January 16, 2015

Why the Supreme Court Should Reject the Arizona Legislature’s Challenge to the Arizona Independent Redistricting Commission

Cross-posted from Justia's Verdict.

One of the important Supreme Court cases currently being briefed (with oral argument set for March), Arizona Legislature v. Arizona Independent Redistricting Commission, involves the question whether the U.S. Constitution and congressional statutes permit the people of a state to implement an initiative creating an independent redistricting commission (IRC) - i.e., one that is not controllable by the elected state legislature - to devise congressional districts. Arizona voters passed just such an initiative in 2000, and the elected Arizona legislature (acting as a body) has now brought the case to the Supreme Court, arguing primarily that the so-called Elections Clause of Article I of the Constitution (Article I, section 4) prevents a state from divesting district - drawing power from the elected state legislature. The Arizona legislature (represented by former Solicitor General Paul Clement) has filed its brief in the Court, and the IRC (also represented by a former Solicitor General, Seth Waxman) will file its written argument very soon. In the space below, I analyze the merits portion of Mr. Clement's brief on behalf of the Arizona legislature, and point out why I think it fails to demonstrate that the IRC's creation and powers violate federal law. (Another part of Mr. Clement's brief, addressing whether the Arizona legislature has "standing" in federal court to assert a challenge to the IRC at all, raises interesting questions of its own, but those will have to await another day.)

What the Constitution and Federal Statutes Say, and What Mr. Clement's Brief Argues

The Elections Clause of the Constitution reads in relevant part: "The [districts for] Representatives . . . shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations . . . ."

And an important federal statute says that "u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in [a particular way]." 2 U.S.C. § 2a(c) (emphasis added).

Mr. Clement's argument against the IRC is pretty straightforward. He contends that the term "legislature" in Article I refers, as a matter of constitutional text, history, and policy, specifically to the elected body of regular legislators of the state, and if another body - the IRC - is empowered to do the districting instead, the elected legislature has been improperly divested of its constitutionally conferred prerogative. As the brief observes, quoting from a case (Hawke v. Smith), "[t]he term 'the legislature' . . . 'was not a term of uncertain meaning when incorporated into the Constitution,' and 'what it meant when adopted it still means,' namely, 'the representative body which made the laws of the people.'" The brief adds that this precise wording by the framers was motivated by their "admiration for representative democracy and skepticism for other forms of government, including direct democracy." The brief then goes on to explain why "the IRC is not 'a legislature' at all [and is certainly] not 'the Legislature' in Arizona."

Mr. Clement does have to deal with two Supreme Court cases that seem to support the IRC. In Ohio ex. rel. Davis v. Hildebrant, in 1916, the Court upheld Ohio's use of the referendum (a popular vote veto by the people directly) to oversee the congressional districting done by the elected state legislature. The Court specifically rejected a challenge to the referendum based on Article I, section 4 of the Constitution, finding that "to include the referendum into the scope of the legislative process was [not] to introduce a virus which destroys that power," and also that Congress expressly chose language to include in a federal statute (the one quoted above) in order to make clear its desire that where under state law "the referendum was treated as part of the legislative power, the power as thus constituted should be held and treated to be the state legislative power for the purpose of" the Elections Clause (emphasis added).

And in Smiley v. Holm, in 1932, the Court upheld Minnesota law's inclusion of the governor in the districting process through the power of the veto, holding that there is nothing in the federal Constitution that suggests "an attempt to endow the Legislature of the state with the power to enact laws in any manner other than that in which the Constitution of the state has provided that all laws shall be enacted." As a result, a redistricting passed by the elected legislature but vetoed by the governor was not allowed to go into effect.

Mr. Clement argues that these two cases "do not aid the IRC" because "both decisions clearly contemplate a continuing role-indeed, a continuing preeminent role-for the state legislature in prescribing congressional districts," insofar as the referendum power and the gubernatorial veto at issue in those cases did not obviate the need for the elected legislature to itself agree on any districting plan that would go into effect. Because Arizona's IRC scheme totally replaces-rather than supplements-the power of the elected legislature, these cases, argues Mr. Clement, are readily distinguishable.

As to the federal statute that the IRC invokes to support it-2 U.S.C. § 2a(c)-Mr. Clement argues that a recent ruling by the Supreme Court (Branch v. Smith) that discusses that provision does not mention that it embodies a congressional blessing of all districting done pursuant to state law. Moreover, Mr. Clement argues, if Congress "ever passed a statute purporting" to "authorize states to oust from the congressional redistricting process the very state legislatures to which the Constitution delegates primary power," then such a law would "be plainly unconstitutional."

Why the Constitutional Reading Offered by the Arizona Elected Legislature Is Unpersuasive

Mr. Clement's argument on behalf of the Arizona elected legislature is flawed in several respects. Sometimes the argument frames questions improperly, and sometimes the argument's conclusions are not logically supported. At a relatively high level of abstraction, the brief misdescribes the relevant inquiry: the question is not whether the IRC can be considered a "legislature" within the meaning of the federal Constitution; the question is whether the Arizona electorate-which passed the measure creating, empowering and directing the IRC-can be considered the state's "legislature" for Article I, section 4 purposes. To see this, ask yourself whether the elected Arizona legislature could-if it wanted to-create and appoint a body like the IRC, and charge it with the task of actually drawing the district lines, without the need for formal ratification or approval of the final boundaries by the elected legislature. That is precisely what five other states do, and no one-even the Arizona elected legislature-seems to quarrel with that. In other words, no one argues that an elected legislature is violating Article I, section 4 by making use of a commission to help draw the lines. (The same is true for Congress; no one believes that the clause empowering "Congress" to "regulate commerce among the several states" is violated when Congress creates, empowers, and directs federal agencies to craft the specific commercial regulations in the name of the federal government.)

So if the people of Arizona can be considered a legislature for Article I, section 4 purposes, then it matters not whether the IRC is a legislature. The IRC is the tool of the popular legislature, just as commissions are the tools of the elected legislatures in states like Montana, Idaho, New Jersey, Washington, and Hawaii.

And when we turn to the question whether the people of a state can properly be considered the legislature of the state for these purposes, we see that the brief's treatment of the Hildebrant and Smiley cases is quite incomplete at the very least. The brief's claim that, as far as the facts go, the devices at issue in those cases did not completely displace the role of the elected legislature is true. But it is also true that the affirmative legal argument the brief makes-that the text, history and policy behind Article I, section 4 require that the word "legislature" be understood to mean the elected legislature and only the elected legislature-simply cannot be squared with the outcome, let alone the reasoning, of those cases. To put the point is quasi-mathematical terms, if "legislature" equals elected legislature and no more and no less, then "legislature" cannot equal "legislature plus people" or "legislature plus governor."

Indeed, what strikes me most in reading the brief is that its drafters make bold assertions without seeming to realize that these assertions conflict directly with Hildebrant and Smiley, the cases Mr. Clement argues pose no problems for him. For example, the brief asserts-in a section heading, no less-that "The Text of the Elections Clause Unambiguously Vests State Authority . . . in the State's Representative Lawmaking Body Alone" (emphasis added). The inclusion of the word "alone" is puzzling. If it is true that Article I, section 4 vests power in the elected legislature "alone," the how could a veto by the people (in the form of a referendum) be countenanced? (Similarly puzzling is the brief's insistence that the word "prescribe" in Article I, section 4 means "establish authoritatively" or "dictate." If the redistricting work product of the elected legislature can be made subject to a requirement of popular approval, as Hildebrant says it can, in what sense is the elected legislature "authoritatively establishing" or "dictating" anything?)

In a related vein, the brief observes that "the framers knew the differences between 'state legislatures' and the 'executive . . . branch[]'" and that "[t]hose contemporary understandings and usages are critical." Why would you make this (tangential) textual argument concerning the difference between "legislature" and "executive" when Smiley-a case whose relevance you are trying to minimize-expressly permits executive involvement in Article I, section 4 district drawing?

It is true that Mr. Clement's brief is able to quote, as noted earlier, language from one Court case, Hawke v. Smith (decided in 1920), to the effect that the meaning of the term "legislature" is the same now as it was in 1787-the elected representatives. What the brief does not mention, however, is that this language in Hawke did not involve Article I's Election Clause, but the word "legislature" as it appears in Article V's amendment process. The Hawke Court rejected the applicability of the referendum device in Article V. But Hildebrant explicitly permits the use of the referendum in congressional district drawing, which strongly suggests that the Court has a different conception of the what "legislature" means in Article I, section 4-a conception that focuses not on a specific elected body but on the lawmaking power of the state more generally and the democratically accountable legislative process that is being employed.

That the Court interprets Article I, section 4's reference to "legislature" in terms of a democratic legislative process, rather than in terms of a particular body, was made explicit by the Court in Smiley (the case involving a gubernatorial veto of an elected legislature's redistricting bill.) Responding directly to and rejecting the Hawke Court's "a legislature is a particular elected body" reasoning employed in Article V, the Smiley Court said: "The question [in the present case] is not with respect to the 'body' . . . but as to the function to be performed. The use in the Federal Constitution of the same term in different [parts] does not always imply the performance of the same function." So while Mr. Clement is able to quote language from Hawke, the brief doesn't explain that Hawke's interpretive approach has been overtly rejected by the Court in the Elections Clause context.

Just as Mr. Clement's textual arguments are in tension with the results and reasoning of case law, so too are his historical claims. If the framers of Article I, section 4 were so "skeptical" of direct democracy, and if such pure democracy "results in 'spectacles of turbulence and contention,'" as the brief argues, then how to explain the Court's decision in Hildebrant to permit a state to subject an elected legislature's districting plan to a popular referendum?

Overall, it almost seems as if one person wrote the first part of the brief-laying out an aggressive textual and historical argument-and then another person was tasked with trying to deflect potentially damaging cases, and no one realized that the proffered distinctions of cases had to mesh with the affirmative reading of Article I, section 4 offered in the main argument.

Why the Brief's Treatment of the Role of Congress in This Dispute Is Even Weaker

Putting aside what the word "legislature" means in Article I, section 4, the least persuasive part of the brief might well be its treatment of the crucial congressional statute. As noted above, one reason the Hildebrant Court gave for upholding the use of the referendum in district drawing was its view that Congress, when it was modifying a key federal statute regarding redistricting, replaced a reference to the "legislature" of a state with the phrase "in the manner provided by the law" of a state, specifically in order to convey its approval of any state redistricting that made use of the referendum, so long as the referendum was consistent with state law. Mr. Clement's brief does not deny that the Hildebrant Court read the statutory language this way (the brief never even refers specifically to the passage in Hildebrant.) Instead, the brief simply says that a more recent case, Branch v. Smith, discussing the same statutory provision, did not reiterate what Hildebrant said, and that some Justices in Branch believed that the statutory provision at issue had been implicitly repealed by other statutes.

But the brief does not mention that five Justices in Branch explicitly expressed their view that the provision at issue had not been implicitly repealed. Nor does the brief mention that while Branch does not reiterate the reading Hildebrant gave, neither does it pull back from Hildebrant's reading in any way. Indeed, the Branch Court had no occasion to even discuss the Hildebrant interpretation at all because although the statute at issue in Branch was the same one involved in Hildebrant (or, more specifically, a later rendition of the same law), the legal question presented in Branch had nothing to do with whether Congress has approved of all state districting that is done pursuant to state law. Hildebrant's interpretation thus is not called into question by Branch, and statutory stare decisis is, of course, supposed to be very strong.

Probably because its drafters sense vulnerability here, the brief does say Congress cannot constitutionally authorize state laws that cut elected state legislatures out of the district-drawing loop. But in making this assertion the brief is on very weak ground. Congress is explicitly empowered to override any state districting and do the districting itself. That is precisely why the Hildebrant Court found congressional endorsement of Ohio's scheme so relevant-because Article I, section 4 "expressly gave [Congress] the right to" decide. In exercising its power, Congress might have passed a law creating the very identical Arizona IRC to do the districting within the state, and that would be completely permissible. If Congress could have enacted the IRC law itself (or incorporated it by reference into binding federal law shortly after the Arizona voters approved it), then why can't it simply approve any districting approach that satisfies whichever requirements, such as compliance with state law procedures, that Congress thinks are important? That is the key question Mr. Clement brief's never begins to address. And while one could make noises that even though Congress can do something itself in this realm it cannot prospectively authorize a state to do it instead, any such arguments are unlikely to be convincing, especially in light of the use to which Hildebrant put the statute.

Perhaps it is possible to read the federal statute as approving the use of the referendum, as in Hildebrant, but not the use of the initiative, as in the present case. But the text of the statutory phrase relied on by Hildebrant-"in the manner provided by the law" of a state-would not seem to permit such a distinction. Neither would the statute's legislative history (also relied on by the Hildebrant Court), which mentioned a desire to permit states to use both the initiative and the referendum in districting processes.

In the end, this congressional blessing, coupled with Congress's broad override powers in the Elections Clause, might be the easiest, and narrowest, ground on which to decide the case and reject the Arizona legislature's attack. There would then be no need to decide whether, in the absence of the federal statute, a state could cut an elected legislature out of the districting process or whether such an effort would be foreclosed by a strict reading of the word "legislature" in Article I, section 4.

