Tuesday, January 14, 2019

by Rishav Dha

On January 3rd, 2020, both Americans and Iranians awoke to dramatic news- one of Iran’s top military generals, Qassim Soleimani, had been killed in a US drone strike. According to the Trump administration, US intelligence had confirmed that Soleimani was planning an attack on US soil and US civilians. Later reports from the CIA portrayed a different story, claiming that any proof of such an attack being planned was shaky and “razor thin” at best. In any case, the death of Soleimani was a shocking blow to both the Iranian people and to US citizens, who weren’t expecting a new decade to start with war. 

Historical Context Behind the Iran-US conflict

Before 1949, US relations with Iran were minimal outside of small meetings and business deals. By 1949, President Truman was in office and the so-called “war on communism” was beginning. Truman began meeting with the Shah of Iran, as his administration feared that Iran would be among the first of the Middle Eastern states to ‘fall to communism’ and reasoned that Iran was an important strategic position for the fight against the USSR. In 1953, the British MI6 and American CIA organized a coup against Mohammed Mossadeq, the prime minister of Iran. This was the beginning of over half a century of resentment towards Americans in Iran. After the coup, the US began sending some $1.2 billion dollars in foreign aid to Iran, particularly towards assisting the Shah of Iran’s brutal secret police force. The Shah of Iran acted as a puppet leader for America in Iran, buying military hardware and meeting with White House officials on numerous occasions. This continued for as long as two decades, and the US began to consider Iran a valuable ally against the Soviet Union.

However, the Iranian public’s dislike for America would come to a head in Iran in 1979, when the Shah of Iran was deposed and replaced with the strongly-anti-American Ayatollah Ruhollah Khomeini. The Shah of Iran, now suffering from terminal illness, requested to be given entry into the US embassy. He was denied embassy at first, but after President Jimmy Carter was pressured by notable pro-Shah figures such as Henry Kissinger, he was allowed in. This angered some of the revolutionaries of Iran, who responded by invading the US embassy and holding the delegates there hostage for over a year. A US operation to rescue these hostages resulted in the deaths of eight American soldiers.

Under the Reagan administration in the 1980s, the U.S. passed several sanction bills against Iran. In 1988, the US Navy used guided missiles to shoot down Iranian Airbus A300B2, killing 290 civilians from six nations (including 66 children). This infamous event would go down in history as Iran Air Flight 655. US intelligence reported that the flight was a warplane and didn’t respond to any attempts of radio communication. Both of these statements were untrue, as the flight was a commercial airliner, and the radio calls the US Navy made were in military frequencies that commercial planes didn’t have access to. 

In April 2016, the US Supreme Court ruled that Iran had to pay $2 billion dollars in reparations to victims of the 1983 Beirut barracks bombings. In the 1983 incident, several American and French soldiers were killed by truck bombs. Responding to the Supreme Court, the Iranian parliament voted to pressure the US to return frozen Iranian assets, pay reparations for having partially orchestrated the 1953 Iranian coup, make up for supporting Iraq in the Iraq-Iran war. The Supreme Court ruled that this request was invalid because U.S.  soldiers were supposedly on a peacekeeping mission, and suggested that victims of the bombings should sue the Iranian government. 

Tensions between the US and Iran are growing under the Trump administration. On May 25th, 2019, the Trump administration declared that tensions with Iran were leading to a national emergency and helped sell $8 billion worth of weapons to Saudi Arabia, the United Arab Emirates, and Jordan. President Hassan Rouhani of Iran responded on the 1st of June, claiming that Iran was willing to hold peace talks and negotiate deals, so long as the US didn’t pressure them with military posturing and trade sanctions. Tensions escalated throughout the year, as President Trump ordered the murder of the high-ranking Iranian general Quasem Soleimani by US drones. Iran’s Supreme Leader vowed “severe revenge” against the United States for this attack. 

