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October 17, 2017

To Save Their Insurance Markets, States Should Issue Obamacare Bonds

By Darien Shanske

[Cross-posted from Medium.com.]

There is a strong legal argument that insurers are owed cost-sharing reduction (CSR) payments, notwithstanding the refusal of the current Congress and the President to make the payments. Alas, assuming this is correct, these payments will come too late for current customers and insurers, thereby inflicting real damage to individuals and perhaps permanent damage to the ability of the health insurance system to provide affordable coverage on the individual market. The states can step in and make these payments and, given the scale of the payments relative to state budgets, it would seem that many states should be able to do so. But matters are not so simple. States typically operate under balanced budget rules and cannot simply borrow to pay for some worthy program. There will need to be a budgeting process and the balanced budget rule will force tradeoffs to be made (or taxes to be raised) if a state is to make CSR payments in the present in order to prevent current damage.

But there is another option. The CSR payments are very likely to happen eventually and thus they have a lot of value right now. If adequately compensated for the legal risk through interest payments, investors would likely advance most of the eventual value of the CSR payments today. Indeed, one might imagine that the opportunity to thwart the Trump Administration would lead to such an extraordinary response from investors that borrowing could be end up very affordable indeed.

In this way, the states can protect their citizens while not putting up state tax dollars. Aside from the economic and moral imperatives to protect their citizens that should motivate the states to act, it is also important to note that the states also possess the administrative capacity to collect the relevant insurers, estimate their CSR claims and put together a sensible financing structure. The states can even offer some kind of backup to these bonds to drive down their costs further.

October 16, 2017

Oral Arguments in Jesner v. Arab Bank: Supreme Court May Favor Two Steps to Corporate Liability for Human Rights Violations

By William Dodge

[Cross-posted from Just Security]

Ed. note. This article is the latest in our series on the U.S. Supreme Court case Jesner. v. Arab Bank, a case that is slated to resolve the question of whether corporations can be sued under international law for human rights violations and terrorism.

On Wednesday, the U.S. Supreme Court heard oral arguments in Jesner v. Arab Bank, PLC, which presents the question whether corporations can be sued for human rights violations in U.S. courts under the Alien Tort Statute (ATS). The plaintiffs alleged that Arab Bank knowingly funneled millions of dollars through its New York branch to finance terrorist attacks in Israel, the West Bank, and Gaza. In a parallel suit brought by U.S. citizens under a separate federal statute, the Antiterrorism Act, Arab Bank was found liable for doing just that. The Second Circuit rejected the plaintiffs’ claims, however, on the ground that corporations can never be sued under the ATS. I previewed the arguments made in the briefs here. I also filed a brief on behalf of International Law Scholars in support of the plaintiffs.

At oral argument, the Justices seemed to be looking at the question in two steps: (1) whether customary international law permits corporate liability; and (2) assuming it does, whether the ATS cause of action should be interpreted to permit corporate liability. Arab Bank’s lawyer Paul Clement joked about Chevron, the Supreme Court’s doctrine for deference to administrative agencies, which famously has two steps (p. 53). And the Supreme Court has recently articulated a two-step framework for applying the presumption against extraterritoriality. So perhaps the ATS will be next.

Justice Kennedy suggested that “what parties are bound” by a norm of international law should be part of the question at “Sosa step 1, where we ask if there’s a specific universal norm” (p. 24). (Sosa is the 2004 case in which the Supreme Court recognized a cause of action for claims brought under the ATS.) Plaintiffs’ counsel Jeffrey Fisher responded that rules of corporate liability, like respondeat superior, are questions of domestic law (p. 25). While that is true, it may be useful to distinguish two different corporate liability questions. Whether a particular norm of international law applies to corporations is a question of international law to be addressed at step one, as Justice Kennedy suggested. And as the U.S. government argued in its amicus brief, the norms that are actionable under the ATS do not distinguish between natural persons and corporations. As a second-order question, precisely what form corporate liability should take (Justice Kennedy mentioned strict liability, vicarious liability, and respondeat superior as examples) is a matter of domestic law. Indeed, Arab Bank’s counsel seemed to concede in a later exchange with Justice Kagan that the particular form of corporate liability—whether joint and several liability is available, for example—“might get you closer to a remedial question” to be addressed at step two of the analysis (p. 55).

Justice Breyer spent some time discussing various treaties that impose liability on corporations with Mr. Clement, Arab Bank’s lawyer (pp. 43-45, 47, 50-51, 56-57). But the details of these treaties are really beside the point. This is not just because the treaties are designed to operate through domestic law, as Mr. Clement pointed out (p. 57). It is also because plaintiffs have not brought their claims under the treaties but rather under customary international law. To be sure, some of these treaties may be relevant as evidence of customary international law. But the key question at step one of the ATS analysis is whether the customary international law norms that are actionable under the ATS distinguish between natural persons and corporations. As the amicus brief for the Yale Law School Center for Global Legal Challenges shows in detail, none of these norms do.

At the second step in the analysis, some of the Justices expressed concern about the foreign relations implications of holding corporations liable for human rights violations. Chief Justice Roberts noted that the ATS was passed “to avoid foreign entanglements” but wondered “if extending it to corporate liability is, in fact, going to have the . . . problematic result of increasing our entanglements” (p. 7). Justice Alito suggested that at “step 2 of Sosa,” on “the question of whether we should recognize a federal common law claim under particular circumstances,” the Court might “balance the international repercussions” of allowing suits against corporations against the repercussions of not doing so (p. 10). Mr. Fisher, lawyer for the plaintiffs, agreed that ATS suits could have “international implications,” but responded that the Court could address those concerns with “other kinds of doctrines that more directly deal with those concerns” like extraterritoriality, forum non conveniens, and political question (p. 11). Justice Sotomayor also mentioned personal jurisdiction under Daimler as a limitation (pp. 5-6), and Justice Ginsburg added the possibility of an exhaustion requirement (pp. 23-24). Denying corporate liability, Fisher argued, was simply “a mismatch” with concerns about foreign relations (p. 13).

Arguing for the United States as amicus, Brian Fletcher agreed with plaintiffs that the Second Circuit’s “categorical rule” against corporate liability was “wrong” (p. 27). He pointed out that this case would not have produced “less friction if it had been brought against the high-ranking officers and employees of the bank rather than against the bank itself” (p. 28). Later in the argument, Justice Kagan described the question of corporate liability as “completely orthogonal” to the foreign relations concerns raised by Arab Bank (p. 64). Mr. Clement responded that corporate liability and foreign relations overlapped in practice because “the real impact of corporate liability” is on foreign corporations in which foreign governments have an interest, “like Arab Bank” (p. 65). In fact, the suit against Arab Bank is an unusual one; foreign corporate defendants are the exception not the rule today. The Supreme Court’s decision in Kiobel to limit the geographic scope of the ATS cause of action to cases that “touch and concern” the United States has resulted in a large number of dismissals, as Mr. Fisher pointed out (p. 5), including virtually all of the suits against foreign corporations.

Justice Gorsuch repeatedly asked whether the ATS cause of action should be limited to U.S. defendants (pp. 16, 34, 71-72). He invoked an argument by Professors Anthony Bellia and Bradford Clark that the First Congress was concerned that “some action by an American citizen . . . might be tagged to the United States itself and be cause for just war by a foreign power” (p. 16). Justice Gorsuch also suggested that “you need an American defendant in order to have diversity jurisdiction” under Article III (p. 16).

With respect to Bellia and Clark’s argument, both Mr. Fisher for the plaintiffs (p. 16) and Mr. Fletcher for the U.S. government (p. 34-37) noted that limiting the ATS to American defendants would fail to account for the 1784 Marbois incident, which the Supreme Court in Sosa recognized as one of the events that inspired the provision. Chief Justice Roberts and Justice Alito accepted in their own questions that the ATS was intended to reach cases like the Marbois incident (pp. 7, 14). Justice Sotomayor noted that the nationality of the defendant would also have been irrelevant in cases of piracy (pp. 37-38). And Mr. Fisher concluded by referring to the text of the ATS, which limits the citizenship of plaintiffs to aliens but places no limits on the citizenship of defendants (pp. 70-71).

