June 29, 2012

Under What Circumstances Can a State Compel a Pharmacy to Provide “Morning After” Drugs Against the Religious Objections of Pharmacists?

Co-authored with Professor Alan Brownstein.  Cross-posted from

Much attention has been directed toward the asserted clashes between the federal government’s recently adopted policies concerning health insurance coverage for contraceptive services, on the one hand, and religious liberties, on the other.  But state laws and policies present just as much, if not more, potential for infringement of religious liberties.  In the present column, we analyze a recent case from the state of Washington that sheds important light on the current state of the constitutional right to the free exercise of religion, and that also illustrates many of the big unanswered questions concerning the meaning of the First Amendment’s Free Exercise Clause.

Background on the Case

The case, Stormans Inc. v. Selecky, which was decided by a federal district court in Seattle earlier this year, and is now presumably destined for resolution by the federal appellate courts, involves a pair of Washington State rules that operate in tandem: (1) the “stocking rule,” which requires pharmacies to stock “a representative assortment of drugs in order to meet the pharmaceutical needs of its patients,” and (2) the “delivery rule,” which requires pharmacies in Washington to timely deliver to patients all lawfully prescribed medications, including the emergency contraceptive known as “Plan B.”  Plan B is a drug that, when taken after unprotected sex, delays ovulation and can also prevent a fertilized egg from adhering to the wall of the uterus (implanting).  Plan B is most effective if taken within three days after sex occurs.

Some Washington pharmacists who hold the sincere religious belief that life begins at conception (that is, when an egg is fertilized by a sperm) refused to dispense Plan B to customers who sought it.  Under Washington’s rules, a pharmacy that fails to stock and deliver lawfully prescribed drugs is subject to discipline, including revocation of its license.  It is not enough that a pharmacy refers patients to other pharmacies that will provide the contested drugs; the rules require each pharmacy to dispense the drugs, regardless of the pharmacy’s religious convictions. (A conscience exemption does apply to individual pharmacists, but it does not extend to the pharmacy itself.  This distinction may raise problems for small pharmacies, and is particularly problematic in cases where the pharmacy owner himself or herself conscientiously objects to distributing certain drugs.)

In the federal lawsuit brought against Washington State officials to challenge the rules, the federal judge framed the question as whether “the State [can] compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life.”

The judge, Ronald Leighton, concluded that, in light of the entire record, Washington State could not compel delivery of Plan B consistent with the rights enjoyed by the pharmacies under the First Amendment’s protection of the “free exercise of” religion.

Deconstructing Free Exercise Doctrine:  What Does “Neutral and Generally Applicable” Mean?

In analyzing plaintiffs’ free exercise claim, Judge Leighton conceded, as he had to, that the pharmacy regulations are neutral on their face; they do not single out religious exercise for discriminatory treatment.  This was an important first step, because under the Supreme Court’s famous 1990 holding in Employment Division v. Smith, the Free Exercise Clause provides no protection to religious individuals who are substantially burdened by “neutral laws of general applicability.”

Judge Leighton’s analysis did not stop here, however. In some cases, even an ostensibly facially neutral law may not be a neutral law of general applicability for free exercise purposes.  And if a law that substantially burdens the free exercise of religion is not a neutral and generally applicable law, it must be justified under strict scrutiny to satisfy constitutional review.

The controlling Supreme Court precedent here is Church of Lukumi Babalu Aye v. Hialeah. At issue in that case were a series of Hialeah, Florida city ordinances prohibiting the ritual sacrifice of animals—a practice engaged in for religious purposes by members of the Santeria faith.  Although the challenged regulations never explicitly mentioned religion or the Santeria faith, the Court determined that the laws were not neutral and generally applicable regulations and struck them down under strict scrutiny review.

Justice Kennedy’s majority opinion in the case applied an extraordinarily complicated, multi-factor analysis to reach its conclusion.  First, Justice Kennedy determined that the challenged laws were not neutral. Looking behind and beyond the literal language of the ordinances, he concluded the Hialeah laws constituted a “religious gerrymander,” in that the impact of the laws fell exclusively on members of the Santeria faith, and no one else sacrificed animals in the area.  Also, the regulations were over-inclusive and far more prohibitive than the city’s asserted public health and preventing animal cruelty concerns would justify.

In addition, Justice Kennedy focused on one particular ordinance that prohibited the unnecessary killing of animals. This requirement apparently applied only to the religious sacrifice of animals; no other practice involving the killing of animals—including the use of live rabbits to train greyhounds for racing—was considered unnecessary or unlawful under Florida law.  Of equal concern to the Court was the degree of discretion exercised by government officials in determining whether the killing of animals would be considered necessary. This kind of individualized assessment of whether a law applies undermines the neutrality of a law that was important to the Smith holding.

Finally, Kennedy looked at the legislative history record to demonstrate that the Hialeah City Council was overtly hostile to the Santeria faith.  Significantly, however, only one other Justice joined this section of Kennedy’s opinion, and Justices Scalia and Rehnquist explicitly rejected the use of such direct inquiries into legislative motive to evaluate the constitutionality of a law.

Having established that the Hialeah ordinances were not neutral, Justice Kennedy went on to conclude that they were also not generally applicable.  The problem here was that the laws were unacceptably under-inclusive. Hialeah asserted public health interests and concerns about preventing cruelty to animals to justify its laws.  But many activities, such as hunting or the use of animals in medical experiments, were not restricted.  Again, it appeared that Hialeah’s laws targeted the prohibited conduct only when it was undertaken for religious purposes.

Applying Lukumi to Washington State’s Rules

The Lukumi framework is complicated and confusing. In particular, the Court provided no guidance as to whether all of the problems it identified in Hialeah’s laws were necessary to determine that a law was not neutral and generally applicable.  Nor did the Court suggest how much weight should be assigned to each of the factors it discussed.  The Selecky court occasionally got distracted winding its way through this morass, but the focus of its discussion went to the heart of the Lukumi analysis—the rejection of religious gerrymanders.

Here, in practice, according to Judge Leighton, the Washington regulatory scheme was not neutral because it was riddled with secular unwritten and written exemptions. Among other unwritten exemptions, for example, was the fact that a pharmacy could refuse to stock a drug because the drug had a short shelf life, was expensive or difficult to store, involved additional paperwork, fell outside the pharmacy’s business niche, or increased the likelihood that the pharmacy would be a target for crime.  Both the stocking rule’s unwritten exemptions, and the delivery rule’s written exemptions, were indeterminate and required discretion in their application. Moreover, many of these exemptions would clearly burden patient access to desired pharmaceuticals. If this potential burden was tolerable for all of these secular exceptions, why was it an intolerable risk to permit a pharmacy to refuse to stock and distribute Plan B?  Indeed, it did not appear that the stocking regulation in particular had ever been applied against any pharmacy other than that of the plaintiffs in this case.  Judge Leighton also opined that the background history of the regulations further supported his conclusion that the purpose and motive of the application of these regulations to plaintiffs was the State’s disagreement with conscience claims relating to Plan B.

