Monday, April 22, 2013

Oral Arguments in USAID v. Alliance for Open Society, the "Prostitution Pledge"

The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. 

 

Courtesan_in_a_Window,
Courtesan in a Window, 18th C.
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. provides: "No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency"

 

In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs.   The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.  The Second Circuit had held the provision unconstitutional.

Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations.  Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:

JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted.  And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.

 Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness."  Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.

Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue. 

David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech.  Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in  a colloquy with Justice Sotomayor:

MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -­

It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,

JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .

There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.

In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities.  Unfortunately, the rationale supporting that fourth entity was not explored.

The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act.  The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain.  More certain is that Justice Kagan's perspective will be sorely missed.

RR
[image via]

April 22, 2013 in First Amendment, Foreign Affairs, Gender, International, Medical Decisions, Oral Argument Analysis, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, April 20, 2013

Oral Arguments in Kebodeaux, the Sex Offender Registration Case

The Supreme Court heard oral arguments this week in United States v. Kebodeaux, the case testing whether Congress can require a federal sex offender to register, when the offender served out his full sentence before Congress enacted the Sex Offender Registration Act.  

The arguments centered on just how far congressional authority extends under Congress's power to regulate the military (because Kebodeaux was convicted under the UCMJ) and the Necessary and Proper Clause (because he was required to register under SORNA only after he served out his full sentence).  That latter point, the key here, in turn largely centered on the reach and understanding of United States v. Comstock, the OT 2009 case holding that Congress could authorize a federal judge to order the civil commitment of a "sexually dangerous" person in federal custody even beyond the term of his sentence.

Comstock was a 7-2 ruling, with Chief Justice Roberts joining Justice Breyer's majority opinion.  Justices Kennedy and Alito concurred separately.  Justices Scalia and Thomas dissented.  

Chief Justice Roberts sent strong signals during arguments in Kebodeaux that he sees this application of SORNA as beyond the pale.  Justices Kennedy and Alito were also critical of the government's position, but seemed slightly less firm in their positions, slightly more open.  Justice Sotomayor, too, pressed for limits on government authority.  If three of these switch from their positions in Comstock, Kebodeaux will go the other way.

My argument review at SCOTUSblog is here.

SDS

April 20, 2013 in Cases and Case Materials, Congressional Authority, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 16, 2013

ICWA, Baby Girl (Veronica), Race and Fatherhood at the Supreme Court

Today's oral arguments in Adoptive Couple v. Baby Girl, which we previewed yesterday, were indeed a mix of statutory interpretation and application of the Indian Child Welfare Act (ICWA) and constitutional issues, with a dose of family law. 

Veronica
Image of Baby Veronica from NCAI

 

Arguing for the adoptive couple, Lisa Blatt described the biological father as equivalent to "a sperm donor," causing Justice Scalia to counter with an assertion of fatherhood ("He's the father. He's the father.") to which Blatt replied, "And so is a sperm donor under your definition. He's a biological father and nothing else in the eyes of State law."   By this description, Blatt not only argued that the biological father was not a parent under ICWA, but also tended to erode any constitutional rights that the father might have.  Blatt also took on the constitutional argument more directly, arguing that ICWA would "raise grave constitutional concerns" if "Congress presumptively presumed that a non-Indian parent was unfit to raise any child with any amount of Indian blood."

The "amount of Indian blood" was an issue that attracted the attention of Chief Justice Roberts, who has been attentive racial identities in the affirmative action cases, including Fisher argued earlier this Term. During Charles Rothfeld's argument on behalf of the biological father, Roberts posed a "hypothetical" about an Indian tribe that had a "zero percent blood requirement"  and enrolled members who "think culturally they're a Cherokee."  Justice Ginsburg objected that this was not the ICWA definition and Justice Scalia agreed that Roberts' hypothetical would be a "null set," but Roberts posed the query again.  Rothfeld replied that such "wild hypotheticals" would "present political questions to be addressed by Congress or addressed by the executive branch."

Arguing between Blatt and Rothfeld, Paul Clement, on behalf of the child's law guardian - - - asserting the child's best interests as assumed by the guardian - - - also contended that ICWA was constitutionally suspect.  The "Indian child" is a racial classification:

And as a result of that her whole world changes and this whole inquiry changes. It goes from an inquiry focused on her best interests and it changes to a focus on the birth father and whether or not beyond a reasonable doubt there is a clear and present danger.

Clement's characterization of ICWA's standard was somewhat hyperbolic, although the statute does require the high standard and does have a "substantial and immediate danger or threat of such danger" exemption.  This resonated with Blatt's rebuttal, expressing the dangers of a Court affirmance of the South Carolina Supreme Court's opinion in favor of the biological father:

And you're basically relegating the child, the child to a piece of property with a sign that says, "Indian, keep off. Do not disturb." This case is going to affect any interracial adoption of children.

It is highly unlikely that the Court will address the lurking equal protection racial classification issue, however its importance was revealed in Paul Clement's colloquy with Justice Kennedy about "constitutional avoidance."  Justice Breyer essentially asked Clement how to remedy the situation and Clement responded that because ICWA provides "extraordinary" protections that "it only makes sense to prove something more than bare paternity."

It is more likely that the Court's usual conservative/liberal dichotomy will not be apparent in the ultimate opinions.

