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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.

July 1, 2015

What the Supreme Court Should Have Said in the Confederate Flag Texas License Plate Case

Cross-posted from Justia's Verdict.

Display of the Confederate battle flag on government-owned property has certainly gotten a lot of attention of late. The Supreme Court ruled 5-4 a few weeks ago, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., that Texas could, consistent with the First Amendment, reject a specialty license plate design submitted by a non-profit entity due to the design’s prominent use of the Confederate battle flag, even though Texas had approved a disparate array of some 350 other designs submitted by various individuals and organizations depicting messages ranging from “I’d Rather Be Golfing” to the names of a number of (out-of-state) universities to “MIGHTY FINE” to “GET IT SOLD WITH RE/MAX.”

And, in the wake of the Charleston church shootings that occurred a day before Walker was handed down, there have been calls made and steps taken by (Republican as well as Democrat) elected leaders to remove the Confederate battle symbol from statehouses in places like Alabama and South Carolina.

Interestingly, the latter episode sheds light on how the Court should have handled the former—the Walker dispute. In short, the Court should have treated Walker more as a Confederate battle flag case, and less as a license plate case.

Why Justice Breyer’s Majority Opinion In Walker Is Unconvincing

Many able analysts, including some of my fellow Verdict columnists writing in other venues, have exposed some of the major shortcomings of Justice Breyer’s majority opinion, which holds that specialty license plates in Texas are “government speech,” such that the government is largely free to pick and choose—even on the basis of viewpoint—which messages shall be allowed on specialty plates mounted on Texas-registered vehicles. Justice Breyer’s opinion gives a few reasons why the Court believes specialty plates should be treated as government speech. First is that states have historically used license plates as a means of promoting government messages—such as a state’s motto or some iconic image of the state which its leaders want viewers to think of when the state comes to mind. Fair enough, but Justice Breyer is relying here on a prior era, and one in which Texas (and other states) had but a single, or a few, messages it allowed on any of the plates registered in the State. By opening up its license plate regime and approving over 350 disparate messages, Texas has changed the essential purpose (beyond identification of the car’s owner) of the license plate platform from government speech to private speech. And this is not a phenomenon unique to license plates. There might be a lot of public properties that once were used substantially for government speech, but that have been converted into limited or designated or nonpublic fora (where the government is no longer free to discriminate against particular viewpoints) by the government’s decision to open up the property so widely. And it is no response to a claim of improper viewpoint discrimination in any of these kinds of fora to say that the property was originally used for government speech.

The second argument Justice Breyer makes is that license plates are closely associated or identified with the state in the public’s mind. Justice Breyer adds that “a person who displays a message on a Texas license plate likely intend[s] to convey to the public that the State had endorsed the message. If not, the individual could simply display . . . a bumper sticker.” Again, that might have been true of Texas license plates in an early era, but as Justice Alito’s withering dissent points out, no remotely reasonable viewers would ever actually think, after driving Texas roads for even a short time, that Texas really supports messages like “Go [Michigan State] Spartans,” or “Roll [Alabama] Tide Roll.” Or that the person whose plate bears one of these messages actually chose the plate design over a bumper sticker in order to obtain a state imprimatur (as opposed to preferring a specialty plate over a sticker because of the permanence and cleanliness of a plate, and to avoid any stigma tied to the use of bumper stickers.) I also find it interesting that questions such as these are empirical ones, and yet the Court makes broad findings in this regard without any (easily obtainable) evidence. (This lack of empirical input concerning public perceptions was also a feature of another First Amendment case, Williams-Yulee v. Florida Bar, about which I wrote a column six weeks ago).

A Better Framing of the Issues Implicated by Walker

In spite of its analytic weaknesses, Justice Breyer’s opinion arrives at a result that many observers, on and off the Court, find intuitively correct. Can the Lone Star State really be forced to have the word “TEXAS” that runs accross the top of every license plate in the State appear just a few inches from the Confederate battle flag symbol? Walker, it is worth noting, was a rare case in which Justice Clarence Thomas joined the four “liberal” Justices to create a very unlikely 5-4 majority. Odd lineups like this usually suggest that something interesting is going on, but what might be the key to unlocking Walker?

For me, the critical fact in the case is one to which the Court gave virtually no attention—that the symbol at issue is not just an offensive one (representing, as it does, slavery, rebellion, and a combination of the two, whether or not it stands for other things as well.) It is a symbol that originated as government speech by, among other Confederate states, the State of Texas, and that is thus linked to those state governments, including Texas, who are responsible for its prominence and its (ugly) messages. The flag was adopted and used in battle by Confederate states from late 1861 until the fall of the Confederacy, and then utilized extensively by racist governors and other officials to resist desegregation during the Civil Rights movement. So even if Texas were required to permit racial slurs on specialty plates (a matter about which I’m not sure – perhaps Texas, because of its history concerning race, has a strong interest in separating itself from any racist message that, if attributed to the state, might raise equal protection problems), the present case is different: the Confederate battle flag is worse in this regard than a racial slur; it is akin to a racial slur that was adopted and previously used as a state’s motto.

Because Texas has a distinctive association with use of the Confederate flag, it has a distinctive (and non-censorial) reason to want to avoid improper attribution on its property, including its license plates. I am not saying that government owns the intellectual property rights to control the use of flag symbols—the famous Texas v. Johnson case invalidating a law prohibiting flag-burning rightly rejected that idea. Rather, because the risk of misattribution is greater with respect to the use on government property of symbols that had formerly been used by the government itself than it is with respect to other messages, the government has a correspondingly stronger reason (other than censorship) to regulate.

For example, if New Hampshire changed its motto from the traditional “Live Free or Die” message that has been appearing on its license plates for decades (and that was the subject of the other famous Supreme Court case involving a license plate, Wooley v. Maynard) because the State no longer embraced that principle, and it had a specialty plate scheme in which an applicant wanted that creed to physically appear near the words “NEW HAMPSHIRE,” the State would have a strong interest in rejecting that design to avoid any confusion.

