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January 2, 2019

Top 10 immigration stories of 2018

By Kevin R. Johnson

[Cross-posted from ImmigrationProf]

Trump

1. President Donald J. Trump

Day in and day out in 2018, President Trump was at the center of the nation's immigration news.  Building on his immigration policies during his first year as President, Trump continued to push the most aggressive set of immigration enforcement measures of any modern U.S. President.  Indeed, he ended the year on a high profile note.  When Congress refused to meet his demand for $5 billion in funding for a wall along the U.S./Mexico border, President Trump was willing to shut down the entire U.S. government at year end.  As of this writing, there is no end to the shutdown in sight. 

From day one of his campaign for the presidency, Trump has pushed the border wall.  And nothing has changed.  Earlier this month, the President tweeted the image below of a design for the wall, remarking: "Our Steel Slat Barrier which is totally effective while at the same time beautiful."

Detention, including the family separation policy discussed separately below, has been one of the focal points of the Trump administration's immigration enforcement policy.  The conditions of detention have been under fire.  That is likely to continue because, in December, two children in immigrant detention died, provoking controversy and concern.

The Trump administration's initiatives are too many to list here.  Still, a few are worth highlighting.  The Trump administration announced the end of Temporary Protected Status for approximately 200,000 Salvadorans.  The administration also stripped TPS status from Hondurans, Nicaraguans, Sudanese, and Haitians.  It also proposed tightening the "public charge" rule for admissions and limiting eligibility to asylum seekers to those who presented themselves at ports of entry.  The Department of Commerce's proposed a citizenship question on the 2020 Census provoked controversy and litigation.

2. U.S. Government Shutdown Over Border Wall

With Congress and the President at an impasse over border wall funding, the U.S. government suffered a partial shutdown.  There also was an earlier shutdown over immigration.  Although the news was jolting in the beginning, the nation handled the holidays well-enough without a budget and a federal shutdown.

A two-year-old Honduran asylum seeker cries as her mother is searched and detained near the U.S.-Mexico border (John Moore/Getty Images )

3. Family Separation Policy

To deter Central Americans, including many women and children fleeing rampant gang and other violence, from coming to the United States, the Trump administration adopted a policy of separating parents and children  in immigrant detention.  The family separation policy provoked mass protests and bipartisan resistance.  Pictures like the one above galvanized the nation.  Ultimately, President Trump ended family separation.  But his administration took months to reunite families.

=caravan

Central American immigrants take part in a caravan heading to the United States on the road linking Ciudad Hidalgo and Tapachula, Mexico, on October 21, 2018. Pedro Pardo / AFP / Getty

4.  The Caravan

Over the year, President Trump on several occasions attacked the "caravan" of Central Americans coming to the United States.  Photos of the caravan provoked concern.  Republicans, including President Trump, used the specter of "the caravan"  to build support for extreme immigration enforcement measures.  President Trump characterized the caravan as an invasion and tried to use it in an attempt to spark a Republican comeback in the midterm electionsMission was not accomplished and the Democrats regained control of the House!

 

 Sct

5.  Supreme Court

The Supreme Court continued its steady diet of  immigration cases and immigrants continued to win more than they lost.  In the 2018 Term, the Court struck down as unconstitutional two provisions of the immigration laws.  At the same time, in a 5-4 vote, the Court upheld the third draft of the "travel ban" in Trump v. Hawaii

This Term, the Court heard arguments in an immigrant detention case.  The Trump administration has made detention a core part of its overall immigration enforcement strategy.

More recently, the Court in December refused to stay an injunction barring implementation of President Trump's new restrictive asylum policy.

At some point in the future, the Court will likely decide whether the Trump administration should be permitted to rescind DACA, which to this point been enjoined by three federal courts.  See below.

330px-Jeff_Sessions _official_portrait

6.  Jeff Sessions Steps Down as Attorney General

Attorney General Jeff Sessions was an immigration hawk and Trump loyalist.  Among other things, he oversaw efforts to pressure immigration judges to close open cases and narrow asylum eligibility.  Sessions also took on -- mostly losing -- efforts to fight "sanctuary" states and cities.  Because of President Trump's unhappiness with Sessions over his recusal in the Robert Mueller investigation,  Sessions was forced out.  He took so many insults and barbs from the President that some Democrats almost felt sorry for him.

7. The Rescission of DACA

In September 2017, Attorney General Sessions announced the rescission of DACA.  As I have written, the rise and fall of DACA will likely affect the future of immigration law.  Three courts have enjoined the rescission of the policy and Ninth Circuit affirmed an injunction.  It may take a while but the Supreme Court ultimately will likely decide the fate of the DACA rescission.

