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December 21, 2012

Top 10 Immigration News Stories of 2012

Cross-posted from Immigration Prof Blog.

Each year, ImmigrationProf lists its top 10 immigration stories of the year. Below are the top stories for 2012, many of which are directly related to the Top 10 Stories for 2011.

1. Reelection of President Obama and the Return of Comprehensive Immigration Reform

With overwhelming support from Latino voters, President Barack Obama was reelected as President of the United States.  After the election, Republicans in Congress expressed greater willingness to consider enactment of comprehensive immigration reform, and the possibility of reform in the next Congress appears to be a distinct possibility

There were also some interesting footnotes to the Presidential campaign, including Bruce Springsteen campaigning for the President in the days leading up to the election and a DREAMER addressing the Democratic National Convention.

2. Arizona v. United States

In its biggest immigration decision in many years, the Supreme Court in June in Arizona v. United States invalidated three of four provisions of Arizona’s S.B. 1070 on federal preemption grounds. The Court, however, upheld Section 2(B), perhaps the most controversial provision, which requires police to verify the immigration status of any person who the officers have “reasonable suspicion” of being in the country unlawfully.

Also in 2012, lower federal courts invalidated significant portions of the immigration enforcement laws of Alabama, Georgia, and South Carolina. The number of pieces of state immigration legislation has been dropping.

The Supreme Court decided a number of other immigration cases in 2011-12, applying ordinary rules of statutory construction and agency deference with the immigrant winning in a number of the cases.

3. Deferred Action Against Childhood Arrivals Announced by the Obama administration

in June, the Obama administration made the blockbuster announcement that it would create the Deferred Action for Childhood Arrivals program, which would allow for deferred action and temporary work authorization for eligible undocumented immigrants who came to the United States as minors.  It was one of the big immigration news items – and to many surprises – of 2012.

The continued pressure of the DREAMers on the administration should be given at least some credit for the new program.  The DREAMers continued their political activism and organized a “No Papers, No Fear” bus trip to the Democratic National Convention.

DACA also created new controversies. While California decided to allow DACA recipients to be eligible for driver’s licenses, Governor Jan Brewer and Arizona quickly made it clear that Arizona would not issue licenses to DACA recipients.

4. Maricopa County, Arizona Sheriff Joe Arpaio Remains Embroiled in Controversy -- and Wins Relection

America’s Toughest Sheriff, Maricopa County Arizona Sheriff, Joe Arpaio remained in the news in 2012. Standing trial this summer for alleged civil rights violations of immigrants and Latinos, Arpaio testified in his defense.

After an investigation, the U.S. Department of Justice concluded that Sheriff Arpaio and the Maricopa County Sheriff's Office engaged in widespread violations of the civil rights of immigrants and Latinos.

Although it is not sure why the Maricopa County Sheriff's Office has jurisdiction over anything to do with the birther controversy, Sheriff Arpaio also made the news when his office investigated and finding that there just might be something to the claims of the birthers that President Obama is not a natural born U.S. citizen. 

Despite all the controversy, voters relected Sheriff Arpaio in November.

5. Mass Murder in Wisconsin In Wisconsin

In August, a gunman killed six people in on a shooting spree at the Sikh Temple of Wisconsin in Oak Creek.  

6. Apologies for Past Immigration Wrongs

2012 was a year of immigration apologies.  The U.S. of Representatives adopted a resolution (H. Res. 683, 112th Cong. (2012)) apologizing for the Chinese Exclusion Act of 1882, which barred the admission to the U.S. of nearly all Chinese until 1943. The House sponsor was Judy Chu (D.-CA.), the first Chinese-American Congresswoman. The House’s 18 resolution follows the adoption of a companion resolution in the Senate in October 2011.

Some 80 years ago, tens of thousands of Mexicans and Mexican Americans living in L.A. County were forced aboard trains and taken to Mexico. In February 2012, the L.A. County Board of Supervisors formally -- and finally -- apologized.

7. 30th Anniversary of Plyler v. Doe

June 15, 2012 was the 30th anniversary of the Supreme Court's pathbreaking decision in Plyler v. Doe, 457 U.S. 202 (1982), which protects the rights of undocumented students to a public elementary and secondary school education.

8. The California Supreme Court Considers the Admission of Undocumented Immigrant to Practice Law

Born in Mexico, Sergio Garcia was first brought to the United States by his parents when he was 17 months old. After graduating from California State University, Chico in rural California, Garcia attended California Northern Law School, an unaccredited law school, and subsequently passed the California bar examination. He disclosed his immigration status in his bar application and, after an interview, satisfied the California State Bar that he possessed the “good moral character” necessary for the practice of law. After receiving the California State Bar’s recommendation of Garcia's admission, the California Supreme Court issued an order to show cause on why the motion for the admission of Sergio Garcia by the California bar should be granted. Briefs were filed in support of Garcia’s admission including by the California Attorney General, immigration law professors, bar associations, law school deans, and others; three briefs opposed the licensing of Garcia, one of them by the U.S. government. The U.S. government contended that 8 U.S.C. § 1621(c), which precludes the issuance of any professional license provided “by appropriated funds of a State or local government,” bars Garcia’s licensing as an attorney by the independent California state bar and California Supreme Court.

