Monday, January 26, 2015
The Brennan Center's Daniel Weiner recently released Citizens United Five Years Later, the Center's latest in an outstanding series of reports on Citizens United, campaign spending, and the 2014 elections.
Weiner writes that the case's biggest impact hasn't been increased corporate spending (although corporate spending has increased). Instead, Citizens United and other cases have led to a huge increase in spending by super-wealthy mega-donors:
Perhaps most important, the singular focus on the decision's empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced. Although their influence has increased, for-profit corporations have not been the most visible beneficiaries of the Court's jurisprudence. Instead--thanks to super-PACs and a variety of other entities that can raise unlimited funds after Citizens United--the biggest money (that can be traced) has come from an elite club of wealthy mega-donors. These individuals--fewer than 200 people and their spouses--has bankrolled nearly 60 percent of all super-PAC spending since 2010.
And while spending by this wealthy club has exploded, we have seen neither the increased diversity of voices that the Citizens United majority imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super-PACs spent almost as much as all 4.75 million small donors combined.
A sobering picture.
Weiner's "can be traced" parenthetical gets some attention in the report, too, where Weiner discusses dark money, "independent" groups, and reporting requirements (or the lack of reporting requirements)--all features of a post-Citizens United world.
Thursday, January 22, 2015
The Ninth Circuit ruled in Shinault v. Hawks that a state has to provide pre-deprivation notice and hearing before it freezes funds in an inmate's trust account to recover the cost of his incarceration. But at the same time, the court said that this rule wasn't "clearly established" at the time, so the defendants enjoyed qualified immunity. The court also rejected the inmate's Eighth Amendment claim.
The upshot is that prison authorities took more than $60,000 of an inmate's money--money from a settlement for a medical liability claim--in violation of procedural due process. But according to the Ninth Circuit, the inmate has no recourse against the officers.
Lester Shinault received a $107,417.48 settlement from a medical claim against a drug manufacturer who products (prescribed while Shinault was not in custody) caused him to develop diabetes. Shinault's attorney deposited the money in his inmate trust account.
Prison authorities then ordered Shinault to pay $65,353.94 to cover the cost of his incarceration. On the same day that Shinault requested a hearing, authorities transferred this amount from his trust account into a "reserved miscellaneous" sub-account in Shinault's name, but which Shinault could not access. An ALJ ruled against Shinault (in a hearing where Shinault didn't have an attorney and struggled mightily to represent himself), and about a year later authorities withdrew $61,352.39.
Shinault sued, arguing that the withdraw violated procedural due process and the Eighth Amendment. The district court granted summary judgment against him.
The Ninth Circuit held that authorities violated procedural due process under the Mathews v. Eldridge balancing test, because they failed to provide a pre-deprivation hearing prior to freezing the funds. But it also held that the violation wasn't "clearly established" at the time (because it couldn't find precedent directly on point, and because it said that procedural due process questions were fact specific, that is, not determined until a particular case is litigated), so the officials enjoyed qualified immunity.
In other words, the court said it wasn't "clearly established" that authorities had to provide a pre-deprivation hearing before freezing over $60,000.00 that Shinault obtained from a settlement with a drug company whose products caused him to develop diabetes. Because this wasn't "clearly established," the defendants enjoyed immunity, and Shinault has no claim against them for return of his money.
The court also held that authorities did not violate Shinault's Eighth Amendment rights, because "no authority supports the notion that freezing or withdrawing funds from an inmate account constitutes deliberate denial of care under the Eighth Amendment."
Wednesday, January 21, 2015
The Supreme Court heard oral arguments today in Rodriguez v. United States, the case testing whether an officer can prolong a traffic stop to conduct a dog sniff, even if the officer lacks suspicion for the sniff.
After arguments--and maybe even before--it's clear that the problem is line drawing. On balance, that maybe more of a problem for the government than for Rodriguez.
Rodriguez, represented by Shannon O'Connor, argued for a bright line rule: when the purpose of the stop is over, any after-occuring dog sniff requires new individualized suspicion or probable cause, even if the Court has held that an officer may conduct a dog sniff during the stop. The government, on the other hand, represented by Ginger Anders, argued for a de minimis extension--that the Fourth Amendment permits a reasonable de minimis extension of a traffic stop to conduct a dog sniff.
But when is the purpose of a stop over? And how to define a de minimis extension? Those problems dominated the arguments today.
O'Connor had trouble defending her bright-line rule, and even seemed to shift once or twice. She argued that an officer cannot detain a driver beyond the point when the purpose of the stop ends, even if it ends in a mere warning. But O'Connor received significant push-back from Justices Kennedy, Scalia, and Alito, all of whom presented hypotheticals designed to show that that bright line wasn't always so bright. Moreover, it wasn't clear that O'Connor's bright line really mattered. For example, Justice Scalia pointed out that an officer can investigate all kinds of things during a traffic stop--whether a driver's license is valid, whether the car is stolen, etc., even a dog sniff--and wondered why then the officer couldn't also conduct a dog sniff after the purpose of the stop ended.
Justice Kennedy seemed to push O'Connor toward an even sharper bright line, that the purpose of the traffic stop ends at the issuing of a ticket. O'Connor at one time seemed to adopt it, but that only got her in more trouble. That's because the issuing-a-ticket position has obvious problems: traffic stops don't always end with tickets, or, as Justice Alito pointed out, any clever officer would simply delay handing over the ticket until after a dog sniff. Justice Scalia pounced, Chief Justice Roberts weighed in ("What if the officer says I need to think about this for a while?"), and even Justice Ginsburg expressed reservations with the issuing-a-ticket line.
So O'Connor backed off and reverted to her earlier position that the stop ends when the purpose of the stop ends. But that position fared no better.
