Constitutional Law Prof Blog

Check it Out: Smith's Originalism, Common Good Constitutionalism, and Transparency

Michael L. Smith (Idaho), Originalism, Common Good Constitutionalism, and Transparency, Harvard J. L. and Public Policy (forthcoming):

A theory of interpretation that is more transparent tends to be preferable to less transparent alternatives. Increased transparency tends to promote the values of constraint, democratic legitimacy, and an understanding of what the law is. Under a transparency rubric, originalism, as a standard of interpretation, performs better than common good constitutionalism. Originalism provides a better defined (though still imperfect) basis for determining the correctness of claims about the Constitution means. Common good constitutionalism’s reliance on morally and politically loaded terminology makes it elusive as a standard of interpretation that tends to match the desires of the interpreter. At the implementation stage, however, those who implement common good constitutionalism do so in a transparent manner—reading the Constitution in line with their readily expressed moral and political inclinations. Originalism, on the other hand, is vulnerable to disingenuous interpreters who use originalism as a smokescreen to achieve political ends in the guise of neutrality. This casts doubts on originalist attempts to use common good constitutionalism as an opportunity to sell their theory to nonoriginalists.

SCOTUS Interprets Title VII to Include LGBTQ Identities

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

In its opinion in the consolidated cases of Bostock v. Clayton County, the United States Supreme Court interpreted the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq. to include sexual and transgender identities.  As we discussed in our preview, two of the consolidated cases involved sexual orientation discrimination -  Altitude Express v. Zarda and  Bostock v. Clayton County Board of Commissioners -  while the third - R.G. & G.R. Harris Funeral Homes v. EEOC - involved gender identity.

The Court's opinion, authored by Justice Gorsuch and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan, states:

At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.”

After considering and rejecting the employers' arguments, the opinion concludes:

Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.

But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.

 The Court's opinion is 33 pages or so and there are no concurring opinions.  Justice Alito's dissent, joined by Justice Thomas, weighs in at over 100 pages including its appendices. There is another dissenting opinion by Justice Kavanaugh, at a more modest 27 pages.

It is the dissenting opinions that provide the constitutional law perspective to the Court's statutory interpretation decision: both claim that the Court is violating separation of powers. Justice Alito begins his lengthy dissent by stating:

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

And the Court's most recently appointed Justice, Kavanaugh, begins in a similar vein:

Like many cases in this Court, this case boils down to one fundamental question: Who decides?

Kavanaugh concludes that it should not be the Court's decision, but does expound on why the Court's interpretation regarding "sex" is incorrect.

Congress could, of course, amend Title VII to exclude LGBTQ identities. But the momentum in Congress has tilted in the direction of inclusion, a step which would now be redundant.

As for the connections between Title VII and the Equal Protection Clause and the definitions of "sex" and protection for LGBTQ individuals, these arise in the dissenting opinions.  Alito's dissent worries that the Title VII interpretation will "exert a gravitational pull in constitutional cases," so that LGBTQ identities will be afforded the heightened scrutiny standard applicable to sex/gender.  For his part, Kavanaugh's dissent stresses that in the Court's discussions of sexual orientation in equal protection doctrine, the Court did not consider sexual orientation part of sex discrimination.

Additionally, all of the opinions raise the First Amendment free exercise of religion specter. The Court's majority states that "worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage," but that issue is for another day:

So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

For Alito dissenting, his views are similar to his views in the same-sex marriage cases. He states here that the " position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty."

Check it Out: Robson on Positive Rights in a Pandemic

Check out ConLawProf Blog's own Prof. Ruthann Robson's (CUNY) outstanding and timely piece, Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration, in the U. Akron ConLawNOW Symposium on Pandemics and the Constitution.

Robson argues for positive rights to health and life in the current crisis--"a Constitution that protects our survival"--and not just the negative rights under existing doctrine. (But she also notes that the Administration's mis-handling provides plenty of fodder even for negative rights claims.)

Read it!

