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January 30, 2015

California’s Water Law Symposium–A Law Student Success Story

Cross-posted from Legal Planet.

The 11th Annual Water Law Symposium was held last weekend at Golden Gate University Law School in San Francisco.  The event drew a standing-room-only crowd of water law scholars, practitioners and policymakers, who devoted the day to a thoughtful and lively examination of how California’s constitutional law doctrine of reasonable use affects all facets of water rights in the state.

To be sure, a multitude of environmental and natural resource law-themed conferences are held every year in California and around the U.S.  But the Water Law Symposium is special, for several related reasons.

First and foremost, Northern California law students are the Symposium’s sole creators and organizers – it’s exclusively a law student production.  While some of us law professor types serve as advisors to the students planning the event, the burden has been fully on the law student organizers to make the Symposium the resounding success that it’s become.

Second, the Water Law Symposium is a unique collaboration of law students from six Northern California law schools – Golden Gate, Berkeley Law, Hastings College of the Law, University of San Francisco, UC Davis (King Hall) and the McGeorge School of Law.  Traditionally, students from different law schools have little contact with one another; if they interact at all, it’s in inter-school moot court competitions.  But the Symposium dramatically breaks that mold, with students from all six schools collaborating closely and well in furtherance of a common purpose: that the annual Symposium excels.

And excel it does.  In a relatively short period of time, the Water Law Symposium has emerged as California’s premier water law and policy event.  Not surprisingly, the Symposium’s resounding success has received national notice and acclaim: a few years ago, the American Bar Association bestowed on the Symposium its award for the best law-student organized event in the entire United States.

Anyone interested in California water law and policy should make plans to attend the 12th annual Water Law Symposium in early 2016.  In the meantime, kudos to the dedicated law students of Northern California, whose collaborative efforts have produced a yearly event of sustained excellence.

January 30, 2015

Can an Elected State Legislature Sue the State? And Can Congress Approve State Laws That Otherwise Violate the Constitution?

Cross-posted from Justia's Verdict.

In my last column, I explored some aspects of an important case, Arizona Legislature v. Arizona Independent Redistricting Commission, pending at the Supreme Court. As I explained, the merits question presented is whether the people of a state may create an independent redistricting commission (IRC)-i.e., one that is not controllable by the elected state legislature-to devise congressional districts, as Arizona voters did in 2000. The elected Arizona legislature (acting as a body) brought suit, arguing the so-called Elections Clause of Article I of the Constitution (Article I, section 4)-which provides that "[t]he [districts for] Representatives . . . shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations"-protects elected state legislatures from state laws that take congressional districting out of their hands. In the space below, I continue to explore the questions the case raises, especially in light of the additional briefs that have been filed.

Does the Elected Legislature Have Standing to Sue the State (Voters)? The Two Key Precedents

One issue Court will take up-indeed, an issue the parties initially did not address but on which the Court specifically sought briefing-is whether the elected legislature has "standing" to challenge the Arizona initiative in federal court. Elected state legislatures have been found to have standing in a number of cases in federal court, but the more ordinary situation in which an elected legislature seeks to be in court involves the legislature's attempt to defend rather than attack state law. When the executive branch of a state does not defend a state law that is challenged by private individuals, the elected legislature may under certain circumstances be permitted to do so instead.

In the Arizona case, by contrast, the elected legislature seeks to invalidate, not preserve, the Arizona law that voters passed in 2000. To do so, the legislature, like any plaintiff in federal court, must demonstrate that it has suffered (or is reasonably certain to suffer) an "injury" that is "cognizable." The elected legislature's asserted injury here is that it has been removed from an important job that the federal Constitution (in the Elections Clause) assigns directly to it. Because, under the Arizona initiative, any congressional districting legislation passed by the elected legislature will not be put into effect, the elected legislature's vote on any such districting will be (improperly, to its way of thinking) nullified.

There is one older Supreme Court case that may support the Arizona legislature's standing argument. In Coleman v. Miller (1939), a majority of the Kansas state senate brought suit to challenge the actions of the state executive branch in connection with the ratification of a proposed federal constitutional amendment dealing with child labor. The state senate had deadlocked 20-20 on the question of ratification of the amendment, an outcome that ordinarily would be construed as a decision not to ratify. But the lieutenant governor of the state (as presiding officer of the senate), decided to cast a vote-as he would in ordinary legislation-and voted in favor of ratification.

When state officials prepared to communicate that Kansas had ratified, for purposes of determining whether three-quarters of the states had ratified (the threshold required for an amendment to go into effect), the state senators who had voted against ratification, joined by three others to make a majority of the senate, sued, claiming that the lieutenant governor had no business participating in the ratification vote because Article V's conferral of power to state "legislatures" to ratify federal amendments excludes participation of state executive officials. As a result, the Kansas senators argued, their decision not to ratify (by an equally divided vote) was being improperly overridden.

The U.S. Supreme Court ruled 5-4 that the plaintiffs had standing, reasoning that the lieutenant governor's actions, if indeed violative of Article V, completely and improperly nullified the valid votes of the elected state legislators. Because their votes had been unconstitutionally ignored altogether, they had suffered an injury cognizable in federal court.

Coleman was explained, distinguished and perhaps narrowed in 1997 in Raines v. Byrd. In that case, a handful of U.S. Senators and House members brought suit to challenge the constitutionality of the federal Line Item Veto Act (LIVA), a statute passed by Congress and signed into law that purported to give the President, with respect to each future budget bill in which Congress had not indicated an intent otherwise, the power to sign the budget bill into law but then decline to spend any money on certain budget items of his choosing. The plaintiffs in Raines claimed that giving the President such authority diluted the power of Congress, because any votes on subsequent budget bills in Congress might not be given full effect by a President who decided to spend on some, but not on all, the budget items Congress had adopted.

The Court in Raines found plaintiffs lacked standing. It distinguished Coleman in at least three ways: (1) in Coleman, a majority of the Kansas senate voted to sue, whereas Raines involved only a handful of members of Congress, and neither house of Congress authorized the suit; (2) in Coleman, the vote of the twenty Kansas senators was being nullified altogether by the lieutenant governor's actions, whereas in Raines the dilution or diminution of the "effectiveness" of Congress's votes in any future budget bill may not have been as extreme; and (3) the Kansas state senate had already voted on the ratification measure in question in Coleman (and the effect of its vote in a particular case was thus at stake), whereas in Raines the alleged harm related to future votes Congress might cast.

How Should Coleman and Raines Play Out in the Arizona Case?

In some ways, the Arizona case is similar to aspects of both Coleman and Raines, a feature which gives the Court some leeway to resolve the standing question any way it wants without having to formally overrule a past case. Like Coleman, the Arizona case involves a suit by a majority of a legislative branch-and not just a few individual members. Also similar to that in Coleman, the claim here is not just that the (redistricting) laws by the elected legislature might be affected or influenced by the Arizona initiative, but that they are foreclosed altogether: all the votes by the elected legislature on a districting bill would be completely ignored. But as in Raines, the alleged harm to voting power is in the future, insofar as the elected Arizona legislature has not actually cast any redistricting votes that have been (or are about to be) ignored or nullified on account of the Arizona initiative.

Here's another potentially relevant factor. In Coleman, the injury to the Kansas senate was inflicted from outside the senate, by the lieutenant governor. The same is true in Arizona, insofar as the People wrested power from the elected legislature without the legislature's consent. In Raines, by contrast, Congress itself passed the LIVA that some of its members believe improperly diluted Congress's own power. The Raines Court did not actually rely on the self-inflicted character of the alleged institutional injury, but that may be a significant background fact.

And here's yet one more possible consideration. In Raines, the Court suggested that even if the members of Congress lacked standing to challenge the LIVA, someone else outside Congress-the intended beneficiary of a spending item that Congress approved but that the President cancelled under the LIVA-would be able to sue later to challenge the Act. And, in fact, such a challenge did occur (and the LIVA was struck down-wrongly, to my mind) in Clinton v. New York. In the present case, it is possible that a voter or congressional candidate could sue to challenge the Arizona initiative, claiming that the district in which she finds herself on account of the lines drawn by the IRC is less desirable to her than the district in which she would have been located had the elected legislature retained control, but it is far from clear that such a case would actually be filed and survive the standing hurdle. The Supreme Court has elsewhere said that just because it is hard to imagine anyone other than the plaintiff before it who would have a better claim of standing is no reason to relax standing rules, but the presence or absence of better plaintiffs might be an unstated factor in a very flexible standing doctrine. (There are intimations of that in Raines itself.) If the Arizona legislature is correct that the federal Constitution gives it particular power that is being wrongly taken away from it, a sensible system should allow someone to go to court to fix the constitutional violation.

In the end, I think the Court can-and could very well-go either way on the standing question. I note that if the Court limits Raines and allows the elected Arizona legislature to sue, it might be open to the criticism that it manipulates standing rules out of a perceived hostility to direct democracy. Two years ago, in Hollingsworth v. Perry (one of the same-sex marriage cases), the Court used questionable reasoning (even if its result was correct) to make it hard for proponents of initiatives to defend those initiatives in federal court when elected state officials decline to defend. If the Court in the pending Arizona case relaxes the standing bar to make it easier for the elected legislature to attack the Arizona initiative, some will think the Court is just plain anti-initiative.

