Opinion Analysis: Dept. of Commerce v. New York

by Jason Frey

For months, the Supreme Court has been considering Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the 2020 census. When the Secretary announced this change in March 2018, advocacy groups and the New York state government filed lawsuits against the Department of Commerce. The United States District Court for the Southern District of New York ruled that out of the three accusations leveled against Ross—1) a violation of the Enumeration Clause, 2) a violation of the Equal Protection Clause, and 3) a violation of the Census Act under 13 U.S.C.—only the first claim was invalid, and it allowed the others to continue through the courts. Then, the District Court concluded that Ross’s decision was illegal according to the Census Act and Administrative Procedure Act, even if his actions didn’t inherently violate a constitutional provision. 

In January 2019 the case arrived at the Supreme Court. The justices considered whether the District Court was correct in commanding the Secretary to remove the question from the census and in ordering investigation outside the administrative record—i.e. gathering personal emails, conference transcripts, meeting schedules, etc.—into Ross’ decision-making when there is no evidence that he disbelieved the data before him. 

Chief Justice Roberts, writing for the majority, partially affirmed the decision of the District Court, partially reversed it, and remanded the case to the Department of Commerce. This is a fairly complex opinion, so I will try my best to lay out each part of the ruling and explain the nuances of the suit’s legal standing.

Roberts begins by affirming the Court’s ability to review this issue under its jurisdiction. He refers to Article III of the Constitution, which “limits federal courts to deciding ‘Cases’ and ‘Controversies,’” defined as disputes in which “at least one plaintiff must have standing to sue.” In order to have legal standing, one of the plaintiffs must show actual or imminent injuries resulting from the defendant’s actions. Here, if the census question were added, response rates were expected to decrease significantly. Roberts agreed that this predicted decrease counts as an imminent injury for the plaintiffs (as even a 2% drop in population count can disqualify a state from federal funding), so they have legal standing to sue. This was a major point of contention in the oral arguments, with the petitioners attacking the statistical models generated by the Census Bureau. Roberts also rejected the argument that, because it’s illegal to not respond to the census,  the Department of Commerce isn’t responsible for ramifications of the citizenship question. 

The Chief Justice then reverses part of the District Court’s ruling by holding that Ross didn’t violate the Enumeration Clause. Roberts relies on precedent and Congress’s right to administer the census to conclude that the Secretary was within his power to conduct the census how he wished. In deciding this, Roberts contradicts calls to use a “reasonable relationship” standard to evaluate Ross’ action. A “reasonable relationship” is any action that is logically connected to the accomplishment of a certain task—in this case, that standard would review all of Ross’ actions based on whether or not they further the goal of counting the total U.S. population. The majority found this standard unreasonable because it would invalidate almost any question asked on the census, regardless of its connection to the response rate. Instead, Roberts contended that Congress’ long history of delegating census administration to the executive branch and ingrained practices in the federal government give Ross leeway to count the population how he sees fit.

To prove that the Court can review an administration’s performance, Roberts affirms the judgement that the Administrative Procedure Act allows the Court to rule on certain actions. Though conceding that there is an exception for some procedures, Roberts insists that such procedures have been limited to “certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion,’” of which conducting the census is not one.
Roberts then reverses the ruling that the Secretary irrationally and unlawfully decided to add the question to the census. The District Court concluded that the Secretary of Commerce “arbitrarily and capriciously” ordered the Department of Commerce to reinstate the citizenship question, but Roberts completely denies that interpretation. In fact, the Chief wrote that Ross fairly weighed the four options offered to him by the Census Bureau on how to collect the information (each of them some combination of using administrative records or directly asking the question) and deduced that though using on-hand records is fairly accurate, it was not accurate enough. Roberts even included a slight dig at Justice Breyer, denouncing the Associate Justice’s opinion that Ross’s decision was arbitrary and capricious and calling it “pessimistic.” 

The plurality next reverses the finding that the Secretary violated the Census Act. In the original trial, the District Court agreed with the plaintiffs that Ross violated 13 U.S.C. §6(c) and §141(f); for some background on those specific provisions, check out my previous article on this case. However, Roberts argued that for the same reasons that the Secretary’s decision wasn’t arbitrary and capricious, it also complied with the requirement found in §6(c) that the Secretary of Commerce must use administrative records “to the maximum extent possible.” The Chief Justice believed that because Ross considered multiple solutions for collecting citizenship information, he was justified in using administrative records solely as a supplement to the census responses, which satisfies the condition of §6(c). The Court also looked at §141(f), which requires the Secretary to report to Congress about the census in advance. Because Ross didn’t inform Congress about the citizenship question in his March 2017 report, the District Court found that he had violated §141(f). Roberts disagreed, writing that Ross’s March 2018 report met the requirements of the law.

