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March 5, 2015

Opinion analysis: Court adopts broad standards for adjudicating what constitutes a tax discrimination under the 4-R Act

By Professor Darien Shanske. Cross-posted from SCOTUSblog.

Neither side came away with a clear victory in the Court's decision in Alabama Department of Revenue v. CSX Transportation, Inc., as the Court remanded the case to the Eleventh Circuit. Again. The clear loser in the case is the Eleventh Circuit, which has been given the specific task that the court of appeals had already eschewed as "Sisyphean." Justice Scalia wrote the majority decision. Justice Thomas wrote the dissent, with Justice Ginsburg signing on. This is the second time that Justices Thomas and Ginsburg dissented on the same issue in the same case.

The issue in the case was interpretation of Section 11501(b)(4) of the [4-R] Act, which prohibits a state from "impos[ing] another tax that discriminates against a rail carrier." Alabama imposes a general sales tax, which includes tax on the sale of diesel fuel to railroads, but motor and water carriers (i.e., trucks and boats) are exempt from paying this tax on their fuel.   The Court held that the appropriate comparison class for assessing discrimination under the Act can vary depending on the alleged discrimination. In this case, the Court found that CSX properly alleged that motor and water carriers, as competitors to railroads, were a proper comparison class.

The Court also held that "discrimination" in the statute requires some analysis of a state's overall tax system. It is not enough, as CSX argued, to look to the burden imposed by one tax in isolation when there could be another tax that demonstrates that there is, in fact, not an unlawful discrimination.   It is true that only the railroads pay the sales tax on their fuel, but Alabama countered that this did not amount to discrimination because motor carriers, but not railroads, had to pay an excise tax on diesel fuel. The Eleventh Circuit refused to consider this argument, but it will have to consider it on remand as the Supreme Court has now held that the statute requires an assessment whether there is a "roughly equivalent" tax that offsets an apparently discriminatory tax.

As for the issue of comparison class, oral argument already strongly indicated that a majority of the Justices were not going to accept the limitation on what can constitute the class that was proposed by the state and that had been proposed by Justices Thomas and Ginsburg in dissent the last time this case was before the Court. The anti-discrimination provision at issue is in subsection (b)(4), which does not explicitly state what the proper comparison class would be. However, subsections (b)(1)-(3) of the same provision do explicitly indicate such a class, namely "commercial and industrial" property. The majority found that this limitation does not carry over from the first three subsections to the last, primarily because the earlier subsections were specifically about the property tax and the final residual provision is not so limited.

Once the Court found that this limitation did not restrict subsection (b)(4), the question becomes just what does constitute a comparison class. Here the Court provided only broad guidance. On the one hand, the analysis as to what constitutes a comparison class cannot be the same as would be performed in connection with the Equal Protection Clause. This is because, as to economic matters, the Equal Protection Clause permits very fine distinctions. As the Court explained, importing this analysis into the analysis of the 4-R Act "would deprive subsection (b)(4) of all real-world effect, providing protection that the Equal Protection Clause already provides."  The right analysis as to proper comparison class must take into account the purpose of the 4-R Act, and here the opinion cites the statute: to "restore the financial stability of the railway system of the United States, [while] foster[ing] competition among all carriers by railroad and other modes of transportation." Given this purpose, the Court agrees that competitors, such as motor carriers, can be an appropriate comparison class. As for other possible comparison classes, the Court put that question to the side, exclaiming that "[s]ufficient unto the day is the evil thereof."

As to how to do the discrimination analysis, the Court explained that "it does not accord with ordinary English usage to say that a tax discriminates against a rail carrier if a rival who is exempt from that tax must pay another comparable tax from which the rail carrier is exempt." In other words, how can there be an unlawful discrimination if in reality the railroads were no worse off than their competitors? The Court therefore "could not approve" the Eleventh Circuit's refusal to consider Alabama's argument that its fuel excise tax is the "rough equivalent" of its sales tax on diesel fuels. Though the Court was "inclined to agree" that this is not the kind of analysis that courts are likely to do well, it is nevertheless the duty of courts to try because that is the task Congress assigned them "by drafting an antidiscrimination command in such sweeping terms."

Both as to the question of comparison class and as to the question of the scope of analysis, the Court's opinion adopted an interpretation of the statute that requires courts to apply broad standards. Justice Thomas in dissent does more than just argue for his reading of the statute; he also needles the majority about reaching a "predictably unworkable" result.

A concluding observation. The dormant Commerce Clause also forbids discrimination in taxation, and thus the Court has already analyzed what constitutes discrimination in taxation at some length. And, in the dormant Commerce Clause cases, as noted very briefly in the opinion in this case, the Court has long accepted the possibility that states can defend themselves from a charge of discriminatory taxation by showing that there is some other compensating tax. By referring back to an early (1932) dormant Commerce Clause case, the majority opinion appears to accept that this piece of conceptual analysis is sound. Yet a lot has happened since 1932. In particular, the Court developed the so-called complementary tax doctrine, complete with its own three-part test, which has been applied fairly recently . The doctrine was also discussed in the briefs, including that of the United States, which appeared as an amicus in support of neither party. This is especially significant because the Court largely followed the disposition of this case proposed by the United States in its brief and at oral argument.

What does it mean that the complementary tax doctrine made no appearance in the majority opinion? Rather than reference the doctrine, the majority used a form of the phrase "rough equivalent" twice, along with "roughly comparable," to describe what the Eleventh Circuit must assess. Is this standard stricter or looser than the complementary tax doctrine? Is this doctrine not mentioned because the Court finds it unsatisfactory or only applicable to dormant Commerce Clause cases? The opinion does not answer these questions, but perhaps we will find out what the Court thinks if - when? - this case returns to the Court for a third time.

February 24, 2015

Argument analysis: Review of consular visa decisions for the twenty-first century

Cross-posted from SCOTUSblog.

