Friday, June 29, 2012

Did Chief Justice Roberts Craft a New, More Limited Commerce Clause?

In a word: No.  Or, even if yes, just by a hair--by adding just a footnote to the current doctrine.  Here's why.

Let's start with some background on the health care case.  While a five-Justice majority on the Supreme Court, led by Chief Justice Roberts, ruled yesterday that Congress could enact universal coverage in the Affordable Care Act under its taxing authority, a different five-Justice majority ruled that it couldn't enact it under the Commerce Clause.  Chief Justice Roberts found himself--or, more precisely, placed himself--with each majority.

Chief Justice Roberts wrote the opinion of the Court on the taxing authority.  His opinion on this point was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

He also wrote an opinion on the Commerce Clause.  But he only wrote for himself.  While Justices Scalia, Kennedy, Thomas, and Alito joined him in the result--that Congress exceeded its Commerce Clause authority in enacting universal coverage--those four wrote a decidedly distinct opinion, styled a dissent, and did not join Chief Justice Roberts's opinion on this issue.  The Chief's opinion on the Commerce Clause is his own.

In sorting this out, as an initial matter, we need to know whether this single-Justice opinion, even if written by the Chief, is controlling.  There are two issues.

First, the Marks rule.  This rule, from Marks v. United States, says that when a majority on the Court agrees in a result, but cannot agree on a reason, the guiding opinion for future cases is the narrowest opinion on the winning side.  In the language of Marks, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds."

Here, Chief Justice Roberts wrote a slightly narrower opinion on the Commerce Clause than the dissenters.  But just barely.  They all said that Congress lacks authority to regulate inactivity (more on this below), and that therefore Congress lacks authority to require individuals to purchase health insurance.  This just-barely-narrower opinion, along with the Court's own characterization of Chief Justice Roberts's opinion as "an opinion" and the dissenters' opinion as "a dissenting opinion," Chief Justice Roberts's opinion, so far, is almost surely the guiding opinion under the Marks rule.

But there's another issue.  It's not clear that Chief Justice Roberts's opinion on the Commerce Clause is anything more than dicta.  In other words, Chief Justice Roberts's ruling on the Commerce Clause isn't necessary to the Court's ruling upholding universal coverage under the taxing authority.  Chief Justice Roberts argued in Section IIID of his opinion--again, writing just for himself here--that his analysis of the Commerce Clause was necessary, because "the statute reads more naturally as a command to buy insurance than as a tax," and "[i]t is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question."  But this is an exceedingly weak justification.  There's nothing that says that an argument presented alternatively must be addressed in the order presented.  (Here, the government argued first that the Commerce Clause supported universal coverage and second that the taxing authority did.)  Indeed, the better course--the judicial minimalist course--would be not to address it.

More importantly, Chief Justice Roberts's explanation gets only one vote.  Moreover, it's not necessary to any other Justice's analysis--even the dissenters.  (Why?  Because the dissenters object to everything.  They don't need to explain why they address the Commerce Clause--they have to address it as an alternative argument, because they also rule universal coverage unconstitutional under the taxing authority.)  Thus, it is not the holding of the Court on its own (because it gets only one vote) and it is not the guiding holding of the case under Marks (because it reflects the ruling of no other Justice).  If Chief Justice Roberts's weak explanation isn't the law, it seems, his analysis based upon that justification is also highly suspect.

If all this is right, then we have a highly fractured Court with no controlling opinion on the Commerce Clause.  If that's right, then the Commerce Clause hasn't changed.

But let's assume that's not right--because, in fact, courts will probably treat Chief Justice Roberts's opinion on the Commerce Clause as guiding.  Does the substance of his opinion limit the Commerce Clause?

The answer: Yes, but just by a hair.  Chief Justice Roberts wrote that the Commerce Clause doesn't allow Congress to require activity where there is no existing market.  In other words, Congress can't compel individuals to act without a background interstate market. 