But if the Court had problems with O'Connor's lines, it had maybe even more problems with the government's lines. The government argued that the Fourth Amendment permits a de minimis extension beyond the purpose of the stop. But defining "de minimis" proved difficult. It wasn't clear whether this position had the support of even Chief Justice Roberts and Justice Scalia (although it may have had the support of Justice Alito). Chief Justice Roberts pointed out that a dog sniff will probably last longer than the stop itself--is that a de minimis extension? Justice Breyer pointed out that Anders's de minimis rule isn't easily enforceable--what do you tell the police to do? Justice Kagan argued that a dog sniff outside the bounds of the stop is something like an officer taking a cigarette break--unreasonable.
Part of the problem for the government is how the case came to the Court: the lower court said that a de minimis extension was reasonable. That holding assumes that there's a point at which the purpose of the stop ends, and a de minimis extension afterward. If so, and if the courts can define that point, then any extension really is beyond the purpose of the stop. And a Fourth Amendment violation for a de minimis period is still a Fourth Amendment violation. (And what's de minimis, anyway? That's hard to say, and, for dog sniffs, may run longer than the stop itself--as Chief Justice Roberts pointed out.) This problem seemed to trouble enough Justices, including Chief Justice Roberts, that the Court may well go with Rodriguez.
The Constitutional Accountability Center published its most recent issue paper in its series on the Roberts Court at 10, this one on access issues. And it doesn't paint a pretty picture.
Brianne Gorod, the author of Roberts at 10: Roberts's Consistent Votes to Close the Courthouse Doors, looks at Roberts Court cases in four areas: standing, arbitration, pleading standards, and suits against states. Gorod concludes that the Court's record is mixed, but mostly negative:
Although most of the decisions of the Roberts Court in this area have limited access to the courts, there have been a few that have not, including most significantly the Court's 2007 decision, Massachusetts v. EPA, holding that Massachusetts could sue the Environmental Protection Agency to challenge its failure to regulate greenhouse gas emissions under the Clean Air Act.
But if the Court's record is mixed, Gorod says that Chief Justice Roberts's record is not:
He dissented in that 2007 case and in every other case during his tenure as Chief Justice in which the Court has refused to limit access to the courts, and he has always been in the majority when it has decided to limit such access.
Gorod says that Chief Justice Roberts's record is "not terribly surprising," given his pre-confirmation positions on access.
Check it out.
Tuesday, January 20, 2015
The Supreme Court will hear oral arguments tomorrow in Rodriguez v. United States, the case testing whether an officer can extend a traffic stop for a canine sniff, without additional individualized suspicion to justify the sniff. Here's my argument preview from the ABA's Preview of United States Supreme Court Cases, with permission:
Just after midnight on March 27, 2012, Dennys Rodriguez and his passenger Scott Pollman were driving west from Omaha, Nebraska, to Norfolk, Nebraska, on Nebraska State Highway 275. Shortly into their trip, Officer Struble, who was patrolling the highway, observed the car’s passenger-side tires pass briefly over the line separating the highway from the shoulder. Officer Struble pulled the car over.
Officer Struble approached the vehicle and obtained Rodrigeuz’s license, registration, and proof of insurance. Officer Struble asked Rodriguez why he had driven onto the shoulder. Rodriguez said he swerved to avoid a pothole. Rodriguez seemed agitated when Officer Struble informed him that driving on the shoulder was a traffic violation. Officer Struble also observed Pollman in the passenger seat and noticed that Pollman seemed nervous.
Officer Struble asked Rodriguez to step out of the vehicle. Rodriguez complied. Officer Struble then asked Rodriguez to accompany him to his patrol car so that he could complete some paperwork. Rodriguez asked if he had to go to Officer Struble’s patrol car; Officer Struble said “no”; and Rodriguez said that he would rather sit in his own car. Officer Struble later testified that “in his experience” declining to sit in his patrol car was a “subconscious behavior that people concealing contraband will exhibit.”
Officer Struble returned to his patrol car (without Rodriguez) and called in a request for a records check on Rodriguez.
Officer Struble then returned to Rodriguez’s vehicle, this time to talk to Pollman. Officer Struble asked Pollman for his identification; he also asked Pollman about their trip. Pollman told Office Struble that he and Rodriguez drove from Norfolk to Omaha to look into buying an older-model Ford Mustang. They decided against buying the car, however. Officer Struble asked Pollman if he saw a picture of the car before making the trip; Pollman said that he had not.
Officer Struble returned to his patrol car. Office Struble was suspicious that Rodriguez and Pollman would drive to Omaha to look into purchasing a car without seeing a picture of it first. He was also suspicious that Rodriguez and Pollman would drive the long distance from Norfolk to Omaha late on a Tuesday night. Office Struble had a drug-detection dog in his car, and, based on his suspicions, he decided that he would “walk [his] dog around the vehicle regardless of whether [Rodriguez] gave [him] permission or not.” But he wanted a second officer to act as a back-up, because there were two persons involved in the stop. Officer Struble requested a records check on Pollman and began writing a warning ticket for Rodriguez for driving on the shoulder.
Officer Struble returned to Rodriguez’s vehicle (for the third time). He returned the documents to Rodriguez and Pollman and issued a written warning ticket to Rodriguez. Officer Struble gave the ticket to Rodriguez at about 12:25 a.m. At this point, Officer Struble had taken “care of all the business” of the traffic stop and had “got[ten] all the reason for the stop out of the way.”
Nevertheless, Officer Struble did not let Rodriguez go. Instead, he asked Rodriguez if Rodriguez had an issue with Officer Struble walking his dog around the car. Rodriguez replied that he did have an issue with that. Officer Struble then directed Rodriguez to turn off the engine, exit the vehicle, and stand in front of the vehicle until a second officer arrived.
Officer Struble’s back-up officer arrived at about 12:33 a.m. About seven or eight minutes after Officer Struble issued the warning ticket to Rodriguez, Officer Struble walked his dog around Rodriguez’s vehicle. The dog alerted, the officers searched the vehicle, and the officers found a bag of methamphetamine.