The California Supreme Court has yet to issue a decision in the case.

9. The Race for the Immigration Bottom in the Republican Presidential Primaries

In a Republican presidential debates in Arizona -- the Duel in the Desert, four Republican Presidential candidates, Mitt Romney, Newt Gingrich, Rick Santorum, and Ron Paul, debated immigration.  There were no real surprises -- support for the border fence, agreement with Arizona's approach to immigration enforcement, criticism of the Obama administration, etc.

The Republican debate in Florida was a bit toned down, likely because of the different Hispanic demographic there.

All in all, the tough talk on immigration in the Republican primaries, including by Mitt Romney, may well have contributed to the landslide of Latino support for President Obama and his relection.  See Item 1 above.

10. Immigrants Help Team USA in London Olympics

Team USA benefited from immigrants in the London Olympics.

December 21, 2012

How a Case About Decriminalization of Marijuana Has Substantial Implications for the Rights of Gay and Lesbian Persons

With co-author Alan E. Brownstein. Cross-posted from Justia's Verdict.

Two of the biggest storylines from last month’s elections involved battles over same-sex equality rights and the decriminalization of marijuana.  On the surface, these two topics seem to have little in common.  But the intense controversies they are generating on the American political landscape arise from a similar kind of generational and demographic divergence of attitudes between older, whiter, Red-state voters on the one hand, and younger, more racially diverse and more Blue-state voters on the other.  Both issues also raise prominent questions about federalism:  the relationship between state laws and state experimentation with federal supremacy and uniformity.  And, as we explain in more detail in this column, the two controversies continue to be connected in unnoticed and unexpected ways.

SB 1172—California’s Attempt to Rein in Sexual Orientation Change Efforts (SOCE)

Take, for instance, an important legal development in the same-sex equality arena. We speak here not of the important decisions by the U.S. Supreme Court two weeks ago to accept review in cases involving California’s ban on same-sex marriage, Proposition 8, and the federal law defining marriage for federal purposes as being between only a man and a woman, the Defense of Marriage Act (DOMA).  Instead, we are referring to a recent pair of federal district court decisions from Sacramento addressing constitutional challenges to SB 1172, an attempt by California to protect gay and lesbian teens by prohibiting mental health providers from engaging in so-called “conversion therapy.”

Finding that “[a]n individual’s sexual orientation, whether homosexual, bisexual, or heterosexual, is not a disease, disorder, illness, deficiency, or shortcoming,” and that “there is no evidence that any type of psychotherapy can change a person’s sexual orientation,” California lawmakers amended the State’s Business and Professions Code to prohibit these providers from undertaking “sexual orientation change efforts” (SOCE) with minors—defined as persons under the age of 18. The term “mental health provider” in the statute applies to a long list of state-licensed or state-registered mental health care professionals, such as psychiatrists, psychologists, and clinical social workers, as well as any other person who is designated a mental health professional under California law. “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation.

SOCE methods vary.  Some therapies, described as aversion treatments, involve the use of negative reinforcements including induced nausea, electric shocks, shame aversion and other aversion techniques.  Non-aversion treatments include the use of hypnosis and various educational and therapeutic efforts to facilitate and reinforce other-sex sexual behavior.

A number of affected mental health professionals sued to block the law’s enforcement on the ground that, because SOCE efforts often take the form of communication between therapist and patient, the First Amendment prevents the state from regulating what the content or substance of that communication can be.  One district judge (William Shubb) issued an injunction against the law’s implementation, agreeing with the plaintiffs’ argument, and another district judge (Kimberly Mueller), in a separate but similar lawsuit, declined to block the law, finding that its enforcement was unlikely to violate anyone’s free speech rights.

Importantly, whether one agrees with Judge Shubb or Judge Mueller depends in large part on how one interprets a decade-old case from the U.S Court of Appeals for the Ninth Circuit that involved, you guessed it, state decriminalization of marijuana.

