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January 30, 2015

California’s Water Law Symposium–A Law Student Success Story

Cross-posted from Legal Planet.

The 11th Annual Water Law Symposium was held last weekend at Golden Gate University Law School in San Francisco.  The event drew a standing-room-only crowd of water law scholars, practitioners and policymakers, who devoted the day to a thoughtful and lively examination of how California’s constitutional law doctrine of reasonable use affects all facets of water rights in the state.

To be sure, a multitude of environmental and natural resource law-themed conferences are held every year in California and around the U.S.  But the Water Law Symposium is special, for several related reasons.

First and foremost, Northern California law students are the Symposium’s sole creators and organizers – it’s exclusively a law student production.  While some of us law professor types serve as advisors to the students planning the event, the burden has been fully on the law student organizers to make the Symposium the resounding success that it’s become.

Second, the Water Law Symposium is a unique collaboration of law students from six Northern California law schools – Golden Gate, Berkeley Law, Hastings College of the Law, University of San Francisco, UC Davis (King Hall) and the McGeorge School of Law.  Traditionally, students from different law schools have little contact with one another; if they interact at all, it’s in inter-school moot court competitions.  But the Symposium dramatically breaks that mold, with students from all six schools collaborating closely and well in furtherance of a common purpose: that the annual Symposium excels.

And excel it does.  In a relatively short period of time, the Water Law Symposium has emerged as California’s premier water law and policy event.  Not surprisingly, the Symposium’s resounding success has received national notice and acclaim: a few years ago, the American Bar Association bestowed on the Symposium its award for the best law-student organized event in the entire United States.

Anyone interested in California water law and policy should make plans to attend the 12th annual Water Law Symposium in early 2016.  In the meantime, kudos to the dedicated law students of Northern California, whose collaborative efforts have produced a yearly event of sustained excellence.

January 30, 2015

Can an Elected State Legislature Sue the State? And Can Congress Approve State Laws That Otherwise Violate the Constitution?

Cross-posted from Justia's Verdict.

In my last column, I explored some aspects of an important case, Arizona Legislature v. Arizona Independent Redistricting Commission, pending at the Supreme Court. As I explained, the merits question presented is whether the people of a state may create an independent redistricting commission (IRC)-i.e., one that is not controllable by the elected state legislature-to devise congressional districts, as Arizona voters did in 2000. The elected Arizona legislature (acting as a body) brought suit, arguing the so-called Elections Clause of Article I of the Constitution (Article I, section 4)-which provides that "[t]he [districts for] Representatives . . . shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations"-protects elected state legislatures from state laws that take congressional districting out of their hands. In the space below, I continue to explore the questions the case raises, especially in light of the additional briefs that have been filed.

Does the Elected Legislature Have Standing to Sue the State (Voters)? The Two Key Precedents

One issue Court will take up-indeed, an issue the parties initially did not address but on which the Court specifically sought briefing-is whether the elected legislature has "standing" to challenge the Arizona initiative in federal court. Elected state legislatures have been found to have standing in a number of cases in federal court, but the more ordinary situation in which an elected legislature seeks to be in court involves the legislature's attempt to defend rather than attack state law. When the executive branch of a state does not defend a state law that is challenged by private individuals, the elected legislature may under certain circumstances be permitted to do so instead.

In the Arizona case, by contrast, the elected legislature seeks to invalidate, not preserve, the Arizona law that voters passed in 2000. To do so, the legislature, like any plaintiff in federal court, must demonstrate that it has suffered (or is reasonably certain to suffer) an "injury" that is "cognizable." The elected legislature's asserted injury here is that it has been removed from an important job that the federal Constitution (in the Elections Clause) assigns directly to it. Because, under the Arizona initiative, any congressional districting legislation passed by the elected legislature will not be put into effect, the elected legislature's vote on any such districting will be (improperly, to its way of thinking) nullified.

There is one older Supreme Court case that may support the Arizona legislature's standing argument. In Coleman v. Miller (1939), a majority of the Kansas state senate brought suit to challenge the actions of the state executive branch in connection with the ratification of a proposed federal constitutional amendment dealing with child labor. The state senate had deadlocked 20-20 on the question of ratification of the amendment, an outcome that ordinarily would be construed as a decision not to ratify. But the lieutenant governor of the state (as presiding officer of the senate), decided to cast a vote-as he would in ordinary legislation-and voted in favor of ratification.

When state officials prepared to communicate that Kansas had ratified, for purposes of determining whether three-quarters of the states had ratified (the threshold required for an amendment to go into effect), the state senators who had voted against ratification, joined by three others to make a majority of the senate, sued, claiming that the lieutenant governor had no business participating in the ratification vote because Article V's conferral of power to state "legislatures" to ratify federal amendments excludes participation of state executive officials. As a result, the Kansas senators argued, their decision not to ratify (by an equally divided vote) was being improperly overridden.

The U.S. Supreme Court ruled 5-4 that the plaintiffs had standing, reasoning that the lieutenant governor's actions, if indeed violative of Article V, completely and improperly nullified the valid votes of the elected state legislators. Because their votes had been unconstitutionally ignored altogether, they had suffered an injury cognizable in federal court.

Coleman was explained, distinguished and perhaps narrowed in 1997 in Raines v. Byrd. In that case, a handful of U.S. Senators and House members brought suit to challenge the constitutionality of the federal Line Item Veto Act (LIVA), a statute passed by Congress and signed into law that purported to give the President, with respect to each future budget bill in which Congress had not indicated an intent otherwise, the power to sign the budget bill into law but then decline to spend any money on certain budget items of his choosing. The plaintiffs in Raines claimed that giving the President such authority diluted the power of Congress, because any votes on subsequent budget bills in Congress might not be given full effect by a President who decided to spend on some, but not on all, the budget items Congress had adopted.

The Court in Raines found plaintiffs lacked standing. It distinguished Coleman in at least three ways: (1) in Coleman, a majority of the Kansas senate voted to sue, whereas Raines involved only a handful of members of Congress, and neither house of Congress authorized the suit; (2) in Coleman, the vote of the twenty Kansas senators was being nullified altogether by the lieutenant governor's actions, whereas in Raines the dilution or diminution of the "effectiveness" of Congress's votes in any future budget bill may not have been as extreme; and (3) the Kansas state senate had already voted on the ratification measure in question in Coleman (and the effect of its vote in a particular case was thus at stake), whereas in Raines the alleged harm related to future votes Congress might cast.

