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January 20, 2016

United States v. Texas: Mountain or Molehill?

Cross-posted from ACSblog.

The Supreme Court granted certiorari this week in United States v. Texas; the case will undoubtedly be one of the term’s most interesting, important, or both. In a 2-1 decision, the Fifth Circuit invalidated the Obama Administration’s DAPA program making “deferred action” available to as many as four million unauthorized migrants who are parents of U.S. citizens or green card holders. Deferred action represents a formal decision by the government to exercise prosecutorial discretion not to initiate deportation proceedings; it creates neither a right to remain nor a path to permanent status. However, by regulation, the government may grant work authorization to holders of deferred action.

The Court will review several critical questions.

The merits issues are whether the administration had the power to establish the program, and if it did, whether it should have gone through formal notice and comment under the Administrative Procedure Act. As Congress does not appropriate enough money to completely enforce the immigration laws (or any other laws, for that matter) there is no question that prosecutorial discretion, for better or for worse, is inevitable. There is also little doubt that even in the government, bosses are allowed to give direction to subordinates about how programs are to be carried out.

The line between permissible “guidance” and formal, binding enforcement rules requiring notice and comment is debated by the parties. But given that the program does not purport to give noncitizens enforceable rights to relief and allows for case by case, discretionary evaluation of applications in the field, there is a strong reason to believe that the program constitutes permissible enforcement guidance. Certainly it is hard to dispute the idea that, in principle, discretion should be exercised consistently, transparently, and based on reasons rather than at the whims of individual officers in the field. I consider it unlikely that a majority of the Court will rule that general, non-binding guidance of this sort is impermissible.

However, the Court may well not reach the merits. Texas claims standing to sue on the ground that it chooses to offer non-citizens with deferred action discounted driver’s licenses, and creating more people with deferred action will likely result in more people seeking the discount. This self-created, de minimis harm is a thin reed for standing. It is particularly interesting because the Court sua sponte directed the parties to brief the question of whether the administration’s policy implicated the president’s obligation to take care that the laws be faithfully executed.

This case shows that states are often deeply concerned about federal law enforcement or lack thereof; 40-some states joined briefs supporting or opposing cert. I’m going to go out on a limb and predict that the Court will not rule both that states have standing on the ground that different federal enforcement policies would reduce their costs, and that states have the right to insist that the president enforce their preferred laws. If the Court did, we (and the Court) would witness an unprecedented blizzard of litigation.

Kevin R. Johnson has written about the politics of the case here.

January 19, 2016

The Supreme Court Adds ‘Take Care Clause’ to the DAPA Debate

Cross-posted from ACSblog.

The Supreme Court granted certiorari in United States v. Texas today, agreeing to hear the federal government's questions on its immigration policy and adding one more. The Court will decide whether the federal government's policy to postpone the deportations of millions who are in the United States in undocumented status is arbitrary and capricious, whether it was subject to the APA's notice and comment procedures, and whether the states have standing to sue. The Court added a question that was not decided in the lower courts, namely, whether the policy violates the Take Care Clause in Art. II, Sec. 3, which requires the president to take care that the laws of the United States are faithfully executed.

At issue in this case is the president's announcement of a guidance that would defer action on the undocumented noncitizens in the United States who have lived in the United States for five years and who came as children, or who have U.S. citizen or permanent resident children. The federal government claims that the president's guidance is permitted under immigration law, which allows the Department of Homeland Security to postpone, for its own convenience or for humanitarian reasons, the removal of noncitizens from the United States. The immigration statute also allows the Department of Homeland Security, for its own convenience, to issue employment authorization to these individuals. Notably, deferred action does not bestow any form of legal status on noncitizens, nor does it provide any benefit.

The most interesting part of the Court's grant is its signal that it will decide whether the president's guidance violates the Constitution's Take Care Clause. The questions of whether the president has faithfully executed the laws of the United States requires a deep understanding of the multi-dimensional nature of the immigration law at stake.