 

January 5, 2015

Additional Thoughts (and Concerns) About the Low Bar Pass Rates in California and Elsewhere in 2014

Cross-posted from Justia's Verdict.

About a month ago I wrote an essay for this website commenting on the drop in bar passage rates in many states in the fall of 2014. I focused on the large national decrease in scores that test takers received on the so-called Multistate Bar Exam (MBE), a 190-question multiple-choice exam that accounts for much of the entire bar exam in most states, and on remarks made by Erica Moeser, who heads the organization that makes and scores the MBE (the National Committee of Bar Examiners or NCBE), to the effect that this year's takers were "less able." Much has happened since I wrote that essay: on November 25, about 80 law deans (I should note my dean at UC Davis was not among them) joined in a letter to Ms. Moeser requesting that "a thorough investigation of the administration and scoring of the July bar exam" be conducted, and that "the methodology and results of the investigation . . . be made fully transparent to all law school deans and state bar examiners" so that there might be "independent expert review" of the exam's "integrity and fairness"; on December 18, Ms. Moeser responded with a letter, and an attached essay from NCBE's quarterly magazine that provided additional analysis and data; and other states, including the largest state, California, have in recent weeks released details on bar passage within their jurisdictions. In the space below, I analyze some of these recent developments, with specific reference to what likely accounts for the large drop in MBE performance (and thus bar pass rates in many states) this year.

Ms. Moeser's Letter Defends the NCBE Against Implicit Criticism by Law Deans

I begin with Ms. Moeser's formal responses to the law deans. The tone of her letter suggests she feels a bit attacked by the deans (and her perception in this regard is probably understandable). She apologizes, sort of, for using the term "less able" in a way that might suggest anything other than the simple fact that the 2014 test takers did not do as well as did test takers the previous year. But even as she makes clear she did not intend to offend or distract by using that term, she seems to bristle at a term used by the deans in their letter: "integrity." Ms. Moeser appears to understand the deans' request for an examination of the "integrity and fairness of the July 2014" exam as questioning the honesty or professional qualifications of NCBE personnel. In reality, I suspect the deans used the word "integrity" in reference not to the personal or professional character of the test makers, but to the soundness of the July 2014 test itself. As we all try to get to the bottom of why test takers scored less well this year, it would be nice not to be overly burdened by linguistic sensitivities.

On the question of whether the 2014 exam was more difficult than usual, Ms. Moeser's letter reassures deans that NCBE has "reviewed and re-reviewed" every "aspect of [its] methodology and execution[,]" and that the July 2014 test has been examined multiple times and by different, independent psychometricians to guarantee that it was no more difficult than the 2013 test or previous tests. Ms. Moeser makes clear, however, that "the results of our studies will not be revealed publicly [because] [o]ur systems are proprietary, and security is essential." Her steadfast refusal to turn over specifics about NCBE's "equating" process (used to ensure that difficulty remains constant across test administrations) may not sit well with some of the deans who want outside experts to be able to verify NCBE is comparing tests properly. I can certainly understand that the NCBE does not want to make public the actual text of the questions it has used (and might continue to use) in order to equate the difficulty of one test administration with another, but perhaps NCBE could share more details about the way equating questions are selected, and on the precise statistical inferences that it draws based on taker performance on these equating items. Maybe there is no middle ground, but I would not be surprised if some deans persist in seeking more technical detail.

Ms. Moeser's Essay Contains Some Unhelpful Explanations

The magazine essay Ms. Moeser attaches to her letter provides additional context, and also includes data about LSAT scores for students at the 25th percentile of LSAT performance for each ABA-approved law school for the classes that entered in the fall of 2010, 2011, 2012 and 2013. (Data for fall 2014 became available just a few weeks ago and weren't included in Ms. Moeser's essay.) One the one hand, a number of points Ms. Moeser makes in her essay do not seem particularly relevant to understanding the dramatic aggregate drop in MBE scores in 2014 from 2013. For example, she points out that the Law School Admissions Council (LSAC) now asks schools to report the highest LSAT performance for each law student, rather than the average LSAT performance for each. This change made by LSAC might make it harder for a law school to compare and analyze its own bar exam performance over a long period of time, but since LSAC made this change before the class graduating in 2013 entered law school (in fall of 2010), the reporting policy would not seem relevant to comparing the bar performance of the class graduating in 2013 and the one graduating in 2014 (the latter of which saw the dramatic drop in bar performance).

Ms. Moeser also observes that some law schools accept more transfer applicants these days (perhaps in part because this is a way to keep a school's headcount and tuition dollars high without diluting the admissions credentials of the entering first-year class, since the characteristics of persons who transfer in as second-year students aren't included in those credentials). This phenomenon undoubtedly exists at some schools, and it may complicate a particular school's efforts to compare its current bar passage rates with those from an earlier era (when it didn't accept as many transfers), but this modern increase in transfers can't easily explain a national drop in MBE performance this year, since every student who transferred presumably would have taken the MBE whether s/he transferred or not. I suppose the transfer phenomenon might affect aggregate MBE performance if there were some "mismatch" effect (of the kind that Rick Sander has asserted, and that his critics reject, with respect to affirmative action) taking place when people transfer to schools for which they are not academically suited. But Ms. Moeser does not suggest this (or any other) theory for why an increase in transfers might affect aggregate bar performance, and I am unaware of any evidence of a transfer mismatch effect. Moreover, the number of transfers who graduated in 2014, while larger than in past years, wouldn't seem big enough to move the aggregate bar performance numbers very much this year even if there were such an effect.

Ms. Moeser's essay also posits that curricular changes in law school, ranging from an increase in ungraded externships and other experiential learning offerings, to fewer (or shorter) required black-letter courses, may be causing test takers to be less well-prepared for the bar exam. But any such curricular changes have been taking place gradually across the country, and unless there were some tipping point that was reached with respect to the class that graduated in 2014 compared to the class that graduated a year earlier, these changes would not likely contribute greatly to an abrupt and significant change in bar performance from one year to the next.

Ms. Moeser's Essay Also Contains Some Probably Fruitful Explanations

On the other hand, Ms. Moeser does adduce facts that tend to support her contention that the July 2014 MBE was no more difficult than earlier tests. First, she says that 2014 test takers performed worse on the very "equating items drawn from previous July test administrations" than did students from past years. Assuming the equating items are reasonably well chosen, weaker performance on those identical items would be indicative of a group that would perform more poorly on the test generally.

Second, she points out that the July 2014 test takers also performed more poorly relative to prior law graduates on the Multistate Professional Responsibility Examination (MPRE)-which most graduating 2014 students took earlier in 2014 or in 2013. Ms. Moeser's suggestion that recent score declines on the MPRE (which tests legal ethics in a multiple-choice format similar to the MBE's) can be seen as precursors to the 2014 MBE decline is interesting, and may bolster her conclusion that the MBE was properly equated and scored-provided that the MPRE has itself been properly equated and scored and that the MPRE and the MBE exams test similar skills.

Third, and probably most powerfully, she describes how many law schools, even as they have reduced entering class size, have enrolled lower LSAT performers, perhaps especially importantly at the 25th percentile of a law school's entering class. In addition to this, she points out that we know nothing about matriculants "below the 25th percentile . . . ; the tail of the curve leaves a lot of mystery, as the credentials of candidates so situated. . . and the degree of change [from previous years] are unknown." To be sure, this may be a group at many law schools that often struggles with bar passage, and a decline in the 25th percentile LSAT performance (and within that bottom of a school's LSAT quartiles) could explain lower bar pass rates at many schools.

If we look at the 25th percentile LSAT scores at all the nation's ABA-approved law schools for the classes that entered in 2010 (and took the bar in 2013) and the classes that entered in 2011 (and took the bar in 2014), we see that, on average, 25th percentile LSAT scores slipped by about half an LSAT point. Perhaps worse yet (because decreases in LSAT scores in the higher ranges of LSAT performance may have less importance to bar passage), the number of law schools whose 25th percentile LSAT performance was in the bottom half of LSAT scores nationwide (an LSAT score of 151 or below) grew from 62 schools for the class entering in 2010, to 71 schools for the class entering in 2011. And, as Ms. Moeser points out, the (unobserved) drop-off within the bottom LSAT quartile at many schools may be more ominous indeed.

Of course, as I said a month ago, weaker LSAT performance might be accompanied by higher college GPAs and other indicia of academic strength. And some schools suffering LSAT score drops might be shrinking in size quite dramatically, such that their effect on national bar pass rates might be lessened. So much more analysis is needed before the full picture is understood. But it appears that beginning with the class that entered law school in 2011, there has generally been some decrease in LSAT performance, and that such decrease may account for a good chunk (though likely not all) of this year's lower bar performance.

What Preliminary Analysis of California's Recently Released Data Suggests

The results released this week in California seem to be consistent with this account. Overall, it was a tough year for bar passage in the Golden State. One out of every three first-time takers from ABA-approved schools throughout the country failed the California bar exam. Among the particularly depressing facts is that first-time African American takers from ABA-approved law schools had a pass rate of only 42%. When we look at first-time takers from ABA-approved schools located in California (who often do better than takers from ABA-approved schools in other states), Latina/o takers suffered a big decline this year; whereas White and Asian first-time California ABA-school takers saw their pass rates drop about 5% as compared to 2013, Latina/o takers saw their pass rate drop over 10%, to just 59.5%. At least four well-established California schools--UC Hastings, University of San Francisco, Santa Clara and Southwestern--experienced first-time pass rates (of 68%, 61%, 60% and 54%, respectively) that were the lowest in 18 or more years. (The data I had went back only to 1997, so this year's performance might well be the worst in more than 20 years for these schools.)

And there does seem to be a correlation between declines at the 25th percentile LSAT score and lower bar pass rates among the California schools this year. Eleven schools saw their 25th percentile LSAT score drop between the class that entered in 2010 and the class that entered in 2011, and 9 of these schools saw their bar pass rates also drop. (One of the schools that saw its 25th percentile LSAT score go down but whose bar pass rate did not decline was USC, and its 25th percentile LSAT remained quite high-above 160-for the class entering in 2011.) The California school that saw the sharpest drop at the 25th percentile LSAT score in fall of 2011, UC Hastings, suffered, as I noted above, its worst bar pass rate in decades. And among the three schools in California whose 25th percentile LSAT scores increased in fall 2011 compared to the year before, two of those schools (UC Davis and UC Berkeley-both of whose 25th percentile LSATs were above 160 in 2011) saw their bar pass rates increase a bit (UC Davis from 85% in 2013 to 86% in 2014, and UC Berkeley from 85% in 2013 to 88% this year.) Only four schools statewide saw bar pass rates increase at all, and Berkeley's increase of 3% was the largest.

Obviously, as mentioned earlier, much more than a school's 25th percentile or median LSAT score goes into its bar pass rate, and year-to-year variations in bar passage are unavoidable at each school, even if student academic quality remains constantly high. There is likely no single factor that explains all of this year's bar performance decline. But Ms. Moeser's suggestion that we delve deeply into the admissions and academic support functions of law schools if we want to raise pass rates (as long as we have to live with a questionable device like the bar exam) is well worth heeding. And incoming admissions numbers do not bode well for bar pass rates for the next few years. In California, for example, the four schools I mentioned whose bar pass rates are at twenty-first century lows (UC Hastings, University of San Francisco, Santa Clara, and Southwestern) all have seen significant slippage at the 25th percentile in the last three years since the fall of 2011. And nationally, the number of schools whose 25th percentile LSAT score is below the national median score (i.e., 151 or below) grew again in the fall of 2012 (from 71 to 80), and yet again in the fall of 2013 (from 80 to 90), and likely grew again in 2014. Unless bar examiners across the country lower the threshold for passage (which in most states they insist they never do), or unless law schools find some new, highly effective academic success tools to help students do better on the bar--and find them very quickly--I fear that the difficult news about bar pass rates we experienced this fall will recur each year for the foreseeable future.

December 19, 2014

The Year in Constitutional Review: Our Top 5 Constitutional Developments of 2014 (And None of Them Is a Supreme Court Decision!)

Co-authored with Professor Alan Brownstein. Cross-posted from Justia's Verdict.

As 2014 draws to a close, we thought it appropriate to reflect on some of the most significant constitutional developments of the past year. Recognizing that any short-list requires difficult choices, we present our catalog of five noteworthy constitutional events or trends (in no specific order) below. Most interestingly, none of the five involves a particular 2014 ruling from the Supreme Court; instead, the list shows that other institutional actors (sometimes feeding off what the Court has done in the past and often acting completely independently from the Court) are crucial in giving meaning to the Constitution.

#1. President Obama's Announcement of Immigration Enforcement (or non-Enforcement) Priorities

One of the biggest constitutional changes over the last century has surely been the rise in power and prominence of the presidency. The President and his executive branch have grown in influence and stature for a number of reasons. One is the modern need (in a world of increasing economic complexity and international linkages) for the federal government to make decisions quickly, decisively, and based on specialized expertise (as in the Great Depression) and sometimes making use of information that cannot be made fully public (as in the War on Terror). Another is the fact that, although the electoral college is still part of our constitutional fabric, we have moved in the direction of popular election of the President, such that he garners far more votes nationwide than does any other elected official, and thus has a special claim to national electoral legitimacy-unlike that of even the Speaker of the House and the Senate Majority leader, the two elected leaders of Congress.

