Tuesday, June 25, 2013
Justice Ginsburg wrote the lengthy and detailed dissent in today's ruling striking the coverage formula for the preclearance provision of the Voting Rights Act. She was joined by Justices Breyer, Sotomayor, and Kagan.
Justice Ginsburg made several points:
- Congressional authority under the Reconstruction Amendments is vast, and Congress is the principal enforcer of equal voting rights under the Constitution. The Court should defer to Congress in evaluating its enforcement mechanisms--applying rational basis review, under Chief Justice Marshall's famous formulation in McCulloch v. Maryland--and the Court should apply that test even more deferentially for a re-authorization of an act, like the VRA.
- Congress more than did its job in compiling a legislative record of vote discrimination in the jurisdictions covered by Section 4. Justice Ginsburg carefully recounted this record and some particularly egregious violations in her dissent.
- Shelby County, Alabama, of all jurisdictions, had no business bringing this case. Shelby County lodged a facial challenge to Sections 4 and 5, yet Shelby County itself is a clear violator--and should be in any coverage formula that Congress might devise. That means that the coverage formula has at least one valid application--to Alabama--and cannot be struck in a facial challenge. The VRA's severability provision only buttresses this point.
- "Equal state sovereignty," the backdrop for the Court's ruling, applies only to the conditions on states for admission to the Union, not differential treatment outside that context. Justice Ginsburg understates: "Today's unprecedented extension of the equal sovereignty principle outside its proper domain--the admission of new States--is capable of much mischief."
- Preclearance, with the now-struck coverage formula, itself is responsible for the improvements that the Court cites in voting practices. Without it, we face retrogression--that is, falling back into patterns of racial discrimination in the vote. "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."
While the Supreme Court today struck only the coverage formula for the preclearance provision of the Voting Rights Act, Justice Thomas, concurring alone, would have ruled Section 5 preclearance itself unconstitutional. That's because, according to Justice Thomas, "[t]oday, our Nation has changed." He points to voter turnout and registration rates, which "now approach parity," and the "rare" "[b]latantly discriminatory evasions of federal decrees."
Against these improvements, Justice Thomas argues that Section 5 itself exceeded congressional authority, especially after Congress changed and increased the preclearance requirement in reauthorizing the VRA in 2006.
Justice Thomas wrote just for himself; he garnered no other votes. Still, his ominous conclusion rings true, given the likely inability of Congress to re-write a coverage formula that would satisfy this Court:
While the Court claims to "issue no holding on Section 5 itself," its own opinion compellingly demonstrates that Congress has failed to justify "'current burdens'" with a record demonstrating "'current needs.'" By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision.
In the wake of today's ruling in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, the ball's in Congress's court. While the Supreme Court held that the coverage formula in Section 4 is outdated and unconstitutional, it did not touch Section 5 preclearance, and it did not touch Section 2's ban on racial discrimination. (Our posts are here, here, and here. Our oral argument review is here.)
So, Section 2 case-by-case litigation remains in play. Litigants can still sue jurisdictions for racial discrimination in voting on a case-by-case basis. But the problem with this case-by-case approach, as Congress recognized when it reauthorized the VRA in 2006, is that case-by-case litigation really can't catch up with the myriad and clever, under-the-radar ways that some states and jurisdictions now discriminate in the vote--the so-called "second generation" practices. (You can sue your state for a discriminatory vote practice in one election, but by the time the courts rule, the election is over.) Some of these were on full display in the 2012 election.
Preclearance always provided a back-stop for this problem--that was its principal value. Preclearance required covered jurisdictions to gain permission before making any changes to their voting laws, thus shifting the usual burden to the states to show a lack of discrimination. It applied, under the now-struck Section 4, to jurisdictions that had a particularly ugly history of race discrimination in the vote.
Today's ruling strikes the coverage formula in Section 4, but it doesn't strike Section 5 preclearance. That means that preclearance remains on the books, even if it lacks a coverage formula--and therefore preclearance now sits dormant.
That puts the ball back in Congress's court to re-write the Section 4 formula, to give life to preclearance again. Whether Congress can actually do that is a different question. While the VRA passed in 2006 by overwhelming numbers, the inertia was behind the coverage formula then. (Remember that the same basic formula had been around, doing its job, in 2006.) Now Congress will have to start from scratch--to write a formula that calls out certain states and jurisdictions and subjects them to the burdensome process of preclearance. It seems unlikely that this Congress will be able and willing to do that.
