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September 25, 2014

Yet Another (Judicial) Incursion Into A State’s Decisions About How to Structure Direct Democracy: The Ninth Circuit’s Ruling in Chula Vista Citizens for Jobs and Fair Competition v. Norris

Cross-posted from Justia's Verdict.

The past year or so has been a rough period for people who support the design of the direct democracy process in California. Last summer, as I explained at the time, the U.S. Supreme Court wrote its Hollingsworth v. Perry ruling (involving Proposition 8, a California initiative banning same-sex marriage) using overly broad reasoning that makes it hard, if not impossible, for official proponents of an initiative to ever defend the measure in federal court when elected representatives decline to defend.

More recently, the California legislature, Governor and state judiciary have themselves all taken actions that violate the state's direct democracy scheme. The legislature passed, and the Governor earlier this month signed, a repeal of parts of an initiative concerning immigration policy, despite the fact that initiatives are not supposed to be subject to ordinary legislative amendment or repeal. To be sure, the initiative at issue in this instance-Proposition 187-deserved to be repealed (insofar as it was a misguided measure from the start). But, as I argued in an earlier column, the legislature and Governor lacked power to repeal it, and yet they did so anyway, without any convincing legal basis.

As for the California judiciary, last month the California Supreme Court, for reasons that I am not fully persuaded by, blocked (at least temporarily) voters from being able to weigh in on Proposition 49, a measure that would have solicited voter views on the desirability of amending the U.S. Constitution to undo the highly publicized Citizens United ruling concerning campaign finance.

In the space below, I describe yet another blow to the California statutes and constitutional provisions that set up the Golden State's direct democracy system. This time, the injury was inflicted by the U.S. Court of Appeals for the Ninth Circuit; in June, in Chula Vista Citizens for Jobs and Fair Competition v. Norris, that court invalidated state statutory provisions that require the identities of the official proponents of an initiative be disclosed to would-be signatories of the initiative petition (whose signatures are needed to qualify the measure for the ballot) at the time that signatures are sought.

In striking down the so-called petition-proponent disclosure requirement, the three-judge Ninth Circuit panel found that requiring disclosure amounted to a direct regulation of the content of political speech, and impermissibly burdened, in violation of the First Amendment, the free speech choices of initiative proponents to engage in political expression anonymously. The State of California has requested the Ninth Circuit to rehear the case en banc, but unless something changes, the provisions in California law containing the petition-proponent disclosure requirement are unenforceable.

The Straightforward Case for the Permissibility of Disclosure Requirements

On the face of things, it is hard to understand why California cannot require disclosure of the identity of initiative proponents at the time signatures are sought. After all, the identity of proponents could be very relevant, non-misleading information that many would-be signatories might want to have in deciding whether a measure should be placed on the ballot. And, of course, California need not have an initiative at all; the greater power not to have initiative signature gatherers altogether would seem to subsume the lesser power of allowing them but regulating their activities. Of course, if state law required signature gatherers to disclose certain information in such a way as to create a partisan skew, or to disclose information that was false or misleading, or if the failure to comply with disclosure requirements subjected initiative proponents or signature gatherers to punishment, the First Amendment might very well be violated. But in the case of California's law, the petition-proponent disclosure requirement is not viewpoint based or skewed, and the only consequence of noncompliance with the requirement seems to be that the signatures do not count towards the requisite number needed to place a measure on the ballot; there doesn't seem to be a suggestion that the signature gatherers or initiative proponents would be punished in any other way for their failure to disclose.

Why, then, were these provisions struck down? The fault really lies not mainly with the Ninth Circuit, but rather with the U.S. Supreme Court, which in a few cases has mistakenly said that regulating signature gathering is regulating "petitioning," an activity singled out for protection by the First Amendment, rather than regulating access to the official election ballot, which is subject to much less judicial skepticism. Because of this category recognition mistake-the Supreme Court effectively has, as Justice Scalia put it in the context of a different case, been "faked out" by a label-the Court has subjected signature-gathering rules to "exacting" scrutiny under the First Amendment, rather than a much more generous "reasonableness" standard that normally applies to a state's decisions about how to regulate access to the official ballot. Because of these Supreme Court decisions (described in more depth in the following paragraphs), the three-judge panel really had little recourse but to apply rigorous scrutiny to the state laws. And under that searching review, the disclosure requirements did not survive.

The Misguided Supreme Court Rulings that Constrained the Ninth Circuit

One of the wrongheaded Supreme Court decisions that put the Ninth Circuit in something of a bind here is Buckley v. American Constitutional Law Foundation (ACLF), a 1999 ruling addressing a challenge to Colorado's initiative procedures. Colorado law provided that when a certain number of voters sign up in support of a given state initiative, the measure is placed on the statewide ballot. In ACLF, the Court reviewed and invalidated three particular Colorado regulations governing this process. First, Colorado required that each signature gatherer wear a badge bearing her name and indicating whether or not she was paid to collect the signatures. Second, each gatherer had to be a registered Colorado voter. Third, initiative backers had to disclose monthly exactly how much each gatherer was getting paid.

The Supreme Court struck down all of these state law requirements as violating the right to "petition" government protected by the First and Fourteenth Amendments, presumably because initiative provisions often use the term "petition" in describing the beginning of the initiative process. The Court held that circulating an "initiative petition" is akin to distributing a handbill, and that Colorado's identity badge requirement was thus squarely foreclosed by a 1995 ruling in which the Court struck down an Ohio law banning the anonymous distribution of campaign handbills. Colorado's other rules met a similar fate; the Court found that requiring signature gatherers to be registered voters impermissibly limited the number of voices in the debate, and the Court held that the financial disclosure requirements impermissibly forced paid gatherers and their backers to surrender the anonymity enjoyed by their volunteer counterparts.'

In reaching these rulings, the Justices relied on Meyer v. Grant, another troubling case (from 1988) in which the Court invalidated another Colorado initiative provision which attempted to prohibit the payment of money to initiative signature gatherers altogether. As in ACLF, the Court in Meyer characterized the question as "involv[ing] a limitation on political expression subject to exacting scrutiny." From there, the Court quickly concluded that "[t]he refusal to permit appellees to pay petition circulators restricts political expression . . . [and that] [t]he First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.''

The Court's reasoning in these cases would be plausible if plaintiffs were in fact "petitioning" within the meaning of the First Amendment. But that label is inapt. The Colorado initiative process (like California's) is not about "petitioning the Government for a redress of grievances." It is about circumventing government by engaging in lawmaking itself. Thus, state law did not regulate "petitions" or "speech" at all. Instead, it merely provided that unless signatures were collected in a certain way, they would not count for purposes of qualifying an initiative for the statewide ballot.

In effect, citizens retained the right to collect signatures and present them to the government as a demonstration of the signers' views essentially as a handbill. None of the challenged provisions of Colorado (or California) law said otherwise. This right, however, does not include the right to have signatures count for purposes of triggering an election, when the signatures do not comply with the ballot access rules a state has put in place. No court would deny that I have the right to voice my preference for Jennifer Granholm for President, but I do not have a right to have my vote for Granholm count when that vote is made six months before the presidential election and for a person ineligible to hold the office because she is not a natural-born citizen. Indeed, the Supreme Court has repeatedly made clear that content neutral, reasonable ballot access requirements designed to limit the number of candidates or the number or issues placed on a ballot are not subject to strict judicial scrutiny.

If the Court in ACLF (and Meyer) had seen the Colorado laws for what they were (ballot access rules) and not for what they were not (impediments to pure speech) then the Court likely would have come out the other way. It would have evaluated Colorado law, not with reference to the First Amendment's protection of core political speech, but with reference to the Tenth Amendment's protections, buttressed by those provided in the so-called Guarantee Clause, of the core right of the people of each state to structure their lawmaking processes as they desire, so long as they do not discriminate on the basis of viewpoint, race, or some other illicit criterion.

The best outcome of the Chula Vista case from the Ninth Circuit would be for the Supreme Court to grant review (assuming that certiorari is, as it should be, sought) and to cut back or overrule altogether the erroneous decisions and reasoning of Meyer and ACLF. That is the only way to avoid future injuries to state direct democracy systems by lower courts.

September 17, 2014

Happy Birthday to our Flexible, Popular Constitution

Cross-posted from ACSblog.

Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths.  There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches,  excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race.  The examples go on and on.

In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.

Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that.  Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.

For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).

Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by "we the people of the United States" for "ourselves and our posterity." The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to "free white persons"). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers' posterity trod the earth. 

Somehow, though, the Constitution remains popular. Although almost nothing in the Constitution has been expressly repealed, with the exception of Prohibition, exclusionary provisions are reimagined as inclusive, or imagined away. The implications of later Amendments and even court decisions flow backwards in time to change the meaning of words, or eliminate them entirely.  

The point is not about how courts should interpret the Constitution, but that as the composition of the People have changed, so too has their conception of the Constitution and what it means.  In practice, among Americans, the meaning of the document itself changes and grows to accommodate changes in life and politics.  Jefferson famously proposed that "Every constitution . . . , and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right."  Jefferson might be correct, and yet the People seem to be creating and recreating the new Constitution they want using the words in the one that is already there.

August 29, 2014

Top Tips for Authors on Law Review Submissions from UC Davis Law Review Editor-in-Chief

Congratulations to UC Davis Law Review Editor-in-Chief Amar Naik '15 for being cited on the Scholastica Blog.

In an entry titled, "Home Run Law Review Submissions: Tips for Authors," Naik offers excellent advice to legal scholars submitting their work to leading journals.


"For Amar Naik of UC Davis, the early swing packs the hardest hit. 'If you apply too late in the game you might miss out on some of the top journals,' he said. Naik added that authors should refine their manuscripts as much as possible. 'There are some situations where you can’t, because the research season is pretty short for professors and they have other obligations,' he said."