But Chief Justice Roberts was also very careful to write that Congress has never done this before.  (Indeed, that's his stated reason to "pause to consider the implications of the Government's arguments."  Op. at 18.)  Agree or disagree with that conclusion, by its own terms it means that this is an exceptional, outside case.  That's the same thing that the government has said all along, although in different terms: the health-care market is different.

If everybody agrees that this is an exceptional case, Chief Justice Roberts's restriction on the Commerce Clause--that Congress can't regulate inactivity without a background interstate market--applies only in the rarest of circumstances.  Other than the very unusual hypos the Court tested at oral argument--a market for burial services (justifying a requirement to buy burial insurance), a market for emergency services (justifying a requirement to buy a cell phone to dial 911), and, of course, a market for food (justifying a requirement to buy broccoli)--this restriction will have no effect on congressional authority.

Indeed, even Chief Justice Roberts wrote--citing and reaffirming even those cases that reflect the broadest Commerce Clause power we've seen--that it never has had an effect on congressional authority

The only workable rule in the opinion is that Congress can't regulate inactivity when there's no background interstate market.  But by the Chief's own reckoning, this will only apply in the rarest of cases.

In other words: Chief Justice Roberts may have restricted the Commerce Clause, but just by a hair.  The restriction will be a mere footnote when we teach the modern doctrine.

But some have argued that the spirit of the opinion (if not the law of the opinion) reflects a restricted authority.  The bottom-line holding belies this: Congress has authority to enact universal coverage.  The aggregate weight of congressional authority hasn't much changed, even if it shifted a little from commerce to taxation.

In the end, Chief Justice Roberts's opinion on the Commerce Clause will make little difference.  There's a remote chance that it won't emerge as the controlling or guiding opinion; but even if it does (as seems highly likely), it just doesn't change the doctrine or the spirit all that much.


June 29, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, News, Opinion Analysis | Permalink | Comments (3) | TrackBack (0)

Thursday, June 28, 2012

Congress Holds Holder in Contempt, Authorizes Suit

The House of Representatives voted today to approve House Resolution 706, holding AG Eric Holder in contempt of Congress for declining to turn over documents related to the DOJ's response to congressional and media inquiries into the Fast and Furious program.  Under the Resolution, the House holds AG Holder in contempt and authorizes the Chair of the House Oversight and Government Reform Committee, Rep. Darrell Issa, "to initiate or intervene in judicial proceedings in any Federal court of competent jurisdiction . . . to seek declaratory judgments affirming the duty of [AG Holder] to comply with any subpoena that is a subject of the resolution accompanying House Report 112-546"--the report issued by the Committee last week.

We posted on the Committee's vote here (with links to helpful sources); we posted on the administration's subsequent assertion of executive privilege here.

The move means that Rep. Issa and his committee can take the case directly to court, bypassing another option--referring the matter to the Assistant U.S. Attorney for D.C.  If Rep. Issa files, he will ask the court to order AG Holder to turn over the subpoenaed documents, notwithstanding the administration's assertion last week of executive privilege.  

The vote was 255 to 67, largely along party lines.  Seventeen Democrats voted with Republicans; two Republicans crossed the aisle.  More than 100 Democrats boycotted the vote altogether.


June 28, 2012 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Supreme Court Upholds Affordable Care Act

A sharply divided Supreme Court today upheld key provisions in the Affordable Care Act (the "ACA," or Obamacare).  The upshot is that five Justices (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) held that universal coverage (or the individual mandate) is upheld, and that a three-Justice plurality (Chief Justice Roberts and Justices Breyer and Kagan) held Medicaid expansion is upheld in a somewhat weaker form.  A different five Justices (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) held that the commerce clause did not support universal coverage (but for different reasons).

The ruling means that universal coverage stands, and Medicaid expansion stands, although in a somewhat weaker form.

Our analyses of oral arguments are here, here, and here.  We'll have more analysis of the opinion; here's just a breakdown of the holding.

Chief Justice Roberts wrote for the majority; by issue:

Taxing Clause.  A five-Justice majority held that Congress could enact the universal coverage provision (also called the individual mandate) under the taxing authority.  Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, wrote that the tax penalty for failing to purchase health insurance was a valid tax.  