RR
[image via]

April 16, 2013 in Congressional Authority, Current Affairs, Family, Oral Argument Analysis, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, April 8, 2013

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

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

Greenhouse has this reminder about federalism and family law:

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

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

800px-Troi
Moreover, she extends the argument outside marriage and family law:

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

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

RR
[image via]

April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)

Wednesday, March 27, 2013

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

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

Edie WindsorThe audio is here:

12-307


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

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

On the standing issue:

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

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

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

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

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

 On the merits:

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

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

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

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

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

RR
[image via]

March 27, 2013 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Fifth Amendment, Oral Argument Analysis, Standing | Permalink | Comments (1) | TrackBack (0)

Thursday, March 21, 2013

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

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

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

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

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

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

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

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

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

SDS

March 21, 2013 in Cases and Case Materials, Federalism, News, Oral Argument Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, March 18, 2013

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

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

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

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

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

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

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

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

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

SDS

March 18, 2013 in Cases and Case Materials, Federalism, News, Oral Argument Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 27, 2013

Court Seems Poised to Overturn Voting Rights Act

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

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

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

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

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

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

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

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

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

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

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

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

SDS

February 27, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Oral Argument Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Monday, December 10, 2012

Filibuster Challenge Goes to Court

Judge Emmet G. Sullivan (D.D.C.) heard oral arguments on Monday on the defendant's motion to dismiss in Common Cause v. Biden, the case challenging the Senate's filibuster rule.  We posted on the case back in May, when it was filed.  Roll Call summarized the arguments here.  Common Cause has a case resource page here.

Recall that Common Cause filed the case along with four Democratic House members arguing that the Senate's cloture rule, Rule XXII, which requires 60 votes to end debate on a matter, violates the constitutional background principle of majority rule.  Common Cause argued that the Senate filibustered the DREAM Act, harming certain aliens.  See our May post for more on the particular arguments and for background on the filibuster.

According to Roll Call, the arguments today focused on standing: whether the House Dems had it (based on the Senate holding up their favored legislation on filibusters), and whether Common Cause's clients had it (based on their claim that the Senate would have passed the DREAM Act but for the filibuster).  Roll Call reports that Judge Sullivan was deeply engaged and asked for further briefing because the lawsuit raised "complicated issues."  But even if the plaintiffs get past standing, they'll certainly face other hurdles before Judge Sullivan will ever rule on the merits--the political question doctrine and the Senate's authority to determine its own rules, just to name a couple.  (Anticipating these objections, Common Cause says that if a court can review an Act passed by the Senate, it can certainly review a Senate rule.)

The oral arguments come in the midst of increasing talk of filibuster reform in the 113th Congress.  We covered the issues and linked to resources when there was similar talk at the beginning of the 112th Congress.

SDS

December 10, 2012 in Cases and Case Materials, Congressional Authority, News, Oral Argument Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, October 29, 2012

Government Faces Skeptical Court on Standing to Challenge FISA Amendments

The Supreme Court heard oral arguments today in Clapper v. Amnesty International, the case testing the plaintiffs' standing to challenge the government's vastly expanded surveillance authority under the FISA Amendments Act, or the FAA.  We posted on the lower court ruling that a group of attorneys, journalists, and human rights organizations had standing to challenge the FAA here.

The plaintiffs always faced a unique standing problem in challenging the FAA: The very nature of government surveillance says that those surveilled cannot know that they've been surveilled, or harmed, especially when the real targets of the surveillance are the plaintiffs' overseas clients and contacts (and not immediately the plaintiffs themselves).  As a result, the plaintiffs had to argue two kinds of harm to satisfy standing requirements:  (1) that they've had to take current measures to ensure against FAA surveillance and (2) that their communications are imminently going to be surveilled (given the nature of them).

The government, on the other hand, argued that any harm is purely speculative and the result of the plaintiffs' own doing (and not the authority under the FAA), and that any harm could have occurred, anyway, but under a different surveillance authority.  (This last argument says that the plaintiffs' harm isn't sufficiently traceable to the FAA, and that a judgment on the FAA wouldn't redress the plaintiffs' harm.  Causation and redressibility are two other requirements for standing, in addition to harm.)

The Court seemed skeptical of the government's claims at arguments today.  Justices Ginsburg, Breyer, Sotomayor, and Kagan grilled SG Verrilli on his arguments, and Justices Sotomayor and Kagan seemed especially troubled that the government's position would leave the plaintiffs without any effective way to challenge surveillance under the FAA.  Chief Justice Roberts and Justice Scalia chimed in with concerns about the government's argument that it might conduct surveillance of the plaintiffs' communications under a different authority, leaving the plaintiffs unable to show causation or redressibility.  (It wasn't clear that their concerns with the government's position extended beyond that particular argument, though.)  And finally Justice Kennedy seemed especially troubled with the government's position on the attorney-plaintiffs: the government said that any decision by the attorney-plaintiffs not to communicate with overseas clients for fear of surveillance was caused by rules of professional responsibility, and not by the threat of FAA surveillance.  (Justice Kennedy's concern is one to watch.  This harm--attorney-plaintiffs curtailing communication with clients for fear of surveillance--is the most acute and well defined harm in the case.  It's also one that will resonate best with this group of nine lawyers.  And it's important that Justice Kennedy raised it: He may provide the key vote.)

In all, the government's argument came across as overly formalistic, especially considering the very high stakes for the plaintiffs.  The Court's questions seemed to highlight that.

On the other side, there was some back-and-forth on just how certain government surveillance must be to create a sufficiently likely harm--"certainly impending," or "substantial risk."  Chief Justice Roberts pushed for the former (and higher) standard, while Justice Kennedy pointed out that in those cases where we knew the government act was occurring (as here) the standard was the lower "substantial risk."  Justice Alito asked whether the plaintiffs might manufacture their own standing (and thus work an end-run around a higher "certainly impending" standard) by alleging current preventative measures as the harm--just as the plaintiffs did here.  As to the threat of surveillance and the plaintiffs' precautions against that threat, Chief Justice Roberts wondered whether that wasn't a harm in every case, e.g., in an ordinary criminal case when a criminal defense attorney seeks to get information from his or her client.  (The attorney wouldn't use e-mail or phone; he or she would talk in person.)  Finally, Justice Scalia asked whether the FISA court didn't serve as a check on Fourth Amendment violations.

