Wednesday, December 17, 2014
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.
The Supreme Court ruled yesterday in Heien v. North Carolina that the Fourth Amendment does not prohibit an officer from making a stop based on a reasonable mistake of law. We posted an argument preview here and review here.
The ruling puts a heavy thumb on the scale in favor of law enforcement and puts the burden of vague or ambiguous laws, or an officer's reasonable misunderstanding of law, on ordinary citizens.
Chief Justice Roberts wrote for the 8-justice majority that the "reasonable suspicion" standard required for a stop allows for an officer's mistake of law, no less than it allows for an officer's mistake of fact:
The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.
Chief Justice Roberts was careful to emphasize that a mistake must be objectively reasonable--a point emphasized by Justice Kagan (joined by Justice Ginsburg) in concurrence. Still, an officer's reasonable mistake of law is now enough to justify reasonable suspicion for a stop.
Justice Sotomayor filed the lone dissent. She argued that an officer's reasonable mistakes of fact are different from an officer's reasonable mistakes of law: officers are better at judging indeterminate and evolving facts on the street, but the courts are better at the law:
After all, the meaning of the law is not probabilistic in the same way that factual determinations are. Rather, "the notion that the law is definite and knowable" sits at the foundation of our legal system. And it is courts, not officers, that are in the best position to interpret the laws.
She also argued that the majority's approach is a blow to civil liberties and police-community relations, and that it has "the perverse effect of preventing or delaying the clarification of the law."
Friday, December 12, 2014
The Ninth Circuit, sitting en banc, this week affirmed a lower court's $300,000 puntive damage verdict in a Title VII sexual harassment case in which the court awarded no compensatory damages and just $1 in nominal damages.
The ruling distinguishes BMW v. Gore, the 1996 case in which the Supreme Court ruled that excessive punitives could violate due process. Gore involved a common law tort claim with no statutory cap on punitive damages. This case, State of Arizona v. ASARCO LLC, in contrast, involved a Title VII claim with a statutory cap on both compensatories and punitives. That difference, the statutory cap, drove the result.
The case arose out of a sexual harassment complaint by an employee at ASARCO's Mission Mine complex in Sahuarita, Arizona. The plaintiff alleged that during her time at ASARCO she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged.
The jury awarded no compensatory damages, but awarded $1 in nominal damages and $868,750 in punitives. The trial court later reduced the punitives to $300,000, the statutory max for a Title VII claim. (The court also awarded attorneys' fees and costs in the amount of $350,902.75.) ASARCO appealed, arguing that the punitive damage award violated Gore.
The Ninth Circuit rejected that argument. The court said that because Title VII caps both compensatories and punitives, a punitive damage award within the statutory cap satisfies the underlying constitutional considerations that animated Gore (even if the punitives amounted to 300,000 times the damages). In particular, the statutory cap gave the defendant fair notice of the severity of a penalty for a Title VII violation (where the defendant in Gore, a tort case, had no such fair warning), the cap sets out a clear amount, and it states the degree of culpability a defendant must have had, thus reducing the chance of random or arbitrary awards. Moreover, "Gore's ratio analysis has little applicability in the Title VII context," because the statutory cap doesn't lend itself to a ratio analysis the way a common law damage award does. (Under Title VII's caps, the punitive damages can't increase proportionally to the harm, because they're capped.)
With the publication of the more than 500 page "Executive Summary" of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (searchable document here), the subject of torture is dominating many public discussions.
A few items worth a look (or second look):
In French, Justice Scalia's interview with Le Journal du matin de la RTS (videos and report) published today. One need only be marginally fluent in French to understand the headline: "La torture pas anticonstitutionnelle", dit le doyen de la Cour suprême US. (h/t Prof Darren Rosenblum).
The French report will not surprise anyone familiar with Justice Scalia's discussion of torture from the 2008 "60 Minutes" interview discussed and excerpted here.
And while Justice Scalia contended that defining torture is going to be a "nice trick," LawProf David Luban's 2014 book Torture, Power, and Law offers very explicit definitions, even as it argues that these definitions can erode as torture becomes "normalized," seemingly giving credence to Scalia's point.
December 12, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Executive Authority, Foreign Affairs, International, Interpretation, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)
Thursday, December 11, 2014
U.S. District Judge Carol Jackson today ordered police to warn crowds before the police use tear gas and to provide "reasonable" time for people to disperse, according to the St. Louis Post-Dipatch. The temporary restraining order comes in a case filed Monday that alleged that police intimidated demonstrators, assaulted them with tear gas and pepper spray, arbitrarily labeled peaceful protestors as unlawful assemblies, and refused to wear name tags--all of which had a chilling effect on the plaintiffs' First Amendment rights.
