Constitutional Law Prof Blog

Court Says Plaintiff Can Bring State Suit for Illegal Sale of His Car

The Supreme Court ruled today in Dan's City Used Cars, Inc. v. Pelkey that federal law does not preempt a plaintiff's state law claim against a towing company for the illegal sale of his car.  The ruling affirms the New Hampshire Supreme Court's ruling in favor of the plaintiff and settles a split among state high courts on the question.  Otherwise, the ruling doesn't break any new ground, and it's not a particular surprise.

The case arose when Dan's City towed Pelkey's car from his landlord's parking lot and later traded it away without compensating Pelkey.  (Pelkey was suffering with a serious medical condition for which he was later hospitalized, and thus left his car in the parking lot during a snow--a towing offense under the landlord's rules.)  Pelkey sued for wrongful sale (but not wrongful towing) under state law.  The lower state court said that the Federal Aviation Administration Authorization Act, FAAAA, preempted Pelkey's suit and dismissed the case.  (The FAAAA applies to motor carriers.)  The New Hampshire Supreme Court reversed, and this appeal followed.

The FAAAA preemption clause says,

[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.

In an opinion by Justice Ginsburg, the unanimous Supreme Court held that Pelkey's suit wasn't "with respect to the transportation of property," because it was based on the allegedly wrongful sale of his car after it was transported--that is, post-towing.  The Court said that this result is consistent with congressional purposes is enacting the FAAAA preemption clause.

SDS

Kansas Outlaws Federal Gun Laws

Kansas thumbed its nose at the federal government and its current and future gun laws recently in SB 102, the Second Amendment Protection Act, which declares federal gun laws unenforceable in the state.  

In particular, SB 102 says that the state legislature "declared" that firearms and accessories "manufactured commercially or privately and owned in Kansas and that remain within the borders of Kansas . . . have not traveled in interstate commerce" and therefore are not subject to federal regulation, including any federal registration requirement, under the Commerce Clause.  In short, the law seeks to insulate firearms and accessories that are made and kept only within the state from federal regulation under the Commerce Clause.  This reading of the Clause would deny the federal government authority to regulate activities that have a substantial effect on interstate commerce--a well settled congressional authority.  (The law also says that component parts imported from other states don't transform an otherwise Kansas-made firearm into an item in interstate commerce.)  To that extent, the law seems well tailored to test this long-standing aspect of congressional Commerce Clause authority--the power to regulate intrastate activities that have a substantial effect on interstate commerce.  If so, that's unlikely to go anywhere.  (Even in last summer's ACA/individual-mandate case, the Court gave no indication that it would wholly reconsider Congress's power to regulate activities that have a substantial effect on interstate commerce.)

More, SB 102 outlaws enforcement of federal law--even by federal law enforcement.  Enforcement of federal law is a felony in Kansas, but the legislature gave federal law enforcement officials this gift: Kansas won't arrest or detain them prior to, or during the pendancy of, any trial for a violation.  In other words, the charge, trial, and conviction are all just part of the political theater surrounding this obviously invalid law.

(In addition to the substantive portions of the law, SB 102 also includes the usual statements for this kind of law--statements about the Tenth Amendment (in support of a robust idea of states' rights) and the Second Amendment (as an absolute bar to any gun regulation).  It also has a section on the Ninth Amendment.)

Attorney General Eric Holder shot back, reminding the state of the Supremacy Clause, and concluding that "the United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law."

Governor Brownback responded, arguing that the measure enjoyed wide bi-partisan support in the state.  He said that this meant that "[t]he people of Kansas have clearly expressed their sovereign will.  It is my hope that upon further review, you will see their right to do so."

SDS 

States Can Restrict FOIA Laws to Own Citizens, Court Says

A unanimous Supreme Court ruled today in McBurney v. Young that a state can restrict its own freedom of information law to its own citizens without violating the Privileges and Immunities Clause or the dormant Commerce Clause.  We covered oral arguments here.

The ruling puts an exclamation point behind the idea that there's no fundamental right to public records.  If there were any doubt going into the case, this ruling settled the matter: Our Constitution doesn't require freedom of information.  If you want it, take it up with your legislature.

The case arose out of two out-of-state claimants' efforts to get Virginia state records through the state FOIA.  One of those claimants, McBurney, sought records related to the state's 9-month delay in enforcing a child support order that he had against his ex-spouse, a Virginia resident.  The other, Hurlbert, sought state real estate tax records on half of his clients.  The state didn't provide the requested records pursuant to its FOIA, however, because its FOIA extends only to state citizens.  (It did provide most of the records through other means.)  Both McBurney and Hurlbert sued, arguing that the FOIA violated the Article 4 Privileges and Immunities Clause and the dormant Commerce Clause.  

The Court disagreed.  In an opinion by Justice Alito, the Court said that the FOIA doesn't interfere with a fundamental right in violation of the Privileges and Immunities Clause.  It said that the FOIA doesn't violate the opportunity to pursue a common calling, because the law wasn't designed to provide a competitive advatage for Virginia citizens.  It doesn't violate the right to own or transfer property in Virginia, because Virginia makes the necessary records available through the clerks of its circuit courts (even if not through its FOIA).  The FOIA doesn't violate the right to gain equal access to Virginia courts, because its citizens-only application leaves open "reasoanble and adequate" access to the courts (because state procedure allows discovery and subpoenas, which would provide noncitizens with any relevant and nonprivileged information, and state law allows equal access to judicial records).  And it doesn't violate a claimed right to gain access to public information on equal terms, because, well, there is no such right.

The Court also rejected Hurlbert's dormant Commerce Clause claim, ruling that Virginia's FOIA neither regulates nor burdens interstate commerce.  "[R]ather, it merely provides a service to local citizens that would not otherwise be available at all."  Op. at 13.

Justice Thomas joined the opinion but wrote separately to remind us of his view that "[t]he negative Commerce Clause has no basis in the text of the Constitution."  

SDS

Argument Review: Does a Port's Enforcement Have the Force and Effect of Law?

The Supreme Court heard oral arguments yesterday in American Trucking Association v. City of Los Angeles, the case asking whether federal law preempts the Port of Los Angeles's "concession agreement" that it requires of all drayage truck operators.  Our argument preview is here.

Two points got the Court's attention.  First, the justices tested whether the Port was acting in a proprietary way in enforcing the concession agreement, thus triggering the market participant exception.  This question turns on whether the Port's enforcement of the agreement had "the force and effect of law"--language from the preemption clauses in the Federal Aviation Administration Authorization Act that means that enforcement by a state as state is preempted, but enforcement by a state as market actor is not.  Here, the Port's concession agreements are contracts with drayage truck operators (making the Port look like a market actors), but they are ultimately backed by criminal penalties, even if not for breach of the contract, and the whole operation relates to regulation of public land (making the Port look like the state).  Take a look at this exchange with the attorney for the Port:

JUSTICE KENNEDY: You are saying that you can do by contract what you cannot do by regulation.  And I don't understand that argument when there are criminal penalties that attach to the breach of the contract.

MR. ROSENTHAL: But, Justice Kennedy, let me say again, there are no criminal penalties that attach to the breach of the contract.  It is purely a contract.  The remedies are purely civil.  Even our other side in their argument has conceded there are no criminal penalties to the breach of the concession agreement.

JUSTICE SCALIA: I'm not sure that's crucial.  You think a state can say nobody's going to come on our highways until it signs a contract?  Okay?  These highways belong to us, they are State land, and anybody who wants to ride on the highways, you have to enter a contract with the State.  And that's going to get around this Federal statute?

Others, too, asked about the criminal penalties and the scope of the Port's regulatory authority--all to the end of determining whether the Port looks more like the state, or more like a market actor, when it enforces its concession agreement.