Rodriguez was charged with possession with intent to distribute 50 grams or more of methamphetamine in violation of federal law. He moved to suppress the evidence seized from his vehicle, arguing that Officer Struble violated his Fourth Amendment rights by detaining him for a dog sniff without reasonable suspicion of criminal activity. The district court denied Rodriguez’s motion, and the United States Court of Appeals for the Eighth Circuit affirmed. This appeal followed.
Under the Fourth Amendment, an officer can make a brief investigative stop, like a traffic stop, based on particularized and objective “reasonable suspicion” of illegal activity. For example, an officer can stop a vehicle after observing a driver violate a traffic law. But the stop must be related in scope to the officer’s justification for it. This means that the officer may detain the driver only for the period required to complete the tasks related to the original justification for the stop, for example, to run a records check, to interview a driver, to write a ticket, or even to conduct a dog sniff. The stop satisfies the Fourth Amendment if it is reasonable, that is, if it is reasonably related to the justification for the stop.
But state and federal courts split over what should happen after an officer completes the tasks directly related to the original stop. Some courts say that detention beyond this point constitutes a separate seizure, requiring independent and separate justification. Others, like the Eighth Circuit in this case, say that detention beyond this point is an extension of the original stop, so long as the nature and duration of the overall stop is reasonable, because the additional detention constitutes only a de minimis intrusion on the detainee’s personal liberty.
The parties wrangle over which approach is correct. They agree that an officer may conduct a dog sniff of the outside of a vehicle during an otherwise lawful traffic stop. The Supreme Court held as much in Illinois v. Caballes, 543 U.S. 405 (2005). But they disagree about whether a dog sniff can prolong a stop, even for a short period of time. Central to this dispute is the standard the Court should use to judge the prolonged stop—independent individualized suspicion of a different illegal activity (as Rodriguez would have it), or the overall reasonableness of the stop (as the government argues).
Rodriguez argues that the Fourth Amendment permits an officer to make a traffic stop based, as here, on probable cause of illegal activity. But he claims that the stop must be reasonably related to the circumstances that justified the stop in the first place and no longer than necessary to effectuate that purpose. Rodriguez says that an officer can use a drug dog to conduct a sniff if the sniff does not delay completion of the tasks related to the traffic violation. But he contends that an officer cannot expand the boundaries of a traffic stop in order to conduct a sniff. Rodriguez says that once the officer has completed all the tasks required during a lawful traffic stop, the driver is free to go, unless the officer has reasonable suspicion of additional criminal activity.
Rodriguez claims that these principles establish a bright-line rule—that a traffic stop ends when an officer completes the tasks related to the traffic violation, and that any detention beyond that point, no matter how brief, is unreasonable (and thus violates the Fourth Amendment) unless the additional detention is independently justified by individualized suspicion. He says that this rule would provide guidance to officers in the field and protect innocent drivers from suspicionless intrusions while at the same time giving officers plenty of time to conduct valid dog sniffs during a lawful detention.
Rodriguez argues that the Eighth Circuit’s reasons for its de minimis exception to these rules are flawed. He claims that the Eighth Circuit wrongly assumed that the line marking the end of a traffic stop is “artificial,” and that under a legitimate reasonableness standard the Fourth Amendment would allow a dog sniff that could have occurred within the scope of the traffic stop to occur shortly after the stop. Rodriguez says that the line is a constitutional one, and not “artificial,” and that any other approach would allow the officers to determine the end of a traffic stop for Fourth Amendment purposes. Rodriguez also claims that the Eighth Circuit was wrong to say that a dog sniff is similar to ordering a driver out of a car during a stop—a valid de minimis intrusion under Pennsylvania v. Mimms. 434 U.S. 106 (1977). Rodriguez claims that ordering a driver out of a car during a stop justified by probable cause (as in Mimms) is far different than conducting a dog sniff after a stop based on no cause at all. He also says that a dog sniff is far more intrusive than an order to get out of a car. Finally, Rodriguez claims that the Eighth Circuit wrongly concluded that an officer may conduct a suspicionless search using a dog sniff, because a dog sniff is not a “search” under the Fourth Amendment. Rodriguez says that the dog sniff in his case violated the Fourth Amendment, because it required his continued detention even after the justification for the stop expired (and not for any reasons having to do with the dog sniff as such).
Rodriguez argues that under his bright-line rule, the Court should reverse the Eighth Circuit’s decision. He says that Officer Struble had no objectively reasonable basis for detaining him after completing the tasks related to the justification for the initial stop. He claims that any additional facts that Officer Struble considered suspicious (and that might independently justify continued detention) are “consistent with innocent travel and easily explained by the circumstances of the stop.” Rodriguez contends that because Officer Struble had no independent justification for his continued detention after he completed the tasks related to the justification for the initial stop, the dog sniff violated the Fourth Amendment.
The government argues that Officer Struble’s dog sniff was a reasonable incident to the traffic stop, even if it briefly prolonged the stop, because the overall duration of the stop was objectively reasonable. The government says that under the Fourth Amendment an officer can conduct a number of inquiries before resolving a traffic violation, just so long as the stop does not run an unreasonably long time. For example, the government claims that an officer can conduct inquiries related to the traffic stop, like verifying the validity of a driver’s license and registration or conducting a background check. The government claims that an officer can also conduct inquiries into unrelated criminal activities, even without reasonable suspicion, like asking passengers about matters unrelated to the traffic stop or conducting a dog sniff. Again, the government says that the test for these inquiries, and their effects on the duration of the stop, is the overall reasonableness of the stop.
The government argues that the sequence of an officer’s permissible tasks during a stop should not matter. In particular, the government contends that an officer’s issuing a traffic ticket before a dog sniff does not alone render that dog sniff unconstitutional. Instead, the government claims that the Court should apply a test of overall reasonableness and look to the total duration of the stop (compared to the duration of stops under similar circumstances), the proportion of the stop dedicated to the dog sniff, and the officer’s diligence throughout.
