Monday, June 25, 2012


Let's consider this an open thread on the key rulings that the SCOTUS will hand down / has handed down this week.  As always, don't expect anything profound from me.  But I am intrigued by the dissents in the Arizona S.B. 1070 ruling handed down today.

Justice Alito argues that a couple of the sections at issue implicate state police powers, so there has to be clear and manifest intent of Congress to find preemption.  Justice Alito attacks the Government's arguments as "unprecedented," but nothing that I would call partisan.  So alright.  Reasonable minds can differ.  But ok.

Justice Thomas thinks that you can only compare the words of the state statute and the federal statute to see if there is actual conflict.  Justice Thomas seems to think that States will not be crafty and that Congress has all the time in the world to review every single state statute that may conflict with federal law, then change said federal law to ensure that blah blah blah.  This is outrageous on its face and laughable.  Of course, that's the idea.  On paper, the philosophy sounds simple and straight forward.  So simple, that anyone with an 8th grade education can appreciate it.  But in reality, it's impossible to administer.  Even more impossible to ever find that the federal laws preempt any state laws.  In the end, "[s]ay what you will about the tenets of [Justice Thomas], at least it's an ethos."

Which brings us to Justice Scalia.  I just don't understand his argument.  He seems to treat states as full sovereigns not bound by the supremacy clause.  The gist, if I understand it, is that for 100 years, states were able to exclude all sorts of people, and they should continue to do so now.  It's almost like 200 years of history, including a Civil War that settled the question of the scope of state sovereignty, do not exist in the world of Justice Scalia.  Justice Scalia firmly believes that this part of the state's core sovereignty, and as long as the states are admitting those admissible under federal law and excluding those excluded by federal law, everything is Kosher.  Certainly any jurisprudence about Congress's plenary power over immigration is a footnote at best--merely a part of the "so-called field preemption."  This is a remarkable distortion of the relationship of the states to the federal government.  How is it possible that Justice Scalia can look at Art. I, sec. 9 (the clause precluding Congress from prohibiting the importation of slaves for 20 years) with a straight face and claim that it manifests a state's power to exclude.   

Justice Scalia doesn't stop there.  For example, he asks, rhetorically, "Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?  A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test."  Well, no.  That's not a good way of answering the question.  Pragmatically speaking, would the States have entered the Union if the Constitution contained the Court's holding and the States were aware of the advances in transportation and human mobility that would unfold in the next 220 years?  If we want to take this to the rhetorical extreme, we can also ask, would states have joined the Union without the 3/5 compromise?  No?  Oh well if not for the 13th and 14th Amendments, we should bring that back as well.  This is, again, a remarkable bait and switch that ignores the most recent 100 years of history and jurisprudence while embracing language in the Articles of Confederation.  It's nonsense.  The rest of the dissent takes hacks at the President's recent announcement on deferred action (though curiously, while attacking the resources that would be required to implement the President's policy, Justice Scalia is silent as to the resources that would otherwise be required to deport the aliens that fall under the umbrella of the policy).  Like I said, I just don't get it.

UPDATE 1:  When I first drafted this post, I included a sentence wondering if Scalia's dissent meant that he did not get his way in the ACA rulings.  Sounds like others are thinking along the same lines. 

WaPo has a great story on Bryan Stevenson, the NYU law professor who argued the juvenile life in prison cases.  Stevenson was the speaker for my class graduation.  An inspired selection, especially in hindsight.

UPDATE 2:  Well, here it is.  Initial thoughts listening to NPR on the way in to work:  Roberts is a genius.  There are a lot of reasons for that statement, but I believe, 10, 20, 50 years from now, his opinion on the Commerce Clause will be the equivalent of Justice Jackson's concurrence in Youngstown.  If you're a libertarian aching to claw back Congress's commerce clause authority to pre-New Deal days, this is your opinion.  In just a few pages, Roberts (1) establishes limits on Wickard ("The farmer in Wickard was at least actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce. The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do") (Opinion of Roberts, C.J., Slip Op. at 22); (2) takes the "broccoli" argument and reshapes it into a coherent legal argument about the government regulating diet based on the increased cost on health care (id. at 22-23); (3) establishes that the "necessary and proper clause" requires the act to be both necessary as well as proper, something previously left to the best guesses of law professors.  ("Even if the individual mandate is 'necessary' to the Act’s insurance reforms, such an expansion of federal power is not a 'proper' means for making those reforms effective.") (id. at 30). 



Anonymous Anonymous said...

The Supreme Court is just politics as usual these days.

6/25/2012 11:08 AM  
Anonymous Anonymous said...

So do fans of judicial restraint have to forgive Roberts for Citizens United now?

6/28/2012 9:58 AM  
Blogger Patrick said...

Speaking of restraint, what is the deal with Roberts’ lengthy commerce clause discussion? Why the detailed consideration of whether something is “activity” – a newly articulated distinction in constitutional law, even if arguably discernible from prior cases – when the decision rested elsewhere?

