Friday, November 13, 2015
The United States Supreme Court today granted certiorari in Whole Woman's Health v. Cole to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.
The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause.
The Fifth Circuit did find that HB2 was unconstitutional as applied to the Whole Woman's Health facility in McAllen, Texas, but not as to the the Reproductive Services Facility in El Paso, Texas. The facility in McAllen is the only one in the "Rio Grande Valley." However, there is another facility close to the closed facility in El Paso - - - a mere 12 miles away - - - but importantly across the state line in New Mexico. The Fifth Circuit distinguished its own opinion in Jackson Women's Health Organization v. Currier regarding Mississippi's restrictive abortion law which had the effect of closing all the clinics in the state, by emphasizing the fact that even before HB2 "half of the patients at the St. Teresa [New Mexico] clinic came from El Paso which is in the same 'cross-border' metropolitan area as St. Teresa," and including a footnote that the court's analysis would be different "in the context of an international border." Thus, the court found it irrelevant that the nearest in-state facility was 550 miles away.
The United States Supreme Court's grant of certiorari means that the Court will consider direct abortion regulations - - - and thus the continuing precedential value of Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - - - for the first time since Carhart v. Gonzales in 2007 in which the Court upheld the controversial federal so-called partial birth abortion ban. The Court's most recent foray into the abortion controversy was its 2014 opinion in McCullen v. Coakley finding Massachusetts' buffer-zone legislation protecting abortion clinics violative of the First Amendment.
Tuesday, October 6, 2015
Judge Tanya Chutkan (D.D.C.) last week denied the District of Columbia's motion to dismiss key parts of a claim by D.C. charter schools that the D.C. government under-funded them in comparison to District public schools. The lengthy ruling is laden with analysis on the constitutional relationship between Congress and the District, much of it indeterminate, reminding us just how complicated this relationship can be.
The plaintiff charter schools brought the case, arguing that the D.C. government funneled extra money to D.C. public schools, but not charter schools, in violation of the District Clause and Home Rule Act, the Supremacy Clause, and the School Reform Act. In particular, the plaintiffs argued that the D.C. government violated the Home Rule Act by altering a a congressional act (the School Reform Act) without specific congressional authorization. The District countered that it has authority under the Home Rule Act to amend or repeal the School Reform Act, because the School Reform Act applies only to the District.
Judge Chutkan ruled that neither the case law nor the Home Rule Act tells when Congress acts in tandem with the D.C. City Council (so that the Council could alter a congressional act), or when Congress has the final word--at least in the abstract. So she turned to the text and history of the School Reform Act to answer the question here. But Judge Chutkan said that the School Reform Act was similarly indeterminate. She wrote that the Act's apparent mandatory language on equal school funding for charters and public schools wasn't dispositive, because "if the District can (and has) repealed Acts of Congress that used the term 'shall,' then that term alone cannot necessarily delineate Congress' intent with respect to the Council's authority.'" Moreover, Judge Chutkan said that the legislative history of the School Reform Act didn't answer the question. The upshot: "As it stands, the uniform funding formula is on the books, and it is not clear whether it has been violated, whether it has been amended or repealed by Council enactments (through Congressional acquiescence or otherwise), or whether the challenged actions do not implicate or conflict with the funding formula at all." She thus denied the District's motion to dismiss the District Clause, Home Rule Act, and School Reform Act claims. The ruling means that these claims can move forward.
In contrast, Judge Chutkan did dismiss the plaintiffs' Supremacy Clause claim. That's because the Supremacy Clause doesn't apply to congressional acts over D.C.; the District Clause does. The analysis is the same, Judge Chutkan wrote, but the Supremacy Clause doesn't do the work.
Tuesday, March 3, 2015
In a per curiam opinion in excess of 130 pages, the Alabama Supreme Court has ordered certain probate judges to 'discontinue the issuance of marriage licenses to same-sex couples' in compliance with a district judge's order and a denial of a stay by the United States Supreme Court.
