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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.

May 30, 2014

The Class Certification Checklist

This week, The Recorder published a column I authored, titled "The Class Certification Checklist." Here is the introduction:

The Supreme Court's decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), is must reading for anyone interested in class actions under Federal Rule of Civil Procedure 23. Justice Antonin Scalia's majority opinion unmistakably signals that the Roberts Court is more cautious in its approach to class actions than previous ones.

Intended for the class action novice, this article reviews the basic requirements for certification of a class action after Wal-Mart.

The Class Certification Motion

Rule 23(c)(1)(A) provides that "[a]t an early practicable time after a [class action is filed,] the court must determine by order whether to certify the action as a class action." Courts routinely permit discovery, including depositions of the class representatives, limited to class certification before full-blown merits discovery.

The class representative must file a motion to certify the class and bears the burden of establishing that each and every requirement for class certification is satisfied. Defendants seeking to limit their exposure often oppose certification and may assert the rights of absent class members. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 803-06 (1985).

The Merits Matter

The Supreme Court in Wal-Mart retreated from its statement in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974), that the merits of the claims in the complaint should not be considered by the district court in deciding a class certification motion. The court instead directed the lower courts to engage in a "rigorous analysis" in determining whether the requirements for certification have been satisfied, recognizing that the analysis "will entail some overlap with the merits of plaintiff's underlying claim. That cannot be helped." Wal-Mart, 131 S. Ct. at 2551 (citation omitted).

You can access the full checklist by viewing the column in its entirety here.

May 23, 2014

The Equality and Coercion Issues Inadequately Addressed in Town of Greece v. Galloway

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

Earlier this month, in Town of Greece v. Galloway, a closely divided (5-4) Supreme Court upheld a practice in Greece, New York (located upstate) of starting town board meetings with a short prayer. Under the practice (which goes back around fifteen years) the Town has invited local clergy to offer an opening prayer after the presentation of the Pledge of Allegiance. Prayer givers deliver their words over the Board's public address system, and many clergy have asked members of the audience to bow their heads, stand, or join in the prayer recitation. Christian clergy have given nearly all the prayers since 1999, and have been invited to do so by the Town, which often calls them "chaplain[s] of the month."

In upholding the Town's actions, the Court rejected both equality-based and liberty-based arguments that had been raised by the plaintiff challengers. The U.S. Court of Appeals for the Second Circuit had invalidated the Town's policy largely on the basis of equality concerns-because the prayers, in context, had to be understood as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. As we made clear in an earlier column, we agreed with this reasoning, but we also felt that the plaintiffs had good arguments that the prayers at board meetings implicated liberty concerns and were coercive, insofar as nonbelievers or persons of non-Christian faiths might feel compelled to participate (or feign participation) in a town's prayers, lest these minorities risk being viewed by the audience and, importantly, by the town board members themselves, as "outsiders" whose needs and interests might get less respect from local government on that account. For us, the coercion argument was much stronger here than it was in Marsh v. Chambers, a 1983 case in which prayers offered at sessions of the Nebraska state legislature that were upheld against an Establishment Clause challenge. Importantly, because persons who attend local government sessions are likely to be participants rather than just spectators, the pressure to conform and participate is significantly higher here than in the state or national legislative arenas. Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council/town board meetings. In the setting of a city council, citizens who wish to address the council are coerced when they are asked to stand or otherwise affirm the prayer that is being offered in their name. A failure to comply would risk alienating the very political decisionmakers whom they hope to influence.

In the paragraphs below, we offer our reaction to the reasoning employed by the Court in resolving these equality- and liberty-based arguments. Given space constraints, we necessarily focus only on the principal opinion in the case, but we recognize that other Justices expressed significant observations and analyses that we hope at some future point to explore.

Should the Town Practice Have Been Viewed as Discriminatory?

Justice Kennedy's opinion-which announced the judgment of the Court and which was joined in full by the Chief Justice and Justice Alito and in part by Justices Scalia and Thomas-was to us quite surprising and disappointing. As we read and reread it, we feel it does not adequately address and respect the core constitutional values of religious liberty and equality, and often characterizes factual matters in strained ways. The analysis ignores critical legal distinctions or assigns substantive meaning to facts that should not matter. And perhaps most problematically, Justice Kennedy's apparent understandings of social reality do not accord with our sense of human behavior, cultural meaning, and proper institutional functioning. In that respect, our disagreement is not just with Justice Kennedy's interpretation of constitutional law in this case; we see a different real world than the one he describes and to which he applies constitutional principles.

