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Supreme Court

All articles with the "Supreme Court" tag.

Published: Sat, 24 Mar 2018 00:00:00 -0400

Last Build Date: Sat, 24 Mar 2018 02:26:38 -0400


Trump Wants a 'Line-Item Veto' on Budget Bills. That Was Ruled Unconstitutional 20 Years Ago.

Fri, 23 Mar 2018 15:40:00 -0400

(image) Well, it's done. After his will-I-or-won't-I-sign-this antics this morning, President Donald Trump has signed the $1.3 trillion spending bill that passed the House of Representatives last night.

But Trump being Trump, he wasn't going to pass up an opportunity to air his many grievances with Congress, Frank Costanza–style. And he's got a lot of problems with you people.

Among the president's laundry list of complaints was that the bill contains too many random and unnecessary expenses. He's absolutely right, though the gripe rings awfully hollow coming from the one man on earth who was actually in a position to stop the budget from becoming law.

Trump's solution, unsurprisingly, was to give more power to Trump. Congress, he said, should pass a law granting the president a "line-item veto" over budget bills—that is, the power to strike out individual appropriations rather than having to choose between accepting or rejecting the bill wholesale.

A bold, innovative idea for streamlining American governance? Not exactly.

Way back in 1996, a Republican* Congress tried to do just that, passing the Line Item Veto Act in the hopes of giving then-President Bill Clinton the power to excise specific appropriations from the federal budget.

The act passed, but it didn't last long. In 1997, the City of New York and a number of health care companies who had lost funding to one of Clinton's line-item vetoes sued, arguing that the law impermissibly blurred the Constitution's separation of the legislative and executive functions of government. The Supreme Court agreed, holding in 1998's Clinton v. City of New York that the line-item veto violated the Presentment Clause, which is the portion of the Constitution which lays out the veto process. In essence, the Court said, Congress cannot delegate its constitutional power to craft and modify legislation to the executive.

Clinton v. New York isn't as universally known as Roe v. Wade or Brown v. Board of Education, but it isn't exactly obscure. It's a landmark case in U.S. constitutional law, a cornerstone of the "nondelegation doctrine" that underpins many past and ongoing debates about the structure of American government. If you went to high school after 1998, you've probably at least heard of it once.

If so, congratulations. You're apparently better informed on the structure of the U.S. government than the president.

*Correction: An earlier version of this post incorrectly stated that the 1996 Congress was majority Democrat.

Why the Summer Zervos Lawsuit Is Bad News for Donald Trump

Fri, 23 Mar 2018 10:05:00 -0400

Can the president of the United States be sued for damages in a civil proceeding? The answer depends on the nature of the president's alleged misconduct. In Nixon v. Fitzgerald (1982), the U.S. Supreme Court ruled that the president has immunity from civil suits that arise from the performance of the president's official duties. "In exercising the functions of his office," the Court said, "the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages." According to the Court, "it would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint." The president's unofficial conduct, however, is a different matter. In Clinton v. Jones (1997), the Supreme Court allowed Paula Jones' sexual harassment and defamation suit against President Bill Clinton to proceed in federal court because Clinton's alleged misconduct "was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office." In the Court's view, the "rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct." Which brings us to President Donald Trump. Earlier this week, the president suffered a significant legal defeat when a judge in New York allowed a defamation suit filed by former Apprentice contestant Summer Zervos to proceed against him in state court. "No one is above the law," wrote New York Supreme Court Justice Jennifer Schecter, citing Clinton v. Jones. "It is settled that the President of the United States has no immunity and is 'subject to the laws' for purely private acts." (Note: the New York Supreme Court is not the state's highest court. That would be the New York Court of Appeals.) To be sure, there is a difference between the present case and that 1997 SCOTUS decision. Zervos v. Trump deals with a defamation suit filed in state court, while Clinton v. Jones dealt with a suit filed in federal court. Does that difference matter? Not according to Justice Schecter. "The rule is no different for suits commenced in state court related to the President's unofficial conduct," she held. That judgment will likely be tested on appeal. The matter of Zervos v. Trump originated in 2016 when Summer Zervos publicly alleged that in 2007 Donald Trump kissed and groped her without her consent. Then-candidate Trump denied those allegations, repeatedly describing Zervos as a liar and a fabricator. Zervos filed suit in response in January 2017, claiming that Trump made those statements about her "knowing they were false and/or with reckless disregard for their truth or falsity." She seeks $2,914 in damages, which is the amount of money that she says her restaurant business lost as a result of Trump's alleged defamations. Tuesday's ruling by Justice Schecter did not address the merits of Zervos's complaint; it merely allowed the suit to move forward. But that is still a critical loss for Trump, who faces the possibility of real trouble as this litigation unfolds. Remember that the effort to impeach President Bill Clinton did not truly begin to build steam until after Clinton lied under oath about his relationship with Monica Lewinsky. That act of perjury occurred during Clinton's deposition in the Paula Jones lawsuit. Trump's opponents, needless to say, are hoping that he will make a comparable misstep in this case.[...]

