Cross-posted from Law and Politics Book Review.

The book is Governing Immigration Through Crime: A Reader.

Authors: Julie A. Dowling is Assistant Professor of Latina/Latino Studies at the University of Illinois, Urbana-Champaign. Jonathan Xavier Inda is Associate Professor of Latina/Latino Studies at the University of Illinois, Urbana-Champaign.

For several years, immigration scholars have criticized the increasing reliance on the criminal law (and criminal penalties) to enforce the U.S. immigration laws, which historically have been enforced through civil sanctions. Juliet Stumpf encapsulated the growing body of scholarly criticism in her seminal work “The Crimmigration Crisis,” a path-breaking article reprinted in Governing Immigration Through Crime.

The criminalization of U.S. immigration law has proceeded relatively quickly through a variety of steps. Congress in the last 25 years has systematically reformed the immigration laws so that increasing numbers of crimes can result in the removal of lawful permanent residents from the country. Exhibiting an Alice in Wonderland-like quality, the immigration laws today frequently classify misdemeanors as “aggravated felonies,” thus subjecting a lawful permanent resident to near-mandatory removal from the United States. The harshness of the removal grounds has led a conservative Supreme Court on several occasions to intervene; for example, the Court in 2013 halted the virtually mandatory removal of a long term resident of the United States guilty of possession of a few grams of marijuana for personal use (Moncrieffe v. Holder). Congress also has required the mandatory detention of the ever-expanding category of “criminal aliens,” which has created a huge, and growing, immigrant detention industry (McLeod 2012).

Beginning in earnest during the George W. Bush administration, U.S. immigration authorities have worked increasingly closely with state and local law enforcement authorities to remove noncitizens from the United States. The Obama administration has enlisted state and local police in efforts to enforce the U.S. immigration laws. Many states have passed immigration enforcement laws relying on the criminal law ostensibly designed to encourage undocumented immigrants to “self deport.” In addition to extension of an expensive fence along the U.S./Mexico border, U.S. immigration authorities have dramatically increased enforcement operations to levels never previously seen before in U.S. history. Last but not least, the crime of “illegal re-entry” into the United States has been prosecuted ever-aggressively by the U.S. government, contributing to docket congestion in the federal courts and a large increase in the number of Mexican nationals imprisoned in the United States.

The increased use of the criminal law to regulate immigration has had dramatic impacts. In President Obama’s first five [*209] years in office, his administration set records by removing roughly 400,000 immigrants from the United States annually; he has by a large margin deported more noncitizens than any President in U.S. history. It is noteworthy that removals have not been limited to undocumented immigrants but include many lawful permanent residents who have lived in the country for many years. Hundreds of thousands of removals have resulted in the destruction of hundreds of thousands of families, communities, and lives. Although the administration claims to focus on serious criminal offenders, many of those caught in the enforcement net are at best small time criminals, including persons arrested for traffic infractions such as lacking driver’s licenses for which undocumented immigrants are not eligible in most states.

Governing Immigration Through Crime collects in one reader important contributions to the scholarly literature on the use of the criminal law in immigration enforcement. The previously-published works were written by influential scholars from law and the social sciences, including anthropology, sociology, ethnic studies, criminology, urban planning, communication, and political science. The stated aim of this book “is to provide an interdisciplinary introduction to the governing of immigration through crime” (p.38). Fulfilling that aim, the editors’ selection and organization of the book results in a concise and thoughtful reader, with the pieces offering important perspectives from a variety of vantage points.

The volume begins with an extended introduction to “Governing Migrant Illegality” that sets the stage for the subsequent readings. The editors “broadly (but not exhaustively) map the governing of immigration through crime in the contemporary United States” (p.3, footnote omitted). As the editors state, “in the contemporary United States, undocumented immigration has come to be seen largely as a law and order issue” (p.5, footnote omitted). Much of the public and many political leaders characterize undocumented immigrants as social, economic, political, and national security threats to the nation. In response, the U.S. government has adopted an array of criminal measures to deter undocumented immigration, such as criminalization of immigration violations, increased enforcement (at the border and beyond), immigration raids, additional technology, detention and deportation, and more.

The introduction starts by briefly summarizing the much-publicized 2008 raid at a meat processing plant in rural Postville, Iowa in which most of the immigrant workers were charged criminally for identity theft. The focus on this incident indirectly demonstrates just how quickly immigration enforcement has changed in the last five years. Unlike the Bush administration, the Obama administration is not focusing its interior enforcement efforts on workplace raids. Rather, it has relied heavily on a new “Secure Communities” program, which requires state and local law enforcement agencies to share information about persons arrested with federal immigration authorities. In 2013, it is Secure Communities, not workplace raids, which results in the mass removals of “criminal aliens.”

Importantly, because of the disparate impacts of immigration enforcement on [*210] Latinos, Governing Immigration Through Crime conceptualizes “immigration enforcement as a form of racial governance” (p.18). These impacts can be seen most clearly at the U.S./Mexico border, with deaths of Mexican migrants resulting from border enforcement operations on a regular, predictable basis. Similarly, enforcement measures in the interior of the United States have had disparate impacts on Latinos, who represent approximately 75-80 percent of the persons annually deported from the United States.

Governing Immigration Through Crime recognizes that Latinos and immigrants have contested racialized immigration enforcement. In 2006, tens of thousands of people marched in the streets of cities across the United States in protest of – and ultimately defeated – a tough-as-nails immigration bill passed by the House of Representatives. Since them, undocumented college students known popularly as the DREAMers have pressed the nation for justice, eventually pushing the Obama administration to establish the Deferred Action for Childhood Arrivals program.

The book is divided into five parts. Each part of the book has a short description of the chapters in that section.

Part I, “Law and Criminalization”, outlines in general terms the criminalization of U.S. immigration law. It includes chapters offering insights on Mexican migration to the United States (Nicholas DeGenova), the emergence of the “crimmigration crisis” (Juliet Stumpf), and the national security focus on migration since September 11, 2001 (Jennifer Chacón).

Part II, “Managing Borders”, has chapters on the physical and symbolic meanings of the growing U.S./Mexico “border wall” (Josiah McC. Heyman), the Minuteman Project’s vilification of Mexican migrants (Leo Chavez), and border-crossing deaths (Roxanne Lynn Doty). This part nicely links various enforcement measures, such as the border fence and the growing death toll of migrants in the U.S./Mexico border region.

Part III, “Policing the Interior”, includes chapters on the rise and fall of employer sanctions under U.S. immigration law (David Bacon and Bill Ong Hing), the human and civil rights impacts of Arizona’s immigration enforcement landmark S.B. 1070 (Rogelio Sáenz, Cecelia Menjívar, and San Juanita Edilia Garcia), and local immigration enforcement (including analysis of the passage of Hazleton, Pennsylvania’s much-publicized anti-immigrant ordinance) (Liette Gilbert). Added to the immigration laws in 1986, employer sanctions, which allow for the imposition of civil penalties on the employers of undocumented workers, has to this point failed to deter the employment of undocumented immigrants, thus contributing to political movements favoring state and local immigration enforcement measures.

Part IV, “Detention and Deportation”, includes chapters on the detention of Latinos as part and parcel of immigration enforcement (David Manuel Hernández), deportation and return to the United States of transnational Mexicans (Deborah A. Boehm), and the deportation of immigrants who had made the United States their true homes, aptly termed [*211] “exiled by law” by Susan Bibler Coutin.

Part V, “Immigrant Contestations”, includes chapters analyzing the mass immigration protests, or “La Gran Marcha”, of 2006 (Josue David Cisneros), the undocumented student movement (Robert G. Gonzales), and the use of surveillance strategies by groups seeking to ensure the protection of human rights and security (James P. Walsh).

The various chapters touch on the central issues raised by regulating immigration through deployment of the criminal laws. All of the chapters directly or indirectly criticize the use of the criminal law to regulate immigration to the United States. Their shared conclusion is that Governing Immigration Through Crime is a bad idea. Supporters of the current use of the criminal law to regulate immigration – and even its possible expansion – are not the intended audience of Governing Immigration Through Crime.

Space limitations necessarily require omissions in coverage. However, a few omissions deserve comment. The reader might have benefited from analysis of the most significant criminal immigration program currently in existence – the Obama administration’s Secure Communities program, which has culminated in more deportations than ever in U.S. history. Secure Communities requires state and local law enforcement to share information about persons arrested with U.S. immigration authorities. The program has generated considerable criticism from state and local law enforcement as well as immigrant rights’ advocates. It arguably undermines local law enforcement efforts to obtain the support of the immigrant community in ordinary law enforcement.

In addition, the chapter on Arizona’s S.B. 1070 would have benefitted – perhaps in a postscript, another chapter, or otherwise – from further analysis of the U.S. Supreme Court’s decision in Arizona v. United States (2012). Although striking down three core provisions of S.B. 1070, the Court left intact the law’s most controversial provision, Section 2(B), which requires state and local police to assist in the enforcement of the U.S. immigration enforcement laws. Activists have voiced serious concerns that Section 2(B)’s implementation will result in increased racial profiling of Latinos – U.S. citizens, legal immigrants, and others – in law enforcement.

More generally, one might have thought that a volume on the use of the criminal law in immigration enforcement would have considered the day-to-day immigration enforcement, namely the widespread practice of racial profiling of Latinos. The Supreme Court in 1975 held that “Mexican appearance” could be one of many factors in an immigration stop, a holding that has resulted in the legal sanction of racial profiling in immigration enforcement (United States v. Brignoni-Ponce). Such profiling helps account for the disproportionate stops and arrests of Latinos for immigration (and other law enforcement) violations as well as disparate detention and removal rates (Johnson 2010).

