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May 6, 2016

Justice Stevens Discusses Scholarship by Professor Chin

In a recent speech, retired U.S. Supreme Court Justice John Paul Stevens discussed Professor Gabriel "Jack" Chin's paper Effective Assistance of Counsel and the Consequences of Guilty Pleas

Justice Stevens relied on the paper in his majority opinion in Padilla v. Kentucky, 559 U.S. 356 (2010), which held that criminal defense attorneys were required to advise clients about the possibility of deportation.  As Justice Stevens noted, the Court also relied on Professor Chin's work in Chaidez v. United States, 133 S. Ct. 1103 (2013), holding that Padilla would not be retroactively applied to cases which were already final when it was decided.

May 4, 2016

Zubik v. Burwell: Women and Religion in the Market

Cross-posted from JURIST.

The US Supreme Court heard oral arguments in Zubik v. Burwell on March 23, 2016, six years to the day the Affordable Care Act (ACA) became law. The petitioners, a group of religious organizations, have challenged the ACA's contraceptive coverage requirement. The challenge is a free exercise claim under the Religious Freedom Restoration Act (RFRA) [PDF], a federal statute. The court has now heard four challenges to the ACA.

The contraceptive coverage requirement is part of a broader provision that requires coverage for preventive health care without cost-sharing. This provision serves the ACA goals of improving health care access and reducing health care disparities among populations. Even small co-pays create barriers to health care. The ACA emphasizes the importance of preventive health care by removing that barrier.

Cost-sharing mechanisms like co-pays reflect the fact that health care services are delivered in a commercial market. The ACA coverage requirement applies to FDA-approved contraceptives. Prices for drugs and devices in the US are among the highest in the world. Contraceptives are distributed within that market. Recent stories about the role of profit-motive in pharmaceutical pricing highlight new cancer drugs and Hepatitis C drugs that cost several hundred thousand dollars a year. Plain old oral contraception, the most widely used contraceptive, can cost close to $1,000 per year for those without insurance coverage. Intrauterine devices, a type of long-acting reversible contraception, typically cost $500 to $1,000. Those amounts are less than 1 percent of the highlighted examples, but they are a great deal more than many can afford. Because most FDA-approved methods are available on a prescription-only basis, obtaining contraception also requires the time and cost of visiting a doctor. Oregon and California have enacted law making some contraceptives (the pill, the ring and the patch) available over-the-counter, with a pharmacist prescription. Those laws make the doctor's visit, and the accompanying costs, unnecessary for most. People without coverage, however, will still face out-of-pocket costs for the contraceptives.

The contraceptive coverage requirement applies to employers who provide health insurance as a benefit. The Zubik petitioners are religious organizations who hire employees and run colleges. Their employees and students rely on petitioners for health insurance access, but do not all share the petitioners' religious objections to contraceptive use. The ACA provides accommodation for religious employers, which removes petitioners from the responsibility of paying for coverage and yet makes coverage available to employees and students. Petitioners, however, claim that submitting the one-page form to obtain the accommodation makes them complicit in providing contraceptives.

The arguments were fascinating. You can listen to or read [PDF] them. RFRA requires that petitioners show the contraceptive coverage requirement imposes a substantial burden on free exercise of religion. If petitioners can do that, the government must justify the burden by showing that the contraceptive coverage requirement is based on a compelling state interest and that there is no less restrictive means of achieving that interest. The justices and lawyers spent much of oral argument addressing the substantial burden requirement. In an exchange with Justice Kagan, Paul Clement, representing petitioners, distinguished between an authorization form and an opt-out form. Clement seemed to suggest that an opt-out form would not make petitioners complicit, while an authorization form would, and thus, substantially burden free exercise. Much of the substantial burden argument turned into a battle of analogies. Noel Francisco, also representing petitioners, characterized the coverage requirement as "seizing control." The most bandied-about analogy was "hijacking"-as in, by requiring contraceptive coverage, the government is hijacking the religious employers' benefit plans. Chief Justice Roberts fully embraced the hijacking analogy. In the meantime, Justices Sotomayor and Kagan challenged Clement on petitioners' analogy to military objectors during war. Clement agreed that laws penalizing conscientious objectors substantially burdened objectors' free exercise, but asserted the objectors had to affirmatively object, while petitioners should not have to in order to obtain accommodation.

Donald Verrilli represented the US government in arguments. (Because he is the US Solicitor General, the justices call him "General Verrilli.") He argued that the procedure for obtaining an accommodation would not substantially burden petitioners' free exercise of religion. He and Justice Alito spent some time in the weeds about the fact that employers with self-insured plans must submit not one, but two pieces of paper. The existing accommodation exempts religious employers from paying for contraceptives regardless of whether the plan is fully insured or self-insured. So the only difference is, in fact, the extra piece of paper.