Yesterday, the Supreme Court heard oral arguments in the much-anticipated immigration case of Kerry v. Din. In that case, the U.S. government - in the face of strong academic commentary to the contrary - steadfastly defends the doctrine of consular non-reviewability and its bar to the judicial review of visa decisions of Department of State consular officers.

A consular officer had denied the visa application of Kaniska Berashk, a citizen of Afghanistan and the spouse of Fauzia Din, a U.S. citizen. The consular officer's denial merely cited the broad definition of terrorist activities in the immigration statute. Din sought judicial review of her husband's visa denial. The U.S. Court of Appeals for the Ninth Circuit allowed her that review and found that the consular officer's explanation of the visa denial was insufficient.

Office of the Solicitor General veteran Ed Kneedler argued the case for the United States. Relying heavily on much-criticized Cold War cases of Knauff v. Shaughnessy and Shaughnessy v. United States ex rel. Mezei and frequently invoking the need to protect the national security, Kneedler argued that the U.S. government has the undisputed power to exclude aliens from the United States and that "[o]ur position is that there is no judicial review" in the case of the denials of immigrant visas by consular officers. Kneedler later elaborated: "This Court has said on a number of cases that when it comes to the exclusion of aliens, whatever process Congress provides is the process is due." At one point in the argument, Justice Ruth Bader Ginsburg pressed Kneedler into conceding that the U.S. government's position was that there is no exception to the consular non-reviewability doctrine. Jarred by the government's absolutist approach, Justice Stephen Breyer asked whether a consular official could, for example, deny a visa for racially discriminatory reasons or because he thought husbands and wives should not live together. The answer apparently was "yes."

Justices Sonia Sotomayor, Elena Kagan, Breyer and Ginsburg seemed sympathetic to Din's case. Among other things, these Justices feared possible erroneous denials of visas with no opportunity for correction through judicial review. Justice Sotomayor characterized the administrative process after the denial of a visa to a spouse as an "administrative nightmare."

Justices Sotomayor and Breyer (and to a certain extent Justices Anthony Kennedy and Justice Samuel Alito) were also troubled by the possibility of uncorrected mistakes by the government. When Kneedler assured the Court that the decisions were double-checked before denying a visa, Justice Sotomayor countered that "that's what we were told after September 11th," noting that the government had claimed that it had good reason for arresting and detaining foreigners, only to later admit that some alleged terrorists had been "erroneously identified."

The Justices generally seemed sensitive to the possible national security concerns at stake. A number of questions focused on the practicalities of judicial review if the government claimed that disclosure of the basis for the visa denial might jeopardize national security. (The U.S. government did not make this argument in Din's case.). One of the possibilities mentioned would be for in camera review by the judge.

At various times in the argument, the Justices asked questions about how Kleindienst v. Mandel applies to the case at hand. In that case, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered - that the applicant had violated the terms of visas on previous visits to the United States - was a "facially legitimate and bona fide reason" for the executive action. Justice Kennedy, the possible swing vote in the case, seemed to agree with Justices Ginsburg, Breyer, Sotomayor, and Kagan that, under Mandel, Din has the right to demand an explanation for the visa denial.

Kneedler attempted to distinguish Mandel as involving a different decision than a visa denial. As a back-up argument, he claimed that a citation to the statute was sufficient to satisfy the deferential requirement of a facially legitimate and bona fide reason for the visa denial.

Mark Haddad of Sidley Austin LLP argued the case on behalf of Fauzia Din. While appropriately conceding that Congress has broad authority over immigration, he urged the Court to affirm the Ninth Circuit’s conclusion that Mandel required a further explanation of the visa denial.

Much of the Justices’ questioning of Haddad focused on the scope of Din’s constitutional rights. Chief Justice John Roberts and Justices Antonin Scalia and Alito worried about the prospect that the right to contest immigrant visa denials would be extended to relatives. They seemed wary of encouraging spouses and other family members to seek judicial review when their relatives are barred from entering the United States.

In this vein, several of the Justices raised the question whether, if the Court ruled in Din’s favor, a wife might hypothetically be able to challenge a criminal conviction even if her husband for whatever reason did not want to do so. However, if permitted by the case law, that issue could be addressed by allowing the visa applicant himself to seek judicial review. In this case, the decision was made to pursue judicial review based on an opening left by Mandel allowing a U.S. citizen to challenge the denial.

Another practical concern of some of the Justices was whether there might be a flood of appeals of visa denials if the Court were to allow judicial review of consular officer decisions. That relatively few cases have been appealed under Mandel, and in the Ninth Circuit where some kind of judicial review is currently permitted, suggests that there would not be a flood of appeals if the Court decided in Din’s favor.

Although always hazardous to predict a decision in a case based on the oral argument, it seems to me that the Justices are closely divided on this case. As frequently is the case with the Roberts Court, Justice Kennedy will perhaps determine the precise outcome.

Based on the argument, my prediction is that the Court will embrace the deferential Kleindienst v. Mandel framework. However, it is far from certain whether the Court will find that the denial in this case satisfied the facially legitimate and bona fide requirement.

February 18, 2015

Argument preview: The doctrine of consular non-reviewability – historical relic or good law?

Cross-posted from SCOTUSblog.

The well-established doctrine of consular non-reviewability precludes judicial review of the visa decisions of State Department consular officers. It is a first cousin of immigration law's exceptional "plenary power" doctrine, which generally immunizes from judicial review the substantive immigration decisions of Congress and the executive branch. In refusing to disturb the federal government's reliance on secret evidence to deny the non-citizen spouse of a U.S. citizen admission into the country, the Supreme Court in 1950 summarized the plenary power doctrine as follows: "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned."

More recently, the Court has creatively avoided invoking the plenary power doctrine and instead ensured judicial review of immigration decisions. For example, in Landon v. Plasencia, the Court held that a lawful permanent resident seeking to return to the United States after a weekend in Mexico possessed a due process right to a hearing on the propriety of her exclusion from the country.