Judge Leighton also ruled that Washington’s regulations were not generally applicable, because they were selectively enforced.  There are numerous outpatient or retail pharmacies in Washington affiliated with Catholic hospitals.  None of these pharmacies stocked or dispensed Plan B.  Yet the State had never enforced its stocking and delivery regulations against them.

The State attempted to distinguish Lukumi, in part by arguing that the secular exemptions it granted were categorical, unlike the individualized assessment of whether killing animals in Florida was “necessary.” Judge Leighton responded by explaining that many of the State’s exemptions did require discretion—particularly since the State interpreted the exemptions expansively to apply to analogous circumstances.  Moreover, the court concluded that it would make no difference to its analysis even if the exemptions were clear and categorical.

Two cases from the U.S Court of Appeals for the Third Circuit were cited by Judge Leighton to support his contention that the existence of even categorical secular exemptions to a regulation precludes the law from being characterized as neutral and generally applicable for free exercise purposes. The opinion in Fraternal Order of Police v. Newark, written by Judge, now Justice, Alito is more easily summarized. In that case, Muslim police officers sought a religiously motivated exemption from the Newark Police Department’s grooming standards that prohibit officers from having beards. Their request was denied. However, the Department categorically exempted officers from this grooming requirement if they suffered from a physical condition that makes regular shaving medically problematic.  Because there was a categorical exemption to the grooming regulation, Judge Alito held that the grooming standard was not a neutral and generally applicable law. The refusal to provide an accommodation to the Muslim officers was then subjected to strict scrutiny review and ultimately rejected.

Based on its analysis of Lukumi and Fraternal Order of Police, Judge Leighton applied strict scrutiny to the case before him. (It remains to be seen whether the Ninth Circuit will agree with him; already once, in this case, the Ninth Circuit had undone Judge Leighton’s preliminary order enjoining implementation of Washington State’s rules, and the Ninth Circuit opinion could plausibly be read to say that, under the Ninth Circuit’s reading of relevant Supreme Court case law, nothing beyond minimum rationality review applies.  If so, the Ninth Circuit will find Judge Leighton’s ruling defiant and likely reverse it.  Judge Leighton insisted that the Ninth Circuit’s prior ruling on the “thin” record of a preliminary injunction hearing did not control his analysis of the more complete record developed during trial.)

Under strict scrutiny, it is quite understandable that Judge Leighton concluded that the challenged regulatory scheme failed this rigorous level of review.  Indeed, from the court’s perspective, there was little to argue about. The only arguably compelling state interest that might justify the regulations was the need to provide patients timely access to the drugs they sought. The State’s tolerance of other exemptions already undermined this justification.  Further, from Judge Leighton’s perspective, the State had acknowledged that an accommodation allowing a pharmacy to refuse to stock and distribute Plan B, but requiring it to refer patients to other pharmacies that would provide this service, would eliminate any threat to patients who desired timely access to the drug.

Variations on Selecky That Highlight Free Exercise Quandaries

Under Judge Leighton’s analysis (and again, the Ninth Circuit may see things differently), Selecky is in many ways a relatively straightforward case.  There were numerous individualized secular exemptions to the regulations; there was no record of the regulations being enforced outside of the context of religiously based conscience claims; and a “refuse and refer” accommodation would not pose a threat to patients obtaining timely access to the drugs they were seeking. (We, of course, have not examined the record and express no opinion on the accuracy of these findings and conclusions.)

Because the specific drug in this case relates to abortion and contraception, the free exercise issues addressed here are particularly controversial. But suppose we change the facts so that a pharmacy raised a different religious or moral objection to a different drug.  Assume the drug in question was developed on the basis of questionable medical research that imposed unwarranted risks and suffering on human subjects, or that the drug was produced in sweatshop facilities in third world countries. Arguably, the conclusion in this case would seem less provocative in these different circumstances.

If we change other facts, however, it should be clear that the Selecky analysis raises far more questions than it answers. For example, the court in Selecky repeatedly refers to the history of the regulation to support the conclusion that the State’s purpose was to single out religious exemptions for discriminatory treatment. Suppose no such record existed. Should that make a difference? The unwillingness of most members of the Court to join the legislative motive section of Kennedy’s opinion in Lukumi, and the repudiation by Chief Justice Rehnquist and Justice Scalia of this approach, suggests at least the possibility that a direct purpose analysis in these kinds of cases is unnecessary and irrelevant.

A more problematic variation of the facts would be a situation in which a religious accommodation were rejected, some secular exemptions were granted, but other requested secular exemptions were also rejected. Here, the religious accommodations would be treated the same as some secular accommodations, but less favorably than other secular exemptions. Is that still a religious gerrymander?

If there were a history of the State rejecting some requested secular accommodations based on business needs or convenience, should the refusal to provide religious accommodations for dispensing Plan B be characterized as neutral rather than discriminatory?

What if, in the Lukumi case, there was also a secular fraternity operating in Hialeah that engaged in animal sacrifices as part of its pledge ceremony? If both the religious and non-religious acts of animal sacrifice were prohibited, should the Court’s analysis have been different?

Another difficult case would be one where the requested religious accommodation would, in fact, impose some significant burden on patient access to desired drugs.

There are really two legal inquiries here. First, would avoiding the burden on patient access constitute a sufficiently compelling state interest to satisfy strict scrutiny review? (The extent to which patient access was also burdened by secular exemptions the State had granted would be relevant to this analysis.)

Second, would the religious exemption violate the Establishment Clause prohibition against accommodations that reach too far and impose unacceptable burdens on third parties or the public interest?

It is not clear, at least to us, that the strict scrutiny standard for free exercise purposes and the unacceptable burden on non-beneficiaries Establishment Clause standard always require the same inquiry or results.

The last question left open in Selecky is whether the analysis in Fraternal Order of Police—which requires strict scrutiny review of any law substantially burdening religious exercise if there is any (even a categorical) secular exemption to the law—is really reconcilable with the holding of Employment Division v. Smith.  As many scholars have noted, a great many laws have some categorical exemptions to their application. If all these laws are subject to strict scrutiny review, the scope of the Court’s holding in Smith will be substantially undermined.

Does Washington’s Rule Implicate or Violate Other Rights Beyond Free Exercise?

In addition to relying on free exercise, Judge Leighton’s opinion also found that Washington’s rule violates the Fourteenth Amendment’s guarantee of equal protection, and may very well violate notions of substantive due process under the same amendment.  The invocation of equal protection and substantive due process highlight how free exercise doctrine might be similar to—but also different from—the requirements of these Fourteenth Amendment provisions.

