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June 26, 2014

Professor Chandrasekher to Present at Prestigious Harvard/Stanford/Yale Junior Faculty Forum

A paper by Professor Andrea Chandrasekher has been selected for presentation at the prestigious Harvard/Stanford/Yale Junior Faculty Forum, held tomorrow and Saturday, at Stanford University.

Professor Chandrasekher will present "Police Unrest and Lengthy Contract Negotiations: Does Police Misconduct Increase with Time Spent Out of Contract?" as part of the conference session on Labor Law and Social Welfare Policy. Her article presents evidence that incidents of police misconduct increase when police departments are forced to work under expired contracts as new collective bargaining agreements are being negotiated.

Professor Chandrasekher's educational background includes a JD from Stanford Law School and a PhD in Economics from UC Berkeley. She has taught as a visiting assistant professor at Northwestern School of Law and served as a fellow at Stanford Law School. Her research interests include criminal law, law and economics, quantitative methods, criminal justice public policy analysis, and policing. She joined the King Hall Community in 2013.

June 20, 2014

Why the California Legislature Can’t Simply Repeal the Judicially Invalidated Proposition 187

Cross-posted from Justia's Verdict.

In the space below, I analyze a pending effort by California lawmakers to cleanse the California statute books of (what are to my mind) some mean-spirited provisions concerning the treatment of undocumented immigrants in the State. While the goals of this legislative endeavor are understandable, the attempt reflects fundamental misunderstandings of the scope of the legislature's authority, and the essence of judicial review (i.e., the power of courts to declare enactments unconstitutional.)

How This Episode Has Arisen-Background on Proposition 187

The story really begins almost 20 years ago in November 1994, when California voters adopted Proposition 187, a statewide initiative statute that amended California's Education, Government, Penal, and Welfare and Institutions Codes. The measure sought to make immigrants unlawfully present in California ineligible for various public health, public social, and public education services. The proposition also required state and local agencies to investigate whether arrested persons in the State were in the country unlawfully, and report any suspected immigration violations to the state Attorney General and federal immigration authorities. In some respects, Proposition 187 was the intellectual forerunner of Arizona's SB 1070, the 2010 law regulating unlawful immigrants that received national attention and that was struck down (but only in part) by the U.S. Supreme Court in 2012 in Arizona v. United States.

Shortly after Proposition 187's passage, the provisions described above were challenged in a lawsuit and a few years later blocked by federal district judge Mariana Pfaelzer, who reasoned that the contested provisions conflicted with federal immigration law and policy, and were thus rendered unconstitutional by the Supremacy Clause of the U.S. Constitution (which makes federal law "supreme"). California Governor Pete Wilson appealed the district court ruling to the U.S. Court of Appeals for the Ninth Circuit, but in 1999 Wilson's replacement, Governor Gray Davis, withdrew the appeal and sent the legal dispute to mediation. The result has been that Judge Pfaelzer's order blocking Proposition 187's enforcement has remained in effect ever since.

The Recent Legislative Effort and the Essential Problem With It

Now enters a group of well-intentioned California legislators, who this month are introducing legislation, SB 396, that seeks to remove from the California statute books the provisions of Proposition 187 that were held unconstitutional by Judge Pfaelzer. As California Senator Kevin DeLeon-one of the bill's backers-put it in his "fact sheet": "[A]fter 20 years, it is fitting that California expressly acknowledge the harm caused to Californians through passage of the discriminatory and xenophobic Proposition 187 by removing its stain from the state's statutes." SB 396, styled as a measure that will become law if passed by a simple majority of both houses of the California legislature and signed by the Governor, attempts to repeal those portions of the State's Education, Government, Penal, and Welfare and Institutions Codes into which the now-invalidated portions of Proposition 187 are lodged.

From one angle, this legislative effort seems quite sensible. Why shouldn't California's statute books reflect the current state of things, and be purged of provisions that are not enforceable and that send demeaning messages to members of our community? As to the goals of this legislative effort-in the words of Seinfeld character Elaine Benes referring to another woman's efforts to free herself from the George Costanza character-"more sympathetic . . . I could not be." But the problem with SB 396 is that the California Constitution prohibits the state legislature from repealing any part of a voter-enacted initiative unless the measure explicitly empowers the legislature to do so, or unless the voters themselves approve of the repeal. Initiative measures, even those that take the form of statutes rather than state constitutional amendments, occupy a space in the state constitutional hierarchy above ordinary enactments by the legislature. In other words, a statutory initiative such as Proposition 187, like a state constitutional amendment, lies outside the control of the legislature to undo or modify. And this makes sense, if the initiative device is itself supposed to be a check on-and a response to dysfunction within-the state legislature. Importantly, Proposition 187, by its terms, does not authorize the legislature to undertake repeal by ordinary legislation without voter approval.