If the government's argument was overly formalistic, the plaintiffs' claimed harms might have seemed too vague to some on the Court, especially if the Court adopts the higher "certainly impending" standard for the plaintiffs' claimed future harms.

Arguments today revealed what we already knew about this case: It'll be close.  But on balance, the Court seemed to favor standing.

SDS

October 29, 2012 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2012

Fisher v. University of Texas: Oral Argument

200px-Large_university-of-texas_seal_rgb(199-91-18)The Court's oral argument today in Fisher v. UT contained few surprises for those acquainted with the parties' briefs or our preview yesterday.

Bert Rein, arguing on behalf of petitioner Abigal Fisher opened his argument with a classic issue statement:

The central issue here is whether the University of Texas at Austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the Equal Protection Clause, to Abigail Fisher met the two tests of strict scrutiny which are applicable.

His attempt to expand - - - by stating "first" - - - was quickly interrupted by Justice Ginsburg who raised the issue of standing, an inquiry that Justice Sotomayor joined.  Justice Scalia attempted to provide an answer, referring to Fisher's as being "that she was denied a fair chance in the admission lottery."

Justice Breyer moved to the question of whether Fisher was asking the Court to "overrule Grutter," a question that Rein answered by stating that Fisher "could satisfy Grutter" if the case was "properly read." 

During the rebuttal argument, Sotomayor asked "So you don't want to overrule Grutter, you just want to gut it."

MR. REIN: Excuse me?

JUSTICE SOTOMAYOR: You just want to gut it. You don't want to overrule it, but you just want to gut it.

MR. REIN: Well -­

JUSTICE SOTOMAYOR: Now you want to tell universities that once you reach a certain number, then you can't use race anymore.

MR. REIN: Justice Sotomayor, I don't want to gut it. And the only way one could reach that conclusion is to assume that Grutter is an unlimited mandate without end point to just use race to your own satisfaction and to be deferred to in your use of race. That is unacceptable. That is the invasion of Abigail Fisher's rights to equal protection under the law. Thank you.

During the main argument, however, the Grutter discussion led to an extended discussion of the effect of Texas' "ten percent" program, to which the Grutter type admissions policy was only an augment. 

 Arguing for University of Texas, Gregory Garre also opened with a classic issue articulation - and was also quickly interrupted:

For two overriding reasons, the admissions plan before you is constitutional under this Court's precedents. First, it is indistinguishable in terms of how it operates in taking race into account as only one modest factor among many for the individualized considerations of applicants in their totality from plans that this Court has upheld in Grutter and plans that this Court approved in Bakke and the Harvard plan.

JUSTICE SOTOMAYOR: I -- I put that in the narrow tailoring category, that it is narrowly tailored the way Grutter did, said.

Chief Justice Roberts soon focused on the question of numbers and identity categories:

CHIEF JUSTICE ROBERTS: Counsel, before -- I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?
MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application -­
CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I'm one-quarter percent Hispanic.
MR. GARRE: Then they would check that box, Your Honor, as is true -­
CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?
With Justice Kennedy widely considered the "swing vote" on this case, certainly there will be much parsing of Kennedy's queries.  He seemed focused on understanding the facts as well as their implications.  
For Fisher's counsel, Kennedy posed a question that was raised for many readers of Petitioner's brief:
You argue that the University's race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it's so few, then what's the problem.
In dialogue with Garre, Kennedy seemed particularly troubled by any mention of race, asking at one point "So what you're saying is that what counts is race above all."

And arguing for the federal government, supporting the position of University of Texas, Solicitor General Verrilli referred numerous times to Kennedy's dissent in Grutter and concurring opinion in Parents Involved, ending by stating:

I think it is important, Your Honors, not just to government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union. That's what the University of Texas is trying to do with its admissions policy, and it should be upheld.

 

RR

October 10, 2012 in Affirmative Action, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Tuesday, October 9, 2012

Fisher v. University of Texas: Oral Argument Preview

The oral argument in Fisher v. UT - - - this term's "affirmative action" case - - - is scheduled for tomorrow and has been receiving much attention as SCOTUSBlog notes. One of the more interesting pieces is Adam Liptak's personalized NYT article that includes quotes from Abigal Fisher, who believes she "probably would have gotten a better job offer" if she had "gone to U.T.," as well as quotes from students.  There is noteworthy scholarly attention.  And as usual Lyle Denniston over at SCOTUSBlog does an excellent job parsing the issues as well as the possible line-ups of the Justices, asking provocatively "is affirmative action about to end?" Moreover, still one of the best templates of the issues is the "dissental" from en banc review in the Fifth Circuit by controversial Judge Edith Jones.

To the extent constitutional and legal arguments matter - - - and for some, that is a debatable question - - - there are several problematic twists that Fisher v. UT presents.

6a00d8341bfae553ef016762bb6a55970b-500wi
First, there is the standing of Abigal Fisher and relatedly, her claim for injury.  This is not a case in which she was disabled from competing from any specific seat, unlike Bakke, and this is also a case in which she did attend university, unlike Barbara Grutter who did not attend law school.  Adam Chandler has a terrific explanation of this aspect of the case, that he expanded here. 

Second, there are factual discrepancies, and a problematic concession by Fisher regarding UT's government interest in seeking diversity. 

If the Justices seem focused on the facts of the case during oral argument, this might be an indication that the Court would not render a decision on the merits because of these sorts of problems.

Third, there is a doctrinal issue in the case that bears notice.  As one of its three sub-arguments that the UT plan fails strict scrutiny, Fisher argues that "UT cannot establish a strong basis in evidence that its use of race is necessary to further a compelling interest in student-body diversity."  Sandwiched between the usual first prong of the "compelling interest" requirement and the second prong of the "narrowly tailored" requirement, this argument seeks to introduce a new prong.  Fisher's argument in the main brief is telling:

UT also must demonstrate that its use of race in admissions is “necessary to further” an unmet compelling government interest. Adarand, 515 U.S. at 237. This demonstration of necessity requires a “strong basis in evidence.” Wygant, 476 U.S. at 277; Croson, 488 U.S. at 500; Grutter, 539 U.S. at 387-88 (Kennedy, J., dissenting) (“Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.”) (emphasis added).

