September 29, 2012

Argument Preview: The “War on Drugs” Meets Immigration Law (Again) in Moncrieffe v. Holder

In the 2011 Term, the Supreme Court decided three cases involving the removal from the United States of immigrants with criminal convictions. On October 10, 2011, the Court will hear oral arguments in another case falling into this category, Moncrieffe v. Holder.

Angel Arias, Pamela Karlan of the Stanford Law School Supreme Court Litigation Clinic, and Thomas C. Goldstein of Goldstein & Russell represent petitioner Adrian Moncrieffe. The Solicitor General's office, of course, is representing the U.S. government.


Since the late 1980s, Congress has regularly amended the immigration laws in ways that have facilitated the removal from the United States of increasing numbers of noncitizens convicted of criminal offenses. Among other things, Congress has greatly expanded the definition of an “aggravated felony,” the conviction of which can subject a lawful permanent resident to mandatory detention and removal (and makes him or her ineligible for various forms of relief from removal).

For its part, the executive branch has doggedly pursued “criminal aliens,” including many noncitizens guilty of relatively minor criminal offenses. The Obama administration has annually set removal records, with nearly 400,000 immigrants removed from the United States in fiscal year 2011.

In Carachuri-Rosendo v. Holder, the Supreme Court in 2010 rejected the U.S. government’s aggressive position in seeking to remove a noncitizen with a relatively minor drug conviction, a misdemeanor conviction under Texas law for possession of one tablet of an antianxiety medication. It was a second offense – the first was for a misdemeanor marijuana possession -- and recidivist drug possession is a felony under the Controlled Substances Act. The U.S. government treated the state misdemeanor conviction as a felony under the Act and sought to deport a lawful permanent resident from Mexico as an “aggravated felon.” The Fifth Circuit in an opinion by Chief Judge Edith Jones agreed. The Supreme Court, however, rejected the conclusion that the minor drug conviction constituted an “aggravated felony.” Following what is known as the categorical approach, the Court held that the conviction itself must include each of the findings necessary to render the conviction a felony under the Controlled Substances Act. In so holding, Justice Stevens wrote that

We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an “aggravated felony.” A “felony,” we have come to understand, is a “serious crime usually punishable by imprisonment for more than one year or by death.”

Moncrieffe’s Case

At age 3, Adrian Moncrieffe in 1984 legally entered the United States from Jamaica with his family. He grew up and started his own family, including two children who are U.S. citizens, in the United States. Moncreiffe’s brief states that “he has almost no remaining ties to Jamaica.”

In 2009, local police in Georgia pulled over Moncrieffe. Officers found 1.3 grams of marijuana in the car, roughly two-and-a-half marijuana cigarettes. (Although not an issue in the case, the facts of the police stop have the indicators of racial profiling.). The state charged Moncrieffe with possession of marijuana with intent to distribute under a broad Georgia statute that criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. As a first time offender, Moncrieffe pleaded guilty and completed probation without incident.

Two years after the plea bargain, U.S immigration officials detained Moncrieffe and sought to remove him from the United States, claiming that the Georgia conviction was an “aggravated felony.” Under the immigration laws, “illicit trafficking in a controlled substance,” a “felony punishable under the Controlled Substances Act,” is an “aggravated felony.”

The Board of Immigration Appeals ordered Moncrieffe removed. The Fifth Circuit, in an opinion by Chief Judge Edith Jones, denied a petition for review. Following Fifth Circuit precedent, the court declined to follow the Second and Third Circuits that have held that convictions like Moncrieffe’s – in which there is no finding of drug quantity or remuneration – is not an “aggravated felony.”

What is perhaps most striking about the facts of Moncrieffe v. Holder is that a traffic stop and conviction for possessing less than two marijuana cigarettes put Moncrieffe’s entire life in the United States in jeopardy. What also is striking is that possession of such a small quantity of marijuana can lead to a conviction under a state law prohibiting the possession with intent to distribute.

Question Presented

The question before the Supreme Court is whether a conviction under a state law that includes but is not limited to possession of a small amount of marijuana without remuneration may constitute an aggravated felony, notwithstanding that the record of conviction does not definitively establish that the immigrant was convicted for conduct that would constitute a felony under federal law.

The Parties’ Arguments

Petitioner argues that, under the categorical approach, his conviction fails to establish that he was convicted of a felony under the Controlled Substances Act (CSA). His plea under the Georgia statute may correspond to either a misdemeanor or a felony under the Act. Consequently, he cannot be deemed to have been convicted of an “aggravated felony.”

