Cross-posted from Law and Politics Book Review.

The book is Governing Immigration Through Crime: A Reader.

Authors: Julie A. Dowling is Assistant Professor of Latina/Latino Studies at the University of Illinois, Urbana-Champaign. Jonathan Xavier Inda is Associate Professor of Latina/Latino Studies at the University of Illinois, Urbana-Champaign.

For several years, immigration scholars have criticized the increasing reliance on the criminal law (and criminal penalties) to enforce the U.S. immigration laws, which historically have been enforced through civil sanctions. Juliet Stumpf encapsulated the growing body of scholarly criticism in her seminal work “The Crimmigration Crisis,” a path-breaking article reprinted in Governing Immigration Through Crime.

The criminalization of U.S. immigration law has proceeded relatively quickly through a variety of steps. Congress in the last 25 years has systematically reformed the immigration laws so that increasing numbers of crimes can result in the removal of lawful permanent residents from the country. Exhibiting an Alice in Wonderland-like quality, the immigration laws today frequently classify misdemeanors as “aggravated felonies,” thus subjecting a lawful permanent resident to near-mandatory removal from the United States. The harshness of the removal grounds has led a conservative Supreme Court on several occasions to intervene; for example, the Court in 2013 halted the virtually mandatory removal of a long term resident of the United States guilty of possession of a few grams of marijuana for personal use (Moncrieffe v. Holder). Congress also has required the mandatory detention of the ever-expanding category of “criminal aliens,” which has created a huge, and growing, immigrant detention industry (McLeod 2012).

Beginning in earnest during the George W. Bush administration, U.S. immigration authorities have worked increasingly closely with state and local law enforcement authorities to remove noncitizens from the United States. The Obama administration has enlisted state and local police in efforts to enforce the U.S. immigration laws. Many states have passed immigration enforcement laws relying on the criminal law ostensibly designed to encourage undocumented immigrants to “self deport.” In addition to extension of an expensive fence along the U.S./Mexico border, U.S. immigration authorities have dramatically increased enforcement operations to levels never previously seen before in U.S. history. Last but not least, the crime of “illegal re-entry” into the United States has been prosecuted ever-aggressively by the U.S. government, contributing to docket congestion in the federal courts and a large increase in the number of Mexican nationals imprisoned in the United States.

The increased use of the criminal law to regulate immigration has had dramatic impacts. In President Obama’s first five [*209] years in office, his administration set records by removing roughly 400,000 immigrants from the United States annually; he has by a large margin deported more noncitizens than any President in U.S. history. It is noteworthy that removals have not been limited to undocumented immigrants but include many lawful permanent residents who have lived in the country for many years. Hundreds of thousands of removals have resulted in the destruction of hundreds of thousands of families, communities, and lives. Although the administration claims to focus on serious criminal offenders, many of those caught in the enforcement net are at best small time criminals, including persons arrested for traffic infractions such as lacking driver’s licenses for which undocumented immigrants are not eligible in most states.

Governing Immigration Through Crime collects in one reader important contributions to the scholarly literature on the use of the criminal law in immigration enforcement. The previously-published works were written by influential scholars from law and the social sciences, including anthropology, sociology, ethnic studies, criminology, urban planning, communication, and political science. The stated aim of this book “is to provide an interdisciplinary introduction to the governing of immigration through crime” (p.38). Fulfilling that aim, the editors’ selection and organization of the book results in a concise and thoughtful reader, with the pieces offering important perspectives from a variety of vantage points.

The volume begins with an extended introduction to “Governing Migrant Illegality” that sets the stage for the subsequent readings. The editors “broadly (but not exhaustively) map the governing of immigration through crime in the contemporary United States” (p.3, footnote omitted). As the editors state, “in the contemporary United States, undocumented immigration has come to be seen largely as a law and order issue” (p.5, footnote omitted). Much of the public and many political leaders characterize undocumented immigrants as social, economic, political, and national security threats to the nation. In response, the U.S. government has adopted an array of criminal measures to deter undocumented immigration, such as criminalization of immigration violations, increased enforcement (at the border and beyond), immigration raids, additional technology, detention and deportation, and more.

The introduction starts by briefly summarizing the much-publicized 2008 raid at a meat processing plant in rural Postville, Iowa in which most of the immigrant workers were charged criminally for identity theft. The focus on this incident indirectly demonstrates just how quickly immigration enforcement has changed in the last five years. Unlike the Bush administration, the Obama administration is not focusing its interior enforcement efforts on workplace raids. Rather, it has relied heavily on a new “Secure Communities” program, which requires state and local law enforcement agencies to share information about persons arrested with federal immigration authorities. In 2013, it is Secure Communities, not workplace raids, which results in the mass removals of “criminal aliens.”

Importantly, because of the disparate impacts of immigration enforcement on [*210] Latinos, Governing Immigration Through Crime conceptualizes “immigration enforcement as a form of racial governance” (p.18). These impacts can be seen most clearly at the U.S./Mexico border, with deaths of Mexican migrants resulting from border enforcement operations on a regular, predictable basis. Similarly, enforcement measures in the interior of the United States have had disparate impacts on Latinos, who represent approximately 75-80 percent of the persons annually deported from the United States.

Governing Immigration Through Crime recognizes that Latinos and immigrants have contested racialized immigration enforcement. In 2006, tens of thousands of people marched in the streets of cities across the United States in protest of – and ultimately defeated – a tough-as-nails immigration bill passed by the House of Representatives. Since them, undocumented college students known popularly as the DREAMers have pressed the nation for justice, eventually pushing the Obama administration to establish the Deferred Action for Childhood Arrivals program.

The book is divided into five parts. Each part of the book has a short description of the chapters in that section.

Part I, “Law and Criminalization”, outlines in general terms the criminalization of U.S. immigration law. It includes chapters offering insights on Mexican migration to the United States (Nicholas DeGenova), the emergence of the “crimmigration crisis” (Juliet Stumpf), and the national security focus on migration since September 11, 2001 (Jennifer Chacón).

Part II, “Managing Borders”, has chapters on the physical and symbolic meanings of the growing U.S./Mexico “border wall” (Josiah McC. Heyman), the Minuteman Project’s vilification of Mexican migrants (Leo Chavez), and border-crossing deaths (Roxanne Lynn Doty). This part nicely links various enforcement measures, such as the border fence and the growing death toll of migrants in the U.S./Mexico border region.

Part III, “Policing the Interior”, includes chapters on the rise and fall of employer sanctions under U.S. immigration law (David Bacon and Bill Ong Hing), the human and civil rights impacts of Arizona’s immigration enforcement landmark S.B. 1070 (Rogelio Sáenz, Cecelia Menjívar, and San Juanita Edilia Garcia), and local immigration enforcement (including analysis of the passage of Hazleton, Pennsylvania’s much-publicized anti-immigrant ordinance) (Liette Gilbert). Added to the immigration laws in 1986, employer sanctions, which allow for the imposition of civil penalties on the employers of undocumented workers, has to this point failed to deter the employment of undocumented immigrants, thus contributing to political movements favoring state and local immigration enforcement measures.

Part IV, “Detention and Deportation”, includes chapters on the detention of Latinos as part and parcel of immigration enforcement (David Manuel Hernández), deportation and return to the United States of transnational Mexicans (Deborah A. Boehm), and the deportation of immigrants who had made the United States their true homes, aptly termed [*211] “exiled by law” by Susan Bibler Coutin.

Part V, “Immigrant Contestations”, includes chapters analyzing the mass immigration protests, or “La Gran Marcha”, of 2006 (Josue David Cisneros), the undocumented student movement (Robert G. Gonzales), and the use of surveillance strategies by groups seeking to ensure the protection of human rights and security (James P. Walsh).

The various chapters touch on the central issues raised by regulating immigration through deployment of the criminal laws. All of the chapters directly or indirectly criticize the use of the criminal law to regulate immigration to the United States. Their shared conclusion is that Governing Immigration Through Crime is a bad idea. Supporters of the current use of the criminal law to regulate immigration – and even its possible expansion – are not the intended audience of Governing Immigration Through Crime.

Space limitations necessarily require omissions in coverage. However, a few omissions deserve comment. The reader might have benefited from analysis of the most significant criminal immigration program currently in existence – the Obama administration’s Secure Communities program, which has culminated in more deportations than ever in U.S. history. Secure Communities requires state and local law enforcement to share information about persons arrested with U.S. immigration authorities. The program has generated considerable criticism from state and local law enforcement as well as immigrant rights’ advocates. It arguably undermines local law enforcement efforts to obtain the support of the immigrant community in ordinary law enforcement.

In addition, the chapter on Arizona’s S.B. 1070 would have benefitted – perhaps in a postscript, another chapter, or otherwise – from further analysis of the U.S. Supreme Court’s decision in Arizona v. United States (2012). Although striking down three core provisions of S.B. 1070, the Court left intact the law’s most controversial provision, Section 2(B), which requires state and local police to assist in the enforcement of the U.S. immigration enforcement laws. Activists have voiced serious concerns that Section 2(B)’s implementation will result in increased racial profiling of Latinos – U.S. citizens, legal immigrants, and others – in law enforcement.

More generally, one might have thought that a volume on the use of the criminal law in immigration enforcement would have considered the day-to-day immigration enforcement, namely the widespread practice of racial profiling of Latinos. The Supreme Court in 1975 held that “Mexican appearance” could be one of many factors in an immigration stop, a holding that has resulted in the legal sanction of racial profiling in immigration enforcement (United States v. Brignoni-Ponce). Such profiling helps account for the disproportionate stops and arrests of Latinos for immigration (and other law enforcement) violations as well as disparate detention and removal rates (Johnson 2010).

Last but not least, one is left to wonder what impact comprehensive immigration reform might have on the general [*212] phenomenon of governing immigration through crime. Immigration reform has been percolating in Congress for well over a decade. Unfortunately, current proposals on the table would increase, not decrease, the criminal law’s regulation of immigration with, for example, efforts to exclude and remove alleged “gang members.” At the same time, employers could be required to use a computerized database known as E-Verify to check the employment eligibility of all employees, which could make employer sanctions more enforceable and diminish the need for criminal measures.

In conclusion, Governing Immigration Through Crime offers important readings from influential legal and social science scholars critically analyzing the efforts of the United States to regulate immigration through the criminal laws. Although a few recent developments are not covered in the reader, the chapters aptly outline and succinctly criticize the increasing criminalization of immigration law in the United States.

Cross-posted from Justia's Verdict.

In my last column (Part One of this series), I began to lay out what I think might (and should) happen if the U.S. Supreme Court decides that the Proposition 8 sponsors lack standing in federal court.  I explained my view that such a ruling is the best option for the Supreme Court because the voters of California, in enacting Proposition 8, cannot be said to have designated the sponsors as the People's agents-and agency is a key concept here-in that the voters did not do or say anything that manifested their assent to create a relationship of agency.  (It is on this crucial question of assent to agency where, as I explain in longer academic writings, I part company with thoughtful commentators, like Ed Whelan, who have argued that as long as the California Supreme Court today thinks that under the California constitution the sponsors are the People's representatives, it does not matter whether voters, when they enacted Proposition 8 in 2008, could have anticipated this principle of California law, which was not made clear until 2011.)

I also explained in Part One in this series of columns why I believe that if the Proposition 8 sponsors are found by the Supreme Court to lack standing, both the Ninth Circuit's and the District Court's rulings below should be vacated (that is, erased), and the plaintiffs (the two same-sex couples who sued in federal court in San Francisco) should get relief in the form of a "default" judgment that allows them, and them only (for the time being), to get their marriage licenses.  This result follows, I think, from the overall logic of the law in this area, as well as from what the U.S. Supreme Court said in Karcher v. May, in which a unanimous Court intimated that if the only defendant who is defending on the merits is found on appeal to have lacked standing all the while, the district court's adjudication of the merits of the plaintiff's claim should be vacated.