8.  Midterm Elections

Despite President Trump and others seeking to make immigration enforcement the central campaign issue, the Republicans kept the Senate but lost the House.  The new Democratic House is likely to put the administration, and its immigration policies, under scrutiny.

330px-Associate_Justice_Brett_Kavanaugh_Official_Portrait

9.  Brett Kavanaugh is confirmed as a Justice on the Supreme Court.

It was not pretty but the Senate confirmed conservative Brett Kavanaugh as an Associate Justice on the Supreme Court.  Given his record on the U.S. Court of Appeals for the District of Columbia Circuit, which does not hear many immigration cases, it is hard to predict how he will approach immigration cases.  With a limited record on immigration, there are only hints of his views on the topic, including some from dissents in cases involving a teen immigrant detainee seeking an abortion and an immigration employment case.

10.  Death on the Border Continues

Maybe this does not make the headlines, but deaths of migrants on the U.S./Mexico border continue.  Increased enforcement in major border cities has resulted in migrants traveling through mountains and deserts where they are more likely to die.

Death on the Border: The Thousands of Bodies Along the US-Mexico Border

The death toll mounts but nothing seems to happen.  Is there anyone out there?

HONORABLE MENTION

UC_Berkeley_School_of_Law_logo.svg

Boalt Hall Changes Name:  Yes, this has an immigration angle.  UC Berkeley School of Law has long gone by the name "Boalt Hall."  It was named after John Boalt, who  published an anti-Chinese screed at the height of the Chinese exclusion era.  A committee recommended a name change and UC Berkeley School of Law, or Berkeley Law, is now the official name of the school.  Here is the Berkeley Law explanation of the name change.

October 30, 2018

Supreme Court Stays Upcoming Juliana Trial

By Richard M. Frank

[Cross-posted from Legal Planet]

The presently constituted U.S. Supreme Court doesn’t seem to care for climate change litigation or regulation.

On Oct. 19, the Supreme Court took the extraordinary step of freezing pending discovery and the scheduled October 29th trial date in the closely-watched Juliana v. United States litigation.  In a brief order, Chief Justice Roberts stayed all district court proceedings in the Juliana case and ordered the plaintiffs to file a response by Oct. 24 to the Trump administration’s just-filed petition to the Supreme Court seeking to dismiss the case.

Chief Justice Roberts

I’ve previously written about the Juliana case in 2015 when the litigation was first filed in U.S. District Court in Oregon and more recently here and here.  Briefly, in 2015, 21 children from around the United States–-acting under the auspices of the non-profit organization Our Children’s Trust–-filed suit against the United States in U.S. District Court for the District of Oregon. They contend that the federal government has violated the children’s legal rights by failing to take far more dramatic steps to reduce the nation’s greenhouse gas emissions and address urgent climate change concerns.

After U.S. District Court Judge Anne Aiken denied the federal government’s motion to dismiss and scheduled the Juliana case for trial later this month, the Trump Administration’s Justice Department mounted repeated efforts in the appellate courts to stay or dismiss the district court proceedings.  The Ninth Circuit rejected those attempts in separate opinions issued in May and July of this year.  The federal government appealed the Ninth Circuit’s July 2018 decision to the Supreme Court, but in a brief July 30th order Justice Anthony Kennedy rejected the government’s appeal as premature while noting that the breadth of the Juliana plaintiffs’ constitutional and public trust-based claims were “striking.”  In his capacity as the Supreme Court justice serving as “Circuit Justice” for the Ninth Circuit, Justice Kennedy in his order urged Judge Aiken to “take those concerns into account in assessing the burdens of discovery and trial…”  (Notably, Kennedy’s July 30 order in the Juliana case was his last official act as a U.S. Supreme Court justice before retiring the next day.)

Justice Kennedy is now gone, replaced by Brett Kavanaugh, who can be expected to be relatively less sympathetic to “impact” climate change litigation exemplified by the Juliana case.  But today’s remarkable order in the Juliana case is the product of a far less publicized transition at the Supreme Court: Chief Justice Roberts replaced Justice Kennedy as the Circuit Justice assigned to the Ninth Circuit with…himself.  (In recent years, statistics show that the Ninth Circuit is the most frequently-reversed federal circuit court in the nation; this trend may well account for Roberts’ particular interest in the Ninth Circuit’s decision-making.) That’s why Roberts’ name was on today’s order staying proceedings in the Juliana case pending consideration by all nine justices of the Trump Administration’s petition to stay or dismiss the case.

And with the conservatives justices now commanding a solid five-member majority on the Court, I’m not optimistic that the Juliana plaintiffs will ever see the trial of their claims come to pass.

