May 03, 2013
Kansas Outlaws Federal Gun Laws
Kansas thumbed its nose at the federal government and its current and future gun laws recently in SB 102, the Second Amendment Protection Act, which declares federal gun laws unenforceable in the state.
In particular, SB 102 says that the state legislature "declared" that firearms and accessories "manufactured commercially or privately and owned in Kansas and that remain within the borders of Kansas . . . have not traveled in interstate commerce" and therefore are not subject to federal regulation, including any federal registration requirement, under the Commerce Clause. In short, the law seeks to insulate firearms and accessories that are made and kept only within the state from federal regulation under the Commerce Clause. This reading of the Clause would deny the federal government authority to regulate activities that have a substantial effect on interstate commerce--a well settled congressional authority. (The law also says that component parts imported from other states don't transform an otherwise Kansas-made firearm into an item in interstate commerce.) To that extent, the law seems well tailored to test this long-standing aspect of congressional Commerce Clause authority--the power to regulate intrastate activities that have a substantial effect on interstate commerce. If so, that's unlikely to go anywhere. (Even in last summer's ACA/individual-mandate case, the Court gave no indication that it would wholly reconsider Congress's power to regulate activities that have a substantial effect on interstate commerce.)
More, SB 102 outlaws enforcement of federal law--even by federal law enforcement. Enforcement of federal law is a felony in Kansas, but the legislature gave federal law enforcement officials this gift: Kansas won't arrest or detain them prior to, or during the pendancy of, any trial for a violation. In other words, the charge, trial, and conviction are all just part of the political theater surrounding this obviously invalid law.
(In addition to the substantive portions of the law, SB 102 also includes the usual statements for this kind of law--statements about the Tenth Amendment (in support of a robust idea of states' rights) and the Second Amendment (as an absolute bar to any gun regulation). It also has a section on the Ninth Amendment.)
Attorney General Eric Holder shot back, reminding the state of the Supremacy Clause, and concluding that "the United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law."
Governor Brownback responded, arguing that the measure enjoyed wide bi-partisan support in the state. He said that this meant that "[t]he people of Kansas have clearly expressed their sovereign will. It is my hope that upon further review, you will see their right to do so."
April 20, 2013
Oral Arguments in Kebodeaux, the Sex Offender Registration Case
The Supreme Court heard oral arguments this week in United States v. Kebodeaux, the case testing whether Congress can require a federal sex offender to register, when the offender served out his full sentence before Congress enacted the Sex Offender Registration Act.
The arguments centered on just how far congressional authority extends under Congress's power to regulate the military (because Kebodeaux was convicted under the UCMJ) and the Necessary and Proper Clause (because he was required to register under SORNA only after he served out his full sentence). That latter point, the key here, in turn largely centered on the reach and understanding of United States v. Comstock, the OT 2009 case holding that Congress could authorize a federal judge to order the civil commitment of a "sexually dangerous" person in federal custody even beyond the term of his sentence.
Comstock was a 7-2 ruling, with Chief Justice Roberts joining Justice Breyer's majority opinion. Justices Kennedy and Alito concurred separately. Justices Scalia and Thomas dissented.
Chief Justice Roberts sent strong signals during arguments in Kebodeaux that he sees this application of SORNA as beyond the pale. Justices Kennedy and Alito were also critical of the government's position, but seemed slightly less firm in their positions, slightly more open. Justice Sotomayor, too, pressed for limits on government authority. If three of these switch from their positions in Comstock, Kebodeaux will go the other way.
My argument review at SCOTUSblog is here.
April 17, 2013
Argument Review: Does a Port's Enforcement Have the Force and Effect of Law?
The Supreme Court heard oral arguments yesterday in American Trucking Association v. City of Los Angeles, the case asking whether federal law preempts the Port of Los Angeles's "concession agreement" that it requires of all drayage truck operators. Our argument preview is here.
Two points got the Court's attention. First, the justices tested whether the Port was acting in a proprietary way in enforcing the concession agreement, thus triggering the market participant exception. This question turns on whether the Port's enforcement of the agreement had "the force and effect of law"--language from the preemption clauses in the Federal Aviation Administration Authorization Act that means that enforcement by a state as state is preempted, but enforcement by a state as market actor is not. Here, the Port's concession agreements are contracts with drayage truck operators (making the Port look like a market actors), but they are ultimately backed by criminal penalties, even if not for breach of the contract, and the whole operation relates to regulation of public land (making the Port look like the state). Take a look at this exchange with the attorney for the Port:
JUSTICE KENNEDY: You are saying that you can do by contract what you cannot do by regulation. And I don't understand that argument when there are criminal penalties that attach to the breach of the contract.
MR. ROSENTHAL: But, Justice Kennedy, let me say again, there are no criminal penalties that attach to the breach of the contract. It is purely a contract. The remedies are purely civil. Even our other side in their argument has conceded there are no criminal penalties to the breach of the concession agreement.