Daily Read: Attorney General Barr's Reputation at Issue in Mueller Report FOIA Litigation

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

The issue of the Attorney General's candor is central to Freedom of Information Act (FOIA) litigation seeking the unredacted Mueller Report. In the consolidated cases of Electronic Freedom Foundation v. DOJ, and Jason Leopold & BuzzFeed News v. DOJ, the plaintiffs essentially challenge the basis of FOIA exemptions which DOJ has listed as justifying the numerous redactions.

In his Opinion today, United States District Judge for the District of Columbia, Reggie Walton, granted the plaintiffs' requests that the court conduct in camera review of the unredacted version of the Mueller Report. What makes the Opinion noteworthy is Judge Walton's explicit statements regarding the untrustworthiness of the Attorney General that justified the need for in camera review. After a detailed discussion of the circumstances, Judge Walton wrote:

Although Attorney General Barr can be commended for his effort to expeditiously release a summary of Special Counsel Mueller’s principal conclusions in the public interest, the Court is troubled by his hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public. The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report—a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that “all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]” is protected from disclosure by its claimed FOIA exemptions. In the Court’s view, Attorney General Barr’s representation that the Mueller Report would be “subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests” cannot be credited without the Court’s independent verification in light of Attorney General Barr’s conduct and misleading public statements about the findings in the Mueller Report, id., Ex. 7 (April 18, 2019 Letter) at 3, and it would be disingenuous for the Court to conclude that the redactions of the Mueller Report pursuant to the FOIA are not tainted by Attorney General Barr’s actions and representations.

[brackets in original; bolding added].

Later in the opinion, Judge Walton continued:

Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification. Adherence to the FOIA’s objective of keeping the American public informed of what its government is up to demands nothing less.

Judge Walton, who was appointed to the federal court in 2001 and who has interestingly served as Judge and Presiding Judge of the United States Foreign Intelligence Surveillance Court, ordered the DOJ to

submit the unredacted version of the Mueller Report to the Court for in camera review. If, after reviewing the unredacted version of the Mueller Report, the Court concludes that all of the information has been appropriately withheld under the claimed FOIA exemptions, it will issue a supplemental Memorandum Opinion and Order granting the Department’s motion for summary judgment on that ground and denying the plaintiffs’ cross- motions. On the other hand, if the Court concludes after its in camera review that any of the redacted information was inappropriately withheld, it will issue a supplemental Memorandum Opinion and Order that comports with that finding.

A federal judge's opinion that the Attorney General's "lack of candor" supports an independent judicial examination of redacted material implicates separation of powers issues, to be sure, but it is also yet another indication of the lack of confidence in the Attorney General.

SCOTUS Hears Oral Arguments in First Amendment Challenge to Crime of Encouraging or Inducing Immigration Violation

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

The Court heard oral argument in United States v. Sineneng-Smith involving the constitutionality of 8 U.S.C.§ 1324(a)(1)(A)(iv). The statute makes it a crime for any person who

encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.

The Ninth Circuit held that this subsection "criminalizes a substantial amount of protected expression in relation to the statute’s narrow legitimate sweep; thus, we hold that it is unconstitutionally overbroad in violation of the First Amendment."

The oral argument before the Supreme Court on certiorari was a criss-crossing of the lines between conduct and speech, between criminal law and the First Amendment, and between constitutional avoidance and judicial ability to redraft a statute.  The Deputy Solicitor General argued that the statutory provision was not aimed at speech and did not encompass "substantial amounts of it," and if it did, courts could remedy those situations with as-applied challenges rather than the "last resort remedy of overbreadth invalidation." Arguing for the Respondent, who had been convicted of two counts of the crime, Mark Fleming contended that the words of the statute — "encourages or induces" — are much broader than usual criminal words such as "solicitation" or "aiding and abetting." Fleming emphasized that the "even accurate advice" encouraging someone to stay in the United States is criminalized, including a teacher who says to an undocumented student that she should stay and pursue her education.

The argument returned several times to an amicus brief filed by Professor Eugene Volokh in support of neither party. Volokh contended that the Court should recognize that the line between protected abstract advocacy and unprotected solicitation must turn on specificity, and that

because the premise of the solicitation exception is that solicitation is conduct integral to the commission of a crime, only solicitation of criminal conduct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct cannot be made criminal, though it can be punished civilly.