Judge Jackson reportedly expressed concern that police failed to distinguish between peaceful protestors and criminals.
We previously posted on a federal court temporary injunction in another against the police move-along rule in Ferguson.
Newsweek reports that two New York City council members have proposed a bill to guarantee low-income tenants a right to an attorney in eviction proceedings. The story put the bill in the larger context of the civil-right-to-counsel movement, which we've mentioned most recently here.
The story also references a recent forum hosted by the Impact Center for Public Interest Law at New York Law School (forum flyer is here), and the National Coalition for a Civil Right to Counsel.
Wednesday, December 10, 2014
The Montana Supreme Court ruled in In the Matter of the Adoption of AWS and KRS that state constitutionaly equal protection guaranteed the right to counsel for an indigent mother in a private termination-of-parental rights proceeding.
The ruling means that poor parents in Montana now have a constitutional right to an appointed attorney to represent them in private cases (like adoptions) involving the termination of their parental rights.
The ruling also illustrates how state constitutional rights can be more generous than federal constitutional rights. (Under Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel in a termination proceeding under the Fourteenth Amendment.)
The Supreme Court applied Montana state constitutional equal protection, which the court said "provides even more individual protection than the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution."
The court noted that parents subject to state-initiated termination of parental rights (as in an abuse-and-neglect proceeding) have a state statutory right to counsel, but that parents subject to private termination of parental rights (as in an adoption, as in this case) don't. Because the underlying right--the right to parent--is fundamental, the court applied strict scrutiny to the distinction.
The court said that the only reason for not providing counsel in the private termination case was money. And that's not a sufficiently important state interest under strict scrutiny. So the indigent parent in a private termination case gets an attorney, too, as a matter of state constitutional equal protection.
The court suggested that an attorney in a state-initiated termination proceeding might be constitutionally compelled, or at least the issue raises a serious constitutional question, under the Montana constitution. (Under the Fourteenth Amendment and Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel, and the answer depends on a Mathews v. Eldridge balancing.) This means that the state legislature can't solve the equal protection problem by taking away the statutory right to counsel for parents in a state-initiated termination proceeding; instead, it has to ratchet-up the rights of parents in a private termination proceeding.
For more information on civil right to counsel, or Civil Gideon, check out the National Coalition for a Civil Right to Counsel, an outstanding organization that is the clearinghouse for the excellent work in this area.
Tuesday, December 9, 2014
The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.
At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.
According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.
Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.
As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.
As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).
As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.
December 9, 2014 in Association, Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Privileges or Immunities: Fourteenth Amendment , Speech | Permalink | Comments (0) | TrackBack (0)
Monday, December 8, 2014
Check out The Echo Chamber: A Small Group of Lawyers and its Outsized Influence at the U.S. Supreme Court, a penetrating study of the influence that an elite band of attorneys exerts on the cases the Court takes up, and how it decides them. Echo Chamber is a special report by Reuters, in three parts, penned by Joan Biskupic, Janet Roberts, and John Shiffman.
The upshot: A small group of attorneys, just 66 of them, exert a tremendous influence over the cases the Court hears, with a decidedly pro-business tilt.
According to the authors, public interest lawyers may exert an influence, too--but by not filing, so as to avoid a binding ruling against them by a conservative-leaning Court. "[P]ublic interest lawyers effectively influence the court's agenda, too. They do so by declining to draft petitions for some kinds of civil rights and consumer cases. Their rationale: They do not want the Supreme Court to revisit decades-old decisions that tend to favor the liberal agenda."
The authors examined cert. petitions, and the attorneys who filed them, over a nine-year period to identify the 66 lawyers and 31 law firms that were "most active and successful before the court."
The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal--one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.
The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber--a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.
Friday, December 5, 2014
As expected, Texas Governor-Elect Greg Abbott led 17 other states and state officials in suing the federal government over President Obama's immigration policy.
The complaint argues that the President, through DACA and administration immigration policies, caused a humanitarian crisis by encouraging illegal immigration and then turning a blind eye to undocumented immigrants within the country. It contends that the President, having created this crisis, now makes it even worse by authorizing an even larger class of certain undocumented immigrants to stay. The plaintiffs claim that even President Obama previously said, repeatedly (with quotes), that taking the kind of action that he took would have exceeded his authority. This all appears to be just context, or even political blustering; the plaintiffs don't say why or how any of it bears on their legal claims.