There are other problems with the Bellia-Clark theory that were not mentioned at oral argument. Under their theory, the ATS was intended to address only situations where the United States would be in breach of international law if it did not provide redress to aliens injured by U.S. citizens. In such situations, the violation of the law of nations would occur not at the time of the tort but later, when the United States failed to provide redress. But this is hard to square with the text of the ATS, which refers to suits “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The word “committed” suggests that the international law violation occurs at the time of the tort, rather than some time later. Another problem with the Bellia-Clark theory is that the United States’ obligation under international law to provide redress would have been fully satisfied by other statutes (including the 1790 law mentioned by Mr. Clement (p. 35)), which provided criminal liability for assaults on ambassadors and the like. The ATS was clearly designed to go beyond what was necessary to satisfy the United States’ obligations under international law. None of the other Justices seemed interested in the Bellia-Clark theory at oral argument, and it will be surprising if it garners more than one vote.

Justice Gorsuch’s concern over Article III is also misplaced. First, there is strong historical evidence that the phrase “Laws of the United States” in Article III’s arising-under grant was understood at ratification to include the law of nations. Among other things, the phrase in Article III is broader than the corresponding phrase in the Supremacy Clause of Article VI, which refers more narrowly to laws of the United States made in pursuance of the Constitution. But the Supreme Court would not have to adopt this interpretation to satisfy Article III, because ATS suits now arise under the federal-common-law cause of action that Sosa recognized. Both of the Supreme Court’s prior cases under the ATS have involved one alien suing another, as have most of the successful cases across the federal courts since the landmark ATS decision by the Second Circuit in Filartiga over 35 years ago.

If the Justices stick to the question of corporate liability, the Second Circuit may be reversed by a large margin. The concerns expressed at oral argument by the more conservative Justices have little to do with corporate liability. But if the vote is a close one, it is likely to be decided by Justice Kennedy, whose concurring opinion in Kiobel stressed the narrowness of that decision and aimed to keep the door open both for suits against corporations and for suits where some of the relevant conduct occurred abroad.

Justice Kennedy was surprisingly quiet at oral argument, asking just two questions about whether the identity of the party bound by the customary-international-law norm should be part of the analysis at step one. The question is a good one, and I believe the answer is yes—the particular norm of customary international law must apply to a corporation before a corporation may be sued under the ATS for violating that norm. And as the amicus brief for the United States explains, all of the norms actionable under the ATS do apply to corporations. Recognizing this fact should lead Justice Kennedy to adopt the position urged by the United States on the question of corporate liability and to reverse the Second Circuit.

October 16, 2017

Opinion Analysis: California Cannabis Coalition v. City of Upland

By David A. Carrillo & Darien Shanske

[Cross-posted from SCOCAblog]

This is a preview of a forthcoming article, California Constitutional Law: Interpreting Restrictions on the Initiative Power (2017) 51 U.C. Davis L. Rev. Online 65, David A. Carrillo and Darien Shanske. Reprinted by permission.

Overview

On August 28, 2017 the California Supreme Court decided California Cannabis Coal. v. City of Upland, (Aug. 28, 2017, S234148) ___Cal.4th___ . Justice Cuéllar wrote the opinion, joined by the Chief Justice and Justices Werdegar, Chin, and Corrigan. Justice Kruger wrote separately to concur in part and dissent in part; Justice Liu joined that opinion.

The basic facts of the case are these.[1] A local initiative in the city of Upland proposed to require marijuana dispensaries pay a city fee. The proponents wanted the initiative to be considered by voters at a special election. The city concluded that because the fee would exceed the actual costs, it constituted a general tax. To the city, this meant that the initiative could not be voted on during a special election; instead, under California constitution Article XIII C, section 2 the measure had to be submitted to the voters at the next general election. This provision of the constitution clearly requires that all (general) tax increases imposed by a local government be submitted to the voters at a general election.[2] So if a city council (like Upland’s) proposes a tax increase, then it must follow the Proposition 218 rule and wait for the next general election. The question posed by this case was whether this rule also applies to general tax measures put on the ballot by the voters. The court decided that this provision does not restrain voter initiatives. Therefore, if the voters propose the increase of a general tax, then a vote on the tax can occur at a special election.

Analysis

Debating the definition of “government” is unproductive.

The key question confronting the court was whether the phrase “no local government may impose . . .” also served to impose a limit on the voters of a local government acting through the initiative process. The majority thought that this phrase did not include the electorate; the dissent thought that it did. Though both sides made reasonable points, we think that the arguments based on the language of the provision are so evenly balanced that the heavy lifting is done by the majority’s presumption in favor of liberally construing the initiative power. The majority candidly says as much.[3] Indeed, the majority explains that when it comes to limiting the electorate’s initiative power, it will apply a “clear statement rule.” That is, unless the voters clearly intend to limit the initiative power, the court will not find that they did.

There is a strong case for this clear statement rule.

The dissent cogently asks what the majority’s basis is for applying a clear statement rule and making it a rule for future cases.[4] After all, a judicially crafted clear statement rule hamstrings a legislative body and hands power to judges to decide what is “clear enough.” A clear statement rule is particularly troublesome to the extent the drafters of legislation did not know their work would be evaluated on that standard.

The majority’s response is that a presumption in favor of the initiative power is not new. In 1991 the court applied that principle in a case involving Article XIII A, section 3 (added by Proposition 13), which at the time provided that “any changes in State taxes enacted for the purpose of increasing revenues . . . must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature . . . .”[5] The court applied the presumption and found it did not apply to the electorate.

Only five years later, Proposition 218 aimed to clarify the interpretation of another section in the same article: Article XIII A, section 4 (added by Proposition 13), which reads: “Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transaction tax or sales tax on the sale of real property within such City, County or special district.” It should be unsurprising that the court again applied the presumption in favor of the initiative in interpreting Proposition 218’s clarification of Article XIII A, section 4. In this context it is especially apt to charge the proponents[6] with knowledge of the law,[7] including knowledge of this presumption.

But this argument only goes so far if a presumption in favor of the initiative power is misguided. Consider the U.S. Supreme Court’s widely-criticized federal preemption clear statement rule. That rule is a restriction on federal power, imposed on federalism grounds. If Congress does not clearly preempt a state law, then the state law stands. Yet there is a good argument that after the Fourteenth Amendment’s adoption there is no good ground for tipping the scale in favor of state versus federal power. Another criticism is that federalism values, appealing as they are, should not receive special judicial solace at the cost of protecting individual rights, as often ends up being the case.[8] The fact that the federal clear statement rule is long established and fairly applied is no response to such points.

We considered whether a deeper justification exists for a presumption in favor of broadly construing the initiative power as a matter of California constitutional law. We think there is such an argument, as follows.

An initiative constitutional amendment that purported to prevent future electorates from undoing a past act, or otherwise placed substantive limits on the future electorate’s legislative power, would be invalid as a revision. The California electorate’s initiative power is a structural part of the state’s constitutional system. California’s constitution can be changed, of course, but structural changes are labeled “revisions” and revisions cannot be accomplished by means of the ordinary voter initiative. A revision requires a supermajority of the legislature and a majority vote of the electorate.[9] Consider also the fact that the initiative was created via the revision process. How the initiative power got into the constitution is not determinative, but it is suggestive.[10] If altering the state government to add the initiative was a revision, and if the litmus test for a revision is whether it changes the nature of the state government, then reducing or removing the initiative power is also a revision. As an extreme example, if the electorate by initiative constitutional amendment attempted to assume all taxing power, or claimed to renounce any taxing power, either act would be an invalid revision.

Thus, if Proposition 218 significantly impairs the electorate’s right of initiative, then it should be invalid to that extent because the initiative can only be substantively curtailed by a revision. The court has justified this rule on the principle that, although the state constitution is binding on future legislatures and electorates alike, the electorate cannot restrict its own future initiative power through the initiative process.[11] Only the legislature plus the electorate could do that with a revision.[12]

An initiative constitutional amendment that purports to prevent future electorates from undoing a past act, or otherwise placed substantive limits on the future electorate’s legislative power, would also be invalid as a separation of powers violation. Using the example above again, if the electorate by initiative constitutional amendment attempted to assume all taxing power, or claimed to forfeit any taxing power, either act would violate the separation of powers because the initiative is a core electorate legislative power, which cannot be substantively limited or reassigned.[13] The electorate cannot self-harm, just as the legislature cannot over-delegate, reduce, or give away its core powers.[14]

How does one know if a change is structural enough to become a revision, or a material enough impairment? Key questions include: Does it change the frame of government?[15] Does it substantively reduce the electorate’s legislative power?[16] Obviously the electorate (by initiative constitutional amendment) can prescribe substantive and procedural limits on the other branches of California government.[17] But the present electorate cannot by initiative constitutional amendment reduce the amount of legislative power held by the future electorate. This does not mean that the initiative cannot be used to constrain future initiative acts at all. Proposition 13 itself is an example of setting limits on future electorates, and absent any other action the future electorate is indeed constrained by the past electorate’s action. Yet the future state electorate can always use its initiative power to undo the past electorate’s act and change the rules.