The government contends that Rodriguez’s argument for a bright-line rule has several problems. For one, the government says that a bright-line rule prohibiting a dog sniff after an officer issues a ticket would not reduce delays in the stop; it would only force an officer to re-sequence his or her tasks related to the stop (by conducting the dog sniff before issuing a ticket). The government claims that this would unduly constrain officers’ discretion to conduct inquiries in the order warranted by the particular stop. For another, the government contends that a bright-line rule, in treating the motorist like a newly pulled-over motorist after the officer issues a ticket, ignores the fact that the officer previously detained the motorist on probable cause that he or she committed a traffic violation. The government says that its test, overall reasonableness, does not have these problems. The government claims that lower courts have applied this test without difficulties to dog sniffs conducted both before and after an officer issues a ticket.
Applying its overall reasonableness test, the government argues that the dog sniff in this case did not unreasonably prolong Rodriguez’s traffic stop. The government claims that the overall duration (about 29 minutes) was within the range of other similar traffic stops. It says that the seven- or eight-minute delay to conduct the dog sniff was not an unreasonably large portion of the stop. Moreover, the government contends that the delay was warranted by Officer Struble’s need for backup. And the government says that Officer Struble acted diligently throughout the stop.
Finally, the government argues that Rodriguez’s detention to conduct a dog sniff was independently justified by Officer Struble’s reasonable suspicion of other unlawful activity.
This case will resolve a split in the federal and state courts over whether the Fourth Amendment allows a de minimis detention beyond an officer’s original traffic stop. (Indeed, as Rodriguez points out in his cert. petition, the split reached this very case: Rodriguez’s case would have turned out differently if it had been tried in Nebraska state court instead of in a Nebraska federal court.)
On the one hand, the case goes to the duration of a traffic stop, and an officer’s ability to conduct additional investigations (like a dog sniff) after he or she completed the tasks directly related to the original stop. Rodriguez’s bright-line rule could potentially shorten stops and restrict an officer’s ability to conduct these investigations; the government’s overall reasonableness approach could lengthen stops (at least incrementally, as here) and give an officer more flexibility in conducting additional investigations.
But on the other hand, the case may not significantly affect either the duration of a stop or an officer’s ability to conduct a dog sniff in most cases. That’s because, as the government argues, even a ruling for Rodriguez might only force officers to re-sequence their activities during a traffic stop, for example, to conduct a dog sniff before the officer issues a ticket.
The Supreme Court today ruled that a prisoner sentenced to death had a right to assistance of substitute counsel in his federal habeas proceeding, when his original attorneys missed the AEDPA habeas filing deadline and couldn't themselves argue for equitable tolling.
The ruling, Christeson v. Roper, issued per curiam, and without briefing or oral argument, marks a victory for the right to counsel in federal habeas cases.
Christeson was sentenced to death. The federal district court appointed counsel pursuant to 18 U.S.C. Sec. 3599(a)(2) (providing for appointment of counsel for state death row inmates). But Christeson's attorneys let lapse the 1-year filing deadline for federal habeas claims under AEDPA. Those attorneys then weren't in a position to argue for equitable tolling of the 1-year deadline, because they'd have to argue (against their own interests) that they dropped the ball. But they also failed to cooperate with new attorneys who sought appointment on the case (and who could make the equitable tolling argument). The district court declined to substitute counsel, and the Eighth Circuit affirmed.
The Supreme Court reversed. The Court said that the standard for substitute counsel for a Section 3599 appointed attorney under Martel v. Clair was a broad one, the "interests of justice," which included several factors. The Court said that one of those factors in this case was the original attorneys' conflict of interest in arguing for equitable tolling. The Court said that the lower courts applied the right "interests of justice" standard, but failed to account for the conflict of interest as a factor.
While not every case in which a counseled habeas petitioner has missed AEDPA's statute of limitations will necessarily involve a conflict of interest, [the original attorneys'] contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests.
Clair makes clear that a conflict of this sort is grounds for substitution.
Justices Alito and Thomas dissented. They argued that the Court shouldn't have decided the case without argument, and that the case involved only "an error, albeit a serious one, on the part of the [original] attorneys."
The ruling only means that Christeson will now have substitute attorneys to argue equitable tolling; it says nothing about the merits of the equitable tolling claim itself, let alone the underlying habeas petition. Still, it represents a victory for the right to counsel for federal habeas petitioners.
Monday, January 19, 2015
ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently published her thoughtful, creative, and compelling piece on Williams-Yulee, the case testing Florida's ban on campaign contributions by judicial candidates, on the Supreme Court's calendar on Tuesday. Robson's Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar is part of Vanderbilt Law Review's Rountable on the case.
Robson takes a refreshing look at the issue of judicial candidate campaign contributions through the eyes of a public interest attorney. Indeed, she starts the piece with a personal testimonial about being solicited herself--and the awkward position that put her in. (Tellingly, her position wasn't so awkward for other, non-public interest attorneys. They simply contributed.)
She argues that public interest lawyers have a special interest in this issue, and in this case. That's because
as public interest attorneys, we are less likely to be able to contribute to judicial campaigns, but may feel more likely to comply with a solicitation because we know our clients are already at a disadvantage. Additionally, our opposing clients and counsel are often those who are precisely in the position of being solicited and of answering those solicitations with substantial contributions.
She makes her case by persuasively arguing for a "second look" at four earlier decisions--newer and older, all touching on judicial integrity--that in different ways illustrate why a ruling for Williams-Yulee (overturning Florida's ban) "would have a disproportionately negative impact on the public interest bar." Those cases are Republican Party of Minnesota v. White (striking Minnesota's rule that prohibited judicial candidates from announcing their views on disputed issues); Caperton v. A.T. Massey Coal Co. (holding that the failure of a state high court judge to recuse himself from a case involving a major donor violated due process); Shelley v. Kraemer (holding that the judiciary is subject to the same constitutional constraints that the other branches are); and In Re Hawkins (Fl. Sup. Ct.) (upholding a sanction of removal from the bench after a judge sold her book to attorneys with cases before her).