Finally, the Supreme Court had to answer the second question of this case: whether a District Court may “order discovery outside the administrative record to probe the mental processes of the agency decision maker … when there is no evidence that the decision maker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.” This is by far the most fascinating part of the opinion, and it’s also where the Court definitively blocked the citizenship question from the 2020 census. 

Roberts recognized that the District Court invoked an “exception to the general rule against inquiring into ‘the mental processes of administrative decisionmakers,’” for the court believed that there was “strong showing of bad faith or improper behavior.” Here, while Roberts acknowledges that the District Court’s order to gather more information may have been premature, it was necessary because Ross’ stated reason for collecting citizenship data—to enforce the Voting Rights Act—was contrived. He seemingly agrees with Justice Kagan’s oral argument comment that this reasoning seemed like a “post-hoc rationalization.” Roberts concludes the opinion by affirming the District Court’s probe into extra-administrative record and at the same time calling for “reasoned decisionmaking.” 

I think that Roberts did the right thing here. This opinion was clear, direct, and reasoned. I commend him for balancing both the Secretary’s power to make administrative decisions and the cost of allowing this decision to proceed. The only part of the opinion that I disagree with is Roberts’ assertion that Ross did not violate §6(c). After reading the briefs and listening to the oral arguments, it seemed to me like Ross did everything in his power to choose the option that limited the use of administrative records, contrary to the statistical evidence presented to him. For example, the Department of Commerce argued that because Ross didn’t allow the final statistical models to be generated — and as a result, it couldn’t produce peer-reviewed margins of error — it was unacceptable to use the records at all. This argument is nonsensical. Apart from that, it seems like Department of Commerce v. New York has come to a logical end.

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Opinion Analysis: American Legion v. American Humanist Association

by Jackson Foster

Last week, the Supreme Court ruled in American Legion v. American Humanist Association, allowing a 94 year-old commemorative cross to remain on public land and causing scholars to scramble for meaning in the seven published opinions. The takeaways are almost as variant as the opinions themselves. Some claim that this case created a workable standard for future Establishment issues, while others call it an outcome-oriented plurality. I’ll try to leave my stances out until the end of this analysis, but I ask the reader to heed the words of Justice Kagan (in Kisor v. Wilkie) before we dive in: “Judges are most likely to come to divergent conclusions when they are least likely to know what they are doing.” 

Writing for the Court, Justice Alito presents the following thesis: “The passage of time gives rise to a strong presumption of constitutionality.” But why does the cross’s old age matter so much for Establishment purposes? He outlines four key reasons in his opinion. 

1) “In … cases [when a religious symbol has become a long-standing fixture], identifying their original purpose or purposes may be especially difficult.”

Alito uses Salazar v. Buono as an example of this principle in action. In Salazar, a commemorative cross stood on the public Mojave National Preserve, but it lacked any documentation of purpose. Because we do not know whether the Salazar cross was exclusively built for Christian servicemen, or white servicemen, or neither, or both, Justice Alito asks that we understand the cross as having the most historically innocuous meaning— that of inclusive commemoration and, therefore, of a secular purpose. 

This prong can’t be readily applied to the peace cross, since Alito believes it already has a straightforward original meaning— a “special significance in commemorating World War I, [d]ue in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers”— that is supported by records of fundraising solicitations and dedication speeches. The lone dissent, authored by Justice Ginsburg, disputes this assertion: “Using the cross as a war memorial does not transform it into a secular symbol.” We’ll review this controversy in greater detail with the rest of Ginsburg’s dissent. 

2) “As time goes by, the purposes associated with an established monument, symbol, or practice often multiply.”

Alito cites several examples as support, including the Ten Commandments in Van Orden and a few “secularized” crosses (ex: Johnson & Johnson, Blue Cross Blue Shield, and Red Cross). He likewise references the Notre Dame Cathedral, which has become inextricably linked with French identity (especially since the recent fire). Quoting French President Macron, Alito argues Notre Dame’s association is far larger than the Paris archdiocese: It “is [French] history, … literature, [and] imagination … It has been the epicenter of [French] lives.” 