[UPDATED: Reports state that the controversial Chief Justice Roy Moore recused himself from the ruling, but neither Moore nor recusal seems to be mentioned in the opinion]. The Alabama Supreme Court's opinion per curiam opinion states that "Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur," and that "Main, J., concurs in part and concurs in the result," and that "Shaw, J., dissents." Chief Justice Moore is the ninth of the nine justices of the Alabama Supreme Court (pictured below).
The case is styled Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County; In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al., and is an Emergency Petition for Writ of Mandamus. Justice Greg Shaw's dissent highlights the unusual procedural posture of the case: he concludes that the Alabama Supreme Court does not have original jurisdiction, that the public interest groups (Alabama Policy Institute and Alabama Citizens Action Program) cannot sue in Alabama's name and do not have standing, that the petition for writ of mandamus is procedurally deficient given that there is no lower court opinion, and that the court's opinion improperly rules on the constitutionality of the Alabama marriage laws since that issue is not before it. Justice Shaw concludes:
I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law.
Shaw's dissent provides a window into the Alabama Supreme Court's lengthy opinion. Much of the opinion concerns the odd procedural posture of the case. The opinion does specifically address the relationship between Alabama and the federal judge's decision by declaring that the "Respondents' Ministerial Duty is Not Altered by the United States Constitution":
The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
Thus, because the Alabama Supreme Court disagrees, Alabama is not bound by the federal decision. The Alabama Supreme Court's "per curiam" opinion on the constitutionality of the same-sex marriage ban is scholarly, lengthy, and well-reasoned (and perhaps more persuasive than the Sixth Circuit's opinion in DeBoer v. Snyder, to which the United States Supreme Court granted certiorari, and on which the Alabama Supreme Court relies extensively). But this discussion does little to resolve the basic federalism of whether the state is bound by the federal court's judgment. The court's order does include this specific provision, which may engage the issue most directly:
As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
March 3, 2015 in Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 27, 2015
In a Letter to the Governor of Alabama, Robert Bentley today, the Chief Justice of Alabama Supreme Court, Roy Moore (pictured) asked the Governor to continue to uphold the respect for different-sex marriage and reject the judicial "tyranny" of the federal district court's opinion last Friday finding the same-sex marriage ban unconstitutional. He writes grounds the sacredness of man-woman marriage in the Bible, and writes
Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!
He argues that United States district court opinions are not controlling authority in Alabama, citing a case, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744n.5 (Ala. 2009), regarding a common law negligence claim rather than a constitutional issue. He does not argue the Supremacy Clause.
Justice Moore is no stranger to controversial positions, including promoting his biblical beliefs over federal law, and gained notoriety as the "the Ten Commandments Judge." Recall that Moore was originally elected to the Alabama Supreme Court with the campaign promise to “restore the moral foundation of the law” and soon thereafter achieved notoriety for installing a 5,280-pound monument depicting the Ten Commandments in the rotunda of the Alabama State Judicial Building. See Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003). After federal courts found that the monument violated the Establishment Clause of the First Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290, 1304 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003), Chief Justice Moore was ordered to remove the monument. See Glassroth v. Moore, No. 01-T-1268-N, 2003 LEXIS 13907 (M.D. Ala. Aug. 5, 2003). After the deadline to remove the monument passed, Chief Justice Moore was suspended, with pay, pending resolution of an ethics complaint, which charged that he failed to “observe high standards of conduct” and “respect and comply with the law.” Jeffrey Gettleman, Judge Suspended for Defying Court on Ten Commandments, N.Y. Times, August 23, 2003, at A7.
January 27, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)
Monday, June 9, 2014
The Supreme Court ruled today in CTS Corp. v. Waldburger that the federal Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, does not preempt a state statute of repose that blocked the plaintiffs' state-law nuisance claim for environmental damage caused by the defendant. (A statute of repose sets a time limit on the filing of a complaint, much like a statute of limitations.) The case means that state-law claims for environmental damage that fall outside a state's statute of repose (because the plaintiffs didn't learn about the damage until years after the defendants caused it), including the plaintiffs' case here, will be dismissed--unless and until Congress changes CERCLA to provide for preemption of state statutes of repose.