Verrilli marshaled his time to address petitioners' proposed alternatives to the existing accommodation. Petitioners' briefs proposed that rather than obtaining contraceptive coverage through employer-sponsored or student insurance, employees and students could use Medicare, Medicaid, Title X, contraception-only insurance policies or individual policies purchased in the insurance marketplaces. Some of these proposals do not exist. For example, insurers do not offer contraception-only policies. Even if available, a separate policy might very well offer a different provider network than a petitioner's plan. All of the proposals, including individual policies, would raise barriers to access and undermine the purpose of requiring preventive care coverage without cost-sharing. None, as Verrilli pointed out, are available under existing law. Access to Medicare, Medicaid, Title X and the marketplaces would require significant amendment of eligibility laws.

Near the end of Verrilli's allotted time for argument, Sotomayor returned to the conscientious objector analogy. She distinguished conscientious objectors in wartime from the Zubik petitioners' challenge to the accommodation. In Sotomayor's view, conscientious objectors do not trigger regulatory power over third parties, but the effects of Zubik petitioners' request would rebound on petitioners' employees and students. Sotomayor's distinction points to the origins of the RFRA. Congress enacted RFRA in response to a 1989 Supreme Court decision called Employment Division v. Smith. The late Justice Scalia wrote the majority opinion, in which the court stated that the Constitution's Free Exercise Clause did not excuse an individual from complying with a generally applicable law. In other words, the Constitution does not require accommodation for those whose religious beliefs place them in conflict with the law. Scalia's opinion listed examples-laws requiring military service, payment of taxes and vaccination. RFRA passed with bi-partisan support. Many supporters worried that the Supreme Court had peeled back protection for members of minority religions whose beliefs are more likely to differ from majoritarian norms underlying law. In Smith, for example, the court rejected free exercise claims by two Native Americans who were fired and denied unemployment benefits after using peyote in a religious ceremony. Before Smith, the court had recognized free exercise claims by a member of the Seventh-day Adventist Church who was fired for refusing to work on Saturday, the Adventist Sabbath. In those two cases, exempting the religious claimants from state unemployment compensation laws did not interfere with others' rights. Exemption may have inconvenienced the state unemployment office, but it did not produce interference with third party rights.

With Scalia's death, it seems very likely the eight justices may split. Questions and statements in oral argument, as well as prior votes, indicate that Roberts, Alito, Thomas and perhaps Kennedy will hold that the existing accommodation violates petitioners' statutory rights under RFRA. Ginsburg, Breyer, Kagan and Sotomayor, on the other hand, seem likely to find no violation.

In the meantime, the court has taken an unusual step. On March 29, the court issued an order [PDF] directing the parties to file additional briefs. The briefs are to address "whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners' insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees." The Order includes an example for the parties to consider. What if petitioners contracted with an insurer and informed the insurer that they did not want to include contraceptive coverage and the insurer notified employees that it would "provide cost-free contraceptive coverage and that such coverage is not paid for by petitioners and is not provided through petitioners' health plan." The example echoes a hypothetical that Clement and Francisco used in arguments. They posited an "uber-insurance policy" that provides contraceptive coverage to all women in the US, as a counterpoint to the alleged hijacked plans offered by petitioners to employees and students. In essence, they described a private single-payer plan for contraception. Both the court's example and the uber-policy scenario rely on the fictional existence of contraceptive-only plans. Even if petitioners and five justices will this type of plan into existence, it would require significant government intervention in the market, as well as two forms of insurance and the possibility of two different provider networks for petitioners' employees and students.

The order and the question it poses signals what the vote will hinge on. More specifically, it indicates Kennedy's attentiveness to the complicity concerns and the fact that RFRA does not permit religious claimants to hijack the government's administrative and regulatory systems to implement an accommodation. The court may split along other lines, as well. Ginsburg asked whether religious organizations should necessarily receive the same protection under RFRA as a church. Kennedy asked whether a church organization should be treated the same as a university. As noted, petitioners consist of both church-affiliated organizations and religious universities. The questions suggest that universities may be less likely to receive accommodations that impose burdens on third parties. On the other hand, Ginsburg and Kennedy's questions may just have been aimed at Francisco's sweeping assertions about the RFRA's scope of protection for free exercise.

What should be notable is that because the parties to the case are religious employers and the federal government, people who use contraceptives-mostly women, are positioned as third parties. Yet, the so-called third parties have a significant stake in this case: health, autonomy and equality. When you set aside the analogies and hypotheticals, the case positions women between the privatization of health care and the religious beliefs of others.

April 18, 2016

Analysis of Oral Argument in United States v. Texas

Cross-posted from Immigration Prof Blog.

Here is the transcript to the oral argument earlier today in United States v. Texas, which raises the question of the lawfulness of the Obama administration's expanded deferred action program for undocumented parents of U.S. citizens and lawful permanent residents (known as DAPA) announced in November 2015.

Lyle Denniston analyzed the argument on SCOTUSBlog and reads the tea leaves as indicating a possible win for the Obama administration. 

The line-up of the advocates can be found here.

From reading the transcript, here are my thoughts on this much-anticipated argument:  

Standing under Article III of the U.S. Constitution is a threshold question.  As should have been the case, it was the subject of considerable questioning during the argument.  In the end, the Justices appeared to be divided on how a majority would ultimately come down on the question.  

