Constitutional Law Prof Blog

Supreme Court Puts Voting Rights in Crosshairs

The Supreme Court on Friday agreed to hear the Shelby County challenge to the preclearance provision of the Voting Rights Act as reauthorized in 2006.  The preclearance provision, Section 5, is the centerpiece of the VRA; it requires covered jurisdictions--those with a particularly ugly history of discrimination in voting--to obtain preclearance from the U.S. Department of Justice or a three-judge federal court in D.C. before making any changes to their voting laws.  The Court criticized Section 5 just three-and-a-half years ago in Northwest Austin Municipal Utility District v. Holder for not keeping up with improvements in covered jurisdictions and for intruding on the states.  The Court wrote that Section 5 raised "serious constitutional questions," but declined to rule on its constitutionality.  Thus Section 5 survived Northwest Austin--but just barely.

The cert. grant in the Shelby County case asks whether Section 5 is unconstitutional in light of Congress's reauthorization of it using pre-existing Section 4(b) coverage.  Section 4(b) sets a formula for which states and counties are covered jurisdictions and therefore must obtain preclearance before changing their voting laws.  The two sections go hand-in-hand, and a ruling overturning Section 5 would render Section 4(b) null.  But a ruling overturning only Section 4(b) could leave Section 5 in place.  Such a ruling would require Congress to go back and determine the covered jurisdictions more carefully--something some say it failed to do when it reauthorized the VRA in 2006 (and hasn't done since).

The way the Court poses the question presented leaves this possibility open--and it's the more restrained option for a Court inclined to overturn something in the 2006 reauthorization.  But it seems highly unlikely.  Section 5 is almost certainly the real target, whatever the coverage formula in Section 4(b).  Here's the QP:

Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

The QP's references to the Tenth Amendment and Article IV ensure that the case will center on federalism concerns.  Northwest Austin said as much, with its language suggesting that Section 5 unduly intrudes on the states.

The Court took no action on another Section 5 challenge, Nix.  Petitioners in that case filed their cert. petition at the same time that the Shelby County petitioners filed, in late July.

SDS

DOJ Moves to Dismiss Fast and Furious Suit

Earlier this week the Justice Department filed its motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder.  The motion was expected, and the arguments are not a surprise.

Recall that the Committee brought the case seeking a declaration that the administration's assertion of executive privilege was without merit and that its failure to turn over certain documents to the Committee in its investigation of the "Fast and Furious" program was without justification.  The Committee seeks an order requiring the government to turn over these documents.

Recall also that since the Committee filed its suit, the DOJ Inspector General issued its report into the program and testified before Congress on it.

DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward.  In short, DOJ says that the political branches should work this out.  According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.

DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action.  It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction.  In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331.  (Congress asserted no claim for monetary damages in that case.)  Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps.  (Otherwise 1365 would be a nullity.)  If so, the court lacks jurisdiction over the House Committee's suit.  Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.

Now we wait for the Committee's response.

SDS

D.C. Circuit Vacates Hamdan's Conviction for "Material Support for Terrorism"

A unanimous three-judge panel of the D.C. Circuit today in Hamdan v. U.S. reversed the judgment of the Court of Military Commission Review and directed that Salim Ahmed Hamdan's conviction for "material support for terrorism" be vacated.  The ruling clears Hamdan, who already served time (66 months minus credit for time already served at Guantanamo) and has been released, of this conviction.

Hamdan here is the same Hamdan who successfully challenged the government's authority to try him by military commission in Hamdan v. Rumsfeld.  After Congress passed the Military Commissions Act of 2006 and expanded the list of crimes for which a person could be tried by military commission, the government re-charged Hamdan with conspiracy and material support for terrorism.  Hamdan was acquitted of conspiracy, but convicted of five specifications of material support for terrorism.  He was sentenced to 66 months, but credited for served for most of that sentence, and released in Yemen in 2008.

The D.C. Circuit ruled that Hamdan's case was not moot (even though he already served time and was released in 2008 in Yemen) and that the MCA, which specifically made "material support for terrorism" a crime triable in a military commission, did not apply (in order to avoid ex post facto problems).  This left the court to determine whether the government had authority to try Hamdan for "material support for terrorism" under 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war." 

In short, the court ruled that the international law of war at the time did not proscribe "material support for terrorism" and that the government therefore lacked authority to try Hamdan for that crime by military commission.  The court wrote that

neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime.  Perhaps most telling, before this case, no person has ever been tried by an international-law war crimes tribunal for material support of terrorism.

Op. at 25.  The court said that international law leaves "material support for terrorism" to domestic law (even if international law does establish some other forms of terrorism as war crimes), and domestic law didn't outlaw it until the 2006 MCA--after Hamdan's actions.

Judge Ginsburg joined the court's opinion but wrote separately to "explain the unfortunate state of . . . precedent" that saved the case from mootness.

Only Judge Kavanaugh, the author of the court's opinion, joined footnote 6, which explained why Congress had authority to make "material support for terrorism" a war crime, and why it is appropriate to address that question in the first place.  Judge Kavanaugh wrote that Congress's war powers are not confined by international law, and therefore even if international law did not define "material support for terrorism" as a war crime, Congress could.

SDS

Congressional Denial of Automatic COLAs for Judges Violates Compensation Clause

The en banc Federal Circuit ruled on Friday in Beer v. U.S. that congressional denial of automatic and determinate cost-of-living-adjustments to the salaries of federal judges violated the Compensation Clause in Article III.  The ruling sends the case back to the Court of Federal Claims and almost surely means that federal judges will receive retroactive COLAs, unless the case is overturned on appeal (to the Supreme Court).  It means that Congress can't go back on automatic and definite COLA increases for judges--or any other future salary adjustments that are sufficiently determinate to set judges' expectations--even if it can go back on future year COLA increases if they are sufficiently squishy.

The case involved a 1989 congressional act that set an automatic and determinate formula--a "mechanical" formula, according to the court--for COLAs for federal judges.  (Under the prior law, enacted in 1975, judges' COLAs were pegged to the President's report to Congress on General Schedule federal employee COLAs, which, in turn, was set based on annual reports by the Bureau of Labor Statistics and the Advisory Committee on Federal Pay.  The 1975 law, then, set no definite formula for future COLAs; instead, COLAs could vary year-to-year based on the BLS and Advisory Committee reports and based on the President's report to Congress.)  Despite the automatic formula in the 1989 act, Congress denied COLAs in 1995, 1996, 1997, and 1999.  Judges sued, arguing that these denials violated the Compensation Clause.