Last but not least, one is left to wonder what impact comprehensive immigration reform might have on the general [*212] phenomenon of governing immigration through crime. Immigration reform has been percolating in Congress for well over a decade. Unfortunately, current proposals on the table would increase, not decrease, the criminal law’s regulation of immigration with, for example, efforts to exclude and remove alleged “gang members.” At the same time, employers could be required to use a computerized database known as E-Verify to check the employment eligibility of all employees, which could make employer sanctions more enforceable and diminish the need for criminal measures.

In conclusion, Governing Immigration Through Crime offers important readings from influential legal and social science scholars critically analyzing the efforts of the United States to regulate immigration through the criminal laws. Although a few recent developments are not covered in the reader, the chapters aptly outline and succinctly criticize the increasing criminalization of immigration law in the United States.

Allowing noncitizens who are legal immigrants to serve on juries is a desirable reform in a society devoted to judgment by one's peers and juries that represent a cross-section of the community. Assembly Bill 1401, passed overwhelmingly by the California Assembly, would do just this, permitting legal immigrants, as well as U.S. citizens, to serve on juries.

The Assembly Committee on the Judiciary highlighted the laudable goals behind the expansion of eligibility for jury service: "jury service is understood to be a democratizing force and a societal obligation."

Importantly, AB 1401 would extend jury service eligibility only to "lawful permanent residents," a legal term of art referring to immigrants lawfully admitted to the United States who under the U.S. immigration laws generally possess the right to remain indefinitely, if not permanently, in the United States. The bill would not allow temporary visitors or undocumented immigrants to serve on juries.

Nothing in the state or federal constitutions prohibits noncitizen service on juries, or, for that matter, being lawyers or even judges. Nor, despite the cries of opponents, are noncitizen jurors unprecedented. Indeed, there was a long tradition in England, from where the United States imported its right to trial by jury, of allowing noncitizens to serve on juries.

For close to 700 years, the English justice system permitted the jury de medietate linguae ("jury of the half tongue"), also known as mixed juries. To ensure fair treatment of a minority by the majority, noncitizen litigants had the right to request that half of the jury consist of noncitizens. English colonists brought the mixed jury to America. Trial by mixed juries for a time was the practice in the colonies and, after the revolution, the United States.

The legally enshrined ideal, and constitutional requirement, is for American juries to be pulled from a cross-section of the community. Immigrants unquestionably are part of communities throughout California. Some counties, including but not limited to Los Angeles (18.6 percent), Orange (15.3 percent), and San Francisco (14.7 percent), have large immigrant populations. These residents pay taxes and live and work in the community and serve in the military; many have children who are United States citizens. Immigrants are subject to the laws just like U.S. citizens, but play no role in resolving legal disputes.

Similar to the revolutionary battle cry of "no taxation without representation," unrepresentative juries render judgments that are less legitimate than more representative juries in the eyes of minorities. History teaches that the "all-white jury" convicting an African American defendant is presumptively illegitimate. Historically, minorities and women were barred from jury service, which today is condemned and discriminatory and wrong. One can only wonder whether some of the opposition to the expansion of jury eligibility is due to racial anxieties and anti-immigrant sentiments that too long have been part of this country's fabric.

Nor does AB 1401 eliminate any of the other eligibility requirements for jury service, requirements that help ensure that jurors embrace community values. English language proficiency, for example, remains a requirement to serve on a jury. It alone is likely to result in immigrant jurors who are the most assimilated of all immigrants into American culture and values. In addition, all jurors must be domiciled in California and residents of the county in which they would serve, again contributing to the likelihood that they represent the values of the community. Moreover, a felony conviction disqualifies any person - immigrant and U.S. citizen alike - from jury service.

Opponents of AB 1401 assert that U.S. citizenship is somehow the equivalent of knowledge of the American legal system or of embracing American values. There is no basis for this assumption. In fact, passing a test about civics or the law or the Constitution is not required of any citizen as a prerequisite for jury service. Some citizens have basic knowledge in these areas, while some don't. Undoubtedly the same will be true of noncitizens serving as jurors. Noncitizens work in this country, abide by its laws, and have by their actions shown appreciation of the freedom and liberty that is uniquely American. There is no reason to assume that they are less knowledgeable about or less committed to the system than United States citizens.

There is no doubt whatsoever that it is constitutional for the state to have noncitizens serve on juries. It is highly desirable because expanding juror eligibility to lawful permanent residents would make juries look more like the communities for which they serve - and more legitimate to immigrant communities and more true to American democratic ideals.

Co-authored with Dean Erwin Chemerinsky of UC Irvine School of Law. This op-ed is reprinted from The Sacramento Bee.

Cross-posted from Justia's Verdict.

In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment.  In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year's blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called "ministerial exception" enjoyed by religious institutions in employment discrimination suits.  I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.

The Supreme Court's Recognition of a "Ministerial Exception" to Employment Discrimination Law

The plaintiff in the Hosanna-Tabor case, Cheryl Perich, was a commissioned minister in the Lutheran Church-Missouri Synod who worked as a faculty member at a small church-operated K-8 parochial school in Michigan, where she taught, at various times, among other things, math, language arts, social science, gym, art and music.  She also taught a religion class four days a week; led students in daily devotional exercises and prayers; and led a school-wide chapel service a few times a year.  She later developed narcolepsy and informed her employer about her condition and, ultimately, her intention to assert her legal rights under the disability laws.  She was ultimately fired, and brought a charge with the federal Equal Employment Opportunity Commission (EEOC) against Hosanna-Tabor, claiming that she had been terminated in violation of the Americans with Disabilities Act (ADA).  The EEOC then filed suit against Hosanna-Tabor, alleging that it had unlawfully fired Ms. Perich in retaliation for her assertion of her ADA rights.

The U.S. Supreme Court ruled in favor of the school, holding that the Establishment and Free Exercise Clauses of the First Amendment bar employment discrimination suits brought on behalf of ministers against their (employer) churches, and that Ms. Perich fit the definition of "minister" for these purposes.  The Court began with a brief history of the Constitution's religion clauses that highlighted the need for government not to interfere with important internal church processes.  It then discussed cases in which the Court had, under the Constitution, deferred to church tribunals that were established within a church's hierarchy to resolve disputes over the proper use of church property or assets when disagreements between various individuals or factions within the church arose.   The resolution of these "quintessentially religious controversies," the Court reminded, is "strictly a matter of ecclesiastical government" that is committed to "the highest ecclesiastical tribunals" and not something for the courts to undertake.  Relying on these principles and on the experience of lower courts in this realm, the Justices unanimously (albeit in three separate opinions) concluded that the First Amendment compels a "ministerial exception" to employment antidiscrimination laws that precludes the application of these laws to claims concerning the employment relationship between religious institutions and their ministers.

The Kant Lawsuit

The Kentucky case now pending was filed by Laurence Kant, who was formerly employed as a tenured faculty member at the Lexington Theological Seminary (LTS).  LTS is affiliated with the Disciples of Christ Christian denomination.  The dominant (but perhaps not sole) purpose of LTS, reiterated at the beginning of its Faculty Handbook, "is to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church's participation in God's mission for the world."  All of the Seminary's degree programs are faith-based, and are designed to prepare graduates for Christian ministry.

Mr. Kant is not a Christian minister; he is not even a Christian.  He is of the Jewish faith and during all relevant times he maintained his Jewish religious beliefs.  While at LTS, he taught a range of courses focusing on, among other areas, biblical studies, Jewish studies, Jewish-Christian studies, world religions, biblical languages, and religion and culture.  In 2006, he was awarded tenure.  The LTS Faculty Handbook (mentioned above) described tenure in the following terms:  "Tenure . . . means appointment to serve until retirement, resignation or dismissal for adequate cause. . . [T]he only grounds for dismissal or a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary. . . Along with tenure, however, go the responsibilities specified in the Handbook as well as an added expectation of leadership in the faculty."

In 2009, after the nation's financial crisis hit LTS's endowment hard, LTS declared a financial emergency and announced its intention to take dramatic steps, including the elimination of the tenure of its faculty along with other cost-cutting measures, designed to keep the institution solvent.  Pursuant to this plan, LTS terminated Kant's employment in 2009.

Mr. Kant then sued in state court, alleging breach of the contractual promises in the Faculty Handbook that his employment could be terminated only for specified reasons, none of which was present here.  By a 2-1 vote, the Kentucky Court of Appeals (and the case is now pending in the Kentucky Supreme Court, which accepted Mr. Kant's request for review) rejected Kant's lawsuit on two separate but related grounds.  First, the court held that the case "involved an ecclesiastical matter" that foreclosed the exercise of jurisdiction by a civil court.  Second, the court ruled that LTS enjoyed immunity from the breach of contract claims under the ministerial exception doctrine recognized in Hosanna-Tabor.  (Although one of the two members of the majority wrote a separate concurrence some of which could be read as relying only on the ministerial exception, he did observe that the main opinion "becomes the majority with my concurrence" and also commented in his opinion that LTS's restructuring "is an ecclesiastical matter over which no civil court has subject matter jurisdiction."  Thus, the majority opinion is best understood as having relied on both grounds.)

In both respects, the Kentucky court's ruling goes significantly beyond the Supreme Court's ruling in Hosanna-Tabor, and highlights the need for the Supreme Court to provide additional guidance in this area.

The "Ecclesiastical Matters" Rule Barring Judicial Resolution

Let us first consider the Kentucky court's decision that it could not weigh in on Kant's contract claims because to do so would impermissibly draw it into resolving ecclesiastical matters.  The majority opinion says "Kant's claims . . . cannot be decided without interpreting the Faculty Handbook to determine whether it allows for restructuring of LTS under a financial emergency and for eliminating tenured faculty under those circumstances.  Indeed, an inquiry into the rationale for LTS's decision making as to who will teach its students-all of whom attend there with a desire to become pastors or ministers-would be an inquiry into an ecclesiastical matter by this Court."