If Congress doesn't respond with a valid coverage formula, Section 5 preclearance will remain on the books, but dormant. That will leave Section 2 litigation alone to fight discrimination in the vote. As we've seen, and as Congress found, that will almost surely be insufficient.
The five-Justice majority, led by Chief Justice Roberts, today struck the coverage formula for preclearance under the Voting Rights Act. Our earlier posts are here and here; our oral argument review is here.
In short, Chief Justice Roberts wrote that the Section 4 coverage formula was out of date. He took issue with Congress's "reverse engineering"--that is, figuring out which states should be covered, and working backwards to design a formula that covered them--when it reauthorized the VRA in 2006, because, he wrote, that formula was based on data compiled 40 years ago. He wrote that the coverage formula was rational then; it is not now, 40 years later, with substantially changed circumstances.
Chief Justices Roberts acknowledged that Congress compiled voluminous data demonstrating racial discrimination, but he wrote that the coverage formula reauthorized in 2006 wasn't based on that data. Instead, it was based on 40-year-old data, from the time Congress originally enacted the VRA.
Because the Court saw preclearance as such a dramatic action--shifting the usual burden on the plaintiff to show discrimination to a covered state or jurisdiction to show lack of discriminatory effect in a proposed change in their voting laws, and thus infringing on the "equal sovereignty of the states"--it held the coverage formula to a higher standard. The Court said that the formula, based on 40-year-old data, was simply out of date.
Still, the Court said that Congress could rewrite the formula. This seems a far-fetched possibility, given the politics and divisions in Congress. If it doesn't happen, preclearance under Section 5 remains on the books, but it'll have no effect, because there will be no jurisdictions covered.
Without preclearance, the VRA loses its crown jewel. Section 2 case-by-case litigation against offending jurisdictions remains in play, but, as Congress found, case-by-case litigation has a real hard time keeping up with the clever, under-the-radar ways that some states and jurisdictions use their voting laws to discriminate in the vote.
opinion by Justice Alito, a majority of the Court construed the Indian Child Welfare Act, ICWA, as not violated by the adoption of "Baby Veronica" by a white couple although her father is Native American. The majority stated that it assumed that the biological father qualified as a "parent" under ICWA, but that the involuntary termination of his rights, if any, met ICWA. The majority opinion is relatively brief (19 pages), but there are multiple opinions: a concurring opinion by Thomas, a concurring opinion by Breyer, a dissenting opinion by Scalia, and a lengthy dissenting opinion by Sotomayor, joined by Ginsburg and Kagan, and partially by Scalia.
From the perspective of constitutional law, the case is noteworthy for its application of the doctrine of constitutional avoidance and equal protection. At the end of the majority opinion, Justice Alito refers to the problem, noting that ICWA "was enacted to help preserve the cultural identity and heritage of Indian tribes, but" under the interpretation of the South Carolina Supreme Court that is being reversed, ICWA "would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one— was an Indian." Thus,
a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns . . . .
The majority was thus seemingly convinced by the argument on behalf of the adoptive parents that such an interpretation of ICWA would be "basically relegating the child, the child to a piece of property with a sign that says, "Indian, keep off. Do not disturb." "
Sotomayor's opinion for the four dissenting Justices makes clear that the "majority does not rely on the theory pressed by petitioners and the guardian ad litem that the canon of constitutional avoidance compels the conclusion that ICWA is inapplicable here," but observes that the "majority nevertheless offers the suggestion that a contrary result would create an equal protection problem." Sotomayor's opinion also seeks to call the majority to account for the tenor of the opinion:
The majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intima tion that the statute may violate the Equal Protection Clause as applied here. See ante, at 1, 6; see also ante, at 16 (stating that ICWA “would put certain vulnerablechildren at a great disadvantage solely because an ancestor—even a remote one—was an Indian” (emphasis added)). I see no ground for this Court to second-guess the membership requirements of federally recognized Indian tribes, which are independent political entities.
She later states,
The majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer.
It is Justice Thomas' concurring opinion, however, that most expansively engages with the doctrine of "constitutional avoidance," but his concern is not equal protection. Instead, Thomas' 12 page opinion is devoted to the question of Congressional power: "The threshold question, then, is whether the Constitution grants Congress power to override state custody law whenever an Indian is involved." For Thomas, ICWA's grounding in the Indian Commerce Clause, Art. I, §8, cl. 3, and “other constitutional authority” that give Congress with “plenary power over Indian affairs,” is constitutionally suspect.