If the approach I offer here had been the basis of the majority’s decision in Walker, various problems that Justice Breyer’s opinion creates going forward would have been avoided. If Texas specialty plates really are “government speech,” then how can the State approve and allow the design (which it has) bearing the words “Knights of Columbus,” a distinctively Catholic fraternal service organization? If people identify that design with lawmakers in Austin, isn’t there an Establishment Clause problem? And if the license plates are government (rather than private) speech, then Texas can reject a design bearing the words “Pro-Choice” even though it has already approved one bearing the words “Choose Life.” Does that kind of asymmetry make sense?

It may well be that the rationale I suggest today could, if adopted, mean that some states (i.e., those particularly associated with the Confederacy or racism) would have more latitude than others to reject the Confederate flag on specialty plate designs, and that the rejection by some states (that lack the historical association) would look like censorship, pure and simple. But even if that is true, we should remember that other equality-based constitutional doctrines are similarly contextual. For example, a jurisdiction that has engaged in racial discrimination may have more latitude to engage in race-based remedial action than one that hasn’t. The “government speech” rationale adopted by the Court may seem to create a cleaner line than the test I offer here, but in the long run it is (I suspect) less honest and will be more problematic in future disputes.

June 15, 2015

Opinion analysis: Limited judicial review of consular officer visa decisions – foreshadowing the result in the same-sex marriage case?

Cross-posted from SCOTUSblog.

Today, a splintered Supreme Court issued a ruling in Kerry v. Din.  The case raised the question of the continuing vitality of the doctrine of consular non-reviewability and its prohibition of judicial review of visa denials by Department of State consular officers. The doctrine is a close cousin of immigration law's extraordinary "plenary power doctrine," which emerged in the late 1800s to uphold laws restricting immigration from China and, in its modern incarnation, immunizes the U.S. immigration laws from ordinary constitutional review.

Over the years, the courts have recognized exceptions to consular absolutism. The most well-known modern example is Kleindienst v. Mandel (1972). In that case, the Supreme Court reviewed a claim brought by U.S. citizens that the exclusion of a Marxist journalist from the United States violated their First Amendment right to hear him speak. In reviewing the visa decision, the Court found that the applicant's violation of the terms of visas on previous trips to the United States was a "facially legitimate and bona fide reason" - and thus legally sufficient - justification for the U.S. government's actions.

Kaniska Berashk is a citizen of Afghanistan and the spouse of Fauzia Din, a naturalized U.S. citizen. Based on his marriage to a U.S. citizen, he applied for a visa for which he was prima facie eligible under the Immigration and Nationality Act. A consular officer in the U.S. embassy in Islamabad, Pakistan, denied the visa application. One could guess that the denial was based on the fact that Berashk had worked as a payroll clerk for the Afghan Ministry of Social Welfare, part of the national government at one time controlled by the Taliban. The officer did not so state, however, instead relying on the immigration statute's broad definition of "terrorist activities," which Congress had greatly expanded in 1996 immigration reform legislation and later in the USA PATRIOT Act. The officer provided no explanation of what Berashk specifically had done to warrant the visa denial. Din sought judicial review of her husband's visa denial and forced separation from her. Applying Kleindienst, the court of appeals found that the consular officer's perfunctory citation to the statute was an insufficient ground for the denial.

Before the Supreme Court, the Obama administration took a firm position and relied heavily on two Cold-War-era decisions that immigration law professors love to hate: Knauff v. Shaughnessy (1950); in which the Court held that the non-citizen wife of a U.S. citizen could be denied admission based on secret evidence, and Shaughnessy v. United States ex rel. Mezei (1953), in which the Court refused, based on secret evidence, to allow a long-term U.S. resident to return to the United States after a trip abroad to visit a dying relative, even when the resident faced the prospect of indefinite detention because his native country would not accept his return. Seeking to limit Kleindienst to its facts, the U.S. government argued that it possessed absolute authority to exclude non-citizens from the country and that there therefore is no right to judicial review of visa denials by consular officers.

The opinions of the Justices reveal that the case appears to have been more a battlefield over the scope of constitutional due process rights to marriage - and thus perhaps to the same-sex marriage case (Obergefell v. Hodges) currently before the Court - than a case involving judicial review of visa decisions.

Justice Antonin Scalia announced the judgment of the Court and delivered an opinion, in which Chief Justice John Roberts and Justice Clarence Thomas joined. In the view of the plurality, Din did not have a constitutional right at stake that justified judicial review: "What Justice Breyer's dissent strangely describes as a 'deprivation of her freedom to live together with her spouse in America' . . . is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse's freedom to immigrate into America."

Recounting the long history of regulation of the immigration of spouses of U.S. citizens to the United States (that includes the stripping of U.S. citizenship from women who married foreigners), Justice Scalia took pains to criticize Justice Stephen Breyer's assertion (in his dissent) that Din had a constitutional right at stake. He concluded that "[t]o the extent that she received any explanation for the Government's decision, this was more than the Due Process Clause required." Consequently, the Ninth Circuit ruling to the contrary was vacated and the case was remanded for further proceedings.

Justice Anthony Kennedy, joined by Justice Samuel Alito, concurred in the judgment. While agreeing with the plurality that the case must be vacated and remanded, Justice Kennedy stated that, "rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband's visa denial satisfied due process." Refusing to join Justice Scalia's recounting of the case law on the scope of the right to marriage, Justice Kennedy would find that the reasoning offered by the consular officer for denying the visa satisfies Kleindienst, suggesting that national security justifies the minimal justification offered for the denial.

In dissent, Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, would conclude that Din "possesses the kind of 'liberty' interest to which the Due Process Clause grants procedural protection. And the Government has failed to provide her the procedure that is constitutionally 'due.'" "[T]the liberty interest that Ms. Din seeks to protect consists of her freedom to live together with her husband in the United States. She seeks procedural, not substantive, protection for this freedom."

