Thursday, February 22, 2018

Sixth Circuit Strikes Tennessee's Discriminatory Retail Alcohol License Law

The Sixth Circuit ruled in Byrd v. Tennessee Wine & Spirits Retailers Ass'n that a state law requiring two-year state residency--and ten-year residency for renewal--for a retailer-alcoholic-beverage license violated the Dormant Commerce Clause.

The ruling, with a partial concurrence and partial dissent, further exposes tensions between the Commerce Clause and the Twenty-First Amendment in the Court's treatment of discriminatory state alcohol regulations.

Tennessee's law says that alcohol retailers have to have a license. In order to get one, they have to show that an individual retailer was a state resident for two years, or that a corporate retailer was completely owned by two-year residents. The residency requirement shoots up to ten years for license renewals.

The Sixth Circuit struck the requirements. The court said that the requirements were facially discriminatory against out-of-state economic interests, and that the state failed to show that nondiscriminatory alternative regulations could achieve the state's goals of protecting the health, safety, and welfare of state residents and using a higher level of oversight and control over liquor retailers.

The court noted a split in the circuits as to the interplay between the Commerce Clause and the Twenty-First Amendment under Bacchus Imports v. Dias and Granholm v. Heald. The ruling deepens that split.

Judge Sutton argued in partial dissent that "these modest requirements" were supported by "the text of the Twenty-first Amendment, the original understanding of that provision's relationship to the Commerce Clause, modern U.S. Supreme Court precedent, and a recent Eighth Circuit decision." Judge Sutton agreed with the majority, however, as to the application of the two-year residency requirement to 100% of a retailer's stockholders and as to the ten-year residency requirement for a renewal.

February 22, 2018 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, January 24, 2018

Justice Tightens the Screws on Sanctuary Cities

The Justice Department today sent letters to 23 sanctuary jurisdictions, requesting certain additional documents to show that they are not preventing their officers from sharing immigration information with the feds, in violation of 8 U.S.C. Sec. 1373.

The letters say that Justice will subpoena the documents if a jurisdiction declines to share. The letter outlines other consequences, too:

Should the Department determine your jurisdiction is out of compliance with section 1373, the Department may, as detailed in your award documents, seek return of your FY 2016 grant funds, require additional conditions for receipt of any FY 2017 Byrne JAG funding for which you have applied, and/or deem you ineligible for FY 2017 Byrne JAG funds.

Justice's moves to clamp down on sanctuary jurisdictions have drawn lawsuits by many of those jurisdictions. They argue, among other things, that Section 1373 amounts to unconstitutional commandeering of local officers, that Justice's conditions on their grants fail the conditioned-spending test under South Dakota v. Dole, and that Justice has no authority to impose conditions on federal grants without Congress's say so. We last posted on the suits here.

January 24, 2018 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0)

Thursday, January 18, 2018

Seventh Circuit Rules Against Territorial Plaintiffs in Absentee-Voting-Rights Case

The Seventh Circuit ruled that former Illinoisans who now live in Puerto Rico, Guam, and the Virgin Islands lacked standing to challenge the federal Uniformed and Overseas Citizens Absentee Voting Act and lost on the merits in their claims against Illinois after the state rejected their requests for absentee-voter ballots.

The ruling means that former Illinoisans who reside in these territories won't receive an absentee-voter ballot from the state, unless Illinois changes its law.

The plaintiffs, former residents of Illinois but now residents of the territories, sued when Illinois denied them absentee-voter ballots for federal elections in Illinois. They claimed that the UOCAVA and Illinois law defined their territories as part of the United States and thus prohibited them from getting absentee ballots as overseas voters. They claimed that this violated equal protection and their right to travel.

The Seventh Circuit ruled that the plaintiffs didn't even have standing to challenge the UOCAVA. That's because while the UOCAVA defines "the United States" to include these territories, it doesn't prohibit Illinois from providing absentee ballots to the plaintiffs. Illinois law does that. As a result, the court said that the plaintiffs couldn't challenge the federal law, although they could still challenge state law.

As to state law, the court said that Illinois's classification didn't violate equal protection and its denial of absentee ballots didn't violate the right to travel. The court said that the plaintiffs have no fundamental right to vote in federal elections--"absent a constitutional amendment, only residents of the 50 States have the right to vote in federal elections"--and no claim to heightened scrutiny. The court held that Illinois's distinction between Puerto Rico, Guam, and the Virgin Islands (on the one hand) and the Northern Marianas and American Samoa (on the other, where former Illinoisans can get an absentee ballot) passed rational basis review, because at the time that Illinois enacted the distinction, "these two territories were . . . more similar to foreign nations than were the incorporated territories where the plaintiffs reside." (The court said it was OK to look at the state's justification at the time of the distinction, in 1979, instead of now, because "even if . . . the Northern Marianas and American Samoa became more integrated into the United States, it would not help the plaintiffs [who are] injured specifically because Illinois defines their resident territories as within the United States.")

