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December 20, 2013

The Question of Disparate Speech Impact in the Supreme Court’s Upcoming McCullen v. Coakley Case

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

Today we analyze a very intriguing issue raised by a case that will be heard by the U.S. Supreme Court next month, McCullen v. Coakley, in which the plaintiffs challenge a Massachusetts law limiting pedestrian traffic near abortion clinics.  The statute in question makes it a crime to "enter or remain on a public way or sidewalk adjacent to" a reproductive rights clinic within 35 feet of "any portion of an entrance, exit or driveway" of the facility.  The statute exempts from this prohibition persons who are entering or leaving the facility, employees or agents of the facility acting within the scope of their employment, emergency and utility personnel doing their jobs, and people who are using the sidewalk or public way to reach a destination other than the facility.  The law's challengers-individuals who seek to communicate with women who may, at that place and moment, be contemplating abortion-allege that the law violates the First Amendment.  The challengers lost in the U.S. Court of Appeals for the First Circuit, and in June the Supreme Court granted review.

The case raises many important constitutional issues.  Indeed, this is not the first time the Supreme Court has agreed to review, under the First Amendment, judicial or legislative attempts to regulate protest activity taking place outside medical facilities and abortion clinics, and among the questions presented in McCullen is whether the Court should overrule Hill v. Colorado, one of its important earlier cases relating to these matters.

Content/Viewpoint Based vs. Content-Neutral:  A Crucial Distinction

In the space below, we do not attempt to address all the significant constitutional issues the McCullen case presents.  Instead, we limit ourselves to the relatively confined question of whether a law like this one should be characterized as a "content-neutral" regulation of the "time, place or manner" of speech or conduct, or instead whether the law should be viewed as one that discriminates on the basis of the content or viewpoint of speech (or speakers).

This question is profoundly important, because under well-established First Amendment doctrines, if a law is content- or viewpoint-based, it is subject to the strictest judicial scrutiny, and will almost always be struck down. Content-neutral regulations of speech, by contrast, are reviewed under a more lenient, intermediate level of review and are often, although not always, upheld.  (We take no position in this column on how the Massachusetts law in question, or other situations we examine, should fare under the intermediate scrutiny test.)

Usually the Court determines whether a law is content- or viewpoint-based by looking at how the law is written.  For example, a law that prohibits all picketing in an area but exempts labor picketing is content-based, because the exemption from the regulation is defined on the face of the statute in terms of a particular topic or subject matter of speech.  Similarly, a law that explicitly makes it a crime to burn a flag "in order to show contempt" for it, but that does not prohibit burning as a means of respectfully disposing of a damaged flag, would be viewpoint-based. These laws would be subject to very high scrutiny.

Formal Neutrality and Disparate or Discriminatory Effect

The plaintiffs in the Massachusetts case would have to concede that the law they are challenging does not, as a formal matter, single out or even mention any identifiable speaker or particular subject or viewpoint of speech. The plaintiffs argue, however, that this law should be understood as a content- or viewpoint-discriminatory regulation because by restricting speech in a particular place, in front of reproductive health clinics, the state is burdening only one side of a debate. They contend that although the law may be neutral on its face, it is discriminatory in its effect.  And this discriminatory or disparate impact should lead courts to be skeptical of the law and strike it down for that reason.

In making their argument, the plaintiffs rely on the commonsense fact that speech in front of reproductive health clinics is overwhelmingly, if not exclusively, speech that is opposed to abortion.  As their brief argues:  "Massachusetts has . . . taken care to frame an Act that as a practical matter affects speech on only one issue-and, indeed, on only one side of that issue.  The Act's lack of generality or neutrality is demonstrated both by the specific locations at which it applies and by the specific speakers whom it affects." (Some of the amicus briefs in favor of the challengers also argue that the law should be viewed skeptically because the legislature's actual motive was problematic, but we defer discussion of so-called motive analysis under the First Amendment to another day, focusing here on whether the disparate effect of a law justifies treating it as a disfavored content- or viewpoint-based law.)

We do not deny that a law that singles out particular places for speech restrictions may often have a disparate effect on speech and debate.  People on one side of a debate often use particular places to express their message much more frequently and aggressively than do people on the other side(s) of the same debate.  But allowing courts to look behind the actual content of the statute and determine what standard of review to apply based on disproportionate effect could radically undermine settled doctrine, require the implicit overruling of many judicial decisions, and lead to the invalidation of laws that are already on the books, or that are likely to be enacted without controversy, because they are considered to be content-neutral regulations.

How Disparate Effect Analysis Would Disrupt the Case Law and Statutory Landscapes

The reality is that many of what today are generally considered to be content-neutral speech regulations were adopted in response to a problems created by identifiable classes of speakers with distinct messages or viewpoints. Under current law, we respond to that reality by requiring a statute to apply to all would-be speakers, not just those whose speech activity raised the legislature's consciousness about the need for regulation. Thus, a limitation on residential picketing, or a buffer zone in front of medical clinics, may be created in response to anti-abortion protests, but the laws responding to this problem must, as a formal matter, apply to labor picketing and other protests as well.   If the Court were to go beyond this current insistence on formal content- and viewpoint-neutrality, and begin subjecting all laws that have predictable disparate effects to the strict scrutiny that applies to content- and viewpoint-based laws, then  significant past Court cases  might require reconsideration.