Solicitor General for the United States Donald Verrilli was the first to argue.  The argument seemed to go generally as expected, with no big surprises.  Standing figured prominently in the argument from the outset. Apparently having standing on his mind, Chief Justice Roberts redirected Verilli to address the issue after Justice Ginsburg almost immediately after the argument began inquired about the merits. 

Although Verilli did get to briefly discuss the merits of the deferred action "guidance," the bulk of the questioning was on standing.  Verilli argued that Texas and the states lacked standing under Article III because (1) the alleged injury of increased costs of issuing driver's licenses to deferred action recipients was not redressable by the relief being sought; and (2) there was no concrete particularized injury to the states resulting from the administration's expanded deferred action program.

Chief Justice Roberts, who dissented in Massachusetts v. EPA, asked Verilli whether the injury in this case was "any more indirect and speculative" (Transcript p. 18, lines 3-5) from that one.  In that case, a majority held that Massachusetts had standing to challenge a failure of the Environmental Protection Agency to regulate greenhouse gas emissions. 

Justice Alito asked who would have standing to challenge a President's policy decision to have "open borders."   

Justice Breyer pushed the limits of the states' theory of standing by asking if Rhode Island would have standing to challenge a federal statute requiring that the states give a driver's license to every member of the armed forces and the federal government transferred 250,000 soldiers to Rhode Island. Justice Sotomayor also noted the potential expansiveness of a finding that Texas had standing and challenges to federal laws and regulations.

President/General Counsel of the Mexican American Legal Defense and Education Fund Thomas Saenz, next argued for three parent intervenors who would benefit from the expanded deferred action program. Although clearly he was primed on the merits, the Justices asked him about standing and Saenz responded credibly.  In arguing that the states lacked standing, Saenz  emphasized that"this is a political dispute. [The states challenging the Administration] do not agree with the policy adopted by the Administration . . . . " Transcript p. 39, lines 13-14. Along these lines, Justice Breyer later in the argument acknowledged that the case had "tremendous political valence." Transcript p. 61, line 5.

Chief Justice Roberts tried unsuccessfully to get Saenz to concede that a Texas policy denying deferred action recipients from driver's license eligibility would be unlawful. In response to a question from Justice Sotomayor, Saenz later noted that not every state makes deferred action recipients eligible for licenses. 

Texas Solicitor General Scott Keller (formerly Chief Counsel to Presidential candidate Ted Cruz), for the 26 states challenging the expanded deferred action programs.  He was asked more about the merits than the standing question. 

During Keller's argument, several Justices pressed an apparent compromise solution.  It involved the language in the administration's guidance affording deferred action recipients "lawful presence" and seems to have muddied the waters.  Removal of that language might be a possible way to defuse the dispute. Verilli initially raised this possibility.  When forced to address whether removal of the "lawful presence" language would be sufficient to address the issues raised by the states, Keller quoted language from the guidance: "Deferred action means that for a specified period of time, an individual is permitted to be lawfully present in the United States." (emphasis added).  Keller (and later Erin Murphy) stated that removal of the language would not be sufficient but it was unclear to me whether any of the justices agreed.

Another issue came up in discussion of the merits.  Under another regulation in place for decades, deferred action recipients and receive work authorization. That regulation was not challenged in this litigation.  Justice Kennedy intimated that, if that was the true problem in this case, it might would have been proper to challenge the regulation under the Administrative Procedure Act.

Erin Murphy, partner at the law firm Bancroft LLP, argued last on behalf of the U.S. House of Representatives as amicus supporting the states' challenge to the President's immigration guidance.  From a paper transcript, she appeared confident and pushed the envelope but did not have quite the grasp of the immigration laws of her colleagues.  Murphy, for example, at the outset stated that the administration adopted immigration reform that Congress considered and did not enact.  Justice Sotomayor quickly corrected Murphy and pointed out that the Obama immigration program in no way created a "pathway to citizenship" like that found in many comprehensive immigration reform proposals.

Four final points:

1.  Justice Kennedy viewed the case as one about the limits of discretion and suggested that the expanded deferred action programs constituted a legislative act by the President, which is "just upside down."  It was not clear to me of his take on the standing question.

2.  There was no questions from the justices on the "Take Care" argument based on Article II, section 3.  The Court had ordered the parties to brief the issue. Nor did any of the advocates raise the issue.

3.  Justice Thomas was silent at the oral argument.

4.  The argument did not highlight that the expanded deferred action programs were (1) temporary in nature and did not afford undocumented immigrants any kind of permanent relief; and (2) could be changed by a new President and/or Congress.

As we learned from the Affordable Care Act case, it is hazardous to predict how the Supreme Court will rule on a case based on the oral arguments.   After that argument, few commentators thought that Verilli and the Obama and administration would prevail; but they did.  Here, although the outcome is hard to predict with certainty, it appears that (1) standing in this case is a central issue to the justices: (2) the "Take Care" argument is not; and (3) winning is not a sure thing for either side.  Still, my instincts are that the Obama administration may come out okay in United States v. Texas in the end.

March 17, 2016

Live Stream Panel Discussion: The Legal and Political Implications of Replacing Justice Scalia

King Hall hosted an outstanding panel discussion yesterday on the Supreme Court nomination process, nominee Hon. Merrick Garland, and the jurisprudence of the late Justice Antonin Scalia.


