Constitutional Law Prof Blog

Can States Limit Government Information to Their Own Citizens?

The Supreme court heard oral arguments yesterday in McBurney v. Young, a case testing whether a state's freedom of information law, or FOIA, can limit access to government information to its own citizens consistent with the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause.  (Together these provisions restrict states in discriminating against out-of-staters in the exercise of fundamental rights or important economic interests, or in interstate commerce.)  The case was brought by two out-of-staters against Virginia after the state denied them access to records related to the state's enforcement of a child support order and state property records collected for clients as part of a business.  Virginia is one of only three states that restricts its FOIA records to in-staters.

The case is tough, because it's not obvious that Virginia's restriction is a restriction on interstate commerce (in violation of the Dormant Commerce Clause), and it's not obvious that the access that the petitioners seek is the kind of right that they, as out-of-staters, should enjoy with respect to Virginia.

The questions from the bench went right to these points.  The Court was concerned about whether Virginia's restriction was, in fact, a restriction on commerce,  or whether it was merely a law, not a commercial regulation, that had at most an incidental effect on interstate commerce.  (The Dormant Commerce Clause points go to the property-records seeker, not the child-support seeker.)  In other words: does the Dormant Commerce Clause even apply, given that this may not be a regulation of commerce?

Justices were also concerned about the magnitude of the effect, on both sides.  As to the petitioners, they wondered why the cost to the petitioner wasn't negligible.  After all, any out-of-stater could simply hire an in-stater for a nominal fee to file their request and thus dodge the restriction.  As to the state, they wondered why the cost to the state in providing equal access to its records was significant.  The burden of addition requests from out-of-staters didn't seem to be much.

Finally the Justices wondered whether Virginia shouldn't be allowed to restrict access to its records, given that its law is designed to provide access to government information to ensure good government--a concern that applies uniquely to Virginians.  On this point, several Justices compared the right to access to the right to vote, and noted that out-of-staters don't get it.  In short: Shouldn't Virginia be able to keep its records to its own state citizens?  The question goes at least in part to the purpose of Virginia's FOIA--to provide information on governance (as the state would have it), or to restrict information in restraint of free trade (as the petitioner argued).

The parties didn't provide terrific answers to any of these questions.  But counsel for the petitioner did note that the challenge was as applied, not facial.  This could allow the Court to rule narrowly in favor of this individual, without overturning the restriction as to anyone else.  But even that result seems likely only if the Court can get over two threshold problems.  First, the restriction is not a direct discriminatory regulation of interstate commerce (even if it may have an indirect effect on interstate commerce in this case).  Next, Virginia is certainly able to restrict some of its state functions to its own citizens.  The question for the Court: Is this one of them?

SDS

Daily Read: Deirdre Bowen on DOMA and Empiricism

Does the Defense of Marriage Act (DOMA) accomplish the purpose of defending opposite-sex marriage?  This question, or at least some version of it, is at the heart of the Supreme Court's consideration of United States v. Windsor, as well as of Hollingsworth v. Perry to the extent that Prop 8 is considered a state DOMA.

In a new article, I Wanna Marry You: An Empirical Analysis of the Irrelevance and Distraction of DOMAs, available in draft on ssrn, LawProf Deirdre Bowen (pictured) argues that the numbers simply don't add up to providing support for the proposition. 

As her central task, Bowen takes as her comparators states with DOMAs, including constitutional amendments and statutes,  and states without DOMAs  and examines their marriage and divorce rates from 1999-2010 to discover whether DOMA correlates with marital stability and strength.   Her analysis "suggests that DOMA states do not fare any better than non-DOMA states in terms of the strengthening  marriage" and in fact, "DOMA states tend to have lower marriage rates, larger declines in the trend towards marriage, and greater divorce rates."

Her empirical query answered, Bowen the contends that not only is DOMA irrelevant, it serves as a distraction from the real threats that certain economic and social policies pose to family stability, especially with regards to children.  Whatever the Court decides, she implies, will not be sufficient to solve the problem of family volatility.

RR

Daily Read: SCOTUS Website on DOMA and Proposition 8

The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act  and California’s Proposition 8 cases,"  or   "DOMPRP8."

It promises to be helpful, with "live links to the orders, case filings, and other information pertaining to the Defense of Marriage Act and California’s Proposition 8 cases."   