No Fourth Amendment Protections Against Warrantless Cell Phone Searches at U.S. Border, Says Federal Court

Fri, 16 Mar 2018 15:50:00 -0400

In its 2014 decision in Riley v. California, the U.S. Supreme Court held that law enforcement officials violated the Fourth Amendment when they searched an arrestee's cell phone without a warrant. "Modern cell phones are not just another technological convenience," Chief Justice John Roberts wrote for the majority. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

But what about when an American citizen is returning home from abroad and U.S. border officials want to thoroughly search the contents of that person's cell phone? Does the Fourth Amendment require the government to get a warrant before searching cell phones at the border? According to a decision issued this week by the U.S. Court of Appeals for the 11th Circuit, the answer to that question is no.

The 11th Circuit's ruling came in the matter of United States v. Vergara. Hernando Vergara is a U.S. citizen who was returning home from a cruise to Mexico. Because of a prior conviction for possessing child pornography, a Customs and Border Protection officer searched his luggage, including the three cell phones that Vergara was carrying. One of those phones contained "a video of two topless female minors." The Department of Homeland Security entered the picture at that point. Vergara's cell phones were taken away to a DHS facility where they were subjected to a warrantless forensic search, which typically involves retrieving deleted files and other significant inspections of the phone's digital records. DHS discovered child pornography on Vergara's phones.

Vergara and his lawyers argue that this evidence should be deemed inadmissible because the government never obtained a search warrant. His position is based in significant part on the increased privacy protections for cell phone users that the Supreme Court recognized in Riley v. California.

But a divided panel of the 11th Circuit took a different view. "The forensic searches of Vergara's cell phones occurred at the border, not as searches incident to arrest," declared the majority opinion of Judge William H. Pryor. "And border searches never require a warrant or probable cause."

Writing in dissent, Judge Jill Pryor wrote that while she agrees "with the majority that the government's interest in protecting the nation is at its peak at the border," she disagrees "with the majority's dismissal of the significant privacy interests implicated in cell phone searches." In Riley, she noted, the Supreme Court recognized "the significant privacy interests that individuals hold in the contents of their cell phones." And in her view, "the privacy interests implicated in forensic searches are even greater than those involved in the manual searches at issue in Riley." If it were up to her, "a forensic search of a cell phone at the border [should require] a warrant supported by probable cause."

One thing is clear: We have not heard the last of this debate. Either this case, or one very much like it, is almost certainly headed for the Supreme Court.

If SCOTUS Lets States Legalize Sports Betting, Will They Be Ready?

Fri, 16 Mar 2018 08:00:00 -0400

Last December, when the Supreme Court heard oral arguments in Christie v. NCAA, most of the justices seemed inclined to agree that a 1992 law barring states from legalizing sports betting unconstitutionally "commandeers" state officials in service of a federal goal. With the Court expected to issue its decision this spring, Michelle Minton notes in a new report from the Competitive Enterprise Institute, at least 15 states "have enacted regulations for sports gambling within their borders in anticipation of when the federal government steps out of the way." Minton has some tips for those states and any others that hope to replace the black market in sports wagers with a legally regulated industry, a move that promises to protect consumers, control corruption, and raise revenue for the government. Well, two out of three ain't bad. The Professional and Amateur Sports Protection Act of 1992 (PASPA) effectively gave Nevada a legal monopoly on single-event sports betting. But that does not mean Nevada dominates the market. The $4.9 billion in wagers that legal Nevada bookies accepted last year represented something like 4 percent of all sports betting in the United States, Minton says, meaning the share for illegal bookies was more than 20 times as big. This situation makes game fixing easier to hide, undermining the main goal of PASPA, which the big leagues demanded to protect the integrity of sports. As Minton points out, legalization promotes transparency and data sharing, which make cheating easier to detect. The sports leagues continue to defend PASPA, which they are asking the Supreme Court to uphold in Christie. But their leaders' perspective on legal sports betting seems to be shifting along with public opinion, which since the 1970s has swung from majority opposition to majority support. "The commissioners of Major League Baseball (MLB) and Major League Soccer have called for examinations into what a regulated sports betting market would look like," Minton notes. "NBA Commissioner Adam Silver has advocated for full legalization, arguing that 'sports betting should be brought out of the underground and into the sunlight where it can be appropriately monitored and regulated.'" Minton's idea of appropriate regulation includes five major features: "adequate license availability" to ensure there are enough legal businesses to serve the market; "reasonable tax rates," somewhere between 10 and 15 percent of gross gaming revenue, to keep legal operations competitive (and, not incidentally, maximize the government's take); "diverse product offerings," including online options, to attract and keep bettors who would otherwise bring their wagers to illegal bookies; "robust consumer protections," including age, identity, and location identification and self-exclusion lists for problem gamblers; and "regulatory cooperation" among gambling businesses, between gambling businesses and sports leagues, and between states. Some state plans already run afoul of these guidelines. In Pennsylvania, Minton notes, the legislature "set the tax rate at 34 percent of gross gaming revenues, on top of the $10 million one-time licensing fee. These costs represent an enormous barrier to entry that significantly increases licensed bookies' operating costs. As a result, few operators will be able to enter Pennsylvania's legal market and those that do will not be able to offer rates as competitive as those of their illegal counterparts. This makes it likely that the legal sports betting market in Pennsylvania will fail to thrive, causing consumers to either cross the state line seeking friendlier regulatory environments or continue patronizing illegal operators." Like the states that have legalized marijuana, states that legalize sports betting have to take into account a black market that will continue to thrive if taxes and regulations in the legal market are too burdensome. "For the last 25 years, the states have lost out on millions in tax revenue they could have colle[...]