"A common concern along with submission timing is whether authors should tailor the length of their articles to meet journal needs, with moves towards shorter submissions in recent years. Naik said he thinks authors shouldn’t worry about article length when writing submissions. 'The best articles that we see are the ones that have a detailed and rigorous discussion of a topic,' he said. 'If we think an article is well thought out and researched we’re going to consider it, even if it might be shorter or longer than a traditional article.'"

To read the full article, visit the Scholastica Blog.


August 29, 2014

Legal Scholarship Network: Legal Studies Research Paper Series, Vol. 16, No. 4

The law faculty at UC Davis publish truly unique scholarship that advances the profession. Here are some of the latest papers, which can be read by clicking through the links to the Social Science Research Network: Legal Scholarship Network.

"The Emergence of New Corporate Social Responsibility Regimes in China and India" 
UC Davis Business Law Journal, Vol. 14, p. 175 (2014)
UC Davis Legal Studies Research Paper No. 386

AFRA AFSHARIPOUR, University of California, Davis - School of Law
SHRUTI RANA, University of Maryland Francis King Carey School of Law, University of California, Berkeley - School of Law

In an era of financial crises, widening income disparities, and environmental and other calamities linked to corporations, calls for greater corporate social responsibility ("CSR") are increasing rapidly around the world. Though CSR efforts have generally been viewed as voluntary actions undertaken by corporations, a new CSR model is emerging in China and India. In a marked departure from CSR as it is known in the United States and as it has been developing through global norms, China and India are moving towards mandatory, not voluntary, CSR regimes. They are doing so not only in a time of great global economic change, but at a time when both countries are themselves undergoing massive economic and social changes as they re-orient towards more market-based economies and seek to enter the ranks of global economic superpowers.

This Article conducts a comparative analysis of the emerging CSR regimes in China and India and highlights key characteristics of these developing frameworks. This Article begins an inquiry into some of the most significant implications of the CSR regimes now unfolding in China and India, and their potential for effecting legal and societal change. It also raises questions about why China and India are moving towards mandatory CSR when other key global players are taking a largely voluntary approach. Finally, this Article seeks to add to global debates over corporate governance models by enhancing understanding of the corporate governance developments and innovations now arising in China and India.

"Realigning Parties" 
Utah Law Review, Vol. 2014, No. 1, 2014
UC Davis Legal Studies Research Paper No. 289

DEBRA LYN BASSETT, Southwestern Law School
REX PERSCHBACHER, University of California, Davis - School of Law

The doctrine of realignment -- which permits a federal court to change a party's litigating position from plaintiff to defendant or vice versa -- has been virtually ignored in federal procedure scholarship. This stark neglect is genuinely astonishing because the federal circuit courts are split as to the appropriate standard. The source of the standard -- and the circuit courts' confusion -- is a 1941 U.S. Supreme Court decision, City of Indianapolis v. Chase National Bank. In that decision, rather than focusing on realignment's purpose, the Supreme Court focused unduly on the specific context in which the realignment issue arose. The result was a muddled articulation of the appropriate standard.

Realignment's purpose lies in assuring the necessary adversarial context mandated by Article III's references to "cases" and "controversies" -- but City of Indianapolis makes no mention of the case-or-controversy requirement in either the majority or dissenting opinions. Instead, the Court erroneously and confusingly defined its analysis within the specific diversity-jurisdiction context in which the realignment issue arose. This analytical error resulted in a perplexing and misguided standard and contributed to the common misperception that the doctrine of realignment is only applicable to diversity cases.

Had the City of Indianapolis Court properly analyzed the realignment doctrine according to its purpose, its analysis would have mirrored that in declaratory judgment cases. An identical concern underlies both the doctrine of realignment and declaratory judgment actions -- i.e., ensuring the existence of a case or controversy -- and therefore the same standard should apply in the realignment context: whether there is a substantial controversy between parties having adverse legal interests.

"Free Speech in Unfree Countries" 
UC Davis Legal Studies Research Paper No. 393

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law

In the United States, First Amendment protections for free speech are deeply associated with democracy. The dominant view in the Supreme Court and among commentators is that the primary (albeit not necessarily the only) reason we protect free speech is because of its essential role in advancing democratic self-governance. What are the implications of the democratic self-governance theory for free-speech protections outside the United States, in particular in nondemocratic countries? If we assume that the role of free speech is to advance democratic politics, then presumably non-democratic countries would have no reason to protect or tolerate speech. After all, if one rejects western-style liberal democracy, presumably one also rejects the subsidiary rules that undergird that system of government. The truth, however, is more complex. First of all, the vast majority of constitutions in the world grant at least some level of written protection for free speech, even though many of these constitutions are in countries which do not even purport to be free, multiparty democracies. Of course, many of these constitutional protections are shams; but it is simply not the case that no autocratic regimes permit free speech. The purpose of this paper is to explore how and why that might be so, and to consider whether the answers to these questions might have implications for domestic law.

I begin by surveying the scope of global protections for free speech in written constitutions, and then examining in some detail three case studies of autocratic countries which have provided a degree of room for free speech: modern Communist China, the Soviet Union during the Glasnost era under Mikhail Gorbachev, and modern Qatar. In each case, I demonstrate that the regime provides meaningful protections for free speech, albeit with clear limits. I also argue that in each of these cases, the leadership has absolutely no interest in advancing democracy or surrendering their monopoly on power. Yet even without democracy, they perceive that permitting some degree of free speech advances their interests and the interests of their citizens and nations.

Based on my case studies, I identify three distinct reasons why autocratic leaders might have an interest in permitting some freedom of speech by citizens. The first, and most significant, is internal control. In any large, bureaucratic system, central leadership often faces great difficulty in getting local officials to advance central policies and follow central leadership. Citizens can play an important role in identifying, and publicizing, corruption and lawlessness, as well as violations of central policy, at the local level. Second, free speech can act as a safety valve. Permitting some degree of free speech can, therefore, alleviate pressures for political change. Third, free speech as a form of citizen participation in government can lend legitimacy to a government, even without the legitimacy conferred by popular consent through elections. I also explore the countervailing factors - notably the desire for rulers to maintain their power - which result in clear limits on what sorts of speech will be tolerated in autocracies.

I close by considering whether these alternative justifications for protecting free speech have any implications for speech within the United States. I argue they do, for this reason: even though our system of government is at its base democratic, actual citizen interactions with the government often are not experienced this way. This means that in addition to protecting democratic government, free speech also plays some of the same roles in the U.S. as in autocracies: permitting oversight over the bureaucracy, providing a safety valve, and granting legitimacy to high officials. I close by considering some doctrinal implications of this insight.

"In Partial Defense of Probate: Evidence from Alameda County, California" 
Georgetown Law Journal, February 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 390

DAVID HORTON, University of California, Davis - School of Law

For five decades, probate - the court-supervised administration of decedents' estates - has been condemned as unnecessary, slow, expensive, and intrusive. This backlash has transformed succession in the U.S., as probate avoidance has become a booming industry and contract-like devices such as life insurance, transfer-on-death accounts, and revocable trusts have become the primary engines of intergenerational wealth transmission. Despite this hunger to privatize the inheritance process, we know very little about what happens in contemporary probate court. This Article improves our understanding of this issue by surveying every estate administration stemming from individuals who died in Alameda County, California in 2007. This original dataset of 668 cases challenges some of the most entrenched beliefs about probate. For one, although succession is widely seen as a tranquil process in which beneficiaries settle disputes amicably and pay a decedent's debts voluntarily, both litigation and creditor's claims are common. In addition, attorneys' and personal representatives' fees are far lower than assumed. The Article then uses these insights to critique the demand for probate avoidance, to contend that probate's cautious approach to creditors should also govern non-probate transfers, and to suggest reforms to the probate process.

"Should the Mortgage Follow the Note?" 
Ohio State Law Journal, Vol. 75, No. 1, 2014
UC Davis Legal Studies Research Paper No. 392

JOHN P. HUNT, University of California, Davis - School of Law

The law of mortgage assignment has taken center stage amidst foreclosure crisis, robosigning scandal, and controversy over the Mortgage Electronic Registration System. Yet a concept crucially important to mortgage assignment law, the idea that "the mortgage follows the note," apparently has never been subjected to a critical analysis in a law review.

This Article makes two claims about that proposition, one positive and one normative. The positive claim is that it has been much less clear than typically assumed that the mortgage follows the note, in the sense that note transfer formalities trump mortgage transfer formalities. "The mortgage follows the note" is often described as a well-established principle of law, when in fact considerable doubt has attended the proposition at least since the middle of the last century.

The normative claim is that it is not clear that the mortgage should follow the note. The Article draws on the theoretical literature of filing and recording to show that there is a case that mortgage assignments should be subject to a filing rule and that "the mortgage follows the note," to the extent it implies that transferee interests should be protected without filing, should be abandoned.

Whether mortgage recording should in fact be abandoned in favor of the principle "the mortgage follows the note" turns on the resolution of a number of empirical questions. This Article identifies key empirical questions that emerge from its application of principles from the theoretical literature on filing and recording to the specific case of mortgages.

"Distinguishing Lay from Expert Opinion: The Need to Focus on the Epistemological Differences between the Reasoning Processes Used by Lay and Expert Witnesses" 
Southern Methodist University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 385

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law

Justice Holmes once remarked that the law is constantly drawing lines. That remark certainly holds true in Evidence law. On a daily basis trial judges must distinguish between character and noncharacter uses of evidence and differentiate hearsay from nonhearsay theories of logical relevance. The topic of the enclosed article is another evidentiary distinction: that between lay opinions and expert opinions.