The court summarily rejected the plaintiffs' right-to-travel argument as "borderline frivolous."

January 18, 2018 in Cases and Case Materials, Elections and Voting, Equal Protection, Federalism, News, Opinion Analysis, Travel | Permalink | Comments (0)

Saturday, January 13, 2018

Eighth Circuit Rejects Challenge to Missouri's Onerous Hair-Braiding License Requirements

In a very brief opinion in Niang v. Caroll, a unanimous panel of the Eighth Circuit affirmed a district judge's grant of summary judgment to Missouri against a challenge to the state's licensing requirements for "African-style hair braiders."  In short, the Missouri statutes require a license for barbers and cosmetologists that is granted only to those who complete a "costly and time-intensive training course - - - 1,000-hours for barbering and 1,500-hours for hairdressing" and passage of exam.  Moreover, Missouri conceded that "only about 10 percent of the required training courses is relevant to African-style braiders, and that almost all the exams do not test on braiding." 

The Eighth Circuit applied the most deferential of rational basis standards.  In rejecting the challengers' argument that the license requirement was not rationally related to any legitimate government interest, the court not only found that the state interests of protecting consumers and ensuring public health and safety were legitimate, but also recognized two other interests supplied by the district judge: stimulating more education on African-style braiding and incentivizing braiders to offer more comprehensive hair care.  As to the means chosen, the Eighth Circuit found that it was sufficiently reasonable: "the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so." 

The Eighth Circuit also rejected the Equal Protection argument focused on the classification between braiders and barbers/cosmetologist, finding that the statutory definitions of "hair dressing" included braiding.

Lurking beneath the litigation, of course, is the racial classification, but this remains unaddressed.  Indeed, it would be a difficult argument on which to prevail absent other facts.

1024px-IBK-20

For Constitutional Law professors looking for a good example of "anything goes" rational basis as exemplified by Railway Express Agency v. New York (1949) (which the Eighth Circuit does not cite), as well as Dandridge v. Williams (1970) and  Heller v. Doe (1997), both of which the court does cite, this brief opinion is noteworthy.

For persons who want to practice the profession of braiding without being subject to onerous and irrelevant licensing requirements, the remedy may have to be in the legislature.

[image by  Chidi "Lex Ash" Ashimole  via]

January 13, 2018 in Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Teaching Tips | Permalink | Comments (1)

Thursday, January 11, 2018

Daily Read: Amicus Brief Supporting Summer Zervos Right to Sue Donald Trump

Recall the lawsuit by Summer Zervos against Donald Trump for defamation.  It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.

In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe,  Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention. 

At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:

Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).  

The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court.  That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties.  They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.

Judge Jennifer Schecter has yet to issue a ruling.

January 11, 2018 in Courts and Judging, Current Affairs, Executive Authority, Executive Privilege, Federalism, Scholarship | Permalink | Comments (0)

Friday, January 5, 2018

Daily Read: Marijuana, Federalism, and Preemption

In a Memorandum on January 4, Attorney General Jeff Sessions has rescinded previous Department of Justice instructions to United States Attorneys relating to enforcement of federal laws criminalizing marijuana as "unnecessary" in favor of a well-established rule of general guided discretion.  The DOJ press release describes it as a "return to the rule of law," but it arguably makes the legal rules more subject to discretion and even more unclear.  The legalization of marijuana by states while the federal government maintains marijuana on its schedule of controlled substances pertinent to criminal laws presents complicated problems of federalism and preemption. 

An excellent primer on these issues is Lea Brilmayer's article A General Theory of Preemption: With Comments on State Decriminalization of Marijuana, appearing in a recent symposium on Marijuana and Federalism in Boston College Law Review.

Marijuana_plantBrilmayer does provide some background on the marijuana controversies, including a discussion of the Supreme Court's failure to provide clear answers on the state-federal conflicts regarding marijuana.  But, as her title indicates, marijuana is an example rather than a primary focus.  She explains the principles and open questions in the doctrines of vertical and horizontal preemption, then uses concrete examples involving marijuana.  Her ultimate conclusion is that there is a weak case for preemption in the marijuana decriminalization context.

 This is a terrific introduction for understanding the issues surrounding the issues raised by the Sessions memo regarding state marijuana decriminalization.  At 35 pages, with accessible hypotheticals, this could be a great assignment for Constitutional Law classes this semester.