What's Wrong With Repealing Dead Letters?

But what about the fact that the parts of Proposition 187 at issue here have been declared unconstitutional by a federal judge? Shouldn't that fact change things? As Senator DeLeon's Chief of Staff has been quoted as saying: "These code sections are unenforceable. . . . Essentially, [SB 396 is] 'code cleaning.'" (The same press account that included this quote also quoted the Chief of Staff as saying that the California Legislative Counsel has opined that SB 396 could be implemented as ordinary legislation. If such an opinion were rendered, I would like to know how the Legislative Counsel thinks the California Constitution permits this.)

While initially appealing, the "code-cleaning-on-account-of-unenforceability" view reflects a fundamental misconception of judicial review and what it means when a court "invalidates" or "strikes down" an enactment. A judicial declaration that a statute is unconstitutional (accompanied by an injunction against the statute's enforcement) is in reality simply a statement that that court-and all courts that are bound by that court-will refuse to allow implementation of the statute as of that time. When a statute is struck down, it is not literally stricken from the statute books; it is simply held unenforceable for the time being-until and unless something changes. If something does change to undo the court's invalidation, then the statute can be enforced without having to be reenacted, since it remained on the statute books all along. (Indeed, SB 396 would not be needed except for the fact that Proposition 187 remains on the statute books.)

Well, what might change after a court invalidates a statute to bring it back to life? For one thing, a higher court could reverse the ruling that invalidates the statute. Certainly no one would argue that the California legislature could repeal Proposition 187 during the time it was pending on appeal to the Ninth Circuit, because we all know that many district court rulings are short-lived. But now that the appeal is dead, isn't Judge Pfaelzer's opinion permanent? Not quite. Intervening developments in the law-e.g., new Supreme Court cases handed down-could enable parties to seek the "reopening" of a case and get relief from a court order that no longer reflects the current legal or factual landscape. Indeed, although the political climate in California would likely prevent elected officials from trying to resurrect Proposition 187 anytime soon, there are parts of the Supreme Court opinion in Arizona v. United States that upheld some of Arizona's SB 1070 and that arguably call into question some of Judge Pfaelzer's analysis concerning the involvement of local law enforcement officials in policing immigration violations.

Would Supreme Court Invalidation of Proposition 187 Have Changed Anything?

Suppose Judge Pfaelzer's ruling had been appealed to, and affirmed by, the Supreme Court. Would the analysis be different then? Not really. Even a Supreme Court ruling invalidating a statute does no more than indicate a current unwillingness by a majority of the Justices to permit enforcement, but that too could change. Some of the most important (and righteous) decisions by the Supreme Court have involved overruling past Supreme Court decisions that we now think were wrongly decided, so we know that no ruling by the Supreme Court is truly permanent. While it is rare for the Court to overrule a past decision that had recognized an individual right or limited state power-it is more common, as in Brown v. Board of Education, to overrule a past ruling that had rejected, rather than embraced, limits on state power-there is nothing that prevents the Court from undoing past rulings that impose limits on government. For example, if the Justices were to overrule Roe. v. Wade and declare no constitutional protection for abortion rights, then states that had abortion regulations on the books that were adopted prior to Roe could begin to enforce those regulations without the need to reenact anything. To be sure, when a state chooses not to enforce a law for a long period of time, the doctrine of "desuetude" may prevent the state from attempting to revive the statute, but if the reason for non-enforcement was a now-considered-erroneous judicial injunction, then enforcement could resume after the constitutional error has been corrected.

Perhaps an easy way to see that SB 396 is legally problematic even though Proposition 187 is currently enjoined is to ask whether the California legislature could repeal Proposition 187 without a majority vote of both houses of the state legislature. Suppose SB 396 backers in the California Senate took the position that because Proposition 187 has been invalidated, they can repeal it from the books without involving the State Assembly. Everyone would readily see that this course of action would be illegitimate, because the California Constitution requires all laws to have bicameralism-and this requirement is independent of the merits of Proposition 187's unconstitutionality. But the requirement of bicameralism is no more important and no more independent than the requirement that the legislature seek the people's approval before repealing an initiative. If "code cleaning" cannot excuse ignoring the former, neither can it excuse ignoring the latter; failing to involve the Assembly is no different for these purposes than failing to involve the people.

