Constitutional Law Prof Blog

Sixth Circuit Rejects Medical Resident's Due Process Claim

The Sixth Circuit rejected a procedural due process claim by a medical resident at a public medical school after the school dismissed the resident for unprofessional behavior. Consistent with other courts that have considered the issue, the court ruled that a medical resident was more like a student than an employee, and therefore entitled to lesser procedural protections.

The case, Mares v. Miami Valley Hospital, arose out of complaints against the plaintiff, a medical resident at Wright State University's Boonshoft School of Medicine and Miami Valley Hospital, for unprofessional behavior. After a series of interventions, probation, and a committee vote to dismiss the plaintiff, a review panel recommended that the plaintiff remain on probation through graduation, but that any additional violations of WSU's academic and professional standards would result in immediate termination from the program.

The dean and president of Miami Valley rejected the recommendation, however, and affirmed the earlier committee decision to dismiss the plaintiff. WSU's provost affirmed. The plaintiff sued, arguing that WSU violated procedural due process.

The Sixth Circuit disagreed. The court first ruled that the plaintiff, as a resident, was more like a student than an employee, and that she was therefore entitled only to the "minimal" procedural due process protections of a student dismissed for academic reasons. (The court based this conclusion on the nature of the program and program materials. It also noted that this is consistent with every other court that considered the question.) The court then wrote that she received "more than enough process":

It is undisputed that [the plaintiff] accumulated several complaints about her unprofessional behavior from medical students, colleagues, and WSU faculty members throughout her residency. In less than two years at WSU, [the plaintiff] had been formally warned about her performance, suspended for several days, and placed on probation. Despite these formal warnings, [the plaintiff] continued with her problematic conduct and, after deliberation, WSU's Clinical Competency Committee recommended dismissing her from its residency program. In doing so, the Committee set in motion WSU's extensive internal procedures . . . which ensure that residents facing an adverse action are provided with quintessential due process.

The court also rejected the plaintiff's substantive due process claim, ruling that she had no substantive due process right in her residency (again, an educational program), but in any event that the school didn't act arbitrarily and capriciously or in a way that would shock the conscience.

Leaked Draft Overturns Roe v. Wade

Steven D. Schwinn, University of Illinois Chicago School of Law

Here's the draft obtained by Politico, apparently authored and circulated by Justice Alito. Here's the upshot:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely--the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of "liberty." Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law now before us describes as an "unborn human being."

Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people's representatives. . . . .

Justice Alito wrote that the ruling doesn't call into question other recognized fundamental rights in cases cited in Roe and Casey. But the ruling could lay the groundwork for overturning more recent cases like Lawrence v. Texas and Obergefell--which, in the language of the opinion, recognize the "right to engage in private, consensual sexual acts" and the "right to marry a person of the same sex," respectively--if the Court ever reassess whether those rights are "deeply rooted" and "implicit in the concept of ordered liberty."

The opinion engages with some of the historical arguments in favor of Roe. But it doesn't engage with this one, by David Gans at the Constitutional Accountability Center. Check it out.

Court to Hear Arguments in Mississippi Abortion Ban Case

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral arguments today in Dobbs v. Jackson Women's Health Organization, the case testing Mississippi's ban on abortion after 15 weeks of pregnancy . . . and Roe v. Wade itself. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

In 2018, Mississippi enacted the Gestational Age Act. The Act prohibits doctors from performing an abortion on a woman who is more than 15 weeks pregnant. (In determining the length of a pregnancy, the clock starts running at a woman’s last menstrual period, or “LMP.” As a result, the parties sometimes say that the Act bans abortions after “15 weeks LMP.”)

The Act contains two exceptions. The first one allows doctors to perform an abortion on a woman more than 15 weeks pregnant in the case of a “medical emergency.” The Act defines a “medical emergency” as a situation where, because of a woman’s physical condition or illness, a doctor must perform an abortion in order to save the woman’s life or to prevent “a serious risk of substantial and irreversible impairment of a major bodily function.”

The second exception allows doctors to perform an abortion on a woman more than 15 weeks pregnant in the case of a “severe fetal abnormality.” The Act defines a “severe fetal abnormality” as “a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of live-saving medical treatment, is incompatible with life outside the womb.”

A doctor who “intentionally or knowingly” violates the Act is subject to license suspension or revocation.

On the same day that the Act took effect, Jackson Women’s Health Organization (JWHO) and one of its doctors sued. JWHO is the only abortion provider in Mississippi; it performs abortions up to the 16th week of a woman’s pregnancy. JWHO argued that the Act violated the fundamental right to abortion under Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and sought an injunction against its enforcement.

The district court granted a permanent injunction, and the United States Court of Appeals for the Fifth Circuit affirmed. This appeal followed.

CASE ANALYSIS

For almost 50 years, since Roe v. Wade, the Supreme Court has recognized that a woman has a fundamental right to an abortion. For almost 30 years, since Casey, the Court has said that a state can regulate abortion before a fetus is viable outside the womb only insofar as the state regulation does not create an “undue burden” on a woman’s right to an abortion. After viability, a state may ban abortion entirely, but the state still has to provide an exception for the life or health of the woman.

Mississippi’s ban on abortion after 15 weeks of pregnancy runs headlong into this framework, or at least tests its limits. That’s because fetal viability occurs around 22 to 24 weeks of pregnancy, and an outright ban before that time (at 15 weeks of pregnancy) plainly creates an “undue burden,” at least for some women.

Mississippi takes on this framework directly and argues that the Constitution does not protect a woman’s right to abortion. It claims that Roe and Casey “are grievously wrong, unworkable, damaging, and outmoded,” and that the Court should overrule them. The state says that because the Constitution does not protect a right to abortion, the Court should scrutinize its Act under mere “rational basis review,” the low-level, deferential standard that the Court uses to analyze state regulations of economic matters and interests that are not fundamental. Under this standard, Mississippi asserts that the Court should uphold its ban, because the ban is rationally related to the state’s interests in “protecting unborn life, women’s health, and the medical profession’s integrity.”