Justice Kennedy begins by characterizing the Town's prayer practice as nondiscriminatory, which explains his conclusion that the policy does not violate constitutional principles of religious equality. But as the Second Circuit found, the Town's policy is glaringly discriminatory. The Town reaches out and calls congregations listed in local directories, and invites them to provide someone to offer a prayer at meetings. True, the Town asserts that it would permit individuals not affiliated with these congregations to offer prayers at meetings if such individuals asked permission to do so, but the Town acknowledges that it takes no affirmative steps to notify anyone in the community that such requests would be granted. Reaching out to some religious adherents in particular, and ignoring others who may not be affiliated with established congregations, hardly seems neutral.

Nor is the equality problem limited to unaffiliated religious persons; other Town residents may be affiliated, but with congregations located outside yet nearby Greece. Justice Kennedy observes that the Constitution does not require a town "to search beyond its borders for non-Christian prayer givers," but it is common in modern America (especially outside big urban areas) for religious minorities in one town to worship in a congregation in a neighboring community. To formalistically ignore such persons is to deny them the same respect afforded to the members of established local congregations; the Town is simply not treating all of its denizens equally in this regard.

Justice Kennedy's focus on the latitude the government-invited clergy should enjoy to say what they want without constraint also seems to us to completely miss the unequal respect issue, and also the liberty of conscience problem. He observes that once the government "invites prayer into the public sphere . . . it must permit a prayer giver to address his or her own God or gods as conscience dictates." But in the Town of Greece, prayer givers generally have not been expressing purely personal prayers. Instead, they have claimed to be leading a prayer made by the audience and the community. When government invites a prayer giver to speak on behalf of others, more than one individual's conscience is at stake, and the consciences of all of the people in whose name the prayer is offered must be given equal respect.

It is far from respectful to say, as Justice Kennedy does -- in response to concerns by audience members that they are being asked to stand and bow their heads and join in prayers -- that the clergy in question are used to "directing their congregations in this way." The key point is that the audience at a town board meeting is not a congregation -- a group of self-selected worshippers who decided to attend the prayer giver's church because they adhere to his beliefs and practices. Instead, audience members are a diverse group of citizens attending the board meeting on government business to address their representatives. They deserve to be treated as citizens, not congregants. Clergy who cannot distinguish between parishioners in the pews and the audience at a government meeting need to be reminded of this difference. The decision to attend a board meeting is not a decision to attend a church.

Justice Kennedy's Treatment of the Coercive Aspects of Town Prayers

Perhaps even more unconvincing and undeveloped is Justice Kennedy's response to the plaintiffs' contention that the prayer practice adopted by the Town of Greece is inherently coercive in nature because attendees will feel pressure to conform and participate in this religious exercise. Here, he argues that a town's practice must be understood in terms of the historical tradition of having legislative prayers, a tradition recognized and upheld in Marsh. But, as even Justice Kennedy curiously concedes, there is almost no evidence in the record establishing a long tradition of state-sponsored prayer at local government meetings. And this lack of tradition makes sense because, as noted above, Marsh is distinguishable insofar as citizens have no right, opportunity, or expectation to participate in state legislative or congressional sessions or to petition their representatives from the visitors' gallery the way they do at the local government level. Since passive spectators at state legislative and congressional sessions are not petitioning government, they could hardly complain that they feel compelled to join in state sponsored prayer out of concern that their petitions would be denied. Active participants at local government meetings, to the contrary, are attempting to influence their representatives and will be subject to pressure to conform to avoid alienating the very decisionmakers they are addressing.

Justice Kennedy offers precious little by way of substantial response to this crucial distinction. And what he does offer is so unrealistic, it is hard to accept that he truly believes these arguments himself. He begins this part of his opinion with the unlikely assertion that "the principal audience for the[] [Town Board] invocations is not, indeed, the public but lawmakers themselves." How can that be his interpretation of the facts? The individual clergy member offering the prayer generally faces the public audience with his or her back to the lawmakers. The clergy member asks the members of the public to stand, bow their heads, and join in prayer. The public -- obviously understanding the prayer as being directed at them -- stands and responds to the prayer giver's requests. The prayer giver often asserts that the prayer is being made on behalf of the audience and the community. Yet in Justice Kennedy's understanding, these prayers are primarily directed to the lawmakers and not to the public.