Alito argues that the logic of prong two holds for the peace cross as well. Since the cross’s dedication, “memorials honoring the veterans of other conflicts have been added to the surrounding area, which is now known as Veterans Memorial Park.” These memorials, in turn, multiply the cross’s purpose; it now serves as “the site of patriotic events honoring veterans, including gatherings on Veterans Day, Memorial Day, and Independence Day.” What was once originally designed for veterans of WWI has 1) expanded to include those who fought in WWII, Korea, and Vietnam and 2) become a center for the civic holidays that form American civil religion — both of which are secularizing factors.

3) “Just as the purpose for maintaining a monument, symbol, or practice may evolve, [t]he message conveyed . . . may change over time” (internal quotations omitted). 

It’s hard to distinguish prong two from prong three, since purpose and message beget each other in a “chicken-or-egg” sort of circularism. So let’s consider the two using an example in the mold of Lynch v. Donnelly:

Citizens for the Nativity places a creche in a busy mall in December for the express purpose of ‘demonstrating the values of faith and family’ — a purpose just ambiguous enough to pass the town council’s scrutiny. The creche stands alone for a couple of years, but within a decade it is joined by a Christmas tree, a Star of David, and a Macy’s ad wishing ‘Happy Holidays to Every People and Creed.’ Soon afterwards, a group of atheists object to the display, claiming the creche is an explicitly religious object. 

Except, according to Alito’s logic, it isn’t anymore. Its purpose — which was once to extol certain Christian conceptions during a Christian holiday — has changed with time, and the creche now also represents a nonsectarian celebration of tolerance and commercial spending. So too its message is altered. 

4) “When time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning.”

We’ve arrived at the rhetorical meat of the plurality’s argument— but what does “neutral” even mean here? Well, Alito defines the absence of neutrality “as the manifestation of a hostility toward religion” (internal quotations omitted). As such, this doesn’t seem to be particularly relevant to the peace cross, since the Court established that the cross isn’t strictly religious. 

Take Salazar as an example again. After the case was heard by the Court, the Salazar cross was removed by a vandal, eliciting a rather strong response not from Christians, but from the Veterans of Foreign Wars: “This was a legal fight that a vandal just made personal to 50 million veterans, military personnel and their families,” National Commander Thomas J. Tradewell said. It’s dubious that removal by the government, instead of a vandal, would so drastically reshape the conception of what the party doing the removing is really attacking. 

If one looks at this argument more charitably, though, one might understand it as follows: The Bladensburg cross can stay standing because 1) we’re not quite sure of its original purpose, 2) it has gained a multitude of other commemorative and civic purposes, 3) with these other purposes it sends a more secular message than it might have before, 4) and yet it’s still religious enough that removing it would show government hostility towards religion. 

So where do all of the concurrences fit with Alito’s more “historically sensitive approach?”

Kagan “fully agree[s]” with the Court’s decision and rationale; as does Breyer, whose opinion in Van Orden is cited eight times in the plurality’s decision. Breyer, though, would add two caveats to the Court’s holding. One, there must be “no evidence … that [suggests the creators of a commemorative object with religious significance] sought to disparage or exclude any [other] religious group.” Two, the “history and tradition” test does not permit “any newly constructed religious memorial on public land.”

Justice Gorsuch, who concurs in judgement, asks, “How old must a monument, symbol, or practice be to qualify for this new presumption [of constitutionality]?” He then wonders where this requirement can be found in the Constitution. With these questions unanswered, Gorsuch suggests that “whether a monument, symbol, or practice is old or new,” the Court should apply Town of Greece v. Galloway instead of Lemon. 

This anti-Lemon sentiment seems to be the consensus of the Court. Justice Alito notes that Lemon has failed to meet its “expectation” to “provide a framework for all future Establishment Clause decisions.” Justice Kavanaugh, in his concurrence, claims that the Lemon test fails to apply to any of the five categories of Establishment Clause jurisprudence: It “is not good law.” Justice Thomas goes further, asking the Court to entirely overrule Lemon. Only Kagan, who recognizes the test is imperfect, defends its “focus on purposes and effects, [which] is crucial in evaluating government action.”

What, then, happens to Lemon? 