For example, in the seminal case of United States v. O'Brien, the Court upheld a law that made it a crime to destroy government-issued draft cards, even if the cards were burned for expressive purposes as a form of political protest.  Could anyone doubt that the overwhelming majority of people who destroyed draft cards (and who were thus subject to the law) did so in order to express a particular anti-draft, anti-war, or anti-government point of view?  Or take Frisby v. Shultz, a case in which the Court upheld a ban on residential picketing, as applied to protesters who wanted to picket outside an abortion doctor's home.  Certainly, this ban had meaningful effect only on people expressing critical messages in front of a resident's home; people don't tend to picket in front of your house if they like what you're doing. Honesty compels the acknowledgement that the ban on residential picketing was prompted by, and in the real world most directly affected, anti-abortion activists.

Also, a disparate effect analysis might very well require the invalidation of other laws that current doctrine would tend to permit. To give but two (out of many possible) examples, facially neutral buffer zones around foreign embassies might be unconstitutional because pro-embassy supporters obviously tend to be less affected by (and less likely to be prosecuted under) such regulations than anti-embassy protestors.  And virtually all laws that try to regulate activity near funeral proceedings would be open to question. Over forty states have recently adopted such regulations. It is common knowledge that the vast majority of people today who want to assemble and demonstrate near funerals are members of an identifiable religious group with a distinctive, somewhat bizarre, and extremely unpopular message and point of view.

The Problems of Subjectivity and Disharmony With Other Constitutional Areas

In addition to requiring the overruling of some past cases and the invalidation of laws that are currently deemed constitutional, a change in doctrine emphasizing disparate impacts would add considerable subjectivity and indeterminacy to free speech cases. There will always be questions about both the extent of a predictable or expected disproportionate impact that is created by a law, and just how much of an impact is required to compel a conclusion that the law is content- or viewpoint-based.   For a court that eschews subjective standards (as this Court does, as evidenced by its unwillingness to recognize free exercise of religion claims against neutral laws of general applicability), it is hard to understand why increasing subjectivity and indeterminacy would be appropriate here. Free speech doctrine is complicated enough without blurring established, albeit complicated, categories.

Further, a Supreme Court decision holding that a locational regulation will, by virtue of disparate effects, be considered content- or viewpoint-based and thus trigger strict scrutiny would be anomalous and hard to reconcile with the way in which the Court considers disparate impact in other areas of constitutional law.  For instance, we can compare free speech doctrine to equal protection doctrine.  Under the Equal Protection Clause, government cannot discriminate against racial minorities (just as, under the First Amendment, it cannot discriminate against particular viewpoints.)  But in the equal protection context, a law that is formally race-neutral on its face, but that generates predictable disparate impacts along racial lines (such as a requirement of a high school diploma to be eligible for a government job) is not subject to strict scrutiny, notwithstanding that, in the real world, it tends to disadvantage racial minorities more than white persons. The Court, in the famous Washington v. Davis case in 1976, rejected strict scrutiny based on disparate racial impact, to avoid a slippery slope that would undermine the validity of far too much legislation. Think of all the laws-like flat sales taxes and bridge tolls-that have predictable disproportionate effects on poor persons, and thus on racial minorities (because of the unhappy correlation that persists between the two). All such laws would be subject to strict scrutiny under a disparate impact approach.

And in one important sense, the case for strict scrutiny for racially disparate laws is actually stronger than it is for laws that generate disparate speech effects. In the equal protection setting, if a racially disparate law is not subject to strict scrutiny, it is subject to a very deferential rationality review, which in many cases operates like a rubber stamp upholding the law. In the free speech arena, however, even laws that are not considered content- or viewpoint-based are still subject to a meaningful intermediate level of judicial scrutiny that often has real bite to it that can result in the invalidation of the law.

Conundrums Within Speech Doctrine That a Disparate Effects Approach Would Create

Moreover, a focus on disparate speech effects would create a range of doctrinal conundrums under the First Amendment itself.  Content-neutral regulations of speech serve important social functions. A particular location may be a very useful place to express a message, but it also may be a place where speech imposes serious burdens on third parties (including particularly vulnerable audiences such as patients at medical clinics or mourners at funerals), such that the speech needs to be regulated.  A multi-factor balancing test (the intermediate standard that currently governs content-neutral laws) may be the best way to take all of the relevant values and interests at stake in these cases into account. Yet the Court's heightening of review based on disproportionate impact would tend, in effect, to read the state's interest in restricting speech out of the picture because almost nothing passes strict scrutiny.