This seems like a non sequitur to me.  The first sentence is undeniably correct; Kant's breach of contract claims require interpreting the promises-and the limits on those promises-made in the Faculty Handbook; the handbook is the contract on which Mr. Kant relies.  But the second sentence would not seem to follow; deciding whether the Faculty Handbook contract implicitly contains a right of LTS to eliminate tenure in times of financial emergency does not involve religious doctrinal or ecclesiastical matters in any way.  If LTS had fired Kant because it said that he had engaged in religiously immoral behavior within the meaning of the Faculty Handbook, deciding whether certain deeds were morally delinquent (within the context of the church community) might draw courts into ecclesiastical matters.  But deciding whether a contract has an exception for financial emergency does not.

To see this, imagine that Kant had taught physical education, rather than religious studies.  And imagine that the Faculty Handbook promised that tenured members of the faculty would be entitled to use the Seminary's gymnasium after school hours for free.  If the Seminary later tried to begin charging tenured faculty for use of the gym (because of financial exigencies), would anyone argue that a breach of contract claim relying on the Handbook would implicate ecclesiastical matters?

Or imagine a contract that was entered into not with an LTS employee, but rather with an outside provider of services.  Let us suppose LTS hires a roofer to put on a new roof.  The contract states:  "In order to promote the use of the LTS facility as a continuing Seminary, Roofer X shall put on a roof suitable for educational structures for which LTS will pay him $Y."  Now imagine further that the roofer puts on a new roof, and LTS, because it is at that time in some financial difficulty, refuses to pay the roofer (so that it will have money to buy new books for its library instead).  If the roofer then sues on the contract, we could not say that interpreting the contract and inquiring into whether the reason LTS has not paid-the desire to spend the money on other religious-instruction-related programs-is permitted under the contract as an excuse for non-payment draws a court into ecclesiastical matters, even though such a contract claim would involve an inquiry into "the rationale for LTS' decisionmaking" as to how to devote its resources.  Certainly the ecclesiastical-matters barrier to adjudication cannot mean that religious institutions can never be sued for breach of contract, and just because the contract with Kant involves faculty personnel does not mean that interpreting it involves ecclesiastical matters.  To the extent that the Supreme Court's invocation of ecclesiastical deference in Hosanna-Tabor and other cases has been misunderstood, clarification by the high Court will be helpful.

The "Ministerial Exception"

This point leads us nicely into the ministerial exception topic, because it may well be that what troubled the Kentucky Court of Appeals most was not the ecclesiastical nature of the contract, but rather the ministerial nature of the party suing-Kant.  And there are aspects of this case that make it a more attractive candidate for application of the ministerial exception than was Hosanna-Tabor.  In particular, the fact that Kant taught at a wholly sectarian Seminary-as contrasted with the parochial school in Hosanna-Tabor, a place designed not for religious ordination but rather for a general, if religiously-based, education-leans in LTS's favor.

Yet there are a number of other differences between the two cases that cut against the application of the ministerial exception in Kant.

First, Hosanna-Tabor involved an exception to anti-discrimination laws.  The Court there explicitly "express[ed] no view on whether the exception bars other types of suits, including . . . breach of contract" [claims].  There will be enough time to address the applicability of the exception to other circumstances if and when they arise."  The Kant court acknowledged this caveat in Hosanna-Tabor, but nonetheless-and without any analysis or explanation other than the mention of the fact that some lower federal courts had applied the ministerial exception to contract claims-simply extends the exception.  Maybe it makes sense to apply the ministerial exception outside of the context of anti-discrimination laws, but certainly some discussion of why this is so-and how far the exception should reach-is in order.

Second, and very important, the Kant court found that Mr. Kant fell within the ministerial exception because of the religious-instruction function that he performed within LTS-"teaching students who desired to become involved in Christian ministry."   As the court noted, "[b]ecause Kant's primary duties involved teaching religious-themed courses at a seminary," he is covered by the exception.  This seems far too quick.  For starters, as the dissent points out, there is a difference between teaching religion (when one is trying to convince students to accept certain religious beliefs, or at least reinforce those beliefs), and teaching about religion, which is an academic exercise in ideas, not an attempt to inculcate particular spiritual beliefs.  And on the record in this case, Mr. Kant may very well have been doing the latter.

More generally, and perhaps more fundamentally, there is a divergence between the Kant court's approach and that of the Supreme Court majority in Hosanna-Tabor on the question of how we decide whether someone is a minister for these purposes.  In Hosanna-Tabor, the Court eschewed any rigid formula, but it did stress not just the function of a particular employee, but also the status and title that that employee enjoyed and used.  Indeed, in Hosanna-Tabor, the Court identified four reasons why Ms. Perich should be considered a minister: (1) the "formal title" of minister was given to her by the church when she was commissioned; (2) as a prerequisite to that commission, she undertook religious training and education designed to demonstrate her faith and her ability to minister; (3) she used the title herself and held herself out as a minister and a believer; and (4) she undertook certain "functions . . .  performed for the Church."  Three of the four factors (the first three) focus on title and status, rather than function.  Indeed, the Court in Hosanna-Tabor chided the United States Court of Appeals for the Sixth Circuit (the lower court in the case) for failing "to see any relevance in the fact that Perich was a commissioned minister."   As the Court observed, "the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of an employee's position."  And yet the Kant court all but ignored the fact that Mr. Kant is not-and could not be, since he is openly Jewish-considered a minister within the Disciples of Christ church.  He professed no belief in, and was not commissioned under, any Christian faith.  Neither he, nor the church, would consider him a minister for any purpose other than a legal immunity from suit.

It is true that Justice Alito (joined by Justice Kagan) wrote separately in Hosanna-Tabor to make clear their views that function-and not just titles or status-should matter in deciding who is a minister.  But they seemed to be writing particularly about religions that don't use commissions or ordinations or titles of ministers; thus, their opinion needn't be read to say that, for religions that do use such titles, the status of a particular employee should not be an important factor.  Moreover, the fact that Justices Alito and Kagan felt they had to write separately serves to underscore how important status/title was in the analysis of the majority opinion, which six Justices signed onto without elaboration or reservation.  In any event, whether one feels the Kant ruling is an overly expansive application of the ministerial exception or not, the larger point is that before too long, the Supreme Court is going to need to step back in and clarify precisely how broadly, and to whom, the exception applies.

Cross-posted from Immigration Prof Blog.

The Supreme Court has had a steady diet of immigration cases in recent years, with Padilla v. Kentucky (2010) and Arizona v. United States being the most well known of modern vintage.  

In the 2011 Term, the Supreme Court issued five immigration decisions. Three of the cases involved removals based on criminal convictions, which have been before the Court in increasing numbers in recent years.  The recurrence of criminal removal cases should not be surprising given that the Obama administration has been removing noncitizens who have had brushes with the law in record numbers. 

The immigration docket slowed a bit in the 2012 Term, with only two immigration decisions handed down by the High Court. However, the Court did decline to again enter the fray of state immigration enforcement laws. In 2012, the Court decided Arizona v. United States, the blockbuster ruling that curbed state laws purportedly seeking to enforce the U.S. immigration laws. This spring, the Court, with Justice Scalia in dissent, denied certiorari in Alabama v. United States, the Alabama immigration enforcement law case.  The state of Alabama had sought cert after having lost in no small part in the Eleventh Circuit.

Moncrieffe v. Holder

Adrian Moncrieffe immigrated to the United States from Jamaica at age 3 and grew up in the United States. He is the father of two U.S. citizen children. Moncrieffe was pulled over while driving in his home state of Georgia. Police found 1.3 grams of marijuana in his car, an amount the Supreme Court stated as enough for two to three marijuana cigarettes. Moncrieffe was charged with violating an expansive Georgia statute that criminalizes behavior ranging from the social sharing of a small amount of marijuana, to distribution of large quantities of marijuana for sale. Moncrieffe pled guilty and successfully completed probation. Two years later, immigration officials arrested and detained him, and initiated removal proceedings against Moncrieffe alleging that his conviction was an “aggravated felony” and a therefore a “felony” under the federal Controlled Substances Act. The immigration court ordered Moncrieffe removed from the United States. The Board of Immigration Appeals affirmed and the Fifth Circuit denied the petition for review.

In a 7-2 decision, the Supreme Court in Moncrieffe v. Holder resolved a split among the circuits concerning whether a conviction under a state statute that simultaneously criminalizes conduct characterized by both of the Controlled Substance Act (CSA)’s felony and misdemeanor provisions constitutes a felony conviction under the CSA, thus making the crime an “aggravated felony” for immigration purposes (and thus making the noncitizen ineligible for a variety of forms of relief from removal). The Court held that a conviction under state law criminalizing social sharing of a small amount of marijuana is not an “aggravated felony” because the Georgia statute encompassed intent to distribute without regard to amount and remuneration.

Moncrieffe v. Holder is the third time in seven years that the Court held that a relatively minor drug offense was not an “aggravated felony” for immigration purposes.  The Court has been unwilling to impose what amounts to mandatory removal on long term lawful permanent residents of the United States based on relatively small time drug crimes.  The decision in Moncrieffe v. Holder thus will aid small time drug offenders in future removal cases. 

For detailed recaps of the opinions on Moncrieffe, click here and here.

Chaidez v. Holder

Roselva Chaidez entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977. In connection with an automobile insurance fraud scam in which she received less than two thousand dollars, Chaidez on advice of her attorney pled guilty to two counts of mail fraud and was sentenced to probation and restitution. Her conviction became final in 2004.  According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country.   In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her. Through a writ of coram nobis, Chaidez sought to set aside her conviction.   While the petition was pending, the Court issued its decision in Padilla v. Kentucky (2010), which held that the Sixth Amendment requires defense attorneys in criminal cases to inform noncitizen clients of the deportation risks of guilty pleas.  The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided.

In Chaidez v. Holder, the Supreme Court agreed with the Seventh Circuit.  Justice Kagan wrote for seven justices and ruled that Padilla v. Kentucky does not apply retroactively to cases already final on direct review. Justice Sotomayor, joined by Justice Ginsburg, dissented.  The majority ruled that the change in the law was sufficiently significant that it should not apply retroactively.