Remember that the provision in question here is a restriction placed on the local initiative power by the state electorate. The dissent argued that this fact indicates that Kennedy Wholesale was not really about protecting the initiative power because the state voters could always change the provision.[18] Leaving to one side whether this is the best reading of Kennedy Wholesale (and the majority has a potent counter), we think that this point makes the argument for applying the clear statement rule stronger in this case. As to the state electorate, their initiative power would arguably not have been overly restricted by a two-thirds rule because a majority of the electorate could change the rule. But that is not the case for the local electorate and the local initiative power. The local initiative power is also constitutionally derived.[19] Based on the argument above, it is not at all clear to us if the state electorate could constrain the use of local initiative power absent a constitutional revision. It is at least a very difficult constitutional question. Consequently, it is certainly sensible to apply a clear statement rule to avoid that question. In this context, the clear statement rule functions more like a canon of constitutional avoidance.

We should be clear that the majority opinion did not rely on the argument we just outlined in its defense of the clear statement rule, although we believe that it did gesture to it at various points in its opinion, most particularly when the court explained that: “As Ulysses once tied himself to the mast so he could resist the Sirens’ tempting song (Homer, The Odyssey, Book XII), voters too can conceivably make the clear and important choice to bind themselves by making it more difficult to enact initiatives in the future.[20] We added the italics to the “conceivably,” and we think this comment shows that the court sees that self-binding in this way poses a hard question.

The Elephant in the Room

This case is about California constitution Article XIII C, section 2(b). The celebrity of the case has to do with section 2(d), which reads: “No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. A special tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved.”

The language concerning the election rules construed in this decision (“No local government may impose, extend, or increase any general tax unless . . .”) is identical to the language concerning the required supermajority for special tax measures (“No local government may impose, extend, or increase any special tax unless…”). This strongly suggests that the local voters can, by initiative, increase special taxes by a simple majority because the supermajority limitation does not apply to initiatives any more than the general election requirement applies to initiatives.

The majority does not comment on this implication, which is appropriate, as that issue was not before the court. Perhaps some grounds for distinction between the two provisions might be found. Indeed, there is language in the majority opinion that suggests it thinks there might be such a distinction. The court says:

That the voters explicitly imposed a procedural two-thirds vote requirement on themselves in article XIII C, section 2, subdivision (d) is evidence that they did not implicitly impose a procedural timing requirement in subdivision (b).[21]

This language can be read to suggest that there is some difference between the election timing provision and the vote threshold provision. We do not actually think that this is what this passage means. Instead, it is part of an argument in favor of the majority’s interpretation of section 2(b) and the (minor) point the majority is making is that the electorate knows how to refer to itself.[22]

Nevertheless, the implication remains and was brought up by the dissent in a footnote:

The majority opinion contains language that could be read to suggest that article XIII C, section 2(d) should be interpreted differently from section 2(b). (See maj. opn., ante, ––– Cal.Rptr.3d at ––––, ––– P.3d at –––– [noting that the enactors of Prop. 218 “explicitly imposed a procedural . . . requirement on themselves in” art. XIII C, § 2(d), which “is evidence that they did not implicitly” do so in § 2(b) ].) I see no basis for construing the two provisions differently. Sections 2(b) and 2(d) are, in all pertinent respects, indistinguishable.[23]

If we are correct that the majority did not wish to introduce a difficult-to-understand distinction in this offhand way, then why did the majority not change the language or in some other way respond to the dissent? Perhaps the majority thought its implication was clear enough and that there had to be some end to the back and forth. Perhaps the majority was not displeased with the implication the tax threshold question was arguably open for the lower courts to consider.

Implications

The public response to this decision—both pro and con—suggests that it changes the possibilities of local government finance significantly.[24] Again, the focus has been on the decision’s supposed impact on the voting threshold for special taxes. We are skeptical that the impact would be so great even if this decision does ultimately result in the supermajority rule not applying to special taxes placed on the ballot by the voters themselves.

As a matter of political economy, we do not think there is a reservoir of pent up demand for tax measures. As noted in the post previewing this case, cities and counties can already subject general taxes to a majority vote[25]—along with a non-binding advisory measure on how any revenue collected is to be spent.[26] Thus, it is not clear how important this change will be for cities and counties. School districts, for example, have already been able to fund infrastructure with a 55% voter threshold, assuming certain conditions are met.[27] So we would predict that operational school district taxes passed by majority vote will be the main source of demand for this kind of voter initiative, if it were to be possible.

Even assuming that the court’s reasoning means that the two-thirds threshold does not apply to local special tax initiatives, how this area of the law develops from here is unclear. The initiative power extends to taxation,[28] but it is also the case that the initiative power is generally interpreted to be as broad as the legislative power of the underlying local government.[29] Charter cities have the inherent power to tax and therefore, presumably, their citizens have that right as well.[30] But general law cities and counties do not have the inherent power to tax.[31] Does that mean the legislature must explicitly permit local tax initiatives in these governments?[32] School districts have no initiative power at all—at least not granted by the constitution.[33] Thus, if school districts wanted to use this ruling, must the legislature grant the school district electorates the power to impose taxes by initiative? These are hard questions.[34] We note them here not to answer them, but to indicate that many thorny legal and political questions remain whatever this decision’s applicability to the tax threshold provision.

Conclusion

The majority describes the conflict in this case as between two constitutional provisions: sections 8 and 11 of article II (the initiative power), and article XIII C (limiting local governments’ ability to impose, extend, or increase general taxes). Because the latter provision was created by the former, we think that the court found that this is not a clash of two equally-matched California constitutional doctrines. Thus, in keeping with its past practice and sound doctrinal considerations, the electorate’s initiative power prevailed.

[1] For further description of the case see: http://scocablog.com/argument-preview-california-cannabis-coalition-et-al-v-city-of-upland/.

[2] Cal. Const., art. XIIIC § 2:

(b) No local government may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote. A general tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved. The election required by this subdivision shall be consolidated with a regularly scheduled general election for members of the governing body of the local government, except in cases of emergency declared by a unanimous vote of the governing body.

(c) Any general tax imposed, extended, or increased, without voter approval, by any local government on or after January 1, 1995, and prior to the effective date of this article, shall continue to be imposed only if approved by a majority vote of the voters voting in an election on the issue of the imposition, which election shall be held within two years of the effective date of this article and in compliance with subdivision (b).

(d) No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. A special tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved.

[3] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *12: “Our analysis in those decisions consistently begins with the presumption that the initiative power is not constrained, then searches for clear evidence suggesting that electors could reasonably be understood to have imposed restrictions upon their constitutional power.”

[4] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *18.

[5] Kennedy Wholesale, Inc. v. State Bd. of Equalization, (1991) 806 P.2d 1360.

[6] The Howard Jarvis Taxpayer’s Association sponsored both Propositions 13 and 218. https://www.hjta.org/about-hjta/the-history-of-hjta/.

[7] See, e.g., In re Harris, (Cal. 1989) 775 P.2d 1057, 1060 (“[T]he voters who enact [an initiative] may be deemed to be aware of the judicial construction of the law that served as its source.”).

[8] See, e.g., Eskridge & Frickey, Quasi-Constitutional Law: Clear Statement Rules As

Constitutional Lawmaking, (1992) 45 Vand. L. Rev. 593, 643-44.

[9] Or a constitutional convention. Cal. Const. art. XVIII, § 2.