Thomas and Kavanaugh both embrace a “coercion” test, but in different ways. Thomas refers to Scalia’s coercive test, where coercion can only exist “[towards] religious orthodoxy and [for] financial support by force of law and threat of penalty.” It does not apply to the ‘minutiae,’ like sectarian religious speech or displays. Kavanaugh doesn’t define coercion in his concurrence in American Legion, but if he draws inspiration from Justice Kennedy, then his coercion is when the government “act[s] in a way” which establishes religion “or tends to do so” (Lee v. Weisman).  

Kavanaugh also offers a set of conditions that, when met, “ordinarily” indicate “no Establishment Clause violation”:

“If [a] challenged government practice is not coercive; and if it is 

1. rooted in history and tradition; or 
2. treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or 
3. represents a permissible legislative accommodation or exemption from a generally applicable law.”

These conditions may become law in the next Establishment case, so a detailed review of the consequences is essential. First, the baseline standard of an Establishment violation would be coercion, which includes more subtle considerations than monarchical persecution (like psychological duress). Second, “history and tradition” are legitimate constitutionalizing forces: This is a tacit encouragement to use the Town of Greece standard when a practice is old. 

The last two clauses create an environment in which the government can “advance religion,” which might seem like a drastic change to previous Establishment Clause jurisprudence. But Lemon only prohibits the advancement of religion when it is the “principal or primary effect;” not when religion is advanced only “to some extent,” which is the language Kavanaugh uses to demonstrate Lemon’s inapplicability in cases like Corporation of Presiding Bishop v. Amos and Mueller v. Allen.

So Lemon, perhaps no longer a ghoul in the Scalian sense, is certainly a zombie. It’s unlikely the Court will ever approve government action that is explicitly religious or that primarily (in the most literal sense) advances religion, so those bits of may Lemon persist; but the Court will surely be more deferential to the secularizing features of time and less hostile towards the government’s presence in religious matters. 

Finally, Justice Ginsburg, joined by Justice Sotomayor, dissents. In doing so, she disagrees with the plurality’s historical narrative: “The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity.” Further, “Everyone … saw the Latin cross as a Christian symbol, not as a universal or secular one.”

“The Peace Cross,” to Ginsburg, “is no exception.” Consider this excerpt from a fundraising form for the cross: “We …  trusting in God, the Supreme Ruler of the Universe, Pledge Faith in our Brothers … Their Mortal Bodies have turned to dust, but their spirit Lives.” If you’re not Christian, or not a student of religion, then it may be difficult to recognize the numerous appeals to the Christian ethic hidden above. For example, “dust” is a reference to God’s punishment for man’s sin in the garden (Genesis 3:19), and the continuation of one’s spirit beyond his mortal body is reminiscent of 2 Corinthains 5:1-10. These appeals extended to the dedication ceremony, in which “the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross symbolic of Calvary” (internal quotations omitted).

Ginsburg asserts that the Court erodes “the Constitution’s commitment to neutrality” in choosing to let this obviously sectarian cross stand. Harkening back to the Jeffersonian “wall of separation,” she articulates the essential instruction of the Establishment Clause as such: “[T]he government may not favor one religion over another, or religion over irreligion.” The peace cross does both, while also placing “indirect coercive pressure upon religious minorities to conform to the prevailing … religion.”

To close, I’d like the reader to consider this brilliant rhetorical question from Prof. Jay Wexler: “Since when does the Constitution protect the interests of entrenched majorities against powerless minorities?” Frankly, it doesn’t — and if there’s any uncertainty on the matter, blame interpretation, not text. 

When I wrote the preview to this case, I expressed concern that the Court might be missing the point: “This cross may pass … scrutiny, but it most certainly does not furnish a safer and more inclusive space for minority sects.” In choosing to demonstrate sensitivity to history (if we’re being honest, this means Christianity), the Court has opposed the inclusive pluralism that our nation has worked to make a reality.

Opinion Summary: Rucho v. Common Cause

by Anna Salvatore

The Supreme Court decided Rucho v. Common Cause this morning, holding by a 5-4 vote that federal courts can’t hear partisan gerrymandering claims. 

It’s well-established that courts can hear legal questions, not political ones. And according to the majority opinion’s author, Chief Justice Roberts, it’s often a political exercise to decide what kinds of map-drawing are fair. “There are no legal standards discernible in the Constitution for making” judgments about partisan gerrymandering, he writes, “let alone limited and precise standards that are clear, manageable, and politically neutral.” 