What's more, Justice Kennedy believes that there is a sharp distinction between the town board members asking the audience to stand and pray, and the invited clergy member who is offering the prayer telling the audience to do so. To us, this distinction has no significant relevance to the key question, namely, whether audience members reasonably feel pressure to join in state-sponsored prayers lest they offend or alienate the town board decisionmakers they will be petitioning a short time later. If a judge, employer or teacher were to invite clergy to offer a prayer in court, on the job, or at school, respectively, and then invited all persons in attendance to pray, the coercive nature of the circumstance would not be significantly mitigated by the fact that the prayer directive came from the invited clergy rather than the judge, employer or teacher.

Justice Kennedy also suggests that the fact that coercion may be intrinsic to these contexts is constitutionally insignificant as long as board members do not explicitly assert that they will take a person's refusal to pray into account in deciding matters before them, and so long as the citizens have no direct proof that board members have discriminated against residents who decline to pray. But basic constitutional law principles recognize that power is subject to abuse, including (perhaps especially) at the hands of petty functionaries. We structure many aspects of our system prophylactically to minimize the opportunities for abuse, particularly First Amendment abuse. Unfortunately, we simply cannot share Justice Kennedy's almost naïve sense that "should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy." For better or worse, in the real world, culture wars, friction between members of different faiths, and acrimony and retribution (whether conscious and unconscious) between religious and non-religious individuals and groups is very real. There is a reason Establishment Clause claims are sometimes brought by John or Jane Doe litigants.

Contested Views Regarding the Religious Nature of Prayer and the Relative Coercion in Different Settings

Most surprising and problematic of all is Justice Kennedy's seeming understanding of the nature of prayer and its meaning to the religious individual. To Justice Kennedy, public prayer at a town board meeting does many things and serves many functions, most of which are largely ceremonial in nature. He never suggests or even really acknowledges that prayer might be something else-that it is a personal, meaningful expression of the individual to G-d. But for many Americans that is precisely what prayer is, and its expression in a public meeting does not alter its fundamental nature. Indeed, the reason so many of the prayers offered before town board meetings in Greece are explicitly sectarian is that the person offering the prayer understands prayer as a meaningful communication to G-d and an expression of heartfelt faith.

Justice Kennedy's dismissal of the impact of these prayers on members of minority faiths or those who are not religious can be reasonably understood only if one accepts a watered-down definition and understanding of prayer. It is only in this sense that he can argue that if religious minorities and nonreligious citizens remain in the meeting room and stand along with everyone else for the prayer, no serious harm is done. He believes that their conduct would not "be interpreted as an agreement with the words or ideas expressed." But this argument presupposes that these town board prayers do not serve the function of true prayer, and that the people standing and bowing their heads are not engaging in a meaningful religious act. If the majority of individuals participate in these collective prayers as authentic expressions of prayer, of course a nonreligious individual or member of a religious minority engaging in the exact same behavior would necessarily be perceived as engaging in a similarly authentic religious exercise. Why would anyone interpret that individual's conduct differently?

In the past, Justice Kennedy has been more attuned to the real-world position in which non-majority persons find themselves when dealing with religion in the public sphere. Justice Kennedy wrote the majority opinion in Lee v. Weisman, where the Court struck down state-sponsored prayers at public middle and high school graduations. His sensitivity to context and to the coercive burden on students in that case stands in stark contrast to the ungrounded analysis that permeates his opinion in Town of Greece. Justice Kennedy asserts that the offering of state-sponsored prayer at a middle school or high school graduation is more coercive than the offering of prayers at a town board meeting. But in doing so, once again, his analysis misses the crux of the coercion argument in Town of Greece. Because they have completed their studies, graduating seniors at public school graduations no longer risk the exercise of discretionary authority by teachers and principals who might be offended if students refused to stand during a benediction. They are no longer subject to the control of school authorities. Residents seeking to influence town board members on one or more matters involving their personal needs and interests experience far greater coercion because they are subject to the discretionary decisions of the board that has orchestrated the offering of a prayer in which they publicly refuse to participate.