Photo courtesy the law school's Instagram. Follow us on Instagram @ucdavislaw!

The participants were (left to right): Rose Cuison Villazor, me, Alan E. Brownstein, Albert C. Lin (a former Garland clerk!), Courtney Joslin, and Carlton F.W. Larson. We had a wide-ranging discussion about issues including originalism, Justice Scalia's jurisprudence regarding the separation of church and state, immigration, family law, and the Second Amendment, as well as the likely political battles ahead for Judge Garland, President Obama's nominee.

The event was live-streamed and archived on on YouTube. Watch it now!

Thanks to the student chapter of the American Constitution Society (ACS) and Aoki Center for co-sponsoring the panel!

March 14, 2016

Latino Leaders Call on Senate to Commit to Hearing and Vote for Supreme Court Nominee

María Blanco, Executive Director of the UC Undocumented Legal Services Center that operates out of King Hall, joins this press call tomorrow. Hispanics for a Fair Judiciary and the National Hispanic Leadership Agenda are hosting the call to discuss Senate leaders' threats to obstruct confirmation process. Here is their press release:

WASHINGTON - On Tuesday, Hispanics for a Fair Judiciary (HFJ), a non-partisan network of elected officials, legal, civil rights, labor, academic and political leaders, in association with the National Hispanic Leadership Agenda (NHLA), a coalition of the nation's 40 preeminent Latino advocacy organizations, will host a media call to discuss the pending nomination of a Supreme Court Justice. 
Representatives from the academic, legal, and advocacy communities will address the current gridlock affecting the Senate confirmation process for judicial nominations and discuss the consequences to the state of justice if Senate leaders fail to give President Obama's Supreme Court nominee a fair hearing and vote. HFJ and NHLA will also outline the steps they plan to take to encourage the Senate to act. 
Please find press conference details provided below. Opportunities for one-on-one interviews are available.

WHAT: Latino Leaders Call on Senate to Commit to Hearing and Vote for Supreme Court Nominee

WHO:

  • Maria Blanco, Executive Director, Undocumented Legal Services Center, UC Davis School of Law
  • Juan Cartagena, President & General Counsel, LatinoJustice PRLDEF
  • Robert T. Maldonado, National President, Hispanic National Bar Association (HNBA)
  • Thomas A. Saenz, President and General Counsel, Mexican American Legal Defense and Educational Fund (MALDEF)
  • Hector E. Sanchez, Chair, National Hispanic Leadership Agenda (NHLA)

WHEN: Tuesday, March 15, 2016, 11:00 AM ET

CALL-IN INFORMATION: 877-876-9175

CONFERENCE ID: LEADERS

Please have the Conference ID readily available to speed up the check-in process.

February 29, 2016

A Summary of Justice Scalia’s Major Immigration Opinions by Sadie Weller

Here is a guest post for Immigration Prof Blog by law student Sadie Weller '17.

In light of Supreme Court Justice Antonin Scalia's untimely passing earlier this month, ImmigrationProf provides this overview of his immigration jurisprudence. His immigration opinions demonstrate that, although Justice Scalia was never one to hide his political views, his firmly held legal principles about statutory interpretation and deference to agency action, deeply influenced his immigration opinions.

Notable Majority Opinions

Justice Scalia wrote his first immigration decision for the Supreme Court in 1987 in Kungys v. U.S. The case involved a naturalized citizen who the Department of Justice accused of executing thousands of Jewish Lithuanians in 1941, before he came to the United States. In an action brought to revoke Kungys's citizenship, Justice Scalia for the Court determined the materiality standard to apply to the "concealment or misrepresentation" clause and the false testimony provision of the "illegally procured" clause of 8 U.S.C. § 1451, which authorizes the revocation of naturalization. Justice Scalia held, in an opinion focusing on the proper interpretation of the statute, that the appropriate standard was whether the concealments or misrepresentations (in this instance, Kungys' place and date of birth) had a "natural tendency to influence the [government's] decision." Justice Scalia concluded that Kungys' misrepresentations in his naturalization petition were not "material."   The case was remanded to the court of appeals, with Justice Scalia emphasizing the "unusually high burden of proof in denaturalization cases."

In INS v. Elias-Zacarias (1992), Justice Scalia for the Court examined whether a Guatemalan asylum-seeker could obtain asylum based on the claim that a guerrilla organization attempted to coerce him into performing military service. Relying on the "ordinary meaning" of the statute, he found that Elias-Zacarias had failed to express a political opinion hostile to the persecutor in refusing to join the guerilla movement and thus could not establish "persecution on account of political opinion." Consequently, Justice Scalia determined that Elias-Zacarias failed to establish a well-founded fear of persecution with sufficient "clarity necessary to permit reversal" of the Board of Immigration Appeals' finding to the contrary. The practical effect of basing asylum on the asylum-seeker's, and not the persecutor's, political opinion has been the imposition of a heavy burden on asylum-seekers; they are required not only an affirmative expression of political opinion, but one hostile to their persecutors. In many countries, including Guatemala, persons often try to keep their political views to themselves to survive. Under Elias-Zacarias, these people are generally ineligible for asylum.