The Compensation Clause says that federal judicial  "Compensation . . . shall not be diminished during [judges'] Continuance in Office."  But the framers deliberately declined to tie judicial salaries to commodities or other standards of measurement (to establish an early kind of COLA), and the Clause does not require periodic increases in judicial salaries to offset inflation or other economic factors.  Indeed, the Supreme Court ruled in United States v. Will (1980) that congressional acts declining to extend COLAs under the 1975 law did not violate the Compensation Clause.  (The Court in Will said that Congress could go back on future year COLAs, but not on current year COLAs, under the 1975 law, because "a salary increase 'vests' . . . only when it takes effect as part of the compensation due and payable to Article III judges"--in the current year.)

The difference here, said the court, is that the 1989 law, with its automatic and determinate formula, set judges' salary expectations, which then became part of their "Compensation" for Compensation Clause purposes.  The court explained:

In essence, the statutes reviewed in Will required judicial divination to predict a COLA and prevented the creation of firm expectations that judges would in fact receive any inflation-compensating adjustment.  In that context, as the Supreme Court noted, no adjustment vested until formally enacted and received.  However, the statutes in Williams and in this case provide COLAs according to a mechanical, automatic process that creates expectation and reliance when read in light of the Compensation Clause.  Indeed a prospective judicial nominee in 1989 might well have decided to forego a lucrative legal career, based, in part, on the promise that the new adjustment scheme would preserve the real value of judicial compensation.

Op. at 13.  

Moreover, the automatic formula in the 1989 act was part of a legislative quid pro quo that included limits on judges' outside income, effectively limiting their income.  Thus, "the statute ensured that real judicial salary would not be reduced in the fact of the elimination of outside income and the operation of inflation."  Op. at 15.

In ruling that congressional denials of COLAs violated the Compensation Clause, the court overturned its own precedent, Williams v. United States, which held that denials of COLAs under the 1989 law did not violate the Compensation Clause.

SDS

 

Second Circuit Extends Stay of District Court Ruling on Detention Authority

A three-judge panel of the Second Circuit extended an earlier temporary stay of district Judge Katherine B. Forrest's ruling that the government's detention authority in Section 1021 of the National Defense Authorization Act was unconstitutional.

The stay means that Judge Forrest's ruling does not go into effect unless and until the Second Circuit affirms it.  But the panel ruling also put the case on an expedited briefing schedule, with the government's opening brief due on November 2.  The reasons given by the panel suggest that the Second Circuit is all but certain to reverse Judge Forrest's ruling.

We previously posted on Judge Forrest's ruling, with background and analysis.  Recall that Section 1021 authorizes detention of any "covered person," defined as follows:

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

But the Section also says that it's not intended to change the scope of detention authority under the AUMF.

Plaintiffs, a group of writers, journalists, and activists, sued, arguing that the Section's language was pliable enough to include them, putting them at risk of detention.  The core of their case was that Section 1021 swept more broadly than the government's prior detention authority under the AUMF.  They also said it was unconstitutionally vague and violated their First Amendment rights.  The government maintained that Section 1021 only codified existing detention authority.  Judge Forrest agreed with the plaintiffs and issued a permanent injunction.

Soon after Judge Forrest ruled, however, an applications judge entered a temporary stay.  The panel's ruling made that stay permanent, pending appeal.

The panel issued the stay for three reasons.  First, it said that the government clarified that the plaintiffs "are in no danger whatsoever of ever being captured and detained by the U.S. military."  Next, it said that the Section on its face does not affect existing rights of U.S. citizens or others arrested in the United States.  (Compare Judge Forrest's ruling, which held that Section 1021 expanded government detention authority that existed under the AUMF.)  Finally, it said that Judge Forrest's injunction "appears to go beyond [Section 1021] itself and to limit the government's authority under the [AUMF]."

The panel's curt reasons suggests that the Second Circuit is quite likely to reverse Judge Forrest's ruling on the merits.

SDS

High Court Skeptical of Nigerians' Human Rights Claim in U.S. Courts

The Supreme Court heard oral arguments Monday in Kiobel v. Royal Dutch Petroleum Co., the case testing whether the Alien Tort Statute applies to a foreign corporation's human rights violations overseas.  The Court ordered reargument after it first heard the case last Term, on the question whether the ATS applies to corporations.  The new question, argued Monday, is whether the ATS applies at all to actions that have no direct connection to the U.S.  (We previously posted on the case, along with the Torture Victim Protection Act case from last Term, Mohamad v. Palestinian Authority, here.)

The case arose out of Nigerians' claims that defendant corporations committed human rights abuses against them in Nigeria (aiding the Nigerian government).  The plaintiffs sought and gained asylum in the U.S., so sued in U.S. courts, under the ATS.

Chief Justice Roberts and Justices Scalia, Kennedy, and Alito all expressed skepticism that the ATS should apply to overseas abuses by non-U.S. corporations.  Chief Justice Roberts and Justice Alito both asked whether U.K. or Dutch courts might be a better forum for the case, given that the defendants are U.K. and Dutch companies (with some connection to those jurisdictions).  Justices Scalia and Kennedy both worried early in the arguments that the plaintiffs' position could mean that U.S. corporations could face suits anywhere in the world, under another country's assertion of universal jurisdiction--thus, for example, allowing a foreign court to determine whether a U.S. corporation violated international law in the U.S.  The Justices also worried about the extraterritorial application of U.S. law--and whether the ATS wouldn't improperly insert U.S. law into other jurisdictions in violation of the presumtion against extraterritorial application.

Paul Hoffman, counsel for the plaintiffs had an answer to these concerns: the law of personal jurisdiction, forum non conveniens, and political question would act as a backstop to ATS-based universal jurisdiction in U.S. courts, when the case didn't belong there.  He also seemed to concede that some kind of exhaustion requirement (in which plaintiffs would have to exhaust available foreign remedies before proceeding in U.S. courts) or a rule that U.S. courts could take jurisdiction only when foreign courts couldn't offer fair justice could be reasonable checks on jurisdiction in the U.S. courts.

Justices Ginsburg, Sotomayor, and Kagan seemed to search more for a practical, less categorical solution, by exploring defenses of personal jurisdiction and exhaustion, for example--the back-end fixes that Hoffman seemed to accept.  Justice Breyer seemed most entrenched in favor of ATS jurisdiction, even at one point illustrating his view of the statute's reach by comparing Hitler's atrocities to the early acts of piracy that the ATS was designed to remedy.