Recall that Adarand, Wygant, and Croson each involved "remedying past discrimination" as the compelling government interest (not diversity) and note that the citation from the 2003 Grutter v. Bollinger is from Justice Kennedy's dissent.  Kennedy is widely considered the swing vote in Fisher, and much of UT's brief seems addressed to Kennedy.

Nevertheless, this "strong basis in evidence" standard is, of course, directly opposed to the "good faith" standard that Justice O'Connor articulated in Grutter. T he Court could easily "gloss" rather than explicitly overrule Grutter by reading in a high - - - and nearly impossible to meet - - - evidentiary standard.

Thus, at the heart of the matter may be just how much deference the Justices may be willing to pay to a state, including a state university, or how much the "unelected federal judiciary" may substitute its own judgments.

RR
UPDATE: discussion of oral argument here.

October 9, 2012 in Affirmative Action, Current Affairs, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, April 28, 2012

Has Scalia Crossed a Line in Arizona v. United States?

UPDATE: SCALIA's dissenting opinion and Court's June 25 decision here]

Justice Scalia, long known for his scathing written opinions, is under increasing scrutiny - - - and criticism - - - for his comments/questions during oral arguments.  The critiques focus on both content and tone of his performance on the Bench and are especially pronounced with regard to Arizona v. United States, the case involving the constitutionality of certain sections of Arizona's notorious immigration law known as SB1070.  As we discussed, the oral arguments seemed less about preemption (a sometimes technical and dry issue) and more about federalism and immigration policy unmoored from the statutory and Supremacy Clause considerations.

In a case about borders, several commentators are suggesting that Scalia needs to better monitor his own boundaries. 

Scaliaisreal
For example, Dana Millbank in a Washington Post column compares Scalia's rhetoric to that of the "street protestors" stating that they were "nearly identical" in "tone and substance."  Millbank argues that although "[t]echnically, Scalia was questioning counsel," at times "he verged on outright heckling" of the Solicitor General. 

Similarly, in an article in UK's the Guardian, US political science professor Scott Lumieux notes that Scalia's remarks in Arizona v. United States were "yet more Fox News-style posturing by Scalia," continuing a pattern Lumieux also discusses from recent oral arguments including those concerning the constitutionality of the individual mandate provision of the ACA. 

And in a article entitled "Scalia Reveals How Little He Knows About Immigration Policy," Neil Pippenger in The New Republic refrains from characterizing Scalia's tone, but relates Scalia's "policy suggestion" intended to solve Mexico's objections:

“Well, can’t you avoid that particular foreign relations problem by simply deporting these people?”

A few people sitting near me gasped as Scalia continued: “Look, free them from the jails”—here, [Solicitor General] Verrilli tried to interrupt him, but the justice would not be cut off—“and send them back to the countries that are objecting!”

An mp3 and transcript of the oral arguments in Arizona v. United States is now available at Oyez, so one can hear and read the basis for such criticisms.  Of course, without visual broadcast, those not in the courtroom must rely on the representations of others in that regard.  However, the transcript and audio certainly lend credence to the critiques.

RR
[image: Justice Scalia at speaking engagement via]

April 28, 2012 in News, Oral Argument Analysis, Preemption, Supremacy Clause, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 25, 2012

Oral Argument in Arizona v. United States

The oral argument today in the closely watched Arizona v. United States, involving the constitutionality of several provisions of Arizona's notorious SB 1070 that the DOJ argues are pre-empted by federal law and which the lower courts agreed.  

These four provisions at issue are:

  •     Section 2(B): requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully;
  •     Section 3: criminalizes the failure to carry an “alien registration document;'"
  •     Section 5(C): criminalizes undocumented immigrants applying for employment or being employed;
  •     Section 6:  authorizes warrantless arrests if based upon probable cause that a person has committed a deportable crime.

 

SCOTUS AZ
During the oral argument Justice Sotomayor quickly interrupted Paul Clement, arguing for Arizona,with a focus on the controversial stop provision:

JUSTICE SOTOMAYOR: -- could I interrupt, and turning to 2(B), could you tell me what the State's view is -- the Government proposes that it should be read on its face one way, and I think the State is arguing that there's a narrower way to read it. But am I to understand that under the State's position in this action, the only time that the inquiry about the status of an individual rises is after they've had probable cause to arrest that individual for some other crime?

Sotomayor persisted raising the "critical" issue of how long and under what circumstances the state would detain someone.  After some discussion, including queries by Justices Ginsburg and Breyer, Justice Scalia asked whether any such problems were "immigration" problems or Fourth Amendment problems.  Yet the questions on 2(B), in conjunction with Section 6, continued to dominate, until Justice Roberts shifted the inquiry:

CHIEF JUSTICE ROBERTS: Counsel, maybe it's a good time to talk about some of the other sections, in particular section 5(C).  Now, that does seem to expand beyond the Federal government's determination about the types of sanctions that should govern the employment relationship.

You talk about supply and demand. The Federal government, of course, prohibits the employment, but it also imposes sanctions with respect to application for work. And the State of Arizona, in this  case, is imposing some significantly greater sanctions.

Clement admitted that Arizona was imposing "different" sanctions, but that the state only targeted employment that was already prohibited by federal law, making it a "weak case for preemption."  Later, Clement answered another question from Justice Sotomayor by saying that there was a "big difference" between "Congress deciding not as a matter of Federal law to address employees with an additional criminal prohibition, and saying that that decision itself has preemptive effect. That's a rather remarkable additional step."   He then essentially argued that the Congressional immigration statutes were out-of-date.