Writing for the majority in Reno v. Flores (1993), Justice Scalia, with characteristic deference to administrative agencies, upheld an Immigration and Naturalization Service (INS) policy that provided that detained unaccompanied minors could only be released to parents, legal guardians, or close relatives, but not "other responsible adults." Respondents challenged the regulation, 8 C.F.R. 242.24, establishing this policy, asserting that it violated due process, equal protection, and went beyond the scope of the Attorney General's discretion to make detention and release decisions. Justice Scalia reversed the lower court ruling invalidating the regulation, holding that the INS policy was a "reasonable response to the difficult problems presented" by the apprehension of unaccompanied minors. He acknowledged that other policies may be better, but declined to act as a "legislature charged with formulating public policy."

In an opinion for a unanimous Court, Justice Scalia in INS v. Yueh-Shaio Yang (1996) held that the U.S. government may take into account acts of fraud committed by a noncitizen in connection with entry into the United States. He noted that "[a]lthough it is the INS's settled policy to disregard entry fraud, no matter how egregious, in making the waiver determination," this policy is the "INS's own invention and is not required by the statutory text." In adhering to the statutory text, Justice Scalia deferred to the judgment of the Attorney General to distinguish between noncitizens who engaged in a pattern of fraud and those who committed a "single, isolated act of misrepresentation."

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In 1999, Justice Scalia applied a provision of IIRIRA for the Court in Reno v. American-Arab Anti Discrimination Committee. The "L.A. 8" brought suit, claiming that they were targeted for removal because of their affiliation with a politically unpopular group (the Popular Front for the Liberation of Palestine).  Applying a provision of IIRIRA, Justice Scalia held that the Court lacked jurisdiction to second-guess the Attorney General's unreviewable discretion to bring removal orders against a noncitizen. Although the Court dealt with the petitioners' First Amendment claim only as a secondary matter, the decision has been viewed by some as a blow to First Amendment rights of noncitizens. Essentially, the opinion implied that the free speech rights of noncitizens were irrelevant if the government had an independent reason to deport them.

In a somewhat surprising turn of events, Justice Scalia extended the holding of an immigration case in which, four years earlier, he had dissented (Zadyvas v. Davis, below). Zadyvas held that the U.S. immigration authorities could detain admitted aliens only so long as "reasonably necessary" to effectuate removal. Justice Scalia, in Clark v. Martinez (2005), extended this holding to inadmissible aliens as well. As a result of this decision, several hundred long-term detainees were ordered released from the custody. Justice Scalia also found that Zadyvas's presumptive detention period of six months governed a case involving two inadmissible Cuban nationals. 

On the same day as Clark v. Martinez, Justice Scalia wrote for the Court in Jama v. Immigration and Customs Enforcement (2005). In looking at whether a country's inability to consent in advance to a noncitizen's removal, Justice Scalia held that though nonacceptance could be "one of the factors considered in determining whether removal to a given country is impracticable or inadvisable," the Immigration and Nationality Act did not make this dispositive. In response to petitioner's claim that an acceptance requirement is "manifest in the entire structure" of the INA, Justice Scalia declined to make such an inference, given that he read the express language of the statute as indicating otherwise.

Although not writing for a majority of the Court, Justice Scalia wrote for a plurality in Kerry v. Din (2015).  The plurality reasoned that, "even accepting the textually unsupportable doctrine of implied fundamental rights," a U.S. citizen wife was not deprived of a fundamental liberty interest when her noncitizen spouse was denied entrance into the United States because of his alleged terrorist activity. To find such a right would, as Justice Scalia's wrote, require "diluting the meaning of a fundamental liberty interest." He characterized Congress's concern for the unity of immigrant families as a "matter of legislative grace rather than a fundamental right." Rejecting the idea that Din had an identifiable right protected by due process, Justice Scalia concluded that the explanation given to Din by the State Department regarding her husband's denial of entry was "more than the Due Process Clause required." 

Notable Concurring and Dissenting Opinions

In INS v. Cardoza-Fonseca (1987), a major decision on the different evidentiary burdens for asylum and withholding of deportation, Justice Scalia concurred in the judgment.  He emphasized that he agreed "with the Court that the plain meaning of 'well-founded fear' and the structure of the Immigration and Nationality Act (Act) clearly demonstrate that the 'well-founded fear' standard [for asylum] and the 'clear probability' standard [for withholding of removal] are not equivalent."  Justice Scalia relied on the plain language of the statute for that conclusion and rejected the majority's analysis of legislative history, which he criticized frequently and vociferously.  Because the plain language of the statute answered the question, Justice Scalia statute thought that the Court need not discuss deference to the U.S. government's interpretation of the statute under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984). 

In what was criticized by Supreme Court observers as nothing less than a political attack on the Obama administration's immigration policies, Justice Scalia's dissent in Arizona v. United States (2012) would have upheld Arizona's controversial immigration enforcement law known as SB 1070 in its entirety He characterized the majority's decision as a denial of the power of the states "to exclude from the sovereign's territory people who have no right to be there." He contended that Arizona as a sovereign state had the right to confront the "illegal immigration problem," because its citizens felt "under siege" by large numbers of immigrants who "invade their property," "strain their social services," and "place their lives in jeopardy." Justice Scalia argued that federal failure to "remedy the problem" justified the Arizona law. 