The disclaimer is worth a look:

Disclaimer: We have provided a link to this site because it has information that may be of interest to our users.  The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.

RR

Fifth Circuit Strikes State Anti-Spoofing Law

The Fifth Circuit earlier this week ruled in Teltech Systems, Inc. v. Bryant that Mississippi's Caller ID Anti-Spoofing Act was preempted by the federal Truth in Caller ID Act of 2009.  The ruling strikes Mississippi's law, until and unless Mississippi successfully appeals.

Mississippi's Caller ID Anti-Spoofing Act prohibits a person from entering false information into a telephone caller identification system with the intent to deceive, defraud, or mislead the recipient of a call.  (Think solicitations that come up as an apparently legitimate local residential or cell phone number.)  Plaintiffs, organizations that provide third-party spoofing services, sued, arguing that the Act violated free speech and the dormant Commerce Clause, and that it was preempted by the federal Truth in Caller ID Act.  The court ruled only on this last claim.

The federal TCIA makes it unlawful for any person "to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value."  47 U.S.C. Sec. 227(e)(1).  

Preemption turned on the Mississippi ACA's sweep.  As the court explained, the Mississippi ACA sweeps somewhat broader than the TCIA, as it bans not only "harmful" spoofing but also "non-harmful" spoofing (done simply to deceive or mislead, but not to harm).  There was good evidence that Congress not only did not ban non-harmful spoofing, but sought to protect it.  "Congress apparently regarded some forms of spoofing worthy of protection from more restrictive state regulation."  Op. at 10.

Thus, said the court, the TCIA preempted the state ACA.  The court explained, drawing on Arizona v. United States, the immigration-and-preemption case from last Term:

Arizona v. United States is illustrative.  The Immigration Reform and Control Act of 1986 subjects employers who hire unauthorized aliens to criminal and civil sanctions, but imposes no such penalties on the hired unauthorized aliens.  An Arizona statute . . . went further, making it a misdemeanor for unauthorized aliens to apply for, or solicit, work.  Although the Arizona statute advanced the same goal as IRCA--preventing hiring unauthorized aliens--the Court held the Arizona statute's enforcement scheme conflicted with the federal regulatory scheme.  Examining the "text, structure, and [legislative] history of IRCA," the Court held the Arizona statute posed an obstacle to "the careful balance struck by Congress with respect to unauthorized employment of aliens."

Op. at 11 (citations omitted).  

So too with Mississippi's ACA, because it banned non-harmful spoofing, a category that Congress protected.

SDS

Nevada District Judge Rejects Challenge to Same-Sex Marriage Exclusion

In an 41 page opinion and order in Sevick v. Sandoval, United States District Judge Robert Jones has rejected an equal protection challenge to Nevada's statutory scheme disallowing same-sex marriage. 

The judge relied upon Baker v. Nelson, 409 U.S. 810 (1972), in which the United States Supreme Court summarily dismissed an equal protection challenge to the Minnesota statutory marital scheme's exclusion of same-sex couples.  While stating that the "present challenge is in the main a garden-variety equal protection challenge precluded by Baker," the judge was undoubtedly aware of Baker's problematic status (a case to be relegated to the dustbin of precedent, perhaps), and provided a full analysis, "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."

The judge's well-structured analysis begins with a discussion of the classification, considering the notion that the Nevada scheme makes no classification at all, as well as the notion that the scheme makes a gender classification, but settling for the widely accepted principle that the scheme makes a sexual orientation classification.

In determining the level of scrutiny to be applied, Judge Jones decides in favor of rational basis, noting his disagreement with the Second Circuit in Windsor involving DOMA.  Supporting this conclusion, Judge Jones highlights the factor of political powerlessless and its relationship with the judicial role in a democracy.  For example, Jones writes that "Any minority group can reasonably argue that its political power is less than it might be were the group either not a minority or more popular. That is simply an inherent aspect of democracy."   Additionally, "Gross movements by the judiciary with respect to democratic processes can cause an awkward unbalancing of powers in a Madisonian constitutional democracy."

Moreover, Judge Jones rejects the heightened rational basis of Romer v. Evans and the Ninth Circuit precedent of Perry v. Brown, involving California's Proposition 8, because there is no animus in the Nevada scheme:

Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to NRS section 122.020. That section of the NRS removed no preexisting right and effected no change whatsoever to the legal status of homosexuals when adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65 (1861–1873).