That distinction has assumed tremendous importance since 1993. In that year, Federal Rule of Civil Procedure 26 was amended to prescribe mandatory pre-discovery disclosures. One of the most important parts of that scheme is a mandate that the proponent of a testifying expert provide the opposition with a detailed report previewing the expert's opinion. Federal Rule of Criminal Procedure 16 imposes a similar requirement for an expert report. However, there is no requirement under either rule for such a report when the opinion is lay in nature. In the same year, the Supreme Court handed down its celebrated decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert announced a new empirical validation test for the admissibility of scientific testimony. In 1999 in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Court expanded Daubert and held that the proponent of any type of expert testimony must establish objective indicia of the reliability of the testimony. Like the Civil Rule 26 and Criminal Rule 16 amendments, Daubert and Kumho are inapplicable to lay opinion testimony.

These two 1993 developments have created a strong incentive for litigants to characterize their witnesses' opinions as lay rather than expert. If the judge accepts that characterization, there is no need for the litigant to file a Rule 26 report or lay a Daubert foundation. Unfortunately, as Part I of the enclosed article points out, the courts are experiencing difficulty drawing the line between lay and expert opinions. Part I considers several possible bases for distinguishing the two types of opinions that have been proposed in the past. Part I demonstrates that each of those potential bases is unsatisfactory.

Part II argues that in order to properly differentiate between the two types of opinions, the court should focus on the underlying reasoning processes. The essential insight is that in both cases, the witness makes a comparative judgment, comparing a generalization to the case-specific fact or facts being evaluated. However, there are fundamental differences between the reasoning processes employed by lay and expert witnesses. In the case of lay opinions, the witness: derives his or her generalization primarily from personal experience; and must rely on firsthand knowledge to acquire his or her information about the case-specific fact or facts. In sharp contrast, in the case of expert opinions, the witness: may draw on hearsay sources such as lectures and professional literature to derive his or her generalization; and under Federal Rule of Evidence 703, may rely on hypothetical questions and secondhand reports as well as personal knowledge as methods of obtaining information about the case-specific fact or facts.

Part III of the article explains how the courts may use the insights discussed in Part II to both differentiate between the two types of opinion and determine the admissibility of such opinions. To illustrate the utility of this approach, Part III discusses one of the modern battlegrounds, that is, police officers' testimony about alleged code words used by drug traffickers. In many cases, prosecutors have argued that the testimony is mere lay opinion testimony, eliminating the need for either a pretrial expert report or a Daubert foundation at trial. Although the courts have struggled to draw the line in these cases, Part III demonstrates that the courts can draw the line with confidence by employing the analysis proposed in Part II.

"Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism" 
Oklahoma Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 388

KEVIN R. JOHNSON, University of California, Davis - School of Law

With appropriate caution necessitated by the lessons of recent history, this Article posits that the Supreme Court's contemporary immigration decisions suggest that the plenary power doctrine, the foundation of immigration exceptionalism, is again headed toward its ultimate demise. To test that thesis, this Article carefully scrutinizes the Supreme Court's immigration decisions, as well as some other actions, such as certiorari denials in significant immigration cases, from 2009 to the present. This period coincides with the first five years of the Obama presidency, which has been a time during which the Executive Branch has seldomly relied on the plenary power doctrine in arguments to the Court.

The review of Supreme Court decisions reveals that, even though the Court now reviews considerably fewer cases than it once did, immigration matters regularly comprise a bread-and-butter part of its docket. Indeed the Court decided five immigration-related merits cases in one Term, an extraordinarily large number for a specialty substantive area of law. The fact that the Court frequently exercises its discretion to accept immigration cases for review suggests that the Justices - like the nation as a whole - consider immigration to be an important, at times contentious, national issue worthy of attention, raising many questions that go to the core of the modern administrative state. In light of the controversy surrounding some of the cases that have come before it, most notably the much-publicized constitutional challenge to Arizona's SB 1070 and state and local efforts to push the federal government to more vigorously enforce the U.S. immigration laws, the Court could hardly help but be aware of that plain and simple truth.

What is perhaps most noteworthy from the review of immigration decisions of the Supreme Court of the last five Terms is that a conservative Court characterized as ideologically driven by some observers consistently has not taken an extreme approach to immigration law and its enforcement. The Roberts Court's body of immigration decisions indeed is firmly and comfortably within the jurisprudential mainstream of its decisions in other areas of substantive law. The Court has applied ordinary, standard, and routine legal doctrines for the most part in ordinary, standard, and routine ways.

Analyzing the body of immigration decisions of the Supreme Court under the leadership of Chief Justice John Roberts in the 2009-13 Terms, this Article concludes that the Court in effect has to a large extent continued to bring U.S. immigration law into the legal mainstream. It has interpreted statutes to avoid constitutional questions and avoided invoking the plenary power doctrine to shield vulnerable statutes from judicial review. Although not yet eliminating the doctrine, the Court has slowly but surely moved away from anything that might reasonably be characterized as immigration exceptionalism. The undeniable trend in the Court's immigration jurisprudence is entirely consistent with its efforts over more than a decade to, whenever possible, interpret the immigration laws to avoid deciding serious constitutional questions, and find creative ways to ensure judicial review of removal orders in the face of stringent congressional restrictions that some might reasonably read as purporting to wholly eliminate judicial review.

In applying the U.S. immigration laws, both conservative and liberal Supreme Court Justices look first to the text of the Immigration and Nationality Act and spend considerable time debating the proper interpretation of the (often complex) statutory provision in question. In addition, the Justices occasionally differ about the application of conventional legal doctrines to immigration cases, but rarely debate whether generally applicable doctrines should apply to immigration cases.

"Law Stretched Thin: Access to Justice in Rural America" 
South Dakota Law Review, Vol. 59, 2014
UC Davis Legal Studies Research Paper No. 391

LISA R. PRUITT, University of California, Davis - School of Law
BRADLEY SHOWMAN, University of California, Davis - School of Law

About two percent of small law practices in the United States are in small towns and rural areas, a figure greatly disproportionate to the nearly twenty percent of the population living in those places. This mismatch leaves many rural legal needs unmet. In 2013, responding to the well-documented lawyer shortage in the upper Great Plains, South Dakota became the first state to offer subsidies to lawyers who practice in rural areas through a program called Project Rural Practice.

This article takes the opportunity invited by Project Rural Practice - and this symposium issue about it - to discuss a range of access to justice issues in rural places. Those providing rural legal services face challenges, of course, the most obvious being the struggle for economic viability, along with others generally associated with small firms and solo practice. Rural lawyers also face socio-spatial barriers to professional development and networking opportunities, and the lack of anonymity associated with rural places creates both ethical and economic conflicts of interest. Beyond the challenges facing rural lawyers, we recognize that individuals residing in rural America encounter obstacles to seeking legal services. These obstacles include affordability, confidentiality, and even inability to actually get to courthouses and other legal institutions and actors. Compounding matters, rural denizens are associated with an ethic of law avoidance. Persistently high poverty rates in rural America aggravate the challenge because poor people are less likely to have their legal needs met, wherever they live.

We situate our discussion of rural legal practice within the larger body of access to justice scholarship. While we recognize Project Rural Practice as a strong step in support of rural legal practice, and therefore in support of rural communities, we argue that it should be supplemented by programs aimed at helping those least likely to get the legal assistance they need, especially low-income and other vulnerable populations. We also advocate additional supports for lawyers willing to provide such assistance. Among other issues, we discuss the roles that paralegals, technology, and the broader social-service, non-profit community can play in responding to rural legal needs. We pay particular attention to pro bono publico in the rural context. Lastly, our article includes a modest comparative component, surveying available information about rural lawyering and access to justice in other nations, most notably Canada and Australia.

We conclude that achieving robust access to justice requires the attention and effort of an entire community. Enabling access to justice should include partnerships with a wide array of service providers who can meet non-legal needs while also helping those confronting problems to identify when legal assistance could be of use. Given the dearth of rural lawyers, the surfeit of urban lawyers, and the preference of many attorneys to deliver pro bono services away from their usual practice settings, we also see collaboration among lawyers across and along the rural-urban continuum as critical pieces of the rural access to justice puzzle. We believe not only that these myriad collaborations can help rural residents get the legal assistance they need to solve their most pressing problems, but that the collaborations also hold promise for ameliorating the structural deficits that afflict entire rural communities.

"State-Level Carbon Taxes and the Dormant Commerce Clause: Can Formulary Apportionment Save the World?" 
Chapman Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 387

DARIEN SHANSKE, University of California, Davis - School of Law

This short Article, a contribution to a symposium, outlines some possible design responses to the primary legal issue raised by the implementation of a state-level carbon tax. There are at least two reasons for states to consider a carbon tax. First, somewhat prosaically, the Environmental Protection Agency just released draft rules requiring states to reduce carbon emissions; these rules appear to permit states to achieve at least some of the required reduction through carbon taxes. Second, and more importantly, economists offer strong arguments for preferring carbon taxes as a method of greenhouse gas mitigation. Accordingly, even before the new EPA rules were proposed, a carbon tax was already being considered in some U.S. states, such as Oregon, and a carbon tax is in place in one Canadian province, British Columbia.

The primary legal issue with a state-level tax in the United States is the following: a carbon tax imposed in only one state will presumably make goods and services produced in that state more expensive. The direct response would be to impose a complementary carbon tax on imports. Yet it would appear that the dormant Commerce Clause, and particularly the Supreme Court's narrow interpretation of the complementary tax doctrine, bars the way to such border adjustments. This Article argues that appearances might be deceiving and that border adjustments might be possible. Alternatively, this Article argues that formulary apportionment could take the place of border adjustments.

August 29, 2014

Are “Advisory” Measures (Like Proposition 49) Permitted on the California Ballot?

Cross-posted from Justia's Verdict.

A few months ago, I wrote about an effort by the California legislature to undo an unwise (but duly enacted) voter initiative involving immigration policy. I argued that although removing the initiative's provisions from the books would certainly be a good thing, the legislature lacked the power to effect repeal on its own; respect for the initiative process requires that the people themselves formally weigh in on any proposed repeal. In the space below, I discuss another effort, albeit this time via the judiciary rather than the legislature, to prevent the people from formally weighing in on another hot-button issue: campaign finance reform.