There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence. The Court understood this to be a run-of-the mill application of basic retroactivity principles, with the junior Justice assigned the decision. Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.

At the same time, the Supreme Court’s holding that Padilla v. Kentucky will not apply retroactively will no doubt affect large numbers of plea deals in which the convictions were entered into before March 2010. The Obama administration has made it a priority to remove “criminal aliens” from the United States and has based many removal actions on convictions more than a few years old. Ultimately, thousands, if not, tens of thousands, of lawful permanent residents facing removal are likely to be affected by Chaidez and likely to suffer significant hardships if removed from the United States. Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens. Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.

For a detailed recap of the opinions in Chaidez, click here.

Conclusion

The Supreme Court’s immigration decisions in the 2012 Term (as well the last two Terms) are difficult to characterize except to say that the Court approaches each case on an individualized basis and applies conventionall rules of administrative agency deference, statutory construction, retroactivity analysis, and the like. The analysis is not ideologically-heavy handed and the outcomes can be difficult to predict.  Immigrants seem to win more than they lose, a pattern that one might not necessarily predict in a Supreme Court led by a conservative Chief Justice.

Cross-posted from Justia's Verdict.

In my last column (Part One of this series), I began to lay out what I think might (and should) happen if the U.S. Supreme Court decides that the Proposition 8 sponsors lack standing in federal court.  I explained my view that such a ruling is the best option for the Supreme Court because the voters of California, in enacting Proposition 8, cannot be said to have designated the sponsors as the People's agents-and agency is a key concept here-in that the voters did not do or say anything that manifested their assent to create a relationship of agency.  (It is on this crucial question of assent to agency where, as I explain in longer academic writings, I part company with thoughtful commentators, like Ed Whelan, who have argued that as long as the California Supreme Court today thinks that under the California constitution the sponsors are the People's representatives, it does not matter whether voters, when they enacted Proposition 8 in 2008, could have anticipated this principle of California law, which was not made clear until 2011.)

I also explained in Part One in this series of columns why I believe that if the Proposition 8 sponsors are found by the Supreme Court to lack standing, both the Ninth Circuit's and the District Court's rulings below should be vacated (that is, erased), and the plaintiffs (the two same-sex couples who sued in federal court in San Francisco) should get relief in the form of a "default" judgment that allows them, and them only (for the time being), to get their marriage licenses.  This result follows, I think, from the overall logic of the law in this area, as well as from what the U.S. Supreme Court said in Karcher v. May, in which a unanimous Court intimated that if the only defendant who is defending on the merits is found on appeal to have lacked standing all the while, the district court's adjudication of the merits of the plaintiff's claim should be vacated.

In the space below, I delve further into what might happen after it is determined whether the District Court's rulings should be left intact or undone.

Scenario 1: Judge Walker's Injunction Stands, and Is Read Broadly

Let us first imagine that the federal courts do not follow my suggested approach concerning Judge Walker's order.  I start with that possibility because I acknowledge that many (maybe a majority of) analysts assert (albeit, to my mind, without adequate explanation or justification) that District Judge Walker's injunction prohibiting the enforcement of Proposition 8 should  not be disturbed and should go into effect as is.  Suppose  that the injunction is left intact, and suppose that the injunction is read (as it certainly can be read) to apply not just to the named same-sex couple plaintiffs, but also to other same-sex couples.  What could happen then?

Well, to begin with, we could expect that neither the California Attorney General nor the Governor would contest this broad reading of the injunction.  And we know that the sponsors of Proposition 8 would not have any legal standing to object either (at least not in federal court).  The two county clerks who were named as defendants in the action, the clerks of Los Angeles and Alameda counties, would also probably be content to issue marriage licenses to other same-sex couples in those counties.

But what about the county clerks in other counties, counties that weren't named in the Proposition 8 lawsuit in Judge Walker's court?  If they feel bound by Judge Walker's order, and none complains, then perhaps Proposition 8 will not be enforced at all, and marriage will be available to all qualified same-sex couples in the state.

Yet, there are a few wrinkles here.  First, some individual who supports Proposition 8 might sue one of these county clerks and ask a court to clarify that Judge Walker's injunction does not apply to that clerk.  The plaintiff here might argue that the clerk in question is not bound by Judge Walker's injunction because he, the clerk, was not a party to that lawsuit and is not under the "control or supervision" (the term Judge Walker used) of any of the parties (such as the Governor.)  Any such suit would probably be brought in state court, because it's not obvious who would have standing in federal court to object to a clerk's issuing of same-sex marriage licenses.

Second, it bears noting that some county clerks represent, and have been elected in, counties that strongly support Proposition 8.  What if one of these clerks resists issuing same-sex marriage licenses, arguing that she remains bound by Proposition 8 until and unless a court tells her, specifically, otherwise?  If so, that clerk might then be sued by a same-sex marriage license applicant to get a determination of whether Judge Walker's order binds her.  Or she herself may even act proactively, going into court to ask for a clear ruling that she, the clerk, is not bound by Judge Walker's injunction or, if she is, to ask that the injunction be reopened because she didn't have a chance to participate in the proceedings Judge Walker's court.

This may then raise the question whether local clerks have federal standing to defend Proposition 8 (and remember that they, unlike the sponsors, they are elected officials).  And even if they do, a similar question arises of whether they have the authority to take a position in court that differs from the position urged by the Governor and Attorney General (that Proposition 8 is unconstitutional.)  These two related questions are tricky, and would likely require additional input from the California Supreme Court, which would take time.

My provisional sense is that it should be rare for any lower executive official in California to be able to take a legal position in court contrary to that which is being asserted by the Governor on the question of the meaning or validity of a statewide law; in a seminal ruling in 1981 (when Jerry Brown was Governor the first time!), the California Supreme Court ruled that even the state Attorney General (elected to be the chief legal officer of the state) could not take a position adverse to the Governor's in court because under the State Constitution, the Governor retains the "Supreme Executive power" to determine the public interests, and under state statutes he is to "supervise the official conduct of all executive and ministerial officers."  It may well be that county clerks are deemed executive and/or ministerial officers for these purposes, and thus are subject to gubernatorial control with respect to the positions taken in court.  It wouldn't make much sense, to me, to give locally elected county clerks more authority than the state's chief legal officer, the Attorney General, to defy the Governor in court, unless we conclude that county clerks are autonomous like charter cities, which have some independence from state control.

But as I suggested above, all this would take time to sort out (especially if any of the proceedings take place in federal court, and the federal judges feel the need to seek input from the California Supreme Court by way of certification, the device the Ninth Circuit used to get state court input on the question of sponsor standing.)

Or maybe all of these problems could be avoided if all same-sex couples seeking to be married are willing to go to Alameda or Los Angeles counties where licenses might be freely issued. Perhaps that would effectively nullify Proposition 8.  But it would also impose its own set of inconveniences on some couples.

Scenario 2:  Judge Walker's Broad Injunction Is Either Read Narrowly to Apply to the Named Plaintiffs Only, or Replaced by a Narrower One That by Its Terms Applies to the Named Plaintiffs Only

Now let us imagine that the course that I argue is the correct legal one is followed, and that whatever injunction is in force is issued (or construed) to award marriage licenses to the named plaintiffs only.  Then what?  One possibility is that county clerks, at least in counties that strongly oppose Proposition 8, would simply decide to start issuing same-sex marriage licenses generally even though no court order is directing them to do so.  While that is imaginable politically, I think it runs into legal barriers.  Indeed, that is precisely the action that was taken by the county clerk in San Francisco in 2004 (at SF Mayor Gavin Newsom's urging) but that was repudiated unanimously by the California Supreme Court in Lockyer v. San Francisco.  There, a majority of California Justices emphatically rejected the idea that a "local executive official, charged with the ministerial duty of enforcing [state law,] has the authority to disregard the terms of the [state law] in the absence of a judicial [directive], based solely upon the official's opinion that the [law] is unconstitutional."  So I don't think that county clerks could, or should, simply start disregarding Proposition 8 on their own.

But what if the Governor were to try to direct county clerks not to implement Proposition 8?  Again that might be politically plausible, but would it fly legally?  For starters, what about the Lockyer ruling?  Strictly speaking, the issue presented in Lockyer involved the power of local executive officials, not that of the Governor, but Justice Werdegar's separate writing in that case understood the majority opinion to sweep broadly and apply not just to local executive officials but to the entire executive branch:  "Make no mistake, the majority does . . . hold[] that [all] executive officers must follow statutory rather than constitutional law until a court gives them permission to do otherwise in advance."

Even if the Governor is not covered by the Lockyer opinion, there is still a question under California law about whether locally elected county clerks enjoy some autonomy from gubernatorial control in their performance of their duties.  I suggested above that perhaps a county clerk may not take a position in court that is adverse to the Governor's on the validity of a state law, but there may be a distinction between having control over the legal positions asserted in court, and having control over enforcement of the law itself.

Indeed, such a distinction (between declining to enforce and declining to defend in court) is hinted at in another potentially important piece of law that may constrain the Governor here, Article III, Section 3.5 of the California Constitution.  It provides that no "administrative agency [even one created by the State Constitution] has . . .power . . . to refuse to enforce a statute, on the basis of its being unconstitutional, unless an appellate court has made a determination that such a statute is unconstitutional."  Does this provision prevent the Governor from directing officials (even if they are otherwise under his control) not to enforce Proposition 8 until an appellate court determines Proposition 8 is unconstitutional?

It might, and it might not.  Is the Governor an "agency" within the meaning of Article III, section 3.5?  The Attorney General has issued advisory opinions that offer one possible definition of "agency" here that is broad enough to include, essentially, all state-level executive operations, and there is no doubt that the Governor is quintessentially executive and operates at the state, rather than the local, level.  At least one California court case seems to apply section 3.5 to another statewide elected official, the State Controller.