Nor was the challengers' claims in Lee stronger than those raised in Town of Greece simply because minors were involved in the former case. While it may be true that adults are more capable of standing their ground than are children, pressure is pressure whether or not someone gives in to it. For that reason, the fact that many adults might simply refuse to participate in town prayers and risk the alienation of the board-rather than sacrifice their religious principles-does not make their First Amendment claims any the weaker; coercion is impermissible because it violates the Constitution for the state to force someone to choose between adherence to one's religious beliefs or the risk of harm or loss, without regard to how the victim responds to the illicit pressure.

It seems that the world -- or at least Justice Kennedy's view of it -- has changed since Lee was decided.

May 10, 2014

How the Biggest Supreme Court Victory for Affirmative Action a Decade Ago Contributed to the Defeat for Affirmative Action Last Month in the Schuette Case

Cross-posted from Justia's Verdict.

When the Supreme Court in Schuette v. Coalition to Defend Affirmative Action upheld the Michigan state constitutional ban on race-based affirmative action (known as Proposal 2) a few weeks ago by a 6-2 vote, the overall message that emerged from the decision seemed sensible enough: While the federal Constitution permits states, under certain circumstances, to make limited use of race in allocating government benefits, nothing in the Constitution requires states to do so, and a decision by the people of a state to prohibit all race-based affirmative action preferences is permissible.

The Seattle Line of Cases on Which the Challengers to Proposal 2 Relied, Unsuccessfully

The problem with this straightforward message is that an earlier line of Supreme Court cases, running from the late 1960s until the early 1980s, held that while race-conscious programs may not be required, neither can they be terminated in certain problematic ways. The key decision in this line of authority is the intuitively attractive yet controversial and somewhat confounding 1982 ruling in Washington v. Seattle School District No. 1. In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used race-based pupil reassignment and busing to eliminate one-race schools. The Seattle program prompted the people of Washington to enact Initiative 350, a statewide measure that barred local school districts throughout Washington from reassigning or busing for the purpose of racial integration, but continued to permit local districts to reassign or bus for all other educationally valid reasons.

By a 5-4 vote, the Court struck down the plebiscite. The Court declined to rest its holding on a finding of invidious racist intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because the measure singled out racial busing-a program of particular importance to racial minorities-and moved this issue from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court said, denied such minorities the equal protection right to "full participation in the political life of the community."

In the Seattle line of cases, the Supreme Court laid out a two-pronged test: First, a challenger must show that the law in question is "racial" or "race-based" in "character," in that it singles out for special treatment issues that are particularly associated with minority interests. Second, the challenger must show that the law imposes an unfair political process burden with regard to these "minority issues" by entrenching their unfavorable resolution. (Mere repeal by the very body that had adopted a policy benefitting minorities would not be problematic.)

The challengers to Proposal 2 in Michigan relied directly on this reasoning. First, they argued, Proposal 2 was racial in character in that it dealt specially with an issue-race-based affirmative action-that is of distinctive interest and benefit to racial minorities. Second, Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government-the state constitution-where minorities are less likely to succeed than they are at lower levels, such as local government or university administration. The argument was that although Michigan may be free to repeal affirmative action programs, it cannot repeal such programs at a level higher than the one at which they were initially adopted, just as the State of Washington could not repeal racial busing at the statewide level, rather than the local level.

How the Justices Dealt With Seattle

In turning away this challenge, Justices Scalia and Thomas acknowledged that the Seattle case controlled, but concluded that it should be overruled. Justices Ginsburg and Sotomayor (who dissented in the Court's outcome) likewise thought Seattle governed, but they would preserve and apply Seattle, and would have struck down Proposal 2. (Justice Breyer distinguished Seattle on rather technical grounds, and Justice Kagan did not participate.)

In an important opinion that many view as the pivotal one in the case, Justice Kennedy, joined by two other Justices, concluded that the Seattle case may have been correctly decided, but that it did not govern the Proposal 2 matter. According to Justice Kennedy, Initiative 350 in Seattle was bad because it prevented the Seattle School District from dealing with a racial segregation problem to which the government itself had contributed. As Justice Kennedy put the point: "The Seattle Court, accepting the validity of the school board's busing remedy as a predicate to its analysis of the constitutional question, found that the State's disapproval of the [local] school board's busing remedy was an aggravation of the very racial injury in which the State itself was complicit."