I’m not sure I buy the whole “activity” distinction, because the commerce power applies to things that “affect” interstate commerce, but there was no need for him to get into all of that in the first place. Advisory opinion, anyone?

6/28/2012 10:13 AM  
Blogger Armen said...

You know, I've always hated this "he's one of us, no wait, he's one of them" type characterizations of the justices. It's almost like watching WWF (I know I'm dating myself here) fans turning on a wrestler based on the script du jour. Just as an example, even though I have to shake my head at Justice Scalia's dissent in the Arizona case, his 6th Amendment jurisprudence (based on an originalist view of the right to a jury trial) has reshaped the world of criminal sentencing. Radically. And for the better in my opinion. So this isn't about forgiving or what have you.

Patrick, I'm starting to buy into the Solove/Bernstein argument that the dissent was the majority, but Roberts switched his vote (again with a Roberts vote switch???) I think he thought he would get an opinion of the Court on the commerce clause. But his vote switch pissed off the other four so much, they didn't sign on. I mean, how often do you see a dissent signed by all four justices? Normally you have a dissent signed by one, joined by the others. There's a lot of tension here.

6/28/2012 10:18 AM  
Anonymous Anonymous said...

Is Roberts' lengthy CC discussion more justified given that the commerce justification was overwhelmingly the primary basis for the government's case?

6/28/2012 10:24 AM  
Blogger Armen said...

10:24, compare this sentence with the actual opinions:

"Because we uphold the individual mandate under Congress's taxing power, we need not address the Government's commerce clause arguments."

But that's not what happened. You have the Chief writing dream opinion on the limits of Congress's commerce clause authority. You have Justice Ginsburg railing against it. And you have four others writing the same thing as the Chief but in a high school clickish way. So, again, I bet at some point, the CC holding was the opinion of the court. Now, it's a large chunk of who knows what.

6/28/2012 10:29 AM  
Blogger Armen said...

To clarify, it's not my dream, but a dream opinion for someone who wants limited CC authority for Congress.

6/28/2012 10:30 AM  
Blogger Patrick said...

10:24, that’s the rationale Roberts gives in the opinion. He says we have to consider this because the government put it so front-and-center. “Whether the parties really, really care” is not exactly the test for judicial review, though.

The commerce analysis would fit better if the taxing/spending issues were doctrinally related to the commerce issues -- i.e., if a court could reach taxing arguments only after reviewing commerce arguments. But that’s not how it works. Neither depends in any way on the other, and Roberts could have written his opinion without any commerce analysis at all. The decision didn’t rely upon it, the reasoning didn’t rely upon it, and – strictly speaking – the case isn’t precedent on it.

So why the hell is it there? Armen’s ‘artifact’ theory makes at least as much sense as anything I can think of.

6/28/2012 10:32 AM  
Blogger Dan said...

I am sensing a Marbury-ness to this decision. Roberts gave Obama what he wanted in this case, but in doing so, may have dramatically scaled back the commerce clause for the long term. I'm not sure that's a bad thing, but it is classic supreme court.

6/28/2012 10:32 AM  
Anonymous Anonymous said...

Even if the commerce discussion is all dicta, it's nonetheless likely to have a large influence on both jurisprudence and legislation going forward, right?

6/28/2012 10:40 AM  
Anonymous Anonymous said...

i think this hurts Obama's reelection prospects. he lied and told us it wasn't a tax, will be the story.

6/28/2012 10:42 AM  
Blogger Armen said...

It's all relative right? Compare that to, "He's a constitutional law professor and doesn't know what's constitutional!"

6/28/2012 10:44 AM  
Blogger Patrick said...

Agree with 10:40. You can bet that commerce legislation going forward will make sure to call out that it is regulating an "activity."

And agree with 10:42 at least in part -- Obama now gets to be the guy who crammed a mandate down people's throats AND imposed more federal taxes. But this is better for him than a defeat in the Supreme Court would have been, don't you think?

6/28/2012 10:45 AM  
Anonymous Anonymous said...

Does it matter much whether commerce legislation recites that it's regulating an "activity"? Is this likely to have a substantive effect on what does and doesn't get done, or upheld?

6/28/2012 10:50 AM  
Blogger Armen said...

OK, I'm not totally convinced the dissent was the majority at one point.

1. I don't know how many times they call Justice Ginsburg's opinion "The dissent."

2. The tax section, you know, the arguments UPHOLDING THE ENTIRE ACT, only addresses the Government's arguments, NOT the Chief's. That is beyond bizarre.

3. The severability section is another section that fights a phantom enemy. None of the other opinions say a damn thing about severability. Yet, here's this whole section. It doesn't even start off with the usual hypothetical language you see in dissents, like, "Because we would hold X, we would also hold Y." It just dives right on in.

4. The conclusion section of the dissent is the final tell. It's the only section to really address the actual opinion of the Court. I'm no forensic expert, but it's really hard not to conclude that the previous majority opinion was hardly changed following the Chief's switch. They only added a concluding section, but otherwise dropped their pens and called it a day.