On this lowest standard of rational basis, the challenger must negate every conceivable basis - - - an exceedingly, if not impossible task, and Judge Jones not surprisingly finds that the challengers fail to meet their heavy burden.  The "protection of the traditional basis for marriage," is a legitimate one for Judge Jones, and the exclusion of same-sex couples is rationally related to that interest.  This is true even though Nevada has provided for a domestic partnership scheme for same-sex couples.

As the United States Supreme Court considers whether or not to decide the issue of same-sex marriage, either in the Proposition 8 posture of Perry v. Brown or one of the DOMA postures such as the Second Circuit case or First Circuit case - - - all of which invalidated bans on same-sex marriage - - - Judge Jones' opinion demonstrates that the constitutional issue of same-sex marriage remains a contested one, even in a state with otherwise permissive marital regulations. 

RR
[image "Little white chapel" in Las Vegas, Nevada, via]

Daily Read: Rostron on the Second Amendment After Heller and McDonald

The central argument of ConLawProf Allen Rostron's article, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, published at 80 George Washington Law Review 703 (2012), and available in draft on ssrn, received further validation with yesterday's Second Circuit opinion upholding a New York law restricting concealed carrying of firearms in public. 

Rostron (pictured) considers the range of lower court decisions resulting from challenges to state and local firearm regulations made possible by the Court's recent Second Amendment decisions.  Heller v. District of Columbia, the first "battle" in the gun wars, recognized a Second Amendment right beyond the militia, and in the second battle of 2010, the Court in McDonald v. City of Chicago, incorporated this right to the states through the Fourteenth Amendment.  However, in neither "battle" did the Supreme Court specify what level of scrutiny or test should be used to assess the validity of gun laws under the Second Amendment, leaving the lower courts to struggle with this issue.

Rostron's contribution is his engagement with the third "battle": the interpretation and application of Heller and McDonald in the lower courts.  He argues that the third phase of the fight over the right to keep and bear arms is moving toward an unusual result, with these decisions reflecting the "pragmatic sentiments of Justice Breyer’s dissenting opinions in Heller and McDonald,"  rather than the majority, plurality, or concurring opinions that are long on history and rhetoric and short on doctrine or guidance. 

Rostron is candid about his own preferences and equally candid that the politics or doctrine could shift, including the Court's grant of certiorari in an additional case in order to promulgate a strict scrutiny standard.  For now, however, Rostron's compelling article demonstrates that Breyer's dissent operates in many ways as a majority opinion.

Of course, if Breyer's view had prevailed in the controversial 5-4 decisions in Heller and McDonald, the federal courts would not be busily adjudicating these Second Amendment challenges.

RR

Second Circuit on Second Amendment: New York's Gun Licensing Limitation for Concealed Handguns Is Constitutional

In a unanimous opinion today, a Second Circuit panel in Kachalsky v. County of Westchester upheld New York's requirement that applicants prove “proper cause” to obtain licenses to carry handguns for self-defense under New York Penal Law section 400.00(2)(f).  

Affirming the district judge, the panel interpreted the Supreme Court's controversial Heller v. District of Columbia 2008 decision, as well as the subsequent McDonald v. City of Chicago opinion holding that the Second Amendment right recognized in Heller was incorporated to the states through the Fourteenth Amendment. (Recall that four Justices in McDonald ruled incorporation was through the due process clause, with Justice Thomas concurring in the result, but contending incorporation occurred through the privileges or immunities clause).

One of the issues left open by Heller and McDonald was the level of scrutiny to be applied to gun regulations. The plaintiffs, represented by Alan Gura, familiar from both Heller and McDonald, argued that strict scrutiny should apply. In rejecting strict scrutiny, the Second Circuit panel emphasized that the New York regulation at issue was not within the core interest protected by the Heller Court's interpretation of the Second Amendment - - - self-defense within the home - - - but was a limitation of concealed weapons permits to those who could demonstrate a "special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession."  The panel also rejected the plaintiffs' argument that the concealed carry permits were akin to prior restraint under the First Amendment. The court stated, "“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence. Indeed, no court has done so.” (emphasis in original).  Later in the opinion, the court provided an even more convincing argument:

State regulation under the Second Amendment has always been more robust than of other enumerated rights. For example, no law could prohibit felons or the mentally ill from speaking on a particular topic or exercising their religious freedom.