As to equal protection, Judge Leighton said that a facially neutral law violates the equal protection norm if the plaintiff can prove invidious motive and intent to discriminate.  This is certainly true in the race setting; a law that does not mention racial groups but that imposes harm upon them, and that is demonstrated to be motivated by a desire to inflict this harm, is unconstitutional.  Judge Leighton cited Justice Kennedy’s opinion in Lukumi to support the idea that the same principles should govern free exercise cases. But, as noted earlier, Justice Kennedy’s approach was not embraced by seven members of the Court. Perhaps the Court in Lukumi did not disagree with Justice Kennedy, but rather felt only that it didn’t want to make new law by holding that motive analysis applies in the religion setting.  But if the Court is best understood as having rejected Justice Kennedy’s importation of motive inquiry into free exercise doctrine itself, then wouldn’t the Court also be reluctant to accept such inquiries when they are restyled as equal protection challenges directly?

As for substantive due process, Judge Leighton, while not actually ruling in the plaintiffs’ favor on this ground, intimated that it is his view that there is there a substantive due process right not to be compelled to facilitate killing someone else, and that this should protect the pharmacies against Washington State’s stocking and delivery rules.

But Judge Leighton was likely too quick in analyzing the key issue here:  Even assuming that there is a substantive due process right to be free from the compelled taking of life, would that principle apply to “morning after” pills?  In concluding that it would, Judge Leighton argued that while not every person might equate a “morning after” pill with the affirmative killing of another, the plaintiffs do, and the government cannot second-guess sincere religious beliefs. But that argument mistakenly mixes religion clause and substantive due process analysis.

We don’t second-guess what an individual understands his religious beliefs to require in free exercise cases. But under substantive due process doctrine, the question is not what any individual subjectively believes, but whether society’s tradition and history would protect a particular activity from government interference. Thus, in this case, the question would be whether society (not any particular individual) has traditionally recognized “morning after” pills to be taking human life in the same sense as, say, killing enemy soldiers or assisting a suicide takes life.

June 27, 2012

The debate over immigration reform is not over until it's over

Cross-posted from SCOTUSblog.

On one of the last days of the 2011 Term, the Supreme Court decided Arizona v. United States and determined the constitutionality of four provisions of the controversial Arizona immigration enforcement law known as S.B. 1070.  The case had received a great deal of attention from Court watchers – and not just those interested in immigration.  Indeed, it had a little something for just about everybody, from federalism to civil rights to election-year politics.

In important respects, I called the decision before certiorari was granted, as well as before and after oral arguments. Now that the Court has rendered its long-awaited decision, here is my preliminary analysis of the ruling and its potential impacts.

The decision: States have some immigration enforcement power

In many respects, the Supreme Court’s decision in Arizona v. United States will be far from satisfying to many.  Unlike lawsuits brought by other plaintiffs challenging S.B. 1070, the U.S. government challenged the Arizona law solely on the ground that it violated the Supremacy Clause of the U.S. Constitution, which makes federal law the “supreme law of the land.”  The body of law at issue is known as federal preemption doctrine, which is far from scintillating to most law professors, much less the general public.

In addressing the U.S. government’s preemption challenge, the U.S. Court of Appeals for the Ninth Circuit had agreed with the district court that four provisions of S.B. 1070 impermissibly intruded on the federal power to regulate immigration law..  The four provisions struck down include:

(1) Section 2(B), which requires state and local police to check the immigration status of persons about whom they have a reasonable suspicion of being undocumented;

(2) Section 3, which would have made it a crime not to complete or carry an “alien registration document” (and is directly contrary to the Court’s decision in Hines v. Davidowitz

(3) Section 5(C), which criminalizes the conduct of undocumented employees and goes well beyond the civil sanctions that U.S. immigration law allows to be imposed on employers of undocumented workers; and

(4) Section 6, which allows for a warrantless arrest if the “officer has probable cause to believe [that a person] has committed any public offense that makes the person removable from the United States” under federal immigration law.

The Supreme Court, in a majority opinion by Justice Kennedy that was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor, affirmed the Ninth Circuit’s ruling with respect to three of the four provisions.  Justice Kagan, the former Solicitor General, took no part in the consideration or decision in the case.

At the outset, the majority emphasized that “[t]he Government of the United States has broad, undoubted power over the subject of immigration and the regulation of aliens” and that “[t]he federal power to determine immigration policy is well settled.”  After reaffirming federal primacy over immigration, the Court applied conventional federal preemption precedent.  It carefully parsed each of the four sections individually, struck down Sections 3, 5(C), and 6, and upheld Section 2(B).  In upholding that lone section, the Court found that there were adequate safeguards in place, including the law’s ban on racial profiling, which saved it from being invalidated on its face.

It is important to note that, in upholding Section 2(B), the Court emphatically left the door open to future claims challenging its application:  “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

Not even able to agree among themselves, Justices Scalia, Thomas, and Alito all filed separate opinions concurring in part and dissenting in part.  Most jarring was Justice Scalia’s dissent, which would have upheld S.B. 1070 in its entirety.  Besides expressing unhappiness with the Obama Administration’s immigration enforcement policies, Justice Scalia contended that the framers of the Constitution understood that the states had sovereign power over immigration.  He stated sarcastically that “[i]f securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”

Avoiding the civil rights concerns

Since the passage of S.B. 1070, Section 2(B) alone generated a firestorm of controversy.   It, like many of the other new immigration enforcement laws passed by the states, requires state and local police to verify the immigration status of anyone whom they have a “reasonable suspicion” is undocumented.  Critics claimed that S.B. 1070 would increase racial profiling of Latinos in law enforcement, a serious civil rights concern.

The majority’s federal preemption analysis in Arizona allowed the Court to conveniently side-step this most frequently voiced public concern with the Arizona law.  In so doing, the Court was aided by the parties.

Unlike the challenges to the Arizona law brought by civil rights groups, the U.S. government – the only plaintiff whose claims were before the Supreme Court — did not include a claim that S.B. 1070 violated the Equal Protection Clause of the Fourteenth Amendment.  The administration consciously wanted to avoid any claim of racial profiling.  Indeed, during oral argument, Solicitor General Donald Verrilli unequivocally admitted in response to questioning from the Justices that racial profiling was not at issue in the case.  Arizona, of course, would have no reason to disagree.  The Justices eagerly seized on the admission that racial profiling was not at issue in the case to duck the race issue and write a treatise-like opinion on federal preemption.

There are at least two possible explanations for the U.S. government’s strategy to avoid making the case a racial profiling case.

First, a claim of racial profiling presumably would be based on the Equal Protection Clause of the Fourteenth Amendment.  To prevail on an equal protection claim, the U.S. government would have to prove that the state of Arizona acted with a “discriminatory intent” in enacting S.B. 1070.  (See Washington v. Davis (1976).).  This is a heavy burden, especially in a challenge to the constitutionality of a law on its face as opposed to as it has been applied.