In the space below, I delve further into what might happen after it is determined whether the District Court's rulings should be left intact or undone.

Scenario 1: Judge Walker's Injunction Stands, and Is Read Broadly

Let us first imagine that the federal courts do not follow my suggested approach concerning Judge Walker's order.  I start with that possibility because I acknowledge that many (maybe a majority of) analysts assert (albeit, to my mind, without adequate explanation or justification) that District Judge Walker's injunction prohibiting the enforcement of Proposition 8 should  not be disturbed and should go into effect as is.  Suppose  that the injunction is left intact, and suppose that the injunction is read (as it certainly can be read) to apply not just to the named same-sex couple plaintiffs, but also to other same-sex couples.  What could happen then?

Well, to begin with, we could expect that neither the California Attorney General nor the Governor would contest this broad reading of the injunction.  And we know that the sponsors of Proposition 8 would not have any legal standing to object either (at least not in federal court).  The two county clerks who were named as defendants in the action, the clerks of Los Angeles and Alameda counties, would also probably be content to issue marriage licenses to other same-sex couples in those counties.

But what about the county clerks in other counties, counties that weren't named in the Proposition 8 lawsuit in Judge Walker's court?  If they feel bound by Judge Walker's order, and none complains, then perhaps Proposition 8 will not be enforced at all, and marriage will be available to all qualified same-sex couples in the state.

Yet, there are a few wrinkles here.  First, some individual who supports Proposition 8 might sue one of these county clerks and ask a court to clarify that Judge Walker's injunction does not apply to that clerk.  The plaintiff here might argue that the clerk in question is not bound by Judge Walker's injunction because he, the clerk, was not a party to that lawsuit and is not under the "control or supervision" (the term Judge Walker used) of any of the parties (such as the Governor.)  Any such suit would probably be brought in state court, because it's not obvious who would have standing in federal court to object to a clerk's issuing of same-sex marriage licenses.

Second, it bears noting that some county clerks represent, and have been elected in, counties that strongly support Proposition 8.  What if one of these clerks resists issuing same-sex marriage licenses, arguing that she remains bound by Proposition 8 until and unless a court tells her, specifically, otherwise?  If so, that clerk might then be sued by a same-sex marriage license applicant to get a determination of whether Judge Walker's order binds her.  Or she herself may even act proactively, going into court to ask for a clear ruling that she, the clerk, is not bound by Judge Walker's injunction or, if she is, to ask that the injunction be reopened because she didn't have a chance to participate in the proceedings Judge Walker's court.

This may then raise the question whether local clerks have federal standing to defend Proposition 8 (and remember that they, unlike the sponsors, they are elected officials).  And even if they do, a similar question arises of whether they have the authority to take a position in court that differs from the position urged by the Governor and Attorney General (that Proposition 8 is unconstitutional.)  These two related questions are tricky, and would likely require additional input from the California Supreme Court, which would take time.

My provisional sense is that it should be rare for any lower executive official in California to be able to take a legal position in court contrary to that which is being asserted by the Governor on the question of the meaning or validity of a statewide law; in a seminal ruling in 1981 (when Jerry Brown was Governor the first time!), the California Supreme Court ruled that even the state Attorney General (elected to be the chief legal officer of the state) could not take a position adverse to the Governor's in court because under the State Constitution, the Governor retains the "Supreme Executive power" to determine the public interests, and under state statutes he is to "supervise the official conduct of all executive and ministerial officers."  It may well be that county clerks are deemed executive and/or ministerial officers for these purposes, and thus are subject to gubernatorial control with respect to the positions taken in court.  It wouldn't make much sense, to me, to give locally elected county clerks more authority than the state's chief legal officer, the Attorney General, to defy the Governor in court, unless we conclude that county clerks are autonomous like charter cities, which have some independence from state control.

But as I suggested above, all this would take time to sort out (especially if any of the proceedings take place in federal court, and the federal judges feel the need to seek input from the California Supreme Court by way of certification, the device the Ninth Circuit used to get state court input on the question of sponsor standing.)

Or maybe all of these problems could be avoided if all same-sex couples seeking to be married are willing to go to Alameda or Los Angeles counties where licenses might be freely issued. Perhaps that would effectively nullify Proposition 8.  But it would also impose its own set of inconveniences on some couples.

Scenario 2:  Judge Walker's Broad Injunction Is Either Read Narrowly to Apply to the Named Plaintiffs Only, or Replaced by a Narrower One That by Its Terms Applies to the Named Plaintiffs Only

Now let us imagine that the course that I argue is the correct legal one is followed, and that whatever injunction is in force is issued (or construed) to award marriage licenses to the named plaintiffs only.  Then what?  One possibility is that county clerks, at least in counties that strongly oppose Proposition 8, would simply decide to start issuing same-sex marriage licenses generally even though no court order is directing them to do so.  While that is imaginable politically, I think it runs into legal barriers.  Indeed, that is precisely the action that was taken by the county clerk in San Francisco in 2004 (at SF Mayor Gavin Newsom's urging) but that was repudiated unanimously by the California Supreme Court in Lockyer v. San Francisco.  There, a majority of California Justices emphatically rejected the idea that a "local executive official, charged with the ministerial duty of enforcing [state law,] has the authority to disregard the terms of the [state law] in the absence of a judicial [directive], based solely upon the official's opinion that the [law] is unconstitutional."  So I don't think that county clerks could, or should, simply start disregarding Proposition 8 on their own.

But what if the Governor were to try to direct county clerks not to implement Proposition 8?  Again that might be politically plausible, but would it fly legally?  For starters, what about the Lockyer ruling?  Strictly speaking, the issue presented in Lockyer involved the power of local executive officials, not that of the Governor, but Justice Werdegar's separate writing in that case understood the majority opinion to sweep broadly and apply not just to local executive officials but to the entire executive branch:  "Make no mistake, the majority does . . . hold[] that [all] executive officers must follow statutory rather than constitutional law until a court gives them permission to do otherwise in advance."

Even if the Governor is not covered by the Lockyer opinion, there is still a question under California law about whether locally elected county clerks enjoy some autonomy from gubernatorial control in their performance of their duties.  I suggested above that perhaps a county clerk may not take a position in court that is adverse to the Governor's on the validity of a state law, but there may be a distinction between having control over the legal positions asserted in court, and having control over enforcement of the law itself.

Indeed, such a distinction (between declining to enforce and declining to defend in court) is hinted at in another potentially important piece of law that may constrain the Governor here, Article III, Section 3.5 of the California Constitution.  It provides that no "administrative agency [even one created by the State Constitution] has . . .power . . . to refuse to enforce a statute, on the basis of its being unconstitutional, unless an appellate court has made a determination that such a statute is unconstitutional."  Does this provision prevent the Governor from directing officials (even if they are otherwise under his control) not to enforce Proposition 8 until an appellate court determines Proposition 8 is unconstitutional?

It might, and it might not.  Is the Governor an "agency" within the meaning of Article III, section 3.5?  The Attorney General has issued advisory opinions that offer one possible definition of "agency" here that is broad enough to include, essentially, all state-level executive operations, and there is no doubt that the Governor is quintessentially executive and operates at the state, rather than the local, level.  At least one California court case seems to apply section 3.5 to another statewide elected official, the State Controller.

What about section 3.5's reference to refusal to enforce a statute?  Could one argue that section 3.5 does not apply to the Proposition 8 setting because Proposition 8 is a state constitutional provision, rather than a statute?  I don't think this argument would work.  First, and most important, it would be odd as a policy matter to favor the enforcement of state statutes over state constitutional provisions.  So the word "statute" here would probably be read to also include state constitutional provisions that are alleged to violate the federal Constitution.

Second, there may be an argument that Governor Brown would be refusing to enforce a regular statute-Proposition 22-were he to order the issuance of same-sex marriage licenses. Proposition 22 is the statute (a statutory initiative known as the Knight initiative) banning same-sex marriage that the California Supreme Court held unenforceable when it ruled in May of 2008 that the state constitution protects same-sex marriage.  But since Proposition 8 amended that part of the California constitution that rendered Proposition 22 unenforceable, perhaps one could contend that Proposition 22 is now a valid statute that would be protected by section 3.5.  A rejoinder to that argument could be that since, under the California Supreme Court's May 2008 decision, the Knight initiative was invalid when it was enacted eight years earlier (and we just didn't know that until 2008), it never was-and is not now-entitled to be considered a valid statutory enactment.  This is convoluted stuff.  And, as is true with the first scenario, all of this would have to be fought out in state court, and that would take time.

Finally, let us return to the distinction between the refusal to enforce a law, and the refusal to defend the law in court.  Whether such a distinction is a sensible one to draw, notice again that section 3.5 speaks only to the former, and does not seem to impose a duty on the Governor (even if he is an agency), or the Attorney General, to defend any measure challenged in court.  So, under Scenario Number 2, imagine that a new lawsuit, a statewide class action consisting of all same-sex couples in the state who desire to get married, is brought to challenge Proposition 8 on federal constitutional grounds (just as the two couples did in Judge Walker's court).  If such a class action were to be brought in federal court, and if the Attorney General and Governor were to decline to defend in that case (and assuming no county clerk could successfully intervene and take a position adverse to the Governor's), a default judgment protecting all same-sex couples would then issue, and Proposition 8 would be a dead letter even if were not repealed at the ballot box.  (It is also possible that such a class action could be brought in state court, alleging that Proposition 8 violates the federal constitution, but since state courts would permit the sponsors to defend the measure on the merits there, any ruling in favor of the plaintiffs would be less certain, and more time-consuming, than a default judgment.)

Thus, if the U.S. Supreme Court finds no sponsor standing in federal court, how broadly available same-sex marriage will be in California might still take some time to sort out.

In the space below, I offer some quick analysis of the U.S. Supreme Court's oral argument on Tuesday in Perry v. Hollingsworth, the case in which same-sex couples challenge California's ban on same-sex marriage, the voter-adopted Proposition 8.

The Court Was Presented With a False Dilemma Concerning Sponsor Standing

Over the last couple of years, I have written in a number of essays (including this one) that I think that the Proposition 8 sponsors should not enjoy standing in federal court to defend the measure, even though the California Attorney General and Governor have failed to defend.  As I have explained, the Proposition 8 sponsors were never elected nor appointed by the voters, and are not accountable to them.  For these and various other related reasons, the sponsors are not appropriate representatives for the State of California.  In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time when litigation is conducted.

At Tuesday's oral argument, many of the Justices (up to five or more, and especially the "liberal" Justices Ginsburg and Kagan) seemed to understand these problems, and so there may be a majority of the Court for the proposition that Article III's "case or controversy" requirement is not satisfied in the present situation.  Even if fewer than five Justices find sponsor standing to be a problem, the sponsor standing issue could drive the result of the case.  Imagine a split in which three Justices want to reverse the Ninth Circuit on the merits, three want to affirm on the merits, and three want to vacate the lower court ruling for lack of standing.  Under such a scenario, the three Justices who would prefer to reverse on the merits might nonetheless join the three who want to vacate for lack of standing, simply to erase a problematic Ninth Circuit ruling that they all feel should not remain as the law of the Ninth Circuit.