Immigration law has historically included both enforcement and humanitarian aspects. While the enforcement provisions give the executive branch wide latitude in determining whether individuals are removable, the humanitarian provisions also give the executive branch great latitude in determining whether removal is warranted given an individual's circumstances. By providing guidance on deferral of removal in a set of cases that warrant the executive branch's discretion - discretion delegated by Congress - the president has fulfilled his duties under the Clause.

If the Supreme Court accepts the multi-dimensionality of immigration law, it will find that the executive branch has done exactly what the Take Care Clause requires: It has created a guidance that reflects the multi-dimensional aspects of immigration law while maintaining its duty to stay within the contours of existing law.

January 19, 2016

United States v. Texas: A Constitutional Dialogue Years in the Making

Cross-posted from Immigration Prof Blog.

Not surprisingly, the Supreme Court granted the petition for certiorari in United States v. Texas, and the nation may receive the final word on the lawfulness of the 2014 program expanding deferred action for the undocumented parents of parents of lawful permanent residents and U.S. citizen children. The case raises important, complex, and significant legal issues with national ramifications. Although the immigration issues are critically important, the more general issues implicated by the case, such as the relative power of the Legislative and Executive Branches in the enforcement of the law, go well beyond immigration.

The case is rooted in many years of controversy over immigration and immigration reform. The legal issues are technical and have been, and will be, much-debated over the coming months. Many critics have vociferously challenged the Obama administration's executive action is attempting to arrogate power bestowed by the Constitution on Congress. My firm sense is that the constitutional dialogue is a healthy one about the boundaries on congressional and executive power on immigration.

To fully understand United States v. Texas, one also must appreciate that it is a product of at least a decade of national debate over immigration. There are many actors in long dialogue on immigration reform.

Congress

Over at least the last decade, Congress has debated various forms of immigration reform legislation. An enforcement-oriented bill passed by the House of Representatives led to memorable public protests in cities across the country in 2006.  To this point in time, no legislation has been passed and frustration exists among many Americans, immigrants, and political leaders.

In this vein, a potent political movement led by undocumented college students had demanded more narrowly focused reform of the immigration laws. The DREAM Act (Development, Relief, and Education for Alien Minors) has been proposed regularly in Congress, with support from, among others, conservative Senator Orrin Hatch (R-Utah).  Although garnering substantial support, it has not attracted sufficient support to be passed.  Most iterations of the DREAM Act would allow undocumented persons who came here as children to regularize their immigration status.

Congress has debated many bills that would have reformed the immigration laws. In the most recent attempt, the Senate in 2013 passed a bipartisan comprehensive immigration reform bill that would have provided a path to legalization for undocumented immigrants, reformed legal immigration provisions, and bolstered immigration enforcement.  Unfortunately, the bill never was sent to the full House of Representatives.

States

The failure of Congress to enact immigration reform had impacts as state and local governments in recent years have enacted immigration-related laws. Many of the laws were designed to facilitate immigration enforcement and implicated questions of federalism and federal supremacy.  The most well-known law of this type is Arizona's S.B. 1070, which the Supreme Court struck down as preempted by federal immigration law in large part in 2012 in Arizona v. United States.   

Other states, such as California, have sought to better integrate immigrant residents into the greater community. Laws extending driver's license eligibility to undocumented immigrants, and allowing them to pay resident tuition at public universities, exemplify those kinds of efforts.  

Executive Branch

The deferred action program has attracted considerable amount of attention. However, the Obama administration has made removals and immigration enforcement high priorities.  Through its Secure Communities and later Priority Enforcement Program, the administration targeted immigrants convicted of crimes for removal.  The hope was to establish a strong enforcement record and ultimately to convince Congress to enact comprehensive immigration reform.  To that end, the Obama administration has set annual deportation records a few years in a row and regularly removes hundreds of thousands of immigrants a year.  It also has taken enforcement-oriented positions, including detention of families and recently announced raids, attempting to deter Central Americans fleeing violence from coming to the United States.  