Second, the Obama Administration may have wanted to avoid appearing to play the proverbial “race card” in challenging S.B. 1070 as a form of for racial discrimination.  Such reluctance would seemingly grow as the 2012 presidential election nears.  It was relatively easy to avoid race and civil rights concerns when the parties were willing and when a readily available, and far less contentious, legal argument (federal preemption) was at hand.

In the end, the decision in Arizona v. United States centered on the power of the federal vis-à-vis state government over immigration.  However, many critics of the state immigration enforcement laws like those in Arizona, Georgia and South Carolina are less worried about state intrusion on federal power and much more concerned that the laws would encourage discrimination against Latinos, including lawful immigrants and U.S. citizens.  Ultimately, a gaping disconnect exists between the Court’s resolution of the case on legal technicalities and the civil rights concerns of certain segments of the public.  .

The impact of Arizona v. United States

Only time will tell on what the real impact will be of the Supreme Court’s decision in Arizona v. United States on the enforcement of the U.S. immigration laws.  Several possibilities come to mind.

The Court’s decision would appear to be far from the end of the matter with respect to the lawfulness of Section 2(B) of Arizona’s S.B. 1070.  We can expect challenges to that section as it is applied by the police, including claims by U.S. citizens of Mexican ancestry who are stopped and questioned about their immigration status by state and local law enforcement authorities.  Racial discrimination in the criminal justice system has long been a problem in Arizona. In May, the U.S. Department of Justice brought a civil rights action against the Maricopa County Sheriff’s Office, and celebrity Sheriff Joe Arpaio, for allegedly engaging in a “pattern of unlawful discrimination” against Latinos and immigrants.

It does seem clear after Arizona v. United States that there is a narrow space for the states to enforce the U.S. immigration laws.   The decision may encourage more states to pass laws copycatting Section 2(B) and other lawful provisions of S.B. 1070 and perhaps even attempt to more aggressively “assist” the U.S. government in enforcing the immigration laws.

The Court’s decision to uphold Section 2(B) will allow state and local governments on a daily basis to be involved in immigration enforcement as officers enforce the ordinary criminal laws.  This will ensure that the decision has a significant impact in Arizona, but also in other states with laws similar in important respects, such as Alabama, Georgia, and South Carolina.

At the same time, the Court’s careful review of the specific provisions of S.B. 1070 makes it clear that states do not have a blank check in terms of immigration enforcement.  State leaders thinking about their own S.B. 1070 would need to think about the benefits of a largely symbolic – and possibly politically popular — law compared to the costs of enforcement (as well as litigating challenges to the law).

Importantly, nothing in the Court’s decision suggests any change in the Court’s approach to the run-of-the-mill immigration case, in which it looks to the text of the statute and the reasonableness of the agency’s interpretation of the statute.  Immigrants in recent years have prevailed in a majority of the Court’s immigration decisions in the last few years.

Although immigrant rights advocates may be disappointed and restrictionists may be jubilant, it would be hazardous to read too much into Arizona v. United States.  The newest Justice, Elena Kagan, did not participate in the decision, and future cases will push beyond the boundaries of the decision.  For example, Alabama’s H.B. 56, which goes further than S.B. 1070 by barring undocumented students from public colleges and universities and requiring school districts to collect immigration status information of K-12 students and parents, touches on education and raises many different legal and civil rights issues.  See Kevin R. Johnson, Alabama Highlights Civil Rights Concerns in State Immigration Laws, Jurist,  Nov. 12, 2011, available here.

In conclusion, the Supreme Court has cracked open the door to new state legislation, new claims of racial discrimination, and new lawsuits.  States are likely to test the boundaries of Arizona v. United States with new, if not improved, immigration enforcement legislation.  Litigation over the constitutionality of the laws is likely to continue.  The lasting solution to the proliferation of state immigration enforcement laws, which is beyond the power of the Supreme Court, is for Congress to enact comprehensive immigration reform that has the support of the public.  Perhaps the publicity over Arizona v. United States will prod Congress to act.  Until it does, we can expect the status quo to continue.

June 27, 2012

S.B.1070 rides off into the sunset

Authored by Gabriel "Jack" Chin and Marc L. Miller,  Cross-posted from SCOTUSblog.

At its core, S.B. 1070 is a use of the state police power and state criminal law to enforce and punish federal immigration violators; at its core this is what a majority of the Supreme Court rejected.

In surprisingly strong terms, the Supreme Court sided with the federal government and upheld the Ninth Circuit’s preliminary injunction of Sections 3, 5 and 6 of Arizona’s S.B. 1070 law. Section 3 criminalized non-compliance with federal immigration registration laws; the Court said Arizona’s law interfered with the federal statute. Section 5 criminalized non-citizens’ working without authorization, which federal law did not criminalize. The Court said Arizona could not criminalize something that Congress had determined not to. Section 6 authorized arrests for civil immigration violations; the Court said that was a federal prerogative. (We explain the provisions of S.B. 1070 in greater detail here).

In a 5-3 decision written by Justice Kennedy, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer and Sotomayor, the Court reaffirmed the almost unique status of immigration law and policy in the federal domain. If states can’t act where the federal government has acted, or where the federal government has not acted, and cannot even carry out civil law on their own, there is little left for states that want to create their own immigration laws.

Whether this decision enters the pantheon may depend on the more momentous and looming decision on the Affordable Care Act. Nevertheless, its practical importance is significant. The decision may sound the death knell for state and local immigration legislative innovations like S.B.1070 and its copycats, and other varieties, like the residential ordinances in Hazleton, Pennsylvania now before the Third Circuit.

The Court tossed Arizona a bone by declining to strike down on its face Section 2(B), which directs state officials to investigate the immigration status of people it stops. It remains to be seen how Arizona, Alabama, and other states will respond; much additional litigation could follow. Section 2(B) provides:

For any lawful stop, detention or arrest made by a [state] law enforcement official… in the enforcement of any other law… where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.

Left unanswered at this point is what limits the Court might impose on when state officials can check immigration status. The majority hinted that detention longer than necessary to complete the original purpose of the stop would conflict with federal law.

Detaining individuals solely to verify their immigration status would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.

So why not decide that question, which was raised at oral argument? The court points to the enormous uncertainties in how the law might actually be applied – a law enjoined on July 28, 2010, days before it was scheduled to first take effect:

 However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.

The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.

The decision in Arizona v. United States invites the states to move forward on policies instructing officers who otherwise are justified in stopping someone to check immigration status. But the decision also invites as-applied challenges, noting that “[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” If Arizona, Alabama or other states read the decision broadly, we will see many challenges – across cases and in individual cases – on preemption, Fourth Amendment, and equal protection grounds.

The flashpoint of whether S.B. 1070 allows or indeed mandates racial profiling is left for another day. Perhaps later challenges to S.B. 1070 will ultimately come to stand for the proposition that race and national origin are no longer legitimate elements of a “reasonable suspicion” calculus in making stops or inquiring about immigration status. That, however, is not what S.B. 1070 says, or what the current applicable U.S. and Arizona Supreme Court holdings would suggest.