There was one particular sticking point: Sosa v. Alvarez-Machain, the Court's 2004 foray into the ATS, where a Mexican sued other Mexicans for events that occured in Mexico, although there was a key U.S. connection: the DEA set the whole affair in motion.  The Court in that case held that the plaintiff could not recover damages under the ATS, but it also suggested that the ATS could reach a case like Kiobel.  Thus the question: Must the Court overturn Sosa in order to rule for the defendant?  Kathleen Kennedy, counsel for the defendants, argued no: Sosa is distinguishable, and the Court said only that there were no sufficiently universal and specific international norms to support an ATS claim.  But Justice Kagan argued yes, noting that Sosa put its stamp of approval on the reasoning in Filartiga, the pathbreaking case in which the Second Circuit applied the ATS against an alien for acts outside the U.S.  (Complicating things yet further, Congress later enacted the Torture Victim Protection Act, authorizing just the kind of suit in Filartiga.  The defendants argued here that the TVPA means that the Court doesn't need to address Filartiga, because "Filartiga is taken care of entirely by the proper body, which is Congress.")

The Justices also explored ways to consider the government's interest in foreign affairs--a point pressed by SG Verrilli, but only narrowly: The government's position is "that there shouldn't be a cause of action to address the extraterritorial conduct of a foreign corporation that is alleged to have aided and abetted the acts of a foreign sovereign."

In all, the case doesn't look good for the plaintiffs.  Even if the Court rules that the ATS can apply to an alien acting in a foreign country--that is, even if it doesn't adopt a categorical rule barring an ATS claim in that situation--it seems likely to rule that U.S. courts should punt until the plaintiff exhausts all reasonable and effective foreign remedies first, or that the government's foreign affairs interests trump the plaintiff's claims, or both.  The Court could also send the case back for a (re)consideration of personal jurisdiction.  Any one of these could doom the plaintiffs' case.  (It's not clear exactly how exhaustion and personal jurisdiction would play out: it doesn't seem that those issues have been seriously litigated with respect to all defendants.)  Moreover, the Court could rule that the ATS doesn't apply to corporations.  That, too, would doom the plaintiff's case. 

SDS

Third Circuit Rejects Broad Side Challenge to Congressional Reapportionment Process

Here's one we don't see everyday:

Citizen Eugene Martin Lavergne sued a who's-who of federal officers, arguing that the federal law saying how to reapportion congressional representatives in the wake of the census violated "Article the First," or the Congressional Apportionment Amendment, among other actual constitutional claims.

Not surprisingly, the Third Circuit rejected the claims.

Recall that Article the First was the first of twelve proposed amendments coming out of the First Congress and submitted to state legislatures for ratification.  Article the First never got enough states on board, though, even as Articles the Third through Twelfth became the Bill of Rights.  (Article the Second became the Twenty-Seventh Amendment, ratified 203 years after its introduction, on May 7, 1992.)  Article the First says,

After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Was Article the First actually ratified?  Here's Lavergne's math, from paragraph 59 of his complaint:

Article V of the United States Constitution is silent on the issue of fractional numbers and how they affect--or do not affect--the "three-fourths" language regarding ratification of proposed amendments by the States.  [It] is also silent on the issue of whether the "three-fourths" of the States referred to in Article V refers to the 3/4 of the States admitted at the time that the amendment was originally proposed, or whether that number changes as additional States are admitted to the Union before a given ratification process is concluded.  Even if the Law is that the 3/4 requirement changes and increases whenever a State joins the Union, when Kentucky became the 15th State and ratified "Article the First", the "pure numerical ratio" of "three-fourths" was 11.25 States, and Kentucky was the 11th State to ratify.  If fractional numbers are disregarded, or fractional numbers less than .49 are "rounded down" to the last whole number, then "Article the First" actually was ratified in 1792.  If any fractional number requires advancing to the next whole number, then "Article the First" was not ratified.  . . .  This Court is now being asked to answer these questions.

Weighty stuff, but the Third Circuit didn't bite: "Putting aside the considerable factual and historical problems with [Lavergne's] argument, '[t]he issue of whether a constitutional amendment has been properly ratified is a political question.'"  Op. at 5-6 (quoting United States v. McDonald, 919 F.2d 146 (9th Cir. 1990).)  

The Third Circuit also rejected Lavergne's handful of other, actual constitutional arguments (separation-of-powers and nondelegation doctrine claims based on the process of reapportionment, and a one-person-one-vote claim), ruling as a threshold matter that he lacked standing, and then rejecting the claims on their merits.

SDS

Appeals Judge Stays District Court Injunction on NDAA Detention Authority

Charlie Savage at the NYT reports that Judge Raymond J. Lohier of the Second Circuit granted an interim stay of district Judge Katherine Forrest's permanent injunction against the use of the detention authority in the National Defense Authorization Act by the Obama administration.  Our post on Judge Forrest's injunction, along with background, is here.

The stay means that Judge Forrest's injunction does not prevent the government from acting under its detention authority in the NDAA, until a panel of the Second Circuit hears the case, scheduled for September 28.

This is a set-back for the plaintiffs in the case and other opponents of the NDAA's detention authority--but only a minor, maybe temporary one: everyone expected that the Second Circuit would have the next say on this case, whatever Judge Forrest ruled, and that the Supreme Court may have the final say.

SDS

Court Permanently Enjoins NDAA Detention Authority

Judge Katherine B. Forrest (SDNY) ruled in Hedges v. Obama that the detention authority in Section 1021 of the National Defense Authorization Act violated free speech and free association and was unconstitutionally vague.  Judge Forrest issued a permanent injunction against its enforcement.

The ruling comes nearly four months after Judge Forrest issued a temporary injunction in the same case.  The ruling means that the government cannot use Section 1021 as authority for military detention--at least in the Southern District, if not beyond--and it warns the government strongly against using the AUMF instead.  Judge Forrest wrote that the AUMF never authorized the kind of detention authorized in Section 1021--that Section 1021 is a new and different kind of detention authority--undermining the government's claim that the AUMF allowed this all along.  According to Judge Forrest, it didn't.  And still doesn't.  The ruling thus not only strikes Section 1021; it also strikes at the government's sweeping theory of detention under the AUMF itself.  Needless to say, the ruling is a huge victory for opponents of limitless and military detention without trial.

Recall that the plaintiffs in the case, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 violated the First Amendment.  That Section provides:

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons."