Many people embrace broadened Presidential authority, and many lament it. Some folks seem to have evolved in this regard. An example of such evolution might be Chief Justice John Roberts, who seemed to advocate for broad executive powers as a young government lawyer but who has recently bemoaned the fact that "the Framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities." But love it or hate it, broad executive discretion about whether and how to enforce laws is part of the federal constitutional landscape. And President Obama's recent announcement removing the threat of deportation for four million or so persons who entered or stayed in the United States in violation of immigration laws is a good example. Drawing on his key role in foreign affairs and law enforcement, and reminding the American people that he was reelected in part to manage the immigration problem (thus playing on both the reasons for presidential ascension mentioned above), Mr. Obama laid out his plans for how best to implement immigration laws in the near term. His announcement was a reminder of how, in the normal run of things, the President makes a lot of important decisions over which the Supreme Court may never have a say. (There have been lawsuits filed that test the President's actions here, and lower court judges are likely to express a range of opinions on the matter, but it remains unclear how the lower federal courts will ultimately adjudicate this issue and whether the Supreme Court will wade into this thicket.)

#2. The Events in Ferguson and NYC Regarding Police Actions Toward African American Men

A second set of events, involving local government rather than the federal government, raises important normative questions about race relations in the United States and public policy questions about the best way both to avoid these tragedies and to deal with them when they occur. We speak here, of course, of recent events in Ferguson, Missouri, and in New York City involving the killing of unarmed African Americans by police officers and the failure of grand juries to indict the officers involved. These police actions and grand jury decisions, like President Obama's immigration announcement, remind us of how powerful a device executive discretion is within our constitutional system.

But these episodes also remind us of another important constitutional theme. The 14th Amendment proclaims that "No State shall . . . deny to any person the equal protection of the laws." Surely, this provision requires the equal treatment of black and white Americans in the criminal justice system. If the equal protection of the laws means anything, it must mean that the use of force by police officers against persons alleged to violate the law cannot vary depending on the race of the perpetrator. Similarly, equal protection must require that prosecutors and grand juries ignore the race of both the police officer and the victim of the officer's conduct in determining whether the officer's use of force has violated the law.

Yet the Ferguson and New York City events reveal how little bite this constitutional guarantee has when the law gives government actors substantial, unguided discretion in performing their duties. Police officers have considerable discretion in determining whether and how much force should be used in the performance of their duties. Prosecutors have enormous discretion in deciding whether or not to bring charges to a grand jury and in determining how they will conduct the grand jury proceeding. Grand juries also have tremendous discretion. They can decide to indict a "ham sandwich," as the saying goes, or they can decide not to indict a police officer who has choked someone to death.

Because, in circumstances involving official discretion, it is often very difficult to determine the extent to which race influenced state action, the constitutional guarantee of equal protection has little ability to control such decision making. Perhaps the Constitution's primary and most effective role in these events is protecting the rights of individuals and groups to protest what they see as unsanctioned violations of the equal protection of the laws.

#3. Same-Sex Marriage in the Lower Courts

Equality was a theme not just in the Ferguson and New York controversies, but also in the treatment of same-sex marriage by the lower courts this year. Last year, in United States v. Windsor, the Supreme Court teed up but did not resolve the question of whether states were prohibited by the Fourteenth Amendment from treating same-sex marriages differently from opposite-sex marriages. And the lower federal courts have taken up that question in earnest ever since. Until the Sixth Circuit's decision to uphold same-sex marriage bans in four states this fall broke the momentum, same-sex marriage advocates had achieved an overwhelming number of lower court victories; four U.S. Courts of Appeals and over twenty federal district courts had struck down state laws discriminating against same-sex marriage. Indeed, until the Sixth Circuit's ruling by a divided three-judge panel in November, many commentators had concluded that the Supreme Court would not even take a marriage equality case anytime soon because the issue had essentially been resolved by the lower courts. Many of the lower court rulings took their cue from Windsor, of course, and now that the Sixth Circuit has created a split the Supreme Court will likely weigh in relatively soon-so no one is arguing the Supreme Court is irrelevant in this debate-but lower courts have definitely framed the issue and developed competing arguments in a way that makes it much harder for the Supreme Court to reject the right of same-sex couples to marry. For the marital equality movement, 2014 was the year of the lower courts.

# 4. Abortion Rights

The past year saw states continuing the recent trend of adopting and defending significant regulations of abortion services and access. The regulations vary in their content. Several states have enacted statutes (some of which are subject to lower court injunctions) that ban an abortion 20 weeks after fertilization occurs or at an even earlier time during the gestation period. Other regulations restrict the provision of medication used to induce an abortion. Other laws, responding to the new health care framework created by the Affordable Care Act, prohibit insurance offered through the Act's exchanges from covering abortions. Yet other laws regulate clinics that provide abortion services by requiring them to comply with the building, equipment, and staffing standards applicable to an ambulatory surgical center or a hospital. They also require physicians performing abortions to have admitting privileges at a local hospital. The lower courts are continually reviewing the constitutionality of many of these regulations, but it is (aggressive) state legislatures that are driving this issue right now.

Certainly, the need for greater clarity in this area of the law is obvious. Under the doctrine initially evolving from Roe v. Wade, the Court applied strict scrutiny review to pre-viability abortion regulations that ostensibly furthered some important state interest, such as promoting the health of the mother, but also increased the cost of abortions or otherwise limited access to providers. Under this rigorous standard of review, a state had to demonstrate that its regulations furthered a compelling state interest and that the state adopted the least restrictive means to further its objectives. This two- pronged approach required courts to balance the effectiveness of a state's regulations against the burden the law imposed on the right to have an abortion.

In Planned Parenthood v. Casey, however, the Court collapsed the two-pronged approach used in prior cases and adopted a unitary standard. All pre-viability abortion regulations are now constitutionally permissible as long as they do not have "the purpose or effect of imposing an undue burden on women seeking abortion." This standard focuses on the magnitude of the burden, the percentage of women seeking abortions who will experience that burden, and whether the regulation serves some purpose other than the goal of inhibiting access to abortion services. The Court's application of this standard to various regulations in the Casey case itself has mystified both constitutional law scholars and lower courts. The number and highly restrictive nature of new abortion regulations may require Supreme Court intervention and clarification of this standard in the near future.

#5. The 2014 Congressional Election

Although we have highlighted the way institutions other than the Supreme Court (e.g., the President, local governments, lower courts, state legislatures) have helped shape the meaning of the Constitution in 2014, we would never deny the centrality of the Court itself in constitutional interpretation. And yet we must remember that the Court is not a static institution, but rather one whose membership and decisions change over time. So our final candidate for important constitutional developments of the year is the congressional election in November that saw the Republicans gain solid control of the U.S. Senate. Because replacing departing Justices with new members is the single most important way the Constitution has been kept responsive to the values of the people, decisions by the American electorate about who shall be the President (and nominate new members to the Court) and who shall control the Senate (and decide whether to confirm presidential nominations) are quintessentially important constitutional events. Regardless of whether a Democrat or Republican wins the White House in 2016, Republican control of the Senate for the foreseeable future is likely to influence the kind of persons appointed to the (closely divided) Court in the coming years, which in turn is likely to affect how the Court rules in many controversial constitutional areas. It is fitting, even as it is sometimes overlooked, that We the People remain the most important institutional actors in giving content to our basic government charter.

December 9, 2014

How Federalism Cuts Against the Challengers in King v. Burwell: Part Two in a Two-Part Series

Cross-posted from Justia.

In Part One of this two-part series, I contended that the reading of the Obamacare statute offered by the plaintiffs in the important King v. Burwell case pending in front of the Supreme Court was problematic for reasons grounded in federalism. In particular, I argued that even if the plantiffs' reading-that Congress, by using the phrase "established by the State" in certain places in the Act, intended that citizens of states that did not set up exchanges would not be eligible for federal tax credit health insurance subsidies-reflected the best overall interpretation of the statute, such a reading could not be accepted because it fails the requirement that Congress speak in a "clear voice" if it wants to condition the receipt of federal moneys on things that participating states must do. In the space below, I discuss possible counterarguments to my thesis, and also explain why I believe the federalism perspective I discuss adds an important element to the federal government's position in the King case.

Should the Clear-Voice Requirement Apply When There Is Only One Condition?

Perhaps the most forceful counterargument to my thesis is that the "clear voice" requirement on which I rely should not apply when the alleged congressional spending condition in question is the only condition in the picture, as distinguished from the more common instances in which everyone agrees that Congress imposed some conditions on states for the receipt of federal funds, but the question is whether one or more additional conditions were stated clearly enough by Congress. Why should this difference arguably matter? Because when everyone agrees Congress has clearly imposed some conditions, and participating states have already satisfied those conditions, participating states can be said to have already done something for the federal government. If those states are then confronted with additional, arguably unclear requirements they must also satisfy, the terms of the bargain seem to be changed. Since the Supreme Court has observed, first in the seminal case of Pennhurst State School & Hospital v. Halderman, that "[l]egislation enacted pursuant to the spending power is much in the nature of a contract," when states take actions to satisfy some federal conditions, they could be said to have transferred "consideration" to the federal government (in the form of helping the federal government accomplish whatever policies are furthered by the conditions the states have met.) By contrast, if there is one and only one condition (and its clarity is in doubt), no states can be said to have given any consideration to the federal government in any respect.

But if the presence of consideration were necessary, a state faced with a statute that created a clear condition on federal funding alongside an arguable and in any event unclear condition would be unable, prior to the state's having done anything to satisfy the clear condition, to obtain a judicial declaration that the unclear condition is not valid on account of its lack of clarity. At most, a state could get a court to declare whether the unclear condition was in fact an actual condition. Yet I believe that a court in this situation would apply the "plain voice" requirement to free the state from having to satisfy any unclear conditions.

And remember too that the Court has said that conditional spending is "much in the nature" of a contract, not that it is a contract itself. And there is another doctrine, known as "promissory estoppel," that is "much in the nature" of a contract but that does not require consideration, and instead focuses on the reliance placed on a promise. Consider the following hypothetical. Congress promises a state $X of funding to be used for highway construction for each of the next three years. In Year Two, Congress's budget has provided for the expenditure, but now someone urges that there is the non-obvious requirement in the original statute that states that receive the funding raise their legal drinking age to 25. Could a state be allowed to object to this unforeseeable condition even though the state (up to this point) has not given the federal government anything beyond spending the federally disbursed money as directed? I think the answer is yes, because a state could have relied on the federal promise of funding in deciding how to budget its own state funds for roadwork. Or in deciding what roadway safety laws to enact or reject. And if this is true for road funding, the same would have to be true for money earmarked for healthcare. So if Congress promised three years' worth of federal funding to states for Medicaid (without requiring states to spend any matching funds during this period), and passed laws authorizing the federal expenditures, no one could try in Year Two to assert an unclear condition and apply it to the states, even if it were the only condition anyone had ever suggested was in the statute.

Now it is true, of course, that the states that accepted these (highway or healthcare) funds might not have actually relied on the federal promises when they built their own budgets or policies, and that these states would in fact be no worse off if an unclear condition were to be imposed after the statute was adopted than they would have been if the condition had been clearly expressed by Congress at the outset. But the same is true for the conditional spending mechanism struck down by the Court in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius, which I discussed extensively in Part One. When the Court there invalidated the Medicaid expansion provisions of Obamacare and said that states were not clearly on notice of the possibility of the conditions involved in the expansion when Congress first offered the states Medicaid money decades ago, the Court did not say, or even suggest, that had states actually been told way back when of a possible subsequent expansion that any states would have been likely to turn down the funding at the outset (even before the expansion condition was imposed). And, in fact, no one could suggest that states would have been likely to do that.

This tells us a couple of related things. First, the "clear voice" requirement is not about actual reliance, but rather even the mere hypothetical possibility of reliance on federal assertions. The "clear voice" requirement is a kind of a prophylaxis designed to avoid detrimental reliance before it occurs. And, like all prophylactic devices, it applies even to situations in which the evil to be avoided would not come to pass in any event. Second, and related, the "clear voice" requirement seems largely about showing respect for states by giving them all the information clearly up front to facilitate informed decision making, even if in the real world the decisions by states in such high stakes take-it-or-leave-it settings would not be likely to be affected much by additional clarity. In fact, this is precisely how the Court explained the "clear voice" requirement in Pennhurst, where the majority explicitly observed that "the crucial inquiry is not whether a state would knowingly [have acted differently if the condition had been clearly stated] but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice." In the context of Obamacare, if the setting up of a state exchange was in fact a condition for a state to receive federal tax credit subsidies, respect for states required Congress to say this "clearly [enough] that we can fairly say that the State could make an informed choice" about whether to set up an exchange or not.