The Central Importance of a Marijuana Case to the Cases Relating to SOCE

The 2002 marijuana case, Conant v. Walters, involved a challenge to then-U.S. Attorney General John Ashcroft’s policy of threatening federal investigation and revocation of federally granted prescription privileges for any doctors who “prescribe or recommend” to their patients the use of marijuana for medical purposes. The dispute arose because, in 1996, California adopted an Initiative (Proposition 215) that changed the State’s penal laws to decriminalize the use of marijuana by individuals who use the drug upon “recommendation” of a physician.  The Ashcroft Justice Department conceded that a state may choose to decriminalize whatever it wants to, under state law: What is criminal under California’s law is for California to decide. But Ashcroft pointed out that any possession and use of marijuana – which is federally classified as a Schedule I controlled substance, for which there are no permissible uses – remains a violation of federal criminal law, no matter what the status of marijuana use may be under state law, and no matter whether the marijuana use is medically-related or not. (The U.S. Supreme Court later upheld this federal law, the Controlled Substances Act, or CSA, against a challenge contending that Congress did not have the power to regulate local, medicinal marijuana possession and use in 2003, in the well-known Gonzales v. Raich case.)

Based on the CSA, the Justice Department argued in Conant that a doctor who prescribes for, or recommends to, patients the use of such Schedule I controlled substances has forfeited his privilege to prescribe narcotics, a federally conferred license reserved, under the CSA, for doctors who act in the “public interest.”

The Ninth Circuit in Conant blocked the Ashcroft policy, with two judges opining that by prohibiting recommendations, the federal policy impermissibly interfered with the First Amendment rights of doctors to communicate with their patients.  The third judge, Alex Kozinski, who is often characterized as having libertarian instincts, joined in this First Amendment reasoning, but also argued that the Ashcroft policy violates the “new Federalism” cases—decided by the Supreme Court over the last few decades—that try to insulate state government from federal bullying. (More on that later.)

Why Conant Was Problematic Under First Amendment Theory and Doctrine

One of us (Vik Amar) wrote an essay that was rather critical of the Conant case when it came down.  Although the Ninth Circuit’s First Amendment arguments had surface plausibility, they did not withstand careful scrutiny:

As to the free speech rationale, the Ninth Circuit failed to satisfactorily acknowledge that the First Amendment has traditionally allowed the government to regulate the professions in content-based ways. There may be a right to speak out in favor of medical marijuana, but that does not mean there is a right to do so as a doctor.

Imagine, for example, that a lawyer—rather than a doctor—was “recommending” to his client the use of an illegal drug. Even though such a recommendation would be “protected” by the First Amendment in that the lawyer could not be arrested and jailed for his speech (unless he was inciting his client to imminent unlawful conduct), there is no serious question but that the lawyer could be disciplined by the State Bar (and possibly stripped of his license to practice law) on the basis of his actions. This discipline and disbarment would be completely consistent with the First Amendment.

None of this is to say that government can dole out prescription privileges based on political viewpoints or party affiliations or government loyalty oaths. Clearly, some content-based conditions attached to the privilege of practicing medicine would violate the First Amendment.

Moreover, if government is forcing or encouraging doctors to give inaccurate or misleadingly incomplete information to patients, then free speech and privacy principles may converge to call such regulation into constitutional doubt. For example, in the famous and controversial case of Rust v. Sullivan, where the Supreme Court upheld by a 5-4 vote the so-called abortion gag rule imposed on doctors receiving federal funding, the Court did not adequately address the way in which the conditions imposed on doctors may have led them to affirmatively mislead their patients.

After reflecting on the questions raised by Conant for a decade, both of us continue to think that, as a general matter and putting aside partisan manipulation and/or fraudulent speech, the regulation of professional conduct generally, and the regulation of medical practice in particular, does not (or at least should not) raise free speech concerns that require rigorous judicial review.

First, conceptually, it is often necessary to distinguish between speech acts and speech, between speech that is part of a course of conduct and speech that that is essentially and exclusively speech for First Amendment purposes. Sometimes these can be hard cases. But in cases involving professional regulation, they are often relatively easy to resolve.

Take one profession adverted to above—the legal profession.  Lawyers talk a lot. Indeed, much of what they do is undeniably describable as communicating. They argue in court to judges orally and in writing. They negotiate with other lawyers. They offer advice to clients. But the practice of law is heavily regulated. Lawyers are subject to a rigorous code of professional responsibility. The briefs they file in court are restricted as to size and content. The arguments presented in court are subject to judicial orders and judicial discretion. It is hard to imagine how the provision of legal services could operate even remotely smoothly if every rule and every judge’s decision limiting lawyer speech in some way required compelling justification because it was subject to rigorous judicial review under the First Amendment.  Instead, the practice of law is understood to constitute professional conduct—not speech—and the regulation of the practice of law thus rarely raises free speech issues.

Second, and more specifically to the SOCE case, it should be obvious that the entire history and tradition of common-law and statutory regulation of the medical profession flies in the face of any contention that the licensing or control of medical practice by state authorities violates free-speech guarantees.

Consider another example, this one involving health care professionals. Joe goes to Dr. Smith complaining of back pain. Dr. Smith tells Joe to go home and engage in a series of stretching exercises to cure his discomfort. Joe does so but his condition deteriorates. In fact, accepted medical practice rejects the stretching exercises recommended by Dr. Smith because of the excessive risk that performing such exercises would render most patients’ back problems considerably worse.