The best counterargument (and it came up at oral argument), in favor of sponsor standing, is that if sponsors lack standing to defend initiatives, then elected officials can wrongly "kill" initiatives by simply not defending the measures when the initiatives are challenged.  This is especially problematic because the initiative device (in those states that have it) is derived from a concern that elected public officials sometimes do not act in ways that are faithful to the people's interests and desires, such that direct democracy is needed.  And while most initiatives are a response to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials that is represented by the initiative mechanism does not also carry over to elected executive officials like Governors and Attorneys General. (Consider, for example, an initiative limiting the terms of all elected officials, including executive officials. An Attorney General's self-serving decision not to defend such a measure would rightly be viewed with great public outrage.)

So, a few Justices (perhaps especially Justice Sotomayor) worried aloud, if sponsors are not allowed to defend initiatives in federal court, then the initiative device could be gutted.  But this framing of the issue ignores a key middle ground position:  that state law can authorize sponsors to defend initiatives (in a way that federal courts will respect and accept), but the authorization has to be done carefully and in a way the voters can see.

In fashioning a workable balance between the competing concerns presented by initiative-sponsor standing, the federal courts should recognize the possibility of sponsor standing, but only when the conferral of the power to sponsors to defend an initiative is clearly provided for in state law, and addresses some of the theoretical and logistical problems raised by sponsor standing. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, sponsor standing seem inadequate to confer notice on the voters since, as the U.S. Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court's jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative (creating authorities and fiduciary duties that the proponent must honor) as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to  address, among other things:  (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor's power to defend lasts; (3) the question of attorneys' fee liability to be satisfied by public fisc if the defense fails; and (4)   what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative sponsors.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision by the California Supreme Court in 2011, perhaps going forward voters in California should know, and take account of, the fact that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court.  (In this regard, I note that the California Supreme Court ruling might not suffice even going forward, because it did not answer some of the key logistical questions about the length of time a sponsor has power to defend the initiative, etc.)   In any event, because such state law clarity was certainly not in place when Proposition 8 itself was passed in 2008 (and I note here that it was passed by a slim margin), the U.S. Supreme Court could easily conclude that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.  The voters of California in 2008 cannot be said to have appointed persons whom the voters did not even know were being appointed at that time.

The Consequences of a Finding That the Proposition 8 Sponsors Lack Federal Standing

If the Court does dispense with Perry on standing grounds, the Ninth Circuit ruling would be vacated (erased), and the case would go back to the trial court.  The named plaintiffs would (and should) get their marriage licenses (because certainly the government must give a plaintiff the relief she seeks when it defaults, that is, refuses to defend against her challenge).  But the extent to which other Californians would be free from Proposition 8-and when that might happen-depends upon many complexities, including the Governor's reaction to a ruling based on lack of standing, a potential state-wide class action lawsuit, and also the wild-card possibility that certain elected county clerks (these might be the "other people" to whom Chief Justice Roberts referred during oral argument) may be granted standing to defend Proposition 8 if it continues to be enforced in the State yet not defended by the Attorney General and Governor.  The procedural entailments of a Supreme Court ruling on standing grounds are themselves very complicated, and the only reason that they weren't explored much more at oral argument this week was, I expect, the constraint of the limited argument time.

What About the Option of Dismissing the Case Altogether At the Supreme Court?

If the Court doesn't want to reach the merits of the Proposition 8 challenge, it has another option as well-to dismiss the writ of certiorari as "improvidently granted."  Under this approach, the high Court would simply decide, upon closer inspection, that it was a mistake to grant review in the case in the first place, and undo that grant.

A dismissal is possible, but this course of action would need to overcome a few hurdles.  First, ordinarily speaking, for the Court to dismiss a case as improvidently granted (or, to "DIG" it, in Supreme Court parlance), at least six Justices would have to agree.  If four Justices want to keep the case, they typically can, since those same four Justices were all who were needed to grant review in the first place (pursuant to something known as the "Rule of Four.")  To preserve the integrity of the Rule of Four, the Court has traditionally taken the view that at least one of the Justices who voted to grant review (and more than one, if there were more than four votes to grant) would have to be among the majority who want to DIG the case.  And at oral argument, Justice Scalia seemed to believe he spoke for at least four of the Justices who voted to grant review when he suggested that the grant was water under the bridge (his actual words were that "we have crossed that river.")  So unless Justice Kennedy and Chief Justice Roberts both want to DIG the case (assuming one or both initially voted to grant review), mustering a DIG would seem to be hard.

Another reason a DIG may be difficult is that, unlike a ruling that the initiative sponsors lack standing, a DIG would leave the Ninth's Circuit's ruling intact.  The Ninth Circuit ruled that Proposition 8 was constitutionally irrational because: (1) it repealed an existing state-law right to same-sex marriage (rather than simply declined to recognize one); and (2) California had done so much to equalize the treatment of gay and straight couples that it no longer had any good reason for not extending the marriage label to gay couples.  None of the Justices seemed to think that this reasoning made sense.  (Justice Kennedy called it "very odd," and Justice Alito asked if the plaintiff's lawyer was "serious" about this argument.  Even Justice Breyer voiced concern over the perverse incentives it creates.)  Because the Ninth Circuit's ruling could have non-trivial spillover effects in other Western states outside of California and/or externality effects on rights other than the right to marry, many Justices may not want to leave it on the books.

My focus on the procedural issues in Perry in no way suggests the merits discussion at oral argument was unimportant or uninteresting.  But space constraints require that I defer them-and a discussion of the oral argument in the Defense of Marriage Act (DOMA) case, Windsor v. U.S.-until future writings.

Cross-posted from Justia's Verdict.

By Prof. Gabriel "Jack" Chin for ACSblog.

Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder. 

I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).

The Court has made similar arguments with respect to the exclusionary rule, which requires the suppression of evidence seized in violation of the Constitution.  The Court noted that before the exclusionary rule, there was no other realistic alternative to judicial suppression. But now that there is judicial suppression, police agencies train their officers not to illegally search and seize.  Therefore, it is implied, perhaps it is time for the exclusionary rule to go, because the police themselves are training their officers to comply with the law.

The flaw in these arguments is that they do not account for the effects of the laws themselves.  If Section 5 works, the Court should expect it to deter improper electoral changes because they will not be precleared, and thus will never go into effect.  Similarly, an effective exclusionary rule should change police training and policy because police leaders have an interest in teaching officers to develop admissible, as opposed to inadmissible, evidence.  Only if legislators and police are invulnerable to incentives and oblivious to outcomes would they stubbornly adhere to tactics long after they are penalized under law.  

That measures designed to bring about change achieve that change says nothing about whether those measures are no longer necessary.  If burglaries decline for ten years after homeowners install good door and window locks, that does not imply that locks have become superfluous.  If speeds on a road decrease after a speed limit is set and posted, that does not imply that speeds will remain low even if the speed limit were removed.  If laws do not change behavior, there is little point in having them.  If laws do change behavior, that does not necessarily mean that the underlying motivations and values which led to the behavior no longer exist.

Accordingly, the question is not simply whether the law worked, or created incentives to which the lawbreakers responded.  One question is whether the law (or other social forces) has changed public attitudes or conditions on the ground to such a degree that the law is unnecessary.  Another is who gets to decide.     

Section 5’s validity might turn on a prediction about politics -- will jurisdictions which once discriminated leap at the first chance to discriminate again, or will they welcome minority voters with open arms?  The continued existence of racially polarized voting and the political utility to Republicans of suppressing the minority vote -- whether out of malice or simple recognition of how they are likely to cast their ballots -- precludes any confident conclusion that eliminating Section 5 would not revive the practices Section 5 was intended to suppress.  But even if the point is debatable, Congress is in a far better position than is the Court to determine facts, political realities and public attitudes relevant to a prediction about what would happen if Section 5 disappeared.   For this reason, and many others, the Court should defer to the political judgments of the political branches and leave Section 5 as it is.

From Justia's Verdict.

In about six weeks, the Supreme Court will hear oral argument in two potentially blockbuster same-sex marriage cases.  In one case, Hollingsworth v. Perry, the plaintiffs challenge California’s voter-adopted ban on same-sex marriage (Proposition 8), and in the other, United States v. Windsor, the plaintiffs contest the federal Defense of Marriage Act (DOMA), which prevents any agency of the United States from recognizing same-sex marriage for purposes of federal law, even in instances (such as that presented by Windsor) where the state in which the same-sex couple resides itself recognizes the same-sex marriage.

On the merits, both cases involve complex issues of liberty, equality, and (perhaps) federalism.  Yet both cases also present tricky procedural obstacles that might dissuade (or prevent) the Court from reaching the merits.  In the Proposition 8 case, the key procedural question is whether the sponsors of the Proposition 8 initiative have standing under Article III of the U.S. Constitution to defend the measure against constitutional challenge in federal court where, as here, the state elected officials who would normally be expected to defend state laws (the California Attorney General and Governor) have, in this instance, declined to do so.  I have written extensively before (most recently here) about why, even if in some circumstances initiative sponsors should be conferred standing in federal court, I feel that there are good arguments that the Proposition 8 sponsors were never deputized by the voters of California, and thus should not enjoy federal standing in the present case.  In the space below, I analyze the standing issue presented in the DOMA case.

The Background of the Windsor Case in the Lower Courts

Same-sex couple Edith Windsor and Thea Spyer were married in Canada and then moved to New York, where their marriage was recognized as valid.  After Spyer passed away, Windsor sued the United States in federal district court to challenge the federal estate tax that she owed on account of the federal government’s failure (pursuant to the DOMA) to recognize her marriage under federal law.  (Had the federal government considered her marriage valid, Windsor would have been entitled to the marital exemption to the federal estate tax.)

Not long after the suit was filed, the U.S. Attorney General notified Congress that he and the President had concluded that they agree with the position taken by Ms. Windsor, that DOMA is unconstitutional.  The Attorney General stated that the United States would, however, continue to enforce DOMA until it is repealed or definitively declared invalid by the courts.

Because the Justice Department had made clear its intent not to defend DOMA in court challenges (even as it continues to enforce the terms of DOMA), an organization known as the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) sought to intervene as a defendant in the Windsor case in order to present a defense, on behalf of the DOMA and the House, to Windsor’s challenge.  The district court ultimately allowed BLAG to intervene in the case, and then ruled in Windsor’s favor on the merits.  The Department of Justice and BLAG both appealed to the United States Court of Appeals for the Second Circuit, although the DOJ continued to assert its agreement with Ms. Windsor on the merits of her challenge.  The Second Circuit affirmed the district court on the merits, and the Department of Justice asked the Supreme Court to take review.  The high Court granted review, but in so doing asked for briefing on whether BLAG is a proper party in the case under Article III of the federal Constitution and (if not) whether the agreement between the plaintiff and the United States government on the merits of the lawsuit prevents the Court from rendering an opinion on those merits.  The Court then appointed law professor Vicki Jackson of Harvard to provide briefing on these questions of standing and justiciability.

An Analysis of the Arguments Advanced in Professor Jackson’s Brief

Professor Jackson filed her brief a few weeks ago, in which she argued that BLAG does not enjoy standing in federal court to defend the DOMA, and that in the absence of BLAG, the agreement between the U.S. government and Windsor should prevent or disincline the Court to address the merits of the dispute.  (Of course, BLAG will respond with its own brief.)

As to the crucial question of BLAG’s ability to defend the DOMA when the executive branch won’t, Professor Jackson correctly identifies the 1983 Supreme Court case of INS v. Chadha as a key precedent in the area.  There, the Court permitted the House and Senate to defend the federal statutory device known as the “legislative veto” when the federal executive branch refused to defend the device against constitutional challenge by a private person.  A legislative veto is a mechanism by which one or both houses of Congress can, without involving the President, effectively block executive branch action after it has been taken but before it has gone into effect.  In Chadha, the challenger and the federal executive branch both believed that the legislative veto gave Congress authority beyond what the Constitution conferred, and in so doing violated the principle of separation of powers.  (On the merits, the Supreme Court agreed with the challenger and the executive branch, and invalidated the legislative veto in question there.)