 

January 5, 2018 in Congressional Authority, Criminal Procedure, Federalism, Preemption, Scholarship, Supremacy Clause, Teaching Tips | Permalink | Comments (0)

Monday, December 4, 2017

Preview of Masterpiece Cakeshop Argument on First Amendment Challenge to Anti-Discrimination Statute

Set for oral argument Tuesday, December 5, 2017, the high visibility case of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission can be seen as a clash of constitutional principles of individual conscience vs. equality, or as a federalism case, or as part of the backlash to LGBTQ rights, or as part of the rise of religiously-motivated challenges to secular laws.

Recall that a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Speech and Free Exercise Clauses. In the state proceedings, the Colorado Administrative Law Judge (ALJ) rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.   A Colorado appellate court affirmed in a lengthy opinion, rejecting the First Amendment claims.

Chocolate_Cake_Flourless_(1)On the First Amendment speech claim, the initial hurdle for the cakemaker is establishing that the cake constitutes speech.  The cakemaker argues that he is a "cake artist." The Court has held that symbolic speech needs to convey a particularized and understood message, Spence v. Washington (1974), but that includes the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll," Hurley v. Irish American Gay Group of Boston (1995).  The cakemaker has also argued that the cake itself is so central to the wedding as to be a participant. Thus, the cakemaker as business owner should be able to refuse to make cakes for events with which he disagrees otherwise his speech is being compelled, akin to the landmark flag salute case of West Virginia Bd. of Ed. v. Barnette (1943). 

On the religious claim, the cakemaker essentially argues that the Colorado anti-discrimination law is not a law of neutral and general applicability because it includes sexual orientation as a protected ground and therefore targets (certain) religions, and thus strict scrutiny applies.

On both claims, the oral arguments will most likely include explorations of the slippery slopes.  If the cake is art, then what about restaurant dinners? Photography? Bed and breakfasts?  If the cake is akin to a participant in the wedding celebration, then would the rule extend to birthdays? And can the exemption for individual conscience be limited to sexual orientation?  What about race? Ethnicity or national origin? Gender?

There are a little less than 50 amicus briefs on each side.  The Court has allowed the Solicitor General of the United States to participate in oral argument on the side of the cakemaker, and for the respondents (the Colorado Civil Rights Commission and the original would-be customers) to both participate.

The case has attracted extensive commentary (here's a good round-up by Edith Roberts on SCOTUSBlog) and there is certainly much more to come.

December 4, 2017 in Courts and Judging, Family, Federalism, First Amendment, Food and Drink, Recent Cases, Religion, Speech, Supreme Court (US) | Permalink | Comments (0)

Thursday, November 16, 2017

District Court Halts Government's Sanctuary Cities Enforcement Against Philadelphia

Judge Michael Baylson (E.D. Pa.) granted a preliminary injunction yesterday against the government's enforcement of it's anti-sanctuary cities moves against Philadelphia, and enjoyed AG Sessions from denying the city's Byrne JAG grant for FY 2017.

The ruling is a major victory for the city, and a significant strike against the federal crack-down on sanctuary cities. It follows a similar, but less sweeping, ruling in the Chicago case.

Judge Baylson ruled that AG Sessions's order to condition DOJ Byrne JAG grants on Philadelphia's agreement to give federal authorities notice when city officials detain an unauthorized alien (the "notice condition"), to give federal authorities access to city jails (the "access condition"), and to certify that it complies with 8 U.S.C. Sec. 1373 likely violate federal law and the Constitution.

In particular, Judge Baylson ruled that the conditions violate the Administrative Procedure Act, because they're arbitrary and capricious. He also ruled that they "are improper under settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism." On the constitutional issues, he said that the conditions are not sufficiently related to the purposes of the Byrne JAG grant program (in violation of the conditioned-spending test under South Dakota v. Dole), because "[i]mmigration law [the purpose of the conditions] has nothing to do with the enforcement of local criminal laws [the purpose of Philadelphia's Byrne JAG grant]." He also said that the conditions were ambiguous (also in violation of South Dakota v. Dole), because "the Access and 48-hours Notice Conditions cannot have been unambiguously authorized by Congress if they were never statutorily authorized," and the "malleable language [of Section 1373] does not provide the 'clear notice that would be needed to attach such a condition to a State's receipt of . . . funds.'" (The court also said, but "[w]ithout specifically so holding," that "Philadelphia is likely to succeed on the merits of its Tenth Amendment challenge" to the conditions, because the notice and access conditions "impose affirmative obligations on Philadelphia, with associated costs of complying with such conditions," and because the compliance condition (on 1373) "would inherently prevent Philadelphia from, among other things, disciplining an employee for choosing to spend her free time or work time assisting in the enforcement of federal immigration laws" (and thus commandeers the city).