But even if the Court declines to overturn Roe and Casey and continues to recognize the fundamental right to abortion, the state argues that the Court should reject Casey’s viability benchmark. The state says that the “viability rule has no constitutional basis, it harms state interests, and it produces other severe negative consequences.”

Mississippi offers two alternatives to the viability line: the Court could rule that the Act survives any level of scrutiny (including the most rigid “strict scrutiny”) and put off a determination of what specific level of review applies; or the Court could “clarify the undue-burden standard” and hold that the Act does not create an undue burden. Under this latter option, Mississippi asserts that the Court could interpret the undue-burden standard to mean that a state could prohibit pre-viability abortions if the state restriction does not erect a substantial obstacle to “a significant number of women” seeking abortions. Under this approach to the undue-burden standard, Mississippi contends that its Act does not create an undue burden, because JWHO only performs abortions up to sixteen weeks of pregnancy, and “so the Act reduces by only one week the time in which abortions are available in Mississippi.”

JWHO counters first that the Court should not overturn Roe and Casey. JWHO says that the Court in Casey already considered all the arguments that Mississippi makes for overturning Roe—and rejected them. As a result, it claims that “Casey is precedent on top of precedent,” and that the case for retaining Roe and Casey has only grown stronger in the nearly 30 years since Casey, and the Court’s repeated reaffirmations of the fundamental right to pre-viability abortion.

Moreover, JWHO asserts that there is no reason to revisit Roe and Casey or the viability benchmark. JWHO says that a woman today still has “the personal autonomy and bodily integrity interests that underpin” the fundamental right to abortion, and that the viability line protects those interests “in a principled and workable way.” JWHO also contends that nothing has changed in the fundamental liberty interest that Roe and Casey protect. It says that if anything, “the years since Casey have only reinforced the importance of access to legal abortion for gender equality.” For all these reasons, JWHO contends that there is no reason to revisit Roe and Casey or the viability benchmark.

JWHO argues that Mississippi’s proffered alternatives to the viability benchmark are unworkable, and only “confirm that the Court was right in Casey to retain the viability line.” It says that lower courts could not administer any standard other than the “undue burden” standard “against the inevitable cascade of state abortion bans that would follow if the Court” changes the standard. And it claims that the state’s version of the “undue burden” standard would, as a practical matter, eviscerate Roe and Casey.

(The government weighs in to support JWHO and makes substantially similar arguments.)

SIGNIFICANCE

Dobbs is almost certainly the most important case this Term, and probably the most important case in the last several Terms, or even decades. That’s because it puts front and center a nearly 50-year-old precedent that is a principal focal point in constitutional law and politics. Political conservatives have fought for decades to gain a majority on the Court that is willing to overturn Roe v. Wade, while political progressives have fought to preserve it. At the same time, Roe v. Wade has served as an organizing principle in national, state, and even local politics for both the right and the left.

That said, Roe really is a super-precedent. The Court has reaffirmed it time and again, and flatly rejected strong calls to overturn it, including in Casey, where the Court laboriously considered, and rejected, all the arguments against it. In fact, the Court reaffirmed the Casey framework twice in the last five years, first in Whole Woman’s Health v. Hellerstadt, 136 S. Ct. 2292 (2016), and just last year in June Medical v. Russo. 140 S. Ct. 2103 (2020). Those cases were close, to be sure, but the rulings still stand.

But with Justice Amy Coney Barrett’s replacement of Justice Ruth Bader Ginsburg (and Justice Brett Kavanaugh’s earlier replacement of Justice Anthony Kennedy), the Court today has six justices who would almost certainly rule that the Constitution does not protect a fundamental right to abortion. Still, that doesn’t ensure that the Court will rule that the Constitution does not protect a fundamental right to abortion. That’s because two or more of those six may vote to uphold Roe and Casey under principles of stare decisis, even if they disagree with Roe and Casey on the merits. (Chief Justice John Roberts already telegraphed some support for stare decisis in this context when he famously voted to overturn Louisiana’s abortion restrictions in June Medical based on the Court’s ruling in a similar case in Hellerstadt—even though he dissented in Hellerstadt. It’s not obvious that his approach to stare decisis in June Medical will carry over to Roe and Casey, however.)

If so, Mississippi is ready with its two alternatives. These would allow the Court to validate the fundamental right to abortion but abandon the undue-burden test, the viability line, or both. The Court could nominally affirm Roe and maybe even Casey, while in reality taking large chunks out of them. Given the Court’s incremental approach to overturning other long-standing precedents, this is a real possibility.

One final note. The Court already this Term heard oral arguments in two other critical abortion cases, U.S. v. Texas and Whole Woman’s Health v. Jackson, both arising out of Texas’s unprecedented restriction on abortion. Those cases are obviously related to this one insofar as they address a state’s restriction on the fundamental right to abortion. But the core issue in those cases is procedural, not (necessarily) substantive—whether the plaintiffs can sue to stop Texas from implementing the law.

Fifth Circuit Tosses Case Challenging Removal of Confederate Monument

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit dismissed a case challenging San Antonio's removal of a monument of a confederate soldier for lack of standing. The ruling ends the challenge. (The statue is already gone.)

The case, Albert Sidney Johnston v. San Antonio, arose when the city removed a confederate monument in a public park. ASJ sued, arguing that the removal violated the First and Fourteenth Amendments.

The court held that ASJ lacked standing. It recognized that ASJ is the successor organization to the Barnard E. Bee chapter of the United Daughters of the Confederacy, which erected the monument in the first place. But it said that ASJ had no property interest in the public park (because "the land was generally inaliable and unassignable") and no right to use the land; and therefore the organization couldn't allege a harm under the First or Fourteenth Amendments.