Judge Forrest agreed.  She ruled that the government had done nothing since the preliminary injunction to better or more clearly define vague terms in that subsection, and that it had done very little to assure her that the plaintiffs in this case wouldn't be subject to detention under its authority.  Here are some key points from the ruling:

• Standing.  Judge Forrest rejected the government's claim that the plaintiffs lacked standing, particularly becuase the government had done almost nothing to persuade her that the plaintiffs might not be subject to detention under Section 1021 in violation of the First Amendment.  Since the preliminary injunction, the government only issued a highly qualified statement that said that the plaintiffs, based solely on their independent activities described in their affidavits and testimony, wouldn't be subject to detention.  For Judge Forrest, this wasn't enough.  The highly qualified statement left the door wide enough open for prosecution of protected activities that the plaintiffs still had standing.
• AUMF Authority.  Judge Forrest categorically rejected the government's repeated claim in this litigation (and elsewhere) that Section 1021 only codified authority that it already enjoyed pursuant to the AUMF.  Judge Forrest was clear that the authorities differed--and that Section 1021 added to authority under the AUMF, that the AUMF didn't go so far as to authority detention of those "substantially or directly supporting" "associated forces."  She wrote that the government itself extended its own authority under the AUMF to resemble something like the authority codified in Section 1021, but that the AUMF itself (without the government's subsequent gloss) does not grant the same authority as Section 1021.  (The AUMF authorizes "all necessary and appropriate force against those . . . [who the President determines] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ."  Compare that language to the language of Section 1021(b)(2), above.)
• Alternative Use of AUMF.  Related to that last point, Judge Forrest issued a strong statement warning the government against using the "substantially or directly supporting" theory as the basis of any detention.  She wrote,

If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of "substantially or directly supporting" associated forces, as set forth in Section 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.

Op. at 14.

• Habeas.  Judge Forrest categorically rejected the government's claim that habeas would ensure that detainees under Section 1021 would get their day in court.  She said that if only habeas review were available to U.S. citizens detained within the U.S., core constitutional rights (like the right to a jury trial in a criminal case) would be eliminated.

SDS

Western District of Texas Keeps Court-Drawn Maps in Place for Election

Following an earlier ruling last week by a three-judge panel of the D.C. District denying Section 5 preclearance to Texas legislature's redistricting plans, a Western District of Texas panel ruled on Friday that the most recent court-drawn plans will remain in place for the upcoming elections.

The ruling means that the court-drawn plans will govern the upcoming elections--even though at least one of those plans, the congressional district plan, was based closely on the Texas legislature's original plan that was denied preclearance earlier in the week.

This can all seem confusing, so let's sort it out from the beginning.  The Texas legislature redrew maps for its congressional, state senate, and state house seats in response to its ballooning and shifting population in the 2010 census and to maintain one-person-one-vote in its districts.  But Texas was required to gain preclearance under Section 5 of the VRA before it implemented those plans.  So it sought preclearance from a three-judge panel of the U.S. District Court for the District of Columbia.  (It could have alternatively sought preclearance from DOJ, but it didn't.)

While the Section 5 case was pending, plaintiffs challenged the plans in the United States District Court for the Western District of Texas, alleging that the plans violated Section 2 of the VRA.  The Texas court, recognizing that the Section 5 case was pending but that the D.C. court had not yet ruled, ruled in favor of the plaintiffs and redrew the maps.  Texas appealed to the Supreme Court, and the Court invalidated the maps, in Perry v. Perez.

The Texas court went back to the drawing board and came up with new court-drawn maps, more closely based on the Texas legislature's original maps.  (The original maps were still pending Section 5 preclearance in the D.C. court.)  Nobody challenged the newly redrawn maps by the Western District court--at least not yet.

Earlier last week, the D.C. District finally ruled that the Texas legislature's original redistricting maps did not merit preclearance under Section 5 of the VRA.  The ruling didn't touch the most recent court-drawn maps by the Western District, however.  Those maps seemed to stay in place.  (Texas announced later last week that it would appeal the Section 5 ruling to the Supreme Court.  That announcement doesn't affect the Western District's maps--at least until the Supreme Court rules.)

After the D.C. court ruling last week, the Western District set a status conference for Friday to sort it all out.  According to the order, the court preliminarily assumed that its own most recent maps would govern the 2012 elections, but it offered parties an opportunity to argue otherwise.  Only one plaintiff in the original Section 2 case argued that the most recent court-drawn maps shouldn't govern:  the League of United Latin American Citizens argued that the court's congressional map was invalid, because it was based too closely on the Texas legislature's original congressional map, which failed preclearance earlier in the week.

The Western District rejected that argument and ruled from the bench that its own redrawn maps would govern the 2012 elections.  It also asked the parties for proposals by December 1 on how to move forward.

Unless there are any surprise moves--and they'd have to be a real surprise, and real quick, given the timing--the latest court-drawn plans will govern the upcoming elections.  

Meanwhile, the Texas legislature's plans may go to the Supreme Court.  But even if they do, the application of Section 5 will hardly be the most interesting issue related to the VRA before the Court.  That's because the Court is almost certain to grant cert. to a challenge to the constitutionality of Section 5.  If so, and if the Court, as expected, overturns Section 5, the Texas legislature's original plans may go back into place--but only after the 2012 elections.

SDS

Federal Court Declines to Preclear Texas Electoral Districts Under Voting Rights Act

In the latest chapter of the Texas redistricting saga, a three-judge panel of the D.C. District ruled in Texas v. United States that Texas's redistricting maps failed to merit preclearance under Section 5 of the Voting Rights Act.

The ruling means that the Texas legislature's original redistricting maps fail.  But the ruling doesn't touch the interim maps most recently drawn by the Western District of Texas in the companion Section 2 suit.  Those maps have not been challenged.

The ruling also doesn't say anything about the constitutionality of Section 5.  That's the topic of a cert. petition now before the Supreme Court.

Recall that the case arose when Texas sought preclearance for its redrawn State House, State Senate, and Congressional districts from the three-judge panel in the D.C. District (and not the DOJ).  (Texas redrew its districts to account for its ballooning population and to meet the one-person-one-vote standard.  But Texas, as a covered jurisdiction under Section 4 of the VRA, had to receive preclearance under Section 5 before it could finalize and implement the new maps.)  Soon after Texas filed its Section 5 preclearance case, opponents of the maps filed a claim under Section 2 of the VRA in the Western District of Texas.  While the Section 5 case was pending in the D.C. District, the Western District drew its own maps that, it said, complied with the VRA so that Texas could move ahead with its scheduled primary elections.