Finally, Judge Baylson noted that Philadelphia isn't a sanctuary city, anyway--at least not in the way defined by federal law. In particular, he wrote that the city "substantially complies with Section 1373."

November 16, 2017 in Cases and Case Materials, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers, Tenth Amendment | Permalink | Comments (1)

Wednesday, October 11, 2017

Ninth Circuit Says California's Prorator Registration Law Likely Violates Dormant Commerce Clause

The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.

The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.

The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.

Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.

About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.

The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."

The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."

Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.

Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.

October 11, 2017 in Cases and Case Materials, Dormant Commerce Clause, Federalism, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, September 21, 2017

Seventh Circuit Upholds Chicago's Puppy-Mill Ban

The Seventh Circuit upheld Chicago's "puppy mill" ordinance, which limits the sources from which city-licensed pet stores may obtain certain pets for resale, against a challenge under the Illinois Constitution's home-rule provision and the federal dormant Commerce Clause. The ruling leaves the ordinance in place.

Chicago's ordinance says that pet retailers in the city "may offer for sale only those dogs, cats, or rabbits" obtained from an animal control or care center, pound, or kennel operated by local, state, or federal government or "a humane society or rescue organization." The ordinance means that pet stores can't get their animals from large, mill-style breeders. Chicago adopted the law in order to protect against the "economic and emotional burdens for pet owners and [the] financial costs on the City as owners abandon their physically or emotionally challenged pets or surrender them to the [city shelter]."

Two Chicago pet stores and a Missouri dog breeder sued, arguing that the ordinance exceeded Chicago's authority under the Illinois Constitution's home-rule provision and violated the federal dormant Commerce Clause.

The Seventh Circuit disagreed. As to the home-rule argument, the court said that the Illinois Constitution permits Chicago to regulate in an area, concurrently with the state, so long as the General Assembly doesn't "specifically limit" it or "specifically declare the State's exercise to be exclusive." Because state law doesn't restrict, but actually preserves, municipal power to regulate animal care and welfare, the court said that Chicago's ordinance doesn't exceed its home-rule authority.

As to the dormant Commerce Clause, the court said that it didn't even apply, because Chicago's ordinance doesn't discriminate against interstate commerce. The court ruled that circuit law said that a state or local law that doesn't discriminate on its face or in effect doesn't even implicate the dormant Commerce Clause. "No disparate treatment, no disparate impact, no problem under the dormant commerce clause." The court therefore declined to apply Pike balancing, and ruled that the ordinance easily satisfied the default rationality review.

Judge Hamilton dissented in part, arguing that the court should have applied Pike balancing, because Dep't of Revenue of Kentucky v. Davis and United Haulers Ass'n v. Oneida-Herkimer Solid Waste clarified that "even nondiscriminatory burdens on commerce" are subject to Pike balancing and "may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice." Judge Hamilton also argued that the majority applied an overly rigid pleading standard by not crediting the plaintiffs' allegations in the complaint that Chicago's ordinance would disparately impact out-of-staters.

September 21, 2017 in Cases and Case Materials, Dormant Commerce Clause, Federalism, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)

Sunday, September 17, 2017

Ninth Circuit Says California's Foie Gras Force-Feeding Law Not Preempted

The Ninth Circuit ruled on Friday that the federal Poultry Products Inspection Act did not preempt California's ban on force-feeding ducks and geese for foie gras production. The ruling means that California's ban stays on the books; this is definitely one for the birds.

In 2004, California joined a growing list of countries that ban force-feeding ducks and geese to produce foie gras. The California law doesn't ban foie gras itself, just the force-feeding method of production. Foie gras producers sued, arguing that California's ban was preempted by the federal Poultry Products Inspection Act.

The Ninth Circuit disagreed. The court said that the federal law didn't expressly preempt the California ban, because the federal law's prohibition on states from imposing "ingredient requirements" that are "in addition to, or different than" the PPIA or its regs applied to "the physical composition of poultry products," and not the way animals are raised or how they're fed (which the California ban covers). According to the court, California law

does not require that foie gras be made with different animals, organs, or physical components. Nor does it require that foie gras consist of a certain percentage of bird liver. It simply seeks to prohibit a feeding method that California deems cruel and inhumane. [The law] therefore addresses a subject entirely separate from any "ingredient requirement": how animals are treated long before they reach the slaughterhouse gates.

Moreover, the court said that the PPIA didn't field-preempt California law, because the PPIA doesn't occupy the field (and in fact allows for "extensive" state regulation). It also said that the PPIA didn't obstacle preempt California law, because California law doesn't interfere with the federal food-regulation scheme and its purposes.