(emphasis in original). It was this issue — that the undocumented person could be merely civilly liable while the person who "encourages or induces" the action of staying would be criminally prosecuted — that seemed to cause some consternation amongst the Justices. Justice Alito raised the encouraging suicide hypothetical:

There's a teenager who's -- who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I'm thinking of killing myself. And the person on the other end of the line says, you've said this before, I'm tired of hearing this from you, you never follow through, you're a coward, why don't you just do it, I encourage you to pull the trigger.

Alito asked:

Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.

Nevertheless, whether or not the statute would be used that way, or to prosecute people based only on their speech, Fleming pointed to United States v. Stevens, involving the "crush-porn" statute which the Court found unconstitutional, noting that the "first Amendment does not require us to rely on the grace of the executive branch." Interestingly, after Stevens, Congress did pass a more narrow statute which has been upheld.  That experience would surely be on some of the Justices' minds as they consider Chief Justice Roberts's comments about whether the extent to which the statute might be rewritten would need to be "passed by the Senate and House" and "signed by the President," garnering laughter in the courtroom.

Yet Fleming also noted that the government has recently made a "focus" of the enforcement of immigration laws and should the Court uphold the statute, more robust enforcement would likely follow. Given the current controversies around immigration, that would surely also be on the minds of the Justices.

Should any of the SCOTUS Justices Recuse?

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

The seemingly persistent question of the type of bias of SCOTUS Justices that should merit recusal has resurfaced again.

Recall that the Code of Conduct for United States Judges does not apply to the Justices of SCOTUS, a situation unchanged by the amended code effective March 2019. In his end-of-year Report in 2012, Chief Justice Roberts seemingly argued that there was no need to specifically include the Justices and addressed (albeit somewhat obliquely) some of the ethical concerns that had arisen. For example, Justice Alito had raised concerns when he appeared at an "event" for the The American Spectator, described as a "right wing magazine" that was behind the attempts to impeach Bill Clinton, that its publisher leads the “Conservative Action Project,” formed after President Obama’s election, to help lobby for conservative legislative priorities, elect Republicans and block President Obama’s judicial appointments.  The keynote speaker at the event was then-Rep. Michele Bachmann (R-MN).  Additionally, there were concerns regarding Justice Thomas's financial situation, including acceptances of financial gifts and nondisclosure of his wife's income.

Statements and relationships, especially pronounced in these contentious times, also give rise to concerns regarding bias and the recusal remedy.  Justice Ginsburg's comments about presidential candidate Donald Trump labeling him a "faker" caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview.  Later, a scholar argued that Justice Kavanaugh should recuse himself in a variety of cases based on Kavanaugh's statements during his confirmation hearing.

Lately, two situations have provoked controversy.  The first involves Justices Sotomayor and Ginsburg. It seemingly springs from Justice Sotomayor's dissent from the issuance of a stay in Wolf v. Cook County, on the public charge policy, which we discussed here. The President, in tweets and in a speech in India, criticized Sotomayor — and added Justice Ginsburg (who had not joined Sotomayor's dissent)  — calling on them to recuse themselves "on all Trump, or Trump-related matters!"  The tweet itself cites Laura Ingraham and FoxNews, and as journalist Matthew Gertz noted, the President's tweet replicates the words of the broadcast, which referenced Ginsburg's 2016 "faker" comment.

The second situation involves Justice Thomas's wife, Ginni Thomas, who reportedly was advising Trump on people in federal employment who should be "purged" as disloyal to the President and who should be hired to replace them.  As the New York Times subsequently reported:

Among Ms. Thomas’s top targets have been officials at the National Security Council, the former head of the White House personnel office, Sean Doocey, and other top White House aides. Another target was Jessie K. Liu, who recently left her job as the U.S. attorney for the District of Columbia for a job in the Treasury Department that was later withdrawn by the White House.

