February 22, 2012
Oral Argument Analysis in Stolen Valor Case: US v. Alvarez
The Supreme Court heard oral arguments today in United States v. Alvarez, the so-called "Stolen Valor" case. The Ninth Circuit, in a divided opinion, held a provision of the act unconstitutional: 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."
Taking the somewhat unusual step of deciding a case that would be resolved by a case already scheduled for oral argument, the Tenth Circuit weighed in on the issue last month, also in a divided panel opinion, but reaching the opposite conclusion.
The Solicor General argued for the concept of "breathing space" - - - imported from defamation doctrine as Justice Kennedy quickly pointed out - - - to be applied. Justice Roberts also rather quickly posed one of the many slippery slope scenerios:
CHIEF JUSTICE ROBERTS: Well, where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't. That's something you can check pretty easily. And Congress can say: We want people to finish high school. It's a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do when they don't.
Kennedy later posed another one in rebuttal, and generally seemed unconvinced by the "breathing space argument": "The whole breathing space thing almost has it backwards. It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don't think that's our tradition." yet Kennedy quickly added, " On the other hand, I have to acknowledge that this does diminish the medal in many respects."
The issue of "harm" also preoccupied the argument. The theory of the Solictor General (and Congress) is that those who have actually received medals are "harmed" because the value of the medals are diluted by false claims. Justice Sotomayor seemed unconvinced that there could be harm without pecuniary interests or individual harm to reputation, but the Solictor general maintained that the "misappropriation of governmental conferral of esteem" caused "substantial harm." In questioning Jonathan Libby, counsel for Alvarez, Justice Alito stated that the problem he had ith the argument was "determining which harms you think count and which harms don't count."
In discussing less restrictive means by which the government could accomplish its goals, Justice Scalia fancifully suggested a "Medal of Shame" for those who have falsely claimed the Medal of Honor, which Libby then distinguished from the more severe sanction of a criminal penalty.
Justice Ginsburg focused on the proposed amended Stolen Valor Act of 2011 that would criminalize false representations about medals “with the intent to obtain anything of value.” This led to a discussion of whether Alvarez would have been criminalized under that type of statute and what "a thing of value" would mean. Justice Scalia suggested that having a crowd cheer for one would be a thing of value. Then,
JUSTICE ALITO: Suppose what the person gets is -- is a date with a potential rich spouse. Would that be enough?
MR. LIBBY: Your Honor, I think when it comes -- when you get into the situation where you're getting something like a date, I do not know that -- I certainly wouldn't consider that a non de minimis thing of value, but -
JUSTICE ALITO: Some people might have a different opinion.
The opinion of Alito generally seemed to be that Congress has broad authority to criminalize falsehoods, but the opinions of the other Justices seemed less clear.
February 08, 2012
Oral Arguments in Torture Suit Against Rumsfeld
The en banc Seventh Circuit heard oral argument on Wednesday in Vance v. Rumsfeld, the case by two American military contractors against the former Secretary of Defense (among others) for authorizing their torture while in military detention in Iraq. We posted on the three-judge panel decision allowing the case to move forward here. The full Seventh Circuit vacated that decision and took up the case en banc.
The plaintiffs, Vance and Ertel, filed a Bivens claim against Rumsfeld and others, seeking monetary damages and injunctive relief. The government, on behalf of Rumsfeld, moved to dismiss, arguing that special factors counseled against a Bivens remedy, namely wartime context and the military's ability to do its job without threat of litigation.
The arguments today focused around these themes--all relating to special factors counseling against Bivens except the last one:
Disincentives. Some on the bench, led by Judge Posner, were concerned that allowing a Bivens claim to move forward here would discourage talented people from considering public service. Others expressed concern that not allowing a Bivens claim here would give a green light to the military to violate whatever constitutional provisions it likes, with no judicial check.
Separation of Powers. Some, again led by Judge Posner, argued that Congress was the better branch to provide a remedy, and that the courts should take great caution in crafting a judicial remedy, or in applying Bivens beyond its narrow facts.
Contractor Status. Judge Posner pressed the plaintiffs' attorney about the plaintiffs' contractor status, suggesting that this status, equivalent in all but name to active members of the military, creates exactly the same special factors counseling against a Bivens remedy that an active-duty member's claim raises. And the courts have rejected Bivens for such a military-on-military claim.
Alternative Remedies. Several on the bench seemed concerned that the plaintiffs hadn't pursued, or hadn't at least tried to pursue, alternative compensation remedies through the Defense Department.
Judge Posner, the most vocal voice on the court against a Bivens damage remedy, was also most vocal about saying that the plaintiffs could get injunctive relief. Thus one possibility is that the en banc court would dismiss the damage action but allow injunctive relief to move forward. The problem: Plaintiffs might then face a Lyons-like standing problem.
Another possibility: The en banc court might dodge the thorny question of special factors and instead dismiss the case based on the plaintiffs' failure to pursue alternative remedies.
Oddly, nobody on the bench (or behind the podium) seemed to consider that the qualified immunity doctrine could cover for the discourage-public-service concern--and that qualified immunity might do it in a better way: Allowing the Bivens case to move forward would give the plaintiffs their day in court and only discourage plainly unconstitutional public service, not all public service.
February 8, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Oral Argument Analysis, War Powers | Permalink | Comments (0) | TrackBack
January 11, 2012
Court Considers Opt-Out Options for Union Assessment
The Supreme Court heard oral argument yesterday in Knox v. SEIU, the case testing whether a union had to issue a special opt-out notice to nonmembers when it increased its assessment mid-year. The case comes to the Court on nonmembers' First Amendment challenge--whether the failure to provide a special opt-out notice violates their speech and associational rights not to support the union's political (i.e., non-bargaining) activities. But as the argument yesterday suggests, it could turn on something much more practical: how to craft a rule that would give a union enough flexibility to adjust its assessments mid-year, while still respecting nonmembers' rights to opt-out of supporting the union's political agenda. Or it could turn on something else entirely: standing.
In the ordinary course of things, the union collects dues once a year and issues a notice--a Hudson notice, after Chicago Teachers Union v. Hudson (1986)--that allows nonmembers to opt-out of dues that would go to the union's political expenditures (but not dues that would go to the union's collective bargaining expenditures). The union here regularly anticipated dues for the next year based on audited prior year expenditures and issues a Hudson notice that reflected that. This was a practical solution, designed to estimate the union's coming year expenditures while protecting nonmembers from supporting the union's political activities that nonmembers may not wish to support. No party challenged this basic procedure.
But in 2005, shortly after the union issued its 2005 Hudson notice, the union increased its assessment slightly to fund its opposition to anti-union ballot initiatives. The union did not issue a separate Hudson notice for this increase, although nonmembers could have objected under the 2005 Hudson notice and the 2006 Hudson notice. (The 2005 Hudson notice did not include the mid-year increase, but it did say that dues and fees were subject to change. The 2006 Hudson notice did include the mid-year increase, because, as above, the estimate in each year's Hudson notice is based on last year's actual audited expenditures.)