Awaiting Court Ruling, California Unions Appear Surprisingly Impotent

Fri, 16 Mar 2018 00:15:00 -0400

California's public-sector unions are so accustomed to getting their way in the state Capitol that it's almost entertaining watching them respond to a coming U.S. Supreme Court decision that is likely to slash their political and economic power. They are sponsoring a variety of bills designed to mute that decision, but there's surprisingly little they can actually accomplish. In the Janus v. American Federation of State, County and Municipal Employees case, the court is deciding whether public employees in non-right-to-work states such as California may opt out of paying dues even for collective-bargaining purposes. Since 1977, workers have been allowed to withhold dues for a union's direct political activities, but not for anything related to negotiating their contracts. The case could spell the end to mandatory unionization in the public sector. Last year, the state passed a new law granting unions the right to provide orientation seminars at the workplace, where they can convince—some say pressure—employees to join the union. That was designed to minimize the impact of Janus. Unions have also been sending out membership applications with so-called "trap language," which traps workers into paying union dues even if the Supreme Court ultimately decides that they are not required to do so. This year, the legislature is at it again. Assembly Concurrent Resolution 185, authored by Assemblyman Mike Gipson (D-Los Angeles), mentions the Janus case and "recognizes unions and their tireless efforts to represent workers across all industries, to educate membership and encourage their full participation in society, and to strengthen the labor movement as a fundamental element of a healthy democracy." Note that the measure is a resolution—one of those symbolic gestures that allow lawmakers to make a point, but has no binding effect. It's the latest show of impotence by usually muscular public-sector unions. In reality, the legislature can do little more than posture in the face of a potential Supreme Court ruling that has far more weight than anything that comes out of Sacramento. Lawmakers are indeed proposing some measures that are more substantive than ACR 185, but even those are limited in scope. For instance, Assembly Bill 2154 by Assemblyman Rob Bonta (D-Oakland) would expand union members' "release time" to allow for recruitment efforts—all on the taxpayers' dime. If passed, the bill represents an infuriating misuse of taxpayer money. Why should any state employee have paid time off to engage in activities that benefit any type of private organization, let alone those that lobby the legislature? Nevertheless, its scope is limited. If the Supreme Court tosses out mandatory union payments, these union organizers would still have to gain the consent of the employees before diverting funds from their paychecks. Unions also are crafting bills that would shield "union members' contact information from the public to make it harder for anti-union groups to reach them." That's ironic given that the unions this year are backing a bill that would require the state to hand over the private information of non-union workers in the private home-care industry to unions as a means to help unions organize those workers. Another likely bill would allow "unions to charge non-members who use services such as arbitration or a labor representative to help them through a disciplinary process," according to the publication. That's a direct response to the Janus case. Furthermore, California Attorney General Xavier Becerra provided a friend-of-the-court brief in the Janus case arguing against any change in the current system, which was established by that 1977 ruling in Abood v. Detroit Board of Education. Becerra explained his position in a recent San Diego Union-Tribune column. "My fellow state leaders and I know that having strong and effective unions on the other side of the bargaining table can help reduce costly strikes and kee[...]

Jeff Sessions' Case Against California's Sanctuary Cities Is a Constitutional Loser

Wed, 14 Mar 2018 12:30:00 -0400

(image) "Lawless open borders radicals" in California, Attorney General Jeff Sessions complained last week, have "enacted a number of laws designed to intentionally obstruct the work of our sworn immigration enforcement officers." To counteract this alleged lawlessness, Sessions announced that the Justice Department was filing suit in federal court against California, seeking the judicial invalidation of three state laws that support so-called sanctuary city policies.