Back to the Merits and the Key Question of Congressional Approval Power

Of course, one way to avoid that perception would be uphold the Arizona initiative on the merits. As I argued in my last column, I think there is a compelling argument on the merits that Congress, in 2 U.S.C. § 2a(c), approved the use of initiative and other direct democracy devices in the drawing of congressional districts by states, and that such a decision by Congress should be controlling regardless of whether the word "legislature" in the Elections Clause means elected legislature only or something else. The more I have examined the congressional statute in question, the more controlling I think it is, because its text is quite broad and clear in allowing states to use whatever state law devices they want to conduct districting, and because the legislative history suggests that one reason Congress wanted states to be able to use direct democracy in this arena was that elected legislatures were prone to engage in mischievous gerrymandering, the very problem to which the Arizona initiative was directed. So I think the congressional statute here is right on point.

The key question - and one that the briefs don't fully engage - then becomes whether Congress has the power to authorize states to use initiative devices to draw district lines. The Arizona elected legislature says no, but as I pointed out in my last column, the Supreme Court (in Ohio ex. rel. Davis v. Hildebrant), in upholding Ohio's use of the referendum in districting), relied explicitly on Congress's having, in adopting (the predecessor to) 2 U.S.C. § 2a(c), invoked its Article I, section 4 powers, which "expressly gave [Congress] the right to" act in this realm. As I observed, Congress, in exercising its power, might have passed a law creating the very identical Arizona IRC to do the districting within the state, and that would be completely permissible. If Congress could have enacted the IRC law itself (or incorporated it by reference into binding federal law shortly after the Arizona voters approved it), then why can't it simply approve, before the fact, any districting approach it wants? The recently filed brief for the IRC points out that it is much more convenient for Congress to approve state laws prospectively than it would be to monitor what states are doing and then enact laws itself. But that doesn't quite answer the question whether Congress has the authority to approve state laws that aren't on the books at the time Congress adopts the approval. The IRC's brief, which is superb overall, doesn't delve deeply into this matter, and the federal government's amicus brief is the only one I've seen that has more engagement with this question.

The best (albeit losing) argument against such congressional power is that prospective approval is an impermissible delegation of congressional authority to states. In the nineteenth century, such an argument might have had traction. Chief Justice Marshall in the well-known case of Gibbons v. Ogden opined that Congress cannot enable states to legislate when the Constitution disabled them from doing so because such prospective empowerment would in effect constitute a delegation of federal legislative authority back to the states. And as Justice Story observed in 1838, federal statutes that approved or incorporated state laws were generally construed as approving or incorporating state laws in effect at the time Congress acted, because there are "very serious doubts, whether [C]ongress does possess a constitutional authority to adopt prospectively state legislation on any given subject; for that, it seems to me, would amount to a delegation of its own legislative power."

But all this changed in the 1900s. In two seminal cases, the Court signaled that prospective incorporation of state laws by Congress, or prospective congressional approval of state laws that would otherwise violate the Constitution, is allowed. In United States v. Sharpnack (cited by the United States in its amicus brief), the Court allowed Congress to incorporate state criminal laws for use as federal laws in federal enclave (donut hole) territories, and the Court did not construe the incorporation as static, but instead as ongoing, incorporating into the federal law state laws that were passed after Congress acted. In rejecting a delegation attack, the Court said that rather than being a delegation by Congress of its legislative authority to the states, "[the 1948 Act] is deliberate continuing adoption by Congress for federal enclaves of such . . . offenses and punishments as shall have been already put in effect by the respective states for their own government. Congress retains the power to exclude a particular state law from the assimilative effect of the Act." Thus, the prospective adoption does not constitute a delegation because Congress remains free to withdraw the power being exercised by the states if Congress disapproves. The opportunity to reclaim the delegated authority, under the Court's reasoning, dissolves the delegation issue.

An even more important case, one I haven't seen anyone cite in the Arizona case briefs, deals directly with congressional approval of state laws that would otherwise violate the Constitution. (I tend to think the congressional statute authorizing direct democracy in drawing district lines, 2 U.S.C. § 2a(c), as more of an authorization of state law than as an incorporation of state laws into federal law, since I don't think the ins and outs of the Arizona initiative are themselves federal law.) In Prudential Ins. Co. v. Benjamin, decided in 1946, the Court effectively held when the Constitution deprives states but not Congress of authority to do certain things, it does not restrict the "coordinated exercise" of federal and state authority. Put another way, if Congress can do something alone, Congress can consent (oven prospectively) to having the states do it instead. As Professor Cohen has correctly observed, the Court's theory sweeps broadly: "Congress may remove all constitutional limits on States when those limits are wholly inapplicable to Congress-that is, when they stem solely from divisions of power within the federal system."

As I have explained more fully in academic writings, I think the twentieth century attitude reflected in Sharpnack and Prudential may have something to do with the fact that, beginning in the early 1900s, U.S. Senators were no longer elected by state legislatures, such that delegations by Congress to state governments were less scary, insofar as states (through their clout over Senators) wouldn't be able to block efforts by Congress to reclaim federal power if states were abusing it. As Sharpnack pointed out, as long as Congress can pull back any power it has given to states, the delegation problem is minimized.

Perhaps delegation to state peoples to engage in direct democracy, as opposed to delegations to elected state legislatures, never raised reclamation problems even before the 1900s, so that even Chief Justice Marshall and Justice Story, in their times, would see no problem with a federal law that allowed states, freely and prospectively, to make use of direct democracy in congressional district drawing. But in any event, in light of Sharpnack and especially Prudential, the congressional statute at issue in the Arizona case, 2 U.S.C. § 2a(c), is a permissible exercise of congressional power, and thus should be an easy basis on which the Court could resolve the case, if it chooses to reach the merits at all.

January 27, 2015

Frontiers of Immigration International Conference

UC Davis School of Law faculty were important contributors to the Frontiers of Immigration International Conference, an event sponsored by the UC Davis Temporary Migration Cluster on January 22-23.


Panel discussion with King Hall faculty including G. Jack Chin, Rose Cuison-Villazor, and Leticia Saucedo

Bringing together an interdisciplinary group of scholars and researchers from around the world, the conference included discussions on the economic effects of immigration, skilled immigration, immigrant integration, immigration from Asia and Latin America, international economic development, and policy and legal reforms. Among a star-studded group of scholars, Gabriel "Jack" Chin, Rose Cuison-Villazor, and Leticia Saucedo spoke on a panel on Asian and Latino immigration. I spoke on the closing panel speculating about the next 20 years of immigration policy.  Chancellor Linda P.B. Katehi, herself an immigrant from Greece, offered the concluding remarks to the conference.

As I have said often, King Hall has among the best immigration law faculty in the United States. They regularly make us proud as they exchange ideas and policy proposals -- and hold their own -- among leading economists, sociologists, historians, and other scholars from around the world.  We all should be proud that the School of Law has strength in an area that has become one of the most pressing policy -- and social justice -- issues of modern times.

January 16, 2015

Argument recap: Mellouli v. Holder and removal for a misdemeanor drug paraphernalia (sock) conviction

Cross-posted from SCOTUSblog.

On Wednesday, the Supreme Court heard oral argument in Mellouli v. Holder, a challenge to the removal of Moones Mellouli, a lawful permanent resident from Tunisia, based on a Kansas misdemeanor drug paraphernalia conviction for possession of a sock used to hide drugs. The record of his conviction, the touchstone in removal proceedings, did not specify the controlled substance connected to Mellouli’s “drug paraphernalia.”

Section 237(a)(2)(B)(1) of the Immigration and Nationality Act provides for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” The immigration court, Board of Immigration Appeals, and court of appeals all found Mellouli subject to removal under the statute.

Much of the oral argument focused on the meaning of the statutory language. The Justices probed in detail the meaning of the language and how it applied to the case at hand. In my estimation, a majority of the Court seemed to side with the Mellouli’s interpretation that, in order for removal, a state conviction must relate to a substance controlled under federal law in “section 802 of Title 21.”

Justice Samuel Alito set the tone for the argument by interjecting a question at the tail-end of Jon Laramore’s introduction on behalf of Mellouli: “Can we begin looking at the text of the statute?” Justice Sotomayor, no doubt with deference under Chevron v. Natural Resources Defense Council, Inc. in mind, told Laramore that, if the Court finds the statutory language to be ambiguous, Mellouli had “an uphill battle to fight.” Laramore emphasized that the statute is limited by its terms to federal controlled substances, and that a federal controlled substance was not identified in Mellouli’s record of conviction. He further emphasized that Congress always had controlled the substances that would give rise to removal and that a drug paraphernalia conviction should be no different.

Discussion ensued about the “categorical” and “modified categorical” approaches to state criminal statutes for removal and the idea that a non-citizen would be removable only if the state conviction related to a substance controlled under federal law. Justice Stephen Breyer, with Justices Sonia Sotomayor and Elena Kagan in apparent agreement, seemed to side with Mellouli.

Chief Justice John Roberts and Justice Ruth Bader Ginsburg expressed concern that a federal paraphernalia conviction could not be premised on the use of a sock to conceal a controlled substance. The incongruity between state and federal schemes meant that a drug paraphernalia conviction under state law could subject an immigrant to removal when a federal conviction for possession of the same paraphernalia could not be secured.

Arguing on behalf of the United States, Assistant to the Solicitor General Rachel Kovner seemed to make somewhat inconsistent arguments. Her primary argument was that the “relating to” language in the statute was sufficiently clear to justify removal on a drug paraphernalia conviction: at one point, she stated emphatically that “[w]e don’t think this text is – is ambiguous.” However, she also argued that Chevron deference was justified, thereby suggesting that the statute was ambiguous and that Congress had delegated the agency the authority to reasonably interpret the statute.