Next, the Court pressed on the scope of Castle, the case overturning Illinois's punishment of a carrier's repeated violations of the state's freight-weight restriction by completely suspending the carrier's right to use Illinois state highways for certain periods.  Here, the arguments turned on whether the Port's enforcement mechanism was a punishment for prior violations (as in Castle), or whether it simply operated to ensure that only currently compliant trucks had access to the Port.  There's also an issue about the continued vitality of Castle, given that the federal regulatory scheme that governed at the time has since been superceded.

The Port seemed to have the tougher time at arguments, but that's no (necessary) bellweather.  There were plenty of open questions to suggest that there are no easy answers here.  As a practical matter, if the Court rules against the Port, it would undo years of litigation and negotiation between the Port and the surrounding community related to environmental and health concerns and send those paties back to the drawing table.  That, in turn, could impact both community health and the environment, and the Port's plans for even more expansion.

SDS

Oral Argument Preview: Does Federal Law Preempt LA Port's Drayage Agreement?

The Supreme Court will hear oral arguments tomorrow in American Trucking Association v. Los Angeles, testing whether the Federal Aviation Administration Authorization Act preempts certain provisions of the "concession agreement" that the Port of Los Angeles requires of all Port drayage service providers, as part of the Port's efforts to reduce drayage truck emissions.  

Here's my ABA Preview of United States Supreme Court Cases article on the case, reprinted here with permission:

FACTS

 The Port of Los Angeles (POLA, or the Port) is an independent division of the City of Los Angeles. That is, it raises and manages its own revenue, independent of the City, by leasing its terminal facilities to shipping lines and stevedoring companies, which load and unload cargo from docking ships.

Drayage trucks are an integral part of the operations at the Port. They transport cargo from the Port’s marine terminals directly to customers, or to off-Port long-distance trucks or railroads for further transport. But POLA does not contract for any drayage services. Instead, cargo owners, ocean carriers, railroads, and other transportation providers arrange for drayage services through Licensed Motor Carriers (LMCs). Most LMCs, in turn, contract with independent truck owners and operators to provide drayage services.

In 2008, the Port adopted a “concession agreement” system for drayage service providers. The system was part of an earlier-adopted “Clean Action Plan” designed to address community opposition to Port expansion and to reduce air pollution produced by Port activities. Under the system, the Port requires any drayage service provider seeking access to the Port’s premises to enter into a standard-form “concession agreement” with the Port. That agreement grants the concessionaire “a non-exclusive license to access [the] Port property for the purpose of transporting containers and/or other cargo to and from marine terminals.” In exchange, the concessionaire agrees to comply with several requirements. In particular, the concessionaire must (1) submit an off-street parking plan for all of its permitted trucks, (2) display placards on its trucks that provide a phone number for reporting environmental or safety concerns, (3) demonstrate that it has sufficient financial resources to perform its obligations under the agreement, and (4) ensure that vehicle maintenance is conducted in accordance with the manufacturer’s instructions.

The standard-form agreement also lists penalties for failure to comply with these requirements. The penalties for a default, if not timely cured, include suspension or revocation of the concession agreement and the right of the concessionaire to use the Port’s facilities. In other words, the Port could altogether exclude a drayage service provider for significant noncompliance with the agreement—what the agreement calls a “Major Default.”

Moreover, violation of the agreement can result in criminal penalties. This is because the Port incorporates the concession agreement system into the preexisting tariff that governed Port operations. A violation of the tariff constitutes a misdemeanor subjecting the violator to a $500 fine and imprisonment up to six months.

American Trucking Associations, Inc. (the ATA), a trucking-industry trade group, sued the City and the Port in federal court, arguing that certain concession agreement requirements were preempted by the Federal Aviation Administration Authorization Act (FAAA). The district court found none of the requirements preempted. A divided panel of the Ninth Circuit largely affirmed, reversing the district court only as to a requirement that is not relevant here. This appeal followed. The federal government petitioned to participate as amicus in support of reversal.

 CASE ANALYSIS

This case raises two distinct issues of federal preemption of state law. The first issue, an express preemption issue, involves two sections of the FAAA. The first section, 49 U.S.C. § 14501(c)(1), covers general state regulation of motor carriers, like the concession agreement’s off-street parking requirement. It provides that:

a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier.

This first section exempts “the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A).

The second section, 49 U.S.C. § 14506(a), specifically addresses vehicle identification requirements, like the concession agreement’s placard requirement. It provides that:

[n]o State, political subdivision of a State, interstate agency, or other political agency of two or more States may enact or enforce any law, rule, regulation standard, or other provision having the force and effect of law that requires a motor carrier . . . to display any form of identification on or in a commercial motor vehicle . . ., other than forms of identification required by the Secretary of Transportation.

The first issue asks whether the concession agreement’s off-street parking and placard requirements “hav[e] the force and effect of law” under these sections so that the requirements are preempted by the sections. That question, in turn, depends on whether the concession agreement looks more like a state regulation or more like an ordinary commercial contract. If the concession agreement looks more like a state regulation, it is covered by these sections, and it is preempted. On the other hand, if it looks more like an ordinary commercial contract, it is not covered by these sections, and it is not preempted.

A related question is whether the market participant doctrine applies. The market participant doctrine says that the FAAA preempts only state regulation, not actions a state takes as a market participant. The parties and the federal government disagree about whether the market participant doctrine applies in this case—in particular, whether it applies when the FAAA does not contain an explicit market participant exception.

The second issue involves the application of a 1954 Supreme Court case on preemption, Castle v. Hayes Freight Lines, Inc. In Castle, the Court considered an Illinois statute that limited the weight of freight that could be carried in commercial trucks registered under the federal Motor Carrier Act. The Illinois law punished a carrier’s repeated violations by suspending the carrier’s right to use Illinois state highways for periods of ninety days and one year. The Court said that the Motor Carrier Act left regulation of the size and weights of trucks to the states. But it also held that Illinois’s law forbidding an offending carrier from using all of the state’s highways was “equivalent to a partial suspension of [the carrier’s] federally granted certificate” and was therefore preempted.

The parties and the federal government disagree about the meaning, the scope, and even the continued vitality of Castle. For example, they disagree about whether Castle prohibits the Port from punishing drayage service providers by banning them merely from the Port, even if not from the entire state highway system (as in Castle). The parties also disagree about which concession agreement requirements might be covered by Castle. Finally, they disagree about whether Castle remains good law. The government, for its part, is unsure whether the Port will punish only past, cured violations (as in Castle), and thus whether the punishment even falls under Castle.

The ATA argues first that the plain language of the FAAA expressly preempts the off-street parking and placard provisions of the concession agreement. It says that the parking provision regulates drayage trucks’ “price, route, or service” in violation of § 14501(c)(1), and that the placard provision requires drayage trucks “to display any form of identification . . . other than forms . . . required by the Secretary of Transportation” in violation of § 14506(a). Moreover, it claims that the concession agreement amounts to a “comprehensive licensing scheme” that is “penally enforceable” through the tariff and thus have “the force and effect of law.”

The ATA argues that the market participant exception does not apply. It says that because Congress enacted the FAAA, and because it does not contain a market participant exception, there is no market participant exception to the Act’s provisions. But the ATA claims that even if the FAAA contains an implicit market participant exception, it does not apply here. According to the ATA, that is because the parking and placard requirements are not aimed at the efficient procurement of goods and services or at the use of state-allocated funds, the purposes of the exception; instead, the provisions are aimed at a traditional regulatory goal, to reduce air pollution. Moreover, the ATA contends that the Port is not even a direct participant in the drayage market; instead, it is a regulator of drayage services.

Next, the ATA argues that Castle bars the Port from enforcing even non-preempted regulations on drayage service providers by suspending or revoking their access to the Port. The ATA says that the concession agreement permits the Port to deny a drayage service provider “any and all access” to the Port for certain defaults of the concession agreement, and that this penalty is directly at odds with the Court’s holding in Castle. It claims that Castle forbids even a partial suspension of a drayage operator’s federally licensed activities, even though a denial of access to the Port may not rise to the level of the comprehensive ban at issue in Castle. Finally, the ATA contends that Castle is still good law, and that Congress has only reaffirmed the federal government’s exclusive authority to issue interstate-commerce permits, and to revoke them.