Recall that even the majority opinions in Heller and McDonald maintained that prohibiting felons or the mentally ill from possessing guns was consistent with the Second Amendment.

The Second Circuit decided that "intermediate scrutiny" was "appropriate in this case":  "The proper cause requirement" of the New York law "passes constitutional muster if it is substantially related to the achievement of an important governmental interest." 

The substantial (and indeed compelling) governmental interests were "public safety and crime prevention," as the parties seemed to agree.  As to the substantial relationship, the court noted that the "legislative judgment" surrounding these issues was a century old and that the proper cause requirement was a "hallmark" of New York's handgun regulation since then.  The court also noted that the law was not a ban, but a restriction to those persons who have a reason to possess a concealed handgun in public.  New York did submit more current studies, and the court credited these even as it stated that the decision was clearly a policy one for the legislature.  Heller did not, the court ruled, take such "policy choices off the table."

The Second Circuit's opinion is doctrinally well-reasoned, but also a deliberate engagement with the history of gun regulation.  In the very beginning of its analysis, the opinion states

New York’s efforts in regulating the possession and use of firearms predate the Constitution. By 1785, New York had enacted laws regulating when and where firearms could be used, as well as restricting the storage of gun powder.

The court returns again and again to the history, in New York and elsewhere, even as it reiterates that history does not answer the question.

The Second Circuit thus joins the surfeit of courts upholding state gun restrictions, including most recently the Fifth Circuit, despite Heller and McDonald.

RR
[image" The Knotted Gun," sculpture in NYC outside UN, via].

Perea on Recognizing, Teaching the Pro-Slavery Constitution

Prof. Juan Perea (Loyola Chicago and visiting Lee Chair at John Marshall) argues in his excellent piece Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution that con law profs, unlike historians, do a bad job with slavery.  In particular, he says that law profs do a bad job even recognizing the pro-slavery origins of our Constitution, much less teaching them.  He says that this neglect and dishonesty about so central a part of our Constitution prevents us all from critically examining how the pro-slavery nature of our Constitution influences contemporary doctrine and debates.  And, importantly, he tells us what we can do about it.

Perea's piece, published in the Michigan Law Review, starts as a book review of George William Van Cleve's A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic.  But Perea moves quickly into an examination of how--or even whether--contemporary constitutional law instruction addresses anything at all about slavery--the issue that Van Cleve shows played a defining role in our constitutional beginnings.  Perea surveys some of the top casebooks and concludes that they barely touch the issue.  Even when they do, they pay only scant attention to it, apparently assuming either that it wasn't really that important to the framing and ratification, or that that the Reconstruction Amendments solved the problem.  This lack of attention to so critical an issue is particularly vexing in a field that otherwise takes history and tradition so seriously.

Perea argues that the pro-slavery Constitution is reflected in structural racism, Court-crafted doctrine (perhaps most especially the Court's demand for proof of intent to show an equal protection violation, although there are dozens of doctrinal examples), the intentional use of race-neutral language in the law to produce a racially targeted harm, and the consistent sacrifice of black equality rights for the sake of political union.  We may teach these things, and we may even teach them critically.  But we mostly don't teach them as what they are: outgrowths of a pro-slavery foundational document.

Perea has some ideas about what to do about this.  In short: say more.  Casebooks should devote more attention to the pro-slavery Constitution, and to tie it to contemporary doctrine.  Teachers should say more--much more--about it and teach it as part of our history, tradition, and doctrine.  Until the casebooks catch up, Perea offers some suggestions and resources for integrating slavery into their classes.  

The easiest way may just be this: Assign our students Perea's article.

SDS

More Secession

Given that citizens of Texas have petitioned to secede from the United States, it is not surprising that people in the city of Austin have filed a petition on the same "We The People: Your Voice in Government" page, but  "petitioning" to secede from Texas.

And then there is El Paso; a petition is entitled  "Allow the city of El Paso to secede from the state of Texas. El Paso is tired of being a second class city within Texas," providing "El Paso has little in common with the rest of Texas. Its demographics are more similar to New Mexico. El Paso is also proud to be part of the United States and wants no part of a state whom publicly contemplates secession from our great nation."  Other petitions seek to keep the United States "united."

Secession has even caught on in a neighborhood of Brooklyn wishing to secede from another neighborhood, echoing previous rumors (and humor) that Long Island might secede from New York.