None of this means there is no role for the California legislature to play in bringing about the formal repeal of Proposition 187. As I have been noting, the California Constitution does permit legislative repeal of initiatives, but only with approval of the voters. SB 396 could and should be restyled as a measure that is submitted to the voters, so that all Californians can reconsider whether Proposition 187 represents the will of the people. That is the proper and lawful way to lay Proposition 187 to rest.

June 19, 2014

Faculty Scholarship: Legal Studies Research Paper Series

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

What follows here is the most recent collection of papers.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"A Transparent Oversight Policy for Human Anatomical Specimen Management: The University of California, Davis Experience" 
Academic Medicine, March 2014, Volume 89, Issue 3, pp. 410-414
UC Davis Legal Studies Research Paper No. 379

BRANDI SCHMITT, University of California Office of the President
Email: brandi.schmitt@ucop.edu
LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu
FREDERICK J. MEYERS, Independent
Email: Fred.Meyers@ucdmc.ucdavis.edu

The authors describe the development and implementation of a University of California (UC) system of oversight, education, tracking, and accountability for human anatomical specimen use in education and research activities. This program was created and initially implemented at UC Davis in 2005. Several incidents arising out of the handling of human anatomical specimens at UC campuses revealed significant challenges in the system for maintaining control of human anatomical specimens used in education and research. These events combined to undermine the public perception for research and educational endeavors involving anatomical materials at public institutions. Risks associated with the acquisition, maintenance, and disposal of these specimens were not fully understood by the faculty, staff, and students who used them. Laws governing sources of specimens are grouped with those that govern organ procurement and tissue banking, and sometimes are found in cemetery and funeral regulations. These variables complicate interpretations and may hinder compliance. To regain confidence in the system, the need to set appropriate and realistic guidelines that mitigate risk and facilitate an institution's research and educational mission was identified. This article chronicles a multiyear process in which diverse stakeholders developed (1) a regulatory policy for oversight, (2) a policy education program, (3) procedures for tracking and accountability, and (4) a reporting and enforcement mechanism for appropriate and ethical use of human anatomical specimens in university education and research.

"Design Patents: Law Without Design" 
Stanford Technology Law Review, Vol. 17, p. 277, 2013
UC Davis Legal Studies Research Paper No. 380

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

Design patents have recently burst onto the intellectual property stage, but they are surprisingly underdeveloped for a body of law that is more than a century and a half old. Design patents are, quite simply, a body of law without design: there is little coherent theoretical underpinning for this long overlooked form of intellectual property. Now, as design patents are poised to assume greater prominence in the legal and economic realms, the time is ripe for examining myriad justifications for exclusive rights in design in order to develop a richer theoretical foundation for this body of law. To that end, this Article draws from statute, doctrine, legislative history, and academic commentary to identify various theoretical justifications for design patents related to promoting progress, beautifying the human environment, rewarding creative labor, and reducing consumer confusion and promoting distinctiveness. We critically examine the cogency of these justifications and identify hidden tensions among them. Our ultimate aim is to help develop a body of design patent doctrine that is more accountable to theory. We conclude that even the most persuasive and defensible justifications for design patents counsel a limited right at best.

"Acting White? Or Acting Affluent? A Book Review of Carbado & Gulati's Acting White? Rethinking Race in 'Post-Racial' America" 
UC Davis Legal Studies Research Paper No. 381

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

Acting White? Rethinking Race in "Post-Racial" America (2013) is the latest installment in Devon Carbado and Mitu Gulati's decade-plus collaboration regarding issues of race and employment. This review lauds the book's comprehensive treatment of the double bind that racial minorities - especially blacks - experience within principally white institutions. In this volume, the authors expand on their prior employment-centered work to consider, for example, Barack and Michelle Obama's presence on the national political stage, racial identity and performance in the context of higher education admissions, and racial profiling by law enforcement. With a focus on intra-racial diversity, Carbado and Gulati begin to gesture to the intersection of class (more precisely, the struggle for upward class migration) with blackness in the high-brow settings that are the employment staple for Acting White?'s analysis.