The complaint discusses the OLC memo that provides legal justification for President Obama's policy, but doesn't seriously try to undermine it. The complaint says only that the OLC justifies President Obama's policy based in part "on much smaller and more targeted deferred action programs that previous Congresses approved," such as "deferred action for victims of violence and trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks."
That's true, as far as it goes. But it also woefully under-describes the OLC analysis. The complaint doesn't take issue with the other components of the OLC memo, like the statutory analysis, e.g. The plaintiffs appended the OLC memo to their complaint.
The plaintiffs argue that the President's policy violates the Take Care Clause and the APA. As to the Take Care Clause, the complaint says, "the President admitted that he 'took an action to change the law.' The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement--one that even the President and OLC previously admitted would require a change to the law." As to the APA, the complaint alleges that the President's policy made law without proper authority, and without following notice-and-comment rulemaking procedures.
Monday, December 1, 2014
The student chapter of the American Constitution Society at Barry University School of Law (Orlando) will host its First Annual Constitutional Law Scholars Forum on Friday, March 20, 2015. Here's the formal announcement..
The hosts invite scholarly proposals on constitutional law at any stage of pre-publication development, from an early idea to editing. Hosts also invite proposals on innovative approaches to teaching con law.
Proposals are due by January 15, 2015, to Ms. Fran Ruhl, Program Administrator, at email@example.com, with "Constitutional Law Scholars Forum" in the subject line.
Tuesday, November 25, 2014
Texas Governor-Elect Greg Abbott put the finest point yet on Republicans' legal case against President Obama over his announcement last week to defer immigration enforcement action against certain unauthorized aliens. Abbott said in a statement yesterday that President Obama's move violated the Take Care Clause, Congress's immigration authority under Article II, Section 8, and the Administrative Procedure Act.
These claims are head-and-shoulders above the kind of general blustering we've heard from others in the debate. But they're still far from specific. Indeed, they're answered by the OLC's own legal analysis: the OLC relies on congressionally-designed flexibility in the text of the INA, among other legal authorities, to conclude that President Obama's action is consistent with, and supported by, the INA. In other words, Congress wrote the INA (using its authority under Article II, Section 8) to give the President just this kind of flexibility in enforcement. If that's true--and we haven't heard many (if any) specifics challenging this interpretation from opponents of President Obama's actions--then it seems odd to argue that President Obama isn't properly executing the law, or that he isn't respecting a uniquely congressional authority, or that he's violating the APA. Indeed, it seems that's exactly what he's doing.
Moreover, Abbott's statement is silent on prior executive practice, an important tool in sorting out this kind of separation-of-powers problem.
Abbott swears that "[t]his is a legal issue, not a political issue." But before we can take that claim seriously, it'd help if Abbott, Oklahoma AG Scott Pruitt, Kansas AG Kris Kobach, and others threatening suit sharpen their case with a little statutory interpretation and history of executive practice (to say nothing of Supreme Court precedent). We'll keep you posted.
The Georgia Supreme Court yesterday rejected claims by a group of plaintiffs that the state courts' use of private probation companies violated due process. At the same time, however, the court ruled that Georgia law and contract principles could limit the way those companies operate.
The plaintiffs in the case, a group of probationers, argued that the use of private probation companies violated due process, and that the company imposed excessive fees on them for unauthorized monitoring, testing, and tolling of their probation. The case illustrates the dangers and abuses that can come with hiring out a private company to conduct functions like probation.
The plaintiffs alleged first that Georgia's statute authorizing state courts to use private probation companies was facially invalid, because it them of liberty without due process of law. That's because the statute did not restrict the courts from arranging payment based on the length of a misdemeanant's probation and other probation-related services that the company provided (like monitoring and testing), creating a conflict of interest for the company. Moreover, plaintiffs claimed that courts relied on recommendations by private probation officers who had a pecuniary interest in the outcome.
The court rejected these claims:
While the supervision of probation is a function historically performed by state probation officers, the mere act of privatizing these services does not violate due process. Nothing on the face of the statute allows Sentinel or any other private probation company to deprivate an individual of his or her property or liberty without due process of law nor is there anything which authorizes the creation of a private probation system that is so fundamentally unfair that it fails to comport with our notions of due process. . . . As found by the trial court, most of the injuries alleged by the plaintiffs in these cases occurred not because of Sentinel's compliance with the restrictions placed upon it by the private probation statutory framework, but becasue of Sentinel's failure or the failure of its employees to abide by the limited statutory authority granted.