The federal government supports the ATA, but takes a more nuanced tack. It says that the FAAA does not naturally preempt all arms-length commercial agreements between the government and motor carriers. But it says that the Port’s concession agreement looks more like a regulatory scheme than an arms-length commercial agreement between market participants. In particular, the government points to four features of the Port’s agreement and its operations that together suggest that the agreement is really a regulation (and not a commercial agreement): the criminal sanctions that back the agreement; the public ownership of the Port; the generally regulatory character of the agreement’s provisions; and the fact that the government generally does not contract with drayage service providers. For these reasons, the government claims that the FAAA preempts the off-street parking and placard requirements.

Next, the federal government says that it is unclear whether the concession agreement provisions at issue here would contravene Castle. The government argues that Castle prevents the Port from barring a motor carrier’s access to the Port only for a past, cured infraction, and not for the carrier’s current failure to comply with otherwise non-preempted state safety regulations. In other words, it says that nothing in Castle prevents the Port from prohibiting a carrier’s truck from operating at Port facilities until it complies with non-preempted regulations. Given that we do not know whether the Port might punish past, cured violations of the agreements by barring Port access, the government urges the Court to remand the case for a determination on that question.

The Port argues first that the market participant exception shields the off-street parking and placard provisions from preemption. It claims that the Court’s precedents and related acts suggest that the market participant exception applies to the FAAA, even with its express preemption clauses. Moreover, the Port claims that its adoption of the concession agreements fall within the market participant exception. In particular, the Port claims that the concession agreements do not have the “force and effect of law,” because they are contractual in nature, not regulatory in nature. (It claims that under the terms of the tariff and the concession agreement, the criminal sanctions under the tariff do not apply to LMCs.)

Next, the Port claims that Castle does not bar the concession agreements’ safety-based restrictions on access to the Port. The Port says that Castle only prohibits a ban on using all of a state’s freeways, not a ban on a single Port, as here. But even aside from the Ninth Circuit’s approach, the Port claims that the ATA’s argument that Castle prevents the Port from suspending or revoking a motor carrier’s access for safety-related violations would improperly read the safety exception out of § 14501(c)(2)(A). Finally, the Port contends that Castle is no longer good law with respect to the concession contract requirement. That is because Castle arose under an earlier, and superseded, regulatory regime.

SIGNIFICANCE

The Port of Los Angeles is the largest container port in the United States in terms of both shipping container volume and cargo volume. In 2007, it was the thirteenth busiest port in the world, and the fifth busiest in the world when combined with the cargo volume at the adjacent Port of Long Beach. In both 2007 and 2008, the Port handled more than $240 billion in cargo. The Port’s activities are connected with over 900,000 jobs in the greater Los Angeles region. As big as it is, however, the Port projects that increased global trade and larger ships will double the demand for its cargo handling capacity over the next decade. To meet demand and stay competitive, the Port seeks to expand.

At the same time, Port activities produce pollution that significantly affects the air quality of the surrounding area and the health of local residents. Community and environmental groups tied up Port expansion plans in court for years because of these concerns. (They continue to oppose expansion efforts, for example, by protesting the Port’s plan to develop a new rail yard, approved just last month.) The Port’s Clean Action Plan, including the concession agreements, was designed to address these kinds of environmental concerns.

In this way, the case is a classic conflict between economic growth and environmental justice. If the Court reverses the Ninth Circuit and holds that the FAAA preempts some or all of the Port’s concession agreement requirements, the ruling will frustrate the Port’s efforts to reduce pollution in order to address the concerns of community and environmental groups. This could lead community and environmental groups to redouble their efforts to halt expansion and thus deal a significant set-back to Port expansion efforts. The Los Angeles Chamber of Commerce, as amicus in support of affirming the Ninth Circuit, put it this way: “If the Port is not permitted to take such modest and reasonable steps as those represented by the off-street and placard provisions, its ability to adopt limited measures tailored to specific, local issues arising from Port activity will be compromised, which may result in additional litigation and delays.”

On the other hand, if the Court affirms the Ninth Circuit and holds that the FAAA does not preempt the concession agreement requirements, the Port’s efforts will stay on the books. This may be a victory for community and environmental groups, and for the Port itself. But given the issues that have come to a head just recently with the rail yard project, it is safe to say that this case will certainly not resolve all the problems or in any way mark the end of this ongoing dispute.

SDS

 

Oral Argument Preview: Adoptive Couple v. Baby Girl and the Constitutional Issues

The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16.  The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.

On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA.  The petitioners, the adoptive couple, articulate the questions presented as:

(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.

(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence.   These articulations stress the positive acts of the biological father.  For example, as the biological father phrases the parenting definition question:

Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].

The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA

 to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.

However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.

First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause.  For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8.   ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth. 

 

 

Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers.  In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.

Third, and most stealthily, the case may present issues of due process and equal protection.  In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.”  In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child.  Moreover, the state court’s decision violated the baby’s equal protection and due process rights.

For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:

In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.

Less successfully, the brief attempts to articulate a liberty interest of the child:

And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).

Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly.  Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."  

These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests.  [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys. 

Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."

Clement - -  who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.  

While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.

RR
[image circa 1890 via]

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
[image via]

Indiana Can't Have its Own Immigration Policy, Either

The United States District Court for the Southern District of Indiana last week ruled in Buquer v. City of Indianapolis that two provisions of Indiana's immigration law, SEA 590, were preempted by federal law.  The ruling on one of the provisions, Section 20, followed the Supreme Court's ruling last summer in Arizona v. United States.  (H/t Indianalawblog.com)

The ruling permanently enjoins Sections 18 and 20 of SEA 590.

Section 20 says that an Indiana officer "may arrest a person when the officer has . . . a removal order issued for the person by an immigration court; a detainer or notice of action for the person issued by the United States Department of Homeland Security; or probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. Sec. 1101(a)(43)).  The court ruled that Section 20 was preempted for the same reason that a similar provision in SB 1070 was preempted in Arizona v. United States:

Similarly, in the case before us there is no indication that state or local law enforcement officers would be required to consult federal immigration officers before effecting an arrest . . . . [W]here the federal government has exercised it discretion to release an individual who has had a removal order issued, the subsequent arrest of that person by Indiana law enforcement officers would directly conflict with the federal decision, obviously and seriously interfering with the federal government's authority in the field of immigration enforcement.

Op. at 19-20.  The court said that "it is even more apparent with [the section's] authorization of the arrest of individuals who have been issued a notice of action."  That's because such notices are inherently non-criminal.  The court also ruled that Section 20 violates the Fourth Amendment, because it allows a warrantless arrest for a non-criminal action.

Section 18 outlaws the use of a consular identification document, or CID--an identification issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state.  The court said that Section 18 "directly interferes wtih the rights bestowed on foreign nations by treaty by virtually nullifying the issuance of one of the tools used by foreign nations to exercise those rights."  Op. at 29.  "It is also clear that such a sweeping prohibition has the potential to directly interfere with executive discretion in the field of foreign affairs."  Id.

The same court earlier rejected three state senators' effort to intervene in the case.  The senators argued that because they voted for SEA 590, they had a sufficient interest in the case.  But the court held that they did not satisfy standing requirements under Coleman v. Miller, because the law actually passed.  "We find that the three legislators here have not alleged a vote nullifcation injury sufficient to bestow standing in this case."  Op. at 7.

SDS

 

How to Tax an Internet Retailer Even Without Physical Presence, New York Style

The New York Court of Appeals today upheld a state statutory presumption that internet retailer "associates" operating within the state provide a sufficient nexus for the state to collect sales tax on the retailer's state sales.  The ruling approves New York's end-run around the dormant Commerce Clause rule that a state can impose a sales tax on an out-of-state retailer only if the retailer has a physical presence--including economic activities by the retailer's employees, but not mere advertising.