JUSTICE SCALIA: I'm not sure that's crucial. You think a state can say nobody's going to come on our highways until it signs a contract? Okay? These highways belong to us, they are State land, and anybody who wants to ride on the highways, you have to enter a contract with the State. And that's going to get around this Federal statute?
Others, too, asked about the criminal penalties and the scope of the Port's regulatory authority--all to the end of determining whether the Port looks more like the state, or more like a market actor, when it enforces its concession agreement.
Next, the Court pressed on the scope of Castle, the case overturning Illinois's punishment of a carrier's repeated violations of the state's freight-weight restriction by completely suspending the carrier's right to use Illinois state highways for certain periods. Here, the arguments turned on whether the Port's enforcement mechanism was a punishment for prior violations (as in Castle), or whether it simply operated to ensure that only currently compliant trucks had access to the Port. There's also an issue about the continued vitality of Castle, given that the federal regulatory scheme that governed at the time has since been superceded.
The Port seemed to have the tougher time at arguments, but that's no (necessary) bellweather. There were plenty of open questions to suggest that there are no easy answers here. As a practical matter, if the Court rules against the Port, it would undo years of litigation and negotiation between the Port and the surrounding community related to environmental and health concerns and send those paties back to the drawing table. That, in turn, could impact both community health and the environment, and the Port's plans for even more expansion.
April 16, 2013
Argument Preview: Can Congress Penalize a Pre-SORNA Sex Offender for Failure to Register?
The Supreme Court will hear arguments tomorrow in U.S. v. Kebodeaux, a case testing whether Congress can penalize a sex offender for failure to register, when the offender was convicted and released before Congress enacted the penalty in the Sex Offender Registration Act.
In short, Kebodeaux's theory is that he was "unconditionally" released from federal custody before Congress required him to register through SORNA. Thus, he was outside of federal authority when Congress "reasserted" authority over him. He says that this exceeds congressional power.
The government claims that Kebodeaux was still subject to federal authority after his release but before SORNA, through a federal penalty for failing to register in the Wetterling Act, SORNA's precusor. And it says that even if he weren't, it could later penalize his failure to register through SORNA.
The case tests the limits of congressional authority, but just barely. That's because the facts are narrow and limited--dealing only with congressional authority to penalize a pre-SORNA offender for failure to register. It's not a full-throated challenge to congressional authority to require registration.
Moreover, both parties give the Court a non-constitutional option. The government says that the Court could simply rule that Congress still exercised authority over Kebodeaux after his release, and remand for further proceedings consistent with that holding. Kebodeaux argues in the alternative that SORNA doesn't even apply to him.
Still, we're likely to at least hear robust discussion tomorrow about the scope of congressional authority under U.S. v. Comstock, the OT '09 case holding that Congress can authorize, under the Necessary and Proper Clause, the civil detention of federal prisoners who are "sexually dangerous" even beyond their original sentence. Both parties put the case front-and-center in their arguments.
For more, here's my argument preview at SCOTUSblog.
ICWA, Baby Girl (Veronica), Race and Fatherhood at the Supreme Court
Today's oral arguments in Adoptive Couple v. Baby Girl, which we previewed yesterday, were indeed a mix of statutory interpretation and application of the Indian Child Welfare Act (ICWA) and constitutional issues, with a dose of family law.
Arguing for the adoptive couple, Lisa Blatt described the biological father as equivalent to "a sperm donor," causing Justice Scalia to counter with an assertion of fatherhood ("He's the father. He's the father.") to which Blatt replied, "And so is a sperm donor under your definition. He's a biological father and nothing else in the eyes of State law." By this description, Blatt not only argued that the biological father was not a parent under ICWA, but also tended to erode any constitutional rights that the father might have. Blatt also took on the constitutional argument more directly, arguing that ICWA would "raise grave constitutional concerns" if "Congress presumptively presumed that a non-Indian parent was unfit to raise any child with any amount of Indian blood."
The "amount of Indian blood" was an issue that attracted the attention of Chief Justice Roberts, who has been attentive racial identities in the affirmative action cases, including Fisher argued earlier this Term. During Charles Rothfeld's argument on behalf of the biological father, Roberts posed a "hypothetical" about an Indian tribe that had a "zero percent blood requirement" and enrolled members who "think culturally they're a Cherokee." Justice Ginsburg objected that this was not the ICWA definition and Justice Scalia agreed that Roberts' hypothetical would be a "null set," but Roberts posed the query again. Rothfeld replied that such "wild hypotheticals" would "present political questions to be addressed by Congress or addressed by the executive branch."
Arguing between Blatt and Rothfeld, Paul Clement, on behalf of the child's law guardian - - - asserting the child's best interests as assumed by the guardian - - - also contended that ICWA was constitutionally suspect. The "Indian child" is a racial classification:
And as a result of that her whole world changes and this whole inquiry changes. It goes from an inquiry focused on her best interests and it changes to a focus on the birth father and whether or not beyond a reasonable doubt there is a clear and present danger.