How Should Coleman and Raines Play Out in the Arizona Case?

In some ways, the Arizona case is similar to aspects of both Coleman and Raines, a feature which gives the Court some leeway to resolve the standing question any way it wants without having to formally overrule a past case. Like Coleman, the Arizona case involves a suit by a majority of a legislative branch-and not just a few individual members. Also similar to that in Coleman, the claim here is not just that the (redistricting) laws by the elected legislature might be affected or influenced by the Arizona initiative, but that they are foreclosed altogether: all the votes by the elected legislature on a districting bill would be completely ignored. But as in Raines, the alleged harm to voting power is in the future, insofar as the elected Arizona legislature has not actually cast any redistricting votes that have been (or are about to be) ignored or nullified on account of the Arizona initiative.

Here's another potentially relevant factor. In Coleman, the injury to the Kansas senate was inflicted from outside the senate, by the lieutenant governor. The same is true in Arizona, insofar as the People wrested power from the elected legislature without the legislature's consent. In Raines, by contrast, Congress itself passed the LIVA that some of its members believe improperly diluted Congress's own power. The Raines Court did not actually rely on the self-inflicted character of the alleged institutional injury, but that may be a significant background fact.

And here's yet one more possible consideration. In Raines, the Court suggested that even if the members of Congress lacked standing to challenge the LIVA, someone else outside Congress-the intended beneficiary of a spending item that Congress approved but that the President cancelled under the LIVA-would be able to sue later to challenge the Act. And, in fact, such a challenge did occur (and the LIVA was struck down-wrongly, to my mind) in Clinton v. New York. In the present case, it is possible that a voter or congressional candidate could sue to challenge the Arizona initiative, claiming that the district in which she finds herself on account of the lines drawn by the IRC is less desirable to her than the district in which she would have been located had the elected legislature retained control, but it is far from clear that such a case would actually be filed and survive the standing hurdle. The Supreme Court has elsewhere said that just because it is hard to imagine anyone other than the plaintiff before it who would have a better claim of standing is no reason to relax standing rules, but the presence or absence of better plaintiffs might be an unstated factor in a very flexible standing doctrine. (There are intimations of that in Raines itself.) If the Arizona legislature is correct that the federal Constitution gives it particular power that is being wrongly taken away from it, a sensible system should allow someone to go to court to fix the constitutional violation.

In the end, I think the Court can-and could very well-go either way on the standing question. I note that if the Court limits Raines and allows the elected Arizona legislature to sue, it might be open to the criticism that it manipulates standing rules out of a perceived hostility to direct democracy. Two years ago, in Hollingsworth v. Perry (one of the same-sex marriage cases), the Court used questionable reasoning (even if its result was correct) to make it hard for proponents of initiatives to defend those initiatives in federal court when elected state officials decline to defend. If the Court in the pending Arizona case relaxes the standing bar to make it easier for the elected legislature to attack the Arizona initiative, some will think the Court is just plain anti-initiative.

Back to the Merits and the Key Question of Congressional Approval Power

Of course, one way to avoid that perception would be uphold the Arizona initiative on the merits. As I argued in my last column, I think there is a compelling argument on the merits that Congress, in 2 U.S.C. § 2a(c), approved the use of initiative and other direct democracy devices in the drawing of congressional districts by states, and that such a decision by Congress should be controlling regardless of whether the word "legislature" in the Elections Clause means elected legislature only or something else. The more I have examined the congressional statute in question, the more controlling I think it is, because its text is quite broad and clear in allowing states to use whatever state law devices they want to conduct districting, and because the legislative history suggests that one reason Congress wanted states to be able to use direct democracy in this arena was that elected legislatures were prone to engage in mischievous gerrymandering, the very problem to which the Arizona initiative was directed. So I think the congressional statute here is right on point.

The key question - and one that the briefs don't fully engage - then becomes whether Congress has the power to authorize states to use initiative devices to draw district lines. The Arizona elected legislature says no, but as I pointed out in my last column, the Supreme Court (in Ohio ex. rel. Davis v. Hildebrant), in upholding Ohio's use of the referendum in districting), relied explicitly on Congress's having, in adopting (the predecessor to) 2 U.S.C. § 2a(c), invoked its Article I, section 4 powers, which "expressly gave [Congress] the right to" act in this realm. As I observed, Congress, in exercising its power, might have passed a law creating the very identical Arizona IRC to do the districting within the state, and that would be completely permissible. If Congress could have enacted the IRC law itself (or incorporated it by reference into binding federal law shortly after the Arizona voters approved it), then why can't it simply approve, before the fact, any districting approach it wants? The recently filed brief for the IRC points out that it is much more convenient for Congress to approve state laws prospectively than it would be to monitor what states are doing and then enact laws itself. But that doesn't quite answer the question whether Congress has the authority to approve state laws that aren't on the books at the time Congress adopts the approval. The IRC's brief, which is superb overall, doesn't delve deeply into this matter, and the federal government's amicus brief is the only one I've seen that has more engagement with this question.

The best (albeit losing) argument against such congressional power is that prospective approval is an impermissible delegation of congressional authority to states. In the nineteenth century, such an argument might have had traction. Chief Justice Marshall in the well-known case of Gibbons v. Ogden opined that Congress cannot enable states to legislate when the Constitution disabled them from doing so because such prospective empowerment would in effect constitute a delegation of federal legislative authority back to the states. And as Justice Story observed in 1838, federal statutes that approved or incorporated state laws were generally construed as approving or incorporating state laws in effect at the time Congress acted, because there are "very serious doubts, whether [C]ongress does possess a constitutional authority to adopt prospectively state legislation on any given subject; for that, it seems to me, would amount to a delegation of its own legislative power."

But all this changed in the 1900s. In two seminal cases, the Court signaled that prospective incorporation of state laws by Congress, or prospective congressional approval of state laws that would otherwise violate the Constitution, is allowed. In United States v. Sharpnack (cited by the United States in its amicus brief), the Court allowed Congress to incorporate state criminal laws for use as federal laws in federal enclave (donut hole) territories, and the Court did not construe the incorporation as static, but instead as ongoing, incorporating into the federal law state laws that were passed after Congress acted. In rejecting a delegation attack, the Court said that rather than being a delegation by Congress of its legislative authority to the states, "[the 1948 Act] is deliberate continuing adoption by Congress for federal enclaves of such . . . offenses and punishments as shall have been already put in effect by the respective states for their own government. Congress retains the power to exclude a particular state law from the assimilative effect of the Act." Thus, the prospective adoption does not constitute a delegation because Congress remains free to withdraw the power being exercised by the states if Congress disapproves. The opportunity to reclaim the delegated authority, under the Court's reasoning, dissolves the delegation issue.