With the rapid growth of internet sales across state lines, and with the last Supreme Court ruling on anything like this coming as far back as 1992 (on mail-order sales, of all things), this case may be a good candidate for high court review.

But on the other hand, the precise ruling in the case is rather limited.  That's because the plaintiffs in the case pressed only their facial challenge at the Court of Appeals, not an as applied challenge.  The problem here is that the statutory presumption can be rebutted, and an out-of-state retailer that can rebut it will also be exempt from it.  This gives the presumption some wiggle room in certain cases and may be enough to protect out-of-state retailers against state sales taxes when they don't have sufficient business activity to constitute presence.  The Court's ruling only says that the statutory presumption is not unconstitutional on its face.  That's a far cry from saying that it's constitutional in every application.

The case, Overstock.com v. New York State Department of Taxation and Finance, tests New York's statutory presumption that an out-of-state internet retailer's in-state "associate" is soliciting business for the retailer:

a person making sales of tangible personal property or services taxable under this article ("seller") shall be presumed to be soliciting business through an independent contractor or other representative if the seller enters into an agreement with a resident of this state under which the resident, for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an internet website or otherwise, to the seller . . . .

New York Tax Law Sec. 1101(b)(8)(vi).  The provision exactly describes Amazon's and Overstock.com's "associates"--local web-sites that include links to Amazon.com or Overstock.com and that receive a commission on each purchase through that link.  

But neither Amazon nor Overstock.com has a physical presence in New York.  And according to the Supreme Court in Quill Corp. v. North Dakota (1992), an out-of-state retailer like Amazon or Overstock.com has to have a physical presence in order for New York to impose a tax.  (Quill Corp. involved an out-of-state mail order retailer.  If you don't know what that is (!), click here.) Physical presence includes engaging in economic activities (like selling goods), but not advertising alone.

Enter the statutory presumption.  The presumption says that Amazon's and Overstock.com's "associates"--those New York-based web-sites that contain a link to Amazon or Overstock.com, and receive a commission on each sale--establish a sufficient nexus between the out-of-state retailers and the state so that New York can impose its tax.

And the New York Court of Appeals OK'd it.  The Court said that the retailers' associates were engaged in sufficient economic activity on behalf of the out-of-state retailers--business solicitation, and not mere advertising--to allow the state to tax.  

Judge Smith dissented.  He thought that the associates' links looked more like mere advertising, not business solicitation, and therefore weren't enough to establish a nexus between the retailers and the state.

The Court also rejected the retailers' due process claims, because the presumption is rational.  The Court explained:

It is plainly rational to presume that, given the direct correlation between referrals and compensation, it is likely that residents will seek to increase their referrals by soliciting customers.  More specifically, it is not unreasonable to presume that affiliated website owners residing in New York State will reach out to their New York friends, relatives, and other local individuals in order to accomplish this purpose.

SDS

 

United States v. Windsor, DOMA Challenge Argued in United States Supreme Court

In the second of the same-sex marriage cases, after yesterday's Proposition 8 argument, the Court heard oral argument today in  United States v. Windsor, a grant of certiorari to the Second Circuit opinion holding DOMA unconstitutional and applying intermediate scrutiny to sexual orientation classifications.

The audio is here:

12-307

Edith Windsor (pictured) argues that DOMA - - - the Defense of Marriage Act - - -violates the equal protection component of the Fifth Amendment.  Recall DOMA is not being defended by the Obama Administration, but by BLAG - the Bipartisan Legal Advisory Group - - - at taxpayer expense which reportedly topped $3 million even before today's arguments. 

The extended two hour session had several attorneys arguing: LawProf Vicki Jackson, Court-appointed as amicus on the standing issue; Sri Srinivasan, Deputy Solictor General (supporting Windsor on the standing issue); Paul D. Clement on behalf of BLAG; Solicitor General Donald B. Verrilli (supporting Windsor); and Roberta A. Kaplan on Behalf of Windsor.

On the standing issue:

Similar to the Proposition 8 case argued yesterday, the fact that the government is not defending the constitutionality of the law raises a quetions about the Court's power under Article III to decide the issues.

Justice Kagan asked one of the most trenchant questions regarding standing and injury, especially given the Obama Administration's stated belief that DOMA is unconstitutional:

The Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury. Why isn't it here?

But Jackson answered that the federal government had not asked the Court to remedy that injury and that the Article III "case or controversy" requirement is "nested in an adversarial system." 

Throughout the arguments on standing there was a search for the most controlling precedent - - - with Justice Roberts' asking "is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction?
 Any case?"  The general consensus seemed to be that Windsor was distinct from the most similar case, INS v.Chadha decided in 1983. (Chadha involved the legislative veto and produced a very fractured set of opinions on the merits).  Justice Scalia had some barbs to throw at the present administration, contrasting it to when he was at the Office of Legal Counsel. 

 On the merits:

The challenge to DOMA is under the equal protection component of the Fifth Amendment, with the Solicitor General  arguing that the standard to be applied is intermediate scrutiny and Kaplan arguing that DOMA failed even rational basis scrutiny.  Yet the equal protection arguments were embroiled with the federalism and Congressional power to pass DOMA; Justice Kennedy stated that the federalism and equal protection issues were "intertwined."  [A good example this intertwinement occurred in the First Circuit opinion that held DOMA unconstitutional.]

For Solicitor General Verrilli, the intertwinement aspect was a cause of consternation and undercut his argument yesterday in the Proposition 8 case that even a state law denying same-sex marriage violated equal protection and that the correct standard was intermediate scrutiny as the Second Circuit held. 

The consistency principle of equal protection doctrine - - - that the same standard should apply no matter what classification was benefitted or burdened - - - was also a focus, with hypotheticals about the standard should Congress decide that it would provide federal benefits to same-sex couples even if the state did not recognize their marriages. [The question of who would have standing to challenge such a law did not arise]. 

Justice Roberts repeatedly brought up the question of animus as part of a rationality with bite inquiry, asking at least twice whether the 84 Senators who voted for DOMA and the President [Clinton] were motivated by animus.  Justice Roberts also raised the question of political powerlessness, often an inquiry in determining the level of equal protection scrutiny. Roberts echoed an opinion expressed by Justice Scalia in earlier cases that sexual minorities were anything but politically powerless when he told Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

Justice Ginsburg probably uttered the most memorable quote of the day's arguments.  In her questioning of Paul Clement, who represented BLAG, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."   Her remark would be even more noteworthy for people who recall that the scrutiny standard is often traced to the famous footnote 4 in Carolene Products, a case about - - - milk.

RR
[image via]

Daily Read: Same-Sex Marriage and Supreme Court Analysis

What should the Supreme Court do in the Prop 8 (argued yesterday) and DOMA [update: argued today] cases?

Be clear!

This is from the essay Toward a more perfect analysis, published in the SCOTUSBlog same-sex marriage sympoisum in September 2012:

The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

Regarding the suggested holdings in the Proposition 8 and DOMA cases, the Supreme Court’s clear conclusion that sexuality merits intermediate scrutiny review, like gender, would disentangle the equal protection doctrine from the animus inquiry.  While certainly animus can be operative, the inquisition into intent invites protestations of moral belief or religious conviction.  The false opposition between equality and morals needs to be abandoned.  Additionally, the linking of sexual orientation and gender as quasi-suspect should lead courts to find classifications based upon gender identity, transgender identity, or gender nonconformity as similarly subject to intermediate scrutiny review. Additionally, the Supreme Court’s definitive holding that marriage is a fundamental right meriting strict scrutiny review would extricate the issues from the federalism quagmire.

RR
[image via]

Supreme Court Takes Another Affirmative Action Case: Michigan's Prop 2

Even as we await the United States Supreme Court's opinion on the constitutionality of a university's affirmative action plan in Fisher v. University of Texas argued October 10, it has become clear that Fisher will not be the Court's last affirmative action case.