First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.  It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the "prohibitory" financial punishment in Drexel Furniture.  Second, the individual mandate contains no scienter requirement.  Third, the payment is collected solely by the IRS through the normal means of taxation--except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.

Op. at 35-36.  The majority was untroubled that the tax penalty could be a "tax" for taxing authority purposes, but a non-"tax" for Anti-Injunction Act purposes: Chief Justice Roberts wrote that Congress itself enacted the AIA and could therefore itself draft around it (which it did here); but Congress's taxing authority may support congressional action whether or not Congress calls its action a "tax."

Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that universal coverage exceeded the taxing power.

Commerce Clause.  A five-Justice majority concluded that the Commerce Clause did not support congressional authority to enact universal coverage, but for two different reasons.  Chief Justice Roberts, writing for himself alone, wrote that universal coverage amounted to regulating before entrance into the market for health services--i.e., regulating someone who's "inactive."  (And Chief Justice Roberts didn't buy the government's claim that the maarket for health insurance was integrally connected to the market for health care.)  Chief Justice Roberts wrote that universal coverage was unprecedented and unsupported by the Court's cases.  (Chief Justice Roberts justified reaching the issue--even though the case could be (and was) decided on the taxing power alone--because, he said, the government designed universal coverage first as a regulation and only secondly (or alternatively) as a tax.)

Justices Scalia, Kennedy, Thomas, and Alito took a harder line, arguing that Congress here went too far, because it first sought to create commerce, and then to regulate it.

Medicaid Expansion.  Chief Justice Roberts wrote for himself and Justices Breyer and Kagan that Medicaid expansion as-is under the ACA--in which a state declining to participate in Medicaid expansion would stand to lose its entire pot of federal Medicaid money--was unduly coercive.  But the same plurality held that Medicaid expansion could be saved by simply reading the statute to mean that a declining state could lose only the additional federal money that would have come with the expansion.

Justices Ginsburg and Sotomayor wrote separately to argue that Medicaid expansion as-is under the ACA did not violate the Constitution.

Justices Scalia, Kennedy, Thomas, and Alito dissented, writing that Medicaid expansion was flatly unconstitutional.


June 28, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, Spending Clause, Taxing Clause | Permalink | Comments (3) | TrackBack (0)

Supreme Court Finds Stolen Valor Act Unconstitutional

In a plurality opinion written by Justice Kennedy, the United States Supreme Court today affirmed the Ninth Circuit holding the Stolen Valor Act unconstitutional in United States v. Alvarez.

The Stolen Valor Act, 18 USC §704(b) criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."   The penalty is enhanced if the statements relate to the Congressional Medal of Honor, the Purple Heart, and other specified awards.

Kennedy's plurality, joined by Roberts, Ginsburg, and Sotomayor, begins "Lying was his habit,"  a move taken directly from the arguments of Alvarez' attorneys.  The plurality noted that there was a circuit conflict, although the Tenth Circuit opinion was decided a month before oral argument, and interestingly focused on Snyder v. Phelps as another recent case in which the Court considered speech that disparaged - - - or attempted to steal - - - "honor that belongs to those who fought for this Nation in battle."

The plurality considered the statute as content-based (but not viewpoint discrimination).  The main rationale in the plurality's opinion was the breadth of the Stolen Valor Act, and it engaged in slippery slope rhetoric and a citation to the Orwell's famous novel 1984:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003).  Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. . . . Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

 The concurring opinion, authored by Justice Breyer and joined by Kagan, disclaimed a "strict categorical analysis" in favor of "intermediate scrutiny" or "proportionality review."   Breyer's concurring opinion also eschewed the categorical approach that lies were absolutely unprotected speech:

I must concede, as the Government points out, that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection. [Citations omitted].  But these judicial statements cannot be read to mean “no protection at all.” False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.



Justice Alito, dissenting and joined by Scalia and Thomas, stressed the importance of the government interest at stake, not surprisingly given his queries at oral argument.  His opinion began:

Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families.