Justice Kennedy disavowed any broader reading of the Seattle ruling, and in particular declined to accept the two-part analytic framework that the Court purported to apply in that case. As Justice Kennedy wrote:

The Seattle Court . . . establish[ed] a new and far-reaching rationale. Seattle stated that where a government policy "inures primarily to the benefit of the minority" and "minorities . . . consider" the policy to be "'in their interest,'" then any state action that "place[s] effective decisionmaking authority over" that policy "at a different level of government" must be reviewed under strict scrutiny. In essence, according to the broad reading of Seattle, any state action with a "racial focus" that makes it "more difficult for certain racial minorities than for other groups" to "achieve legislation that is in their interest" is subject to strict scrutiny. . . . And that reading must be rejected.

As Justice Scalia pointedly observed, Justice Kennedy's recharacterization of Seattle has serious problems:

[Justice Kennedy's opinion] reinterprets [Seattle] beyond recognition. . . . As for Seattle, what was really going on, according to [Justice Kennedy], was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. . . . [T]his describes what our opinion in Seattle might have been, but assuredly not what it was. The opinion assumes throughout that Seattle's schools suffered at most from de facto segregation, . . . that is, segregation not the "product . . . of state action but of private choices," having no "constitutional implications."

(As an aside, I find it somewhat ironic that Justice Scalia criticizes Justice Kennedy's manipulation of precedent here. Although I agree with him that Justice Kennedy does not adequately engage, but rather hollows out, Seattle, the writing that Justice Kennedy's opinion reminds me of most is Justice Scalia's own opinion in Employment Division of Oregon v. Smith, the 1990 religious freedom case in which Justice Scalia guts but does not forthrightly overrule old free exercise cases.)

The Post-Seattle Cases That Eclipsed Seattle's Essence

So if Justice Kennedy's (re)reading of Seattle is less than convincing, is there a way to justify his bottom line? For me, the best defense of the outcome in Schuette comes not from creative interpretations of Seattle, but from judicial and societal developments that have emerged after Seattle was decided. As Professor Evan Caminker and I have suggested in academic writings, the argument (whether one finds it convincing or not) would be that elimination of affirmative action programs today does not as clearly disadvantage racial minorities as did the Seattle initiative. Modern affirmative action programs are double-edged-Proposal 2 backers would argue-because such programs inflict stigmatic harm on minorities and impose tangible disadvantages on certain minority groups, even as the programs attempt to confer tangible benefits on some minority groups. This argument challenges, as overly simplistic, the notion that the programs terminated by the Proposal 2 "inure[ ] primarily to the benefit of the minority."

This argument would build on more recent Supreme Court cases that assuredly support such an ambivalent characterization of affirmative action programs. Over the past two-plus decades, City of Richmond v. J.A. Croson Co. and its progeny have justified strict scrutiny for purportedly "benign" race-conscious programs in part through renewed emphasis on certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others). According to the Court, such programs threaten to, among other things, embrace and "foster harmful and divisive stereotypes," which might "balkanize us into competing racial factions."

And this is precisely the basis on which Justice Kennedy declines to apply the Seattle framework. He reminds:

In cautioning against "impermissible racial stereotypes," this Court has rejected the assumption that "members of the same racial group-regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls." . . . It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control. . . .

Let me be clear: the suggestion that contemporary affirmative action programs do not primarily benefit racial minorities cannot easily be squared with the holding of Seattle (which is why I think Justice Scalia was correct that either Seattle or Proposal 2 had to be rejected). Initiative 350 eradicated voluntary racial busing-a race-conscious affirmative action program that, in its day, was extremely controversial, as both the majority and dissent in the Seattle case recognized. Racial busing imposed both practical and emotional costs on African American schoolchildren, and it generated interracial divisiveness and even hostility. So modern affirmative action is not easily distinguished from the programs involved in Seattle.

But, again, Seattle's judicial attitude in this respect has been eclipsed by more recent cases expressing much more skepticism about race-based affirmative action. The Seattle analysis may simply not survive the more recent cases, and if this is true the Court should have said Seattle is no longer good law, rather than manipulate the 1982 ruling in inventive but unpersuasive ways.