The Western District maps went to the Supreme Court in Perry v. Perez, where the Court invalidated them.  After Perry, the Western District redrew the maps, and they haven't been challenged.

Meanwhile, the Section 5 case in the D.C. District moved forward, and that court ruled today that the state's original maps--the ones for which it originally sought preclearance--did not merit preclearance.  As a result, the only maps out there seem to be the Western District's redrawn maps.

Today's case says nothing about the constitutionality of Section 5.  The D.C. Circuit recently ruled on that question, and said that Section 5 is constitutional.  The cert. petition in that case, Shelby County v. Holder (and a related, companion case), is now before the Supreme Court.

The Texas redistricting case is something of a side-show, now that the more central issue in Shelby County is on cert.--with the Supreme Court almost surely to grant review.  But even if the Court overturns Section 5, as seems likely, any maps still have to pass muster under Section 2--the original cause of action in the Western District case.  Shelby County doesn't challenge Section 2.

SDS

Another Catholic School Challenge to Women's Health Regs Dismissed

Judge Ellen Segal Huvelle (D.D.C.) dismissed Wheaton College's case against Secretary Sebelius over federal regs under the ACA that require covered employers to provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing.

The case is the second in as many months dismissed for lack of standing and ripeness in the D.C. District.  We posted on the earlier case, Belmont Abbey College v. Sebelius, here.  This case, by a different judge, now makes it even less likely that any of these suits will succeed.

(There are two other district court rulings.  In one, State of Nebraska ex rel. Bruning v. Sebelius, Judge Warren Urbom (D. Ne.) dismissed claims by religious organizations, individuals, and the state itself for lack of standing--the same ruling as in Belmont Abbey and Wheaton College, but also including individual and state plaintiffs.  In another, Newland v. Sebelius, Judge John Kane (D. Co.) granted a preliminary injunction to a private corporation, not a religious organization covered under the safe harbor.  Newland is different than the other cases, because it was brought by a private corporation with no protection under the safe harbor.)

The most recent case, Wheaton College v. Sebelius, involved the same and very similar issues as those in Belmont Abbey--that is, whether the government's "safe harbor" and commitment to reconsider its regs left the plaintiff without standing and the case without ripeness.  Like Judge Boasberg in Belmont Abbey, Judge Huvelle said yes on both counts.

Judge Huvelle rejected Wheaton College's argument that it might be subject to litigation as too speculative.  She also rejected Wheaton College's argument that it might be subject to a new government position at any time--just as the D.C. Circuit ruled in Chamber of Commerce v. FEC that the Chamber of Commerce might have been subject to an FEC enforcement proceeding at any time, even with an FEC evenly split between Democrats and Republicans.  Judge Huvelle wrote that Chamber of Commerce was different, because here the government's commitment not to act against employers that qualify for the safe harbor (including Wheaton College) "was the product of sustained agency and public deliberation, and it represents a final decision, that has been reiterated twice."  Op. at 11.

SDS

ICE Officers Sue to Halt DHS Deferred Action

A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens.  (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.)  The administration has argued that the program is a valid exercise of prosecutorial discretion.  We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).

It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government.  The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution.  It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them.  There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations. 

The officers state five causes of action.  First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted."  Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law.  Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'"  Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress.  Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.

Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future.  But maybe it's not supposed to.  The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.

SDS

Alaska Challenges Preclearance Under the Voting Rights Act

Alaska became the latest state to lodge a constitutional challenge against Section 5 of the Voting Rights Act when it sued AG Eric Holder yesterday for declaratory and injunctive relief in the United States District Court for the District of Columbia.  It's not clear that the case will even make it out of the starting gate, though.  As we wrote here, the Shelby County case, also challenging Section 5 under the exact same theories, is almost surely going to the Supreme Court this Term.

The suit, State of Alaska v. Holder, takes on Section 5 both on its face and as applied to Alaska.  The allegations are simple and familiar: Congress exceeded its authority under the Fourteenth and Fifteenth Amendments in reauthorizing Sections 4 and 5 of the VRA; and the VRA violates the principle of "equal sovereignty" and the Tenth Amendment.

Alaska, a covered jurisdiction under Section 4 of the VRA, says that preclearance is a hassle and potentially interferes with its ability to run its elections.  The state cites DOJ's denial of preclearance earlier this year for a proposed new distribution scheme for the state's Spanish/Tagalog translation of its voter information pamphlet.  It also cites an eleventh-hour preclearance of a redistricting plan, arguing that any later decision by DOJ (either way) might have interfered with the state's primaries.

While this case is disconnected to those events, it probably doesn't matter for standing.  Judge Bates ruled in Shelby County that the County had standing based on its need, as a covered jurisdiction without the possibility of bailout, to prepare for preclearance--the time, expense, etc.  So too here.

But even so, the case is unlikely to move forward, given the near certainty that the Supreme Court will pick up Shelby County this Term.

SDS

House Committee Sues AG Holder for Fast and Furious Docs

The House Committee on Oversight and Government Reform filed its anticipated complaint today in the United States District Court for the District of Columbia against Attorney General Eric Holder, seeking a declaration that AG Holder's assertion of executive privilege is without merit and that his failure to turn over certain documents to the Committee was without justification, and requiring AG Holder to turn over certain "obstruction" documents.

We covered the Committee's vote to holder AG Holder in contempt here; we covered the administration's assertion of executive privilege here; and we covered the House authorization to file suit here.

The complaint seeks a mere subset of the larger body of documents originally sought by the Committee--the so-called "Obstruction Component" documents, relating to DOJ's alleged obstruction of the Committee's investigation into the Fast and Furious program.  (The Committee does not seek other documents covered in its earlier subpoena--the "Operations Component" documents, related to the operations of the program--although it maintains its right to seek and to receive those documents.)  The Committee explains, in paragraph 62 of the complaint:

The Department's and the Attorney General's response to the Committee's investigation has been woefully inadequate in every respect.  However, notwithstanding their lack of cooperation, the Committee has managed to obtain sufficient facts--principally through the aid of DOJ whistleblowers--to begin reporting to the American people on the Operations Component of its investigation.  Accordingly, although the Committee has a legal and constitutional right to obtain from the Attorney General all documents responsible to the Holder Subpoena not already produced, the Committee chooses in this action to seek only a limited subset of such responsive but unproduced documents, namely, those documents that are relevant to the Obstruction Component of the Committee's investigation which the Committee cannot obtain from any other source.  To that end, the Committee here seeks to compel the Attorney General to produce those documents dated or that were created after February 4, 2011, that are responsive to Categories 1, 4, 5, and 10 of the Holder Subpoena [attached to the complaint].  In the Committee's judgment, this limited subset of responsive documents--referred to herein as the "Post-February 4 Subset"--includes or constitutes the documents most likely to be relevant to the Obstruction Component of the Committee's investigation and, when produced, most likely to enable the Committee to complete its investigation.