The Obama administration implemented the Deferred Action for Childhood Arrivals Program in 2012. In November 2014, the administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). A federal court in South Texas enjoined the implementation of the program and the U.S. Court of Appeals for the Fifth Circuit affirmed the injunction in November.  The Supreme Court now will review the case.

The Supreme Court

The Supreme Court has had regularly heard immigration cases for a number of years, often addressing cases in which the Executive Branch sought to remove long term lawful permanent residents for criminal offenses.  Last Term, the Court, for example, decided Mellouli v. Lynch  and rejected the effort to remove an immigrant for a minor drug paraphernalia conviction. In 2013, the Court rejected a removal order in Moncrieffe v. Holder based on a conviction involving the possession of a small amount of marijuana for personal use.

The Court's major immigration decision in recent years is Arizona v. United States.  The Court made it clear that federal law was supreme when it comes to immigration and invalidated several provisions of the Arizona law that it found intruded on that power.  The decision surprised some Court observers who predicted that the Roberts Court might uphold the Arizona law in its entirety. 

United States v. Texas

In United States v. Texas, the technical legal questions are as follows: (1) do the states have standing to challenged DAPA; (2) whether the Secretary of Homeland Security's guidance known as DAPA seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action is arbitrary and capricious or otherwise not in accordance with law; and (3) whether the guidance was subject to the Administrative Procedure Act's notice-and-comment procedures. In the background of the briefs is a claim under Article II of the Constitution that imposes a duty on the President unlike that he "shall take Care that the Laws be faithfully executed."  The Supreme Court specifically stated that the constitutional question was before it.

The politically charged nature of the issue brought amici briefs on the cert petition from many different quarters, including a bipartisan Former Members of Congress, Major Cities Chiefs Association, 184 Members of the U.S. House of Representatives and 34 Members of the U.S, Senate, the state of Washington and other states, former federal Immigration and Homeland Security Officials, Mayors of New York and other cities.

The outcome of United States v. Texas will be debated. What does seem clear is that the nation is engaging in a robust national debate about immigration law and policy.  We will see how that latest chapter unfolds before the Supreme Court.

November 25, 2015

On-Line Symposium on Texas v. United States -- Stephanie Medina and Holly Cooper: Rolling the DAPA and DACA Stone Uphill to the SCOTUS

Cross-posted from Immigration Prof Blog.

Here is the latest installment in ImmigrationProf Blog's On-Line symposium on Texas v. United States.

Rolling the DAPA and DACA Stone Uphill to the SCOTUS by Stephanie Medina, UC Davis Law Student, and Professor Holly Cooper

Last Friday, the U.S. Department of Justice filed a petition for a writ of certiorari to the Supreme Court of the United States (SCOTUS) asking the Court whether states have standing to try and block the implementation of President Obama's 2014 of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expanded version of Deferred Action for Childhood Arrivals (DACA). While the SCOTUS decides whether to hear the case, our country's deportation apparatus will continue to needlessly detain and deport thousands of undocumented immigrants who otherwise could have qualified for benefits under the new policy.

The UC Davis Immigration Law Clinic students, as part of monthly "Know Your Rights" trainings at the immigration detention centers, have witnessed the impact firsthand. Many of the detainees who attended the presentations were fathers of U.S. citizen children fighting to stay in the U.S. to care for their U.S. citizen children. For some fathers, this was their second or third time trying to reunite with their children. Oftentimes, the emotional cost of deportation is too much to bear. The missed quinceañeras, the missed graduations, and the longing to be with one's child overtake the deportee and they try return to the U.S. to reunify with their children. The deported mothers and fathers will try and return to their children in the U.S. again and again-despite the risks of the journey.