The U.S. government contends that, because of the elements of the state offense correspond to the elements of a felony under the CSA, Moncrieffe’s conviction is “presumptively” an “aggravated felony.” It contends that the noncitizen has the ability to establish facts at the immigration court hearing to defeat the presumption that the crime would be a felony under federal law.

Amici Briefs

Four amici briefs were filed, all in support of the Petitioner, by the Center on the Administration of Criminal Law, Human Rights First, Immigration Law Professors, and the National Immigrant Justice Center et al. I was one of the amici law professors on the immigration law professors amici brief, which contends that the U.S. government’s approach (1) is contrary to a century of judicial precedent; and (2) would lead to the incredible result that minor marijuana possession convictions are “drug trafficking aggravated felonies” under the immigration laws.


The Supreme Court in Moncrieffe v. Holder will once again have the opportunity to interpret the complex immigration laws in a case involving the immigration consequences of a criminal conviction. The Court has decided important cases in this area in recent years, especially in the 2010 decision in Padilla v. Kentucky in which the Court held that a long-term lawful permanent resident could base an ineffective assistance of counsel claim on the failure of a criminal attorney to inform him of the immigration consequences of a criminal conviction.

A decision in Moncrieffe v. Holder will likely offer further guidance to the lower courts on the proper approach to defining the term “aggravated felony” for purposes of the removal provisions of the immigration laws. The Court can clarify the categorical approach, which is an important tool applied to the removal cases of thousands of lawful permanent residents facing removal based on criminal convictions.

The Court’s decision in Carachuri-Rosendo v. Holder offers hints that Moncrieffe may well prevail and that the U.S. government’s aggressive position will be rejected. Importantly, the Court has not reflexively ruled against the noncitizen convicted of a crime but in fact has decided a majority of the immigration criminal consequences cases in recent years in favor of the immigrant.

Last but not least, as is customary in immigration cases, the Court may again address the proper deference to the Board of Immigration Appeals in interpreting the Immigration & Nationality Act.

September 28, 2012

Assessing California’s New Law (And Others Somewhat Like It) That Tries to Regulate Funeral Demonstrations Without Violating the First Amendment

Co-authored by Professor Alan E. Brownstein and cross-posted from

California Governor Jerry Brown last week signed into law a measure that regulates demonstrations near funerals in order to protect the peace and privacy of grieving families and other mourners.  In the space below, we analyze this law and seemingly similar measures that have been adopted at the federal level and in other states to determine when protecting mourners is, or is not, compatible with the First Amendment.

The Background of the Funeral Demonstration Law:  The Westboro Baptist Church and the Snyder Ruling

Funerals may seem to be unlikely venues for demonstrations, but funeral protests have been in the news frequently in recent years, thanks largely to the Westboro Baptist Church, a Kansas-based family group that has shown up to picket near the sites of hundreds of funerals, often military funerals, in order to decry, among other things, the extent to which America is tolerant of homosexuality.  The activities of the Westboro church led directly to the Supreme Court’s 2011 Snyder v. Phelps ruling, the Court’s most elaborate discussion of the interplay between the rights of demonstrators and the interests of mourners at funerals.

In Snyder, the father of a Marine killed in Iraq obtained a multi-million dollar intentional infliction of emotional distress jury verdict based on picketing—in three public locations not far from his son’s funeral—by Westboro members. The picketers held up signs expressing messages such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”

The Supreme Court, by an 8-1 vote (with Justice Alito dissenting), overturned the jury award, in an opinion by Chief Justice Roberts that provided free speech protection to the picketers in a “narrow” holding “limited by the particular facts before us.” These controlling facts included the following:

The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary fence. . . . That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. . . . The . . . picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. . . . The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder [, the father bringing suit,] testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.

Under these very particular circumstances, the Court upheld the rights of the demonstrators, observing that “[w]hether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. . . . The ‘content’ of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.’ …  While [the] messages [on the placards] may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import.”

As we have argued in an article in the Cardozo Law Review En Banc (some of which we build on here), we believe that the Court was wrong to focus so much on the question of whether the content of the demonstrators’ speech constituted a matter of public or private concern.  For us, other factors should have done the lion’s share of the analytic work in this case.  The location of the expression was about 1000 feet from the funeral service.  The demonstrators’ message was neither seen by, nor visible to, the mourners when they entered or left the church where the service was held.  The protestors complied with police directions as to where they could stand and hold their signs.  The protest was directed to the public at large.  This was public discourse, not speech exclusively, or even primarily, directed at a target audience.