Ms. Thomas, a politically active conservative who for nearly seven years has led a group called Groundswell, also successfully lobbied for a role for Kenneth T. Cuccinelli II, the former attorney general of Virginia who is now the acting deputy secretary of homeland security.

This has led at least one organization, Take Back the Court, to write a letter requesting that Justice Thomas recuse himself from matters before the Court involving Trump.

The overall effect may be to (further) erode the legitimacy of the courts in general and SCOTUS in particular. 

Meanwhile, rereading Canons 4 and 5 of the Code of Conduct for United States Judges and the considerations relating to bias, the appearance of impartiality, and political participation might anchor the conversations about bias.

 

Daily Read: Crenshaw & MacKinnon Propose a New Equality Amendment

In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal

centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.

The article elaborates on the rationales for each section. The entire proposed amendment reads:

The Equality Amendment

Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and

Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and

Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;

Therefore be it enacted that—

Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.

Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.

Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.

Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.

This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.

 

pictured: Professors Crenshaw (left) & MacKinnon (right)

 

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.

Check it Out: Blackman and Tillman on Wall Funding, Emoluments, and Courts' Equitable Jurisdiction

Check out Josh Blackman and Seth Barrett Tillman's piece at The Volokh Conspiracy on why the federal courts lack equitable jurisdiction in the border wall funding case and the emoluments challenge. In short: The plaintiffs don't state a cause of action (that would have been available under the equitable jurisdiction of the High Court of Chancery in England in 1789).

Blackman and Tillman elaborate on the argument (and others) in this amicus brief, in the Fourth Circuit emoluments case.

Here's from Volokh:

In order to invoke a federal court's equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. "Equity" cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action.

***

A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction.

***

[Otherwise, plaintiffs' approach] would open the courthouse door to every plaintiff with Article III standing, who asserts that a federal official engaged in illegal conduct.

SCOTUS Remands Census Citizenship Case to Department of Commerce

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

In its highly anticipated opinion in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful, the Court held that given the "unusual circumstances" of the case, the matter should be remanded to the agency to provide a "reasoned explanation" for its decision pursuant to the Administrative Procedure Act (APA), thus affirming the district court on this point.

Chief Justice Roberts's opinion for the Court is relatively brief — 29 pages — but the brevity is undercut by the shifting alliances within the opinion's sections and the additional 58 pages of opinions concurring in part and dissenting in part. 

Recall the basic issue from oral argument: whether the challengers had standing, the actual enumeration requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, and the nonconstitutional issues centering on the Administrative Procedure Act. The equal protection argument receded into the background on appeal, but has re-emerged in other proceedings.

After explaining the facts and procedural history, including the rather unusual question of whether the Secretary of Commerce, Wilbur Ross, should be deposed, the Court unanimously held the challengers had standing, rejecting the government's contrary contention: "we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential."

A majority of the Court, Roberts joined by Thomas, Alito, Gorsuch, and Kavanaugh — held that the Enumeration Clause did not provide a basis to set aside the determination of Wilbur Ross. The majority held that the Constitution vests Congress with virtually unlimited discretion to conduct the census, and that Congress has delegated this broad authority to the Secretary of Commerce.  The majority stated that "history matters" so that "early understanding and long practice" of inquiring about citizenship on the census should control.

A notably different but numerically larger — 7 Justices — rejected the government's contention that the discretion given by Congress to the Secretary of Commerce is so broad as to be unreviewable. There is "law to apply" and the statute provides criteria for meaningful review.  Only Justices Alito and Gorsuch disagreed with this conclusion.

And yet another majority, the same majority as the holding for no claim under the Enumeration Clause — Roberts was joined by Thomas, Alito, Gorsuch, and Kavanaugh — rejected the claim "at the heart of this suit" that Secretary Ross "abused his discretion in deciding to reinstate the citizenship question." Essentially, this majority held that because the statute gives the Secretary to make policy choices and "the evidence before the Secretary hardly led ineluctably to just one reasonable course of action."

That same majority rejected the claim of violations of the APA by Secretary Ross in the collection of information and data, and even if he did so, it was harmless.

