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March 2, 2015

How Prospective Law Students Can Make Better Use of the U.S. News Law School Rankings That Are About to Be Released

Co-authored with Dean Kevin R. Johnson. Cross-posted from Justia's Verdict.

Over the next month or two, tens of thousands of admitted applicants will make decisions about which law schools to attend. One tool that many will no doubt use to guide their decisions is the annual U.S. News & World Report rankings, which will be released in a little over a week. Many analysts criticize the methodology (or various aspects of it) that U.S. News employs to rate law schools (and some folks doubt whether all the nation's law schools could ever be meaningfully graded according to any single set of criteria.) But, for the time being at least, U.S. News remains the most looked-at, and seemingly influential, ranking system out there. For that reason, in the space below we offer-based on our collective experience in both evaluating other law schools and having our own law school evaluated-five pieces of advice for making the most sophisticated use of the rankings that U.S. News is poised to unveil.

#1: The Importance of Trends: Remember That Each Year's Rankings Capture a Snapshot in Time

The rankings that are set for release on March 10 present a great deal of raw and processed information, but they data they contain-and the bottom-line rankings they assign-represent only a snapshot in time. Any sensible consumer of the rankings should look not just at one year's result, but at a longer track record, perhaps attaching more weight to a five-year average rather than to any single year's numbers.

To be sure, sometimes there is, as to a particular law school or type of law school, a clear trend line-in particular components within the ranking or as to the bottom-line performance - and it may be important to try to discern what accounts for any such consistent assent or decline. More commonly, a school may bounce around somewhat because of short-term factors, such as a bad year in passing the bar and/or placing graduates in jobs, or an anomalous drop in application volume or quality due to some administrative gaffe or regional downturn. Such volatility is itself a basis on which the U.S. News rankings are often criticized-how much could a school's overall quality really change within the space of a year?-but taking a somewhat longer view may partially address that criticism and make the bottom-line ratings more meaningful.

In looking at changes over time, it is important to realize that certain parts of the U.S. News evaluations very rarely move much from year to year. This would include a school's reputation rank among other law professors who are surveyed (which accounts for 25% of a school's overall ranking) and its reputation rank among lawyers and judges who are polled (which accounts for 15% of the overall result). The relative quality (compared to other schools) of a school's student body-as judged by median LSAT scores, college GPAs, and the school's acceptance rate-also has tended, as an historical matter, not to change tremendously in a single year (but rather evolves much more gradually), but this factor has itself become a bit more volatile in recent years as the national decline in application volume has hit some schools harder than others. Other factors, such as the percentage of graduates who are placed in law-related jobs at or nine or ten months after graduation, bar pass rates, and dollars-per-student spent by a school (more on that later), have tended to fluctuate much more, and thus may account more for the year-to-year changes in bottom-line rankings.

One might argue that the parts of the U.S. News survey that are more stable are more reliable and thus should be taken more seriously than the overall rankings. There is something to that, but even these stable components have been open to significant criticism. The response rate by lawyers and judges who are polled has often been quite low, and the integer-based scale (ranging from 1 to 5) on which law professors, lawyers and judges are asked to place schools is not sufficiently finely grained for people to draw the kind of nuanced distinctions that the U.S. News rankings purport to depict overall. Moreover, it may be that larger law schools, with more graduates, may have an easier time making a positive impression on judges and lawyers, simply because members of the bench and bar may be more likely to encounter recent alums of schools that pump out more graduates. (There are other, smaller aspects of the U.S. News methodology-such as student-faculty ratios-that might tend to inadequately reward economies of scale and thus favor small schools.)

#2 The U.S. News Data Is Necessarily Limited in Scope

In addition to being limited in time, the data that U.S. News employs and presents every year is limited in scope. Among the data that it ignores is how diverse a law school's faculty or student body is. We have argued (in an earlier series of online columns) that this information concerning racial/ethnic (and perhaps other kinds) of diversity ought to be incorporated into the rankings. Most law school faculty and administrators around the country believe that diversity within a school is a helpful plus in a world where graduates are going to encounter and serve clients of various different backgrounds. Yet U.S. News has declined to include a diversity component in its overall scoring (although it separately presents raw data as to racial diversity). As we have explained before, the main reason U.S. News has offered for not including diversity-that some schools are located in places where diversity is harder to accomplish-simply doesn't wash. Some schools are located in places where there are fewer high-LSAT performers in the community, yet we still include median LSAT as a rankings input because we think a law school student body's LSAT performance is a relevant characteristic. If, as the Supreme Court has held and as most people in academia believe, a diverse school is pedagogically better than a less diverse school, all other things being equal, then we should develop a way to have diversity count for at least something when we evaluate and rate schools. In the meantime, prospective students can find helpful data on each school at the ABA "Standard 509" website.