The courts, including the Supreme Court, have created a number of exceptions to the doctrine of consular non-reviewability. In Kleindienst v. Mandel, the Court ruled that a court could review the claim of a group of U.S. citizens who asserted that the exclusion of a Marxist journalist violated their First Amendment right to hear him speak. The Court found that the basis offered - that the applicant had violated the terms of visas on previous visits to the United States - was a "facially legitimate and bona fide reason" for the executive action.

Next Monday, the Supreme Court will hear oral arguments in Kerry v. Din, a case that provides it with the opportunity to provide much-needed guidance on judicial review of consular officer visa decisions. It also could offer some hints about the future of the plenary power doctrine.

Facts

The facts of the case could have been ripped out of the cable television series Homeland.

In 2006, Fauzia Din, a naturalized U.S. citizen, married Kanishka Berashk, a citizen of Afghanistan. A consular officer at the U.S. Embassy in Pakistan denied Berashk's visa application. The denial simply cited a detailed, complex, and broad provision of the immigration law that bars the admission into the United States of non-citizens who have engaged in "terrorist activity." The consular officer failed to identify the alleged conduct that triggered the exclusion.

The district court dismissed Din's suit challenging her husband's visa denial. The Ninth Circuit reversed. A majority concluded that (1) "a citizen has a protected liberty interest in marriage that entitles the citizen to review of the denial of a spouse's visa"; (2) the reason offered for the denial was not "facially legitimate"; and (3) the consular officer should have explained "what [he] believed [Berashk to have] done" that justified the visa denial.

Arguments in the briefs

Relying heavily on plenary power precedent, the Solicitor General argues that Din lacks a constitutionally protected interest in her husband's visa application and that the Ninth Circuit erred in finding that she has a right to judicial review of his visa denial. The government seeks to limit Kleindienst v. Mandel to its facts and further contends that the State Department should not be required to offer a specific explanation in denying a visa on national security grounds.   The government specifically contends that judicial review à la Mandel will have "the steep cost of weakening the protections that keep terrorists from our shores."

This case is one of the few occasions in which the Obama administration has asked the Supreme Court to deny judicial review of an immigration decision. Indeed, in recent years it has refused to defend two lower-court decisions - including one accepted for review this Term holding that the immigration statute barred judicial review of a Board of Immigration Appeals ruling.

Din emphasizes that, like the plaintiffs in Mandel, she is a U.S. citizen challenging the visa denial and a violation of her rights, rather than an alien on foreign soil seeking initial entry into the country. She claims (1) a constitutional right to marry and live with one's spouse; (2) that the denial of her spouse's visa infringed that right; and (3) that due process requires that the government provide a facially legitimate and bona fide reason for the denial.

Several groups filed amicus briefs, all in support of Din. In one brief, a number of former consular officers argue in favor of judicial review on the ground that many contemporary visa denials are not discretionary judgments, as was historically the case, but are instead based on whether the person appears on various database and other watchlists. And in another brief, seventy-three law professors question the conventional understanding of foundational cases of the doctrine of consular non-reviewability. They contend that Kleindienst v. Mandel requires judicial review and that such review is consistent with the immigration statute.

Analysis  

The Court in this case has the opportunity to narrow the doctrine of consular non-reviewability. Besides the possible doctrinal effects of a decision - including further limitations on the doctrine - the case has the potential for great practical significance. Consular officers stationed in U.S. embassies around the world annually deny hundreds of visa applications. The specific judicial review question is complicated in the case before the Court by the consular officer's blunt invocation of terrorism as the basis for denial of the visa application.

The ultimate outcome largely depends on how the Court applies Kleindienst v. Mandel. Given its contemporary inclination toward some modicum of judicial review of immigration decisions, the Court might be expected to find that judicial review of visa denials - even if limited in scope - is justified. But how limited should the scope be? Should courts accept the U.S. government's mere citation to the terrorist activity provision of the immigration law without any explanation, even if that would effectively deny an applicant a meaningful opportunity to rebut the charge? Or should the courts require further explanation from the government - for example, in this case, how and why the consular officer found Berashk inadmissible. How the Court resolves this issue may be the key to the case.

January 16, 2015

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

Cross-posted from SCOTUSblog.

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

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

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

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

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

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

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

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

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

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

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

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

January 6, 2015

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

Cross-posted from SCOTUSBlog.

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

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

Facts

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

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

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

Arguments

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

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

The significance of the case

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

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

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

December 10, 2014

Argument preview: When does a difference in tax treatment amount to a proscribed discrimination?

By Professor Darien Shanske, UC Davis School of Law. Cross-posted from SCOTUSblog.

On Alabama Department of Revenue v. CSX Transportation, Inc. 

This case is about Section 11501(b)(4) of the Railroad Revitalization and Regulatory Reform Act of 1976 (the "4-R Act"), which prohibits a state from "impos[ing] another tax that discriminates against a rail carrier." Wait, where are you going? This case, which has already been before the Supreme Court once, not only involves interesting questions of statutory interpretation, but also implicates fundamental questions about the meaning of "discrimination" in the tax context (and beyond). Indeed, the resolution of the case may require the Court to appeal to deep structural principles beyond tax. Both sides have reasonable arguments based on the text of the statute, legislative history, and policy. Thus the resolution of the case may turn on whether or not federalism concerns indicate that there should be a thumb on the scale in favor of a narrower construction of a statute that preempts state authority.

Put roughly, here are the facts. Alabama charges sales tax on the fuel purchases of railroads; it does not charge the sales tax on the fuel purchases of motor carriers - such as trucks. Because a federal statute bars discrimination against railroads, the railroad CSX Transportation, the respondent in this case, argues that the Alabama sales tax violates the 4-R Act. Not so fast, says Alabama, the petitioner in this case: Motor carriers pay a separate excise tax on their purchases of fuel, a tax that rail carriers do not pay. Surely, counters Alabama, when Congress prohibited "discrimination" it expected courts to be able to look at more than one section of a state tax code.