Background and Content of SB 1272 (Which Attempted to Place Proposition 49 on the Ballot)

In July, both houses of the California legislature enacted a bill (SB 1272) that proposed to place an "advisory" question before the California voters in this November's election. SB 1272 submits the following question (designated by the California Secretary of State as Proposition 49) to the California electorate for its input:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are rights of natural persons only?

The Howard Jarvis Taxpayers Association and its president Jon Coupal (crusaders for lower taxes in California who have made extensive use of the initiative process for decades) filed a petition in state court seeking to block Proposition 49 from appearing on the November ballot. (The Secretary of State has been in the process over the last few weeks of finalizing the ballots that are being printed so as to be usable in November.) The petitioners argue that the legislature exceeded its powers in trying to place Proposition 49 on the ballot, since, they say, the measure "enacts no law" or "statute," but instead is purely advisory. In a surprise to some political observers, on August 11 the California Supreme Court, by a 5-1 vote (the court is temporarily down one member since Justice Kennard's retirement last spring), decided to block the measure from the ballot, at least for now. (Chief Justice Cantil-Sakauye was the lone dissenter and, as I explain below, she may well have had the right instinct.) The court asked for further briefing over the next month on the validity of advisory measures like Proposition 49, but decided that if Proposition 49 turns out to be permissible, it can be placed on a ballot after November. By contrast, if the measure turns out, on more reflection, to be impermissible, any damage it might create by virtue of its appearance on the November ballot would be hard to remedy.

Although the court did not conclusively decide the validity of Proposition 49, Justice Goodwin Liu wrote an opinion explaining why he believed there was a high likelihood that, after full briefing, he would find the measure to be improper. Putting aside whether trying to amend the federal Constitution to undo Citizens United is a good idea (and I have my doubts), the legality of Proposition 49 raises important and interesting questions under California law. And even though his opinion wasn't joined by other Justices and was preliminary in the sense that he is completely free to rethink things with the benefit of additional briefing and more time, Justice Liu's statement warrants careful attention because he is an intellectual leader on the court, and because he succinctly laid out the case against Proposition 49 that the measure's supporters need to engage.

Justice Liu's Reasoning in Doubting Proposition 49's Validity

Before I turn explicitly to Justice Liu's reasoning, I should say it's not clear to me that the challengers are correct in saying that SB 1272 does not enact a "law" or "statute" (to the extent that anything turns on this). SB 1272 directs that public monies be spent to print text on paper ballots, and that public monies be spent to count the votes in answering the question posed on the ballot. If the legislature passed a bill directing that money be spent on a university poll/study of citizen attitudes on global warming or drug legalization, that bill would be a law, even though the university-led poll/study might not have any self-executing legal effect. Why not the same for a poll/study conducted by the legislature itself?

The legislature argued before the California Supreme Court that SB 1272 is valid whether or not it "enacts a law," because the legislature has the power to do things "incidental and ancillary to the ultimate performance of lawmaking functions by the legislature itself." Seems like a pretty good argument. Justice Liu deflected this suggestion, though, because Proposition SB 1272 does not relate to any potential piece of legislation, but rather to the proposal and ratification of a potential federal constitutional amendment. Justice Liu pointed out (quoting a U.S. Supreme Court opinion) that "[r]atification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word."

I am far from sure that it makes sense to distinguish between legislation and other important actions the legislature takes with regard to the outside world matter here. In the federal context (where the legislature's powers are even more rigorously confined), Congress is empowered to take actions that are "necessary and proper" to carrying into execution all the powers vested in the federal government, not just the legislative powers Congress enjoys.

To see why putting a great deal of weight on the legislation/ratification distinction is perilous, imagine that Proposition 49 were tweaked to include a clause asking the voters whether the California legislature should adopt laws that "test the reaches" or "limit the scope" of Citizens United. It's hard to imagine that this difference in wording should change whether the measure should be allowed on the ballot. And, to his credit, Justice Liu, soon after he draws the distinction between amendment ratification and legislation, makes clear that his real beef with Proposition 49 is that it is purely advisory, and does no more than seek voter opinions in a formal way. In other words, his tentative position seems to be that whether or not SB 1272 is or relates to a "law" or "statute," putting advisory measures before the voters runs afoul of the California Constitution.

But what, precisely, is wrong with the legislature formally asking for the views of the electorate? Justice Liu derives his answer from the concept of accountability. If, he says, "the legislature were to propose a statute for the voters to approve," or ask the voters whether the legislature should adopt a statute containing specific text, and then that statute became law, the lines of accountability would be obscured. If the statute turned out to be a disaster, the legislature might evade responsibility by saying something like (my words, not Justice Liu's): "But you voters approved (or told us to do) this, so you can't now blame us!" By contrast, when the legislature passes a law by itself, citizens can hold it accountable, and when the citizens themselves propose and enact an initiative, they have only themselves-and not the legislature-to blame. Keeping these lines of accountability clear and clean is an important principle that Justice Liu finds implicit in the structure of the California Constitution.

Three Possible Counterarguments to Justice Liu's Reading

On its face, this is a very plausible, creative, and elegant argument, but to my mind it suffers from some significant weaknesses-weaknesses that I hope will be explored in the full briefing for which the court asked. First, as Justice Liu acknowledges, the California Constitution explicitly allows the legislature to propose, for voter approval, state constitutional amendments and also certain statutes authorizing the issuance of bond debt. If these super-important matters can admit of a "mix and match" approach (Justice Liu's term) that makes use of both legislative vetting and popular approval, why wouldn't the same be true for other, less important, matters? Indeed, to the extent that accountability is an important value, wouldn't we want to promote the greatest degree of easy accountability when the stakes are the highest? (More generally, given the cluttered and ultra-detailed nature of the California Constitution, it's hard to draw any bright line that would explain why proposals for altering the state constitution raise fundamentally different concerns than do measures relating to possible statutes.) All of this suggests that easy accountability may not be the overriding constitutional value at work here; the U.S. Constitution and most state constitutions make consistent and convoluted use of shared governmental power that obscures accountability for the sake of other important values, such as deliberation and caution. And-like bicameralism, the veto, and any number of other accountability-blurring "checks and balances"-advisory measures may also promote such deliberation and caution.

Moreover, Justice Liu acknowledges that it would be perfectly appropriate for the legislature to commission a Gallup poll of state voters to assist it in its legislative agenda. Wouldn't the results of such a highly publicized poll also blur accountability? And to the extent that the legislature can more readily avoid responsibility by pointing to a public vote rather than a privately conducted poll, isn't that only because a public vote is a more reliable measure of true attitudes of the body politic? And wouldn't we want the legislature to have the most reliable data available to it?

Second, and quite important, notice that Justice Liu's straightforward accountability argument would seem to forbid not only the legislature's placement of an advisory measure on the ballot, but also the people's direct attempt to put an advisory measure on the ballot to give the legislature formal input. Such a result (which might be supported by, but is not dictated by, past California cases) would create a deep structural dilemma because citizens are not always skilled at drafting laws that will operate in the real world, even if they have a good sense of which values they'd like to promote. Indeed, one of the big drawbacks with the initiative device modernly is that areas like affirmative action, immigration, campaign finance, taxation, etc., are so complicated that initiatives written by non-experts often lock in sub-optimal specifics in attempted furtherance of (at least arguably) laudable and broadly supported sets of principles. In a sensible system that includes direct democracy, there ought to be a way for the voters to say, in a focused and formal way: "We'd like a law that does the following things, but we'd be better off leaving it to legislative experts to draft the details, because we might not do a good job on the fine points, and we thus might generate undesirable consequences that a legislature but not ordinary citizens would be able to foresee." Having citizen groups feel obligated to draft and implement the particulars of complex policy measures is one of the problems with direct democracy we should want to reduce, not one of its salutary features we should want to enhance.

Third, and in some respects most important, I note that there is a provision, Article 1, § 3(a), in the California Constitution that explicitly provides that "the people have the right to instruct their representatives." "Instruction" is a constitutional term of art that goes back to the eighteenth and nineteenth centuries; it is a formal device by which voters collectively direct their state (but not federal) legislators to undertake specific legislative actions, and legislators are bound to comply. As constitutional historians Dan Farber and Suzanna Sherry have observed: "[At the founding in 1787] [v]oters in most states . . . had the right to instruct their representatives and to direct votes on individual issues. [Four] state constitutions [explicitly] guaranteed such a right. In the others, the right was assumed." From what I can tell, the formal right of instruction has been included in every version of California's Constitution going back to 1849, shortly before California became a state.

Over the past two hundred years, the device of formal voter instruction has been invoked with decreasing frequency across the nation, and the idea that state legislators would be legally bound to follow any instruction has also been diluted. Indeed, the California Supreme Court has not meaningfully discussed Article 1, § 3(a)'s instruction provision in recent decades, if ever, even in instances in which the voters seem to have attempted instruction. (American Federation of Labor v. Eu, decided in 1984, is one such case where the court inexplicably failed to discuss the provision.) The Article 1, § 3(a) issue may not have been briefed to the court in the Proposition 49 papers, which would certainly account for and justify the failure of Justice Liu's opinion to mention it.

But the fact that the instruction device has fallen out of favor or lost its power to legally bind legislators does not mean that the device and its textual and historical pedigrees should be ignored. Before the California Supreme Court issues an opinion (after full briefing and careful deliberation in the Proposition 49 matter) holding that any statewide information-gathering "advisory" measure, whether the measure comes from the people directly or from the legislature, is per se inappropriate for the ballot, the court should explain why it is reading the instruction provision out of the state constitution (or at least reading it not to apply in these circumstances).