#3. Distributions Within Each Law School Student Body

While we are talking about the makeup of the student body of each law school (which many prospective students would find an important factor since law students often learn from, and are judged by the outside world by, the company they keep), we should point out that the data that U.S. News weighs most heavily-median LSATs and GPAs-while relevant to an assessment of student-body academic strength, itself can mask important differences within each student body. Two law schools may have similar medians, but they may have very different LSAT scores and GPAs at the 75th and 25th percentiles within their student bodies. Let us compare, for example, using 2014 data, Northwestern and Cornell, both excellent law schools with undeniably strong student bodies. Northwestern's LSAT median was a 168, and its median college GPA was a 3.75. Cornell's were a bit lower on both-a 167 and a 3.68. But Cornell's 25th percentile LSAT and GPA were somewhat higher than Northwestern's (166/3.55 compared to 162/3.53). How could the school with higher medians have lower numbers at the 25th percentile? There could be a number of possible explanations. Northwestern may prefer applicants who have either a very high LSAT or a very high GPA (sometimes known as "splitters"), whereas Cornell may prefer people who were reasonably (but not quite as) high on both metrics. Perhaps Northwestern's 25th percentile LSAT is lower because it has enrolled more students who have been out of college for a longer period of time, in which case LSAT scores may be less important than real-world accomplishment. Or maybe some different reason altogether.

We are not suggesting here that having medians that diverge from a school's 25th percentile numbers is inherently problematic (although it might be problematic for law schools that, unlike Cornell and Northwestern, have many low LSAT performers and that may have low bar pass rates); instead, we are simply saying that when an applicant is looking at the student bodies of schools in which s/he is interested, it may make sense to look at more than medians. We note, in this regard, that the ABA "Standard 509 Report" website has a good tool that enables users to search and compare law schools along these axes.

We should add that if critics believe that U.S. News creates a perverse incentive for schools to admit "splitters" (perverse in the sense that pedagogical considerations would otherwise incline these schools to admit folks who present reasonably strong LSAT scores and GPAs instead), there might be ways to tweak the U.S. News student-quality formula, but any such changes could create other incentives or disincentives about which other observers might complain.

#4. Looking Behind the Employment Numbers

Two final observations warrant mention. First, one of the most volatile-and thus influential as to many schools' rankings in a given year-factors in U.S. News is the percentage of graduates who have a full-time, long-term, law-related job ten months after graduation. Certainly a school's ability to help place its graduates is an important factor in any decision about where to attend law school. But note, importantly, that the percentage employed in full-time, long-term, law-related jobs does not by itself convey any information about the particular type of jobs a school's graduates are getting. U.S. News does not present or make use of salary data (although it did decades ago); it does not break jobs down by geography; as of last year it did not even tell consumers how many jobs are funded by the graduate's law school or home university. We should add that some law school- or university-funded jobs are quite meaningful and reasonably paid, whereas others are less so. In any event, here too, the ABA provides much more finely grained data on job type and salary; applicants should consult the web page on which the ABA collects and presents the employment surveys for all ABA-approved schools.

#5. Follow (or at Least Examine) the Money

Finally, speaking of money, we should point out that there is one factor in U.S. News as to which the underlying data and the use to which U.S. News puts it are harder to see and thus harder to analyze, and that is the so-called "faculty resources" component that looks at "average fiscal expenditures per student for instruction, library and supporting services." This inscrutable factor accounts for about 10% of a school's overall score and often determines where a school lands within a bunched-up grouping. For example, if one looked at all the other major U.S. News components-peer academic assessment, lawyer/judges assessment, median LSATs/GPAs, acceptance rates, placement rates, bar pass rates, student-faculty ratio, etc.-Yale should be tied with, or even slightly behind Harvard. And yet Yale consistently beats Harvard for the top spot in the rankings by a non-trivial margin; last year it was four overall score points out of a possible 100. And this difference seems likely accounted for by the fact that Yale spends more-although precisely how much more is hard to know-per student than any other school by a significant margin.