While secession does have a history - - - the Civil War - - - it is difficult to take the current talk very seriously.

RR

 

Texas Secession Redux

As the secession discussion continues, prompted by "petitions" on a White House website as we discussed, it's worth reconsidering Texas' previous secession which was considered by the United States Supreme Court in Texas v. White in 1869.  The underlying issue was ownership of bonds, but resolution depended upon Texas' status. 

The Court was forthright about the "rebellion" and armed conflict, but deemed the Union "perpetual" and any acts by a state to break such a bond "null."  There is however, the possibility of "revolution" - - - or, perhaps more intriguingly, "consent of the States."

 

 

Here are the central passages from Texas v. White:

[During the Civil War], the relations of Texas to the Union were broken up, and new relations to a new government were established for them.

The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion, which these events made inevitable. During the whole of that war there was no governor, or judge, or any other State officer in Texas, who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State, except under the immediate protection of the National military forces.

Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?

It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States.

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that "the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States." Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners.

RR
[image via]

Constitutionalism and Jobs

In New York City on Friday:

 

RR

Petitioning for Secession

Some people in more than a few states have begun to "petition" to secede from the United States.  Secession does come up from time to time; Texas has been a notable candidate, and in the intrastate context, there were even rumors (and humor) that Long Island might secede from New York. 

The most recent "attempts" occur on the White House House website, on its "We The People: Your Voice in Government" page.  The page quotes the First Amendment, including the petition clause (Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances).   The page explains:

The right to petition your government is guaranteed by the First Amendment of the United States Constitution. We the People provides a new way to petition the Obama Administration to take action on a range of important issues facing our country. We created We the People because we want to hear from you. If a petition gets enough support, White House staff will review it, ensure it’s sent to the appropriate policy experts, and issue an official response.

Among the petitions, this one from Missouri seems drafted from a common template:

As the founding fathers of the United States of America made clear in the Declaration of Independence in 1776:

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

"...Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and institute new Government..."

However, the one from Arizona alters the second paragraph to state that the

citizens of the great state of Arizona have the right to stand for their principles. That man is granted unalienable rights, which are not the dispensations of the government, but find their beginnings in God and come from God alone. These are the principles that our forefathers stood for, the principles upon, which our Constitution is based, and those in which we firmly place our belief and resolve.

And the one from Tennessee simply reads "Helping the people of Tennessee."

Predictably, there is one from Texas and it stresses Texas:

The US continues to suffer economic difficulties stemming from the federal government's neglect to reform domestic and foreign spending. The citizens of the US suffer from blatant abuses of their rights such as the NDAA, the TSA, etc. Given that the state of Texas maintains a balanced budget and is the 15th largest economy in the world, it is practically feasible for Texas to withdraw from the union, and to do so would protect it's [sic] citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our founding fathers which are no longer being reflected by the federal government.

Not all the petitions are from "red" states with electoral votes going to the losing Republican candidate in last week's election: there are petitions from residents of Delaware, Pennsylvania, and New Jersey.

The constitutional significance of such petitions is dubious at best, but the goal seems to be provoking a response from the President.

RR

More here

Supreme Court Puts Voting Rights in Crosshairs

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

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

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

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

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

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

SDS

Daily Read: Non-Citizens and Constitutional Rights

The constitutional "rights" of noncitizens are now less likely to be successfully argued under equal protection theories than under federalism (preemption) or administrative agency power issues according to Geoffrey Heeren in his article Persons Who Are Not The People: The Changing Rights of Immigrants in The United States, forthcoming in 44 Colum. Hum. Rts. L. Rev. and available in draft on ssrn.

Heeren reminds us that in the 1886 case of Yick Wo v. Hopkins, the United States Supreme Court recognized the Fourteenth Amendment equal protection claims by noncitizens, including immigrants within its definition of "we the people."  Yet, although such early Supreme Court cases upheld immigrants’ right to work in the face of state restrictions, relying heavily on the logic and rhetoric of natural rights, in more recent cases such as Arizona v. United States these equality norms are missing.  Heeren argues this is a loss given the importance of "rights."  He concludes:

In this climate, perhaps the best that can be hoped is for immigrants to invoke individual rights proxies like federalism or agency skepticism. But history, even U.S. legal history, is full of sudden change. The contemporary Supreme Court may prioritize structural rights based on federalism over individual rights and administrative law claims over constitutional ones. But these currently prevailing doctrines evolved from a very different state of affairs—one in which immigrants succeeded to a remarkable extent in pressing claims as equals.