Robson's "second look" cases together illustrate why an impartial judiciary, and the appearance of an impartial judiciary, are so important--to the public, to be sure, but especially to public interest attorneys and their clients. They also show how a ruling for Williams-Yulee (a former public defender herself) could so adversely affect the public interest bar.
Robson's piece brings a voice to this case--the voice of the underrepresented and their attorneys--that's all-too-often lost in sterile arguments about free speech. And she shows why the Court should pay attention to that voice.
[Public interest attorneys] should not have to worry whether [judges] think we "support" them, or whether our adversaries "support" them. We should not have to curry favor through financial contributions directly requested by a person who is hearing our client's causes. To do our work, we must continue to have faith that our judges, whether elected or whether appointed to the United States Supreme Court, are not mere politicians.
An excellent piece that adds to the debate. Check it out.
Friday, January 16, 2015
The ACLU and the federal government settled Al-Kidd v. United States, the case challenging the government's post-9/11 practice, pursuant to the Material Witness Statute, of imprisoning Muslim men as material witnesses without any basis for holding them.
The case was on remand from the United States Supreme Court. The Court ruled in 2011 that then-defendant John Ashcroft was entitled to qualified immunity against Al-Kidd's Fourth Amendment claim. (All eight participating justices agreed that Ashcroft did not violate a "clearly established" Fourth Amendment right at the time of Al-Kidd's arrest and detention. Justice Kagan was recused.) However, four of the eight justices agreed that there were serious questions about the statutory claim, that is, "whether the Government's use of the Material Witness Statute in [Al-Kidd's] case was lawful." The Court remanded the case to the district court for further proceedings as to the remaining defendants.
The district court granted summary judgment to Al-Kidd on most claims; a defendant (an FBI agent) filed an interlocutory appeal with the Ninth Circuit; and the Ninth Circuit heard oral arguments in May 2014. The parties settled this week.
The government issued a statement: "The government acknowledges that your arrest and detention as a witness was a difficult experience for you and regrets any hardship or disruption to your life that may have resulted from your arrest and detention." It also agreed to pay Al-Kidd $385,000.00.
Thursday, January 15, 2015
The Brennan Center issued a report this week concluding that very wealthy "independent" spenders are the primary beneficiaries of the five-year-old Citizens United. Daniel Weiner, the report's author, says, "This is perhaps the most troubling result of Citizens United: In a time of historic wealth inequality, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of our citizens is of relatively little value." Weiner explains that wealthy individuals spend through super-PACs and dark money group, "while often sponsoring candidates like racehorses."
The report also looks at other Citizen United legacies, including the increase in dark money election spending by publicly held corporations, weakening contribution limits, and trampling shareholder and employee rights (because shareholders and employees are often kept in the dark about corporate spending).
So: What to do? David Gans of the Constitutional Accountability Center has one idea. He argues this week in the LA Times that Congress should encourage political participation (campaign contributions) by small donors through contribution tax credits. Gans explains that Congress passed just such a tax credit in 1972, and that it lasted until 1986. But it is no more. He also explains why a tax credit should have bipartisan support (as it did in 1972). Gans elaborates on his argument in an issue brief titled Participation and Campaign Finance: The Case for a Federal Tax Credit.
Tuesday, January 13, 2015
The Supreme Court heard oral arguments yesterday in Oneok v. Learjet, the case testing whether the federal Natural Gas Act preempts state antitrust claims arising from a conspiracy among natural gas companies to inflate retail natural gas prices.
The dispute arose when natural gas companies reported false natural gas sales prices to industry publications used to set gas prices in retail and wholesale contracts, artificially inflating those prices, and resulting in the Energy Crisis in 2000 to 2002. Retail gas purchasers brought state antitrust cases in several states. The gas companies moved to dismiss, arguing that the Natural Gas Act preempted those claims.
Indeed, the Gas Act grants FERC authority to regulate wholesale sales of natural gas (called "jurisdictional" sales) and any practice that "directly affect[s] jurisdictional rates." So the question in the case is this: Does that authority reach, and preempt state-law claims based upon, the gas companies' false reporting of gas prices to industry publications, thus affecting retail and wholesale gas prices?
The arguments didn't reveal any significant new points (that weren't briefed), and revealed only a little about the Court's likely direction in the case.
The parties agreed that the Gas Act field-preempts state-law claims for some field, but the predictably disagreed about the scope of that field. Oneok, represented by Neal Katyal, argued that the field includes practices like false reporting of gas prices that affect retail sales, because the false reporting also affected wholesale sales (or jurisdictional sales, within FERC's bailiwick). Learjet, represented by Jeffrey Fisher, argued that the Act doesn't sweep that far, and that FERC's authority does not field-preempt the state-law claims here.
Oneok also argued that the Gas Act could conflict-preempt state-law claims (an issue, it said, that would have to be decided on remand), because state-law claims could conflict with the Act and the nationwide uniformity in reporting that FERC encourages. Learjet said that the state-law antitrust claims were congruent with a federal antitrust claim (that everyone says was available to Learjet and the other plaintiffs), so there's no conflict between the state-law claims and federal law.
Questions from the bench revealed little. The progressives on the bench were by far the most active, pressing Katyal the hardest (and seemingly least persuaded by his points), but also probing Fisher (especially Justice Breyer). Conservatives were largely silent, except that Justice Scalia seemed inclined to accept Katyal's point about how price reporting affects wholesale rates (and therefore preempts state-law claims as to retail rates), and Chief Justice Roberts seemed skeptical of Fisher's argument that a ruling for the gas companies would allow them to manipulate and transform any non-jurisdictional practice into one that "directly affect[s] jurisdictional rates."
Justice Kennedy seemed to straddle, and maybe hinted at a result. He asked Katyal whether the Gas Act would preempt a state-law claim that was "exactly the same as the Sherman Act." Katyal responded:
And I think that is complementary authority, which, Justice Kennedy, your opinion in Arizona v. United States decried. Once we're in the field, once Congress has said to a federal agency, as it is here, FERC is regulating the very practice that they are seeking to regulate three different ways, then you can't tolerate states in the area. Why? Because states will have all sort --
Justice Kennedy then asked if Katyal had a back-up conflict-preemption argument, in case his field-preemption point didn't pan out. Katyal: Yes, but for remand.