Alito would have carved out a special exception for Stolen Valor:

In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect.

The decision is consistent with much of the popular opinion expressed regarding the case, but also with the Court's most recent pronouncements in United States v. Stevens (crush-porn) and Brown v. Entertainment Merchants Association (violent video games) refusing to carve out a category of speech from First Amendment protection. 


June 28, 2012 in Cases and Case Materials, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 27, 2012

In Memoriam: Ann Scales

ConLawProf Ann Scales, University of Denver Strum College of Law, was best known for her constitutional law work on feminist legal theory, equality, and military matters.  She died June 24, at the age of 60.




More on Feminist Law Prof here.

[image of Ann Scales via]

June 27, 2012 in Gender, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Fault Lines in the Eighth Amendment

The Supreme Court on Monday ruled that a mandatory term of life imprisonment without the possibility of parole for juveniles convicted of murder violated the Eighth Amendment.  The ruling, Miller v. Alabama, leaves open the option of discretionary life without parole for juveniles, even as it rules out mandatory life without parole.  In other words, the ruling means that judges and juries must consider mitigating factors, including the offender's youth, before sentencing a minor to life imprisonment without parole.

Justice Kagan wrote the majority opinion for herself and Justices Kennedy, Ginsburg, Breyer, and Sotomayor.  Chief Justice Roberts wrote the principal dissent, joined by Justices Scalia, Thomas, and Alito.  (Justices Thomas and Alito each wrote their own concurrences, both joined by Justice Scalia only.)

The 5-4 split on the Court reveals (again) two important fault lines in Eighth Amendment jurisprudence that will undoubtedly affect future rulings.  First, the Court split sharply over how to read prior Eighth Amendment precedents--and whether those cases reflect a difference based on youth (the majority position) or a difference based on sentences and crimes (the principal dissent's position).  Thus, Justice Kagan wrote for the majority that two strands of precedent--one involving youth, the other involving mandatory death sentence--converged to drive the result here.  Justice Kagan wrote that the first strand--including Roper (holding that the Eighth Amendment bars capital punishment for children) and Graham (holding that the Eighth Amendment bars life without parole for a nonhomicide offense for children)--turned on the principal characteristic of the offender--youth.  She wrote that the second strand--Woodson (prohibiting a mandatory death sentence, without consideration of characteristics of a defendant and details of the offense)--said that legislatures can't impose death rigidly, without allowing for a consideration of important defendant characteristics (like youth).  Justice Kagan wrote that these strands, taken together, say that courts must be able to take into account a defendant's youth before imposing a permanent sentence like life without parole.  In other words, youth is at the intersection of these strands.

On the other side, Chief Justice Roberts wrote that these cases really turn on the nature of the underlying sentences and crimes, not youth.  Chief Justice Roberts wrote that Roper turned on the unique feature of a death sentence--the ultimate permanence--and the idea that death is different.  ("[M]ore importantly," he wrote, "Roper reasoned that the death penalty was not needed to deter juvenile murderers in part because 'life imprisonment without the possibility of parole' was available."  Dissent at 8, quoting Roper.)  He wrote that Graham turned on the difference between homicide and other serious violent offenses.  Chief Justice Roberts recognized that youth matters, but, in contrast to Justice Kagan, he argued that the prior cases turned not on youth, but on sentences and crimes.

With five Justices understanding the cases to turn on youth--and now with this case solidifying that understanding, and with increasing scientific evidence supporting the youth-are-different approach--we can expect future Eighth Amendment cases and challenges involving youth to also turn principally on youth.

Second, the Court split sharply over how to understand and interpret "evolving standards of decency," "objective indicia of society's standard," and a "consensus again" a sentencing standard--that is, the standards that the Court uses in measuring whether a sentence is "cruel and unusual" in violation of the Eighth Amendment.  Justice Kagan wrote that 29 jurisdictions (28 states plus the federal government) have mandatory-life-without-parole for juveniles.  This is a majority, to be sure, but other features of those laws mean that not all juveniles prosecuted for murder will necessarily receive mandatory life without parole.  And in any event, this is 10 fewer jurisdictions than the number that imposed life-without-parole overturned in Graham.  Justice Kagan says that the Court is therefore breaking no new ground in counting jurisdictions this way to determine whether a sentence is "cruel and unusual."

