matt Hoffman and Andrew Kim from Goodwin Procter, is in some important ways different from the brief we filed back in Douglas. There, our focus was on the SG's (since abandoned) position that private enforcement of the Medicaid regime would generally interefere with HHS's enforcement authorities and discretion. Here, our focus is on the SG's more modest claim about congressional intent and judicial enforcability of Section 30(A). Thus, the SG's Armstrong brief argues that Congress never intended for such private enforcement--and, even if it did, that courts would struggle to provide such enforcement given the vague language of the "equal access" provision's mandates.

Our brief rejects both of those claims, demonstrating how, not only have courts routinely applied Section 30(A)'s procedural and substantive requirements without serious difficulty (and, indeed, would have to do the same thing if HHS started to reject state Medicaid plans on the ground that they violate Section 30(A)), but how that provision--one of the Medicaid Act's most important requirements--would effectively be unenforcable without private enforcement by Medicaid beneficiaries or providers through some vehicle.

In other words, insofar as the SG's brief tries to duck the larger question implicated in Armstrong by arguing that Section 30(A) is an especially weak federal statute to enforce through such a Supremacy Clause-based injunctive action, our brief argues that it is, in fact, a textbook case for such a claim--since it is an essential federal mandate against states that, without such private enforcement, would almost certainly be frustrated.

Idaho's opening brief is available here; the Respondents' opening brief is here. Oral argument is scheduled for Tuesday, January 20.

Erie and/in the District of Columbia

An otherwise routine decision this morning from the D.C. Circuit raised a question I must confess to never before having considered: Why do the Article III D.C. district court and D.C. Circuit consider themselves bound to follow the Article I District of Columbia Court of Appeals on questions of "District of Columbia" law? After all, (1) D.C. is not a state; and (2) D.C. is not covered by the Rules of Decision Act (which, unlike plenty of other federal statutes, does not treat D.C. like a state); and (3) the provisions of the D.C. Code (and, presumably, the decisional law of the D.C. Superior Court and D.C. Court of Appeals) are, for constitutional purposes, federal law--such that it's not even clear the Rules of Decision Act would apply even if it did treat D.C. as a state. Thus, not only is a federal court sitting in diversity and applying D.C. law not bound by the Rules of Decision Act to follow the decisions of the D.C. Court of Appeals; there actually is something that seems untoward about an Article III court being bound by a non-Article III court's interpretation of federal law--even where that federal law is only of local applicability.

Fortunately, hours ten minutes of research led me to the following footnote in a 1979 D.C. Circuit decision, which appears to be the originating citation for all subsequent statements that the Article III D.C. courts defer to the D.C. Court of Appeals on questions of D.C. law:

We do not mean to imply that application of District of Columbia law is mandated by Erie R. R. v. Tompkins, 304 U.S. 64 (1938). In the first place, Congress, when [it bifurcated the D.C. courts into separate Article I and Article III tribunals in 1970], did not amend the Rules of Decision Act, 28 U.S.C. § 1652 (1976), to include the District of Columbia within its ambit. Had Congress wished the Rules of Decision Act to govern in situations such as the one before us, it could easily have revised the act after the fashion of 28 U.S.C. § 1332(d) (1976), which denominates the District of Columbia a “state” for purposes of diversity jurisdiction. Secondly, the constitutional considerations discussed in Erie have no force in this context, for the District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment.

Nevertheless, we have in past diversity cases looked to the District of Columbia's courts to provide the applicable choice of law principles and substantive rules of decision. That seems proper because the Court Reform Act made the District of Columbia Court of Appeals the “highest court” of the District, and thus the principal arbiter of District law . . . . Indeed, were we not to yield a measure of deference to the District of Columbia Court of Appeals, two courts neither of which could review the other's decisions would engage independently in the process of formulating the local law of the District. That would subvert the dual aims of Erie: discouraging forum shopping and promoting uniformity within any given jurisdiction on matters of local substantive law.