Professor Jackson argues that the ability of the House and Senate to defend in Chadha is distinguishable from BLAG’s ability to defend in the DOMA case, for three reasons:  (1) the statute being challenged in Chadha was one that conferred on each house of Congress particular powers (the ability to veto executive actions), and so Congress had a “special legislative prerogative” in defending the legislative veto, above and beyond the interest Congress has (presented by BLAG) in defending all congressional enactments; (2) both Houses of Congress participated in Chadha, whereas BLAG, at most, represents only the House of Representatives; and (3) in Chadha, pursuant to a federal statute, each house of Congress explicitly authored its chamber’s participation in the lawsuit, whereas there is no federal statute authorizing the House to participate, and the House of Representatives itself did not explicitly authorize BLAG to represent it until after the lower court had already processed Ms. Windsor’s case.

The first distinction is quite interesting.  On one hand, the executive branch is in a particularly awkward position when it is asked to defend a statute that is not only arguably unconstitutional, but unconstitutional precisely because it invades the province of the executive branch vis-à-vis the legislature.  In such circumstances where there is an institutional conflict of interest, it may be hard for the executive branch to give a robust defense, and we may not want to encourage the executive branch to defend the statute in a half-hearted way, but instead encourage (by allowing Congress to defend itself) the executive branch to stay out of the dispute altogether.  (Notice that for these purposes, I am refining Professor Jackson’s first proffered distinction to focus not on the aggrandizement of congressional powers, but rather on the invasion of the executive’s powers.  If Congress, for instance, tried to assert new powers to veto actions of the judiciary, the executive branch would not be placed in an awkward position, and so I think that the justification for congressional standing would be weaker than in Chadha, even though both settings might technically satisfy Professor Jackson’s criterion of the presence of a special legislative prerogative.)

On the other hand, Congress’ interest in having its laws defended certainly is not limited to those laws that specially empower Congress; many statutes that regulate or empower persons outside of Congress are very important to the congressional agenda as well.  Moreover, four years after Chadha—in a case in which the Supreme Court held that a state legislature enjoyed standing in federal court to defend a measure when the state executive branch declined to do so, Karcher v. May—the statute at issue had nothing to do with expanding legislative powers, but instead required public schools to observe a moment of silence (which challengers argued violated the Establishment Clause of the First Amendment).

Professor Jackson tries to deal with Karcher on this point by asserting that because federal separation of powers principles “do not necessarily apply to the organization of state governments, judicially cognizable injuries for congressional and state legislators may differ.”  It is true that state constitutions may permit state legislatures to do things that Congress cannot, but if the question is—as Professor Jackson rightly says it is—whether a legislature has any distinct interest that it is allowed to vindicate in federal court, Karcher does make it harder, though perhaps not impossible, for the Court to draw the first distinction that Professor Jackson offers.

Professor Jackson’s second and third bases for distinguishing Chadha are cleaner, I think.  The second distinction—the need for both Houses of Congress, and not just one, to be involved before legislative standing is allowed—does draw support from the facts of Chadha (and those of Karcher, for that matter, where the leaders of both chambers of the New Jersey legislature intervened to defend), and also from the fact that Article I of the U.S. Constitution vests legislative power in a single “Congress,” to be comprised of two chambers.  In the DOMA context, the House has no greater interest in defending the measure than does the Senate, so that the Senate’s absence from the litigation arguably undermines the House’s claim to judicial redress.

And as to the third basis for distinguishing Chadha—the need for actual authorization of a legislative chamber before anyone can assert federal standing on its behalf—Chadha is also quite different from the present situation, because both the House and Senate in Chadha explicitly authorized participation in the lawsuit.  Moreover, although Professor Jackson’s brief doesn’t discuss Karcher in this regard, Karcher (even though it undermines Professor Jackson’s first distinction) is the best support for her third distinction—that formal authorization is required.  In refuting the argument that leaders of the New Jersey legislature could not assert legislative standing because they were not authorized to do so, the Court in Karcher explicitly discussed how New Jersey law empowered the leader of each chamber to represent the body in court, and pointed out that the participation of the legislative leaders in that case was premised on that legislative authorization.  Thus, in perhaps what is the Court’s most extensive discussion of legislative body standing (more elaborate than anything the Court said in Chadha), the Court indicated the need for authorization by the body in question for that body to participate.  This is particularly important, because the Court has often observed that what it has done with regard to justiciability issues in past cases is much less important than what it has said when it was explicitly addressing such issues.

As an aside, I note that in concluding in Karcher that New Jersey law authorized the legislature to participate when the executive branch isn’t defending, the Court cited a New Jersey case that really didn’t support the U.S. Supreme Court’s conclusion: the New Jersey case that was cited involved the legislature participating alongside the executive branch, not in lieu of it, in defending a state statute.  But even if the U.S. Supreme Court’s reading of New Jersey law was flawed, the important point here is the Court’s insistence that there be legislative authorization before legislative body standing can be permitted.  And, in the present case, as Professor Jackson points out, the House’s formal approval of BLAG’s representation of it did not come until very late in the day—indeed, after the Supreme Court had granted cert.  Moreover, there is no federal statute, akin to the state law the Court found to be present in Karcher, that authorizes the House to be involved at all.

How Will the Court Resolve the Issue of BLAG’s Standing or Lack Thereof?

 None of this is to say Professor Jackson’s arguments will necessarily carry the day.  As noted above, BLAG will have a chance to present its counterarguments.  Moreover, because the Supreme Court itself hasn’t been careful and/or fully explanatory in cases in which it has permitted individuals outside the executive branch to defend congressional statutes when the executive branch won’t, the Court is writing on a slate with some support on both sides of the ledger, and that gives it some wiggle room to support a decision either way.

 For example, in Dickerson v. U.S., the federal executive branch and the criminal defendant both agreed that the statute on which the Court of Appeals had relied was unconstitutional, and the judgment below should be reversed.  And yet the Supreme Court nonetheless reached the merits of the case, by appointing a law professor to write a brief defending the statute.  It is true, as Professor Jackson points out, that Dickerson (unlike Windsor) was not a case in which the United States sought Supreme Court review, but the fact remains that the Supreme Court in Dickerson resolved the merits of the dispute, without ever explaining why a “case or controversy” within the meaning of Article III was in existence at the time of its ruling, in light of the fact that both parties agreed that the law was unconstitutional and that the result below was wrong.

Another case that creates additional murkiness is the 2011 decision in Camreta v. Greene, in which the Court said that individual executive branch government officials had standing to appeal a decision by a lower court that had ruled in their favor on a damage claim against them, but that had also found their actions unconstitutional, because the officials had a cognizable interest in being able to perform their public duties unburdened by a wrongheaded judicial ruling.  If individual executive branch officials (as distinguished from the executive branch representing the government more generally) have such an interest in being able to do their jobs the way that they want to and think is permissible, then why shouldn’t individual legislators or legislative chambers have the same interest?  Members of Congress want to be able to do their jobs—vote on bills—without being affected by wrongheaded judicial rulings, and yet individual members of legislatures clearly have no standing.  In short, the Court has not been clear or coherent in this corner of standing law, any more than it has in the overall doctrine of Article III standing. (Indeed, the Court has never adequately explained what the specific objectives of standing and other justiciability doctrines should be, and instead has offered only vague invocations of separation of powers.)

Still, this softness in standing doctrine may be something that the Court can use to its advantage.  My guess is that the Court is not particularly eager to take up the merits of the DOMA case and has granted review only because a few federal appeals courts had held the DOMA invalid. By contrast, had the lower courts upheld the DOMA, I would have been surprised to see the Court grant review.  The Court’s disinclination to resolve the DOMA merits may stem in part from the fact that—unless the Court were to strike down the DOMA purely on federalism grounds, as the First Circuit seemed to do—any ruling either upholding or invalidating the DOMA would likely have significant analytic implications for the laws in all the dozens of states that ban same-sex marriages.  And the Court may not want to resolve the legality of all these state laws until more states come to rest on this question.  (That is why the Court may be similarly hesitant to resolve the merits of the Proposition 8 case.)  For these reasons, I won’t be surprised if the Court (or a large enough number of individual Justices on the Court) effectively defers these cases and avoids issuing dispositive rulings on the merits using the flexible justiciability doctrine.  Such a move may buy the Court only a few years, but on this social question in particular, the pace of change across the national landscape has been remarkably rapid.

With co-author Alan E. Brownstein. Cross-posted from Justia's Verdict.

Two of the biggest storylines from last month’s elections involved battles over same-sex equality rights and the decriminalization of marijuana.  On the surface, these two topics seem to have little in common.  But the intense controversies they are generating on the American political landscape arise from a similar kind of generational and demographic divergence of attitudes between older, whiter, Red-state voters on the one hand, and younger, more racially diverse and more Blue-state voters on the other.  Both issues also raise prominent questions about federalism:  the relationship between state laws and state experimentation with federal supremacy and uniformity.  And, as we explain in more detail in this column, the two controversies continue to be connected in unnoticed and unexpected ways.

SB 1172—California’s Attempt to Rein in Sexual Orientation Change Efforts (SOCE)

Take, for instance, an important legal development in the same-sex equality arena. We speak here not of the important decisions by the U.S. Supreme Court two weeks ago to accept review in cases involving California’s ban on same-sex marriage, Proposition 8, and the federal law defining marriage for federal purposes as being between only a man and a woman, the Defense of Marriage Act (DOMA).  Instead, we are referring to a recent pair of federal district court decisions from Sacramento addressing constitutional challenges to SB 1172, an attempt by California to protect gay and lesbian teens by prohibiting mental health providers from engaging in so-called “conversion therapy.”

Finding that “[a]n individual’s sexual orientation, whether homosexual, bisexual, or heterosexual, is not a disease, disorder, illness, deficiency, or shortcoming,” and that “there is no evidence that any type of psychotherapy can change a person’s sexual orientation,” California lawmakers amended the State’s Business and Professions Code to prohibit these providers from undertaking “sexual orientation change efforts” (SOCE) with minors—defined as persons under the age of 18. The term “mental health provider” in the statute applies to a long list of state-licensed or state-registered mental health care professionals, such as psychiatrists, psychologists, and clinical social workers, as well as any other person who is designated a mental health professional under California law. “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation.

SOCE methods vary.  Some therapies, described as aversion treatments, involve the use of negative reinforcements including induced nausea, electric shocks, shame aversion and other aversion techniques.  Non-aversion treatments include the use of hypnosis and various educational and therapeutic efforts to facilitate and reinforce other-sex sexual behavior.

A number of affected mental health professionals sued to block the law’s enforcement on the ground that, because SOCE efforts often take the form of communication between therapist and patient, the First Amendment prevents the state from regulating what the content or substance of that communication can be.  One district judge (William Shubb) issued an injunction against the law’s implementation, agreeing with the plaintiffs’ argument, and another district judge (Kimberly Mueller), in a separate but similar lawsuit, declined to block the law, finding that its enforcement was unlikely to violate anyone’s free speech rights.

Importantly, whether one agrees with Judge Shubb or Judge Mueller depends in large part on how one interprets a decade-old case from the U.S Court of Appeals for the Ninth Circuit that involved, you guessed it, state decriminalization of marijuana.