An even more important case, one I haven't seen anyone cite in the Arizona case briefs, deals directly with congressional approval of state laws that would otherwise violate the Constitution. (I tend to think the congressional statute authorizing direct democracy in drawing district lines, 2 U.S.C. § 2a(c), as more of an authorization of state law than as an incorporation of state laws into federal law, since I don't think the ins and outs of the Arizona initiative are themselves federal law.) In Prudential Ins. Co. v. Benjamin, decided in 1946, the Court effectively held when the Constitution deprives states but not Congress of authority to do certain things, it does not restrict the "coordinated exercise" of federal and state authority. Put another way, if Congress can do something alone, Congress can consent (oven prospectively) to having the states do it instead. As Professor Cohen has correctly observed, the Court's theory sweeps broadly: "Congress may remove all constitutional limits on States when those limits are wholly inapplicable to Congress-that is, when they stem solely from divisions of power within the federal system."

As I have explained more fully in academic writings, I think the twentieth century attitude reflected in Sharpnack and Prudential may have something to do with the fact that, beginning in the early 1900s, U.S. Senators were no longer elected by state legislatures, such that delegations by Congress to state governments were less scary, insofar as states (through their clout over Senators) wouldn't be able to block efforts by Congress to reclaim federal power if states were abusing it. As Sharpnack pointed out, as long as Congress can pull back any power it has given to states, the delegation problem is minimized.

Perhaps delegation to state peoples to engage in direct democracy, as opposed to delegations to elected state legislatures, never raised reclamation problems even before the 1900s, so that even Chief Justice Marshall and Justice Story, in their times, would see no problem with a federal law that allowed states, freely and prospectively, to make use of direct democracy in congressional district drawing. But in any event, in light of Sharpnack and especially Prudential, the congressional statute at issue in the Arizona case, 2 U.S.C. § 2a(c), is a permissible exercise of congressional power, and thus should be an easy basis on which the Court could resolve the case, if it chooses to reach the merits at all.

January 27, 2015

Frontiers of Immigration International Conference

UC Davis School of Law faculty were important contributors to the Frontiers of Immigration International Conference, an event sponsored by the UC Davis Temporary Migration Cluster on January 22-23.


Panel discussion with King Hall faculty including G. Jack Chin, Rose Cuison-Villazor, and Leticia Saucedo

Bringing together an interdisciplinary group of scholars and researchers from around the world, the conference included discussions on the economic effects of immigration, skilled immigration, immigrant integration, immigration from Asia and Latin America, international economic development, and policy and legal reforms. Among a star-studded group of scholars, Gabriel "Jack" Chin, Rose Cuison-Villazor, and Leticia Saucedo spoke on a panel on Asian and Latino immigration. I spoke on the closing panel speculating about the next 20 years of immigration policy.  Chancellor Linda P.B. Katehi, herself an immigrant from Greece, offered the concluding remarks to the conference.

As I have said often, King Hall has among the best immigration law faculty in the United States. They regularly make us proud as they exchange ideas and policy proposals -- and hold their own -- among leading economists, sociologists, historians, and other scholars from around the world.  We all should be proud that the School of Law has strength in an area that has become one of the most pressing policy -- and social justice -- issues of modern times.

January 16, 2015

Argument recap: Mellouli v. Holder and removal for a misdemeanor drug paraphernalia (sock) conviction

Cross-posted from SCOTUSblog.

On Wednesday, the Supreme Court heard oral argument in Mellouli v. Holder, a challenge to the removal of Moones Mellouli, a lawful permanent resident from Tunisia, based on a Kansas misdemeanor drug paraphernalia conviction for possession of a sock used to hide drugs. The record of his conviction, the touchstone in removal proceedings, did not specify the controlled substance connected to Mellouli’s “drug paraphernalia.”

Section 237(a)(2)(B)(1) of the Immigration and Nationality Act provides for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” The immigration court, Board of Immigration Appeals, and court of appeals all found Mellouli subject to removal under the statute.

Much of the oral argument focused on the meaning of the statutory language. The Justices probed in detail the meaning of the language and how it applied to the case at hand. In my estimation, a majority of the Court seemed to side with the Mellouli’s interpretation that, in order for removal, a state conviction must relate to a substance controlled under federal law in “section 802 of Title 21.”

Justice Samuel Alito set the tone for the argument by interjecting a question at the tail-end of Jon Laramore’s introduction on behalf of Mellouli: “Can we begin looking at the text of the statute?” Justice Sotomayor, no doubt with deference under Chevron v. Natural Resources Defense Council, Inc. in mind, told Laramore that, if the Court finds the statutory language to be ambiguous, Mellouli had “an uphill battle to fight.” Laramore emphasized that the statute is limited by its terms to federal controlled substances, and that a federal controlled substance was not identified in Mellouli’s record of conviction. He further emphasized that Congress always had controlled the substances that would give rise to removal and that a drug paraphernalia conviction should be no different.

Discussion ensued about the “categorical” and “modified categorical” approaches to state criminal statutes for removal and the idea that a non-citizen would be removable only if the state conviction related to a substance controlled under federal law. Justice Stephen Breyer, with Justices Sonia Sotomayor and Elena Kagan in apparent agreement, seemed to side with Mellouli.

Chief Justice John Roberts and Justice Ruth Bader Ginsburg expressed concern that a federal paraphernalia conviction could not be premised on the use of a sock to conceal a controlled substance. The incongruity between state and federal schemes meant that a drug paraphernalia conviction under state law could subject an immigrant to removal when a federal conviction for possession of the same paraphernalia could not be secured.

Arguing on behalf of the United States, Assistant to the Solicitor General Rachel Kovner seemed to make somewhat inconsistent arguments. Her primary argument was that the “relating to” language in the statute was sufficiently clear to justify removal on a drug paraphernalia conviction: at one point, she stated emphatically that “[w]e don’t think this text is – is ambiguous.” However, she also argued that Chevron deference was justified, thereby suggesting that the statute was ambiguous and that Congress had delegated the agency the authority to reasonably interpret the statute.