The most significant of those three laws is a statute known as the California Values Act of 2017. It prohibits state and local police from providing various assistance to federal immigration officials, such as "providing information regarding a [detained] person's release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a notification request from immigration authorities in accordance with" California law. According to Attorney General Sessions, the California Values Act should be struck down because it obstructs the work of federal agents and violates the supremacy of federal law.

But there's a big problem with Sessions' argument. As South Texas College of Law Houston professor Josh Blackman and Cato Institute Senior Fellow Ilya Shapiro point out in today's Wall Street Journal, Sessions' case against the California Values Act fails to pass constitutional muster:

The California Values Act…doesn't interfere with federal law, because, as the Court recognized in Printz v. U.S. (1997), Congress can't "commandeer" state officials. It is not a proper exercise of federal power to dictate how state law-enforcement agencies manage their resources and prioritize their missions. California's policy of noncooperation no doubt makes enforcement more difficult, but it doesn't constitute obstruction or interference.

That's exactly right. As I explained in a column last week, Sessions is effectively trying to force local police into administering federal law, which is precisely what Justice Antonin Scalia described as an unconstitutional "federal commandeering of state governments" in his majority opinion in Printz. That ruling overturned certain provisions of the 1993 Brady Handgun Violence Prevention Act. As I concluded, "just as the feds may not dragoon local police into administering federal gun control laws, the feds may not dragoon local police into administering federal immigration laws."

Jeff Sessions' case against the California Values Act is a constitutional loser.

Drunk History: When the Government Banned Female Bartenders

Tue, 13 Mar 2018 11:45:00 -0400

(image) "Why did it take America so long to have female bartenders?" So asks David Wondrich, author of the superb cocktail history, Imbibe!, in his latest column at The Daily Beast.

As Wondrich notes, "it wasn't about mixing drinks," since women are obviously capable of doing that. And "it wasn't about protecting the precious flower of American womanhood from the foul atmosphere of the bar," since American women have been drunkenly inhaling that atmosphere since at least the days of King George III. So "what was the taboo against barmaids about?" After a long, interesting overview of American drunk history, Wondrich settles on this thesis:

Any answer, I think, would have to be sketched out along these lines. During Colonial times, men fell into the job of tending bar, particularly in parts of the country where women were in short supply. With the diminished class system that prevailed over here, it wasn't seen as a somehow degrading or unmanly service job. It was seen for what it was, a moneymaking job with a fair amount of independence and just enough craft to earn its expert practitioners the respect of a nice-sized chunk of the populace. The more men mystified that craft part of the job by mixing up outlandish concoctions, tossing drinks between cups in long liquid arcs, dashing this and that into the glass with knowing winks, setting things on fire, so on and so forth, the more they could justify their high pay—and their exclusive possession of the job.

Surprisingly, Wondrich makes scant mention of one of the most obvious contributing factors to this sexist state of affairs. Namely, government regulators frequently banned women from working in this particular occupation. What's worse, those regulators received the blessing of the U.S. Supreme Court.

The state of Michigan, for instance, once had a law on the books forbidding women from working as bartenders unless they were "the wife or daughter of the male owner." Valentine Goesaert, who owned a bar in Dearborn, challenged the law for violating her right to tend bar at her own establishment. But the Supreme Court sided with the state. In an opinion written by progressive legal hero Justice Felix Frankfurter, the Court upheld the ban on the grounds that the judiciary owed vast deference to government regulation of economic activity.

"We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives," Justice Frankfurter wrote in Goesaert v. Cleary (1948). "We cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling." Indeed, Frankfurter declared, "Michigan could, beyond question, forbid all women from working behind the bar."

Related: Government Almost Killed the Cocktail

Today in History: SCOTUS Protects the Corporate Speech Rights of The New York Times

Fri, 09 Mar 2018 13:10:00 -0500

(image) Do corporations have First Amendment rights? Many modern progressives think not. Former New York Times editorial board member Adam Cohen, for example, has argued that corporate speech does not deserve First Amendment protection because "the Constitution never mentions corporations or their right to speak."

Fortunately for Cohen and his old colleagues at the New York Times Company, the U.S. Supreme Court reached a different conclusion. And no, I'm not talking about Citizens United.

Fifty-four years ago today, the Supreme Court issued its landmark First Amendment ruling in New York Times Co. v. Sullivan. At issue was a libel complaint filed by Montgomery, Alabama, City Commissioner L.B. Sullivan against the New York Times Company because the Times had run a full-page advertisement that charged Montgomery police with violating the rights of civil rights activists.

The Alabama courts sided with Sullivan, awarding him $500,000 in damages for the alleged libel he suffered in his capacity as the city's supervisor of police. But the Supreme Court reversed that outcome. "The rule of law applied by the Alabama courts," the Supreme Court held, "is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct."

According to the Court, the First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." To hold otherwise, the ruling said, would be to allow a "pall of fear and timidity [to be] imposed upon those who would give voice to public criticism" of public officials, an outcome that the Court described as "an atmosphere in which the First Amendment freedoms cannot survive."