What about section 3.5's reference to refusal to enforce a statute?  Could one argue that section 3.5 does not apply to the Proposition 8 setting because Proposition 8 is a state constitutional provision, rather than a statute?  I don't think this argument would work.  First, and most important, it would be odd as a policy matter to favor the enforcement of state statutes over state constitutional provisions.  So the word "statute" here would probably be read to also include state constitutional provisions that are alleged to violate the federal Constitution.

Second, there may be an argument that Governor Brown would be refusing to enforce a regular statute-Proposition 22-were he to order the issuance of same-sex marriage licenses. Proposition 22 is the statute (a statutory initiative known as the Knight initiative) banning same-sex marriage that the California Supreme Court held unenforceable when it ruled in May of 2008 that the state constitution protects same-sex marriage.  But since Proposition 8 amended that part of the California constitution that rendered Proposition 22 unenforceable, perhaps one could contend that Proposition 22 is now a valid statute that would be protected by section 3.5.  A rejoinder to that argument could be that since, under the California Supreme Court's May 2008 decision, the Knight initiative was invalid when it was enacted eight years earlier (and we just didn't know that until 2008), it never was-and is not now-entitled to be considered a valid statutory enactment.  This is convoluted stuff.  And, as is true with the first scenario, all of this would have to be fought out in state court, and that would take time.

Finally, let us return to the distinction between the refusal to enforce a law, and the refusal to defend the law in court.  Whether such a distinction is a sensible one to draw, notice again that section 3.5 speaks only to the former, and does not seem to impose a duty on the Governor (even if he is an agency), or the Attorney General, to defend any measure challenged in court.  So, under Scenario Number 2, imagine that a new lawsuit, a statewide class action consisting of all same-sex couples in the state who desire to get married, is brought to challenge Proposition 8 on federal constitutional grounds (just as the two couples did in Judge Walker's court).  If such a class action were to be brought in federal court, and if the Attorney General and Governor were to decline to defend in that case (and assuming no county clerk could successfully intervene and take a position adverse to the Governor's), a default judgment protecting all same-sex couples would then issue, and Proposition 8 would be a dead letter even if were not repealed at the ballot box.  (It is also possible that such a class action could be brought in state court, alleging that Proposition 8 violates the federal constitution, but since state courts would permit the sponsors to defend the measure on the merits there, any ruling in favor of the plaintiffs would be less certain, and more time-consuming, than a default judgment.)

Thus, if the U.S. Supreme Court finds no sponsor standing in federal court, how broadly available same-sex marriage will be in California might still take some time to sort out.

I don't watch TV or follow much pop culture, and most of the country music I occasionally listen to is from old albums by the likes of Sara Evans, Faith Hill, Martina McBride and Alison Krauss.  But this was apparently a big week in country music thanks to Brad Paisley and his new album Wheelhouse.  I was on the road on Tuesday, but by the time I was catching up on email early Wednesday morning, I had lots of messages from friends giving me a heads up on the furor associated with Paisley's new song, "Accidental Racist," which includes a cameo from LL Cool J.  Commentators have varyingly discussed Paisley and his new song thusly:

• a "middle-age rural liberal reckoning" 
• "well intentioned, if cringeworthy" 
• "cringe-inducing sincerity" 
• "ponderous and lumpy, the worst sort of agitpop"
• "some kind of elaborate joke" 
• "intellectual undercookedness"
• "country's ultimate postmodernist" 
• "how we 'do' race in the age of Obama" 
• "a masterwork of camp to heap our snark upon" and, perhaps the most high-brow reference, 
• "a Derridean act of derring-do." 

In short, as one commentator put it, the song has attracted "an unusual amount of ... sneering."  Another called the response "overpowering vitriol." 

Eric Weisbard did not sneer in his piece for NPR. His headline references the history of white southern musical identity, and Weisbard touches on biases against the South, as well as white-on-white biases:

As you may have heard, Paisley is sifting through some rubble of his own right now, having been declared a national laughingstock by virtually all commentators coming from outside mainstream country. But then, this condescending dismissal is nothing new. There is a history to "Accidental Racist," the history of how white Southern musicians — heatedly, implicitly, at times self-servingly and not always successfully — try to talk about who they are in answer to what others dismissively assume they are. 

After all, while the Jim Crow South was Anglo supremacist politically, American culture offered a very different dynamic. Ever since white Northerners started putting out their records, Southern whites have represented a backward rural mindset in a national culture of jazzy modernity.  ... Variety loved jazz but scorned the hillbilly in 1926 as " 'poor white trash' genera. The great majority, probably 95 percent, can neither read nor write English. Theirs is a community all to themselves. [They are] illiterate and ignorant, with the intelligence of morons."

This reminds me of some of the points I made in The Geography of the Class Culture Wars about contemporary bias against Southerners, rural denizens, and the ever burgeoning group of people who get labeled "white trash." I note that various commentators of this Paisley/Cool J duet speak ill of the South in a broad-brush way that is not so different to what Variety had to say nearly a century ago.  This has me wondering if Paul McCartney and Stevie Wonder's "Ebony and Ivory," to which many commentators are comparing "Accidental Racist", elicited such ridicule when it was released?

Let me be clear:  I do not defend slavery, the historical South, nor the Confederate flag, which I see as necessarily signaling racism.  Further, I offer no comments on the artistic merits of "Accidental Racist," the song, though I will admit that this media frenzy about it led to my first country music download ever just so I could have the full musical experience, first hand.

Mark Kemp, too, puts "Accidental Racist" in historical musical perspective and notes regionalism's role in this kerfuffle.  Kemp observes that this is "hardly the first time a song by a Southerner dealing with white blue-collar issues has produced strong reactions among the Northeastern-based media."  

Weisbard's piece goes on to comment on the "choices" available to southern white musicians in the 1960s and 1970s, choices that may not have changed much:

They could embrace black music and contemporary life and cross over, like former Texan Janis Joplin. They could go bluegrass singing the Carter Family's now revived "Can the Circle Be Unbroken." Or they could join the notion of regional separatism to new concepts of identity: In songs by Merle Haggard and Loretta Lynn, that great euphemism, country, became something you could be proud of like James Brownwas proud to be black.

Cross-posted from Justia's Verdict.

No one knows for sure what the Supreme Court is going to do with Hollingsworth v. Perry, the case (argued late last month) in which two same-sex couples sued in federal court to invalidate California’s Proposition 8, a voter-adopted state constitutional ban on gay marriage.  But many—myself included—think that, among the various scenarios, the most probable outcome (and one that is perhaps more likely than not) is that a majority of Justices will dispose of the case by finding that the Proposition 8 sponsors (also known as the official “proponents” of the measure), the only ones who defended against the challenge, do not enjoy standing in federal court to speak on behalf of the State.  If the sponsors lack standing, there is no valid “case” or “controversy” (terms used in Article III of the U.S. Constitution) in which the Supreme Court could resolve the merits of the plaintiffs’ equal protection and due process challenges.

As I have explained more fully in a number of writings going back a few years (including this one), my reason for doubting the sponsors’ standing—and it differs somewhat from the reasons argued in the amicus brief filed by Professor and former Acting Solicitor General Walter Dellinger, in which he also concludes that the Proposition 8 sponsors lack standing—is that when voters in California passed Proposition 8 in 2008, they could not have in any way be said to have knowingly appointed the sponsors as their agents to represent the State in the event that the Attorney General and Governor fail (as they did, in fact, fail) to defend the enactment if and when it was challenged in federal court.

The Consequences of a Denial of Standing to the Proposition 8 Sponsors:  Common Ground and Divergent Opinions

But if the Court finds no sponsor standing, what happens next?  There seem to be a number of answers that have been offered by various talking heads.  In the space below, the first of a two-part series of columns, I explain, albeit in necessarily abbreviated terms, what I think should and might happen.

For starters, if sponsor standing is found to be lacking, everyone agrees (or certainly ought to agree) that the Ninth Circuit opinion invalidating Proposition 8 on the merits and creating law of the Ninth Circuit that could conceivably affect other states and also other issues in the Circuit would be vacated, that is, figuratively erased.  Beyond that, there is also broad agreement that the two named same-sex couples in the Hollingsworth case who sought marriage licenses from the county clerks in Alameda and Los Angeles counties, respectively, should get their licenses.  But exactly why and how these two named couples would get the relief they seek is where commentators seem to diverge.

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacated.  The named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.”  A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask:  If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Why it Matters Whether a Default Judgment is Appropriate

If the named plaintiffs should get their licenses either way, a reader might ask, why does it matter whether we go the default judgment route, rather than simply leaving Judge Walker’s order in place?  There are a few reasons.  First, plaintiffs must request a default judgment, and as far as I have been able to discern at this point (the record is quite voluminous), no request or motion for entry of a default judgment was made in the district court.  (The fact that no one appears to have made any such request is a bit odd, since Judge Walker himself seemed to doubt the sponsors’ Article III standing even as he allowed them to intervene as parties in the case. Given Judge Walker’s doubt about sponsor standing, the plaintiffs should have been asking themselves whether they even needed a trial to occur in order to prevail.  But it also may be that plaintiffs and their counsel wanted a high-visibility trial for reasons that go beyond procuring justice for the named plaintiffs themselves.)  So, to respect legal niceties, plaintiffs should have to go back and seek the default judgment to which they are entitled.

Second, legal niceties matter here because the scope of the injunction (the judicial command) that Judge Walker issued might have been informed by the trial that he (wrongly) held.  Judge Walker issued an injunction that, by its straightforward terms, tells the defendants (the Governor, the Attorney General, and the County Clerks in LA and Alameda counties) not only that the named plaintiffs can be married, but also that they (the defendants) are judicially prohibited from applying Proposition 8 to anyone else.