Justice Scalia expressed skepticism about the government’s textual argument: “Do you think a sock is more than tenuously related to – to those federal drugs?” Kovner responded in the affirmative. Justice Alito then pressed her on the “practical work [being] done by the phrase ‘as defined in Section 802 of Title 21,’” which lists the substances controlled under federal law. Chief Justice Roberts also seemed unconvinced by the government’s textual argument.

Kovner’s characterization of Mellouli’s argument provoked an emphatic response of “No, no, no, no, no” from Justice Sotomayor. It does not seem a stretch to conclude that her response to the government’s argument was an emphatic “no.”

In four minutes of rebuttal, Laramore was not asked a single question.

As the Affordable Care Act’s oral arguments taught us, it is at best hazardous to speculate from the oral arguments about the outcome of a case. Nonetheless, the Justices’ questioning focused on the meaning and application of the statutory language in question (with little mention of Chevron deference). A majority of the Justices seemed to agree that, because the particular removal provision incorporated by reference the federal controlled substances statute, Mellouli has the better of the statutory argument.

As discussed in the argument preview, the Supreme Court has been reluctant to impose the harsh penalty of removal on lawful permanent residents convicted of small-time drug offenses. This case falls into that category. Indeed, Justice Kagan generated laughter from the audience with her quip that, if Mellouli had been convicted of possessing drug paraphernalia for hiding a few tablets of Adderall, students on “half the colleges in America . . . just randomly pick[ed]” could be as well. Several of the Justices seemed troubled about the possibility that Mellouli’s removal – and separation from his fiancé – was based on a misdemeanor conviction for possession of a sock. Consequently, one might predict that a majority of the Court will side with Mellouli. If that is the case, a critical question will be one raised by Justice Sotomayor to Laramore: if he is correct, should the case should be remanded to the BIA? Counsel suggested that the BIA already had its chance, but time ran out before he could offer a fuller response.

January 16, 2015

Why the Supreme Court Should Reject the Arizona Legislature’s Challenge to the Arizona Independent Redistricting Commission

Cross-posted from Justia's Verdict.

One of the important Supreme Court cases currently being briefed (with oral argument set for March), Arizona Legislature v. Arizona Independent Redistricting Commission, involves the question whether the U.S. Constitution and congressional statutes permit the people of a state to implement an initiative creating an independent redistricting commission (IRC) - i.e., one that is not controllable by the elected state legislature - to devise congressional districts. Arizona voters passed just such an initiative in 2000, and the elected Arizona legislature (acting as a body) has now brought the case to the Supreme Court, arguing primarily that the so-called Elections Clause of Article I of the Constitution (Article I, section 4) prevents a state from divesting district - drawing power from the elected state legislature. The Arizona legislature (represented by former Solicitor General Paul Clement) has filed its brief in the Court, and the IRC (also represented by a former Solicitor General, Seth Waxman) will file its written argument very soon. In the space below, I analyze the merits portion of Mr. Clement's brief on behalf of the Arizona legislature, and point out why I think it fails to demonstrate that the IRC's creation and powers violate federal law. (Another part of Mr. Clement's brief, addressing whether the Arizona legislature has "standing" in federal court to assert a challenge to the IRC at all, raises interesting questions of its own, but those will have to await another day.)

What the Constitution and Federal Statutes Say, and What Mr. Clement's Brief Argues

The Elections Clause of the Constitution reads in relevant part: "The [districts for] Representatives . . . shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations . . . ."

And an important federal statute says that "u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in [a particular way]." 2 U.S.C. § 2a(c) (emphasis added).

Mr. Clement's argument against the IRC is pretty straightforward. He contends that the term "legislature" in Article I refers, as a matter of constitutional text, history, and policy, specifically to the elected body of regular legislators of the state, and if another body - the IRC - is empowered to do the districting instead, the elected legislature has been improperly divested of its constitutionally conferred prerogative. As the brief observes, quoting from a case (Hawke v. Smith), "[t]he term 'the legislature' . . . 'was not a term of uncertain meaning when incorporated into the Constitution,' and 'what it meant when adopted it still means,' namely, 'the representative body which made the laws of the people.'" The brief adds that this precise wording by the framers was motivated by their "admiration for representative democracy and skepticism for other forms of government, including direct democracy." The brief then goes on to explain why "the IRC is not 'a legislature' at all [and is certainly] not 'the Legislature' in Arizona."

Mr. Clement does have to deal with two Supreme Court cases that seem to support the IRC. In Ohio ex. rel. Davis v. Hildebrant, in 1916, the Court upheld Ohio's use of the referendum (a popular vote veto by the people directly) to oversee the congressional districting done by the elected state legislature. The Court specifically rejected a challenge to the referendum based on Article I, section 4 of the Constitution, finding that "to include the referendum into the scope of the legislative process was [not] to introduce a virus which destroys that power," and also that Congress expressly chose language to include in a federal statute (the one quoted above) in order to make clear its desire that where under state law "the referendum was treated as part of the legislative power, the power as thus constituted should be held and treated to be the state legislative power for the purpose of" the Elections Clause (emphasis added).

And in Smiley v. Holm, in 1932, the Court upheld Minnesota law's inclusion of the governor in the districting process through the power of the veto, holding that there is nothing in the federal Constitution that suggests "an attempt to endow the Legislature of the state with the power to enact laws in any manner other than that in which the Constitution of the state has provided that all laws shall be enacted." As a result, a redistricting passed by the elected legislature but vetoed by the governor was not allowed to go into effect.

Mr. Clement argues that these two cases "do not aid the IRC" because "both decisions clearly contemplate a continuing role-indeed, a continuing preeminent role-for the state legislature in prescribing congressional districts," insofar as the referendum power and the gubernatorial veto at issue in those cases did not obviate the need for the elected legislature to itself agree on any districting plan that would go into effect. Because Arizona's IRC scheme totally replaces-rather than supplements-the power of the elected legislature, these cases, argues Mr. Clement, are readily distinguishable.

As to the federal statute that the IRC invokes to support it-2 U.S.C. § 2a(c)-Mr. Clement argues that a recent ruling by the Supreme Court (Branch v. Smith) that discusses that provision does not mention that it embodies a congressional blessing of all districting done pursuant to state law. Moreover, Mr. Clement argues, if Congress "ever passed a statute purporting" to "authorize states to oust from the congressional redistricting process the very state legislatures to which the Constitution delegates primary power," then such a law would "be plainly unconstitutional."

Why the Constitutional Reading Offered by the Arizona Elected Legislature Is Unpersuasive

Mr. Clement's argument on behalf of the Arizona elected legislature is flawed in several respects. Sometimes the argument frames questions improperly, and sometimes the argument's conclusions are not logically supported. At a relatively high level of abstraction, the brief misdescribes the relevant inquiry: the question is not whether the IRC can be considered a "legislature" within the meaning of the federal Constitution; the question is whether the Arizona electorate-which passed the measure creating, empowering and directing the IRC-can be considered the state's "legislature" for Article I, section 4 purposes. To see this, ask yourself whether the elected Arizona legislature could-if it wanted to-create and appoint a body like the IRC, and charge it with the task of actually drawing the district lines, without the need for formal ratification or approval of the final boundaries by the elected legislature. That is precisely what five other states do, and no one-even the Arizona elected legislature-seems to quarrel with that. In other words, no one argues that an elected legislature is violating Article I, section 4 by making use of a commission to help draw the lines. (The same is true for Congress; no one believes that the clause empowering "Congress" to "regulate commerce among the several states" is violated when Congress creates, empowers, and directs federal agencies to craft the specific commercial regulations in the name of the federal government.)

So if the people of Arizona can be considered a legislature for Article I, section 4 purposes, then it matters not whether the IRC is a legislature. The IRC is the tool of the popular legislature, just as commissions are the tools of the elected legislatures in states like Montana, Idaho, New Jersey, Washington, and Hawaii.

And when we turn to the question whether the people of a state can properly be considered the legislature of the state for these purposes, we see that the brief's treatment of the Hildebrant and Smiley cases is quite incomplete at the very least. The brief's claim that, as far as the facts go, the devices at issue in those cases did not completely displace the role of the elected legislature is true. But it is also true that the affirmative legal argument the brief makes-that the text, history and policy behind Article I, section 4 require that the word "legislature" be understood to mean the elected legislature and only the elected legislature-simply cannot be squared with the outcome, let alone the reasoning, of those cases. To put the point is quasi-mathematical terms, if "legislature" equals elected legislature and no more and no less, then "legislature" cannot equal "legislature plus people" or "legislature plus governor."

Indeed, what strikes me most in reading the brief is that its drafters make bold assertions without seeming to realize that these assertions conflict directly with Hildebrant and Smiley, the cases Mr. Clement argues pose no problems for him. For example, the brief asserts-in a section heading, no less-that "The Text of the Elections Clause Unambiguously Vests State Authority . . . in the State's Representative Lawmaking Body Alone" (emphasis added). The inclusion of the word "alone" is puzzling. If it is true that Article I, section 4 vests power in the elected legislature "alone," the how could a veto by the people (in the form of a referendum) be countenanced? (Similarly puzzling is the brief's insistence that the word "prescribe" in Article I, section 4 means "establish authoritatively" or "dictate." If the redistricting work product of the elected legislature can be made subject to a requirement of popular approval, as Hildebrant says it can, in what sense is the elected legislature "authoritatively establishing" or "dictating" anything?)

In a related vein, the brief observes that "the framers knew the differences between 'state legislatures' and the 'executive . . . branch[]'" and that "[t]hose contemporary understandings and usages are critical." Why would you make this (tangential) textual argument concerning the difference between "legislature" and "executive" when Smiley-a case whose relevance you are trying to minimize-expressly permits executive involvement in Article I, section 4 district drawing?