[10] See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, (Cal. 1978) 583 P.2d 1281, 1285 (“We think it significant that prior to 1962 a constitutional revision could be accomplished Only by the elaborate procedure of the convening of, and action by, a constitutional convention (art. XVIII, s 2). This fact suggests that the term ‘revision’ in section XVIII originally was intended to refer to a substantial alteration of the entire Constitution, rather than to a less extensive change in one or more of its provisions.”).

[11] Rossi v. Brown, (Cal. 1995) 889 P.2d 557, 574. (“[T]hrough exercise of the initiative power the people may bind future legislative bodies other than the people themselves”). See also Cty. of Los Angeles v. State, (Cal. 1987) 729 P.2d 202, 209 n.9 (“Whether a constitutional provision which requires a supermajority vote to enact substantive legislation, as opposed to funding the program, may be validly enacted as a Constitutional amendment rather than through revision of the Constitution is an open question.”).

[12] Cal. Const., art. XVIII, § 1, 4; 68 Hastings L. J. 731, 744.

[13] Amador Valley Joint Union High Sch. Dist., (Cal. 1978) 583 P.2d 1281, 1286 (posing as a hypothetical example of an invalid revision an initiative constitutional amendment vesting all judicial power in legislature). For an explanation of the idea that a separation of powers analysis applies to electorate legislative acts, See Carrillo, Duvernay, & Stracener, California Constitutional Law: Popular Sovereignty (2017) 68 Hastings L. J. 731.

[14] For background on the unique features of the California separation of powers doctrine, See Carrillo & Chou, California Constitutional Law: Separation of Powers (2011) 45 USF.L.Rev. 655.

[15] Professional Engineers in California Government v. Kempton, (Cal. 2007) 155 P.3d 226, 245; Amador Valley Joint Union High Sch. Dist., 583 P.2d at 1286 (does the measure “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision”).

[16] 68 Hastings L. J. 731, 745–46.

[17] Rossi, 889 P.2d at 574; 68 Hastings L. J. 731, 744 and 753.

[18] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *19.

[19] Cal. Const, art. II, § 11(a): “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide. Except as provided in subdivisions (b) and (c), this section does not affect a city having a charter.”

[20] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *1.

[21] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *10.

[22] The opening sentence of the paragraph says as much: “Indeed, as we observed in Kennedy Wholesale, 53 Cal.3d at page 252, 279 Cal.Rptr. 325, 806 P.2d 1360, when an initiative’s intended purpose includes imposing requirements on voters, evidence of such a purpose is clear.”

[23] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *18 n.7.

[24] See, e.g., https://calmatters.org/articles/california-taxes-two-step/ (“The ruling ‘isn’t just a small crack in the protections that voters across the state have relied on—it is a sledgehammer,’ said [Assembly Member] Baker at a press conference.”). And, in fact, Republican members of the Assembly have introduced a constitutional amendment (ACA 19) to overturn the holding of this case. http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180ACA19.

[25] Cal. Const. art. XIIIA, § 2(b).

[26] Coleman v. County of Santa Clara, (1998) 64 Cal.App.4th 662.

[27] Cal. Const. art. XIIIA, § 1(b)(3).

[28] Rossi, 889 P.2d at 563.

[29] DeVita v. Cty. of Napa, (1995) 9 Cal.4th 763, 775.

[30] California Fed. Savings & Loan Assn. v. Los Angeles, (1991) 54 Cal.3d 1.

[31] Santa Clara County Local Transportation Authority v. Guardino, (1995) 11 Cal.4th 220, 247-48.

[32] Before one assumes the answer is yes, it must be remembered that, as the majority in this case explained, “we have held that the people’s power to propose and adopt initiatives is at least as broad as the legislative power wielded by the Legislature and local governments.” California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *4 (citing cases). If the initiative power is broader, then perhaps explicit permission to place a tax measure on the ballot by initiative is not necessary.

[33] But, again, perhaps the power of initiative is so broad that this power could be found to have been reserved by the people it being explicitly granted to the electorate of a school district.

[34] Another twist. Proposition 62, approved by the voters in 1986, placed limits on local government taxing power very similar to that of Proposition 218 into California statutory law. See, e.g., Cal. Gov’t Code § 53722 (“No local government or district may impose any special tax unless and until such special tax is submitted to the electorate of the local government, or district and approved by a two-thirds vote of the voters voting in an election on the issue.”). The Legislature cannot simply repeal a statute passed by initiative. See Cal Const. art. II, § 10(c); Cal. Gov’t Code § 53729. Presumably Proposition 62 does not bar local tax initiatives any more than Proposition 218 does, but this is another issue that will need to be litigated.

October 13, 2017

Professor Soucek Files Brief in Supreme Court Sexual Orientation Discrimination Case

Professor Brian Soucek filed an amicus brief with the U.S. Supreme Court, arguing that it should agree to hear Evans v. Georgia Regional Hospital, a case that asks whether federal employment discrimination law protects against discrimination based on sexual orientation.

Professor Soucek wrote the brief with Professor Jessica Clarke of the University of Minnesota Law School and lawyers at Hogan Lovells on behalf of 17 anti-discrimination law scholars. They argue that sexual orientation discrimination is based on, and reinforces, the outmoded gender roles that Title VII of the Civil Rights Act of 1964 was intended to disrupt. The argument is based in part on Soucek's article "Perceived Homosexuals: Looking Gay Enough for Title VII," and his recent essay for the Yale Law Journal Forum: "Hively's Self-Induced Blindness," which in turn drew on three decades of work by the scholars who signed on to the brief.

Other scholars joining the brief are Professor I. Bennett Capers of Brooklyn Law School, Professor Michael C. Dorf of Cornell Law School, Professor William N. Eskridge, Jr. of Yale Law School, Professor Cary C. Franklin of the University of Texas School of Law, Judge Nancy Gertner (Ret.), a lecturer at Harvard Law School, Professor Andrew M. Koppelman of Northwestern University School of Law, Professor Zachary A. Kramer of Arizona State University College of Law, Professor Sylvia A. Law of New York University School of Law, Professor Catharine A. MacKinnon of the University of Michigan Law School and Harvard Law School, Professor Samuel A. Marcosson of the University of Louisville School of Law, Professor Ann C. McGinley of the University of Nevada, Las Vegas School of Law, Professor Douglas G. NeJaime of Yale Law School, Professor Betsy Rosenblatt of Whittier Law School, Professor Vicki Schultz of Yale Law School, and Professor Deborah Widiss of the Indiana University School of Law.

Professor Soucek holds a J.D. from Yale Law School and a Ph.D. from Columbia University. He has clerked for U.S. District Court Judge Mark. R. Kravitz in Connecticut, and Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit. His primary teaching and research interests are antidiscrimination law, civil procedure, constitutional law, and refugee/asylum law.

October 10, 2017

Of Steak Rubs and Symmetry: A Response to Justice Gorsuch

By Chris Elmendorf and Eric McGhee

[Cross-posted from Election Law Blog.]

During oral argument in Gill v. Whitford, the partisan gerrymandering case, Justice Gorsuch complained that the plaintiffs' proposed test for unconstitutional gerrymanders was too much like a steak rub: "I like some turmeric, I like a few other little ingredients, but I'm not going to tell you how much of each." The implication is that adjudicating partisan gerrymandering cases would be like judging a Top Chef contest, with jurists relying on their personal preferences to deem the map at issue yummy or unpalatable.

One of us is the creator of the "efficiency gap," a measure of partisan gerrymandering that has played an important role in this case. Together we filed an amicus brief that outlined the properties and uses of both the efficiency gap and a variety of other partisan gerrymandering metrics. As such, we have an interest in making sure that the social science of this case is understood and used properly. Although Gorsuch might make an excellent steak rub, we don't think his metaphor caries well to the evidence or proposed standards in this case.

The metaphor is apt for totality-of-circumstances balancing tests, such as the constitutional test for procedural due process, and, arguably, the test for racial vote dilution under the Voting Rights Act. But the tests on offer for partisan gerrymandering claims-including the plaintiffs' test, and the test suggested in an influential amicus brief by biostatistician Eric Lander-do not invite or require balancing.

There is, first, an objective, well-defined question to be answered: Is the legislative map substantially asymmetric with respect to the conversion of votes into seats-meaning that each party is likely to receive quite different seat shares for a given share of the vote? To ask whether a map is asymmetric in a partisan gerrymandering case is akin to asking, in a toxic torts case, whether a chemical released in an industrial accident causes cancer. A judge in the torts case might consider epidemiological evidence, lab experiments on mice, and biomechanical studies of cell division. But the question to be answered is not whether these three types of evidence, considered together, show the plaintiffs to be morally deserving of compensation (a steak-rub question). Rather, the question is objective: does the chemical cause cancer?