The outcome will obviously be important to the parties and anyone else worried about accountability for the Energy Crisis in 2000-2002, but probably won't be too important to anyone else. That's because Congress increased FERC's authority in 2005--prompting the government to argue against cert. in the first place.
Friday, January 9, 2015
The Nebraska Supreme Court today upheld the state law delegating authority to the governor to approve the Keystone pipeline and to use eminent domain to access land along the pipeline route. The ruling does not affect fight in Washington, however, where today the House passed a bill to approve the pipeline, and where President Obama promised to veto it.
The Nebraska case arose out of a Nebraska law that delegated to the governor the power to approve the pipeline. (The former governor did so.) Taxpayers sued, arguing that the law violated the state constitution.
Four (of seven) judges agreed. They said that the law violated a state constitutional provision that reserves to the Public Service Commission this kind of decision. That provision says,
There shall be a Public Service Commission . . . . The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.
The four judges wrote that "we have held that the PSC has 'independent legislative, judicial, and executive or administrative powers' over common carriers, which powers are plenary and self-executing." Moreover, "specific legislation" means "specific restrictions," not "general legislation to divest the PSC of its jurisdiction and transfer its powers to another governmental entity besides the legislature." Thus the legislative delegation over Keystone to the governor improperly intruded upon the power of the PSC under the state constitution.
But under another state constitutional provision, four judges aren't enough to rule a law unconstitutional. The state constitution requires a super-majority of five (of seven) judges to rule a law unconstitutional. So even though a majority held the delegation unconstitutional, it's not. That means the law stays in place, the delegation is good, and the governor's action approving Keystone is untouched.
Before ruling on the merits, the court also ruled on taxpayer standing. The same four judges that argued that the delegation was unconstitutional also held that taxpayers had standing. (The other three argued that there was no standing, and that the standing decision also required a super-majority.) The court invoked its "great public concern" exception to the general rule against taxpayer standing. Under that exception, the court can take up a taxpayer case when it involves an issue of "the Legislature's obedience to the fundamental distribution of power in this state": "when a taxpayer claims that the Legislature enacted a Law that undermines the fundamental limitations on government powers under the Nebraska Constitution, this court has full power and the responsibility to address the public rights raised by a challenge to that act." The "great public concern" exception gives the Nebraska courts more leeway in taking up taxpayer cases than the Supreme Court's standing rules under Article III.
Thursday, January 8, 2015
Judge Stephen V. Wilson (C.D. Calif.) ruled that California's ban on foie gras is preempted by the federal Poultry Products Inspection Act and permanently enjoined the state from enforcing the ban.
Judge Wilson ruled that the PPIA expressly preempts California's ban. The PPIA preempts states from imposing
[m]arketing, labeling, packaging, or ingredient requirements (or storage or handling requirements . . . [that] unduly interfere with the free flow of poultry products in commerce) in addition to, or different than, those made under [the PPIA] with respect to articles prepared at any official establishment in accordance with the requirements of this chapter[.]
Judge Wilson held that California's ban regulates only the final sale of products containing certain types of foie gras products (foie gras from force-fed birds), and not the earlier method of manufacturing foie gras (which might have escaped preemption). He also held that it didn't matter whether foie gras from force-fed birds was a different product than foie gras from non-force-fed birds, because the PPIA covers both. "Thus, Plaintiffs' [force-fed] foie gras products may comply with all federal requirements but still violate [the California ban] because their products contain a particular constitute--force-fed bird's liver. Accordingly [the California ban] imposes an ingredient requirement in addition to or different than the federal laws and regulations."
In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.
The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law. Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.
The religious exemption is most interesting in the context of this litigation. For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief." For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).
The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.
The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated. For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:
"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.
Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.
January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 6, 2015
Judge David G. Campbell (D. Ariz.) ruled that federal immigration law likely preempts Arizona's sweeping identity theft laws and temporarily enjoined the Arizona laws. The ruling means that Arizona is prohibited from enforcing its identity theft laws, which criminalize using fictitious personal information to get a job, pending the outcome of the suit. Arizona can appeal.
Arizona's identity theft laws do the usual things you'd expect an identity theft law to do, plus they outlaw using real or fictitious personal information to get a job. Arizona uses the laws to convict unauthorized immigrants who seek employment using false information. Some of these immigrants sued and sought a preliminary injunction against the law, arguing that it is preempted by federal immigration law and that it violates the Equal Protection Clause.
Judge Campbell agreed as to preemption and issued the injunction. Judge Campbell rejected Arizona's claim that the identity theft law wasn't an immigration law, and therefore couldn't be preempted. He wrote, "Considering the text, purpose, and effect of the identity theft laws, the Court finds that they are aimed at imposing criminal penalties on unauthorized aliens who seek or engage in unauthorized employment in the State of Arizona." He then concluded that the plaintiffs would likely succeed on the merits of their claim that the Arizona law was field preempted by federal law that criminalizes this same kind of behavior:
These provisions evince an intent to occupy the field of regulating fraud against the federal employment verification system. Congress has imposed every kind of penalty that can arise from an unauthorized alien's use of false documents to secure employment--criminal, civil, and immigration--and has expressly limited States' use of federal employment verification documents. The Court concludes that Congress has occupied the field of unauthorized-alien fraud in obtaining employment.
Judge Campbell also ruled that "[t]he overlapping penalties created by the Arizona identity theft statutes, which "layer additional penalties atop federal law," likely result in conflict preemption.
In the same ruling, Judge Campbell denied the state's motion to dismiss the plaintiffs' equal protection claim.
Monday, December 22, 2014
President Obama on Friday signed the FY 2015 National Defense Authorization Act, and, as in prior years, issued a constitutional signing statement on provisions restricting the use of funds to move any detainee out of Guantanamo Bay.