Justice Scalia expressed skepticism about the government’s textual argument: “Do you think a sock is more than tenuously related to – to those federal drugs?” Kovner responded in the affirmative. Justice Alito then pressed her on the “practical work [being] done by the phrase ‘as defined in Section 802 of Title 21,’” which lists the substances controlled under federal law. Chief Justice Roberts also seemed unconvinced by the government’s textual argument.

Kovner’s characterization of Mellouli’s argument provoked an emphatic response of “No, no, no, no, no” from Justice Sotomayor. It does not seem a stretch to conclude that her response to the government’s argument was an emphatic “no.”

In four minutes of rebuttal, Laramore was not asked a single question.

As the Affordable Care Act’s oral arguments taught us, it is at best hazardous to speculate from the oral arguments about the outcome of a case. Nonetheless, the Justices’ questioning focused on the meaning and application of the statutory language in question (with little mention of Chevron deference). A majority of the Justices seemed to agree that, because the particular removal provision incorporated by reference the federal controlled substances statute, Mellouli has the better of the statutory argument.

As discussed in the argument preview, the Supreme Court has been reluctant to impose the harsh penalty of removal on lawful permanent residents convicted of small-time drug offenses. This case falls into that category. Indeed, Justice Kagan generated laughter from the audience with her quip that, if Mellouli had been convicted of possessing drug paraphernalia for hiding a few tablets of Adderall, students on “half the colleges in America . . . just randomly pick[ed]” could be as well. Several of the Justices seemed troubled about the possibility that Mellouli’s removal – and separation from his fiancé – was based on a misdemeanor conviction for possession of a sock. Consequently, one might predict that a majority of the Court will side with Mellouli. If that is the case, a critical question will be one raised by Justice Sotomayor to Laramore: if he is correct, should the case should be remanded to the BIA? Counsel suggested that the BIA already had its chance, but time ran out before he could offer a fuller response.

January 16, 2015

Why the Supreme Court Should Reject the Arizona Legislature’s Challenge to the Arizona Independent Redistricting Commission

Cross-posted from Justia's Verdict.

One of the important Supreme Court cases currently being briefed (with oral argument set for March), Arizona Legislature v. Arizona Independent Redistricting Commission, involves the question whether the U.S. Constitution and congressional statutes permit the people of a state to implement an initiative creating an independent redistricting commission (IRC) - i.e., one that is not controllable by the elected state legislature - to devise congressional districts. Arizona voters passed just such an initiative in 2000, and the elected Arizona legislature (acting as a body) has now brought the case to the Supreme Court, arguing primarily that the so-called Elections Clause of Article I of the Constitution (Article I, section 4) prevents a state from divesting district - drawing power from the elected state legislature. The Arizona legislature (represented by former Solicitor General Paul Clement) has filed its brief in the Court, and the IRC (also represented by a former Solicitor General, Seth Waxman) will file its written argument very soon. In the space below, I analyze the merits portion of Mr. Clement's brief on behalf of the Arizona legislature, and point out why I think it fails to demonstrate that the IRC's creation and powers violate federal law. (Another part of Mr. Clement's brief, addressing whether the Arizona legislature has "standing" in federal court to assert a challenge to the IRC at all, raises interesting questions of its own, but those will have to await another day.)

What the Constitution and Federal Statutes Say, and What Mr. Clement's Brief Argues

The Elections Clause of the Constitution reads in relevant part: "The [districts for] Representatives . . . shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations . . . ."

And an important federal statute says that "u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in [a particular way]." 2 U.S.C. § 2a(c) (emphasis added).

Mr. Clement's argument against the IRC is pretty straightforward. He contends that the term "legislature" in Article I refers, as a matter of constitutional text, history, and policy, specifically to the elected body of regular legislators of the state, and if another body - the IRC - is empowered to do the districting instead, the elected legislature has been improperly divested of its constitutionally conferred prerogative. As the brief observes, quoting from a case (Hawke v. Smith), "[t]he term 'the legislature' . . . 'was not a term of uncertain meaning when incorporated into the Constitution,' and 'what it meant when adopted it still means,' namely, 'the representative body which made the laws of the people.'" The brief adds that this precise wording by the framers was motivated by their "admiration for representative democracy and skepticism for other forms of government, including direct democracy." The brief then goes on to explain why "the IRC is not 'a legislature' at all [and is certainly] not 'the Legislature' in Arizona."

Mr. Clement does have to deal with two Supreme Court cases that seem to support the IRC. In Ohio ex. rel. Davis v. Hildebrant, in 1916, the Court upheld Ohio's use of the referendum (a popular vote veto by the people directly) to oversee the congressional districting done by the elected state legislature. The Court specifically rejected a challenge to the referendum based on Article I, section 4 of the Constitution, finding that "to include the referendum into the scope of the legislative process was [not] to introduce a virus which destroys that power," and also that Congress expressly chose language to include in a federal statute (the one quoted above) in order to make clear its desire that where under state law "the referendum was treated as part of the legislative power, the power as thus constituted should be held and treated to be the state legislative power for the purpose of" the Elections Clause (emphasis added).

And in Smiley v. Holm, in 1932, the Court upheld Minnesota law's inclusion of the governor in the districting process through the power of the veto, holding that there is nothing in the federal Constitution that suggests "an attempt to endow the Legislature of the state with the power to enact laws in any manner other than that in which the Constitution of the state has provided that all laws shall be enacted." As a result, a redistricting passed by the elected legislature but vetoed by the governor was not allowed to go into effect.

Mr. Clement argues that these two cases "do not aid the IRC" because "both decisions clearly contemplate a continuing role-indeed, a continuing preeminent role-for the state legislature in prescribing congressional districts," insofar as the referendum power and the gubernatorial veto at issue in those cases did not obviate the need for the elected legislature to itself agree on any districting plan that would go into effect. Because Arizona's IRC scheme totally replaces-rather than supplements-the power of the elected legislature, these cases, argues Mr. Clement, are readily distinguishable.

As to the federal statute that the IRC invokes to support it-2 U.S.C. § 2a(c)-Mr. Clement argues that a recent ruling by the Supreme Court (Branch v. Smith) that discusses that provision does not mention that it embodies a congressional blessing of all districting done pursuant to state law. Moreover, Mr. Clement argues, if Congress "ever passed a statute purporting" to "authorize states to oust from the congressional redistricting process the very state legislatures to which the Constitution delegates primary power," then such a law would "be plainly unconstitutional."