Finally, I do acknowledge that there might be arguments that distinguish between advisory measures originating from the people and advisory measures the legislature seeks to place onto a ballot. Such arguments could be used to strike down Proposition 49 without gutting the people's right to instruct. At present I am not convinced that any such arguments do forcefully undermine SB 1272 and Proposition 49, but I look forward to seeing what the briefing and the court's ultimate opinions say.

August 20, 2014

Is the University of California Wrong For Admitting More Non-Californians?

Cross-posted from Justia's Verdict.

As the fall semester approaches and college freshmen prepare to start school, there is renewed criticism of the University of California's decision, implemented over the last few years at all or nearly all of the system's campuses, to increase the number and percentage of out-of-state and international college students. The harshest criticism comes from those California students (and their parents) who are finding it increasingly hard to be admitted to UC campuses, especially the most competitive ones like UC Berkeley. Many of these students and parents worry that the University system, motivated by a desire to obtain out-of-state tuition monies, is admitting lesser qualified people from outside California in such a way as to displace more highly qualified California applicants who otherwise might be admitted. Critics feel this is a betrayal of the University's basic purpose, which is to serve the needs of the State. After all, it was California citizens and taxpayers who created the UC and built it up into the best public higher education system in the world. In the space below, I try to debunk some of the myths and misstatements concerning this controversy, and to shed light on the crux of the problem.

The Factual Realities and Myths Underlying the Criticism

Let us begin with the basic factual claims critics often make. Some of these assertions are verifiably true. It is certainly the case that the UC seems intent on yielding more out-of-state and international undergraduate students at its campuses than it did years ago. For example, the system (according to reports in the Los Angeles Times and the San Francisco Chronicle) admitted around 3,000 more out-of-state freshmen in 2014 than in 2013, and in 2013 the number was higher than in 2012 by about another 1,000. Moreover, even as the number of admittees from outside the State is increasing, the number of admitted applicants who come from within California is holding steady or, at many campuses, dropping; only three campuses admitted more California residents in spring of 2014 than in 2013 (although some other campuses, like Berkeley, might have admitted additional in-state students off the wait list over the past few months.) And the percentage (as distinguished from the absolute number) of out-of-state and international students is also on the rise; the share of non-Californian undergraduates within the system nearly tripled from the 2007-2008 year (4.6%) to the 2013-2014 year (11.4%). Finally, it seems true that the additional revenue that students from outside California generate explains part of recent trends. Base tuition for in-state students is around $13,000/year, whereas out-of-state and international students are charged more than $35,000, and UC officials have themselves said that the additional revenue is helping the system.

But many of the key factual assertions made by critics are simply false. UC spokespersons have vehemently and repeatedly said that out-of-state admittees are more, not less, qualified (as judged by SAT scores, high school GPAs and other numerical metrics) than in-state admittees. That doesn't mean that every non-Californian who was admitted had higher grades and test scores than every in-state applicant who was denied (because admissions decisions take account of other, non-numerical, qualitative factors like artistic or musical talent, etc.), but it does mean that, in the aggregate, the numerical credential bar is higher for applicants outside the State.

On top of that, non-Californians bring one credential that in-staters generally can't: geographical diversity. Great universities pride themselves on drawing students from (and having name recognition and alumni contacts throughout) the entire nation and world. Such diversity adds to the mix of distinct outlooks on campus, and increases the range of opportunities for folks when they graduate. As UC spokesperson Diane Klein is quoted as saying: "Undergraduate and graduate students from throughout the United States and the world bring fresh perspectives and, in an increasingly interconnected world, help California students better prepare to operate in the global economy." So (even granting that UC exists largely to serve the State) having more non-Californians may offer benefits to the Californians who are there. (The high quality and geographic diversity that out-of-staters bring may partially explain why many states that aren't as large and diverse as California, like Michigan and Virginia, have for decades enrolled high percentages of out-of-state students in their flagship public universities.)

The Key Question of Whether More Non-Californians Means Fewer Californians

But perhaps the biggest mistake that critics make is to assume that having more out-of-state and international students means that fewer in-state applicants can be admitted. Precisely the opposite is often the case. The question isn't whether the number of in-state admittees has been stagnant over time (that may very well be the case because of decreased funding by the State legislature); the question is whether the number of in-state admittees would be smaller still if non-Californians weren't being admitted. Why might admitting non-Californians allow more Californians to be admitted? Because every non-Californian is charged an extra $23,000 in tuition beyond what in-staters are charged. And that money may more than pay for the out-of-stater, creating a surplus that can be used to subsidize an in-stater.

The UC has fixed costs (physical plant, tenured faculty, etc.) that it must pay no matter what, and variable costs (relating to non-tenured faculty and staff, utility expenses, healthcare and security obligations, insurance, etc.) that increase as the number of enrolled students rises. Because of fixed costs, the expense the University incurs, on the margin, in educating additional students may be somewhat smaller than its average cost-per-student. Of course, there may be an upper limit on how many students can fit within a campus. But there are also points on the spectrum where more students could be accommodated without major long-term infrastructural investment, provided we could find money to pay for the marginal (variable) costs of adding them.

For example, suppose that, at some point on the cost curve, the marginal cost of educating an additional student is about $24,000. Enrolling an additional in-state student alone at that point would not be feasible; she would cost UC another $24,000 but she would pay only $13,000 in tuition, yielding a deficit of around $11,000. But if an out-of-state student were enrolled, he would pay $35,000, which is enough to pay for his own marginal cost ($24,000) as well as the deficit created by the additional in-state student. So, in this simplified example, adding an extra out-of-stater increases the aggregate number (and perhaps also the percentage) of non-California enrollees, but does so in such a way as to allow for the enrollment of an additional in-state student who otherwise could not be admitted. Again, the relevant question (even for the critics) shouldn't be how many in-staters and out-of-staters are being enrolled. Instead, it should be how many in-staters could be enrolled if we cut back on out-of-staters. And the answer is likely going to be: fewer than we have now.

Should In-Staters Be Given the Option of Paying Higher Tuition?

So it is clear that admitting persons who are are willing and able to pay a higher tuition can permit the University to accommodate additional persons who pay the lower tuition rate. All of this brings up the question: Why not offer admission to some of the in-state applicants who are currently being denied if these applicants are willing to pay the higher tuition rate? After all, if the problem is simply a lack of revenue (owing largely to reduced allocations from the legislature), why shouldn't we give in-staters (whose parents and ancestors paid for the University) the first option to pay additional tuition, rather than offering those higher-priced slots to non-Californians?

Imagine, for example, that we said to the 500 in-state applicants who were denied admission to UC Berkeley but whose application files were the closest to making the cut (the first "500 out," to use a March Madness Bracketology term): "You can come to Berkeley, but only if you are willing to pay a tuition rate higher than that being charged to other in-state admittees, who are slightly more worthy of admission than you are." How would that go over? I have a few (preliminary) thoughts.

First, some might object to this approach because, as noted earlier, admitting in-staters who are willing to pay more instead of out-of-staters deprives the University of the ultra-high-quality students and geographical diversity that non-California enrollees are currently providing. But put these factors to one side. Imagine that out-of-state enrollees had the same grades and test scores as the "first 500 out" group I described above. And assume that, because California is almost a nation state unto itself, we already had sufficient geographic diversity without importing out-of-staters.

Even then, I suspect many folks would reject the approach I describe simply because it seems wrong to "sell" UC seats to Californians who have the money to pay for them. Among those "first 500 out," only those families who can afford the higher tuition would be able to accept the offer, such that ability to pay would formally and openly become a criterion of admission. And that is in conflict with the notion that access to a slot in the UC is supposed to be based on your talent, your hard work and your performance, not on your parents' bank account. (Charging out-of-staters higher tuition doesn't quite raise this conflict, because their higher tuition is justified not by their lesser qualifications but rather by their lack of investment in the system-a perfectly reasonable factor to use in setting tuition-and thus need not be thought of as "selling" seats to lesser qualified folks the way charging more to some in-state enrollees than to other in-staters, based on the strength of their admissions files, would.)

Notice that there are some public areas, such as toll roads and (now) security lines at airports, where we have allowed people to gain special access if they are willing and able to pay for it. But we may tolerate such commodification in these settings because we don't think of allocating resources in these arenas as involving a meritocratic assessment the way we conceive of college admissions. We also don't think of roads and airports as gateways to economic mobility the way higher education has been billed. As a result, letting people buy their way out of car traffic and long boarding lines doesn't require that we confront-and grapple with the inaccuracy of-deeply held and desirable societal values such as the notion that college ought to be equally available to anyone who has the talent and work ethic to pursue it.

A generation ago, Guido Calabresi (who was a professor and then Dean of Yale Law School and who now is a federal appellate Judge) and Phillip Bobbit (a law professor at The University of Texas School of Law) wrote a book called "Tragic Choices," in which they discussed how difficult it is for society to move from a bureaucratic or professionalized allocation of scarce resources (the way university admissions typically operate) to a market-based approach, when doing so starkly exposes the frailty or falsity of important societal ideals (like equal educational access). We all know that at some important level family wealth makes access to college easier (and lack of wealth makes college for many quite difficult), but explicitly selling off UC slots to wealthy in-staters would require us to confront unpleasant truths in a way that we may not simply be able to handle.

Private universities can (and sometimes do) take a student's ability to pay into account at the admissions stage, and many such universities do admit less qualified yet wealthy applicants. But these institutions get to make their decisions outside the public view. Importantly, because of transparency requirements concerning public college admissions and tuition-setting processes (which reflect another deeply held societal norm-that public institution operations should be visible), there is no easy way to sell UC seats without everybody seeing exactly what is being done. That may be why (as far as I am aware) no high-level policy-makers in California have seriously floated the approach I discuss here.