Another problem with increasing the rigor of the Court's review of locational or other regulations because of their foreseeable disparate effects on speech is that this approach would send conflicting and confusing messages to lawmakers. On the one hand, under the intermediate scrutiny that is currently applied, content-neutral speech regulations are not supposed to burden substantially more speech than is necessary to further the state's interests. This suggests that content-neutral laws should be drawn narrowly to cover as limited a time, place, or manner of speech as possible to serve the state's goals. But if a disproportionate effect approach makes narrow laws vulnerable to receiving heightened review precisely because their narrowness generates disparate effects, then legislatures are going to broaden laws as a matter of course:  The broader the scope of the law, the harder it is to find that the law disproportionately burdens any particular subject or viewpoint of speech. Thus, with courts emphasizing disproportionate effects, the state is forced to walk a constitutional tightrope and may violate the First Amendment if it deviates even a bit in either direction; if the state adopts a narrow law, the likelihood increases that the law will receive rigorous review because the law disproportionately burdens one subject or viewpoint of speech more than others, but if government broadens the law, the law is more likely to be struck down under the intermediate scrutiny test that will apply, because the law will inevitably restrict more speech than is necessary to further the state's interests. This means that a focus on disproportionate speech effects will do more than make judicial decisions in this area more subjective and indeterminate; it will also undermine legislative discretion and flexibility in drafting and adopting laws.

We are not suggesting that there are no possible answers to any of these seeming dilemmas, or that disparate effect should never factor into any well-conceived First Amendment analytic framework.  Rather, what we are saying is that before the Court begins to travel down this road, it needs to think carefully not just about clinic-access cases, but also about a much larger swath of free speech and larger constitutional doctrine.

December 17, 2013

Top 10 Immigration News Stories of 2013

Cross-posted from ImmigrationProf Blog.

Here are my top 10 immigration news stories for 2013:

1. Congress (Again) Fails to Pass Immigration Reform in 2013

The biggest American immigration news in 2013 by far was Congress's failure -- once again -- to enact comprehensive immigration reform.

The prospects for successful passage of immigration reform initially were promising. In June, the U.S. Senate passed the immigration reform bill by a 68-32 vote.  The high hopes for the passage of immigration reform were dashed when the House under the leadership of Speaker John Boehner (R-Ohio) never took up the bill.   This failure came after many months of political agitation for Congress to act on a reform proposal.

Protests followed, including a well-publicized fast by well-known political figures on the National Mall, who were visited by the President, First Lady, and Vice President.  Moreover, an undocumented "heckler" grabbed national attention by asking President Obama at a press conference if he would place a moratorium on deportations.  

2. Boston Marathon Bombing Suspects Are Legal Immigrants

April's horrific bombing at the venerable Boston marathon on Patriots' Day grabbed national attention.  It turned out that the alleged perpetrators were lawful immigrants from Chechnya.

The Rolling Stone magazine's decision to put Dzhokhar Tsarnaev, the accused Boston Marathon bomber, on the cover of an issue ignited a firestorm of controversy.

3. Immigration Lawyer and Law Professor Margaret Stock Wins MacArthur "Genius" Award

In September, immigration attorney and Professor Margaret Stock was honored with a MacArthur "Genius" Award.

4. DHS Secretary Becomes President of University of California System

In September, U.S. Department of Homeland Security Janet Napolitano, also former Governor of Arizona, made a major career move and became the President of the entire University of California

5. DHS Recognizes Same Sex Marriages for Immigration Purposes

After years of resistance, the Department of Homeland Security moved amazingly fast in recognizing same sex marriages for immigration purposes after the Supreme Court's decision in United States v. Windsor (2013) striking down Section 3 of the Defense of Marriage Act. 

A week after the decision, Secretary of Homeland Security Janet Napolitano issued a statement "that effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse."  (emphasis added).

This quick Executive Branch action demonstrates that elections in fact do matter. It is hard to imagine that a President Romney would have done what the Obama administration did with respect to gay marriage in the mere stroke of a pen.

6. Federal Court Rules Arizona Sheriff Joe Arpaio Violated U.S. Constitution: Court Says Arpaio and His Deputies Have Engaged in Racial Profiling Against Latinos

After a trial in summer 2012, the District Court in May 2013, issued a lengthy ruling, which found that Sheriff Joe Arpaio of the Maricopa County Sheriff's Office (MSCO) engaged in a pattern and practice of racial profiling in its immigration enforcement activities in violation of the U.S. Constitution and entered a permanent injunction barring future profiling of Latinos by the MSCO.  The court later issued a supplemental order calling for a monitor, bias training, policy changes for the MSCO. 

The racial profiling in state and local immigration enforcement was ducked by the Supreme Court in Arizona v. United States (2012), in which the Court refused to strike down Arizona S.B. 1070's "show me papers" provision requiring police to check the immigration status of any person about whom they reasonably suspect is in the country in violation of the U.S. immigration laws.