The case arose when a group of property owners sued CTS for environmental damage to their land. CTS previously ran an electronics plant on the land, where it manufactured and disposed of electronics and electronic parts. As part of the operation, CTS stored certain chemicals. CTS later sold the property to the plaintiffs, certifying it as environmentally sound.
The plaintiffs realized that the property wasn't environmentally sound--but 24 years after the sale. So when they sued, CTS successfully moved to dismiss the case based on the state statute of repose, which prevents subjecting a defendant to a tort suit more than 10 years after the last culpable act of the defendant. The plaintiffs argued that CERCLA preempted the statute of repose, allowing their case to move forward. The Court today agreed with CTS.
Justice Kennedy wrote the majority opinion and said that the text, the historical understanding of the language, and the Court's "presumptions about the structure of pre-emption" all pointed to preemption. The opinion turned in large measure on the historical understanding of the difference between a statute of limitations and a statute of repose. That's because everyone agrees that CERCLA's plain language preempts state statutes of limitations. The question was whether it also covered statutes of repose. The Court said no. (The Court said that CERCLA's drafters understood that there was a difference between the two, but included only statutes of limitations, not statutes of repose, in the preemption clause.)
Justices Sotomayor and Kagan joined Justice Kennedy's opinion in full. Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined in the result and all but the portion that relied on the Court's "presumptions about the structure of pre-emption."
Justice Ginsburg wrote a dissent, joined by Justice Breyer. Justice Ginsburg argued that CERCLA's "discovery rule" displaced the commencement-of-action date in the state statute of repose. She wrote that the CERCLA's discovery rule set the commencement date as the date that the plaintiffs actually knew (or reasonably should have known) that the injury was caused by the defendant, not the date of the defendant's last act or omission (in the state statute of repose). This meant that the plaintiffs filed within the statute of repose, and that their case should be allowed to proceed.
As in all preemption cases, Congress could have the last word. Here, as elsewhere, Congress can change the federal statute to provide for preemption of state law after the Court interpreted it not to preempt state law (or vice versa). That seems unlikely here, though.
Thursday, June 13, 2013
The Supreme Court ruled today in American Trucking Associations, Inc. v. City of Los Angeles that the Federal Aviation Administration Authorization Act, the FAAAA, preempted certain requirements of a concession agreement between the Port of Los Angeles and short-haul truck drayage companies that was adopted as part of the Port's Clean Truck Program. The Court held that the placard and off-street parking provisions of the agreement were preempted, but it declined to rule that the financial capacity and truck-maintenance requirements were preempted.
The ruling halts components of the Port's broader efforts to address community concerns about traffic, clean air and the environment, and safety, even as it leaves two disputed provisions in place, as the Port looks to expand. (It's already the largest port in the United States.) The ruling may thus set back negotiations between the Port and the local community and environmental groups--already tied up in lawsuits for almost 10 years--and ultimately throw a wrench into further Port development. Our argument preview is here.
The case arose when the Port required drayage truck operators to enter into a standard-form concession agreement as part of the Port's Clean Truck Program in 2007. Under the agreement, truck operators had to affix a placard on each truck with a phone number for reporting environmental or safety concerns, and submit a plan listing off-street parking locations for each truck when not in service. They also had to comply with financial capacity and truck-maintenance requirements. Under the plan, the Port would ban trucks that hadn't registered under an agreement and impose a criminal violation for trucks that entered the Port without an agreement.
Drayage truck operators sued to enjoin enforcement, arguing that the terms were preempted by the FAAAA. The FAAAA preemption clause says,
[A] State [or local government] may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.
49 U.S.C. Sec. 14501(c)(1). Operators also argued that even if the terms were valid, the Port couldn't enforce them by withdrawing a defaulting company's right to operate at the Port. This argument turned on Castle v. Hayes Freight Lines, Inc. (1954), which held that a state couldn't entirely bar a federally licensed motor carrier from its highways for prior violations of state safety regulations.