The court also rejected the plaintiffs' claims that the statute allowed their imprisonment for debt, in violation of the Georgia Constitution, and that a court couldn't order, and a private company couldn't use, electronic monitoring devices.
But the court ruled as a matter of statutory interpretation that Georgia law did not allow for the tolling of misdemeanor probationers' sentences. That's because misdemeanor sentences are set by statute at one year, at which point jurisdiction over the defendant ceases, and there's no statutory authority to deviate from that rule.
Finally, the court ruled, based on Sentinel's contracts, that some of the plaintiffs could recover fees paid to Sentinel for probation services during their original probation, and that others could recover fees paid after the expiration of the term of their original sentences or for electronic monitoring.
Friday, November 21, 2014
House Republicans filed their expected lawsuit against the Obama administration, arguing that the administration spend money on the Affordable Care Act's insurer offset program without an appropriation and extended the ACA's deadline for the employer mandate without congressional authorization. The complaint is here; Jonathan Turley's post on his blog onthe case is here; we previously posted on the issue here. It's also all over the news.
The case is only the latest move by opponents of the ACA to chip away and ultimately kill the Act by a thousand cuts. It's also only the latest move by opponents of President Obama in their effort to cast him as lawless.
House Republicans' first claim involves the administration's expenditures of funds that haven't been appropriated by Congress. The ACA contains two expenditure programs. The first, the Section 1401 Refundable Tax Credit Program, provides refundable tax credits for individual purchasers of health insurance on an ACA health insurance marketplace exchange. The second, the Section 1402 Offset Program, provides direct payments to ACA insurers to offset costs that they incur in providing cost-sharing reductions to beneficiaries that are required under the Act.
House Republicans claim that Congress funded the Section 1401 program, but did not fund the Section 1402 program. Yet they say that the Obama administration is using Section 1401 appropriated funds to make payments under Section 1402. In other words, House Republicans claim that the administration is spending money that wasn't appropriated by Congress, and shifting money from one line to another, in violation of Congress's exclusive power of the purse.
House Republicans also claim that the administration unilaterally extended the deadline for the ACA's employer mandate. The ACA says that large employers will be subject to tax penalties (or shared-responsibility payments), and that those penalties "shall apply to months beginning after December 31, 2013." But House Republicans claim that the administration unilaterally altered that date, without congressional action or congressional delegation, by extending the date by which penalties will be assessed by a year.
Thursday, November 20, 2014
The Office of Legal Counsel yesterday released an opinion on the President's legal authority for his immigration plan, which he'll announce shortly. Here's the summary, in three points:
The Department of Homeland Security's proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of the DHS's discretion to enforce the immigration laws.
The Department of Homeland Security's proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS's discretion to enforce the immigration laws.
The Department of Homeland Security's proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS's enforcement discretion.
In short, the first two are OK, because the executive has authority to prioritize enforcement based on available limited resources, the actions are consistent with (and not inconsistent with) federal law and congressional priorities, and there is precedent (i.e., similar prior executive actions) for them. The third is not, because it's not consistent with priorities in federal law, and because there's no precedent.
As to the first, OCL said that "DHS's organic statute itself recognizes [that DHS must make enforcement choices], instructing the Secretary to establish 'national immigration enforcement policies and priorities.'" It also said that the proposal is consistent with the removal priorities established by Congress, that it doesn't amount to a legislative rule that overrides the requirements of the substantive statute, and that it doesn't "identify any category of removable aliens whose removal may not be pursued under any circumstances."
As to the second, OCL said that deferred action for parents of U.S. citizens and legal permanent residents is a lawful exercise of executive power, because it's based on an allocation of scarce resources (deferring action against this class in order to shift very limited resources elsewhere), and because deferred action for this class is consistent with the INA's concerns with keeping families together when possible. OCL also noted that "the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly approved in the past . . . ."
Finally, as to the third, OLC said that the President lacks authority to implement deferred action for DACA parents. OLC said that the considerations here are similar to considerations for deferred action for parents of U.S. citizens, but are different in two key respects. First, while immigration law expresses concern about keeping families together, it expresses this concern in the context of citizens and lawful residents, not DACA'd individuals (who "unquestionably lack lawful status in the United States"). Next, deferred action for DACA parents "would represent a significant departure from deferred action programs that Congress has implicitly approved in the past."