Nonmembers claimed that this violated their First Amendment rights to not support causes they don't agree with. Again: They didn't challenge the fundamental Hudson process, just the lack of a Hudson notice for the 2005 mid-year increase.
The district court granted summary judgment for the plaintiffs, but the Ninth Circuit reversed. After the Court granted cert., the union sent all nonmembers a notice that permitted them to obtain a refund of the increased assessment and a $1 bill, representing nominal damages. The union claimed that this satisfied the district court order and argued that it mooted the case.
The argument yesterday focused a good deal on mootness. The plaintiffs tried to persuade the Court that the union's mid-year increase without a separate Hudson notice was capable of repetition but evading review, while the union argued that its eleventh-hour notice gave the plaintiffs all the relief they could possible get even under the district court's order. There were skeptics on the bench on both sides. For example, Justices Ginsburg and Kagan both suggested that the capable-of-repetition exception usually applies to cases involving injunctive relief, and this case doesn't. On the other side, Chief Justice Roberts and Justice Kagan both suggested that the plaintiffs said that the union's notice didn't satisfy the district court's order--a live dispute--and that the union can't say that there is no standing at the Supreme Court, while there is standing at the district court (even if only on the question whether the union's notice satisfied its order).
Despite the significant focus on mootness, however, Chief Justice Roberts also moved both parties along to the merits. On the merits, the Court treated the question as a choice between (1) a forced loan by the nonmembers to the union to support political causes they don't wish to support and (2) a practical solution that gives the union flexibility to adjust assessments mid-year while still respecting nonmembers' right to opt-out.
The plaintiffs pressed for a rule that would require a Hudson notice each time there was a "material alteration in the obligations that are imposed upon nonmembers," without regard to the reason for the assessment. But it's not clear that that rule is workable, or that it is efficient, or that it would benefit (and not hurt) nonmembers. Justice Breyer put it this way:
It's peculiar, because in the circumstances where the extra assessment is all going to go to chargeable [non-political] activities, in fact that means economically speaking the following year the objector will be better off, not worse off, because there is a higher pecentage of the total fee that's being paid to chargeable activities.
Response: "Justice Breyer, the reason for the notice is these people may not trust the union. They -- they may choose to challenge the amount of the fee."
This may not be enough, though. The plaintiffs also conceded that the union could shift funds mid-year to use more than anticipated on political activities--without a separate Hudson notice. This practice would be even less transparent than the practice that the union followed here. This point did not go unnoticed, particularly by Justices Breyer and Kagan. Justice Sotomayor added that she didn't see how the mid-year increase amount to a loan, especially when nonmembers could object with the next Hudson notice and when in any event they ultimately benefit from it (for the reasons that Justice Breyer said).
On the other side, Justice Alito described the practice here as a forced loan, without interest, for activities that nonmembers may not support. He said that the stakes could be quite different for nonmembers, if the percent of nonchargeable and chargeable costs are reversed, and asked "why should [nonmembers] not be given a notice at that time and given the opportunity not to give what would be at a minimum an interest-free loan for the purpose of influencing an election campaign?"
Justices Breyer and Sotomayor returned to the practical: they wanted to know from the union how much of a hassle it would be to provide a special notice with each mid-year increase. Answer: the magnitude of the hassle may be high, but the union's attorney didn't know how often unions would have to do this.
Justice Kennedy reminded the union that there are significant First Amendment interests at issue here:
And the point there was that you're taking someone's money contrary to that person's conscience. And that's what the First Amendment stands against.
Justice Kennedy also threw a bit of a curve ball toward the end of the union's argument, suggesting that "even collective bargaining involves a core political judgment." This position would erase the distinction between chargeable and nonchargeable costs and could undo even the routine Hudson practice that the union employs. No party went so far, and no other Justice picked up on this point, however. It's not even clear that Justice Kennedy intended much by it: he prefaced this line of questioning with "just in the way of background."
If the Court avoids fully wrestling with Justice Kennedy's larger question and thus avoids potentially upsetting a routine practice that nobody seems to object to (as seems nearly certain), and if the Court gets past mootness (as seems far less certain), the case will likely come down to the practical: How best to allow the union some flexibility, while respecting nonmembers' rights to opt-out. But Justice Kennedy's point is a reminder of the stakes; and even in a very practical calculus, for this Court it could mean a thumb on the scale of the nonmembers.
January 10, 2012
FCC v. Fox Argument: On Naked Buttocks, Regulated Media, and the First Amendment
The precise issue before the Court in today's oral argument in FCC v. Fox is more muddled than not. Indeed, Justice Breyer stated in argument that he thought that was the issue was limited to "fleeting expletives" when the Court granted certiorari - - - "Fox coming back" - - -but instead "This is a new case, nothing to do with what we decided before. This is the case of ABC, period. And it is an attack on the 2001 guidelines, not fleeting expletives."
Yet both Fox (represented by Carter G Phillips) focused on the "fleeting expletive" sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli).
The Justices - - - sans Sotomayor who did not participate - - - did seem reluctant to honor the respondents' request to overrule FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current climate. Justice Alito stated that "broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes," and asked Carter Phillips, "So why not let this die a natural death? Or why do you want us to intervene - - -" Phillips, rightly pointed out that it was actually the FCC that had asked the Court to intervene, although Alito retorted that "you are asking us to intervene by overruling a prior precedent."
The notion that "regulated media" is an exception, or at least a special case, with regard to general obscenity doctrine, is certainly under pressure. The Solictor General began his argument with a sort of contractual theory - - - when "a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations," including "the indecency restriction." Verrilli also emphasized radio, which although not before the Court, was in Verilli's view important because "a lot of the most vile and lewd material really is in radio." However, the Justices seemed more concerned with whether today's television viewers actually knew whether they were watching broadcast television or cable television, as well as the other types of media and whether or not there were adequate parental controls.
An assumption of no constitutional difference for regulated media underlied some of the arguments regarding the obscenity of "buttocks." Indeed, as Seth Waxman pointed out, the art in the Supreme Court itself might be instructive:
MR. WAXMAN: Well, there's a bare buttock there, and there's a bare buttock here. And there may be more that I hadn't seen. But frankly, I had never focused on it before. But the point -
JUSTICE SCALIA: Me neither.
Yet even if there is a special status for regulated media, the line-drawing still poses problems.
JUSTICE GINSBURG: If they did an excerpt from "Hair," could they televise that?
GENERAL VERRILLI: I think it would raise serious questions. I think nudity is going to raise very serious questions, and I think-
JUSTICE GINSBURG: In the opera in the "Metropolis" case [ "The Makropulos Case" see comments ] there's a scene where a woman is seen nude entering a bathtub. Suppose that were shown, that scene from the opera.
GENERAL VERRILLI: Well, I don't -- I think, Justice Ginsburg, that in a context-based approach, there's not going to be perfect clarity.
If the oral arguments are any indication, the Court's ultimate decision will not introduce "perfect clarity" into this complex doctrine.