Now four points out of 100 in the U.S. News overall score may not seem like a lot, but given how bunched up schools are, four points can be a big deal. (Yale's four-point lead over Harvard last year was four times larger than Harvard's lead over #3 Stanford, and four points farther down the scale was all that separated #29 from #42.) And Yale's perch atop U.S. News every single year for over two decades likely accounts for its qualitatively better yield among admitted applicants than that of any other law school, thus enabling Yale essentially to have first choice among the applicant pool. (Yale these days admits only around 250 people to get 200 to attend, generating a yield of about 80%, compared to Harvard's yield of about 60%, which itself is much higher than the yields of almost all other top law schools.)

To say that expenditures-per-student can have these important consequences on a school's ranking and its yield is not to imply that this spending criterion is illegitimate. But one cannot help wondering: if the additional spending-per-student isn't elevating placement rates or lowering student-faculty ratios, or allowing a school to obtain a faculty that is seen by other law professors as superior to that of other schools (and all of these are already measured directly and counted by the ranking system), precisely why should the money matter so much? The U.S. News methodology may result in double-counting of many considerations, but dollars spent may be a particularly problematic example. Yet there may be responses: perhaps Yale's resources don't increase its placement rate, but affect the kinds of jobs its graduates are able to obtain. For example, maybe its resources allow more students to undertake their own original research, which leads to more jobs in the academy. And so forth. Again, as with most other features of the U.S. News rankings that we've discussed above, our goal here is not so much to provide definitive answers as to cause students to think a bit more critically as they consume the bottom-line ordinal rankings for which U.S. News is best known.

February 24, 2015

Argument analysis: Review of consular visa decisions for the twenty-first century

Cross-posted from SCOTUSblog.

Yesterday, the Supreme Court heard oral arguments in the much-anticipated immigration case of Kerry v. Din. In that case, the U.S. government - in the face of strong academic commentary to the contrary - steadfastly defends the doctrine of consular non-reviewability and its bar to the judicial review of visa decisions of Department of State consular officers.

A consular officer had denied the visa application of Kaniska Berashk, a citizen of Afghanistan and the spouse of Fauzia Din, a U.S. citizen. The consular officer's denial merely cited the broad definition of terrorist activities in the immigration statute. Din sought judicial review of her husband's visa denial. The U.S. Court of Appeals for the Ninth Circuit allowed her that review and found that the consular officer's explanation of the visa denial was insufficient.

Office of the Solicitor General veteran Ed Kneedler argued the case for the United States. Relying heavily on much-criticized Cold War cases of Knauff v. Shaughnessy and Shaughnessy v. United States ex rel. Mezei and frequently invoking the need to protect the national security, Kneedler argued that the U.S. government has the undisputed power to exclude aliens from the United States and that "[o]ur position is that there is no judicial review" in the case of the denials of immigrant visas by consular officers. Kneedler later elaborated: "This Court has said on a number of cases that when it comes to the exclusion of aliens, whatever process Congress provides is the process is due." At one point in the argument, Justice Ruth Bader Ginsburg pressed Kneedler into conceding that the U.S. government's position was that there is no exception to the consular non-reviewability doctrine. Jarred by the government's absolutist approach, Justice Stephen Breyer asked whether a consular official could, for example, deny a visa for racially discriminatory reasons or because he thought husbands and wives should not live together. The answer apparently was "yes."

Justices Sonia Sotomayor, Elena Kagan, Breyer and Ginsburg seemed sympathetic to Din's case. Among other things, these Justices feared possible erroneous denials of visas with no opportunity for correction through judicial review. Justice Sotomayor characterized the administrative process after the denial of a visa to a spouse as an "administrative nightmare."

Justices Sotomayor and Breyer (and to a certain extent Justices Anthony Kennedy and Justice Samuel Alito) were also troubled by the possibility of uncorrected mistakes by the government. When Kneedler assured the Court that the decisions were double-checked before denying a visa, Justice Sotomayor countered that "that's what we were told after September 11th," noting that the government had claimed that it had good reason for arresting and detaining foreigners, only to later admit that some alleged terrorists had been "erroneously identified."

The Justices generally seemed sensitive to the possible national security concerns at stake. A number of questions focused on the practicalities of judicial review if the government claimed that disclosure of the basis for the visa denial might jeopardize national security. (The U.S. government did not make this argument in Din's case.). One of the possibilities mentioned would be for in camera review by the judge.

At various times in the argument, the Justices asked questions about how Kleindienst v. Mandel applies to the case at hand. In that case, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered - that the applicant had violated the terms of visas on previous visits to the United States - was a "facially legitimate and bona fide reason" for the executive action. Justice Kennedy, the possible swing vote in the case, seemed to agree with Justices Ginsburg, Breyer, Sotomayor, and Kagan that, under Mandel, Din has the right to demand an explanation for the visa denial.