Does It Matter Whether Federal Money Ever Enters State Coffers?

But what about the fact that the federal subsidies under Obamacare are going not necessarily into state coffers, but rather directly to the healthcare consumers? Does this feature automatically remove the case from the conditional spending doctrinal category? At least in the context of the King plaintiffs' reading of Obamacare, I think not. The key facts are that, under their reading, tax subsidies are available to individuals as citizens of a particular state qua citizens of that particular state, and subsidy eligibility turns on the actions of that person's particular state government to set up an exchange or not. To see the point, imagine that Medicaid moneys were given not to state governments (conditioned upon the states expending matching funds and doing other things), but instead were given to the individual citizen beneficiaries, but only in those states that had expended matching funds and satisfied other conditions. I think the "clear voice" requirement should still apply. It is true that an individual's eligibility for federal tax benefits can sometimes depend on the particularities of state law in the place of one's residence, and that perhaps not all such interrelatedness between federal and state law triggers the a "clear voice" requirement. But when Congress intends (as the King plaintiffs assert Congress did in Obamacare) to give a state the direct choice of doing something the federal government wants it to do, in return for which the federal government will provide billions of dollars' worth of federal subsidies targeted towards the eligible persons in that state, the state must be able to see that choice easily.

Nor is the situation altered by the fact that the federal subsidies may take the form of tax credits rather than moneys actually disbursed. In fact, the federal government may advance money to Obamacare subsidy beneficiaries (in the form of payments to health care insurers) prior to an individual filing her federal tax return, but even if that were not the case, there should be no difference between a credit and a dollar disbursement; both kinds of programs are enacted pursuant to Congress's power to "tax" and to "spend" for the "general welfare," and are thus laws "enacted pursuant to the spending power," to use the Court's phrase. Indeed, go back to Medicaid. If, instead of affirmatively doling out money to states conditioned upon their doing certain things, Congress credited states (that satisfied certain conditions) with respect to fees or payments those states otherwise owed the federal government, the "clear voice" requirement would surely apply as to the conditions that would generate the credits. (It is true that the Court under the Establishment Clause of the First Amendment has distinguished tax credits from expenditures, but its reasoning there was limited to certain peculiarities of Establishment Clause jurisprudence.)

Does The Federalism Argument Add Much to Other Arguments Already in the Case?

Finally, I think it important to reflect on why this federalism "clear voice" requirement could prove especially important in the King case. For starters, this is an argument that was not really addressed by the two judges of the D.C. Circuit who (last summer) ruled in favor of the reading of Obamacare advanced by the King plaintiffs, so we don't know whether judges who are otherwise inclined to agree with the King plaintiffs would be unpersuaded by the "clear voice" line of argument. Indeed, even the Fourth Circuit that rejected the King plaintiffs' reading did not rule on this argument (though a form of this argument was made in the State of Virginia's amicus brief), so if observers believe (as many do) the Supreme Court's grant of review in King means that there are at least four Justices who were unpersuaded by the Fourth Circuit ruling, having an argument that was not addressed in the Fourth Circuit opinion is a good thing for the federal government.

The Fourth Circuit did rely on a related, but importantly different, kind of requirement of statutory unambiguity-the so-called Chevron doctrine (named after the 1984 Chevron, USA, Inc. v. Natural Resources Defense Council case)-under which federal courts defer to an administrative agency's interpretation of an ambiguous statutory term, so long as the administrative interpretation is reasonable. But there are many reasons why one could reject Chevron deference in King and yet apply the "clear voice" requirement of Pennhurst. First, and most technically, Chevron deference applies only if Congress can be said to have delegated to the agency in question (here, the IRS) the authority to interpret the relevant provisions in the statute. Different Justices seem to require different levels of clarity in that initial delegation, and the 2013 Arlington v. FCC case (about which I wrote a Justia column) exposed unlikely rifts between ordinarily like-minded Justices on just how far Chevron should be extended. In particular, Chief Justice Roberts, joined by Justices Kennedy and Alito, declined to read Chevron broadly, largely because of fears that the federal executive had become too powerful and that giving federal agencies broad interpretive authority is particularly dangerous. In the context of Obamacare, there may be disputes about whether the Chevron framework should be applicable.

Second, even if the Chevron doctrine governs, under it federal courts must give effect to the "unambiguously expressed intent of Congress"; deference to the agency comes into play only after it is determined that Congress has not expressed such an unambiguous intent. Now it may seem that "unambiguous intent," and "clear voice" capture the same idea, but I don't think that the two concepts in these two settings are identical. In other words, it is possible to say that Congress's intent was expressed unambiguously such that Chevron deference doesn't apply, and yet still say that Congress hasn't spoken in a sufficiently clear voice to satisfy the Pennhurst standard. In particular, many courts (including the Supreme Court) have used legislative history behind a statute, and also the way a statutory term may have been used in earlier statutes, to determine whether Congress's intent with respect a particular statute was expressed unambiguously for Chevron purposes. But I can't see how those extra-statutory sources could be used to decide whether Congress has spoken in a "clear voice" to put states on adequate notice in the conditional spending realm. On top of that, a provision whose meaning takes too much work for states to discern, even within the four corners of a single convoluted statute, might not be expressed by Congress in a "clear voice," even if in the end Congress's will is discernable to a high degree of confidence.

Relatedly, and more generally, Chevron is about separation of powers-the relationship between Congress, the federal judiciary and the federal executive. That is why the initial inquiry under Chevron is how much Congress delegated to the federal agency and how certain we can be about "the intent of Congress." By contrast, the "clear voice" rule is about federalism-the relationship between the federal government and state governments. That is why, in conditional spending cases, the Court says that "[w]e must view [a federal statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [federal] funds. . . . " In conditional spending settings, we care less about how firm we are in our conviction of what Congress wanted, and more about what states would have necessarily understood.

Federalism and separation of powers push different buttons for folks. On and off the Court, many observers today seem to be (legitimately or not) concerned about broad assertions of federal executive authority. Recall that Chief Justice Roberts and Justices Kennedy and Alito have recently (in the Arlington case) expressed qualms about the breadth of Chevron precisely because they fear federal executive power. Chief Justice Roberts wrote that administrative agencies today "as a practical matter . . . exercise legislative power, . . . executive power . . . and judicial power. . ." and that the "accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan [, but rather] a central feature of modern American government." These Justices (and it's hard to imagine the federal government prevailing in King without winning over at least one of them) may be more receptive (as all three were in the Medicaid expansion setting in 2012) to arguments that are grounded in the distinctive respect owed states, and the Simon-says-like rules we should employ to make sure states aren't duped or misled into making decisions without being able to be aware of the consequences.

December 5, 2014

Why the Federalism Teachings from the 2012 Obamacare Case Weaken the Challengers’ Case in King v. Burwell

Cross-posted from Justia.

In an essay for Justia a few weeks ago, my fellow columnist and friend Mike Dorf wrote about how the Obamacare statute (Act) might be in danger in the King v. Burwell case pending at the Supreme Court today because of things various Justices felt and said in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius (National Federation). Mike focused particularly on the views expressed by four dissenting Justices in 2012 that the so-called individual mandate exceeded Congress's powers and that the whole Obamacare statute was constitutionally invalid. I agree with Mike that the National Federation case is very relevant to the current dispute, but I see important ways in which Obamacare is less vulnerable, rather than more vulnerable, to the statutory challenge brought today because of what was said and done at the Court two years ago.

Background on the King v. Burwell and National Federation Cases

As Mike ably explained, the King v. Burwell lawsuit currently in front of the Justices asks whether a provision in the Obamacare law that permits federal tax credits to be given to qualified persons who purchase health insurance on an exchange "established by the State" also permits tax credits for individuals who purchase insurance on the so-called federal exchange that was set up (pursuant to the Act's provisions) by the federal government in those states that chose not to set up exchanges themselves. According to the plaintiffs in King, federal tax credits are not available under the Act to citizens of states that did not set up Obamacare exchanges, because Congress wanted tax-credit eligibility to operate as an incentive for states to set up exchanges so that the federal government wouldn't have to undertake the work.

Although the question is one of statutory construction, rather than constitutional authority, it has momentous implications; if federal tax credit subsidies are not available on the federal exchange, then a great many uninsured folks will remain uncovered, and a great many healthy individuals will be left out of the insurance market pools that experts say must be large and robust for Obamacare to work.

The question in King primarily comes down to the statutory meaning of the term "established by the State," in the context of a large and complicated statute that uses this and similar terms in many different places, and that also directs the federal government, in those states that decline to erect exchanges, to set up "such" exchanges itself. I agree with Mike that the best reading of the complicated, interlocking statute-as a whole and in light of sensible canons of statutory construction-indicates that subsidies are available on federal exchanges, and that at the very least the Obama Administration is reasonable in embracing and acting on such an interpretation.

As Mike points out, however, Obamacare has many detractors, both on and off the courts, and some Justices may be looking for ways to avoid giving workable effect to the ambitious statute. Specifically, Mike analyzes the possibility that the four Justices who dissented in the 2012 National Federation case (Justices Scalia, Kennedy, Thomas, and Alito) might, notwithstanding the principle of stare decisis, stick to their 2012 stance-that the individual mandate runs afoul of the Tenth Amendment and the whole statute must be jettisoned-and continue to reject any application of Obamacare.

The scenario Mike posits is certainly plausible; stare decisis principles are pretty malleable and seem to be frequently ignored by many if not all of the Justices (albeit in different cases) in disputes involving the Tenth Amendment and other constitutional questions. Nonetheless, I am more sanguine than Mike about whether the four 2012 dissenters will brush aside stare decisis cautions and use their 2012 views to block Obamacare today, for two reasons.

First, a crucial bloc of the Supreme Court (with Justice Kennedy being a key member) in the famous 1992 Planned Parenthood v. Casey case involving the continuing vitality of Roe v. Wade, observed that when the Court, in the absence of "the most compelling reason," overrules a "watershed" decision "under [political] fire," it runs the risk of "subvert[ing] the Court's own legitimacy beyond any serious question." The National Federation ruling was a "watershed" moment for the Court, Obamacare remains "under [heavy] fire," and a Supreme Court U-turn on Congress's power to enact the law could be understood by many as a concession to the political pressure. Indeed, any 5-4 ruling next summer gutting Obamacare would no doubt be viewed by a wide swath of Americans first and foremost as a Republican-appointed Supreme Court doing the bidding for Republicans who don't have the votes in Congress to repeal the divisive law.

Interestingly, this "don't overrule under fire because to do so will damage institutional legitimacy" argument has more force here than it did even in Casey, because Roe itself was a decision that many analysts believed had the effect of undermining the Court's legitimacy-insofar as Justice Blackmun's majority opinion in Roe wasn't tightly grounded in distinctively constitutional arguments-so that leaving Roe intact was not without legitimacy costs. Whatever one thinks of the National Federation ruling upholding Congress's power to enact Obamacare, that ruling-because it deferred to rather than overrode the elected branches-has not opened the Court to the same kind of charge of sitting as an "unelected super-legislature" that Roe has.

My second reason for thinking the National Federation dissenters may have a somewhat tough time relying on their 2012 stance has to do with technical differences in stare decisis between constitutional interpretation cases and statutory construction decisions. Stare decisis is a rather flexible constraint in constitutional matters, whereas the Court has made clear that the bar for overruling a past decision that was construing a federal statute is particularly high (presumably because Congress can fix erroneous judicial constructions of statutes more easily than it can correct wrong-headed readings of the Constitution). As Mike pointed out, in the National Federation case, the dissenters thought that the mandate was unconstitutional, and "also thought that the entire law had to fall with the mandate." That latter question-known in the business as "severability"-turned on how interlinked all the parts of the Act were, and whether any of the law could stand if the "pillar" (as the dissenters called it) of the mandate were invalidated.

The question of interrelationship between the various parts of Obamacare is ultimately a question of how best to read the statute and Congress's intent. Five Justices in 2012 rejected the dissenters' "pillar" reading, and although these five didn't speak explicitly to the relationship between individual mandate in particular and the rest of the law, the majority certainly read the interrelatedness of the overall statute and Congress's intent differently from how the joint dissenters did. So even if the four 2012 dissenters felt unbound by the National Federation Court's ruling on whether the mandate exceeds federal authority, they would also (in order to block Obamacare because of the mandate today) have to explain why they should not obey the 2012 majority's statutory interpretation on the question of severability. It would not be impossible for the 2012 dissenters to make some arguments here, but such arguments might look result-oriented when they minimize the effect of statutory stare decisis, ordinarily an uncontroversial topic.

How the National Federation Case Bolsters Obamacare Against the Current Challengers

There is another aspect of the National Federation case, an aspect on which seven Justices (including the joint dissenters) agreed, that bolsters rather than weakens Obamacare against its current challengers. I refer here to the Medicaid expansion part of the 2012 decision, in particular the Court's holding that Congress could not "surprise[e]" states by enforcing terms of a Medicaid bargain that were not "unambiguously" declared when the Medicaid deal was offered to states decades ago. Because the statutory provision entitling Congress to make alterations or amendments to Medicaid could "reasonably" be "assume[d]" by states to mean that Congress can make "adjustments" but not "transform[ations], states were protected against substantial retroactive conditions Congress sought to attach.