Of course, this is not the first time the U.S. Supreme Court has taken extraordinary and previously-unprecedented steps to sidetrack efforts to address climate change concerns.  In February 2016, the Supreme Court by a 5-4 vote ordered the U.S. Environmental Protection Agency to halt enforcement of the Clean Power Plan promulgated by the Obama Administration in late 2015–the first time the Court had ever stayed a federal regulation before a decision by the lower federal courts.

So it would appear that these days the U.S. Supreme Court isn’t hospitable to either innovative climate change litigation or major climate change regulatory initiatives by the Executive Branch.  That leaves Congress.

Yikes.

October 15, 2018

Preap High Court Argument Focused on Immediacy of 'When'

By Kevin R. Johnson

[Cross-posted from Law360]

For years, the U.S. government has detained immigrants as a way of enforcing the U.S. immigration laws and to deter future flows of migrants to the United States. Over the last 20 years, the U.S. Supreme Court has regularly grappled with legal challenges to immigrant detention. Just last term, for example, the court in Jennings v. Rodriguez[1] found that there was statutory authority for the detention of certain noncitizens without bond but remanded the case for the court of appeals to determine the constitutionality of the statutory provision in question.[2]

From his first days in office, President Donald Trump as part of an aggressive immigration enforcement agenda has enthusiastically ramped up the use of immigrant detention. In a January 2017 executive order, he announced the end of “catch and release,” a phrase disparagingly referring to the conventional practice of arresting and then allowing noncitizens, who are not at risk of absconding or a threat to the public safety, to bond out of custody while awaiting a removal hearing. Detention became the norm. The Trump administration specifically has engaged in the aggressive use of detention (combined, for a time, with the controversial policy of separating families) in seeking to deter Central American asylum seekers from coming to the United States. Inevitable legal challenges followed and can be expected to continue.

In light of the Trump administration’s aggressive use of immigrant detention, the case of Nielsen v. Preap,[3] which was argued in the Supreme Court on Oct. 10, takes on added significance. The question presented in the case is a technical one of statutory construction. However, the case raises broader questions about limits on the U.S. government in the enforcement of the immigration laws, in this instance the use (and limits) of detention. Oral argument received more public attention than normally received by ordinary immigration cases because newly confirmed Justice Brett Kavanaugh was participating in one of his first arguments. (Unlike Justice Clarence Thomas, Justice Kavanaugh asked questions.)

The statutory question presented in Nielsen v. Preap is whether an immigrant can be subject to mandatory detention under 8 U.S.C. Section 1226(c) if, after release from criminal custody by a state, the U.S. Department of Homeland Security does not immediately take the immigrant into custody. The statute provides that the U.S. government “shall take into custody any alien ... when the alien is released, without regard to whether the alien is released on parole, supervised release or probation ...” (emphasis added). As frequently occurs in immigration cases that come before the Supreme Court, the issues raised boil down to the interpretation of the immigration statute — infamous for its complexity — and the deference, if any, properly afforded the agency’s determination.

The plaintiffs in this case are lawful permanent residents who committed a crime, served their criminal sentences and, upon release, returned to their families and communities to rebuild their lives. Years later, immigration authorities took them into custody and detained them without bond hearings under Section 1226(c). Plaintiffs argue that, because they were not detained “when ... released” from custody, they were not subject to mandatory detention under the statute.

Born in a refugee camp after his family fled the Khmer Rouge in Cambodia, one of the named plaintiffs, Mony Preap has been a lawful permanent resident of the United States since 1981. He has two 2006 misdemeanor convictions for marijuana possession. Years after being released from custody for these convictions, Preap was transferred to immigration detention. Since then, Preap has been granted cancellation of removal, thus allowing him to remain in the United States indefinitely, and released from immigration custody.

Noting that “every day in the United States, the government holds over 30,000 aliens in prison-like conditions while determining whether they should be removed from the country,” the U.S. Court of Appeals for the Ninth Circuit[4] held that the plain language of the statute controlled: “The statute unambiguously imposes mandatory detention without bond only on those aliens taken ... into immigration custody `when [they are] released’ from criminal custody. And because Congress’ use of the word `when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

The Ninth Circuit’s holding conflicted with four circuits (First, Second, Third and Tenth)[5], a fact noted by Chief Justice John Roberts during oral argument.

In its briefs before the Supreme Court, the United States argues that, properly interpreted, the statute allows for the noncitizen to be subject to mandatory detention under Section 1226(c), regardless of whether the U.S. government takes custody immediately after release from criminal custody. It further contends that the Board of Immigration Appeals[6] has squarely rejected the Ninth Circuit’s interpretation of Section 1226(c) and that the agency’s interpretation deserves deference.[7]

Arguing that the court of appeals correctly interpreted the statute, respondents argue that the statute imposes mandatory detention only upon an immediate transition from criminal to immigration custody. In their view, the plain language and structure of Section 1226(c) compel the court of appeals’ conclusion. Finally, respondents contend that, because the statute is clear and not ambiguous (a prerequisite for deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.[8]), deference is not justified.

