Wednesday, July 17, 2013
In response to the White House announcement that it will delay enforcement of the so-called employer mandate in the Affordable Care Act, House Republicans introduced two bills, H.R. 2667 and H.R. 2668, that would amend the ACA to delay the effective date of the employer mandate and the individual mandate, respectively.
The White House promised a veto, saying that legislation authorizing a delay for the employer mandate is unnecessary (because according to the White House it can do this unilaterally) and that legislation authorizing a delay for the individual mandate would raise health insurance premiums and result in fewer insured.
The bills were clearly designed to highlight the Republicans' complaint that the administration is treating businesses more favorably than individuals and to force the administration to own up to its more favorable treatment of businesses. The White House didn't bite. (The Hill covered the politics here.)
But there's still this problem: It's not at all clear on what authority the administration can delay the enforcement of the employer mandate. As we wrote earlier, the ACA says that the employer mandate "shall apply to months beginning after December 31, 2013." That doesn't leave much wiggle room.
If the administration doesn't enforce the employer mandate until later, it's not clear that anyone could complaint (that is, that anyone would have standing to sue in federal court to compel enforcement). So the administration, as a practical matter, may not need a legal theory for delayed enforcement.
Friday, July 12, 2013
A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act. The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine. Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.
The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate. (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.) What's the difference? See below.
The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius. Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power. The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB. (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)
The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act. (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)
On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority. (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.) What's the difference between the employer mandate and the individual mandate? In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause. The Fourth Circuit explained:
To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it. In contrast to individuals, all employers are, by their very nature, engaged in economic activity. All employers are in the market for labor. And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .
Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . . Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.
(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court." We covered that topic here.)
Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.
The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.
July 12, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, Establishment Clause, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Thomas Edsall set out the case earlier this week in the NYT for why the Supreme Court's ruling in Shelby County will have a devastating impact on the already-declining political power of blacks in the South (and around the country). The core thesis: Southern state legislatures have redrawn districts in a way that increases black representation but decreases black political power. They've also enacted other laws, like voter-ID, that primarily hit black, Hispanic, and poor communities.
Thursday, July 11, 2013
Representative Scott Garrett (R-NJ) introduced a resolution, H. Con. Res. 45, saying that President Obama violated Article II, Section 3 of the Constitution by postponing the requirement that employers with more than 50 employees provide health insurance or pay a fine. (Article II, Section 3 says that the President "shall take Care that the Laws be faithfully executed.") The Hill reports here; we posted on Michael McConnell's piece in the WSJ here.
According to the resolution, the Affordable Care Act sets a specific date, December 31, 2013, after which the employer mandate "shall" take effect:
Whereas section 1513(d) of such Act states that the employer mandate "shall apply to months beginning after December 31, 2013";
This is right, and it seems pretty firm.
Lyle Denniston argues (correctly) over at Constitution Daily, the blog of the U.S. Constitution Center, that administrative agencies enjoy some flexibility in enforcing federal law. In particular, agencies may sometimes require time to be able to write regs to effectively enforce the law.
But here the language of the ACA is clear on the date of its application, and the administration's delay doesn't seem to have anything to do with its ability to enforce the employer mandate. Instead, the delay seems designed to meet the concerns of business owners--a policy consideration, not an administrative one.
The best way for the two ends of Pennsylvania Avenue to work this one out would be to amend the ACA, to give employers another year--simply change that date to December 31, 2014. This is a simple step, but an unlikely one in the current political climate, where pols can score points instead of making policy.
Wednesday, July 10, 2013
Judge Gladys Kessler (D.D.C.) this week reluctantly denied a Guantanamo detainee's plea to stop his force-feeding. Detainee Jihad Dhiab requested expidited consideration because of the risk that force-feeding during the day will deprive him of the Ramadan fast, which started July 8.
Dhiab is an 11-year detainee at Guantanamo who has received no habeas or military commission proceeding to determine the merits of his case. He was cleared for release two years ago.
Judge Kessler wrote that the court lacked jurisdiction to hear Dhiab's petition, because 28 U.S.C. Sec. 2241(e)(2) deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo. She wrote that "the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner's Application for lack of jurisdiction."
Judge Kessler went on to address the merits, though, and to urge President Obama to stop the force-feeding:
The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. . . .
Even tough this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. . . .
Article II, Section 2 of the Constitution provides that "[t]he Preisdent shall be the Commander in Chief of the Army and Navy of the United States . . ." It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority--and power--to directly address the issue of force-feeding of the detainees at Guantanamo Bay.