National Federation is just the latest in a line of case in which the Court has noted that "legislation enacted pursuant to the spending power [when the federal government is offering money to states to promote the general welfare] is much in the nature of a contract," and that the legitimacy of deals offered to states:

rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly. . .

The theory behind this requirement that Congress speak "unambiguously" and with a "clear voice" seems pretty straightforward (even though the Court has not spent a lot of ink elaborating it): Because states are worthy of special respect as important partners in our federal system, we want to minimize the risk that states accept or forgo federal moneys without an accurate sense of the consequences of their actions.

How does this play out in King? Well, even if the challengers are correct that the best reading of the phrase "established by the State," in the context of a complicated 900-page statute, means that Congress did not intend for citizens of states that did not set up exchanges to be able to obtain the tax credits, it's hard to believe that the statute puts states on clear notice of that consequence. The statute never explicitly says (in so many words) that a state that does not set up an exchange gives up tax credits for its residents. And this Congressional message-if it be a message-seems not to have been effectively communicated. After all, various judges in the D.C. and Fourth Circuits don't read the statute the way the King challengers do. The I.R.S. hasn't read the statute the way the challengers do. One of the architects of the challenge (who was presumably familiar with the big aspects of the law shortly after its enactment) is reported to have said he was "surprised" when he discovered the reading that he now embraces. Key members of Congress did not publicly communicate the reading of the statute the challengers assert at the time of enactment. I am aware of no journalist who offered that interpretation of the statute at the time it was passed and presented to the states.

And, most importantly, states do not seem to have said or done things that suggest they actually understood the statute the way the challengers do, at the time decisions were made about whether to set up an exchange in each state. (If there are states that took actions indicating they understood "the deal," such actions should be highlighted.) The absence of state conduct suggesting awareness is particularly powerful, because as to the Medicaid expansion provisions that were litigated in National Federation, governors in states that declined the expansion did feel obligated to defend to their voters the decision to turn down federal money. No such explanations seem to have been offered by governors or legislators in states that decided not to set up exchanges about why turning down federal money was the right thing to do notwithstanding the cost. And one would certainly expect a lot of explanation if states understood they were giving up tax credits for their citizens.

Even the joint dissenters in National Federation, in describing the way exchanges would work, seemed not to see the deal the King plaintiffs say Congress offered. The dissenters observed that, in order to accomplish its statutory goal of near-universal coverage, "Congress provided a backup scheme" for those states that did not set up exchanges: "If a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State." The implication in this passage is that the Federal Government's exchange would operate, as regards the goal of making insurance coverage more available, just as a state-established exchange would.

It is of course possible that the statute is "unambiguous" and "clear" in offering the deal the challengers assert, and that most everyone simply missed that clarity for months leading up to and following from the law's enactment. That judges and Justices, and journalists, and law professors, and members of Congress, and governors and state legislators all failed to see this plain aspect of the statute does not mean that it is not there. To the extent that the Court's doctrine does not require actual, subjective knowledge by states (a true meeting of the minds) as to what is expected of them, but rather only an easy ability to ascertain what the expectations are (a question Supreme Court cases don't fully answer, as far as I am aware), then the fact that many reasonable people didn't notice something doesn't mean there wasn't notice.

But even if the test focuses only on objective clarity -a plain statement of the contract terms so that states can know what they are getting into or turning down-it's hard to see how the challengers' reading of Obamacare can prevail. Can anyone really credibly argue that states were put on more clear notice of the loss of tax-credits by the use of the term "established by the State" alongside the federal power to create "such" exchanges in the context of an interlocking and convoluted statute than they were that Congress might make major changes to future Medicaid eligibility when Congress explicitly reserved for itself the power to "alter, amend or repeal any provision" of the Medicaid program (the term at issue in National Federation)? The challengers' reading of the statute (even assuming it is the best overall reading) is clearly visible only in the way Waldo's whereabouts are plain and clear after your child circles him with a highlighter on the page for you. If the deal Congress offered to states (according to the Obamacare challengers) was clearly presented in the statute, then we will have effectively overruled the "clear voice" requirement altogether, which is something a Court that is supposed to care about federalism should be loath to do.

In Part Two of this series, to be posted next, I take up counterarguments and additional questions raised by this federalism defense of federal exchange tax credits, including: (1) Why this federalism argument might be particularly important; (2) Why this federalism argument doesn't involve the same inquiry as so-called Chevron deference to administrative agency interpretation; and (3) Why federal tax credits to individual state citizens should be treated the same, for these purposes, as federal moneys given over to state coffers.

October 24, 2014

Whether and Why Delegations of Government Power to Private Actors Are Problematic

Cross-posted from Justia's Verdict.

Among the interesting U.S. Supreme Court cases this fall is U.S. Department of Transportation v. Association of American Railroads, to be argued in about a month, involving the so-called "nondelegation" doctrine - the idea that Congress cannot lawfully delegate or cede legislative powers to other institutions or actors. If the Court ends up relying on some form of a nondelegation principle in striking down the federal statute at issue, the case would break important new ground.

Background on the Nondelegation Concept

The nondelegation idea gets fought over most often in the context of statutes that confers very broad-arguably overly broad-power to the executive branch. As I and other scholars have written, under the Necessary and Proper Clause of the Constitution, each constitutionally granted congressional power "implies a power to create authority under it sufficient to effect its purposes." But for over 150 years, the Court's decisions have been sprinkled with categorical statements that Congress may not relinquish any of its powers to enact legislation through grants to federal administrators. The first Justice Harlan's statement of this nondelegation doctrine in Field v. Clark is typical: "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."

The Supreme Court has twice struck down federal legislation as having improperly delegated legislative power to the President, but both of these cases are more than 70 years old, and came from a Court that was known for its systematically ungenerous attitude towards congressional legislation. Since 1935, the Court has not invalidated a single congressional delegation of legislative authority to an administrative agency or the President, even though many grants of authority that have been upheld are arguably broader than those struck down in 1935. In 1974, when Justice William Douglas's majority opinion in one case construed the fee-setting authority of a federal agency narrowly so as to avoid nondelegation problems, Justice Thurgood Marshall wrote:

The notion that the Constitution confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930's, has been virtually abandoned by the Court for all practical purposes . . . The doctrine is surely as moribund as the substantive due process approach of the same era-for which the Court is fond of writing an obituary - if not more so.

The explanation for this judicial hesitance to intervene is easy to see: almost all laws create some significant enforcement discretion in the executive branch, and drawing a principled line between allowable standard-guided authorizations of executive power, on the one hand, and impermissible standardless delegations to the executive branch, on the other, is well-nigh impossible for courts to do. As a result, the Court simply said that Congress must lay down some "intelligible principle" by which the executive branch can determine how to enforce a law, and it has found every law that has come before it to have at least one such "intelligible principle."

The Railroad Case Currently Before the Court

The case pending before the Justices involves a related, but arguably distinct, kind of nondelegation problem: delegation of lawmaking power by Congress to a private actor. Although the facts of the case are complex, in basic terms the statute under challenge works as follows: The Federal Railroad Administration (FRA), a federal agency that regulates railroads, is directed to work with Amtrak-a complicated hybrid entity that partakes of some private characteristics and some public features-to come up with some performance standards for Amtrak. If Amtrak falls too far short of meeting these standards, another federal agency is directed to investigate whether other railroads-whose rail lines are used by Amtrak-are not giving Amtrak sufficient access to the railways to permit Amtrak to perform better. So far, so good. The potential problem? If the FRA and Amtrak can't agree on performance standards to be adopted, the FRA doesn't have the power to override Amtrak's resistance. Amtrak, in effect, has at least a temporary veto over the FRA's proposals. In cases of such impasse, the FRA is limited to submitting the matter to an arbitrator, who then gets to decide which standards to adopt. And the statute by its terms doesn't make clear whether the arbitrator must be a public official or institution, as opposed to a private actor.

Based on this statutory scheme, non-Amtrak railroads brought a challenge alleging that the statute gives private-sector entities (Amtrak and the arbitrator) a right to veto and determine the content of regulation of the railroad industry, including regulation of Amtrak's competitors. Conferral of this power, the challengers argued, constitutes an impermissible delegation of federal lawmaking powers to private parties. The U.S. Court of Appeals for the D.C. Circuit agreed, calling the statute "legislative delegation in it most obnoxious form," and observing that delegations to private actors create difficulties that "are even more prevalent" than those raised by delegations to the executive branch. Indeed, the D.C. Circuit observed that "even an intelligible principle cannot rescue a statute empowering private parties to wield regulatory authority."

Resolving the Case Without Breaking New Nondelegation Ground

The Court may (indeed should) be able to dispose of this case without engaging a fundamental inquiry into the nondelegation doctrine as it applies to private actors. The Court could easily find Amtrak to be a public entity, in which case, at worst, the statute confers power in multiple federal executive agencies rather than to private entities, and (under the intelligible principle idea) the government would win.

The Court could also reasonably hold that the performance standards at issue here do not constitute lawmaking or regulation in any meaningful sense, since they are used-at most-to initiate investigations into whether non-Amtrak railroads have been violating federal law; the performance standards do not themselves apply to any other railroads. And quite often federal investigation of wrongdoing is triggered by private actors, so Amtrak's role in devising standards that are used to help decide whether investigation of potential illegality is warranted should be unproblematic.

Or the Court might hold the outside arbitrator who resolves disputes between Amtrak and the FRA must be another federal governmental entity, such that private actors (even if Amtrak is deemed a private entity) do not in fact control or have a veto over the formulation of the standards. And many earlier cases make clear that mere involvement or input by private parties in the regulatory process does not, absent a private-party veto over proposed regulation, create delegation problems. Indeed, if the Court thinks a nondelegation problem were otherwise created by Amtrak's role in the standard-setting process, and that the inclusion of a government arbitrator as a tiebreaker between Amtrak and the FRA would solve the problem, the Court would almost have to read the (ambiguous) statutory references to the arbitrator to mean government arbitrator, because the Court is ordinarily supposed to read ambiguous statutes so as to avoid, rather than create, constitutional questions.

But should the Court, for one reason or another, reach the core of the nondelegation claim, it will have to decide whether the D.C. Circuit is correct that alleged delegations to private parties cannot be cured by intelligible principles, and that such delegations constitute the most serious offense to the nondelegation norm. On these big questions, I am not at all sure the D.C. Circuit got it completely right. To see why, we must first look at where the nondelegation doctrine comes from. (Interested readers can consult earlier and more elaborate work I've published in the Vanderbilt Law Review, on which some of the ideas explained below are built.)

Background on the Nondelegation Idea Itself

The nondelegation doctrine is said to have both textual and theoretical underpinnings. Textually, Article I, Section 1 of the Constitution provides that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives" (emphasis added). The theoretical justifications of the nondelegation doctrine stem from, as Professor Laurence Tribe has observed, "implicit constitutional requirements of consensual government under law." As Tribe has explained, American political theory finds legitimacy of government in the "supposed consent of the governed." This notion of consent presupposes the possibility of tracing governmental exercise of power to a choice made by a "representative" branch that is "politically and legally responsible" to the People. Thus, the valid exercise of a congressionally created power depends upon the prior "adoption of a declared policy by Congress and its definition of the circumstances in which its command is to be effective . . . ."

Both the textual and theoretical justifications for a nondelegation principle are open to question. First, it is not clear why the term "vested" in Article I means nondelegable. After all, Article II provides that "[t]he executive Power shall be vested in a President of the United States of America," yet no one doubts that the President may transfer executive authority to his underlings in the Executive Branch. Moving from text to theory, why does the "traceability" requirement foreclose delegation? Why can't we "trace" congressional delegations to the President back to Congress and hold it accountable accordingly? After all, as I just observed, the President delegates executive authority to unelected underlings, and yet we seem to believe that his accountability suffices under American democratic theory. Nor did "accountability" prohibit the People of the United States from delegating some of their sovereign power of self-determination to the federal government by ratifying the Constitution. The fact that the People have given temporary authority to federal institutions to govern on their behalf does not, under American democratic theory, mean that sovereignty has been "divested" from the People and permissibly delegated to the government.

Some might respond to my analogies by pointing out that the People are free to reclaim the power they have given to federal institutions through constitutional amendment, and that the President is free to reclaim authority he has given to his underlings at will. This is all true enough, but it suggests that delegations of power are not problematic per se, but that what might be driving at least part of the nondelegation concern is the ability (or inability) to reclaim power once delegated. This possibility is supported by seminal work done at the beginning of last century by Professors Patrick W. Duff and Horace E. Whiteside. These scholars attempted to uncover the origins of the Latin nondelegation maxim, "delegata potestas non potest delegari," which most people understand to mean "delegated power may not be redelegated." Their groundbreaking historical research established that the earliest forms of the common law agency nondelegation maxim-thought by many to explain much of the American constitutional nondelegation concern-were phrased somewhat differently: Delegated authority cannot "be so delegated, that the primary (or regulating) power does not remain with the King himself" (emphasis added). As Professors Duff and Whiteside conclude, the concern is that the "King's power not be diminished by its delegation to others." This reformulation focuses attention on one key aspect of the delegation problem: that delegation is more problematic when it is harder to reclaim.