[image: from the Supreme Court friezes via]
Texas Redistricting Arguments
The Supreme Court heard oral argument yesterday in Perry v. Perez, the Texas redistricting case testing what deference a federal district court in Texas should give to the Texas legislature's redistricting plan, when preclearance of the plan is pending in the Federal District Court for the District of Columbia. We posted most recently here.
Questioning suggested that the Justices are likely to fall along the traditional divide, with Justice Kennedy likely straddling (but leaning toward Texas)--if the Court is forced to choose between the Texas legislature's plan and the Texas court's plan. But that may be a big "if": Questioning also suggested that at least some of the Justices (including Justice Kennedy) are looking for a third way, a practical, fair solution--outside the dualistic choice of the Texas legislature's plan or the Texas court's plan--that navigates Section 2 and Section 5 of the Voting Rights Act given the tension between the two here and given the very short timeline. This might be a variation on some other plan (like Judge Smith's plan, in dissent in the Texas court), or switching the burden to Texas in the Section 2 case while Section 5 preclearance is pending, or some other alternative. It wasn't clear that a majority of Justices could coalesce around any particular third way, but it was clear that some on the bench were looking for one.
The case grows out of Texas's redistricting efforts in the wake of the 2010 census. Texas had to redraw its congressional districts and its state House and Senate districts to comply with the one-person, one-vote principle. Texas, as a covered jurisdiction under the Voting Rights Act, also had to get preclearance under Section 5 of the VRA for its redistricting plan from either the Department of Justice or the Federal District Court in the District of Columbia. Texas chose the latter, slower method, and preclearance is still pending.
At the same time, a group of plaintiffs filed suit in a federal district court in Texas, alleging that Texas's plan violated Section 2 of the Act, because it illegally discriminated.
Because preclearance was pending in the D.C. court, the Texas court drew its own maps as an "interim" plan for the state. (There was, as is, some urgency, as Texas's elections are impending. Texas has an unusually early primary, which it agreed to push back as long as maps are in place by February 1.) Texas appealed, and the Supreme Court put the case on the fast track.
In briefing, Texas argued that the Texas court should have granted deference to its plan--the one that's pending preclearance. The plaintiffs and U.S. government argued that the court rightfully drew its own maps and owed no deference to a yet-to-be-precleared map by a covered jurisdiction. Chief Justice Roberts put the core problem this way:
One, you cannot assume that the legislature's plan should be treated as if it were precleared. The district court in Texas cannot assume or presume what the district court here in D.C. is going to do.
But on the other hand, it can't presume it the other way. In other words, it can't draw its interim plan assuming that there are going to be these section 5 violations, because that's presuming what the Court's going to do the other way. So how do we decide between those two--you have two wrong choices. How do we end up?
The choice for the Court is not necessarily binary--as between the Texas plan and the Texas court's plan--but if it wants to explore third options, it'll need to move very quickly, or put the Texas primaries back even further.
In briefing, nobody took on the Texas court's authority to draw its own map at all, and nobody took on congressional authority to enact Section 5 of the VRA, requiring preclearance in the first place (although Texas pushed in this direction in its reply brief).
At oral argument yesterday, Justices Sotomayor and Ginsburg came right to the point, pressing Paul Clement (arguing for Texas) on the state's position that the Texas court should have granted complete deference to Texas's plan, even as preclearance was pending in the D.C. court. Justice Kagan approached the question in a different way, asking whether the state's position meant that the Texas court should just mimic what it thought the D.C. court would do. Through both lines of questions, Clement stuck to his position--that the Texas court should defer to Texas's plan--arguing that the D.C. court was likely to indicate that at least part of the Texas plan satisfied the Section 5 standard, and then, under Upham v. Seamon, the Texas court should grant deference to the whole thing.
Justice Alito quickly moved to the pragmatic, asking how Texas would feel moving its primary back yet further to deal with the case. Or, more precisely: Would Texas prefer the Court to deal quickly with a binary choice (leaving the primaries where they are), or would Texas accept a delayed primary to allow the Court to fully explore third options? Clement's answer suggested that Texas would be fine with a delayed primary.
Clement offered two districts to illustrate why the Texas court got it wrong. But when pressed, by Justices Breyer and Sotomayor, why the court got it wrong, he couldn't answer, at least not to their satisfaction. Justice Scalia helped out--because the court assumed the validity of the challenges to Texas's plan--but Clement's answer still seemed incomplete.
Justices Alito and Scalia pressed the government, represented by Sri Srinivasan, and the plaintiffs on the inherently political nature of legislative map-drawing--or the inherent policy choices involved in line-drawing--and why the court's maps weren't just as political, or didn't involve similar policy choices, as the Texas legislature's, and why the court therefore shouldn't have preferred the Texas legislature's choices over its own. (Example, from Justice Scalia: The court followed a principle of not dividing any voting districts, but that wasn't an animating principle for the legislature.) Answer: Map-drawing isn't inherently political, and the Texas court used neutral principles in drawing its maps. This didn't seem to assuage the Justices' concerns, for the reason that Justice Scalia suggested with his example. Chief Justice Roberts hit the heart of the problem, for some, in the government's (and plaintiffs') position:
[Y]ou can't treat it as if it's being pre-cleared because that would be prejudging what the court is doing in D.C. But you have no trouble with them saying, assuming that there are going to be these section 5 violations, in drawing additional majority-minority districts, which is just assuming in the other way what the court here in D.C. is going to do.
I don't know how you lean one way and say, it's horrible, you can't use it because it hasn't been precleared, but it's all right in drawing the interim plan to treat it as if preclearance has been denied.
Srinivasan's answer, again: The district court had to "apply traditional districting criteria to the benchmark."
Questioning with the plaintiffs' attorney, Jose Garza, focused on a particular district, district 33, and some on the bench, led by Chief Justice Roberts, suggested that the court drew it as a minority coalition opportunity district, putting two different minority groups together because the court thought they would vote similarly. Garza, helped by Justice Breyer, explained that the court drew the district to reflect population growth in the Dallas-Fort Worth metro area, not to create a district using illegal criteria under the VRA. Justice Kennedy said that he inferred that the court thougth a minority coalition opportunity district was desirable; Garza said it was "fair." Questioning turned again to the pragmatic, considering the impending elections, and ended with Justices Kennedy and Kagan exploring different possible solutions-- respectively offering Judge Smith's plan (the dissent in the Texas court's plan), or some variation; and flipping the burden to Texas in the Section 2 case.
January 10, 2012 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack
December 21, 2011
The Constitutional Issues Facing Sheriff Joe Arpaio
Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times. As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances.
The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.
A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails. In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant. During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail. The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments. The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor. As a press release from Mendiola-Martinez's attorneys summarizes the law:
The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.
The immunity of Joe Arpaio will surely be raised by his attorneys. The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests. The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here. Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:
24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.
38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.
"You come to court without briefs?" Kozinski chides, waving some papers in the air.
GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.
40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.
This could be a useful bit for ConLawProfs mentoring or judging moot court teams.