If Joe sues Dr. Smith for worsening his back pain, he would be bringing a conventional medical malpractice case. In such a case, Joe can recover civil damages against Dr. Smith if he can prove that Dr. Smith acted negligently (unreasonably) in his provision of medical services to Joe. Generally speaking, what constitutes accepted medical practice in the community sets the standard of reasonable care in a medical malpractice case, and a jury will be asked to determine whether Dr. Smith’s treatment failed to satisfy that standard of care.  And if Dr. Smith continued to tell patients with back problems to engage in these problematic stretching exercises, he would probably be called to account and disciplined by the State Medical Board.

Obviously, in this case, Dr. Smith’s recommended course of treatment involves speech. However, no one would think that this case raises a free-speech problem. There is no history or tradition suggesting otherwise. If the punishment of doctors who practice quackery had to be rigorously evaluated under the First Amendment lens, every malpractice judgment in a case like this one would have to be reviewed under strict scrutiny. The plaintiff or the State would have to persuade the court that the specific standard of medical care accepted in the state was much more than a reasonable way to promote public health. Instead, the court would have to be convinced that the standard of care was the least restrictive way to further a compelling state interest—an extremely difficult burden of justification to satisfy.  Put simply, this is not the way courts do, or should, treat medical malpractice or medical discipline cases.

Finally, there are important federalism concerns at stake here. While the federal government has the power to regulate medical practice (and that is why Conant probably was wrongly decided), for the most part, the regulation of the medical profession is a matter of state and local concern. Not all states may choose to regulate doctors in the same way. Standards of care may vary from state to state. Some states may follow California in prohibiting SOCE as a medical treatment. Other states may decide otherwise.

If the regulation of medical treatment involving speech requires federal constitutional review, however, control over the regulation of medical practice in these cases shifts from the state to the federal government, and from the legislature to the judiciary. It is federal judges who will decide whether the standard of care implemented by state medical boards or interpreted by local juries can be justified.  Federal judges would determine whether the harm allegedly caused by SOCE is adequately proven, or whether the harm caused to some patients by SOCE is outweighed by the alleged benefits experienced by other patients. And the decisions of those federal judges would be binding on every state subject to their authority. If this occurred, the dramatic expansion of free-speech doctrine (by its application to professional conduct involving speech) would substantially displace democratic decisionmaking and state autonomy.

Limiting and/or Distinguishing Conant in the SOCE Setting

We should note here that Conant was no model of clarity, and thus its application to the SOCE dispute could continue to generate differences of opinion, just as it did in Judge Shubb’s and Judge Mueller’s courtrooms. There is much language in Conant that could be read expansively to suggest that all communications between a physician and her patient, in the course of the provision of medical services, is protected by the free speech clause of the First Amendment and that, as a result, virtually any regulation of such communications must be justified under rigorous constitutional review.

But other parts of the Conant opinion suggest a more limited analysis. The Ninth Circuit conceded that recommending the medical use of marijuana should not be understood to be the same thing as aiding and abetting a violation of the Controlled Substances Act (which Congress could legitimately punish).  Recommending is not prescribing, said the Ninth Circuit.  Recommendation of marijuana does not necessarily make marijuana use a part of the ongoing medical treatment provided by the physician to his patient.

Pursuant to this argument, a physician recommending marijuana to his patient with the words, “You might consider marijuana as a way to control your nausea,” would be protected by the First Amendment. It would be a different case, however, if the physician instead told his patient, “This is what I want you to do. Purchase some marijuana. You can buy some at the dispensary on 4th St.  Whenever you feel nauseous, you should smoke a joint. Come back in two weeks and we will evaluate your course of treatment.”

We do not think this distinction really should have mattered in Conant, since both kinds of recommendations are undertaken by the doctor as part of his professional treatment of the patient, so that what is being regulated by the federal government was the conduct of the delivery of treatment services, rather than speech itself.  But we do acknowledge that because the Conant opinion seems in some places narrowly tailored to the specific regulation at issue there, it is not clear whether the Ninth Circuit would want Conant to extend the scope of the First Amendment protection of professional conduct to reach the SOCE situation.

Thus, while poorly written sections of the Conant opinion may justify an expansive interpretation of that decision—and it is understandable that Judge Shubb read it that way—there is also a plausible doctrinal argument for limiting the scope of Conant and distinguishing it from the free-speech challenges brought against SB 1172 and the regulation of SOCE. This is the approach taken by Judge Mueller—who pointed out that SB 1172 explicitly focuses on, and prohibits, the conduct of delivering a particular medical “therapy” or treatment—and it is one that the Ninth Circuit itself may embrace when it analyzes Conant if the SOCE cases are appealed (as is likely).