The Central Importance of a Marijuana Case to the Cases Relating to SOCE

The 2002 marijuana case, Conant v. Walters, involved a challenge to then-U.S. Attorney General John Ashcroft’s policy of threatening federal investigation and revocation of federally granted prescription privileges for any doctors who “prescribe or recommend” to their patients the use of marijuana for medical purposes. The dispute arose because, in 1996, California adopted an Initiative (Proposition 215) that changed the State’s penal laws to decriminalize the use of marijuana by individuals who use the drug upon “recommendation” of a physician.  The Ashcroft Justice Department conceded that a state may choose to decriminalize whatever it wants to, under state law: What is criminal under California’s law is for California to decide. But Ashcroft pointed out that any possession and use of marijuana – which is federally classified as a Schedule I controlled substance, for which there are no permissible uses – remains a violation of federal criminal law, no matter what the status of marijuana use may be under state law, and no matter whether the marijuana use is medically-related or not. (The U.S. Supreme Court later upheld this federal law, the Controlled Substances Act, or CSA, against a challenge contending that Congress did not have the power to regulate local, medicinal marijuana possession and use in 2003, in the well-known Gonzales v. Raich case.)

Based on the CSA, the Justice Department argued in Conant that a doctor who prescribes for, or recommends to, patients the use of such Schedule I controlled substances has forfeited his privilege to prescribe narcotics, a federally conferred license reserved, under the CSA, for doctors who act in the “public interest.”

The Ninth Circuit in Conant blocked the Ashcroft policy, with two judges opining that by prohibiting recommendations, the federal policy impermissibly interfered with the First Amendment rights of doctors to communicate with their patients.  The third judge, Alex Kozinski, who is often characterized as having libertarian instincts, joined in this First Amendment reasoning, but also argued that the Ashcroft policy violates the “new Federalism” cases—decided by the Supreme Court over the last few decades—that try to insulate state government from federal bullying. (More on that later.)

Why Conant Was Problematic Under First Amendment Theory and Doctrine

One of us (Vik Amar) wrote an essay that was rather critical of the Conant case when it came down.  Although the Ninth Circuit’s First Amendment arguments had surface plausibility, they did not withstand careful scrutiny:

As to the free speech rationale, the Ninth Circuit failed to satisfactorily acknowledge that the First Amendment has traditionally allowed the government to regulate the professions in content-based ways. There may be a right to speak out in favor of medical marijuana, but that does not mean there is a right to do so as a doctor.

Imagine, for example, that a lawyer—rather than a doctor—was “recommending” to his client the use of an illegal drug. Even though such a recommendation would be “protected” by the First Amendment in that the lawyer could not be arrested and jailed for his speech (unless he was inciting his client to imminent unlawful conduct), there is no serious question but that the lawyer could be disciplined by the State Bar (and possibly stripped of his license to practice law) on the basis of his actions. This discipline and disbarment would be completely consistent with the First Amendment.

None of this is to say that government can dole out prescription privileges based on political viewpoints or party affiliations or government loyalty oaths. Clearly, some content-based conditions attached to the privilege of practicing medicine would violate the First Amendment.

Moreover, if government is forcing or encouraging doctors to give inaccurate or misleadingly incomplete information to patients, then free speech and privacy principles may converge to call such regulation into constitutional doubt. For example, in the famous and controversial case of Rust v. Sullivan, where the Supreme Court upheld by a 5-4 vote the so-called abortion gag rule imposed on doctors receiving federal funding, the Court did not adequately address the way in which the conditions imposed on doctors may have led them to affirmatively mislead their patients.

After reflecting on the questions raised by Conant for a decade, both of us continue to think that, as a general matter and putting aside partisan manipulation and/or fraudulent speech, the regulation of professional conduct generally, and the regulation of medical practice in particular, does not (or at least should not) raise free speech concerns that require rigorous judicial review.

First, conceptually, it is often necessary to distinguish between speech acts and speech, between speech that is part of a course of conduct and speech that that is essentially and exclusively speech for First Amendment purposes. Sometimes these can be hard cases. But in cases involving professional regulation, they are often relatively easy to resolve.

Take one profession adverted to above—the legal profession.  Lawyers talk a lot. Indeed, much of what they do is undeniably describable as communicating. They argue in court to judges orally and in writing. They negotiate with other lawyers. They offer advice to clients. But the practice of law is heavily regulated. Lawyers are subject to a rigorous code of professional responsibility. The briefs they file in court are restricted as to size and content. The arguments presented in court are subject to judicial orders and judicial discretion. It is hard to imagine how the provision of legal services could operate even remotely smoothly if every rule and every judge’s decision limiting lawyer speech in some way required compelling justification because it was subject to rigorous judicial review under the First Amendment.  Instead, the practice of law is understood to constitute professional conduct—not speech—and the regulation of the practice of law thus rarely raises free speech issues.

Second, and more specifically to the SOCE case, it should be obvious that the entire history and tradition of common-law and statutory regulation of the medical profession flies in the face of any contention that the licensing or control of medical practice by state authorities violates free-speech guarantees.

Consider another example, this one involving health care professionals. Joe goes to Dr. Smith complaining of back pain. Dr. Smith tells Joe to go home and engage in a series of stretching exercises to cure his discomfort. Joe does so but his condition deteriorates. In fact, accepted medical practice rejects the stretching exercises recommended by Dr. Smith because of the excessive risk that performing such exercises would render most patients’ back problems considerably worse.

If Joe sues Dr. Smith for worsening his back pain, he would be bringing a conventional medical malpractice case. In such a case, Joe can recover civil damages against Dr. Smith if he can prove that Dr. Smith acted negligently (unreasonably) in his provision of medical services to Joe. Generally speaking, what constitutes accepted medical practice in the community sets the standard of reasonable care in a medical malpractice case, and a jury will be asked to determine whether Dr. Smith’s treatment failed to satisfy that standard of care.  And if Dr. Smith continued to tell patients with back problems to engage in these problematic stretching exercises, he would probably be called to account and disciplined by the State Medical Board.

Obviously, in this case, Dr. Smith’s recommended course of treatment involves speech. However, no one would think that this case raises a free-speech problem. There is no history or tradition suggesting otherwise. If the punishment of doctors who practice quackery had to be rigorously evaluated under the First Amendment lens, every malpractice judgment in a case like this one would have to be reviewed under strict scrutiny. The plaintiff or the State would have to persuade the court that the specific standard of medical care accepted in the state was much more than a reasonable way to promote public health. Instead, the court would have to be convinced that the standard of care was the least restrictive way to further a compelling state interest—an extremely difficult burden of justification to satisfy.  Put simply, this is not the way courts do, or should, treat medical malpractice or medical discipline cases.

Finally, there are important federalism concerns at stake here. While the federal government has the power to regulate medical practice (and that is why Conant probably was wrongly decided), for the most part, the regulation of the medical profession is a matter of state and local concern. Not all states may choose to regulate doctors in the same way. Standards of care may vary from state to state. Some states may follow California in prohibiting SOCE as a medical treatment. Other states may decide otherwise.

If the regulation of medical treatment involving speech requires federal constitutional review, however, control over the regulation of medical practice in these cases shifts from the state to the federal government, and from the legislature to the judiciary. It is federal judges who will decide whether the standard of care implemented by state medical boards or interpreted by local juries can be justified.  Federal judges would determine whether the harm allegedly caused by SOCE is adequately proven, or whether the harm caused to some patients by SOCE is outweighed by the alleged benefits experienced by other patients. And the decisions of those federal judges would be binding on every state subject to their authority. If this occurred, the dramatic expansion of free-speech doctrine (by its application to professional conduct involving speech) would substantially displace democratic decisionmaking and state autonomy.

Limiting and/or Distinguishing Conant in the SOCE Setting

We should note here that Conant was no model of clarity, and thus its application to the SOCE dispute could continue to generate differences of opinion, just as it did in Judge Shubb’s and Judge Mueller’s courtrooms. There is much language in Conant that could be read expansively to suggest that all communications between a physician and her patient, in the course of the provision of medical services, is protected by the free speech clause of the First Amendment and that, as a result, virtually any regulation of such communications must be justified under rigorous constitutional review.

But other parts of the Conant opinion suggest a more limited analysis. The Ninth Circuit conceded that recommending the medical use of marijuana should not be understood to be the same thing as aiding and abetting a violation of the Controlled Substances Act (which Congress could legitimately punish).  Recommending is not prescribing, said the Ninth Circuit.  Recommendation of marijuana does not necessarily make marijuana use a part of the ongoing medical treatment provided by the physician to his patient.

Pursuant to this argument, a physician recommending marijuana to his patient with the words, “You might consider marijuana as a way to control your nausea,” would be protected by the First Amendment. It would be a different case, however, if the physician instead told his patient, “This is what I want you to do. Purchase some marijuana. You can buy some at the dispensary on 4^th St.  Whenever you feel nauseous, you should smoke a joint. Come back in two weeks and we will evaluate your course of treatment.”

We do not think this distinction really should have mattered in Conant, since both kinds of recommendations are undertaken by the doctor as part of his professional treatment of the patient, so that what is being regulated by the federal government was the conduct of the delivery of treatment services, rather than speech itself.  But we do acknowledge that because the Conant opinion seems in some places narrowly tailored to the specific regulation at issue there, it is not clear whether the Ninth Circuit would want Conant to extend the scope of the First Amendment protection of professional conduct to reach the SOCE situation.

Thus, while poorly written sections of the Conant opinion may justify an expansive interpretation of that decision—and it is understandable that Judge Shubb read it that way—there is also a plausible doctrinal argument for limiting the scope of Conant and distinguishing it from the free-speech challenges brought against SB 1172 and the regulation of SOCE. This is the approach taken by Judge Mueller—who pointed out that SB 1172 explicitly focuses on, and prohibits, the conduct of delivering a particular medical “therapy” or treatment—and it is one that the Ninth Circuit itself may embrace when it analyzes Conant if the SOCE cases are appealed (as is likely).

Another Important Link Between Conant and Same-Sex Equality, This Time in the DOMA Context

There is another important sense in which Conant—a marijuana case—may bear on same-sex equality cases, in particular, the DOMA case on which the Supreme Court recently granted review.  In Conant, Judge Kozinski argued in his concurrence that by revoking doctors’ licenses, the federal government was preventing California from decriminalizing marijuana in its chosen way. “In effect,” wrote Kozinski, “the federal government is forcing the state to keep medical marijuana illegal. [And] preventing the state from repealing an existing law is no different from forcing [it] to pass a new one [which everyone agrees the federal government cannot do]; in either case, the state is being forced to regulate conduct that it prefers to leave unregulated.”

As one of us (Vik Amar) explained when Conant came down, this reasoning is open to serious question:

If the federal government were forcing California legislators or police to regulate on its behalf, there would be a problem under existing Supreme Court cases. But the feds are doing no such thing. Instead, they are simply regulating doctors themselves, and telling California that it may not immunize doctors from otherwise valid federal regulation.

To see the fallacy of Judge Kozinski’s argument, imagine that California had decriminalized marijuana use not on a recommendation of a doctor, but rather only if a doctor participates in the actual administration of the drug (on the theory that only a doctor can ensure the dosages are truly medicinal.)

Certainly a doctor who assists a patient in actually using the marijuana can be regulated under federal law, notwithstanding that this federal regulation may displace – and thus make difficult the accomplishment of – California’s objectives. But if the feds can regulate doctors’ administration of marijuana in the face of California’s wishes, why can’t the feds regulate doctors’ recommendation” of marijuana even though California would prefer otherwise?

Whether Judge Kozinski’s argument was convincing or not, we observe today that it is quite similar to, and indeed in some ways the precursor of, the argument embraced by the U.S. Court of Appeals for the First Circuit in its case invalidating the DOMA: that by not recognizing same-sex marriages entered into in Massachusetts, the federal government was burdening and impeding Massachusetts’ decision to recognize same-sex marriages in violation of federalism principles.  The federalism argument in the marriage context may be more plausible than in the marijuana context (because marriage has traditionally been much more a function of state than federal law), but the analogy between the two settings remains, and those on both sides of the DOMA debate would profit from reading and assessing Judge Kozinski’s analysis in Conant.