Heeren's article is worth considering not only in light of his excellent discussion of various constitutional doctrines but also in terms of the political consequences of "rights" for noncitizens.

RR
[image via]

Daily Read: Elizabeth Warren on Federalism and Administrative Constitutionalism

With the election of Elizabeth Warren to the United States Senate, today might a good time to reread her  article Unsafe at Any Rate, published in Democracy: A Journal of Ideas in 2007.

Warren was arguing for the creation of a new federal agency, the Financial Product Safety Commission.  In doing so, she not only argued in favor of regulation (using an originalist argument among others), but also argued that federal regulation was appropriate:

The credit industry is not without regulation; credit transactions have been regulated by statute or common law since the founding of the Republic. Traditionally, states bore the primary responsibility for protecting their citizens from unscrupulous lenders, imposing usury caps and other credit regulations on all companies doing business locally. While states still play some role, particularly in the regulation of real-estate transactions, their primary tool–interest rate regulation–has been effectively destroyed by federal legislation. Today, any lender that gets a federal bank charter can locate its operations in a state with high usury rates (e.g., South Dakota or Delaware), then export that states’ interest rate caps (or no caps at all) to customers located all over the country. As a result, and with no public debate, interest rates have been effectively deregulated across the country, leaving the states powerless to act. In April of this year, the Supreme Court took another step in the same direction in Watters v. Wachovia, giving federal regulators the power to shut down state efforts to regulate mortgage lenders without providing effective federal regulation to replace it.

Recall that in Watters, the Court found no merit in the Supremacy Clause (preemption) and Tenth Amendment arguments.

Warren also argued that a federal agency could intervene more successfully than Congress because "the financial services industry is routinely one of the top three contributors to national political campaigns, giving $133 million over the past five years" and thus "the likelihood of quick action to respond to specific problems and to engage in meaningful oversight is vanishingly slim."  

Although Congress eventually passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, with a FPSC agency, Elizabeth Warren was not named as its head given strong opposition to her by the Senate - the legislative body she will now be joining.

RR
[image: Elizabeth Warren via]

Daily Read: Segall on O'Connor in Grutter

As the October 10 oral argument in Fisher v. University of Texas approaches, Grutter v. Bollinger (2003) is  center stage.  Consider this critique:

Finally, at the end of Justice O’Connor’s opinion [in Grutter] upholding the law school’s racial preferences, she wrote that, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  How does Justice O’Connor know what the state of racial affairs know what the state of racial affairs will be in this country in 25 years and what authorizes her to put a sunset provision on the holding of this case?  A legislator voting for an unpopular piece of legislation might wish to place her vote in the context of a statement suggesting that a time may come when her vote will change or become necessary. But given the historical and political complexity of the affirmative action debate, for Justice O’Connor to suggest that she has some special awareness as to when race-bases measures ay no longer be necessary, and to identify that time 25 years in advance, is judicial hubris and an inappropriate and arbitrary exercise of judicial power.  In fact, it is not “judicial” at all.

It's from Eric Segall's book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges (2012). 

It is a sentiment with which others, including perhaps the now-retired Justice O'Connor, might agree, albeit in more gentle language.

Segall's chapter on "Affirmative Action" is a good review of the cases and controversies that have led to Fisher.  His critical perspective on affirmative action would counsel the Court to defer to the university's use of racial criteria. 

Segall's overall thesis - - - captured by the book's subtitle - - - provides a somewhat daunting view of the relevance of constitutional litigation in the Supreme Court, but Segall's book is ultimately an optimistic and engaging read.

RR

Supreme Court Rejects Effort to Block Texas's Interim Districting Maps

In perhaps the final chapter of the long-running saga involving Texas's congressional and state legislative districting maps, the Supreme Court yesterday denied a motion to stay the maps drawn by the Texas court after remand from the Supreme Court earlier this year in Perry v. Perez.