As Professor Marty Lederman and I and others have pointed out, under the law of the Ninth Circuit (and perhaps also that of the Supreme Court), a district judge has no power, outside of a class action setting, to order relief that goes beyond protecting the named plaintiffs to also protect other would-be plaintiffs, unless full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants’ interactions with other persons.  In the present setting, full relief (i.e., marriage licenses) can be given to the named plaintiffs without ordering the defendants to give licenses to anyone else.

Some have argued that providing full relief to the named plaintiffs 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 who were already married in California in the summer of 2008 (during the window before Proposition 8 was passed) would have standing in federal court to challenge Proposition 8 on the theory that their marriages, which were not invalidated by Proposition 8, are nonetheless stigmatized unless other same-sex couples can marry too.  And I don’t think that argument would fly.

As Professor Lederman has suggested, Judge Walker’s injunction was seemingly overly broad even assuming that the trial was properly held, and Professor Lederman argues that the way to cure this mistake is to construe the injunction narrowly to apply only to the named plaintiffs, since any injunction broader than that would be impermissible.  Technically, because the words used in Judge Walker’s injunction (and his subsequent denial of a “stay,” or a hold, on his injunction) do not explicitly refer to other same-sex couples beyond the named plaintiffs, we might be able to do what Professor Lederman suggests. But such a reading of the injunction’s plain words seems strained and surely not reflective of Judge Walker’s intent.  Under my approach, no artificial construction of Judge Walker’s order is required, since I think the trial never should have taken place, and plaintiffs need to go back and make a request for a default judgment, after which the judge (Walker’s replacement, since he has retired) can enter a properly limited injunction.  And the appropriateness of a narrow injunction is easier to see after a default judgment than after a trial on the merits.  (As an aside, I do note that after a request for a default is made, a judge can hold a hearing if needed, but I’m not sure that one would be needed here, and I’m certainly not sure that such a hearing would look anything like Walker’s trial.)

Is the Scope of the Trial Court Injunction Appropriate for the Supreme Court to Discuss?

Professor Dellinger, for his part, says the scope of the injunction isn’t validly before the Supreme Court unless and until some valid litigant (i.e., not the sponsors, but rather a valid representative of the State of California) appeals it.  I disagree with this position based on the analysis I’ve just discussed: The impropriety of the trial itself and the judgment to which it led is certainly something that the district court can and should consider on remand if the Supreme Court finds that the sponsors lack Article III standing, and the Supreme Court is well within its authority to give such guidance to the lower courts about what should happen on remand.  But Professor Dellinger and I may have an even deeper divergence of opinion.  Professor Dellinger argues that there is a standing problem in the Hollinger case because the sponsors lack standing, and they are the ones who have tried to invoke the federal court at the Ninth Circuit and Supreme Court levels (having lost in each of the lower courts.)  By contrast, the plaintiffs, who invoked the power of the district court, clearly do have standing, so the district court had a case or controversy before it.

This reasoning is to my mind only partially correct.  The district court did have a case or controversy before it for the limited purpose of granting a default judgment, but not for purposes of holding a trial to adjudicate the merits of the plaintiffs’ claims.  There is always a case or controversy (assuming plaintiffs have standing, and are suing under a federal claim) for purposes of issuing a default judgment; the government or any other proper defendant cannot defeat potentially valid claims by simply not defending against them.  But once the only proper defendants decline to defend, the district court does not have Article III power to do any more.  And it doesn’t matter who was invoking the power of the federal court.

To see this, imagine that the plaintiffs had lost the trial, and had then appealed to the Ninth Circuit, lost on the merits there, and then sought review in the Supreme Court.  In that hypothetical, the party invoking the jurisdiction of each level of the federal judiciary—the same-sex couple plaintiffs—would clearly have standing.  But if the only persons defending were sponsors who lack Article III standing, neither the Ninth Circuit nor the Supreme Court could, in my view, rule on the merits.  (Indeed, when the Supreme Court began its discussion of whether initiative sponsors lack Article III standing in in the 1997 case of Arizonans for Official English v. Arizona, the Court observed that “[s]tanding to sue or defend is an aspect of the case or controversy requirement,” not that standing to invoke the federal courts is an aspect of the case or controversy requirement.)

It seems to me that, notwithstanding some sloppiness here and there by the Court over the years (and no one can draw a straight line through everything the Court has said or done in this realm), if standing doctrine is to have any integrity, what matters for purposes of adjudication on the merits is that there be, at the time the merits adjudication is performed, valid, adverse, Article III-qualified parties on both sides of the “v.,” not just on the side of the “v.” that has invoked the federal judiciary.

In Part Two of this series (currently scheduled to run on this site on April 26, 2013), I will examine what will happen if Judge Walker’s ruling is left intact and is read broadly, rather than narrowly, to apply to couples other than the named plaintiffs. I will also consider what things might look like if, in response to a Supreme Court ruling that the sponsors lack standing, either county clerks themselves or the Governor and Attorney General decide on their own to stop implementing Proposition 8, whether or not any court order tells them they must do that.

In the space below, I offer some quick analysis of the U.S. Supreme Court's oral argument on Tuesday in Perry v. Hollingsworth, the case in which same-sex couples challenge California's ban on same-sex marriage, the voter-adopted Proposition 8.

The Court Was Presented With a False Dilemma Concerning Sponsor Standing

Over the last couple of years, I have written in a number of essays (including this one) that I think that the Proposition 8 sponsors should not enjoy standing in federal court to defend the measure, even though the California Attorney General and Governor have failed to defend.  As I have explained, the Proposition 8 sponsors were never elected nor appointed by the voters, and are not accountable to them.  For these and various other related reasons, the sponsors are not appropriate representatives for the State of California.  In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time when litigation is conducted.

At Tuesday's oral argument, many of the Justices (up to five or more, and especially the "liberal" Justices Ginsburg and Kagan) seemed to understand these problems, and so there may be a majority of the Court for the proposition that Article III's "case or controversy" requirement is not satisfied in the present situation.  Even if fewer than five Justices find sponsor standing to be a problem, the sponsor standing issue could drive the result of the case.  Imagine a split in which three Justices want to reverse the Ninth Circuit on the merits, three want to affirm on the merits, and three want to vacate the lower court ruling for lack of standing.  Under such a scenario, the three Justices who would prefer to reverse on the merits might nonetheless join the three who want to vacate for lack of standing, simply to erase a problematic Ninth Circuit ruling that they all feel should not remain as the law of the Ninth Circuit.

The best counterargument (and it came up at oral argument), in favor of sponsor standing, is that if sponsors lack standing to defend initiatives, then elected officials can wrongly "kill" initiatives by simply not defending the measures when the initiatives are challenged.  This is especially problematic because the initiative device (in those states that have it) is derived from a concern that elected public officials sometimes do not act in ways that are faithful to the people's interests and desires, such that direct democracy is needed.  And while most initiatives are a response to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials that is represented by the initiative mechanism does not also carry over to elected executive officials like Governors and Attorneys General. (Consider, for example, an initiative limiting the terms of all elected officials, including executive officials. An Attorney General's self-serving decision not to defend such a measure would rightly be viewed with great public outrage.)

So, a few Justices (perhaps especially Justice Sotomayor) worried aloud, if sponsors are not allowed to defend initiatives in federal court, then the initiative device could be gutted.  But this framing of the issue ignores a key middle ground position:  that state law can authorize sponsors to defend initiatives (in a way that federal courts will respect and accept), but the authorization has to be done carefully and in a way the voters can see.

In fashioning a workable balance between the competing concerns presented by initiative-sponsor standing, the federal courts should recognize the possibility of sponsor standing, but only when the conferral of the power to sponsors to defend an initiative is clearly provided for in state law, and addresses some of the theoretical and logistical problems raised by sponsor standing. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, sponsor standing seem inadequate to confer notice on the voters since, as the U.S. Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court's jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative (creating authorities and fiduciary duties that the proponent must honor) as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to  address, among other things:  (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor's power to defend lasts; (3) the question of attorneys' fee liability to be satisfied by public fisc if the defense fails; and (4)   what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative sponsors.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision by the California Supreme Court in 2011, perhaps going forward voters in California should know, and take account of, the fact that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court.  (In this regard, I note that the California Supreme Court ruling might not suffice even going forward, because it did not answer some of the key logistical questions about the length of time a sponsor has power to defend the initiative, etc.)   In any event, because such state law clarity was certainly not in place when Proposition 8 itself was passed in 2008 (and I note here that it was passed by a slim margin), the U.S. Supreme Court could easily conclude that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.  The voters of California in 2008 cannot be said to have appointed persons whom the voters did not even know were being appointed at that time.

The Consequences of a Finding That the Proposition 8 Sponsors Lack Federal Standing

If the Court does dispense with Perry on standing grounds, the Ninth Circuit ruling would be vacated (erased), and the case would go back to the trial court.  The named plaintiffs would (and should) get their marriage licenses (because certainly the government must give a plaintiff the relief she seeks when it defaults, that is, refuses to defend against her challenge).  But the extent to which other Californians would be free from Proposition 8-and when that might happen-depends upon many complexities, including the Governor's reaction to a ruling based on lack of standing, a potential state-wide class action lawsuit, and also the wild-card possibility that certain elected county clerks (these might be the "other people" to whom Chief Justice Roberts referred during oral argument) may be granted standing to defend Proposition 8 if it continues to be enforced in the State yet not defended by the Attorney General and Governor.  The procedural entailments of a Supreme Court ruling on standing grounds are themselves very complicated, and the only reason that they weren't explored much more at oral argument this week was, I expect, the constraint of the limited argument time.

What About the Option of Dismissing the Case Altogether At the Supreme Court?

If the Court doesn't want to reach the merits of the Proposition 8 challenge, it has another option as well-to dismiss the writ of certiorari as "improvidently granted."  Under this approach, the high Court would simply decide, upon closer inspection, that it was a mistake to grant review in the case in the first place, and undo that grant.