Which brings us back to former Times-man Adam Cohen. If Cohen is correct about the Constitution offering no safeguards for corporate speech, then the corporate New York Times Company should have never won this case. Thankfully for the freedom of the press, Cohen's argument remains a losing one.

Jeff Sessions's Flawed Lawsuit Against 'Sanctuary State' California

Thu, 08 Mar 2018 10:30:00 -0500

The Justice Department is taking California to court over its status as a so-called sanctuary state. In such places, state and local officials either won't help the federal government round up and deport undocumented immigrants or otherwise refuse to participate in the enforcement of federal immigration laws. In a speech announcing the lawsuit, Attorney General Jeff Sessions accused California of creating "an open borders system," something he denounced as "a radical, irrational idea that cannot be accepted." Unfortunately for Sessions, his case against California appears to suffer from a significant constitutional defect. In the complaint filed yesterday at the U.S. District Court for the Eastern District of California, the Justice Department asked the court to invalidate several California laws, including parts of the California Values Act of 2017, which stops state and local police, with certain exceptions, from providing various assistance to federal immigration authorities. Among other things, the act prohibits California police from "detaining an individual on the basis of a [federal immigration] hold request"; "transfer[ing] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination, or in accordance with" California law; and "providing information [to federal immigration authorities] regarding a person's release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a notification request from immigration authorities in accordance with" California law. According to the Justice Department, those provisions violate the Supremacy Clause of the U.S. Constitution by "making it more difficult for federal immigration officers to carry out their responsibilities in California" and by "obstruct[ing] the United States' ability to enforce laws that Congress has enacted." The terms of the California Voters Act "impermissibly prohibit even the most basic cooperation with federal officials," the suit asserts. In effect, Attorney General Sessions now wants to force local police to participate in the administration of federal law. But that would run afoul of both the 10th Amendment and Supreme Court precedent. As Justice Antonin Scalia explained in Printz v. United States (1997), "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." At issue in Printz were certain provisions of the 1993 Brady Handgun Violence Prevention Act that directed local police to help the federal government administer its gun control scheme. The federal government argued that recalcitrant local officials should not be allowed to obstruct the implementation of that duly enacted national law. But the Supreme Court thought differently. The Brady Act provisions at issue, Justice Scalia declared, must be struck down as an unconstitutional "federal commandeering of state governments." Jeff Sessions's case against portions of the California Values Act seems to suffer from the same constitutional failing that Scalia identified in Printz. Just as the feds may not dragoon local police into administering federal gun control laws, the feds may not dragoon local police into administering federal immigration laws.[...]

The New Challenge to Obamacare

Wed, 07 Mar 2018 09:44:00 -0500

Readers may be familiar with a new constitutional challenge by 20 state attorneys general to the Affordable Care Act, which Ilya blogged about here. Their argument, in a nutshell, is that with the amount of the penalty for failing to have health insurance now set to zero, the individual insurance "requirement"--AKA the "individual mandate"--can no longer be justified as a tax. This is so because one of the essential characteristics of a tax is that it raises at least some revenue for the government. For this reason, the "saving construction" employed by Chief Justice Roberts no longer applies, as it is no longer even a "reasonably possible" reading of the insurance requirement, which now raises no revenue. On this claim, the AG's are on very strong ground. To the extent they are correct, the NFIB v. Sebelius was a bigger victory than we realized when it was decided, as it left the insurance mandate susceptible to being killed off in this way via reconciliation. Because this constitutional claim makes sense, the attention will turn to the issue of standing and, perhaps, mainly to severability. If the insurance requirement is invalidated, does that bring down the rest of the Affordable Care Act? While we argued that the entire ACA was inseverable from the mandate, the Obama administration contended that--based on the Congressional findings--only the guaranteed issue and community rating provisions are inseverable: Congress's findings establish that the guaranteed-issue and community-rating provisions are inseverable from the minimum coverage provision. Congress specifically found that in a market with guaranteed issue and community rating, but without a minimum coverage provision, "many individuals would wait to purchase health insurance until they needed care." 42 U.S.C.A. 18091(a)(2)(I). . . . Congress therefore expressly found that the minimum coverage provision is "essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold." . . . . It is evident that Congress would not have intended the guaranteed-issue and community-rating reforms to stand if the minimum coverage provision that it twice described as "essential" to their success, 42 U.S.C.A. 18091(a)(2)(I) and (J), were held unconstitutional. (pp. 45-47) Notice there is no mention here of the penalty, only the requirement. The big question, then, is whether the fact that the current Congress zeroed out the penalty without repealing either the insurance requirement or the findings of the enacting Congress, affects the severability analysis. In his post, Ilya explains why he thinks it does. In his view, "Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place. It was Congress that removed the monetary penalty imposed on violators of the individual mandate, thus rendering it ineffective." Possibly, but I am not sure this is how severability works. Congress could have repealed the insurance requirement, but didn't. Congress could have repealed its findings, but didn't. It did not have the votes to do either. So its "will," as expressed in the original ACA, still stands. I am not sure that a court may override this by its own independent assessment of "effectiveness." But as Ilya points out, the judicial doctrine governing severability is murky. In contrast with Ilya, Josh Blackman thinks the inseverability claim may be viable. In this blog post, which is well work reading in its entirety, he concludes: Even though the penalty is set to $0, the individual mandate still plays an important social function to reduce adverse selection, and plays a role in the operation of employer-based coverage. Far from toothless, the mandate still has some bite.[...]