In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings. The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies. This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997. In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."
The December 15 letter specifically focuses on Arpaio's role:
Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.
There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]
December 21, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Gender, Medical Decisions, News, Oral Argument Analysis, Privacy, Race, Reproductive Rights, Speech, Teaching Tips | Permalink | Comments (1) | TrackBack
October 12, 2011
Court Considers Constitutionality of Strip Searches for Arrestees
The Supreme Court heard oral arguments today in Florence v. Board of Chosen Freeholders (Burlington), asking whether arrestees can be strip-searched on admission to jail without reasonable suspicion.
The case grew out of Albert Florence's arrest and jailing on an outstanding warrant. The arresting officer took Florence to Burlington County Jail, where officers conducted a strip-search and a visual body-cavity search (including a shower) as part of the intake process. Florence was detained at Burlington for six days and was then transferred to Essex County Jail. Officers at Essex conducted similar searches, but this time required Florence to squat and cough to expel any contraband. Neither Burlington nor Essex officers had reasonable suspicion that Florence was concealing contraband.
Florence argued that his searches violated the Fourth Amendment, because officers lacked reasonable suspicion. Burlington and Essex, helped by the U.S. solicitor general as amicus, argued that prison officials could conduct blanket intake strip searches like these without reasonable suspicion.
As we might expect, oral arguments centered around the necessary line drawing in a case like this. Justices wondered whether Florence's reasonable suspicion standard should apply to all arrestees--those arrested for both serious and non-serious offenses, violent and non-violent, drug-related and not, etc. They wondered just how intrusive a search would trigger the reasonable suspicion standard--a search at 2 feet, or at 5 feet, or at 10 feet. They wondered whether reasonable suspicion would apply to all types of searches--those conducted for contraband, and those conducted for prison health purposes (as in, say, a lice check). And they wondered about both the administrability of a reasonable suspicion standard (for the prison) and the trade on personal dignity that might accompany searches based on individualized assessment (for the arrestees).
If the arguments today are any indication, nobody on the Court seems particularly enthuastic about drawing these lines.
And yet the parties' stronger positions--that reasonable suspicion should always apply (from Florence), and that it should never apply (from the jails)--also had their drawbacks. As several justices pointed out (led by Justice Breyer), there's scant empirical evidence that contraband works its way into jails under a reasonable suspicion standard. Moreover, as Justice Alito suggested, applying blanket, suspicionless strip searches to, say, people arrested for routine traffic citations seems wrong. And as Tom Goldstein argued (for Florence), nobody seems to seriously contest the administrability of a reasonable suspicion standard; in fact, it's the one applied by the federal Marshal Service and ICE to over 600,000 arrestees every year.
On the other side, there was some evidence in the record--testimony by a prison warden--that blanket suspicionless strip searches are necessary to protect the safety of all prisoners. And, as Carter Phillips argued for the jails, the Court has granted deference in the penal context; according to Phillips, deference here means no constitutional bar to suspicionless strip searches.
Because of the inevitable line-drawing problems with any intermediate position, look for the Court to lean toward a categorical rule--either that reasonable suspicion is always required, or that it is never required. This, in turn, will almost certainly depend on administratibility and effectiveness of a reasonable suspicion rule (or not)--the kinds of empirical questions over which several justices expressed concern. But still there may be a thumb on the Court's scale against a categorical rule for reasonable suspicion: as the arguments made clear, such a rule would necessarily introduce some line-drawing--say, as Chief Justice Roberts pointedly put it, between a search at 2 feet or a search at 5 feet--and it wasn't at all clear that a majority on the Court would be comfortable with this (much less in agreement over the line).
Here's a short video by the American Constitution Society and the National Constitution Center on the story behind the case:
We previously posted on the issue here, on Bame v. Dilland, a split decision by a three-judge panel of the D.C. Circuit that the officer enjoyed qualified immunity for a suspicionless strip search of a non-violent, non-drug-related arrestee.
April 27, 2011
First Amendment and Legislative Voting
The Supreme Court on Wednesday heard oral arguments in Nevada Commission on Ethics v. Carrigan, the case testing whether a state ethics law that restricts a city council member's vote on a matter violates the First Amendment.
The Nevada law at issue prohibits a public officer from voting on or otherwise advocating the passage or failure of a matter in which the "independence of judgment of a reasonable person" in that situation would be affected by "[h]is commitment in a private capacity to the interests of others." The law defines that "commitment" to include close familial and business relationships and "[a]ny other commitment or relationship that is substantially similar to a commitment or relationship described in this subsection."
That last clause was at issue in the case.
The Nevada Supreme Court ruled that a public officer's vote was "speech," it applied strict scrutiny, and it ruled that the provision violated the First Amendment.
Arguments on Wednesday focused around two principal points. First, Justices were keenly interested in whether a legislative vote was covered by the First Amendment at all. Justice Scalia put the point most sharply early in the argument when he brought the discussion back to this threshold issue. Petitioner's counsel answered that the law here did not implicate the First Amendment and that it satisfied the viewpoint-neutrality requirement in R.A.V. v. City of St. Paul. But this answer only raised a chorus from Chief Justice Roberts and Justices Scalia, Breyer, and Kagan that if the First Amendment doesn't apply, R.A.V. isn't particularly helpful. (Justice Kagan: "If this is just conduct, if this is not proscribable speech of the kind that R.A.V. was talking about, why should we care about the viewpoint based doctrine that's arisen in First Amendment law.) Counsel seemed to confuse two distinct arguments--one that the vote isn't even speech (of any sort, protected or not), and one that even if it is speech the law is viewpoint neutral. The significant time spent on this point probably won't help the Court much at all.
But still there was some sympathy--even a lot of sympathy--on the bench for the idea that a legislative vote isn't First Amendment speech. Thus a good deal of the respondent's time was spent answering questions about just how far the First Amendment might intrude upon well established ethics restrictions on legislative and even judicial action. Chief Justice Roberts asked respondent's counsel, "So if the legislature adopts a rule that says from now on we're going to require a four-fifths majority for a bill to pass, that lowers the effectiveness of the speech of someone in the minority, and you can challenge that on First Amendment grounds?" Answer: No. Justice Scalia similarly asked about ethical rules that required recusal for judges. Again, counsel said that the First Amendment imposes no bar. But counsel didn't offer an entirely satisfying boundary for his position that the First Amendment prohibits Nevada's restriction, but not those restrictions.
And thus the second principal theme of the arguments: vagueness doctrine. The Court, again led by Justice Scalia, pressed hard on the vagueness point, suggesting that the clause at issue isn't at all clear to a reasonable person. But does the vagueness doctrine apply if the vote isn't even First Amendment speech? Answer by respondent's counsel: Yes. Here, Chief Justice Roberts offered perhaps the cleanest resolution to the case:
CJ Roberts: Is your vagueness argument, is that a First Amendment argument of its own?
Mr. Rosenkranz: It is a baseline vagueness argument on due process grounds, but it gets elevated because of the First Amendment interest.