The White House responded at the daily press briefing yesterday that the President doesn't want these detainees to die, and that he maintains his position that Guantanamo should close.
July 10, 2013 in Cases and Case Materials, Congressional Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
The Foreign Intelligence Surveillance Court, or FISC, has come under increasing scrutiny in recent weeks, after Edward Snowden leaked an order of that court directing Verizon to turn over "comprehensive communications routing information" to the NSA. We posted here on EPIC's petition to the Supreme Court to overturn that order.
In particular, critics are taking aim at the FISC's secrecy, the un-adversarial nature of its proceedings, and the appointment process for its judges. (The FISC's decisions, though tremendously important, are classified; only the government, and not private individuals subject to surveillance, gets to make arguments to the FISC; and the Chief Justice alone appoints and details sitting federal judges to the FISC.)
Eric Lichtblau framed some of the issues last week in the NYT, and Orin Kerr reacted on Volokh. The WSJ reported on the expanding definition of "relevant" in the FISC's jurisprudence--important because under federal law the FISC can order the production of tangible things that are "relevant to an authorized investigation." That question--how far does "relevant" extend--is front-and-center in EPIC's petition at the Supreme Court.
Bloomberg editors took aim at the FISC's "missing checks and balances," adopting a recommendation by Kerr that an independent office in DOJ should advocate for privacy at the FISC, in order to create some measure of adversity before the court. Bloomberg editors also recommended changing the appointment process--a recommendation echoed at Bloomberg by Noah Feldman and Ezra Klein. In particular, critics worry that the current method of appointment could lead to a kind of group-think among judges on the FISC--a worry that seems supported by the government's breathtaking success rate at the court.
There is some legislation in Congress to address these concerns, one way or another. For example, H.R. 2440, the FISA Court in the Sunshine Act of 2013, would require the disclosure of FISC decisions, or an explanation why they can't be disclosed. H.R. 2475, the Ending Secret Law Act, and S. 1130, would do the same thing. H.R. 2586, the FISA Court Accountability Act, would provide for the appointment of FISC judges by the Chief Justice and by congressional leaders.
Monday, July 8, 2013
The Electronic Privacy Information Center, or EPIC, today asked the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court, or FISC, compelling the disclosure of domestic phone records by Verizon. We previously posted on the FISC order here.
EPIC filed a petition for a writ of mandamus directly with the Supreme Court, bypassing the usual route through the lower courts, because of the unique nature of the FISC order. EPIC claims that FISC Judge Roger Vinson ordered the disclosure of domestic phone records in violation of the FISC's statutory authority under the Foreign Intelligence Surveillance Act, or FISA. But EPIC says that under the FISA, the only court that can reverse Judge Vinson's order is the Supreme Court. Moreover, the order creates exceptional circumstances relating to the invasion of privacy, privileged communications, and the First Amendment that warrant mandamus relief. Thus, the mandamus petition.
On the merits, EPIC argues that Judge Vinson exceeded his authority under FISA:
[T]he FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls." The Business Records provision does not enable this type of domestic programmatic surveillance.
Specifically, the statute requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . . . ." 50 U.S.C. Sec. 1861(b)(2)(A). It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation. Thus, the FISC simply "ha[d] no judicial power to do what it purport[ed] to do."
Petition at 18.
EPIC also argues that the order violates the separation of powers, insofar as it compels the disclosure of phone records of the judicial and legislative branches to the executive branch.
July 8, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, July 4, 2013
Jonathan Hafetz (Seton Hall), author of Habeas Corpus After 9/11: Confronting America's New Global Detention System, wrote at Al Jazeera that "there appears to be real momentum behind new efforts to reform Guantanamo policies."
In particular, Hafetz points to loosened restrictions on the administration's transfer of detainees at Guantanamo Bay in the National Defense Authorization Act of 2014, approved last week by the Senate Armed Services Committee. Still, the bill has to clear the full Senate, where it will surely meet some resistance, and, as Hafetz points out, the House version contains the old restrictions.
Wednesday, July 3, 2013
We posted on two state efforts in Texas and North Carolina to enact election laws that would have required federal preclearance before last week's ruling in Shelby County v. Holder. In Texas, the laws were denied preclearance by a three-judge federal court; those rulings, Texas v. Holder and Texas v. United States, were vacated by the Supreme Court two days after Shelby County came down, making way for the laws to go on the books.