Thomas balances the lack of Congressional authority with federalism concerns, and part of his rationale rests upon family law as being within the province of the states. It will be interesting to see how this concern is articulated in tomorrow's anticipated decision in United States v. Windsor involving the constitutionality of the federal "Defense of Marriage Act."
[image: Badolier bag of the Ojibwa via]
In striking the coverage formula for the preclearance provision in the Voting Rights Act today, Chief Justice Roberts wrote a good three-plus pages on state sovereignty--and particularly the doctrine of "equal sovereignty." According to the Chief, the coverage formula, which the majority held outdated, violated this principle. More: He wrote that this principle applies beyond the admission of states to the Union; it applies here. The Chief planted this time-bomb in Northwest Austin; it's now coming home to roost.
Here's part of what he said:
Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States. [Northwest Austin (citing United States v. Louisiana); Lessee of Pollard v. Hagan; Texas v. White.] Over a hundred years ago, this Court explained that our Nation "was and is a union of States, equal in power, dignity and authority." [Coyle v. Smith.] Indeed, "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized." Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treeatment of States.
The Supreme Court today in Shelby County v. Holder ruled that Section 4 of the Voting Rights Act is unconstitutional. Section 4 provides the coverage formula for Section 5, the preclearance provision. The ruling does not stirke preclearance (in Section 5); it only strikes the coverage formula (in Section 4). Moreover, the ruling says that the coverage formula was rational in 1966, just not today. The case leaves in place Section 2, the ban on racial discrimination in voting.
Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito; Justice Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan.
The Court said that Congress can re-write Section 4. If Congress cannot do that, though, or if it can only do it in a way that this Court would strike, Section 5 preclearance will have no practical effect (even if it remains on the books). That is: with no valid coverage formula for preclearance, preclearance doesn't happen.
If so, the ruling effectively strikes the preclearance requirement. And if so, the VRA remedy for racial discrimination in voting is Section 2--the ban on racial discrimination in voting, enforced by case-by-case litigation against offending jurisdictions. (Preclearance, on the other hand, required historically offending jurisdictions to justify in advance any changes to their voting laws.) The failure of case-by-case litigation to keep up with so-called "second generation" voting discrimination is one key reason why Congress reauthorized Sections 4 and 5.
So, the long-and-short of it is this: If Congress can't re-write the coverage formula in Section 4 (which seems likely, given the politics in Congress), then Section 5 preclearance is of no effect. If so, the VRA has lost a significant, singular tool in fighting race discrimination in voting. We will continue to see case-by-case litigation against offending jurisdictions under Section 2, but if history is any guide, that litigation will never catch up with the many and clever ways that jurisdictions use to discriminate in voting.
This is a big loss for voting rights, even as it frees up covered jurisdictions from a burdensome preclearance requirement.
Monday, June 24, 2013
The Supreme Court ruled (7-2) today that Congress can require a former member of the Air Force to register as a sex offender, and to punish his failure to register, for a crime he committed while in the Air Force. The ruling in United States v. Kebodeaux means that the defendant and former airman, Kebodeaux, is subject to federal criminal sanctions for failing to register. It also means that Congress can enact laws that are "necessary and proper" to execute other validly enacted federal laws, in a way that leads to potentially vast congressional authority. Our last substantive post is here.
Central to the Court's ruling is that Kebodeaux was subject to a federal registration requirement when he committed his sexual offense as a member of the Air Force, and that his registration requirement under the Sex Offender Registration and Notification Act, or SORNA, was simply a continuation of that registration requirement. In particular, the Court held that Kebodeaux was subject to a registration requirement under the Wetterling Act, SORNA precusor, when he committed his crime and when he was released from military detention as punishment for his crime. The Court said that SORNA was simply a modification to that registration requirement. Thus, because Kebodeaux was subject to continuing federal authority--from the time of his service, through the time of his crime, through the time of his initial registration requirement (under the Wetterling Act), through the time of his later registration requirement (under SORNA)--he could be punished for failing to register under SORNA.
Justice Breyer wrote the majority opinion. He adopted an approach similar to his approach in United States v. Comstock, the case three years ago in which the Court upheld congressional authority to authorize a federal district court to order the civil commitment of a "sexually dangerous" federal prisoner, even beyond the term of his original sentence. That approach looks to the original authority (here, congressional power of Military Regulation), and moves step-by-step outward to congressional acts that are necessary and proper to support the original action, or the most-recently-enacted action. Here, Congress could punish Kebodeaux for his original sex crime, committed while he was in the Air Force; it could require him to register upon release from military custody (under the Necessary and Proper Clause); and it could alter the terms of his registration requirement later, under SORNA (under the Necessary and Proper Clause). This approach could lead to vast congressional authority--so long as Congress can support its most recent action as "necessary and proper" to execute its last-validly-enacted law.