Kneedler attempted to distinguish Mandel as involving a different decision than a visa denial. As a back-up argument, he claimed that a citation to the statute was sufficient to satisfy the deferential requirement of a facially legitimate and bona fide reason for the visa denial.

Mark Haddad of Sidley Austin LLP argued the case on behalf of Fauzia Din. While appropriately conceding that Congress has broad authority over immigration, he urged the Court to affirm the Ninth Circuit’s conclusion that Mandel required a further explanation of the visa denial.

Much of the Justices’ questioning of Haddad focused on the scope of Din’s constitutional rights. Chief Justice John Roberts and Justices Antonin Scalia and Alito worried about the prospect that the right to contest immigrant visa denials would be extended to relatives. They seemed wary of encouraging spouses and other family members to seek judicial review when their relatives are barred from entering the United States.

In this vein, several of the Justices raised the question whether, if the Court ruled in Din’s favor, a wife might hypothetically be able to challenge a criminal conviction even if her husband for whatever reason did not want to do so. However, if permitted by the case law, that issue could be addressed by allowing the visa applicant himself to seek judicial review. In this case, the decision was made to pursue judicial review based on an opening left by Mandel allowing a U.S. citizen to challenge the denial.

Another practical concern of some of the Justices was whether there might be a flood of appeals of visa denials if the Court were to allow judicial review of consular officer decisions. That relatively few cases have been appealed under Mandel, and in the Ninth Circuit where some kind of judicial review is currently permitted, suggests that there would not be a flood of appeals if the Court decided in Din’s favor.

Although always hazardous to predict a decision in a case based on the oral argument, it seems to me that the Justices are closely divided on this case. As frequently is the case with the Roberts Court, Justice Kennedy will perhaps determine the precise outcome.

Based on the argument, my prediction is that the Court will embrace the deferential Kleindienst v. Mandel framework. However, it is far from certain whether the Court will find that the denial in this case satisfied the facially legitimate and bona fide requirement.

February 18, 2015

Argument preview: The doctrine of consular non-reviewability – historical relic or good law?

Cross-posted from SCOTUSblog.

The well-established doctrine of consular non-reviewability precludes judicial review of the visa decisions of State Department consular officers. It is a first cousin of immigration law's exceptional "plenary power" doctrine, which generally immunizes from judicial review the substantive immigration decisions of Congress and the executive branch. In refusing to disturb the federal government's reliance on secret evidence to deny the non-citizen spouse of a U.S. citizen admission into the country, the Supreme Court in 1950 summarized the plenary power doctrine as follows: "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned."

More recently, the Court has creatively avoided invoking the plenary power doctrine and instead ensured judicial review of immigration decisions. For example, in Landon v. Plasencia, the Court held that a lawful permanent resident seeking to return to the United States after a weekend in Mexico possessed a due process right to a hearing on the propriety of her exclusion from the country.

The courts, including the Supreme Court, have created a number of exceptions to the doctrine of consular non-reviewability. In Kleindienst v. Mandel, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered - that the applicant had violated the terms of visas on previous visits to the United States - was a "facially legitimate and bona fide reason" for the executive action.

Next Monday, the Supreme Court will hear oral arguments in Kerry v. Din, a case that provides it with the opportunity to provide much-needed guidance on judicial review of consular officer visa decisions. It also could offer some hints about the future of the plenary power doctrine.

Facts

The facts of the case could have been ripped out of the cable television series Homeland.

In 2006, Fauzia Din, a naturalized U.S. citizen, married Kanishka Berashk, a citizen of Afghanistan. A consular officer at the U.S. Embassy in Pakistan denied Berashk's visa application. The denial simply cited a detailed, complex, and broad provision of the immigration law that bars the admission into the United States of non-citizens who have engaged in "terrorist activity." The consular officer failed to identify the alleged conduct that triggered the exclusion.

The district court dismissed Din's suit challenging her husband's visa denial. The Ninth Circuit reversed. A majority concluded that (1) "a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse's visa"; (2) the reason offered for the denial was not "facially legitimate"; and (3) the consular officer should have explained "what [he] believed [Berashk to have] done" that justified the visa denial.

Arguments in the briefs

Relying heavily on plenary power precedent, the Solicitor General argues that Din lacks a constitutionally protected interest in her husband's visa application and that the Ninth Circuit erred in finding that she has a right to judicial review of his visa denial. The government seeks to limit Kleindienst v. Mandel to its facts and further contends that the State Department should not be required to offer a specific explanation in denying a visa on national security grounds.   The government specifically contends that judicial review à la Mandel will have "the steep cost of weakening the protections that keep terrorists from our shores."