Clement's characterization of ICWA's standard was somewhat hyperbolic, although the statute does require the high standard and does have a "substantial and immediate danger or threat of such danger" exemption. This resonated with Blatt's rebuttal, expressing the dangers of a Court affirmance of the South Carolina Supreme Court's opinion in favor of the biological father:
And you're basically relegating the child, the child to a piece of property with a sign that says, "Indian, keep off. Do not disturb." This case is going to affect any interracial adoption of children.It is highly unlikely that the Court will address the lurking equal protection racial classification issue, however its importance was revealed in Paul Clement's colloquy with Justice Kennedy about "constitutional avoidance." Justice Breyer essentially asked Clement how to remedy the situation and Clement responded that because ICWA provides "extraordinary" protections that "it only makes sense to prove something more than bare paternity."
It is more likely that the Court's usual conservative/liberal dichotomy will not be apparent in the ultimate opinions.
April 15, 2013
Oral Argument Preview: Adoptive Couple v. Baby Girl and the Constitutional Issues
The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16. The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA. The petitioners, the adoptive couple, articulate the questions presented as:
(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence. These articulations stress the positive acts of the biological father. For example, as the biological father phrases the parenting definition question:
Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].
The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA
to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.
However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.
First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause. For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8. ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth.
Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers. In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.
Third, and most stealthily, the case may present issues of due process and equal protection. In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.” In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child. Moreover, the state court’s decision violated the baby’s equal protection and due process rights.
For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:
In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.
Less successfully, the brief attempts to articulate a liberty interest of the child:
And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).
Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly. Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."
These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests. [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys.
Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."
Clement - - who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.
While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.
[image circa 1890 via]
April 15, 2013 in Congressional Authority, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, History, Interpretation, Race, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack
April 09, 2013
Daily Read: Two Very Different Clarks by Alexander Wohl
Justice Tom C. Clark and his son, Ramsey Clark, are the focus of Alexander Wohl's new book, Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy.
The senior Clark, appointed by Harry Truman, resigned from the Court at age 67 because Lyndon Johnson appointed the junior Clark as Attorney General. While we understand the conflict, the scenario causes most contemporary readers to pause. Indeed, it is difficult to imagine a current sitting Justice making such a sacrifice for his child's career. Especially since the father and son seemed to have very different politics.
Wohl uses the men's careers to illuminate not merely the personal dyamics, but the constitutional and political changes. Consider this:
As a young government lawyer, Tom Clark was a key figure in enforcing the relocation of Japanese Americans, and as Attorney General he was vilified by civil liberties advocates for the Cold War policies he implemented, even as he promoted a progressive strategy on civil rights. Ramsey began his career to the ideological left of his father, was intimately involved in enforcement of civil rights laws during the turbulent 1960s, as Attorney General fought to expand protections of individual rights, and as a private attorney represented clients on the farthest reaches of the individual rights–government power spectrum.
This new book promises to be an engaging read.
March 15, 2013
Can States Require Proof of Citizenship to Vote?
Arizona is once again before the Supreme Court, on Monday, with a major federalism case, this time testing whether federal law preempts the state's efforts to add a proof-of-citizenship requirement, over and above the federal requirement, to its voter registration application. The case, Arizona v. Inter Tribal Council of Arizona, asks whether the preemption standard under the Elections Clause is the same as the ordinary preemption standard under the Supremacy Clause, and whether the National Voter Registration Act preempts Arizona's proof-of-citizenship requirement.
The former issue--going to the standard of preemption under the Elections Clause--is an important one. The Court puts a thumb on the scale against preemption in ordinary Supremacy Clause preemption cases. This case will tell us whether states get that thumb in Elections Clause cases, too. If so, and if the Court rules Arizona's proof-of-citizenship requirement not preempted, we're likely to see certain states move toward more requirements like Arizona's, making it tougher for certain citizens to vote.
Here's an excerpt from my preview of the case in the ABA Preview of United States Supreme Court Cases (with permission):
May Arizona require applicants for voter registration to provide additional evidence of U.S. citizenship without conflicting with the requirements of the National Voter Registration Act?
Congress enacted the National Voter Registration Act, the “NVRA,” or the “Motor Voter Act,” in 1993 in order to enhance voter participation by eligible citizens in federal elections while at the same time protecting the integrity of the electoral process. To these ends, the NVRA requires states to accept three kinds of registration applications from would-be voters in federal elections. First, the NVRA requires states to treat any application for a driver’s license as an application for voter registration. Next, it requires states to accept mail-in applications. Finally, the NVRA requires states to accept in-person applications at sites designated by state law.