Chief Justice Roberts and Justice Alito each concurred in the judgment only and each wrote separately to emphasize limits to this power. Chief Justice Roberts wrote that Justice Breyer went too far in saying how SORNA was reasonable; he thought that that might be read to support a general police power--something that Congress does not have. Justice Alito wrote that Congress could enact SORNA, because Congress helped create the problem that SORNA is designed to address.
Justice Thomas dissented, joined in large part by Justice Scalia.
The case is on its face a narrow ruling--saying only that Congress can require continued registration of someone over whom it already has authority. But the language and approach adopted by the majority--and joined by seven Justices--is potentially very broad, potentially leading to vast congressional authority.
The Supreme Court held, 7-2, in United States v. Kebodeaux that Congress has authority to require a former member of the Air Force to register as a sex offender for a sex crime that he committed while in the Air Force, and to punish him for failing to register. We'll have more analysis shortly. Here's our last post on the case.
Sunday, June 23, 2013
A divided three-judge panel of the Ninth Circuit this week upheld Arizona's Proposition 100, a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for persons charged with certain serious felonies if the person entered or remained in the United States without proper authorization.
The ruling gives states some space for regulating unauthorized immigrants through the state criminal justice system, even as it reaffirms federal authority over immigration matters generally. What makes Prop 100 valid, according to the court, is that (1) it's not punitive (it's regulatory), (2) it's reasonably related to the state's interest in preventing flight of individuals charged with crimes, and (3) it piggy-backs on federal immigration determinations (and doesn't make those determinations itself).
The court in Valenzuela v. County of Maricopa ruled that Prop 100 didn't violate due process, Eighth Amendment excessive bail, or the Sixth Amendment right to counsel, and that it wasn't preempted by federal immigration law.
As to due process, the court held under the two-prong test in United States v. Salerno (1987) (1) that there was no punitive purpose (the purpose was regulatory) and (2) that Prop 100 wasn't excessive in relation to its legitimate alternative purpose (because states often categorically deny bail for classes of charges). The court upheld Prop 100 as reasonably related to the state's (more than) legitimate interest in controlling flight risk. (The court upheld Prop 100 against the Eighth Amendment challenge based on the same balance.) The court also upheld Prop 100 against a procedural due process challenge.
As to the right to counsel, the court held that the initial appearance isn't a critical stage of prosecution triggering the right, and that "[b]oth we and the Supreme Court of Arizona have held that there is no constitutional right to an attorney at initial appearances." Op. at 27.
Finally, with regard to preemption, the court held that Prop 100 doesn't regulate immigration or impermissibly create a state-law immigration classification (because it piggy-backs on the federal determination of immigration status); that Prop 100 isn't field-preempted, because it deals with bail determinations for state-law crimes (that Congress didn't intend to preempt); and that Prop 100 isn't conflict-preempted, because pretrial detention without bail does not impose incarceration for federal immigration law violations--"such detention is not meant to punish an alleged immigration violation but rather to ensure presence in Arizona to stand trial for alleged state-law crimes." Op. at 35.
Judge Fisher dissented, arguing that Prop 100 is clearly punitive and is too rough a cut at achieving the state's interest: Without any evidence that unauthorized immigrants released on bail have been or are less likely to appear for trial compared to arrestees who are lawful residents, the majority accepts Arizona's unsupported assertion that all unauthorized immigrants necessarily pose an unmanageable flight risk." Op. at 37.
June 23, 2013 in Cases and Case Materials, Congressional Authority, Federalism, Fundamental Rights, News, Opinion Analysis, Preemption, Procedural Due Process, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)
The Cato Institute hosted a discussion last week featuring Nicholas Quinn Rosenkranz, Judge Alex Kozinski, and Roger Pilon on Bond v. United States, the case involving federal prosecution of a defendant for spreading harmful chemicals on the property of her best friend, after learning that the friend was pregnant by her husband. Our most recent post is here. (Prosecution is under the Chemical Weapons Convention Implementation Act, enacted to enforce the terms of the Chemical Weapons Convention, a valid U.S. treaty.)