Finally, the Chief Justice's opinion for the Court — this time with a majority of Justices Ginsburg, Breyer, Sotomayor, and Kagan, considered the district judge's conclusion that the decision of the Secretary of Commerce, Wilbur Ross, rested on a pretextual basis. The Court's opinion reviewed the evidence presented to the district court:

That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.

After considering other evidence, the Court concluded:

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

In these unusual circumstances, the District Court was warranted in remanding to the agency . . . .

Thus the Court remanded the decision to the agency for further explanation.  To be sure, this conclusion and section seems inconsistent with the "abuse of discretion" section finding no "abuse of discretion."  And notably, Chief Justice Roberts is the only Justice supporting both of those conclusions.

Also notably, the Court's opinion does not comment on any of the recently revealed evidence or new proceedings - updates shortly.

 

SCOTUS Expands Takings Clause Challenges in Closely Divided Opinion

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

In its opinion in Knick v. Township of Scott, Pennsylvania, a closely divided United States Supreme Court held that a person alleging that their property has been taken by state or local governments may sue in federal court without seeking compensation from state courts, overruling Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City (1985).

The case was reargued in February 2019 after Justice Kavanaugh joined the Court and his vote made a difference: the majority opinion by Chief Justice Roberts is joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.  Justice Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.

The facts involve a regulatory taking challenge by the owner of land in rural Pennsylvania which includes a "family cemetery" in the Township of Scott, which had passed an ordinance requiring cemeteries be kept open to the public in daylight hours.  The land owner Rose Mary Knick challenged the ordinance as a taking in state court seeking only declarative and injunctive relief, but not "just compensation."  She thereafter went to federal court, which dismissed her action under the doctrine of Williamson County, which required seeking "inverse condemnation" (and thus "just compensation") in state court, and the Third Circuit affirmed.

Writing for the five Justice majority, Chief Justice Roberts holds that the Fifth Amendment's Taking Clause is violated when the taking occurs and the property owner must be able to bring an action in federal court at that time. The effective establishment of an "exhaustion requirement" in Williamson County  relegates the Takings Clause to a "poor relation" among the Bill of Rights protections, which the majority finds must be remedied by eliminating the requirement to go to state court and therefore "restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among other protections in the Bill of Rights."  Chief Justice Roberts's majority opinion explains the bad precedent of Williamson County as resulting from the particular procedural facts under which the "Court may not have adequately tested the logic" of the state-litigation requirement and did not anticipate the "preclusion trap" which later resulted (in which the state court findings would be given preclusive effect by the federal court).  The Court's opinion concludes that Williamson County should be overruled despite stare decisis given these "shaky foundations," adding that the state-litigation requirement has been subject to criticism and has "proved to be unworkable in practice."

Writing the dissenting opinion for four Justices, Justice Kagan argues that it is not simply Williamson County that is being overruled, but rejects longstanding understandings of the Takings Clause. For the dissenters, the text of the Takings Clause is vital: the Clause states that private property shall not be taken for public use without just compensation. Thus, unlike other constitutional rights which the majority also discusses, Kagan argues that a Takings Clause violation has two necessary elements: "First, the government must take the property. Second, it must deny the property owner just compensation." The failure of the majority to recognize the distinctive aspects of the Takings Clause is is the basis of two of Kagan's four critiques of the Court's opinion. The third critique is based on the Court's reinterpretation of precedent, including under the Williamson County rule, which Justice Kagan states is "with a theory so, well, inventive that it appears in neither the petitioner’s nor her 15-plus amici’s briefs." This is an interesting nod to the amicus briefs filed on behalf of Knick which include briefs from Washington Legal Foundation and Congressman Steve King. Lastly, under the federal Tucker Act, involving claims against the federal government seeking just compensation for a taking. 