Since these conditions were satisfied, it is not clear to us that the question of whether the picketers’ speech related to a matter of public or private concern should be relevant in this kind of a case.  To see this point, consider a situation in which a speaker strongly dislikes one of his colleagues at work.  The speaker stands on a soapbox in a public park, and states that his colleague is a horrible person who should be sent to hell when he dies.  This is mean-spirited private speech, but as long as it isn’t defamatory, we would think that it is constitutionally protected—at least if it is addressed to a public audience and expressed in a location some distance away from the place where the maligned colleague lives and works.

Conversely, consider a situation in which members of the Westboro church placed telephone calls to the home of the parents of a soldier killed in the line of duty immediately before and after the funeral service for their son or daughter.  Assume that, in their phone calls, church members expressed precisely the same messages that were on the signs in the Snyder v. Phelps case—messages that the Supreme Court has characterized as addressing a matter of public concern.  We think there is a strong argument that such calls could be sanctioned as telephone harassment.

In a similar vein, the anti-abortion messages communicated by residential picketers in the 1988 case of Frisby v. Schultz also addressed a matter of public concern.  Yet the picketers’ expressive activity there could be restricted, the Court held, because it “inherently and offensively intrude[d] on residential privacy” and had a “devastating effect . . . on the quiet enjoyment of the home.”

Thus, in specific cases, the facts as to when, where, and how speech is communicated may be more important to determining whether the speech can be restricted or subject to penalty than is the determination that the speech is a matter of public or private concern.  But by emphasizing that the military/public policy content of the speech is what compels its protection in Snyder, the Court has gotten us onto the wrong analytic track, in a way that might confuse legislatures and lower courts.

To its credit, the Snyder Court did observe that the demonstrators’ “choice of where and when to conduct . . . picketing is not beyond the Government’s regulatory reach—it is ‘subject to reasonable time, place or manner restrictions’ that are consistent with the standards announced in this Court’s precedents.”  Somewhat confusingly, though, the Court went on to say that it had “no occasion to consider how [such a law] might apply to facts such as those before us . . .,” suggesting that perhaps content-neutral time, place, and manner laws could prohibit the very conduct at issue in Snyder, something we don’t think would be permitted under the Court’s time, place, and manner jurisprudence.  But at least the Court did seem to invite legislatures to adopt reasonable regulations that might pass muster.

The California Law That Takes Up the Court’s Invitation to Regulate in This Area

California acted on the Snyder Court’s invitation last week.  This action followed closely on the heels of a federal law, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, signed by President Obama in August.  Since (and even well before) Snyder, a number of states have adopted similar legislation.

How will these types of laws fare in court? To answer that, let us begin by describing in more detail what the California law does.  The new law makes it a California crime to engage in “picketing” on public property within 300 feet of a burial site, mortuary, or place of worship when the picketing is “targeted at” a funeral during a period of time beginning one hour prior to the funeral and ending one hour after the conclusion of the funeral.

What would, or should, the Supreme Court think of this particular law?  We note that a few such statutes have been evaluated by federal courts of appeals even before Snyder, with some mixed results.  For example, in Phelps-Roper v. Strickland, the U.S. Court of Appeals for the Sixth Circuit upheld an Ohio statute regulating demonstration activities that take place near funerals shortly before, during or shortly after the funeral activities, reasoning that the statute was content-neutral, served significant interests in protecting funeral attendees, was narrowly tailored, and left open adequate alternative avenues of speech.  Just a few months later, however, the U.S. Court of Appeals for the Eighth Circuit, in Phelps-Roper v. Nixon, came out the other way, reversing a district court’s decision to deny a preliminary injunction banning enforcement of a similar statute in Missouri. The Eighth Circuit explicitly disagreed with the Sixth Circuit about both the weight of the government’s interest, and the extent to which that interest would outweigh free speech claims.

Two Key Questions: How Much Space Can Government Insulate From Demonstrations, and for How Long?

One contentious issue regarding the constitutionality of these kinds of laws relates to the size of the zone around a funeral home, house of worship, or cemetery from which demonstrators and pickets may be excluded.  While some laws create buffer zones of as little as 100 feet, many statutes provide for much larger zones, some even extending up to 1000 feet.  (California’s law uses a distance of 300 feet, and the federal law uses distances of 300 and 500 feet.) The law restricting residential picketing that was upheld in Frisby applied only to persons standing directly in front of their target’s home, and would not have barred holding up signs even 50 feet away.  While cases involving medical clinic demonstrations might provide useful analogies, it is hard to draw comparisons with medical clinic buffer zones because very few states have adopted statutes creating such zones.  Certainly, no court has upheld a buffer zone around a clinic that is as large as some of the funeral buffer zones that many states have enacted into law.