What Carbado and Gulati overlook, however, is intra-racial diversity among whites. While the authors give a nod to aspects of identity such as gender and sexuality, acknowledging that, like race, these may render individuals "Outsiders," they otherwise treat whiteness as monolithic, as simply the foil for black identity work. In so doing, Carbado and Gulati overlook the struggle for assimilation that poor and working class whites - aspiring, striving class migrants - experience when they seek to integrate these same "white institutions." The point is that all employees are expected to assimilate to institutional norms that, in elite professional settings, are as much about class (affluence) as about race (whiteness). I thus suggest that the book might have been titled, Acting Affluent?, although that alternative would have been misleading, too, because the identity work expected in these upscale milieu implicates both race and class. Ultimately, neither the title Carbado and Gulati chose nor the one I suggest is very precise because affluent black identity and affluent white identity are unlikely to be identical. While Acting White? grapples with some very complex and potent intersections of race and class, it looks right past many other such intersections, including that of white skin privilege with class disadvantage.

"Urbanormativity, Judicial Blind Spots and Abortion Law" 
Berkeley Journal of Gender, Law and Justice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 384

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
MARTA R. VANEGAS, Government of the State of California - Office of Legislative Counsel
Email: mrvanegas@ucdavis.edu

State laws regulating abortion have proliferated dramatically in recent years. Twenty-two states adopted 70 different restrictions in 2013 alone. Between 2011 and 2013, state legislatures passed 205 abortion restrictions, exceeding the 189 enacted during the entire prior decade. The U.S. Court of Appeals for the Fifth Circuit recently upheld as constitutional several such restrictions, parts of Texas H.B. 2 (2013), in Planned Parenthood of Texas v. Abbott. That court is currently considering the constitutionality of a similar Mississippi law. These and other recent cases raise issues likely to be heard soon by the U.S. Supreme Court. Among the regulations at stake in Texas H.B. 2 was a requirement that doctors performing abortions have admitting privileges at a hospital within 30 miles of the abortion clinic. The Texas law also limits the use of medication-induced abortions.

Rarely acknowledged in academic literature or media coverage of these laws and constitutional litigation arising from them is the fact that the greatest impact of these regulations - like that of many other state abortion laws enacted since the U.S. Supreme Court's 1992 decision in Planned Parenthood v. Casey - is on those who live farthest from major metropolitan areas, where abortion providers tend to be located. Indeed, these laws exact the greatest toll on women who are both rural and poor. We argue that, contrary to the Fifth Circuit's decision in Abbott, these laws place undue burdens on the abortion rights of a significant number of women and that they should be declared unconstitutional.

In addition to these doctrinal arguments, we draw on three complementary critical frames - legal geography, the concept of privilege, and rural studies concept of urbanormativity - to articulate new ways of thinking about the recent spate of so-called incremental abortion regulations and federal courts' adjudication of the constitutionality of these laws. First, legal geography provides a frame for theorizing the relationship between the abortion regulations and rurality, revealing how law's impact is variegated and variable, dictating different outcomes from place to place because of spatial differences. Second, we deploy the concept of privilege in arguing that many federal judges are spatially privileged but blind to that privilege. In our increasingly metro-centric nation, where rural populations are dwindling and marginalized literally and symbolically, most federal appellate judges appear to have little experience with or understanding of typical socio-spatial features of rurality: transport challenges, a dearth of services, lack of anonymity, and frequently extreme socioeconomic disadvantage. Yet those same spatially privileged judges are applying the undue burden standard to laws that require women to travel hundreds of miles, sometimes on multiple occasions, to access abortion services. Those judges are also typically upholding laws that burden women's access to medication-induced abortions, which have the potential to ameliorate rural women's spatial burdens. This spatial privilege and judges' obliviousness to it are most evident among U.S. Courts of Appeal judges and Supreme Court justices construing the "undue burden" standard, as evinced most recently in Abbott but also on display in Casey v. Planned Parenthood and in many U.S. Courts of Appeals decisions in Casey's wake. The spatial privilege phenomenon is closely linked to the third frame: critical rural studies' concept of urbanormativity. By treating urban life as a benchmark for what is normal and, in Abbott, dismissing as constitutionally insignificant some ten percent of Texas women who live more than 100 miles from an abortion provider, federal appellate judges are increasingly articulating an urbanormative jurisprudence.