The Court, in a uninamous ruling by Justice Kagan, held that the FAAAA preemption clause expressly preempted the placard and parking requirements. In particular, it said that the concession agreement had the "force and effect of law" (in violation of the FAAAA preemption clause) because the Port required the agreement and enforced it with criminal sanctions. That is, the Port adopted the agreement pursuant to its regulatory authority of the state, and not in its position as a market participant. "So the contract here functions as part and parcel of a governmental program wielding coercive power over private parties, backed by the threat of criminal punishment. That counts as action 'having the force and effort of law' if anything does." Op. at 8.
As to the financial capacity and truck-maintenance requirements, the Court held that in the pre-enforcement posture of the case, it was impossible to tell whether the Port would enforce those provisions in violation of Castle or not. Those two provisions thus stay in place, at least for now.
Justice Thomas concurred in full, but wrote separately to express his doubt that Congress had authority under the Commerce Clause to regulate the placards and parking arrangements of drayage trucks in the first place.
Friday, May 3, 2013
Kansas thumbed its nose at the federal government and its current and future gun laws recently in SB 102, the Second Amendment Protection Act, which declares federal gun laws unenforceable in the state.
In particular, SB 102 says that the state legislature "declared" that firearms and accessories "manufactured commercially or privately and owned in Kansas and that remain within the borders of Kansas . . . have not traveled in interstate commerce" and therefore are not subject to federal regulation, including any federal registration requirement, under the Commerce Clause. In short, the law seeks to insulate firearms and accessories that are made and kept only within the state from federal regulation under the Commerce Clause. This reading of the Clause would deny the federal government authority to regulate activities that have a substantial effect on interstate commerce--a well settled congressional authority. (The law also says that component parts imported from other states don't transform an otherwise Kansas-made firearm into an item in interstate commerce.) To that extent, the law seems well tailored to test this long-standing aspect of congressional Commerce Clause authority--the power to regulate intrastate activities that have a substantial effect on interstate commerce. If so, that's unlikely to go anywhere. (Even in last summer's ACA/individual-mandate case, the Court gave no indication that it would wholly reconsider Congress's power to regulate activities that have a substantial effect on interstate commerce.)
More, SB 102 outlaws enforcement of federal law--even by federal law enforcement. Enforcement of federal law is a felony in Kansas, but the legislature gave federal law enforcement officials this gift: Kansas won't arrest or detain them prior to, or during the pendancy of, any trial for a violation. In other words, the charge, trial, and conviction are all just part of the political theater surrounding this obviously invalid law.
(In addition to the substantive portions of the law, SB 102 also includes the usual statements for this kind of law--statements about the Tenth Amendment (in support of a robust idea of states' rights) and the Second Amendment (as an absolute bar to any gun regulation). It also has a section on the Ninth Amendment.)
Attorney General Eric Holder shot back, reminding the state of the Supremacy Clause, and concluding that "the United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law."
Governor Brownback responded, arguing that the measure enjoyed wide bi-partisan support in the state. He said that this meant that "[t]he people of Kansas have clearly expressed their sovereign will. It is my hope that upon further review, you will see their right to do so."
Monday, January 7, 2013
Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read. Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process. By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.
The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.
Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court. Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect. Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist. The writing is broad and engaging without being precious. It makes her analysis of the cases even more trenchant, situated in larger themes and trends.
Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress." And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest. And it is especially noteworthy that the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions.
But this is a must read article before beginning the new semester.
[image of Pamela Karlan via]
January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 5, 2012
The Oklahoma Supreme Court has held its restrictive abortion statute, HB 2780, unconstitutional in two opinions yesterday, affirming lower courts: Nova Health Systems v. Pruit and Oklahoma Coalition for Reproductive Justice v. Cline.
The nine supreme court justices, "representing" each of the nine judicial districts of the state,
issued the terse (and nearly identical) opinions, the only difference being a recusal of one of the Justices in Pruit. The opinion(s) provided in full:
¶1 This is an appeal of the trial court's summary judgment which held House Bill 1970, 2011 Okla. Sess. Laws 1276, unconstitutional. Upon review of the record and the briefs of the parties, this Court determines this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), which was applied in this Court's recent decision of In re Initiative No. 395, State Question No. 761, 2012 OK 42, cert. den. sub nom. Personhood Okla. v. Barber et al., 81 U.S.L.W. 3065 (U.S. October 29, 2012) (No. 12-145).