This case is one of the few occasions in which the Obama administration has asked the Supreme Court to deny judicial review of an immigration decision. Indeed, in recent years it has refused to defend two lower-court decisions - including one accepted for review this Term holding that the immigration statute barred judicial review of a Board of Immigration Appeals ruling.

Din emphasizes that, like the plaintiffs in Mandel, she is a U.S. citizen challenging the visa denial and a violation of her rights, rather than an alien on foreign soil seeking initial entry into the country. She claims (1) a constitutional right to marry and live with one's spouse; (2) that the denial of her spouse's visa infringed that right; and (3) that due process requires that the government provide a facially legitimate and bona fide reason for the denial.

Several groups filed amicus briefs, all in support of Din. In one brief, a number of former consular officers argue in favor of judicial review on the ground that many contemporary visa denials are not discretionary judgments, as was historically the case, but are instead based on whether the person appears on various database and other watchlists. And in another brief, seventy-three law professors question the conventional understanding of foundational cases of the doctrine of consular non-reviewability. They contend that Kleindienst v. Mandel requires judicial review and that such review is consistent with the immigration statute.

Analysis  

The Court in this case has the opportunity to narrow the doctrine of consular non-reviewability. Besides the possible doctrinal effects of a decision - including further limitations on the doctrine - the case has the potential for great practical significance. Consular officers stationed in U.S. embassies around the world annually deny hundreds of visa applications. The specific judicial review question is complicated in the case before the Court by the consular officer's blunt invocation of terrorism as the basis for denial of the visa application.

The ultimate outcome largely depends on how the Court applies Kleindienst v. Mandel. Given its contemporary inclination toward some modicum of judicial review of immigration decisions, the Court might be expected to find that judicial review of visa denials - even if limited in scope - is justified. But how limited should the scope be? Should courts accept the U.S. government's mere citation to the terrorist activity provision of the immigration law without any explanation, even if that would effectively deny an applicant a meaningful opportunity to rebut the charge? Or should the courts require further explanation from the government - for example, in this case, how and why the consular officer found Berashk inadmissible. How the Court resolves this issue may be the key to the case.

February 13, 2015

Just How Lawless Are the Alabama State Court Judges Who Have Been Refusing to Issue Same-Sex Marriage Licenses?

Cross-posted from Justia's Verdict.

This week offered quite the spectacle in Alabama. Relying on a recent ruling from United States District Court Judge Callie Granade, based in Mobile, that struck down the provision in the Alabama state constitution that prohibits recognition of same-sex marriage, many gay and lesbian couples around the state began getting marriage licenses. But other same-sex couples, mainly in more conservative counties, have been unable to obtain licenses because some state probate judges (who issue marriage licenses in that state) are continuing to abide by the state-law ban on same-sex marriage, notwithstanding Judge Granade's ruling that such discrimination violates the Fourteenth Amendment of the federal Constitution. And on Monday Judge Granade herself declined requests to hold probate judges who refused to issue same-sex licenses in contempt of her federal court and its orders. Meanwhile, the Chief Justice of the Alabama Supreme Court, Roy S. Moore, has been issuing statements about the limits of federal power that remind many observers of the days of George Wallace, and maybe even Jefferson Davis. So what is going on here? And do the state court judges who are continuing to enforce Alabama's discriminatory marriage-license regime have a legal leg to stand on? In the space below, I try to separate the strands of the tangle, and to highlight which legal questions have clear answers and which don't.

Let us first take the easy question of whether Justice Moore's broad-based challenge to federal judicial authority holds up. It does not. Justice Moore has said that the federal courts have no authority over the state-law institution of marriage and that federal district judges cannot require state judges to follow federal trial court rulings. These ambitious sentiments are certainly wrong if they are taken to mean that a federal court cannot award meaningful relief to plaintiffs who successfully challenge the application of state law to them. Federal district courts can vindicate the federal rights of federal plaintiffs, even if those rights involve the institution of marriage, and even if it is state judges (as is the case in Alabama's regime) who issue the marriage licenses that are being wrongfully and unequally withheld. So a federal district court has undeniable power to order state officials, including state judges, to provide victorious federal plaintiffs a remedy to redress their constitutional violations. Such power to adjudicate and vindicate federal rights is emphatically what federal courts are for. That's Constitutional Law I/Marbury v. Madison-kind of stuff.