"Everybody in the Tent: Lessons from the Grassroots About Labor Organizing, Immigrants, and Temporary Worker Policies" 
Harvard Latino Law Review, 2014, Forthcoming
UC Davis Legal Studies Research Paper No. 382

LETICIA M. SAUCEDO, University of California, Davis - School of Law
Email: lmsaucedo@ucdavis.edu

Why are so many immigrant workplaces non-unionized and what can the labor movement do about it? The questions about whether and how effectively to bring immigrant workers into the labor movement involve not just the impact of immigrant labor on organizing efforts, but also the effect of the labor movement's policy positions on immigrant labor. According to the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO"), protections for immigrant workers are as important to the labor movement as protecting jobs for U.S. workers. While there are great examples of union success in organizing immigrant workplaces, however, the vast majority of immigrant workers remain unorganized. The residential construction industry is one of the areas where low-skilled, non-unionized immigrant workplaces dominate the landscape. Unions have had some limited and scattered success in rebuilding the residential construction industry labor movement in places like Los Angeles, California, but the success has not been sustained.

In this article, I share perspectives of local residential construction workers and labor leaders collected from a series of interviews in Las Vegas, Nevada about obstacles to organizing immigrants. I conducted over 100 interviews between 2006 and 2008 that are the basis for a larger project on working conditions among immigrant workers in the residential construction industry in Las Vegas. In this article, I explore how immigrant workers and local organizers respond to questions about the difficulties in organizing immigrants. Their responses should provide some guidance to policy advocates and the labor movement as they formulate positions around comprehensive immigration reform proposals.

In Part I of this article, I describe what academics view as obstacles to immigrant worker organizing, including changes in the structure of the construction industry, and restrictive immigration laws. In Part II, I describe the Las Vegas Residential Construction Industry Study and explore the gap in perceptions between local union leaders and non-union workers about obstacles to organizing. I conclude in this part that the construction trade union movement must incorporate aspects of immigrant organizing strategies that have occurred in the service industry. In Part III, I explore the effects of union activity in the most recent negotiations over comprehensive immigration reform, analyzing how the AFL-CIO's position might work at cross-purposes to its stated goals of organizing immigrant workplaces and bringing immigrants into the labor movement. I conclude that by conceding the contingent nature of construction work and then limiting the legal avenues for immigration into construction work, the AFL-CIO's compromises further weaken local labor organizers' attempts to organize immigrants.

"The Feds are Already Here: The Federal Role in Municipal Debt Finance" 
33 Review of Banking and Financial Law 795 (2014)
UC Davis Legal Studies Research Paper No. 383

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

Should the federal government be involved in the regulation of municipal debt finance? The answer is arguably not. But this theoretical dispute is not the focus of this Article because, in fact, the federal government already regulates municipal debt finance extensively, generally much more extensively than the states regulate their municipalities' use of debt. The primary source of federal regulation is the securities laws. Less well-known is that federal tax law also serves as an important constraint. This Article surveys and critically evaluates these federal laws, and comes to three tentative conclusions. First, the current federal oversight "system," unplanned and ad hoc as it is, has been effective. Second, in part because the current system has never been thought of as a comprehensive system, there are low-hanging fruit in terms of making the system work better. To the extent the federal government does not put these reforms in place, states should. Third, even an optimally operating federal overlay does not absolve the states from more careful regulation of the financial affairs of their localities, particularly as to the use of debt. Above all, what the federal government does not - and ought not - do is provide localities with the expertise to use debt optimally; this is another area where the states should focus their reform efforts.

June 9, 2014

Opinion analysis: Another stop at the Chevron station and deference to the BIA

Cross-posted from SCOTUSblog.

Focusing on interpreting the text of the notoriously complex Immigration and Nationality Act and the application of generally applicable doctrines of administrative deference, the Roberts Court's immigration decisions have demonstrated an unexceptional approach to immigration law.  The decision in Scialabba v. Cuellar de Osorio is the latest example.

Due to "per country ceilings" in the U.S. immigration laws limiting the number of visas issued annually to citizens of any single country, some noncitizens experience waits of many years - in some instances, decades - between when they file a visa application and when a visa is actually issued.  To address one problem caused by the delays, Congress in 2002 amended the Immigration and Nationality Act with the Child Status Protection Act (CPSA), which establishes rules for determining whether particular aliens who initially qualified for visas as "children" can obtain visas despite "aging out" - and no longer being children under the immigration laws - as derivative beneficiaries of family members' visa applications..