President Obama's signing statement this year is a little different than in prior years: it includes an array of policy objections to Congress's forced maintenance of the detention facility. The constitutional objection is a little more dressed up than in prior years, but the core constitutional objection remains the same:
The executive branch must have the flexibility, with regard to those detainees who remain, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Under certain circumstances, the provisions concerning detainee transfers in both bills [the NDAA and the Consolidation and Further Continuing Appropriations Act, 2015] would violate constitutional separation of powers principles. In the event that the restrictions on the transfer of detainees operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.
That means that the administration claims the right to ignore the restrictions when they violate separate of powers.
It's not clear that the changed language of the signing statement this year signals any greater likelihood that the administration will actually ignore the restrictions and move a detainee off the base in violation of the provisions. But President Obama's other actions (on immigration, on Cuba) might suggest that the administration is more willing to do this.
The Supreme Court hasn't ruled on the legal status of a signing statement like this. And even though a signing statement is involved in the Zivotofsky passport case this Term, the Court's not likely to say anything about it.
Thursday, December 18, 2014
Nebraska and Oklahoma have filed an original suit against Colorado in the United States Supreme Court over that state's Amendment 64, which legalizes marijuana. The plaintiffs argue that Colorado's Amendment 64 is preempted by the federal Controlled Substances Act.
Here's from the complaint:
22. Colorado state and local officials who are now required by Amendment 64 to support the establishment and maintenance of a commercialized marijuana industry in Colorado are violating the CSA. The scheme enacted by Colorado for retail marijuana is contrary and obstructive to the CSA and U.S. treaty obligations. The retail marijuana laws embed state and local government actors with private actors in a state-sanctioned and state-supervised industry which is intended to, and does, cultivate, package, and distribute marijuana for commercial and private possession and use in violation of the CSA (and therefore in direct contravention of clearly stated Congressional intent). It does so without the required oversight and control by the DOJ (and DEA) that is required by the CSA--and regulations adopted pursuant to the CSA--for the manufacture, distribution, labeling, monitoring, and use of drugs and drug-infused products which are listed on lesser Schedules.
The plaintiffs claim they've been harmed by Amendment 64, because they've had to deal "with a significant influx of Colorado-sourced marijuana."
The Sixth Circuit ruled today in Tyler v. Hillsdale County Sheriff's Department that the federal ban on gun possession by a person "who has been committed to a mental institution" violates the Second Amendment.
The ruling is the first to address this particular provision, and it's the first to strike a federal ban on a particular category of would-be gun owners. The ruling's notable, too, because it applies strict scrutiny, even as both parties agreed that intermediate scrutiny applied.
The court, using its two-step approach to Second Amendment questions, held first that the federal ban on a person "who has been committed to a mental institution," 18 U.S.C. Sec. 922(g)(4), "falls within the scope of the Second Amendment right, as historically understood." That is: while the Second Amendment historically did not protect the right to bear arms by the mentally ill, "[w]e are not aware of any other historical source that suggests that the right to possess a gun was denied to persons who had ever been committed to a mental institution, regardless of time, circumstance, or present condition." (Emphasis added.)
The court next applied strict scrutiny and held that while the government's interest was "compelling," the flat ban was not narrowly tailored to meet it. In particular, the court said that the federal government failed to fund an opt-out provision for Section 922, leaving a formerly institutionalized person without a federal opportunity to show that he or she no longer poses a danger and should no longer be covered by Section 922(g)(4). Moreover, the federal conditioned grant program--which would allow an individual to prove to his or her state the he or she is no longer dangerous and should no longer be covered by Section 922(g)(4), so long as the state participates in the federal program (about half do)--leaves a person's fundamental right to bear arms up to his or her state. That's no good. The court:
Under this scheme, whether [a person] may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress's inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual's ability to exercise a "fundamental righ[t] necessary to our system of ordered liberty" cannot turn on such a distinction. Thus, Section 922(g)(4) lacks narrow tailoring as the law is applied to [the petitioner].
The court struck the provision even as it recognized that no other court has struck any other ban on guns for any other category of person under Section 922(g)(4). In particular, the court recognized that no court has struck a ban on guns for undocumental aliens, domestic-violence misdemeanants, persons under a certain age, persons subject to certain domestic-protection orders, and persons who are "an unlawful user of or addicted to any controlled substance." The court distinguished the committed-to-a-mental-institution category, however, because "its prohibition is permanent; it applies potentially to non-violent individuals; it applies potentially to law-abiding individuals; and it punishes potentially non-violent conduct."
The court surveyed the approaches to the Second Amendment in the other circuits--mostly some form of intermediate scrutiny--but applied strict scrutiny. This was surprising and unnecessary, given that both parties agreed that intermediate scrutiny applied, and, as the concurrence argued, the petitioner would have won under intermediate scrutiny, too.
According to the court's analysis, Congress could avoid the result simply by funding the federal opt-out program and giving previously institutionalized individuals an opportunity to show that they are no longer dangerous and should no longer be subject to the ban in Section 922(g)(4).
Wednesday, December 17, 2014
The Sixth Circuit ruled today in Michigan Corrections Organization v. Michigan Dep't of Corrections that the federal courts lacked subject matter jurisdiction over a claim by Michigan correctional officers against the Corrections Department Director under the federal Fair Labor Standards Act. The court dismissed the federal case.
While the case marks a defeat for the workers (and others who seek to enforce the FLSA against a state), the plaintiffs may be able to re-file in state court. (They brought a state claim in federal court, along with their FLSA claim, and, if there are no other bars, they may be able to revive it in a new state proceeding.)
Correction officers filed the suit, claiming that they wre denied pay for pre- and post-shift activities (like punching the clock, waiting in line for security, and the like) in violation of the FLSA. They sued the Department Director in his official capacity for denied overtime pay and declaratory relief.