S.B.1070 provides that law enforcement officers “may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona constitution.”

This sounds like a ban on racial profiling, but in fact it authorizes it. The U.S. Supreme Court in Brignoni-Ponce (1975) and the Arizona Supreme Court (in State v. Graciano (Ariz. 1982) and State v. Becerra (Ariz. 1975)) permit race to be used as a factor in immigration enforcement.

If the Arizona legislature in fact wants to ban reliance on racial profiling in enforcement of section 2(B), it can do so by modifying the statute to say that law enforcement officers “may not consider race, color or national origin in the enforcement of this section.” Period.

Whether or not the state further revises Section 2(B), Arizona should keep track of data about the immigration status checks performed by officers. A current state agency exists to collect and analyze such information.

But assume that explicit reliance on race is off-limits. Assume that Brignoni-Ponce and its state analogs have been silently overruled, or that this troubling authority is explicitly sidestepped through executive directives. Arizona Governor Jan Brewer and other proponents have insisted that racial profiling will not be allowed, and that “reasonable suspicion that the person is an alien…and unlawfully present” must be determined by objective facts.

What objective facts can state authorities imagine that would not correlate highly with race?

Federal and state caselaw examining what constitutes reasonable suspicion that someone is undocumented turn on factors as location, language, dress, whether the individual is acting furtively and the like.

What seems objectively undeniable is that many U.S. citizens and lawful immigrants of apparent Mexican ancestry will bear much of the burden of investigation. Also, given that there is no doubt that most of the undocumented population in Arizona is of Mexican ancestry, there is something of an Alice-in-Wonderland quality of contending that a program targeting the undocumented is, somehow, not about Mexicans.

To the extent that S.B. 1070 is about message and not meaning, perhaps S.B. 1070 and its cousins in Alabama and elsewhere will fade of their own accord. These laws are costing the states huge amounts of money, and greater amounts of respect. Prosecutorial and police discretion is one place bad laws go to die.

But if not – if there is aggressive enforcement – then litigation over these laws as applied is likely to become a staple of federal and state courts for some time to come.

No observer – whether a defender or a critic of state immigration enforcement efforts like SB 1070 – thinks that battles over state efforts to shape immigration policy is the best institutional path to immigration reform. Although S.B.1070 has been eviscerated, its drafters and enactors still scored a major social victory by putting the issue in the forefront of public debate.

The Obama administration’s new mini-DREAM prosecution policy – a modest counterweight to its aggressive enforcement of immigration laws to this point – is a reminder both of the centrality of executive policy to immigration law and to the ultimate need for Congressional action.

Ultimately, as was true regularly throughout the last century, it will be a sensible and bipartisan Congress that realizes that the rule of law in this area (and others) includes rather than abhors both individual discretion and occasional systematic grace.

June 14, 2012

Defining Parenthood: Astrue v. Capato and Same-Sex Marriage

Cross-posted from JURIST.

Who is a parent? Does biology necessarily and in all circumstances make one a parent? Are biological parents and their children "at the core" of all federal benefits programs? Although the case appeared to present a rather technical statutory interpretation question, these broader questions lurked in the background of the recent Social Security benefits case decided by the US Supreme Court — Astrue v. Capato.

Overview of the Case

The case concerned the right of twin children to recover children's social security survivor benefits. The children were born to Karen Capato in September 2003. Approximately four years earlier, Karen married Robert Capato. Shortly after getting married, Robert was diagnosed with cancer and was informed that his cancer treatments might leave him infertile. Before beginning treatment, Robert deposited his semen with a sperm bank to preserve the possibility of having children with Karen who would be biologically connected to both of them. The couple ended up having one child through sexual intercourse in 2001, but this child's eligibility for benefits was not at issue in the case. Unfortunately, Robert died in 2001. After Robert's death, Karen began treatment for in vitro fertilization (IVF) using Robert's semen and her ova. IVF requires the extraction of a woman's ova from her body, which are then fertilized with sperm outside the woman's body. The fertilized ova are then transferred to a woman for gestation. Karen eventually gave birth to twin children in September 2003, 18 months after Robert's death.

Shortly after the twins were born, Karen sought Social Security survivor benefits on their behalf. These requests were denied by the Social Security Administration (SSA). This denial was affirmed by an administrative law judge and then by a federal district judge on the ground that the children were not eligible to recover under any of the definitions of "child" included in the Social Security Act ("the Act"). The US Court of Appeals for the Third Circuit reversed, holding that even though the children did not qualify under any of the explicit definitions laid out in the Act, the twins nonetheless should be considered eligible children because they were indisputably the biological children of a "deceased wage earner and his widow."

Although the mother was likely only thinking about these particular children's rights to access this particular benefits program and likely was not intending to make broader pronouncements about family law generally, the mother's argument rested on the underlying premise that biologically connected children are the "principal beneficiaries" of this federal benefits program (and presumably others).

Based on the paucity of commentary, it seems that few Supreme Court watchers or legal commentators followed the case. It appeared to present a rather narrow statutory interpretation question about the eligibility of a small group of children (children conceived through the use of assisted reproductive technology after the death of the sperm provider) to a particular federal benefit. I argue, however, that the Court's decision in this case may provide useful insights to how the Court may respond to some much broader and controversial arguments currently being asserted in the various same-sex marriage cases percolating through the court system.

The Social Security Act

The Social Security Act was enacted in 1935 to help people — particularly older people — deal with the extremely high unemployment and poverty rates seen during the Great Depression. The Act included four basic programs: a forced retirement plan for workers; a needs-based assistance program for low-income, older people; an unemployment compensation program; and a program designed to provide assistance to poor mothers and their children.

In 1939, Congress expanded the forced retirement program — Title II — to provide benefits not just to the workers, but to their dependents. This expansion "transformed Social Security from a retirement program for workers into a family-based economic security program." As President Franklin Roosevelt stated in his 1939 signing statement: "In addition to the worker himself, millions of widows and orphans will now be afforded some degree of protection in the event of his death whether before or after his retirement."

Children's Eligibility under the SSA

Pursuant to the Act, as amended in 1965, stepchildren, adopted children, and people considered "children" under the Act are entitled to child's social security survivor benefits under certain specified conditions, pursuant to 42 USC § 416(e). The Act provides several ways a person who is not a stepchild or an adopted child can establish that he or she is considered a "child" under the Act. A child is considered a child for purposes of child's social security survivor benefits if the person would be able to inherit intestate through the wage earner as a child or with the same status as a child of the person under 42 USC § 416(h)(2)(A). Alternatively, under 42 USC §416(h)(2)(B) the child is considered a child if: "[The] insured individual and the mother or father ... went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment ... would have been a valid marriage." Finally, even if neither of the first two methods apply, one can nonetheless establish that one is a child if the insured individual "acknowledged in writing that the applicant is his son or daughter," "had been decreed by a court to be the mother or father of the applicant" or "had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter" according to 42 USC §416(h)(3)(C).