Similarly, the three measures of partisan symmetry introduced by the plaintiffs in Gill-the Efficiency Gap, Gelman-King bias, and the mean-median difference-each serve to answer the objective question of whether a map of legislative districts yields an asymmetric votes-to-seats curve. The measures are extremely highly correlated in competitive states like Wisconsin. They diverge somewhat in politically lopsided states, but the reason for the divergence is well understood and points to a clear choice among the metrics.

If a legislative map were shown to have substantial asymmetry, then under the plaintiffs' proposed test, the court would ask whether that degree of asymmetry can be explained by neutral factors, such as the geographic distribution of each party's supporters. No balancing is involved: the court would not weigh the size of the asymmetry against the likelihood that it arose by chance, or against the weightiness of the state's official (legitimate) redistricting criteria. Indeed, to minimize judicial discretion at this stage, judges could use redistricting simulations to determine whether the map at issue is an outlier relative to the range of algorithmically generated maps.

Courts applying this approach would eventually have to settle on quantitative thresholds for "substantial" asymmetry, and for "outlier" status relative to simulated maps, but this is no different than what the courts did in malapportionment cases after Reynolds v. Sims. Also, while the plaintiffs in Gill formulated the substantial-asymmetry question as a two-part inquiry into magnitude and durability, these steps could easily be collapsed into one if courts focused on the expected rather than the observed level of asymmetry, where expected asymmetry is an average taken over the range of historically plausible partisan swings.

Ironically, the only serious subjectivity in the plaintiffs' proposed test lies in the intent prong-whether the map was adopted to benefit the favored political party. This inquiry may turn on a judge's priors in cases where the legislators worked hard to conceal their motives. The irony is that no one disputes that the intent prong is manageable. Intent tests are ubiquitous in constitutional law. But to the extent that the Supreme Court worries about judges simply voting for their party in gerrymandering cases (or being perceived to do so), the Supreme Court could implement the intent prong via conclusive presumptions based on the composition of the legislature (partisan intent presumed if the advantaged party held a majority of the seats when the map was enacted), or based on the results of computer simulations (partisan intent presumed if the map is an outlier relative to the distribution of simulated maps).

Again, our purpose here is not to argue for any particular outcome for the Wisconsin plan. The Supreme Court must decide whether this gerrymander is too extreme. But the Justices need not worry that the available metrics are too variegated for manageable adjudication. Steak rubs are great at the grill, and perhaps in some cases they should season the law too. But partisan symmetry is not a steak rub concept, and Gill is not a steak rub case.

October 4, 2017

Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Yesterday, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action constitutional challenge to a variety of provisions of the immigration laws allowing for immigrant detention. After the oral argument last term, the court asked for further briefing on the constitutionality of the detention of immigrants. With the Trump administration promising to increase the use of detention as a form of immigration enforcement, the case has taken on increasing practical significance since the court first decided to review the case in June of 2016.

As discussed in my preview of the argument, two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because "to permit[] indefinite detention of an alien would cause a serious constitutional problem." Just two years later, the court in Demore v.Kim invoked the "plenary power" doctrine - something exceptional to immigration law and inconsistent with modern constitutional law - to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

During the oral argument last term, the justices focused on two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a matter of constitutional law. At the same time, however, some justices worried that the U.S. Court of Appeals for the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. The reargument yesterday focused on similar questions, although several justices expressed alarm at the U.S. government's claim that indefinite detention of immigrants is constitutional.

Deputy Solicitor General Malcom Stewart began for the United States by "stress[ing] the breadth of Congress's constitutional authority to establish the rules under which aliens will be allowed to enter and remain in the United States." Focusing first on noncitizens seeking to enter the U.S., he characterized the respondents' claim as seeking "a constitutional right to be released into this country" during the pendency of their removal proceedings.

Justice Ruth Bader Ginsburg quickly took a poke at the government's case, noting that someone with a credible fear of persecution who is applying for asylum might be able to gain parole into the United States. Justice Sonia Sotomayor got to the crux of the case in short order: "[W]hat other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?"

Stewart had no response except to say, paraphrasing language in the Cold War case United States ex rel. Knauff v. Shaughnessy, that for "aliens arriving at our shores ... , whatever Congress chooses to give is due process." Sotomayor's incredulous response was blunt: "[T]hat's lawlessness."

Rejecting Stewart's claim that the only alternatives for arriving immigrants are detention or release, Ginsburg pointed out that "there is something in between," and that monitoring devices could be used to keep track of an immigrant released on bond. In response, Stewart invoked Demore v. Kim, and said that due process does not require Congress to use the least restrictive means with respect to detention of immigrants.

Justice Stephen Breyer kept Stewart on the ropes by pointing out the oddity of not giving bond hearings to noncitizens when they are given to "triple ax murderers." Justice Elena Kagan seemed to agree that the detention statute should be read to permit a hearing and possible release.

Stewart then returned to defending the plenary-power doctrine and its Constitution-free-zone for noncitizens seeking admission into the United States. In response to a question from Kagan, he admitted that his argument was premised on the claim that people at the border "have no constitutional rights at all." Armed with hypotheticals like the former law professor she is, Kagan asked whether the government could torture arriving immigrants or subject them to forced labor. Stewart agreed that such treatment would be unconstitutional, but then had a hard time explaining why indefinite detention does not also violate the Constitution.

After getting Stewart to agree that "detention violates due process, if there is an unreasonable delay in that detention," Justice Anthony Kennedy asked whether a six-month rule for a hearing, which the 9th Circuit had adopted, might be appropriate. Along similar lines, Kagan suggested that, for immigrants with ties to the country, years in detention would be problematic. Stewart persisted in his position that years of detention without a bond hearing would be permissible. Kennedy seemed troubled by the apparent inconsistency between Stewart's admission that unreasonably prolonged detention could violate due process and his insistence that arriving immigrants lack constitutional rights.

A former Supreme Court advocate, Chief Justice John Roberts asked Stewart pointedly about a statement in the government's supplemental reply brief that 14 months without a hearing would cause constitutional problems, noting that it "sounds close to a concession."

Justice Samuel Alito inquired about the appropriate remedy if there was a constitutional violation, suggesting that rather than adopting a bright-line rule, the court could employ a multi-factored approach like that used in assessing constitutional speedy-trial claims.

Next up was Ahilan Arulanantham of the American Civil Liberties Union of Southern California, who argued the case for the class of immigrants. He stated at the outset that there are limits on the government's power to detain immigrants, which he said were based in longstanding case law. Ginsburg quickly asked about the 9th Circuit's requirement of a bond hearing every six months, noting that criminal defendants receive an initial bail hearing, with no more required under the Constitution.

Kagan seemed to read Demore v. Kim as allowing for detention, but only for a matter of months. Arulanantham explained that the length of detention of the class members was much longer, in part because, unlike the detainee in Demore, they are opposing their removals and seek to remain in the United States. He emphasized that a significant component of the class was seeking cancellation of removal, which allows successful applicants to remain as lawful permanent residents.

Justice Neil Gorsuch raised some jurisdictional questions based on provisions of the immigration statute (8 U.S.C. §§ 1252(b)(9), (f)(1)) that limit the courts' jurisdiction in immigration cases. Arulanantham said that the government concedes that Section (b)(9), which allows for review of a final removal order, does not apply to detention claims, and that the government had waived any jurisdictional objection based on Section (f)(1). Gorsuch seemed satisfied with these explanations.

Returning to Ginsburg's earlier question about the 9th Circuit's requirement that a bond hearing be conducted every six months, Arulanantham defended the rule, noting that "this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months." Alito pushed back, asking, "Where does it say six months in the Constitution? Why is it six? Why isn't it seven? Why isn't it five? Why isn't it eight?"

Roberts acknowledged that the constitutional concerns increase with the length of a detention, but still asked Arulanatham to justify that specific time limit. Arulanantham responded by citing government statistics showing that 90 percent of all detention cases under mandatory detention finish in less than six months. Roberts wondered whether habeas or other relief might be a possibility. Returning to this question later, Arulanantham offered statistics showing that final adjudication of a habeas petition takes 19 months in the U.S. Court of Appeals for the 11th Circuit and 14 months in the U.S. Court of Appeals for the 3rd Circuit.