The Sixth Circuit rejected the federal claims. The court ruled that the Director enjoyed Eleventh Amendment immunity against monetary damages, and that Congress did not validly abrogate Eleventh Amendment immunity through the FLSA (because Congress enacted the FLSA under its Commerce Clause authority). The court rejected the plaintiffs' contention that Congress enacted the FLSA under its Fourteenth Amendment, Section 5 authority to enforce privileges or immunities against the states (which, if so, would have allowed Congress to abrogate Eleventh Amendment immunity). The court said that the Privileges or Immunities Clause (after The Slaughter-House Cases) simply can't carry that weight--that wages are not a privilege or immunity of national citizenship.
The court went on to reject the plaintiffs' claim for declaratory relief under the FLSA, Section 1983, and Ex Parte Young. The court said that the FLSA "does not provide a basis for this declaratory judgment action." That means that the plaintiffs can't get declaratory relief from the statute itself, and, because the FLSA doesn't provide for private enforcement by way of declaratory relief, the plaintiffs can't get Section 1983 or Ex Parte Young relief, either.
December 17, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Eleventh Amendment, Federalism, Fourteenth Amendment, News, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Check out ConLawProfBlog's own Prof. Ruthann Robson's (CUNY) piece about her innovative and engaging approach to teaching the Religion Clauses in the Fall 2014 Law Teacher. (Robson's piece begins on page 49.) In it, Robson gives a step-by-step for a replicable, pervasive method that promises huge pedagogical payoffs--exactly the kind of thing we need more of in the Con Law world.
Robson, a leader in innovative and effective teaching who was featured in What the Best Law Teachers Do (Harvard), starts her First Amendment class by requiring students to develop and adopt a role in one of three categories: a recognized religion, a quasi-religion, and a non-religion. Robson then conducts her Religion Clause classes with her students in role, for example: "What do you think of this outcome, Student X, as a Rastafarian?"
The approach comes with distinct benefits and allows the class better to critically assess and analyze Religion Clause cases. Robson: "This role pervasiveness often illuminates the subjectivity of the Court's recitation of facts, as well as the reasoning, doctrine, theoretical perspectives, and the invocations of history."
Robson uses role pervasiveness for problems, too, assigning students to traditional legal roles (attorneys, judges, clerks, and the like) while still maintaining their assigned religion.
For example, Student Y, as a Sikh, now also takes on the role of a law clerk to a judge considering the constitutionality of the seventeen foot "Latin cross" at the National September 11 museum. Or Student Z, as a Secular Humanist, is writing an opinion as an administrative law judge in a sexual orientation discrimination case against a baker who refused to make a wedding cake for a same-sex couple.
This not only enhances students' understanding of the Religion Clauses, but it also allows Robson to explore issues of professional identity.
Check it out; give it a try; tell us how it works for you.
Tuesday, December 16, 2014
A federal district judge in Pennsylvania has taken it upon himself to rule President Obama's recently announced immigration action unconstitutional--in a case that apparently has nothing to do with the action. We've posted on President Obama's action, and challenges to it, here, here, and here.
The surprising and brazenly activist, stretch-of-a-ruling underscores just how political President Obama's action has become, driving a district judge to reach out in a wholly unrelated case to rule the action unconstitutional.
The ruling comes in a case involving an undocumented immigrant who pleaded guilty to re-entry into the United States by a removed alien in violation of 8 U.S.C. Sec. 1326. Judge Arthur J. Schwab (W.D. Pa.) then ordered the parties to brief whether President Obama's action has any impact on the defendant, and whether the action is constitutional. Despite the government's reply that the action wouldn't affect this defendant (because "the Executive Action is inapplicable to criminal prosecutions under 8 U.S.C. Sec. 1326(a), and . . . [it] solely relates to civil immigration enforcement status"), and the defendant's agreement with that position, Judge Schwab said that the action could protect the defendant from removal and went ahead to rule on its constitutionality.
Even if the action applied to the defendant, however, Judge Schwab didn't bother to explain why ti was relevant to this proceeding, or why he had to rule on its constitutionality, except to say this:
Specifically, this Court was concerned that the Executive Action might have an impact on this matter, including any subsequent removal or deportation, and thereby requiring the Court to ascertain whether the nature of the Executive Action is executive or legislative.
Judge Schwab went on to say why he thought the action was unconstitutional, relying not on the ordinary judicial tools for such an important task (like, say, the text of the law, serious consideration of Supreme Court precedent, prior executive practice, etc.), but instead on President Obama's public statements about the action. Judge Schwab wrote that the President can't act just because Congress won't (answering President Obama's public statements suggesting that he'd act unilaterally if Congress wouldn't) and that the President's action is policy-making, not prosecutorial discretion, because it treats a large class of people alike.
Oddly, after concluding that the action is unconstitutional, Judge Schwab goes on to consider whether it applies to this defendant. (His conclusion: maybe, maybe not. Judge Schwab says the action leaves the defendant in a "no-man's land.") Ordinarily, this question would come prior to the constitutional question--for constitutional avoidance reasons, but also because it is logically prior to the constitutional question. Still, Judge Schwab answered it second.
In a final surprising move, Judge Schwab says that President Obama's action violates the rights of the defendant, because it doesn't obviously grant deferred status to him, even as it grants deferred status to others.
Judge Schwab concluded by giving the defendant a chance to withdraw his guilty plea, go to sentencing and take one year supervised release in the United States, or go to sentencing and be turned over to ICE.
So the logic of the opinion appears to be this: The President's action is unconstitutional; but if it is constitutional, it doesn't obviously apply (or not apply) to the defendant; and therefore the defendant should have a chance to withdraw his guilty plea in order to (possibly) take advantage of the (unconstitutional) action. All this after both parties agreed that the President's action didn't really have anything to do with this case in the first place.
With all its twists and turns, it's really hard to make heads or tails of this opinion. But one thing is clear: This is not the stuff of a serious separation-of-powers ruling. If the case against President Obama's action is going anywhere, opponents are going to have to do better--much better--than this.