Substantial arguments can be offered to justify the imposition of larger “No picketing or demonstrating” zones around ongoing funeral services than those that have been upheld around residences or medical clinics. The most obvious distinction between limits on demonstrations during funerals, on one hand and restrictions on residential picketing or demonstrations at medical clinics, on the other, is the duration of the speech regulation. Residential picketing and demonstrating at medical clinics providing abortion services are directed at a specific location. Accordingly, laws limiting such demonstrations apply during the entire day or, in the context of clinics, at all times and days that the clinics are open and receiving patients.

In contrast, demonstrations at funerals are directed at events, not locations. Their focus is on particular funerals of particular—or at least particular kinds of—people, not the generic activity of funeral services and burials.  For this reason, the state’s interest in limiting such demonstrations is greatest during the funeral service itself, when the mourners are particularly vulnerable and captive to their overwhelming human need to memorialize and grieve for their dead.  Accordingly, laws regulating funeral demonstrations restrict speech at specific locations for only very limited periods of time.  (The California law protects the funeral and one additional hour on each end; the federal law protects the funeral and two additional hours on each end.) Demonstrators are at legal liberty to engage in their morally offensive expressive activity near a church, cemetery, or funeral home after the funeral service and its aftermath have concluded. Because of the relatively short duration of these speech restrictions, these laws burden considerably less speech than do the much longer-lasting speech regulations that were under review in the residential picketing and medical clinic demonstration cases.

Indeed, it may be the case that there is something of an inverse regulatory ratio here. To some extent, time may vary inversely with distance with regard to the constitutionality of “demonstration and picketing free” buffer zones.  Because a speech regulation of very limited duration provides ample alternative opportunity for expression in a particular location at other times, courts may provide the state with greater discretion in setting the physical parameters of short-term protected areas than they would if much longer-lasting restrictions on speech were at issue.

But is it really fair, in terms of vulnerability, to analogize funeral mourners to women seeking abortions or hospital patients receiving treatment? We think so. Indeed, we see a greater consensus, in the law and in society, about the vulnerability of mourners attending funerals than exists for almost any other group or circumstance. In particular, we see this most clearly in one special category of the tort of intentional infliction of emotional distress (the very tort that was at issue in Snyder v. Phelps) involving instances in which the defendant has knowledge that “the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress.” In this circumstance, conduct that would not otherwise be actionable may be the basis of civil liability and damages.

There are many examples of cases where courts have protected individuals with personal characteristics that rendered them uniquely vulnerable to emotional harm, or who were in situations that left them particularly exposed to such injuries.  Intentional infliction of emotional distress claims have gone forward in cases involving conduct directed at children, at a person recently released from the hospital, at a patient about to be X-rayed for a medical condition, at a former lover suffering from serious emotional and physical problems, at an employee suffering from severe depression, and at an immediate victim of domestic violence.  This list, moreover, is illustrative.  It is in no way intended to be exclusive, and we think funeralgoers could be comfortably added to it.  Indeed, the intentional infliction of emotional distress case law often recognizes the extreme and distinct vulnerability of people who are grieving in general.

Does the Particular Wording of the California Law at Issue Create Problems?

There is one additional feature of the California law that is worth discussing:  The law defines “picketing” (which is the activity being prohibited) as “protest activities.”  If “protest activities” means protesting government policies (as in the case of the Westboro folks), then the California bill loses its content-neutrality and indeed becomes a viewpoint-based law that discriminates against political dissenters, the kind of law that is most violative of the First Amendment.  As the majority opinion written by Justice Brennan in Texas v. Johnson in 1989, upholding the First Amendment claim of Gregory Johnson, who had been prosecuted for burning a flag observed: “Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.”

To the extent that “protest activities” is a code phrase that signals an effort and authority of the government to use the law to silence its critics, it violates the very essence of the First Amendment.  Notice that some of the other recently enacted funeral protection laws do not use the word “protest” and, in fact, do not use the word “picket,” but instead ban all “disturb[ance]” of or “interference” with funerals.  California’s use of the word “protest” could thus raise red flags.