Supreme Court Will Hear Important Property Rights Case

Mon, 05 Mar 2018 16:25:00 -0500

Earlier today, the Supreme Court decided to review Knick v. Township of Scott, an important property rights case. The most important issue the Court will consider is whether to overrule Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it very difficult or impossible to bring takings cases in federal court. Under Williamson County, a property owner who contends that the government has taken his property and therefores owes "just compensation" under the Fifth Amendment, cannot file a case in federal court until he or she has first gotten a "final decision" from the appropriate state or local regulatory agency and has "exhausted" all possible remedies in state court. Even after all of that, it is often impossible to bring a federal claim, because a variety of procedural barriers preclude federal courts from reviewing state court decisions in cases where the case was initially brought in state court. In some cases, governments defending against takings claims even exercise their right to "remove" the case to federal court, and then manage to get the case dismissed because the property owner did not manage to first "exhaust" state court remedies (a failure caused by the defendants' own decision to get the case removed). Williamson County creates an egregious Catch-22 trap for property owners: before they can bring a claim in federal court, they must first go through state courts and administrative agencies. But the very act of going to state court makes it virtually impossible to later appeal the case to a federal court! This is the kind of Kafkaesque idiocy that gives the legal profession a bad name. One might ask why it matters whether takings cases are litigated in state court or federal court. After all, both state and federal judges have to apply the Takings Clause of the Fifth Amendment, and both have to follow relevant federal court precedents. In many cases, the result will be the same, regardless of venue. But in some situations, particularly ones where precedent is unclear and the issues may be ambiguous, state courts could well be biased against property owners, because they have close connections with the state and local governments that undermined the property rights in question. This may be particularly likely in the many states where judges are elected, and are therefore part of the same political coalition as local and state government officials. In addition, allowing review in federal court helps ensure enforcement of at least a minimal uniform floor of constitutional rights through the nation. That, after all, is one of the main purposes of having federal constitutional rights in the first place. As prominent nineteenth century Supreme Court Justice Joseph Story explained in Martin v. Hunter's Lessee, a famous 1816 decision, one of the main reasons why federal courts have ultimate jurisdiction over federal constitutional issues is "the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution." Story also warned that the availability of federal judicial review is essential to prevent enforcement of constitutional rights from being being impeded by state court bias in favor of their own state governments: The Constitution has presumed... that State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between States, between citizens of different States, between citizens claiming grants under different States, between a State and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of Congress, to [...]

Sonia Sotomayor Faults SCOTUS for Failing to Protect Right to Effective Counsel in Death Row Case

Mon, 05 Mar 2018 12:15:00 -0500

(image) Today the U.S. Supreme Court declined to hear the appeal of a death row inmate whose state-appointed attorneys failed to discover and present mitigating evidence that might have altered the outcome of his jury trial. Writing in dissent, Justice Sonia Sotomayor faulted her colleagues for refusing to review this "deeply unjust and unfair" case. The Court's inaction, Sotomayor declared, "belies the 'bedrock principle in our justice system' that a defendant has a right to effective assistance of trial counsel, and undermines the protections this Court has recognized are necessary to protect that right."

The case of Wessinger v. Vannoy originated in 1997 when Todd Wessinger was found guilty of killing two people and sentenced to death. Yet as Justice Sotomayor pointed out, "Wessinger was sentenced to death by a jury that was never presented with significant mitigation evidence that may have convinced its members to spare his life," such as the fact that he "suffers from a major neurocognitive disorder that compromises his decision-making abilities" and "has a hole in the area of his brain associated with executive functioning that resulted from some form of cerebrovascular illness."

Wessinger's state-appointed lawyers failed to discover and present such evidence as their client's case wound its way through the Louisiana courts. As one of those lawyers later admitted under oath, his work was "inadequately investigated, rushly put together based on a civil lawyer's understanding of what to do, a first-year civil lawyer's understanding of what to do."