Here's our last post for background.  Here's a thumbnail version (with links to many of our earlier posts):

• The Texas legislature redrew its congressional and state legislative districting maps in response to the 2010 census and to ensure that districts respected the one-person-one-vote principle.
• Texas, a "covered jurisdiction," filed for preclearance under Section 5 of the Voting Rights Act, but dragged its feet through the preclearance process.  Call this the D.C. Court proceeding.
• Plaintiffs sued Texas for violating Section 2 of the VRA in federal court in Texas.  Call this the Texas Court proceeding.
• The Texas Court found a violation and redrew the maps.  Texas appealed.  The U.S. Supreme Court vacated the Texas Court's ruling and sent the Texas Court back to the drawing board.
• The Texas Court issued new maps earlier this year--new maps that were based on the original legislature's maps, with some changes.  Texas used these maps for its primaries earlier this year.  No party to the litigation challenged its use of these maps.
• The D.C. Court denied preclearance to the legislature's maps.  This left the most recent Texas Court maps as the only ones available.  (Recall that the Supreme Court rejected the first Texas Court maps.)
• Texas is planning its fall elections around the most recent Texas Court maps.

The League of United Latin American Citizens asked Justice Scalia for an emergency stay.  The Court yesterday rejected that request, without comment or dissent.

The ruling puts an end to the litigation and leaves the most recent Texas Court maps in place for the fall elections.

SDS

Judge Bolton Declines Pre-Enforcement Injunction Against Arizona's SB1070's "show your papers" Provision

Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, including the controversial "show me your papers" provision, section 2(b), has issued a new order and opinion in del Sol v. Whiting, refusing to enjoin section 2(b) in light of the Supreme Court's decision in Arizona v. United States last June. 

Recall that the Court held several sections of SB1070 preempted by federal law (thus essentially affirming Judge Bolton's initial decision, as affirmed by the Ninth Circuit), but found that Section 2(b) could be read to avoid the concerns of conflict.  While section 2(b) requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully, the Court provided several instances where 2(b) might be compatible with federal law and thus refused a pre-enforcement injunction.

Thus, on the preemption challenge, Judge Bolton's opinion is squarely within the dictates of Arizona v. United States.

However, the challengers also raised Equal Protection and Fourth Amendment challenges.  Bolton's opinion subsumes these into the preemption challenge based on the Supremacy Clause.  She quotes the Court in Arizona v. US as stating that its "opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” adding emphasis.  Yet it is unclear how the Court's opinion could possibly foreclose the "other constitutional challenges" even pre-enforcement given that the issue before the Court was solely preemption (a limitation Justice Roberts stressed at the start of the oral arguments). 

Bolton's opinion states that she "will not ignore the clear direction in the Arizona opinion that subsection 2(B) cannot be challenged further on its face before the law takes effect," but certainly the Court could not give direction, clear or otherwise, regarding issues that were not before it.

RR
[image via]

Three Judge Court on Texas Voter ID Law

In State of Texas v. Holder, a well-reasoned opinion today from a three judge court denied Texas' motion for declaratory judgment that its new voter identification law, SB 14, satisfied section 5 of the Voting Rights Act, 42 U.S.C. §§ 1973 et seq.  Although the  court ordered the parties to provide a proposed schedule to the court on the constitutional issue, the Voting Rights Act (VRA) issue was intertwined with constitutional ones, as is so often the case in VRA cases.

For example, the parties disagreed about the import of Crawford v. Marion County, (2008), in which the Court upheld Indiana's voter ID law against a facial equal protection challenge.  Texas contended that Crawford controlled, while the United States argued Crawford was "largely irrelevant."  For the three-judge court, "the correct answer lies somewhere between these two positions." Contrary to Texas’s argument, in Crawford itself, the Court noted that it was “consider[ing] only the statute’s broad application to all Indiana voters," and the Texas' SB14 poses different questions - - - "does SB 14 have discriminatory purpose or retrogressive effect?" - - - and requires focus "on the limited subset of voters who are racial and language minorities."  And, perhaps most importantly, unlike Indiana in Crawford involving a constitutional challenge, Texas bears the burden of proof under the VRA. Contrary to the position taken by the United States, however, Crawford informs the analysis of SB 14 in two important ways: purpose and effect.  

Much of the 56 page opinion discussed the evidence, with the court including this summary:

We pause to summarize the evidentiary findings we have made so far. Contrary to Texas’s contentions, nothing in existing social science literature speaks conclusively to the effect of photo ID requirements on voter turnout. Moreover, scant lessons, if any, can be drawn from Indiana and Georgia, largely because SB 14 is more restrictive than the photo ID laws adopted by either of those states. Finally, no party has submitted reliable evidence as to the number of Texas voters who lack photo ID, much less the rate of ID possession among different racial groups.  Given this, we could end our inquiry here. Texas bears the burden of proving that nothing in SB 14 “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" [citation omitted].  Because all of Texas’s evidence on retrogression is some combination of invalid, irrelevant, and unreliable, we have little trouble concluding that Texas has failed to carry its burden.