Roberts again took charge and turned the argument to Section 3, the state crime of failure to carry a registration document, which Clement argued was "parallel" to the federal requirements. 

Arguing for the United States, Solicitor General Verrilli had barely finished "may it please the Court," when Chief Justice Roberts posed this query:

CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.

When Verrilli answered "That's correct,"  Roberts again repeated his statement:

CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.

Justice Scalia quickly articulated a states rights perspective.  Responding to the federal government's position that "the Constitution vests exclusive authority over immigration matters with  the national government," Scalia asked:

  1. JUSTICE SCALIA: All that means, it gives authority over naturalization, which we've expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Chief Justice Roberts explicitly stated "I don't see the problem with section 2(B)," perhaps explaining his earlier effort to clarify that the case was not about "racial profiling." 
Yet the argument did return to this issue.

VERRILLI: . . . . Now, we are not making an allegation of racial profiling; nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. It stands to reason that the legislature thought that that wasn't sufficient and there needed to be more.
And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully --

JUSTICE SCALIA: Sounds like racial profiling to me.

GENERAL VERRILLI: And they're -- and given that what we're talking about is the status of being unlawfully present --

JUSTICE SOTOMAYOR: Do you have the statistics as to how many arrests there are and how many -- and what the -- percentage of calls before the statute [SB1070]?

The discussions of preemption were often less focused on Congressional intent than on generalized federalism concerns, although at one point Chief Justice Roberts seemed to highlight the only precedent that mattered.  Attempting to engage in an analogy, Verrilli argued:

  1. . . . . if you ask one of your law clerks to bring you the most important preemption cases from the last years, and they rolled in the last -- the last hundred volumes of the U.S. Reports and said, well, they are in there. That -- that doesn't make it --

  2. CHIEF JUSTICE ROBERTS: What if they just  rolled in Whiting?

(Laughter)

CHIEF JUSTICE ROBERTS: That's a pretty good one.

The analogy was never completed. 

But if Arizona v. United States mimics Chamber of Commerce v. Whiting, decided last May and upholding the Legal Arizona Workers Act, we can expect a fractured opinion ultimately finding in favor of Arizona.

RR

April 25, 2012 in Oral Argument Analysis, Preemption, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 4, 2012

DOMA in the First Circuit (and elsewhere)

On appeal from two opinions from Federal District Judge Tauro holding Section 3 of DOMA unconstitutional, the First Circuit heard arguments today in Commonwealth of Massachusetts v. United States Department of Health and Human Services, and Gill v. Office of Personnel Management.

1st_Circuit_sealA partial audio recording of the argument is available here (the first 18 minutes is missing). 

Arguing to reverse Judge Tauro's opinions and defending DOMA was BLAG - the Bipartisan Legal Advisory Group of the House of Representatives - who took up the case when the Obama DOJ decided that DOMA section 3 violates the equal protection component of the due process clause of the Fifth Amendment.  

The equal protection arguments are central, including the level of scrutiny that should apply to the category of "sexual orientation," what government interests should be considered (the ones at the time of passage or the ones offered in the present litigation), and the possibility of animus, especially given the name of the act.

In addition to equal protection, the Tenth Amendment also figured prominently in the arguments. This has caused at least one commentator to note that Paul Clement's argument on behalf of BLAG was exactly the opposite of his argument last week that the Affordable Care Act is unconstitutional. Moreover, while DOMA and the anti-immigration initiative, SB1070, in Arizona v. US are certainly reconciliable with regard to the federalism issue, Clement's argument on behalf of Arizona before the United States Supreme Court later this month will most certainly contradict his DOMA stance.

Meanwhile, Immigration Equality has filed a complaint in the Eastern District of New York arguing that DOMA section 3 is unconstitutional on the basis of equal protection regarding both sexual orientation and sex, and should not be enforced in the immigration context.

As for the DOMA argument in the First Circuit, there is a suggestion that the case should go to the en banc court.  However, for now the case is before Judges Lynch, Torruella, and Boudin, pending a panel decision.

RR

April 4, 2012 in Current Affairs, Equal Protection, Federalism, Oral Argument Analysis, Sexual Orientation, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, March 29, 2012

Court Equally Skeptical (or More) on Medicaid Expansion

The Supreme Court yesterday seemed just as skeptical--and maybe even more so--of the Medicaid expansion as it was of the universal coverage, or individual mandate, on Tuesday.  The line-up was similar, with Justices Ginsburg, Breyer, Sotomayor, and Kagan appearing to favor the government, and Justices Scalia and Alito leaning against.  (Justice Thomas was again silent, but his opposition to Medicaid expansion is all but certain.)  The difference in yesterday's argument: Chief Justice Roberts and Justice Kennedy seemed even more strongly against Medicaid expansion than against the individual mandate.

The core issue in the case, of course, was coercion: Did the federal government coerce the states by conditions a states' entire pot of Medicaid funding on its acceptance of the expansion?

Chief Justice Roberts made some very strong statements against the government's position that expansion isn't coercion, especially worrying about federalism and "intrusion on the sovereign interests of the State."  Transcript p. 59; see also Transcript p. 34.  This latter question, the one on page 34, also suggests that the federal government "having attached the . . . strings, [states] shouldn't be surprised if the Federal Government isn't going to start pulling them."  On balance, though, the Chief Justice seemed to lean against expansion.

Justice Kennedy seemed worried most about accountability--how citizens could sort out who to blame if they didn't like the policy.  He recognized that there's no "workable" test based on accountability (p. 64), but he also seemed to want to find a place for accountability in the analysis.  He was also concerned about "practical coercion" (my phrase), discussed immediately below.

In the end, there seemed one predominant theme among those who appeared to lean against the expansion: If the government can't conceive of a state declining to participate in the expansion--because the money's too sweet, because the program's too good, or because the individual mandate would have a hard time working without it--it seems like coercion.  This kind of plain-spoken, practical coercion might just drive the case. 