Unless and until producers come up with a different way to make foie gras, this ruling will keep it out of California.

September 17, 2017 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Saturday, September 16, 2017

District Judge Enjoins Sanctuary Cities Conditions in Part

Judge Harry D. Leinenweber (N.D. Ill.) yesterday enjoined two conditions nationwide, but declined to enjoin a third, that AG Sessions placed on a federal grant program to clamp down on sanctuary cities. The order came in the lawsuit that Chicago filed against Session.

The ruling is a partial victory for the City and partial victory for the government. It partially halts two key conditions that AG Sessions placed on Byrne Grant recipients, but upholds a third, requiring certification of compliance with Section 1373.

Recall that AG Sessions placed three conditions on a municipality's receipt of federal funds under the Byrne Memorial Justice Assistance Grant Program: (1) that a state law or practice is in place to honor a request by DHS to provide advance notice of any scheduled release date and time for a particular alien (the "notice" condition); (2) that a state law or practice permits federal agents to have access to any correctional facility to meet with aliens and interrogate them (the "access" condition); and (3) that a local government submit a certification of compliance with 8 U.S.C. Sec. 1373, the federal law prohibiting state and local laws and practices that restrict state and local officials from sending to, or receiving from, federal officials information regarding the citizenship or immigration status of any individual, and prohibiting officials from maintaining such information or exchanging it with federal officials. (the "certification" condition).

The conditions ran up against Chicago's "Welcoming Ordinance." That Ordinance prohibits any "agent or agency" from "request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by [state law], federal regulation, or court decision." It goes on to forbid any agent or agency from "disclos[ing] information regarding the citizenship or immigration status of any person."

So Chicago sued Sessions, arguing that all three conditions were unconstitutional and unlawful.

Judge Leinenweber agreed in part and disagreed in part. As to the notice and access conditions, the court said that Sessions lacked statutory authority and exceeded his power to implement these conditions. In particular, the court held that only Congress could impose these conditions, or authorize the AG to do so, and that the statutory scheme in place didn't do that. Because the court ruled on statutory grounds, it declined to rule on the constitutionality of those two provisions.

But in contrast to its ruling on the notice and access conditions, the court held that Chicago did not show a likelihood of success on the merits of its challenge to the certification condition. The court held that this condition was authorized by Congress under the Byrne Grant statute, which says that a recipient must certify that it's in compliance "with all provisions of this part and all other applicable Federal laws" (emphasis added). The court said that Section 1373 fell into that latter category, "all other applicable Federal laws."

Moreover, it held that the certification condition didn't violate the Spending Clause and the anti-commandeering principle. In particular, the court said that Section 1373 doesn't compel Chicago to do anything; instead, it merely forbids it from doing something. The court said that the anti-commandeering principle only prohibits the federal government from requiring states or state officials to act, not from prohibiting them from acting, so Section 1373 doesn't violate it. 

Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. . . . Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.

But the court went on to recognize that Section 1373 raises an unanswered constitutional question: Does the provision commandeer insofar as it prevents local governments from disciplining an employee for spending time assisting in the enforcement of federal immigration law? The court punted, leaving that novel question for appeal:

[B]y leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program. . . . Here, we follow binding Supreme Court precedent and the persuasive authority of the Second Circuit, neither of which elevates federalism to the degree urged by the City here. A decision to the contrary would require an expansion of the law that only a higher court could establish.

September 16, 2017 in Federalism, News, Opinion Analysis, Separation of Powers, Tenth Amendment | Permalink | Comments (0)

Thursday, August 31, 2017

District Court Halts Much of Texas's Anti-Sanctuary Cities Law

Judge Orlando Garcia (W.D. Tx.) yesterday issued a preliminary injunction, in City of El Cenizo v. Texas, the case testing the constitutionality of Texas's anti-sanctuary cities law. The ruling temporarily halts key portions of the law; it's a victory for the plaintiffs.

But it's also preliminary--and so goes to the plaintiffs' likelihood of success on the merits, and not the merits themselves--and is sure to be appealed.

In short, the ruling temporarily halts the provisions prohibiting local governments from preventing officers from assisting or cooperating with federal authorities, "endorsing" sanctuary policies, and adopting or enforcing policies that "materially limit" enforcement of immigration laws, and a provision requiring law enforcement agencies to "comply with, honor, and fulfill" any detainer request by ICE. Other provisions of the law remain effective.

Here's a more complete run-down:

Prohibition on Preventing Communication

Section 752.053(b) prohibits local departments and local entities from preventing their employees from obtaining certain information about the immigration status of a detainee, maintaining that information, and sharing it with federal and state authorities. In particular, the provision prohibits local governments from preventing their employees from:

(1) Inquiring into the immigration status of a person under a lawful detention or under arrest.