But the court went further, stating that the "record evidence suggests that SB 14, if implemented, would in fact have a retrogressive effect on Hispanic and African American voters."

This conclusion flows from three basic facts: (1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty. Accordingly, SB 14 will likely “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”

The three judge court carefully considered Texas and distinguished SB14, as well as other laws and conditions, from other states. One distinguishing feature was Texas' size.  The court's opinion attempts to strike a note of humor when discussing the requirement that would-be voters lacking photo identification would have to apply for a "election identification certificate" (EIC) at a Texas Department of Public Safety (DPS) office, and "almost one-third of Texas’s counties (81 of 254) lack" such an office:

This means that many would-be voters who need to obtain an EIC—individuals who by definition have no valid driver’s license—will have to find some way to travel long distances to obtain one. This is hardly an insignificant concern, especially given that “everything is bigger in Texas.” See, e.g., Rick Perry, Amid a Dim National Economy Texas Remains in the Spotlight, October 31, 2008, available at http://www.tradeandindustrydev.com/region/texas/amid-a-dim-national- economy-texas-remains-spotlight-554 (last visited August 28, 2012).

 The opinion then resorts to another interesting citation: 

Even the most committed citizen, we think, would agree that a 200 to 250 mile round trip— especially for would-be voters having no driver’s license—constitutes a “substantial burden” on the right to vote. Our own Federal Rules of Civil Procedure support this conclusion, specifying that witnesses are unavailable to testify if they must travel more than 100 miles to do so. See Fed. R. Civ. P. 45(c)(3).

 The court found tremendous deficiencies in the United States' evidence and arguments, but Texas' deficiencies were ultimately much more serious, even without the burden of proof.   The court found it worth detailing some of these problems:

during closing arguments, Texas’s counsel complained that they had been shouldered with an “impossible burden” in this litigation. This may well be correct, but Texas’s lawyers have only their client to blame. The State of Texas enacted a voter ID law that—at least to our knowledge—is the most stringent in the country. That law will almost certainly have retrogressive effect: it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And crucially, the Texas legislature defeated several amendments that could have made this a far closer case.

Ignoring warnings that SB 14, as written, would disenfranchise minorities and the poor, the legislature tabled or defeated amendments that would have:

• waived all fees for indigent persons who needed the underlying documents to obtain an EIC,
• reimbursed impoverished Texans for EIC-related travel costs,
• expanded the range of identifications acceptable under SB 14 by allowing voters to present student or Medicare ID cards at the polls,
• required DPS offices to remain open in the evening and on weekends,
• and allowed indigent persons to cast provisional ballots without photo ID.

Put another way, if counsel faced an “impossible burden,” it was because of the law Texas enacted—nothing more, nothing less.

[Record citations omitted].

The opinion is worth reading in full.  Its import is that Texas SB 14 voter identification law will not be in effect in November, unless the United States Supreme Court acts exceedingly quickly.

RR

Eleventh Circuit on Georgia's Immigration Statute

Sections 7 and 8 of Georgia's immigration regulation statute, known as HB 87, were enjoined by federal district Thomas Thrash in June 2011, a few months after the law was passed. 

Today, the Eleventh Circuit, in its opinion in Georgia Latino Alliance for Human Rights v. Governor of Georgia, upheld the injunction against Section 7 - - - the criminalization of transporting, harboring, or inducing to enter Georgia any "illegal alien" - - - finding the provisions preempted by federal law. The court found that the Georgia statute directly conflicted and was an obstacle to federal immigration law. 

The court, however, reversed the injunction against Section 8 - - - the "show me your papers" provision - - - relying upon the Supreme Court's June opinion in Arizona v. United States.  However, the Eleventh Circuit left open an "as applied challenge" to section 8, much as the Court did in Arizona v. US.

While the Eleventh Circuit spent a substantial portion of its 33 page opinion rejecting the state's challenge to plaintiffs' standing as well as the state's argument that there was no private cause of action under the Supremacy Clause or preemption, the preemption analysis is central and well-supported.

RR
[image of Georgia flag/map via]