Here are some other resources on the issue:
- We posted on executive authority for DACA here.
- The CRS has a report on Prosecutorial Discretion in Immigration Enforcement here, and a Memo on DACA authority here.
- The Immigration Policy Center has a legal resources page on executive enforcement of immigration laws here.
Friday, November 14, 2014
The D.C. Circuit today upheld HHS accommodations to religious nonprofits that object to complying with contraception requirements under agency regs and the ACA. The ruling aligns with earlier rulings from the Sixth and Seventh Circuits and means that the accommodations stay on the books. (The case is not governed by Hobby Lobby, because the plaintiffs here challenge the accommodation, not the "contraception mandate" itself. Hobby Lobby had no accommodation option.)
The case represents yet another judicial attack against the ACA and its implementation. And this issue may eventually work its way (back) to the Supreme Court. (Notre Dame filed a cert. petition in October, after losing in the Seventh Circuit.)
The case is the latest challenge to HHS regulations that allow religious nonprofits to opt-out of the "contraception mandate" by filing a form with their insurer or a letter with HHS stating their religious objection to providing contraception. (The letter to HHS is the agency's regulatory answer to the Supreme Court's action this summer that enjoined the form and held that a religious nonprofit could instead file a letter with HHS.) Plaintiffs (religious nonprofits) argue that the accommodation itself violates the RFRA (among other things), because the accommodation "triggers" the provision of contraception by third parties.
The D.C. Circuit flatly--and quite thoroughly--rejected this claim. In sum:
We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs' religious exercise under RFRA. All plaintiffs must do to opt out is express what they beleive and seek what they want via a letter or two-page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.
The court held that the accommodation was merely a de minimis requirement and not a substantial burden--and therefore not subject to RFRA's strict scrutiny. "In sum, both opt-out mechanisms let eligible organizations extricate themselves fully from the burden of providing contraceptive coverage to employees, pay nothing toward such coverage, and have the providers tell the employees that their employers play no role and in no way should be seen to endorse the coverage." The court emphasized that RFRA "does not grant Plaintiffs a religious veto against plan providers' compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties."
The court said that even if the accommodation were a substantial burden, the court would uphold it under RFRA's strict scrutiny. That's because "[a] confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it." Examples: the benefits of planning for healthy births and avoiding unwanted pregnancy, and the promotion of equal preventive care for women. "The accommodation requires as little as it can from the objectors while still serving the government's compelling interests."
The court also clarified some important aspects of the way the accommodation works. For one, exercising the accommodation doesn't "trigger" anything; instead, it works to take the religious nonprofit entirely out of the contraception-provision business. For another, religious nonprofits' contracts with providers don't authorize or facilitate contraceptive coverage; the federal regs do. Finally, exercising the accommodation doesn't turn a religious nonprofit's plan into a "conduit for contraceptive coverage"; instead, it takes the the religious nonprofit out of the contraceptive business entirely.
Tuesday, November 11, 2014
The Supreme Court will hear oral arguments tomorrow in the case challenging Alabama's re-drawing of its state legislative districts after the 2010 census. The case pits a claim under Section 2 of the Voting Rights Act against a defense under Section 5, although the constitutionality of those provisions is not (directly) at issue in the case.
Alabama redrew its state legislative districts after the 2010 census in order to maintain equal population across districts (within 2 percent), to maintain the existing number of majority-minority districts, and to maintain the existing percentage of black voters in those majority-minority districts. But the state's demographics shifted so that in order to achieve those goals the state had to pack black voters into existing majority-minority districts. The net result was to consolidate minority voting power in these majority-minority districts, but to enhance Republicans' power in the rest of the state.
Democrats and black legislators and groups sued, arguing that the re-districting plans violated Section 2 of the Voting Rights Act and amounted to racial and political gerrymanders. The state countered that it was compelled to draw the districts this way under Section 5 of the VRA in order to preserve majority-minority districts and to avoid retrogression. (The irony of Alabama using Section 5 as a shield after it so vigorously attacked Section 5 in Shelby County has escaped no one.)
The three-judge district court divided along party lines--the two judges appointed by a Republican president ruling for the state, and the lone judge appointed by a Democrat dissenting.