Like the Ninth Circuit and unlike Justice Kennedy, Justice Breyer would require a more complete explanation for the visa denial than the one provided to Din and Berashk. To the four dissenters, the consular officer's statement in this case (the citation to the statute's "terrorist activity" provisions) was inadequate because (1) the terrorist activity provision literally lists dozens of activities that can lead to the denial of a visa; and (2) there was no factual basis for the specific denial of a visa to this applicant. The dissent also rejected the idea that national security concerns justify the cryptic denial in this case.

Because there was no majority opinion, today's decision probably will not dramatically change the doctrine of consular non-reviewability. The debate between the Justices in this case was really about the scope of Din's constitutional right, not judicial review of a consular officer's decision. One would not be surprised if the Justices had the same-sex marriage case in the backs of their minds, with four Justices viewing the right more broadly than the plurality and Justices Kennedy and Alito refusing to join the narrow view of the right articulated by Justice Scalia.

However, the Court offers hints about the future of judicial review of immigration decisions. A majority of the Court is willing to allow some kind of review of consular officer visa decisions. Justice Kennedy's concurring opinion would allow for more deferential judicial review than Justice Breyer's dissent. However, both - representing six Justices in total - reviewed the consular officer visa denial in this case. Among the opinions, there was no ready defense of the doctrine of consular non-reviewability and no aggressive invocation of cases contrary to modern constitutional sensibilities such as Knauff and Mezei.

Today's decision could reasonably be read as reaffirming Kleindienst v. Mandel and continuing to allow some modicum of judicial review of consular visa decisions that implicate the rights of U.S. citizens. The Supreme Court's holding is consistent with its decisions for more than a decade vindicating some kind of judicial review in immigration cases.

June 5, 2015

Takeaways From the Facebook Threat and Title VII Head Scarf Cases Handed Down by the Court This Week

Cross-posted from Justia's Verdict.

On Monday, the Supreme Court handed down two cases, Elonis v. United States and EEOC v. Abercrombie & Fitch, that had received a lot of press in earlier stages of the litigations and that, judging from the briefs, posed important civil rights issues concerning freedom of speech and freedom of religion, respectively. Although the Court ended up resolving the two matters on relatively narrow grounds-disappointing some of the Justices as well as analysts-it is important to understand precisely what the Court did (and did not) hold in these two rulings, both of whose outcomes were decided by 8-1 votes. In the space below, I briefly discuss the two decisions individually and then side-by-side.

Elonis v. United States

Based on statements he posted on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children, Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote online (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 offered:

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 entries 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 . . . " And so forth.

At Elonis's criminal trial, the federal district judge instructed the jury that, for purposes of whether Elonis had issued threats prohibited by the statute, "[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 argued under both the First Amendment and also under the federal criminal statute he was 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. In other words, Elonis argued that the government needed to prove that he had some subjective state of mind with respect to the effect that his words would have on the individuals to whom they were directed, and not simply that he voluntarily uttered the words and should have known the effect those words would create.

The U.S. Court of Appeals for Third Circuit (along with a large number of other circuits) have rejected the idea that the First Amendment requires the government to prove any subjective state of mind in order to punish threats consistent with the First Amendment. Instead, the Third Circuit held that statements that are reasonably construed as threats by listeners can lawfully be punished. In contrast, the Ninth Circuit (and a number of state high courts) has read the First Amendment as requiring the proof of a subjective intent to threaten as a predicate to a prosecution for threatening speech.

When the Supreme Court granted review, most commentators expected it to weigh in on and resolve this divergence in the lower courts over what the First Amendment requires. But in its ruling three days ago, the Justices decided the case purely on the basis of the federal statute under which Elonis was prosecuted; the Court explicitly deferred any analysis or interpretation of First Amendment requirements. And under the federal statute at issue, the Court said, Elonis is correct that some subjective intent by the person uttering the alleged threat is required; negligence by the person issuing the threat (in the sense that he reasonably should have foreseen that his words would be interpreted as threatening) was not enough. Although Chief Justice Roberts's majority opinion conceded that there is no intent standard written into the text of the federal statute, the Court nonetheless found one based on the way similar statutes had been construed. The Court did not specify precisely what level of intent the federal government must prove-and explicitly left open the question whether recklessness (a conscious disregard of a known risk that words could cause fear) is enough for the government to prove, or instead whether a higher form of intent such as actual knowledge is needed-but reversed Elonis's conviction and sent the case back to the lower courts because negligence on his part was not adequate to support a conviction under the statute.

EEOC v. Abercrombie & Fitch

Samantha Elauf is a practicing Muslim who regularly wears a headscarf for religious reasons. When she applied for a job at an Abercrombie & Fitch (A&F) retail store, the A&F managers evaluating her candidacy declined to hire her because the wearing of head scarves violates an appearance (or "Look") policy A&F has; employees in retail positions are prohibited from wearing caps and other headwear. Prior to their decision not to hire Ms. Elauf, the A&F managers had internal discussions about her in which one of the managers who had some acquaintance with Ms. Elauf expressed the belief that Ms. Elauf wore headscarves because of her faith.

The Equal Employment Opportunity Commission sued A&F on Ms. Elauf's behalf, alleging that A&F had violated Title VII, which prohibits an employer from deciding not to hire an individual because of the individual's religious observance or practice, unless the accommodating the observance or practice would create an undue hardship for the employer. A&F argued, and the Court of Appeals for the Tenth Circuit agreed, that A&F should not be liable because "ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant . . . provides the employer with actual knowledge of his need for an accommodation."

The Supreme Court reversed. Justice Scalia, calling this a "really easy" case when he delivered the decision from the bench, authored the majority opinion which said a Title VII plaintiff need not show "actual knowledge [by the employer] of a conflict between an applicant's religious practice and a work rule," because requiring such actual knowledge would involve the Court "add[ing] words to the law to produce what is thought to be a desirable result [. . . , which] is Congress's province." He went on: "We construe Title VII's silence [as to the requirement of actual knowledge] as exactly that: silence."