In symphony with the suffering of their parents, the U.S. citizen children are taking to the streets protesting. Their collective voices hold the U.S. accountable to the human and familial cost of deportation. Emboldened by the protests on the outside, detainees are commencing hunger strikes throughout the nation's detention centers. A collective "Ya basta!" hangs like a cloud over the petition for a writ of certiorari.

If the SCOTUS permits the Department of Justice to implement DAPA and expanded DACA, millions of parents would be allowed to remain with their children in the United States-saving millions of dollars on unnecessary deportations. On the other hand, denying millions of undocumented persons some semblance of dignity will degrade the human character of the United States.

November 3, 2015

Some Thoughts on the Oral Arguments in the Supreme Court in Torres v. Lynch: The Latest Crimmigration Case is Too Close to Call

Cross-posted from Immigration Prof Blog.

This morning, the Supreme Court heard oral arguments in Torres v. Lynch, which was previewed on the ImmigrationProf blog last week.   Here is the transcript to the arguments.

The case involves another effort by the U.S. government to remove a long term lawful permanent resident of the United States based on a single -- and relatively stale -- criminal conviction.  As discussed in my preview to the arguments, the Supreme Court has taken a number of criminal removal cases in recent years, with the immigrant winning a majority of them.  See, e.g., Moncrieffe v. Holder (2013); Carachuri-Rosendo v. Holder (2010).

Jorge Luna Torres, a lawful permanent resident from the Dominican Republic, came to the United States in 1983.  The sole blemish on his record is a 1999 conviction under a New York arson statute, for which he was sentenced to one day in jail and five years of probation.  In 2006, Torres was denied re-entry into the United States as inadmissible because of the conviction of an "aggravated felony."  Torres is now gainfully employed and engaged to be married.

The technical -- and dry -- legal question presented by the case is whether a state offense constitutes an "aggravated felony" under Immigration and Nationality Act § 101(a)(43), 8 U.S.C. § 1101(a)(43), on the ground that the state offense is "described in" a specified federal statute but the federal statute includes an interstate element not found in the New York arson statute.  Conviction of an "aggravated felony" has significant immigration consequences; such a conviction renders a noncitizen, including a lawful permanent resident, subject to mandatory removal and detention and makes him or her ineligible for almost any relief from removal.  

As described by Steven Vladeck on SCOTUSblog, the Third Circuit was the first court of appeals to consider the specific question whether conviction under the New York arson statute constituted an aggravated felony; it departed from four circuits that concluded that state law offenses could constitute aggravated felonies even if the federal statute those offenses were "described in" included am imterstate element that the state offense lacked. The Second Circuit agreed with the majority of courts of appeal and disagreed with the Third Circuit.  The court explained that under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-844 (1984), it was required "to defer to an agency's reasonable interpretation of the statute it administers."  For additional analysis of the legal issues and background in the case, click here.

The basic thrust of the arguments cover familiar doctrinal terrain: 

(1) what is the proper interpretation of the U.S. immigration laws?; 

(2) the application of the rule of lenity in cases involving the criminal removal grounds; and

(3) the deference properly afford the Board of Immigration Appeals (BIA). 

See, e.g., Kawashima v. Holder (2012).  

Torres argues that the plain language of the statute governs and that, if there are any ambiguities, the rule of lenity favoring the narrower interpretation of the removal provision in question.  In contrast, the U.S. government argues that the language of the statute and its context justifies removal and that deference to the BIA is required under Chevron.  For analysis of a number of cases raising similar issues in the Supreme Court in the 2009-13 Terms of the Court, click here

Matthew L. Guadagno, a sole immigration practitioner in New York City, argued on behalf of Petitioner Jorge Torres.

Elaine Goldenberg, Assistant to the Solicitor General, argued for the United States.

I did not attend the oral argument and gleaned whatever insights that I could from the transcript.  Here they are for what they are worth.