Chief Justice Roberts countered that life-without-parole has become more and more common in the past 25 years--reflecting an "evolving standard of decency"--and that in any event, "the number of mandatory life without parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, is over 5,000 times higher than the corresponding number in Graham."  Dissent at 4.  Moreover, he argues that the majority's approach puts the Court on the road to overturning even discretionary life-without-parole sentences (as those become less and less frequent, thus reflecting a new practice)--or, for that matter (as Justice Alito adds, in his own dissent), to overturning any sentence that the Court's majority feels is out of line with practice.  

With five Justices understanding "evolving standards," "objective indicia," and "consensus" as measured as Justice Kagan did (and not as Chief Justice Roberts would), a majority has clearly ruled out the minority's stricter, more narrow approach to determining "consensus."  We can expect future Eighth Amendment challenges to look somewhat more broadly at state and federal legislative practice to discern any "consensus." 

In all, with this majority's read of Roper and Graham and Woodson, and with this majority's understanding of "evolving standards," "objective indicia," and "consensus," the Court--even if by a bare majority--now seems set firmly on a trajectory that considers youth first (and not the sentence or the crime first) and understands "consensus" more broadly (and not so rigidily, just counting jurisdictions or sentences).  


June 27, 2012 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, June 25, 2012

Supreme Court Strikes Montana Campaign Finance Restriction

A sharply divided Supreme Court today in American Tradition Partnership v. Bullock summarily reversed an earlier Montana Supreme Court ruling and held the Montana restriction on independent campaign expenditures unconstitutional in violation of the First Amendment speech clause.  The ruling wasn't a huge surprise, as the Court previously stayed the Montana ruling pending its consideration of the case.

The ruling affirms the Court's commitment to Citizens United--the case holding that restrictions on independent electioneering expenditures violated the First Amendment--even in the midst of massive independent spending and the arrival of influential super-PACs this election cycle.  The ruling means that the Court will allow no breathing room for regulation of independent electioneering expenditures--even when a state, like Montana, can show that it had a history of corruption through independent expenditures, and even when the restrictions don't seem all that onerous.

The ruling also means that the Court isn't in the mood to reconsider Citizens United--anytime soon, at all.  If anything, this ruling only strengthens Citizens United, illustrating that there really is no breathing room for regulations on independent electioneering expenditures.

Recall that the Montana Supreme Court earlier upheld the state's restriction on independent electioneering expenditures, holding that Montana's history of political corruption through independent expenditures justified the restriction even under Citizens United.  The court also held that Montana's restrictions weren't as onerous as the federal restrictions at issue in Citizens United.  

In short, the Montana court held that the Montana restriction was distinguishable on the facts from Citizens United, and the court therefore could thread the Citizens United needle and enact its restriction.

The Supreme Court's ruling today means that there's no eye in the Citizens United needle--not even a small one.

Montana's law says that a "corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party."  The five-Justice majority, in a remarkably brief per curiam opinion, said that "Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote in dissent that they'd reconsider Citizens United, and that even under Citizens United Montana showed that independent expenditures did lead to corruption and were therefore regulable.  (These four did not vote to grant cert., however, because, as Justice Breyer wrote, "given the Court's per curiam disposition, I do not see a significant possibility of reconsideration.  Consequently, I vote instead to deny the petition."  Under Court rules, these four votes could have put the case before the Supreme Court, but they understood that the Court wouldn't reconsider Citizens United or its application here--and that Court consideration might only serve to strengthen Citizens United even more.)