Fifth Circuit Strikes Fee for Latex Clubs

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit ruled that a $5 per person fee for "latex clubs" in Texas violated free speech and due process. The ruling means that state authorities can't enforce the fee against sexually oriented clubs where dancers wear opaque latex breast coverings and shorts.

The case, Texas Entertainment Association v. Hegar, arose when Texas enacted a "sexually oriented business" fee that imposed a $5 charge per customer on businesses that serve alcohol in the presence of nude entertainment. In response, some sexually oriented businesses required dancers to wear opaque latex breast coverings and shorts. The gambit allowed these "latex clubs" to dodge the $5 fee for a good eight years, until the Texas comptroller issued a rule that excluded latex from the definition of "clothing" under the law. The rule meant that latex clubs now had to pay the fee.

The TEA, which represents sexually oriented businesses in Texas, sued, arguing that the comptroller's move violated free speech, due process, and equal protection. The Fifth Circuit agreed, except as to equal protection.

The court ruled that the comptroller's redefinition was a content-based restriction on speech (and not content-neutral), because the comptroller produced no evidence that the redefinition served any non-speech purpose (like reducing the secondary effects of latex clubs). (The court declined to shoehorn the state's initial asserted interest behind the $5 fee--reducing secondary effects--into the comptroller's decision, more than eight years later, and based on no evidence.) The court applied strict scrutiny, and ruled that the comptroller's action failed.

The court also ruled that the comptroller's action violated due process. The court said that the comptroller previously declined to impose the fee on latex clubs--indeed, that the comptroller told one club that "everything was good"--and upset the latex clubs' "settled expectation that they would not be subject to" the fee.

Finally, the court ruled that the action didn't violate equal protection. The court said that latex clubs were more like nude dancing establishments (which were already subject to the fee), and not like sports bars (which were not). Because the move did not treat similarly situated businesses differently (latex clubs aren't similar to sports bars), the court ruled that it didn't violate equal protection.

Fifth Circuit Upholds Ban on Common Previability Abortion Procedure

Steven D. Schwinn, University of Illinois Chicago School of Law

The full Fifth Circuit upheld Texas's ban on a common second-trimester, previability abortion procedure, ruling that the law didn't create an undue burden on a woman's right to abortion. The law and ruling limit the way doctors can perform a "dilation and evacuation" abortion in Texas: they cannot use forceps to separate, terminate, and remove the fetus (what the state calls a "live dismemberment" procedure); instead they can only use a suction technique to remove a fetus, or cause "fetal death" (through digoxin injections) prior to removing the fetus with forceps.

The ruling also deepens a circuit split over the Court's controlling opinion--and the operative test for abortion restrictions--in June Medical.

The case, Whole Woman's Health v. Paxton, tests Texas's restriction on the common D&E procedure for second-semester, previability abortions. Doctors who perform these abortion use one of three principal methods: (1) they use a suction method alone to terminate, separate, and remove a fetus; (2) they use suction and forceps together to terminate, separate, and remove a fetus; or (3) they use "fetal-death" techniques (like digoxin injections) to terminate the fetus before removing it with forceps. The Texas law bans the use of the second technique, except in cases of a "medical emergency."

The court ruled--contrary to the district court--that the law wasn't facially unconstitutional. In short, it held that the ban didn't create an undue burden on a woman's right to abortion, because the law allowed doctors to perform abortions using the suction method alone, or by causing "fetal death" prior to fetal evacuation.

Along the way, the court held that Chief Justice Roberts's opinion in June Medical was the Court's controlling opinion (under the Marks) rule, and so it didn't have to balance the burdens of the law against the state's asserted benefits of the law; instead, it examined only whether the law created an undue burden. (The balancing test used by the plurality in June Medical tends to work in favor of a woman's right to abortion, especially where, as here and in June Medical, the state asserts only weak (or no) benefits from the restriction. Chief Justice Roberts's approach tends to work against a woman's right to abortion in those situations, because it ignores the state's relatively weak benefits, or its lack of benefits altogether.) The court's ruling on this score aligns it with the Eighth and Sixth Circuits, but puts it at odds with the Seventh and Eleventh Circuits.

Five judges dissented. Three of the dissenters argued that the case was controlled by Stenberg v. Carhart (2000), where the Court overturned a state restriction that operated just like Texas's law. Moreover, these three said that the suction method and the "fetal-death" method both created undue burdens on a woman's right to abortion, because both procedures created additional risks, and that those risks outweighed the state's asserted benefits of the law. (The dissenters applied the balancing test (not Chief Justice Roberts's approach) from June Medical.)

Two other dissenters argued that the court should've simply remanded the case after clarifying that Chief Justice Roberts's approach would control, and clarifying the court's views on the Supreme Court's abortion jurisprudence more generally.

Court Declines to Enjoin Indiana University's Vaccine Requirement

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Amy Coney Barrett today declined to enjoin Indiana University's vaccine requirement, without referring the matter to the entire Court, and without explanation. Justice Barrett issued the order, because she's the justice assigned to the Seventh Circuit, where the case arose. The plaintiffs' application is here.

The case, Klaassen v. Trustees of Indiana University, tested IU's COVID vaccine requirement for students. Eight students argued that the requirement violated due process, but the Seventh Circuit disagreed. In an appropriately curt ruling (given the state of the law), the court simply said that Jacobson v. Massachusetts foreclosed the plaintiffs' argument. (That's the that 1905 case that upheld Massachusetts's smallpox vaccine requirement under a deferential standard.) Indeed, the Seventh Circuit said that this case was easier than Jacobson, because IU's requirement contains religious and medical exceptions (which Massachusetts's requirement did not), and because IU's requirement only applies to the IU community (and not the community at large).