An Unlikely Contributor to Seattle's Demise: Grutter v. Bollinger

No one should be surprised that cases from the last 25 years like Croson (along with Adarand Constructors v. Pena, Parents Involved in Community Schools v. Seattle School District No. 1, among others)-all of which have made it considerably harder for states to engage in affirmative action-are in considerable tension with, and have effectively undermined, Seattle. What is surprising is that the single biggest judicial victory for affirmative action-the 2003 Grutter v. Bollinger case in which a 5-4 Court upheld the University of Michigan Law School's race-based affirmative action program-also might have (unwittingly) undermined Seattle. Indeed, Seattle's demise may have been baked into the very cake of Grutter's analysis.

To see this, we need shift focus from the alleged costs of affirmative action to its benefits. Justice O'Connor's reasoning upholding the Michigan Law School's affirmative action policy in Grutter-and the larger diversity justification trend of which Grutter is an example-emphasizes the advantages affirmative action creates for non-minorities, and in so doing erodes the idea that affirmative action is especially beneficial for underrepresented groups. As a pair of law professors observed years before Grutter, diversity is an appealing justification that may "enable an educational affirmative action program to pass constitutional muster because democratic and dialogic educational benefits accrue to all students" (emphasis added). And hear the words of Justice O'Connor in Grutter, defending the Michigan Law School plan without regard to whether it helps minorities in particular:

The[] benefits [of diversity] are 'important and laudable, because 'classroom discussion is livelier, more spirited, and simply more enlightening and interesting' when the students have 'the greatest possible variety of backgrounds.' . . . The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. . . . In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." . . . These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. . . . What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security." . . . [And] [i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.

It is perfectly understandable that a "win-win" rationale for race-based affirmative action (that emphasizes how such programs benefit everyone) would be attractive, in both legislative and judicial arenas. But if affirmative action is styled in these terms only, then the Court could naturally think that the intended beneficiaries of affirmative action-the entire polity-should be empowered to decide whether they think the benefits outweigh the costs. Proposal 2 and measures like it are no longer as easily viewed as majorities cutting off programs that help minorities, since the elimination of affirmative action (on this view) hurts majorities as well.

Lest I be misunderstood, I should be clear that I do embrace the diversity rationale. But I wish it hadn't come about as a substitute for-as opposed to a supplement to-a remedial rationale that highlights the distinctive importance of access for certain minority racial groups. In the Croson ruling from a quarter century ago (involving a preference awarded to minority contractors in Richmond), the Court sent the message that the goal of remedying past discrimination was not one on which government should be able to act easily without detailed findings as to exactly what discrimination occurred, when, and by whom. No one denied that there had been overwhelming, pervasive, and persistent societal discrimination against African Americans in Richmond for generations. Yet the main opinion in Croson said, in dismissing the relevance of this history: "It is sheer speculation how many minority firms there would be [today] absent past societal discrimination." This is true, but to deny government officials the ability to redress past discrimination altogether, simply because the enormity of that task creates uncertainty about whether any proposed remedy is perfectly calibrated to the wrong, creates a perverse situation. The greater the past injustices, the more powerless the government is today to deal with their effects, which are undeniably real and lingering, but inevitably somewhat fuzzy in their particulars.

It is for this reason that the goal of remedying past discrimination has largely been abandoned as a legal justification for affirmative action programs, at least in the higher education setting, the area where debate remains most lively. Instead, diversity of the student body as a pedagogical asset is (understandably) the primary interest that universities assert (as they did in Grutter) to defend race-based programs. Again, I do not disagree with the idea that diversity can be a compelling interest. But I do think that most defenders of affirmative action, were they completely honest, would say that the remedial justification, especially in the case of African Americans, is the most natural, obvious, and compelling reason to maintain race-based programs. And this instinct explains why defenders of affirmative action generally believe that such programs are distinctively helpful to minorities, the very premise of the Seattle ruling that Justice Kennedy thinks cannot be acknowledged by government.

May 1, 2014

UC Davis law students seek to right historic wrong with posthumous California Bar admission of Chinese lawyer

More than a century after a New York lawyer was denied the opportunity to practice law in California because of state laws that barred Chinese immigrants from most careers and opportunities, UC Davis law students are seeking his posthumous admission to the California State Bar.