Cross-posted from Justia's Verdict.

One of the most closely watched cases—if not the most closely watched case—on this year’s Supreme Court docket is the challenge to the University of Texas’ race-based affirmative action program, Fisher v. University of Texas.  In Fisher, the Court will decide whether the Constitution leaves any room for public universities to use the race of individual student applicants in the admissions process. To put the point more technically, the Court will decide whether the “strict judicial scrutiny” applied to such programs is always fatal or, instead, allows a narrow space for public institutions to undertake such programs in order to enhance the racial diversity of the student body.

Assuming that the Court does not entirely foreclose race-based affirmative action in Fisher (and, as I explained in an earlier column, Justice Anthony Kennedy, whose vote will probably be dispositive, is unlikely to go that far), the Court will then likely have to take up another affirmative action case, this one recently decided by the Sixth Circuit Court of Appeals sitting en banc.

The Sixth Circuit case, Coalition to Defend Affirmative Action v. Regents of the University of Michigan, focuses not on whether a state may permissibly make use of race-based programs, but rather (somewhat non-obviously) on how a state that tries to abolish affirmative action may, in doing so, violate the Constitution.

The Background of Michigan’s Proposal 2, and the Sixth Circuit’s Coalition to Defend Affirmative Action Case

The Sixth Circuit’s en banc decision, handed down about a week after last month’s election, invalidated Proposal 2, a voter-initiated amendment to the Michigan Constitution.  Proposal 2, adopted six years ago, was itself seemingly prompted by the Supreme Court’s 2003 ruling in Grutter v. Bollinger.  In that case, involving a race-based admissions program used by the University of Michigan law school, the Court, by a 5-4 vote, held that although a state’s use of race to classify individuals is “suspect” and triggers “strict judicial scrutiny” under the Equal Protection Clause of the Fourteenth Amendment, a narrowly tailored plan in which the race of higher education applicants is considered alongside numerous other factors, in order to admit a critical mass of minority students, is a permissible way to accomplish the compelling government interest of ensuring a diverse law school student body.

Proposal 2 responded to Grutter by amending the Michigan Constitution to completely forbid Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity or national origin.” Proposal 2 thus attempted to close, as a matter of state constitutional law, the small window of federally permissible race-based affirmative action that had been identified in Grutter.  The 8-7 en banc ruling by the Sixth Circuit (following up on a 2-1 ruling by a three-judge panel of the same court earlier this year), reflects an attempt to keep that window open, at least for the moment.

To understand the Sixth Circuit case and the issues it raises, let us start by remembering that most race-based affirmative action programs are in no way required by the Constitution—and indeed are, as noted above, assessed by the courts under a stringent standard dictated by the Fourteenth Amendment.  The programs at issue, designed to diversify public institutions (and also perhaps to provide some remedy for past discrimination against racial minorities), are voluntary, in that nothing in the federal Constitution requires their existence.  How then,  readers may wonder, can their abolition be even arguably problematic under the federal Constitution?

The answer, derived from a group of Supreme Court cases decided a generation ago, lies in the fact that sometimes programs (like affirmative action) that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult.  And when minorities are subjected to greater political obstacles in the adoption (or readoption) of the programs they might support than are other groups, such disparate political-process treatment, said the Supreme Court, raises equal protection problems.

Consider, for example, the 1969 Supreme Court case of Hunter v. Erickson.  In Hunter, the people of Akron, Ohio—responding to an ordinance that prohibited racial discrimination in housing that had been enacted by the City Council—amended the city charter to prevent the implementation of any such ordinance that had failed to gain the express approval of a majority of Akron voters.

The amended charter defined the ordinances that were to be subject to the newly created popular-approval requirement as those laws regulating real estate transactions “on the basis of race, color, religion, national origin or ancestry . . . .”  The charter amendment, the Court pointed out, “not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required approval of the electors before any future [housing discrimination] ordinance could take effect.”

By an 8-1 margin, the Justices struck down the charter amendment as a violation of equal protection. The Court declined to rest its decision on a finding of racist intent on the part of voters (which today would be a conventional rationale for invalidating laws that seem to reflect invidious attitudes towards racial minorities). Instead, the Court nullified the law because it effectively drew a “racial classification [which] treat[ed] racial housing matters differently [and less favorably]” than other matters.

The Court found it crucial that the law, while neutral on its face in the sense that it drew no distinctions among racial and religious groups, would nonetheless uniquely disadvantage the beneficiaries of antidiscrimination laws—racial minorities—by forcing such laws to run a legislative gauntlet of popular approval that other laws, and thus other interest groups, were spared.

A dozen years later, in Washington v. Seattle School District No. 1, the Court applied and extended Hunter in a way that has direct implications for the Sixth Circuit’s treatment of Proposal 2. The essential background of the Seattle case is this: In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used pupil reassignment and busing to eliminate one-race schools.  The Seattle program, in turn, prompted the people of Washington State to enact Initiative 350.

On its face, Initiative 350 provided broadly that “no school board . . . shall directly or indirectly require any student to attend a school other than [the geographically closest school].” The initiative, however, then set out so many exceptions to this prohibition that the effect on local school boards was to bar them from ordering reassignment or busing for the purpose of racial integration, but to permit them to order reassignment or busing for all other educationally valid reasons (sibling attendance, access to particular educational programs, etc).

By a 5-4 vote, the Court struck down the plebiscite. As in Hunter, the Court declined to rest its holding on a finding of invidious intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because it singled out racial busing—a program of particular importance to racial minorities—and moved it from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success; if racial busing—but racial busing alone—were ever to be reenacted anywhere in the state, its proponents would need to lobby and win at the state, rather than the local school district, level. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court held, denied such minorities the equal protection right to “full participation in the political life of the community.”

In both of these cases, the Supreme Court applied (with varying degrees of clarity) a two-pronged test: First, someone who challenges a given law must show that the law in question is “racial” or “race-based” in “character,” in that it singles out for special treatment issues that are particularly associated with minority interests.

Second, the challenger must show that the law imposes an unfair political-process burden with regard to these “minority issues” by entrenching their unfavorable resolution at a level, or in a process, of state government where it is distinctively hard for minorities to prevail.

Strict scrutiny is triggered only if the challenger satisfies both parts of the test. A law that imposes special political-process burdens on classes that are not associated with race does not directly implicate the cases.  Similarly, a law that deals explicitly with “racial” issues but does not impose any entrenching political process burdens—for example, a law that simply repeals pro-minority policies at the same level of government at which they were originally enacted—is also unproblematic.

The Sixth Circuit’s Application of the Hunter-Seattle Doctrine

Utilizing this two-part test, the Sixth Circuit concluded that Proposal 2 was constitutionally flawed. First, it held that the measure was racial in character, in that it dealt specially with an issue—race-based affirmative action—that is of distinctive interest and benefit to racial minorities. Indeed, the racial busing programs in the Seattle case were just one type of “voluntary” race-based affirmative action; if elimination of those programs affected minorities especially, then elimination of the broader category of which they were a part would seem to do so, as well.

Moving to the second part of the test, the Sixth Circuit held that Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government—that of the state constitution—at which minorities are less likely to succeed than they are at lower levels, such as local government or university administration. Although Michigan is free to repeal affirmative-action programs, the Sixth Circuit suggested, it cannot repeal such programs at a level higher than the one at which those programs were initially adopted, just as the State of Washington could not repeal racial busing at the statewide level, rather than the local level.

As the Sixth Circuit explained in its opening sentences, “[a] student seeking to have her family’s alumni connections considered in her applications to one of Michigan’s . . . public universities could do one of four things to have the school adopt a legacy-conscious admissions policy:  she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution.  The same cannot be said for a black student seeking adoption of a constitutionally permissible race-conscious admissions policy.  That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive and arduous process—to repeal the consequences of Proposal 2.  The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

What Is Likely to Happen in the Supreme Court

The Sixth Circuit’s reasoning is careful, and its result is defensible under current law; there really is a powerful logical sense in which the structure and reasoning of the Seattle case applies with full force to doom Proposal 2.  But the case will almost certainly be presented to the Supreme Court, and unless the Court eliminates race-based affirmative action entirely in Fisher, the Court will most probably grant review.  The Sixth Circuit en banc ruling openly disagrees with a Ninth Circuit case from the 1990s in which that court upheld California’s state- constitutional ban on race-based affirmative action (Proposition 209) in the face of a Hunter-Seattle challenge.  Many observers (myself included) thought that the Ninth Circuit’s reasoning did not convincingly distinguish the Seattle case or otherwise explain why that case did not control, but that is neither here nor there now that there is a sharp circuit conflict that the Supreme Court will likely feel the need to resolve.

And when the Court takes the Proposal 2 case, I would expect Proposal 2 to be upheld, perhaps overwhelmingly, by the Court.  Why?  For starters, none of the Justices who were on the Court at the time of the Seattle case are still there. Stare decisis applies, to be sure, but stare decisis may tend to have more weight when some member of the Court who voted in the majority in the original case is present to defend it when the Court revisits the matter.  It also bears noting that the “liberals” on the Court today (e.g., Ruth Bader Ginsburg, Steve Breyer, Elena Kagan) are not nearly so liberal as the liberals who were on the Court in the early 1980s (e.g., William Brennan, Thurgood Marshall).  (We saw some evidence of that last Term, in which Justices Breyer and Kagan joined in the 7-2 invalidation of the Medicaid spending conditions that were at issue in the Obamacare case.)

Not only has the Court’s personnel evolved; so has its doctrine.  The Seattle case and its underlying reasoning would not appear to reflect current thinking at the high Court. Over the past twenty years, City of Richmond v. J.A. Croson (an affirmative action case involving the City of Richmond) and its progeny have justified strict scrutiny for purportedly “benign” race-conscious programs by emphasizing (among other things) certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others).

These cases reflect an equal protection doctrine that embraces formally symmetrical rules governing members of all races, and the cases seemingly downplay the significance of traditional contextual concerns, such as the political powerlessness or historical oppression of racial minorities in particular.  The “feel” of these recent decisions thus diverges from the more nuanced and asymmetrical “feel” of Hunter and Seattle. It is for that reason that I have elsewhere written that Hunter and Seattle may not “make[] sense in today’s world.”

Of particular relevance, the Court has observed in recent decades that race-based affirmative action programs threaten to embrace and “foster harmful and divisive stereotypes,” which might “balkanize us into competing racial factions.” Proposal 2, its supporters would thus contend, does not frustrate valued minority interests. Rather, the Initiative simply moves Michigan law into line with the Supreme Court’s current disparaging attitude toward affirmative action programs. Another way of making the point is to observe that Grutter (the 2003 Michigan law school case) is the exceptional result over the last two decades; most of the time it has visited these issues, the Court has invalidated racial affirmative action, or at least urged lower courts to do so.

Finally, the societal backdrop against which the Proposal 2 case will be heard is very different from that against which the Seattle and Hunter cases arose. In those cases, the Justices in the majority may very well have smelled a rat—in the form of an evil racist motive on the part of the voters—but were too genteel to say so explicitly.

Indeed, there may be many cases in many areas of constitutional law that are, in fact, driven by unstated intuitions harbored by the Justices about impermissible legislative intent.