Karen Capato did not argue that the twins would qualify under any of the three statutory methods outlined above. Instead, she argued that the twins did not need to fulfill any of those requirements because they were the biological offspring of two persons who had been married to each other. Such children, Karen asserted, are in a class of their own and are automatically entitled to social security children's survivor benefits. In her brief to the Supreme Court she argued: "Congress regarded such children as the principal beneficiaries of the Social Security survivorship program; indeed, Congress saw that principle as so obvious that it did not require many words to establish."

The Court's Holding

The Supreme Court swiftly and unanimously rejected the mother's arguments in an opinion authored by Associate Justice Ruth Bader Ginsburg. Nothing, Ginsburg explained, indicates that "Congress intended 'biological' parent to be prerequisite to 'child' status under" the Act. To the contrary, a review of historical context as well as state parentage law reveals that that federal government did not intend to privilege or especially protect the biological children of married couples. First, quoting the Administration's brief, Ginsburg explained that "'[i]n 1939, there was no such thing as a scientifically proven biological relationship between a child and a father, which is ... part of the reason the word 'biological' appears nowhere in the Act.'" Second, Ginsburg astutely noted that under state parentage law, a person who is biologically connected to a child is not necessarily the child's legal parent. A biological parent is not the legal parent of a child who has been adopted by another family. In addition, in many states a man who provides sperm to inseminate a woman other than his wife is not the resulting child's legal parent. Although Ginsburg did not develop this point in her opinion, the opposite is also true. There are many circumstances under which a person who is not biologically connected to a child is the child's legal parent. In all 50 states, husbands are presumed to be the legal parents of children born to their wives, even if they are not genetically connected to the child. In many states, this presumption is not rebutted by evidence that the husband is not the biological father. In the context of non-marital children, there are a number of circumstances under which an unmarried man may be considered a child's legal parent despite his lack of genetic connection to the child. This may be true, for example, under a so-called "holding out" provision, or if the man and the child's mother properly complete and do not rescind a voluntary acknowledgement of paternity.

Rather than being targeted only or especially towards biological children, Ginsburg explained, the Act was intended to benefit and protect children who were dependent upon members of a wage earning family. The aim of the Act, Ginsburg wrote, was "to provide dependent members of a wage earner's family with protections against the hardship occasioned by the law of the insured's earnings." From the Act's inception, Congress explicitly recognized that a child may be dependent upon a wage earner even if the child is not genetically connected to that wage earner. This is evidenced by, among other things, the inclusion (since the 1939 amendments adding benefits for dependents) of stepchildren and adopted children under the Act's auspices.

In the end, Ginsburg rejected Karen Capato's argument that the biological children of persons who were once married to each other fall into a class of specially protected children. Instead, under a reasonable reading of the statute — one that is fully consistent with the Act's purpose — Ginsburg held that to be qualified all children must establish eligibility under one of the three methods detailed above in the statutory scheme.

What Does All of this Have to do with Same-sex Marriage?

So, what does any of this have to do with same-sex marriage? At first blush, one may think that it has nothing to do with same-sex marriage. But, upon closer analysis, one can see that it relates quite directly to one of the primary arguments that opponents have used to justify discriminatory marriage laws. Specifically, marriage equality opponents continue to argue that states can permissibly limit marriage to opposite-sex couples because opposite-sex couples are the only ones who (potentially) can procreate without assistance and, sometimes, this procreation occurs by accident. States, the argument continues, have a greater interest in protecting — through access to the institution of marriage — those couples who have the potential to procreate by accident.

A variation of this argument has also been put forward by the members of the US House of Representatives in the recent litigation challenging Section 3 of the federal Defense of Marriage Act (DOMA). Section 3 provides that, for all federal purposes, marriage means the union of one man and one woman. The practical effect of Section 3 is that even validly married same-sex couples are denied all of the estimated [PDF] 1,138 federal rights, benefits, and protections that are extended to heterosexual spouses by virtue of their marital status. In their brief [PDF] defending the constitutionality of Section 3, various members of the House of Representatives (represented by former Solicitor General Paul Clement) argued that Congress could rationally decide to exclude all validly married same-sex spouses from access to all of the federal spousal benefits and protections based on "basic biological differences between opposite-sex sexual relationships and other relationships" (emphasis in original). The "basic biological difference," the brief explains, is that opposite-sex couples have the potential to create children, through sexual intercourse, who are biologically related to both of them, while same-sex couples do not.

This argument, however, relies on the same faulty logic as the argument put forth by Karen Capato. In deciding how to distribute benefits, the federal government does not condition, premise, or privilege eligibility based on a parent's biological connection (or lack thereof) with his or her child. Instead, the vast majority of federal benefits programs related to children and parents are designed to help families care for children, particularly in times of crisis. As Ginsburg explains with respect to the SSA, outside of these recent arguments regarding DOMA, nothing in federal law indicates that Congress intended that biological children of married spouses were intended to be the special or principal beneficiaries of these federal programs.

June 7, 2012

Obamacare and the Misguided Criticism of “Liberal Law Professors” Who Defend It

Cross-posted from Justia's Verdict.

Any week now, the Supreme Court will hand down its ruling in the Affordable Care Act (ACA, also known as Obamacare) challenge.  The Court will likely address, among other things, the key question whether Congress has the constitutional authority to enact the so-called “mandate” provision, requiring individuals to procure minimum healthcare coverage or instead pay money into the federal treasury.  It’s not surprising that analysts and commentators are gearing up for the momentous decision.

What is surprising, however, is the content of some of the commentary.  In my column today, I offer reaction to an Op-Ed piece Stanford law professor and former federal appellate judge Michael McConnell published in the Wall Street Journal (WSJ) on May 24.  I welcome Professor McConnell’s voice in the Obamacare debate—I have long admired his overall body of work and was openly and actively supportive of his nomination for the federal appellate bench at a time when he was criticized by many on the Left.  And I agree with some of what he says in his WSJ Op-Ed.  But I am also quite troubled by many other points he makes or implies.

What Professor McConnell Argues

It bears noting at the outset that Professor McConnell does not say he thinks the challengers to Obamacare are constitutionally correct—that the mandate exceeds Congress’ constitutional powers.  (My brother, Yale law professor Akhil Amar, noted in Slate a few months ago that most conservative constitutional scholars have not expressed agreement with the challengers’ position—an observation that accords with my own sense.)  Instead, Professor McConnell finds the “health-care case [to be] hard,” and says that the challengers’ argument “may [reflect] a correct reading of the Constitution, or not, but it must be taken seriously.”