CJ Roberts: So we can decide your vagueness--if we agree with you on vagueness, we don't have to determine whether the First Amendment applies in this type of situation?
Mr. Rosenkranz: Oh, that is correct, Your Honor, absolutely.
This may just be the key to the case: If vagueness doctrine would apply here (outside the First Amendment, and outside the criminal context, two areas where it typically applies), it could allow the Court to dodge the harder First Amendment questions and still overturn a law that by the end of the argument seemed anything but determinate, even to the Court, much less to a "reasonable person."
Questions also addressed the associational rights that might be chilled by the provision--the association between, e.g., a candidate and certain campaign workers that might fall into the provision and thus prevent the future public official from voting on a matter--and on the accompanying prohibition on advocacy for the passage or failure of a measure. The Nevada Supreme Court did not rule on these points, though, and it's not at all clear that the Court needs to (or wants to).
April 26, 2011
Sorrell v. IMS: Oral Argument Analysis
The Court heard oral argument today (transcript here) in Sorrell v. IMS which raises the constitutionality of a Vermont statute prohibiting pharmacies from selling physician aggregated prescription information to pharmaceutical companies for use of that information in physician marketing in a process known as detailing.
Arguing for the state of Vermont, Bridget Asay had an effective opening:
Under State and Federal law, doctors write prescriptions for their patients to allow them access to drugs that the government deems too dangerous for unrestricted sale. Vermont's law allow doctors to decide whether this information that they're compelled to provide to pharmacies may be used in marketing that is directed at them.
Drug companies would certainly like to have this information for marketing, but they have no First Amendment right to demand it, just as they have no right to demand access to the doctor's tax returns, his patient files, or to their competitors' business.
However, Ms. Asay was soon pressed. For example, Justice Scalia commented that the State of Vermont was "making it more difficult" for pharmaceutical companies and their representatives "to speak by restricting access to information that would enable their speech to be most effective." Ms. Asay's replied, that indeed,
their speech would be more effective if they had access to patient information, if they had access to their competitors' trade secrets. There's certainly other information available that they would like to use in marketing, but is not available to them by law, and it -- it's our position that in the same way they do not have a right to demand access to information about the doctor's prescribing practices without his consent.
Again the Justices pressed her on the First Amendment claims and she was kept over time in order to further respond. Edwin Kneedler, arguing for The Solicitor General's Office supporting Vermont, articulated several analogies, including to the Driver's Privacy Protection Act and sought to distinguish the "general advertising cases" under the commercial speech doctrine. However, as Kneedler was explaining that it was not "radio or television advertising," but "one-on-one advertising," Justice Kennedy interrupted to state, "Well, that's because the pharmaceutical company deems this to be the most efficient."
Thomas Goldstein, of Scotusblog fame, attempted to take command, starting by instructing the Justices: "You will want to have available you to the red brief of IMS Health, Incorporated," and later stating, "This information -- I would direct you to the amicus brief -- you don't have to pull it out right now, but for later. The brief of the National Association of Chain Drugstores . . ."
Goldstein rejected the State's interest in protecting the privacy of the physicians, echoing what Justice Scalia had observed earlier - - - that doctors can simply refuse to meet with drug company representatives - - - but with a personal inflection: "the doctors do get to say: I don't want you to come visit me. They do that all the time. My dad's a doctor; he doesn't visit with detailers." Goldstein continued by portraying the pharmaceutical companies both as victims of discrimination and as clearly on the side of the public good. For example,
the way the First Amendment works in the marketplace of ideas that so upsets Vermont is that both sides get to tell their story, right? The thing that is supposed to be biased here is that the drug companies have too much money. That is not a basis for restricting speech.
This is information about lifesaving medications where the detailer goes in and talks about double blind scientific studies that are responsible for the development of drugs that have caused 40 percent of the increase in the lifespan of the American public.
Justice Breyer later interjected, "It used to be true there was something called a regulated industry." His phrasing of the statement in the past tense seemed to acknowledge the present ascendancy of corporate speech.
March 28, 2011
Arizona's Campaign Finance Law and Matching Funds: Oral Argument Analysis
Arizona Free Enterprise Club v. Bennett and McComish v. Bennett, consolidated cases challenging Arizona’s statutory system of public campaign financing, were before the Supreme Court today for oral argument.
According to William Maurer, attorney for the Petitioners challenging the law, the issue before the Court is “whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates. . . .whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.”
On the other hand, Bradley Phillips, arguing for Arizona and the named Respondent, Ken Bennett, Arizona’s Secretary of State, contended that “public funding of elections results in more speech and more electoral competition and directly furthers the government's compelling interest in combating real and apparent corruption in politics.”
The Arizona scheme, The Arizona Citizens Clean Elections Act, Ariz.Rev. Stat. §§ 16-940 et seq. (2010) includes a “Matching Funds Provision,” which is triggered when the spending of groups making independent expenditures, combined with the spending or fundraising of privately financed candidates, is more than the amount a publicly financed candidate may spend under the Act’s expenditure limits for participating candidates.
The challengers characterize such a provision as a restriction and a penalty on groups making independent expenditures and privately financed candidates. The state argues that the provision is a subsidy.
The goal and practical effect of the scheme was subject to much disagreement. As Justice Kagan phrased it, the law would seemingly result in “more speech all the way around.” Justice Kennedy asked Maurer if it “would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?,” to which Maurer obviously agreed. Later, Kennedy asked Phillips a question intended, he explicitly stated, “to probe this idea that this somehow does not deter independent expenditures. I frankly am tempted to believe the opposite view, so you can tell me about that.” Phillips attempt to analogize to the deterrence that might occur when disclosure was mandated was quickly rejected by Justice Kennedy because of the longstanding different First Amendment standards regarding expenditures and disclosures.
As for the governmental purpose, Chief Justice Roberts asked William Jay, arguing for the Solicitor General in support of Respondents to agree that “under our precedents, leveling the playing field for candidates is not a legitimate State purpose?” Jay agreed, and Roberts revealed his research abilities:
Well, I checked the Citizens' Clean Elections Commission website this morning, and it says that this act was passed to, quote,"level the playing field" when it comes to running for office. Why isn't that clear evidence that it's unconstitutional?
JUSTICE KAGAN: I think the purpose of this law is to prevent corruption. That’s what the purpose of all public financing systems are.
MR. MAURER: Your Honor, I would respectfully disagree that the purpose of this law is to prevent corruption, and I would like to read from the executive director of the Clean Elections Commission who said that: “It cannot be disputed that the purpose of the Clean Elections Act is to equalize the playing field."
JUSTICE KAGAN: Well, Mr. Maurer, some people may use certain buzz words and other people don’t use those buzz words, but isn’t it true that for years what public financing systems have been based upon is the idea that when there is a lot of private money floating around the political system, that candidates and then public office holders get beholden to various people who are giving that money and make actions based on how much they receive from those people, and that’s the idea of a public financing system is to try to prevent that?