Here's what the Committee thinks of the administration's executive privilege claim:

The principal legal issue presented here is whether the Attorney General may withhold that limited subset on the basis of "Executive privilege" where there has been no suggestion that the documents at issue implicate or otherwise involve any advice to the President, and where the Department's actions do not involve core constitutional functions of the President.

No Court has ever held that "Executive privilege" extends anywhere near as far as the Attorney General here contends that it does.  Indeed, it is no exaggeration to say that the Attorney General's conception of the reach of "Executive privilege," were it to be accepted, would cripple congressional oversight of Executive branch agencies, to the very great detriment of the Nation and our constitutional structure.  Accordingly, the Committee asks this Court to reject the Attorney General's assertion of "Executive privilege" and order him forthwith to comply with the Committee's subpoena, as set forth below.

Compl. at page 3.  

Recall that AG Holder urged the assertion of the privilege based on "executive branch deliberative communications"--supported, AG Holder argued, by several DOJ and OLC opinions (including DOJ advice, authored by Paul Clement, in the Bush administration relating to the assertion of executive privilege in the congressional investigation on the politicization of the Justice Department).  See Holder Memo at 2-3.  

The privilege dispute thus centers on whether the President himself had to be part of the communications--or whether the communication had to be in relation to advice to the President--or whether the privilege applies more broadly over "executive branch deliberative communications" that did not involve the President directly.

In the D.C. court's last foray into this and similar issues, in a similar case involving above-mentioned congressional investigations into the politicization of the Justice Department, Committee on the Judiciary v. Miers, Judge John D. Bates ruled that the Committee jumped the several significant hurdles to get the case into court and that White House Counsel Harriet Miers did not have absolute immunity from testifying before Congress.  (The case was stayed pending appeal and resolved itself by agreement of the parties in January 2009.)  

But while Judge Bates's opinion dealt at length with (and ultimately rejected) the defendants' claimed barriers to the Committee's suit, it did not resolve the executive privilege issues presented in this case.

Miers may provide useful guidance, though, for a more pragmatic reasons: The D.C. Circuit in that case declined to put the appeal on the fast track, suggesting that the case could become moot when the 110th Congress, along with its subpoenas, expired.  

This case, like that one, will not reach final judicial resolution (and maybe even not a district court ruling) before the end of the current Congress.  The case could fizzle out--that is, moot out, because the subpoena will have expired with the current Congress--when the new Congress comes in . . . unless the new House reauthorizes it.

SDS

Shelby County, Nix Take Voting Rights Act Challenge to Supreme Court

Petitioners Shelby County and John Nix filed two separate cert. petitions late last week seeking Supreme Court review of a D.C. Circuit decision upholding the preclearance provisions of the Voting Rights Act.  Shelby County's petition is here; Nix's petition is here.  More on the differences below.

The petitions put the preclearance provisions of the Voting Rights Act squarely before a Supreme Court that seems chomping at the bit to take them on--and to overturn them.

The move was expected.  With the Supreme Court's statement three years ago in Northwest Austin Municipal Utility District v. Holder that the preclearance provisions "raise serious constitutional questions," the Court's reiteration more recently in Perry v. Perez, and the spate of challenges now percolating in the lower courts, Shelby County v. Holder was the first circuit ruling dealing squarely with the 2006 reauthorization of the VRA.  A split three-judge panel upheld the provisions and ruled that another, related case (Nix's case) was moot.  The ruling teed the challenge up for Supreme Court review.

At issue: Section 5 of the VRA, which requires covered jurisdictions to obtain "preclearance" from the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia before making changes to their voting standards, practices, or requirements; and Section 4(b), which provides the formula for determining which jurisdictions are covered.

Recall that the D.C. Circuit in Shelby County upheld Section 5 and Section 4(b) of the VRA.  But that court also ruled that Nix's case--challenging the new reauthorization standards that Congress put into place in the 2006 reauthorization--was moot, because the DOJ reversed course and cleared the voting change at issue.

The two cert. petitions cover two distinct issues.  Shelby County's cert. petition argues that the D.C. Circuit erred in upholding Sections 5 and 4(b).  In short, Shelby argues that the preclearance requirement in Section 5 exceeds congressional authority to enforce the provisions the Fourteenth and Fifteenth Amendments--that it's not "proportional and congruent" to the "evil" that it seeks to remedy--and that Congress neglected to change the coverage formula in Section 4(b) in response to changed conditions.

Nix's cert. petition argues that the substantive changes to the preclearance standard that Congress enacted in 2006 exceed congressional authority.  Nix says that Congress, in reauthorizing Section 5 in 2006, changed the preclearance standard in response to two Supreme Court decisions that narrowed that standard, thus exceeding its authority.  Nix claims that before 2006, preclearance could be denied only if the jurisdiction failed to prove that its voting change did not have the "purpose" or "effect" of causing "a retrogression" in minorities' "effective exercise of the electoral franchise," as determined by "all the relevant circumstances."  (Citing and quoting Georgia v. Ashcroft and Reno v. Bossier Parish School Board.)  But Nix argues that Congress changed this standard in the 2006 reauthorization by eliminating the "all relevant circumstances" flexibility and by requiring covered jurisdictions to "prove that even a change that does not make minorities worse off lacks the 'discriminatory purpose' of not making them better off."  These changes, say Nix, exceed congressional authority.

Because the D.C. Circuit ruled Nix's case moot, Nix has the additional burden of arguing that his case isn't really moot.  He does this by claiming that the DOJ cleared the jurisdiction only to avoid judicial review of his arguments.

With two strong statements from the Court about the questionable constitutionality of VRA preclearance, look for the Court to grant these petitions--and likely overturn these key provisions of the VRA.

SDS

 

DOMA Knocking on the Supreme Court's Door

There are now three petitions for certiorari before the United States Supreme Court seeking review of decisions that have declared DOMA's section 3 unconstitutional.