Today's ruling means that IU can impose its vaccine requirement--and that other universities can, too--without violating due process.

Supreme Court Halts New York's Emergency Eviction Pause for Self-Certified Hardship Sufferers

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court today enjoined a New York law that pauses evictions for tenants who self-certify that they're suffering a hardship. The ruling means that some tenants could be evicted sooner than expected, even as the government is in the process of distributing more than $2 billion in aid that could be used to pay back rent. The ruling halts enforcement of the Act pending appeal, now at the Second Circuit. (The lower courts previously denied an injunction pending appeal.)

The case, Chrysafis v. Marks, tests Part A of New York's COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA). The Act temporarily pauses a landlord's right to pursue an eviction proceeding when a tenant self-certifies that they suffer a financial hardship. Under the Act, a landlord can't challenge a tenant's self-certification; the landlord can only wait out the pause, which expires on August 31 (at which point evictions will proceed as usual). Even so, the Court said that this violates due process: "This scheme violates the Court's longstanding teaching that ordinarily 'no man can be a judge in his own case' consistent with the Due Process Clause." The Court granted an injunction pending appeal--an extraordinary form of relief.

Justice Breyer dissented, joined by Justices Sotomayor and Kagan. Justice Breyer noted that the Act effected only a pause in evictions proceedings (and not a "total deprivation" of a landlord's right to pursue eviction), only for another few weeks, and at a time when the government is distributing emergency relief funds that could be used to pay back rent and avoid eviction. He also noted that the Act doesn't preclude landlords from pursuing back rent and other damages. He argued that the plaintiff-landlords failed to meet the high bar for this kind of extraordinary relief.

Court to Take Up Challenge to Right to Abortion, Roe v. Wade

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court agreed to hear a case challenging Mississippi's ban on abortions after 15 weeks of pregnancy, except in cases of medical emergencies or severe fetal abnormality. The case, Dobbs v. Jackson Women's Health Organization, threatens the fundamental right to an abortion under Roe and Casey.

That's because with the addition of Justice Barrett (replacing Justice Ginsburg), there are now six solid votes against the fundamental right to an abortion. This counts Chief Justice Roberts, who only begrudgingly voted to overturn state restrictions on abortion last Term in June Medical. Chief Justice Roberts joined the four progressives in that case, but wrote separately to base his vote on stare decisis, and the Court's 2016 decision in Hellerstedt, a case with virtually identical facts. There's no guarantee that he'd vote to uphold or defer to Roe and Casey in the same way. Even if he did, though, there'd still be five likely votes to overturn Roe.

Still, the case gives the Court some room to sharply curtail the right to abortion without necessarily overturning Roe.

The QP is whether all pre-viability prohibitions on elective abortions are unconstitutional. Here's the cert. petition; here's the Court's docket.

 

Full Sixth Circuit Rejects Facial Challenge to Ohio's Down Syndrome Abortion Restriction

Steven D. Schwinn, University of Illinois Chicago School of Law

The full Sixth Circuit rejected a facial challenge to Ohio's law that bans doctors from performing an abortion with the knowledge that the woman's reason for abortion is that the fetus has Down syndrome. The ruling means that the law stays on the books, but may be subject to as-applied challenges when it goes into effect.

The case, Preterm-Cleveland v. McCloud, tested Ohio's law that prohibits doctors from performing abortions when the doctor knows that the woman seeks an abortion because the fetus has Down syndrome. The court said that the law "advances the State's legitimate interests" in

protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicated fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions.

The court also said that the law doesn't have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion." Here, the court emphasized that the law only prohibits a doctor from performing an abortion when the doctors knows that the woman seeks an abortion because the fetus has Down syndrome. The court asked, and answered:

Would any woman who is otherwise set on having an abortion choose not to have that abortion (and instead have the baby) solely because she could not have the abortion performed by the specific doctor to whom she desires to reveal (or has revealed) that her reason for the abortion is that she does not want a child with Down syndrome? Taking the next step, would a significant number of such women do so? We think the answer to both questions is clearly no, but more importantly, the plaintiffs have certainly made no such showing.

As to any accidental reveal, the court said that a woman would only have to go to a different doctor--one who didn't know of her purpose.

The court also declined to halt the law based on its lack of exception for the life or health of the woman. It said that the plaintiffs had to raise this claim in an as-applied challenge, not a facial one.

Ninth Circuit Denies Qualified Immunity for Judicial Deception Resulting in Minors' Medical Exams

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit denied qualified immunity to two social workers who knowingly and falsely represented to a juvenile court that they had made reasonable efforts to notify parents about medical examinations of their children. The false representations led to court-ordered exams without the knowledge or consent of the parents. The ruling means that the parents' civil-rights suit against the social workers can move forward.

The case, Benavidez v. County of San Diego, arose when social workers falsely told a juvenile court, as part of child removal proceedings, that they had made reasonable efforts to notify the children's parents when they sought a court order for medical examinations of the children. Based on the social workers' false statements, the court ordered medical exams of the children. The parents only learned of the exams after they occurred.

The parents sued, arguing that the social workers violated their due process rights by deceiving the juvenile court in procuring the orders for medical exams. The social workers argued that they enjoyed qualified immunity. The Ninth Circuit disagreed.

The court ruled that "Plaintiffs' claims sufficiently alleged a violation of their constitutional right to family association, which 'includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state.'" More particularly, the court said that "[w]e have previously recognized a constitutional right under the Due Process Clause of the Fourteenth Amendment to be free from judicial deception and fabrication of evidence in the context of civil child custody cases." The court ruled that the plaintiffs sufficiently pleaded facts to support a violation here.

The court went on to say that the right was well established at the time of the violation.