All in all, each attorney received heated questions from the Justices, with a specific focus on the technical intricacies of the statutory provisions in the Immigration and Nationality Act in question.  Guadagno had some rocky moments but so did Goldenberg. 

Justice Sotomayor seemed troubled that the Petitioner did not adopt the statutory argument of what she said was the National Association of Criminal Defense Lawyers but seems to have been the argument of the National Immigrant Justice Center and the American Immigration Lawyers Association (page 14) i.e., that the statute should be limited to convictions for "explosive material" offenses.

There was general concern about the implications of the interpretations of the statute offered by both the Petitioner and the U.S. government. 

Torres' interpretation might allow serious arsonists to not be found to have committed an "aggravated felony," a concern expressed by Justice Breyer.  One concern raised by the government was that some child pornography offenses without interstate elements might fall outside the purview of "aggravated felony" if Torres' interpretation was accepted. 

On the other hand, Justice Ginsburg worried that the U.S. government's position might result in mandatory  removal (i.e., no room for administrative discretion) of Torres for a relatively minor arson conviction, with his sentence being one day in jail and five years of probation.  Goldenberg somewhat surprisingly pounced on this expression of sympathy, taking no prisoners:  "That's right that he can't obtain cancellation of removal, and that's consistent with Congress's intent in putting the aggravated felony provision into place, which was to constrain the attorney general's discretion . . . ."  It was mentioned several times during oral argument that the record was not clear about the precise facts surrounding Torres' arson conviction.  

Chevron deference only came up as a mere afterthought in the arguments.  Justice Ginsburg asked what respect was owed the BIA's interpretation.  Guadagno said that it was not owed "any" deference.

I have a hard time predicting how the Court will decide Torres v. Lynch.  It seems like a very close call to me but, if I had to guess, the U.S. government's tough position may win out.  My sense is that Chief Justice Roberts and Justice Alito were convinced by the government's  arguments. 

Depending on the Supreme Court's decision, the case could have an impact on many criminal removal cases, which have been the centerpiece of the Obama administration's immigration enforcement efforts. 

 

 

October 23, 2015

Speaking at Case Western Law Review Symposium on Whren v. United States

I traveled to Cleveland this week to participate in the Case Western Law Review's symposium on the 20th anniversary of the Supreme Court's major traffic stop decision, Whren v. United States. The decision let stand a criminal conviction based on a traffic stop that appears to have been based on race.  The participants considered whether the Whren decision has resulted in systematic racial bias in the criminal justice system. My paper, "Race-Based Law Enforcement: The Racially Disparate Impacts of Crimmigration Law," considers how the current practice of deporting noncitizens with criminal problem, including simple arrests as well as convictions, results in the overwhelming percentage of the immigrants removed from the United States (96%) are Latino even though they comprise a much smaller part of the immigrant -- legal and undocumented -- population.  Removal disparities are a collateral consequence of the racial profiling in law enforcement permitted by the Supreme Court in Whren.  

It was an energizing conference and I loved the opportunity to participate.

September 25, 2015

"Liberty or Equality?" and the Obergefell Opinion

On Wednesday, September 23, I presented the annual Anthony Kennedy Lecture at the Lewis & Clark Law School.  The subject of my talk was "Liberty or Equality?", and the topic was Justice Kennedy's majority opinion in the recent Obergefell case, recognizing a constitutional right to same-sex marriage.  In the first part of my lecture, I placed the Obergefell opinion in context, taking into account Justice Kennedy's place on the current Court, and his past jurisprudence.  In particular, I noted that while Justice Kennedy is undoubtedly the co-called "swing Justice" on the Roberts Court, he is quite different from past swing Justices such as Sandra Day O'Connor and Lewis Powell.  The latter were considered to be moderate pragmatists, lacking strong judicial philosophies.  Not so for Justice Kennedy.  From his first years on the Court, his jurisprudence has been notable for a passionate commitment to Liberty in all of its aspect, and his firm belief that protection for Liberty is intrinsically tied to protection of individual Dignity.  This commitment appears in his  privacy jurisprudence of course (culminating in Obergefell), but also in other areas including notably free speech -- it is no coincidence that Kennedy is the preeminent advocate of First Amendment liberties on the modern Court.  Moreover, unlike his colleagues, Justice Kennedy's commitment to liberty transcends political boundaries, encompassing such "liberal" Liberty claims as abortion and the free speech rights of pornographers, and such "conservative" claims as property rights and commercial speech.  It is this lack of partisanship, rather than lack of philosophy, that has placed Justice Kennedy at the center of the modern Court.