 

Passed in 1996, DOMA has come under increasing pressure regarding its constitutionality.  Recall that the Obama Administration is no longer defending the constitutionality of DOMA; it is being defended by the BLAG, the Bipartisan Leadership Advisory Group, closely associated with Speaker of the House John Boehner.

The DOJ filed two petitions in the Supreme Court earlier this month.

The first petition for writ of certiorari is for review of the First Circuit opinion in the consolidated cases of HHS v. Massachusetts and Office of Personnel Management v. Gill, decided in April.  A unanimous panel found section 3 unconstitutional, relying upon Moreno, Cleburne, and Romer v. Evans, each of which "rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered," to ultimately employ a heightened rational basis of equal protection review.  The panel deployed federalism concerns in assessing the equal protection query, but stopped short of ruling that DOMA was inconsistent with the Tenth Amendment. 

The other petition for writ of certiorari is for review of a federal district judge's decision in Golinski v. United States Office of Personnel Management.  Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities, but the case is only now before the Ninth Circuit.  The Solicitor General's petition makes clear that Golinski should be before the Court for the same reasons as Gill, and argues that the Ninth Circuit should be bypassed because "the lower court in this case engaged in de novo consideration of the applicable level of scrutiny, having concluded that it was not bound by circuit precedent applying rational basis review to sexual orientation classifications. The district court’s analysis may materially assist this Court’s consideration of that question."

Additionally, Edie Windsor has filed a petition for writ of certiorari seeking review of a federal judge's decision in early June in Windsor v. US that DOMA section 3 is unconstitutional.  Windsor, represented by the ACLU, makes similar arguments to those of the Solicitor General regarding the national importance of resolving DOMA's constitutionality.  She also note that the lower courts are "in disarray" and that the issue is especially important in New York, which has legalized same-sex marriage.  However, Ms. Windsor also makes a personal argument:

Ms. Windsor is 83 years old and suffers from a serious heart condition. Because the District Court’s ruling is entitled to an automatic stay of enforcement, see 28 U.S.C. § 2414, Ms. Windsor cannot receive the benefit of its ruling in her favor as the executor of Ms. Spyer’s estate pending appeal and any subsequent challenges. Ms. Windsor, not Ms. Windsor’s estate, should receive the benefit to which the District Court has already ruled that she is entitled; the constitutional injury that has been inflicted on Ms. Windsor, as the executor of Ms. Spyer’s estate and its sole beneficiary, should be remedied within her lifetime.

Petition at 21.

Given that several courts have found DOMA section 3 unconstitutional, it seems likely that the Court will grant one - - - or more than one - - - of these petitions.

RR

D.C. Circuit Strikes Copyright Judges' Removal Protection

A three-judge panel of the D.C. Circuit ruled today in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board that the appointment of Copyright Royalty Judges, or CRJs, violated the Appointments Clause.  The court remedied the violation by reading out of the CRJ statute the CRJs' for-cause removal provision and permitting the Librarian of Congress to remove CRJs at will.  The court said that this alone changed CRJs from "Officers" to "inferior Officers" under the Appointments Clause and allowed them to be appointed by the Librarian of Congress (as provided by statute), and without Presidential nomination and advice and consent of the Senate.

The ruling simply modifies a characteristic of the CRJs' job to put them in line with the Appointments Clause (by making them inferior officers) and sends the case back to the lower court for consideration of the merits.  It probably doesn't break any significant new ground under the Appointments Clause or separation of powers (even if this kind of ruling is relatively rare).  The court looks to both the power of the position and to its removability to determine whether it's an "Office" or "inferior Office," but the court turns it from an "Office" into an "inferior Office" by focusing only on removability.  The court's remedy--reading out of the CRJ statute the for-cause removal and leaving CRJs with only at-will removal--takes a page from the Supreme Court's playbook in Free Enterprise Fund v. PCAOB.

The case arose out of a challenge to a CRJ decision on licensing terms between an association of noncommercial webcasters who transmit digital music over the internet in high schools and colleges and owners of the songs' copyrights.  CRJs have statutory authority to set these terms, subject to review, discussed below, when the parties can't come to an agreement.  The association, Intercollegiate, didn't like the terms set by the CRJ and brought this case arguing that the CRJ is unconstitutional under the Appointments Clause.

That Clause, Article II, Section 2, Clause 2, says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States," but that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."  Intercollegiate lodged a two-prong attack: First, it argued that CRJs were "Officers" and thus required Presidential nomination and Senate advice and consent (and that their appointment by the Librarian of Congress therefore violated the Appointments Clause); and second, it argued that the Library of Congress wasn't a "Department" (and that therefore Congress couldn't vest CRJs' appointment in its head, the Librarian of Congress, and their appointment was therefore unconstitutional).

The court agreed on the first argument, but disagreed on the second.  The court, principally applying Edmond v. United States, ruled that the CRJs were "Officers," not "inferior Officers" the the purpose of the Appointments Clause.  It wrote that the CRJs were supervised by the Librarian of Congress and the Registrar, but only as to pure issues of law, leaving the CRJs with vast discretion and authority to set rates on their own.  It said that CRJs could only be removed by the Librarian of Congress for misconduct or neglect of duty.  And it wrote that the CRJs' rate determinations were not reviewable or correctable by any other officer or entity within the executive branch (although they are reviewable by the D.C. Circuit).  Thus it ruled that the three Edmond factors lined up in favor of "Officer," not "inferior Officer."

But the court didn't stop there.  Following the Supreme Court's approach in Free Enterprise Fund, the court severed the removability provision for CRJs--the one that allows the Librarian of Congress to fire them only for misconduct or neglect of duty--and read out the "misconduct or neglect of duty" part.  The effect was to leave CRJs with no protection against termination--and to allow the Librarian of Congress to remove them at will.  This alone, the court ruled, turned the otherwise "Officers" into "inferior Officers."  And this allowed Congress to vest their appointment in the Librarian of Congress--exactly what Congress did--and saved them.  And: "We further conclude that free removability constrains their power enough to outweigh the extent to which the scope of their duties exceeds that of the special counsel in [Morrison v. Olson]."

As to Intercollegiate's second argument, the court ruled that the Library of Congress is a "Department" under the Appointments Clause.  It ruled that the Library's power "to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case" are associated with executive authority, even if there are some aspects of the Library (like the Congressional Research Service) that make it look like a legislative agency.  The Librarian of Congress is the Library's "head," and so the appointment of the now-inferior-officers is valid.

SDS

Chief Justice Roberts's Necessary and Proper Clause

What did Chief Justice Roberts do to the Necessary and Proper Clause in last week's ruling on the universal coverage provision of the Affordable Care Act?