Other than the suggestion that the D.C. Court of Appeals should have the final say on D.C. law (a matter which, again, seems to ignore the extent to which D.C. law is federal law, at least for constitutional purposes), this argument seems quite persuasive to me as a normative matter. But what it means in practice is that the only reason today that Article III judges must defer to the D.C. Court of Appeals on questions of D.C. law is because the D.C. Circuit itself has said so--and so stare decisis, and not the Rules of Decision Act or principles of federalism--carries all the weight (and would not bind federal courts outside of the D.C. Circuit in diversity cases in which choice-of-law rules compel application of D.C. substantive law).

State Courts Choosing to Follow Federal Precedents

Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:

One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.

Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:

I.  Doctrine

Doctrinally, the closest (and most recent) case on point is the Supreme Court's 2008 decision in Danforth v. Minnesota. Danforth was a case about the ability of prisoners to retroactively invoke "new" Supreme Court decisions that were handed down after their direct criminal appeal became final. The Supreme Court has erected a very high bar to when such "new" rules can be retroactively enforced via federal habeas petitions, and the Court had already held that its 2004 Confrontation Clause ruling in Crawford v. Washington was not retroactively enforceable in federal habeas petitions. 

But Danforth held that state courts are free, as a matter of state law, to give retroactive effect to new Supreme Court decisions like Crawford in state collateral post-conviction proceedings. In other words, if one accepts that the Supreme Court's interpretation of a constitutional provision is itself federal law, Danforth holds that state courts can choose whether or not federal law (Crawford) that wouldn't be binding in a federal post-conviction proceeding can nevertheless be binding in a state post-conviction proceeding. (That this is what Danforth necessarily allows is made quite clear by Chief Justice Roberts' rather sharp dissent.)

At least as a matter of current doctrine, then, there's at least some support for the notion that state courts can, indeed, choose whether and under what circumstances they will be bound by federal precedents that wouldn't otherwise be binding. Michael may well believe that Danforth is wrongly decided. But if it isn't, it seems difficult to square with his conclusion that " a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control."

II.  Policy

Separate from Danforth, I have to say that this result makes sense to me. If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don't see how that raises any kind of federal constitutional concern under the Supremacy Clause.

It may be silly (or wrong) as a matter of state law, but it seems to me that that's up to the relevant state (whether through its legislature or court of last resort) to decide. Of course, by dint of the structure of appellate jurisdiction, state courts are usually bound as a matter of federal law by the Supreme Court's interpretations of federal law--but Danforth is a rare example of a case in which that's not true. And state courts are never bound as a matter of federal law by the lower federal courts' interpretations of federal law. And so it should follow that the same logic applies to decisions of lower federal courts interpreting federal laws--that a state can choose to be bound by that decision as a matter of state law, and that nothing in federal law (including the Constitution) either requires them to so choose, or prevents them from doing so.

The "Oral Argument" Podcast

I realize that, for some, podcasts are very five years ago. But for those who still partake, one of my favorite legal podcasts is "Oral Argument," produced by (and starring) my friends (and University of Georgia School of Law Professors) Joe Miller and Christian Turner. Unfortunately, in this week's episode, they fell victim to one of the classic blunders: They had me as the guest. Among other things, we talked in detail about the minefield that is the availability of private remedies to challenge government action (see, e.g., Howard's post on the Eleventh Amendment). The catalyst of the discussion is the Armstrong case the Supreme Court is scheduled to hear during its upcoming Term (which, as I've previously written here, could be the real sleeper of the Term if the Court scales back the availabity of Ex parte Young relief).

This week's blip notwithstanding, the other episodes have been quite entertaining (and enlightening), at least for nerds like me...

Is Ex parte Young Doomed?

Among the 11 cases in which the Supreme Court granted certiorari this morning is Armstrong v. Exceptional Child Center, a case out of Idaho (via the Ninth Circuit) that asks "Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute." This is the exact same question that the Supreme Court had before it--and narrowly ducked--two years ago in Douglas v. Independent Living Center of Southern California, a case I've written about here previously. And the fact that the Court has once again decided to take it up does not bode well for the plaintiffs--or, as I'll explain below, the future availability of remedies under Ex parte Young.