The provision in the 4-R Act at issue in this case is short and broad, barring "another tax that discriminates." CSX argues that this breadth is what Congress intended, while Alabama argues that Congress intended that the provision's meaning be filled out - and limited - by reference to earlier provisions of the Act and more general state and local tax jurisprudence.

The two questions before the Court are as follows:

1) When the statute forbids "discrimination," to which comparison class should the lower courts look? Should the Court read in a comparison class from the immediately preceding subsections of the 4-R Act, or did Congress specifically not wish to include that limitation?

2) If a court finds facial discrimination, can a state defend it by pointing to the operation of its larger tax system? The statute does not specify that such a justification could be availing. On the other hand, it would seem like there could not be a discrimination if the difference in treatment were justified.

Let's return to the facts. Alabama imposes a general sales and use tax which is based on the value of the item purchased. When railroads purchase diesel fuel, they must pay the tax. However, two competing businesses are exempt from paying the same sales tax on their purchase of diesel fuel: - motor carriers and interstate water carriers (that is, ships). The motor carriers pay a different tax, a per-gallon excise tax on their purchase of diesel fuels. The water carriers do not pay the excise tax; they have been exempt from the sales tax since 1959 because the state believed that the dormant Commerce Clause prevented it from imposing the tax.

The procedural history of this case indicates its difficulty. During its first trip up to the Supreme Court, the district court dismissed CSX's complaint; the Eleventh Circuit affirmed on the ground that subsection 11501(b)(4) of the Act cannot be used to challenge a sales tax "exemption" (as compared with a property tax exemption, which the Court had already held cannot be challenged under the Act).

The Supreme Court rejected that argument, held that a sales tax exemption could result in a prohibited discrimination, and remanded the case to the lower courts. Justices Clarence Thomas and Ruth Bader Ginsburg dissented from that disposition, on the ground that Alabama's scheme clearly did not violate the Act. These two Justices argued that there must be a comparison class implicit to subsection 11501(b)(4). They found that the relevant class was the comparison class established for property tax discrimination purposes in the immediately preceding subsections of the Act - namely, "commercial and industrial taxpayers."

On remand, CSX lost before the district court and won before a divided panel of the Eleventh Circuit.  Both the district court and the Eleventh Circuit found that the appropriate class to which to compare CSX was other competitors, rather than the broader class of commercial and business entities. That competitors constitute the appropriate comparison class is the position currently advanced by CSX before the Court. The district court, however, went on to find that the Alabama sales tax exemption for motor fuel did not amount to discrimination because of the complementary fuel excise tax. It found that, in fact, the charge paid by motor carriers was generally higher than that faced by railroads. As for water carriers, the district court found no discrimination because, among other reasons, the railroads had not shown that the water carriers were truly competitors.

The Eleventh Circuit reversed. Specifically, it held that Alabama could not justify its facial discrimination through the sales tax by appealing to the motor fuel excise tax. The court of appeals held that the statute does not indicate that courts should assess the treatment of railroads by looking at the tax system as a whole, and with good reason, because such an inquiry would amount to a "Sisyphean burden." The dissent countered that the there is no giant rock for courts to deal with, as a court need only compare the tax treatment of one industry to that of its competitors as to one tax.

Before the Court in this case, CSX and its amici defend and elaborate upon the opinion of the Eleventh Circuit.   Congress could have defined discrimination in subsection (b)(4) as relative to a specific class, as it did in the earlier provisions of the same statute, but it did not. Therefore, this kind of discrimination vis-à-vis competitors should be held to violate the statute. Furthermore, because one of the rationales of the 4-R Act was to protect the fiscal integrity of railroads, interpreting this provision in a way that protects the railroads from a tax provision that benefits their primary competition is consistent with the purpose of the Act.

The state counters that the correct comparison class is to commercial and industrial entities, as Justice Thomas had argued. This interpretation is also consonant with the purpose of the statute, as it protects railroads, as interstate entities, from being treated less well than the average in-state business entity. (Note that if a majority of the Court agrees with Alabama (and Justices Thomas and Ginsburg) on this question of comparison class, then the Court need not reach the second question as to the scope of the discrimination analysis.)

As to the scope of the discrimination analysis, Alabama argues that it does not make sense for courts to find a tax discriminatory without looking at the broader tax system - if there is an offsetting charge, then where is the discrimination? Furthermore, in the context of the dormant Commerce Clause, the Court has long accepted the possibility that the existence of a complementary tax could justify a seeming instance of discrimination. Not only does the complementary tax doctrine demonstrate the correct analysis of the concept of discrimination, but this doctrine was well established when the 4-R Act was passed and therefore Congress should be presumed to have assumed it would be applied.

CSX and its amici - including Walter Hellerstein, the leading state and local tax scholar, who is counsel of record for the Tax Foundation - strongly object to the importation of the complementary tax doctrine into the 4-R Act. First, the Act does not provide an opportunity for a state to justify its discrimination. Second, the Eleventh Circuit was correct that evaluating such a justification would be Sisyphean. In this case, for instance, because the two taxes are levied on different tax bases - the volume of fuel versus the price of fuel - the analysis would need to be updated regularly. Worse, other states have different sets of taxes and exemptions. Furthermore, if there is to be a more holistic analysis, why limit the analysis to a comparison of the sales and excise taxes? Railroads also pay more in property taxes and maintain their own rights of way, while motor carriers enjoy rights of way paid for by their motor fuel excise taxes as well as other taxes. Indeed, if the goal is to treat tax systems realistically, should courts not also consider which entity bears the true economic burden of a tax - that is, its incidence?  Yet tax incidence analysis is a shifting and tentative endeavor, even for trained economists.