I then stirred up the pot a bit by raising some doubts about Obergefell, at least as written.  I noted that the plaintiffs in the case had raised both Due Process (i.e., Liberty), and Equal Protection (i.e., Equality) claims, and the Court's formulation of the questions presented preserved both.  Yet Kennedy's opinion is almost all Liberty, with a tiny dollop of Equality almost as an afterthought.  I suggested that this emphasis is probably a product of Kennedy's own preferences and comfort levels.  While Justice Kennedy has always been a strong advocate of Liberty claims, his relationship to Equality is more ambivalent.  He unquestionably is firmly committed to nondiscrimination principles, and even (unlike his conservative colleagues) a commitment to racial integration.  However, he has demonstrated -- notably in affirmative action cases -- grave discomfort with policies that classify individuals based on qualities such as race.  Indeed, this discomfort ties into his commitment to Dignity, because he sees such typecasting as itself in consistent with individual Dignity.  As a consequence, Liberty must have seemed the easier path to take.

Ultimately, however, I do believe this choice was a mistake, for several reasons.  First, I think that jurisprudentially, Equality is the stronger argument.  The Court's entire substantive due process jurisprudence, which was the basis of the Due Process holding in Obergefell, rests on somewhat shaky foundations, given its lack of textual grounding.  Equal Protection, on the other hand, is a well-established, textually based doctrine.  And the argument for extending heightened scrutiny to discrimination against LGBT individuals strikes me as extremely powerful, under existing precedent.  Second, an Equality based holding would have been broader, granter more protections to sexual minorities than a narrow decision focused on marriage.  Third, it is possible that an Equality based holding would have generated less intense opposition than a holding that redefines marriage (though this is admittedly speculative).  Finally, I also believe that Justice Jackson was correct in his argument, in the Railway Express case, that in a democracy, equality-based constitutional decisions are generally preferable to liberty-based ones, because they interfere less in legislative authority.

September 25, 2015

Corporations, the Constitution, and the Rights of Others

Cross-posted from Columbia Law School's Blue Sky Blog.

The Supreme Court's protection of corporate political expenditures in Citizens United v. FEC and corporate religious exercise in Burwell v. Hobby Lobby has rekindled perennial fears about the influence of corporations in U.S. politics and policy. One popular response has been to argue for stripping corporations of constitutional rights. For example, the proposed "People's Rights Amendment" would exclude corporations from the categories of "people, person, or citizen as used in this Constitution,"[1] thus denying corporations the constitutional rights of human individuals.

Unfortunately, denying corporate constitutional rights is unlikely to have much effect. Insofar as the Supreme Court has protected corporations under the Constitution, that protection does not expressly rely on the notion that a corporation per se has constitutional rights. To the contrary, a central strategy of the Court's corporate constitutional jurisprudence has been to avoid deciding whether corporations are the holders of constitutional rights. Constitutional decisions protecting corporations have not been based on the rights of corporate "persons," but on the less controversial rights of human persons. That is, "corporate" constitutional rights are actually based on the rights of others.