The Limits on Federal District Court Remedial Reach

Why, then, did District Court Judge Granade not hold state court judges in contempt for withholding marriage licenses? After all, contempt of court-with its coercive sanctions-is usually what we invoke to ensure that people comply with federal court orders. (I should point out here that individuals who violate federal court orders are generally punishable for contempt even when the federal court orders themselves go too far and are later determined to be illegal.) The answer is that the formal remedy provided by Judge Granade-the technical order she issued after finding the Alabama same-sex marriage ban unconstitutional-did not, as she herself understood it, extend to all probate judges who interact with all same-sex couples throughout the state. While Judge Granade could and should hold in contempt any state official who refuses to recognize the marriage of the particular same-sex couple who brought the case in her court and won, Judge Granade was likely correct not to try to punish probate judges for withholding relief as to other same-sex couples.

The reason for this is that the weight of authority tends to suggest-as a leading casebook puts things-that "a [federal district] court can enjoin [a] defendant only with respect to the defendant's treatment of plaintiffs actually before the court, either individually or as part of a certified class" (emphasis added). Because there was no class certified in the case before Judge Granade-it was brought by one same-sex couple-Judge Granade's remedial authority is technically limited to the particular plaintiffs before her. Thus, even if her legal reasoning invalidating Alabama's same-sex marriage ban is valid-and even if it is likely that her interpretation of the federal Constitution will be upheld by the U.S. Supreme Court later this year-state court judges who continue to enforce the state-law ban as to other couples are likely not defying federal authority in a way that can be punished.

This also means that, as a technical matter, the problem (if one views remedial limitations as a problem, though many would view them as a virtue that makes federal judicial power less scary) won't necessarily be solved by trying to name every probate judge in Alabama as a party to a case in Judge Granade's docket. If a federal judge cannot order state judges to provide relief to anyone other than the federal plaintiffs before her, then same-sex couples throughout the state will not all necessarily benefit by extending Judge Granade's orders to cover additional defendants in additional cases involving additional named couples; the remedial limitation is defined by the identity of the plaintiffs, not the identity of the defendants.

So when Judge Granade yesterday afternoon ruled, in a second case, that one probate judge who had been refusing to issue same-sex marriage licenses must begin issuing them, her order was still limited to the particular plaintiffs (four same-sex couples) who were in her court asking for relief. As Judge Granade wrote yesterday: "If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage" (emphasis added).

Now it may well be that as more and more probate judges are instructed to issue licenses to named plaintiffs in more and more cases, all of the probate judges in the state will start issuing licenses to all same-sex couples who apply, regardless of whether those couples are victorious plaintiffs in any federal case. But that will not be because the state court judges are under a federal court order that obliges them to do so, but because they choose to do so in light of the decisional trend.

I should note that the conventional rule that I describe here-that a federal trial court's relief should normally be granted only to the actual plaintiffs in the case-does not forbid the court, even outside of a class action setting, from ordering relief that in fact goes beyond protecting the named plaintiffs and also protects other would-be plaintiffs, if full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants' interactions with other persons. (For example, in one case, a court was justified in ordering the police to stop enforcing a motorcycle helmet law overly aggressively as to all riders-and not just as to the plaintiffs-because highway patrol officers would have no way of distinguishing plaintiffs from non-plaintiffs before pulling someone over.) But in the present setting, full relief (i.e., marriage licenses and recognition) can be given to named plaintiffs without ordering the defendants to give licenses to anyone else.

Some have argued that providing full relief to named same-sex plaintiff couples requires allowing all same-sex couples in the state to marry, because absent such broad access to same-sex marriage, the named plaintiffs' marriages would continue to be subject to stigma. But I don't think that this stigma argument works, because if it did, then same-sex couples whose marriages are already recognized would have standing to challenge bans on same-sex marriage that are preventing others from marrying, and I don't think any federal court would recognize standing in such circumstances.

I should also point out that some federal judges believe that a district court can order government agencies to refrain from enforcing facially invalid laws or policies against anyone, and not just the plaintiffs before it. (Judge Granade's orders up until this point-limited as they are to the actual plaintiffs before her-give no indication that she is among them.) For example, (now-retired) United States District Court Judge Vaughn Walker (in San Francisco) is reported to have embraced this view when he issued an order whose plain language directed state officials to stop enforcing California's same-sex marriage ban, Proposition 8, against all same-sex couples, and not just the two couples who sued in his court. Judge Walker's apparent position-which was never fully tested because both the Governor and Attorney General of California chose not to try to continue enforcing Proposition 8-was in (unexplained) tension with current Ninth Circuit law, which embraces the more dominant view, described above, to the effect that the remedy must ordinarily be tailored to the plaintiffs only. The Ninth Circuit approach is supported by most (but not all) of the statements the Supreme Court has made on the topic, but candor compels the acknowledgement that the law in this area is not really settled and could definitely benefit from high Court attention and clarification.