June 25, 2012 in Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Supreme Court's Split Decision on Arizona's SB1070

The Supreme Court issued its much-anticipated opinion in Arizona v. United States on the constitutionality of controversial state immigration statute SB 1070. The over all issue, recall, is whether the state law is preempted by the federal statutory immigration law and thus invalid under the Constitution's Supremacy Clause, Article VI.

800px-Immigration_Reform_Leaders_Arrested_4The majority - - - Justices Kennedy, Roberts, Ginsburg, Breyer, and Sotomayor - - - affirmed in part and reversed in part the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of SB 1070.  

The Courthad granted the petition for writ of certiorari on four provisions:

  •     Section 2(B): requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully;
  •     Section 3: criminalizes the failure to carry an “alien registration document;'"
  •     Section 5(C): criminalizes undocumented immigrants applying for employment or being employed;
  •     Section 6:  authorizes warrantless arrests if based upon probable cause that a person has committed a deportable crime.

The majority held that Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law, but that the controversial 2(B) was not.

On Section 3, the Court applied complete field preemption, holding that even complementary state regulation unconstitutionally intrudes.

On Section 5(C) and 6, the Court held that the state provisions operated as obstacles to the federal statutory scheme.

Upholding Section 2, the Court essentially held that without state courts having an opportunity to further construe the provision, the record was too incomplete to determine whether or not the provision conflicted with federal law.  

Justices Scalia, Thomas, and Alito each wrote separate dissents.  Justice Elana Kagan did not participate. 



The Opinion of the Court is relatively brief at 25 pages.  For an opinion by Justice Kennedy (dare I say), it is unusually well-structured.  The discussion of pre-emption principles is setting out express preemption, then pervasive field preemption and conflict (obstacle) preemption, including the Court's most recent preemption opinion, Whiting, which it will later distinguish (and which was joked about as decisively precedential by Justice Roberts at oral argument, who interestingly joins Kennedy's opinion). 

Then it considers each provision, providing some but not overwhelming detail, regarding the conflict.  Most controversially (and lengthily), the Court reversed the Ninth Circuit’s conclusion that Section 2(B) was preempted, focusing both on the mandatory status checks (– colloquially known as the “show me your papers” provision – ) and the possibility of prolonged detention.   However, the majority stated that Section 2(b) could be read to avoid the concerns of conflict and offered some hypos:

To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. [citations omitted].

To take another example, a person might be held pend­ing release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the cir­cumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.

For some, these "could be read" passages suggest that only upon a narrow construction would Section 2(B) be upheld.

 Not surprisingly dissenting, Justice Scalia would have upheld SB1070, and stressed the historical precedent that would allow states as sovereigns to exclude all aliens from their states.  His use of history here will most likely be criticized by some legal historians of the Early Republic. In a statement sure to provoke more controversy, he referred to President Obama’s statement regarding young non-citizens, saying “The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­ tion’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind.”  He closed by repeating Paul Clement’s claim that “Arizona bears the brunt of the country’s illegal immigration problem.”

Thomas' briefly opined that even "assuming the existence of some tension" between SB1070 and the federal scheme, it did not merit preemption.  Alito's much longer opinion agreed with the Court that 2(B) was not preempted, and interestingly agreed that Section 3 (colloquially known as the carry your papers provision) was preempted. He "part[ed] ways" on §5(C) and §6, arguing that Congress was not sufficiently clear on its desire to preempt a provision regarding employment and that §6 "adds virtually nothing to the authority that Arizona law enforcement officers already exercise."


image via

June 25, 2012 in Opinion Analysis, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Sunday, June 24, 2012

Arkansas High Court Rules State Method of Execution Act Unconstitutional

The Arkansas Supreme Court ruled on Friday in Hobbs v. Jones that the state's statutory method of execution violated state constitutional separation of powers.  In particular, the court ruled that the general guidelines that the legislature provided to the Arkansas Department of Corrections, or ADC, to conduct intravenous lethal injections were too broad and constituted an unlawful delegation of legislative authority to the state executive agency.