But what if “protest” is understood not to mean disagreement with government policies, but rather disagreement with the sentiments of the funeralgoers?  After all, to be covered under the California law, one’s protest activities must be “targeted at a funeral,” which the statute says means that the activities must be “directed at or toward the deceased person or the attendees of the funeral.”  If “protest” connotes a dispute not with government but with the funeral attendees, is that problematic?

We think not.  Interestingly, we might concede that the law is viewpoint-based in the sense that folks who hold up signs lauding the deceased will not be considered to be picketing, while folks holding up signs criticizing him will, but we think that kind of viewpoint skew, which empowers not the government but the would-be listener, is not so troubling under the First Amendment, at least in cases involving targeted, as distinguished from publicly directed, speech.  (When the speech is not targeted at a particular person but rather is offered to the public more generally, then giving any would-be listener the power to suppress the speech because she disagrees with its message would be problematic; in those circumstances, the speech can be suppressed only if the harm it causes can be discerned without regard to the content of the message.)

But where targeted speech is involved, any generic law prohibiting things like disturbance, interference, or harassment will inevitably involve some consideration of the content and viewpoint of the message.  In all such situations, the listener is empowered to decide whether the speaker is—on account of the speaker’s message and actions—engaged in disturbing or harassing conduct:  If a listener agrees with, and wants to hear, a particular message, then that message cannot be considered a disturbance; if not, it could be held to violate a legal prohibition.  For example, a series of wake-up call requested by a hotel patron for every 5 minutes between 3:00 and 3:30 AM would not be telephone harassment since it was requested by the listener, even though an uninvited series of phone calls during that same timeframe could be subject to sanction.  Such a distinction empowers listeners to discriminate on the basis of viewpoint, to be sure, but empowering listeners to discriminate against speech targeting them personally is very different than empowering government to do so.

September 14, 2012

An Interesting Takings Case on the Supreme Court’s October Argument Calendar: Arkansas Game & Fish Commission v. United States

Cross-posted from Justia's Verdict.

When the October oral argument session at the Supreme Court begins, in a few weeks, most of the attention will be focused on Fisher v. University of Texas, an affirmative action dispute about which I have written a number of columns for this site (accessible in my archive).  And such attention is justified, insofar as Fisher could end up being the defining decision of the 2012-2013 Term.  But there are other constitutional cases worth discussing that are also slated for the October argument session.  In the space below, I preview one of them, Arkansas Game & Fish Commission v. United States, involving the clause of the Fifth Amendment that forbids the federal government from taking "private property . . . for public use, without just compensation."

The so-called Takings Clause, while perhaps less flashy than the Equal Protection Clause at issue in the affirmative action case, has been the subject of regular attention by the Supreme Court, including in the last decade.

Sometimes, as in the high-profile Kelo v. New London case from 2005, the issue has been what constitutes "public" use.  (There, the Court reaffirmed that government can, if it chooses to, use eminent domain to take property from one private owner in order to lease that property to other private entities, provided that the transfer will likely generate public benefits in the form of, e.g., jobs and/or increased tax revenues.)

In other cases, such as Brown v. Legal Foundation of Washington from 2003, the question presented involved an inquiry into what level of compensation is "just" (and thus constitutionally required) in a given circumstance.  (In that case, the Court held that because the persons whose property was used by the government to generate bank account interest could not have generated any interest on their own, the level of required compensation was zero, even though the government was benefitting by use of the property.)

In Arkansas Game & Fish, a case involving federal management of a dam from which intermittent releases of water have caused downstream flooding, the question is in some ways more foundational: What constitutes a taking in the first place?

The Factual Background of the Dispute

Under direction from Congress, the U.S. Army Corps of Engineers and the federal Bureau of Reclamation construct and operate various water-management systems and projects (including levees, dams, and the like) throughout the United States, in order to, among other things, reduce overall risk of flood damage, provide irrigation to fertile but otherwise dry farmlands, generate hydropower, increase water supplies for residential populations, and provide areas for recreation.  One such project is the Clearwater Dam, which was constructed by the Corps in the 1940s, largely to help control flooding of the Black River that flows south from Missouri into Arkansas.  The Dam also created a lake (Clearwater Lake) behind the Dam; the Lake is used for recreation, fish and wildlife.  The Corps releases waters from the Lake behind the Dam into the River pursuant to a policy manual ("The Manual") adopted by the Corps in the 1950s.  The Manual provides for regular releases of water, and also contemplates that the Corps will deviate from normal release patterns when specific good reasons to do so (including, but not limited to, emergencies) arise.  During the 1990s, the Corps approved a number of such deviations on a one-time basis, and on that approval released, on a number of occasions, additional waters from the Lake into the River.