Does Restricting a Federal District Court's Reach to the Plaintiffs Before it Make Sense?

Why might it be sensible for a federal district court judge not to be able to issue relief to anyone other than the plaintiffs in the case before it? Because, under the judicial system we have chosen, we have decided that federal district court opinions and decisions should, as a matter of governing precedent, have no binding effect on any other judges, even other federal judges located within the same district. This situation is to be contrasted with a ruling by the regional federal Court of Appeals or the United States Supreme Court. Once either of those courts has held Alabama's law invalid (and neither has yet-the Supreme Court chose not to block Judge Granade's ruling, but it won't decide the merits of the same-sex marriage constitutional question until later this year, at the earliest), then all judges, state and federal, within the state should surely obey that ruling, because the federal appellate court (whether it is the Eleventh Circuit or the Supreme Court) would have fashioned federal law that is supreme and applicable throughout the state. This is true even though state judges' rulings are not appealable to the Eleventh Circuit, insofar as all federal district judges in the circuit (who are bound by circuit precedent) would have no choice but to give injunctive relief to any same-sex couple who subsequently filed suit. Under those circumstances, it would be an utter waste of time (and perhaps a due process violation) for a state court judge not to give a license to someone who undeniably could get one by filing a federal suit anywhere in the state. Whether contempt sanctions are applicable or not, no judge or other state official would be justified in continuing to enforce a state law that a federal appellate court governing that state has held to be invalid.

But a ruling by a district court judge like Judge Granade has no such effect. Just because she ruled that Alabama's law violates the federal Constitution does not mean that other federal judges in Alabama would so rule if other same-sex couples filed suit in their courts. Her ruling is not binding precedent on them. Importantly, not all same-sex couples could properly sue in Judge Granade's district, and even if they did, other district court judges in that district to whom a new case might be assigned might rule differently on Alabama's ban on same-sex marriage. So Judge Granade's ruling-unlike one from the Eleventh Circuit or the Supreme Court-does not inevitably provide relief to any would-be federal-plaintiff same-sex couple in the state.

Perhaps an example will help drive home the point I'm making. Imagine that public universities throughout Alabama, pursuant to a state law policy, take race of applicants into account in a measured way in the admissions process, in order to assemble a diverse student body. Suppose a single unsuccessful applicant to a single public college in the state sues in federal court, bringing a facial challenge to the state's affirmative action policy on the ground that any use of race violates the Fourteenth Amendment. And suppose the district judge in that case rules (wrongly, to my mind, but not implausibly as a prediction of where the Supreme Court is headed) that all consideration of race is indeed barred by the Fourteenth Amendment. Could that judge apply her ruling to all the public universities in the state, and order all of the them (under pain of contempt) to refrain from considering race at all as they process the hundreds of of thousands of applications they receive each year, even though many other federal and state judges in the state would disagree with her interpretation of the Fourteenth Amendment but might never have a chance to hear a case if her ruling were allowed to shut down statewide use of the policy? I think such remedial power by a single judge would raise many problems, and for that reason, if and when the Court clarifies district court remedial power, it might embrace what I have described here as the mildly dominant view limiting remedial authority to actual plaintiffs.

But, a reader might wonder, isn't there a difference between the affirmative-action hypothetical I posit and the same-sex marriage setting insofar as affirmative-action limitations at the high Court are still a matter of debate, while there is no longer any real doubt about whether the Supreme Court this summer will hold that all state-law discrimination against same-sex couples in the marriage arena is unconstitutional? Perhaps this prediction is quite sound, and state court judges would be justified if they chose to issue licenses on that basis, but I am not entirely sure that state court judges are required, as a matter of supreme federal law, to act on it now. All judges have a legal obligation to follow binding precedent from a higher court once it is handed down, but there may be no legal obligation-enforceable by contempt or otherwise-on lower court judges to see the writing on the wall.

February 11, 2015

Celebrating Four Decades of Energy Innovation: The California Energy Commission at 40

Cross-posted from Legal Planet.

This month marks the 40th anniversary of California's landmark Warren-Alquist Act, which created the state Energy Commission and triggered a transformation of energy policy in California, across the U.S., and abroad.