7. Immigration in the Supreme Court in the 2012 Term: Individualized Decision-Making, No Immigration Exceptionalism

In the 2012 Term, the Supreme Court decided two immigration cases, which fall into the mainstream of immigration jurisprudence.   The most significant decision was Moncrieffe v. Holder, in which the Court refused to subject to mandatory removal a long-term lawful permanent resident who had been convicted of a drug crime for possession of the equivalent of a few marijuana cigarettes (currently legal in a number of states).

8. Obama Administration Sets Many Immigration Enforcement Records.

The Obama administration continued to show its deep and enduring commitment to immigration enforcement  The administration has deported more immigrants than any administration in U.S. history.  Among other immigration enforcement milestones in 2013,

--    U.S. immigration officials planned to ratchet up removals of immigrants convicted of minor crimes as part of an urgent push to make sure the government would not fall short of its criminal deportation targets.

--    A new reports shows record immigration enforcement spending

--    At nearly 100,000, immigration prosecutions reach all-time high in FY 2013.

--    The congressional "detention bed mandate" has contributed to the record number of immigrants held in detention. 

--     Deaths on the U.S./Mexico border directly attributable to heightened enforcement measures continue.

9. States Extending Rights to Undocumented immigrants, An Undocumented Attorney Next?

Just a couple of years ago, states, like Arizona, Alabama, Georgia, and South Carolina were passing record numbers of immigration enforcement laws, many of which the courts struck down in whole or in part.  Times have changed.  Most recently, the District of Columbia followed 11 other states allowing undocumented immigrants to obtain a driver's license.   California has blazed a trail with a number of  state immigrant integration -- as opposed to immigration enforcement -- laws, including laws protecting immigrant workers and making undocumented immigrants eligible for a driver's license. 

In addition, the California Supreme Court is considering whether Sergio Garcia, an undocumented immigrant, should be licensed to practice law.  There is a long history of limiting immigrant eligibility for bar admission.  In the fall, the Court held oral arguments on Garcia's admission. In response to some of the Justices' questioning, the California legislature in near-record time expressly authorized undocumented immigrants to be eligible for admission to the bar.

10. Author of Immigration Report Quits the Heritage Foundation

The co-author of a controversial report, which estimated the cost to taxpayers of legalizing 11 million undocumented immigrants, issued by the Heritage Foundation, left the conservative think tank. Jason Richwine, a senior policy analyst at Heritage, quickly resigned as the controversy grew over work he had done as a graduate student. "His Harvard University dissertation, argued that persistent differences between immigrants' IQs and those of white Americans should be a factor in determining who should be allowed to permanently come to the United States." 

December 16, 2013

New laws should keep up with new technology

Cross-posted from The Sacramento Bee.

Technology matters. It affects every aspect of our lives, sometimes becoming pervasive before we are even aware of it and have a chance to consent - or not. Those in charge of governing technology must adapt when innovation evolves faster than lawmaking and ensure that the public has a role.

Two seemingly unrelated headlines illustrate how new technology - widely and stealthily - has permeated our society: Edward Snowden's revelations of massive electronic surveillance and Washington state's failed ballot initiative to mandate labeling of genetically modified foods.

The NSA surveillance activities revealed by Snowden shocked the American public and the world. We live in a world of drones and hackers, a world where extensive surveillance is widely acknowledged as possible. But the reach of NSA surveillance, the agency's lack of restraint and the collusion of industry in furthering its activities still have stunned many Americans.

Voters in Washington state in November rejected an initiative that would have mandated labeling of foods containing genetically modified organisms or GMOs, just as California voters did a year earlier. These measures failed despite consistent survey results reporting that Americans overwhelmingly favor such labeling.

Some worry that these foods may not be safe; others find the idea of consuming such foods downright frightening. If labeling were required, shoppers would learn that most processed foods contain GMOs. They might be shocked to discover that 90 percent of the corn, soybeans and canola planted in this country is genetically modified.

The public might then ask, "Why didn't we know about this?" It's a question that can apply to many of the emerging technologies that are transforming our lives and the world around us.

Nanotechnology is generating new materials, new medicines and consumer products with new functionalities. Artificial intelligence is yielding an array of advances ranging from driverless cars to robotic surgeons. Synthetic biology is promising to enable the design of new species or the resurrection of extinct ones. And geoengineering, a set of technologically driven and unconventional proposals for countering the effects of climate change, is receiving growing attention in the wake of our collective failure to reduce greenhouse gas emissions.

Researchers have good reasons for pursuing such scientific knowledge. But societies often promote the widespread adoption of a promising new technology without seriously considering its broader consequences for society, individuals or the environment.

The uncertainty regarding the course of technological development and the consequences of technology adoption creates a "dilemma of technology control": When a technology is in its earliest phases, there is scant information about its consequences; however, once such information does become available, the technology has become too well-established to be adequately controlled.

Often, law struggles to keep pace with emerging technologies - a troubling reality when the harms that may result from using a technology are serious and irreversible.