In Douglas, a 5-4 majority vacated the Ninth Circuit's affirmative answer to that question based upon an intervening change in the administrative posture in the case--without endorsing or criticizing the Court of Appeals' ruling. But in a strongly worded dissent on behalf of himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts argued that such remedies under the Supremacy Clause should not be available, lest the Supremacy Clause provide litigants with a means of making an end-run around their inability to enforce section 30(A) (the Medicaid statute's critical requirement that states fund Medicaid at levels sufficient to guarantee "equal access" to quality providers) either directly or via 42 U.S.C. § 1983. For Chief Justice Roberts, Douglas should have followed directly from the Court's earlier decisions in Alexander v. Sandoval (limiting direct enforcement) and Gonzaga University v. Doe (limiting 1983). Taking those cases one crucial step further, the Douglas dissent would have held, for the first time, that litigants may not pursue injunctive relief against state officers for violations of federal law under Ex parte Young unless the underlying federal law is itself privately enforceable. 

The reason why such a conclusion would not be inconsistent with Ex parte Young and its progeny, the Chief Justice explained, is because "Those cases . . . present quite different questions involving the pre-emptive assertion in equity of a defense that would otherwise have been available in the State's enforcement proceedings at law.” This hyper-narrow view of the scope of Ex parte Young, which was most forcefully advanced in a 2008 Stanford Law Review article by UVa Professor John Harrison, has never been embraced by a majority of the Supreme Court, and cannot be squared with any number of subsequent Supreme Court decisions. As Justice Scalia reiterated just three years ago, “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’" And because of these modest prerequisites, as then-Justice Rehnquist wrote in 1974, Ex parte Young "has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.” In other words, litigants have been able to use Ex parte Young to affirmatively and prospectively vindicate federal rights against state officers whether or not they are otherwise facing state enforcement proceedings in which those rights might provide a defense. On the Douglas dissenters' view, such remedies would only be available when such enforcement proceedings were nigh... 

And yet, Douglas came within one vote of cementing this far narrower understanding of the availability of such relief. And Justice Kennedy (who joined Justice Breyer's majority opinion in Douglas that ducked the issue) has already expressed at least some support for this view of Ex parte Young elsewhere. After Douglas came out, I wrote a short essay about the bullet that the Douglas Court dodged. With this morning's grant in Alexander, it increasingly appears that any solace one might have taken from that result may well be short-lived.

[Full disclosure: I co-authored an amicus brief on behalf of former HHS officials in support of the Respondent in Douglas--which argued, contrary to the position advanced by the Solicitor General in his amicus brief, that HHS has historically understood private enforcement of the equal access provision to be a critical part of the Medicaid scheme.]

The Washington Redskins, the Lanham Act, and Article III

As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.

I.  The Lanham Act's Cause of Action for "Adverse" Parties

In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:

an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.

But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:

Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.

Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.

II.  The Case-or-Controversy Requirement

But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.

The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.

On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.

As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...

III.  The Equities

Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)

Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.

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 ([email protected]), 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. 

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.

The practical effect of these beclouded expansions is only now becoming visible. Thus, in two recent high-profile Bivens cases, both the D.C. and Seventh Circuits (the latter sitting en banc) reversed a trial court’s recognition of a Bivens claim on interlocutory appeal of the denial of qualified immunity, even though neither court of appeals disturbed the district court’s underlying determination of non-immunity. And whatever might be said about the continuing viability of Bivens claims, lower courts have begun to piggyback other legal questions going to the merits onto interlocutory immunity appeals, as well.

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.!

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 protected]), 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. 

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.

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.

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.

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)...

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...

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:

1. 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.
2. 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.
3. 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!

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...

"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... 

"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?

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.

Mazel tov!

Hearty congrats to Steve Vladeck on his marriage last night to Karen Shafrir.  We're all very excited for you both, Steve and Karen!

 

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...

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.

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.

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.

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...

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...

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.

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.

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...

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.

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...

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 ([email protected]). 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.