But Justice Scalia did say that a Title VII plaintiff like Ms. Elauf had to show the employer's adverse action against the applicant was based at least in significant measure on a motive to avoid the religious accommodation. But how can an employer be acting based on a motive to avoid accommodating an applicant's religion practice-"because of" an applicant's religious observances, in the language of Title VII-if the employer doesn't know that the applicant's conduct requiring an accommodation is itself religiously based? Justice Scalia acknowledged, in an important footnote, that it "is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice," but that issue need not be decided in the A&F case because it has not been briefed by either side and because A&F "knew or at least suspected that the scarf was worn for religious purposes." Oddly enough, then, the majority opinion technically holds open the possibility that an employer who had no clue that a prospective employee's likely non-compliance with a work rule was religiously motivated could be held liable under Title VII, a result that Justice Alito in his separate concurrence rightly calls "very strange" and "surely wrong."

The Two Cases Taken Together

What can we say about these cases when we look at them in tandem? First, it is interesting that Justice Clarence Thomas is the lone dissenter in both decisions, and that he parted company with Justices Scalia and Alito (with whom he is often aligned as to result) on the interpretation of the federal threats statute and Title VII. Also, Justice Alito wrote separately for himself in both cases, decrying the minimalist nature of the majority's holdings. So, in both Elonis and Abercrombie & Fitch, Justice Scalia, Justice Thomas, and Justice Alito each had a different take from one another.

Second, both majority opinions conclude that Congress had not fleshed out in the text of the statute in question a requirement as to the defendant's subjective knowledge, but the Court reacted to that absence differently in the two cases. In Elonis, the Court said that because the statute is a criminal one, a wrongful state of mind on the part of the defendant should be found in the statute even when Congress was silent. But in Abercrombie & Fitch, Justice Scalia's majority opinion insists (to the extent that one can separate motive from knowledge) that Congress's silence as to the level of knowledge required of employers before they can be held liable is not something to be fixed by courts. The more ambitious attitude by the Court in the context of a criminal statute makes sense; there are special rules of statutory construction that apply particularly to laws that impose criminal sanctions.

But, and this is a third point, the criminal nature of the statute in Elonis might have properly led the Court to want to provide more notice to lower courts and potential defendants about precisely what level of subjective knowledge concerning the fear-inducing nature of words is required; the criminal law setting usually calls for clearer notice to be given to potential offenders. In particular, the disinclination by the Elonis majority to weigh in on whether recklessness by a defendant-e.g., a defendant who fleetingly wonders whether his proposed speech might cause fear in others but who never forms a view on the likelihood fear will in fact ensue-is sufficient under the statute, while perhaps understandable given absence of explicit lower court consideration of this matter, is sub-optimal. And, of course, because many statutes that criminalize threats are state statutes instead of federal laws, the question of whether and how the First Amendment requires government to prove any particular mental state of a defendant before criminal punishment may be imposed remains one on which the Supreme Court will need to give guidance. Indeed, in an earlier column I wrote previewing Elonis, I noted that it may not have been a good case in which to grant review precisely because the statutory ground could complicate the ability of the Court to give needed constitutional guidance. If this happened (as it did), I observed, the Court "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.)"

The absence of guidance to lower courts and litigants in Abercrombie & Fitch is also quite frustrating, even though criminal liability was not at issue. On the facts of the Abercrombie & Fitch case, the employer "knew-or at least suspected-that the scarf was worn for religious purposes." But the tougher situation arises when the employer doesn't actually know but perhaps should be encouraged to find out, prior to declining to hire someone. For example, what if the A&F managers had no personal knowledge of Ms. Elauf during the interview process, but noted that she wore a head scarf and said to themselves, "Gee, I wonder if that is a style statement or a religious practice?" (In some respects, that could be thought of as "recklessness" but not knowledge on the part of the employer.)

Would the fact that the possibility of religious motivation even occurred to the employer be enough to trigger a requirement that the employer investigate the basis of the practice? Or would imposing such a duty on employers cause them to invade the religious privacy of employees and job applicants? (Courts in other countries that take religious liberty seriously often focus on religious privacy more than do American courts.) I do not know the answer to this, but I would observe that minority religious practices are often less well-known to many employers, a fact which might argue in favor of requiring employers to do some diligence once the possibility of a religiously inspired practice occurs to an employer. As for respecting privacy, there may be sensible ways to avoid making applicants feel uncomfortable. For example, all prospective employees could be given a list of all the employer's work rules and then asked, as a matter of course, whether religious practices would require accommodations with respect to any such rules. But this precisely the kind of detail the majority in Abercrombie & Fitch did not want to wade into. The reason it was a "really easy" case for the Court is that the Justices shied away from the difficult matters that actually needed some clarification.

June 1, 2015

Opinion analysis: Court rejects removal based on misdemeanor drug paraphernalia conviction

Cross-posted from SCOTUSblog.

Today, the Supreme Court decided Mellouli v. Lynch, a case involving the removal from the United States 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 four tablets of the prescription drug Adderall.

Removal based on a sock conviction may sound like a story line from a television sitcom. However, the U.S. government instituted removal proceedings based on the conviction and dramatically changed Mellouli's life. Forced to leave the country where he had resided since 2004 after an immigration court ruled against him, Mellouli now lives apart from his U.S. citizen fiancé.

For purposes of removal, the immigration statute requires that a drug conviction under state law must "relat[e] to a controlled substance (as defined) by" federal law. This requirement is important because some states ban substances in addition to those regulated by federal law. (Kansas, for example, regulates at least nine substances not regulated by federal law.) The charging document and plea agreement in Mellouli's criminal case failed to identify the specific controlled substance related to the paraphernalia that served as the basis for his conviction and thus did not make it clear that the substance was controlled by federal law. Nonetheless, the immigration court and Board of Immigration Appeals (BIA), with the approval of the court of appeals, ordered Mellouli deported from the United States.

The arguments in the case, as often is true in modern cases in which the courts review the actions of administrative agencies, revolved around the application of the Court's 1984 decision in Chevron v. Natural Resources Defense Council, Inc., holding that the courts must defer to an agency's reasonable interpretation of an ambiguous statute. Cases involving Chevron deference necessarily require careful analysis of the statute in question to determine whether the text is ambiguous, which triggers deference to reasonable agency interpretations of the statute.