Another Important Link Between Conant and Same-Sex Equality, This Time in the DOMA Context

There is another important sense in which Conant—a marijuana case—may bear on same-sex equality cases, in particular, the DOMA case on which the Supreme Court recently granted review.  In Conant, Judge Kozinski argued in his concurrence that by revoking doctors’ licenses, the federal government was preventing California from decriminalizing marijuana in its chosen way. “In effect,” wrote Kozinski, “the federal government is forcing the state to keep medical marijuana illegal. [And] preventing the state from repealing an existing law is no different from forcing [it] to pass a new one [which everyone agrees the federal government cannot do]; in either case, the state is being forced to regulate conduct that it prefers to leave unregulated.”

As one of us (Vik Amar) explained when Conant came down, this reasoning is open to serious question:

If the federal government were forcing California legislators or police to regulate on its behalf, there would be a problem under existing Supreme Court cases. But the feds are doing no such thing. Instead, they are simply regulating doctors themselves, and telling California that it may not immunize doctors from otherwise valid federal regulation.

To see the fallacy of Judge Kozinski’s argument, imagine that California had decriminalized marijuana use not on a recommendation of a doctor, but rather only if a doctor participates in the actual administration of the drug (on the theory that only a doctor can ensure the dosages are truly medicinal.)

Certainly a doctor who assists a patient in actually using the marijuana can be regulated under federal law, notwithstanding that this federal regulation may displace – and thus make difficult the accomplishment of – California’s objectives. But if the feds can regulate doctors’ administration of marijuana in the face of California’s wishes, why can’t the feds regulate doctors’ recommendation” of marijuana even though California would prefer otherwise?

Whether Judge Kozinski’s argument was convincing or not, we observe today that it is quite similar to, and indeed in some ways the precursor of, the argument embraced by the U.S. Court of Appeals for the First Circuit in its case invalidating the DOMA: that by not recognizing same-sex marriages entered into in Massachusetts, the federal government was burdening and impeding Massachusetts’ decision to recognize same-sex marriages in violation of federalism principles.  The federalism argument in the marriage context may be more plausible than in the marijuana context (because marriage has traditionally been much more a function of state than federal law), but the analogy between the two settings remains, and those on both sides of the DOMA debate would profit from reading and assessing Judge Kozinski’s analysis in Conant.

 

December 7, 2012

Equal Access to the Tools of Political Change; The Sixth Circuit’s Coalition to Defend Affirmative Action Case Is Destined For the Supreme Court

Cross-posted from Justia's Verdict.

One of the most closely watched cases—if not the most closely watched case—on this year’s Supreme Court docket is the challenge to the University of Texas’ race-based affirmative action program, Fisher v. University of Texas.  In Fisher, the Court will decide whether the Constitution leaves any room for public universities to use the race of individual student applicants in the admissions process. To put the point more technically, the Court will decide whether the “strict judicial scrutiny” applied to such programs is always fatal or, instead, allows a narrow space for public institutions to undertake such programs in order to enhance the racial diversity of the student body.

Assuming that the Court does not entirely foreclose race-based affirmative action in Fisher (and, as I explained in an earlier column, Justice Anthony Kennedy, whose vote will probably be dispositive, is unlikely to go that far), the Court will then likely have to take up another affirmative action case, this one recently decided by the Sixth Circuit Court of Appeals sitting en banc.

The Sixth Circuit case, Coalition to Defend Affirmative Action v. Regents of the University of Michigan, focuses not on whether a state may permissibly make use of race-based programs, but rather (somewhat non-obviously) on how a state that tries to abolish affirmative action may, in doing so, violate the Constitution.

The Background of Michigan’s Proposal 2, and the Sixth Circuit’s Coalition to Defend Affirmative Action Case

The Sixth Circuit’s en banc decision, handed down about a week after last month’s election, invalidated Proposal 2, a voter-initiated amendment to the Michigan Constitution.  Proposal 2, adopted six years ago, was itself seemingly prompted by the Supreme Court’s 2003 ruling in Grutter v. Bollinger.  In that case, involving a race-based admissions program used by the University of Michigan law school, the Court, by a 5-4 vote, held that although a state’s use of race to classify individuals is “suspect” and triggers “strict judicial scrutiny” under the Equal Protection Clause of the Fourteenth Amendment, a narrowly tailored plan in which the race of higher education applicants is considered alongside numerous other factors, in order to admit a critical mass of minority students, is a permissible way to accomplish the compelling government interest of ensuring a diverse law school student body.

Proposal 2 responded to Grutter by amending the Michigan Constitution to completely forbid Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity or national origin.” Proposal 2 thus attempted to close, as a matter of state constitutional law, the small window of federally permissible race-based affirmative action that had been identified in Grutter.  The 8-7 en banc ruling by the Sixth Circuit (following up on a 2-1 ruling by a three-judge panel of the same court earlier this year), reflects an attempt to keep that window open, at least for the moment.