The ruling leaves the state without a method of execution--at least for now.  (The court also held that the offending sections of the act were nonseverable, ruling out a judicial excision or rewrite of the language and thus preserving the larger act.)  The legislature could act relatively easily to amend the state's Method of Execution Act, or MEA, and to provide more detailed guidelines to the ADC within the bounds of the state's separation of powers principles and its nondelegation doctrine.

Arkansas is one of those states that has a specific separation-of-powers provision in its constitution.  (The federal government does not have a specific separation-of-powers provision.)  Article 4 reads:

Section 1.  The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.

Section 2.  No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Under Article 4 and the state constitutional nondelegation doctrine, the Arkansas Supreme Court has held that the legislature may delegate to the executive, so long as it provides reasonable guidelines and appropriate standards.  "A statute that, in effect, reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary power and is an unlawful delegation of legislative powers."  Op. at 10.

The relevant portions of the MEA read as follows:

(a)(1)  The sentence of death is to be carried out by intravenous lethal injection of one (1) or more chemicals, as determined in kind and amount in the discretion of the Director of the Department of Correction.

(2)  The chemical or chemicals injected may include one (1) or more of the following substances:

(A) One (1) or more ultra-short-acting barbiturates

(B) One (1) or more chemical paralytic agents;

(C) Potassium chloride; or

(D) Any other chemical or chemicals, including but not limited to saline solution.

Ark. Code Ann. Sec. 5-4-617 (Supp. 2011).

The court ruled that these sections violated the state constitutional nondelegation doctrine, because they gave the ADC "absolute and exclusive discretion . . . to determine what chemicals are to be used."  It said that (a)(2) did nothing to rein in that discretion, because by its plain terms--"may"--it is only permissive.  In other words, the ADC could use chemicals that fall into these categories, or it could use any other chemicals it likes.  Moreover, a later subsection, (a)(4), "gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation."  Op. at 14.

Justice Karen Baker, joined by Special Justice Bryon Freeland, dissented.  Justice Baker argued that several other states have tolerated similar guidelines in the face of equally strict separation-of-powers clauses.  In any event, she wrote that the guidelines in the MEA were detailed enough to withstand the challenge under the Arkansas Constitution, and that state and federal constitutional bans on cruel and unusual punishment provided an outside limit to what the ADC could do.


June 24, 2012 in Cases and Case Materials, Comparative Constitutionalism, News, Nondelegation Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Federal District Judge Upholds Indiana Statute Banning Sex Offenders from Facebook

In her 19 page opinion in Doe v. Prosecutor, Marion County, Judge Tanya Walton Pratt of the Southern District of Indiana upheld the state's statute prohibiting some sex offenders from accessing social media.

She rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open.

The judge rejected the claim that the use of Facebook for the purposes this statute is meant to foreclose are already criminalized by another statute.  Instead, she seemingly shifted the burden to Doe to suggest a more narrow statute that would achieve the state's goals:

That said, Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal (deterrence and prevention of online sexual exploitation of minors) while not violating his First Amendment rights. Here, the statute bars a subset of registered sex offenders from visiting a subset of web sites that minors (and the public at large) use with regularity, which include Facebook, Twitter, Google Plus, various chat rooms, and various instant messaging programs. In other words, Mr. Doe is only precluded from using web sites where online predators have easy access to a nearly limitless pool of potential victims.

She then added her own rationale:

Given the high recidivism rates, it is obvious that many sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims.

Regarding alternatives for communication, she readily conceded that

social networking is a prominent feature of modern-day society; however, communication does not begin with a “Facebook wall post” and end with a “140-character Tweet.”

But the list she provides of other "myriad feasible alternative forms of communications" may strike avid facebook users as odd: "the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook (or some other prohibited account), email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors (e.g. LinkedIn and a number of other sites which allow only adults)."   The LinkedIn exemption is interesting.  While the statute itself seems unclear, and the judge admits that there was "some confusion on this point during the briefing," she concluded that "it is seemingly clear that Mr. Doe can use the professional networking web site LinkedIn."   

According to an AP report by Charles Wilson, the ACLU will appeal.


June 24, 2012 in First Amendment, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)