Oral arguments in the case focused almost exclusively on the proper interpretation of the statute. Assistant to the Solicitor General Zachary Tripp argued on behalf of the U.S. government. Asking the very first question, Justice Sonia Sotomayor began by focusing on the proper interpretation of the statute. Tripp replied that the statute made detention mandatory but that there was no restriction on the timing when U.S. immigration authorities had to assume custody after release by state and local law enforcement.

Throughout the argument, questioning centered on the proper interpretation of the statute, with a focus on the language and structure of the particular provision in question, which states that the U.S. government “shall take into custody any alien ... when the alien is released” (emphasis added).

At various points, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Neil Gorsuch expressed concern about the seeming unfairness of the possibility that, under the U.S. government’s interpretation, the noncitizen could be released and, many years later, put in mandatory detention by Immigration and Customs Enforcement. Justice Ginsburg specifically asked Tripp whether he truly was arguing that “it is totally irrelevant whether ... the change in custody is immediate or it’s seven years down the road?”

Justice Breyer also expressed concern about the length of time between a noncitizen's release and placement in mandatory detention, and mentioned that one of the cases discussed in the briefs mentioned a noncitizen who had been released for stealing bus transfers and the U.S. government arrested him 14 years later. He posed the hypothetical of a grandfather who, under the U.S. government’s interpretation of the statute, might be arrested 50 years after release from state custody. Justice Breyer suggesting that one way to avoid serious constitutional questions was to infer a reasonableness requirement into the statute — mandatory detention is permissible only when there are reasonable delays in the arrest of a noncitizen after release from state custody. Tripp rejected the compromise proposal, ardently resisted any limit on the U.S. government’s detention power under the statute and dismissed the possibility that the lack of a time limit raised a constitutional question.

In short, the justices pushed Tripp on the precise meaning of the statutory language. Throughout the arguments, he emphasized that the statutory language was mandatory and required the government to assume custody any time after the noncitizen's release from state custody; at the same time, Tripp fervently resisted any limits on the time when the U.S. government might assume custody, a position that seemed to trouble a number — perhaps even a majority — of the justices.

Concerns with indefinite detention like the type discussed last term in Jennings v. Rodriguez undoubtedly were on the minds of the justices. When the questioning swerved into the length of detention, Justice Samuel Alito sought to limit the inquiry to the statutory questions before the court.

Cecellia D. Wang, Deputy Legal Director of the ACLU, argued for respondents: Taking the opposite position of the U.S. government, she pressed the argument that the text and structure of the statute left no room for any but the shortest time between release from state custody and the federal government placing the noncitizen in mandatory detention.

Several justices queried Wang about the meaning of the statute. At one point, Justice Gorsuch seemed to enjoy the semantic give-and-take with her about the language and use of grammar. Chief Justice Roberts and Justices Alito and Kavanaugh seemed worried that respondents interpreted “when” in the statute as the same day as release. Justice Alito worried about forcing the U.S. government to act too quickly, especially if state — such as California, which he specifically mentioned — and local governments are not cooperating with the federal government.

In a most revealing part of the argument, Justice Kavanaugh pressed Wang on her interpretation of the statute and stated that, in passing the 1996 immigration reforms requiring mandatory detention, Congress would have known that the federal government would not assume immediate custody “in many cases” but, at the same time, did not place any time limit on the assumption of custody: “Congress knew [federal immigration detention] wouldn’t be immediate and yet Congress did not put in a time limit. That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.” He later questioned whether, as Wang contended, the statute should be read narrowly because Congress was focused on “harshness” toward immigrants not generosity toward them (as her interpretation of the statute would offer). At the same time, Justice Kavanaugh explored on rebuttal with Tripp what he might view as a reasonable time limit for the U.S. government to assume custody of a noncitizen released by the state.

In questioning Wang, Justice Alito suggested that the options for the court in interpreting the statute are to take custody “within 48 hours as required by the Ninth Circuit, some reasonable period or after the alien is released.”

Importantly, there was no real discussion of deference to the agency’s interpretation of the statute. The justices apparently saw the statute as being subject to interpretation, but not having the ambiguity that might require some sort of deference to the agency.

Although it is hazardous to guess the outcome of a case from oral arguments, it struck me that the justices were troubled by what they viewed as the extreme positions posed by the opposing sides in Nielsen v. Preap. Interpreting the statute to allow federal arrest and detention many years after release from state custody, as advocated by the United States, seems unfair. At the same time, requiring immediate arrest by federal officers upon release from state custody, as argued by the ACLU, seems unrealistic. One possibility is that a majority could be cobbled around Justice Breyer’s suggestion that the U.S. government be permitted to subject a noncitizen to mandatory detention if taken into custody within a reasonable time of release from state custody. Such a compromise would perhaps avoid those disputes over the constitutionality of limits that made the case of Jennings v. Rodriguez so difficult to resolve, thus requiring re-argument.