Interestingly, the United States, in an amicus brief filed in support of neither party, proposes a Solomonic quasi-resolution of this case. The United States agrees with CSX that the proper comparison class is other competitors. However, the United States agrees with Alabama that the broader tax system should be taken into account, at least to the extent of considering whether the excise tax justifies the discriminatory application of the sales tax. Because the Eleventh Circuit eschewed this task as Sisyphean, the United States argues that the Court should remand the case to the Eleventh Circuit to give the task a try.

It would seem likely that the Court, as in the first go-round for this case, will try to resolve the questions here narrowly, grounding its answer in the text of the statute, such as it is. Nevertheless, given the import of the notion of "tax discrimination" to other federal statutes and to the dormant Commerce Clause in general, even a narrow answer could well have broader implications.

December 9, 2014

How Federalism Cuts Against the Challengers in King v. Burwell: Part Two in a Two-Part Series

Cross-posted from Justia.

In Part One of this two-part series, I contended that the reading of the Obamacare statute offered by the plaintiffs in the important King v. Burwell case pending in front of the Supreme Court was problematic for reasons grounded in federalism. In particular, I argued that even if the plantiffs' reading-that Congress, by using the phrase "established by the State" in certain places in the Act, intended that citizens of states that did not set up exchanges would not be eligible for federal tax credit health insurance subsidies-reflected the best overall interpretation of the statute, such a reading could not be accepted because it fails the requirement that Congress speak in a "clear voice" if it wants to condition the receipt of federal moneys on things that participating states must do. In the space below, I discuss possible counterarguments to my thesis, and also explain why I believe the federalism perspective I discuss adds an important element to the federal government's position in the King case.

Should the Clear-Voice Requirement Apply When There Is Only One Condition?

Perhaps the most forceful counterargument to my thesis is that the "clear voice" requirement on which I rely should not apply when the alleged congressional spending condition in question is the only condition in the picture, as distinguished from the more common instances in which everyone agrees that Congress imposed some conditions on states for the receipt of federal funds, but the question is whether one or more additional conditions were stated clearly enough by Congress. Why should this difference arguably matter? Because when everyone agrees Congress has clearly imposed some conditions, and participating states have already satisfied those conditions, participating states can be said to have already done something for the federal government. If those states are then confronted with additional, arguably unclear requirements they must also satisfy, the terms of the bargain seem to be changed. Since the Supreme Court has observed, first in the seminal case of Pennhurst State School & Hospital v. Halderman, that "[l]egislation enacted pursuant to the spending power is much in the nature of a contract," when states take actions to satisfy some federal conditions, they could be said to have transferred "consideration" to the federal government (in the form of helping the federal government accomplish whatever policies are furthered by the conditions the states have met.) By contrast, if there is one and only one condition (and its clarity is in doubt), no states can be said to have given any consideration to the federal government in any respect.

But if the presence of consideration were necessary, a state faced with a statute that created a clear condition on federal funding alongside an arguable and in any event unclear condition would be unable, prior to the state's having done anything to satisfy the clear condition, to obtain a judicial declaration that the unclear condition is not valid on account of its lack of clarity. At most, a state could get a court to declare whether the unclear condition was in fact an actual condition. Yet I believe that a court in this situation would apply the "plain voice" requirement to free the state from having to satisfy any unclear conditions.

And remember too that the Court has said that conditional spending is "much in the nature" of a contract, not that it is a contract itself. And there is another doctrine, known as "promissory estoppel," that is "much in the nature" of a contract but that does not require consideration, and instead focuses on the reliance placed on a promise. Consider the following hypothetical. Congress promises a state $X of funding to be used for highway construction for each of the next three years. In Year Two, Congress's budget has provided for the expenditure, but now someone urges that there is the non-obvious requirement in the original statute that states that receive the funding raise their legal drinking age to 25. Could a state be allowed to object to this unforeseeable condition even though the state (up to this point) has not given the federal government anything beyond spending the federally disbursed money as directed? I think the answer is yes, because a state could have relied on the federal promise of funding in deciding how to budget its own state funds for roadwork. Or in deciding what roadway safety laws to enact or reject. And if this is true for road funding, the same would have to be true for money earmarked for healthcare. So if Congress promised three years' worth of federal funding to states for Medicaid (without requiring states to spend any matching funds during this period), and passed laws authorizing the federal expenditures, no one could try in Year Two to assert an unclear condition and apply it to the states, even if it were the only condition anyone had ever suggested was in the statute.

Now it is true, of course, that the states that accepted these (highway or healthcare) funds might not have actually relied on the federal promises when they built their own budgets or policies, and that these states would in fact be no worse off if an unclear condition were to be imposed after the statute was adopted than they would have been if the condition had been clearly expressed by Congress at the outset. But the same is true for the conditional spending mechanism struck down by the Court in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius, which I discussed extensively in Part One. When the Court there invalidated the Medicaid expansion provisions of Obamacare and said that states were not clearly on notice of the possibility of the conditions involved in the expansion when Congress first offered the states Medicaid money decades ago, the Court did not say, or even suggest, that had states actually been told way back when of a possible subsequent expansion that any states would have been likely to turn down the funding at the outset (even before the expansion condition was imposed). And, in fact, no one could suggest that states would have been likely to do that.

This tells us a couple of related things. First, the "clear voice" requirement is not about actual reliance, but rather even the mere hypothetical possibility of reliance on federal assertions. The "clear voice" requirement is a kind of a prophylaxis designed to avoid detrimental reliance before it occurs. And, like all prophylactic devices, it applies even to situations in which the evil to be avoided would not come to pass in any event. Second, and related, the "clear voice" requirement seems largely about showing respect for states by giving them all the information clearly up front to facilitate informed decision making, even if in the real world the decisions by states in such high stakes take-it-or-leave-it settings would not be likely to be affected much by additional clarity. In fact, this is precisely how the Court explained the "clear voice" requirement in Pennhurst, where the majority explicitly observed that "the crucial inquiry is not whether a state would knowingly [have acted differently if the condition had been clearly stated] but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice." In the context of Obamacare, if the setting up of a state exchange was in fact a condition for a state to receive federal tax credit subsidies, respect for states required Congress to say this "clearly [enough] that we can fairly say that the State could make an informed choice" about whether to set up an exchange or not.