The case pits the plaintiffs' Section 2 claim against the state's Section 5-based reason for the districts. The state's position--that Section 5 made them do it--is part of a larger trend of states applying "not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act--substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands," according to Loyola's (Los Angeles) Justin Levitt. The state's position also potentially puts the constitutionality of Section 5 before the Court: If Section 5 requires race-based decisions like this, isn't it unconstitutional? That question isn't squarely before the Court, but it's certainly lingering behind the curtains.
The Supreme Court will hear oral arguments tomorrow in Comptroller v. Wynne, the case testing the scope of a state's authority to tax the out-of-state income of its residents. In particular, the case asks whether a state can provide a credit for income tax paid to other states against a resident's state income tax without also providing a credit against that resident's county income tax. Here's an exerpt from my preview of the case for the ABA's Preview of United States Supreme Court Cases:
Maryland imposes a “state income tax” and a “county income tax” on all of the income earned by a Maryland resident, even income earned out of state. (For those subject to the state income tax but not the county income tax, because they live out of state but earn income in Maryland, the state imposes a “Special Non-Resident Tax,” or “SNRT.”) That means that a Maryland resident who earns income out of state pays the Maryland “state income tax,” the Maryland “county income tax,” and the state income tax of the other state on that income. Maryland allows an off-setting credit for income tax on out-of-state income tax paid in another state, but only as to the Maryland state income tax, not as to the Maryland county income tax. (Maryland used to allow the off-setting credit as to the state income tax and the county income tax. But in 1975, the legislature amended the state tax code to eliminate the credit as to the county income tax.)
An example may help. (This comes from the Maryland Court of Appeals ruling in this case.) Suppose that Maryland imposes a state income tax of 4.75 percent on all income earned by its residents, a county income tax of 3.2 percent on all income earned by its residents, and an SNRT of 1.25 percent on the income earned by non-residents in Maryland. Suppose that Pennsylvania imposes the exact same taxes at the exact same rates.
Suppose that John lives in Maryland and earns $100,000 per year. Suppose he earns half of his income from activities in Maryland and half of his income from activities in Pennsylvania. If so, John owes $4,750 (or .0475 x $100,000) in Maryland state income tax and $3,200 (or .032 x $100,000) in Maryland county income tax, for a total of $7,950 for all Maryland taxes.
At the same time, John also owes $2,375 (or .0475 x $50,000) in Pennsylvania state income tax and $625 (or .0125 x $50,000) in Pennsylvania SNRT tax for a total of $3,000 for all Pennsylvania taxes.
Based on John’s tax owed to Pennsylvania, John qualifies for a Maryland state tax credit in the amount of $2,375 (the maximum allowable credit under the Maryland tax code, given the assumptions in this example). That means that John owes a total Maryland tax of $5,575, and John’s total state income tax burden is $8,575 (or $5,575 for all Maryland state taxes plus $3,000 for all Pennsylvania state taxes).
(Note that John’s total state tax burden is $625 more than the total state income tax burden for an individual, let’s call her Mary, who earned the same amount of income, but only in Maryland. Mary would only owe $7,950 in Maryland state taxes—the same as John’s Maryland state tax burden without the credit for taxes paid to Pennsylvania.)
In the 2006 tax year, Brian and Karen Wynne found themselves in a position like John’s—that is, paying state income taxes in other states, but not receiving a credit toward their Maryland county tax. Brian and Karen Wynne are a married couple living in Howard County, Maryland. Brian Wynne was one of seven owners of Maxim Healthcare Services, Inc., a company that does a national business providing healthcare services. Maxim is an S-corporation under the Internal Revenue Code, which means that Maxim’s income is imputed (or “passed through”) to its owners for federal income tax purposes. Maryland also accords pass-through treatment to the income of an S-corporation. In 2006, Maxim earned income in 39 states and, as an S-corporation, allocated to each owner a pro rata share of the taxes paid in each state.
The Wynnes reported Brian Wynne’s income from Maxim on their 2006 Maryland state tax return. The Wynnes claimed a credit based on Brian’s pro rata share of state and local income taxes paid to other states.
The Maryland Comptroller made a change in the computation of the local tax owed by the Wynnes and revised the credit for taxes paid to other states. This resulted in a deficiency in the Maryland taxes paid by the Wynnes, and they appealed. After exhausting their administrative appeals, the Wynnes appealed to the Maryland Tax Court, where they argued that the limitation on the credit to the Maryland state tax (which did not extend to the Maryland county tax) for tax payments made to other states discriminated against interstate commerce in violation of the Dormant Commerce Clause of the United States Constitution. The Tax Court rejected the argument, and the Wynnes appealed, until the Maryland Court of Appeals, the state high court, agreed. This appeal followed.