To understand the Sixth Circuit case and the issues it raises, let us start by remembering that most race-based affirmative action programs are in no way required by the Constitution—and indeed are, as noted above, assessed by the courts under a stringent standard dictated by the Fourteenth Amendment.  The programs at issue, designed to diversify public institutions (and also perhaps to provide some remedy for past discrimination against racial minorities), are voluntary, in that nothing in the federal Constitution requires their existence.  How then,  readers may wonder, can their abolition be even arguably problematic under the federal Constitution?

The answer, derived from a group of Supreme Court cases decided a generation ago, lies in the fact that sometimes programs (like affirmative action) that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult.  And when minorities are subjected to greater political obstacles in the adoption (or readoption) of the programs they might support than are other groups, such disparate political-process treatment, said the Supreme Court, raises equal protection problems.

Consider, for example, the 1969 Supreme Court case of Hunter v. Erickson.  In Hunter, the people of Akron, Ohio—responding to an ordinance that prohibited racial discrimination in housing that had been enacted by the City Council—amended the city charter to prevent the implementation of any such ordinance that had failed to gain the express approval of a majority of Akron voters.

The amended charter defined the ordinances that were to be subject to the newly created popular-approval requirement as those laws regulating real estate transactions “on the basis of race, color, religion, national origin or ancestry . . . .”  The charter amendment, the Court pointed out, “not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required approval of the electors before any future [housing discrimination] ordinance could take effect.”

By an 8-1 margin, the Justices struck down the charter amendment as a violation of equal protection. The Court declined to rest its decision on a finding of racist intent on the part of voters (which today would be a conventional rationale for invalidating laws that seem to reflect invidious attitudes towards racial minorities). Instead, the Court nullified the law because it effectively drew a “racial classification [which] treat[ed] racial housing matters differently [and less favorably]” than other matters.

The Court found it crucial that the law, while neutral on its face in the sense that it drew no distinctions among racial and religious groups, would nonetheless uniquely disadvantage the beneficiaries of antidiscrimination laws—racial minorities—by forcing such laws to run a legislative gauntlet of popular approval that other laws, and thus other interest groups, were spared.

A dozen years later, in Washington v. Seattle School District No. 1, the Court applied and extended Hunter in a way that has direct implications for the Sixth Circuit’s treatment of Proposal 2. The essential background of the Seattle case is this: In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used pupil reassignment and busing to eliminate one-race schools.  The Seattle program, in turn, prompted the people of Washington State to enact Initiative 350.

On its face, Initiative 350 provided broadly that “no school board . . . shall directly or indirectly require any student to attend a school other than [the geographically closest school].” The initiative, however, then set out so many exceptions to this prohibition that the effect on local school boards was to bar them from ordering reassignment or busing for the purpose of racial integration, but to permit them to order reassignment or busing for all other educationally valid reasons (sibling attendance, access to particular educational programs, etc).

By a 5-4 vote, the Court struck down the plebiscite. As in Hunter, the Court declined to rest its holding on a finding of invidious intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because it singled out racial busing—a program of particular importance to racial minorities—and moved it from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success; if racial busing—but racial busing alone—were ever to be reenacted anywhere in the state, its proponents would need to lobby and win at the state, rather than the local school district, level. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court held, denied such minorities the equal protection right to “full participation in the political life of the community.”

In both of these cases, the Supreme Court applied (with varying degrees of clarity) a two-pronged test: First, someone who challenges a given law must show that the law in question is “racial” or “race-based” in “character,” in that it singles out for special treatment issues that are particularly associated with minority interests.

Second, the challenger must show that the law imposes an unfair political-process burden with regard to these “minority issues” by entrenching their unfavorable resolution at a level, or in a process, of state government where it is distinctively hard for minorities to prevail.

Strict scrutiny is triggered only if the challenger satisfies both parts of the test. A law that imposes special political-process burdens on classes that are not associated with race does not directly implicate the cases.  Similarly, a law that deals explicitly with “racial” issues but does not impose any entrenching political process burdens—for example, a law that simply repeals pro-minority policies at the same level of government at which they were originally enacted—is also unproblematic.

The Sixth Circuit’s Application of the Hunter-Seattle Doctrine

Utilizing this two-part test, the Sixth Circuit concluded that Proposal 2 was constitutionally flawed. First, it held that the measure was racial in character, in that it dealt specially with an issue—race-based affirmative action—that is of distinctive interest and benefit to racial minorities. Indeed, the racial busing programs in the Seattle case were just one type of “voluntary” race-based affirmative action; if elimination of those programs affected minorities especially, then elimination of the broader category of which they were a part would seem to do so, as well.