It is true that Mr. Clement's brief is able to quote, as noted earlier, language from one Court case, Hawke v. Smith (decided in 1920), to the effect that the meaning of the term "legislature" is the same now as it was in 1787-the elected representatives. What the brief does not mention, however, is that this language in Hawke did not involve Article I's Election Clause, but the word "legislature" as it appears in Article V's amendment process. The Hawke Court rejected the applicability of the referendum device in Article V. But Hildebrant explicitly permits the use of the referendum in congressional district drawing, which strongly suggests that the Court has a different conception of the what "legislature" means in Article I, section 4-a conception that focuses not on a specific elected body but on the lawmaking power of the state more generally and the democratically accountable legislative process that is being employed.

That the Court interprets Article I, section 4's reference to "legislature" in terms of a democratic legislative process, rather than in terms of a particular body, was made explicit by the Court in Smiley (the case involving a gubernatorial veto of an elected legislature's redistricting bill.) Responding directly to and rejecting the Hawke Court's "a legislature is a particular elected body" reasoning employed in Article V, the Smiley Court said: "The question [in the present case] is not with respect to the 'body' . . . but as to the function to be performed. The use in the Federal Constitution of the same term in different [parts] does not always imply the performance of the same function." So while Mr. Clement is able to quote language from Hawke, the brief doesn't explain that Hawke's interpretive approach has been overtly rejected by the Court in the Elections Clause context.

Just as Mr. Clement's textual arguments are in tension with the results and reasoning of case law, so too are his historical claims. If the framers of Article I, section 4 were so "skeptical" of direct democracy, and if such pure democracy "results in 'spectacles of turbulence and contention,'" as the brief argues, then how to explain the Court's decision in Hildebrant to permit a state to subject an elected legislature's districting plan to a popular referendum?

Overall, it almost seems as if one person wrote the first part of the brief-laying out an aggressive textual and historical argument-and then another person was tasked with trying to deflect potentially damaging cases, and no one realized that the proffered distinctions of cases had to mesh with the affirmative reading of Article I, section 4 offered in the main argument.

Why the Brief's Treatment of the Role of Congress in This Dispute Is Even Weaker

Putting aside what the word "legislature" means in Article I, section 4, the least persuasive part of the brief might well be its treatment of the crucial congressional statute. As noted above, one reason the Hildebrant Court gave for upholding the use of the referendum in district drawing was its view that Congress, when it was modifying a key federal statute regarding redistricting, replaced a reference to the "legislature" of a state with the phrase "in the manner provided by the law" of a state, specifically in order to convey its approval of any state redistricting that made use of the referendum, so long as the referendum was consistent with state law. Mr. Clement's brief does not deny that the Hildebrant Court read the statutory language this way (the brief never even refers specifically to the passage in Hildebrant.) Instead, the brief simply says that a more recent case, Branch v. Smith, discussing the same statutory provision, did not reiterate what Hildebrant said, and that some Justices in Branch believed that the statutory provision at issue had been implicitly repealed by other statutes.

But the brief does not mention that five Justices in Branch explicitly expressed their view that the provision at issue had not been implicitly repealed. Nor does the brief mention that while Branch does not reiterate the reading Hildebrant gave, neither does it pull back from Hildebrant's reading in any way. Indeed, the Branch Court had no occasion to even discuss the Hildebrant interpretation at all because although the statute at issue in Branch was the same one involved in Hildebrant (or, more specifically, a later rendition of the same law), the legal question presented in Branch had nothing to do with whether Congress has approved of all state districting that is done pursuant to state law. Hildebrant's interpretation thus is not called into question by Branch, and statutory stare decisis is, of course, supposed to be very strong.

Probably because its drafters sense vulnerability here, the brief does say Congress cannot constitutionally authorize state laws that cut elected state legislatures out of the district-drawing loop. But in making this assertion the brief is on very weak ground. Congress is explicitly empowered to override any state districting and do the districting itself. That is precisely why the Hildebrant Court found congressional endorsement of Ohio's scheme so relevant-because Article I, section 4 "expressly gave [Congress] the right to" decide. In exercising its power, Congress might have passed a law creating the very identical Arizona IRC to do the districting within the state, and that would be completely permissible. If Congress could have enacted the IRC law itself (or incorporated it by reference into binding federal law shortly after the Arizona voters approved it), then why can't it simply approve any districting approach that satisfies whichever requirements, such as compliance with state law procedures, that Congress thinks are important? That is the key question Mr. Clement brief's never begins to address. And while one could make noises that even though Congress can do something itself in this realm it cannot prospectively authorize a state to do it instead, any such arguments are unlikely to be convincing, especially in light of the use to which Hildebrant put the statute.

Perhaps it is possible to read the federal statute as approving the use of the referendum, as in Hildebrant, but not the use of the initiative, as in the present case. But the text of the statutory phrase relied on by Hildebrant-"in the manner provided by the law" of a state-would not seem to permit such a distinction. Neither would the statute's legislative history (also relied on by the Hildebrant Court), which mentioned a desire to permit states to use both the initiative and the referendum in districting processes.

In the end, this congressional blessing, coupled with Congress's broad override powers in the Elections Clause, might be the easiest, and narrowest, ground on which to decide the case and reject the Arizona legislature's attack. There would then be no need to decide whether, in the absence of the federal statute, a state could cut an elected legislature out of the districting process or whether such an effort would be foreclosed by a strict reading of the word "legislature" in Article I, section 4.

 

January 6, 2015

Argument preview: Removal for a misdemeanor “drug paraphernalia” conviction

Cross-posted from SCOTUSBlog.

On January 14, the Supreme Court will hear oral argument in Mellouli v. Holder, one of several recent cases in which the Court has scrutinized the federal government's efforts to remove a lawful permanent resident from the United States based on a minor drug conviction. The frequency with which these kinds of cases recur reflects the focus of the Obama administration's removal efforts on noncitizens who have had brushes with the criminal justice system.

The case now before the Court specifically involves the government's efforts to remove a lawful permanent resident based on a state misdemeanor conviction for possession of drug paraphernalia - here, a sock used to hide drugs.

Facts

In 2004, Moones Mellouli, a native of Tunisia, entered the United States on a student visa and later became a lawful permanent resident. After pleading guilty to a misdemeanor under Kansas law, he was sentenced to probation for "possess[ing] with intent to use drug paraphernalia, to wit: a sock, to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance." As the court of appeals later observed, "[i]t seems surprising to call a sock 'drug paraphernalia,' but using a sock to store and conceal a controlled substance falls within the [Kansas] statute's literal prohibition." State laws vary widely on the regulation of drug paraphernalia; some states do not criminalize its possession.

The record of conviction, which is the touchstone in removal proceedings, did not indicate what controlled substance was connected to Mellouli's "drug paraphernalia." However, a document not part of the record of conviction alleged that, while in jail on a DUI charge, Mellouli had hidden four tablets of Adderall - a prescription medicine normally used to treat attention deficit hyperactivity disorder (ADHD) - in his sock.

The U.S. government sought to remove Mellouli under Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act, which provides for the removal of "any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)." The immigration court ordered his removal. The Board of Immigration Appeals (BIA), which has found drug paraphernalia convictions to justify removal because they relate to "the drug trade in general" - language not found in the statutory provision at issue - dismissed the appeal. The court of appeals agreed with the BIA, noting that deference to the Board's interpretation was justified under Chevron v. Natural Resources Defense Council, Inc.  Mellouli filed a petition for certiorari, which the Court granted last summer.

Arguments

In his briefs, Mellouli contends that the plain language of the statute requires the state conviction to be directly tied to a controlled substance under federal law; by contrast, the court of appeals effectively held that, contrary to the text of the statute, lawful permanent residents may be removed from the United States based on paraphernalia used in connection with substances that are not regulated by federal law. Mellouli further argues that, because the BIA ruling contradicts the text of the statute as well as the Board's inconsistency in interpreting the statutory provision in question, Chevron deference does not apply.

The United States counters emphatically that the conviction in fact is under a state law "relating to a controlled substance (as defined in section 802 of title 21)," and thus one that subjects Mellouli to removal. The government points out that Congress employed broad language to ensure that, even when federal- and state-controlled substances schedules are not identical, noncitizens who commit crimes related to drugs are removable. The United States also contends that the BIA interpretation is entitled to Chevron deference.

The significance of the case

The case raises two issues common to the run-of-the-mill contemporary immigration cases on the dockets of the federal courts: (1) interpretation of the complex immigration removal statute; and (2) the deference properly afforded the BIA's interpretation. Because the particular removal provision incorporated by reference the federal controlled substances statute, Mellouli has the better of the statutory argument and thus on the Chevron deference point as well (because deference to an interpretation contrary to the text of the statute is unwarranted). If the Court finds ambiguity in the statute, it might well invoke a version of the rule of lenity, as it has occasionally in recent years, to construe the statute against Mellouli's removal.

In interpreting the criminal removal provisions of the immigration laws, the Roberts Court has opted for bright-line rules (as advocated by Mellouli) as opposed to more flexible standards (as argued for by the U.S. government). In Moncrieffe v. Holder, for example, the Court rejected mandatory removal based on a conviction for possession of a small amount of marijuana and embraced the "categorical approach" requiring all crimes under a state penal law to qualify as an "aggravated felony" for a conviction under that statute to constitute such a felony. Similarly, in Carachuri-Rosendo v. Holder, the Court would not mandate removal based on a misdemeanor conviction for possession of a single tablet of Xanax because the prosecutor had not adhered to the requirements of the statute necessary for the conviction to be treated as a felony. In neither case did the Court defer to the BIA's interpretation of the statute because the Board's interpretation conflicted with the statutory text. Indeed, the argument has been made that Chevron deference is not justified in instances like this one given that the BIA's expertise is in immigration, not criminal, law.