Voters in North Carolina and Maryland would surely disagree. In 2012, Republican candidates for Congress earned 49% of the votes in North Carolina and 69% of the available seats, causing a federal court to strike down two of the districts as unconstitutional racial gerrymanders. The General Assembly created a new map, as mandated by the court, using technology and voting data to keep a Republican advantage. The difference was that the new districts were shaped along partisan rather than racial lines. And the General Assembly succeeded, for in the 2016 election Republicans won 10 out of 13 North Carolina seats with only 53% of the vote. Same story, different state in Maryland’s case, save for the fact that Democrats were trying to entrench themselves rather than Republicans. 

Terrapin and tarheel voters joined forces in Rucho. They claimed that the gerrymandered districts violated: 

• Their First Amendment right to association,
• The Equal Protection Clause of the 14th Amendment, 
• Article 1, which mandates that Congresspeople be chosen “by the People of the several States”; 
• And the Elections Clause, which gives state legislatures the power to set “Times, Places, and Manner of holding Elections” for Congress. 

The District Court used a three-part test to evaluate their claims. Plaintiffs had to show that 1) the map’s purpose was to “entrench” the incumbent and 2) that the partisan gerrymandering was severe. If the plaintiffs were successful, the mapmakers then had to 3) prove their intent wasn’t prejudiced. 

It’s easy to determine that Maryland and North Carolina’s maps were extreme, but the issue becomes more difficult when we zoom out. For example, what are the characteristics of a fair map — does it “[achieve] a greater number of competitive districts,” or does it allow each party to have “its ‘appropriate’ share of ‘safe’ seats”? Once we’ve established a definition of fairness, writes the Chief Justice, only then can we answer the question of “How much [partisan gerrymandering] is too much?” 

Alas, the majority opinion didn’t allow itself to go that far. “The Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly,” wrote the Chief — and so, just as he called gerrymandering metrics “sociological gobbledygook” in the Gill v. Whitford oral arguments, here he refused to endorse any one metric. Jason Frey previously wrote about the partisan bias measurement and the efficiency gap, two up-and-coming gerrymandering metrics. They were unsurprisingly left on the shelves today. 

Roberts used historical arguments to bolster his decision. Section B of his opinion shows that the Framers deliberately gave map-drawing power to state legislatures, though they knew legislatures would not always follow the public interest, and that the Framers never said federal courts could hear partisan gerrymandering claims. And before we can ask, “Chief, why can the Court intervene in racial gerrymandering and one-person, one-vote cases?” he has an answer for that too. 

“[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.”  (Shaw v. Reno) Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. 

“Vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. It does not mean that each party must be influential in proportion to its number of supporters.

He concludes by noting that partisan gerrymandering claims can be resolved through the political process. Voters can elect independent commissions to draw their maps, states can amend their constitutions, and so on. 

According to Wide Open Eats, a popular lifestyle website, the Dragon’s Breath Pepper is “fiery enough to close the airways, burn the throat and cause anaphylactic shock in someone who [eats] it.” And yet this pepper isn’t as scalding as Justice Kagan’s dissent this morning. Joined by Justices Breyer, Sotomayor, and Ginsburg, she tore into the majority for what she saw as an abnegation of its constitutional duty: 

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. 

And checking [partisan gerrymanders] is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. 

I’ll now outline her arguments in the order they appear. 

First: It doesn’t matter that partisan gerrymandering has existed since the Founding. The fact is that today, computing and information technology allow mapmakers to draw districts with greater precision. Partisan gerrymandering is more threatening now that maps can be virtually assured of calcifying a party advantage. 

Second: The Supreme Court has long understood that extreme partisan gerrymandering violates people’s constitutional rights. Take the cracking and packing technique, where like-minded voters are confined in one district or spread over wide areas so that their votes count for less. Kagan believes that this technique violates the 14th Amendment’s Equal Protection Clause, which, according to Reynolds v. Sims, “guarantees the opportunity for equal participation by all voters in the election” of Congresspeople. When maps discriminate against voters based on their party affiliation, the maps are preventing them from “full[y] and effective[ly] participating in the political process” (Reynolds). 