Is the dilemma unresolvable? Not if society and governance institutions devote attention and resources to the problem.

In the case of GMOs, for example, carrying out studies of long-term health effects from GMO consumption would reduce public unease. Transparency in using the technology and genuine consideration of public concerns would also help.

Ultimately, laws must treat technology, health and the environment as fundamentally related. We must reorient lawmaking in a way that acknowledges the transformative power of technology, recognizes the consequences of its use, and incorporates public input and awareness throughout the technology development process. While we may not be able to quantify the risks or identify all the consequences, we often have a sense of the potential hazards and can try to learn whether those hazards are real.

Emerging technologies pose questions regarding what kind of world we want to live in and what kind of people we want to be. A great democracy wrestles with such issues openly and continuously.

December 16, 2013

Prof. Karima Bennoune to Deliver Guest Lecture in Middle East/South Asia Studies

Please note new date below.

Professor Karima Bennoune will deliver a guest lecture on February 10 in the Department of Middle East/South Asia Studies at UC Davis. The public lecture is titled, "Sidi Bouzid Blues and the Green Wave: Journeys through the Arab Spring and Fall."

December 11, 2013

Argument recap: Another immigration case? Another argument about statutory interpretation and agency deference

Cross-posted from SCOTUSblog.

Yesterday, the Court heard oral arguments in Mayorkas v. Cuellar de Osorio, a case raising a technical issue of statutory construction of the complex U.S. immigration laws.

The specific question presented by the case is whether a provision of the Immigration & Nationality Act, as amended by the Child Status Protection Act (2002), allows children of all family immigrant visa applicants (or only for some family immigrant visas) who turn twenty-one ("age out") while waiting for a visa, to be issued a visa with their parent when the visas are issued.  8 U.S.C. § 1153(h)(3) provides that, for an "aged out" child, "the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."  The Board of Immigration Appeals has interpreted the statute to cover only certain, rather than all, family immigrant visas.

Assistant to the Solicitor General Elaine Goldenberg argued the case for the United States.  Mark Fleming of WilmerHale argued the case on behalf of the respondents,

Much of the Justices' questioning of both advocates focused on the precise meaning of the statutory language, especially the phrase "automatically . . . converted."  There also was some back and forth about the propriety of deference to the relevant Board of Immigration Appeals ruling, Matter of Wang (2009).

Taking the podium first, Goldenberg was quickly interrupted with a question from Justice Ginsburg about the harsh impact on the "aged out" child under the government's interpretation.  Justice Alito also seemed to have similar concerns.  Later in the argument, Goldenberg admitted that "Congress's overarching concern" was with "administrative delays" but failed to fully articulate how the respondents' broader interpretation failed to fulfill that purpose better than the government's rather wooden one.

Testing the government's claim that the respondents' interpretation would substantially disrupt the statutory visa scheme, Justice Breyer pressed for an estimate of the number of aged out children who may benefit from that interpretation.  Goldenberg ultimately was forced to admit that the government "can't quantify exactly how many [people], but we have reason to think that the number is quite large."  As a last resort, Goldenberg stated that the Court had recognized that "deference is particularly appropriate in immigration contexts."

Fleming began his argument by dismissing the government's claim that the statute is ambiguous.  He further emphasized that the Court should exercise "a modicum of common sense" in deciding whether Congress would have delegated the question before the Court to the agency.

To better understand the operation of the statute, Justice (and former law professor) Breyer offered a hypothetical using his name (but Steven with a "v"), his brother's (Charles), and his nephew.  This moment added a bit of levity to the proceedings.

In questioning Fleming, Justice Kagan suggested that the statute was ambiguous and that deference to a reasonable interpretation of the government might be justified.  Fleming argued that, in that circumstance, the government's position was not rational.

The government's rebuttal returned to the same ground generally covered in the arguments.  Interestingly, Chief Justice John Roberts, who intervened little in the argument, during rebuttal appeared to be dubious of the government's interpretation of the statute.

As the oral arguments in the Affordable Care Act case made clear, it is at best hazardous to predict how the Supreme Court will rule from oral arguments alone.  While the government seems to be facing an uphill battle in this case, one never knows for sure.  Nonetheless, it does seem clear that the Court, in deciding the case, will apply traditional tools of statutory construction and agency deference.  This would be entirely consistent with the rather unexceptional nature of the Court's immigration jurisprudence in recent years.

December 6, 2013

Argument preview: Deference to agency interpretations of the immigration laws

Cross-posted from SCOTUSblog.

While the Supreme Court historically has afforded considerable deference to the immigration bureaucracy in the interpretation and application of the U.S. immigration laws, it has not blindly deferred to the executive branch.  In Judulang v. Holder (2011),  for example, the Court unanimously rejected the conclusion of the Board of Immigration Appeals (BIA) that a lawful permanent resident was statutorily ineligible for relief from removal, finding that it "flunked" minimal judicial review.  Next week, in Mayorkas v. Cuellar de Osorio, the Court will return to the question of the appropriate deference to be afforded the BIA's interpretation of the immigration laws.