Notice also that selling off some UC seats to wealthy in-staters might allow significant numbers of additional poor or middle class Californians to attend (so long as the sales price exceeds the marginal cost of educating the wealthy student.) Indeed, one could imagine a scenario in which UC seats would be auctioned so that a few mega-wealthy but less qualified applicants would end up subsidizing large numbers of lower or middle class enrollees. So if our focus were merely on increasing the absolute number of highly qualified lower or middle class Californians who could be accommodated within UC, a regime in which the University sold or auctioned off seats might have some upside. But that regime would do major damage to important societal ideals.

Finally, notice that these tradeoffs between the accomplishment of pragmatic goals and the preservation of (sometimes unrealistic but nonetheless attractive) societal values are not always static. During the Civil War, for example, draftees were able to buy their way out of military service by hiring people to take their places. Today, we would (rightly) find such a practice abhorrent; we would not permit it because it would expose too starkly the (persistent) reality that it is the poor who are ultimately forced (by economic distress) to bear the brunt of fighting our wars. In suggesting that things change over time, I am not predicting that UC seats will be formally commercialized anytime soon. But I will point out that many folks, myself included, did not fully foresee all the changes in public higher education funding (especially as to professional schools) that have taken place over the last two decades. And I could imagine ways of possibly moving toward the approach I describe above without seeming to sell seats so explicitly-for example, charging all in-state admittees a higher tuition but giving all but the last 500 admitted a "merit" scholarship so that the net price for almost everyone remains unchanged. Indeed, many public law schools-whose state subsidies were cut earlier and more deeply than those at the corresponding public undergraduate institutions-have moved to this kind of model. Some public colleges may end up following suit to address their revenue problems, even though many of us would favor restoration of legislative funding even more. So never say never.

August 5, 2014

How to Read Justice Kennedy’s Crucial Concurring Opinion in Hobby Lobby: Part II in a Series

Cross-posted from Justia's Verdict.

In my last column, Part I of this Two-Part series, I argued that lower courts are justified in paying (indeed perhaps required to pay) close attention to Justice Kennedy's concurring opinion in this summer's blockbuster Burwell v. Hobby Lobby ruling, even though the "Opinion of the Court" in that case had the support of five Justices. Because Justice Kennedy was one of the five in the majority in this 5-4 case, his understanding of the majority opinion-on which he based his decision to join and which is explained in his concurring opinion-essentially represents the narrowest common grounds on which a majority of Justices agreed.

In the space below, I suggest a number of significant ways in which Justice Kennedy's take on the majority opinion, which he says are among the "reasons . . . [he] join[ed] it[,]" counsels in favor of a narrow reading of what the Court decided. To see why this is so we must directly compare Justice Alito's majority opinion (and the language and tone it used) with Justice Kennedy's writing.

The Basic Structure of Justice Alito's Opinion of the Court

Justice Alito's opinion can be broken down into two big questions: (1) Does the Hobby Lobby corporation partake of protection under the federal Religious Freedom Restoration Act (RFRA)?; and (2) Is the contraception mandate in the Affordable Care Act (ACA) regulations the "least restrictive means" to accomplish the "compelling" government interest-that female employees receive contraceptive service insurance at no cost-as required under RFRA?

On the first question, Justice Alito reasons quite broadly, and rests statutory protection for Hobby Lobby on the ground that a for-profit closely held corporation is itself a "person" capable of the "exercise of religion" under RFRA (rather than resting protection on the idea that the persons whom RFRA protects are the owners of a corporation, and the fact that Hobby Lobby's owners are operating through the corporate form should not strip them of the statutory protection they have as individual human beings to practice religion). Because of this broad reasoning, and because Justice Kennedy did not say anything in his concurrence on this question, the Court (and lower courts) may find it difficult to deny RFRA coverage to publicly traded corporations whose managements try to assert claims for religious exemptions in the future.

But on the second question-concerning what RFRA protection means once RFRA applies-the breadth of the Court's ruling is more open to debate, because Justice Kennedy did say things that might diverge from what Justice Alito said. I mention four such possible divergences here.

Some Ways in Which Justice Kennedy's Understanding of the What the Majority Held Might Be a Narrow One

First, and perhaps least significant doctrinally but potentially important optically, while Justice Alito characterizes the test the government must meet to justify denying an exemption under RFRA as "exceptionally demanding," Justice Kennedy is content to call it "stringent" (citing his own opinion in a prior case). This subtle language difference may send slightly different messages to lower courts about how tough to be in evaluating arguments put forth by the federal government in future cases.

Second, on the question whether the government has a "compelling" interest (the kind of interest it needs under RFRA) "in ensuring that all women have access to all FDA-approved contraceptives without cost sharing," Justice Alito spends a great deal of space explaining why it is "arguable" that the government should lose on this question. In particular, he discusses how the exceptions the Affordable Care Act creates for existing health plans to be "grandfathered"-and thus not required to provide contraceptive coverage-undermine the notion that the government's interest is compelling. Justice Alito ultimately finds it "unnecessary to adjudicate this issue [because] [w]e will assume that the interest in guaranteeing cost-free access . . . is compelling."

Justice Kennedy on this question writes in a way that suggests a much stronger likelihood that he would, if push came to shove, find (as the four dissenters did) the government's interest to be compelling, notwithstanding the grandfather exceptions. He says that is "it is important to confirm that a premise of the Court's opinion is its assumption that the . . . regulation here furthers a legitimate and compelling interest in the health of the female employees." It is true that he uses the word "assumption"-which reminds us that the Court assumed but did not decide the government's interest was compelling. But one wonders why it is important to "confirm" an "assumption" unless the assumption is likely to be correct. Also, Justice Kennedy starts this part of his discussion by saying that the federal government "makes the case that the mandate serves . . . [a] compelling interest" (emphasis added). "Makes the case" is a term that can be read to mean simply "argues" or "contends," but more often it is used to mean "provides good reasons to think."

If Justice Kennedy is, in fact, sending a signal here that government-granted grandfather exceptions based on convenience and ease of transition do not undermine the compelling nature of a government interest, and if that is how lower courts read his tone here, then such a signal could have important consequences for the range of other government interests that are asserted in subsequent RFRA cases, and other cases in which the government needs to establish a compelling interest. Government often needs to grant exceptions to facilitate enactment of big new regulatory schemes, and if the inclusion of such exceptions jeopardizes the idea that the government has compelling interests on which it is acting, a great deal more government regulation would be vulnerable.

The Key Questions of What the Less Restrictive Alternative in Hobby Lobby Was and How Competing Interests Should Be Weighed

 Third, on the important question whether the Government should lose because it could pay for the contraceptive coverage itself (rather than requiring employers to provide it), and government payment is a "less restrictive means" to accomplish the government's (compelling) objective, Justice Alito seems to try to have his cake and eat it too. He says ultimately that "we need not rely" on this possible accommodation as a basis for Hobby Lobby's victory because the federal government could also simply tell insurance companies (rather than employers) to provide the coverage (as the government does for non-profit corporations), but this language comes only after Justice Alito had already spent a lot of ink explaining why the government-payment option seems to be required under RFRA. Indeed, Justice Alito observes that it is "hard to understand" the Government's argument to the contrary. Moreover, even though Justice Alito writes that the Court "need not rely" on this accommodation, he doesn't say whether he means simply that there are two possible accommodations that explain Hobby Lobby's victory (in which case neither of them is one that must be relied on), or instead that the second accommodation (having the insurance companies provide the coverage) is the statutorily required accommodation in this case, such that the Court doesn't decide whether, in the absence of such an option, the government would have to pay itself. Note that, unlike the language concerning whether there is a compelling interest, Justice Alito does not say the Court declines "to adjudicate" this issue.

Justice Kennedy, by contrast, does not equivocate here, and makes clear that, as he reads the majority opinion he is joining, the Court is not deciding the question whether the Government would have to pay itself if the insurance-company-accommodation were not available: "In discussing th[e] [government-payment] alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program [, because] [i]n these cases, it is the Court's understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government." For this reason, he says, the "Court does not resolve" the question whether creating a new government spending program could be required.

Fourth, and more generally, on the question of how much cost the government must be willing to bear to accommodate religious exercise, Justice Kennedy notes: "[T]his existing model [i.e., having the insurance company bear whatever cost may be involved], designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise" (emphasis added).

And, importantly, he also says, apparently in response to concerns that federal sex discrimination workplace protection will go by the boards-a prospect that Justice Alito's opinion pointedly did not deny-that religious exercise, while important, cannot "unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling." Justice Alito does acknowledge that courts must take "adequate account of the burden a requested accommodation imposes on non-beneficiaries," but he makes this concession in a footnote that literally marginalizes the concerns of third parties.

Justice Kennedy's language makes clear that he will, in deciding when an exemption under RFRA is warranted, surely consider costs, both to the government and to third persons, as a counterbalance to any assertion of religious liberty. Indeed, in some ways, Justice Kennedy's opinion is eerily similar in substance to Justice Blackmun's writing in National League of Cities that I discussed in Part I of this series; Justice Kennedy recognized the right to an exemption in the case before him, but he indicated more directly than did Justice Alito that in future RFRA cases some kind of balance-rather than an absolute or near-absolute entitlement to exemption-is called for.

If this is so, and if (as I think they can and should) lower courts take their cue from the writing of this fifth Justice in the majority in Hobby Lobby, then Justice Kennedy's writing may go a fair ways in determining exactly how many companies can successfully use Hobby Lobby to obtain exemptions by suing under RFRA.

July 21, 2014

Berkeley Journal of Gender, Law & Justice Publishes Issue on Professor Harris's Presumed Incompetent

The Berkeley Journal of Gender, Law & Justice has published a special symposium issue devoted to Presumed Incompetent: The Intersection of Race and Class for Women in Academia, the recent book edited by Professor Angela Harris with Professor Gabriella Gutiérrez y Muhs of Seattle University, Professor Yolanda Flores Niemann of the University of North Texas, and Professor Carmen G. González of Seattle University School of Law.