Third: The majority is wrong to say that courts can’t hear partisan gerrymandering claims without using, as Kagan puts it, a “judge-made conception of electoral fairness” like proportional representation. In fact, Kagan notes that federal courts have already identified an acceptable test — the three-pronged one mentioned earlier. For the next few pages, she outlines why this test is equipped to measure gerrymandering without leading to judicial intrusion. And preceding all of this was an accusation: that the majority preferred to “[throw] a bevy of question marks on the page” instead of taking the three-pronged test seriously. 

Fourth: When individuals’ rights are violated, and when the political process is utterly unresponsive, the courts may step in and say what the law is. 

She ends without the customary “Respectfully, I dissent,” indicating the depth of her feeling about this case: 

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent. 

Hope this was helpful.

Thursday, June 27, 2019

Opinion Analysis: Mitchell v. Wisconsin 

by Jason Frey

With the number of licensed Americans ever rising, states are taking action to deter drunk-driving and prevent needless car crashes. To prosecute drunk drivers, states must prove that a driver’s blood alcohol content exceeded the legal limit of 0.08. Since field-administered breath tests are not allowed as evidence in court, police must order a blood draw. Officers are usually required to obtain a warrant before ordering the blood draw, but they don’t have to when they suspect that an unconscious driver is drunk. 

Petitioner Gerald Mitchell was arrested for driving drunk in the Sheboygan area. About ninety minutes later, while Mitchell was unconscious, officers drew his blood and discovered that his BAC was 0.222%. Mitchell argues that the officers violated his 4th Amendment protections by drawing his blood without consent. Plus, two other recent cases, McNeely and Birchfield, hold that while a driver is unconscious, it is unconstitutional to order a blood draw without a warrant and to impose criminal penalties on the driver for refusing to consent. The Wisconsin Supreme Court disagreed with Mitchell and upheld the constitutionality of the blood test. 

On Thursday morning, with Justice Alito writing the plurality opinion, the Supreme Court overturned the state supreme court’s decision and remanded the case for further consideration. But this isn’t really a victory for Mitchell, since the Court also upheld the constitutionality of Wisconsin’s implied-consent law under what’s called the exigent-circumstances doctrine. 

Using Schmerber and McNeely, Justice Alito explained that there is sometimes a “compelling need” for blood tests (when a breath test won’t do) and “no time to secure a warrant,” and these factors together create an exigent circumstance. Justice Sotomayor disagrees, arguing that Wisconsin never claimed there was an exigent circumstance in this case. After all, it takes only about fifteen minutes to secure a warrant from a magistrate over the phone. 

Responding to Sotomayor’s dissent, Alito countered that it is within the Court’s power to take a broader view than just what was presented in the case’s question—a categorical view. He then expressed his concerns with requiring a warrant in all search situations. “A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park,” wrote Alito. At the accident scene, officers may have to apply first aid, redirect traffic, preserve evidence, and contend with their own medical injuries. They should not have to choose between getting a warrant and handling an accident, and “this is just the kind of scenario for which the exigency rule was born.” 

I have trouble believing that getting a warrant is such a burden, as they can be issued in a short timeframe. And in emergency situations, shouldn’t we take all precautions to protect individual rights lest they be discarded in the name of security?

After looking at the three criteria that govern this type of search (general reasonableness, exceptions to the warrant requirement, and practicality), I find that none are sufficient to disregard the need for a warrant. First, I don’t think that in weighing the security of the individual with the state’s interests, it is generally reasonable to order a search without a warrant, for blood draws severely intrude upon a person’s privacy. Next, a categorical exigency rule should not apply here; according to Birchfield, just because a driver’s BAC is decreasing constantly does not mean that there is enough of an exigent circumstance to draw blood without a warrant. And, as mentioned before, it can’t be that onerous for officers to wait fifteen minutes to obtain a warrant. 

Today’s decision declares that a Mitchell situation is generally an exigent circumstance. There are certain exceptions to this rule, though, which is why Justice Thomas dissented (in part) to call for a clearer one. All in all, the  Court’s decision isn’t shocking, since overturning Wisconsin’s statute would have had consequences for implied consent statutes in every state.

Chisholm Was Wrong: A Response to Curtis Herbert

By Will Foster

In a recent post on this blog, Curtis Herbert responded to the Supreme Court’s ruling in Franchise Tax Board v. Hyatt in part by arguing that Chisholm v. Georgia (1793) was correctly decided — contrary to the assertion of Justice Thomas’s majority opinion in Franchise Tax Board. I disagree with Curtis’s view on Chisholm, for the reasons I’ll set out here. 