Roberts also suggested that some of the immigrants were in detention for lengthier periods because they were preparing their cases. Pushing back, Arulanantham said in effect that an immigrant should not be penalized for seeking relief. He emphasized that the fact that an immigrant is pursuing relief does not make the person a flight risk.

Alito asked why an immediate bond hearing, as is the rule in criminal cases, was not required. Arulanantham noted that the Supreme Court had rejected that possibility in Demore. Late in the argument, Gorsuch asked about a possible remand to the 9th Circuit to decide first on constitutionality. Arulanantham admitted that could be a possibility but asked what would be gained.

As the reargument made clear, this case raises some fascinating constitutional questions, which now are squarely before the court. The justices seemed primed to find constitutional limits on the detention of immigrants. They seemed less troubled than they had been in the first argument by the six-month period for bond hearings established by the 9th Circuit, with the discussion about the reasonableness of the six-month period seeming to assuage their concerns.

Ultimately, this case offers the Supreme Court the opportunity to address the modern vitality of the plenary-power doctrine and finally decide whether, and if so how, the Constitution applies to arriving aliens. We will likely have to wait a few months longer to find out how the justices resolve that issue, which has significant implications in the immigration-law arena.

October 3, 2017

Argument analysis: Faithful to Scalia, Gorsuch may be deciding vote for immigrant

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Yesterday, the first day of the October 2017 term, the justices heard oral argument in Sessions v. Dimaya, a void-for-vagueness challenge to a criminal-removal provision of the U.S. immigration laws. As I explained in my preview of the case, the U.S. Court of Appeals for the 9th Circuit had relied on the Supreme Court's opinion in Johnson v. United States to find unconstitutionally vague a provision making a "crime of violence," as defined in the immigration statute's "residual clause," 18 U.S.C. § 16(b), an "aggravated felony" subjecting an immigrant to mandatory removal. In so doing, the court of appeals rejected an immigration court's conclusion that James Garcia Dimaya, neither of whose two burglary convictions involved violence, had been convicted of a "crime of violence" and had to be removed from the United States.

The case was first considered last term, when the court was short-handed following the death of Justice Antonin Scalia. At oral argument last January, the justices seemed willing to test a provision of the immigration statute, a civil statute, even though vagueness challenges have more often been successful with respect to criminal laws. However, they appeared divided as to whether this case is distinguishable from Johnson and whether Section 16(b) is void for vagueness, and they restored the case to their calendar for reargument this fall. Consequently, all eyes were on Scalia's replacement, Justice Neil Gorsuch, yesterday.

This oral argument seemed to have a more definitive direction than the first one. And the tide seemed to favor Dimaya.

Arguing for the United States, Deputy Solicitor General Edwin Kneedler again defended the constitutionality of Section 16(b), as he had in January. He first contended that the vagueness test as applied to an immigration law is not as rigorous as for criminal laws, a contention that Justice Ruth Bader Ginsburg quickly questioned. Justice Sonia Sotomayor asked whether a vague statute might result in arbitrary enforcement, and noted that less than 10 percent of burglaries involve an occupied home, which might be expected to increase the potential for violence. Justice Elena Kagan expressed similar concerns.

Not long into the argument, Gorsuch began active questioning and seemed ready and willing to apply Scalia's opinion in Johnson to this case. In language that Scalia would have loved, Gorsuch noted that the due process clause does not include the criminal/civil distinction embraced by the government: "I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property. It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right of self-incrimination, for example."

On the defensive throughout, Kneedler emphasized that the federal government traditionally has enjoyed broad discretion in the enforcement of the immigration laws.

Ginsburg noted that the government could have sought to remove Dimaya under another provision of the statute, which allows for removal for a conviction of a "crime of moral turpitude." Justice Samuel Alito then questioned whether "crime of moral turpitude" was any less vague than "crime of violence."

Gorsuch asked how far judges should be allowed to go in defining the "ordinary case" under a criminal statute to determine whether it is a "crime of violence" for purposes of Section 16(b). He quipped: "How am I supposed to determine what the ordinary case is? Should I bring in some experts and have an evidentiary hearing?"

Later in the argument, Gorsuch threw Kneedler what might have appeared to be a life preserver, asking whether vagueness doctrine might be "a subspecies of substantive due process." Kneedler said that that indeed was the case. Gorsuch then pounced, saying that the doctrine was more procedural than substantive, because Congress could avoid a vagueness challenge by passing a more specific statute.

Representing Dimaya, E. Joshua Rosenkranz, who also had argued the case last term, defended the 9th Circuit's conclusion that Section 16(b) was unconstitutionally vague. Seeing an ally in Gorsuch, Rosenkranz began as follows: "Justice Gorsuch is right. [Determining a crime of violence] is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground."

Rosenkranz argued primarily that the residual clause was unconstitutionally vague under Johnson. When questioned by Alito about how to determine when a civil statute is unconstitutionally vague, Rosenkranz emphasized that the statute at issue is not just any civil statute, but a removal statute. And, he maintained, the Supreme Court said in Jordan v. DeGeorge that vagueness standards apply to deportation statutes.

Rosenkranz discussed the standard for vagueness in civil statutes set forth in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., which dealt with a business licensing ordinance regulating the sale of products that might be used for illicit drugs, and which made it clear that a civil statute with "severe consequences" could be challenged for vagueness. Both Gorsuch and Sotomayor wondered aloud how a court would go about defining "severe consequences." Rosenkranz emphasized that the consequences of removal are unquestionably severe - "banishment" and "exile" - and "on par with a criminal punishment." Alito worried about how to draw the line between "severe" and lesser consequences. Ever the textualist, Gorsuch quickly responded and suggested that the line should be "life, liberty, or property," language found in the due process clause.

Justice Anthony Kennedy asked whether Congress could pass a law allowing an immigrant convicted of a crime to be deported in the discretion of the U.S. attorney general, if he or she determines that the presence of the alien is inconsistent with the best interests of the United States. Rosenkranz said such a statute would be unconstitutionally vague.

In response to a question from Gorsuch, Rosenkranz replied that vagueness analysis involves procedural, not substantive, due process, a proposition with which Alito disagreed.

Ginsburg asked why if, as the Supreme Court has held, "crime of moral turpitude" is not unconstitutionally vague, "crime of violence" would be. After Rosenkranz responded that "moral turpitude" has been delineated over "two centuries' worth of law," Kagan added that "in a crime of moral turpitude, we don't have to consider what the ordinary case is, do we?"

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court. Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia's opinion in Johnson to Dimaya's case - maybe even more faithfully than Scalia himself would have done. And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute's residual clause.

October 3, 2017

Aoki Center Screens 'Cruz Reynoso: Sowing the Seeds of Justice'

The Aoki Center for Critical Race and Nation Studies presented a screening of Cruz Reynoso: Sowing the Seeds of Justice, filmmaker Abby Ginzberg's documentary on the life of Professor Emeritus Cruz Reynoso, at King Hall on September 26. 

The film presents the story of Professor Reynoso's life and career as it intersects with key moments in the history of California and the nation, including the fight for legal services for farm workers during the 1970s, the 1986 political campaign by death penalty advocates against Reynoso and two other California Supreme Court justices, and the U.S. Commission on Civil Rights' investigation of voting irregularities in Florida during the 2000 Presidential election. 

A member of the UC Davis School of Law faculty since 2001, Professor Reynoso was awarded the Presidential Medal of Freedom, the nation's highest civilian honor, in 2000 by President Bill Clinton in recognition of his "compassion and work on behalf of the downtrodden." 

The screening was part of the Aoki Center's Fall 2017 Interdisciplinary Research Seminar Series. To view a trailer for the film click here.