At the same time, the court rejected the plaintiffs' Monell claim for county liability. The court said that the plaintiffs failed to allege that county policy or the county's failure to train the social workers led to the violations. (County policy, in fact, required the social workers to obtain parental consent before the examination.)

Obergefell as Precedent: First Monday in October

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg's death in September.

In today's Order List of the Term, the Court denied certiorari in Davis v. Ermold to the Sixth Circuit's decision that court clerk Kim Davis did not have immunity from a damages suit. (Recall that in 2017 the Sixth Circuit allowed the damages suit to proceed). Kim Davis achieved notoriety as a clerk who refused to issue a marriage license to a same-sex couple despite the United States Supreme Court's ruling in Obergefell v. Hodges.

Two Justices on the Court who dissented in Obergefell — Thomas joined by Alito — used today's denial of certiorari to issue a "statement" (it is not a dissent as the issue is not "cleanly presented" in this case) to cast doubt on the continued validity of Obergefell:

this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

Two Justices who joined the slim 5-4 majority in Obergefell  — Ginsburg and Kennedy — are no longer on the Court.  This statement sends a strong message to courts and advocates that the the Court would contemplate overruling or severely limiting Obergefell should the issue be more "cleanly presented."

Florida District Judge Issues Injunction on Florida Statute Requiring Payment of Fines and Fees for Re-enfranchisement

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The 125 page opinion in Jones v. DeSantis by United States District Judge Robert Hinkle results in an detailed permanent injunction outlining how Florida must comply with the constitutional and statutory requirements required to implement its statute requiring the payment of fees and fines before persons convicted of felonies be re-enfranchised.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole." 

Recall Judge Hinkle previously issued a preliminary injunction regarding indigent persons, finding that the statute as to the named plaintiffs violated equal protection.

Recall also that the Eleventh Circuit upheld the preliminary injunction, finding that to the "extent a felon can pay" the legal financial obligations (LFOs), they must, but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

Now, Judge Hinkle has heard evidence in the five consolidated cases and issued a detailed injunction.

As to the equal protection claim of persons who are "genuinely unable to pay their LFOs,"  Judge Hinkle found the Eleventh Circuit decision upholding the preliminary injunction was determinative. But the determination of "genuinely unable to pay" had its own constitutional issues:

The State has shown a staggering inability to administer the pay-to- vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.

The state, it seemed, could not determine the original obligation for individuals, and it could not determine the amount that individuals had paid - - - changing its accounting from an "actual-balance method" to a "every-dollar method." The opinion does an admirable job of explaining the methods and providing examples - - - and it seems clear that it is incoherent. Further, the department of elections charged with administering the system did not have a system or the resources it.

On equal protection on the basis of race or gender, Judge Hinkle rejected both claims "on balance," but did provide serious consideration.

On the Twenty-fourth Amendment, the court stated that while the Florida statute was not a poll tax, the fees imposed on defendants as payment to run the criminal justice system were "any other tax" within the Amendment.

On procedural due process, the problems with the state system and the "request an advisory opinion" method provided to individuals to determine the amounts due merited analysis, as well as a large portion of the mandated injunction (below).

While the States may certainly chose to appeal, Florida would not seem to have a very good chance returning to the Eleventh Circuit.

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Sixth Circuit En Banc to Hear Right to Literacy Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Sixth Circuit has granted en banc review requested by a member of the court (rather than the parties) in Gary B. v. Whitmer. The panel's "previous decision and judgment of this court are vacated, the mandates are stayed, and these cases are restored to the docket as pending appeals."

This is not unanticipated. Recall that a divided panel held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment.  Our extensive analysis of the panel opinion is here.

Sixth Circuit Recognizes Fundamental Right to Literacy

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a divided panel opinion in Gary B. v. Whitmer, the Sixth Circuit held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment.

Recall that in July 2018, United States District Judge for the Eastern District of Michigan Stephen Murphy dismissed the complaint in Gary B. alleging constitutional violations in the public schools in Detroit. For Judge Murphy, the constitutional right alleges here of "access to literacy" was sufficient to seemingly distinguish it from San Antonio Independent School District v. Rodriguez (1973), in which the Court rejected "education" as a fundamental right, but not ultimately distinguishable. The district judge found any right to access literacy was not cognizable as a fundamental right under the "standard" articulated in Washington v. Glucksberg (1997) and the complaint was furthermore seeking recognition of a prohibited "positive right" given that the Constitution only recognizes "negative" rights.

On appeal, the Sixth Circuit reversed this conclusion. (The Sixth Circuit did affirm the district court's finding that the claims for equal protection merited dismissal).

The 60 page opinion by Judge Eric Clay, joined by Judge Jane Branstetter Stranch, is impressively well-written and well-structured. After an extensive discussion of the facts and procedural history, the court articulates the standard for its review of a motion to dismiss and disposes of the mootness and sovereign immunity arguments. The court also relatively quickly dispatches the equal protection claim based on the pleadings as well as the claim that the state's compulsory education mandate gives rise to a due process claim (seemingly a "negative right" backup to the argument that the complaint failed as only seeking "positive" rights).  The court reaches the central issue of the fundamental right to a basic minimum education, "meaning one that provides access to literacy" at about midway through the opinion.

The court first articulates the two-pronged Glucksberg test and then rehearses the United States Supreme Court's education cases, beginning with this overview:

Beyond the general framework for assessing whether an asserted right is fundamental, the Supreme Court has also, in a series of cases, addressed the extent of constitutional rights with respect to state-provided education. Its education jurisprudence teaches several lessons. First, the Court has found that there is no broad, general right to education. Rodriguez. Second, while no general right to education exists, the Supreme Court has specifically distinguished and left open “whether a minimally adequate education is a fundamental right.” Papasan v. Allain, 478 U.S. 265, 285 (1986); see also Rodriguez. Third, education is, at minimum, highly important to “maintaining our basic institutions,” and so the denial of public education to a discrete group of students “must be justified by a showing that it furthers some substantial state interest.” Plyler [v. Doe (1982)]. And fourth, the Court has addressed the critical link between education and race discrimination in America. We discuss the Court’s relevant education cases in turn, beginning chronologically.