Does It Matter Whether Federal Money Ever Enters State Coffers?

But what about the fact that the federal subsidies under Obamacare are going not necessarily into state coffers, but rather directly to the healthcare consumers? Does this feature automatically remove the case from the conditional spending doctrinal category? At least in the context of the King plaintiffs' reading of Obamacare, I think not. The key facts are that, under their reading, tax subsidies are available to individuals as citizens of a particular state qua citizens of that particular state, and subsidy eligibility turns on the actions of that person's particular state government to set up an exchange or not. To see the point, imagine that Medicaid moneys were given not to state governments (conditioned upon the states expending matching funds and doing other things), but instead were given to the individual citizen beneficiaries, but only in those states that had expended matching funds and satisfied other conditions. I think the "clear voice" requirement should still apply. It is true that an individual's eligibility for federal tax benefits can sometimes depend on the particularities of state law in the place of one's residence, and that perhaps not all such interrelatedness between federal and state law triggers the a "clear voice" requirement. But when Congress intends (as the King plaintiffs assert Congress did in Obamacare) to give a state the direct choice of doing something the federal government wants it to do, in return for which the federal government will provide billions of dollars' worth of federal subsidies targeted towards the eligible persons in that state, the state must be able to see that choice easily.

Nor is the situation altered by the fact that the federal subsidies may take the form of tax credits rather than moneys actually disbursed. In fact, the federal government may advance money to Obamacare subsidy beneficiaries (in the form of payments to health care insurers) prior to an individual filing her federal tax return, but even if that were not the case, there should be no difference between a credit and a dollar disbursement; both kinds of programs are enacted pursuant to Congress's power to "tax" and to "spend" for the "general welfare," and are thus laws "enacted pursuant to the spending power," to use the Court's phrase. Indeed, go back to Medicaid. If, instead of affirmatively doling out money to states conditioned upon their doing certain things, Congress credited states (that satisfied certain conditions) with respect to fees or payments those states otherwise owed the federal government, the "clear voice" requirement would surely apply as to the conditions that would generate the credits. (It is true that the Court under the Establishment Clause of the First Amendment has distinguished tax credits from expenditures, but its reasoning there was limited to certain peculiarities of Establishment Clause jurisprudence.)

Does The Federalism Argument Add Much to Other Arguments Already in the Case?

Finally, I think it important to reflect on why this federalism "clear voice" requirement could prove especially important in the King case. For starters, this is an argument that was not really addressed by the two judges of the D.C. Circuit who (last summer) ruled in favor of the reading of Obamacare advanced by the King plaintiffs, so we don't know whether judges who are otherwise inclined to agree with the King plaintiffs would be unpersuaded by the "clear voice" line of argument. Indeed, even the Fourth Circuit that rejected the King plaintiffs' reading did not rule on this argument (though a form of this argument was made in the State of Virginia's amicus brief), so if observers believe (as many do) the Supreme Court's grant of review in King means that there are at least four Justices who were unpersuaded by the Fourth Circuit ruling, having an argument that was not addressed in the Fourth Circuit opinion is a good thing for the federal government.

The Fourth Circuit did rely on a related, but importantly different, kind of requirement of statutory unambiguity-the so-called Chevron doctrine (named after the 1984 Chevron, USA, Inc. v. Natural Resources Defense Council case)-under which federal courts defer to an administrative agency's interpretation of an ambiguous statutory term, so long as the administrative interpretation is reasonable. But there are many reasons why one could reject Chevron deference in King and yet apply the "clear voice" requirement of Pennhurst. First, and most technically, Chevron deference applies only if Congress can be said to have delegated to the agency in question (here, the IRS) the authority to interpret the relevant provisions in the statute. Different Justices seem to require different levels of clarity in that initial delegation, and the 2013 Arlington v. FCC case (about which I wrote a Justia column) exposed unlikely rifts between ordinarily like-minded Justices on just how far Chevron should be extended. In particular, Chief Justice Roberts, joined by Justices Kennedy and Alito, declined to read Chevron broadly, largely because of fears that the federal executive had become too powerful and that giving federal agencies broad interpretive authority is particularly dangerous. In the context of Obamacare, there may be disputes about whether the Chevron framework should be applicable.

Second, even if the Chevron doctrine governs, under it federal courts must give effect to the "unambiguously expressed intent of Congress"; deference to the agency comes into play only after it is determined that Congress has not expressed such an unambiguous intent. Now it may seem that "unambiguous intent," and "clear voice" capture the same idea, but I don't think that the two concepts in these two settings are identical. In other words, it is possible to say that Congress's intent was expressed unambiguously such that Chevron deference doesn't apply, and yet still say that Congress hasn't spoken in a sufficiently clear voice to satisfy the Pennhurst standard. In particular, many courts (including the Supreme Court) have used legislative history behind a statute, and also the way a statutory term may have been used in earlier statutes, to determine whether Congress's intent with respect a particular statute was expressed unambiguously for Chevron purposes. But I can't see how those extra-statutory sources could be used to decide whether Congress has spoken in a "clear voice" to put states on adequate notice in the conditional spending realm. On top of that, a provision whose meaning takes too much work for states to discern, even within the four corners of a single convoluted statute, might not be expressed by Congress in a "clear voice," even if in the end Congress's will is discernable to a high degree of confidence.