While the Commerce Clause gives Congress authority to regulate interstate commerce, the so-called Dormant Commerce Clause restricts the states from discriminating against interstate commerce. (The Dormant Commerce Clause is not in the Constitution as such. Instead, the Court infers it from the Commerce Clause and federalism principles.) One way that a state might discriminate against interstate commerce is through its tax scheme. When this happens, the Court uses a four-part test first articulated in Complete Auto Transit, Inc. v. Brady. 430 U.S. 274 (1977). Under that test, a state tax does not violate the Commerce Clause if
- [the tax] is applied to an activity with a substantial nexus to the taxing state;
- it is fairly apportioned so as to tax only the activities connected to the taxing state;
- it does not discriminate against out-of-staters; and
- it is fairly related to services provided by the state.
The Maryland Court of Appeals held that the Maryland tax scheme violates the second and third prongs of this test. The court ruled that the tax scheme was not fairly apportioned, because it amounted to double-taxation of income. The court ruled that the scheme discriminated against out-of-staters, because it favors individuals who do business only in Maryland over individuals who do business across state lines.
The parties disagree over whether and how the Complete Auto test applies to the Maryland tax scheme for individual income taxes passed through an S-corporation. (That last part is important, because, as described below, different rules may apply to a state tax scheme for corporate income taxes owed by a C-corporation.) They also disagree over the application of the time-honored principle that states can tax all the income of their residents, even income earned in other states.
Maryland argues first that states have authority to tax all income of their residents, including income earned outside the state’s borders. The state says that this authority is based on the taxpayer’s domicile, not the source of his or her income, and it claims that the state’s authority to tax its residents is justified based on the substantial benefits that residents receive from the state. The state contends that it has designed its income tax system to ensure that all Maryland residents contribute to the benefits that the state offers those residents. In particular, the state says that the tax credit for out-of-state income tax is designed to reduce Maryland tax payments for residents earning income outside the state while at the same time requiring those residents to pay some income tax to support state and local government programs.
The state argues that the Maryland Court of Appeals ruling—compelling Maryland to give a credit for tax payments to other states against both the state income tax and the county income tax—would mean that certain Maryland taxpayers could take advantage of state and local benefits “without contributing any income taxes in return.” The state claims that this is particularly unjustified, because Maryland taxpayers can exercise their political power within Maryland to change the state tax system. (In contrast, the state argues, other tax schemes invalidated by the Supreme Court involved disproportionate income taxes on nonresidents, who did not have political power within the taxing state.) The state says that “Maryland’s system simply asks something more of the State’s own citizens,” and that those citizens can work through the political process to change it, if they like.
The state argues next that the Maryland Court of Appeals ruling would undermine the principle that a state can tax all the income of its residents, wherever earned. It says that the ruling effectively means that a state is barred from taxing its residents’ out-of-state income to the extent that another state has already taxed that income. This, in turn, means that a state’s authority to tax its residents’ income is subordinate to another state’s authority to tax that income. The state contends that this does not square with the general rule that a state can tax all its residents’ income. It also says that this is not supported by the Constitution, which treats all states equally for this purpose and does not provide a priority of states’ authority to tax.
The state claims further that no principle of double taxation bars Maryland from denying a credit toward the Maryland county tax. It says that there is no problem with double taxation so long as both sovereigns have valid authority to impose the taxes that result in double taxation. It claims that this rule is consistent with the principle that a state can impose taxes to pay for a fair share of services, and the reality that “states do significantly more for their residents than they do for taxpayers who simply earn income within their territory.”
Finally, the state argues that the Maryland Court of Appeals wrongly applied the standard under Complete Auto Transit, Inc. v. Brady. It says that the court wrongly looked at the taxes that the Wynnes paid to all states, and not the taxes they paid only to Maryland. The state contends that the Maryland scheme, taken on its own, is completely neutral with respect to interstate commerce, and that a higher overall tax burden (as illustrated in the example above) is only due to the accident of two taxing sovereigns simultaneously exercising their valid taxing authorities. Moreover, the state claims that the Maryland Court of Appeals was wrong to conclude that the Maryland tax is not fairly apportioned. It says that the Maryland tax is based on Maryland residency, and that there is no need for it to be apportioned—indeed, that residency cannot be apportioned.