In connection with these three methods, the NVRA provides for the creation of certain voter registration applications. Thus the NVRA requires states to create a combined driver’s license and voter registration application form commonly called the “Motor Voter Form.” (The Motor Voter Form is not at issue in this case.) The NVRA also directs the U.S. Election Assistance Commission, the “EAC,” to create the Federal Form, a nationally uniform voter application that applicants can use to register by mail or in person at designated locations. The NVRA requires that the Federal Form “shall include” a statement that specifies each eligibility requirement (including citizenship), contains an attestation of eligibility, and requires the applicant’s signature. It says that the Federal Form “may not include any requirement for notarization or other formal authentication.” And it says that the Federal Form “may require only such identifying information . . . and other information as is necessary to enable the appropriate state elections official to assess the eligibility of the applicant.” The NVRA requires states to “accept and use” the Federal Form, but it also allows a state to “develop and use” its own form, so long as the state form meets all of the NVRA criteria for the Federal Form. (Even if a state develops and uses its own form, however, the NVRA still requires every state to “accept and use” the Federal Form.) Moreover, a state may ask the EAC to add state-specific instructions to the Federal Form.
The EAC-created Federal Form specifies each eligibility requirement, including U.S. citizenship, but does not, by its plain terms, require proof of citizenship. Thus the Federal Form requires an applicant to tick a box that says that the applicant is a U.S. citizen and to swear or affirm, by signature, that he or she is a U.S. citizen and that “the applicant, to the best of his or her knowledge and belief, meets each of his or her state’s specific eligibility requirements.” The Federal Form’s state-specific instructions for Arizona require an applicant to include the number of his or her valid Arizona driver’s license or non-operating identification license, or the last four digits of his or her Social Security number. The state-specific instructions say that if an applicant does not have these numbers, “[a] unique identifying number will be assigned by the Secretary of State.” (The Federal Form, with Arizona’s state-specific instructions, is here.) In short, the Federal Form relies on an applicant’s attestation, without further proof, to determine U.S. citizenship. Arizona’s state-specific instructions only require proof if an applicant has an Arizona driver’s license or identification license, or a Social Security number.
In 2004, Arizona sought to add a proof-of-citizenship requirement. Thus Arizona voters approved Proposition 200, requiring applicants for voter registration to provide evidence of U.S. citizenship beyond the attestation requirement and the state-specific instructions in the Federal Form. In particular, Proposition 200 says that an applicant must provide his or her driver’s license number, non-operating identification number, a number associated with Native American tribal status, his or her certificate of naturalization number, or a legible photocopy of his or her U.S. birth certificate or passport. (Proposition 200 also requires registered voters to present identification in order to cast their ballots at the polls. The voter-ID component of Proposition 200 is not at issue in this case.) By its terms, this proof-of-citizenship requirement applies to both the federal form and to Arizona’s state form.
About a year after Arizona voters enacted Proposition 200, the U.S. Department of Justice precleared it under the Voting Rights Act. Arizona then asked the EAC to include its proof-of-citizenship requirement on the state-specific instructions on the federal form. The EAC declined. (The Executive Director of the EAC initially declined the request, stating that the NVRA preempted the requirement. The full EAC later upheld this decision.)
Nevertheless, Arizona implemented the new proof-of-citizenship requirements in Proposition 200 with respect to its state-specific voter registration application form and with respect to the Federal Form. As to the state-specific form, Arizona now specifically requires the proof of citizenship specified in Proposition 200. Its instructions say that an applicant must provide a driver’s license or non-operating identification license number, or, if those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Indian tribal membership. The instructions say that without this proof of citizenship, “the form will be rejected.” (Arizona’s state specific form is here.) As to the Federal Form (which, again, did not change in the wake of Proposition 200), Arizona officials now ask Federal Form applicants for evidence of citizenship pursuant to Proposition 200 whenever their Federal Form does not include such evidence of citizenship.
Just to be clear: Before Proposition 200, Arizona required only a driver’s license or non-operating identification license, or, when those were not available, a “unique identifying number . . . assigned by the Secretary of State,” in order to register to vote. After Proposition 200, Arizona now requires a driver’s license or non-operating identification license, or, when those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Tribal membership. Thus Proposition 200 added a significant proof-of-citizenship requirement, but only for those applicants who do not have a driver’s license or non-operating identification license.
Soon after Proposition 200 passed, two groups of plaintiffs sued, arguing, among other things, that the new proof-of-citizenship requirements were preempted by the NVRA. In particular, the plaintiffs argued that the new proof-of-citizenship requirements went beyond the requirements of the NVRA in a way that conflicted with the NVRA. In a first round of litigation, the plaintiffs’ case went to the Supreme Court on preliminary motions, and the Court remanded it for a determination on the merits. In the second round, on remand, the district court ruled in favor of Arizona on the plaintiffs’ preemption claim. The Ninth Circuit reversed. This appeal followed.