Others apparently favorable to the expansion argued that this practical coercion must mean that a program can be unconstitutionally coercive only because it's too good--a plainly absurd conclusion, and therefore not a reason to overturn the expansion.

Several other themes emerged:

Complete Funding.  The federal government pays the lion's share of the expansion in the first few years--a point made early by Justice Kagan.  To those favoring the government, this makes it look like a pure federal gift to the states for the purpose of expanding Medicaid.  But Paul Clement, representing the states, argued that it was both the size of the Medicaid program and the expansion that makes this coercion: because of Medicaid's size, state's can't afford to lose it; because of the generosity of the expansion, states can't say no to it. 

Related: There was concern among those apparently leaning against the expansion about why states could stand to lose all their Medicaid funding just because they don't agree to take funding for this incremental expansion.  This issue relates to executive discretion, discussed below.

Related:  Chief Justice Roberts seemed especially concerned that the federal government could later decrease the amount of its participation, after leading the states on with this nearly-completely-funded expansion, and leave states in an even more precarious situation--even more coercive.

Complete Overhaul.  Justice Sotomayor asked if the federal government could simply scrap the whole program and start all over, why it couldn't add this incremental expansion.  Clement said that nobody has a problem with certain existing Medicaid programs, and so it makes no sense to condition the whole program, including existing programs, on a state's willingness to sign on to the incremental expansion.

Politics.  The politics played a minor role, but were there.  Justice Ginsburg asked about the other half of states that may favor the expansion, and Justice Scalia helped point out that the states in this case--those opposing expansion--are headed by Republicans.  In Clement's words: "There is a correlation." P. 21.

Spending Power.  Clement tried to distinguish between congressional use of the spending power for objectives included in other portions of Article I, Section 8, and use of the spending power for ends outside of its Section 8 powers.  It's not clear whether this position has enough traction to work its way into the Court's analysis, but it does revive a very old (but now well settled) debate over the scope of congressional spending power: Congressional spending power is most certainly not cabined by what it can do under other Article I, Section 8 powers.  Clement's position seems to question that, even if only on the margins.

Taxes and Citizenship.  Clement argued that the federal government is encroaching on state authority by taxing state citizens for a benefit that they don't want.  The argument confuses state and federal citizenship, and didn't seem to get any traction with the Court.  But Clement's related argument--that federal taxes to support Medicaid expansion crowd out states' ability to tax their citizens for other purposes--did get some attention among opponents of the expansion.

Executive Discretion.  Justice Breyer raised the point that the Secretary is bound by the APA in revoking all Medicaid funds for a state that declines to participate in the expansion, and that such a decision would be subject to rationality, or the arbitrary and capricious test.  This point gained traction as the argument moved forward, but the Justices seemed to divide over the implications: Justice Breyer argued that this means that the Secretary isn't unbound in revoking all funds, and others pointed to the history of the Secretary's modest exercise of this authority; opponents of the expansion argued that the authority to revoke all funds is still there in the statute.  SG Verrilli, of course, couldn't give assurances about how the Secretary would use the discretion, but suggested that the Secretary wouldn't revoke all Medicaid funding.

Accountability.  Justice Kennedy raised the point about accountability: How can citizens understand the lines of accountability for a program that's so strongly encouraged by the federal government?  Accountability is surely a consideration, but it's not clear how much, if at all, it'll turn this case.  Justice Kennedy also said that any test based on accountability is "unworkable," but he seemed to search for a way to consider accountability within the coercion framework.

Practical Coercion.  Again, Chief Justice Roberts, Justice Scalia, Justice Alito, and even Justice Kennedy at one point all pointed out, in only slightly different ways, that if the government can't conceive of a state saying no--because of the size of the program, or because how expansion fits with the individual mandate, or because Congress knew that states liked Medicaid so much and just assumed that all states would come on board--then that's coercion.

SG Verrilli wrapped up his argument with an appeal to liberty--the liberty of those who would be covered by Medicaid expansion to receive funded medical care.  This was refreshing, but probably not anything that would persuade those who oppose the expansion based on the sovereignty of the states and federalism.

This case, like the universal coverage case, will likely turn on Chief Justice Roberts or Justice Kennedy or both.  But here both seemed even more opposed to expansion than they were to universal coverage.

SDS

March 29, 2012 in Cases and Case Materials, Congressional Authority, Federalism, News, Oral Argument Analysis, Spending Clause, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 27, 2012

Skeptical Court Hears Arguments on Minimum Coverage, Individual Mandate

The Supreme Court today heard oral argument in the congressional authority portion of the challenge to the Affordable Care Act--whether Congress had authority under the Commerce Clause or its taxing power to enact the minimum coverage requirement.  Links to the audio files and transcript are here.

The questions at argument suggest that the case may turn on Chief Justice Roberts or Justice Kennedy (or both), both of whom, in different ways, appeared to give serious attention and thought to both sides of the argument.  But if they leaned, both also seemed to lean toward opponents of the provision.  For example, both (but Chief Justice Roberts perhaps more than Justice Kennedy) seemed much more skeptical of the government's argument than the opponents' argument.  And Justice Kennedy at one point suggested that the government face an even higher burden, given the "unprecedented" nature of the provision.  He also gave a short statement on the tradition in American law of not imposing a duty to act.

Justices Scalia and Alito seemed more set in their positions against the provision; and Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed more set in their positions in favor.  (Justice Thomas was silent, but his position (against) was never seriously in doubt.)

In short, this could be a squeaker one way or the other. 

Several themes caught the Court's attention:

Nature of the Market.  The Court spent time figuring out whether the relevant market is unique, because everyone will at some point enter it.  This question turns on what the relevant market is (see below) and, at least in part, on the issue of timing (see below). 