(2) With respect to information relating to the immigration status, lawful, or unlawful, of any person under a lawful detention or arrest, including information regarding the person's place of birth:

a. Sending the information to or requesting or receiving the information from [USCIS], [ICE], or another relevant federal agency;

b. Maintaining the information; or

c. Exchanging the information with another local entity or campus police department or a federal or state governmental entity.

(3) Assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.

(4) Permitting a federal immigration officer to enter and conduct immigration enforcement activities.

The court said that the inquiry provision under (b)(1) and the information-sharing provision under (b)(2) were not preempted under the Immigration and Naturalization Act (but the court emphasized that the inquiry under (b)(1) could take place only during lawful detention or arrest).

But on the other hand, the court held that the enforcement-assistance-provision in (b)(3) was preempted (field and conflict), because federal law provides for "exacting requirements" for state and local officers to perform the functions of immigration officials--requirements that the state cannot circumvent through a law like (b)(3).

Anti-Endorsement Provision

Section 752.053 says that a local entity (including an officer or employee of a division) or campus police department may not "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws . . . ." A separate section provides for enforcement, including civil penalties and removal from office upon a violation, which could be shown "with evidence, including evidence of a statement of a public officer."

The court said that this provision violated free speech. The court held that "endorse" was unconstitutionally overbroad and vague, and that the provision constituted illegal viewpoint discrimination (because it banned speech on one side of the issue, but not the other).

Prohibitions on Local Pattern or Practice Limiting Enforcement

Other sections of SB 4 prohibit localities from adopting a "pattern or practice" that "materially limit[s]" the enforcement of immigration laws, or that "materially limit[s]" officers from "assisting or cooperating" with a federal immigration officer "as reasonable or necessary . . . ."

The court said that "materially limit" is unconstitutionally vague on its face, even if other portions of the provisions were not, including the enumerated list of specifically prohibited activities in Section 752.053(b), discussed above.

Detainer Requests and Detention

Yet other sections, and some in Section (b), above, require local entities to fulfill all ICE detainer requests, and, as described above, prohibit local governments from preventing officers from inquiring as to detainees' immigration status.

The court said that ICE-detainer provisions violated the Fourth Amendment, because they "mandate[] that local officials effect seizures requested by ICE [without suspicion of a crime] while prohibiting those officials from making an independent, particularized assessment of whether probable cause of a crime exists to support that seizure in every case . . . ."

But as to the prohibition on preventing officers from inquiring into a detainee's immigration status, the court ruled that "it is possible to construe [this] to avoid violating the Fourth Amendment," and therefore that the plaintiffs failed to show that they were likely to succeed on the merits.

August 31, 2017 in Cases and Case Materials, Federalism, First Amendment, Fourth Amendment, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Wednesday, August 16, 2017

California Sues Sessions Over Sanctuary Cities Policy

The State of California earlier this week joined Chicago and San Francisco in suing the federal government over DOJ's "sanctuary cities" policy. Our latest post, on Chicago's suit, is here.

California argues that its laws do not violate Section 1373 (they only limit detention beyond the scheduled release date in certain circumstances and require notification to the detainee of any ICE detention or interview request); that only Congress (and not DOJ) has authority to impose the Section 1373-condition on federal grants; that the condition doesn't provide clear notification to the state; and that DOJ's condition is unconstitutional (because it could require detention for 48 hours, and could violate the Fourth Amendment).

August 16, 2017 in Cases and Case Materials, Federalism, News, Spending Clause | Permalink | Comments (0)

Tuesday, August 15, 2017

Three Judge Court Finds Fault with Texas Redistricting Plan

 In its extensive and detailed opinion in Perez v. Abbott, a three judge court found problems including intentional racial discrimination in some aspects of Plan C235, the redistricting plan enacted by the Texas Legislature in 2013.

Authored by United States District Judge Xavier Rodriguez, joined by Chief Judge for the Western District of Texas District Judge Garcia, and Fifth Circuit Judge Jerry Smith, the panel opinion is another episode in the ongoing litigation regarding redistricting in Texas.  The opinion itself is an interlocutory order, with the remedial phase to follow.  Additionally, as in most redistricting litigation, there is a mix of determinations under the Voting Rights Act and the Equal Protection Clause.