Perhaps most importantly, Justice Kagan's dissent argues that the consequence of the majority's decision will be to "channel a mass of quintessentially local cases involving complex state-law issues into federal courts." Kagan's opinion highlights the regulatory takings problems (as opposed to the less complex actual taking of property):

This case highlights the difficulty. The ultimate constitutional question here is: Did Scott Township’s cemetery ordinance “go[ ] too far” (in Justice Holmes’s phrase), so as to effect a taking of Rose Mary Knick’s property? Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). But to answer that question, it is first necessary to address an issue about background state law. In the Township’s view, the ordinance did little more than codify Pennsylvania common law, which (the Township says) has long required property owners to make land containing human remains open to the public. See Brief for Respondents 48; Brief for Cemetery Law Scholars as Amici Curiae 6–26. If the Township is right on that state-law question, Knick’s constitutional claim will fail: The ordinance, on that ac- count, didn’t go far at all. But Knick contends that no common law rule of that kind exists in Pennsylvania. See Reply Brief 22. And if she is right, her takings claim may yet have legs. But is she? Or is the Township? I confess: I don’t know. Nor, I would venture, do my colleagues on the federal bench. But under today’s decision, it will be the Federal District Court for the Middle District of Pennsylvania that will have to resolve this question of local cemetery law.

Justice Kagan also points out that this is the second time in a month that a five member majority [and indeed, the same five member majority] of the Court has overruled "longstanding precedent," quoting from Justice Breyer's dissent in Franchise Tax Bd. of California v. Hyatt.  She writes that "the entire idea of stare decisis is that judges do not get to reverse a decision simply because they never liked it in the first place."

[image via]

 

 

Year-End Report by Chief Justice Roberts, 2018

For his 2018 Year-End Report on the Federal Judiciary, the sexual harassment concerns which surfaced at the end of Chief Justice Roberts 2017 report (which we discussed here) occupied center stage. Opening with an anecdote about the importance of law clerks, the Chief Justice discussed the contribution that the Federal Judiciary Workplace Conduct Working Group has made, linking to its more than 140 page report issued in June. The Chief Justice noted that the report determined that "inappropriate workplace conduct is not pervasive within the Judiciary, but it also is not limited to a few isolated instances involving law clerks" and that "misconduct, when it does occur, is more likely to take the form of incivility or disrespect than overt sexual harassment" and frequently goes unreported.  The Chief Justice noted that committees have proposed changes to various codes of conduct and the employment dispute resolution plan.

Interestingly, the Chief Justice does not note that these codes exclude the United States Supreme Court itself, which is of continuing interest, and which the Chief Justice has alluded to in the past, as we last discussed here. Although he writes that "The Supreme Court will supplement its existing internal initiatives and experience of the other federal courts."

The Chief Justice again thanked judicial staff for working through numerous natural disasters, but again did not address the declining diversity of the federal bench, a lack we mentioned last year and which has seemingly only increased.

image: John Roberts being sworn-in as the 17th Chief Justice of the United States by Supreme Court Associate Justice John Paul Stevens, 2005, via.

 

CFP: Kavanaugh Nomination

CFP from Journal of Civil Rights and Economic Development at St. John's University School of Law.

An America Divided: The Kavanaugh Nomination

The nomination and subsequent appointment of Brett Kavanaugh to the Supreme Court of the United States have sparked turmoil, outrage, and even more conflict to an already extremely divided America. Many agree, on the right and left, that the Senate hearings featuring Dr. Blasey Ford and Judge Brett Kavanaugh were historic, shocking and yet also affirming of deep-seated beliefs and fears. The hearings and subsequent events have revealed fundamental disagreement about fair and effective treatment of sexual violence survivors, about due process for those accused of sexual violence and about our collective expectations of the role, the demeanor, temperament and moral conduct of judges. . . .

We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays or commentaries. We aim to ensure an array of perspectives, methodologies and expertise.

SUBMISSION DEADLINES:
Abstract Deadline: November 12, 2018
Selected Authors Notification Date: November 30, 2018
Final Manuscript Submission Deadline: January 15, 2019

full call and submission details here

 

 

Check it Out: Huq on Kavanaugh and Originalism

Check out Aziz Huq's (U. Chicago) piece in PoliticoMagazine, Why You Shouldn't Care Whether Kavanaugh Is an "Originalist." Answer: The label has lost all but lost its meaning in public (non-scholarly) debates, and it just can't help us understand Judge Kavanaugh's approach.