Justice Ruth Bader Ginsburg wrote for a majority of the Court, which included all but Justices Clarence Thomas and Samuel Alito.  The opinion carefully marches through the statutory language and agency interpretations and concludes "that Mellouli's Kansas conviction did not trigger removal under" the immigration statute.   The Court, as it had in Moncrieffe v. Holder, reiterated its adherence to the "categorical approach" to removal under criminal statutes, which requires that all of the convictions under a statute must trigger removal without a need for inquiry into the facts of the individual case. The Court further observed that "Congress and the BIA have long required a direct link between an alien's crime of conviction and a particular federally controlled drug." Recognizing that Kansas law regulated nine substances not included in the federal controlled substances lists, the Court found that the government's emphasis on the "relating to" language in the immigration statute to justify removal for a conviction in connection with a substance that was not clearly regulated by federal law was a "sweeping interpretation [that] departs so sharply from the statute's text and history that it cannot be considered a permissible reading" In rejecting the government's position, the majority stated that "[t]he incongruous upshot [of the government's argument] is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA's interpretation, we hold, is owed no deference under the doctrine described in Chevron."

Justice Thomas, in a dissent joined by Justice Alito, would have accepted the U.S. government's argument. The broad "relating to" language in the removal statute resolved the case for him, as he would have accepted that "faithfully applying [the] text means that an alien may be deported for committing an offense that does not involve a federally controlled substance."

Today's decision is a typical statutory interpretation and agency deference case, which would not seem to have many far-reaching doctrinal implications. It is consistent with the Roberts Court's reluctance to subject small-time drug offenders to mandatory removal from the United States. In Moncrieffe, for example, the Court rejected a removal order of a long-term lawful permanent resident based on a single conviction for possession of the equivalent of a few marijuana cigarettes. Similarly, in Carachuri-Rosendo v. Holder (2010), the Court ruled that mandatory removal of a lawful permanent resident could not be premised on a misdemeanor conviction for possession of a single tablet of a prescription drug (Xanax) and a previous misdemeanor marijuana possession conviction.

Today's decision will serve as an incentive to prosecutors to clearly state in charging documents and plea agreements what specific drug a drug paraphernalia charge relates to. In this case, such precision would have helped facilitate removal. It seems unlikely that the decision will have much of a general impact on the U.S. government's efforts to remove convicted drug offenders from the country.

In sum, the decision once again demonstrates that the Roberts Court will not rubber-stamp the removal decisions of the executive branch, even those involving immigrants convicted of drug-related crimes that the immigration laws target for harsh treatment.

May 26, 2015

The Significance of the Supreme Court’s Williams-Yulee Decision Upholding Florida’s Regulation of Judicial Elections

Cross-posted from Justia's Verdict.

A few weeks ago the Supreme Court handed down an important yet under-noticed case, Williams-Yulee v. Florida Bar, in which a 5-4 majority upheld a Florida law that forbids candidates running in contested elections for judicial office from personally soliciting campaign contributions, even though the state permits such candidates to raise money through surrogates (campaign committees) and also allows candidates to find out who contributed to their campaigns. In the space below, I identify four key takeaways from this "sleeper" ruling by the Court, a ruling that affords important insights about constitutional doctrine and also about the membership of the Roberts Court.

1. The Speech Clause Juggernaut May Be Losing Steam

The (unsuccessful) challenge to the Florida law was brought under the First Amendment; the defendant in Williams-Yulee argued that Florida's ban on personal solicitation was a regulation that singled out certain speech-a personal request for money-because of its content, in violation of free speech principles. The Court acknowledged that the Florida law was a content-based regulation of political speech (and, as explained in more detail below, thus purported to apply "strict scrutiny" to the matter), but nonetheless upheld the law because of the important countervailing interest in preserving public confidence in the integrity of the judiciary.

In holding that public perceptions of integrity should carry the day, the Williams-Yulee ruling stands in contrast to the great majority of free speech cases decided by the Court over the last generation. Since the early 1990s, the overwhelming majority of plausible free speech claims (and the defendant's claim in Williams-Yulee was certainly plausible) that have reached the Court have prevailed, and expressive autonomy has regularly trumped competing constitutional and societal values. Over the last quarter-century, the Court has invoked the Speech Clause to invalidate federal, state, or local laws and regulations in well over fifty cases, averaging close to three cases each year, a substantial number given the Court's small yearly docket of between seventy and eighty cases for most of that period.

But a quantitative inquiry tells only part of the story. It is particularly noteworthy that First Amendment claims grounded in expressive autonomy rights have not just been winning, but have been winning against-and requiring significant sacrifices of-other values that traditionally have enjoyed high esteem in our legal, social, and constitutional traditions, including the efficient functioning of labor unions, the protection of military honor and military families, antidiscrimination laws and norms, election and campaign finance regulation intended to make elections more free and fair, parental control over the upbringing of their children, and consumer protections, among others.

Whether Williams-Yulee represents simply one exception to this great tide of free speech victories, or instead should be viewed as part of the beginning of a more balanced approach to free speech cases remains to be seen. There are at least two (and maybe more) other interesting and difficult free speech decisions yet to be decided this Term. The first is a case that considers the extent to which the First Amendment protects against prosecution individuals who utter words that cause objectively reasonable people to feel fear (Elonis v. U.S.), and the second is a case about how readily a State can discriminate among messages on personalized automobile license plates (Walker v. Texas Division, Sons of Confederate Veterans). It is possible that the free speech claimants in both of those cases (who assert plausible, if to my mind flawed, free speech arguments) will also lose. If that happens, commentators will begin to wonder whether the free speech juggernaut is indeed beginning to slow.

2. "Strict Scrutiny" Is in the Eye of the Applier

As I noted above, the Court in Williams-Yulee applied strict scrutiny-which requires the government to prove that the law in question is narrowly tailored to serve a compelling interest-to the Florida election regulation. But, as Justice Scalia remarked in dissent, "[although the Court] purports to reach [its] destination by applying strict scrutiny, . . . it would be more accurate to say that it does so by applying the appearance of strict scrutiny." In particular, the Court seemed quite tolerant of underinclusiveness in Florida's scheme, whereas significant underinclusiveness usually prevents a statutory scheme from being considered "narrowly tailored" in the way that strict scrutiny dictates.