Chisholm, decided soon after the Constitution’s ratification, concerned whether a state could, without its consent, be sued by a citizen of another state. In a 4-1 ruling, the Supreme Court allowed such lawsuits. A public backlash against the decision quickly resulted in the adoption of the 11th Amendment in 1795, which stated that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” 

Curtis’s position is definitely a compelling reading of the pre-11th Amendment constitutional text, which explains why his view was adopted by four of the five justices in Chisholm. The unamended Constitution stated in Article III, Section 2 that the federal “Judicial Power” extended to, among other things, “Controversies … between a State and Citizens of another State.” The majority in Chisholm believed this language meant that citizens of one state could sue a different state in federal court, since such a lawsuit would obviously be a controversy “between a State and Citizens of another State.” 

However, this language is plausibly read to mean that controversies between a state and citizens of another state, where they existed, would be under the jurisdiction of federal courts, not necessarily to bring into existence new types of controversies. And under the doctrine of sovereign immunity, lawsuits against non-consenting governments were traditionally not considered legitimate cases or controversies. As Alexander Hamilton explained in Federalist No. 81, cited in Franchise Tax Board, “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.”

Although some ratification-era commentators suggested that the adoption of Article III, Section 2 would change this situation, the contrary understanding — that states would retain their sovereign immunity — appears to have been more prominent, at least among Federalists (those who supported ratifying the Constitution). As James Madison stated at the Virginia Ratifying Convention (quoted in Franchise Tax Board): “[A federal court’s] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.” 

In fact, the convention in New York explicitly ratified the Constitution based on this understanding. New York’s ratification resolution included a list of interpretative understandings, ratifying on the condition that “the explanations aforesaid are consistent with the said Constitution.” One of these explanations was “[t]hat the judicial power of the United States, in cases in which a state may be a party, does not extend … to authorize any suit by any person against a state.” 

To be sure, sovereign immunity is an extremely difficult and confusing topic, one I’m still struggling to wrap my head around. (For example, if the federal and state governments can’t be sued unless they consent, how come lawsuits against governments and their officials — seeking, say, injunctive relief against an allegedly unconstitutional policy — are so common?) 

I offer no opinion here on whether Franchise Tax Board was correctly decided because, quite frankly, I have no idea whether it was correctly decided. But I do feel fairly confident in this: Chisholm was wrongly decided, and the Supreme Court was right to say as much in Franchise Tax Board. 

Monday, June 24, 2019

Iancu v. Brunetti Opinion Summary

by Anna Salvatore

Twice in the past two years, the Supreme Court has invalidated provisions of the federal trademark statute. It first did so in Matal v. Tam (2017), when an Asian-American rock group called the Slants sought to register their band name with the U.S. Trademark Office. The band was barred from registering because the trademark statute (known as the Lanham Act) prohibits marks that “disparage” any person or group, and the term “slants” is a slur to disparage Asians. The Supreme Court struck down the Disparagement Clause because “the government [had] singled out a subset of messages for disfavor based on the views expressed,” and viewpoint-based discrimination is banned by the First Amendment.

Today, the justices struck down a neighboring provision of the Lanham Act in Iancu v. Brunetti (2019). They held that the Act’s prohibition of “immoral” or “scandalous” trademarks violates the First Amendment for the same reason as above: the provision engages in viewpoint discrimination.

As I wrote about in January, Brunetti is an unusually fun case for the Supreme Court. The respondent here isn’t a conglomerate or federal agency official, but an anti-establishment artist named Erik Brunetti who has long tried to trademark his “FUCT” streetwear brand.

Here are excerpts from Justice Kagan’s opinion: 

When is expressive material “immoral”? According to a standard [dictionary] definition, when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious.” Or again, when it is “opposed to or violating morality”; or “morally evil.” So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And when is such material “scandalous”? Says a typical definition, when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation.” Or again, when it is “shocking to the sense of truth, decency, or propriety”; “disgraceful”; “offensive”; or “disreputable.” So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety.

Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar.

The facial viewpoint bias in the law results in viewpoint-discriminatory application. Recall that the PTO itself describes the “immoral or scandalous” criterion using much the same language as in the dictionary definitions recited above. The PTO, for example, asks whether the public would view the mark as “shocking to the sense of truth, decency, or propriety”; “calling out for condemnation”; “offensive”; or “disreputable.” Using those guideposts, the PTO has refused to register marks communicating “immoral” or “scandalous” views about (among other things) drug use, religion, and terrorism. But all the while, it has approved registration of marks expressing more accepted views on the same topics.