Natives of El Salvador, Rosalina Cuellar de Osorio and her family waited seven years for immigrant visas that would allow them to join her U.S.-citizen mother in the United States.  The family was notified that they were next in line for visas, but were also informed that the applicant's son, who had turned twenty-one while the application was pending and thus was no longer a "child" for purpose of the immigration laws, was not eligible for a visa and thus could not immigrate lawfully to the United States with the rest of his family.  The Board of Immigration Appeals (BIA) had interpreted the statute to permit the issuance of the visa to an "aged out" child for some, but not all, of the family visa categories.

An en banc panel of the U.S. Court of Appeals of the Ninth Circuit disagreed with the BIA, concluding that the statute unambiguously grants relief to aged-out derivative beneficiaries; because the Board's interpretation conflicts with the language of the statute, it was not entitled to deference.  

Section 1153(h) of the Immigration and Nationality Act provides that, "[i]f the age of an alien is determined . . . to be 21 years of age or older . . . , 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 issues presented to the Court in this case were (1) whether Section 1153(h)(3) grants relief to all noncitizens who qualify as "child" derivative beneficiaries when a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the BIA reasonably interpreted the statute.

Justice Kagan announced the judgment of the Court and wrote the plurality opinion, in which Justices Kennedy and Ginsburg joined.  She began the analysis as follows:

Principles of Chevron deference apply when the BIA interprets the immigration laws.  See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984) . . . . Indeed, "judicial deference to the Executive Branch is especially appropriate in the immigration context," where decisions about a complex statutory scheme often implicate foreign relations.

After engaging in an exhaustive analysis of the statutory text, Justice Kagan concluded that it was ambiguous and subject to "internal tension mak[ing] possible alternative reasonable constructions."  She concluded that "[t]his is the kind of case Chevron was built for. . . . Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency's role.  We decline that path, and defer to the Board."

Chief Justice Roberts, joined by Justice Scalia, agreed that the BIA's interpretation of the statute was reasonable, but, unlike the plurality, found no conflict or internal tension in it.  In his view, the Board's reasonable interpretation is consistent with the ordinary meaning of the statute.

Finding the BIA's interpretation contrary to the statutory text and thus not entitled to deference, Justice Alito dissented.

Justice Sotomayor also filed a dissenting opinion, in which Justices Breyer and Thomas (except as to a footnote) joined.  In her view, "because the Court and the BIA ignore obvious ways in which the provision can operate as a coherent whole and instead construe the statute as a self-contradiction that was broken from the moment Congress wrote it, I respectfully dissent."

Scialabba v. Cuellar de Osorio is an example of the bread-and-butter immigration cases being reviewed by the federal courts today.  The BIA is interpreting a complex immigration statute.  The reviewing courts are deciding, under generally applicable rules of administrative law and the standard modes of statutory construction, what amount of deference should be accorded to the agency.  While reasonable minds may differ on the results, the Roberts Court is consistently applying routine legal methods and doctrines to immigration law, which was once well-known for exceptional deference to the executive branch.

June 9, 2014

Three Recently Accepted Cases Shed Light on the Supreme Court’s Process for Granting Review

Cross-posted from Justia's Verdict.

While many analysts this month are understandably focused on the blockbuster rulings that are due from the Supreme Court in June-the back end of the Supreme Court litigation process, if you will-in my column today I introduce and briefly analyze the front end of three cases on which the Court has granted review for the next Term, which begins this fall. Although the three disputes arrive at the Court from different kinds of lower courts and involve quite different kinds of questions on the merits, these cases taken together illustrate some nuances in the extremely important yet widely misunderstood principles that explain how the Court selects the 70-90 cases to review in full from among the thousands and thousands of requests for review each year. Quite often, the Supreme Court grants review because the lower court ruling in question (often from one of the U.S. Courts of Appeals) conflicts with other lower court rulings on precisely the same (and important) legal question, and the Court wants to provide guidance and uniformity. Indeed, one of the first things that incoming Supreme Court law clerks learn when they arrive at the Court is the fine art of differentiating true lower court conflicts from illusory ones. But the cases discussed below serve as helpful reminders that Supreme Court review involves much more than just resolving lower court conflicts.