¶2 Because the United States Supreme Court has previously determined the dispositive issue presented in this matter, this Court is not free to impose its own view of the law. The Supremacy Clause of the United States Constitution provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. Art. VI, cl. 2. The Oklahoma Constitution reaffirms the effect of the Supremacy Clause on Oklahoma law by providing: "The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land." Okla. Const. art. 1, § 1. Thus, this Court is duty bound by the United States and the Oklahoma Constitutions to "follow the mandate of the United States Supreme Court on matters of federal constitutional law" In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 1, 838 P.2d 1, 2; In re Petition No. 395, 2012 OK 42, ¶ 2.
¶3 The challenged measure is facially unconstitutional pursuant to Casey, 505 U.S. 833. The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary. The judgment of the trial court holding the enactment unconstitutional is affirmed and the measure is stricken in its entirety.
Thus, the court rests its decision on the Supreme Court's holding in Casey, and not, as some reports have suggested, state constitutional law. The matter is thus suitable for a petition for writ of certiorari to the United States Supreme Court.
Monday, November 19, 2012
As President Obama travels to Burma/Myanmar, becoming the first United States President to do so, most ConLawProfs will be recalling Crosby v. National Trade Council, decided by the Court in 2000. In an unanimous decision, the Court declared unconstitutional Massachusetts' 1996 procurement statute barring the state from doing business with almost any entity "doing business" with Burma. The Court held the state law was invalid under the Supremacy Clause because of a Congressional grant of authority to the President over any economic sanctions for Burma. The Massachusetts law thus undermined the diplomatic powers of the President.
The repressive history of Burma/Myanmar is essential to understanding the President's current diplomacy as well as Massachusetts' legislation in Crosby.
And essential to Americans seeking to understand Burma is the work of Emma Larkin. Widely regarded as one of the best books on Burma is Emma Larkin's Finding George Orwell in Burma. In the fascinating and well-written book published in 2006, Larkin - - - not her real name - - - writes of contemporary Burma and George Orwell's history in Burma, arguing convincingly that Orwell's novel 1984 was actually modeled on Burma and continued to be relevant. Earlier this year, Larkin wrote compellingly of the "Burma Spring" the popularity of former dissident Aung San Suu Kyi, both in an essay and in a lengthy review of Peter Popham's The Lady and the Peacock: The Life of Aung San Suu Kyi.
Obama argues that his visit is an "acknowledgment that the country is making progress toward reform." Read Emma Larkin's book, if you haven't already done so, to discover what this might mean.
Friday, October 26, 2012
In its opinion in Planned Parenthood of Indiana v. Commissioner of Indiana Department of Health, the Seventh Circuit this week affirmed a district judge's injunction against the state's defunding of Planned Parenthood.
However, the Seventh Circuit upheld the district court on the statutory claim under the Medicaid Act's "free choice of provider" provision, and rejected the constitutional claims of preemption and unconstitutional conditions.
On the preemption claim, the Seventh Circuit panel reversed the district judge's finding that the federal block-grant program for the diagnosis and monitoring of sexually transmitted diseases conflicted with Indiana's defunding of Planned Parenthood in contravention of the Supremacy Clause. The panel applied a presumption in favor of a lack of preemption and found no conflicts, even as implied.
While the district judge had not reached the unconstitutional conditions claim - - - having granted relief on the other claims - - - the Seventh Circuit stated that "it makes sense" to address it. The panel focused on the constitutional right at stake, reasoning that it is a "right against coercive government burdens," but this "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Thus, the panel concluded that the unconstitutional conditions claim was not likely to succeed on the merits: given that "the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion."
Thus, although the Seventh Circuit opinion's result requires the funding of Planned Parenthood, the court foreclosed constitutional claims.
Wednesday, September 19, 2012
In a one page Order, Judge Susan Bolton has dissolved the preliminary injunction she issued regarding Section 2(B) of S.B. 1070, the so-called "show me your papers" provision.
This was inevitable given her opinion earlier this month ruling that it would be premature to declare the provision unconstitutional, resting her conclusion - - - perhaps erroneously as we discussed - - - on the United States Supreme Court's opinion in Arizona v. United States last June.