The case

Limits on the number of visas that can be issued each year means that many non-citizens must wait years in their home countries after applying for a visa before one is in fact issued.  Natives of El Salvador, Rosalina Cuellar de Osorio and her family applied and waited seven years for visas that would allow them to join Rosalina's mother - a U.S. citizen - in the United States.  Notified that they were next in line, the family also learned that the applicant's son, who had turned twenty-one while the application was pending and thus was no longer a "child" as defined by the immigration laws, would not be issued a visa.  That result was consistent with the BIA's interpretation of the statute.

As amended by the Child Status Protection Act, the Immigration and Nationality Act has rules for determining whether children who "age out" can obtain immigrant visas as derivative beneficiaries of eligible family members.  The question before the Court in this case is whether the statutory provisions allowing the issuance of visas to "aged out" children apply to all family immigrant visa categories or, as the BIA ruled, only some of them.

The Court of Appeals

Sitting en banc, the U.S. Court of Appeals of the Ninth Circuit, in an opinion by Judge Mary Murgia that was joined by five judges, concluded that the BIA's interpretation conflicts with the plain language of the statute and was not entitled to deference.  Judge Milan D. Smith, Jr., with Chief Judge Kozinski and three other judges, disagreed.  They reasoned that, because the statute "is ambiguous . . . and . . . the BIA's conclusion . . . is reasonable," it is entitled to deference.  Like the judges on the en banc court, the circuits were split on the question.  The Supreme Court granted certiorari, briefing is complete, and oral argument is set for December 10.

The arguments

The United States contends that, because the statute is ambiguous and the BIA's interpretation is reasonable, that interpretation is entitled to deference under Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc. (1984). The government further argues that the Ninth Circuit's interpretation would substantially disrupt the immigrant visa system by allowing certain "aged out" children to secure visas that, due to annual numerical limits, would delay the issuance of visas to other visa applicants.

Agreeing with the Ninth Circuit, the families contend that the statute unambiguously allows all "aged out" beneficiaries for family visas to secure visas when the primary applicant does, so that the BIA's interpretation is unreasonable and undeserving of deference.  A bipartisan group of current and former senators who voted for the Child Status Protection Act, including Orrin Hatch (R-Utah), John McCain (R-Arizona), and Charles Schumer (D-NY), filed an amicus brief in support of the families.

After more than a decade after the law was passed and after the families' brief was filed, the federal government issued "policy guidance" on the implementation of the exact statutory provision before the Court. The federal government's reply brief urged the Court to defer to the positions taken in the November 2013 policy guidance, which not coincidentally are consistent with its advocacy position adopted by the government in the Court.

Possible impact of a decision and a prediction

If the Court accepts the government's interpretation of the immigration laws, certain non-citizen children who wait for a visa will face the following scenario:  the longer they wait, the more likely it is that they will be kicked out of line through the mere passage of time and "age out" of the process, resulting in the division of families and undermining the immigration laws' fundamental goal of family reunification.  The U.S. government's wooden interpretation of the statute sounds strikingly similar to the government's interpretation of the immigration laws that the Supreme Court unanimously rejected in Judulang.

December 6, 2013

Is ALEC’s Draft “Equal State’s Enfranchisement Act,” Concerning U.S. Senate Elections, Constitutional?

Cross-posted from Justia's Verdict.

Yesterday the Federalism Working Group of the American Legislative Exchange Council (ALEC)-an influential and generally conservative policy-oriented institution that offers template legislation for state governments to consider adopting-was scheduled to meet to consider, among other things, a proposal that would empower state legislatures to add candidates to general election ballots for the office of United States Senator.  In the space below, I take up the question whether a proposal like this would be consistent with the federal Constitution.

Some Background on the Proposal and How It Might Be Analyzed

Here's more detail on how the proposal-entitled the "Equal State's Enfranchisement Act" (ESEA)-would work, were it to be adopted (as either a statute or a state constitutional amendment) by a state:  If twenty percent of the sitting members of the state legislature sign a petition nominating a person for the U.S. Senate (provided the person is not someone who has already been nominated by a primary election or political party committee), then that person is eligible (along with all others who also were nominated by twenty percent of the legislature) to be voted on by the entire legislature.  The legislature as a whole votes, and the person who gets the most support (even if that is less than a majority, presumably) is then included on the general election ballot (alongside candidates who earned ballot spots by more traditional means, e.g., winning party primaries) under the designation:  "State Legislature Candidate for United States Senate."  (For more background on the proposal, and on ALEC, readers can consult an item last month in The Huffington Post.)