[some citations and Sixth Circuit references omitted]. 

After its detailed discussion of Rodriguez and Plyler, incorporating the parties' arguments, the court discussed the lesser-known cases of Papasan v. Allain and Kadrmas v. Dickinson Public Schools (1988). The court notes that the plaintiffs in Papasan did argue that they were deprived an opportunity to acquire basic minimal skills under the state's funding scheme, but the Court did not reject their claim as a matter of substantive due process: "Instead, the Court found that, assuming such a right existed, the plaintiffs had failed to allege sufficient facts in support of their claim." This, the Sixth Circuit reasoned, was an "answer on pleadings, sure, but not on constitutional law." Similarly, the Sixth Circuit found that the "Court essentially repeated this non-answer in Kardmas." Kardmas involved a fee charged for the bus transportation to attend public schools, but given that the plaintiffs were attending school "despite the bus fee," their claim was interpreted not as a denial of education but for wealth-discrimination based the payment of the bus fee. The Sixth Circuit quotes Justice Marshall's dissent in Kardmas as stating that the Court had still not decided whether there was a fundamental right to a minimal education.

That is the question that the Sixth Circuit panel takes up, using the framework of the Glucksberg prongs, and finds that access to a minimal education is a fundamental right.

In its discussion of whether the right to a basic minimum education is "deeply rooted in our Nation's history and traditions," the Sixth Circuit finds that the historical prevalence of education makes it "deeply rooted in our history and tradition, even under an originalist view." The opinion then notes that 92% of the population lived under mandated state-policies of public education at the time of the Fourteenth Amendment, and further declares that "history should not be viewed only as a static point," discussing the expansion of education. Most interestingly, perhaps, Judge Clay's opinion for the Sixth Circuit majority then develops an argument that "Our nation's history of racial discrimination further reveals the historical and lasting importance of education and the significance of its modern ubiquity." At the conclusion of that discussion, including the criminalization of teaching enslaved persons to read, the court concludes:

There are two main takeaways from this history of racial discrimination in education, as well as from past interventions by the courts. First, access to literacy was viewed as a prerequisite to the exercise of political power, with a strong correlation between those who were viewed as equal citizens entitled to self-governance and those who were provided access to education by the state. Second, when faced with exclusion from public education, would-be students have repeatedly been forced to rely on the courts for relief. The denials of education seen in these cases and beyond are now universally accepted as serious injustices, ones that conflict with our core values as a nation. Furthermore, the substantial litigation devoted to addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed by our society as essential for students to obtain even a chance at political and economic opportunity.

As to the second Glucksberg prong, which looks for the right to be implicit in the concept of ordered liberty, the Sixth Circuit notes that the belief that education is a means of achieving equality is a belief that has persisted in the nation "since the days of Thomas Jefferson," and concludes that providing a basic minimal education is necessary to prevent arbitrary denials to children based on no fault of their own, which is "so essential to our concept of ordered liberty."

The Sixth Circuit opinion then takes up the counter-arguments, including those made by the dissenting judge, Eric Murphy (recently appointed to the Sixth Circuit and seemingly no relation to district judge Eric Murphy). The Sixth Circuit majority refutes the judicial restraint argument with an articulation, if unlabeled, of a representation-reinforcement argument, with a footnote discussing its applicability to due process as well as equal protection:

But it is unsurprising that our political process, one in which participation is effectively predicated on literacy, would fail to address a lack of access to education that is endemic to a discrete population. The affected group—students and families of students without access to literacy—is especially vulnerable and faces a built-in disadvantage at seeking political recourse. The lack of literacy of which they complain is exactly what prevents them from obtaining a basic minimal education through the normal political process. This double bind provides increased justification for heightened judicial scrutiny and the recognition of the right as fundamental.

The Sixth Circuit majority also takes up the positive/negative rights dichotomy, first arguing that the constitutional tort at issue in DeShaney v. Winnebago County of Department of Social Services (1989), has no applicability to public education, and that even if it did, it is the state that is "creating the danger" here (rather than a private actor), thus bringing the case within the state-created danger exception.

Finally, with due recognition that the case is before the Sixth Circuit on a motion to dismiss, the majority acknowledged that it would be difficult to "define the exact limits of what constitutes a basic minimum education" sufficient to provide access to literacy. However, the majority stated that it would seem to include at least three basic components: facilities, teaching, and educational materials (e.g., books).  The case is therefore remanded to the district court to proceed.

But how the case will proceed is uncertain. In a usual scenario, the State would seek review. The Michigan Attorney General, Dana Nessel, however has stated that she is "overjoyed" with the Sixth Circuit's decision. (It was originally defended under a previous Michigan administration).  There is also some lack of clarity regarding the proper defendant or appellant, given that the school district is now under more local control (an issue that the Sixth Circuit discussed in its mootness analysis). If a party does not seek review, there is the possibility that the en banc Sixth Circuit may decide to consider the case. Under Sixth Circuit rules and internal operating procedures, 6 I.O.P. 35(e), "any member of the en banc court may sua sponte request a poll for hearing or rehearing en banc before a party files an en banc petition" and the "clerk will immediately circulate voting forms to the en banc court."  The en banc judges are judges in "regular active service" (meaning not senior judges) and including the panel judges no matter their status. It's quite possible that the dissenting judge would request a poll.

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SCOTUS Rules Sixth Amendment Right To Unanimous Jury Verdict Applies to States

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court issued its opinion in Ramos v. Louisiana with a majority concluding that the Sixth Amendment confers a right to a unanimous jury verdict that is incorporated against the states through the Fourteenth Amendment.