The students in the UC Davis School of Law Asian Pacific American Law Students Association (APALSA) are asking the State Bar of California, and eventually the California Supreme Court, to admit Hong Yen Chang, who was denied a license to practice law in California in 1890.

Chang attended Yale as part of the Chinese Educational Mission, a pioneering program initiated by the Chinese government. He then left the United States and later returned on his own to study law. He earned a degree from Columbia Law School in 1886 and sat for the New York bar exam by special act of the legislature. When he was admitted to the New York state bar, The New York Times reported that Chang was the first Chinese immigrant admitted to any bar in the United States. In 1890, he came to California with the intention of serving San Francisco's Chinese community as an attorney.

At that time, the federal Chinese Exclusion Act banned Chinese immigrants from naturalizing as citizens, and a California law prohibited noncitizens from practicing law in the state. Taken together, these laws made it impossible for people of Chinese descent to earn law licenses in the state. Chang petitioned the California Supreme Court, but was denied admission.

He went on to a distinguished career in banking and diplomacy, but his story was not forgotten. Now, the students are seeking a symbolic victory on behalf of Chang and others who suffered as a result of laws that discriminated against the Chinese.

"Admitting Mr. Chang would be a powerful symbol of our state's repudiation of laws that singled out Chinese immigrants for discrimination," said Gabriel "Jack" Chin, a professor at UC Davis School of Law and APALSA's faculty adviser on the project. "At the time Chang was excluded from the practice of law in California, discrimination against Chinese persons was widespread. Congress prohibited all Chinese immigration. Even the California Constitution dedicated an entire article to restricting the rights of Chinese residents."

The UC Davis School of Law California Supreme Court Clinic is representing APALSA in the case. It has formally requested the State Bar to support the project and will file a petition with the California Supreme Court seeking Chang's admission. The clinic, the first and only law school clinic of its kind, represents parties and amici in a wide range of both civil and criminal matters pending before the California Supreme Court.

Other states have posthumously admitted applicants who were excluded from their respective bars based on similar discriminatory laws. In 2001, the Washington Supreme Court admitted Takuji Yamashita, a Japanese immigrant who had been refused admission to the profession in 1902. And in 2010, the Pennsylvania Supreme Court posthumously admitted George B. Vashon, an African American who had been denied admission in 1847 because of race.  

Chang's descendants remain in the San Francisco Bay Area, including grandniece Rachelle Chong, the first Asian American to serve as a commissioner of the Federal Communications Commission and of the California Public Utilities Commission. "In my generation, our family is extremely fortunate to have three lawyers admitted to the California State Bar: my cousins Suzanne Ah Tye, Kirk Ah Tye, and myself," said Chong. "It would be fitting and right to have my granduncle's exclusion reversed by the California Supreme Court to ensure that justice, albeit late, is done. Our family is honored that the UC Davis APALSA students have taken up the issue of righting a terrible wrong."

"From its inception more than 40 years ago, UC Davis School of Law has been dedicated to the ideals of social justice and equality espoused by Dr. Martin Luther King Jr., for whom our law school building is named," said Dean Kevin R. Johnson. "This effort by our students and faculty to admit Hong Yen Chang to the California State Bar stands strongly within that tradition and is deserving of support."

For more information on the effort to gain bar admission for Hong Yen Chang, contact Professor Gabriel "Jack" Chin.

April 25, 2014

Book Review in the Journal Philosophy and Society

The Journal Philosophy and Society recently published a review of my book, "Opening the Floodgates: Why America Needs to Rethink its Borders and Immigration Laws," by Professor J. Angelo Corlett of San Diego State University's Department of Philosophy.

The review begins: "Kevin R. Johnson argues for an open borders immigration policy for the United States. (Johnson 2007a) Instead of assuming the ineligibility of immigrants for admission to the U.S., Johnson's proposal presumes their eligibility, only denying entrance to those who are dangerous due to threatening behavior or easily transmitted diseases. (Johnson 2007a: 37) As he notes, there is some concern over what kind of impact a pro-posal like his would make, for instance, whether open borders would result in a mass migration to the U.S.. (Johnson 2007a: 28, 210) Johnson states that even though there is a lack of empirical evidence providing support for what might occur under these circumstances, at the very least the new system 'would be more orderly, humane, and fair than the current one.' (Johnson 2007a: 28)"

You can read the full review here.