In Zadvydas v. Davis (2001), the majority, in an opinion written by Justice Breyer, held in part that the Immigration and Nationality Act did not allow the Attorney General to indefinitely detain immigrants pending removal, with the presumptive detention period is six months. Justice Scalia declared that a noncitizen under final removal order has no legal right to release into the United States. Because such a person has "totally extinguished whatever right to presence in this country he possessed," the Attorney General, in Justice Scalia's view, retained unbridled discretion over his custody.

Conclusion

Some might reflexively label Justice Scalia as "conservative" or "anti-immigrant" in his immigration jurisprudence. However, a closer look reveals that Scalia's political views did not exclusively guide his opinions. Also apparent was his focus on deference to administrative agencies (at least so long as they were interpreting the statutes consistently) and a general contempt for judicial activism. Another aspect of his general approach was his insistence on the interpretation of immigration statutes according to their ordinary meaning. For example, Justice Scalia, in adhering to the language of the immigration statute, voted in favor of noncitizens in several crimmigration cases, including Moncrieffe v. Holder (2013). (holding that a low-level marijuana offense could not be considered an "aggravated felony" for deportation purposes under the immigration statute) and Mellouli v. Lynch (2015) (reversing a removal order based on a drug paraphernalia conviction)." ("Justice Scalia's crimmigration legacy" is reviewed here.). Although it may be true that more of Justice Scalia's opinions hurt immigrants than helped them, his pro-immigrant rulings and devotion to certain doctrinal and other approaches should not be ignored from discussions of his immigration legacy. 

 

February 22, 2016

Confirmation and Clarity

Cross-posted from Dorf on Law.

Following the untimely passing of Associate Justice Antonin Scalia, the nation is engaged in a vigorous debate over whether the Republican-controlled Senate should confirm President Obama's nominee to replace Justice Scalia on the Supreme Court (President Obama has made it quite clear that he intends to nominate a successor).  Senators (and presidential candidates) Ted Cruz and Marco Rubio have both argued strongly against even voting on a replacement nominated by President Obama, leaving the decision for the next President.  Senate Majority Leader Mitch McConnell has also expressed this view, though other Republican Senators are waffling.

The discussions about historical precedents have become frankly tedious (and entirely partisan).  They are also beside the point.  There is no doubt that the Senate has the power to refuse to vote on a nominee, or to vote down a nominee, for purely partisan reasons or to await an election.  And what path the Senate does eventually walk will undoubtedly turn on a political calculation by the Republican leadership rather than either precedent or principle.  That is politics.

What I want to address is a separate matter, which is the practical, legal consequences of a decision by the Senate to refuse to confirm any Obama nominee. It is now February of 2016.  The Supreme Court holds one term a year, beginning on the First Monday in October, and ending in June or early July (the Terms are named for the October in which they start, so we are in the October 2015 Term, or OT 2015 in the jargon).  The last oral arguments for OT 2015 will be held on April 27.  That means that unless a new Justice is nominated and confirmed before that date, the appointee cannot participate in any case before the Court this Term.  Given the current atmosphere on Capitol Hill, clearly that is not going to happen.  So, almost all the cases this Term (excepting those decided before Justice Scalia's death) will be decided by an 8-Justice Court, split evenly between appointees by Republican and Democratic Presidents.  Given the hugely important issues pending before the Court currently (including the future of public sector unions, abortion regulation, affirmative action, and the President's immigration policies, to name just a few), that is very unfortunate.

But it gets worse.  Whoever wins the 2016 presidential election will be inaugurated on January 20, 2017 (per the Twentieth Amendment).  Even if the President-elect has focused on the question of a nominee to replace Justice Scalia before taking office, a proposition which is far from clear given the complexities of any presidential transition, realistically the earliest he/she could send a nomination to the Senate would be early February of 2017.  Then, hearings must be held and a vote taken.  It took 87 days for the Senate to confirm Justice Kagan, 66 days for Justice Sotomayor, and 82 days for Justice Alito.  They are the three most recent nominees on whom the Senate has held a vote, and the only relevant case studies since the 1990s (Chief Justice Roberts does not count because his nomination to an Associate Justice position on the Court had been pending for quite some time before Chief Justice Rehnquist died and he was re-nominated to the Chief Justiceship). Given that partisan rancor has hardly decreased since Kagan's nomination in 2010, this means that we can expect around two-and-a-half to three months at a minimum to pass before a new Justice could be confirmed, if they are confirmed, which puts us in late April or early May.  The last day of oral argument for OT 2016 is April 26, 2017.  Realistically, therefore, if no Obama nominee can be confirmed, the Court will be without a full complement for essentially two entire Terms.