Today, the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action to the Sixth Circuit's en banc decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan decided last November. Recall that the Sixth Circuit majority held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.

The en banc Sixth Circuit was seriously fractured, but none of the opinions considered the Court's affirmative action cases of Grutter and Gratz (or the pending case of Fisher).  Instead, the relevant doctrine was the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief?  This underlying problem is similar to some of the arguments in the Proposition 8 case - - - Hollingsworth v. Perry - - - to be argued before the Supreme Court tomorrow, March 26, and certainly resonates with the Ninth Circuit's reasoning in Perry finding that Prop 8 was unconstitutional.

In the case of Michigan's Prop 2, the Sixth Circuit majority found it troublesome that only as to racial classifications in university admissions would a person seeking to change policy have to amend the state constitution, as contrasted to other classifications that could be changed by various other means, including simply persuading an admissions committee. 

As to what the Court's grant of certiorari in Coalition to Save Affirmative Action might mean for Fisher, reading the "tea leaves" is difficult.  As we observed when the Sixth Circuit decided Coalition to Save Affirmative Action, a very broad approach in Fisher - - - such as a declaration that all racial affirmative action policies in education were per se unconstitutional - - - would seriously undermine the rationale of the Sixth Circuit opinion.  However, a grant of certiorari in Coalition to Save Affirmative Action does not mean that Fisher will be narrow or that it will uphold the University of Texas' affirmative action plan.

And one additional "wrinkle": Justice Kagan is recused in Coalition to Save Affirmative Action.

RR
[image Affirmative Action demonstration in 2003, via]

Court Hears Arguments on Generic Drug Manufacturer's Liability for State Design Defect

The Supreme Court heard oral arguments earlier this week in Mutual Pharmaceutical v. Bartlett, a case testing whether the federal Food, Drug, and Cosmetic Act (and in particular the Hatch-Waxman Act) preempts a state design-defect claim against a generic drug manufacturer.

The case is important because of the large and increasing role that more affordable generics play in the prescription drug market.  But as Justice Kagan pointed out early in the argument, the case may also affect branded drugs.  That's because both branded and generics need to get FDA approval for new or changed formulas, and yet they both could be subject to state-law design-defect claims, as in this case.  If so, depending on the nature of the state law claim, the state court ruling could set a different standard than the FDA standard--making it impossible for a manufacturer, branded or generic, to comply with both.  But again: that depends on the nature of the state-law claim.

Recall that the Court just two years ago ruled in PLIVA v. Mensing that the FDCA did preempt a state failure-to-warn claim against a generic manufacturer.  The reason: Under the FDA's process for generic approval (under Hatch-Waxman), a generic has to bear the same label as its branded counterpart.  Under the federal FDCA, the generic has no control over the label, and so the Court said that it can't be held to a higher labeling requirement under state tort law.  In other words, the requirement under federal law (to bear the same label as its branded counterpart) conflicted with duties set by the state tort suit (to include different warnings).

But that was a failure-to-warn claim.  Bartlett involves a design-defect claim, going to the generic's design, not (or maybe not) its label.

Still, the label was one sticking point, maybe the most important sticking point, at argument this week.  The justices struggled to figure out whether the plaintiff's design-defect claim turned at all on faulty labeling.  (If it did, the case would more likely be governed by Mensing, and the claim more likely to be preempted.)  The plaintiff argued that the trial court judge carefully distinguished between considering the label for its adequacy as opposed to its effectiveness.  According to the plaintiff, the judge ruled out the former consideration, because the defendants waived a defense that would have turned on adequacy.  Moreover, according to the plaintiff, the label's effectiveness goes to limiting the danger of an inherently dangerous drug--and is therefore not a consideration of labeling in its own right, but rather a consideration of labeling as related to a pure design-defect claim.  It's not clear that the Court bought this distinction, however, and the defendant argued strenuously against it.

Another and related sticking point was the nature of the state design-defect claim.  Was it a pure strict liability claim, in which the plaintiff simply received compensation for injuries resulting from an inherently dangerous drug?  If so, the claim operated more like a drug compensation fund, and even the defendant said there was no preemption.  That's because the defendant could comply with both the federal requirements for generics and the state duty to pay.  Stated differently, the state tort suit wouldn't set a new standard of care; instead, it would simply require compensation.  But if the label was relevant to the design-defect claim--and if, as the Court held in Mensing, the defendant had no control over the label--the state tort suit could be understood as setting a new standard (in the same way the failure-to-warn claim did in Mensing)--and the FDCA would preempt.

Yet another sticking point was the FDA approval process as opposed to the process of state-court juries.  The FDA puts new drugs through a rigorous ringer to weigh the costs and benefits before approval.  But state court juries grant damage awards based on the judgments of a handful of lay individuals.  The question is: If the FDA approves a drug and thus its counterpart generic--based on thorough and expert cost-benefits analyses--why should a state court lay jury be able to second-guess and even overrule it?

The Court divided 5-4, along conventional ideological lines, in Mensing.  That seems like a plausible, even likely, result here, too.

SDS

State Can't Automatically Collect Portion of Malpractice Settlement of Medicaid Recipient

The Supreme Court ruled today that a state can't automatically take a set portion of a Medicaid recipient's medical malpractice damage award in order to recoup medical expenses that it already paid.  The ruling still allows states to recoup medical expenses from Medicaid recipients' malpractice damage awards, but they can't do it by setting an arbitrary fixed portion of a damage award; instead, they have to do it case-by-case, with more precision.

The ruling is a victory for Medicaid recipients who recieve malpractice awards.  It means that states can't try to take more than their fair share of an award in an effort to achieve administrative efficiency (in determining the amount of actual medical expenses paid).

The case, Wos v. EMA, arose after the parents of minor EMA sued doctors and others for medical expenses, other expenses, and pain and suffering resulting from serious and permanent injuries that EMA suffered at birth.  The parties settled for $2.8 million, but did not designate a portion of the settlement as reimbursement for medical expenses.  

Because EMA received a portion of her medical care through North Carolina's Medicaid program, the state sought to recoup medical expenses it paid through Medicaid.  North Carolina's statute says that up to one-third of any damages recovered by a beneficiary for a tortious injury be paid to the state to reimburse it for payments it made for medical treatment on account of the injury.  The North Carolina Supreme Court ruled that the one-third portion was "a reasonable method for determining the State's medical reimbursements."  This interpretation could allow the state to collect less than its past medical expenditures, if those expenditures exceeded one-third of the total recovery.  But it also could allow the state to collect more than its past medical expenses, if, as here, those expenditures were less than one-third of the recovery.

The federal Medicaid Act allows, indeed requires, a state to recoup medical expenses from a Medicaid recipient's damage award.  But the Act's anti-lien provision preempts a state's effort to take any portion of an award not "designated as payment for medical care."  

The problem of determining reimbursable expenses is most acute when, as here, a settlement doesn't designate the portion attributable to medical expenses.  In that case, as in this case, the state uses the one-third portion as a default--and recoups (at least potentially) more than its actual medical expenses.  (Here the state court that approved the settlement set aside one-third of the settlement in escrow for payment to the state "until such time as the actual amount of the lien owed by [EMA] to [the state] is conclusively judicially determined."  EMA's parents then sued in federal court.  While the suit was pending, the North Carolina Supreme Court ruled that the one-third portion was "a reasonable method for determining the State's medical reimbursements.")

The Court ruled that the federal anti-lien provision preempted North Carolina's statute.  Justice Kennedy wrote the opinion, joined by Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan.  He said that North Carolina's one-third figure conflicted with the anti-lien provision, because it allowed the state to recoup more than its actual medical expenses, even when those expenses were designated as part of the award:  

North Carolina's statute, however, operates to allow the State to take one-third of the total recovery, even if a proper stipulation or judgment attributes a smaller percentage to medical expenses.