Before I delve into the constitutionality of the ESEA, let me first make clear that I am not addressing the question, in this column at least, whether re-empowering state legislatures to pick U.S. Senators would be wise policy.  Remember that before the enactment of the Seventeenth Amendment (and the events that led up to it) in 1913, state legislatures did select U.S. Senators, but that system was altered by the Progressive era and a direct election movement that culminated in formal constitutional change.  Some modern commentators have lamented the extent to which popular election of U.S. Senators has led Congress to undervalue, and impose upon, state governments.  From their point of view, federal-state relations would be different, and better, if state legislative election of Senators were reinstituted.  But whether or not this perspective has any merit, the Seventeenth Amendment, and the distrust of state legislatures it reflects, is a part of the Constitution that must be respected until it is itself amended.

Let me also make clear that I am examining the question of what legitimate authority, if any, state legislatures have to place names on ballots for federal legislative offices.  The empowerment of state legislatures, under state law, to nominate candidates and place names on ballots respecting state legislative offices might raise important questions under the federal Constitution-questions involving, among other things, the First Amendment, the fundamental right to vote, and the provision in Article IV of the Constitution that guarantees in each state a "Republican Form of Government.  But these questions are distinct from the ones I explore below, even though there may be some analytic overlap.

A Key Question:  The Scope of State Legislative Power Under Article I, Section 4

With those caveats, let us turn to the heart of the matter, namely, whether a state legislature can be allowed to nominate a candidate for federal legislative office and direct that candidate's name be placed on the general election ballot bearing the designation "State Legislative Candidate." Answering this question begins with the recognition that the only power state legislatures enjoy in this regard is that which is affirmatively given to them by the U.S. Constitution, in Article I, Section 4, which provides that the legislatures of the states shall prescribe the "Times, Places and Manner" of holding elections for House members and Senators, subject to override by Congress itself.  The key follow-up question then becomes:  Can a state legislature successfully argue that its placement of a name on a congressional election ballot is a means of regulating the "manner" of the federal election?

Interestingly enough, there are no Supreme Court cases of which I am aware that are clearly on point.  Indeed, almost all of the cases dealing with the exercise of Article I, Section 4 powers by state legislatures that the Court has decided concern not the placement of candidates on the general election ballot, but instead the effective exclusion of particular candidates from the ballot.  That is, most of the so-called "ballot access" cases that the Supreme Court has issued involve state laws that are challenged by persons or groups on the ground that these persons or groups were wrongly denied places on the ballot, not on the ground that the state government has directly put someone else on the ballot who does not belong there.  In this conventional ballot access setting, the Court has recognized that states enjoy "broad power" to prescribe the procedural mechanisms for conducting congressional elections, to deal with such matters as voter notification, voter registration, supervision of ballot places, prevention of fraud and corruption, and the counting of votes, to ensure that elections are "fair and honest" and that "some sort of order, rather than chaos, is to accompany the democratic process."

But even as the Court has been generous to state legislatures in some of these cases, it has been careful to adhere to a line between procedure and substance; state legislatures are allowed "to issue procedural regulations," but are not granted the "power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints."  A state legislature's constitutional inability to favor particular federal legislative candidates and disfavor others explains why the Supreme Court held a dozen years ago in Cook v. Gralike (where it employed the crucial language just quoted) that the state of Missouri could not, on its federal election general ballot, print the statement "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" next to the name of a candidate for the House of Representatives who was unwilling to promise to support a particular federal constitutional amendment, seemingly supported by the voters of Missouri, that would create term limits for members of Congress.  The ballot designation Missouri wanted to impose was, said the Court, "plainly designed to favor candidates who are willing to support a particular form of a [federal] term limits amendment . . . and to disfavor those who either oppose term limits entirely or would prefer a different proposal" and as such was not a "generally applicable and evenhanded" regulation designed to protect the integrity and reliability of the electoral process itself.  Instead, by the state's weighing in with the voters "at the most crucial stage in the election process-the instant before the vote is cast," the Missouri regulation impermissibly "attempt[ed] to dictate electoral outcomes."

It is hard to see how the ESEA would fare any better under this reasoning.  By adding the name of a candidate to the ballot, and by designating this person as the "State Legislature Candidate," the state legislature is clearly endorsing one person on the ballot.  As a result, the legislature is, to use the words of the Cook Court, "favor[ing]" one candidate, and thereby "disfavor[ing]" the rest (since single-seat elections are zero-sum affairs).  And this influence by the state should not be taken lightly; as Chief Justice Rehnquist observed in his separate opinion concurring in the result in Cook, when a state adds things onto a ballot, it "injects itself into the election process at an absolutely critical point-the composition of the ballot . . . is the last thing the voter sees before he makes his choice. . . ."  Whether or not state legislatures can require or allow the placement of more neutral kinds of information on federal ballots (such as the occupation of each candidate, which might be okay, but which also might be problematic to the extent that it may tend to favor incumbents, who list their current office as their occupation), placement of an additional candidate and an implicit or explicit endorsement of that candidate on the ballot itself by the legislature would have to be viewed as an attempt to influence or dictate the result of the election.  (Individual state legislators or groups of legislators remain free, of course, outside the ballot itself and outside of formal legislative actions, to endorse or lambaste particular U.S. Senate candidates.)