 

October 2, 2017

Travel Ban 3.0: Legalese Cannot Mask a Harsh and Misguided Policy

By Raquel Aldana, Associate Vice Chancellor for Academic Diversity and Professor of Law, UC Davis

[Cross-posted from UC Davis Equity and Inclusion Blog]

On Sunday September 24, 2017, while President Trump artfully distracted the nation by feuding with NFL football players over their First Amendment right to protest racial injustice in the United States, the White House released a Presidential Proclamation Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorist or Other Public-Safety Threats. This new travel ban ("travel ban 3.0") replaces the previously revised travel ban issued March 6 (Executive Order 1380; Protecting the Nation from Foreign Terrorist Entry into the United States), which was due to expire that same night. Travel ban 3.0 has not received as much media attention or public consternation as the original travel ban. However, its harms, which are now indefinite, remain largely unchanged for five of the six predominantly Muslim nations included in the original travel ban (Iran, Libya, Syria, Somalia, and Yemen) while three new nations (Chad, North Korea, and Venezuela) are added to the list.

On its surface, travel ban 3.0 appears to draw careful distinctions in the degrees of travel restrictions imposed on each of the eight nations based on alleged differences in the security risks presented by each. However, with the exception of Venezuela, the most important fact is that travel ban 3.0 indefinitely bars nationals from all of the seven remaining nations from permanent immigration into the United States. No careful "tailoring" as the government claims, can hide this harsh reality. Moreover, six of the targeted nations (Iran, Chad, Libya, Syria, Somalia, and Yemen) are predominantly Muslim. Not unlike the previous two travel bans, travel ban 3.0 hurts predominantly Muslim U.S. families, Muslim refugees, and the entire U.S. economy with highly questionable national security gains.

Permanent immigration into the United States occurs largely for three primary reasons: to promote family unification between foreigners and U.S. citizens or lawful permanent residents, to recruit workers that Congress deems contribute to the U.S. economy, and to provide protection from persecution to refugees and asylum seekers. In 2015, the last year for which the government has provided official data on permanent immigration into the United States, over 20,000 permanent immigrants from these seven nations (the largest numbers from Iran, Syria, and Yemen) arrived in the United States to unify with spouses, children, parents or siblings, to begin gainful employment, often after completing programs of study in the United States, or to escape horrific repression.[1] Moreover, as of 2012, nearly 800,000 persons living in the United States come from countries affected by the ban, representing 2% of all foreign-born immigrants in the country.[2] With travel ban 3.0, potentially hundreds of thousands of U.S. families, some who have waited in backlogged immigration lines for years, confront the possibility of an indefinite separation from their loved ones. Moreover, in violation of our moral obligation and international and domestic legal commitments, under travel ban 3.0, the United States turns its back indefinitely on tens of thousands more refugees.

Travel ban 3.0 did ease some of the previously imposed travel bans in puzzling ways. Only two of the eight nations, North Korea and Syria, face an indefinite bar for both permanent and temporary immigration to the United States. Venezuela is a unique case because the ban on travel applies only to certain government officials. Somalia is also a unique case because temporary immigration is not suspended but rather subjected to additional scrutiny. For the remaining nations, the odd tailoring of restrictions or exceptions to the restrictions will largely mean that some temporary migration will be allowed to come in from each of these countries except for temporary visitors on business or as tourists. For Iran, the ban on temporary migration is even broader exempting only student categories. This begs the obvious question as to why the Trump administration considers it possible to contain the purported national security risks of travel for temporary migrants, who usually come to the United States in much greater numbers than permanent immigrants, while imposing more extreme measures to permanent immigration.

Universities across the country may view as positive that travel ban 3.0 lifts the student visa restrictions on most of the countries affected in the prior travel ban, including Iran. Students from North Korea and Syria, however, are indefinitely banned as students, while Somali students could still face undue restrictions. More importantly, however, travel ban 3.0 leaves intact the barriers that would significantly deter many foreign students, not only those who come from the nations directly affected, from choosing to study in the United States. Already, students from Chad, Libya, and Yemen are indefinitely banned from seeking permanent legal employment in the United States once they finish their studies while students from Iran are indefinitely banned from both temporary and permanent lawful employment in the United States. This significantly reduces the economic incentives for these students to choose their studies in the United States and it robs us of the opportunity to reap the benefits of a U.S. educated workforce. More importantly, the ban signals to these foreign students that they are considered security risks to our nation and are not wanted. Why should foreign students spend tens of thousands of dollars to study in a nation hostile to them and their contributions? Who among them is going to be targeted next?

More than a million international students currently study on U.S. college campuses, contributing nearly $36 billion to the U.S. economy.[3] From the targeted countries, Iran and Venezuela feature among the top 25 sending nations, and together comprise more than 20,000 students nationwide.[4] At UC Davis, our student population from the affected nations is fewer than 100, with the largest share comprised of students from Iran. These students are feeling targeted, isolated, and scapegoated. Each one of them, however, is a valuable member of our community. Their presence on this campus makes us a better university and enhances our understanding of shared or even different values, culture, religion, and ideas. Our shared spaces allow us to grow in respect for one another. U.C. Davis students and scholars affected by travel ban 3.0 can find support at UC Davis Services for International Students and Scholars. UC Davis remains committed to supporting and welcoming students and scholars regardless of citizenship or place of birth.

Travel ban 3.0 may have both delayed and muddled the legal challenges to the prior travel bans but it should not alter our moral indignation against the policies. The legal challenges to the prior travel bans relied on President Trump's virulent anti-Muslim rhetoric to make a compelling case of the religious animus motivating the ban. The inclusion of Venezuela and North Korea in travel ban 3.0 could make this claim harder, particularly when immigration law's exceptionalism already grants the President wide discretion to violate fundamental rights even of U.S. citizens directly affected by the ban (e.g., those who can assert a "bona fide" relationship to nationals from the banned countries). Law, however, cannot always provide the right answers. We must also be guided by our values, our humanity, and our common sense. Travel ban 3.0 remains essentially an anti-Muslim prohibition. It must also be understood in the context of a broader anti-immigrant agenda, which also targets other communities of color. This includes the recent immigration raids, DACA's rescission, cuts in refugee admissions, and legislative proposals like the RAISE ACT which proposes major cuts to family immigration, which predominantly originates from Mexico, China, India and the Philippines. The national security justification for the ban has great appeal, but it is misguided. Since September 11, 2001, a vast majority of the perpetrators of terrorist attacks came from countries not listed in the ban, and many were born in the United States.[5] Security experts particularly puzzle over Chad's inclusion since Chad has been an ally in the fight against terrorism.[6] Careful consideration must be given to how and whether immigration controls are necessary to improve U.S. security. However, indiscriminate immigration bans against entire nations are unlikely to make our nation safer. They will certainly, however, make us a less diverse and inclusive nation.

 


[1] Department of Homeland Security, 2015 Yearbook of Immigration Statistics, Table 10: Persons Obtaining Lawful Permanent Resident Status By Broad Class of Admission and Region and Country of Birth.

[2] Mona Chalabi, "How many US immigrants come from Trump's seven banned countries?" The Guardian (28 January 2017); Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants from Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[3] Karin Fischer, "International Students Dodge Trump's Partly Reinstated Travel Ban, but Concerns Persist," Chronicle of Higher Education (26 June 2017).

[4] Id.

[5] Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants From Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[6] Helene Cooper, Michael D. Shear and Dionne Searcey, "Chad's Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say," New York Times (26 September 2017).

October 2, 2017

Corporate Liability for Human Rights Violations: A Preview of Jesner v. Arab Bank, PLC

By William Dodge

[Cross-posted from Just Security]

On October 11, the U.S. Supreme Court will hear oral argument in Jesner v. Arab Bank, PLC on the question whether corporations can be sued for human rights violations under the Alien Tort Statute (ATS). This will be the second time the question of corporate liability has come before the Court. In 2011, the Supreme Court granted cert to consider the same question in Kiobel v. Royal Dutch Petroleum Co., but after oral argument the Court asked for additional briefing on the geographic scope of the ATS cause of action. Ultimately, the Supreme Court affirmed dismissal of the claims in Kiobel on the ground that they did not "touch and concern" the United States with sufficient force to displace the presumption against extraterritoriality. The Court did not reach the question of corporate liability under the ATS, leaving the Second Circuit's categorical rule against such liability intact.

Victims of terror attacks in Israel, the West Bank, and Gaza-both U.S. citizens and non-U.S. citizens-alleged that Arab Bank knowingly funneled millions of dollars through its New York branch to finance these attacks and reward the families of suicide bombers. The U.S.-citizen plaintiffs sued under the Antiterrorism Act (ATA), while the non-U.S.-citizen plaintiffs sued under the ATS. In the ATA suit, the district court found that Arab Bank knowingly provided financial services to persons that it knew to be terrorists. In the ATS suit, the district court dismissed, and the Second Circuit affirmed the dismissal, on the sole ground that under circuit precedent ATS cannot be brought against corporations.