Op. at 9-10.

Justice Kennedy said that North Carolina gave no limiting principle, and by its reckoning it could have set a much higher portion as its default--thus recouping much more than actual medical expenses paid. 

Justice Breyer concurred, emphasizing that the Centers for Medicare & Medicaid reached the same conclusion as the Court--and that the Court owed some deference to the Centers' judgment.  Justice Breyer also said that the Centers could change their position, and that the Court's "decision does not freeze the Court's present interpretation of the statute permanently into law."

Chief Justice Roberts dissented, joined by Justices Scalia and Thomas.  Chief Justice Roberts said that the federal Medicaid Act doesn't specify how states must determine actual medical expenses, even though it requires them to recoup those expenses.  In particular, he said that the Act doesn't specify a case-by-case, after-the-fact determination, as the majority does here; instead, it's flexible enough to allow states to adopt different approaches (like North Carolina's).  Chief Justice Roberts would leave it up to the Centers and the states to experiment with different ways of determining actual medical expenses.

SDS

Arguments in Arizona's Proof-of-Citizenship Requirement to Register to Vote

The Supreme Court heard oral arguments today in Arizona v. Inter Tribal Council of Arizona, the case testing whether the federal National Voter Registration Act preempts Arizona's requirement that voter applicants show additional proof of citizenship in order to register to vote.  We posted a preview here.

If the questions from the bench are any indication, this could be a very close one.  Justice Sotomayor and Kagan seemed to line up squarely behind the respondents (and against Arizona's proof-of-citizenship requirement).  Justices Ginsburg and Breyer did too, but perhaps a little less forcefully.  On the other side, Justice Scalia seemed set with Arizona on the merits (focusing on the NVRA text), but he wondered why the state didn't challenge the EAC's rejection of its state-specific proof-of-citizenship requirements earlier, right after the EAC rejected them.  Chief Justice Roberts and Justice Alito seemed to lean toward Arizona, too, largely for pragmatic reasons, suggesting that the NVRA scheme wouldn't make a lot of sense by the respondent's reading.  Justice Kennedy seemed concerned that Arizona's position could destroy the "utility of the single form" (on the one hand), but also that the Ninth Circuit applied a preemption test under the Elections Clause that was too federal friendly (on the other).  

The Justices were concerned about everything from legislative purpose behind the NVRA, to legislative language, to the role of the EAC (the administrative agency that approves the federal form and state-specific additions to it), to Arizona's failure to challenge the EAC's rejection of its state-specific citizenship requirements.  The standard for Elections Clause preemption (as opposed to more ordinary Supremacy Clause preemption) got very little attention (notably just from Justice Kennedy).

Justices Sotomayor and Kagan seemed to be the most active and skeptical in questioning Arizona's attorney.  They asked whether Arizona's additional citizenship requirements wouldn't undermine the purpose of the NVRA, to ease and simplify voter registration; whether Arizona is actually accepting and using the federal form (as required by the NVRA), especially when it apparently rejects mail-in ballots that don't satisfy Arizona's extra citizenship requirements; and whether Arizona's position would make the federal form "just another hoop to jump through."  (Those were Justice Kagan's words.  Justice Kennedy earlier suggested a similar sentiment--"But otherwise, the whole utility of the single form is missing--is gone"--but framed it as a question about what opposing counsel would argue.)  

Justice Breyer wanted to know how Arizona accepted and used the federal form's attestation-under-perjury requirement, again, as required by the NVRA, suggesting that Arizona wasn't accepting and using it, and therefore not complying with the NVRA.

Justice Scalia asked why Arizona didn't challenge the EAC's rejection of its state-specific citizenship requirements earlier--after the EAC rejection, and not now, only after voters challenged Arizona's requirements.

On the other side, Justice Alito wondered how the federal form alone could ensure that an applicant was qualified--giving an example of a minor who completed and signed the form--suggesting that the federal form alone wasn't sufficient.  Justice Scalia looked to the language of the NVRA--states "may require only"--and argued that the "may" made it permissive--and that state's therefore could add requirements.  Chief Justice Roberts and Justice Alito wondered whether under the respondent's reading and the government's reading the NVRA wouldn't create an unworkable system, with the possibility of a state-form voter registration list and a federal-form voter registration list in each state.

Chief Justice Roberts asked whether the respondent's reliance on the EAC's decision to reject Arizona's request to include its citizenship requirement wasn't undermined by the EAC's bad decision (according to respondent) allowing Louisiana to supplement the requirements on the federal form.  (Arizona first raised Louisiana's state-specific requirement, approved by the EAC, to include a driver's license number or Social Security number or, if neither is available, to attach certain other documents as an argument that a requirement for additional documents does not violate the NVRA.  The Court spent some time trying to figure out if the parties thought this was a good decision, and, if so, why Louisiana's requirement is the same or different than Arizona's.)  

SDS

Can States Require Proof of Citizenship to Vote?

Arizona is once again before the Supreme Court, on Monday, with a major federalism case, this time testing whether federal law preempts the state's efforts to add a proof-of-citizenship requirement, over and above the federal requirement, to its voter registration application.  The case, Arizona v. Inter Tribal Council of Arizona, asks whether the preemption standard under the Elections Clause is the same as the ordinary preemption standard under the Supremacy Clause, and whether the National Voter Registration Act preempts Arizona's proof-of-citizenship requirement.  

The former issue--going to the standard of preemption under the Elections Clause--is an important one.  The Court puts a thumb on the scale against preemption in ordinary Supremacy Clause preemption cases.  This case will tell us whether states get that thumb in Elections Clause cases, too.  If so, and if the Court rules Arizona's proof-of-citizenship requirement not preempted, we're likely to see certain states move toward more requirements like Arizona's, making it tougher for certain citizens to vote.

Here's an excerpt from my preview of the case in the ABA Preview of United States Supreme Court Cases (with permission):

ISSUE

 May Arizona require applicants for voter registration to provide additional evidence of U.S. citizenship without conflicting with the requirements of the National Voter Registration Act?

FACTS

Congress enacted the National Voter Registration Act, the “NVRA,” or the “Motor Voter Act,” in 1993 in order to enhance voter participation by eligible citizens in federal elections while at the same time protecting the integrity of the electoral process. To these ends, the NVRA requires states to accept three kinds of registration applications from would-be voters in federal elections. First, the NVRA requires states to treat any application for a driver’s license as an application for voter registration. Next, it requires states to accept mail-in applications. Finally, the NVRA requires states to accept in-person applications at sites designated by state law.

In connection with these three methods, the NVRA provides for the creation of certain voter registration applications. Thus the NVRA requires states to create a combined driver’s license and voter registration application form commonly called the “Motor Voter Form.” (The Motor Voter Form is not at issue in this case.) The NVRA also directs the U.S. Election Assistance Commission, the “EAC,” to create the Federal Form, a nationally uniform voter application that applicants can use to register by mail or in person at designated locations. The NVRA requires that the Federal Form “shall include” a statement that specifies each eligibility requirement (including citizenship), contains an attestation of eligibility, and requires the applicant’s signature. It says that the Federal Form “may not include any requirement for notarization or other formal authentication.” And it says that the Federal Form “may require only such identifying information . . . and other information as is necessary to enable the appropriate state elections official to assess the eligibility of the applicant.” The NVRA requires states to “accept and use” the Federal Form, but it also allows a state to “develop and use” its own form, so long as the state form meets all of the NVRA criteria for the Federal Form. (Even if a state develops and uses its own form, however, the NVRA still requires every state to “accept and use” the Federal Form.) Moreover, a state may ask the EAC to add state-specific instructions to the Federal Form.