Moving to the second part of the test, the Sixth Circuit held that Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government—that of the state constitution—at which minorities are less likely to succeed than they are at lower levels, such as local government or university administration. Although Michigan is free to repeal affirmative-action programs, the Sixth Circuit suggested, it cannot repeal such programs at a level higher than the one at which those programs were initially adopted, just as the State of Washington could not repeal racial busing at the statewide level, rather than the local level.

As the Sixth Circuit explained in its opening sentences, “[a] student seeking to have her family’s alumni connections considered in her applications to one of Michigan’s . . . public universities could do one of four things to have the school adopt a legacy-conscious admissions policy:  she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution.  The same cannot be said for a black student seeking adoption of a constitutionally permissible race-conscious admissions policy.  That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive and arduous process—to repeal the consequences of Proposal 2.  The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

What Is Likely to Happen in the Supreme Court

The Sixth Circuit’s reasoning is careful, and its result is defensible under current law; there really is a powerful logical sense in which the structure and reasoning of the Seattle case applies with full force to doom Proposal 2.  But the case will almost certainly be presented to the Supreme Court, and unless the Court eliminates race-based affirmative action entirely in Fisher, the Court will most probably grant review.  The Sixth Circuit en banc ruling openly disagrees with a Ninth Circuit case from the 1990s in which that court upheld California’s state- constitutional ban on race-based affirmative action (Proposition 209) in the face of a Hunter-Seattle challenge.  Many observers (myself included) thought that the Ninth Circuit’s reasoning did not convincingly distinguish the Seattle case or otherwise explain why that case did not control, but that is neither here nor there now that there is a sharp circuit conflict that the Supreme Court will likely feel the need to resolve.

And when the Court takes the Proposal 2 case, I would expect Proposal 2 to be upheld, perhaps overwhelmingly, by the Court.  Why?  For starters, none of the Justices who were on the Court at the time of the Seattle case are still there. Stare decisis applies, to be sure, but stare decisis may tend to have more weight when some member of the Court who voted in the majority in the original case is present to defend it when the Court revisits the matter.  It also bears noting that the “liberals” on the Court today (e.g., Ruth Bader Ginsburg, Steve Breyer, Elena Kagan) are not nearly so liberal as the liberals who were on the Court in the early 1980s (e.g., William Brennan, Thurgood Marshall).  (We saw some evidence of that last Term, in which Justices Breyer and Kagan joined in the 7-2 invalidation of the Medicaid spending conditions that were at issue in the Obamacare case.)

Not only has the Court’s personnel evolved; so has its doctrine.  The Seattle case and its underlying reasoning would not appear to reflect current thinking at the high Court. Over the past twenty years, City of Richmond v. J.A. Croson (an affirmative action case involving the City of Richmond) and its progeny have justified strict scrutiny for purportedly “benign” race-conscious programs by emphasizing (among other things) certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others).

These cases reflect an equal protection doctrine that embraces formally symmetrical rules governing members of all races, and the cases seemingly downplay the significance of traditional contextual concerns, such as the political powerlessness or historical oppression of racial minorities in particular.  The “feel” of these recent decisions thus diverges from the more nuanced and asymmetrical “feel” of Hunter and Seattle. It is for that reason that I have elsewhere written that Hunter and Seattle may not “make[] sense in today’s world.”

Of particular relevance, the Court has observed in recent decades that race-based affirmative action programs threaten to embrace and “foster harmful and divisive stereotypes,” which might “balkanize us into competing racial factions.” Proposal 2, its supporters would thus contend, does not frustrate valued minority interests. Rather, the Initiative simply moves Michigan law into line with the Supreme Court’s current disparaging attitude toward affirmative action programs. Another way of making the point is to observe that Grutter (the 2003 Michigan law school case) is the exceptional result over the last two decades; most of the time it has visited these issues, the Court has invalidated racial affirmative action, or at least urged lower courts to do so.

Finally, the societal backdrop against which the Proposal 2 case will be heard is very different from that against which the Seattle and Hunter cases arose. In those cases, the Justices in the majority may very well have smelled a rat—in the form of an evil racist motive on the part of the voters—but were too genteel to say so explicitly.

Indeed, there may be many cases in many areas of constitutional law that are, in fact, driven by unstated intuitions harbored by the Justices about impermissible legislative intent.

For example, the Court’s invalidation on federalism grounds of the so-called “Gun Free Schools Zone Act” and the “Violence Against Women Act” in the Lopez (1995) and Morrison (2000) cases, respectively, may have been partially attributable to the Court’s (unarticulated) sense that Congress was not sincerely motivated by the commercial/economic implications that these laws had, and so could not properly rely for their defense on the Commerce Clause.  (For many of those of us who taught and studied the Obamacare case, this aspect made that case—which focused on a policy choice that was sincerely motivated in significant part by economic aspirations—very different from these earlier laws that the Court had struck down.)  But for complicated reasons, the Court may not always be open about the extent to which improper legislative intent is influencing its rulings.