This perspective would suggest that delegations to private actors are in some ways less problematic than delegations to the President. When Congress tries to reclaim delegations to the President, the President (who might be enjoying the delegation) can attempt to veto the proposed repeal law, requiring a supermajority of both houses to overcome. By contrast, if Congress doesn't like the way Amtrak (if Amtrak be a private entity) is obstructing federal regulation, it can amend the statute to dilute or eliminate Amtrak's involvement. And unlike the executive branch headed by the President, Amtrak (notwithstanding its political clout) cannot formally veto a subsequent reclamation attempt by Congress.

There are, of course, some ways in which delegations to private actors raise distinct constitutional problems that must be taken into account. Private actors (unlike the executive branch) have virtually no public accountability, and Congress may be too busy to address their misdeeds by repealing legislation. Moreover, and related, regulation in the hands of private actors often raises profound conflict-of-interest and anti-competition problems, with some market participants improperly empowered to make rules governing competitors. But these problems can be addressed without resort to the nondelegation problem; if private actors are wielding government power in ways that are unfair to other private actors, the Due Process and Equal Protection Clauses of the Constitution are the appropriate vehicles. Why might, say, due process be better than the nondelegation doctrine for these purposes?

One reason is that states have nondelegation doctrines that often mirror the federal approach. Indeed, state constitutions usually have the same kind of text (e.g., all legislative power is vested in a legislature and all executive power is vested in a governor) and theory as the federal Constitution, giving rise to doctrine substantially similar to federal law. When we think about application of nondelegation ideas at the state level, we see that due process review, which invokes an explicit balancing of interests, is the right kind of contextual approach to discern problematic delegations (such as giving General Motors a right to regulate car safety standards for its competitors, to use one of the D.C. Circuit's examples) from unproblematic delegations (such as a minister being empowered to facilitate a civil marriage). (Indeed, even if the Amtrak case really does involve delegation to a private party, it is not clear to me that such a delegation raises major conflict-of-interest or anti-competition concerns - those questions would have to be looked at more carefully.) If we use an uncompromising nondelegation doctrine instead of due process, the system would lack the flexibility to distinguish true problems-where delegation creates harm to the interests of third-parties-from formalistic ones-where regulatory or implementation power may technically be performed by private actors, but in settings where such privatization does no real harm.

So I hope that, whatever the Court does in the Amtrak case, the Justices do not embrace an overly broad rejection of all delegations to private actors. And if the Court has problems with the empowerment of Amtrak, I hope the Justices explain how Amtrak's involvement is unfair to other participants, and that they limit their holding to those kinds of situations.

 

October 10, 2014

The Supreme Court to Consider When Threats Can Be Punished Consistent with the First Amendment

Co-authored by Professors Vikram Amar and Alan Brownstein. Cross-posted from Justia's Verdict.

'Tis the season to begin looking carefully at the Supreme Court's 2014-2015 docket, now that the Justices have returned from their summer recess and are hearing cases again. One interesting case to be argued in a couple of months, Elonis v. United States, raises questions about how courts should define so-called "true threats" that fall outside First Amendment protection and thus are subject to punishment. Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons, and his convictions were upheld by the U.S. Court of Appeals for the Third Circuit.

Background Facts of the Dispute

Mr. Elonis allegedly posted threats on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis wrote:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?"

In posts about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . "

Throughout his prosecution, Elonis has challenged the definition of a threat to be used by the jury, namely, that "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argues under the First Amendment (and also under the federal criminal statute he is charged with violating) that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. Elonis does not (and could not) argue that the government must prove a defendant intended to carry out the threat, but he does assert that the government must prove that he intended to place the victim in fear of bodily harm or death.

The Third Circuit (along with a large number of other circuits) rejected this kind of subjective intent requirement. Instead, it held that statements that are reasonably construed as threats by the listener can be punished under the First Amendment. Conversely, the Ninth Circuit (and a number of state high courts) has required the subjective intent to threaten as a predicate to a prosecution for threatening speech. The courts that do require subjective intent often rely on the Supreme Court's 2003 ruling in Virginia v. Black, where the Court upheld the major portions of a Virginia statute making intimidating cross burning illegal. While the Court upheld the ban on threats expressed through cross burning, however, it also struck down a part of the Virginia law that made burning a cross itself prima facie proof of intimidation and relieved the state of having to offer any other evidence as to the meaning of the accused's symbolic expression. In reaching its decision, the Court observed that "'true threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals . . . [whether or not] the speaker . . . actually intended to carry out the threat." The Court noted that prohibitions on threats protect individuals from the fear of violence and the disruption that fear creates, and not just from the likelihood of actual violence. The Court also observed that "intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person . . . with the intent of placing the victim in fear. . . ." Many of the arguments in Elonis focus on what this language from Black means.

The Issues Elonis Presents

Initially, we offer some relatively modest observations about First Amendment doctrine and Supreme Court practice illustrated by Elonis. First, this is a less-than-ideal vehicle to decide whether intent to threaten is statutorily or constitutionally required, since a reasonable jury might easily conclude that the evidence against Elonis establishes such intent in this case in any event. In other words, if Mr. Elonis wins at the Supreme Court, and the case is sent back for a new trial, a new instruction would be given to the jury but a conviction seems likely in any case. Certainly, the Court can (and will likely) reach the merits in Elonis if it wants to, but this is arguably not the best case for resolving the constitutional issue in dispute.

Second, the Court might avoid the constitutional question by reading a subjective intent requirement into the federal statute. If it does so, then it would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)

Third, notice that much of the debate in this case revolves not around core First Amendment principles, but rather what the Court meant in Virginia v. Black. The Third Circuit's reading of the words in Black certainly seems plausible; the Court's description of "intimidation" as including the intent to instill fear could, as the Third Circuit held, refer to a subset of true threats, rather than a definition of the entire category of true threats. And we think the Ninth Circuit misreads Black to the extent that the Ninth Circuit believes that the Court's result in Black necessarily implies the existence of a subjective intent requirement. Whether or not there is a subjective intent requirement, the Virginia statute that made cross burning prima facie evidence of a threat would be constitutionally problematic because it would relieve the government of having to show, in a case where the defendant exercised his right not to present a defense, that a particular cross burning was, in context, something a reasonable person would perceive as threatening (which is certainly true of many but not all cross burnings).

But more generally, we are not sure the Court in Black was offering a general answer to the question of whether subjective intent in a necessary element the government must prove to convict someone for expressing a true threat. Indeed, we think that assigning so much weight to the precise words Justice O'Connor used in her Black opinion misses the forest for the trees. Determining whether subjective intent is a constitutional prerequisite to punishing a speaker for expressing a true threat is an issue the Court needs to discuss and evaluate on its own terms, not as a derivative discussion of the meaning of ambiguous language in a case where the question was never explicitly raised and thus may not have been on the minds of the Justices whose language is being parsed.

Comparing Threats to Other Types of (Potentially) Harmful Speech

Our fourth, larger point goes to the heart of the matter. If subjective intent is required to hold a person liable under a threat statute when a reasonable person would understand the accused's expression to constitute a serious threat, the speaker who places a victim in fear of bodily harm or death will escape sanction when the government cannot prove beyond a reasonable doubt that the speaker intended to instill fear. But the First Amendment does not give speakers a right to cause, whether intentionally or not, this kind of fear and apprehension. The key free speech issue raised by this case is: When does the First Amendment prevent government from protecting people from speech that undeniably causes real harm because government action jeopardizes other important free speech interests?

We think the best way to analyze this question is to compare the treatment of threats with the treatment of other kinds of potentially harmful speech, such as incitement, defamation, and offensive speech. Threats are proscribed not just because they might lead to action, but because they inflict injury in themselves. Unlike, say, incitement, where the evil to be regulated is the possibility that a listener may be influenced to act on the speaker's words, threats wound by their very utterance. In this respect, laws banning threats are more akin to laws sanctioning defamatory speech. In providing civil sanctions for defamation, at least as to private figure victims, no subjective intent is required before government can regulate such expression, whereas in the former setting (of incitement), the First Amendment does seem to require intent to incite before punishment can be imposed. What accounts for this difference in treatment? The answer cannot be that society thinks incitement is necessarily less dangerous than defamation; the costs of incitement have always been recognized as significant.

One explanation for this difference in treatment is that the government's interest in punishing speech because such speech may influence the thoughts and actions of the audience goes to the very core of why we have a First Amendment. The foundation of free speech doctrine is the right to use speech to persuade others of the merits of our ideas. Thus, when speech is dangerous because it might be acted upon, we are more reluctant to regulate it, and we add the extra layer of a subjective intent requirement as protection against government overreaching. Where speech is dangerous because it causes harm directly, however, (as it does in defamation cases) the government's interests do not conflict directly with foundational free speech principles. Accordingly, we allow the civil sanctioning of defamatory speech without the extra buffer requirement of subjective intent.

Using this comparative analysis, we would ask whether speech that causes a reasonable person to fear that he or she is threatened with bodily harm or death is of sufficient constitutional value to justify courts adding the additional buffer of protection provided by a subjective intent requirement. We are not at all convinced that the value of such speech can justify allowing the harm it causes to go unsanctioned.

Another comparison-this one between threats, incitement and so-called offensive speech (use of vulgar and insensitive words, etc.)-may also be instructive. In the incitement realm we require government to prove intent and immediacy notwithstanding the harm that incendiary speech may cause not only because of our commitment to shielding persuasive speech from government prohibitions. We also recognize that there is a slippery slope with regard to punishing incitement. Every idea expressed with passion risks inciting its audience. And, accordingly, every idea that is critical of the government and its policies risks inciting anti-government behavior and violations of law. If we provide inadequate protection to incitement, all speech critical of government could be subject to sanction.

A similar analysis applies to the full protection we provide to offensive speech. Here too we recognize that offensive speech may cause its victims real harm and anguish. No one doubts that the grieving mourners at a soldier's funeral who were subjected to the disparaging speech of Westboro Baptist Church protestors suffered psychological torment. Yet in Snyder v. Phelps, the Court protected the protestors' right to express their hateful and hurtful message free from civil sanction. But here again we also recognize that tolerance of offensive speech is essential to the maintenance of a free speech regime. Every challenge to orthodoxy may offend some people who are comfortable with the status quo. We must vigorously guard against allowing speech to be punished simply on the ground that it offends people because restricting speech to serve this interest risks swallowing up a substantial part of the First Amendment.

Threats are arguably quite different. Unlike state interests justifying restrictions on incitement or offensive speech, the state's interest in protecting people from threats of physical violence that would instill fear in reasonable people seems more cabined and focused. We do not worry that core free speech principles would be undermined if speech that places reasonable people in fear of serious bodily harm or death is prohibited, whether or not the speaker intends his message to have such a frightening effect.

How Will the High Court Rule?

Some analysts predict the Court will reverse the Third Circuit and add a subjective intent requirement to the test for constitutionally proscribable threats. They say this because the current Court has been extremely protective of expression (even odious expression) in a variety of settings, and because so much speech today (especially in rap music and other popular forms of entertainment) is coarse and uses provocative and sometimes violent language. The notion would be that true threats should not be defined so broadly as to sweep too much of what people actually say in the real world within a category of unprotected speech. (Indeed, Mr. Elonis argues that the rap style of his Facebook postings makes his speech less threatening.)

We understand this argument, but aren't persuaded by it. The prevalence of violent imagery in music and other cultural venues in today's society should already be taken into account by the requirement (on which everyone agrees) that a listener's fear must be reasonable in context, and not based simply on some hypersensitivity to ugly, disturbing language. Unless there is a reason to fear that juries won't already factor changes in speech patterns into the definition of what reasonable people would experience as a threat, it is not clear, at least to us, that an extra element of subjective intent is needed here.

Before we conclude, we do note (circling back to our comparative analysis) that in the defamation setting, constitutional doctrine does require subjective intent (in the form of knowledge or recklessness as to falsity) when the victim is a public official. The case law is more protective of speech critical of our government officials than it is with respect to negative speech concerning private individuals. Perhaps the same should be true for threats; because we want citizens to be free to vent anger against their representatives, maybe we should allow them to engage in threatening speech except when they mean to instill fear. On the other hand, the requirement that a victim/listener feel reasonably threatened might itself be sufficiently flexible to protect vociferous ranting against officials, in that officials are less likely to be reasonable in feeling fear than are ordinary folks because officials should know that citizens may exaggerate their anger and rhetoric when it comes to government. In this regard, we emphasize that a reasonable-victim standard does not give juries carte blanche to punish speech whenever they desire; judges are perfectly capable of ruling that, as a matter of law, certain provocative words cannot, in modern and specific context, be understood by listeners as actual threats that put the listeners in reasonable fear of harm.

September 25, 2014

Yet Another (Judicial) Incursion Into A State’s Decisions About How to Structure Direct Democracy: The Ninth Circuit’s Ruling in Chula Vista Citizens for Jobs and Fair Competition v. Norris

Cross-posted from Justia's Verdict.