The EAC-created Federal Form specifies each eligibility requirement, including U.S. citizenship, but does not, by its plain terms, require proof of citizenship. Thus the Federal Form requires an applicant to tick a box that says that the applicant is a U.S. citizen and to swear or affirm, by signature, that he or she is a U.S. citizen and that “the applicant, to the best of his or her knowledge and belief, meets each of his or her state’s specific eligibility requirements.” The Federal Form’s state-specific instructions for Arizona require an applicant to include the number of his or her valid Arizona driver’s license or non-operating identification license, or the last four digits of his or her Social Security number. The state-specific instructions say that if an applicant does not have these numbers, “[a] unique identifying number will be assigned by the Secretary of State.” (The Federal Form, with Arizona’s state-specific instructions, is here.) In short, the Federal Form relies on an applicant’s attestation, without further proof, to determine U.S. citizenship. Arizona’s state-specific instructions only require proof if an applicant has an Arizona driver’s license or identification license, or a Social Security number.

In 2004, Arizona sought to add a proof-of-citizenship requirement. Thus Arizona voters approved Proposition 200, requiring applicants for voter registration to provide evidence of U.S. citizenship beyond the attestation requirement and the state-specific instructions in the Federal Form. In particular, Proposition 200 says that an applicant must provide his or her driver’s license number, non-operating identification number, a number associated with Native American tribal status, his or her certificate of naturalization number, or a legible photocopy of his or her U.S. birth certificate or passport. (Proposition 200 also requires registered voters to present identification in order to cast their ballots at the polls. The voter-ID component of Proposition 200 is not at issue in this case.) By its terms, this proof-of-citizenship requirement applies to both the federal form and to Arizona’s state form.

About a year after Arizona voters enacted Proposition 200, the U.S. Department of Justice precleared it under the Voting Rights Act. Arizona then asked the EAC to include its proof-of-citizenship requirement on the state-specific instructions on the federal form. The EAC declined. (The Executive Director of the EAC initially declined the request, stating that the NVRA preempted the requirement. The full EAC later upheld this decision.)

Nevertheless, Arizona implemented the new proof-of-citizenship requirements in Proposition 200 with respect to its state-specific voter registration application form and with respect to the Federal Form. As to the state-specific form, Arizona now specifically requires the proof of citizenship specified in Proposition 200. Its instructions say that an applicant must provide a driver’s license or non-operating identification license number, or, if those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Indian tribal membership. The instructions say that without this proof of citizenship, “the form will be rejected.” (Arizona’s state specific form is here.) As to the Federal Form (which, again, did not change in the wake of Proposition 200), Arizona officials now ask Federal Form applicants for evidence of citizenship pursuant to Proposition 200 whenever their Federal Form does not include such evidence of citizenship.

Just to be clear: Before Proposition 200, Arizona required only a driver’s license or non-operating identification license, or, when those were not available, a “unique identifying number . . . assigned by the Secretary of State,” in order to register to vote. After Proposition 200, Arizona now requires a driver’s license or non-operating identification license, or, when those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Tribal membership. Thus Proposition 200 added a significant proof-of-citizenship requirement, but only for those applicants who do not have a driver’s license or non-operating identification license.

Soon after Proposition 200 passed, two groups of plaintiffs sued, arguing, among other things, that the new proof-of-citizenship requirements were preempted by the NVRA. In particular, the plaintiffs argued that the new proof-of-citizenship requirements went beyond the requirements of the NVRA in a way that conflicted with the NVRA. In a first round of litigation, the plaintiffs’ case went to the Supreme Court on preliminary motions, and the Court remanded it for a determination on the merits. In the second round, on remand, the district court ruled in favor of Arizona on the plaintiffs’ preemption claim. The Ninth Circuit reversed. This appeal followed.

CASE ANALYSIS

This case tests the boundary between congressional authority and state authority in the special context of regulation of federal elections. That boundary is set in the Constitution’s Elections Clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” In other words, states get the first crack at regulating the mechanics of federal elections, but Congress has ultimate authority to override, or preempt, state regulation. The framers gave Congress this special power over federal elections in order to safeguard against potential state efforts, through manipulation of their election laws, to undermine the national government. (At the extreme, the framers were concerned that states could frustrate the very creation of the national government by neglecting to hold federal elections.) Here, the Elections Clause governs, because Congress enacted the NVRA pursuant to its Elections Clause power.

The Supreme Court first examined congressional authority to preempt state law under the Elections Clause in Ex Parte Siebold, 100 U.S. 371 (1879). The Court in that case said that federal law preempts state law whenever they conflict: “the laws of the State, in so far as they are inconsistent with the laws of Congress on the same subject, cease to have effect as laws.” Over a century later, the Court in Foster v. Love, 522 U.S. 67 (1997), reaffirmed this principle and held that federal law setting the date for congressional elections (the Tuesday after the first Monday in November) preempted a Louisiana statute that established an open primary in October with a run-off on Congress’s specified election day only if the primary failed to produce a majority candidate.

While Siebold and Foster go specifically to Elections Clause preemption, the Court has also developed an approach to preemption under the Supremacy Clause. According to that approach, the Court seeks to preserve the “delicate balance” between the states and federal government, especially in those areas traditionally under state control. Thus under Supremacy Clause preemption the Court applies a “presumption against preemption” and holds that federal law preempts state law only when it is the “clear and manifest” purpose of Congress to do so. In short, the Court puts a thumb on the scale against preemption in its Supremacy Clause analysis.

The Court has not specifically said whether its approach to preemption under the Supremacy Clause applies also to preemption under the Elections Clause. If so, Congress would face a higher bar in preempting state law under the Elections Clause; if not, Congress could more easily preempt state law.

The parties dispute this, with Arizona arguing for the higher Supremacy Clause standard, and the plaintiffs-respondents arguing for a lower preemption standard. They also dispute whether under either standard Proposition 200 actually conflicts with the NVRA, and thus whether the NVRA preempts it.

[Summary of specific arguments omitted.]

SIGNIFICANCE

This case tests the boundary between congressional authority and state authority in the special context of the Elections Clause. The Supreme Court has not ruled directly on this issue; in particular, it has not specifically set a standard for federal preemption of state law under this Clause. Thus this case is important because the Court’s ruling will (at least partially) fill this void and tell us something about the scope and extent of congressional authority, and therefore the scope and extent of state authority, under this Clause.

That, in turn, is important, because it will set the standard for federalism in relation to regulation of federal elections. If the Court borrows and applies the standard for preemption under the Supremacy Clause—with all its deference to state sovereignty, in the interest of maintaining the “delicate balance” between the states and federal government—the states could have more latitude to regulate elections, even affecting the composition of the federal government. (Various state efforts to strategically manipulate voting requirements in the 2012 elections in order to seek political advantage in federal elections stand as a stark and recent reminder of how state regulation could affect the federal government—exactly what the framers were concerned about.) But on the other hand if the Court applies a lower standard, one without deference to state sovereignty or considerations of federalism, the ruling could restrict the states in how they regulate elections, even restricting states from imposing additional proof-of-citizenship requirements (as in this case).

Still, the standard that the Court sets for preemption may be distinct from its ruling on preemption in this case. Whatever standard the Court adopts, its ruling in this case will tell us how much flexibility states have in adding to the NVRA requirements. If the Court holds that the NVRA does not preempt Proposition 200, this could invite states to impose all manner of additional requirements, potentially undercutting the congressional purpose of uniformity in voter registration in the NVRA and, again, potentially affecting the very composition of the federal government. But if the Court holds that the NVRA preempts Proposition 200, the ruling will restrict states in imposing additional requirements and will underscore national uniformity in voter registration.

In the end, whatever the Court rules, Congress could get the last word. That’s because Congress can always go back and rewrite its legislation in response to any preemption ruling from the Court. Here, Congress could rewrite the NVRA to more explicitly preempt state requirements like those in Proposition 200 (on the one hand), or to allow those requirements (on the other). In this way, Congress could effectively undo any decision in this case. The Court’s ruling will be important, to be sure, but it will not necessarily be the final decision on this issue.