This case tests the boundary between congressional authority and state authority in the special context of regulation of federal elections. That boundary is set in the Constitution’s Elections Clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” In other words, states get the first crack at regulating the mechanics of federal elections, but Congress has ultimate authority to override, or preempt, state regulation. The framers gave Congress this special power over federal elections in order to safeguard against potential state efforts, through manipulation of their election laws, to undermine the national government. (At the extreme, the framers were concerned that states could frustrate the very creation of the national government by neglecting to hold federal elections.) Here, the Elections Clause governs, because Congress enacted the NVRA pursuant to its Elections Clause power.
The Supreme Court first examined congressional authority to preempt state law under the Elections Clause in Ex Parte Siebold, 100 U.S. 371 (1879). The Court in that case said that federal law preempts state law whenever they conflict: “the laws of the State, in so far as they are inconsistent with the laws of Congress on the same subject, cease to have effect as laws.” Over a century later, the Court in Foster v. Love, 522 U.S. 67 (1997), reaffirmed this principle and held that federal law setting the date for congressional elections (the Tuesday after the first Monday in November) preempted a Louisiana statute that established an open primary in October with a run-off on Congress’s specified election day only if the primary failed to produce a majority candidate.
While Siebold and Foster go specifically to Elections Clause preemption, the Court has also developed an approach to preemption under the Supremacy Clause. According to that approach, the Court seeks to preserve the “delicate balance” between the states and federal government, especially in those areas traditionally under state control. Thus under Supremacy Clause preemption the Court applies a “presumption against preemption” and holds that federal law preempts state law only when it is the “clear and manifest” purpose of Congress to do so. In short, the Court puts a thumb on the scale against preemption in its Supremacy Clause analysis.
The Court has not specifically said whether its approach to preemption under the Supremacy Clause applies also to preemption under the Elections Clause. If so, Congress would face a higher bar in preempting state law under the Elections Clause; if not, Congress could more easily preempt state law.
The parties dispute this, with Arizona arguing for the higher Supremacy Clause standard, and the plaintiffs-respondents arguing for a lower preemption standard. They also dispute whether under either standard Proposition 200 actually conflicts with the NVRA, and thus whether the NVRA preempts it.
[Summary of specific arguments omitted.]
This case tests the boundary between congressional authority and state authority in the special context of the Elections Clause. The Supreme Court has not ruled directly on this issue; in particular, it has not specifically set a standard for federal preemption of state law under this Clause. Thus this case is important because the Court’s ruling will (at least partially) fill this void and tell us something about the scope and extent of congressional authority, and therefore the scope and extent of state authority, under this Clause.
That, in turn, is important, because it will set the standard for federalism in relation to regulation of federal elections. If the Court borrows and applies the standard for preemption under the Supremacy Clause—with all its deference to state sovereignty, in the interest of maintaining the “delicate balance” between the states and federal government—the states could have more latitude to regulate elections, even affecting the composition of the federal government. (Various state efforts to strategically manipulate voting requirements in the 2012 elections in order to seek political advantage in federal elections stand as a stark and recent reminder of how state regulation could affect the federal government—exactly what the framers were concerned about.) But on the other hand if the Court applies a lower standard, one without deference to state sovereignty or considerations of federalism, the ruling could restrict the states in how they regulate elections, even restricting states from imposing additional proof-of-citizenship requirements (as in this case).
Still, the standard that the Court sets for preemption may be distinct from its ruling on preemption in this case. Whatever standard the Court adopts, its ruling in this case will tell us how much flexibility states have in adding to the NVRA requirements. If the Court holds that the NVRA does not preempt Proposition 200, this could invite states to impose all manner of additional requirements, potentially undercutting the congressional purpose of uniformity in voter registration in the NVRA and, again, potentially affecting the very composition of the federal government. But if the Court holds that the NVRA preempts Proposition 200, the ruling will restrict states in imposing additional requirements and will underscore national uniformity in voter registration.
In the end, whatever the Court rules, Congress could get the last word. That’s because Congress can always go back and rewrite its legislation in response to any preemption ruling from the Court. Here, Congress could rewrite the NVRA to more explicitly preempt state requirements like those in Proposition 200 (on the one hand), or to allow those requirements (on the other). In this way, Congress could effectively undo any decision in this case. The Court’s ruling will be important, to be sure, but it will not necessarily be the final decision on this issue.
Outside of these considerations, this case is also important because it comes to the Court just one month after the Court heard oral arguments in Shelby County v. Holder, testing the constitutionality of the preclearance provision in the Voting Rights Act. A bare majority of justices seemed skeptical in those arguments that preclearance and the related coverage formula were still necessary in 2013 to enforce the constitutional prohibitions against voting discrimination. In particular, a number of justices expressed concern about congressional infringement on state sovereignty and equality among the states. Between this case and Shelby County, we will learn quite a bit about where the Roberts Court stands on federalism and voting rights.
This case also comes just a year after Arizona v. U.S., 567 U.S. ___ (2012), another case testing Arizona’s authority, as against the federal government, to regulate non-citizens, when the regulation spills over and affects how Arizona treats U.S. citizens. Arizona v. U.S. involved the state’s efforts to clamp down on illegal immigration by authorizing its officers to check the immigration status of individuals that they detain and to regulate undocumented aliens in various ways. That case was a partial victory for Arizona and a partial victory for the United States. This case is yet a different test of Arizona’s authority, as against the federal government, to address illegal immigration.