Liberals and conservatives alike can do better [than focusing only on whether Judge Kavanaugh is an "originalist"]. The test of a judge's mettle is not whether they are an "originalist." That term just isn't as illuminating as many think. All judges, whether liberal or conservative, account for the Constitution's original understanding at times. All also rely on other sources of law. Even as legal scholars have refined precise definitions of originalism, the heat of partisan debate has reduced the term in public life into little more than code for substantive positions on abortion, gun control and the like.

Check it Out: Baude on Madison's Constitutional Liquidation

Check out William Baude's (U. Chicago) piece Constitutional Liquidation, forthcoming in the Stanford Law Review. Baude explores James Madison's idea that the Constitution's meaning could be "liquidated" and settled by practice. From the abstract:

Constitutional liquidation has three key elements. First, there had to be a textual indeterminacy. . . . Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and "the public sanction"--a real or imputed popular ratification.

Baude says that liquidation "provides a structured way for understanding . . . departmentalism," "could provide a salutary improvement over the modern doctrine of stare decisis," "is consistent with the core arguments for adhering to tradition," and "is less susceptible to some of the key criticisms against the more capacious use of historical practice."

Court Says Maryland, D.C. Plausibly Alleged Emoluments Claims Against President, Case Can Go Forward

Steven D. Schwinn, John Marshall Law School

Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. sufficiently alleged emoluments claims against President Trump. The court denied the President's motion to dismiss the case, and will allow the case to move forward.

We last posted on the case here, when Judge Messitte ruled that the plaintiffs have standing.

Recall that Maryland and D.C. sued President Trump for violations of the Foreign and Domestic Emoluments Clauses for payments by foreign and federal and state governments in connection with the President and the Trump Organization's ownership of the Trump International Hotel on Pennsylvania Avenue. The President moved to dismiss for failure to state a claim, arguing that indirect and direct payments to him aren't "emoluments." The court disagreed.

President Trump's motion required the court to define "emolument": Is it a broad term that could encompass the direct and indirect benefits that President Trump receives from his hotel (as the plaintiffs would have it), or is it much narrower, only prohibiting particular kinds of additional, outside compensation for the President? But before the court came to that question, it took a beat to broadly explain its options for constitutional interpretation. The court concluded that it should use text, original public meaning and executive branch practice as precedent to sort it out.

The court said that the text favored the broad interpretation of the term offered by the plaintiffs (and not the much narrower definition offered by the President):

As Plaintiffs point out, the Foreign Clause bans, without Congressional approval, "any present, Emolument, Office, or Title, of any kind whatever . . . . Use of such expansive modifiers significantly undermines the President's argument that this Clause was meant to prohibit only payment for official services rendered in an employment-type relationship. . . .

The phrase "any other Emolument" in the Domestic Emoluments Clause suggests the same broad interpretation of the term.

As to original public meaning, the court said that "[t]he clear weight of the evidence shows that an 'emolument' was commonly understood by the founding generation to encompass any 'profit,' 'gain,' or 'advantage,'" not limited to particular kinds of salary supplements. "Though the Court agreed that mere counting of dictionaries may not be dispositive, is nonetheless remains highly remarkable that "every English dictionary definition of 'emolument' from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief."

As to purpose, the court said that it "does not see how the historical record reflects anything other than an intention that the Emoluments Clauses function as broad anti-corruption provisions," and not a more limited purpose that would simply prohibit the President from receiving only "specifically identified categories of compensation."

Finally, the court said that executive branch precedent and practice also--and "overwhelmingly"--pointed toward a broad definition of "emoluments."

In conclusion,

With respect to the Foreign Emoluments Clause, Plaintiffs have alleged that foreign governments or their instrumentalities have patronized the Trump International Hotel, spending government funds to stay at the Hotel, eat at its restaurant, and sponsor events in the Hotel's event spaces. They have done so in some cases with the express intention to cater to the good graces of the President. . . .