For example, the defendant pointed out that Florida permits candidates to write personal thank-you notes to donors (guaranteeing that the candidates will know who the donors are) and also allows campaign committees to act explicitly on behalf of candidates in directly soliciting donations. If personal solicitations by candidates undermine "public confidence in judicial integrity," why do not these other practices create the same harm? The Court acknowledged that Florida does allow activities that might create some suspicion over whether judges are beholden to or favor donors, but concluded that "narrowly tailored" does not mean "perfectly tailored," and that the "First Amendment does not put a State to [an] all-or-nothing choice." For the Williams-Yulee majority, it was sufficient that Florida has targeted the "conduct most likely to undermine public confidence[,]" and that personal solicitations are "categorically different" from solicitations by campaign committees. The Court did not go to great lengths to explain this "categorical" difference, other than to say that while committee and personal solicitations may be "similar . . . in substance, a State may conclude that they present markedly different appearances to the public."

Importantly, though, the Court did not cite to, or seem to insist upon, any proof by the State that these two types of solicitations were viewed differently by the public. Indeed, when the Court said that a State "may conclude," it was using language most often associated with deferential review-where benefits-of-the-doubt about the real-world state of affairs are given to the government-not the language of truly strict scrutiny, in which the government must establish not just that its views are plausible, but that its views are grounded in actual fact.

3. Stare Decisis Is Often Not Very Powerful at the Court

The seemingly generous implementation of strict scrutiny brings up another important facet of Williams-Yulee-its tension with the most relevant Supreme Court case in the realm of judicial election regulation. There is, as one of the Williams-Yulee opinions put it, "only [one] prior case concerning speech restrictions on a candidate for judicial office"-the 2002 case of Republican Party of Minnesota v. White. And in that case the Court (in striking down Minnesota's judicial election regulation) applied a stricter version of strict scrutiny.

In White five Justices used the First Amendment to strike down a Minnesota law that prohibited candidates for judicial office from speaking out on controversial issues of the day. The law at issue prohibited a candidate for elected judicial office from "announc[ing] his or her views on disputed legal or political issues." The prohibition went beyond candidate "promises" and forbade, for example, a candidate from criticizing a past court decision and indicating a willingness to consider a different result in similar cases down the road.

Minnesota argued that it needed to regulate candidate speech to ensure that the public believes that judges are sufficiently open-minded about important matters that might come before them, an interest very similar to Florida's goal of "preserving public confidence in judicial integrity." But Justice Scalia's opinion for the majority in White rejected this justification for Minnesota's law because the scheme was woefully underinclusive, insofar as judicial candidates were not prohibited from voicing their views prior to the time they became declared candidates. The Court rejected the argument, made by dissenting Justices, that "statements made in an election campaign pose a special threat to open-mindedness because the candidate, when elected judge, will have a particular reluctance to contradict them." The Court said that the idea that judges feel particularly constrained by statements they make qua candidates is "not self-evidently true[,]" and thus cannot carry the day given the "burden [on the government] imposed by our strict scrutiny test to establish th[e] proposition that campaign statements are uniquely destructive of open-mindedness [or the appearance of open-mindedness]."

The tension between White and Williams-Yulee is clear. In the former, the State lost because it did not prove that campaign statements were "uniquely" destructive of the appearance of open-mindedness, but in the latter the State prevailed because it was allowed to "conclude" (without any proof) that personal solicitations "present markedly different" appearances to the public as compared to committee solicitations. Why Minnesota had to prove "unique" destruction of confidence whereas Florida could simply reasonably surmise "markedly different" problems of public perception is left unexplained.

Let me be clear here that I think the overall approach of Williams-Yulee is largely correct and that the analysis of the White majority was largely misguided. As I have written in law review articles and elsewhere, while the First Amendment protects one's right to speak about the bench, there is no right to to sit on it, and the Tenth Amendment gives states broad powers to regulate the process by which people become judges. The key point is not merely that judges are not supposed to be politicians; it is that throughout American history, we have often selected judges (but not legislators or chief executive officers) without the use of contested elections. And in these non-election processes, what would-be judges have said and done is held against them by government decisionmakers. Just as the president and the Senate certainly, and permissibly, may refuse to make someone a federal judge because of what that person has said, even though such refusals are undeniably "content-based" and indeed "viewpoint-based," and thus might, in other contexts, run afoul of basic First Amendment principles, a state should be generally available to deny judicial office to candidates who speak in ways that contradict certain judicial decorum norms set by the state. (There is the separate question, implicated in both White and Williams-Yulee, of whether the sanction for violating campaign rules can extend beyond mere disqualification for judicial office, which is a topic I save for another day.)

But my point here is not that Williams-Yulee's result is wrong-only that its application of strict scrutiny is not very authentic and that its leniency contradicts the approach in White.

4. Chief Justice Roberts Is no Clone of Chief Justice Rehnquist

How do we explain the tension between White and Williams-Yulee? The answer seems to rest largely on changes to the Court's personnel. White was a 5-4 case, with the majority consisting of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas. The dissenters were Justices Stevens, Souter, Ginsburg, and Breyer.

In Williams-Yulee, the remaining White dissenters (Ginsburg and Breyer) are (predictably) in the majority, and the remaining members of the White majority (Justices Scalia, Kennedy, and Thomas) are (predictably) in the dissent. Between White and Williams-Yulee, Justice Alito replaced Justice O'Connor, and voted the same way as we would have expected her to vote, and Justices Kagan and Sotomayor replaced Justices Stevens and Souter, and voted the same way as we would have expected them to vote. So far, so good-an even swap.