"Equality of States" in the VRA Challenge
"Equality of the states" reared its head recently in oral arguments in Shelby County v. Holder, the case testing congressional authority to reauthorize the preclearance provision of the Voting Rights Act. The traditionally conservative Justices all (save Justice Thomas) expressed different concerns related to the provision's different treatment of the states--or, how preclearance violates the principle of "equality of the states." (Preclearance under Section 5 of the VRA applies only to covered jurisdictions under Section 4(b) of the VRA. Only covered jurisdictions, not all states, are required to preclear their election law changes with DOJ or the D.C. District court.)
But where does this idea of equality of the states come from?
David Gans over at the Constitutional Accountability Center draws on a recent piece by Adam Liptak and argues that Congress violates a principle of equality of the states all the time--most notably by providing dramatically different levels of funding, per capita, to different states. Nobody makes a constitutional case out of this.
Moreover, Gans argues that "[t]he Supreme Court has never interpreted the Constitution to require equality among the states outside the very narrow context of the admission of new states. It is now black letter law that 'the doctrine of equality of states . . . applies only to the terms upon which the states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.'"
For more on that point, and how the Court mangled the "equality of the states" quote in Northwest Austin Municipal Utility District v. Holder, check out Zachary Price's contribution to the SCOTUblog symposium on Shelby County, and Federalism and the Voting Rights Act at the ACS blog.
March 08, 2013
Daily Read: Obama Signs VAWA
Apropos of International Women's Day today, President Obama's signing of the reauthorization of the Violence Against Women Act (VAWA) yesterday is the daily read, including the official remarks and the video below.
As the President's remarks reflect, the version of VAWA that passed Congress is notable because it includes protections for Native Americans (expanding tribal jurisdiction), for undocumented persons, and for persons in same-sex relationships.
And they are also notable for his shout-out to one of my former students, Sharon Stapel, for her work.
February 27, 2013
Court Seems Poised to Overturn Voting Rights Act
The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act. If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.
Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws. This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race. This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination. (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA. Section 2 is not at issue in this case.)
Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments. In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws. Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.
The arguments were lively, to say the least. The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine. And they all seemed to have their minds made up, more or less. If there are swing votes, look to Chief Justice Roberts or Justice Kennedy. Although they seemed set in their positions, they seemed perhaps the least set.
Substantively, there were few surprises. Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument). So these points that came up today are familiar:
- Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
- Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
- Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
- Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
- Whether with a string of reauthorizations preclearance will ever not be necessary.
On this last point, it was clear that for some justices the government was in a tough spot. On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide. But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary. (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)
All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.
This doesn't mean, necessarily, that the whole scheme will go down. There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b). But this result would likely doom the whole scheme, in fact. That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country. Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.
There was a low point. Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:
Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
It's not exactly clear what's the "racial entitlement" in Section 5. Section 5 is simply not an entitlement provision. But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race? If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes." As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.
February 27, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Oral Argument Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack
Daily Read: William Faulkner and the Voting Rights Act
As the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others. But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.
Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully." Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins." Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results. These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions. Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.
While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.
[image of William Faulkner via]
February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack
February 21, 2013
A Drone Court . . . in the Executive Branch?
While many continue talking about a drone court in the judicial branch, Neal Katyal wrote in the NYT in favor of a drone court in the executive branch. Katyal argues that an executive tribunal comprised of national security experts, with congressional oversight, is a better tailored way to ensure accountability in the administration's use of drone strikes for targeted killings. The proposal splits the difference--or takes the best of both approaches--between the administration's current policy (which, it says, includes an internal executive branch review by experts, but with no independent oversight) and a full-fledged drone court in the judicial branch.
According to supporters, the drone court would provide a check to the administration's use of drones for targeted killing of Americans overseas, in the spirit of the FISA court. But ideas so far locate the court in the judiciary. Katyal sees a problem with that:
There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.
But putting oversight authority in the executive branch, staffed by experts, would solve that problem. And Katyal says that an executive branch "court" could still be subject to a check--by Congress:
The adjudicator would be a panel of the president's most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review. Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.
As to explaining to Congress--and shifting gears just slightly--it's now widely reported that the White House is refusing to disclose DOJ memos justifying its targeted killing program. Instead, to gain bi-partisan support for John Brennan to lead the CIA, the administration is negotiating with Republicans to provide more information on the attacks in Benghazi in order to gain their support for Brennan.
February 19, 2013
Can a Legislature Criminalize Legislation?
A bill introduced in the Missouri legislature would criminalize the introduction of other legislation. HB 633 would amend the state statutes to provide:
Any member of the general assembly who proposes a piece of legislation that further restricts the right of an individual to bear arms, as set forth under the second amendment of the Constitution of the United States, shall be guilty of a class D felony.