The book, published in 2012 by Utah University Press, features personal narratives and qualitative empirical studies that expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education. The special issue of the Berkeley Journal of Gender, Law & Justice is based upon a March 8, 2013 symposium that featured more than 40 speakers who were invited to celebrate and respond to the book. Among the contributing scholars is Dean Kevin R. Johnson, whose article "Important Lessons for University Leaders" (co-authored with Maria P. Lopez) appears in the issue.  

Angela Harris is one of the nation's foremost scholars in the fields of critical race theory, feminist legal theory, and civil rights. She joined the UC Davis faculty from UC Berkeley School of Law in 2011.


July 18, 2014

A Potential Guide to the Meaning of Hobby Lobby: Why Justice Kennedy’s Concurring Opinion May Be Key, Part I

Blog entry cross-posted from Justia's Verdict.

Legal and political commentators have already spent thousands of hours on how best to understand Justice Alito's majority opinion in Burwell v. Hobby Lobby, and whether Justice Ginsburg's dissent was accurate in saying the decision was of "startling breadth."

But to understand the scope of the majority opinion construing the federal Religious Freedom Restoration Act (RFRA), we may need to focus on the separate concurring opinion of Justice Kennedy, an opinion that seems to be getting little ink. Two important and complex questions need to be asked about this concurrence: (1) Why should we care what it says? and (2) What does it really say? In the space below, and in my next column in two weeks, respectively, I take up those each of those questions.

When There Are Five Votes for a Majority Opinion, Do (or Should) Concurring Opinions Matter?

The first question-why we should pay any attention to the content of Justice Kennedy's opinion-is fair to ask, and complicated to answer. After all, Justice Alito's opinion was an Opinion of the Court, which means an opinion for a majority of the voting Justices and not just for a "plurality" of them. In most circumstances, when there is an Opinion of the Court, lower courts (where battles over the scope of RFRA are going to be most meaningfully fought, at least until the Supreme Court decides another RFRA case) must look for meaning and guidance in that Opinion, without necessarily consulting the one or more additional concurring opinions that may have been filed. But, crucially, in Hobby Lobby, Justice Kennedy's was the fifth vote in a 5-4 case; without Justice Kennedy's joinder, Justice Alito's opinion would have lacked a majority. So to the extent that Justice Kennedy's separate opinion represents a narrowing gloss on Justice Alito's writing (and in Part Two of this series I will take up whether Justice Kennedy's opinion is indeed narrower), there is a plausible argument to be made that lower courts (and perhaps also future Supreme Courts) should view Justice Kennedy's opinion as the guiding or controlling one.

Certainly that would have been true had Justice Kennedy not joined (some or all of) Justice Alito's opinion, but instead had concurred only in Justice Alito's bottom-line judgment that Hobby Lobby should win, and written a separate opinion laying out his narrower reasoning. In that instance, everyone would agree there would be no Opinion of the Court (for the parts Justice Kennedy did not join), and Justice Alito's opinion would be for a plurality only. And in situations like these, the Supreme Court has held, in a somewhat well-known 1977 case, Marks v. United States, that lower courts should look for and be guided by the "position taken by those Members [of the Court] who concurred in the judgments on the narrowest grounds" (emphasis added).

Which Matters More, a Justice's Vote (to Join a Majority Opinion) or His (Concurring) Voice?

Is the situation really so different if a Justice joins an Opinion of the Court (to make a fifth vote) but then writes separately to make clear the (narrow) understanding of the majority opinion on which he based his decision to join? There are first-rate legal minds (including, perhaps, some of my Justia ConLaw professor colleagues) who may say "yes"-formalities matter, and the act of being the fifth vote to join a majority opinion is all-important. There are no constitutional provisions, statutes, or judicial regulations that speak to this question; it seems to be a matter left to and determined by judicial practice. I am not aware that the Supreme Court itself has ever offered detailed views on how a situation like this should be handled, but I find it hard to see a big difference-in the context of a case whose result is determined by a 5-4 vote-between "concurring in the Judgment" and writing a separate opinion, on the one hand, and joining a majority opinion while writing the very same kind of separate opinion, on the other.

Because the writing of a separate opinion laying out a narrower view than that which might have been laid out by the majority opinion is a more specific and more fully explained act than is the general decision to join the majority opinion, I think attaching weight to the narrowing, specific concurrence makes good sense, especially if the concurring Justice is still on the Court (such that his separate writing bears on any prediction of how the Court would rule if another case were brought to it today.) I say this in part because a decision to join with other Justices to make an Opinion of the Court may have been made in part to keep peace at the Court or to avoid the direct insult of a colleague, and does not mean that there might not be important substantive differences among all those who join the Opinion.

The case for crediting the narrow understandings reflected in concurring opinions in this setting is especially strong when the majority opinion may itself be fuzzy (or silent) on the legal question at issue. In these circumstances, a fifth Justice who sincerely believes the majority opinion embraces the narrow reasoning that is on his mind does would not want to refuse to join (and concur only in the judgment) because of the fuzziness. Collegiality and harmony are better served by permitting him to join but to make clear (in a way that will be respected by lower courts) the expectations on which his joinder is based. If his separate concurrence is not given controlling weight in these circumstances, he will be encouraged in future instances not to join the majority opinion (but instead to concur in the judgment only), and this might create needless division and intra-Court friction if in fact the majority opinion embraced the (narrow) holding he thought it did but about which he was not completely sure.

Even when the majority opinion (which has five votes) is clear on the legal proposition in question and a concurring Justice's "understanding" of the majority opinion, on which his joinder is premised, is objectively unreasonable, there is still a forceful argument to place weight, in a 5-4 case, on a separate concurrence by a Justice within the majority. To the extent that a concurring Justice makes clear by his writing that he disagrees with this part of the Opinion of the Court, his narrower understanding of the law should control, regardless of whether he joined the majority opinion or simply concurred in its judgment.

In effect, we should read his actions/writing together to mean that he really didn't join with the part of the Court opinion with which he (apparently) disagrees, but he just decided (perhaps because he misread the majority opinion) not to formally opt out of any important sentences or paragraphs in the majority opinion that dealt with the legal proposition in question. It also bears mention that majority opinions often (usually?) fail to break up analysis of each legal question into a separate Section or Part. For this reason, Justices who agree with the bulk of an opinion's analysis, but who may disagree with a few key sentences, or even words, cannot easily register their nuanced mix of agreement/potential disagreement simply by declining to join whole subdivisions of the opinion.

A few hypothetical variants may help make my point. As I suggested earlier, everyone seems to agree that if a fifth Justice joins most of an opinion, but expressly declines to join a Part or Section of the opinion that included legal proposition X, we would say the Court has not embraced X. If, instead, the fifth Justice writes to say that he "join[s] all parts of Opinion of the Court, except to the extent that the Opinion says X," again there would be no Opinion of the Court as to the legal proposition X. Now imagine the fifth Justice writes separately to say: "I join the Opinion of the Court because it does not say X." Should that explicit statement be treated any differently? And, finally, how about: "I join the Opinion of the Court on the understanding that it does not say X"? To me, it would be formalistic without justification to treat the last two of these situations (regardless of the reasonableness of the concurring Justice's reading of the majority opinion) differently from the first two.

I do think the fact that a Justice joins a majority opinion should not be completely irrelevant in these kinds of situations. So, for example, if there is ambiguity in the meaning of the concurring Justice's separate writing, that ambiguity should be resolved in favor of harmonizing it with the majority opinion that she chose to join. But to the extent that the concurring opinion clearly disagrees with, or offers more details in narrowing, legal propositions asserted in the majority opinion, the concurring Justice's voice should control over her vote (to join the majority).

Perhaps the best counterargument, that is, the best argument in favor of not attaching controlling weight to the concurring opinion, is that the Marks-style analysis is often difficult to undertake, and sometimes lower courts make mistakes in trying to figure out what the narrowest common grounds are between multiple opinions. Deciding what is "common" between opinions, and discerning the "narrowest grounds" can be challenging. In the Marks setting, we have no choice but to undertake this tricky analysis because without comparing multiple opinions (no one of which had five votes) we lack any holding at all to guide future cases. By contrast, in the situation I describe in this column, there is an Opinion of the Court (that got five votes), and so telling lower courts to follow it only, and not to complicate matters by trying to incorporate the concurrence into the analysis, does not deprive the system of a holding to guide lower courts.

In the end, I find this counterargument unconvincing for three reasons. First, the Marks-style analysis may sometimes be difficult, but courts do perform this task regularly, and in some cases it may actually be easier to focus on clear limiting language in a concurring opinion than to resolve ambiguities within the majority opinion alone. (I should note that some appellate courts-including the U.S. Supreme Court during its early history-do not issue "Opinions of the Court," but rather issue individual opinions seriatim, leaving lower courts to figure out the rule(s) of law that were adopted.) Second, we employ Marks analysis not just because we want to generate a holding (we could to that by flipping a coin as between all the opinions that supported the judgment), but because it makes normative sense to seek to identify true common analytic ground between five or more Justices. If that is true in Marks, it is true here as well. Finally, as I noted earlier, if we don't attach controlling weight to a concurring opinion in the situation I posit here, then a Justice who makes the fifth vote in a future case will, instead of joining the Opinion of the Court, simply concur in the judgment and write a separate opinion anyway, and so we will be right back in the realm of Marks. If a Justice cares enough about an issue to write separately, she probably will do what it takes to make sure the concurring viewpoint is given as much weight as possible in future cases.