Why is this a problem?  Because the most important job of the Supreme Court is to provide clarity and legal certainty.  Certainly Justice Scalia, the author of a law review article titled "The Rule of Law as a Law of Rules," would have agreed.  But the Court cannot provide certainty if it cannot decide cases and establish a uniform legal rule for the entire nation.  Consider one issue before the Court this year in a case called Zubik v. Burwell:  whether the exemption the Obama Administration has granted religious nonprofits from the contraceptive mandate in Obamacare is legally sufficient. The lower courts are divided on this issue, and it is frankly an extremely difficult and contentious one.  It would be extremely useful, for nonprofits, for the government, and for the public, to know the answer, whatever it might be.  But if the Court splits 4-4 in the case, as is likely, no answer will be forthcoming until 2018 at the earliest (assuming a new case comes to the Court in OT 2017).

Nor is Zubik an anomaly.  It is widely understood, and the Supreme Court's own rules recognize, that perhaps the most important function the Court plays is to resolve "splits," meaning legal disagreements among lower courts.  Many of these splits arise over highly technical, politically invisible issues that get no press coverage, but nonetheless affect the lives of thousands or millions. But they are very often difficult, close issues, because, after all, highly-qualified lower court judges disagreed as to the outcome.  As a result, an 8-Justice Court can be expected to regularly divide evenly on a substantial fraction of them, often on lines that have no partisan correlation.  The result:  continuing legal uncertainty and division.

My basic point here is simple: clarity and legal certainty matter, often more than how legal disagreements are resolved.  The current partisan impasse between the President and the Senate threatens to create substantial, prolonged legal uncertainty on the Supreme Court on many important issues. That is bad for Democrats, bad for Republicans, and bad for the United States.

February 17, 2016

Scalia Allowed Racial Profiling

This opinion essay originally appeared in The Sacramento Bee on February 16, 2016.

Appointed to the U.S. Supreme Court by President Ronald Reagan in 1986, Justice Antonin Scalia was often described as the intellectual anchor of the court's conservative wing. After his death, many commentators are reviewing his body of work, notably his interpretations of the Constitution, as well as his acerbic attacks on his colleagues' opinions and angry dissents, such as in the gay marriage cases.

He also leaves a legacy on a matter critically important to daily criminal law enforcement across the nation. Deadly encounters of people of color with law enforcement regularly make the news, including deaths in Ferguson, Baltimore and Cleveland that have led to sporadic outbursts of unrest.

Many Americans, including both Republican and Democratic political leaders, have condemned police reliance on racial stereotypes. But few are aware it was the Supreme Court, through Scalia's 1996 opinion in Whren v. United States, that made racial profiling in ordinary criminal law enforcement the law of the land.

Late one night in June 1993, two vice squad officers were patrolling a high-crime Washington, D.C., neighborhood in an unmarked vehicle. They saw two African American men in an SUV and stopped the vehicle for a traffic violation. (One can only wonder why vice officers would trouble themselves with a traffic stop.) The officers found crack cocaine and arrested the men. The defendants later argued that the traffic violation was only a pretext for a stop based on race - thus violating the Fourth Amendment ban on unreasonable searches and seizures.

Writing for a unanimous court, Scalia found that the vehicle stop did not violate the Fourth Amendment because the police had probable cause to believe a traffic infraction had been committed. To Scalia, it did not matter whether the officers admittedly used the violation as a pretext to stop the vehicle because the occupants were black.

He reasoned that any claim of racial discrimination by police fell outside the Fourth Amendment. Instead, he concluded, such a claim was properly brought under the equal protection guarantee of the Fifth and Fourteenth amendments.

But what his logic failed to capture was that equal-protection claims are extremely difficult to prove. A plaintiff must demonstrate that the police acted with a discriminatory intent - not simply that the action, practice or policy had a discriminatory impact on racial minorities. Understandably, plaintiffs can rarely produce the evidence necessary to establish guilty intent. Police officers generally can show there was no discriminatory intent by pointing to a race-neutral reason, such as a minor traffic violation, for the stop.

Put simply, Scalia's constitutional logic failed to ensure that the Constitution would be enforced to protect against racial discrimination. The Whren decision effectively authorizes traffic stops by police based on race. As a result, racial profiling is integral to a criminal justice system that critics contend is, at bottom, racially biased.

In the end, one of Justice Scalia's legacies is the existing problem of racial injustice in law enforcement. As public protests have shown, much remains to be done to remove the taint of racial discrimination from criminal law enforcement.

February 11, 2016

Symposium: United States v. Texas – The road to perpetual immigration gridlock?

Crossposted from SCOTUSblog.com:

Symposium: United States v. Texas - The road to perpetual immigration gridlock?

 

United States v. Texas raises critically important legal issues concerning the discretion of the executive branch in the enforcement of U.S. immigration laws. Moreover, if allowed to stand, the Fifth Circuit's finding that Texas has standing to derail discretionary federal immigration enforcement decisions could open the door to the use of litigation in the federal courts for partisan political ends in many controversial areas of law enforcement. As the Court explained three Terms ago in Hollingsworth v. Perry, the use of litigation as a political tool, as Texas and other states are doing, is precisely the kind of suit that Article III standing doctrine seeks to prevent.