The bill is likely unconstitutional under its state constitution.
The Missouri state constitution, like the United States Constitution, Art. I §6, has a "speech or debate" clause that is generally construed to protect legislative action. Missouri Constitution Art. III §19, "legislative privileges," provides:
Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the session of the general assembly, and for the fifteen days next before the commencement and after the termination of each session; and they shall not be questioned for any speech or debate in either house in any other place.
The Missouri bill seems to fall outside the general purpose of legislative privilege provisions that are intended to protect the legislature from overreaching by other branches. Nevertheless, the Missouri legislature's criminal provision would call legislators into courts to "be questioned" for their legislative acts.
[image: Missouri State Capitol via]
Supreme Court Rules Child Return Order Not Moot on Appeal
A unanimous Supreme Court ruled today that a district court's order that a child return to his or her home country is not moot on appeal just because any relief ordered on appeal is unlikely to get the child back to the U.S. The ruling means that the lower court can determine whether the district court's return order was in error--potentially resulting in a re-return order that may or may not have any practical effect.
The case, Chafin v. Chafin, arises out of an international custody dispute between a U.S.-citizen-dad and a U.K.-citizen-mom. Under the Hague Convention on the Civil Aspects of International Child Abduction, which is designed to work these things out, a federal district court ordered the return of the child to her country of "habitual residence," Scotland, and mom took her there. Dad appealed, but the circuit court dismissed the case as moot, saying that it "became powerless" to grant relief. What it meant was that it couldn't reverse the district court and order it to re-return the child (because the courts don't have authority for re-return), and in any event a re-return order wouldn't be effective
The Supreme Court disagreed. Chief Justice Roberts wrote for a unanimous Court that a case doesn't become moot just because a court may not have authority to grant the requested relief (in this case a re-return, which goes to the merits, not mootness, according to the Court) or just because the court's order is unlikely to have any practical effect.
Mr. Chafin's claim for re-return--under the Convention itself or according to general equitable principles--cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction . . . and his prospects of success are therefore not pertinent to the mootness inquiry.
As to the effectiveness of any relief . . . even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions. No law of physics prevents E.C.'s return from Scotland . . . and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States.
Op. at 8-9 (citations omitted).
Justice Ginsburg, joined by Justices Scalia and Breyer, wrote in concurrence that international shuttling is no good for a child, and that Congress and the courts might work out a more streamlined procedure to protect against putting a child in this position in the first place.
Court to Test Individual Campaign Contribution Limits
The Supreme Court today said it would take up McCutcheon v. FEC, a case testing federal biennial limits on contributions to candidates, PACs, parties, and committees. (The jurisdictional statement is here.) While the case directly challenges biennial limits under the Buckley framework, the petitioner also preserved the issue whether Buckley's contribution-expenditure scrutiny distinction violates free speech.
It's not clear how much the case could matter to the sheer amount of money in politics. That's because contributors already have ample and growing opportunities to contribute to proliferating super-PACs and 501(c)(4) organizations. But if the Court takes on Buckley's contribution-expenditure distinction, the ruling could be quite significant both for First Amendment doctrine and money in politics. (That distinction means that the government can regulate contributions to prevent political corruption, but expenditures get full First Amendment protection.) It could be the next step after Citizens United in further opening the money spigot.
The case directly attacks federal biennial expenditure limits under the Bipartisan Campaign Reform Act. BCRA limits an individual's contribution to a candidate, a national party, a local party, and a PAC in each calendar year. These are called "base limits." But BCRA also limits an individual's total contributions to all federal candidates, party committees, and PACs every two years. These are the "biennial limits."
McCutcheon argues that the biennial limits restrict his ability to contribute to as many candidates and parties as he'd like, thus restricting his First Amendment rights. In particular, he says that the biennial limits under BCRA have no justification and therefore must be struck.
To see why, start with the old biennial limit upheld by the Court in Buckley. Back then, there were no base limits for contributions to PACs or national or local parties. (There was a base limit on contributions to candidates, though--$1,000 per.) McClutcheon argues that the Court in Buckley upheld the biennial limit because it was designed to prevent a contributor from circumventing the base limit on candidates. How? By contributing massive amounts through political committees that would simply funnel the money to the candidate.
McClutcheon says that BCRA--with its base limits and biennial limits on candidates, committees, PACs, and parties--can't be designed to prevent circumvention in the same way. This is because BCRA's base limits themselves restrict circumvention. (BCRA's base limit on a party, e.g., prevents a contributor from funneling massive amounts of money through the party to the candidate). McClutcheon says that the only effects of BCRA's biennial limits are to restrict the total amount of cash he can spend and, with the base limits, to restrict the number of candidates, committees, PACs, and parties that he can spend on--thus violating his First Amendment rights. (E.g.: He would've liked to give $25,000 each to the RNC, the National Republican Senatorial Committee, and the National Republican Congressional Committee before the 2012 election, but that would have exceeded the biennial limit.) McClutcheon says his case against the biennial limit on contributions to candidates is even stronger, because even Buckley didn't hold that there's an anti-circumvention interest in that limit. He claims that that limit serves only to prevent him from contributing to as many people as he'd like.