This week an impressive group of energy policymakers, political leaders, energy scholars and Energy Commission alumni gathered at events in Sacramento and at the U.C. Davis School of Law, to commemorate the first four decades of the Commission's important work and-even more importantly-to chart California's energy policy in the years ahead.  There, dignitaries including California Governor Jerry Brown, Intergovernmental Panel on Climate Change (IPCC) Chairman R.K. Packauri and the co-author of the 1974 Warren-Alquist Act reminisced about the launch of the Energy Commission in January 1975 and challenged the Commission to continue its energy leadership through the coming decades.

As Governor Brown and former Assemblyman Charles Warren noted, the seeds of the transformative Warren-Alquist Act sprouted in the early 1970's, when California's private utilities were experiencing 7-9% annual growth in state electricity demand.  The utilities projected that some 60-70 new, 1000 megawatt nuclear power plants would be required to accommodate that demand, which they forecast would double every 10 years.  An influential report by the Rand Corporation, published contemporaneously, confirmed the utilities' projected growth rate, but presciently observed that it would only occur under a "business as usual" scenario.  Other energy futures, the report opined, were possible.

Then history and international conflict intervened.

In the wake of the 1973 Arab-Israeli War, Middle East oil producing nations created an oil embargo that quickly made U.S. citizens and their political leaders realize how dependent the American economy had become on imported oil.  America faced severe energy shortages for the first time since World War II, which consumers experienced first hand in the form of long lines at gas stations, severe shortages of home heating oil, etc.

In California, then-Governor Ronald Reagan, the California Legislature and state utilities quickly realized that the state needed to update its energy policies to respond to long-term energy growth projections and immediate energy shortages.  The utilities hopes for legislation that would provide for a "one-stop" siting process for its planned, new power plants by preempting traditional local control over such development projects, in favor of a centralized permitting agency at the state level.

In hindsight, the utilities should have been careful what they wished for.  The Legislature passed the Warren-Alquist Act in 1974, which gave the utilities the permit streamlining process for which they had lobbied.  But the legislators who passed the Act also were influenced by the findings of the Rand Report and the repercussions of the Arab Oil Embargo.  Critically, the new legislation incorporated three other key provisions-designed to address the demand side of the energy equation-which in hindsight have proved far more influential than the law's siting reform:

  • It directed the newly-created Commission to formulate and adopt the nation's (and planet's) first-ever energy conservation standards for both buildings constructed and appliances sold in California;
  • The Act removed the responsibility of electricity demand forecasting from the utilities, which had a financial interest in high demand projections, and transferred it to a more impartial Commission;
  • The Commission was directed to embark upon an ambitious research and development program, with a particular focus on fostering non-conventional energy sources;

The Energy Commission, headed by appointees of newly-elected California Governor Jerry Brown, quickly got to work.

Fast forward 40 years.  The performance of the Energy Commission in implementing the Warren-Alquist Act has been impressive indeed.  The Commission's record was recounted in detail at today's "California Energy Commission 40th Anniversary Symposium," hosted and co-sponsored by U.C. Davis' California Environmental Law and Policy Center: while U.S. per capita energy demand has increased by 50% over the past four decades, California's growth rate has remained flat.  California's first-ever energy conservation standards for appliances and buildings have been replicated by the federal government and many other nations across the globe.  And the research and development programs launched by the Commission made California the hub of renewable energy technology innovation.

Even if the Commission were content to rest on its laurels (it's not), new energy challenges and initiatives lie ahead.  Governor Brown announced them in his fourth inaugural address and his State of the State speech, both held earlier this month.  Brown reiterated those goals in this week's events commemorating the Warren-Alquist Act and the Energy Commission:

  • Cutting California's dependence on petroleum-based fuels by 50% by 2030;
  • Increasing the state's Renewable Energy Portfolio-which California law already targets at 33% by 2020-to 50% by 2030; and
  • Increasing the energy efficiency of new California building stock by 50%.

These energy goals are every bit as daunting in 2015 as the then-newly-enacted provisions of the Warren-Alquist Act were in 1975.  But, as both Governor Brown and IPCC Chairman Pachauri noted this week, they are critical elements of California's overarching strategy to reduce the state's aggregate greenhouse gas emissions by 20% by 2020; 50% by 2030; and fully 80% by 2050.

The Energy Commission's pioneering work over the past 40 years has been a critical element in moving California to a far cleaner, more sustainable future than was projected four decades ago.  The Commission will have to be even more innovative and thoughtful if it is to lead California to an even greener, more environment-friendly future 40 years from now.

Happy Birthday, Energy Commission!  Time to get back to work.

 

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.