The Supreme Court has been reluctant to impose the harsh penalty of removal on lawful permanent residents convicted of small-time drug offenses. Despite being engaged to marry a U.S. citizen, Mellouli - who already has been removed - has been exiled from the United States. His misdemeanor drug paraphernalia conviction for concealing contraband in his sock has resulted in the possibility of permanent separation from his fiancé in the United States.

January 5, 2015

Additional Thoughts (and Concerns) About the Low Bar Pass Rates in California and Elsewhere in 2014

Cross-posted from Justia's Verdict.

About a month ago I wrote an essay for this website commenting on the drop in bar passage rates in many states in the fall of 2014. I focused on the large national decrease in scores that test takers received on the so-called Multistate Bar Exam (MBE), a 190-question multiple-choice exam that accounts for much of the entire bar exam in most states, and on remarks made by Erica Moeser, who heads the organization that makes and scores the MBE (the National Committee of Bar Examiners or NCBE), to the effect that this year's takers were "less able." Much has happened since I wrote that essay: on November 25, about 80 law deans (I should note my dean at UC Davis was not among them) joined in a letter to Ms. Moeser requesting that "a thorough investigation of the administration and scoring of the July bar exam" be conducted, and that "the methodology and results of the investigation . . . be made fully transparent to all law school deans and state bar examiners" so that there might be "independent expert review" of the exam's "integrity and fairness"; on December 18, Ms. Moeser responded with a letter, and an attached essay from NCBE's quarterly magazine that provided additional analysis and data; and other states, including the largest state, California, have in recent weeks released details on bar passage within their jurisdictions. In the space below, I analyze some of these recent developments, with specific reference to what likely accounts for the large drop in MBE performance (and thus bar pass rates in many states) this year.

Ms. Moeser's Letter Defends the NCBE Against Implicit Criticism by Law Deans

I begin with Ms. Moeser's formal responses to the law deans. The tone of her letter suggests she feels a bit attacked by the deans (and her perception in this regard is probably understandable). She apologizes, sort of, for using the term "less able" in a way that might suggest anything other than the simple fact that the 2014 test takers did not do as well as did test takers the previous year. But even as she makes clear she did not intend to offend or distract by using that term, she seems to bristle at a term used by the deans in their letter: "integrity." Ms. Moeser appears to understand the deans' request for an examination of the "integrity and fairness of the July 2014" exam as questioning the honesty or professional qualifications of NCBE personnel. In reality, I suspect the deans used the word "integrity" in reference not to the personal or professional character of the test makers, but to the soundness of the July 2014 test itself. As we all try to get to the bottom of why test takers scored less well this year, it would be nice not to be overly burdened by linguistic sensitivities.

On the question of whether the 2014 exam was more difficult than usual, Ms. Moeser's letter reassures deans that NCBE has "reviewed and re-reviewed" every "aspect of [its] methodology and execution[,]" and that the July 2014 test has been examined multiple times and by different, independent psychometricians to guarantee that it was no more difficult than the 2013 test or previous tests. Ms. Moeser makes clear, however, that "the results of our studies will not be revealed publicly [because] [o]ur systems are proprietary, and security is essential." Her steadfast refusal to turn over specifics about NCBE's "equating" process (used to ensure that difficulty remains constant across test administrations) may not sit well with some of the deans who want outside experts to be able to verify NCBE is comparing tests properly. I can certainly understand that the NCBE does not want to make public the actual text of the questions it has used (and might continue to use) in order to equate the difficulty of one test administration with another, but perhaps NCBE could share more details about the way equating questions are selected, and on the precise statistical inferences that it draws based on taker performance on these equating items. Maybe there is no middle ground, but I would not be surprised if some deans persist in seeking more technical detail.

Ms. Moeser's Essay Contains Some Unhelpful Explanations

The magazine essay Ms. Moeser attaches to her letter provides additional context, and also includes data about LSAT scores for students at the 25th percentile of LSAT performance for each ABA-approved law school for the classes that entered in the fall of 2010, 2011, 2012 and 2013. (Data for fall 2014 became available just a few weeks ago and weren't included in Ms. Moeser's essay.) One the one hand, a number of points Ms. Moeser makes in her essay do not seem particularly relevant to understanding the dramatic aggregate drop in MBE scores in 2014 from 2013. For example, she points out that the Law School Admissions Council (LSAC) now asks schools to report the highest LSAT performance for each law student, rather than the average LSAT performance for each. This change made by LSAC might make it harder for a law school to compare and analyze its own bar exam performance over a long period of time, but since LSAC made this change before the class graduating in 2013 entered law school (in fall of 2010), the reporting policy would not seem relevant to comparing the bar performance of the class graduating in 2013 and the one graduating in 2014 (the latter of which saw the dramatic drop in bar performance).

Ms. Moeser also observes that some law schools accept more transfer applicants these days (perhaps in part because this is a way to keep a school's headcount and tuition dollars high without diluting the admissions credentials of the entering first-year class, since the characteristics of persons who transfer in as second-year students aren't included in those credentials). This phenomenon undoubtedly exists at some schools, and it may complicate a particular school's efforts to compare its current bar passage rates with those from an earlier era (when it didn't accept as many transfers), but this modern increase in transfers can't easily explain a national drop in MBE performance this year, since every student who transferred presumably would have taken the MBE whether s/he transferred or not. I suppose the transfer phenomenon might affect aggregate MBE performance if there were some "mismatch" effect (of the kind that Rick Sander has asserted, and that his critics reject, with respect to affirmative action) taking place when people transfer to schools for which they are not academically suited. But Ms. Moeser does not suggest this (or any other) theory for why an increase in transfers might affect aggregate bar performance, and I am unaware of any evidence of a transfer mismatch effect. Moreover, the number of transfers who graduated in 2014, while larger than in past years, wouldn't seem big enough to move the aggregate bar performance numbers very much this year even if there were such an effect.

Ms. Moeser's essay also posits that curricular changes in law school, ranging from an increase in ungraded externships and other experiential learning offerings, to fewer (or shorter) required black-letter courses, may be causing test takers to be less well-prepared for the bar exam. But any such curricular changes have been taking place gradually across the country, and unless there were some tipping point that was reached with respect to the class that graduated in 2014 compared to the class that graduated a year earlier, these changes would not likely contribute greatly to an abrupt and significant change in bar performance from one year to the next.

Ms. Moeser's Essay Also Contains Some Probably Fruitful Explanations

On the other hand, Ms. Moeser does adduce facts that tend to support her contention that the July 2014 MBE was no more difficult than earlier tests. First, she says that 2014 test takers performed worse on the very "equating items drawn from previous July test administrations" than did students from past years. Assuming the equating items are reasonably well chosen, weaker performance on those identical items would be indicative of a group that would perform more poorly on the test generally.

Second, she points out that the July 2014 test takers also performed more poorly relative to prior law graduates on the Multistate Professional Responsibility Examination (MPRE)-which most graduating 2014 students took earlier in 2014 or in 2013. Ms. Moeser's suggestion that recent score declines on the MPRE (which tests legal ethics in a multiple-choice format similar to the MBE's) can be seen as precursors to the 2014 MBE decline is interesting, and may bolster her conclusion that the MBE was properly equated and scored-provided that the MPRE has itself been properly equated and scored and that the MPRE and the MBE exams test similar skills.

Third, and probably most powerfully, she describes how many law schools, even as they have reduced entering class size, have enrolled lower LSAT performers, perhaps especially importantly at the 25th percentile of a law school's entering class. In addition to this, she points out that we know nothing about matriculants "below the 25th percentile . . . ; the tail of the curve leaves a lot of mystery, as the credentials of candidates so situated. . . and the degree of change [from previous years] are unknown." To be sure, this may be a group at many law schools that often struggles with bar passage, and a decline in the 25th percentile LSAT performance (and within that bottom of a school's LSAT quartiles) could explain lower bar pass rates at many schools.

If we look at the 25th percentile LSAT scores at all the nation's ABA-approved law schools for the classes that entered in 2010 (and took the bar in 2013) and the classes that entered in 2011 (and took the bar in 2014), we see that, on average, 25th percentile LSAT scores slipped by about half an LSAT point. Perhaps worse yet (because decreases in LSAT scores in the higher ranges of LSAT performance may have less importance to bar passage), the number of law schools whose 25th percentile LSAT performance was in the bottom half of LSAT scores nationwide (an LSAT score of 151 or below) grew from 62 schools for the class entering in 2010, to 71 schools for the class entering in 2011. And, as Ms. Moeser points out, the (unobserved) drop-off within the bottom LSAT quartile at many schools may be more ominous indeed.

Of course, as I said a month ago, weaker LSAT performance might be accompanied by higher college GPAs and other indicia of academic strength. And some schools suffering LSAT score drops might be shrinking in size quite dramatically, such that their effect on national bar pass rates might be lessened. So much more analysis is needed before the full picture is understood. But it appears that beginning with the class that entered law school in 2011, there has generally been some decrease in LSAT performance, and that such decrease may account for a good chunk (though likely not all) of this year's lower bar performance.