The Boomerang of Zivotofsky v. Kerry and Respect for Congress

The first case is in the trio is one the Supreme Court has seen before. Zivotofsky v. Kerry involves an effort by Menachem Zivotofsky, a U.S. citizen born in Jerusalem to U.S. parents, to have his U.S.-issued passport (and U.S.-issued Consular Report of Birth) indicate his place of birth as "Jerusalem, Israel." For many years, U.S. Presidents and U.S. State Departments (who issue passports and consular records) have scrupulously avoided taking an official position on the contentious question whether Jerusalem is a part of Israel. Executive branch practice concerning the birth of U.S. citizens in Jerusalem follows this policy of neutrality, and consistently has been to record the place of birth of such citizens on U.S. documents simply as "Jerusalem," without mention of any country.

In 2002, Congress passed a law that, among many other things, requires the Secretary of State, upon the request of a citizen or the citizen's legal guardian, to record the place of birth for citizens born in the city of Jerusalem "as Israel." President Bush signed the entire statute into effect, but (as he did from time to time) issued a signing statement to disclaim the legal effect of this particular part of the statute, because (he said) forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President's constitutional power to formulate and speak on behalf of American foreign policy. The plaintiff in Zivotofsky seeks to force the executive branch to follow the terms of Congress's 2002 statute, notwithstanding the President's signing-statement disclaimer.

A few years back, the U.S. Court of Appeals for the D.C. Circuit rejected the plaintiff's efforts, but not on the ground that the Secretary of State was acting permissibly in declining to follow the statute. Instead, the D.C. Circuit held, the lawsuit presented a "political question" over which federal courts have no power to speak. In other words, the court purported not to be exercising jurisdiction to resolve the lawsuit on the merits at all, saying instead that regardless of who is right and who is wrong under the law, this kind of matter is not susceptible of judicial resolution.

The Supreme Court reversed this decision in 2012, holding that the political question doctrine does not bar review of this case. The key question whether the 2002 statute improperly invades the President's foreign affairs power to decide which countries to recognize-and is thus not a permissible exercise of Congress's power to regulate passports or any other congressional authority-is a legal one, not a political one. The Justices, rather than resolving the merits-which the Court had the power to do-then sent the case back to the D.C. Circuit to decide the merits, by "careful[ly] examin[ing] . . . the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers."

That is precisely what the U.S. Court of Appeals for the D.C. Circuit did on remand, after which it concluded that the statute was indeed an impermissible invasion of presidential authority that he enjoys under the Constitution. Although the D.C. Circuit found the text of the Constitution less than clear, it found a strong historical record over the last two hundred years of the President asserting-and Congress seeming to allow-exclusive executive power to recognize foreign nations, which weighed heavily against the validity of the statute. And although the court conceded that Congress does have meaningful power to regulate passports, that power is not exclusively congressional in the way that the recognition power is exclusively presidential. Since the statute might be said to interfere with the President's foreign policy choice to remain neutral as to the legal authority over Jerusalem-indeed, challenging this neutrality policy was the reason Congress passed the provision-the statute conflicted with the President's foreign policy autonomy and thus could not be enforced.

Zivotofsky again sought Supreme Court review at the end of last year, and about a month ago the Justices agreed to hear the case again. Why would the Court choose to grant review on the merits, given that it consciously chose not to reach the merits in 2012? Part of the answer is that the Court in 2012 didn't have the benefit of full-fledged lower court analysis on the merits, and the Court's general practice is not to reach the merits of a dispute (even if it has the power to do so) when the courts below haven't. But that still doesn't quite explain why Zivotofsky is worthy of one of the Court's six- or seven-dozen precious slots for review in 2014-2015. After all, disputes over the validity of the statute are unlikely to recur very often, the D.C. Circuit opinion does not conflict with rulings from any other lower court, and there are no high financial stakes or life-death consequences of the ruling-the factors that most often account for a grant of review. On top of all that, the D.C. Circuit ruling was without a dissent, and appears to be carefully reasoned and likely (at least to many analysts) correct. Why grant, then?

I think the primary reason is that a federal appellate court has struck down a duly enacted congressional statute, and one way the Court shows its respect for Congress (even as it disrespects Congress in other ways) is to grant review in a high percentage of such cases, even when there is no likelihood of a lower court split and even when the ruling below is arguably quite solid. This may be especially true in separation of powers disputes. If the federal judiciary is going to side with the President against Congress, the least it can do is offer its "Supreme" forum to demonstrate it takes seriously Congress's interests and arguments and is not biased in favor of the President. The grant of review in this case may be as simple as that.