Monday, August 20, 2012
Sections 7 and 8 of Georgia's immigration regulation statute, known as HB 87, were enjoined by federal district Thomas Thrash in June 2011, a few months after the law was passed.
Today, the Eleventh Circuit, in its opinion in Georgia Latino Alliance for Human Rights v. Governor of Georgia, upheld the injunction against Section 7 - - - the criminalization of transporting, harboring, or inducing to enter Georgia any "illegal alien" - - - finding the provisions preempted by federal law. The court found that the Georgia statute directly conflicted and was an obstacle to federal immigration law.
The court, however, reversed the injunction against Section 8 - - - the "show me your papers" provision - - - relying upon the Supreme Court's June opinion in Arizona v. United States. However, the Eleventh Circuit left open an "as applied challenge" to section 8, much as the Court did in Arizona v. US.
While the Eleventh Circuit spent a substantial portion of its 33 page opinion rejecting the state's challenge to plaintiffs' standing as well as the state's argument that there was no private cause of action under the Supremacy Clause or preemption, the preemption analysis is central and well-supported.
[image of Georgia flag/map via]
Wednesday, August 1, 2012
The Fifth Circuit has decided to hear Villas at Parkside Partners v. City of Farmers Branch Texas en banc. Recall that the Fifth Circuit panel affirmed the district judge's conclusion finding a town ordinance unconstitutional pursuant to the Supremacy Clause, as preempted by federal law. The ordinance, reproduced as a 15 page appendix to the majority opinion, is rather detailed, but essentially requires tenants to have licenses that demonstrated their citizenship or legal status.
As we noted, the then-forthcoming holding on SB1070 in Arizona v. United States could certainly effect the preemption analysis of the ordinance of Farmers Branch, Texas. However, the Court's opinion in Arizona v. United States would tend to support the panel opinion.
Monday, June 25, 2012
The Supreme Court issued its much-anticipated opinion in Arizona v. United States on the constitutionality of controversial state immigration statute SB 1070. The over all issue, recall, is whether the state law is preempted by the federal statutory immigration law and thus invalid under the Constitution's Supremacy Clause, Article VI.
The majority - - - Justices Kennedy, Roberts, Ginsburg, Breyer, and Sotomayor - - - affirmed in part and reversed in part the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of SB 1070.
The Courthad granted the petition for writ of certiorari on four provisions:
- 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.
The majority held that Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law, but that the controversial 2(B) was not.
On Section 3, the Court applied complete field preemption, holding that even complementary state regulation unconstitutionally intrudes.
On Section 5(C) and 6, the Court held that the state provisions operated as obstacles to the federal statutory scheme.
Upholding Section 2, the Court essentially held that without state courts having an opportunity to further construe the provision, the record was too incomplete to determine whether or not the provision conflicted with federal law.
Justices Scalia, Thomas, and Alito each wrote separate dissents. Justice Elana Kagan did not participate.
The Opinion of the Court is relatively brief at 25 pages. For an opinion by Justice Kennedy (dare I say), it is unusually well-structured. The discussion of pre-emption principles is setting out express preemption, then pervasive field preemption and conflict (obstacle) preemption, including the Court's most recent preemption opinion, Whiting, which it will later distinguish (and which was joked about as decisively precedential by Justice Roberts at oral argument, who interestingly joins Kennedy's opinion).
Then it considers each provision, providing some but not overwhelming detail, regarding the conflict. Most controversially (and lengthily), the Court reversed the Ninth Circuit’s conclusion that Section 2(B) was preempted, focusing both on the mandatory status checks (– colloquially known as the “show me your papers” provision – ) and the possibility of prolonged detention. However, the majority stated that Section 2(b) could be read to avoid the concerns of conflict and offered some hypos:
To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. [citations omitted].
To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.
For some, these "could be read" passages suggest that only upon a narrow construction would Section 2(B) be upheld.