Represented by new lawyers at the federal level, Wessinger prevailed in 2015 before the U.S. District Court for the Middle District of Louisiana, which found that his counsel "at the penalty phase was deficient and fell below the objectively reasonable norms of capital counsel at a penalty phase." Furthermore, the district court said, "there is a reasonable probability that the evidence of [Wessinger's] brain damage and other impairments, as well as his personal and family history would have swayed at least one juror to choose a life sentence." The district court then vacated Wessinger's death sentence.

But the U.S. Court of Appeals for the 5th Circuit reversed that ruling, leaving Wessinger on death row. It was that 5th Circuit decision that the U.S. Supreme Court declined to review today, prompting Justice Sotomayor to take the rare step of publicly rebuking the other justices for declining to get involved.

"The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this Court's precedent," Justice Sotomoyor maintained. "Yet, Wessinger will remain on death row without a jury ever considering the significant mitigation evidence that is now apparent. Because that outcome is contrary to precedent and deeply unjust and unfair, I dissent."

Justice Sotomayor's dissent from the denial of certiorari in Wessinger v. Vannoy is available here.

Are We Experiencing Peak Gun Rights?

Fri, 02 Mar 2018 16:15:00 -0500

We may have reached peak gun rights. History could very well record that in the modern era, the Second Amendment received its most generous reading in 2010 when the U.S. Supreme Court decided its last major case, and that gun rights have been declining ever since. This prospect is as worrisome for anyone who takes an expansive view of the Second Amendment as it must be exhilarating for anti-gun advocates. Since 2010, residents of California, New York, Massachusetts, Connecticut, Washington, Colorado, Oregon—and states with similarly minded legislatures—have found themselves slapped with new restrictions that did not exist eight years ago. The U.S. Supreme Court has done precisely nothing to stop this extra-constitutional adventurism. Meanwhile, attempts to liberalize gun laws in the U.S. Congress have run aground. The U.S. House of Representatives approved concealed carry reciprocity last year, but both it and a related bill remain stuck in the Senate. A hearing protection bill, modeled after similar laws in Norway and Denmark that deregulated suppressors for firearms, has been waiting for a House vote since last September. So has another House bill that would curb overly broad state and local restrictions on rifles and shotguns. After President Trump's brainstorming session with Sen. Dianne Feinstein (D-Calif.) this week about new firearm restrictions, the political outlook has darkened. Instead of working to advance pro-gun rights legislation, however fitfully, Second Amendment supporters are now trying to imagine what form a restrictionist proposal—possibly written by Feinstein, author of its 1994 ancestor—might take, and precisely how confiscatory it will be. (Trump's remarks also invite speculation about what kind of Supreme Court justice he might appoint, should another vacancy happen.) Trump seemed to backpedal on Twitter yesterday morning, and later announced that he had a "great" meeting with the National Rifle Association that evening. Perhaps he was reminded that, if gun owners choose to sit out the 2020 election, this particular chief executive should not expect a second term. But without clear direction from the White House, and without a president willing to devote the energy required to advance good legislation, the Second Amendment's legal protections are likely to continue to shrink. Most of the blame should land on the shoulders of a supermajority of the current Supreme Court justices. In the 2008 District of Columbia v. Heller and 2010 McDonald v. City of Chicago cases, the court declared the Second Amendment to be a fundamental constitutional right that states and municipalities must respect. After that pair of decisions, courts were supposed to review laws restricting gun rights with the same reflexive skepticism as they would laws that restrict free speech or abortion. That did not happen. A series of lower courts, in particular the U.S. Court of Appeals for the 9th Circuit, creatively interpreted those important rulings into near-nullities—effectively overruling the Supreme Court. Bizarrely, at least six justices have decided to let them: it takes four votes to accept an appeal to overrule a lower court, and those four votes have not been forthcoming. "If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene," Justice Clarence Thomas wrote in last week's dissent from his colleagues' decision not to hear the Silvester v. Harris case from the 9th Circuit. "But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court… The right to keep and bear arms is apparently this Court's constitutional orphan." (Justice Neil Gorsuch joined Thomas in another dissent last year that[...]