October 8, 2018

A 'Kavanaugh Special Episode' of 'What Trump Can Teach Us About Con Law'

Episode 28 of the podcast "What Trump Can Teach Us About Con Law" explores the Brett Kavanaugh Supreme Court confirmation process, and constitutional rules pertaining to justices, including how and when one might be impeached.

September 10, 2018

Originalism is at war with America

By Alan Brownstein

[Cross-posted from The Hill]

President Trump is nominating federal judges, and Supreme Court Justices such as Judge Brett Kavanaugh, who claim to be committed to “originalism.” This approach to constitutional law requires that the Constitution be interpreted to mean today what the text was intended or understood to mean at the time it was written. But originalism conflicts sharply with American reality and American ideals.  

Years ago, Frank Sinatra sang a song about what America meant to him. The last line was “But especially the people, that’s America to me.” If that’s what America is, then originalism is unamerican.  Because there is no place for the over 300 million Americans today in originalist interpretations of constitutional law. We just don’t count.

Who does count? Only the people who were here in the 1780’s and 90’s or when specific constitutional amendments were adopted. The vast new diversity of the American people today has nothing to offer to our political foundations. 

Both originalists and non-originalists look to American history to interpret the Constitution. But to originalists, most of that history stops 230 years ago. The American constitutional story largely begins and ends on the first page. To non-originalists, American constitutional law, like America itself, is a story that never ends.

The key issue separating originalists and non-originalists is what to do with all of the rest of American history after the Constitution was ratified. When courts interpret the Constitution, just how much weight should be assigned to the collective experience of the American people over the last 230 years. The originalist answer is none or as little as possible. What matters most is what judges decide constitutional language meant over two centuries ago.

Put bluntly, this originalist commitment to a constitution frozen in time and divorced from the changes America has undergone over the centuries repudiates the core values of the American experience.

Think about what is distinctive and special about America. European governments were chained to centuries of history and tradition. That was the old world. America is the new world. We are the pragmatists, the experimenters. We try things out and continue what works and discard what doesn’t. We do that with everything including law. But that’s not the America of originalists. From their perspective, constitutional law is fixed and immutable. It cannot evolve. Judges cannot learn from American experience.

Non-originalists believe that the American people have worked with constitutional law for over two centuries. We learned a lot. We struggled to create constitutional doctrine that reflects who we actually are as a people, not some ideologically manipulated picture of who a few judges think we once were.

Unlike originalists, non-originalists recognize that the Constitution must take account of the changed understanding in our society of the status and rights of women. Accordingly, privacy and autonomy rights including the right to access to medical contraceptives must be protected and gender discriminatory laws must be subjected to rigorous scrutiny.

Unlike originalists, non-originalists understand how much our society has learned over time about the LGBT community. Because they are no longer in hiding in response to persecution, we can now see our gay and lesbian family members, friends, neighbors, co-congregants, and colleagues as people with the same needs and rights as the rest of us. At the constitutional level, this means that laws criminalizing sodomy or prohibiting same-sex couples from marrying must be struck down.

Unlike originalists, non-originalists have learned that democracy needs constitutional protection against political threats the framers may have under-estimated or ignored. Courts cannot close their eyes to elections being manipulated through burdens on voting and gerrymandered districts. The Constitution must be interpreted to protect voting as a fundamental right and to insist, at a minimum, that election districts must be of equal size and reflect the principle of one person, one vote.

Put simply, non-originalists believe that constitutional case law is a process grounded in the on-going experience of the American people. Older decisions can be challenged because of their real world consequences. Non-originalist judges may make mistakes. When that happens, eventually the wrongfully decided cases are overruled. Constitutional law does not become permanent unless it works, unless it resonates with the beliefs of the American people overtime.

Originalists believe that history has an iron grip on constitutional meaning. The great constitutional questions of the day turn on lawyers debating what people understood centuries ago, not on the needs of Americans today and the values we have forged over centuries of struggle.

Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and serves on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.

 

 

August 21, 2018

Episode 26: "Roe"

Ep. 26 of "What Trump Can Teach Us About Con Law" looks as Roe v. Wade as it relates to President Trump, his Supreme Court nominee Brett Kavanaugh, and the Constitution. This episode also examines the unusual trajectory of Roe plaintiff Norma McCorvey's life in the decades following the 1973 Supreme Court decision.