What Preliminary Analysis of California's Recently Released Data Suggests

The results released this week in California seem to be consistent with this account. Overall, it was a tough year for bar passage in the Golden State. One out of every three first-time takers from ABA-approved schools throughout the country failed the California bar exam. Among the particularly depressing facts is that first-time African American takers from ABA-approved law schools had a pass rate of only 42%. When we look at first-time takers from ABA-approved schools located in California (who often do better than takers from ABA-approved schools in other states), Latina/o takers suffered a big decline this year; whereas White and Asian first-time California ABA-school takers saw their pass rates drop about 5% as compared to 2013, Latina/o takers saw their pass rate drop over 10%, to just 59.5%. At least four well-established California schools--UC Hastings, University of San Francisco, Santa Clara and Southwestern--experienced first-time pass rates (of 68%, 61%, 60% and 54%, respectively) that were the lowest in 18 or more years. (The data I had went back only to 1997, so this year's performance might well be the worst in more than 20 years for these schools.)

And there does seem to be a correlation between declines at the 25th percentile LSAT score and lower bar pass rates among the California schools this year. Eleven schools saw their 25th percentile LSAT score drop between the class that entered in 2010 and the class that entered in 2011, and 9 of these schools saw their bar pass rates also drop. (One of the schools that saw its 25th percentile LSAT score go down but whose bar pass rate did not decline was USC, and its 25th percentile LSAT remained quite high-above 160-for the class entering in 2011.) The California school that saw the sharpest drop at the 25th percentile LSAT score in fall of 2011, UC Hastings, suffered, as I noted above, its worst bar pass rate in decades. And among the three schools in California whose 25th percentile LSAT scores increased in fall 2011 compared to the year before, two of those schools (UC Davis and UC Berkeley-both of whose 25th percentile LSATs were above 160 in 2011) saw their bar pass rates increase a bit (UC Davis from 85% in 2013 to 86% in 2014, and UC Berkeley from 85% in 2013 to 88% this year.) Only four schools statewide saw bar pass rates increase at all, and Berkeley's increase of 3% was the largest.

Obviously, as mentioned earlier, much more than a school's 25th percentile or median LSAT score goes into its bar pass rate, and year-to-year variations in bar passage are unavoidable at each school, even if student academic quality remains constantly high. There is likely no single factor that explains all of this year's bar performance decline. But Ms. Moeser's suggestion that we delve deeply into the admissions and academic support functions of law schools if we want to raise pass rates (as long as we have to live with a questionable device like the bar exam) is well worth heeding. And incoming admissions numbers do not bode well for bar pass rates for the next few years. In California, for example, the four schools I mentioned whose bar pass rates are at twenty-first century lows (UC Hastings, University of San Francisco, Santa Clara, and Southwestern) all have seen significant slippage at the 25th percentile in the last three years since the fall of 2011. And nationally, the number of schools whose 25th percentile LSAT score is below the national median score (i.e., 151 or below) grew again in the fall of 2012 (from 71 to 80), and yet again in the fall of 2013 (from 80 to 90), and likely grew again in 2014. Unless bar examiners across the country lower the threshold for passage (which in most states they insist they never do), or unless law schools find some new, highly effective academic success tools to help students do better on the bar--and find them very quickly--I fear that the difficult news about bar pass rates we experienced this fall will recur each year for the foreseeable future.

December 19, 2014

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 16, No. 6

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Social Responsibility in India" 
The Conference Board Director Notes No. DN-V6N14 (August 2014)
UC Davis Legal Studies Research Paper No. 399

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu
SHRUTI RANA, University of Maryland
Email: shrutirana@yahoo.com

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India's emerging CSR regime and its potential strengths and weaknesses.

"The Advent of the LLP in India" 
Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman and Mark J. Loewenstein eds.) (Edward Elgar Publishing, 2015, Forthcoming)
UC Davis Legal Studies Research Paper No. 408

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2008, India passed a ground-breaking law to introduce the Limited Liability Partnership form into Indian business law. The Indian LLP Act was the first major introduction of a new business form in India in over 50 years. While the partnership and corporate forms (i.e. companies under the Indian Companies Act) have long flourished in India, both forms have presented challenges for certain Indian businesses. The Indian government's impetus for the LLP Act was to develop a business association form that could better meet the needs of entrepreneurs and professionals with respect to liability exposure, regulatory compliance costs and growth. This chapter begins with a broad overview of the political and legislative process which led to the adoption of the LLP Act. It then addresses the critical aspects of the Indian LLP Act, and analyzes some of the challenges and uncertainties that may derail the success of the LLP form.

"Reed v. Town of Gilbert: Signs of (Dis)Content?" 
NYU Journal of Law & Liberty, Forthcoming
UC Davis Legal Studies Research Paper No. 403

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert's sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit's resistance to finding Gilbert's ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine - that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn't legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

"Brand New World: Distinguishing Oneself in the Global Flow" 
UC Davis Law Review, Vol. 27, No. 2, December 2013
UC Davis Legal Studies Research Paper No. 410

MARIO BIAGIOLI, University of California, Davis - School of Law
Email: mbiagioli@ucdavis.edu
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law's simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" 
Boston University Law Review, Vol. 94, No. 5, 2014
UC Davis Legal Studies Research Paper No. 411

GABRIEL J. CHIN, University of California, Davis - School of Law
Email: gjackchin@gmail.com

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to "preclear" changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution's Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing - as well as from what little the Court has said - that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"Wills Law on the Ground" 
UCLA Law Review, Vol. 62, 2015 Forthcoming
UC Davis Legal Studies Research Paper No. 404

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents' preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

"Can Human Embryonic Stem Cell Research Escape its Troubled History?" 
44 Hastings Center Report 7 (Nov.-Dec. 2014)
UC Davis Legal Studies Research Paper No. 409

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0" 
UC Davis Legal Studies Research Paper No. 401

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.

However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party's misconduct is admissible only if it has a "legitimate tendency" to establish the accused's innocence. Today most jurisdictions follow a version of the "direct link" test. Under this test, standing alone evidence of a third party's motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party's conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party's perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).

However, a new version of the SODDI defense has emerged - SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party's guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused's constitutional right to present a defense by curtailing the accused's efforts to develop the defense at trial.

The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party's misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports' effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the defense relies on the 2.0 version of the defense, the prosecution cannot invoke the character evidence prohibition to bar testimony that the third party has committed offenses similar to the charged crime. The prohibition applies only when the ultimate inference of the proponent's chain of reasoning is that the person engaged in conduct consistent with his or her character trait. In this setting, the prohibition is inapplicable because the ultimate inference is the state of mind of the investigating officers.

Since the restrictions on the new version of the SODDI defense are much laxer than those on the traditional defense, the advent of this defense is also controversial. Are the inferences from the 2.0 version of the defense so speculative that as a matter of law, the defense is incapable of generating reasonable doubt? Moreover, is it wrong-minded to recognize a version of the defense with such minimal requirements when the prevailing view is that traditional version is subject to much more rigorous requirements?

This article addresses those questions and concludes that it is legitimate to recognize the SODDI defense 2.0. In the past few decades, there has been a growing realization of the incidence of wrongful convictions. In the late Johnny Cochran's words, some of those convictions were a product of a "rush to judgment" by the police. The recognition of the SODDI defense 2.0 will provide a significant disincentive to such premature judgments by police investigators.

"Should Arrestee DNA Databases Extend to Misdemeanors?" 
Recent Advances in DNA & Gene Sequences, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 406

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

"Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder" 
University of Michigan Journal of Law Reform, Forthcoming
UC Davis Legal Studies Research Paper No. 402

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This paper is an invited contribution to an immigration symposium in the Michigan Journal of Law Reform.

In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an "aggravated felony" under the U.S. immigration laws.

Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe's arrest is a textbook example of racial profiling.

This Article considers the implications of the facts and circumstances surrounding the stop, arrest, and drug crimination of Adrian Moncrieffe for the racially disparate enforcement of the modern U.S. immigration laws. As we shall see, Latina/os, as well as other racial minorities, find themselves in the crosshairs of both the modern criminal justice and immigration removal systems.

Part II of the Article provides details from the police report of the stop and arrest that led to Adrian Moncrieffe's criminal conviction. The initial stop for a minor traffic infraction is highly suggestive of a pretextual traffic stop of two Black men on account of their race. Wholly ignoring the racial tinges to the criminal conviction, the U.S. Supreme Court only considered the conviction's immigration removal consequences - and specifically the Board of Immigration Appeals' interpretation of the federal immigration statute, not the lawfulness of the original traffic stop and subsequent search.

The police report describes what appears to be a routine traffic stop by a police officer who, while apparently trolling the interstate for drug arrests in the guise of "monitoring traffic." The officer stopped a vehicle with two Black men - "two B/M's," as the officer wrote - based on the tinting of the automobile windows. Even if the stop and subsequent search did not run afoul of the Fourth Amendment, Moncrieffe appears to have been the victim of racial profiling. A police officer, aided by a drug sniffing dog, in drug interdiction efforts relied on a minor vehicle infraction as the pretext to stop two Black men traveling on the interstate in a sports utility vehicle with tinted windows.

The Moncrieffe case exemplifies how a racially disparate criminal justice system exacerbates racially disparate removals in a time of record-setting deportations of noncitizens. Although he was fortunate enough to stave off deportation and separation from an entire life built in the United States, many lawful permanent residents are not nearly so lucky.

"Social Innovation" 
Washington University Law Review, Vol. 92, No. 1, 2014
UC Davis Legal Studies Research Paper No. 407

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

"Brief of Interested Law Professors as Amici Curiae Supporting Respondent in Direct Marketing Association v. Brohl" 
Stanford Public Law Working Paper No. 2516159
San Diego Legal Studies Paper No. 14-71
UC Davis Legal Studies Research Paper No. 400
UC Berkeley Public Law Research Paper No. 2516159
UCLA School of Law Research Paper No. 14-19

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
ANDREW J. HAILE, Elon University School of Law
Email: ahaile@brookspierce.com
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

The petitioner in this case has framed the question presented as follows: "Whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration."