Cato's discussion is titled Can a Treaty Increase the Power of Congress? That's also the way Cato framed the issue in its amicus brief. Bond, however, in seeking cert., asked somewhat more subtle questions: whether the Court whether structural limits in the Constitution restricted congressional authority to enact legislation, and whether the Chemical Weapons Convention Implementation Act might be interpreted so as to avoid this question. Catos' brief in the case is here; Rosenkranz's related HLR article is here.
Thursday, June 20, 2013
The D.C. Circuit this week denied a habeas petition of a Yemeni detained at Guantanamo Bay. The ruling in Hussain v. Obama is unremarkable, given the lower courts' approach in these cases. But a concurrence in the case sheds light on a problem: the lower courts are in fact applying the wrong standard.
If that's right--and the concurrence makes a good case that it is--then the courts are denying habeas petitions that shouldn't be denied. The solution, according to concurring Judge Edwards: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases." Indeed.
The majority in the case applied the now-settled test for habeas petitions coming out of Guantanamo Bay: Whether the government has shown, by a preponderance of the evidence, that the detainee was "part of" al Qaeda, the Taliban, or associated forces at the time of capture. (The test purports to apply the government's detention authority under the AUMF, which permits the president to detain individuals who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons.") The majority rejected Hussain's arguments to adjust and tighten the test and concluded that it was easily met here.
But concurring Senior District Judge Edwards argued that the court actually and wrongly applied a lower "substantial evidence" test, not the more rigorous preponderance-of-evidence test that the court said it applied. Judge Edwards argued that the evidence in this case--or lack thereof--only supported a conclusion that Hussain fell into the covered group by a substantial evidence standard, not by a preponderance of the evidence, even though the majority held that it met that higher standard. Moreover, Judge Edwards wrote that the court implicitly shifted the burden from the government to Hussain in showing that he continued to affiliate with enemy forces after leaving Afghanistan.
Despite these problems, Judge Edwards concurred in the result, because, he said, the law of the circuit compelled it.
Still, Judge Edwards concluded with a call for change: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases." Conc. at 5.
Wednesday, June 19, 2013
Common Cause this week pursued its case against the Senate filibuster at the D.C. Circuit when it filed its appellate brief, arguing that Judge Emmett G. Sullivan (D.D.C.) was wrong to dismiss the case last December and pressing its argument that the filibuster is unconstitutional. Common Cause's press release is here; the brief is here. We posted on Judge Sullivan's decision here.
Recall that Judge Sullivan dismissed the case, Common Cause v. Biden, for lack of standing and for raising a political question. In its brief, Common Cause takes on Judge Sullivan's ruling and argues that the filibuster is unconstitutional.
As to standing, Common Cause argues that House-member-plaintiffs have standing to challenge Senate Rule XXII, the cloture rule that allows a filibuster if the majority can't muster 60 votes to close debate, because the Rule allowed a minority in the Senate to effectively nullify their votes in favor of the DISCLOSE and DREAM Acts. Common Cause relies on language from Raines v. Byrd (1997), which says that "legislators whose votes . . . would have been sufficient to . . . enact a specific legislative Act have standing to sue if that legislative action . . . does not go into effect on the ground that their votes have been completely nullified" by a procedural violation of the Constitution. (In Raines, the Court held that Senator Byrd lacked standing when he mounted a facial challenge to the Line-Item Veto Act but failed to show that his vote on any specific appropriation bill had been nullified by the Act.)
Common Cause also argues that it has standing in its own right, because the filibuster of the DISCLOSE Act frustrated its core mission of campaign reform. It argues that it has standing based on its members, because they cannot learn the identities of certain campaign contributors. And it argues that the "dreamer"-plaintiffs have standing, because the filibuster of the DREAM Act denied them the benefits of that Act.
As to political question, Common Cause says that rules of Congress are justiciable, that they must be constitutional, and that "[t]here is nothing in the record of the Federal Convention indicating that the Framers intended to delegate to either house the authority to depart from the principle of majority rule . . . ." Brief at 15-16.
Finally, on the merits, Common Cause says,
Rule XXII's supermajority vote requirement is inconsistent with the rules of parliamentary practice that preceeded the adoption of the Constitution, the intent of the Framers as reflected in The Federalist Papers, the text of the Quorum and the Presentment Clauses, the exclusive list of exceptions to the principle of majority rule in the Constitution which specify when a supermajority vote is required, the provision of Article I, Sec. 3, cl. 4 that gives the Vice President the power to cast the tie-breaking majority vote when the Senate is "equally divided," and the first rules adopted by the Senate and the House immediately after ratification.