All nine justices agreed that the ban on “immoral” trademarks was antithetical to the First Amendment.

Three justices filed partial dissents, though — Roberts, Breyer, and Sotomayor — arguing that the Court should not have invalidated the ban on “scandalous” trademarks. They explained that the word “scandalous”  may not refer to marks with offensive ideas, but to marks that “address only obscenity, vulgarity, and profanity.” Since there are two plausible readings of the word, the Court should choose the interpretation that preserves the statute rather than overturns it.

The majority rejected this idea, calling it “statutory surgery”:

This Court, of course, may interpret “ambiguous statutory language” to “avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 516 (2009). But that canon of construction applies only when ambiguity exists. “We will not rewrite a law to conform it to constitutional requirements.” United States v. Stevens, 559 U. S. 460, 481 (2010) (internal quotation marks and alteration omitted). So even assuming the Government’s reading would eliminate First Amendment problems, we may adopt it only if we can see it in the statutory language. And we cannot. The “immoral or scandalous” bar stretches far beyond the Government’s proposed construction. The statute as written does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. Brief for Petitioner 28 (internal quotation marks omitted). It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.*

The main takeaway is that the government can no longer make values judgments about which trademark applications are “immoral” or “scandalous.” The justices did give Congress the option, though, of banning trademarks that are straight-up vulgar in the future.

Thursday, June 20, 2019

by Anna Salvatore

With about a week left in its term, the Supreme Court released major decisions today on the Establishment Clause and the administrative state.

In the former case, American Legion v. American Humanist Assn., the Court allowed a 40-foot-tall cross to remain on Maryland public property. According to the majority opinion, the cross has gained a secular meaning because it memorializes World War I dead, and removing it would show hostility rather than neutrality towards religion. The bottom line is that it does not violate the Establishment Clause of the First Amendment. Writing for the majority, Justice Alito called the Lemon test “ambitious,” as a teacher might call her unruly sixth-graders “ambitious,” and implied that the test — which looks to the purpose of religious symbols to determine whether they violate the Establishment Clause — is on its last legs.

In the coming days, Jackson Foster will write a more in-depth analysis of American Legion. 

Today’s other big-shot opinion was Gundy v. United States. At the core of Gundy is the nondelegation doctrine, which forbids Congress from lending its legislative power to other government branches. The Supreme Court clarified this rule in 1928, adding that when Congress does allow administrative agencies to regulate, Congress must also give agencies an “intelligible principle” with which to direct their regulations.

The question in Gundy was whether Congress impermissibly delegated power to the Attorney General in the Sex Offender Registration and Notification Act. The answer, according to Justice Kagan’s majority opinion, is “No.” She was joined by Justices Ginsburg, Breyer, and Sotomayor, while Justice Alito concurred in judgment only.

This case is important not only because it affects thousands of sex offenders, but also because of its broader implications for the administrative state. If the Supreme Court had discarded the “intelligible principle” rule today, then administrative agencies would’ve lost much of their power to issue regulations. But the Court did not take this step, to Justice Gorsuch’s chagrin. He dissented with Justices Thomas and Alito to criticize the way the Court has applied the “intelligible principle” rule and to emphasize the importance of confining legislative powers to the legislature. Here’s an excerpt below:

Restricting the task of legislating to one branch characterized by difficult and deliberative processes was also designed to promote fair notice and the rule of law, ensuring the people would be subject to a relatively stable and predictable set of rules.27 And by directing that legislating be done only by elected representatives in a public process, the Constitution sought to ensure that the lines of accountability would be clear: The sovereign peo- ple would know, without ambiguity, whom to hold ac- countable for the laws they would have to follow

The dissenting trio’s position is radical — it strikes at the marrow of the administrative state. Law professors are now speculating about whether (or when) Gorsuch’s vision will be achieved. Professor Nicholas Bagley of UMich frets that when Justice Kavanaugh eventually participates in these cases (which he didn’t today), the intelligible principle rule will be toast. Professor Adrian Vermeule of Harvard Law is unworried. He feels that if the Court had really wanted to undo the administrative state, it would have done so with today’s “low-stakes statute.”

It’s all speculation for now.