Why the Constitutional Reading Offered by the Arizona Elected Legislature Is Unpersuasive

Mr. Clement's argument on behalf of the Arizona elected legislature is flawed in several respects. Sometimes the argument frames questions improperly, and sometimes the argument's conclusions are not logically supported. At a relatively high level of abstraction, the brief misdescribes the relevant inquiry: the question is not whether the IRC can be considered a "legislature" within the meaning of the federal Constitution; the question is whether the Arizona electorate-which passed the measure creating, empowering and directing the IRC-can be considered the state's "legislature" for Article I, section 4 purposes. To see this, ask yourself whether the elected Arizona legislature could-if it wanted to-create and appoint a body like the IRC, and charge it with the task of actually drawing the district lines, without the need for formal ratification or approval of the final boundaries by the elected legislature. That is precisely what five other states do, and no one-even the Arizona elected legislature-seems to quarrel with that. In other words, no one argues that an elected legislature is violating Article I, section 4 by making use of a commission to help draw the lines. (The same is true for Congress; no one believes that the clause empowering "Congress" to "regulate commerce among the several states" is violated when Congress creates, empowers, and directs federal agencies to craft the specific commercial regulations in the name of the federal government.)

So if the people of Arizona can be considered a legislature for Article I, section 4 purposes, then it matters not whether the IRC is a legislature. The IRC is the tool of the popular legislature, just as commissions are the tools of the elected legislatures in states like Montana, Idaho, New Jersey, Washington, and Hawaii.

And when we turn to the question whether the people of a state can properly be considered the legislature of the state for these purposes, we see that the brief's treatment of the Hildebrant and Smiley cases is quite incomplete at the very least. The brief's claim that, as far as the facts go, the devices at issue in those cases did not completely displace the role of the elected legislature is true. But it is also true that the affirmative legal argument the brief makes-that the text, history and policy behind Article I, section 4 require that the word "legislature" be understood to mean the elected legislature and only the elected legislature-simply cannot be squared with the outcome, let alone the reasoning, of those cases. To put the point is quasi-mathematical terms, if "legislature" equals elected legislature and no more and no less, then "legislature" cannot equal "legislature plus people" or "legislature plus governor."

Indeed, what strikes me most in reading the brief is that its drafters make bold assertions without seeming to realize that these assertions conflict directly with Hildebrant and Smiley, the cases Mr. Clement argues pose no problems for him. For example, the brief asserts-in a section heading, no less-that "The Text of the Elections Clause Unambiguously Vests State Authority . . . in the State's Representative Lawmaking Body Alone" (emphasis added). The inclusion of the word "alone" is puzzling. If it is true that Article I, section 4 vests power in the elected legislature "alone," the how could a veto by the people (in the form of a referendum) be countenanced? (Similarly puzzling is the brief's insistence that the word "prescribe" in Article I, section 4 means "establish authoritatively" or "dictate." If the redistricting work product of the elected legislature can be made subject to a requirement of popular approval, as Hildebrant says it can, in what sense is the elected legislature "authoritatively establishing" or "dictating" anything?)

In a related vein, the brief observes that "the framers knew the differences between 'state legislatures' and the 'executive . . . branch[]'" and that "[t]hose contemporary understandings and usages are critical." Why would you make this (tangential) textual argument concerning the difference between "legislature" and "executive" when Smiley-a case whose relevance you are trying to minimize-expressly permits executive involvement in Article I, section 4 district drawing?

It is true that Mr. Clement's brief is able to quote, as noted earlier, language from one Court case, Hawke v. Smith (decided in 1920), to the effect that the meaning of the term "legislature" is the same now as it was in 1787-the elected representatives. What the brief does not mention, however, is that this language in Hawke did not involve Article I's Election Clause, but the word "legislature" as it appears in Article V's amendment process. The Hawke Court rejected the applicability of the referendum device in Article V. But Hildebrant explicitly permits the use of the referendum in congressional district drawing, which strongly suggests that the Court has a different conception of the what "legislature" means in Article I, section 4-a conception that focuses not on a specific elected body but on the lawmaking power of the state more generally and the democratically accountable legislative process that is being employed.

That the Court interprets Article I, section 4's reference to "legislature" in terms of a democratic legislative process, rather than in terms of a particular body, was made explicit by the Court in Smiley (the case involving a gubernatorial veto of an elected legislature's redistricting bill.) Responding directly to and rejecting the Hawke Court's "a legislature is a particular elected body" reasoning employed in Article V, the Smiley Court said: "The question [in the present case] is not with respect to the 'body' . . . but as to the function to be performed. The use in the Federal Constitution of the same term in different [parts] does not always imply the performance of the same function." So while Mr. Clement is able to quote language from Hawke, the brief doesn't explain that Hawke's interpretive approach has been overtly rejected by the Court in the Elections Clause context.

Just as Mr. Clement's textual arguments are in tension with the results and reasoning of case law, so too are his historical claims. If the framers of Article I, section 4 were so "skeptical" of direct democracy, and if such pure democracy "results in 'spectacles of turbulence and contention,'" as the brief argues, then how to explain the Court's decision in Hildebrant to permit a state to subject an elected legislature's districting plan to a popular referendum?

Overall, it almost seems as if one person wrote the first part of the brief-laying out an aggressive textual and historical argument-and then another person was tasked with trying to deflect potentially damaging cases, and no one realized that the proffered distinctions of cases had to mesh with the affirmative reading of Article I, section 4 offered in the main argument.

Why the Brief's Treatment of the Role of Congress in This Dispute Is Even Weaker

Putting aside what the word "legislature" means in Article I, section 4, the least persuasive part of the brief might well be its treatment of the crucial congressional statute. As noted above, one reason the Hildebrant Court gave for upholding the use of the referendum in district drawing was its view that Congress, when it was modifying a key federal statute regarding redistricting, replaced a reference to the "legislature" of a state with the phrase "in the manner provided by the law" of a state, specifically in order to convey its approval of any state redistricting that made use of the referendum, so long as the referendum was consistent with state law. Mr. Clement's brief does not deny that the Hildebrant Court read the statutory language this way (the brief never even refers specifically to the passage in Hildebrant.) Instead, the brief simply says that a more recent case, Branch v. Smith, discussing the same statutory provision, did not reiterate what Hildebrant said, and that some Justices in Branch believed that the statutory provision at issue had been implicitly repealed by other statutes.