Brief at 56.
June 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
In response to Monday's ruling in Arizona v. InterTribal Council of Arizona, Inc., striking Arizona's requirement that voters show proof of citizenship above and beyond the oath of citizenship on the standard federal voter registration form, there's a debate about whether the case is a pyrrhic victory for the federal government. Our most recent post on the case, with links to earlier posts, is here.
On one side, Mary Lederman argued over at SCOTUSblog that the case, for all its talk of federal supremacy over how federal elections are held, probably curtails federal authority over who may vote in them. That's because Justice Scalia, writing for the Court, carefully reserved the power to determine who may vote in federal elections to the states. Lederman seized on Justice Scalia's line that the Elections Clause "empowers Congress to regulate how federal elections are held, but not who may vote in them" and argued that this principle puts in jeopardy current and possible future federal legislation requiring states to register certain persons to vote. For example, he argued that the ruling threatens the Uniformed and Overseas Citizens Absentee Voting Act, UOCAVA, which requires a state to register for federal electiosn any person who resides outside the United States but would otherwise be qualified to vote in that state; any congressional restriction on state felon disenfrachisement laws; and even federal law upheld under Oregon v. Mitchell. Rick Hasen made a similar point at The Daily Beast, followed up with a post on his own Election Law Blog.
On the other side, David Gans over at the Text and History blog at the Constitutional Accountability Center, argued that Lederman's argument "misses the enduring significance of Justice Scalia's sweeping reaffirmation that the Constitution gives Congress very broad powers to protect the right to vote in federal elections . . . ." Gans and others seized on Justice Scalia's repeated and very strong language affirming federal authority under the Elections Clause--its "paramount power," without a presumption against preemption--to set the rules of the "Times, Places, and Manner" of congressional elections.
So who's right?
Both, it turns out--with an important caveat. The ruling gives Congress broad authority under the Elections Clause to regulate the "Times, Places, and Manner" of congressional elections, including prescribing a federal form, using an oath on that form as evidence of citizenship, and requiring states to petition federal authorities (the EAC) to add a proof-of-citizenship requirement on that form (or to sue to get the EAC to add the requirement). That's the core holding of the case--that the NVRA, with the prescribed federal form, including the oath, is a valid regulation of the "Times, Places, and Manner" of congressional elections that preempts contrary state law.
But the NVRA and the federal form spill over into the state-controlled power to determine who gets to vote, because they regulate the manner of determining an important qualification for voters, citizenship. The Court said that to the extent that a federal law spills over and regulates voter qualification like this, the states must have an opportunity to petition federal authorities and ultimately to sue (under the Administrative Procedures Act) to enforce their own state voter eligibility requirements.
So even under the Elections Clause, the case stands for vast federal authority--authority to set the "Times, Places, and Manner" of congressional election in a way that absolutely preempts state law, and more: to set those standards even when they spill over into regulation of who gets to vote, so long as the states have an opportunity--under a very loose standard--to preserve their power to set voter qualifications through administrative petitioning and APA action. (Note that this administrative petitioning, by the Court's own reckoning, is informal and casual. Note further that APA review is deferential. Between the two, the principle puts the inertia behind federal regulation that spills over into regulation of voter qualification.)
While the Court articulated these rules in the case--that is, that the feds have the absolute power over how to vote, while the states have the power over who gets to vote--even perhaps more clearly than it has in the past, it's not obvious that this breaks any new ground. In particular, it's not obvious that it breaks any new ground reducing the power of the federal government or enhancing the powers of the states. Indeed, if anything, the core holding of the case only underscores the vast power of the federal government at the expense of the states. (While Justice Scalia's line dividing power between the feds and the states may eventually prove to be a "time bomb" (Hasen's phrase), the principal, driving holding of the case reaffirms federal authority.)
So here's the caveat: the Court said all this only with respect to the Elections Clause, but of course made no ruling on any other federal authority to regulate voter qualifications. Thus the Court left in place vast federal power under the Fourteenth and Fifteenth Amendments, and left untouched the constitutional rights to travel and to vote. Those authorities and rights, and others, might well support federal authority to enact the UOCAVA and maybe even to restrict certain state felon disenfrachisement laws. If so, Monday's ruling doesn't do anything to those actual and potential federal laws.