Outside of these considerations, this case is also important because it comes to the Court just one month after the Court heard oral arguments in Shelby County v. Holder, testing the constitutionality of the preclearance provision in the Voting Rights Act. A bare majority of justices seemed skeptical in those arguments that preclearance and the related coverage formula were still necessary in 2013 to enforce the constitutional prohibitions against voting discrimination. In particular, a number of justices expressed concern about congressional infringement on state sovereignty and equality among the states. Between this case and Shelby County, we will learn quite a bit about where the Roberts Court stands on federalism and voting rights.

This case also comes just a year after Arizona v. U.S., 567 U.S. ___ (2012), another case testing Arizona’s authority, as against the federal government, to regulate non-citizens, when the regulation spills over and affects how Arizona treats U.S. citizens. Arizona v. U.S. involved the state’s efforts to clamp down on illegal immigration by authorizing its officers to check the immigration status of individuals that they detain and to regulate undocumented aliens in various ways. That case was a partial victory for Arizona and a partial victory for the United States. This case is yet a different test of Arizona’s authority, as against the federal government, to address illegal immigration.

SDS

 

"Equality of States" in the VRA Challenge

"Equality of the states" reared its head recently in oral arguments in Shelby County v. Holder, the case testing congressional authority to reauthorize the preclearance provision of the Voting Rights Act.  The traditionally conservative Justices all (save Justice Thomas) expressed different concerns related to the provision's different treatment of the states--or, how preclearance violates the principle of "equality of the states."  (Preclearance under Section 5 of the VRA applies only to covered jurisdictions under Section 4(b) of the VRA.  Only covered jurisdictions, not all states, are required to preclear their election law changes with DOJ or the D.C. District court.)  

But where does this idea of equality of the states come from?

David Gans over at the Constitutional Accountability Center draws on a recent piece by Adam Liptak and argues that Congress violates a principle of equality of the states all the time--most notably by providing dramatically different levels of funding, per capita, to different states.  Nobody makes a constitutional case out of this.  

Moreover, Gans argues that "[t]he Supreme Court has never interpreted the Constitution to require equality among the states outside the very narrow context of the admission of new states.  It is now black letter law that 'the doctrine of equality of states . . . applies only to the terms upon which the states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.'"

For more on that point, and how the Court mangled the "equality of the states" quote in Northwest Austin Municipal Utility District v. Holder, check out Zachary Price's contribution to the SCOTUblog symposium on Shelby County, and Federalism and the Voting Rights Act at the ACS blog.

SDS

Divided Fourth Circuit Panel Declares Virginia's Sodomy Law Unconstitutional: A Decade After Lawrence v. Texas

William Scott MacDonald was arrested more than a year after Lawrence v. Texas (2003), for solicitation to violate Virginia's (anti-)sodomy law, Va. Stat §18.2-361(A): "If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]"  He was eventually sentenced to ten years, with nine years suspended, and thereafter compelled to register as a sex offender.  His life, as Adam Liptak reported in 2011, has not been easy.

The underlying problem is the often-called "caveat language" in Justice Kennedy's opinion in Lawrence v. Texas:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In MacDonald's situation, the solicitation - - - all parties agree no sex actually occurred - - - was found to be of a 17 year old woman.  (Interestingly, the 47 year old MacDonald had originally contacted law enforcement alleging that the young woman had sexually assaulted him; he was also convicted of the misdemeanor of making a false report.)  The prosecution thus successfully argued that Lawrence v. Texas was inapposite since the Virginia statute - - - as applied - - - was constitutional.  This argument succeeded even though the the age limit in the solicitation statute was 15, not 18.  

The Commonwealth of Virginia was similarly successful in its arguments in state courts on direct appeal and postconviction relief.  MacDonald thereafter sought federal habeas relief, with the district judge rejecting the constitutional arguments.

The Fourth Circuit's opinion yesterday in MacDonald v. Moose belatedly provides relief for MacDonald.  The panel majority wrote that "we are constrained" to  find an entitlement to habeas corpus relief on the ground that the Virginia anti-sodomy provision "facially violates the Due Process Clause of the Fourteenth Amendment."   The Fourth Circuit's opinion seems at times quite deferential to Virginia, but at two points the opinion sharpens its rhetoric.

First, the panel points to an inconsistency in Virginia's treatment of MacDonald:

The Commonwealth’s efforts to diminish the pertinence of Lawrence in connection with MacDonald’s challenge to the anti-sodomy provision — an enactment in no way dissimilar to the Texas and Georgia statutes deemed unconstitutional by the Supreme Court — runs counter to Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005). In that case, the Supreme Court of Virginia evaluated the constitutionality of a state statute having nothing to do with sodomy, but instead outlawing ordinary sexual intercourse between unmarried persons. The state supreme court nonetheless acknowledged that Lawrence was sufficiently applicable to require the statute’s invalidation.

Second, in a footnote the panel majority expressed its disagreement with the dissent in terms that questioned Virginia's prosecutorial choices:

The dissent’s finely honed distinction that, unlike Lawrence and Bow- ers, this "case" involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely solicited an underage female to commit an act that is not, at the moment, a crime in Virginia. The Commonwealth may as well have charged Mac- Donald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal, in usurpation of the powers properly reserved to the elected representatives of the people.

Yet despite this outcome, and the amicus brief the case attracted, it is difficult not to believe some apology is yet owed to MacDonald.

RR
[image via]

Daily Read: Tolson on VRA's Section 5 and - - - Section 2 of the Fourteenth Amendment

The controversies surrounding the Court's impending decision in  Shelby County v. Holder regarding the constitutionality of the Voting Rights Act's "preclearance" provision (section 5) have been exacerbated by Justice Scalia's remarks about "racial entitlement."  Seemingly, at issue for the Justices - - - originalist and otherwise - - - is the meaning of the enforcement clauses of the Fifteenth and Fourteenth Amendments: "The Congress shall have power to enforce this article by appropriate legislation."

In a provocative new article, A Structural Theory of Elections, available in draft on ssrn, ConLawProf Franita Tolson (pictured) seeks to redirect our attention to section 2 of the Fourteenth Amendment:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Tolson's attention is not to the language that first introduced gender into the Constitution ("male inhabitants") or to the change in counting those male inhabitants ("excluding Indians") or to the subsequent change in voting age, but to the broad ability of Congress to change the apportionment for voting rights violations.  She argues that this previously under-emphasized language makes the Court's "congruence and proportionality" standard for evaluating Congressional power inapplicable in the voting and election contexts.

Tolson's article is a closely reasoned and excellently researched argument for the broad enforcement powers of Congress intended by the Framers of the Fourteenth and Fifteenth Amendments.  She ultimately contends "that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments."

Tolson's article is certainly worth a read for anyone considering the issues at the heart of Shelby County v. Holder.

RR

Court Seems Poised to Overturn Voting Rights Act

The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act.  If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.

Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws.  This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race.  This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination.  (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA.  Section 2 is not at issue in this case.)

Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments.  In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws.  Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.

The arguments were lively, to say the least.  The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine.  And they all seemed to have their minds made up, more or less.  If there are swing votes, look to Chief Justice Roberts or Justice Kennedy.  Although they seemed set in their positions, they seemed perhaps the least set.  

Substantively, there were few surprises.  Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument).  So these points that came up today are familiar:

• Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
• Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
• Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
• Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
• Whether with a string of reauthorizations preclearance will ever not be necessary.

On this last point, it was clear that for some justices the government was in a tough spot.  On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide.  But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary.  (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)

All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.  

This doesn't mean, necessarily, that the whole scheme will go down.  There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b).  But this result would likely doom the whole scheme, in fact.  That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country.  Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.

There was a low point.  Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:

Now, I don't think that's attributable to the fact that it is so much clearer now that we need this.  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.  It's been written about.  Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

It's not exactly clear what's the "racial entitlement" in Section 5.  Section 5 is simply not an entitlement provision.  But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race?  If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes."  As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.

SDS