The legal dispute comes about because the Arkansas Game & Fish ("G & F") agency owns a large tract of land located about 115 miles downriver from the dam that is used for, among other things, timber, other agriculture and duck hunting.  This land floods occasionally for a number of reasons, one of which is the water that comes from the Dam.  It typically takes six days or more for water released from the Dam to reach the tract, but it does ultimately arrive there.  G & F (and its experts) argued that the additional, irregular releases of water from the Dam by the Corps in the 1990s increased the number of days that flooding occurred (adding a few additional flood days per month) on the G & F lands, causing the trees there to become weakened and more susceptible to death in a subsequent drought.  G & F thus sued the federal government, arguing that the federal imposition of water flowing onto its lands amounted to a taking for which just compensation (for the damage to the timber) was required.  The federal government's essential response has been that no constitutional taking has occurred because the additional flooding of G & F's land that was caused by irregular water releases from the Dam was temporary, rather than permanent.

The Legal Issue At Stake and the Competing Arguments

The case presents a seemingly narrow, but potentially quite important, issue:  does temporary incremental flooding of the kind caused by the federal government in this setting onto other lands (which are subject to some flooding in any event) amount to a taking for which compensation is required?

Before plunging into that question, let us note that it is somewhat unusual for a State (in this case, Arkansas) to be asserting rights under one of the Bill of Rights provisions against the Federal Government.  For instance, it is not clear that state entities enjoy "free speech rights" against the federal government under the First Amendment, or Fourth Amendment rights to be free from unreasonable federal searches undertaken pursuant to a general federal search policy.  And it bears noting that the Fifth Amendment's Takings Clause explicitly refers to the taking of "private" property.  Nonetheless, because state and local governments do own real and other property under state property law, and because federal regulations can have the effect of depriving public entities as well as private persons of the use and enjoyment of property, the Court has long entertained takings claims by state and local entities against the federal government.  But it is worth observing that in any such instance, a dispute that, if involving private property ownership, would seem to be about individual rights against government abuse, instead becomes a federalism case about allocation of authority and resources between the federal and state governments.

When we focus on the merits of the case closely, we can see that the federal government's argument that the burden placed on G & F's land by the challenged water releases is "temporary" really uses the term "temporary" in two senses:  In the first sense, the flooding occasioned by each water release was temporary in that it lasted only for a limited period of time; the land was not permanently or indefinitely submerged, but rather was flooded only for as long as it took for the water to recede and/or be absorbed.  In the second sense, the releases being challenged were temporary in that they were not done periodically and consistently and pursuant to a recurring regular pattern; instead, they were done essentially ad hoc when particular, presumably well-grounded, requests for release or emergency reasons for release were presented.  Drawing on a number of old Supreme Court decisions, the United States argues that the only time a taking can be recognized in the context of a federally caused flood is when the land was "continuously inundated or [at the very least subject to] intermittent but inevitably recurring overflows."  Neither continuous inundation nor inevitable recurring overflows are present here.

G & F counters these arguments by pointing to cases in which the Court has recognized takings to have occurred even when the interference with property rights was occurring for a finite duration.  For example, in one case from 1946, the Court found that low-altitude government flights over a chicken farmer's property effected a taking for which compensation was required, even though the flight pattern was not being maintained indefinitely.  In a similar vein, the Court recognized that takings occurred when the federal government physically occupied a claimant's property during World War II for a fixed period of time, even though the occupation was not "permanent," i.e., ongoing.

The United States replies that these cases involve direct occupation by government instrumentalities, not the indirect flow of waters from a dam that may be located far away from a claimant's parcel.  Flooding cases, the United States argues, should constitute a category unto themselves, and should not be analogized to other kinds of invasions.  This is particularly true, says the United States, because Congress, in setting up so many federal water projects, relied on the old flood-takings cases which seem to require permanent flooding before a taking is recognized; to expose the federal government to significant liability now, in the context of temporary flooding, would be unfair to Congress.

There is much to what the federal government argues, but a Court that is often sympathetic to state claims of usurpation and coercion by the federal government (as in the Obamacare rulings), and that is interested in reinvigorating economic constitutional rights more generally, may have a difficult time resisting some of the analogies offered by G & F.  It will be interesting to see what new law is made here on the question of what amounts to a taking, and whether the case's impact will seep beyond the realm of dams and floods.