Background

For years, Congress has been embroiled in a contentious debate over immigration reform. With a congressional stalemate, a number of states passed immigration enforcement laws ostensibly intended to "assist" the federal government in immigration enforcement - even though the U.S. government claimed that those efforts undermined federal enforcement authority. In 2012, in Arizona v. United States, the Supreme Court struck down core provisions of one of those laws, Arizona's controversial S.B. 1070. Making it clear that federal power over immigration was preeminent, the Court emphasized that the U.S. government had great discretion over immigration enforcement. By so doing, the Court staved off further state and local immigration initiatives that interfere with federal immigration authority.

To this point in time, House Republicans have blocked immigration reform. President Barack Obama responded in a measured way. Consistent with a long history of the use of prosecutorial discretion by the executive branch in removal - as well as other law enforcement - decisions, the administration in 2012 implemented the Deferred Action for Childhood Arrivals (DACA) program, which provided temporary relief to undocumented immigrants who had been brought to this country as children and are now young adults. In 2015, the Obama administration announced an expanded Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

Twenty-six states, with Texas leading the charge, challenged DAPA under the Administrative Procedure Act and the Take Care Clause of the Constitution. A district court in the Southern District of Texas enjoined the program's implementation. A divided panel of the U.S. Court of Appeals for the Fifth Circuit affirmed.

In the end, opponents of immigration reform have been able to use litigation in federal court to put on ice a major immigration initiative of the president. The damage is done. Even if the Supreme Court upholds DAPA, there might not be time to implement the program while President Obama is in office.

Standing

A majority found that, because it had demonstrated that it would incur costs by issuing subsidized driver's licenses to DAPA beneficiaries, one state - Texas - had established Article III standing. (Why the showing of injury by one state justifies a nationwide injunction of a federal program is an entirely different question.) In making that finding, the Fifth Circuit looked to Massachusetts v. EPA, the 2007 decision in which the Supreme Court found that Massachusetts had standing to challenge the Bush administration's failure to regulate greenhouse gases.

The alleged fiscal injury to Texas is considerably more attenuated than the loss of coastal land by Massachusetts in Massachusetts v. EPA. Moreover, the injury alleged by Texas is self-inflicted, given that the costs result from Texas's decision to issue the licenses to DAPA recipients (and its further decision to subsidize the processing costs), not any mandate of the federal government.

In the Fifth Circuit, Judge Carolyn King dissented from the majority's finding that Texas had standing to challenge DAPA. She observed that "[t]he majority's breathtaking expansion of state standing would inject the courts into far more federal-state disputes and review of the political branches than now is the case." King relied on the words of none other than John Roberts, who before joining the Supreme Court wrote for the Duke Law Journal that "[b]y preserving the proper bounds of Article III standing, the judiciary prevents itself from 'aggrandiz[ing] itself . . . at the expense of one of the other branches.'" Roberts was defending the Court's 1992 holding in Lujan v. Defenders of Wildlife that environmental organizations lacked standing to challenge federal regulations under the Endangered Species Act of 1973. Roberts noted that, although standing doctrine barred the plaintiffs from federal court, Congress could take the action sought by the environmental groups:

Standing is an apolitical limitation on judicial power. It restricts the right of conservative public interest groups to challenge liberal agency action or inaction, just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction. It . . . derive[s] from and promote[s] a conception that judicial power is properly limited in a democratic society. That leaves greater responsibility to the political branches of government - however they are inclined.

The possible impacts of affording Texas standing to sue

The broad notion of standing pursued by political actors in this case is inconsistent with the limited jurisdiction of the federal courts under Article III. The Fifth Circuit's liberal standing rule would open the door to state challenges, based on partisan political concerns, of many immigration enforcement decisions, as well as many other policy initiatives by the federal government.

Consider one possibility. At the same time that it announced DAPA, the Obama administration dismantled a broad criminal removal program - known as Secure Communities - and replaced it with a narrower one - known as the Priority Enforcement Program - that focused on immigrants convicted of serious crimes. Should the states have standing to challenge the new PEP program, contending that the injury suffered is possible increased crime costs? Such a claim is not readily distinguishable from the challenge in this case. If the Court finds that Texas has standing to challenge DAPA, one could also anticipate efforts by the states for partisan political reasons to employ lawsuits in the federal court to interfere with the executive branch in its discretionary judgments about how to enforce myriad laws - from the Internal Revenue Code to the environmental laws - passed by Congress.

The fact that there are states on both sides of the litigation in this case reflects the political nature of the dispute. Disagreeing with Texas and the other twenty-five states, fifteen states - including California, New York, and the District of Columbia - filed an amicus brief supporting the grant of certiorari that characterizes the alleged injury to Texas as "illusory or self-inflicted" because there is no requirement in DAPA or elsewhere in federal law that the states issue driver's licenses, much less subsidized ones to DAPA recipients. These states forcefully claim that the alleged harm "does not justify using the federal courts to achieve a political victory that Plaintiffs could not achieve through the political process."

Immigration reform is a contentious policy issue best left to the political branches of government. The litigation in this case in fact is part of a larger political struggle. Some political actors disliked the Obama administration's discretionary policy judgment and went to federal court to stop that policy from being implemented (a ploy that apparently could not have been secured through Congress). The use of the federal courts as a political weapon in a national debate was precisely what the framers of Article III of the Constitution sought to prevent.

 

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.