For example, the Court’s invalidation on federalism grounds of the so-called “Gun Free Schools Zone Act” and the “Violence Against Women Act” in the Lopez (1995) and Morrison (2000) cases, respectively, may have been partially attributable to the Court’s (unarticulated) sense that Congress was not sincerely motivated by the commercial/economic implications that these laws had, and so could not properly rely for their defense on the Commerce Clause.  (For many of those of us who taught and studied the Obamacare case, this aspect made that case—which focused on a policy choice that was sincerely motivated in significant part by economic aspirations—very different from these earlier laws that the Court had struck down.)  But for complicated reasons, the Court may not always be open about the extent to which improper legislative intent is influencing its rulings.

In any event, in Twenty-First Century Michigan, the Court may infer racist intent from Proposal 2 far less readily than it may have from a state’s ban on racial busing over 30 years ago. One possible lesson that may emerge after the Supreme Court resolved Proposal 2 is that sometimes, grounding a decision in invidious intent directly—insulting though it may seem to the polity that is rebuffed—may reduce the doctrinal complexities that are caused by more elaborate, but less intuitive, theoretical explanations of the kind offered in the Seattle case.

On Tuesday evening, UC Davis School of Law hosted the West Coast premiere of Shenandoah, a documentary about a coal mining town with a rich immigrant heritage, which was dramatically challenged when four of the town’s white, star football players were charged in the beating death of an Mexican immigrant named Luis Ramirez. In it, Pulitzer Prize-winning photographer David Turnley creates a deeply felt portrait of a working class community and the American Dream on trial.

Turnley and Billy Peterson, Executive Producer and CEO of Epic Match Media, were in attendance for the showing of the film. Carlos Gonzalez Gutierrez, the Consul General of Mexico in Sacramento, was also a guest.

Executive Producer Peterson, Director Turnley, Ambassador Gonzalez, and me

Ambassador Gonzalez addresses the audience before the film.

Along with Turnley and Peterson, immigration law expert (and former ImmigrationProf blogger) Professor Leticia Saucedo participated in a fascinating discussion and analysis of the film after the showing.

The film, in my estimation, is much more than about the tragic death of Luis Ramirez, although we learn many insights about that story. The film demonstrates the nation’s need to confront and address racism in modern American social life as well as the often harsh impacts that the changing national and world economies on small-town America.

Shenandoah also reveals much about the tough times in which we live in terms of immigration. Harsh talk of “illegal aliens”, “anchor babies”, and worse create the kind of environment in which a hate crime like the killing of Luis Ramirez by a group of all-American boys can occur. As has been reported, hate crimes directed at Latinos have been at high levels for a number of years.  It does not seem coincidental that the frequently coarse debate over immigration, and the failure of Congress to pass comprehensive immigration reform, has occurred over the same time period of high levels of hate crimes against Latinos.  The film this made me consider just how important moving forward on immigration reform was.

Shenandoah also causes one to think about whether the hyper-aggressiveness of beloved high school football in a small town contributed to the violence that resulted in a tragic death. A somewhat surprising feature of the film was the personal growth of Brian Scully, one of the perpetrators of the crime, who admitted his role in the horrible incident, later testified against other defendants, and grew personally from his experience (and moved away from high school football).

Last but not least, the U.S. Department of Justice under President Obama brought federal civil rights charges against the wrongdoers after a jury in state court found the defendants guilty of only simple assault, the least serious criminal charge. That intervention thus brought some modicum of justice to those who participated in the beating death of Luis Ramirez. The Obama administration has demonstrated more of an interest in these kinds of prosecutions than the Bush administration.

If you get a chance to see Shenandoah, I highly recommend it.

Cross-posted from Justia's Verdict.

The Supreme Court Term that begins in October, like the one that wound down this past June, features some potentially momentous cases.  Perhaps the biggest case on the Court’s 2012–13 docket so far is Fisher v. University of Texas, a case in which the Justices will take up once again the extent to which public higher educational institutions can make use of an individual’s race at the admissions stage.  (I have written a number of other columns on Fisher, including one viewable here (Part One) and here (Part Two), that provide additional background.)

One big question the Fisher case raises is whether the U.S. Court of Appeals for the Fifth Circuit properly applied the Supreme Court’s 2003 ruling in Grutter v. Bollinger, in which a narrowly divided Court purported to apply strict judicial scrutiny to, but ultimately upheld, the University of Michigan Law School’s use of race alongside many other factors in its admissions process.  But in addition to the question whether Grutter was properly applied in Texas is the question some have raised about whether Grutter should itself be overruled.  And one challenge to Grutter that I have seen discussed in some recent academic commentary is whether the “diversity” rationale of Grutter—the idea that admitting minority applicants even in part because of their race helps create a better learning environment for nonminority students—problematically uses, instrumentalizes and commodifies minority applicants.  In the space below, I take up this idea and offer some responses.

The Foundation of the Constitutional Concept of Educational Diversity:  The Bakke Case

To assess the diversity rationale, a good starting point is the Bakke v. Regents of the University of California case from 1978.  There, a splintered Supreme Court struck down an affirmative action admissions program undertaken by the medical school at the University of California, Davis, saying that the Davis plan, under which 16 out of 100 entering medical school slots were reserved for members of traditionally underrepresented racial minorities (e.g., Blacks and Latinas/os), violated federal law (either the Equal Protection Clause of the U.S. Constitution, federal statutes that prohibit discrimination on the basis of race, or both.)

Justice Powell wrote a famous opinion (parts of which were joined by other Justices) that controlled the outcome of the Bakke case.  In it, Justice Powell said that medical schools (and, by extension, other institutions of higher education) had a legitimate and compelling interest in assembling a student body that was diverse along many lines, including race, but that the Constitution forbade the particular means—racial quotas—that Davis had used to further that interest.

Instead, said Justice Powell, an individual applicant’s minority race can be used as a factor in admissions only when the university also considers a number of diversity aspects other than race, and only when each applicant is compared—taking into account traditional academic strength, the various dimensions along with s/he might add diversity, and other criteria—individually against all other applicants, rather than being evaluated only as against applicants of the same race for a set of pre-designated slots.  Justice Powell lauded the racial “plus” plan (which he said was embodied in the way Harvard had structured its admissions system) even as he criticized the quota approach.

Grutter and Gratz:  A Supreme Court Majority Embraces Powell’s Approach

In 2003, 25 years after Bakke, the Supreme Court again took up the question of race-conscious affirmative action in higher education, in a pair of cases involving the University of Michigan.  In Grutter v. Bollinger, the Justices, by a 5-4 vote, with Justice O’Connor writing for the majority, adopted the approach of Justice Powell in Bakke in upholding the University of Michigan Law School’s race-based affirmative action plan.  Whether or not Justice Powell’s view—that racial diversity was a compelling interest that could be permissibly furthered by a narrowly tailored policy that looked at the entirety of the personal and academic attributes of each candidate (including her race) in a system where no slots were reserved for people of particular races—was a “holding” for the Court in 1978, the Court adopted that approach in 2003 in Grutter and made it indisputably the law of the land.

And because, said the Court, the Michigan law school plan at issue in Grutter did not use quotas, but rather took into account race and other characteristics of each applicant in a person-specific and holistic way, the plan survived the “strict scrutiny” that is required under the Constitution for all governmental consideration of an individual’s race.  Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas, dissented.

In the companion case, Gratz v. Bollinger, the University of Michigan’s undergraduate admissions program, which used race in a more systematic and mechanical way, was struck down by the Court because it operated too much like the forbidden Bakke quota system.

Fisher, the Direct Challenge to Grutter’s Premise it Presents, and a Possible Response

That brings us to Fisher, where one of the questions the Court might take up is whether to retain or overrule Grutter.  One line of criticism of Grutter can be found in the recent writings of a venerable constitutional scholar at Vanderbilt Law School, James Blumstein.  In some recent scholarship, Professor Blumstein expressed concern over the fact that under the diversity rationale, race-conscious policies are justified “not for the sake of the black and minority students’ own education but largely for the sake of affording educational benefits to others.” In Grutter itself, he points out, the “students who secured the lion’s share of the educational benefits from student body diversity were white students who matriculated to the [Michigan] Law School.”  This leads him to suggest that “[w]hatever one might think of group-based racial preferences targeted remedially . . . one should take pause at the non-remedial commodification rationale underlying Grutter.   [Grutter] treat[s] minority-student presence as instrumental, a means toward achieving the end of improved quality of education at a public institution of higher learning.”

What are we to make of this?  For starters, I should say (and have written) that I lament the doctrinal demise (caused by what I view as intellectual missteps of the Court itself) of the remedial rationale for race-based affirmative action, in favor of an exclusive focus on educational diversity.  And I have noted that, technically speaking, the Court has not required that diversity-based affirmative action programs help the admitted minority students in order to survive strict scrutiny.  Moreover, race-based commodification, in the form of slavery, remains the single most egregious insult to liberty and justice in American constitutional history.

And yet I am still not as worried by the “commodification/instrumentalization” problem created by the diversity theory as Professor Blumstein appears to be, for three related reasons.

First, it seems to me that university admissions folks instrumentalize or commodify applicants no matter which admissions criteria they employ.  If a public college looks only at high school grades and standardized testing scores—and does not consider race or other elements of the whole person—it is doing so at least in part to produce a student body that will make the school look more elite and prestigious in the rankings game and to the outside world.  Surely traditional admissions criteria are not designed simply to reward hardworking applicants—use of grades and scores rewards not just hard work but also innate academic aptitude.  Nor are colleges that use only “objective” criteria trying simply to identify those applicants who themselves could make the best use of the college’s educational resources; to be sure, the colleges care about the students, but they also care about the short- and long-term success of the colleges themselves.  Indeed, it is somewhat ironic that looking at more, rather than fewer, aspects of a candidate’s overall personhood would generate a greater sense of impermissible commodification.

My second response follows closely from my first:  Under the diversity rationale that focuses on a number of different kinds of diversity (not racial diversity alone), virtually all admitted students, not just racial-minority students, are in some sense being commodified.  The standardized-test whiz, the musician, the computer geek, the older “returning” student, the actor, the farm kid from the underrepresented rural Midwest, the athlete from the big inner-city school, all are being admitted—and I suppose, in some respect, all are being used—by the university to enhance the institution and the educational experience of other students.  When commodification/instrumentalization is so broad and pervasive, it loses much of its normative taint under the Constitution—this is why taxes (which instrumentalize all of us) are viewed differently than takings (which make public use only of some of us.)

Finally, we must bear in mind the voluntary nature of participation in an affirmative action program.  Minority applicants needn’t choose to attend a school in which their race likely played a factor in their admission; they are free to instead attend a school where their “objective” academic indicators (e.g., prior grades and standardized test scores) place them more comfortably in the mainstream.  Because matriculation is voluntary, I think we can infer that the vast majority of minority students who do choose to attend schools where their minority race played an admission role believe that the access to the (presumably) more elite institution outweighs any stigmatic or psychological cost of being “used” for the benefit of other students.  In this respect, at least if we are to credit the market-based choices minority applicants make, educational diversity can be seen as “win-win.”  In short, the commodification/instrumentalization present in affirmative action seems to me no worse than, and probably much less troubling than, the use that universities make of Division I athletes in exchange for a scholarship and a first-rate education.  Certainly, it is nothing like the commodification represented by slavery.

I do have a caveat here, though:  If indeed minority students are making choices to attend institutions based on misinformation, or insufficient information, about whether they would be helped or hurt by attending the more elite institution, then that information glitch needs to be addressed for my confidence about the win-win nature of the diversity-based affirmative action to continue.  That is why even though I am dubious about many of their substantive hypotheses, I support the efforts of so-called “mismatch” theorists to obtain the best possible information from educational institutions in order to test their claims that minorities would likely be better off if they chose not to attend institutions that made use of their race to admit them.  At a minimum, if these claims have merit (and, again, I am far from convinced that they do), then applicants would need to be so informed, so that they could make choices about their own individual circumstances that guarantee that, even if they are being used, they are not being misused.