I’m not sure I find the case as hard as Professor McConnell does, but I certainly don’t disagree with him that the challenge must be taken seriously.  Indeed, I and many others who have written scholarship and other commentary on the case have done so because we do take the matters raised therein seriously.  All of that is why I am troubled by what Professor McConnell goes on to say.

Professor McConnell writes to chastise “liberal law professors . . . [who] claim[] that it would be ‘hypocritical’ and ‘partisan’ of  [conservative Justices] to invalidate legislation passed by Congress when they generally oppose ‘judicial activism.’  It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.”

Professor McConnell asserts that “[i]f liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.”

Professor McConnell also says that “[i]t seems unlikely this one-sided definition of ‘activism’ will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.”

The First Flaw in McConnell’s Argument: A Straw Man Concerning the Supposed Absence of Textual, Historical, Structural, and Doctrinal Arguments in Favor of the Mandate

It’s hard to know precisely whom Professor McConnell has in mind when he excoriates “liberal law professors;” many of us among the group of analysts who think Obamacare is constitutional have not spent our time simply hurling names at those with whom we disagree.  But even as to those professors who have been most stridently critical of the conservative Justices, Professor McConnell’s analysis misses the mark.

First off, his criticism is based on a straw man (forgive the gendered term, but “straw person” is too awkward).  “Liberal law professors,” or at least the ones I see and hear, don’t ground their allegations of hypocrisy and partisanship with respect to the possibility of high Court invalidation of Obamacare on a claim that conservative justices have generally embraced a deferential form of judicial review, and that striking down Obamacare would be inconsistent with such professed deference.  (Conservative Justices have not been, and have not said they should be, necessarily deferential to elected branches in exercising judicial review.)

Instead, folks who say that a ruling by the conservative Justices striking down Obamacare would be hypocritical and perhaps partisan say so precisely because  arguments (to use McConnell’s words) “based on text, history, structure and precedent”—the very tools  conservatives traditionally contend should be used in constitutional interpretation—cut in favor of, not against, the constitutionality of Obamacare.

Professor McConnell asserts that “liberal supporters of the health-care law” should “offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans” (emphasis added).  But supporters of the mandate have indeed offered those arguments, and it is precisely because those arguments seem to have been ignored by many conservative Justices at oral argument that some defenders of Obamacare have cried hypocrisy and partisanship.

I am genuinely puzzled as to why Professor McConnell feels that there have been no textual, historical, structural and precedential defenses of Obamacare.  I, my brother Akhil, and many other scholars have written numerous law review articles laying out just such arguments.

Take the constitutional text.  The question here is whether any words in Article I give Congress the power to impose healthcare-coverage procurement mandates.  As many of us have pointed out, certainly no one doubts the Congressional power to mandate the military draft, militia service, jury service, census participation, etc.  And nothing in the constitutional text under which these activities are permissibly mandated explains why affirmative conduct can be required in those realms, but not under the Commerce Clause, which gives Congress the power to “regulate” commerce “among the several States.”

By comparison, Article I permits Congress to “raise and support” Armies, but there is nothing in the text of this clause that indicates why mandatory military service is permissible. “Raise and support” could textually be read to mean “create incentives to voluntarily generate.”  But the Supreme Court had little trouble holding in 1925 that this clause, combined with the Necessary and Proper Clause, permitted Congress to mandate military service—in other words, to regulate inactivity and require affirmative activity—because the Court reasonably concluded that Congress should not be dependent on the inclinations of potentially reluctant individuals to accomplish Article I’s enumerated objectives.

More generally, the word “regulate” (used in the Commerce Clause) does not foreclose the compulsion of activity, including the compulsion of commercial activity. “Regulate,” as defined in language dictionaries, means, among other things, to “direct.”  Moreover, when we turn to the Constitution itself as a possible dictionary, we see that it uses the word “regulate” at least sometimes in ways that include a power to mandate activity.

The militia in which Congress can compel membership, for example, is referred to as one that is “well[-]regulated,” in the Second Amendment.

Congress’ power in Article I to “regulate the [v]alue” of money would seem to permit Congress, under certain circumstances, to require individuals to exchange their currency for something else that Congress reasonably believes would provide stability to the monetary system of the country.

Congress’ power to adopt rules for the “[r]egulation” of the land and naval forces undeniably allows Congress to mandate activity on the part of otherwise disinclined men and women in the armed forces, when such mandates are reasonably helpful to the national defense.

Congress’ power to undertake “[r]egulation[ ]” of the Supreme Court’s appellate jurisdiction is what gives Congress the power to create such jurisdiction in the first place—”regulate” as used there includes the power to create and control.  And there is much more.  In short, to say no arguments about text have been made by Obamacare supporters is simply to ignore the scholarly discourse.

The same is true for historical, structural and precedential arguments.  As to history, the record makes clear that the Commerce Clause was designed to allow Congress to deal with interstate economic externalities.  No one could really doubt that the healthcare and healthcare insurance markets involve true interstate commercial problems.  After all, insurance and healthcare providers are usually national, or at least regional, operations; folks who cross state lines get sick and must be cared for away from home regularly; and people are often unable to relocate to another state for fear of losing their employer-based insurance coverage.  Nor is it disputed that Congress’ enactment of the individual mandate provision was sincerely motivated by, and closely related to, the regulation of these interstate markets and interstate spillover effects.  Professor McConnell says that these observations about the health care market are not “grounded in any principle based in constitutional text, history or theory,” but that assertion itself ignores the very history behind, and the theory underlying, the Constitution—history and theory that Professor McConnell rightly recognizes as central.

History also debunks the notion that mandates to purchase are, as a general rule, constitutionally novel or out-of-bounds.  For example, the Militia Act of 1792 required able-bodied men to become Federal militia members, and to arrive ready to serve.  Men were required to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack.  Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack.  Even if novelty were a basis, in and of itself, on which to object to an exercise of Congressional power—and it is not—mandates to procure are not novel, but rather go back to the founding.

Professor McConnell is also wrong to suggest that no structural arguments defending the mandate have been made.  When one looks at the entire structure of the Constitution and compares the already-recognized bans on mandates—the Third Amendment’s prohibition of the quartering of troops in private homes during peacetime, the Fifth Amendment’s protections against government mandating self-incrimination and the surrender of property without just compensation, the First Amendment’s protection against mandating that individuals be vessels for government speech, and the so-called anti-commandeering federalism principle prohibiting Congress from mandating that state governments exercise their regulatory power on behalf of federal goals—a pattern emerges:  Congress generally cannot merely use individuals or states as the instruments, or tools, of its own objectives.