[Plaintiffs plausibly plead] that the GSA's abrupt about-face position [first concluding that the President was, and later that the President was not, in violation of his GSA lease for failing to divest] was and is in direct contradiction of the plain terms of the Lease and that, by determining that the Hotel was and is in compliance with the Lease, the Federal Government bestowed upon the President an emolument in violation of the Domestic Emoluments Clause.

In addition to foreign governments patronizing the Hotel, Plaintiffs claim that at least one State--Maine--has patronized the Hotel, spending state funds for its Governor and his entourage to stay at the Hotel and to frequent its facilities during an official visit of those officials to Washington, including an encounter with the President where Presidential action of interest to the Governor good place.

[Plaintiffs plausibly plead] that, in connection with the Hotel, the President has received substantial tax concessions from the District of Columbia.

The court's ruling went to the President acting in his official capacity, not individual capacity. "The Court will address the President's Motion to Dismiss the individual capacity claims against him in a subsequent Opinion."

Before the court ruled on President Trump's motion, it took on Prof. Seth Barrett Tillman's argument that the Foreign Emoluments Clause doesn't extend to the President. The court said that the text, the original public meaning and purpose, and executive branch precedent and practice all point to the conclusion that the Clause does apply to the President.

The Declaration and the Constitution

We've posted several times over the years on the Declaration and its influence on constitutional interpretation; here are a few:

-Danielle Allen's Our Declaration

-Alexander Tsesis's For Liberty and Equality

-The Declaration in the OT 2010 Term

-The Declaration in Justice Kagan's nomination hearings

Happy 4th!

Check it Out: Rosenthal Measures How Originalist are Originalists

Check out Prof. Lawrence Rosenthal's (Chapman) piece, An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia. Rosenthal finds

that originalism played a small role in Fourth Amendment jurisprudence during the study period . . . . Despite Justice Scalia's professed commitment to originalism, he voted on originalist grounds in only 18.63% of cases. The Court's other professed originalist, Justice Clarence Thomas, voted on originalist grounds in only 15.71% of cases. . . . Voting patterns were not markedly different for justices who do not profess fealty to originalism.

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

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

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and 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" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

Given Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

District Court Upholds Massachusetts's Assault Weapons Ban

Steven D. Schwinn, John Marshall Law School

Judge William G. Young (D. Mass.) last week rejected a Second Amendment challenge to Massachusetts's assault weapon ban. Judge Young held that covered rifles fell outside the Second Amendment and thus enjoyed no constitutional protection.

The case, Workman v. Healey, tested the state's ban on assault weapons and large-capacity magazines. The state ban was styled on the federal assault weapons ban, but, unlike Congress, the Massachusetts Legislature made the ban permanent. Plaintiffs sued in early 2017, arguing that the ban violated the Second Amendment.

The court disagreed. Judge Young wrote that the banned weapons fell outside the core of the Second Amendment and enjoyed no constitutional protection. He declined to apply any level of scrutiny and simply upheld the ban. The court explained:

Consequently, "Heller . . . presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines 'like' 'M-16 rifles,' i.e., 'weapons that are most useful in military service,' and thus outside the ambit of the Second Amendment?" The undisputed facts in this record convincingly demonstrate that the AR-15 and [large-capacity magazines] banned by the Act are "weapons that are most useful in military service." As a matter of law, these weapons and [large-capacity magazines] thus fall outside the scope of the Second Amendment and may be banned.

The court rejected the plaintiffs' argument that the AR-15 is a popular firearm, and therefore enjoys Second Amendment protection:

Yet the AR-15's present day popularity is not constitutionally material. This is because the words of our Constitution are not mutable. They mean the same today as they did 227 years ago when the Second Amendment was adopted. The test is not the AR-15's present day popularity but whether it is a weapon "most useful in military service."

Judge Young went on to quote Justice Scalia from Scalia Speaks.

The court also rejected the plaintiffs' claims that the ban is vague (because it doesn't define what "copies or duplicates" of assault weapons means) and that enforcement violated the Ex Post Facto Clause (because the state attorney general issued a notice that could punish existing ownership of banned weapons).