A dismissal is possible, but this course of action would need to overcome a few hurdles.  First, ordinarily speaking, for the Court to dismiss a case as improvidently granted (or, to "DIG" it, in Supreme Court parlance), at least six Justices would have to agree.  If four Justices want to keep the case, they typically can, since those same four Justices were all who were needed to grant review in the first place (pursuant to something known as the "Rule of Four.")  To preserve the integrity of the Rule of Four, the Court has traditionally taken the view that at least one of the Justices who voted to grant review (and more than one, if there were more than four votes to grant) would have to be among the majority who want to DIG the case.  And at oral argument, Justice Scalia seemed to believe he spoke for at least four of the Justices who voted to grant review when he suggested that the grant was water under the bridge (his actual words were that "we have crossed that river.")  So unless Justice Kennedy and Chief Justice Roberts both want to DIG the case (assuming one or both initially voted to grant review), mustering a DIG would seem to be hard.

Another reason a DIG may be difficult is that, unlike a ruling that the initiative sponsors lack standing, a DIG would leave the Ninth's Circuit's ruling intact.  The Ninth Circuit ruled that Proposition 8 was constitutionally irrational because: (1) it repealed an existing state-law right to same-sex marriage (rather than simply declined to recognize one); and (2) California had done so much to equalize the treatment of gay and straight couples that it no longer had any good reason for not extending the marriage label to gay couples.  None of the Justices seemed to think that this reasoning made sense.  (Justice Kennedy called it "very odd," and Justice Alito asked if the plaintiff's lawyer was "serious" about this argument.  Even Justice Breyer voiced concern over the perverse incentives it creates.)  Because the Ninth Circuit's ruling could have non-trivial spillover effects in other Western states outside of California and/or externality effects on rights other than the right to marry, many Justices may not want to leave it on the books.

My focus on the procedural issues in Perry in no way suggests the merits discussion at oral argument was unimportant or uninteresting.  But space constraints require that I defer them-and a discussion of the oral argument in the Defense of Marriage Act (DOMA) case, Windsor v. U.S.-until future writings.

Cross-posted from Justia's Verdict.

One of the most e-mailed items in the New York Times for the past day or so has been Claire Vaye Watkins "The Ivy League Was Another Planet." (The alternative headline is "Elite Colleges Are As Foreign as Mars.") In her op-ed, Watkins recounts her journey from nonmetropolitan Pahrump, Nevada to college at the University of Nevada, Reno. Her story is that of a kid from a working class family in "rural" Nevada (her description; technically, Pahrump is not rural because, though unincorporated, its 2010 population is more than 35,000) who didn't know about colleges or how to pick one.  Lucky for her, Watkins went on to get an MFA from Ohio State and is now an assistant professor of English at Bucknell.

Watkins writes of getting her wake-up call about dramatic variations in educational resources when she was a high school senior, vying for a prestigious state-funded scholarship. That's when she met a peer from a Las Vegas high school who attended a magnet school, took college prep courses, had a tutor, and had spent time abroad.  The variations in resources, she realized, were based on geography:  he was an urban kid and she was a rural one.  But they were also based on class.  She doesn't specify the background of the Vegas teen, but she mentions that her mother and step-father had not gone to college.  I note that Pahrump's poverty rate is a fairly steep 21.1%.  Just 10.1% of residents there have a bachelor's degree or better, compared to about 30% nationwide.

Even after meeting the privileged teen from Vegas, however, Watkins didn't know what she didn't know.  She remained ignorant of the world of elite colleges, a sector that represented the "other planet" or "Mars" of the headline.  Instead, Watkins applied to UN Reno, she explains, because she had once taken a Greyhound bus to visit friends there. As Watkins expresses it, when poor rural kids apply to college (which, I might add, is altogether too rare), they typically apply to those institutions to which they have been "incidentally exposed."

Commenting on what admissions deans at elite schools might do to reach out to high-achieving, poor rural kids--whom they purport to be interested in for reasons of diversity and excellence--Watkins suggests, tongue in cheek, that they do "anything." More specifically, Watkins cleverly contrasts Ivy League efforts to recruit rural kids, which might be characterized by the terms "zip" and "nada," with military efforts to recruit the same kids, which might be characterized as "fulsome" and "robust." Guess who's winning that contest? The military, of course.  Here are just a few of the points Watkins makes:

• No college rep ever showed up at Pahrump Valley High school, while the military brought a stream of alums through there on a regular basis.
• The school devoted half a day each year to ensuring that every junior took the Armed Services Vocational Aptitude Battery (ASVAB); that test was free, while taking the ACT and SAT was  not.  
• "But the most important thing the military did was walk kids and their families through the enlistment process."

Watkins closes by noting that elite colleges need to do more to reach those she calls "the rural poor," concluding that, until they do, "is it any wonder that students in Pahrump and throughout rural America are more likely to end up in Afghanistan than at N.Y.U.?"

The jumping off point for Watkins' op-ed is a recent paper by two profs (from Harvard and Stanford, no less), Caroline Hoxby and Christopher Avery, "The Missing 'One-Offs':  The Hidden Supply of High-Achieving, Low Income Students."  That paper was publicized in the Times last week-end in David Leonhardt's story, "Better Colleges Failing to Lure Talented Poor."  The summary and conclusions of the Hoxby and Avery paper do not talk in terms of rural-urban difference in relation to these missing "one-offs."  (They do, however, employ a tiny bit of geographical nuance in Table 9, listing two categories of "rural" students, those near an urban area and those far from one). Instead, Hoxby and Avery focus on the benefits to students of being in "geographic concentrations of high achievers."  They write in their abstract, for example, that these high-achieving students who fail to apply to elite schools

come from districts too small to support selective public high schools, are not in a critical mass of fellow high achievers, and are unlikely to encounter a teacher or schoolmate from an older cohort who attended a selective college.  

And where might those students be?  mostly in rural schools.  For folks like Watkins, it isn't hard to read between the lines and see that the high achievers most likely to slip between the cracks are kids in rural schools.    

All of this brings to me my own experience.  Like Watkins, I can see that many of the "missing" students Hoxby and Avery are talking about are rural.  My own K-12 school in rural Arkansas had an enrollment of about 400--and no counselor whatsoever to advise on college admissions. The first Ivy League graduates I ever met were professors at the University of Arkansas. I was there because, like many who Hoxby and Avery studied, I assumed it was the best bargain for me.  I didn't apply elsewhere.

I have to trust that the numerous people reading Watkins' tale will believe her revelations of her naiveté regarding college.  I certainly hope so, though I have been struck over the years at how many people are incredulous at my similar tale.  How, they marvel, disbelief in their voices, could you not have known to go to a "good school"?  People of privilege can find it remarkably difficult to believe that other people could really not know the things that are the very intellectual and emotional wall-paper of a life of privilege.

But there is another, related problem:  poor rural kids and the diversity they represent often go unvalued by educational decision makers.  Because these rural kids Watkins is talking about are often white, they don't appear, at first blush, to represent diversity.  Plus, I find privileged whites are just as uncomfortable around working class whites as they are around people of color--maybe more so in this day and age.  That discomfort--unmitigated by the need be politically correct because no PC imperative exists regarding poor whites--may deter the privileged from reaching out to recruit poor whites.  After all, as Watkins points out, it's not like these elite colleges are hurting for applicants.

Finally, privileged metropolitan and cosmopolitan types tend to hold the limitations of rural education against those who are products of it, discounting what these kids have achieved because of the absence of AP classes, the right extracurricular activities, and such.  (Read more here and here).  I recall being on the selection committee for the first round of elite Sturgis Fellows at the University of Arkansas in the late 1980s.  When I spoke up for a candidate with what I considered to have stellar credentials, a professor on the selection committee quickly countered by noting that the student was from a rural school, suggesting that the student's achievements had to be kept in proper perspective--namely that s/he had not been subjected to true intellectual rigor.  I recall meekly pointing out that I, too (then the University of Arkansas's undergraduate valedictorian) was the product of a rural school.  What was I?  chopped liver?  or just an anomaly?  I'll never know how the selection committee saw me.  But perhaps because I protested so meekly, my comment--and the outstanding rural candidate--got no traction.  All of that inaugural group of Sturgis Fellows, as I recall it, were from sizable high schools.    

Cross-posted to ClassCrits, UC Davis Faculty Blog, and SALTLaw Blog.    

Cross-posted from Justia's Verdict.

Now that the 2012 election is in the rear-view mirror and the 2016 election is still somewhat distant on the horizon, this is an appropriate time to return to the question of presidential election reform.  As I have written about many times (including here) on this and other websites, and in academic journals, one important and prominent reform effort, known as the National Popular Vote (NPV) Compact, seeks to move the country in the direction of making it ever more likely that the President who is elected is the candidate who obtains the most voter support nationwide.

Some Key Background of the NPV Concept

The essential idea (elaborated by me, my brother Akhil Amar and, independently also by Professor Robert Bennett over a decade ago) is to get various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but rather for the candidate who wins the most popular votes nationally. This system, with enough states as signatories, would generally mean that the winner of the Presidential contest would be the person who had won the largest number of votes from individual voters nationwide.  In that way, the plan would ensure that every voter-regardless of the state in which she lives-would have her vote count equally to that of every other voter in the country. Importantly, the agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college-that is, states whose electoral college allotments collectively total 270 or more-ratify it.

To date, eight states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont and California) and the District of Columbia-comprising 132 electoral college votes altogether (almost half the needed 270 votes)-have adopted the plan.

Various policy arguments have been raised against the NPV idea, and in favor of the status quo.  More importantly for present purposes, however, in the past few years some analysts have raised constitutional objections to the NPV plan.  In the balance of this column and in a subsequent column, I will address some of these arguments.  Many of the constitutional criticisms that have been advanced relate to the compact aspect of the NPV plan, and focus on whether or not Congress would have to approve the coordinated interstate action before the current NPV plan being adopted were implemented.  I have touched on some of these criticisms before, and will return to others in a later writing.