Recall from the oral argument on the very first day of the 2019-2020 term that almost all rights have now been incorporated through selective incorporation, and that the unanimous jury requirement subject to an exception of the incorporation of the trial by jury clause. As Justice Alito phrased it in an opinion for the Court in  McDonald v. City of Chicago (2010) (in which a closely divided Court held that the Second Amendment is incorporated), the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).

The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument and is at the center of the Court's fragmented opinions in Ramos. The lone Justice in Apodaca is Justice Powell, who is specifically discussed throughout the opinions. Powell's adoption of what the Court calls the "dual-track" incorporation, and seemingly Justice Powell himself, does he does not fare very well in the Court's opinion, including quoting Powell that he was simply "unwilling to follow the Court's precedents" regarding incorporation.

Writing for the Court, Justice Gorsuch's opinion is joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh, but not in full. Indeed, the would-be majority loses Kavanaugh regarding some of its discussions of precedent and stare decisis, and loses both Kavanaugh and Sotomayor regarding a discussion of the specific stare decisis accorded to Apodaca. 

The Court clearly concludes, however, that there is a Sixth Amendment right to a unanimous jury verdict and that this right is incorporated as against the states.

Justice Thomas concurs, but renews his argument that the Privileges or Immunities Clause of the Fourteenth Amendment is the proper vehicle for incorporation. However, unlike in McDonald, Justice Thomas' vote is not necessary to constitute a majority.

Justice Alito dissented, joined by Chief Justice Roberts, as well as for most of his opinion, by Justice Kagan.

Certainly this case is important for both the constitutional doctrine of incorporation and for constitutional criminal procedure under the Sixth Amendment. But the Justices' various opinions discussing stare decisis might be read to portend larger developments.  Justice Kavanaugh's concurring opinion is most explicit in this regard: he outlines his views on stare decisis and supports his conclusion why Apocada should be overruled. Justice Alito's dissenting opinion argued for honoring stare decisis, but interestingly, Justice Kagan does not join that portion of the dissent arguing that the "reliance" in this case "far outstrips" other recently overruled cases.

Two other matters bear notice.
First, the racist roots of the non-unanimous jury verdict requirement is given attention by the Court, highlighted in Justice Sotomayor's concurring opinion, and minimized by the dissenting opinion (arguing that the opinion does not apply only to Louisiana and Oregon, but any future state that might adopt non-unanimous verdicts, even if all the lawmakers were "angels").
Second, there is the rhetoric and tone of some of the opinions. There is an evident conversation between the majority and dissent, with Gorsuch's opinion veering toward a condescending tone punctuated by rhetorical questions and Alito's opinion answering with accusatory and aggrieved notes.

But as a matter of incorporation doctrine, after last Term's Timbs v. Indiana regarding the Eighth Amendment's excessive fines provision, the Court's decision in Ramos now leaves only the Fifth Amendment grand jury requirement and the Seventh Amendment's right to a jury trial in a civil case as the federally applicable rights that are not incorporated as against the states. And then there is that Third Amendment.

SCOTUS Hears Oral Arguments in Unanimous Jury Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court heard oral arguments in Ramos v. Louisiana involving whether the Sixth Amendment confers a right to a unanimous jury verdict and whether that right is incorporated against the states through the Fourteenth Amendment. Justice Thomas was not on the bench for the argument.

Recall that the issue of which rights in the Bill of Rights are incorporated to the states has received recent attention: in McDonald v. City of Chicago (2010),  a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause).  And just last Term, in Timbs v. Indiana, the United States Supreme Court unanimously concluded that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment. 

But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address.  That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict.  Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).

The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument, although at times not as central as might be predicted.  The reliance of Louisiana on Apodaca in stare decisis considerations was certainly discussed at length,including the issue of how many inmates would be effected by the Court's ruling.  It was unclear how many persons were currently serving sentences under less than unanimous jury verdicts, although petitioner's counsel stated there were currently 36 cases on direct appeal.

However the Solicitor General of Louisiana largely advanced a different argument. She vigorously argued that the Sixth Amendment should not be read to require unanimous jury verdicts at all — whether or not in the context of incorporation. She stated that "nothing in the text, structure, or history of the Sixth Amendment requires unanimous jury verdicts." There seemed to be little support for this construction, although the Justices and opposing counsel did discuss the differences between unanimity and the "12" requirement which the Court has held is not constitutionally required.

There was little indication the Court was likely to revise its Sixth Amendment jurisprudence. And more indication that the Court would continue its trend of incorporating rights in the Bill of Rights as against the states, which would mean overruling Apodaca.

Federal District Judge Issues Preliminary Injunction to Restore Press Pass

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a well-considered opinion in Karem v. Trump, United States District Judge for the District of Columbia, Rudolph Contreras, issued a preliminary injunction requiring the defendants President Trump and White House Press Secretary Stephanie Grisham to restore the "hard pass" press credential to plaintiff Brian Karem.

As Judge Contreras explained, the "hard pass" is a long term press pass that the White House has made available for "decades and across many presidential administrations" to "any Washington-based journalist who regularly covers the President and can clear a Secret Service background check." In 1977, the DC Circuit Court of Appeals held that reporters have a First Amendment liberty interest in possessing a long-term so-called “hard pass”—an interest that, under the Fifth Amendment, may not be deprived without due process, Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).

The defendants admitted that the revocation of Karem's hard pass was punitive. The revocation of Karem's hard pass came three weeks after an incident in the Rose Garden which Judge Contreras describes in detail, noting that the incident was captured on video and shared widely on the internet.