Relatedly, and more generally, Chevron is about separation of powers-the relationship between Congress, the federal judiciary and the federal executive. That is why the initial inquiry under Chevron is how much Congress delegated to the federal agency and how certain we can be about "the intent of Congress." By contrast, the "clear voice" rule is about federalism-the relationship between the federal government and state governments. That is why, in conditional spending cases, the Court says that "[w]e must view [a federal statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [federal] funds. . . . " In conditional spending settings, we care less about how firm we are in our conviction of what Congress wanted, and more about what states would have necessarily understood.

Federalism and separation of powers push different buttons for folks. On and off the Court, many observers today seem to be (legitimately or not) concerned about broad assertions of federal executive authority. Recall that Chief Justice Roberts and Justices Kennedy and Alito have recently (in the Arlington case) expressed qualms about the breadth of Chevron precisely because they fear federal executive power. Chief Justice Roberts wrote that administrative agencies today "as a practical matter . . . exercise legislative power, . . . executive power . . . and judicial power. . ." and that the "accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan [, but rather] a central feature of modern American government." These Justices (and it's hard to imagine the federal government prevailing in King without winning over at least one of them) may be more receptive (as all three were in the Medicaid expansion setting in 2012) to arguments that are grounded in the distinctive respect owed states, and the Simon-says-like rules we should employ to make sure states aren't duped or misled into making decisions without being able to be aware of the consequences.

October 10, 2014

The Supreme Court to Consider When Threats Can Be Punished Consistent with the First Amendment

Co-authored by Professors Vikram Amar and Alan Brownstein. Cross-posted from Justia's Verdict.

'Tis the season to begin looking carefully at the Supreme Court's 2014-2015 docket, now that the Justices have returned from their summer recess and are hearing cases again. One interesting case to be argued in a couple of months, Elonis v. United States, raises questions about how courts should define so-called "true threats" that fall outside First Amendment protection and thus are subject to punishment. Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons, and his convictions were upheld by the U.S. Court of Appeals for the Third Circuit.

Background Facts of the Dispute

Mr. Elonis allegedly posted threats on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis wrote:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?"

In posts about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . "

Throughout his prosecution, Elonis has challenged the definition of a threat to be used by the jury, namely, that "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argues under the First Amendment (and also under the federal criminal statute he is charged with violating) that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. Elonis does not (and could not) argue that the government must prove a defendant intended to carry out the threat, but he does assert that the government must prove that he intended to place the victim in fear of bodily harm or death.

The Third Circuit (along with a large number of other circuits) rejected this kind of subjective intent requirement. Instead, it held that statements that are reasonably construed as threats by the listener can be punished under the First Amendment. Conversely, the Ninth Circuit (and a number of state high courts) has required the subjective intent to threaten as a predicate to a prosecution for threatening speech. The courts that do require subjective intent often rely on the Supreme Court's 2003 ruling in Virginia v. Black, where the Court upheld the major portions of a Virginia statute making intimidating cross burning illegal. While the Court upheld the ban on threats expressed through cross burning, however, it also struck down a part of the Virginia law that made burning a cross itself prima facie proof of intimidation and relieved the state of having to offer any other evidence as to the meaning of the accused's symbolic expression. In reaching its decision, the Court observed that "'true threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals . . . [whether or not] the speaker . . . actually intended to carry out the threat." The Court noted that prohibitions on threats protect individuals from the fear of violence and the disruption that fear creates, and not just from the likelihood of actual violence. The Court also observed that "intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person . . . with the intent of placing the victim in fear. . . ." Many of the arguments in Elonis focus on what this language from Black means.

The Issues Elonis Presents

Initially, we offer some relatively modest observations about First Amendment doctrine and Supreme Court practice illustrated by Elonis. First, this is a less-than-ideal vehicle to decide whether intent to threaten is statutorily or constitutionally required, since a reasonable jury might easily conclude that the evidence against Elonis establishes such intent in this case in any event. In other words, if Mr. Elonis wins at the Supreme Court, and the case is sent back for a new trial, a new instruction would be given to the jury but a conviction seems likely in any case. Certainly, the Court can (and will likely) reach the merits in Elonis if it wants to, but this is arguably not the best case for resolving the constitutional issue in dispute.

Second, the Court might avoid the constitutional question by reading a subjective intent requirement into the federal statute. If it does so, then it would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)

Third, notice that much of the debate in this case revolves not around core First Amendment principles, but rather what the Court meant in Virginia v. Black. The Third Circuit's reading of the words in Black certainly seems plausible; the Court's description of "intimidation" as including the intent to instill fear could, as the Third Circuit held, refer to a subset of true threats, rather than a definition of the entire category of true threats. And we think the Ninth Circuit misreads Black to the extent that the Ninth Circuit believes that the Court's result in Black necessarily implies the existence of a subjective intent requirement. Whether or not there is a subjective intent requirement, the Virginia statute that made cross burning prima facie evidence of a threat would be constitutionally problematic because it would relieve the government of having to show, in a case where the defendant exercised his right not to present a defense, that a particular cross burning was, in context, something a reasonable person would perceive as threatening (which is certainly true of many but not all cross burnings).

But more generally, we are not sure the Court in Black was offering a general answer to the question of whether subjective intent in a necessary element the government must prove to convict someone for expressing a true threat. Indeed, we think that assigning so much weight to the precise words Justice O'Connor used in her Black opinion misses the forest for the trees. Determining whether subjective intent is a constitutional prerequisite to punishing a speaker for expressing a true threat is an issue the Court needs to discuss and evaluate on its own terms, not as a derivative discussion of the meaning of ambiguous language in a case where the question was never explicitly raised and thus may not have been on the minds of the Justices whose language is being parsed.

Comparing Threats to Other Types of (Potentially) Harmful Speech

Our fourth, larger point goes to the heart of the matter. If subjective intent is required to hold a person liable under a threat statute when a reasonable person would understand the accused's expression to constitute a serious threat, the speaker who places a victim in fear of bodily harm or death will escape sanction when the government cannot prove beyond a reasonable doubt that the speaker intended to instill fear. But the First Amendment does not give speakers a right to cause, whether intentionally or not, this kind of fear and apprehension. The key free speech issue raised by this case is: When does the First Amendment prevent government from protecting people from speech that undeniably causes real harm because government action jeopardizes other important free speech interests?