 

July 23, 2018

Wayfair as a Federalism Decision

By Darien Shanske

[Cross-posted from Medium]

Some first impressions, including pondering how this decision intersects with NCAA v. Murphy

In the end, not a single justice would stand up for the rule of Quill, which rule was that a state can only impose a use tax collection obligation on a vendor if it has a physical presence in the state. All the justices agreed that it was the wrong rule, even apparently, when first imposed in 1967. So then why was this a 5–4 decision?

The four dissenters argued that stare decisis should protect the Quill rule nevertheless because it is an old rule that Congress can change. I take the key part of the majority response to be the following:

While it can be conceded that Congress has the authority to change the physical presence rule, Congress cannot change the constitutional default rule. It is inconsistent with the Court’s proper role to ask Congress to address a false constitutional premise of this Court’s own creation. Courts have acted as the front line of review in this limited sphere; and hence it is important that their principles be accurate and logical, whether or not Congress can or will act in response. It is currently the Court, and not Congress, that is limiting the lawful prerogatives of the States.

This seems exactly right to me and I have argued as much (see here and here). And it is of course not surprising that Justice Kennedy is arguing that federalism values establish a pro-state power default and that it is untenable for a federal court to erect a barrier to state power based on a mistake.

But note that the dissent in Wayfair was written by Chief Justice Roberts, who, in another context wrote: “The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake …” The issue in that case, United Haulers, was whether a public utility could force local users to use its services, and Chief Justice Roberts held for the majority that it could. Justice Alito wrote a powerful dissent in that case and was joined by Justice Kennedy. Justice Alito again joined Justice Kennedy in Wayfair. Thus, according to these two justices, a pro-state constitutional default does not protect local flow control ordinances, but does protect the ability of states to impose a use tax collection obligation. For Chief Justice Roberts, the reverse is apparently true, though in his case he would note that stare decisis was what weighed against the states in the use tax context. (The counter to this is that United Haulers also essentially overturned a precedent, a point well made by Justice Alito in his dissent.)

So Wayfair did hinge on federalism values, I believe, but in a quite complicated way that will require additional unpacking, especially in light of NCAA v. Murphy. This decision, authored by Justice Alito, and joined by Justices Roberts, Kennedy, Thomas, Kagan and Gorsuch, struck down a federal law that made it unlawful for states or their subdivisions to authorize betting on sporting events. The majority thought that this decision followed from the anti-commandeering principle, namely that Congress cannot “issue orders directly to the States.”

As was immediately noted, a broad interpretation of NCAA v. Murphy puts into question numerous federal laws that also restrict the kinds of laws that state legislatures can pass. Such laws are particularly numerous in the field of taxation, where Congress has imposed special rules relating to mobile phones, railroads, pensions etc. And yet both sides in Wayfair seem to agree that Congress could step in and regulate how states can impose a use tax collection obligation. But would not the relevant federal law be, in effect, a prohibition on state legislative power?

This question has been very ably debated by Daniel Hemel, Brian Galle, Rick Hills, Jeff Schmitt and Ilya Somin among others. It seems to me Wayfair is a pretty strong indication that the Court did not mean to undermine the ability of Congress to restrict state taxing power — within limits. Still, Murphy says what it says and so I will add one more way that the Court — and first courts — can reasonably limit Murphy.

In Murphy, Congress was weighing in on a contentious policy matter involving regulating individual conduct on which there is a limited federal interest. The majority in Murphy signals as much in its first line: “Americans have never been of one mind about gambling…” I think that Justices like Kennedy and Alito, relative hawks in other dormant Commerce Clause cases, would argue that preventing balkanization of the national marketplace is a very different matter from imposing a one-size fits all rule about sports betting. Protecting the national marketplace is a core concern of the Commerce Clause and indeed of our whole constitutional order, a point made particularly well by Brain Galle. I know that this kind of analysis is mushy and that the Court in Murphy instead focused on the issue of whether or not the federal government is regulating a private actor, but that rubric does not work to explain how and why Congress can act to limit state taxing power post Wayfair.

Focusing on the importance and centrality of the federal interest means, in effect, that the Court is applying a kind of proportionality analysis, a very common method of deciding constitutional cases, though not in our tradition (at least not explicitly). I think applying some form of the proportionality principle is the right answer not only to the question posed by Murphy, but also to the question posed by Quill/Wayfair. The Court in Wayfair does not explicitly shift to a kind of balancing test (in particular, Pike balancing), but its retention of a “substantial nexus” standard without much further guidance seems to invite the states to engage in balancing. Clearly, a remote vendor can now be asked to collect the use tax even without a physical presence, but, just as clearly, remote vendors can only be asked to do so if there is sufficient nexus. Thoughtful balancing of the legitimately opposing interests is therefore the way forward.