But Chief Justice Roberts, who replaced Chief Justice Rehnquist, did not follow in the footsteps of his predecessor here. So what was a 5-4 majority in favor of the First Amendment claimant in White became in Williams-Yulee a 5-4 majority in favor of the State. Chief Justice Roberts apparently has a different view of judicial elections (and the extent to which First Amendment protections for election-related speech apply to them) than his mentor and former boss. Whether there is a broader divergence between Chief Justice Roberts and his predecessor in First Amendment cases is a question that might be worthy of more attention now that the Roberts Court is finishing its first decade.

April 10, 2015

Some “Teachable” First Amendment Moments in the Supreme Court’s Oral Argument About Confederate Flags on Texas License Plates

Cross-posted from Justia's Verdict.

In today's column, I analyze the Supreme Court oral argument held a few weeks ago in Walker v. Texas Division, Sons of Confederate Veterans, a case involving the First Amendment and Texas's regulation of license plates. Motor vehicles registered in the State of Texas must display a state-sanctioned license plate. Most vehicles use a standard-issue Texas plate that has a simple no-frills design and displays a random series of letters and numbers. Texas, like many other states, also permits individuals to submit personalized, or vanity, plates in which the numbers and letters on the plate form a message (such as "HOTSTUFF," a hypothetical example Justice Scalia used at oral argument).

In addition, Texas permits what are called "specialty" license plates, in which the overall design of the plate (but not the sequence of numbers and letters), is custom-made and might contain symbols, colors and other visual matter that is more elaborate than the relatively plain design of the standard-issue plates. Specialty designs may be adopted by the Texas legislature or proposed by private individuals or organizations. Specialty plate designs that come from outside the legislature must be approved (as must personalized vanity plates) by the Texas Department of Motor Vehicles Board, and the Board by law "may refuse to create a new specialty license plate if the design might be offensive to any member of the public" (a term that Texas authorities construe as meaning offensive to a significant segment of the public.) At least some specialized designs, once approved, can be used by members of the general public. As of a month ago, there were about 450 specialty designs that had been approved in Texas, around 250 of which are usable by the public. Although the majority of license plates in Texas are the plain-vanilla non-specialty plates, it is not uncommon on the Texas roadways to see license plates that make use of one of the approved specialty designs.

Applicants who seek approval of specialized plate designs must pay thousands of dollars to have their designs considered, and people who use the already approved designs pay for the privilege, the proceeds going to various state agencies.

The Texas Sons of Confederate Veterans (SCV) is a nonprofit organization dedicated to preserving the memory and reputation of Confederate soldiers. SCV applied for a specialty license plate that featured the SCV logo, "which is a Confederate battle flag framed on all four sides by the words 'Sons of Confederate Veterans 1896.'"

When this design was rejected by the Motor Vehicles Board (one of only a dozen or so designs that have been rejected), SCV sued, arguing (successfully in the lower court) that the State's decision to reject the design on the ground that the content of the design-in particular, the depiction of the Confederate flag-might be offensive to some observers constituted impermissible content- or viewpoint-based regulation of expressive activity insofar as the specialty license plate, while State property, is akin to a forum for speech that the government has created and opened up to people to use to express themselves. Texas, for its part, argues that because the State owns all license plates, and because the State of Texas name appears on all plates, including specialty plates, any expression on license plates constitutes "government speech" or at the very least a hybrid of government speech and private speech. Because the government is a (if not the) speaker in this setting, Texas argues, it necessarily has the authority to accept and reject whichever messages it chooses.

The case raises many fascinating and complex constitutional issues-far too many to meaningfully address in a single column. But in the space below, I use three particular kinds of questions that Justices asked at oral argument to illuminate important and often misunderstood aspects of First Amendment doctrine.

Less Can Be More (Important) Under the First Amendment

Let us first consider Justice Kennedy's questioning of the SCV lawyer. One of the things Justice Kennedy pointed out is that if Texas is not permitted to exclude Confederate flags (or Swastikas, or other potentially objectionable material) from license plates, it will almost certainly choose to abandon the specialty (and also the vanity) license plate design program altogether, and simply use old-fashioned, plain vanilla license plates. The result, said Justice Kennedy, is that we would end up with less, rather than more, speech, because individual expression that is currently taking place on specialty or vanity plates would no longer be permitted, and people would be forced to resort to things like bumper stickers, which they may not like or make use of as much as specialty plates. "If you prevail," Justice Kennedy asked SCV's lawyer, "you are going to prevent a lot of Texans from conveying a message. . . . So in a way, your argument curtails speech?"

Justice Kennedy's question is actually a profound but rarely explored one, in that the First Amendment's aversion to content- and viewpoint-based laws may indeed sometimes lead government to enact content-neutral counterpart laws that, quantitatively speaking, restrict far more speech. For example, a law that says "no pro-life rallies in the park after 6pm" is clearly unconstitutional, because it regulates speech on a matter of public concern in a traditional public forum in a viewpoint-based way. But if such a law is replaced with a law (that very well might be upheld) that simply prohibits all rallies in the park after 6pm-a so-called content-neutral regulation of time, place or manner-the result could be an even greater overall reduction in speech.

Of course, it is possible that by forcing government to regulate in a content-neutral way, we may actually make it harder for government to regulate speech at all, so that the end result could actually be an increase in the aggregate level of speech. In the example I gave above, perhaps it would politically difficult to pass a law prohibiting all rallies in the park after 6pm (because many kinds of groups may want to hold rallies, and overcoming the political opposition of all of these groups-as opposed to the merely the pro-life advocates-may not be feasible). If that is true, then striking down the law prohibiting pro-life rallies after 6pm will, in fact, increase rather than reduce the amount of speech.

But oftentimes (as in the SCV case) striking down a law on First Amendment grounds may in fact lead to less speech, but it still can be the right constitutional thing to do. The fact that sometimes we invalidate laws in ways that will create less speech overall tells us that maximizing the aggregate quantum of private speech is not the only thing the First Amendment is concerned with. Preventing the government from distorting the debate, by disabling some points of view, or by locking in majoritarian preferences (as is often the case when "offensive" speech is disfavored) is also an important objective. So too is making individuals feel that government respects them and does not act paternalistically and treat them the way parents treat children by telling them what topics they should be focusing on.

What's Good for the Goose. . . .