McClutcheon also argues that the biennial limits are too low.
The Court could rule on the narrow issue whether the biennial limits violate Buckley's anti-circumvention interest (which supported the old biennial limit). This kind of ruling (if, as expected, it overturns the biennial limits) could give contributors another way to spend more money in politics, but it would retain Buckley's contribution-expenditure scrutiny distinction. Alternatively, the Court could take on BCRA's biennial limits and Buckley's contribution-expenditure distinction. This could fundamentally change how we approach campaign finance restrictions under the First Amendment (even if it's not obvious that it would necessarily result in a ton more money in politics).
February 14, 2013
Is the Violence Against Women Act Unconstitutional?
The Senate this week reauthorized the Violence Against Women Act and added a provision authorizing Native American Indian tribal courts to try non-Indians for acts of violence against Native American tribal members. The provision, Section 904 of the Senate-passed VAWA, caught the attention of some on the right, who claim it's unconstitutional.
The Heritage Foundation outlined the argument in a post today. According to the post, congressional extension of tribal jurisdiction to non-Indians violates the Appointments Clause and the life-tenure provision in Article III. The reason, according to the post, is simple: tribal judges aren't appointed pursuant to the Appointments Clause, and they don't meet the requirements of Article III. They therefore can't mete out punishment against non-Indians.
To unpack this, it helps to understand the debate between congressionally delegated power to tribes versus inherent power of tribes. Advocates of the congressionally-delegated view say that tribes operate pursuant to congressional delegation, and therefore the full force of the Constitution applies. Advocates of the inherent power view say that tribes have inherent sovereignty and authority on their lands, and that they operate pursuant to their own rules and any overriding congressional requirements.
The Supreme Court has weighed in, but barely. It ruled in Oliphant v. Suquamish Indian Tribe that tribal courts lacked inherent authority over non-Indians, but it suggested that Congress could extend their authority to reach non-Indians. In United States v. Lara, the Court ruled that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try non-member Indians.
The Heritage Foundation piece takes the congressionally-delegated-power view. This means, as the piece argues, that the Constitution applies with full force over the tribal courts, and that if they exercise jurisdiction over non-Indians, they, like regular Article III courts, have to meet constitutional requirements. (You might ask why the piece didn't argue that they similarly have to meet due process requirements. The reason: Congress extended due process protections in the earlier Indian Civil Rights Act and in the VAWA itself.)
The Senate took the inherent-authority view. Thus Section 904 of the VAWA says, "the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons." (Emphasis added.)
Which view is right? Well, the Court has suggested in both Oliphant and Lara that the inherent-authority view is correct. But that view might not get five Justices on the current Court. So we're not sure how the Court would rule.
The Congressional Research Service has a terrific report on the issue here.
Balanced Budget Amendment is Back
There are already several proposals for a Balanced Budget Amendment in the House, and National Review Online reports that Senators Mitch McConnell and John Cornyn would unveil their own bill today in the Senate. We posted on a left-leaning critique of the BBA here. Here's what NRO said about it today:
Passage of a BBA is not just implausible; it also would be unwise. Like the doomed 18th Amendment, it would enshrine partisan policy priorities in the founding document of the republic, which was meant to structure the democratic process, not rig its outcome in advance.
It would invite a hyperactive judicial intervention in the budget-making process that would throw the separation of powers completely out of balance. Previous BBA proposals explicitly banned courts from raising taxes to balance the budget but did not otherwise limit judicial enforcement. This means the judiciary might well attempt to set specific levels for every category of spending or otherwise shape budget priorities in an effort to enforce the Constitution. Such a perversion of republican government would raise the stakes of inter-branch hostility and distrust to unprecedented levels.
February 09, 2013
A Targeted Killing Court?
The idea to create a judicial check on the administration's use of targeted killings seems to be gaining some momentum, according to several sources, including WaPo and NYT. According to the reports, the idea is to create a secret court, like the FISA court, to provide a measure of process before the government kills a person by drone attack. There is some concern that a court could act quickly enough, however. Senate Intelligence Committee Chairman Senator Diane Feinstein said she and others may explore the idea of a special court.
February 07, 2013
DOJ Releases Memos on Drone Attacks to Senate Committee
The Justice Department today released a series of legal memos outlining the case for the administration's use of drone attacks to the Senate Intelligence Committee, according to WaPo. But the memos are (inexplicably) not for public consumption.
The release came just days after the leak of a DOJ white paper outlining the legal case for drone attacks on Americans overseas, and just hours before John Brennan's confirmation hearing before the Committee to be CIA director. Brennan defended the attacks in his testimony.