July 23, 2018

State Options After Wayfair


By Darien Shanske (with David Gamage and Adam Thimmesch)

[Cross-posted from Medium]

In Wayfair, the Supreme Court overturned the bright-line physical presence rule imposed by Quill. A state can now require an out-of-state vendor to collect the use tax even if that vendor does not have a physical presence within the state. The underlying standard governing when states can impose a use tax collection obligation remains the same: there must be a “substantial nexus.” But what constitutes a substantial nexus? The Court does not give any general guidance, but does make it clear that this standard was satisfied in this case. Alas, the Court’s reasoning as to this case is reasoning is ambiguous. Here is the key paragraph:

Here, the nexus is clearly sufficient based on both the economic and virtual contacts respondents have with the State. The Act applies only to sellers that deliver more than $100,000 of goods or services into South Dakota or engage in 200 or more separate transactions for the delivery of goods and services into the State on an annual basis. S. B. 106, §1. This quantity of business could not have occurred unless the seller availed itself of the substantial privilege of carrying on business in South Dakota. And respondents are large, national companies that undoubtedly maintain an extensive virtual presence. Thus, the substantial nexus requirement of Complete Auto is satisfied in this case.

The first sentence of this paragraph suggests that two inquiries are relevant to nexus: (1) a taxpayer’s economic returns from a state and (2) its activities directed toward a state. The second and third sentences of this paragraph suggest that the South Dakota thresholds require sufficient “economic contacts” for substantial nexus. The fourth sentence, emphasizing the size of respondents, focused on the so-called “virtual contacts” that large, national e-commerce vendors create through their extensive marketing and web presences.

What this paragraph does not do is to address precisely when small sellers have a substantial nexus. What if a small seller has exactly 200 sales, worth $20,000? Given this uncertainty, our advice for states at the moment would be to put in place thresholds similar to South Dakota’s. If they wanted to be better insulated from challenges from very small sellers, and likely at minimal revenue loss, we would suggest adopting even higher thresholds. This would be especially true for non-SSUTA states.

Alas for states looking for guidance, there is more ambiguity in the next paragraph of the opinion. The Court remanded the case to the lower courts to consider other possible challenges to the South Dakota law, including, apparently Pike balancing, which is odd considering that the substantial nexus test is a test for taxes and Pike balancing is a test for regulations. Here is the paragraph:

South Dakota’s tax system includes several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce. First, the Act applies a safe harbor to those who transact only limited business in South Dakota. Second, the Act ensures that no obligation to remit the sales tax may be applied retroactively. S. B. 106, §5.Third, South Dakota is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement. This system standardizes taxes to reduce administrative and compliance costs: It requires a single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules. It also provides sellers access to sales tax administration software paid for by the State. Sellers who choose to use such software are immune from audit liability.

Though we agree that Pike balancing should apply, we wish the Court would have explained why it should apply. Furthermore, and more importantly for states, the Court does not offer any guidance as to which of these aspects of South Dakota’s law is the most important. Crucially, it may not be too difficult for a state to emulate South Dakota’s thresholds, but it might be very difficult for a state to join the SSUTA or otherwise simplify its tax system in a comparable manner.

Our advice here is that states that cannot engage in substantial simplification — and perhaps even states that can — should offer meaningful vendor reimbursement for compliance costs and/or offer free compliance software that immunizes vendors who rely upon it. (One of us discussed this first approach at length in a prior article here; and two of us discussed this second approach in a prior essay here.)

We do not think that these approaches are necessarily required by the Court’s opinion; substantial enough simplification of a state’s sales and use tax, roughly equivalent to that required by the SSUTA, should suffice. But we do think that adopting one of these approaches makes for good, sensible policy. If, for whatever reason, a state wants to retain a more complicated sales and use tax system or simply does not wish to conform their sales and use tax system with that of other states, then it is only fair that states compensate vendors for the costs they incur in collecting sales and use taxes.

July 17, 2018

Eps. 24, 25: 'Taking the Fifth,' 'Justice Kennedy'

By Elizabeth Joh

Anthony M. Kennedy's announcement in late June that he was retiring from the U.S. Supreme Court merited a special edition of the podcast "What Trump Can Teach Us About Con Law." Episode 25, "Justice Kennedy," is devoted to Kennedy, the mostly conservative justice who delivered swing votes in key decisions on abortion, LGBTQ rights and affirmative action.

The special episode followed closely on the heels of episode 24, "Taking the Fifth." President Trump says it makes people look guilty. Yet he and people associated with him have done it. This episode traces the practice of pleading the Fifth back to the Cold War and the Hollywood Ten, who probably should have invoked the Fifth instead of the First Amendment.