A Challenge to the Ability of Any State, Whether Acting Alone or in Concert with Others, to Allocate Its Electors With an Eye to the National Electorate

But in the space below, I respond to a different line of constitutional challenge laid out by Willamette Law Professor Norman Williams, who wrote in a 2012 law review article that, putting aside the compact aspect of the NPV plan, it is unconstitutional for a state to pick its electors based on the national (as opposed to in-state) popularity of a candidate because such a decision by a state would violate Article II of the Constitution-the provision that tells each state to appoint its electors "in such manner as the legislature thereof may direct"-and the understanding of Article II embraced by the constitutional "framers."

Under Professor Williams' reading of the Constitution, even a state that were not coordinating with other states would be prevented, under Article II, from picking its electors with an eye towards the national vote tally.  (In an earlier law review article, to which I wrote an academic journal response, Professor Williams had suggested, completely unconvincingly to me, that a state that based its electoral college decision on the national electorate would be violating the Equal Protection Clause of the Fourteenth Amendment; this newer article relies instead on Article II and the expectations of the Framers in 1787.)

Professor Williams observes that his reading of Article II "may strike many as counterintuitive."  That may be true, but that is not necessarily fatal from a constitutional viewpoint.  To my mind, the problem with Professor Williams's line of argument is not that is it is not intuitive, but rather that it is not strong.

There are many parts and subparts of Professor Williams's claim, but his thesis can be distilled into two large pieces, each of which I treat in turn.

The Novelty of a State's Looking to the National Electorate

One thing Professor Williams points out is that, until now, no state has tried to pick its electors based upon national voter popularity.  That is true, but it is also largely beside the point.  Sometimes a device has never been tried because it is unconstitutional, but as even Chief Justice Roberts in the Obamacare ruling made clear, novelty is not itself a constitutional infirmity, because "there is a first time for everything."  Indeed, most of the aspects of the presidential election process we take for granted today would have been novel for much of America's history.  The rise of political parties; the near-automatic access that the major parties have to put their candidates on presidential ballots; the development of the "short-form" ballot - by which voters register preferences for actual Presidential candidates, rather than for individual presidential electors (the folks who make up the so-called electoral college); the requirement of many states that electors take pledges to support particular candidates, etc. were all unheard of for generations after the founding.  And yet no one thinks that any of these devices is unconstitutional simply because it was new when introduced.

Moreover, the idea that states would want to look to the national electorate at this point in history in particular is not hard to explain.  The 2000 election was the first modern presidential contest (after the country has internalized the one-person, one-vote ideal of the 1960s redistricting cases) in which the successful president candidate obtained fewer votes nationwide than his opponent.  Moreover, the country is far less divided today geographically (even as it remains sharply divided by party) than it was for most of the nation's history.  Businesses, families, and culture are much more dispersed throughout the United States.  People move around within the United States (and thus may want their vote to count equally wherever they move) much more today than in the Eighteenth, Nineteenth and early Twentieth centuries.  Political scientists have documented (and, indeed, quantified) much more carefully today than ever before how current presidential elections tend to favor a few "swing" states, such that non-swing states that are largely ignored in the presidential election have selfish reasons today for moving, either individually or by coordinated action, to a national popular vote scheme.  And so forth.  For these reasons, there is nothing constitutionally suspicious about new ideas and innovations in the voting realm generally, or about the timing or origins of this one idea in particular.

The Rejection of a Direct National Election in 1787, the Fear of Majoritarianism Embraced by the Framers, and the Problem of Who the Relevant Framers Are

The other big component of Professor Williams's argument revolves around the decision in the Philadelphia Convention, at which the Constitution (including Article II) was drafted, to reject a proposal by Connecticut delegate Gouverneur Morris that the President be elected directly by the citizens of the United States.  Because this proposal was voted down, and based on a criticism of the proposal by delegate Charles Pinckney on the ground that it would unduly favor the populous states, Professor Williams argues that the framers conceived of Article II as prohibiting any system that overly focuses on or empowers a national majority.

There are numerous problems with this argument, none of which Professor Williams adequately anticipates or addresses.  First, the evidence he advances for this "expectation" on the part of the "framers" is very thin.  He does not cite any specific discussion in the Philadelphia Convention of the limits on state legislatures to pick electors on whatever basis they choose, and analyzes no evidence from the ratification debates in the states that bears in a specific or even general way on the question.  The "framers" were not simply the men who sat in Philadelphia who had conversations to which no one else was privy; the framers who count more in constitutional interpretation are the folks who read and understood the words that emerged from Philadelphia and decided to make them the "law of the land."

And the words of Article II on their face give states broad latitude to pick any kind of electors they want.  Surely that would have been the ordinary meaning attached to the phrase "in such manner as the legislature thereof may direct."  Under any variant of Scalian textualism/originalism, these words-absent some evidence that persons outside Philadelphia would have interpreted them differently-foreclose Professor Williams's argument.  (To be sure, subsequent amendments to the Constitution, like the First and Fourteenth Amendments, might limit the kinds of criteria that states may take into account in picking electors-prohibiting, e.g., racial and religious discrimination in elector selection-but these limits do not come from Article II, the provision on which Professor Williams relies.)

The Multiple Explanations for, and Consequences of, the Rejection of a Direct National Election at the Founding

Moreover, even focusing on the Philadelphia Convention alone, Professor Williams himself cites to other reasons-besides a deep-seated rejection of national majoritarianism-that explain some delegates' aversions to Morris's plan.  Some of those in Philadelphia rejected direct election because the voters (absent modern communications, transportation, or the advent of national parties) would lack adequate information on which to base their votes.  Other delegates expressed the related fear that voters would, lacking adequate information, simply vote for local favorite-son candidates.  Yet others voiced their concern not in terms of populous versus small states, but rather in terms of Northern versus Southern states; direct election would have enabled the North, with more voters, to abolish slavery, which would have been unacceptable to Southern states and have lead them to reject constitutional ratification.

None of these three objections (each of which or all of which might account for the rejection of Morris's proposal) is relevant today in the context of the NPV plan:  Voters today all across the country have adequate information to pick a President; a state basing its Electoral College selection decisions on the nationwide electorate is not favoring local, native-son, candidates but instead is casting its gaze at a non-parochial level; and (thankfully) slavery is no longer a salient legal or political feature of America.

And even if Professor Williams could show (and he doesn't) that the biggest force shaping Article II was distrust of majoritarianism, that would still not provide much support his ultimate conclusion.  Article II's drafters did reject imposing a nationally majoritarian regime on the states, but that is a far cry from saying they foreclosed  such a regime if that is what states (acting individually or collectively) want to do.  There is a parallel here to Article III of the Constitution, which reflects a fear that lower federal courts could end up displacing state courts.  This fear didn't leave the framers to either require or foreclose the creation of lower federal courts, but instead to leave the matter up to Congress.  At most, Article II does not require or foreclose states from looking to the national electorate, but rather leaves the matter up to the states themselves.

What About Other Moves in the Past Centuries Towards Majoritarianism?

Yet another damning counterargument to Professor Williams's thesis is that if NPV is too majoritarian to survive under Article II, why aren't all the other developments in the evolution of modern presidential election mechanics that have occurred over the past two centuries also unconstitutional?  The rise of political parties, the placement of major party nominees on ballots bearing party designations, and the advent of the short-form ballot all moved the country towards a system that facilitates a national popular vote-winner becoming President.  Indeed, by making it less likely that no candidate will lack a majority of electoral college votes on the first ballot, these devices virtually eliminate the prospect of an election being thrown into the House of Representatives, which (because under Article II each state would have one vote in the House) was the most important nonmajoritarian electoral device the framers expected would come into play often.  As a result, all these innovations moved the country away from nonmajoritarianism and in the direction of majoritarianism much more than the NPV plan does, which could be seen as trying merely to narrow an already small window of nonmajoritarianism that remains.

And if Professor Williams's rejoinder to this is that closing the last open slit in a window is qualitatively different (and worse) than moving it from wide open to almost closed, I would note that the NPV idea doesn't close the window entirely, for three reasons:  First, absent coordination, a state's decision to base its electors on the nationwide vote doesn't come close to guaranteeing that the President will be the national vote winner, so an individual state's decision to use the national tally as a basis for picking its electors cannot be said to guarantee a nationally majoritarian outcome.  Second, a state that adopts an NPV stance can always change its mind in subsequent elections, so the system isn't inalterably majoritarian.  And third, since electors in the Electoral College are, strictly speaking, independent and can't be coerced into voting in any particular way-even the way they themselves have pledged-there is no plan, short of constitutional amendment, that would entirely close the window on the possibility of nonmajoritarianism.

Indeed, the essential implausibility of Professor Williams's argument can be seen simply by focusing on the independence of the electors.  Imagine that an elector today from some very closely divided state, under the way things currently work, thought that the nation would erupt into civil war if the person who won the nationwide vote tally were to be denied the presidency.  Couldn't that free-agent elector take into account, under Article II, that specter of war in deciding how to cast his electoral college vote?  And if so, then why can't a state (and its legislature and people) choose to select electors who are inclined to have that mindset?

All of this brings me to a passage in Professor Williams's article that may reflect part of the problem with his approach.  He says that each state's electors must be "accountable to the people of that state" and that the electors must "reflect directly or indirectly the choice of each state's own electorate."  The reality, however, is that NPV complies with this requirement.  The people of those states who have joined NPV have (through their legislature, which is accountable to them) made their choice to focus on national voter popularity when they select their electors.  No one is forcing them to do so; to the contrary, we are respecting their (and no one else's) desires by respecting their commitment to NPV.  (And the problem, in Professor Williams's eyes, cannot be that the legislatures are committing to NPV without the ratification of the voters of NPV states, because Professor Williams would not accept NPV any more readily if states joined it by initiative, rather than through their legislatures. And indeed, Article II's reference to "legislature" may foreclose the initiative device here.)

The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states.  The NPV states aren't delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.