I posted at the ACSblog on what this all means, and how it illustrates the stunning impact of Shelby County. In short, the federal courts in the two Texas cases held that Texas's proposed voter-ID law and its redistricting plan for congressional and state legislative districts would likely have a retrogressive effect on the voting rights of racial minorities. (One of those courts also found that Texas drew its redistricting map with a discriminatory purpose.) Now that those cases are vacated, and now that the Texas AG has ordered the laws enforced, we'll soon get a fuller picture of the impact of Shelby County.
Tuesday, July 2, 2013
North Carolina Republicans wasted little time in introducing legislation to tighten voting rules after the Supreme Court last week struck the coverage formula for preclearance in the Voting Rights Act. North Carolina was partially covered by the preclearance provision in Section 5 of the VRA, before the Court struck the coverage formula in Section 4 last week in Shelby County v. Holder. The LA Times first reported this weekend that state Republicans intended to tighten voting rules under their new-found, unfettered authority to act without federal preclearance. Legislation was introduced Tuesday.
SB 721, "Election Omnibus," introduces a voter ID requirement, tightens felon disenfranchisement rules, and limits early voting days.
(State Democrats introduced a competing measure, S 708, the Ella Baker Voter Empowerment Act, that would open up voting in the state.)
North Carolina was a partially covered jurisdiction under Section 4 (before Shelby County struck Section 4): 40 out of 100 of its counties were covered. That meant that those counties had to gain federal preclearance under Section 5 of the VRA before making any changes to their election laws--and to show that their proposed changes wouldn't produce a racially retrogressive effect.
But now that Section 4 is off the books, those counties don't need to gain federal preclearance. And the state can much more easily change its election laws--and enact bills like SB 721.
Still, North Carolina election laws are subject to Section 2 litigation under the VRA.
Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary. As well they should. But much of our discussions focus on individual Justices: Is Justice Kennedy the "first gay Justice?" Is Justice Alito really rude? Is Chief Justice Roberts playing a "long game?" And what about the tumblr "Notorious R.B.G.? Or @SCOTUS_Scalia, a twitter account?
In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:
Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."
Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?
[image DonkeyHotey via]
July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, June 28, 2013
As we reported shortly after the Court released its opinion in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, Chief Justice Roberts's majority opinion relied heavily on the newly minted doctrine of equal state sovereignty. That doctrine, argues Judge Richard Posner (7th Cir.) at Slate, doesn't exist:
Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures--called "preclearance") as violating the "fundamental principle of equal sovereignty" of the states. This is a principle of constitutional law of which I had never heard--for the excellent reason that . . . there is no such principle.
So where does this principle come from? It comes from Chief Justice Roberts's majority opinion in Northwest Austin Municipal Utility District Number One v. Holder, the 2009 case holding that NAMUDNO can bail out of preclearance and thus dodging the constitutional question whether Congress had authority to reauthorize preclearance in 2006.
In NAMUDNO, as traced in the pieces linked above, Chief Justice Roberts worried about the "federalism costs" of preclearance, including its intrusion on equal state sovereignty. But he failed to mention that the principle of equal state sovereignty previously applied only to the conditions upon which states were admitted to the Union, and not to day-to-day treatment of the states by Congress, much less congressional treatment of the states under the enforcement power in the Reconstruction Amendments. Justices Stevens, Souter, Ginsburg, and Breyer all signed on to that opinion.
Chief Justice Roberts picked up that NAMUDNO language in Shelby County and ran with it. He also poked Justices Ginsburg and Breyer for signing on to NAMUDNO but dissenting in Shelby County (in part because they said that there is no general doctrine of equal state sovereignty).
This is but one example of the way that Chief Justice Roberts has slowly pulled the Court to the right, argues Adam Liptak in today's NYT--an article well worth reading, whether you think the argument is too strong, too weak, or just right. It involves a slow, patient approach to changing the doctrine--by first writing relatively benign opinions (and gaining the votes of the more liberal Justices) but that nevertheless include potentially explosive language (like the reference in NAMUDNO to the doctrine of equal state sovereignty), then later citing that language (and the fact that the more liberal members signed on) in much, much bigger cases (like Shelby County).
Tenth Circuit Recognizes For-Profit Corporations as Having Religious Freedom and Free Exercise Rights
In the contentious and closely-watched case of Hobby Lobby, Inc. v. Sebelius, the Tenth Circuit has rendered its opinion concluding that a for-profit corporation has free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment.
Hobby Lobby challenges the constitutionality of the so-called "contraception mandate" under the Affordable Care Act that require health insurance plans to provide contraception coverage to employees. We've previously discussed the issue and the circuit split here.