Cross-posted from Justia's Verdict.

’Tis the season to be a college protestor.  With a momentous presidential election on the horizon, the Occupy Movement promising to kick into high gear again, and young adults facing uncertain job prospects and ever-increasing higher education costs and debt loads, students at campuses across the country are understandably seeking ways of demonstrating their deep discontent and anxiety about the status quo.

My own university—the University of California—has seen its share of unrest.  Protests at UC Berkeley, the birthplace of the so-called “free speech movement” in the 1960s, got ugly last fall, with police who were ostensibly trying to remove encampments using batons against students.  Things got out of hand here at UC Davis last fall too, with a campus police officer employing pepper spray against seated student protestors.

And more recently here at UC Davis, protestors—objecting to what they, at least, viewed as an example of the unhealthy privatization of higher education—obstructed access to a branch of a bank located on campus. (Many ardent advocates of higher education had no objection to the bank; the bank had leased space from the University to serve the campus community, and the lease would have provided two million dollars or more to the university over a 10-year period.)

After the blockades took place, notwithstanding repeated warnings from authorities that blockaders risked serious punishment, the university administration and campus police identified several students who had participated in the obstructive protests for prosecution by the County District Attorney, under state penal code sections making it a misdemeanor to willfully obstruct public walkways and places or to intentionally interfere with any lawful business. The bank provided evidence to the District Attorney’s office as well. Last month, 11 students and one faculty member were ordered to appear for booking and arraignment on misdemeanor charges of obstruction and conspiracy to commit a misdemeanor.

One of the things that has surprised me most about this episode and its aftermath is how many people—many of them sophisticated, well-educated folks—mistakenly believe that because the blockaders were obstructing the bank’s business for what they viewed as a righteous political reason, their actions were legally protected under constitutional principles of free speech.  In other words, many people are surprised to learn that the First Amendment permits punishment of this kind of expressive demonstration.  So in order to help students and other would-be protestors know when their activities will likely get them punished (so that protestors may then weigh, in an informed manner, the costs and benefits of proceeding), I offer five First Amendment myths that apparently need debunking:

Myth No. 1:  The Expressive Intent or Motive of the Protestor Is the Most Important Factor in Determining Whether His/Her Speech Can Constitutionally Be Prohibited

On rare occasions, people who are doing something to express a message—especially a political message—are immune from a regulatory law on account of their message and the particular place and time at which they need to express that message in order to be effective in communicating it.  And the Supreme Court has often said (for example, in last year’s funeral protestors case, Snyder v. Phelps) that speech about “matters of public concern” (e.g., public policies, elections, etc.) receives the highest level of First Amendment protection.

But just because you are involved in an expressive activity about something you think is important does not mean you have an automatic exemption from generally applicable laws that were passed, and are enforced, for reasons that are unrelated to the suppression of expression.  As one commentator (my brother, Yale Law Professor Akhil Amar) has put the point, The New York Times has no First Amendment license to ignore air pollution regulations.   And the U.S. Supreme Court itself has made the same kind of observation in a number of cases, perhaps most famously in United States v. O’Brien, where the Court upheld the prosecution of a Vietnam War protester who intentionally burned his government-issued official draft card, because the law prohibiting destruction of draft cards was designed not to censor, but rather to facilitate the administration of the Selective Service System.

In another seminal case, this one involving cross burning, a majority of the Court repeated the same essential idea:  “[N]onverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.”

Even some of the Justices who did not join the majority concurred on this point:  “It is true that loud speech in favor of the Republican Party can be regulated because it is loud, but not because it is pro-Republican; and it is true that the public burning of the American flag can be regulated because it involves public burning and not because it involves the flag.”

So it turns out that motive or intent does matter in First Amendment cases—but it is the government’s motive or intent, not the would-be speaker’s, that largely determines whether the First Amendment permits government punishment of an activity that someone is undertaking in order to send a message.

Myth No. 2:  Laws Regulating the “Time, Place and Manner” of Speech in a Content-Neutral Way Are Unimportant or Are a Pretext for Speech Suppression, and Thus Do Not Really Need to Be Enforced

Rules that govern the time, place and manner in which speech occur often serve weighty purposes, including the creation of an environment where those who shout the loudest are not the only ones whose speech gets to be heard. Unsurprisingly, then, the idea that no one need ever obey such rules because the rules are pretextual or unimportant finds no support in court decisions.

As the Supreme Court of California stated in an oft-cited free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizen’s rights of free association and discussion. … Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

So things like physical obstruction and blockades are conduct that government has always had the legitimate authority to proscribe, because the conduct so obviously obstructs the liberty and the lawful pursuits of others. Government prohibition of blockades or obstruction has been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and that statute raises harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected to gather.

To see an easy example of why anti-obstruction laws are necessary and proper, consider what would otherwise happen when two groups of opposing protestors both want to blockade a facility (say, the US Supreme Court, the day of the Affordable Care Act arguments) at the same time, or two opposing political groups want to blockade each other’s protests.  Without valid and enforceable time, place, and manner rules applicable to political protestors, political protests could easily and literally devolve into melees.

One critical reason why blockades and similar obstructions can be prohibited is that they are not intended to, and do not, persuade anyone of the merits of the protestors’ position.  They are employed to coerce third parties to change their behavior, not their minds. As such, blockades and the like are in some respects actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded—a commitment to the power of ideas, rather than the use of force, to change the way that people act.

Myth Number 3:  Expressive Conduct Is Treated No Differently Than Pure Speech Is

There is a kernel of truth to this statement, in that courts often do rule in favor of people who act, rather than utter words, to get their message across.  So, for example, a few decades ago the Supreme Court twice ruled in favor of protestors in striking down laws that tried to prohibit flag burning.  And it often makes sense to downplay the speech/conduct distinction, in that all speech requires conduct or action—moving the muscles in one’s fingers or arms to make a point shouldn’t be categorically different than using the muscles in one’s jaw.  So the government’s regulation of conduct can certainly raise free speech concerns.

Yet, crucially, these free speech concerns in the conduct setting arise when the government’s regulation of conduct is intended to suppress the message that the conduct is attempting to communicate. In those instances, government is not punishing protestors in order to protect the rights of third parties.  Rather, it is regulating protestors’ expressive conduct in order to censor the protestors’ message.  So, on closer inspection, the notion that expressive conduct is protected is simply a restatement of the idea discussed above in connection with Myth No. 1—that is, the idea that the government’s motive is important.  If government regulates your expressive conduct because it is expressive, then that is a problem.  A censorial government purpose is always illicit, whether the government is targeting your words or your actions.

That is the theoretical frame.  But in practice, when the government regulates your conduct, it often can point to many non-censorial motives, such as keeping good order, preventing violence, facilitating access to public space for everyone, and so on.  As a result, the government in the real world has a much easier time regulating conduct that is mixed with speech than regulating pure speech.  Put another way, the inference of problematic government censorship is easier to generate when the government regulates pure speech, rather than speech mixed with conduct, because the government doesn’t have as many plausible innocent objectives to which it can point when speech alone is at issue.

Myth Number 4:  The Authorities Could, if They So Chose, Cut Protestors a Break When the Protestors Are Trying to Speak Out on Important Issues to Accomplish Just Results

Some have suggested that authorities should excuse violations of time, place, and manner rules when the violations are politically motivated.  If the meaning of the word “political” here is understood expansively, then this argument would seem to reject the enforcement of all content-neutral time, place and manner rules.  After all, every intentional refusal to obey a rule can be understood to express the “political” message that the actor considers his or her conduct to be more important than any obligation he or she might have to comply with the rule.

Nor does the problem go away if we define the term “political” more narrowly. Perhaps some believe that obstruction and other violations of law should be excused whenever individuals are acting in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day.  Obstruction and blockades that protest things like government privatization, under this analysis, should be treated as permissible expressive activities.

If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, also could not be enforced against “political” anti-abortion activists who obstruct the entrances to clinics; anti-abortion protestors (or military funeral protestors, etc.) are assuredly expressing themselves on salient public policy questions.

And even if we could stomach the costs of permitting all protestors who are addressing big issues to do as they please, a government’s decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself likely violate the First Amendment.  That is because government cannot constitutionally discriminate on the basis of the subject matter of speech when it regulates expressive activity.

In Carey v. Brown, for example, the U.S. Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing that was connected to a place of employment from its coverage.  Similarly, if government were to treat obstruction as permitted speech, it could not permit some blockades and not others based on the government’s (contested) sense of the political salience of the protestors’ message.

Some people may try to define the desirable exceptions more narrowly still.  For example, in the UC Davis bank episode, some have suggested that participants in the blockade of the bank should not be punished because they are promoting a political cause that is just. But, of course, treating one political perspective more favorably than another constitutes viewpoint discrimination.  And a public agency that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based.  So the narrower the exception from enforcement is, the larger the First Amendment problem becomes.

Government can make enforcement decisions based on things unrelated to the content or viewpoint of the expression that is involved.  So enforcement decisions based on the extent of harm actually caused or threatened by the protestors, or based on how repetitive the violations of law are, etc., are permissible.  But enforcement agencies can get into First Amendment trouble if their enforcement pattern suggests any favoritism based on particular messages; as a result (and in order to avoid being unable to enforce laws when the laws are violated in the future), many government enforcement decisionmakers tend to act more mechanically than would otherwise be expected.

Myth Number 5:  Even if Rules Have to Be Enforced By Ordinary Governments, University Campuses Are Special Places Where More Expressive Conduct Should Be Permitted

As with some of the other propositions I’ve discussed, there is a grain of truth to this statement; universities are indeed dedicated to promoting free speech, and what counts as “disruption,” or “obstruction” might be different in the context of a university quad than in the context of, say, a post office parking lot.  So, provided that public universities do not treat protestors differently based on the subject matter or viewpoint of their message (which would violate the First Amendment), they may permit a bit more operational inefficiency than do other government actors, in the name of promoting free speech.

But the problems of governing a community with tens of thousands of residents who have conflicting desires to access services and use scarce property do not disappear simply because the community is also an institution of higher education.   Again, any relaxed enforcement stance by public universities with respect to liberal protests would necessarily mean that campus authorities could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services.  And you always have the problem of managing the use of limited property among competing protestors; when protestors want to counter-blockade each other’s protests, then enforcement of neutral time, place and manner rules are the only way to keep order.

One might think that private universities would be free to pick and choose how to enforce their rules, because they are not bound by the content- and viewpoint-neutrality norms of the First Amendment.  But in California, there is a statute that subjects private universities to the same constraints that the First Amendment imposes on public actors.  As long as this statute is not invalidated itself (and I do think it is open to some constitutional challenge), Stanford is no freer to selectively enforce its rules than is the UC.

Finally, I note that there is one other respect in which universities may be different (as least with regard to their students) than are other communities.  Namely, universities often have an administrative disciplinary system of enforcement (e.g., academic suspension, expulsion, etc.) at their disposal.  For this reason, criminal prosecution may not always be an appropriate or supportable response to protests that violate campus regulations or even penal laws governing on-campus conduct. In some cases, in-house discipline imposed by the university itself may be adequate and preferable, so long as decisions about which mode of enforcement to pursue are not made on the basis of the content or viewpoint of expression.

So the issue of what kind of sanction makes sense is an important one to keep in mind in the university setting.  So, too, are the related questions of how much, and what kinds of, force are appropriately used against students who violate university rules.  These two questions are beyond the scope of my column today, but obviously deserve careful attention.