But the brief does not mention that five Justices in Branch explicitly expressed their view that the provision at issue had not been implicitly repealed. Nor does the brief mention that while Branch does not reiterate the reading Hildebrant gave, neither does it pull back from Hildebrant's reading in any way. Indeed, the Branch Court had no occasion to even discuss the Hildebrant interpretation at all because although the statute at issue in Branch was the same one involved in Hildebrant (or, more specifically, a later rendition of the same law), the legal question presented in Branch had nothing to do with whether Congress has approved of all state districting that is done pursuant to state law. Hildebrant's interpretation thus is not called into question by Branch, and statutory stare decisis is, of course, supposed to be very strong.

Probably because its drafters sense vulnerability here, the brief does say Congress cannot constitutionally authorize state laws that cut elected state legislatures out of the district-drawing loop. But in making this assertion the brief is on very weak ground. Congress is explicitly empowered to override any state districting and do the districting itself. That is precisely why the Hildebrant Court found congressional endorsement of Ohio's scheme so relevant-because Article I, section 4 "expressly gave [Congress] the right to" decide. In exercising its power, Congress might have passed a law creating the very identical Arizona IRC to do the districting within the state, and that would be completely permissible. If Congress could have enacted the IRC law itself (or incorporated it by reference into binding federal law shortly after the Arizona voters approved it), then why can't it simply approve any districting approach that satisfies whichever requirements, such as compliance with state law procedures, that Congress thinks are important? That is the key question Mr. Clement brief's never begins to address. And while one could make noises that even though Congress can do something itself in this realm it cannot prospectively authorize a state to do it instead, any such arguments are unlikely to be convincing, especially in light of the use to which Hildebrant put the statute.

Perhaps it is possible to read the federal statute as approving the use of the referendum, as in Hildebrant, but not the use of the initiative, as in the present case. But the text of the statutory phrase relied on by Hildebrant-"in the manner provided by the law" of a state-would not seem to permit such a distinction. Neither would the statute's legislative history (also relied on by the Hildebrant Court), which mentioned a desire to permit states to use both the initiative and the referendum in districting processes.

In the end, this congressional blessing, coupled with Congress's broad override powers in the Elections Clause, might be the easiest, and narrowest, ground on which to decide the case and reject the Arizona legislature's attack. There would then be no need to decide whether, in the absence of the federal statute, a state could cut an elected legislature out of the districting process or whether such an effort would be foreclosed by a strict reading of the word "legislature" in Article I, section 4.

 

January 6, 2015

Argument preview: Removal for a misdemeanor “drug paraphernalia” conviction

Cross-posted from SCOTUSBlog.

On January 14, the Supreme Court will hear oral argument in Mellouli v. Holder, one of several recent cases in which the Court has scrutinized the federal government's efforts to remove a lawful permanent resident from the United States based on a minor drug conviction. The frequency with which these kinds of cases recur reflects the focus of the Obama administration's removal efforts on noncitizens who have had brushes with the criminal justice system.

The case now before the Court specifically involves the government's efforts to remove a lawful permanent resident based on a state misdemeanor conviction for possession of drug paraphernalia - here, a sock used to hide drugs.

Facts

In 2004, Moones Mellouli, a native of Tunisia, entered the United States on a student visa and later became a lawful permanent resident. After pleading guilty to a misdemeanor under Kansas law, he was sentenced to probation for "possess[ing] with intent to use drug paraphernalia, to wit: a sock, to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance." As the court of appeals later observed, "[i]t seems surprising to call a sock 'drug paraphernalia,' but using a sock to store and conceal a controlled substance falls within the [Kansas] statute's literal prohibition." State laws vary widely on the regulation of drug paraphernalia; some states do not criminalize its possession.

The record of conviction, which is the touchstone in removal proceedings, did not indicate what controlled substance was connected to Mellouli's "drug paraphernalia." However, a document not part of the record of conviction alleged that, while in jail on a DUI charge, Mellouli had hidden four tablets of Adderall - a prescription medicine normally used to treat attention deficit hyperactivity disorder (ADHD) - in his sock.

The U.S. government sought to remove Mellouli under Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act, which provides for the removal of "any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)." The immigration court ordered his removal. The Board of Immigration Appeals (BIA), which has found drug paraphernalia convictions to justify removal because they relate to "the drug trade in general" - language not found in the statutory provision at issue - dismissed the appeal. The court of appeals agreed with the BIA, noting that deference to the Board's interpretation was justified under Chevron v. Natural Resources Defense Council, Inc.  Mellouli filed a petition for certiorari, which the Court granted last summer.

Arguments

In his briefs, Mellouli contends that the plain language of the statute requires the state conviction to be directly tied to a controlled substance under federal law; by contrast, the court of appeals effectively held that, contrary to the text of the statute, lawful permanent residents may be removed from the United States based on paraphernalia used in connection with substances that are not regulated by federal law. Mellouli further argues that, because the BIA ruling contradicts the text of the statute as well as the Board's inconsistency in interpreting the statutory provision in question, Chevron deference does not apply.

The United States counters emphatically that the conviction in fact is under a state law "relating to a controlled substance (as defined in section 802 of title 21)," and thus one that subjects Mellouli to removal. The government points out that Congress employed broad language to ensure that, even when federal- and state-controlled substances schedules are not identical, noncitizens who commit crimes related to drugs are removable. The United States also contends that the BIA interpretation is entitled to Chevron deference.

The significance of the case

The case raises two issues common to the run-of-the-mill contemporary immigration cases on the dockets of the federal courts: (1) interpretation of the complex immigration removal statute; and (2) the deference properly afforded the BIA's interpretation. Because the particular removal provision incorporated by reference the federal controlled substances statute, Mellouli has the better of the statutory argument and thus on the Chevron deference point as well (because deference to an interpretation contrary to the text of the statute is unwarranted). If the Court finds ambiguity in the statute, it might well invoke a version of the rule of lenity, as it has occasionally in recent years, to construe the statute against Mellouli's removal.

In interpreting the criminal removal provisions of the immigration laws, the Roberts Court has opted for bright-line rules (as advocated by Mellouli) as opposed to more flexible standards (as argued for by the U.S. government). In Moncrieffe v. Holder, for example, the Court rejected mandatory removal based on a conviction for possession of a small amount of marijuana and embraced the "categorical approach" requiring all crimes under a state penal law to qualify as an "aggravated felony" for a conviction under that statute to constitute such a felony. Similarly, in Carachuri-Rosendo v. Holder, the Court would not mandate removal based on a misdemeanor conviction for possession of a single tablet of Xanax because the prosecutor had not adhered to the requirements of the statute necessary for the conviction to be treated as a felony. In neither case did the Court defer to the BIA's interpretation of the statute because the Board's interpretation conflicted with the statutory text. Indeed, the argument has been made that Chevron deference is not justified in instances like this one given that the BIA's expertise is in immigration, not criminal, law.