Another deeply problematic issue was whether the Arizona provision was content-neutral or discriminated against certain types of speech. Answering Kennedy's query as to whether the law was content-neutral, Maurer argued that
the only thing that will trigger matching funds, particularly for independent expenditure groups, is the content of the message. If an independent expenditure group speaks in favor of a privately financed candidate, they will not trigger matching funds. If they speak against a publicly financed candidate, they will trigger matching funds. That not is only content-based; it is also a rejection of the standard this Court enunciated in Citizens United that the government cannot make distinguishing burdens on the basis of an identity of a speaker.
In response to a similar query during his argument, Phillips later stated,
the discrimination, if you want to -- if you call it discrimination or different treatment, is based on the initial choices of the candidates as to how they're going to finance their campaigns. It's not based on the content of the speech. There's -- matching funds do not turn in any way on the ideas or the messages or the viewpoints or the subject matter of the candidate or the independent group's speech or on the identity of the speaker. It turns entirely on what choice the candidate made at the outset.
If the questions of the Justices are predictive, a divided Court seems likely to find Arizona's matching funds provision unconstitutional.
UPDATES: Lyle Denniston over at SCOTUSblog focuses on Justice Kennedy's comments, finding them predictive.
Howard Bashman at How Appealing collects today's commentary on the arguments.
February 22, 2011
The Tenth Amendment, Standing, and Criminal Conviction: Bond v. US Oral Argument
The Court heard oral argument today in Bond v. United States which involves the criminal conviction of Carol Ann Bond for a violation of 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
That this is no ordinary criminal appeal is evinced by the appearance of Michael R. Dreedben, as Deputy Solicitor General, Department of Justice, "on behalf of the Respondent, in support of the Petitioner.” If this is a case in which even the United States - - - who after all, prosecuted Ms. Bonds - - - agrees with the defendant, then why is this case in the United States Supreme Court?
The problem is the Third Circuit opinion, which held that Bond does not have standing to raise a Tenth Amendment challenge to the statute: Noting that there was a split in the circuits on the issue, the court stated it was “persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.”
There is little doubt that Bond has standing to raise the issue of whether the federal statute exceeds federal power, either under the Commerce Clause or the Treaty Power, but much more ambiguity regarding the Tenth Amendment Claim. Yet this prompts the query of the real difference between a Congressional lack of enumerated power argument and a Tenth Amendment argument, a subject that preoccupied the Court at first.
JUSTICE ALITO: . . . . Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?
MR. DREEBEN: I'm not sure, Justice Alito. I will assume with you that it is. The statute -
JUSTICE ALITO: If she possesses a chemical weapon.
MR. DREEBEN: I'm not sure that vinegar is a chemical weapon.
JUSTICE ALITO: Well, a chemical weapon is a weapon that includes toxic chemicals. And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's -- that's a chemical weapon.
After a bit of vinegar discussion, Justice Ginsburg asked if the argument had veered into the merits, to which Dreeben replied, "A lot further than I had intended, Justice Ginsburg. . . ."
Appointed to argue for the opinion below, Stephen McAllister crystalized the issue quite quickly:
The relevant standing doctrine in this case is the prudential rule against third-party standing. No one disputes here that the Petitioner has Article III standing. One of the difficulties in the case is that the only case that mentions specifically standing in this context is the Tennessee Valley Authority case [Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939)] and it clearly says if it is in fact a Tenth Amendment claim, unless you have a State official or the State, there is no standing.
Yet Roberts replied, "Pretty harsh, if we're talking about prudential standing, to deny that to a criminal defendant, isn't it?"
Later, Roberts again raised the relevance of the criminal context of the case and reiterated the enumerated powers/Tenth Amendment relationship:
CHIEF JUSTICE ROBERTS: . . . . it seems to me we've had a lot of discussion this morning about whether this is an enumerated powers claim or a Tenth Amendment claim. They really do kind of blend together, and it seems to me awfully difficult to put on a criminal defendant the responsibility to decide whether this is going to be an enumerated powers claim or this is going to be a Tenth Amendment claim. The basic principles do kind of merge together, and why does it make -- again, why does it make that much of a difference and why do you put the burden on the defendant to parse the claim one way or another, since I assume they can make pretty much all the same arguments under an enumerated powers [argument] . . . .
The Court’s opinion can be expected to address whether or not a criminal defendant has prudential standing to raise a Tenth Amendment claim and presumably provide guidance on what difference that makes when the defendant can raise a (lack of) enumerated powers claim.
January 19, 2011
General Dynamics Argument Sheds Little Light on State Secrets
The Supreme Court yesterday heard oral argument in General Dynamics Corp. v. United States and The Boeing Company v. United States, the consolidated cases arising out of a government contract gone bad and dealing with just a little corner of the state secrets privilege. We posted on the case here, when the Court agreed to hear it.
Oral argument yesterday did nothing to suggest that the Court intends to say anything about the privilege outside the singular circumstance that gave rise to this case.
And those circumstances are singular. The case arose out of a contract for production of the A-12 Avenger, a planned stealth aircraft. After years of half-starts and failed efforts--the reasons for which are disputed and probably don't matter much here--the Navy finally cancelled the program and terminated the contract for default. (Under federal contracting rules, a default termination means that the contractors have to pay the government back some of the funds already issued and used under the contract, here $1.35 billion.) The contractors sued in the Court of Federal Claims (under the Contract Disputes Act) asking that the court change the termination for default to a termination for convenience. (This would save the contractors from paying back the $1.35 billion and possibly entitle them to an additional $1.2 billion for other costs associated with the termination.) The contractors based their claim on the argument that the government had "superior knowledge"--here, knowledge of stealth technology that would have helped the contractors produce the A-12 (or would have let the contractors know that the plane was essentially unproduceable). The government asserted the state secrets privilege, arguing that the contractors couldn't litigate their "superior knowledge" claim without privileged evidence and that the case should be dismissed. The lower courts ruled in favor of the government.
The contractors argued to the Supreme Court that the government can't both bring a claim (the termination for default) and assert the state secrets privilege. Such a rule would stack the deck in favor of the government every time. But this wasn't just a due process and fairness argument; they relied on language in United States v. Reynolds (see pages 34 -36 of General Dynamics's merits brief):
Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum, where the Government is not the moving party, but is a defendant only on terms to which it has consented.
Reynolds, 345 U.S. at 12 (emphasis added). The contractors argued that this language means that the government can't both be a moving party and assert the state secrets privilege in civil litigation.
The oral argument turned mostly on this very narrow issue: Was the government the moving party here? And this question, in turn, turned on what was the status quo ante--the parties' situations before the courts got involved. Was the status quo ante no default (in which case the government might more properly be seen as the moving party--"moving" for a termination for default)? Or was the status quo ante default (in which case the contractors might more properly be seen as the moving party--moving to quash the termination for default)? (Remember that the government terminated the contract for default before the courts got involved. The default question went to the Court of Federal Claims under de novo review, however.)