The federal district judge had rejected Hobby Lobby's claim, noting that it was a for-profit completely secular company - - - it is a corporation operating 514 arts and crafts stores in 41 states. The federal district judge also denied the injunction as to the for-profit corporation Mardel, a Christian supply and bookstore chain, and to the family owning both the corporations through a management trust. Hobby Lobby sought extraordinary relief from the United States Supreme Court after a Tenth Circuit panel declined to issue a stay; Justice Sotomayor in her role as Tenth Circuit Justice then rejected the claim, ruling that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."
The Tenth Circuit granted the request for initial en banc review - - - thus, there is no Tenth Circuit panel opinion - - - and issued a lengthy set of opinions from the eight judges, one judge being recused. The majority opinion on pages 8-9 details the rationales of the individual judges. But the essential division is 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under RFRA and the First Amendment. The majority concluded there was such a right and that the corporations demonstrated a likelihood of success for prevailing on the merits.
Judge Timothy Tymkovich's more than 65 page opinion for the majority concluded that
Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.
Only a plurality of judges would have resolved the other two preliminary injunction factors - - - balance of equities and public interest - - - in Hobby Lobby and Mardel’s favor, thus the remand.
The majority, however, held
as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.
(emphasis added). The opinion often conflates RFRA (which recall, is only applicable as to federal laws) and First Amendment. However, in specifically considering First Amendment doctrine, the majority's argument derived from two strands. First, it noted that individuals may incorporate for religious purposes and keep their Free Exercise rights - - - such as churches, citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law” prevailed on its Free Exercise claim). Second, it then noted that "unincorporated individuals may pursue profit while keeping their Free Exercise rights," citing United States v. Lee, 455 U.S. 252 (1982) (considering a Free Exercise claim of an Amish employer); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).
It then characterized the government's argument as being that these "Free Exercise rights somehow disappear" when "individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3)." The majority found this distinction to be one that cannot be supported by First Amendment doctrine. It did, however, implicitly limit the facts under which for-profit corporations could be found to have free exercise rights:
The government nonetheless raises the specter of future cases in which, for example, a large publicly traded corporation tries to assert religious rights under RFRA. That would certainly seem to raise difficult questions of how to determine the corporation’s sincerity of belief. But that is not an issue here. Hobby Lobby and Mardel are not publicly traded corporations; they are closely held family businesses with an explicit Christian mission as defined in their governing principles. The Greens, moreover, have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards. And the Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel. It is hard to compare them to a large, publicly traded corporation, and the difference seems obvious.
Thus, the majority stated that it did not share any concerns that its holding would prevent courts from distinguishing businesses that are not eligible for RFRA’s - - - and presumably the First Amendment's - - - protections.
While the analysis of substantial burden that follows is important, it is the holding that a secular for-profit corporation has a sincerely held religious belief that entitles it to assert a free exercise claim is the centerpiece of the controversy.
Indeed, Chief Judge Briscoe, joined by Judge Lucero, call the majority's opinion on this point
nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, “considerations for the legislative choice.”
The ability of for-profit corporations to have Free Exercise rights under the First Amendment - - - along with their Free Speech rights as articulated in the still-controversial Citizens United v. FEC, decided in 2010 and liberally cited in Hobby Lobby - - - is highly contested. This may certainly be going (back) to the United States Supreme Court.
June 28, 2013 in Campaign Finance, Congressional Authority, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Privacy, Religion, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 25, 2013
The Supreme Court today ruled in Shelby County v. Holder that the coverage formula for the preclearance provision of the Voting Rights Act exceeded congressional authority under the Fifteenth Amendment. The ruling means that the preclearance provision of the VRA remains on the books, but sits dormant, as there is no formula specifying its coverage. Congress can re-write the formula, but it seems unlikely that this Congress can do that in a way that would satisfy this Supreme Court. The ruling did not touch Section 2 of the VRA, the section banning race discrimination and allowing individual case-by-case litigation against offending practices.
We posted several times this morning on the ruling; here is our coverage so far:
- Court Strikes Voting Rights Act Preclearance Coverage Formula
- Chief Justice Roberts's Paean to Equal State Sovereignty
- The Core Problem With Preclearance Coverage Under the Voting Rights Act
- What's Next for Voting Rights?
- Justice Thomas's Concurrence on Voting Rights
- Justice Ginsburg's Dissent in Shelby County
June 25, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
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.