The Supreme Court has been reluctant to impose the harsh penalty of removal on lawful permanent residents convicted of small-time drug offenses. Despite being engaged to marry a U.S. citizen, Mellouli - who already has been removed - has been exiled from the United States. His misdemeanor drug paraphernalia conviction for concealing contraband in his sock has resulted in the possibility of permanent separation from his fiancé in the United States.

January 5, 2015

Additional Thoughts (and Concerns) About the Low Bar Pass Rates in California and Elsewhere in 2014

Cross-posted from Justia's Verdict.

About a month ago I wrote an essay for this website commenting on the drop in bar passage rates in many states in the fall of 2014. I focused on the large national decrease in scores that test takers received on the so-called Multistate Bar Exam (MBE), a 190-question multiple-choice exam that accounts for much of the entire bar exam in most states, and on remarks made by Erica Moeser, who heads the organization that makes and scores the MBE (the National Committee of Bar Examiners or NCBE), to the effect that this year's takers were "less able." Much has happened since I wrote that essay: on November 25, about 80 law deans (I should note my dean at UC Davis was not among them) joined in a letter to Ms. Moeser requesting that "a thorough investigation of the administration and scoring of the July bar exam" be conducted, and that "the methodology and results of the investigation . . . be made fully transparent to all law school deans and state bar examiners" so that there might be "independent expert review" of the exam's "integrity and fairness"; on December 18, Ms. Moeser responded with a letter, and an attached essay from NCBE's quarterly magazine that provided additional analysis and data; and other states, including the largest state, California, have in recent weeks released details on bar passage within their jurisdictions. In the space below, I analyze some of these recent developments, with specific reference to what likely accounts for the large drop in MBE performance (and thus bar pass rates in many states) this year.

Ms. Moeser's Letter Defends the NCBE Against Implicit Criticism by Law Deans

I begin with Ms. Moeser's formal responses to the law deans. The tone of her letter suggests she feels a bit attacked by the deans (and her perception in this regard is probably understandable). She apologizes, sort of, for using the term "less able" in a way that might suggest anything other than the simple fact that the 2014 test takers did not do as well as did test takers the previous year. But even as she makes clear she did not intend to offend or distract by using that term, she seems to bristle at a term used by the deans in their letter: "integrity." Ms. Moeser appears to understand the deans' request for an examination of the "integrity and fairness of the July 2014" exam as questioning the honesty or professional qualifications of NCBE personnel. In reality, I suspect the deans used the word "integrity" in reference not to the personal or professional character of the test makers, but to the soundness of the July 2014 test itself. As we all try to get to the bottom of why test takers scored less well this year, it would be nice not to be overly burdened by linguistic sensitivities.

On the question of whether the 2014 exam was more difficult than usual, Ms. Moeser's letter reassures deans that NCBE has "reviewed and re-reviewed" every "aspect of [its] methodology and execution[,]" and that the July 2014 test has been examined multiple times and by different, independent psychometricians to guarantee that it was no more difficult than the 2013 test or previous tests. Ms. Moeser makes clear, however, that "the results of our studies will not be revealed publicly [because] [o]ur systems are proprietary, and security is essential." Her steadfast refusal to turn over specifics about NCBE's "equating" process (used to ensure that difficulty remains constant across test administrations) may not sit well with some of the deans who want outside experts to be able to verify NCBE is comparing tests properly. I can certainly understand that the NCBE does not want to make public the actual text of the questions it has used (and might continue to use) in order to equate the difficulty of one test administration with another, but perhaps NCBE could share more details about the way equating questions are selected, and on the precise statistical inferences that it draws based on taker performance on these equating items. Maybe there is no middle ground, but I would not be surprised if some deans persist in seeking more technical detail.

Ms. Moeser's Essay Contains Some Unhelpful Explanations

The magazine essay Ms. Moeser attaches to her letter provides additional context, and also includes data about LSAT scores for students at the 25th percentile of LSAT performance for each ABA-approved law school for the classes that entered in the fall of 2010, 2011, 2012 and 2013. (Data for fall 2014 became available just a few weeks ago and weren't included in Ms. Moeser's essay.) One the one hand, a number of points Ms. Moeser makes in her essay do not seem particularly relevant to understanding the dramatic aggregate drop in MBE scores in 2014 from 2013. For example, she points out that the Law School Admissions Council (LSAC) now asks schools to report the highest LSAT performance for each law student, rather than the average LSAT performance for each. This change made by LSAC might make it harder for a law school to compare and analyze its own bar exam performance over a long period of time, but since LSAC made this change before the class graduating in 2013 entered law school (in fall of 2010), the reporting policy would not seem relevant to comparing the bar performance of the class graduating in 2013 and the one graduating in 2014 (the latter of which saw the dramatic drop in bar performance).

Ms. Moeser also observes that some law schools accept more transfer applicants these days (perhaps in part because this is a way to keep a school's headcount and tuition dollars high without diluting the admissions credentials of the entering first-year class, since the characteristics of persons who transfer in as second-year students aren't included in those credentials). This phenomenon undoubtedly exists at some schools, and it may complicate a particular school's efforts to compare its current bar passage rates with those from an earlier era (when it didn't accept as many transfers), but this modern increase in transfers can't easily explain a national drop in MBE performance this year, since every student who transferred presumably would have taken the MBE whether s/he transferred or not. I suppose the transfer phenomenon might affect aggregate MBE performance if there were some "mismatch" effect (of the kind that Rick Sander has asserted, and that his critics reject, with respect to affirmative action) taking place when people transfer to schools for which they are not academically suited. But Ms. Moeser does not suggest this (or any other) theory for why an increase in transfers might affect aggregate bar performance, and I am unaware of any evidence of a transfer mismatch effect. Moreover, the number of transfers who graduated in 2014, while larger than in past years, wouldn't seem big enough to move the aggregate bar performance numbers very much this year even if there were such an effect.