Moreoer, Monday's ruling does nothing to the federal laws upheld under Oregon v. Mitchell, or otherwise to undermine whatever holdings came out of that case. (Justice Scalia's footnote 8 does nothing to the vitality or legitimacy of Mitchell, say what you will about the footnote or about Mitchell itself.) Lederman argues that those laws might not withstand scrutiny under the Court's current approach to congressional enforcement power under the Reconstruction Amendments. But, if so, that's a function of City of Boerne, not Monday's ruling. Moreover, some or all of the laws upheld under Mitchell might well be upheld under different authorities. As we know, the Court itself split sharply on the sources of authority in that case, suggesting that those laws might enjoy support under other authorities, not subject to the Elections Clause constraint that states have the power to determine who gets to vote.
In short, Monday's ruling is a clear victory for federal authority under the Elections Clause, with a reservation of qualified state authority to determine who gets to vote in congressional elections even when Congress regulates the "Times, Places, and Manner" of congressional elections in a way that spills over into voter qualifications. (Why "qualified state authority"? Because the Court upheld a federal law that set a standard for voter eligibility, based on the oath on the federal form, so long as the states can petition the EAC and bring an action to court to supplement the oath if they can show that the oath is insufficient. This putting-the-burden-on-the-state when the federal government prescribes a way to determine eligibility is a thumb on the scale in favor of federal power. At the very least, it's an extremely unusual way to preserve and protect state power.) But the ruling does nothing to other constitutional powers that Congress might use to validly enact federal law, and to preempt state law, regarding voter qualifications.
June 19, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Travel | Permalink | Comments (0) | TrackBack (0)
Monday, June 17, 2013
The Supreme Court ruled today in Arizona v. InterTribal Council of Arizona, Inc. that the federal requirement under the National Voter Registration Act, NVRA, that the states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration. The ruling strikes Arizona's proof-of-citizenship requirement for users of the federal form, but also invites Arizona to try to get the federal Election Assistance Commission to provide state-specific instructions requiring proof of citizenship through an administrative process. We posted on the case earlier here; our argument preview is here; our argument review is here.
The ruling is a strong statement of federal authority over the states when Congress acts pursuant to its Elections Clause power. But the case doesn't change the basic federalism framework that the Court uses in its ordinary preemption cases (under the Supremacy Clause)--including its presumption against preemption in those cases--and it of course says nothing about the likely direction the Court will take in Shelby County, the pending decision on the challenge to Section 5 of the Voting Rights Act.
Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy, writing separately, concurred in part and concurred in the judgment.
The case arose out of Arizona's Proposition 200, a ballot initiative that required county recorders to reject any voter registration application not accompanied by a proof of citizenship. The problem is that the NVRA requires states to "accept and use" a uniform federal form designed by the Election Assistance Commission; and the federal form only requires an applicant to attest, under penalty of perjury, that he or she meets the state voting requirements (including citizenship). (The EAC rejected Arizona's request to include a state-specific instruction on the federal form that applicants must provide proof of citizenship.)
So the question in InterTribal was whether the NVRA requirement that states "accept and use" the federal form preempted Arizona's proof-of-citizenship requirement. The Court ruled that it did.
Congress enacted the NVRA pursuant to its authority under the Elections Clause. The Elections Clause, Article I, Sec. 4, cl. 1, provides:
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.
The Court recognized that the Clause was designed to give Congress certain authority over federal elections in order to ensure that states wouldn't undercut the federal government by refusing to provide for the election of representatives to Congress. Thus, the preemptive power of the Clause, even if a "default," is sweeping:
In practice, the Clause functions as "a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices." . . . The power of Congress over the "Times, Places and Manner" of congressional elections "is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supercede those of the State which are inconsistent therewith."
Op. at 5-6 (citations omitted). More, the Court rejected Arizona's argument that there is a presumption against preemption in the Elections Clause context. It said that when Congress regulates under the Elections Clause, "it necessarily displaces some element of a pre-existing legal regime erected by the States." Op. at 11 (emphasis in original). "Moreover, the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker here. Unlike the States' 'historic police powers,' . . . the States' role in regulating congressional elections--while weighty and worthy of respect--has always existed subject to the express qualification that it 'terminates according to federal law.'" Op. at 12 (citations omitted).
Thus, the Court said that there was no reason not to give the congressional requirement that states "accept and use" the federal form its plain meaning. And that meaning prohibits the states from adding a proof-of-citizenship requirement over and above what the federal form already requires.