Perhaps one of the more interesting issues in the case involves the court's findings regarding intentional discrimination. The court considered the Shaw v. Reno racial gerrymandering claims elaborating on the strict scrutiny standard if racial classifications could be proven.The court rejected the state's position that the discriminatory intent inquiry was limited to the drawing of district lines in 2013, but relying on Fifth Circuit precedent found that the challengers could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." The court stated:

The decision to adopt the interim plans was not a change of heart concerning the validity of any of Plaintiffs’ claims . . . . {in previous litigation} and was not an attempt to adopt plans that fully complied with the VRA and the Constitution—it was a litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities. The letter from then-Attorney General Abbott to Speaker Joe Straus makes the strategy clear: Abbott advised that the “best way to avoid further intervention from federal judges in the Texas redistricting plans” and “insulate the State’s redistricting plans from further legal challenge” was to adopt the interim maps. Thus, Defendants sought to avoid any liability for the 2011 plans by arguing that they were moot, and sought to ensure that any legal infirmities that remained in the 2013 plans were immune from any intentional discrimination and Shaw-type racial gerrymandering claims.

The court did reject some of the challengers other claims, although finding that MALC (a Latino legislative caucus of Texas members in the House of Representatives) had standing, it rejected the claim that there was intentional discrimination in a specific "Latino opportunity district."

The court's summary of its more than 100 page opinion is useful:

  • In Part II, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.
  • In Part IIIA, the Court concludes that Plaintiffs’ § 2 results claims in the DFW {Dallas-Fort Worth} area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part IIIB, the Court finds that the intentional discrimination found in DFW in Plan C185 is remedied in Plan C235, and that Plaintiffs failed to prove that any alleged cracking and packing that remains in DFW was intentionally dilutive.
  • In Part IV, the Court concludes that Plaintiffs’ § 2 results claims in the Houston area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part V, the Court finds that CD23 is a Latino opportunity district and there is no evidence of intentional discrimination/dilution.
  • In Part VI, the Court concludes that the Plan C235 configurations of CD35 and Nueces County/CD27 violate § 2 and the Fourteenth Amendment. These statutory and constitutional violations must be remedied by either the Texas Legislature or this Court.

 The court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."

Map

 

UPDATE: Stay

August 15, 2017 in Courts and Judging, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, August 8, 2017

Chicago Sues DOJ Over Sanctuary Cities Conditions

The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.

Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).

Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."

As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.

The case is in the Northern District of Illinois.

August 8, 2017 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, Music, Separation of Powers, Spending Clause | Permalink | Comments (0)

Sunday, August 6, 2017

Ninth Circuit Hands Partial Victory, but Ultimate Defeat, to Wiretap Subject

The Ninth Circuit ruled last week that Maricopa County officials violated federal law when they sought and obtained a wiretap, but that that the subject couldn't recover damages, because the officials acted in good faith and consistent with Arizona law and long-standing practices.

The ruling adds to a complicated body of law on federal preemption under the Omnibus Crime Control and Safe Streets Act of 1968 of state law authorizing wiretaps. The Ninth Circuit aligned with the approach of the First Circuit, and asked whether state procedural protections were "in substantial compliance with the federal law."

The case arose when County Attorney Montgomery, pursuant to state law, authorized a deputy to apply for a wiretap. The deputy obtained an order, and officials intercepted eight conversations between Manuela Villa and her daughter in 2011 and 2012. Officials, pursuant to long-standing state practice, then did not immediately deliver the recordings to the state court that authorized the wiretap.

Villa sued under Title III, arguing that officials violated Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, and that Title III preempted Arizona law that authorized the wiretap. In particular, Villa argued that County Attorney Montgomery, acting pursuant to state law, improperly delegated the authority to apply for a wiretap order to his deputy, in violation of Title III, which requires the "principal prosecuting attorney" to apply for a wiretap. Villa also argued that Deputy Brockel, acting pursuant to long-standing practice, failed to timely submit the recordings to the state court that authorized the wiretap, in violation of a Title III requirement that officials submit intercepted conversations to the authorizing court "[i]mmediately upon the expiration of the period of the order, or extensions thereof."

The Ninth Circuit first ruled that Villa lacked Article III standing to seek declaratory and injunctive relief. The court said that she could demonstrate no individualized future harm that would justify prospective relief. The court rejected Villa's taxpayer-standing claim out of hand, and held that she "does not allege that she is more likely than any other member of the public to have her future conversations illegally intercepted." Because Villa lacked standing for prospective relief, the court said that she also lacks standing to pursue prospective relief on behalf of a putative class.

In contrast, the court held that Villa did have standing to pursue individual damages for past interceptions, but, as below, couldn't actually recover.

The court held next that Title III preempted Arizona law, and that Arizona officials violated Article III. As to authorizing wiretaps, the court adopted the standard set by the First Circuit: "so long as the state wiretapping statute, considered as a whole and as interpreted by state courts, is in substantial compliance with, and is therefore equal to, Title III, state wiretaps are permissible." The court said that Arizona's statute, which authorizes a principal prosecuting attorney to delegate authority to apply for a wiretap to a deputy, didn't meet the standard: "substantial compliance with Title III requires that the principal prosecuting attorney indicate, as part of the application process, that he or she is personally familiar with all of the 'facts and circumstances' justifying his or her 'belief that an order should be issued,'" but that the Arizona statute permitted the "principal prosecuting attorney to state that he or she is [only] generally aware of the criminal investigation . . . ."