The argument didn't help answer these questions much. The parties' arguments were predictable and didn't seem to give the Court anything to work with to help it sort the questions out. This wasn't for the Court's lack of trying: the Justices seemed to ask around these questions in any way they could. Even when Justice Ginsburg asked Carter Phillips on rebuttal whether there was a "middle way," Phillips only restated his position: go back to the status quo ante, which means before the termination for default. (Of course, the government argued that the status quo ante was termination for default. The arguments only restated the questions.) (Justice Scalia called this the "go away" principle--assume a world where the courts weren't involved, or went away.)
But there were some other concerns that came out. For example, Justice Breyer pressed the contractors on why their proposed rule wouldn't "not just throw a monkey wrench into the gears of government contracting . . . but throw the whole monkey." Justice Breyer was concerned that sophisticated government contractors like these should have foreseen these problems, including the government's state secrets assertion, and should have contracted around them (or avoided the contract altogether). Adopting their rule would allow contractors terminated for default always to win simply by asserting a "superior knowledge" claim and forcing the government to raise the state secrets privilege (because under their rule this would change the termination for default to a termination for convenience).
But there was a similar concern on the other side. Thus Justice Kagan asked Acting Solicitor General Neal Katyal whether the government could also assert the state secrets privilege in proving its default claim--a claim in which the government looks more like the movant--and not only on its defense to the contractors' "superior knowledge" claim. Answer: Yes. This prompted Justice Kagan to ask for clarification, "because that really does sound like a tails you win, heads you win." (Justice Scalia similarly observed: "and you are never the moving party.") Clarification was not satisfying: General Katyal simply argued that the contractors should have contracted around the problem--playing on Justice Breyer's concern.
The extreme results illustrated in these exchanges may have prompted Justice Ginsburg to ask for a "middle way" on rebuttal. But Phillips's answer only got us back where we started: What was the status quo ante?
Whatever happens in the case, the ruling is likely to be quite narrow--on the application of the state secrets privilege in a civil case where both sides look a little like a moving party.
December 08, 2010
Chamber of Commerce v. Whiting Oral Argument Analysis: An Arizona Immigration Statute Before the Supreme Court
The Court heard oral argument this morning in Chamber of Commerce v. Whiting, a constitutional challenge on Supremacy Clause/preemption grounds to the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens." The law was signed by then-governor of Arizona Janet Napolitano, who is now Secretary of Homeland Security and tasked with enforcing federal immigration law, an "irony" noted by Nina Totenberg of NPR.
The Court granted certiorari in late June to review a Ninth Circuit opinion upholding the constitutionality of the Arizona statute. [The case was formerly known as Chamber of Commerce v. Candelaria]. While the statute at issue is not the notorious Arizona SB1070, the attention that SB1070 has garnered is not irrelevant and may have contributed to the Court's grant of certiorari.
Justice Kagan has recused herself and did not participate in today's argument. As Solicitor General, she filed a brief on the petition for writ of certiorari; the Solicitor General's brief advocated that the writ be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by 8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” That is precisely the issue before the Court. Acting Solictor General Neal Katyal argued on behalf of the United States, supporting the Chamber of Commerce.
Arguing for the Chamber of Commerce Carter Phillips quickly articulated the notion that the Arizona statute provides for a “death penalty to the business” in that it might completely “eliminate the business's right to exist.” This "right to exist" occurs because Arizona's statute relies upon a provision in the 1986 federal statute, the Immigration Reform and Control Act (“IRCA”), regarding state authority to impose sanctions through licensing and similar laws.
"Licensing" turns out to be an ambiguous term, although in today's oral argument Kennedy admits he initially thought, "Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something," a sentiment echoed throughout the arguments. Roberts and Alito seemed more certain than Kennedy that "licensing" was a clear and rather broad term that granted the state wide latitude.
Sotomayor, however, had a different point: "how they define "license" or not is irrelevant to me." She asked Carter Phillips to explain the preemption of the state's ability to adjudicate, which for her is the central question.
In her argument, Mary O'Grady, Solicitor General of Arizona, emphasized the ability of the state to make determinations under the "savings clause" regarding licenses. However, at one point, Scalia seemed to believe her argument was too narrow:
JUSTICE SCALIA: Excuse me. Are you conceding that any variation from the Federal standards for -- for criminal and civil liability is automatically precluded?
I mean, as I read the exception, it's an exception for State licensing and similar laws. And it doesn't say, "So long as those licensing and similar laws go no further than what the Federal government has done." I mean, we often allow States to impose regulatory requirements that go beyond the regulatory requirements that the Federal government has imposed, and that is not automatically considered to be preempted. So why -- why are you conceding that Arizona cannot go a whit beyond what the Federal government says?
MS. O'GRADY: Because I think what Congress preserved for us was our ability to impose sanctions, including the suspension and revocation of State laws. But I do think they established a uniform national standard. I don't think we could, for example, establish a strict liability offense in Arizona. We would have to have a scienter requirement as they have in Federal law.
Breyer expressed concern that the state law essentially encouraged discrimination in conflict with the federal statute:
JUSTICE BREYER: Congress has passed a statute that gives the employer just as much incentive to verify, so there is no discrimination, as to dismiss, so there is no illegal hiring. It's absolutely balanced. A $1,000 fine for the one, a $1,000 fine for the other.
So Arizona comes along and says: I'll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead. That's just one thing they do. Now, how can you reconcile that intent to prevent discrimination against people because of their appearance or accent -- how do you reconcile that with Arizona's law?
If Kennedy is the deciding Justice, two of his comments to O'Grady arguing on behalf of Arizona may be indicative that the Court will conclude that the state statute is preempted:
JUSTICE KENNEDY: But you are taking the mechanism [E-VERIFY] that Congress said will be a pilot program that is optional and you are making it mandatory. It seems to me that's almost a classic example of a State doing something that is inconsistent with a Federal requirement.
JUSTICE KENNEDY: Just so you know, I interpret your answer as confirming the implication of Justice Breyer's questions that there is a very substantial difference in Federal and State law on this point. I mean, you told about -- you know what lawsuits are about. If you are home free, a driver's license and Social Security inspection under Federal law and you're not under State law, that is a difference.
[image: Max Liebermann, Women in a canning factory, 1879 via].
November 30, 2010
Remedy for Unconstitutional Conditions in California Prisons?: Schwarzenegger v. Plata Oral Argument Analysis
The overcrowding in California's prison system that prevents the adequate treatment of the mental and physical health of prisoners in violation of the Eighth Amendment was the subject of today's oral argument in Schwarzenegger v. Plata.
Acting as an appellate court for a three judge court decision that ordered the California prison system to operate at "only" 137.5% of capacity, the United States Supreme Court confronted the intractability of the problem. After 20 years of litigation before numerous district judges, the three judge court was convened and ultimately ordered a remedy of 137.5% capacity. Reaching this goal could be done by transfer of prisoners, building new prisoners, or most controversially, prisoner release.
Justices Sotomayor and Alito expressed opposing considerations during the argument.