We think the best way to analyze this question is to compare the treatment of threats with the treatment of other kinds of potentially harmful speech, such as incitement, defamation, and offensive speech. Threats are proscribed not just because they might lead to action, but because they inflict injury in themselves. Unlike, say, incitement, where the evil to be regulated is the possibility that a listener may be influenced to act on the speaker's words, threats wound by their very utterance. In this respect, laws banning threats are more akin to laws sanctioning defamatory speech. In providing civil sanctions for defamation, at least as to private figure victims, no subjective intent is required before government can regulate such expression, whereas in the former setting (of incitement), the First Amendment does seem to require intent to incite before punishment can be imposed. What accounts for this difference in treatment? The answer cannot be that society thinks incitement is necessarily less dangerous than defamation; the costs of incitement have always been recognized as significant.

One explanation for this difference in treatment is that the government's interest in punishing speech because such speech may influence the thoughts and actions of the audience goes to the very core of why we have a First Amendment. The foundation of free speech doctrine is the right to use speech to persuade others of the merits of our ideas. Thus, when speech is dangerous because it might be acted upon, we are more reluctant to regulate it, and we add the extra layer of a subjective intent requirement as protection against government overreaching. Where speech is dangerous because it causes harm directly, however, (as it does in defamation cases) the government's interests do not conflict directly with foundational free speech principles. Accordingly, we allow the civil sanctioning of defamatory speech without the extra buffer requirement of subjective intent.

Using this comparative analysis, we would ask whether speech that causes a reasonable person to fear that he or she is threatened with bodily harm or death is of sufficient constitutional value to justify courts adding the additional buffer of protection provided by a subjective intent requirement. We are not at all convinced that the value of such speech can justify allowing the harm it causes to go unsanctioned.

Another comparison-this one between threats, incitement and so-called offensive speech (use of vulgar and insensitive words, etc.)-may also be instructive. In the incitement realm we require government to prove intent and immediacy notwithstanding the harm that incendiary speech may cause not only because of our commitment to shielding persuasive speech from government prohibitions. We also recognize that there is a slippery slope with regard to punishing incitement. Every idea expressed with passion risks inciting its audience. And, accordingly, every idea that is critical of the government and its policies risks inciting anti-government behavior and violations of law. If we provide inadequate protection to incitement, all speech critical of government could be subject to sanction.

A similar analysis applies to the full protection we provide to offensive speech. Here too we recognize that offensive speech may cause its victims real harm and anguish. No one doubts that the grieving mourners at a soldier's funeral who were subjected to the disparaging speech of Westboro Baptist Church protestors suffered psychological torment. Yet in Snyder v. Phelps, the Court protected the protestors' right to express their hateful and hurtful message free from civil sanction. But here again we also recognize that tolerance of offensive speech is essential to the maintenance of a free speech regime. Every challenge to orthodoxy may offend some people who are comfortable with the status quo. We must vigorously guard against allowing speech to be punished simply on the ground that it offends people because restricting speech to serve this interest risks swallowing up a substantial part of the First Amendment.

Threats are arguably quite different. Unlike state interests justifying restrictions on incitement or offensive speech, the state's interest in protecting people from threats of physical violence that would instill fear in reasonable people seems more cabined and focused. We do not worry that core free speech principles would be undermined if speech that places reasonable people in fear of serious bodily harm or death is prohibited, whether or not the speaker intends his message to have such a frightening effect.

How Will the High Court Rule?

Some analysts predict the Court will reverse the Third Circuit and add a subjective intent requirement to the test for constitutionally proscribable threats. They say this because the current Court has been extremely protective of expression (even odious expression) in a variety of settings, and because so much speech today (especially in rap music and other popular forms of entertainment) is coarse and uses provocative and sometimes violent language. The notion would be that true threats should not be defined so broadly as to sweep too much of what people actually say in the real world within a category of unprotected speech. (Indeed, Mr. Elonis argues that the rap style of his Facebook postings makes his speech less threatening.)

We understand this argument, but aren't persuaded by it. The prevalence of violent imagery in music and other cultural venues in today's society should already be taken into account by the requirement (on which everyone agrees) that a listener's fear must be reasonable in context, and not based simply on some hypersensitivity to ugly, disturbing language. Unless there is a reason to fear that juries won't already factor changes in speech patterns into the definition of what reasonable people would experience as a threat, it is not clear, at least to us, that an extra element of subjective intent is needed here.

Before we conclude, we do note (circling back to our comparative analysis) that in the defamation setting, constitutional doctrine does require subjective intent (in the form of knowledge or recklessness as to falsity) when the victim is a public official. The case law is more protective of speech critical of our government officials than it is with respect to negative speech concerning private individuals. Perhaps the same should be true for threats; because we want citizens to be free to vent anger against their representatives, maybe we should allow them to engage in threatening speech except when they mean to instill fear. On the other hand, the requirement that a victim/listener feel reasonably threatened might itself be sufficiently flexible to protect vociferous ranting against officials, in that officials are less likely to be reasonable in feeling fear than are ordinary folks because officials should know that citizens may exaggerate their anger and rhetoric when it comes to government. In this regard, we emphasize that a reasonable-victim standard does not give juries carte blanche to punish speech whenever they desire; judges are perfectly capable of ruling that, as a matter of law, certain provocative words cannot, in modern and specific context, be understood by listeners as actual threats that put the listeners in reasonable fear of harm.

August 5, 2014

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

Cross-posted from Justia's Verdict.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 18, 2014

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

Blog entry cross-posted from Justia's Verdict.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Historical Examples

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

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

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

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