A Limiting Principle.  The Court looked for a limiting principle in the government's position--one that would distinguish the parade of horribles offered by the Justices, including everything from the government requiring us all to eat broccoli to the government requiring us all to buy cell phones to use for emergencies.  SG Verrilli came back with limiting principles distinguishing these examples, and Justice Kennedy seemed genuinely interested in them (or at least in hearing the states' responses to them).

The Relevant Market.  The Court spent considerable time on the familiar arguments about the relevant market--is Congress regulating the market for health insurance, or the market for health care (or health care payment)?  If the former, opponents argue that Congress is requiring something of people not yet in the market, and thus exceeding its authority under the Commerce Clause.  Chief Justice Roberts and Justice Kennedy both seemed open at least to hearing the government's argument that the minimum coverage requirement regulates the market for health care (not health insurance).

Timing.  Timing was an issue--whether Congress could regulate substantially before a person enters the market for health care, or whether Congress could only regulate at the point of entry, when, e.g., a person goes to the emergency room.  Everyone seemed to agree that Congress could regulate at the point of entry; the question is how far before that Congress can regulate--and whether the Commerce Clause has anything at all to say about this.

Congressional Creation of the Market (and the Problem).  Some expressed some concern that Congress created the interstate market and the very problem that it sought to address through the minimum coverage requirement by mandating that providers give free care to indigents.  Even if this is so, however, it's not clear, as Justice Breyer noted, why this would be a constitutional problem: Congress creates interstate markets all the time. 

Part of a Package.  The Court gave some attention to the government's argument that the minimum coverage requirement was necessary to make the guaranteed issue and community rating provisions work--an argument that draws on Gonzales v. Raich.  Opponents argued that Congress could have enacted these provisions without the minimum coverage provision; the government said that would have been ineffectual.

Policy.  There were a couple exchanges on pure policy, in particular other ways that Congress might have achieved its goals.  This shouldn't have any bearing on the constitutional question: congressional authority doesn't require something like a least-restrictive-means analysis.  If these exchanges should translate into constitutional law, however--if, e.g., the Court looks to alternatives to show why the minimum coverage provision exceeds congressional authority--the result could tighten congressional authority in general along the lines of a least-restrictive-means test.  This would mark an important change in the level of deference the Court usually gives to Congress in areas of congressional authority.

The Court spent more time on the Commerce Clause than on the taxing authority, but that's perhaps not a surprise.  The Justices' leanings didn't seem to change whether the questioning went to the Commerce Clause or to the taxing authority.

SDS

March 27, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, News, Oral Argument Analysis, Taxing Clause | Permalink | Comments (1) | TrackBack (0)

Few Clues, Con Law Issues in First Day of Health Reform Arguments

For those hoping to get an idea of where the Court is heading with the core constitutional issues in the ACA challenge, yesterday's oral arguments on the Anti-Injunction Act must have been a disappointment.  The Court yesterday drilled into the finer points of tax law--in particular, arguments whether the AIA is jurisdictional and, if so, whether it applies--but it gave few, if any, clues on the con law issues that will dominate oral argument today and tomorrow.  Yesterday's argument did suggest this, though: The Court will get to the merits now, and not punt based on the AIA.

The audio file and transcript are available here.

Justice Alito got right to a main con law point with SG Verrilli, asking how the government can consider the tax penalty a non-tax for AIA purposes but a tax for Article I purposes:

Justice Alito: General Verrilli, today you are arguing that the penalty is not a tax.  Tomorrow you are going to be back and you will be arguing that the penalty is a tax [to support the universal coverage provision of the ACA].

Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

General Verrilli: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax.  And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today.

Tomorrow the question is whether Congress has authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis.  Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

It's not clear whether this concern about the government's position on the tax penalty will have any constitutional traction today, however.  There's no requirement that a "tax" for taxing authority purposes must also be a "tax" for every other purpose.  The government's position may seem at odds with itself, but it probably doesn't matter for any constitutional reason.

Other Justices asked about those subject to the universal coverage requirement, but exempt from the tax penalty, particularly the poor, suggesting that the taxing authority alone isn't enough to support the universal coverage requirement for this population.  Several Justices were interested in whether the universal coverage requirement could be separated from the tax penalty, apparently setting up a line of inquiry today about whether the Commerce Clause alone could support the universal coverage provision for this population.  Again, though, it's not clear how much this will matter for arguments today: The Commerce Clause has always been a potentially independent authority--maybe even the best authority--to support the universal coverage provision for every population.

The Court asked some questions about whether the tax penalty raised revenue.  This line is almost certainly more important for AIA purposes than for taxing authority purposes, though.  And in any event, as SG Verrilli reminded the Court, the CBO has projected that the tax penalty will raise revenue. 

Finally, Justice Sotomayor asked a line of questions about state standing to challenge the universal coverage provision.  This line may come back today, but it's not clear from the brief exchange (on page 72 of the transcript) that it will get much play.

In short, argument yesterday gives few clues about the con law issues on display today and tomorrow.  At most, we have some likely themes for arguments today and tomorrow.  And we almost certainly have this: The Court is likely to address the merits now, and not punt under the AIA.

SDS

March 27, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 21, 2012

Reichle v. Howards: First Amendment Retaliatory Arrest, The Secret Service, and Oral Arguments in the United States Supreme Court

1913_All_Story_MagazineDuring oral arguments in the Supreme Court today, the First Amendment took a definite back seat. The case is Reichle v. Howards, on certiorari from the Tenth Circuit, and involved Howard's arrest by Secret Service agents at a mall in Colorado where then-VP Dick Cheney was appearing.  Howard was taking his son to a piano recital at the mall and on his cell phone.  Apparently, no fan of the VP, Howards stated into his cell phone, "I'm going to ask him [the Vice President] how many kids he's killed today."