The past year or so has been a rough period for people who support the design of the direct democracy process in California. Last summer, as I explained at the time, the U.S. Supreme Court wrote its Hollingsworth v. Perry ruling (involving Proposition 8, a California initiative banning same-sex marriage) using overly broad reasoning that makes it hard, if not impossible, for official proponents of an initiative to ever defend the measure in federal court when elected representatives decline to defend.

More recently, the California legislature, Governor and state judiciary have themselves all taken actions that violate the state's direct democracy scheme. The legislature passed, and the Governor earlier this month signed, a repeal of parts of an initiative concerning immigration policy, despite the fact that initiatives are not supposed to be subject to ordinary legislative amendment or repeal. To be sure, the initiative at issue in this instance-Proposition 187-deserved to be repealed (insofar as it was a misguided measure from the start). But, as I argued in an earlier column, the legislature and Governor lacked power to repeal it, and yet they did so anyway, without any convincing legal basis.

As for the California judiciary, last month the California Supreme Court, for reasons that I am not fully persuaded by, blocked (at least temporarily) voters from being able to weigh in on Proposition 49, a measure that would have solicited voter views on the desirability of amending the U.S. Constitution to undo the highly publicized Citizens United ruling concerning campaign finance.

In the space below, I describe yet another blow to the California statutes and constitutional provisions that set up the Golden State's direct democracy system. This time, the injury was inflicted by the U.S. Court of Appeals for the Ninth Circuit; in June, in Chula Vista Citizens for Jobs and Fair Competition v. Norris, that court invalidated state statutory provisions that require the identities of the official proponents of an initiative be disclosed to would-be signatories of the initiative petition (whose signatures are needed to qualify the measure for the ballot) at the time that signatures are sought.

In striking down the so-called petition-proponent disclosure requirement, the three-judge Ninth Circuit panel found that requiring disclosure amounted to a direct regulation of the content of political speech, and impermissibly burdened, in violation of the First Amendment, the free speech choices of initiative proponents to engage in political expression anonymously. The State of California has requested the Ninth Circuit to rehear the case en banc, but unless something changes, the provisions in California law containing the petition-proponent disclosure requirement are unenforceable.

The Straightforward Case for the Permissibility of Disclosure Requirements

On the face of things, it is hard to understand why California cannot require disclosure of the identity of initiative proponents at the time signatures are sought. After all, the identity of proponents could be very relevant, non-misleading information that many would-be signatories might want to have in deciding whether a measure should be placed on the ballot. And, of course, California need not have an initiative at all; the greater power not to have initiative signature gatherers altogether would seem to subsume the lesser power of allowing them but regulating their activities. Of course, if state law required signature gatherers to disclose certain information in such a way as to create a partisan skew, or to disclose information that was false or misleading, or if the failure to comply with disclosure requirements subjected initiative proponents or signature gatherers to punishment, the First Amendment might very well be violated. But in the case of California's law, the petition-proponent disclosure requirement is not viewpoint based or skewed, and the only consequence of noncompliance with the requirement seems to be that the signatures do not count towards the requisite number needed to place a measure on the ballot; there doesn't seem to be a suggestion that the signature gatherers or initiative proponents would be punished in any other way for their failure to disclose.

Why, then, were these provisions struck down? The fault really lies not mainly with the Ninth Circuit, but rather with the U.S. Supreme Court, which in a few cases has mistakenly said that regulating signature gathering is regulating "petitioning," an activity singled out for protection by the First Amendment, rather than regulating access to the official election ballot, which is subject to much less judicial skepticism. Because of this category recognition mistake-the Supreme Court effectively has, as Justice Scalia put it in the context of a different case, been "faked out" by a label-the Court has subjected signature-gathering rules to "exacting" scrutiny under the First Amendment, rather than a much more generous "reasonableness" standard that normally applies to a state's decisions about how to regulate access to the official ballot. Because of these Supreme Court decisions (described in more depth in the following paragraphs), the three-judge panel really had little recourse but to apply rigorous scrutiny to the state laws. And under that searching review, the disclosure requirements did not survive.

The Misguided Supreme Court Rulings that Constrained the Ninth Circuit

One of the wrongheaded Supreme Court decisions that put the Ninth Circuit in something of a bind here is Buckley v. American Constitutional Law Foundation (ACLF), a 1999 ruling addressing a challenge to Colorado's initiative procedures. Colorado law provided that when a certain number of voters sign up in support of a given state initiative, the measure is placed on the statewide ballot. In ACLF, the Court reviewed and invalidated three particular Colorado regulations governing this process. First, Colorado required that each signature gatherer wear a badge bearing her name and indicating whether or not she was paid to collect the signatures. Second, each gatherer had to be a registered Colorado voter. Third, initiative backers had to disclose monthly exactly how much each gatherer was getting paid.

The Supreme Court struck down all of these state law requirements as violating the right to "petition" government protected by the First and Fourteenth Amendments, presumably because initiative provisions often use the term "petition" in describing the beginning of the initiative process. The Court held that circulating an "initiative petition" is akin to distributing a handbill, and that Colorado's identity badge requirement was thus squarely foreclosed by a 1995 ruling in which the Court struck down an Ohio law banning the anonymous distribution of campaign handbills. Colorado's other rules met a similar fate; the Court found that requiring signature gatherers to be registered voters impermissibly limited the number of voices in the debate, and the Court held that the financial disclosure requirements impermissibly forced paid gatherers and their backers to surrender the anonymity enjoyed by their volunteer counterparts.'

In reaching these rulings, the Justices relied on Meyer v. Grant, another troubling case (from 1988) in which the Court invalidated another Colorado initiative provision which attempted to prohibit the payment of money to initiative signature gatherers altogether. As in ACLF, the Court in Meyer characterized the question as "involv[ing] a limitation on political expression subject to exacting scrutiny." From there, the Court quickly concluded that "[t]he refusal to permit appellees to pay petition circulators restricts political expression . . . [and that] [t]he First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.''

The Court's reasoning in these cases would be plausible if plaintiffs were in fact "petitioning" within the meaning of the First Amendment. But that label is inapt. The Colorado initiative process (like California's) is not about "petitioning the Government for a redress of grievances." It is about circumventing government by engaging in lawmaking itself. Thus, state law did not regulate "petitions" or "speech" at all. Instead, it merely provided that unless signatures were collected in a certain way, they would not count for purposes of qualifying an initiative for the statewide ballot.

In effect, citizens retained the right to collect signatures and present them to the government as a demonstration of the signers' views essentially as a handbill. None of the challenged provisions of Colorado (or California) law said otherwise. This right, however, does not include the right to have signatures count for purposes of triggering an election, when the signatures do not comply with the ballot access rules a state has put in place. No court would deny that I have the right to voice my preference for Jennifer Granholm for President, but I do not have a right to have my vote for Granholm count when that vote is made six months before the presidential election and for a person ineligible to hold the office because she is not a natural-born citizen. Indeed, the Supreme Court has repeatedly made clear that content neutral, reasonable ballot access requirements designed to limit the number of candidates or the number or issues placed on a ballot are not subject to strict judicial scrutiny.

If the Court in ACLF (and Meyer) had seen the Colorado laws for what they were (ballot access rules) and not for what they were not (impediments to pure speech) then the Court likely would have come out the other way. It would have evaluated Colorado law, not with reference to the First Amendment's protection of core political speech, but with reference to the Tenth Amendment's protections, buttressed by those provided in the so-called Guarantee Clause, of the core right of the people of each state to structure their lawmaking processes as they desire, so long as they do not discriminate on the basis of viewpoint, race, or some other illicit criterion.

The best outcome of the Chula Vista case from the Ninth Circuit would be for the Supreme Court to grant review (assuming that certiorari is, as it should be, sought) and to cut back or overrule altogether the erroneous decisions and reasoning of Meyer and ACLF. That is the only way to avoid future injuries to state direct democracy systems by lower courts.

August 29, 2014

Are “Advisory” Measures (Like Proposition 49) Permitted on the California Ballot?

Cross-posted from Justia's Verdict.

A few months ago, I wrote about an effort by the California legislature to undo an unwise (but duly enacted) voter initiative involving immigration policy. I argued that although removing the initiative's provisions from the books would certainly be a good thing, the legislature lacked the power to effect repeal on its own; respect for the initiative process requires that the people themselves formally weigh in on any proposed repeal. In the space below, I discuss another effort, albeit this time via the judiciary rather than the legislature, to prevent the people from formally weighing in on another hot-button issue: campaign finance reform.

Background and Content of SB 1272 (Which Attempted to Place Proposition 49 on the Ballot)

In July, both houses of the California legislature enacted a bill (SB 1272) that proposed to place an "advisory" question before the California voters in this November's election. SB 1272 submits the following question (designated by the California Secretary of State as Proposition 49) to the California electorate for its input:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are rights of natural persons only?

The Howard Jarvis Taxpayers Association and its president Jon Coupal (crusaders for lower taxes in California who have made extensive use of the initiative process for decades) filed a petition in state court seeking to block Proposition 49 from appearing on the November ballot. (The Secretary of State has been in the process over the last few weeks of finalizing the ballots that are being printed so as to be usable in November.) The petitioners argue that the legislature exceeded its powers in trying to place Proposition 49 on the ballot, since, they say, the measure "enacts no law" or "statute," but instead is purely advisory. In a surprise to some political observers, on August 11 the California Supreme Court, by a 5-1 vote (the court is temporarily down one member since Justice Kennard's retirement last spring), decided to block the measure from the ballot, at least for now. (Chief Justice Cantil-Sakauye was the lone dissenter and, as I explain below, she may well have had the right instinct.) The court asked for further briefing over the next month on the validity of advisory measures like Proposition 49, but decided that if Proposition 49 turns out to be permissible, it can be placed on a ballot after November. By contrast, if the measure turns out, on more reflection, to be impermissible, any damage it might create by virtue of its appearance on the November ballot would be hard to remedy.

Although the court did not conclusively decide the validity of Proposition 49, Justice Goodwin Liu wrote an opinion explaining why he believed there was a high likelihood that, after full briefing, he would find the measure to be improper. Putting aside whether trying to amend the federal Constitution to undo Citizens United is a good idea (and I have my doubts), the legality of Proposition 49 raises important and interesting questions under California law. And even though his opinion wasn't joined by other Justices and was preliminary in the sense that he is completely free to rethink things with the benefit of additional briefing and more time, Justice Liu's statement warrants careful attention because he is an intellectual leader on the court, and because he succinctly laid out the case against Proposition 49 that the measure's supporters need to engage.

Justice Liu's Reasoning in Doubting Proposition 49's Validity

Before I turn explicitly to Justice Liu's reasoning, I should say it's not clear to me that the challengers are correct in saying that SB 1272 does not enact a "law" or "statute" (to the extent that anything turns on this). SB 1272 directs that public monies be spent to print text on paper ballots, and that public monies be spent to count the votes in answering the question posed on the ballot. If the legislature passed a bill directing that money be spent on a university poll/study of citizen attitudes on global warming or drug legalization, that bill would be a law, even though the university-led poll/study might not have any self-executing legal effect. Why not the same for a poll/study conducted by the legislature itself?

The legislature argued before the California Supreme Court that SB 1272 is valid whether or not it "enacts a law," because the legislature has the power to do things "incidental and ancillary to the ultimate performance of lawmaking functions by the legislature itself." Seems like a pretty good argument. Justice Liu deflected this suggestion, though, because Proposition SB 1272 does not relate to any potential piece of legislation, but rather to the proposal and ratification of a potential federal constitutional amendment. Justice Liu pointed out (quoting a U.S. Supreme Court opinion) that "[r]atification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word."

I am far from sure that it makes sense to distinguish between legislation and other important actions the legislature takes with regard to the outside world matter here. In the federal context (where the legislature's powers are even more rigorously confined), Congress is empowered to take actions that are "necessary and proper" to carrying into execution all the powers vested in the federal government, not just the legislative powers Congress enjoys.

To see why putting a great deal of weight on the legislation/ratification distinction is perilous, imagine that Proposition 49 were tweaked to include a clause asking the voters whether the California legislature should adopt laws that "test the reaches" or "limit the scope" of Citizens United. It's hard to imagine that this difference in wording should change whether the measure should be allowed on the ballot. And, to his credit, Justice Liu, soon after he draws the distinction between amendment ratification and legislation, makes clear that his real beef with Proposition 49 is that it is purely advisory, and does no more than seek voter opinions in a formal way. In other words, his tentative position seems to be that whether or not SB 1272 is or relates to a "law" or "statute," putting advisory measures before the voters runs afoul of the California Constitution.

But what, precisely, is wrong with the legislature formally asking for the views of the electorate? Justice Liu derives his answer from the concept of accountability. If, he says, "the legislature were to propose a statute for the voters to approve," or ask the voters whether the legislature should adopt a statute containing specific text, and then that statute became law, the lines of accountability would be obscured. If the statute turned out to be a disaster, the legislature might evade responsibility by saying something like (my words, not Justice Liu's): "But you voters approved (or told us to do) this, so you can't now blame us!" By contrast, when the legislature passes a law by itself, citizens can hold it accountable, and when the citizens themselves propose and enact an initiative, they have only themselves-and not the legislature-to blame. Keeping these lines of accountability clear and clean is an important principle that Justice Liu finds implicit in the structure of the California Constitution.