Not much.  Here's why.

Let's start with the opinion.  Chief Justice Roberts wrote last week that universal coverage--the so-called individual mandate--exceeded Congress's authority under both the Commerce Clause and the Necessary and Proper Clause (although he wrote for a five-Justice majority that it fell within congressional taxing authority).  (We wrote here about the Chief's opinion on the Commerce Clause.)  In so writing, the Chief rejected the government's argument that because Congress had authority under the Commerce Clause to enact the guaranteed issue and community rating provisions, it also had authority under the Necessary and Proper Clause to enact universal coverage.  After all, everybody agreed that guaranteed issue and community rating alone wouldn't work; they needed an individual mandate. 

(Here's a primer.  Guaranteed issue requires insurance companies to provide insurance to all comers.  Community rating control premium rates within a particular community.  Under these provisions, insurance companies will have to cover everyone (including those with high medical costs), within a range of premium rates.  But when an insurance company covers everyone (including those with high medical costs), premiums go up.  And when premiums go up, without an ability to discriminate, individuals are driven out of the market.  Thus, guaranteed issue and community rating will drive up costs and drive down coverage.  Unless, that is, individuals are required to buy insurance.  If everybody has to buy insurance, the cost-distribution within the insurance pool will keep rates low (because the healthy, in effect, subsidize the unhealthy through the pool), and coverage (obviously) goes up.)

Chief Justice Roberts wrote that the Necessary and Proper Clause wasn't so malleable.  He wrote that while universal coverage may be "necessary," it is not "proper," because universal coverage "draw[s] within its regulatory scope those who would otherwise be outside of it."  Op. at 30.  In other words, individuals are not the subject of the guaranteed issue and community rating regulations (insurance companies are); they are therefore not within the regulatory scope of valid congressional regulation under the Commerce Clause; and they are therefore outside of the scope of the Necessary and Proper Clause.  Op. at 29-30.  The Chief wrote that the Court's prior cases blessed congressional action under the Necessary and Proper Clause only when the subject of regulation under the Necessary and Proper Clause was already in the regulatory scope of congressional regulation under its principal Article I power.  Here's how he described it:

The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.  This is in no way an authority that is "narrow in scope" . . . or "incidental" to the exercise of the commerce power.  Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority.  No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation.  Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it.  Even if the individual mandate is "necessary" to the Act's insurance reforms, such an expansion of federal power is not a "proper" means for making those reforms effective.

Op. at 29-30.

So, what's the effect of the Chief's opinion on the Necessary and Proper Clause?  Very little.

There are two problems.  The first one is exactly the same problem with the Chief's opinion on the Commerce Clause, only here it's even more pronounced.  That is: the opinion may well be dicta, and, even if it's not, it doesn't have strong support as a guiding opinion under the Marks rule.  Like Chief Justice Roberts's opinion on the Commerce Clause, his opinion on the Necessary and Proper Clause is not necessary to the Court's conclusion.  Moreover, he's writing just for himself.  The four "liberals" would have upheld universal coverage under the Necessary and Proper Clause.  And the four other "conservatives" declined to join the Chief--and were in even sharper disagreement with him than they were on the Commerce Clause.  (The four other conservatives would apparently read the Necessary and Proper Clause as allowing only regulation that is absolutely necessary to the named Article I powers--a reading that flies in the face of McCulloch v. Maryland and the Clause's entire history.  Dissent, at 9-10.)

Moreover, the Chief's analysis is weak and apparently disavowed by all on the Court (though for different reasons), further alienating and weakening it.  Chief Justice Roberts supports his new Necessary and Proper rule--that Congress can regulate only those things already within the regulatory scope--by describing the Court's prior Necessary and Proper cases.  But while his description may be accurate on the facts, it is not supported by the language and analysis of those rulings.  For example, the Court just two terms ago ruled in Comstock that the Necessary and Proper Clause allowed congress to authorize the detention of federal prisoners beyond their release date if they were deemed "sexually dangerous."  Why?  Because the Necessary and Proper Clause allows Congress to enact federal criminal law (in furtherance of its named Article I powers), and therefore to sentence offenders, and therefore to jail offenders, and therefore to keep dangerous offenders off the streets, even after their release dates--all in the name of the Necessary and Proper Clause.

Now it turns out that offenders were already within the regulatory scheme.  But the Court's ruling did not turn on that, and, in fact, nowhere mentioned it.  Instead, the Court said, quoting the usual language from McCulloch, that the Necessary and Proper Clause authorized Congress to take any action that was rationally related to its enumerated powers.

(The Court's opinion in Comstock was written by Justice Breyer.  And Chief Justice Roberts joined it in full, even though he could have signed on with one of two more restrictive concurrences, written by Justice Kennedy and Justice Alito.)

In short, nothing in Comstock, or the Court's other Necessary and Proper decisions, sets out Chief Justice Roberts's new rule.  It's just his gloss.  And one, apparently, that nobody else on the Court subscribes to in his way and for his reasons. 

But assuming that the courts treat the Chief's opinion as (at least) guiding, however--as they likely will--the second problem is that the Chief's opinion is quite narrow and thus only applicable to a small set of cases, if any.  After all: How often does Congress seek to regulate something under the Necessary and Proper Clause that isn't within the regulatory scheme of its power-in-chief?  By the Chief Justice's own reckoning: The Court has never seen this case.

And even if the Chief's opinion is guiding, courts must read it alongside Justice Breyer's majority opinion in Comstock--the Court's next-most recent foray into the Necessary and Proper Clause, and, again, an opinion that Chief Justice Roberts signed in full.  Read alongside the expansive and capacious Necessary and Proper Clause described in Comstock, Chief Justice Roberts's new rule seems a narrow exception, indeed.  Chief Justice Roberts did nothing last week to chip away at that expansive and capacious Clause; in fact, his opinion last week reaffirmed its long-standing principles (just as his opinion on the Commerce Clause reaffirmed the Court's broadest interpretations of that Clause).

In the end, the Chief's opinions on both the Commerce Clause and the Necessary and Proper Clause are almost certainly moot, anyway.  The real story of the case is Chief Justice Roberts's majority opinion upholding universal coverage under the tax power.  Any future Congress seeking to enact legislation that would push up against Chief Justice Roberts's new rules for the Commerce Clause and the Necessary and Proper Clause would do well to simply enact the policy as a tax penalty.

SDS

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.

SDS