6/28/2012 11:42 AM  
Anonymous Anonymous said...

I'm pretty sure Justice Kennedy uses a dictaphone, not a pen.

6/28/2012 12:19 PM  
Blogger Jackie O said...

Patrick - the tax section of Roberts' opinion reads like it IS only considering the tax option because the commerce option first failed:

"The Government asks us to interpret the
mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below."

I agree that it was wholly unnecessary to even reach the commerce issue. But it's interesting how Roberts framed it: the Government only asked us to consider it a tax if the Commerce clause failed, so we gave them what they wanted.

Again, not really how judicial review works, but whatever.

6/28/2012 12:22 PM  
Blogger Jackie O said...

Also @ Patrick, regarding your 10:13 comment, as Roberts points out, the precedent commerce clause cases allow regulation of "activities" affecting interstate commerce, not "things." :)

6/28/2012 12:28 PM  
Blogger Jackie O said...

Actually, here's Roberts explaining even more clearly why he's touching the commerce issue (I'll stop now):

JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the
Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause
question, I would find no basis to adopt such a saving construction.

6/28/2012 12:40 PM  
Blogger Armen said...

The BLT has a great post on the audience perspective of the ruling.

Money quote, "Roberts said that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr. had authored a "joint dissent" -- an unusual formulation, since usually a single justice writes a dissent that is joined by others. Could it mean that the dissent started its life as the majority opinion, but lost Roberts midstream?" Mmmmm, confirmation bias.

6/28/2012 1:03 PM  
Blogger Patrick said...

Hocus pocus.

At bottom he’s saying he must consider the commerce clause analysis because (1) that’s where he would rather uphold the law, if he could, and (2) the law qualifies as a tax only narrowly.

Huh? So what? Neither of those justifies a long, dictum examination and articulation of a new test given under one provision of the constitution, when the case is decided under another.

The last sentence quoted by Jackie O above is, to me, even stranger. It implies that the preference to uphold federal statutes if at all possible somehow converts the commerce analysis into a prerequisite for the taxing/spending analysis. Not to put too fine a point on it, but that’s bullshit.

6/28/2012 1:05 PM  
Blogger Patrick said...

. . . Armen’s explanation continues to make the most sense to me. Which is sort of surprising, because the guy barely speaks English.

6/28/2012 1:09 PM  
Blogger Armen said...

Nice link, wordsmith.

6/28/2012 1:10 PM  
Blogger Patrick said...

. . . Armen’s explanation continues to make the most sense to me. Which is sort of surprising, because the guy barely even speaks English:

6/28/2012 1:11 PM  
Anonymous Anonymous said...

Hopefully this is will be the high-water mark of the attempt to bring us all back pre-Lochner. Obama gets re-elected, seats a couple of sane justices and the court starts moving back to the pre-90s center.

6/28/2012 4:18 PM  
Blogger Jackie O said...

Armen, more support that you are very astute. I love the speculation as to why the dissenting Justices (and their clerks) left the references to Ginsburg's "dissent" unchanged.

6/29/2012 1:53 PM  
Blogger Armen said...

Thanks Jackie. I just noticed the typo in my own comment above: "I am *now firmly convinced..."

12:19 -- "I'm pretty sure Justice Kennedy uses a dictaphone, not a pen." Probably, except I now doubt he even wrote the dissent. I had not thought about this, but I think I heard on NPR (or maybe I was just dreaming) that some think Roberts wrote the dissent, changed his vote, wrote the majority, and the remaining four justices simply adopted that opinion as a "Joint Dissent." Explains why none of them specifically signed their name to it. Kennedy probably just wrote the grandiose conclusion about teaching the public about structure.

As for the debate on the discussion of the CC argument in the opinions, I have a theory. I think Roberts, as a way of throwing a bone to conservatives, or for the sake of his own principles, was trying to pull a Justice Ginsburg circa United States v. Booker. Justice Ginsburg sided with four justices who believed that the sentencing guidelines were unconstitutional for permitting judicial findings of fact to determine sentencing but then sided with the other four justices in concluding that the proper remedy was to make the guidelines advisory and not mandatory. So you had only one justice who believed in both outcomes, but you had two opinions of the court.

I think this is what Roberts was aiming for. An opinion of the court that substantially limits Congressional power under the commerce clause and an opinion of the court upholding the ACA on narrow grounds. Why on Earth would four justices not join his opinion on the CC argument? Well, if you feel really betrayed by a vote switch, you might be inclined to not to co-sign anything the traitor has to say, no matter how appealing to your broader cause.

6/29/2012 2:14 PM  
Anonymous Anonymous said...

Yo, can we get a thread going about DE's efforts to take the Chancellor gig? I know he's got a lot of powerful friends, but he's also managed to piss quite a few people off. How do people handicap his chances?

7/07/2012 2:08 PM  
Anonymous Anonymous said...

Hey, does anyone know when CLR results for 1Ls will be released? Maybe start a separate thread about CLR (whether or not it's worth it, write-on horror stories, etc)?

7/11/2012 6:53 PM  

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