Historical Examples

I am not aware of a huge number of prominent instances in which a Justice provided a fifth vote for an Opinion of the Court and then also wrote separately to distance himself in a discernible way from at least some broad propositions in the majority's approach. But in well-known cases in this category that do come to mind, lower courts have tended to place controlling weight on the concurring views of a fifth Justice even though he also joined the majority. Maybe the most famous illustration of this is Youngstown Sheet and Tube v. Sawyer, where Justice Jackson's concurring opinion has held tremendous sway in lower court (and also later Supreme Court) rulings, even though he also joined Justice Black's Opinion of the Court in this 5-4 case. Another significant decision is the 5-4 ruling in United States v. Verdugo-Urquidez, where Justice Kennedy joined Chief Justice Rehnquist's majority opinion (giving it a fifth vote), but also wrote separately to express views that were narrower than those expressed in the Chief's writing. And a Third Circuit case, at least (with then-Judge Alito part of the unanimous panel), found that Justice Kennedy's views controlled.

Perhaps the case most similar to Hobby Lobby in this respect is National League of Cities v. Usery. There, as in Hobby Lobby, powerful entities-States rather than corporations-sought exemptions from federal workplace regulations. And, similar to Hobby Lobby, a five-Justice majority opinion (authored in that case by Chief Justice Rehnquist) held that States were immune from the minimum wage regulations at issue there, laying out what on its face seemed like a rather broad principle of state immunity from federal regulation in areas of "integral" or "traditional" government functions. Justice Blackmun joined the majority opinion, but also wrote separately to make clear his narrow understanding of state immunity and what the majority opinion should stand for; in Justice Blackmun's view, state exemptions depended on the application of a balancing test in which federal interests were weighed against state autonomy.

In the wake of National League of Cities, at least some influential lower courts found Justice Blackmun's balancing test to be required by the Court, even though it was not mentioned explicitly in Chief Justice Rehnquist's majority opinion. Indeed, even though there was an Opinion of the Court in National League (because Justice Blackmun did join the Chief's writing, giving it five votes), the U.S. Court of Appeals for the District of Columbia characterized the Chief's opinion as a "plurality" view, and focused instead on how best to read Justice Blackmun's separate writing. And when the Supreme Court itself was called upon to apply National League of Cities five years later in Hodel v. Virginia Surface Mining, it observed that National League of Cities stood for some kind of balancing test, citing Blackmun's concurring opinion.

There may be (and probably are) counterexamples, but these high-profile cases, especially National League of Cities, suggest that there is at least a significant likelihood that lower courts will (justifiably) feel controlled by Justice Kennedy's Hobby Lobby writing and thus will parse it to see if his views narrow the scope of Justice Alito's opinion. So I will turn to that parsing in Part Two of this series.

July 2, 2014

Follow-Up on California’s Legislative Effort to Repeal Proposition 187

Cross-posted from Justia's Verdict.

In my last column, I began analyzing SB 396, a laudable but legally questionable effort by the California legislature to repeal, by ordinary legislation, provisions of Proposition 187, a 1994 voter-enacted measure that imposed harsh restrictions on unlawful immigrants in the State, restrictions that have since been blocked indefinitely by a federal district court judge. As I explained, the main problem with the repeal effort is Article II, section 10(c) of California Constitution. This provision, designed to maintain the integrity of the initiative device, prevents the legislature from repealing any voter-enacted measure unless the repeal measure is itself "approved by the electors" (i.e., the voters).

The Legal Defense of SB 396 and How That Defense Overreads the Import of a Judicial Block on Enforcement

A few days after my column was posted, the State Assembly Committee on the Judiciary held a hearing on the proposed legislation. This hearing and the report it generated give a glimpse of the opinion offered by the State Legislative Counsel-an opinion legislators appear to be relying on-setting forth the view that SB 396 is lawful and that Proposition 187 can be repealed by simple legislation. Here is the passage of the Committee Report that lays out the Legislative Counsel's legal defense of the bill:

Because [Proposition 187 was] enacted by initiative, the question arises whether the Legislature may act to strike these provisions from the codes. The California Constitution provides that the Legislature may amend or repeal a statutory initiative 'by another statute that becomes effective only when approved by the electors. . . .' (Cal. Const., art II, § 10, subd.(c).) While it may be argued that this bill proposes an improper 'repeal,' the better view would appear to be reflected in an opinion by Legislative Counsel concluding that the Legislature is within its powers to delete statutes that have been abrogated by the courts. As Counsel notes, the evident intent of the subdivision (c) is to 'protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.' . . . Accordingly a subsequent statute will 'amend' a statutory initiative within the meaning of subdivision (c) only if it changes the scope or effect of that initiative by adding or taking away from it. . . . Because the provisions that would be deleted by SB 396 have previously been held to be unenforceable, it seems reasonable to conclude that this bill would not make a substantive change in the law as prohibited by subdivision (c), and therefore would not unconstitutionally change the scope or effect of Proposition 187.

In other words, a legislative measure that does not "change the scope or effect" of a previously enacted initiative cannot be said to amend or repeal the initiative, and does not require voter approval. While creative, this argument is not persuasive. Even assuming that the "scope or effect" standard is the right one to apply, SB 396 fails the test. For starters, as I pointed out at length in my earlier column, a law that is blocked by a court but that remains on the code books has significant potential effect down the road, insofar as circumstances could change to remove the judicial block. Courts can revisit their prior rulings, higher courts can change the legal landscape against which lower courts make decisions (as the Supreme Court in fact did in the immigration regulation setting in 2012 in Arizona v. United States), parties can seek to reopen cases, etc. All of these possibilities exist in the context of Proposition 187. Indeed, because the district judge who struck down parts of Proposition 187 did so in part because of congressional laws on the books, there is yet another possible change that could trigger revisiting the judicial block on enforcement-subsequent congressional action. For all these reasons, we cannot say that Proposition 187's operative provisions that remain on the books lack effect; at most, we can say that the present effects are blunted, and that the future effects are hard to gauge but potentially significant.

How the Defense of SB 396 (Selectively) Ignores the Expressive Effects of a Law

But there is an even more fundamental flaw in the Legislative Counsel's position; the Legislative Counsel seems not to recognize that a law whose operative provisions are being blocked continues to have an expressive effect, insofar as a state's laws, as written, send a message to the world about the state's values. Indeed, it is that expressive effect-of having the mean-spirited language of Proposition 187 still on the books-to which SB 396 is itself a response; repealing the text is a good idea primarily because leaving the text intact continues to send a message. But the people who voted for Proposition 187 may have wanted to accomplish the harsh message that Proposition 187 conveys, irrespective of whether the operative provisions of the measure could be enforced.

Even if 187's message is odious, there is nothing unconstitutional about a state having that message codified in its books, which is why the District Court Judge did not order that Proposition 187 be stricken from the code books, only that its provisions not be enforced. (Some kinds of messages, regarding race or religion, may themselves be unconstitutional, but messages about immigration benefits do not violate the federal Constitution in the same way.) Voters of a state have authority to convey even unkind and unwise messages in the initiatives they enact, and the California Constitution does not seem to give the legislature the power to override those messages. Indeed, the legislature cannot have it both ways, saying that the message sent by Proposition 187's continued presence on the books creates problems, but then denying that the message has any "effect."

Perhaps an example from a different constitutional area will help drive the point home. Imagine the California voters were to pass an initiative that says: "Catholic doctrine is religious truth, and that all other religions are false." The measure, by its terms, does not go on to tell anybody to do or refrain from doing anything-it is a purely expressive initiative. Putting aside whether such a measure violates the Establishment Clause of the Constitution and what a court might do about that, no one could plausibly argue that that the legislature could repeal and remove this measure from the code books without popular approval the day after it was enacted on the ground that the initiative, and thus its legislative repeal, is purely expressive and has no scope or effect in the real world.

Changes in Legislative Text, Even Those That Don't Seem to Change the Real World, Must Go Through a Prescribed Process

The codified text of a statute (or state constitution) matters, and legislatures are given authority to amend that text, but only if they go through the required legislative procedures. As I argued in my last column, the requirement of popular approval may be analogized to the requirement of bicameralism; just as one house of the state legislature may not repeal text-whether or not the repeal changes the present-day operative effect of that text-without the other house, neither may the two houses accomplish repeal of initiatives or state constitutional provisions without involving the people.

We can see this even more clearly using yet another hypothetical, this one an attempt by the California Legislature to change the language of the state constitution rather than a statute adopted by the voters. As with initiative statutes, the California lawmakers can, under the terms of the California Constitution, propose changes in constitutional text, but such changes require voter approval to go into effect. Suppose the California Supreme Court (the ultimate interpreter of State law) were to rule that search and seizure protections under the California Constitution do not extend to automobiles. The legislature could not, without getting the required popular consent for all constitutional amendments, tweak the text of the California Constitution to add words making explicit that car searches aren't covered, simply because (under the prevailing judicial decisions at the time) this amendment wouldn't change the real-world "scope or effect" of the provision in question.

The Effort to Repeal Proposition 187 Should Proceed, but Should Include Popular Approval

None of this is to say the legislature should abandon the efforts to repeal Proposition 187. Instead, it is to say simply that the legislature should act to repeal the Proposition, but that the repeal should take effect only when the voters approve it. And having the voters remove the hateful Proposition 187 themselves is the best solution for expressive reasons anyway. If State Senator Kevin De Leon is correct, as I believe he is, that erasing the language of Proposition 187 would be powerfully symbolic, think of how much more powerful it would be if the very electorate that passed Proposition 187 now wants to make clear that this measure no longer represents the views or values of the State.

And I think popular approval would be easily forthcoming. The State and its attitudes about immigration and ethnicity have evolved a great deal in the past two decades. Since the measure could be put to the voters without having to assemble signatures, no signature-gathering money would need to be expended. Indeed, because I can't imagine any organized opposition to a measure proposing repeal, I don't see the need for any expensive campaign to obtain enactment.

Having the voters undo their own misguided handiwork would be poetic, practical and (legally) proper. And, importantly, it would avoid opening up the legislature to the charge that it is riding roughshod over the will of the people and the initiative process.