But when individuals (or states) are, by contrast, acting as free riders, and thus contributing to the problem—rather than being just handy tools to fix a problem created by others—then mandates are much more constitutionally permissible.  This explains why the federal government can mandate taxes, and jury and military service, among other things, even if the individuals so mandated are contributing to problems only passively. Military defense, government spending (on roads and other infrastructure), and a system of criminal and civil justice requiring juries are, broadly speaking, “public goods” in the sense that people benefit from them and have an incentive to be free riders unless they are mandated to contribute. The free riding is itself a big part of the problem that Congress is trying to solve when it imposes mandates in these areas.  So long as the mandate is “congruent and proportional” (to borrow a phrase from another federalism context) to the free-rider problem that the very existence of the individuals being mandated is creating, then the mandate seems less objectionable.

This explains why, for example, the quartering of troops is different from the draft.  Placing a narrow, focused, and selective mandate on a few homeowners to bear the costs of a military that everyone benefits from is not a proportionate response to a free-rider problem in the way that a random and broad-based draft that seeks sacrifice from thousands, if not millions, of people is.

When viewed through this structural prism, the healthcare mandate would seem to fall on the permissible side of any implicit constitutional line safeguarding against instrumentalization.  Obamacare’s mandate is, in substantial part, a response to the free-rider problem—a problem that itself is exacerbated by other undoubtedly permissible elements of the healthcare reform package.  The individuals subject to the mandate would—if they were free from the mandate—become part of the problem, rather than merely being a convenient part of a solution to problems created by other folks.

Finally, again contrary to what Professor McConnell suggests, believers in Obamacare’s constitutional validity have made many arguments based on precedent, especially to answer the “slippery slope” problems that seem to worry Professor McConnell and some of the conservative Justices.  Professor McConnell writes, “defenders of the health-care mandate are unable to identify any line between what they say Congress can do and what it cannot.”  Nonsense.

As many of us have pointed out, some of the important limiting principles come from Gonzalez v. Raich, where the Court permitted a federal ban on the possession of all marijuana, no matter how small the amount or how local the use.  That result too, created slippery slope problems, but the Court made clear that even as the federal government might sometimes ban the possession of things, the government’s power in this regard is not unlimited.  As Justice Scalia observed in his concurring opinion in Raich, the possession of marijuana in particular can be punished because such punishments are necessary to carry out a comprehensive regulatory scheme—the Controlled Substances Act—that governs a robust and interstate market in drugs.  Without that comprehensive regulatory scheme respecting an interstate market as an anchor, and a clear tie-line connecting the ban on possession to the regulation of the interstate market in illicit drugs, the ban on marijuana possession would have exceeded Congress’ Commerce Clause power.

Of course, such an argument cuts in favor of, not against, the individual mandate in the healthcare reform law. The Affordable Care Act is itself a comprehensive regulatory scheme governing interstate commerce and interstate spillover effects, and the individual mandate plays an important role in furthering central pieces of that regulatory framework.

The Bigger Problems With Professor McConnell’s Argument Come From What Some Might Read Him to Be Suggesting

Professor McConnell’s mistaken suggestion that Obamacare’s defenders make no arguments based on text, history, structure and past precedent is troubling to be sure.  But there’s another flavor to his criticism that leaves an even worse taste in my mouth:  He might be read as suggesting that if liberal law professors support reading the Constitution to protect same-sex marriage, partial-birth abortion and abolition of the death penalty, then they are estopped from complaining about “aggressive” (his word) judicial review to support conservative ends.

Professor McConnell never quite says it that way—and I hope that he wouldn’t embrace this position–but many people might glean this to be his implication because, absent such an implication, I’m not sure why he mentions in his Op-Ed liberal constitutional stances concerning same-sex marriage, partial-birth abortion and, capital punishment, and the free-form constitutional interpretive modes they involve.

Perhaps he’s saying simply that liberal law professors are themselves hypocritical and partisan to insist that conservative Justices in the Obamacare case exercise judicial review in a restrained way, when the liberal profs do not themselves believe in restraint in other areas of constitutional law.  Maybe that’s true (or maybe liberal law professors have a theory as to why the individual-liberties aspects of the Constitution require different interpretive modes than do federalism questions—I personally might not find such a distinction altogether persuasive).  But the point that some liberal law professors might be partisans and hypocrites hardly seems like a point worth making.  Liberal law professors don’t decide cases.  They don’t make law.  There’s a reason (many reasons, actually) why we don’t give them any real, immediate, decisionmaking power.

But Justices do have tremendous authority we have delegated to them, and they should exercise it in a way that is free from hypocrisy and partisanship.  And if liberal law professors accurately point out hypocrisy on the part of Justices who purport to care about text, history, structure and precedent, these professors will have performed a useful function, even if the professors themselves are guilty of even more intellectual dishonesty than the Justices whom they lambaste.  So the hypocrisy of law profs really wouldn’t bear on whether their criticism of the Court—the subject of Professor McConnell’s Op-Ed—is appropriate or not.

Even if the hypocrisy, partisanship and lawlessness were being practiced by other members of the Court, that should not, I would hope, cause Justices to abandon their own interpretive principles.  So, for example, if Justice Kennedy thought that Justice Breyer’s dispositive vote to strike down Nebraska’s ban on partial-birth abortion (one of Professor McConnell’s examples) in Stenberg v. Carhart was completely inconsistent with the conception of responsible judicial review that Justice Breyer has espoused in a series of books written for the broader American public (and one could argue that there is some tension there), Justice Kennedy should not, as a general matter, change his own approach to judicial review.

When Professor McConnell says that “there cannot be one set of rules for liberal justices and another set for conservatives,” I pray he does not mean that conservative jurists can and should abandon their aversion to judicial activism (however defined) because they see liberal jurists acting in unrestrained and unprincipled ways.

There might be some specific doctrinal areas where a Justice might think that wrong-headed or hypocritical rulings by earlier Courts or other Justices have created a sub-optimal body of law, such that the Justice might have to decide a particular present or future case in a way that is different from how s/he ordinarily would have preferred (stare decisis, or deference to past precedent, is one example of the effect that earlier methodological or substantive mistakes can have on future outcomes).  But generally speaking, “retaliatory activism”—by which I mean the abandonment of a Justice’s own principles because other Justices are not playing fair—is a dangerous and inadvisable game.  It is also something that contributes to the popular and unhealthy perception that the Court is no different from and no better than the overtly political branches of government in DC.

So to the extent that anyone understands the essay from Professor McConnell—a venerable conservative jurist and scholar who was often thought to be on Republican Supreme Court short-lists a decade ago—as suggesting that conservative Justices are to be forgiven for hypocrisy or partisanship because liberals engage in it (or vice-versa), I would urge a different reading of his words.

June 1, 2012

Professor Angela Harris Is Author of a “Most-Cited Article”

A piece in the Michigan Law Review names the most frequently cited law review articles (articles most often cited within other articles) of all time.  Professor Angela Harris’s Race and Essentialism in Feminist Legal Theory, which appeared in the Stanford Law review in 1990, is among the elite!

You can see the list of most-cited law review articles here:

Congratulations to Professor Harris!  And special thanks to Professor Afra Afsharipour for bringing this exciting news to our attention.