The Court noted that the "alternative means of enforcing its constitutional power to determine voting qualifications"--petitioning the EAC to alter the federal form, and challenging the EAC's rejection of a petition under the Administrative Procedures Act--"remains open to Arizona here." Op. at 16.
Justice Kennedy concurred, but wrote separately to take issue with the Court's creation of "a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending upon which power Congress has exercised." He would have applied a presumption against preemption in this case--and any case involving federal legislation under the Elections Clause--but thought that that presumption was satisfied here.
Justice Thomas dissented, arguing that the Voter Qualifications Clause and the Seventeenth Amendment reserve the power to the states to determine qualifications of voters in federal elections. The Voter Qualifications Clause, Article I, Sec. 2, cl 1., says that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature" in elections for the federal House of Representatives. The Seventeenth Amendment contains similar language for elections for the Senate. Because both parties' interpretations of the "accept and use" language were plausible, according to Justice Thomas, these other provisions tilt the scale in favor of Arizona--and state determination of voter qualifications.
Finally, Justice Alito dissented, arguing that the NVRA language is ambiguous, but "their best reading is that the States need not treat the federal form as a complete voter registration application."
The Supreme Court ruled today in Arizona v. InterTribal Council of Arizona, Inc. that the National Voter Registration Act, NVRA, preempts Arizona's requirement that voters show evidence of citizenship before registering to vote using the federal form. Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy joined in part. Justices Thomas and Alito dissented.
The Court held that the NVRA's requirement that states "accept and use" the federal form preempted, under the Elections Clause, Arizona's proof-of-citizenship requirement.
Thursday, June 13, 2013
The Supreme Court ruled today in American Trucking Associations, Inc. v. City of Los Angeles that the Federal Aviation Administration Authorization Act, the FAAAA, preempted certain requirements of a concession agreement between the Port of Los Angeles and short-haul truck drayage companies that was adopted as part of the Port's Clean Truck Program. The Court held that the placard and off-street parking provisions of the agreement were preempted, but it declined to rule that the financial capacity and truck-maintenance requirements were preempted.
The ruling halts components of the Port's broader efforts to address community concerns about traffic, clean air and the environment, and safety, even as it leaves two disputed provisions in place, as the Port looks to expand. (It's already the largest port in the United States.) The ruling may thus set back negotiations between the Port and the local community and environmental groups--already tied up in lawsuits for almost 10 years--and ultimately throw a wrench into further Port development. Our argument preview is here.
The case arose when the Port required drayage truck operators to enter into a standard-form concession agreement as part of the Port's Clean Truck Program in 2007. Under the agreement, truck operators had to affix a placard on each truck with a phone number for reporting environmental or safety concerns, and submit a plan listing off-street parking locations for each truck when not in service. They also had to comply with financial capacity and truck-maintenance requirements. Under the plan, the Port would ban trucks that hadn't registered under an agreement and impose a criminal violation for trucks that entered the Port without an agreement.
Drayage truck operators sued to enjoin enforcement, arguing that the terms were preempted by the FAAAA. The FAAAA preemption clause says,
[A] State [or local government] may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.
49 U.S.C. Sec. 14501(c)(1). Operators also argued that even if the terms were valid, the Port couldn't enforce them by withdrawing a defaulting company's right to operate at the Port. This argument turned on Castle v. Hayes Freight Lines, Inc. (1954), which held that a state couldn't entirely bar a federally licensed motor carrier from its highways for prior violations of state safety regulations.
The Court, in a uninamous ruling by Justice Kagan, held that the FAAAA preemption clause expressly preempted the placard and parking requirements. In particular, it said that the concession agreement had the "force and effect of law" (in violation of the FAAAA preemption clause) because the Port required the agreement and enforced it with criminal sanctions. That is, the Port adopted the agreement pursuant to its regulatory authority of the state, and not in its position as a market participant. "So the contract here functions as part and parcel of a governmental program wielding coercive power over private parties, backed by the threat of criminal punishment. That counts as action 'having the force and effort of law' if anything does." Op. at 8.
As to the financial capacity and truck-maintenance requirements, the Court held that in the pre-enforcement posture of the case, it was impossible to tell whether the Port would enforce those provisions in violation of Castle or not. Those two provisions thus stay in place, at least for now.
Justice Thomas concurred in full, but wrote separately to express his doubt that Congress had authority under the Commerce Clause to regulate the placards and parking arrangements of drayage trucks in the first place.
Friday, May 3, 2013
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."
Saturday, April 20, 2013
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.
Wednesday, April 17, 2013
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.