Comptroller v. Wynne: An Anomalous but Potentially Infectious Ruling

Comptroller v. Wynne comes to the Court not from a U.S. Court of Appeals Circuit, but from the Maryland state courts. They ruled that the Commerce Clause of the U.S. Constitution gives each taxpaying individual a constitutional right to reduce or eliminate the income tax he owes in his state of residence because of income taxes paid to other states on that same income. The Supreme Court granted review to take up this question a few weeks ago.

To understand why, let us begin by noting that the Supreme Court has already held that "a jurisdiction may tax all the income of its residents, even income earned outside the taxing jurisdiction." The Court reasoned that residents enjoy the privileges and benefits of living in their state of residence, and thus it is permissible to make them pay in that state even if the income was earned elsewhere. The Supreme Court has also held that a state can tax income of non-residents earned within that state. There is thus the possibility for income to be taxed multiple times, once by the state of the taxpayer's residence and again by the state(s) where the income was earned. The Supreme Court has intimated that this seeming unfairness is something states are free to redress by giving tax credits, but that the question is one of legislative grace rather than constitutional right.

In Wynne, the Maryland state courts (along with the taxpayers who were objecting to Maryland's tax) observed that the Supreme Court's consistent rulings upholding state tax regimes in this regard all involve challenges brought under the Due Process Clause of the Fourteenth Amendment, and that the Supreme Court has never spoken to whether the Commerce Clause of the Constitution permits multiple states to tax income multiple times in this way. Neither have the state supreme courts from states other than Maryland. For this reason, the ruling below in Wynne may not generate any clear conflict with other high appellate rulings. And yet the Supreme Court granted review. Again, the question is why. Part of the answer may be that the U.S. Solicitor General (SG)-invited by the Court to weigh in-urged the Justices to grant review. And why did the SG think review was warranted in spite of the absence of a clear split in lower court authority? Because the ruling below is most likely incorrect, because it introduces significant instability in at least one state's (Maryland's) tax regime, and because, if left unchecked, it has the potential to encourage a great deal of additional destabilizing litigation in other states. Once more, the absence of a clear lower court conflict does not make a case unworthy of review.

The Alabama Redistricting Disputes-Appeals Rather Than Petitions for Certiorari

The third case (or rather pair of cases) I will mention briefly arise out of the Alabama legislature's redrawing of election district lines throughout the state after the 2010 Census. The cases, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, raise the question whether the State impermissibly considered race in the drawing of district lines by packing African American voters into districts so that these racial minorities would make up supermajorities in these voting districts. Such supermajorities would enable African American voters to elect candidates of their choice in those districts, but this would also would be the case with mere simple majorities. A second (and possibly intentional) effect of the redistricting is that it would reduce the influence African American voters have in other districts. The lower federal court (a so-called three-judge district court panel that Congress created to hear redistricting cases) upheld Alabama's line-drawing, and the Supreme Court accepted review. The questions raised on the merits under the Constitution and the federal Voting Rights Act are quite complex and potentially important, but as with Zivotofsky and Wynne,the lower court rulings in the Alabama cases do not conflict with rulings from other lower courts. Why, then, was Supreme Court review indicated? Here the answer is easier, but also more technical. These cases are among the kinds of disputes for which Congress has conferred so-called "appeals" jurisdiction of the Supreme Court, rather than the "certiorari" jurisdiction that accounts for the lion's share of the Court's docket. Unlike certiorari jurisdiction, which is entirely at the Court's discretion, appeals jurisdiction is mandatory. That is, persons who properly bring cases to the Court pursuant to an appeals route rather than via a petition for a writ of certiorari enjoy a "right" to have the Court to take their case and rule on the merits. Appeals cases today comprise a very small percentage of the Court's workload, but they used to be a much bigger component. When appeals are brought to the Court under one of the few remaining appellate access statutes that Congress has not repealed (and challenges to statewide apportionments decided by three-judge District Court panels are among the kinds of cases still to benefit from appeals jurisdiction), the Court must rule on the merits one way or another, and cannot simply deny review and express no view of whether the lower court properly applied the law. So the full briefing and oral argument ordered by the Court in the Alabama cases tells us little about how the Justices might feel on the merits, other than that the cases are difficult enough not to be susceptible to summary affirmance.

All three of these cases illustrate how complicated and multi-faceted the question of getting the Supreme Court to hear your dispute can be.