The Court does this in two ways. First, it sometimes treats a corporation as no more, and no less, than an "aggregation" of human individuals whose rights are the real rights implicated in corporate constitutional questions. Hobby Lobby expressly states the Court's reasoning: the corporate "person" is merely "a familiar legal fiction" created to protect the rights of "the people (including shareholders, officers, and employees) who are associated with the corporation." Thus the Fourth Amendment prohibits unreasonable search and seizure of corporate papers because such papers implicate the property and privacy rights of individuals. By contrast, a corporate entity cannot invoke the Fifth Amendment's protection against self-incrimination, because no individual's rights are compromised when a corporation (in contrast to, say, a CEO) is compelled to incriminate itself.

In the First Amendment free speech context, the Court bases corporate protection on individuals' rights in a second, very different way. The so-called "listeners' rights" theory of the First Amendment protects the public's right to hear messages, and thus requires neither a corporate nor an individual "right" to speak. Thus in Citizens United (and earlier, in First National Bank v. Bellotti (1978)) the Court held that corporate political spending must be protected in order to protect voters' First Amendment rights to receive diverse sources of political information.

The Court, then, has avoided the mistake of equating corporations with human individuals for constitutional purposes. However, its "rights of others" approach suffers from a different error: a fundamental misunderstanding of the corporate decisionmaking process. In the "aggregation" cases, the Court purports to protect the individuals associated with the corporation, but this erroneously assumes that the corporation's acts are in effect the acts of those individuals. The Court makes a similar error with respect to corporate political spending. Even if listeners have an interest in hearing corporate messages, that may conflict with the rights of the corporation's constituent individuals if they disagree with those messages. Citizens United dismissed this concern on the ground that shareholders control a corporation's messages through "corporate democracy."

Small, family-run corporations, such as that involved in Hobby Lobby, may accurately represent the wishes of their constituents.  The same is not true of larger corporations, however.  Corporate law does not, and is not intended to, run corporations in a "democratic" way. Rather, in the interests of money-making efficiency, the law concentrates power in professional managers. They enjoy nearly unreviewable discretion to control the resources of the corporation with negligible input from shareholders.

As intended, this arrangement is likely to benefit shareholders financially. But it does not protect them from corporate political spending or other speech acts they disagree with. Shareholders can sue management only for deliberate malfeasance, and political spending has been treated as a proper matter for management discretion. Furthermore, the Court itself has stated that corporate rights are meant to protect not only shareholders, but also other corporate constituents, such as employees. Those individuals, however, have even less power than shareholders with respect to corporate decisionmaking. Employees cannot vote in corporate elections and can be fired for disagreeing with management.

The protection of corporate constituents may present a compelling state interest justifying the regulation of corporate speech. Corporate political spending in particular could compromise the speech and property interests of corporate constituents who may disagree with the political message. This argument questions the reasoning of Citizens United, and is consistent with the proposed "Democracy for All Amendment," which would expressly permit campaign finance law to regulate corporations and natural persons differently.[2]

ENDNOTES

[1] See S.J. Res. 18 & H.J. Res. 21, 113th Cong. (1st Sess. 2013). I should disclose that I am a member of the Legal Advisory Committee of Free Speech for People, an advocacy group that supports this amendment, as well as the "Democracy for All Amendment," discussed below. See Free Speech for People, www.freespeechforpeople.org.

[2] See S.J. Res. 19 & H.J. Res. 119, 113th Cong. (2nd Sess. 2014).

The post is adapted from the recent article, Corporations and the Rights of Others, 30 Const. Comment. 335 (2015), which is available here.

August 28, 2015

Professor Peter Lee on "The Supreme Assimilation of Patent Law"

Professor Peter Lee, a leading scholar of patent law, has a new article that will be published in the Michigan Law Review next year. The article is titled "The Supreme Assimilation of Patent Law," and it presents a descriptive theory of Supreme Court patent jurisprudence.