The arguments in Jesner fall into three groups:

1) whether customary international law permits corporate liability;

2) whether, as a matter of U.S. domestic law, the ATS cause of action should be interpreted to permit corporate liability;

3) whether the case against Arab Bank should be dismissed on some other ground.

Whether Customary International law Permits Corporate Liability

Whether customary international law permits corporate liability is in some sense the threshold question, because the ATS gives federal courts jurisdiction over actions "by an alien for a tort only, in violation of the law of nations or a treaty of the United States." In Kiobel, the Second Circuit held that corporations could never be held liable under the ATS because there is no "norm of corporate liability under customary international law." The Second Circuit relied heavily on the fact that international criminal tribunals from Nuremberg to the ICC had been given jurisdiction only over natural persons. 

The detailed analysis in the amicus brief of Nuremberg Scholars, however, shows it was understood at Nuremberg that juridical persons could violate international law and be held legal accountable for doing so. The amicus brief filed by Ambassador David Scheffer, who led the U.S. delegation in the negotiations that established the ICC, explains that corporations were excluded from the Rome Statute because of a lack of consensus on criminal, rather than civil liability, which posed problems under the ICC's principle of complementarity. The amicus brief filed on behalf of International Law Scholars argues more generally that limitations on the jurisdiction of particular courts are not limitations on customary international law norms themselves. It explains that customary international law prohibits violations of fundamental human rights but leaves it to nations to enforce such norms-collectively through mechanisms like international criminal tribunals and suppression conventions, and individually through their own domestic laws. (Full disclosure: I am counsel of record for the International Law Scholars.)

The amicus brief filed by the United States agrees that international law "establishes substantive standards of conduct but generally leaves each nation with substantial discretion as to the means of enforcement within its own jurisdiction." The United States adds that the norms actionable under the ATS, like torture, genocide, and war crimes, "neither require nor necessarily contemplate a distinction between natural and juridical actors." The amicus brief of the Yale Law School Center for Global Legal Challenges fleshes out the latter point, showing that eight customary international law prohibitions-genocide, crimes against humanity, financing terrorism, torture, extrajudicial killing, war crimes, slavery, and piracy-both meet the Sosa-standard for actionable norms under the ATS and extend to corporations. And the amicus brief of Canadian International and National Security Law Scholars elaborates on financing terrorism as a violation of international law.

Respondent Arab Bank and the amicus brief filed by the Chamber of Commerce do little to meet these arguments, largely limiting themselves to repeating what the Second Circuit said in Kiobel. The amicus brief filed on behalf of Professors of International Law, Foreign Relations Law, and Federal Jurisdiction makes an additional argument that the ATS should be limited to claims for violations of international law that, if left unaddressed, might give other countries just cause for war against the United States. This argument finds no support in the text of the ATS, however, which refers without limitation to torts "in violation of the law of nations or a treaty of the United States." This argument also fails to account for piracy, which the Supreme Court recognized in Sosa v. Alvarez-Machain as one of the three paradigm offenses the ATS was intended to address and which (unlike violations of safe-conducts and infringement of the rights of ambassadors) would not have given other countries cause for war if left unaddressed.

Whether the ATS Cause of Action Should Permit Corporate Liability

Whether the ATS cause of action recognized in Sosa v. Alvarez-Machain should apply to corporations as a matter of U.S. domestic law is a separate question from whether customary international law permits it to do so. Petitioners note that while the language of the ATS limits potential plaintiffs to aliens, it does not limit potential defendants in any way. Petitioners also argue that the ATS's use of the word "tort" supports corporate liability because tort actions could presumptively be brought against corporations both at the time the ATS was enacted and today. And petitioners note the history of holding entities like ships directly responsible for piracy, one of the paradigm violations of the law of nations that the ATS was intended to reach. Amicus briefs filed by Professors of Legal History and by Procedural and Corporate Law Professors discuss the liability of juridical entities at the time the ATS was enacted and today.

In Sosa v. Alvarez-Machain, the Supreme Court suggested that it would look for "legislative guidance" in shaping the federal-common-law cause of action under the ATS. Petitioners note that most federal statutes authorize corporate liability. But they point in particular to the ATA-the statute that U.S.-citizen plaintiffs successfully used to sue Arab Bank-which creates a cause of action for victims of terrorism and, like the ATS, does not distinguish between corporations and natural persons as defendants. Respondent Arab Bank, on the other hand, argues that the Supreme Court should look for guidance to the Torture Victim Protection Act (TVPA), which Congress passed in 1992 to create an express cause of action for torture and extrajudicial killing. In Mohamad v. Palestinian Authority, the Supreme Court held that Congress limited liability to natural persons by using the word "individual," a word not found in the ATS.

The amicus brief filed by the United States agrees with petitioners that the ATS cause of action should reach corporate defendants. The United States notes that the TVPA is expressly limited to natural persons by virtue of the word "individual," while the ATS does not distinguish among classes of defendants. The United States also points to the long history of corporate tort liability in England and the United States. Finally, the United States notes the early understanding that corporations could be plaintiffs under the ATS and that excluding corporations as defendants would be in "considerable tension" with that understanding.

The last point suggests a more general reason why the Supreme Court may be reluctant categorically to exempt corporations from ATS claims. The Court has been criticized in recent years for extending the rights of natural persons to corporations in cases like Citizens United v. FEC. Whether or not such criticism is justified, it would certainly seem odd to many Americans to say that corporations can have the rights of natural persons but cannot be held liable like natural persons when they violate human rights.

Other Grounds

Respondent Arab Bank argues that if the Supreme Court overturns the Second Circuit's categorical prohibition of ATS suits against corporations, it should affirm dismissal of the claims in this case on other grounds because of the harm this case is causing to Jordan and by extension to U.S. foreign policy in the Middle East. This is an argument seconded in various ways in amicus briefs filed by the Kingdom of Jordan, the Central Bank of Jordan, the Union of Arab Banks, the Institute of International Bankers, and Former State Department Officials. On the other hand, Senators Sheldon Whitehouse and Lindsey Graham, Former Counterterrorism and National Security Officials, and Financial Regulation Scholars argue that civil liability for terrorist financing is essential to combatting terrorism.

As for specific alternative grounds, Arab Bank argues that routing wire transfers through New York is not sufficient to satisfy Kiobel's "touch and concern" test, that deciding the case "would force federal courts to wade into profoundly sensitive foreign-policy issues," and that financing terrorism is not an actionable violation of customary international law under the Sosa standard. The United States also suggests that routing wire transfers through New York may not be sufficient to meet the "touch and concern" test in ATS cases, though its brief cautions that "the government could potentially rely on such activity as the basis for a criminal indictment or civil enforcement action." To prevent prolonging the suit, the United States suggests that the "touch and concern" issue should be resolved directly by the Second Circuit on remand. Petitioners simply argue that the other grounds raised by Arab Bank should be handled by the lower courts on remand under the ordinary procedures of appellate review.

Arab Bank's heavy emphasis on other grounds might make one doubt its confidence in its arguments with respect to corporate liability. But if the Supreme Court were to reverse the Second Circuit's categorical ban on corporate liability in ATS suits, Arab Bank would still have a number of ways to argue that this particular suit should be dismissed. More generally, as I have explained elsewhere, ATS suits against corporations will continue to face a number of significant challenges, from establishing personal jurisdiction, to meeting the mens rea standard for aiding and abetting liability, to satisfying Kiobel's "touch and concern" test. Sosa also raised the possibility of "case-specific deference to the political branches" if the State Department files a statement of interest addressing foreign policy concerns, something it has not done in Jesner.

Four years ago, in Kiobel, the Supreme Court did what Arab Bank now suggests. It avoided the corporate liability question and resolved the case on other grounds. The circuit split that the Court preserved is now six years old. Every other circuit to have addressed the question has concluded that the Second Circuit is wrong.  Rather than duck the question again and have to grant cert for a third time, the Supreme Court should take this opportunity to decide whether the ATS categorically forecloses corporate liability.