Ms. Moeser's essay also posits that curricular changes in law school, ranging from an increase in ungraded externships and other experiential learning offerings, to fewer (or shorter) required black-letter courses, may be causing test takers to be less well-prepared for the bar exam. But any such curricular changes have been taking place gradually across the country, and unless there were some tipping point that was reached with respect to the class that graduated in 2014 compared to the class that graduated a year earlier, these changes would not likely contribute greatly to an abrupt and significant change in bar performance from one year to the next.

Ms. Moeser's Essay Also Contains Some Probably Fruitful Explanations

On the other hand, Ms. Moeser does adduce facts that tend to support her contention that the July 2014 MBE was no more difficult than earlier tests. First, she says that 2014 test takers performed worse on the very "equating items drawn from previous July test administrations" than did students from past years. Assuming the equating items are reasonably well chosen, weaker performance on those identical items would be indicative of a group that would perform more poorly on the test generally.

Second, she points out that the July 2014 test takers also performed more poorly relative to prior law graduates on the Multistate Professional Responsibility Examination (MPRE)-which most graduating 2014 students took earlier in 2014 or in 2013. Ms. Moeser's suggestion that recent score declines on the MPRE (which tests legal ethics in a multiple-choice format similar to the MBE's) can be seen as precursors to the 2014 MBE decline is interesting, and may bolster her conclusion that the MBE was properly equated and scored-provided that the MPRE has itself been properly equated and scored and that the MPRE and the MBE exams test similar skills.

Third, and probably most powerfully, she describes how many law schools, even as they have reduced entering class size, have enrolled lower LSAT performers, perhaps especially importantly at the 25th percentile of a law school's entering class. In addition to this, she points out that we know nothing about matriculants "below the 25th percentile . . . ; the tail of the curve leaves a lot of mystery, as the credentials of candidates so situated. . . and the degree of change [from previous years] are unknown." To be sure, this may be a group at many law schools that often struggles with bar passage, and a decline in the 25th percentile LSAT performance (and within that bottom of a school's LSAT quartiles) could explain lower bar pass rates at many schools.

If we look at the 25th percentile LSAT scores at all the nation's ABA-approved law schools for the classes that entered in 2010 (and took the bar in 2013) and the classes that entered in 2011 (and took the bar in 2014), we see that, on average, 25th percentile LSAT scores slipped by about half an LSAT point. Perhaps worse yet (because decreases in LSAT scores in the higher ranges of LSAT performance may have less importance to bar passage), the number of law schools whose 25th percentile LSAT performance was in the bottom half of LSAT scores nationwide (an LSAT score of 151 or below) grew from 62 schools for the class entering in 2010, to 71 schools for the class entering in 2011. And, as Ms. Moeser points out, the (unobserved) drop-off within the bottom LSAT quartile at many schools may be more ominous indeed.

Of course, as I said a month ago, weaker LSAT performance might be accompanied by higher college GPAs and other indicia of academic strength. And some schools suffering LSAT score drops might be shrinking in size quite dramatically, such that their effect on national bar pass rates might be lessened. So much more analysis is needed before the full picture is understood. But it appears that beginning with the class that entered law school in 2011, there has generally been some decrease in LSAT performance, and that such decrease may account for a good chunk (though likely not all) of this year's lower bar performance.

What Preliminary Analysis of California's Recently Released Data Suggests

The results released this week in California seem to be consistent with this account. Overall, it was a tough year for bar passage in the Golden State. One out of every three first-time takers from ABA-approved schools throughout the country failed the California bar exam. Among the particularly depressing facts is that first-time African American takers from ABA-approved law schools had a pass rate of only 42%. When we look at first-time takers from ABA-approved schools located in California (who often do better than takers from ABA-approved schools in other states), Latina/o takers suffered a big decline this year; whereas White and Asian first-time California ABA-school takers saw their pass rates drop about 5% as compared to 2013, Latina/o takers saw their pass rate drop over 10%, to just 59.5%. At least four well-established California schools--UC Hastings, University of San Francisco, Santa Clara and Southwestern--experienced first-time pass rates (of 68%, 61%, 60% and 54%, respectively) that were the lowest in 18 or more years. (The data I had went back only to 1997, so this year's performance might well be the worst in more than 20 years for these schools.)

And there does seem to be a correlation between declines at the 25th percentile LSAT score and lower bar pass rates among the California schools this year. Eleven schools saw their 25th percentile LSAT score drop between the class that entered in 2010 and the class that entered in 2011, and 9 of these schools saw their bar pass rates also drop. (One of the schools that saw its 25th percentile LSAT score go down but whose bar pass rate did not decline was USC, and its 25th percentile LSAT remained quite high-above 160-for the class entering in 2011.) The California school that saw the sharpest drop at the 25th percentile LSAT score in fall of 2011, UC Hastings, suffered, as I noted above, its worst bar pass rate in decades. And among the three schools in California whose 25th percentile LSAT scores increased in fall 2011 compared to the year before, two of those schools (UC Davis and UC Berkeley-both of whose 25th percentile LSATs were above 160 in 2011) saw their bar pass rates increase a bit (UC Davis from 85% in 2013 to 86% in 2014, and UC Berkeley from 85% in 2013 to 88% this year.) Only four schools statewide saw bar pass rates increase at all, and Berkeley's increase of 3% was the largest.

Obviously, as mentioned earlier, much more than a school's 25th percentile or median LSAT score goes into its bar pass rate, and year-to-year variations in bar passage are unavoidable at each school, even if student academic quality remains constantly high. There is likely no single factor that explains all of this year's bar performance decline. But Ms. Moeser's suggestion that we delve deeply into the admissions and academic support functions of law schools if we want to raise pass rates (as long as we have to live with a questionable device like the bar exam) is well worth heeding. And incoming admissions numbers do not bode well for bar pass rates for the next few years. In California, for example, the four schools I mentioned whose bar pass rates are at twenty-first century lows (UC Hastings, University of San Francisco, Santa Clara, and Southwestern) all have seen significant slippage at the 25th percentile in the last three years since the fall of 2011. And nationally, the number of schools whose 25th percentile LSAT score is below the national median score (i.e., 151 or below) grew again in the fall of 2012 (from 71 to 80), and yet again in the fall of 2013 (from 80 to 90), and likely grew again in 2014. Unless bar examiners across the country lower the threshold for passage (which in most states they insist they never do), or unless law schools find some new, highly effective academic success tools to help students do better on the bar--and find them very quickly--I fear that the difficult news about bar pass rates we experienced this fall will recur each year for the foreseeable future.