In any event, in Twenty-First Century Michigan, the Court may infer racist intent from Proposal 2 far less readily than it may have from a state’s ban on racial busing over 30 years ago. One possible lesson that may emerge after the Supreme Court resolved Proposal 2 is that sometimes, grounding a decision in invidious intent directly—insulting though it may seem to the polity that is rebuffed—may reduce the doctrinal complexities that are caused by more elaborate, but less intuitive, theoretical explanations of the kind offered in the Seattle case.

December 6, 2012

Is the Time for Immigration Reform Now?, or Now is the Time for Immigration Reform!

Cross-posted from Immigration Prof Blog.

With the results in from Election 2012, a sea-change has occurred in the political prospects for comprehensive immigration reform. Let us step back for a second and see where the nation stands, and where it might go, with respect to meaningful reform.

For close to a decade, Congress has debated comprehensive immigration reform, which presumably would include (1) some kind of path to legalization for millions of undocumented immigrants, (2) increased enforcement measures, and (3) reform of the legal immigration provisions of the U.S. immigration laws. As we all know, Congress has repeatedly failed to act on reform proposals, even failing in 2010 to pass a version of the DREAM Act that would have addressed a small subset of the immigration issues facing the nation.

In 2008, President Obama campaigned for office in support of comprehensive immigration reform.  After winning the election, he increased enforcement dramatically –- indeed, setting deportation records of nearly 400,000 a year in the last two years -- in hopes of convincing Republicans that the administration was serious about immigration enforcement. The President ultimately was unable in his first term to persuade Congress to pass immigration reform.

With the void in immigration reform at the federal level, states entered the fray. In just the last few years, several state legislatures, including those in Alabama, Arizona, Georgia, and South Carolina, passed state immigration enforcement laws designed primarily to encourage “self deportation” by undocumented immigrants. Many Latinos found the debates surrounding those laws to be, at a minimum, insensitive. Some observers saw the support for the state measures as fueled at least in part by anti-immigrant, anti-Mexican, and downright racist sentiments.

Courts found most, but not all, of the major provisions in the state immigration enforcement laws to run afoul of the U.S. Constitution and intrude on the federal power to regulate immigration. Indeed, in the most well-known case, a conservative Supreme Court in June 2012 invalidated three of four core provisions of Arizona’s S.B. 1070 in Arizona v. United States.

Political action for immigration reform continued. In June 2012, after several years of tinkering with prosecutorial discretion in removal, the Obama administration unveiled the Deferred Action for Childhood Arrivals (DACA) program, which provides undocumented immigrants who came as children to the United States to relief from removal and temporary work authorization (and, in some states, eligibility for driver’s licenses).

As a political consultant might say, DACA energized the base. Latinos as a group -- and a majority of other Americans -- supported DACA. And Latinos overwhelmingly supported President Obama over Mitt Romney in the 2012 Presidential election.

Recall that, during the Republican primaries, Romney supported Arizona’s S.B. 1070 and other measures designed to encourage “self deportation,” opposed the DREAM Act, and had as a top immigration advisor Kris “Deporter in Chief” Kobach, the archtitect of many of the state immigration enforcement measures. It is hard to see how any of these might have encouraged Latino about the possibility that Romney might be good on immigration.

Although hindsight often characterizes the Obama victory as overwhelming and even preordained, it was an extremely close race.  The result was far from certain in the days leading up to the election. Many credited Obama's victory at least in part to overwhelming Latino support (and the lack of enthusiasm generated among Latinos for Romney). Republican strategists now have gone back to the proverbial drawing board in an effort to figure out how to attract Latino voters.

Not long after the election, political leaders, including some Republicans as well as President Obama, expressed renewed support for immigration reform.  Earlier this week, former President George Bush emphasized in a speech that immigrants benefit the American economy and strongly suggested that Republicans should rethink their immigrant unfriendly positions if they want to attract Latino voters.

There also appears to be growing resistance to enforcement-only approaches to immigration. For example, California Attorney General Kamala Harris, an ally of the President, this week encouraged local law enforcement agencies to not adhere entirely to the Obama administration's Secure Communities program, which requires local law enforcement to provide federal immigration authorities with data about immigrants who are arrested. The Los Angeles County Sheriff's office, one of the largest law enforcement agencies in the country, also announced this week that it would not follow the Secure Communities program to the letter.

All in all, the political time is right for comprehensive immigration reform.  However, for reform to become a reality, interested parties cannot rest on the laurels of an Obama presidential victory.  Rather, continued pressure -- like that that resulted in DACA -- is necessary to convince Congress to act.  President Obama is quite correct that he cannot do what Congress will not do.  However, immigrant rights activists, Latinos, and others who support responsible and humane immigration laws and policies must make sure that meaningful immigration reform remains on the front burner.  Otherwise, we will have to wait for the next Congress, next President, etc.