As to making the recordings available to the court that approved the wiretap, the court said that "long-standing practice" at the time of Villa's wiretap, in which "county officials submitted recordings of intercepted conversations for sealing only at the conclusion of an entire criminal investigation," was "not in substantial compliance" with federal law. But the court went on to say that a practice of submitting recordings within 10 days would be in compliance with the Act.

But even though the court concluded that officials violated the Act, it also ruled that Villa couldn't recover damages, because the officials acted in good faith, consistent with Arizona law or long-standing practices. (Good faith is a defense under a Title III cause of action.)

August 6, 2017 in Cases and Case Materials, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Preemption, Standing | Permalink | Comments (0)

Friday, August 4, 2017

AG Moves to Clamp Down on Sanctuary Cities Through Public Safety Partnership Program

Attorney General Jeff Sessions announced yesterday that DOJ will "tak[e] . . . into account" a city's "sanctuary" status in determining eligibility for the Department's new Public Safety Partnership program. AG Sessions accompanied the announcement with letters to Albequerque, Baltimore, San Bernadino, and Stockton--cities that had expressed an interest in participating in the PSP--asking for information related to their sanctuary policies.

The move adds a new program, the PSP, to some other Justice programs that are also unavailable to "sanctuary" jurisdictions--those jurisdictions that restrict their officers from communicating with federal authorities regarding the citizenship or immigration status of individuals in detention. In this way, the move is yet one more attempt by DOJ to encourage jurisdictions to drop their sanctuary policies.

AG Sessions initiated the PSP program in June. It provides training and technical assistance to local jurisdictions "to address violent crime in their communities." The Department initially selected twelve jurisdictions to participate in the program.

Earlier, the Department moved to clamp down on "sanctuary" jurisdictions by requiring them to drop their sanctuary policies as a condition of qualification for certain Justice grants. (In particular, DOJ said that jurisdictions that failed to comply with Section 1373 would not qualify for certain DOJ and DHS grants. Section 1373 says that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.") DOJ adopted this policy as a way to implement President Trump's facially overbroad sanctuary cities executive order.

AG Sessions didn't go so far as to categorically deny sanctuary jurisdictions from the PSP program, however. Instead, he said that "[b]y taking simple, common-sense considerations into account, we are encouraging every jurisdiction in this country to cooperate with federal law enforcement." Specifically:

In determining which jurisdictions to select, the Department will ask interested jurisdictions the following questions:

1.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States?

2.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien?

3.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date, in order to permit DHS to take custody of the foreign national?

AG Sessions tied the PSP program to the no-sanctuary-policies condition by arguing that sanctuary cities threaten public safety: "By protecting criminals from immigration enforcement, cities and states with so-called "sanctuary" policies make all of us less safe." AG Sessions presumably drew the connection at least in part in order to satisfy the relatedness requirement for federal conditioned spending programs under South Dakota v. Dole. (Under South Dakota, a federal conditioned spending program must (1) be in the "general welfare," (2) state the condition clearly, (3) be related to the condition, and (4) not turn pressure to participate into compulsion to participate.)

August 4, 2017 in Executive Authority, Federalism, News, Spending Clause | Permalink | Comments (0)

Monday, June 26, 2017

SCOTUS Grants Certiorari in Masterpiece Cake Shop: Pitting First Amendment Against Equality

 The United States Supreme Court, after a longer than usual period, granted certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,  a case in which a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, essentially asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Exercise and Free Speech Clauses.

Recall the Colorado ALJ firmly rejected the arguments of the cakeshop owners reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage."   The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.  

Pride_roma_2008_torta_nuziale_gay
A Colorado appellate court affirmed in a 66 page opinion.

Interestingly, the Court in 2014 denied certiorari to a similar case, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer. 

The petitioner argues an intersection of doctrines including compelled speech and free exercise, arguing that the Colorado public accommodations non-discrimination law offers a "stark choice"  to those who "earn a living through artistic means: Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law."  

 

June 26, 2017 in Federalism, First Amendment, Fourteenth Amendment, Religion, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, June 12, 2017

Daily Read: On the 50th Anniversary of Loving, A Look at its Portrayal in Film

 In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men." 

Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.

Lovings

Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary.  In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love."  This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:

Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.

[footnotes omitted].

And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:

perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.

 


 

June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)