May 30, 2018

A Friendly Court

by Anupam Chander

An award ceremony has the risk of being largely predictable, even if worthwhile. The presenter makes the usual remarks about the namesake of the award and the honoree, and the honoree is duly grateful. I was privileged to attend an award ceremony in Washington D.C. this week that well-exceeded the usual standard. The occasion was the award of the Henry J. Friendly Medal of the American Law Institute (ALI) presented by Chief Justice John Roberts to Associate Justice Ruth Bader Ginsburg at the ALI’s annual meeting in Washington D.C. earlier this week. The Medal is named in honor of the famed Second Circuit judge, who served on the bench from 1959 to 1986. Chief Justice Roberts observed that Judge Friendly has often been regarded as the most important United States jurist never to sit on the U.S. Supreme Court. Judge Ray Lohier of the Second Circuit Court of Appeals spearheaded the nomination, and it was approved by acclamation of the American Law Institute’s Council. It was Chief Justice Roberts who approached the ALI to present the award. 

Chief Justice Roberts had himself clerked for Judge Friendly, as did a number of prominent members of the ALI, including Professors Bruce Ackerman and Ruth Wedgwood and Judge Merrick Garland. I have long admired Judge Friendly myself. When I clerked for Judge Jon O. Newman of the Second Circuit, his New York offices had once been the chambers of Judge Friendly himself. Given Judge Newman’s frugality and concern for the public fisc, I’m confident that we still had the old chairs and desks that Judge Friendly’s clerks used. I then went on to become an associate at the law firm of Cleary, Gottlieb, Steen and Hamilton, which had been cofounded by Judge Friendly. 

Chief Justice Roberts uncovered letters between Justice Ginsburg and Judge Friendly—where she forwarded him, for his appraisal, an opinion (Norris v District of Columbia, 737 F.2d 1148 (D.C. Cir. 1984)) she had authored as then-Circuit Judge citing one of his precedents (Johnson v. Glick). Chief Justice Roberts reported that Judge Friendly had approved of her interpretation of his opinion and saw her as a rising star. The Chief also remarked on Justice Ginsburg’s quality of work—and mentioned her special interest in “jabots”—a term I had to look up. Jabots, for those like me who didn’t know, are the decorative collars, which Justice Ginsburg uses to accessorize her judicial robes (for more, see this Bustle article)

The level of respect and admiration for his senior colleague was palpable in the Chief Justice’s remarks. Inviting her to receive the award, Chief Justice Roberts joked that he was happy to participate in this effort “to increase your public profile.”

Justice Ginsburg’s address was quite humble. She picked up with the Chief’s joke. She explained the origin of her current “notoriety” as the work of a law student. It was a 2L at NYU who had apparently noticed some (perhaps unlikely) similarity between Justice Ginsburg and rapper Notorious B.I.G. Justice Ginsburg declared they were indeed alike—they both hailed from Brooklyn! Thus were born all manner of paraphernalia sporting her new moniker. She went on to describe the generational shift in opportunities that she had been afforded compared to the women of generation prior to hers (she did not mention the many opportunities in law she had been denied): “What is the difference between a garment worker in New York City and a Supreme Court Justice?” she riddled. She answered, “A generation.”

Justice Ginsburg also spoke of Judge Friendly, relaying an oral argument that she had attended at the Second Circuit in which Judge Friendly had asked a particularly penetrating question to the advocate, who happened to be her husband, Marty Ginsburg. 

In sharp contrast to the collegiality displayed by Justices Ginsburg and Roberts, the process of Supreme Court Justice confirmation is no longer characterized by collaboration. Justice Ginsburg lamented the recent politicization of the Supreme Court confirmation process. She noted that only three Senators voted no on her candidacy, while dozens of Senators voted no on more recent appointments. Furthermore, she noted that no Senator asked her to defend her role as a card-carrying member--and cofounder of the women’s rights project--of the ACLU.

This was my first meeting as a new member of the American Law Institute, the long-standing group of jurists, lawyers and academics that publishes the Restatements of Law and the Principles of Law that practitioners and judges often rely on to apply the law. The award ceremony perfectly encapsulates the spirit of bipartisan engagement that characterizes ALI. The ALI includes lawyers who generally respresent plantiffs, as well as lawyers who generally represent defendants. The ALI relies on civil discourse and the quality of argument to arrive at its answers for the significant questions it asks.

The UC Davis law faculty includes ALI members Dean Kevin R. Johnson and Professors Ashutosh Bhagwat, Gabriel "Jack" Chin, William S. Dodge, Floyd F. Feeney, Robert W. Hillman, Thomas W. Joo, and Leticia Saucedo, as well as Professors Emeriti Alan Brownstein, Carol S. Bruch, Joel C. Dobris, Daniel W. Fessler, Angela P. Harris, John B. Oakley, Rex R. Perschbacher, Edward H. Rabin, Daniel L. Simmons, and Bruce Wolk.