Not surprisingly dissenting, Justice Scalia would have upheld SB1070, and stressed the historical precedent that would allow states as sovereigns to exclude all aliens from their states. His use of history here will most likely be criticized by some legal historians of the Early Republic. In a statement sure to provoke more controversy, he referred to President Obama’s statement regarding young non-citizens, saying “The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra tion’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.” He closed by repeating Paul Clement’s claim that “Arizona bears the brunt of the country’s illegal immigration problem.”
Thomas' briefly opined that even "assuming the existence of some tension" between SB1070 and the federal scheme, it did not merit preemption. Alito's much longer opinion agreed with the Court that 2(B) was not preempted, and interestingly agreed that Section 3 (colloquially known as the carry your papers provision) was preempted. He "part[ed] ways" on §5(C) and §6, arguing that Congress was not sufficiently clear on its desire to preempt a provision regarding employment and that §6 "adds virtually nothing to the authority that Arizona law enforcement officers already exercise."
Tuesday, June 12, 2012
In mid-June, the Supreme Court watching & waiting gets serious. The Court currently has only two scheduled "Non-Argument" days on its June calendar to announce opinions, June 18 and 25, although it could add more.
[UPDATE: On June 14, the Court added Thursday, June 21, to its calendar].
Certainly, the health care reform cases on the constitutionality of the ACA, argued over several days (March 26, March 27, and March 28) are the most anticipated, but there are at least three other not-yet-decided opinions that are much anticipated and involve controversial constitutional issues.
In January, the Court heard oral arguments in FCC v. Fox presenting the Court again with the First Amendment problems of "fleeting expletives" and "fleeting nudity" in a regulated media context, although the precise issue is more muddled than not. Fox (represented by Carte 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 (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current proliferation of media.
In February, the Supreme Court heard oral arguments in another First Amendment case, 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." A few weeks before oral argument, the Tenth Circuit, in a divided opinion, upheld the provision.
In late April, the Court heard oral arguments in 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 as the lower courts held. These include requiring 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; criminalizing the failure to carry an “alien registration document;'" criminalizing undocumented immigrants applying for employment or being employed; and authorizing warrantless arrests if based upon probable cause that a person has committed a deportable crime. Several commentators suggested that Justice Scalia's remarks at oral argument were other than judicial.
While it is not always true that opinions rendered late in the term are the most divisive and complex, the conventional wisdom supports this perception, especially if the oral arguments were earlier in the Term.
[image of Supreme Court courtroom via]
Saturday, April 28, 2012
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.
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.
[image: Justice Scalia at speaking engagement via]
Wednesday, April 25, 2012
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.
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.
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:
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?
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:
. . . . 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 --
- CHIEF JUSTICE ROBERTS: What if they just rolled in Whiting?
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.
Tuesday, April 24, 2012
The Supreme Court will hear oral arguments in Arizona v. United States on the issue of the constitutionality of Arizona's notorious SB 1070, signed into law by Governor Jan Brewer two years ago. The law was controversial from the beginning for a variety of reasons, but the case before the Court focuses on the pre-emption issue as brought before the federal courts by the Department of Justice.
The DOJ was mostly successful in the lower courts. The Court granted the review sought by Arizona of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070. We've previously outlined some of Arizona's arguments on certiorari.
The oral arguments have attracted much attention. Lyle Dennison at SCOTUSblog has a lengthy, detailed, and incisive analysis, though many readers will be most interested in his outcome bottom line: "With Justice Kagan not taking part, a 4-4 split among those who are taking part would simply uphold — without a written opinion — the Ninth Circuit decision barring enforcement of the four provisions at issue." Kevin Johnson posts over at Immigration Law Prof blog and surfaces an interesting possible outcome. Findlaw has a quick review, ACS has a good discussion, and The Tuscon Sentinel has particularly excellent discussion in a "primer." The NYT has a great graphic of copy-cat SB 1070 statutes in other states.
After the oral argument, there is sure to be much analysis, prediction, and the inevitable wait for the opinion due before the end of the term.
And of course, political responses. Given that the Court's task is the interpretation of a statute and that the "touchstone" of preemption is Congressional intent, Congress can always legislate. While immigration legislation is never easy, at least one Senator is vowing to propose a statute including what seems to be express preemption.