The federal government, weighing in as amicus curiae in support of Maryland, adds that Wynne is wrong to focus on whether the Commerce Clause requires states to offer credits for out-of-state income taxes paid by corporations. (Wynne’s argument on this point is summarized below.) The government says that C-corporations have a different relationship to, and receive different benefits from, the state than individuals (taxed as an S-corporation)—and that corporate income tax is different than personal income tax. The government contends that this means that the Commerce Clause analysis for these different types of taxes might be different. Moreover, the government says that it is an open question whether states must apportion income of resident corporations by providing credits for out-of-state income tax.
Wynne argues first that the Maryland tax scheme violates the Commerce Clause. He says that the scheme results in double taxation of out-of-state income as a result of engaging in interstate commerce. He says that the Court has long invalidated that kind of tax.
Wynne argues next that the state applies the wrong test. Wynne says that the state never applies the Complete Auto test and instead “tries to float above the Commerce Clause jurisprudence” to find an exception to the rule that a state may not double tax interstate commerce. He claims that the state’s reliance on its sovereign authority to tax its residents is misplaced, because the Court has struck state taxes—even taxes on residents—that violate the Commerce Clause. He contends moreover that this reliance is misplaced, because the Court’s jurisprudence has never turned on labels (like “residency”); instead it turns on whether a tax substantially affects interstate commerce. And Wynne says that Maryland’s scheme has a substantial effect on interstate commerce, because, as here, “it discourages interstate activity by a corporation that operates in dozens of States.”
Wynne argues that the state is wrong to say that it can double-tax income in order to ensure that residents pay for state services. He claims that he would still pay substantial state income taxes even with a credit against his county tax, and that he pays all manner of other state taxes that go to support state services. And Wynne contends that Maryland and other states provide extensive services to resident corporations, but that, under Supreme Court precedent, they cannot double-tax them. He says that this shows that Maryland’s argument about paying for services “proves too much.”
Finally, Wynne argues that the state’s position would have a “bizarre result.” He says that the state’s position means that states could not double-tax resident C-corporations, but could double-tax resident S-corporations. He claims that this makes no sense, given that each kind of corporation engages in interstate commerce.
This case could have immediate and important fiscal significance for Maryland and states and municipalities around the country. For Maryland, a ruling affirming the Maryland Court of Appeals could cost the state between $45 and $50 million per year in tax revenue, and as much as $120 million in retroactive tax-refund claims. Around the country, such a ruling could affect more than 2,000 municipal income taxes nationwide that might not provide credits for out-of-state income taxes. States could seek to make up losses by increasing income tax rates (or imposing or increasing other taxes), but that option could be politically difficult.
More generally, the case potentially tests the long-standing principle that a state may tax all the income of its residents, even if earned out of state. But this principle is well established and universally relied upon. The Court is unlikely to rule in a way that threatens it.
Finally, the ruling of the Maryland Court of Appeals is in tension with other state-court rulings on similar (but not exactly the same) issues. This case will settle the matter, and tell us whether a state must provide a credit against all aspects of the state income tax.
Monday, November 10, 2014
The D.C. Circuit today upheld an appointment to the NLRB on the first day of a 17-day intra-session recess of the Senate for a vacancy that existed before the recess. The case is an application of the Supreme Court's ruling last Term in Noel Canning--and it shows why all three parts of that ruling matter.
The case was a challenge to an NLRB decision based on lack of quorum, just like Noel Canning. In particular, the appellants, Stevens Creek Chrysler Jeep Dodge, argued that President Obama's appointment of Gary Becker to the Board violated the Recess Appointment Clause, because President Obama made the appointment to an already-existing vacancy on the first day of an intra-session recess.
The D.C. Circuit said that the recess appointment authority extends to intra-session recesses and to vacancies that already existed at the time of the recess, based on two of the holdings in Noel Canning. The court also said that the 17-day recess here was longer than the 10 days that the Supreme Court identified as enough to constitute a "recess."
Breaking a little new ground, however, the court also said that it didn't matter that Becker's appointment came on the first day of this 17-day recess. That's because, under historical examples that the Court relied upon in Noel Canning, the "lawfulness of a recess appointment depends on the ultimate length of the recess . . . not the number of days from the start of the recess to the appointment."
But don't count on this to shift the balance of power back to the President (by allowing him to recess appoint on the first day of any open-ended recess). Instead, it'll only mean that the Senate, if it wants to foil the use of the recess appointment power, won't have an open-ended recess; it'll define the recess and use pro forma sessions (as it did in the recess leading to Noel Canning).