This was overheard by the Secret Service agents and attracted their attention.  Moreover, Mr. Howards did make good on his stated intentions:  After dropping off his son at the recital,

Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his "policies in Iraq are disgusting." The Vice President responded, "Thank you." As he departed, Mr. Howards touched the Vice President's right shoulder . . .

Interestingly, Mr. Howards was not arrested then, but quite a while later when agent Reichele and Howards had an "interview" which escalated, with the agent becoming angry.  The agent arrested Howards for assault on the Vice-President, based on the touching of the shoulder, which Howards has "lied" about saying he hadn't touched the VP.

No charges against Howards were brought, but Howards filed a Bivens action against the agents for violating his First, as well as his Fourth, Amendment rights.  The agents claimed qualified immunity.  While the district judge had denied qualified immunity to all agents, the Tenth Circuit held that only two agents, including Reichele, were not entitled to qualified immunity.

During the oral argument, the Fourth and First Amendment arguments were understandably intertwined, but the First Amendment was most often deemed irrelevant.

As Sean Gallagher, arguing for the Secret Service agents stated:

Virtually everyone that a Secret Service  agent encounters when he is protecting the President or the Vice President can allege that they are engaged in free speech. So for Secret Service agents in particular, they -- they can legitimately evaluate what someone is saying in order to determine a particular threat level.

During the argument on behalf of Howards by David Lane, Justice Sotomayor stated:

You do understand that this case is inviting the questions the Chief Justice asked, which, and which has -- Justice Breyer and some of us are concerned about, which is what your adversary has described as First Amendment voicing is going to be a part of many, many arrests.

Near the end of his argument, Lane made a plea for the First Amendment to be recognized:

The issue simply is can we sacrifice the First Amendment. You know, does a litterbug lose their right to have First Amendment free speech?
Does a jaywalker lose their right to have First Amendment free speech because probable cause exists to believe they've committed some offense? And you'll have officers ostensibly enforcing litter laws and jaywalking laws and blocking the sidewalk laws, and the First Amendment is essentially evaded.
100 years of jurisprudence, courageous jurisprudence, many times by this Court, goes by the boards because somebody is a litterbug. I -- I just don't see that as the solution to this problem. And I also don't see that the Secret Service needs some enhanced protection from this Court when this has never been and is not now any kind of a serious problem.
The status quo is not healthy. It has worked for decades and it should continue to work. And if these agents get tagged in this case, maybe they deserved to get tagged in this case, because the First Amendment is extremely important. And I don't denigrate the -- the job of law enforcement or -- or these agents in any way. . . . .

The Justices, however, seemed more than willing to defer to the Secret Service agents, who have recently had the scope of their protective responsibilities widened by Congress.

RR
[image via]

March 21, 2012 in First Amendment, Fourth Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (3) | TrackBack (0)

Wednesday, February 29, 2012

Equal Protection and Taxes: Oral Argument in Armour v. Indianapolis

Does tax forgiveness by a municipality present an equal protection problem?  Do the taxpayers who paid in a timely manner have a constitutional claim for reimbursement when the debt of the later payers is substantially forgiven?

The United States Supreme Court heard oral argument in Amour v. City of Indianapolis to consider the Equal Protection Clause consequences of Indianapolis' sewer assessment program that forgave the remaining obligations of the taxpayers who chose to pay in a multi-year installment plan and refused to refund payments to the taxpayers who had paid the assessment in full.

SewerJustice Sotomayor, posing the first question to Amour's attorney, Mark Stancil, asked "what happens to all other amnesty programs like parking ticket amnesties?"  or what happens in an immigration amnesty program?  The many instances of the use of amnesty programs or financing forgiveness continued to pepper the questioning, and this was interwoven with the doctrinal issue of rationality.  If equal protection does apply, then the standard would definitely be rational basis review, but what makes an amnesty program rational? 

As Justice Alito, posing the first question to the city's attorney, Paul Clement, phrased it: "the city calculated that what it did would be more politically acceptable than treating the people who paid upfront equally on an economic basis with the people who paid in installment plans. Now if that's the reason for this, is that rational?"

Clement argued that the risk of imposing equal protection standards on forgiveness programs might mean that if goverments "actually have to provide refunds and face equal protection clause violations, then in the future nobody is ever going to forgive."  To this, Justice Kennedy retorted:

And so, I think maybe if you prevail in this opinion, we should say the principle we are adopting in this case is: Don't trust the  government.

Kennedy returned to this point in discussing the state law which did not disclose the possibility of future forgiveness, and later returned to it: "that just underscores the promise of the State or the city that all owners will be treated equally. That just  underscores the point that that was the understanding and the commitment."  Clement disagreed that there was any such commitment, essentially arguing that government has the perogative to change laws, especially if the law is unpopular: "You know, every once in a while the people have a point." 

But as for the rationale for the distinction between classes, Clement as the city's attorney stressed the ability of a city to terminate an unpopular program (what Justice Alito called "political expedience") and "avoiding the administrative burdens of particularly the refund process."  But Justice Alito in particular seemed skeptical:

What they [the city officials] have done is shift the cost of the sewers from a -- from a small group, a small interest group that is able to presumably exert some political power to -- to everybody. They spread the cost around to everybody.  And everybody -- the ordinary person who has to pay a little bit more every month doesn't get all fired up about it.

Paul Clement responded that this does not present an equal protection claim, although perhaps "there's a takings claim for somebody to bring."

During Stancil's rebuttal, Justice Breyer encapuslated the question for the Court:

The argument isn't that it's expensive to administer as much as it is, there are 1,000 people in all these projects who are already paid up. We don't have enough money to pay them all back. That's why we don't want to pay them back. At the same time, we don't want to collect the money for 30 years  from these other people who aren't fully paid yet.  . . . 

The question is, I guess, is, is that rational.

RR
[image: concrete sewer pipes via]

February 29, 2012 in Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)