 

Judge Contreras noted repeatedly that the court did not reach Karem's First Amendment challenge, but resolved the issue on Fifth Amendment Due Process Clause grounds. One aspect of the due process challenge was procedural due process, as in Sherrill v. Knight, which the court found applicable despite the defendants' argument that Sherrill should be limited to its precise facts, situations in which the Secret Service denied a hard pass application for security reasons. Another aspect of the due process challenge was vagueness, which surfaces in Sherrill but is more directly addressed by the United States Supreme Court's opinion in FCC v. Fox (2012), in which the Court found that the FCC fleeting expletives and nudity regulations were unconstitutional.

Here, Judge Contreras found that the White House guidelines were not constitutionally adequate, even when considering the so-called "Acosta Letter" issued by the White House to the press corps in November 2018, although Grisham did not reference or seemingly rely on that letter when issuing her revocation of Karem's hard pass. 

On the balance of equities and public interest regarding the preliminary injunction, Judge Contreras noted the three week lag from the event to the discipline and also stated:

The Court understands the White House’s desire to maintain a degree of control over access and decorum, and at first glance, some might think the temporary suspension of a single reporter’s press pass to be a relatively modest exercise of such control. But as Sherrill makes clear, the conferral of White House hard passes is no mere triviality. And the need for regulatory guidance is at its highest where constitutional rights are implicated.

The White House could react by appealing to the DC Circuit — or by attempting to issue regulatory guidance that might or might not apply to Karem's actions.

 

Court Strikes Law Criminalizing Possession of Firearm in Connection with "Crime of Violence"

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today that a federal criminal law that enhances criminal penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence or drug trafficking crime" was unconstitutionally vague. The ruling strikes the law.

The case, United States v. Davis, tested the federal law that enhances penalties (over and above a defendant's base conviction) for using, carrying, or possessing a firearm "in furtherance of" any federal "crime of violence or drug trafficking crime." The statute then defines "crime of violence" in two subparts, an "elements clause" and a "residual clause." Under the act, a crime of violence is "an offense that is a felony" and

(A) has as an element the use, the attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Court ruled the residual clause, (B), unconstitutionally vague.

Justice Gorsuch wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. He started by noting that the vagueness doctrine is designed to protect due process and the separation of powers:

In our constitutional order, a vague law is no law at all. Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature's responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of the courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Justice Gorsuch compared the residual clause to similar language that the Court ruled unconstitutionally vague in Johnson v. United States (defining "violent felony" as a "serious potential risk of physical injury to another") and Sessions v. Dimaya (defining "crimes of violence" for many federal statutes). He rejected the government's argument that the courts should interpret the residual clause on a case-by-case basis (to determine in any individual case whether the crime fit the definition), concluding that reading the act's text, context, and history, the act "simply cannot support the government's newly minted case-specific theory." He also rejected the government's constitutional avoidance argument, "doubt[ing] [that] the canon could play a proper role in this case even if the government's reading were 'possible.'" That's because "no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it."

Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justice Thomas and Alito. Justice Kavanaugh distinguished Johnson and Dimaya, arguing that "[t]hose cases involved statutes that imposed additional penalties based on prior convictions," while "[t]his case involves a statute that focuses on the defendant's current conduct during the charged crime." "The statute here operates entirely in the present[, and] [u]nder our precedents, this statute therefore is not unconstitutionally vague." He also pointed to the statute's impact on crime rates, and many years of application of it:

[One] cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violence crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of Section 924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem. The Court's decision today will make it harder to prosecute violent gun crimes in the future. The Court's decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting Section 924(c). The inmates who will be released early are not nonviolent offenders. They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crimes.

A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this Court. The Constitution's separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.

Chief Justice Roberts did not join the portion of Justice Kavanaugh's dissent that argues that the statute is saved under the unconstitutional avoidance canon.

SCOTUS Finds State Cannot Tax Trust Beneficiary's "Income" Consistent With Due Process

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust the United States Supreme Court unanimously held that a state's taxation of a trust based solely on the residence of a beneficiary — even where the beneficiary did not receive any income — violates due process.

Recall our discussion of the view from Professors Bridget Crawford and Michelle Simon that "Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process," and their discussion of the facts and merits of the case.  They urged the Supreme Court to affirm the conclusion of the North Carolina Supreme Court that the state lacked the power to tax consistent with due process and that's what the Court did.

Justice Sotomayor's succinct 16 page opinion is a model of clarity and analysis. The Court's conclusion clearly rests on the fact that there was no actual income or entitlement to distribution of any income from the trust managed by an out-of-state trustee:

We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of beneficiaries whose relationship to trust assets differs from that of the beneficiaries here.

The opinion sets out the doctrine:

The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Clause “centrally concerns the fundamental fairness of governmental activity.”

In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” The power to tax is, of course, “essential to the very existence of government,” but the legitimacy of that power requires drawing a line between taxation and mere unjustified “confiscation.” That boundary turns on the “[t]he simple but controlling question . . . whether the state has given anything for which it can ask return.”

The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Second, “the ‘income attributed to the State for tax purposes must be rationally related to “values connected with the taxing State.”’”

To determine whether a State has the requisite “minimum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington (1945). A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’” The “minimum contacts” inquiry is “flexible” and focuses on the reasonableness of the government’s action. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question.

[citations omitted]. 

Applying this doctrine to a trust involving an instate resident — whether beneficiary, settlor, or trustee—the Court stated that the

Due Process Clause demands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in- state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset.  Otherwise, the State’s relationship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires.

Here, where the only instate resident was a beneficiary who did not receive any income and did not have a right to demand any distribution, the "minimum connection" was not sufficient.

Justice Alito wrote a brief concurring opinion, joined by Chief Justice Roberts and Justice Gorsuch, to stress that "the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions" and the "Court's discussion of the peculiarities of this trust does not change the governing standard, nor does it alter the reasoning applied in our earlier cases."