Here is the abstract:

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court's recent decisions reflect a project of eliminating "patent exceptionalism" and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as appellate review of lower courts, remedies, and the award of attorney's fees. The Supreme Court has consistently sought to eliminate patent exceptionalism in these and other areas, bringing patent law in conformity with general legal standards. Among other implications, this development reveals the Supreme Court's holistic outlook as a generalist court concerned with broad legal consistency, concerns which are less pertinent to the quasi-specialized Federal Circuit. Turning to normative considerations, this Article argues in favor of selective, refined exceptionalism for patent law. Although the Supreme Court should strive for broad consistency, certain unique features of patent law-particularly the role and expertise of the Federal Circuit-justify some departure from general legal norms. Finally, this Article turns to tensions between legal universality and exceptionalism more broadly, articulating principles to guide the deviation of specialized areas of law from transcendent principles.  

You can download Peter Lee's paper at SSRN.

 

August 18, 2015

The “sock removal” case continues: Mellouli v. Lynch and compliance with the Court’s mandate

Cross-posted from SCOTUSblog.

Last June, the U.S. Supreme Court provided Moones Mellouli, a lawful permanent resident who had been ordered removed from the United States, with a victory in his efforts to reverse a removal order.  The Court held that "[f]ederal law ([8 U.S.C.] 1227(a)(2)(B)(i)  . . . did not authorize Mellouli's removal." It did not remand the case to the court of appeals or the Board of Immigration Appeals for further proceedings, thereby suggesting that the case had come to an end.  Nonetheless, there now is a squabble between Mellouli and the U.S. government over just how big Mellouli's victory was.

The Court ruled that Mellouli's removal order based on a single conviction under Kansas law for possession of drug paraphernalia - in this instance, a sock used to conceal a few tablets of a prescription drug - was not authorized by federal immigration law.  The case was returned to the U.S. Court of Appeals for the Eighth Circuit, which, without notice or briefing, remanded the case to the Board of Immigration Appeals (BIA) for further proceedings consistent with the Court's opinion.  A close reading of the order suggests that the court of appeals thought that, despite the seeming finality of the Supreme Court ruling, there still might be a way to remove Mellouli under the drug provisions of the immigration statute.

After the Court's decision, the parties discussed possible resolution of the case.  The U.S. government ultimately announced that it planned to dismiss the removal proceedings without prejudice, thereby leaving open the possibility of reinstituting the proceedings against Mellouli at some point.  In contrast, Mellouli wants to ensure that the proceedings are dismissed with prejudice.

In the Supreme Court, Mellouli now seeks Justice Alito, who disagreed with the majority's rejection of the removal order in Mellouli v. Lynch, to issue a stay to allow Mellouli to pursue efforts, including possible mandamus, to require the U.S. government to dismiss the removal proceedings with prejudice.

One might guess that Justice Alito, as well as the entire Court, would not want to tinker with the intricacies of the implementation of the Court's decision.  However, Mellouli claims that the court of appeals is violating the Court's ruling by remanding for the BIA to come up with a way for justifying removal under the drug provisions of the removal statute when the Court has already ruled that Mellouli is not removable under its provisions.  Efforts to circumvent the Court's ruling just might get Justice Alito's attention.  Indeed, something in Mellouli's stay motion apparently did get his attention and persuaded Justice Alito to request a response by the Department of Justice by 4 p.m. EST on August 20.

In addition, the matter of the finality of the Court's ruling is no small matter to Moones Mellouli.  Mellouli wants certainty that the minor drug paraphernalia conviction does not possibly lead to further removal proceedings and possible detention if he returns to the United States.  He already experienced threatened removal once, having been forced to leave the United States and his fiancé.  (Mellouli remains living outside the country.).  The nature of Mellouli's concerns, and the great potential harms he faces, offers insights into why removal matters differ from the ordinary civil matters handled by the courts.

All in all, the struggle between the Justice Department and Moones Mellouli might seem like small potatoes.  One might legitimately ask, however - as many did as the United States pressed a minor drug paraphernalia involving a sock all the way to the Supreme Court - why the U.S. government is taking such tough litigation positions to no apparent greater end.