A second line of questioning of SCV's lawyer, this time by Justice Sotomayor, concerned whether the State should be given the same kind of free speech respect as individuals enjoy. Justice Sotomayor pointed out that that in the Court's most famous license-plate case to date, Wooley v. Maynard, the majority struck down a requirement that New Hampshire drivers make use of a state-issued license plate bearing the State's message "Live Free or Die." Justice Sotomayor then asked: "In Wooley we said we can't compel the individual[s] to put something on their plates that they disagree with . . . Why isn't the reverse true for the government [if it doesn't want to be associated with the Confederate flag]?"

Justice Sotomayor's symmetry instinct (which assumed arguendo that the Texas specialty license plate regime represents at least a hybrid of government and private speech) is very interesting but ultimately unpersuasive, to me at least. There are lots of constitutional rules that protect individuals that do not protect government in a symmetrical way. For example, a criminal defendant is entitled to have access to all exculpatory evidence in the government's possession, but the government is not entitled to all incriminating evidence in the defendant's possession, even though both sides are trying equally hard to prove their case.

I think there is asymmetry here as well. Even though the government can operate as a speaker, it is not a specific beneficiary of the First Amendment, and certainly shouldn't enjoy all the same First Amendment protections individuals (like the individuals who litigated in Wooley) do. Ultimately, the reasons the drivers in Wooley could not be forced to bear the State's message were rooted in individual dignity and autonomy aspects of the First Amendment. Institutional and organizational actors, as opposed to individuals, can be forced to be a vehicle for government messages and are relegated to engaging in counter-speech as a way of distancing themselves from any government message they don't like. This was true in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), a case last decade that upheld (9-0) a federal law that required law schools to allow military recruiters onto campus facilities to recruit students, notwithstanding the law schools' opposition to the then-existing policy of the military to discriminate against gays and lesbians ("Don't Ask, Don't Tell"). Like law schools, the State of Texas does not have the same kind of dignity and autonomy attributes that individual motorists have, and so (even granting that Texas has the authority to act as a speaker) requiring Texas to live with the private message on specialty plates and disclaim any endorsement of the message or design on a specialty plate by adding something like "Views on this license plate do not reflect the views of the State" does not violate the Constitution the same way requiring individuals to promulgate such disclaimers would.

The Relevance (or Not?) of a Profit Motive

A third interesting exchange involved the overridingly important question of whether the specialty plates can properly be thought of as pure (or at least hybrid) government speech at all. The State's lawyer argued that the fact that the government has retained the right to veto all specialty designs from the get-go makes this a government speech case, but that factor standing alone surely cannot be dispositive. If a public airport withheld for itself the power to ban any leaflets whose message it found unattractive, that would not justify its excluding leaflets in favor of affirmative action while permitting leaflets against it. Control is, as many Justices pointed out, a circular kind of argument about government power. Deciding what is and is not government speech is much more complicated than that.

One potential factor was mentioned by Chief Justice Roberts a few times, and that is the profit motive by the State. Why, he asked, should we view these specialty plates as government expression at all when government's real goal here was not to raise awareness (about anything) but to raise money? This, too, is an interesting instinct. As with Justice Sotomayor's question, if we analogize to private individual speech, the government fares better; the fact that a private individual or corporation is motivated by a desire to make a profit does not make his/its expression any less constitutionally valuable: the New York Times newspaper represents classic First Amendment speech even though it is published in order to make money.

But as was true for Justice Sotomayor's symmetry argument, here too I am not sure we should treat the government the same as individuals. It does seem a bit untoward that the State would raise revenue by charging people thousands of dollars for the privilege of submitting license plate designs, and then reject those whose content it doesn't like. The idea that the State was (mis)using the specialty-design applicants, and the moneys they paid, for its own monetary gain was one of the most sympathetic aspects of the SCV's case, which was otherwise not very sympathetic given that the Confederate flag has historically been tightly associated with slavery and insurrection (not to mention the fact that SCV's lawyer took the position that the State could not, consistent with the First Amendment, reject designs with swastikas on them.)

The opinions that emerge from this case in the coming months could be very interesting.

April 7, 2015

Academic highlight: Johnson on the demise of immigration exceptionalism

For SCOTUSblog by Amanda Frost, Professor of Law at American University. Original blog post here.

Kevin Johnson, who covers the Court’s immigration docket for SCOTUSblog, has posted an article analyzing trends in Supreme Court immigration cases over the last five years.  Although the Supreme Court has frequently departed from the normal rules of constitutional and statutory interpretation in immigration cases, Dean Johnson’s study of the 2009 through 2013 Terms suggests that “immigration exceptionalism” may be on its way out.

One clear example of immigration exceptionalism is the “plenary power” doctrine, under which the Supreme Court has given Congress unusual leeway in regulating immigration.  The Court first invoked that doctrine 125 years ago in Chae Chan Ping v. United States to bar judicial review of federal laws excluding Chinese immigrants from the United States.  In recent years the Court has retreated from that position, but it has never explicitly abandoned the plenary power doctrine.  After closely analyzing the Supreme Court’s immigration decisions from 2009 through 2013, Johnson concludes that the Court has “slowly but surely moved away from anything that might reasonably be characterized as immigration exceptionalism,” including its previous reliance on the plenary power doctrine, bringing “U.S. immigration law into the legal mainstream.”

In addition to this insight, Johnson’s article provides a thorough review of the major immigration cases over the last five years, such as Padilla v. Kentucky (holding that a noncitizen could raise an ineffective assistance of counsel claim based on an attorney’s failure to accurately inform him of the possible immigration consequences of a criminal conviction) and Chamber of Commerce v. Whiting and Arizona v. United States (addressing whether federal immigration laws preempt state laws regulating non-citizens).  Immigration constitutes a surprisingly large percentage of the Court’s docket — the Court heard five immigration cases in the 2011 Term alone — and thus Johnson concludes that the “Justices consider immigration to be an important national issue worthy of attention.”  Happily for readers of SCOTUSblog, he will continue to analyze the Court’s immigration decision for us in the years to come.

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.