Public-Sector Unions Deserve to Be Destroyed

Fri, 02 Mar 2018 00:30:00 -0500

How does a public-sector union work? Easy. First, the state creates a monopoly. The monopoly forces taxpayers to fund those workers, whether they do a good job or not. The union then coerces workers to pay dues regardless of whether or not they want to. Then the union uses those dues to help fund political advocacy that perpetuates their monopoly and the union's influence. So, in other words: racketeering. Among many significant problems with this arrangement, the most obvious is that it's an assault on freedom of association. If there is another organization in American life that has a license to compel workers to participate in their nongovernmental organization simply to secure a job, I haven't heard of it. The Supreme Court recently heard oral arguments in Janus v. AFSCME, a case in which a man named Mark Janus, a non-union child-support specialist in Illinois, argued that his First Amendment rights were violated because he is forced to pay "agency fees" to a public-sector union. It was dismaying, though not unexpected, that during oral arguments, justices like Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor concerned themselves with the impact the decision would have on union membership rather than concerning themselves with impact this kind of policy has on the Constitution. The vast majority of media coverage on the topic similarly relied on euphemism-heavy stories that did everything possible to avoid words like "compelling," "forcing" or "coercing." Most outlets framed the entire case as a concerted partisan attack on unions and, by extension, the Democratic Party. As a matter of legality, the intentions of those involved shouldn't matter much. But the reason disparate groups attack public-sector unions is that the institution's survival often rests on coercing Americans and undermining the First Amendment. If stripping a political advocacy group of the power to force workers to join their efforts is a crippling event, then it's an event worth celebrating. As it is, workers in union-heavy industries are typically under incredible pressure to join—in my experience, there are few bullies bigger than the union boss in everyday American life. Yet general union membership continues to crater. Those who resist these efforts are often accused of being "free riders," because they purportedly benefit from collective bargaining but refuse to pay in. This is an exceptionally peculiar argument coming from organizations for which the central mission, as far as I can tell, is to ensure that the least effective workers are protected at the expense of the most effective workers. More than that, though, the entire case against Janus not only rests on coercion, but on a debatable, if not dubious, notion. John Doe must join a union, because he already benefits from collective bargaining negotiations, union advocates argue. Does he? Even if we concede that collective bargaining negotiations might raise the average salary of teachers, it may very well depress his salary. It is just as easy to argue that collective bargaining hurts the good teacher. Public-sector unions are not only arguing that workers must join a collective and subvert their individual rights, but that they must accept an ideological contention. In many states, public-sector unions don't have collective bargaining rights. Yet, as I write this, every school in all 55 counties of one of those states—West Virginia, where the average teachers' salary is a bit higher than the average worker's—are now closed due to an illegal teacher's strike. Most of those average workers in West Virginia have no choice when it comes to their children's educations. Yet nearly every story about this situation focuses on the plig[...]

Supreme Court Sets the Stage for a More Important Immigrant Detention Fight

Thu, 01 Mar 2018 17:00:00 -0500

The Supreme Court ruled this week that current law does not entitle suspected illegal immigrants going through deportation proceedings to challenge their detention. The good news is that its ruling leaves the door open to finding the statute that created this situation unconstitutional. The opinion in Jennings v. Rodriguez resolves a government challenge to a lower court ruling, which ordered immigration authorities to hold a bail hearing for such detainees every six months. For the moment that leaves the prisoners without a procedure to challenge their long-term detention. The statute at issue in the case is a portion of federal immigration law that says aliens who are contesting a deportation order or a determination of inadmissibility "shall be detained" pending resolution of their status. The law says such detainees may be temporarily released into the United States while their cases are processed in the immigration courts, at the discretion of the attorney general. The case was brought by Alejandro Rodriguez, a Mexican citizen who was ordered deported in 2004 following a drug conviction and was then detained for several years as his appeals proceded. He filed a suit for habeas corpus in federal court in California, arguing that the statute implicitly required the government to conduct detention hearings every six months, although the text itself says nothing about such hearings. District Judge Terry Hatter agreed, and the government appealed his injunction to the Ninth Circuit, which upheld Hatter's ruling as an appropriate application of the canon of constitutional avoidance—a legal doctrine which instructs courts not to interpret ambiguous statutes in ways which would make them unconstitutional. The Supreme Court rejected this analysis. Writing for a 5–3 majority—Justice Elena Kagan recused herself from the case—Justice Samuel Alito cited a previous ruling that the canon of constitutional avoidance "comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction." Alito deemed the Court of Appeals' interpretations of the statute "implausible," and he concluded that the lower courts will have have to consider the constitutional question they tried so hard to avoid. The ruling therefore tees up the question of the statute's constitutionality—the very issue the lower courts went to such pains to ignore. So while the short-term effect is bad for civil liberties, it's possible that the case will ultimately lead to a verdict that civil libertarians will like: that indefinite civil detention of suspected illegal immigrants violates constitutional rights. It's conceivable a lower court, or even the Supremes themselves, could later rule that the statute is constitutional after all. But courts have been generally unfriendly to indefinite detentions in the past, even in the context of other areas that fall under executive discretion, such as national security. Furthermore, every lower court that considered the case agreed that reading the law to mean what it clearly says (that suspected illegal immigrants "shall be detained" during their appeals, regardless of how long those appeals take, and that parole is entirely at the discretion of the attorney general) would pose "serious constitutional concerns," which is why they didn't want to read it that way. The crucial point is that so far, no court has actually ruled on the constitutionality of the indefinite, unreviewable detentions that the immigrations statutes authorize. All the Supreme Court really said on Tuesday was that the statute does, in fact, authorize them. Despite this, several major media outlet[...]