To the extent that Cook, building on earlier cases, draws a hard line between state legislative efforts to regulate election procedure, and attempts to influence the substantive outcomes of congressional contests, the ESEA would seem to fall on the wrong side of the line.  As such, it lies beyond Article I, Section 4 authority, which is the only source of power a state would have to adopt it.

Another Problem with the ESEA: The Thrust of the Seventeenth Amendment Itself

As if that weren't bad enough, the ESEA proposal also seems to violate another of the principles articulated by the Cook Court-the idea that state regulations of federal elections ought not "evade important constitutional restraints."  It is bad enough when a state legislature attempts to influence the substantive outcome of an election for the House of Representatives (as in Cook), but it is worse still when the legislature tries to do so with respect to U.S. Senate elections, because (moving beyond Article I, Section 4) the Seventeenth Amendment is itself an affirmative "important constitutional restraint" on state legislatures.  As I have written in a column for this site earlier this year (and in earlier columns as well), and have explained in greater detail in academic writings, the overall goal of the Seventeenth Amendment was to get state legislatures out of the business of deciding who should serve in the U.S. Senate.

The attack that Seventeenth Amendment reformers made on state legislatures was multipronged. It was not, as one of ALEC's staff has been quoted as suggesting (in The Huffington Post piece), limited to the fact that state legislatures were often deadlocked in the Nineteenth Century and thus were not filling Senate vacancies that arose.  The dissatisfaction with state legislatures was far deeper.  For starters, supporters of the Seventeenth Amendment accused legislatures of the same kind of excessive zeal and personal corruption that permeated the political party structure. As one prominent historian has put it,"[c]orruption, of both state legislators and senators, was the greatest evil blamed on the system of indirect election." Of course, whether that widely held perception of corruption in state legislatures was justified is a more complicated matter.  In any event, it is not hard to imagine ways, even today, in which permitting a state legislature to add names to a Senate ballot could open the door to partisan shenanigans.  Consider, for instance, a Democrat state legislature that added a second Republican name to a ballot that already was going to include one prominent Republican and one prominent Democrat Senate candidate (via the two major primaries), in order to split and thus weaken the Republican general election vote.  (In this regard, note that the ESEA proposal does not even require that the "State Legislature Candidate" agree to be a candidate before her name is placed on the ballot.)

Perhaps the strongest Seventeenth Amendment argument concerning distrust of state legislatures that buttresses the Article I, Section 4 textual case against substantive legislative involvement, and one that also remains relevant today, derives from the concerns Seventeenth Amendment's framers had about the way state legislatures fail to fairly represent the people of a state, and particular constituencies within the state, because of malapportionment. Although largely unnoticed in most modern discussions of direct Senate election, recognition of the "antiquated systems of representation" used to draw state legislative districts, and the resulting unfairness to, and misrepresentation of, various parts of the state peoples was clear, if not always trumpeted.  As an historian has written, such malapportioned systems, rife during the period leading up to the Seventeenth Amendment, "caused the legislatures' election of Senators to give far different results from those which would have been yielded" by truly popular elections. Of course, certain kinds of gerrymandering (designed to disfavor urban dwellers) are no longer possible in light of the one-person, one-vote cases. But concerns about partisan gerrymandering are not eliminated by the one-person, one-vote principle, as recent episodes from states like Pennsylvania and Texas illustrate.

What Should Happen if a State Were to Adopt and Try to Implement the ESEA?

It may occur to some observers that, even if my constitutional criticisms of the ESEA are powerful and persuasive, the federal courts, using the so-called "political question" doctrine, might be disinclined to intervene and declare invalid any state's enactment of the proposal.   And perhaps this is true, although lawsuits like Cook suggest that justiciability barriers in these kinds of cases can be overcome.  But even if no federal court is asked or is willing to step in, that doesn't mean that the questions I raise should go unexplored.

The Constitution makes each house, including the Senate, the "Judge of the . . . Qualifications of its own members." So if a majority of Senators believe that a state legislature has improperly influenced the substance of a Senate election by wrongly placing a candidate's name on the ballot, it could refuse to seat the "winner" of this flawed electoral contest.  And before we ever got to that point, I would hope that Congress, realizing that respect for Article I, Section 4 limits and the Seventeenth Amendment should be of interest to both parties, would pass a federal law setting aside any state's adoption of the ESEA.  Recall that Article I, Section 4 gives Congress the power to override any state regulation of the manner of congressional elections, and so to the extent that ESEA is defended as a "manner" regulation by a state legislature, Congress has the power to override it; if a state were to object to such a federal law on the ground that it exceeded Congress' Article I, Section 4 powers, the state would effectively be admitting that the ESEA itself is ultra vires. If federal courts may be reluctant to enforce the Constitution here (and I'm not saying that they necessarily would be), that doesn't mean Congress couldn't and shouldn't deal with the problem.