Three Possible Counterarguments to Justice Liu's Reading

On its face, this is a very plausible, creative, and elegant argument, but to my mind it suffers from some significant weaknesses-weaknesses that I hope will be explored in the full briefing for which the court asked. First, as Justice Liu acknowledges, the California Constitution explicitly allows the legislature to propose, for voter approval, state constitutional amendments and also certain statutes authorizing the issuance of bond debt. If these super-important matters can admit of a "mix and match" approach (Justice Liu's term) that makes use of both legislative vetting and popular approval, why wouldn't the same be true for other, less important, matters? Indeed, to the extent that accountability is an important value, wouldn't we want to promote the greatest degree of easy accountability when the stakes are the highest? (More generally, given the cluttered and ultra-detailed nature of the California Constitution, it's hard to draw any bright line that would explain why proposals for altering the state constitution raise fundamentally different concerns than do measures relating to possible statutes.) All of this suggests that easy accountability may not be the overriding constitutional value at work here; the U.S. Constitution and most state constitutions make consistent and convoluted use of shared governmental power that obscures accountability for the sake of other important values, such as deliberation and caution. And-like bicameralism, the veto, and any number of other accountability-blurring "checks and balances"-advisory measures may also promote such deliberation and caution.

Moreover, Justice Liu acknowledges that it would be perfectly appropriate for the legislature to commission a Gallup poll of state voters to assist it in its legislative agenda. Wouldn't the results of such a highly publicized poll also blur accountability? And to the extent that the legislature can more readily avoid responsibility by pointing to a public vote rather than a privately conducted poll, isn't that only because a public vote is a more reliable measure of true attitudes of the body politic? And wouldn't we want the legislature to have the most reliable data available to it?

Second, and quite important, notice that Justice Liu's straightforward accountability argument would seem to forbid not only the legislature's placement of an advisory measure on the ballot, but also the people's direct attempt to put an advisory measure on the ballot to give the legislature formal input. Such a result (which might be supported by, but is not dictated by, past California cases) would create a deep structural dilemma because citizens are not always skilled at drafting laws that will operate in the real world, even if they have a good sense of which values they'd like to promote. Indeed, one of the big drawbacks with the initiative device modernly is that areas like affirmative action, immigration, campaign finance, taxation, etc., are so complicated that initiatives written by non-experts often lock in sub-optimal specifics in attempted furtherance of (at least arguably) laudable and broadly supported sets of principles. In a sensible system that includes direct democracy, there ought to be a way for the voters to say, in a focused and formal way: "We'd like a law that does the following things, but we'd be better off leaving it to legislative experts to draft the details, because we might not do a good job on the fine points, and we thus might generate undesirable consequences that a legislature but not ordinary citizens would be able to foresee." Having citizen groups feel obligated to draft and implement the particulars of complex policy measures is one of the problems with direct democracy we should want to reduce, not one of its salutary features we should want to enhance.

Third, and in some respects most important, I note that there is a provision, Article 1, § 3(a), in the California Constitution that explicitly provides that "the people have the right to instruct their representatives." "Instruction" is a constitutional term of art that goes back to the eighteenth and nineteenth centuries; it is a formal device by which voters collectively direct their state (but not federal) legislators to undertake specific legislative actions, and legislators are bound to comply. As constitutional historians Dan Farber and Suzanna Sherry have observed: "[At the founding in 1787] [v]oters in most states . . . had the right to instruct their representatives and to direct votes on individual issues. [Four] state constitutions [explicitly] guaranteed such a right. In the others, the right was assumed." From what I can tell, the formal right of instruction has been included in every version of California's Constitution going back to 1849, shortly before California became a state.

Over the past two hundred years, the device of formal voter instruction has been invoked with decreasing frequency across the nation, and the idea that state legislators would be legally bound to follow any instruction has also been diluted. Indeed, the California Supreme Court has not meaningfully discussed Article 1, § 3(a)'s instruction provision in recent decades, if ever, even in instances in which the voters seem to have attempted instruction. (American Federation of Labor v. Eu, decided in 1984, is one such case where the court inexplicably failed to discuss the provision.) The Article 1, § 3(a) issue may not have been briefed to the court in the Proposition 49 papers, which would certainly account for and justify the failure of Justice Liu's opinion to mention it.

But the fact that the instruction device has fallen out of favor or lost its power to legally bind legislators does not mean that the device and its textual and historical pedigrees should be ignored. Before the California Supreme Court issues an opinion (after full briefing and careful deliberation in the Proposition 49 matter) holding that any statewide information-gathering "advisory" measure, whether the measure comes from the people directly or from the legislature, is per se inappropriate for the ballot, the court should explain why it is reading the instruction provision out of the state constitution (or at least reading it not to apply in these circumstances).

Finally, I do acknowledge that there might be arguments that distinguish between advisory measures originating from the people and advisory measures the legislature seeks to place onto a ballot. Such arguments could be used to strike down Proposition 49 without gutting the people's right to instruct. At present I am not convinced that any such arguments do forcefully undermine SB 1272 and Proposition 49, but I look forward to seeing what the briefing and the court's ultimate opinions say.

August 5, 2014

How to Read Justice Kennedy’s Crucial Concurring Opinion in Hobby Lobby: Part II in a Series

Cross-posted from Justia's Verdict.

In my last column, Part I of this Two-Part series, I argued that lower courts are justified in paying (indeed perhaps required to pay) close attention to Justice Kennedy's concurring opinion in this summer's blockbuster Burwell v. Hobby Lobby ruling, even though the "Opinion of the Court" in that case had the support of five Justices. Because Justice Kennedy was one of the five in the majority in this 5-4 case, his understanding of the majority opinion-on which he based his decision to join and which is explained in his concurring opinion-essentially represents the narrowest common grounds on which a majority of Justices agreed.

In the space below, I suggest a number of significant ways in which Justice Kennedy's take on the majority opinion, which he says are among the "reasons . . . [he] join[ed] it[,]" counsels in favor of a narrow reading of what the Court decided. To see why this is so we must directly compare Justice Alito's majority opinion (and the language and tone it used) with Justice Kennedy's writing.

The Basic Structure of Justice Alito's Opinion of the Court

Justice Alito's opinion can be broken down into two big questions: (1) Does the Hobby Lobby corporation partake of protection under the federal Religious Freedom Restoration Act (RFRA)?; and (2) Is the contraception mandate in the Affordable Care Act (ACA) regulations the "least restrictive means" to accomplish the "compelling" government interest-that female employees receive contraceptive service insurance at no cost-as required under RFRA?

On the first question, Justice Alito reasons quite broadly, and rests statutory protection for Hobby Lobby on the ground that a for-profit closely held corporation is itself a "person" capable of the "exercise of religion" under RFRA (rather than resting protection on the idea that the persons whom RFRA protects are the owners of a corporation, and the fact that Hobby Lobby's owners are operating through the corporate form should not strip them of the statutory protection they have as individual human beings to practice religion). Because of this broad reasoning, and because Justice Kennedy did not say anything in his concurrence on this question, the Court (and lower courts) may find it difficult to deny RFRA coverage to publicly traded corporations whose managements try to assert claims for religious exemptions in the future.

But on the second question-concerning what RFRA protection means once RFRA applies-the breadth of the Court's ruling is more open to debate, because Justice Kennedy did say things that might diverge from what Justice Alito said. I mention four such possible divergences here.

Some Ways in Which Justice Kennedy's Understanding of the What the Majority Held Might Be a Narrow One

First, and perhaps least significant doctrinally but potentially important optically, while Justice Alito characterizes the test the government must meet to justify denying an exemption under RFRA as "exceptionally demanding," Justice Kennedy is content to call it "stringent" (citing his own opinion in a prior case). This subtle language difference may send slightly different messages to lower courts about how tough to be in evaluating arguments put forth by the federal government in future cases.

Second, on the question whether the government has a "compelling" interest (the kind of interest it needs under RFRA) "in ensuring that all women have access to all FDA-approved contraceptives without cost sharing," Justice Alito spends a great deal of space explaining why it is "arguable" that the government should lose on this question. In particular, he discusses how the exceptions the Affordable Care Act creates for existing health plans to be "grandfathered"-and thus not required to provide contraceptive coverage-undermine the notion that the government's interest is compelling. Justice Alito ultimately finds it "unnecessary to adjudicate this issue [because] [w]e will assume that the interest in guaranteeing cost-free access . . . is compelling."

Justice Kennedy on this question writes in a way that suggests a much stronger likelihood that he would, if push came to shove, find (as the four dissenters did) the government's interest to be compelling, notwithstanding the grandfather exceptions. He says that is "it is important to confirm that a premise of the Court's opinion is its assumption that the . . . regulation here furthers a legitimate and compelling interest in the health of the female employees." It is true that he uses the word "assumption"-which reminds us that the Court assumed but did not decide the government's interest was compelling. But one wonders why it is important to "confirm" an "assumption" unless the assumption is likely to be correct. Also, Justice Kennedy starts this part of his discussion by saying that the federal government "makes the case that the mandate serves . . . [a] compelling interest" (emphasis added). "Makes the case" is a term that can be read to mean simply "argues" or "contends," but more often it is used to mean "provides good reasons to think."

If Justice Kennedy is, in fact, sending a signal here that government-granted grandfather exceptions based on convenience and ease of transition do not undermine the compelling nature of a government interest, and if that is how lower courts read his tone here, then such a signal could have important consequences for the range of other government interests that are asserted in subsequent RFRA cases, and other cases in which the government needs to establish a compelling interest. Government often needs to grant exceptions to facilitate enactment of big new regulatory schemes, and if the inclusion of such exceptions jeopardizes the idea that the government has compelling interests on which it is acting, a great deal more government regulation would be vulnerable.

The Key Questions of What the Less Restrictive Alternative in Hobby Lobby Was and How Competing Interests Should Be Weighed

 Third, on the important question whether the Government should lose because it could pay for the contraceptive coverage itself (rather than requiring employers to provide it), and government payment is a "less restrictive means" to accomplish the government's (compelling) objective, Justice Alito seems to try to have his cake and eat it too. He says ultimately that "we need not rely" on this possible accommodation as a basis for Hobby Lobby's victory because the federal government could also simply tell insurance companies (rather than employers) to provide the coverage (as the government does for non-profit corporations), but this language comes only after Justice Alito had already spent a lot of ink explaining why the government-payment option seems to be required under RFRA. Indeed, Justice Alito observes that it is "hard to understand" the Government's argument to the contrary. Moreover, even though Justice Alito writes that the Court "need not rely" on this accommodation, he doesn't say whether he means simply that there are two possible accommodations that explain Hobby Lobby's victory (in which case neither of them is one that must be relied on), or instead that the second accommodation (having the insurance companies provide the coverage) is the statutorily required accommodation in this case, such that the Court doesn't decide whether, in the absence of such an option, the government would have to pay itself. Note that, unlike the language concerning whether there is a compelling interest, Justice Alito does not say the Court declines "to adjudicate" this issue.

Justice Kennedy, by contrast, does not equivocate here, and makes clear that, as he reads the majority opinion he is joining, the Court is not deciding the question whether the Government would have to pay itself if the insurance-company-accommodation were not available: "In discussing th[e] [government-payment] alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program [, because] [i]n these cases, it is the Court's understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government." For this reason, he says, the "Court does not resolve" the question whether creating a new government spending program could be required.

Fourth, and more generally, on the question of how much cost the government must be willing to bear to accommodate religious exercise, Justice Kennedy notes: "[T]his existing model [i.e., having the insurance company bear whatever cost may be involved], designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise" (emphasis added).

And, importantly, he also says, apparently in response to concerns that federal sex discrimination workplace protection will go by the boards-a prospect that Justice Alito's opinion pointedly did not deny-that religious exercise, while important, cannot "unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling." Justice Alito does acknowledge that courts must take "adequate account of the burden a requested accommodation imposes on non-beneficiaries," but he makes this concession in a footnote that literally marginalizes the concerns of third parties.

Justice Kennedy's language makes clear that he will, in deciding when an exemption under RFRA is warranted, surely consider costs, both to the government and to third persons, as a counterbalance to any assertion of religious liberty. Indeed, in some ways, Justice Kennedy's opinion is eerily similar in substance to Justice Blackmun's writing in National League of Cities that I discussed in Part I of this series; Justice Kennedy recognized the right to an exemption in the case before him, but he indicated more directly than did Justice Alito that in future RFRA cases some kind of balance-rather than an absolute or near-absolute entitlement to exemption-is called for.

If this is so, and if (as I think they can and should) lower courts take their cue from the writing of this fifth Justice in the majority in Hobby Lobby, then Justice Kennedy's writing may go a fair ways in determining exactly how many companies can successfully use Hobby Lobby to obtain exemptions by suing under RFRA.