Amici agree with the respondent, the State of Colorado, that the Tax Injunction Act bars federal courts from enjoining the operation of the Colorado Statute at issue in this case because this lawsuit is intended to create the very kind of premature federal court interference with the operation of the Colorado use tax collection system that the TIA was designed to prevent. To assist the Court in understanding the application of the TIA to this case, amici (i) place the reporting requirements mandated by the Colorado Statute in the broader context of tax administration and (ii) explain the potential interaction between a decision on the TIA issue in this case and the underlying dispute concerning the dormant Commerce Clause.

Third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici law professors contend that the centrality of third-party reporting to tax administration in general, and its aptness for this problem in particular, indicate that enjoining the operation of the Colorado Statute constitutes "restrain[ing] the assessment, levy or collection" of Colorado's use tax.

Amici also observe, however, that even a narrow ruling on the scope of the TIA in the Supreme Court could have an unexpected - and we would argue undesirable - impact on the federalism concerns that we think should decide this case. This is because any interpretation of the Colorado Statute for purposes of the TIA made by the Court might be erroneously construed as carrying over to interpreting the Statute for purposes of the dormant Commerce Clause.

We think it likely and reasonable for the courts below to look to the Supreme Court's decision on the TIA for guidance as to what test to apply under the dormant Commerce Clause. However, amici fear that a decision that held that Colorado's reporting requirement is integral to Colorado's "tax collection" for purposes of the TIA will exert a gravitational pull on the lower courts, encouraging them to apply the physical presence test from Quill Corp. v. North Dakota, 504 U.S. 298 (1992) to the Colorado Statute. The Quill test is an especially strict test under the dormant Commerce Clause, and one arguably meant only for "taxes." Thus, a victory for sensible state tax administration and federalism in this Court could be transmuted into a defeat for those principles below. Amici believe that NFIB v. Sebelius, 132 S. Ct. 2566 (2012), teaches that an answer on the TIA does not compel an answer concerning the dormant Commerce Clause. We call this issue to the Court's attention so that the Court is aware of how a decision on the TIA issue might be used - or misused - when the case reaches the merits, either in the state or federal court system.

"Non-Citizen Nationals: Neither Aliens Nor Citizens" 
UC Davis Legal Studies Research Paper No. 405

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory.

This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people's membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment's Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.

December 19, 2014

The Year in Constitutional Review: Our Top 5 Constitutional Developments of 2014 (And None of Them Is a Supreme Court Decision!)

Co-authored with Professor Alan Brownstein. Cross-posted from Justia's Verdict.

As 2014 draws to a close, we thought it appropriate to reflect on some of the most significant constitutional developments of the past year. Recognizing that any short-list requires difficult choices, we present our catalog of five noteworthy constitutional events or trends (in no specific order) below. Most interestingly, none of the five involves a particular 2014 ruling from the Supreme Court; instead, the list shows that other institutional actors (sometimes feeding off what the Court has done in the past and often acting completely independently from the Court) are crucial in giving meaning to the Constitution.

#1. President Obama's Announcement of Immigration Enforcement (or non-Enforcement) Priorities

One of the biggest constitutional changes over the last century has surely been the rise in power and prominence of the presidency. The President and his executive branch have grown in influence and stature for a number of reasons. One is the modern need (in a world of increasing economic complexity and international linkages) for the federal government to make decisions quickly, decisively, and based on specialized expertise (as in the Great Depression) and sometimes making use of information that cannot be made fully public (as in the War on Terror). Another is the fact that, although the electoral college is still part of our constitutional fabric, we have moved in the direction of popular election of the President, such that he garners far more votes nationwide than does any other elected official, and thus has a special claim to national electoral legitimacy-unlike that of even the Speaker of the House and the Senate Majority leader, the two elected leaders of Congress.

Many people embrace broadened Presidential authority, and many lament it. Some folks seem to have evolved in this regard. An example of such evolution might be Chief Justice John Roberts, who seemed to advocate for broad executive powers as a young government lawyer but who has recently bemoaned the fact that "the Framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities." But love it or hate it, broad executive discretion about whether and how to enforce laws is part of the federal constitutional landscape. And President Obama's recent announcement removing the threat of deportation for four million or so persons who entered or stayed in the United States in violation of immigration laws is a good example. Drawing on his key role in foreign affairs and law enforcement, and reminding the American people that he was reelected in part to manage the immigration problem (thus playing on both the reasons for presidential ascension mentioned above), Mr. Obama laid out his plans for how best to implement immigration laws in the near term. His announcement was a reminder of how, in the normal run of things, the President makes a lot of important decisions over which the Supreme Court may never have a say. (There have been lawsuits filed that test the President's actions here, and lower court judges are likely to express a range of opinions on the matter, but it remains unclear how the lower federal courts will ultimately adjudicate this issue and whether the Supreme Court will wade into this thicket.)

#2. The Events in Ferguson and NYC Regarding Police Actions Toward African American Men

A second set of events, involving local government rather than the federal government, raises important normative questions about race relations in the United States and public policy questions about the best way both to avoid these tragedies and to deal with them when they occur. We speak here, of course, of recent events in Ferguson, Missouri, and in New York City involving the killing of unarmed African Americans by police officers and the failure of grand juries to indict the officers involved. These police actions and grand jury decisions, like President Obama's immigration announcement, remind us of how powerful a device executive discretion is within our constitutional system.

But these episodes also remind us of another important constitutional theme. The 14th Amendment proclaims that "No State shall . . . deny to any person the equal protection of the laws." Surely, this provision requires the equal treatment of black and white Americans in the criminal justice system. If the equal protection of the laws means anything, it must mean that the use of force by police officers against persons alleged to violate the law cannot vary depending on the race of the perpetrator. Similarly, equal protection must require that prosecutors and grand juries ignore the race of both the police officer and the victim of the officer's conduct in determining whether the officer's use of force has violated the law.

Yet the Ferguson and New York City events reveal how little bite this constitutional guarantee has when the law gives government actors substantial, unguided discretion in performing their duties. Police officers have considerable discretion in determining whether and how much force should be used in the performance of their duties. Prosecutors have enormous discretion in deciding whether or not to bring charges to a grand jury and in determining how they will conduct the grand jury proceeding. Grand juries also have tremendous discretion. They can decide to indict a "ham sandwich," as the saying goes, or they can decide not to indict a police officer who has choked someone to death.

Because, in circumstances involving official discretion, it is often very difficult to determine the extent to which race influenced state action, the constitutional guarantee of equal protection has little ability to control such decision making. Perhaps the Constitution's primary and most effective role in these events is protecting the rights of individuals and groups to protest what they see as unsanctioned violations of the equal protection of the laws.

#3. Same-Sex Marriage in the Lower Courts

Equality was a theme not just in the Ferguson and New York controversies, but also in the treatment of same-sex marriage by the lower courts this year. Last year, in United States v. Windsor, the Supreme Court teed up but did not resolve the question of whether states were prohibited by the Fourteenth Amendment from treating same-sex marriages differently from opposite-sex marriages. And the lower federal courts have taken up that question in earnest ever since. Until the Sixth Circuit's decision to uphold same-sex marriage bans in four states this fall broke the momentum, same-sex marriage advocates had achieved an overwhelming number of lower court victories; four U.S. Courts of Appeals and over twenty federal district courts had struck down state laws discriminating against same-sex marriage. Indeed, until the Sixth Circuit's ruling by a divided three-judge panel in November, many commentators had concluded that the Supreme Court would not even take a marriage equality case anytime soon because the issue had essentially been resolved by the lower courts. Many of the lower court rulings took their cue from Windsor, of course, and now that the Sixth Circuit has created a split the Supreme Court will likely weigh in relatively soon-so no one is arguing the Supreme Court is irrelevant in this debate-but lower courts have definitely framed the issue and developed competing arguments in a way that makes it much harder for the Supreme Court to reject the right of same-sex couples to marry. For the marital equality movement, 2014 was the year of the lower courts.

# 4. Abortion Rights

The past year saw states continuing the recent trend of adopting and defending significant regulations of abortion services and access. The regulations vary in their content. Several states have enacted statutes (some of which are subject to lower court injunctions) that ban an abortion 20 weeks after fertilization occurs or at an even earlier time during the gestation period. Other regulations restrict the provision of medication used to induce an abortion. Other laws, responding to the new health care framework created by the Affordable Care Act, prohibit insurance offered through the Act's exchanges from covering abortions. Yet other laws regulate clinics that provide abortion services by requiring them to comply with the building, equipment, and staffing standards applicable to an ambulatory surgical center or a hospital. They also require physicians performing abortions to have admitting privileges at a local hospital. The lower courts are continually reviewing the constitutionality of many of these regulations, but it is (aggressive) state legislatures that are driving this issue right now.

Certainly, the need for greater clarity in this area of the law is obvious. Under the doctrine initially evolving from Roe v. Wade, the Court applied strict scrutiny review to pre-viability abortion regulations that ostensibly furthered some important state interest, such as promoting the health of the mother, but also increased the cost of abortions or otherwise limited access to providers. Under this rigorous standard of review, a state had to demonstrate that its regulations furthered a compelling state interest and that the state adopted the least restrictive means to further its objectives. This two- pronged approach required courts to balance the effectiveness of a state's regulations against the burden the law imposed on the right to have an abortion.