Sotomayor, addressing Carter Phillips arguing for Schwarzenegger, expressed concern for the prisoners:
JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
Alito, addressing Donald Specter, arguing on behalf of the appellees, worried about the effect of a release order given rates of prisoner recidivism:
JUSTICE ALITO: The 17 percent figure goes exactly to my concern. This is going to have -- it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?
The oral argument was especially lively, with attorneys clearly not intimidated by the Justices. For example, early in the argument, Phillips deflected Alito's question:
MR. PHILLIPS: Justice Breyer, when the receiver says that, now remember, he says at current population levels. He doesn't suggest, and his brief is very clear that it doesn't urge this Court to affirm the particular order in this case.
JUSTICE ALITO: Mr. -MR.
PHILLIPS: Can I just finish this?
JUSTICE ALITO: Yes.
MR. PHILLIPS: And the reality is that the population levels have dropped pretty significantly since August, since the trial in this particular case. And given the actions by the legislature .....
The argument continues with a question from Ginsburg, and then Sotomayor.
Later, during a colloquy with Roberts, Donald Specter seemed to suggest that Roberts be more patient:
MR. SPECTER: ........The governor himself wanted to reduce the prison population by 37,000. That was in one of his legislative enactments, and the secretary of corrections testified that those proposals were safe.
CHIEF JUSTICE ROBERTS: Did he want to do it within the 2-year period the district court ordered?
MR. SPECTER: Yes, Your Honor, he did. He submitted legislation to the legislature for that, and the legislature wouldn't -- wouldn't take it. And the governor actually said, reacting to that, after a riot at Chino which was partly -- at one of the -- Chino is a prison in California. A riot, he said, and the quote: "And the politicians in Sacramento have swept the problem under the rug."
CHIEF JUSTICE ROBERTS: Right. Right. No, my -- my question is specifically with respect to the ----
MR. SPECTER: I'll get to that.
CHIEF JUSTICE ROBERTS: With respect to the two-year plan ---
MR. SPECTER: Right.
CHIEF JUSTICE ROBERTS: -- and I would like an answer to that.
MR. SPECTER: Yes.
CHIEF JUSTICE ROBERTS: Because I look at this record; I see that the district court didn't do what with required by the Act with respect to the plan that it's ordering.
In addition to the constitutional query regarding a remedy for an Eighth Amendment violation, the issue of federalism darted to the surface on a few occasions. Arguing on behalf of California, Phillips raised federalism as perhaps a "rhetorical" point.
Later, Roberts posed the problem that states have numerous responsibilities and that this one - - - the prison problem - - - is being "transferred" from the state legislature to the federal courts:
MR. SPECTER: Well, I believe the Federal courts have an obligation to enforce the Constitution and the laws.
CHIEF JUSTICE ROBERTS: No, no. I believe that as well, Counsel.
The Court now has the opportunity to decide on whether or not to uphold the enforcement mechanism ordered by the three judge court in this lengthy and complex litigation.
October 06, 2010
More on Snyder v. Phelps
SCOTUSBlog has a round-up of the comments on the oral argument, as well as events after the oral argument.
One of our readers sent in this photo which she took and gave us permission to use, reminding us of the protests outside the funeral of VP Joe Biden's mother last January, discussed here.
Query: If this were the protest at issue in Snyder v. Phelps, would it change the analysis? How?
Image credit: Paula Gordon.
Snyder v. Phelps, the military funeral protest case: Oral Argument Analysis
The Court heard oral arguments (transcript here) in Snyder v. Phelps this morning, an appeal involving the First Amendment right to protest juxtaposed against a tort judgment for intentional infliction of emotional distress. Background on the case below; update above.
Arguing for Albert Snyder, the father of the soldier, Sean Summers stressed "the private targeted nature of the speech" as removing it from First Amendment protection and allowing a tort award for intentional infliction of emotional distress. Some highlights from the oral argument revolved around the applicability of Hustler v. Falwell and issues regarding public figure and speech on a public matter. The hypothetical posed by Sotomayor was repeatedly referenced:
JUSTICE SOTOMAYOR: . . . in terms of infliction of emotional distress. If I am talking to you as a Marine, if you were a Marine, and I was talking about the Iran war and saying that you are perpetuating the horrors that America's doing and said other things that were offensive, would you have a cause of action because you are being called a perpetrator of the American experience?
Because the 1988 case of Hustler v. Falwell is the only intentional infliction of emotional distress/First Amendment case decided by the Court, a fact that Summers was repeatedly reminded of during his argument, Summers sought to distinguish the case, which involved a parody of Jerry Falwell done by Hustler Magazine.
MR. SUMMERS: I think the rule should be Hustler v. Falwell generally does not apply to a private figure unless the defendant can show some compelling connection there, and if you -- if you -
JUSTICE BREYER: Compelling.
MR. SUMMERS: Or at least reasonable, rational connection. In this case they don't even claim there is a connection. They just used this moment to hijack someone else's private event when they are grieving over a 20-year-old child's funeral.
Kagan isolated a passage from the case in an attempt to focus the issue:
JUSTICE KAGAN: Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this. It says: "Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views or perhaps on the basis of their dislike of a particular expression."
How does that sentence -- how is that sentence less implicated, in a case about a private figure than in a case about a public figure?
In the oral argument on behalf of Fred Phelps, by his daughter, Margie Phelps, Justice Kagan acknowledged Ms. Phelps as a participant in the picketing that was before the Court, by asking
suppose your group or another group or -- picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or -- or other offensive and outrageous things, and just follows this person around, day-to-day. Does that person not have a claim for intentional infliction of emotional distress?
Justice Scalia invoked the doctrine of fighting words at several points, including this partiocularly feisty exchange:
JUSTICE SCALIA: My goodness. We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn't be protected by the First Amendment.
MS. PHELPS: We agree that fighting words are less protected under the First Amendment.
JUSTICE SCALIA: Unprotected.
MS. PHELPS: I will go with unprotected, Justice Scalia. And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social -
JUSTICE SCALIA: Is that so? Do we know that?
MS. PHELPS: I beg your pardon?
JUSTICE SCALIA: Do we know that? Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight? Certainly not that. Is it a requirement that there be a potential for a fight? I doubt it.
While Phelps at times argued that Mr. Snyder had made himself into a public figure, ultimately Phelps insisted that the doctrine was one of speech on public issues: "the umbrella of protection under the First Amendment that this Court has established firmly is speech on public issues. Sometimes you get under that umbrella because it's a public official or it's a public figure, but the umbrella that you give the protection for is speech on public issues."
However, Sotomayor did not appear to be satisfied by that distinction as applied:
JUSTICE SOTOMAYOR: What you have not explained to me is how your speech directed at the Snyders constituted public speech, or speech about a public matter. Because you are talking about them raising Matthew [Snyder, the decedent] for the devil, teaching him to, I think, defy the creator, to divorce and commit adultery.
At what point and how do we take personal attacks and permit those, as opposed to -- I fully accept you're entitled in some circumstances to speak about any political issue you want. But what's the line between doing that and then personalizing it and creating hardship to an individual?
At what point? That is precisely the question that the Court will decide.