In Planned Parenthood v. Casey, however, the Court collapsed the two-pronged approach used in prior cases and adopted a unitary standard. All pre-viability abortion regulations are now constitutionally permissible as long as they do not have "the purpose or effect of imposing an undue burden on women seeking abortion." This standard focuses on the magnitude of the burden, the percentage of women seeking abortions who will experience that burden, and whether the regulation serves some purpose other than the goal of inhibiting access to abortion services. The Court's application of this standard to various regulations in the Casey case itself has mystified both constitutional law scholars and lower courts. The number and highly restrictive nature of new abortion regulations may require Supreme Court intervention and clarification of this standard in the near future.

#5. The 2014 Congressional Election

Although we have highlighted the way institutions other than the Supreme Court (e.g., the President, local governments, lower courts, state legislatures) have helped shape the meaning of the Constitution in 2014, we would never deny the centrality of the Court itself in constitutional interpretation. And yet we must remember that the Court is not a static institution, but rather one whose membership and decisions change over time. So our final candidate for important constitutional developments of the year is the congressional election in November that saw the Republicans gain solid control of the U.S. Senate. Because replacing departing Justices with new members is the single most important way the Constitution has been kept responsive to the values of the people, decisions by the American electorate about who shall be the President (and nominate new members to the Court) and who shall control the Senate (and decide whether to confirm presidential nominations) are quintessentially important constitutional events. Regardless of whether a Democrat or Republican wins the White House in 2016, Republican control of the Senate for the foreseeable future is likely to influence the kind of persons appointed to the (closely divided) Court in the coming years, which in turn is likely to affect how the Court rules in many controversial constitutional areas. It is fitting, even as it is sometimes overlooked, that We the People remain the most important institutional actors in giving content to our basic government charter.

December 10, 2014

Argument preview: When does a difference in tax treatment amount to a proscribed discrimination?

By Professor Darien Shanske, UC Davis School of Law. Cross-posted from SCOTUSblog.

On Alabama Department of Revenue v. CSX Transportation, Inc. 

This case is about Section 11501(b)(4) of the Railroad Revitalization and Regulatory Reform Act of 1976 (the "4-R Act"), which prohibits a state from "impos[ing] another tax that discriminates against a rail carrier." Wait, where are you going? This case, which has already been before the Supreme Court once, not only involves interesting questions of statutory interpretation, but also implicates fundamental questions about the meaning of "discrimination" in the tax context (and beyond). Indeed, the resolution of the case may require the Court to appeal to deep structural principles beyond tax. Both sides have reasonable arguments based on the text of the statute, legislative history, and policy. Thus the resolution of the case may turn on whether or not federalism concerns indicate that there should be a thumb on the scale in favor of a narrower construction of a statute that preempts state authority.

Put roughly, here are the facts. Alabama charges sales tax on the fuel purchases of railroads; it does not charge the sales tax on the fuel purchases of motor carriers - such as trucks. Because a federal statute bars discrimination against railroads, the railroad CSX Transportation, the respondent in this case, argues that the Alabama sales tax violates the 4-R Act. Not so fast, says Alabama, the petitioner in this case: Motor carriers pay a separate excise tax on their purchases of fuel, a tax that rail carriers do not pay. Surely, counters Alabama, when Congress prohibited "discrimination" it expected courts to be able to look at more than one section of a state tax code.

The provision in the 4-R Act at issue in this case is short and broad, barring "another tax that discriminates." CSX argues that this breadth is what Congress intended, while Alabama argues that Congress intended that the provision's meaning be filled out - and limited - by reference to earlier provisions of the Act and more general state and local tax jurisprudence.

The two questions before the Court are as follows:

1) When the statute forbids "discrimination," to which comparison class should the lower courts look? Should the Court read in a comparison class from the immediately preceding subsections of the 4-R Act, or did Congress specifically not wish to include that limitation?

2) If a court finds facial discrimination, can a state defend it by pointing to the operation of its larger tax system? The statute does not specify that such a justification could be availing. On the other hand, it would seem like there could not be a discrimination if the difference in treatment were justified.

Let's return to the facts. Alabama imposes a general sales and use tax which is based on the value of the item purchased. When railroads purchase diesel fuel, they must pay the tax. However, two competing businesses are exempt from paying the same sales tax on their purchase of diesel fuel: - motor carriers and interstate water carriers (that is, ships). The motor carriers pay a different tax, a per-gallon excise tax on their purchase of diesel fuels. The water carriers do not pay the excise tax; they have been exempt from the sales tax since 1959 because the state believed that the dormant Commerce Clause prevented it from imposing the tax.

The procedural history of this case indicates its difficulty. During its first trip up to the Supreme Court, the district court dismissed CSX's complaint; the Eleventh Circuit affirmed on the ground that subsection 11501(b)(4) of the Act cannot be used to challenge a sales tax "exemption" (as compared with a property tax exemption, which the Court had already held cannot be challenged under the Act).

The Supreme Court rejected that argument, held that a sales tax exemption could result in a prohibited discrimination, and remanded the case to the lower courts. Justices Clarence Thomas and Ruth Bader Ginsburg dissented from that disposition, on the ground that Alabama's scheme clearly did not violate the Act. These two Justices argued that there must be a comparison class implicit to subsection 11501(b)(4). They found that the relevant class was the comparison class established for property tax discrimination purposes in the immediately preceding subsections of the Act - namely, "commercial and industrial taxpayers."

On remand, CSX lost before the district court and won before a divided panel of the Eleventh Circuit.  Both the district court and the Eleventh Circuit found that the appropriate class to which to compare CSX was other competitors, rather than the broader class of commercial and business entities. That competitors constitute the appropriate comparison class is the position currently advanced by CSX before the Court. The district court, however, went on to find that the Alabama sales tax exemption for motor fuel did not amount to discrimination because of the complementary fuel excise tax. It found that, in fact, the charge paid by motor carriers was generally higher than that faced by railroads. As for water carriers, the district court found no discrimination because, among other reasons, the railroads had not shown that the water carriers were truly competitors.

The Eleventh Circuit reversed. Specifically, it held that Alabama could not justify its facial discrimination through the sales tax by appealing to the motor fuel excise tax. The court of appeals held that the statute does not indicate that courts should assess the treatment of railroads by looking at the tax system as a whole, and with good reason, because such an inquiry would amount to a "Sisyphean burden." The dissent countered that the there is no giant rock for courts to deal with, as a court need only compare the tax treatment of one industry to that of its competitors as to one tax.

Before the Court in this case, CSX and its amici defend and elaborate upon the opinion of the Eleventh Circuit.   Congress could have defined discrimination in subsection (b)(4) as relative to a specific class, as it did in the earlier provisions of the same statute, but it did not. Therefore, this kind of discrimination vis-à-vis competitors should be held to violate the statute. Furthermore, because one of the rationales of the 4-R Act was to protect the fiscal integrity of railroads, interpreting this provision in a way that protects the railroads from a tax provision that benefits their primary competition is consistent with the purpose of the Act.

The state counters that the correct comparison class is to commercial and industrial entities, as Justice Thomas had argued. This interpretation is also consonant with the purpose of the statute, as it protects railroads, as interstate entities, from being treated less well than the average in-state business entity. (Note that if a majority of the Court agrees with Alabama (and Justices Thomas and Ginsburg) on this question of comparison class, then the Court need not reach the second question as to the scope of the discrimination analysis.)

As to the scope of the discrimination analysis, Alabama argues that it does not make sense for courts to find a tax discriminatory without looking at the broader tax system - if there is an offsetting charge, then where is the discrimination? Furthermore, in the context of the dormant Commerce Clause, the Court has long accepted the possibility that the existence of a complementary tax could justify a seeming instance of discrimination. Not only does the complementary tax doctrine demonstrate the correct analysis of the concept of discrimination, but this doctrine was well established when the 4-R Act was passed and therefore Congress should be presumed to have assumed it would be applied.

CSX and its amici - including Walter Hellerstein, the leading state and local tax scholar, who is counsel of record for the Tax Foundation - strongly object to the importation of the complementary tax doctrine into the 4-R Act. First, the Act does not provide an opportunity for a state to justify its discrimination. Second, the Eleventh Circuit was correct that evaluating such a justification would be Sisyphean. In this case, for instance, because the two taxes are levied on different tax bases - the volume of fuel versus the price of fuel - the analysis would need to be updated regularly. Worse, other states have different sets of taxes and exemptions. Furthermore, if there is to be a more holistic analysis, why limit the analysis to a comparison of the sales and excise taxes? Railroads also pay more in property taxes and maintain their own rights of way, while motor carriers enjoy rights of way paid for by their motor fuel excise taxes as well as other taxes. Indeed, if the goal is to treat tax systems realistically, should courts not also consider which entity bears the true economic burden of a tax - that is, its incidence?  Yet tax incidence analysis is a shifting and tentative endeavor, even for trained economists.

Interestingly, the United States, in an amicus brief filed in support of neither party, proposes a Solomonic quasi-resolution of this case. The United States agrees with CSX that the proper comparison class is other competitors. However, the United States agrees with Alabama that the broader tax system should be taken into account, at least to the extent of considering whether the excise tax justifies the discriminatory application of the sales tax. Because the Eleventh Circuit eschewed this task as Sisyphean, the United States argues that the Court should remand the case to the Eleventh Circuit to give the task a try.

It would seem likely that the Court, as in the first go-round for this case, will try to resolve the questions here narrowly, grounding its answer in the text of the statute, such as it is. Nevertheless, given the import of the notion of "tax discrimination" to other federal statutes and to the dormant Commerce Clause in general, even a narrow answer could well have broader implications.