The Constitutionality of War Declarations

President Trump’s decision to assassinate Soleimani did not follow standard procedure for war declarations, in which the House and the Senate vote on whether to declare war against another sovereign nation. Instead, Trump met with his Defense Department and signed an order for drones to kill Soleimani. Using drones without judicial or congressional authorization is not a new tactic; in fact, President Obama was infamous for using drones often and with disastrous results. In an appalling incident in 2015, US Air Force AC-130U gunship attacked the Kunduz Trauma Centre operated by Doctors Without Borders in the city of Kunduz, Afghanistan. Top US officials claimed that the hospital was harboring Taliban members, but there was no real evidence that such a thing was true. Even the members of the cockpit of the AC-130U were seen questioning the legality of the bombing in video footage of their flight released after the incident. As many as 42 people were killed, and over 30 were injured by this bombing. MSF reported that six intensive care patients were burned to death in their beds, some hospital staff were decapitated and lost limbs to shrapnel, and others were shot from the air as they tried to flee the burning building. Incidents such as this one reinforce why congressional and judicial review are important; they ensure that US military resources are only expended on targeting real threats, and they reduce the possibility of murdering innocent civilians. 

Congress can check the president’s power to declare war. The War Powers Resolution of 1973 provides that the US can only send its army into action by either a declaration of war from Congress or in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” This resolution has been violated once — by President Clinton during the Kosovo War. Congress disapproved of Clinton’s decision to authorize bombings in Kosovo without their consent, but did not take any successful legal actions against him. There are clear parallels between Clinton’s decision to bomb Kosovo in the after his impeachment trial and Trump’s decision to drone-strike Soleimani during his own trial. 

The constitutionality of the War Powers Resolution has been called into question multiple times. Because Article 1, Section 8 of the Constitution prevents the President from using armed forces without a Congressional declaration of war, it’s questionable whether the resolution is consistent with the Constitution. Some have argued that Congressional only needs to approve “total wars,” and that since Congress is only required to “provide and maintain a Navy” under Article 1, Section 8, using drones and gunships for anti-terrorist operations should be the executive’s decision rather than the legislature’s. Others who oppose the Resolution have noted that since the 9/11 attacks, the US has been in a national state of emergency, so the Resolution gives Congress little power to actually stop the President from declaring war in the 21st century. 

Members of Congress have tried to halt further attacks against Iran. Representative Ilhan Omar and Representative Barbara Lee announced on January 5th, 2020 a War Powers Resolution to remove US military from hostilities against Iran, since the authorization of US troops in Iran hadn’t gone through Congress. Their resolution is a companion bill to a similar War Powers Resolution going through the Senate by Senator Tim Kaine (D-VA). In a statement, Omar claimed that “the assassination of Qassim Soleimani was an act of war undertaken without Congressional authorization, in violation of the Constitution of the United States of America… We in Congress must exercise our Constitutional duty- and do everything in our power to stop another disastrous war.” A joint movement in the House and Senate is also growing to block funding for the ‘war’ in Iran, led by Senator Bernie Sanders and Representative Ro Khanna. In a statement on January 3rd, 2020, Khanna said, “War must be the last recourse in our international relations. That is why our Founding Fathers gave the responsibility over war to Congress. Congressional inaction in the face of the threat of a catastrophic and unconstitutional Middle East conflict is not acceptable.”

It will be interesting to see in the coming months how the candidates of the 2020 presidential election view diplomacy with Iran, and whether the bills to restrict Pentagon funding and use of military force get passed by Congress.

Tuesday, December 31, 2019

I’m excited to announce that Rishav Dhar, a classmate of mine at Hopewell Valley Central High School, will begin writing for High School SCOTUS! Below is his first piece, which deals with the background and legality of the recently renewed US PATRIOT Act. 

On November 19, Congress voted to renew the Patriot Act until March of 2020. 

What is the Patriot Act?

The Patriot Act was enacted after the terrorist attacks of September 11th, 2001 by the Bush administration. Its full name is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (which was abbreviated to US PATRIOT Act). The act allowed, and was often criticized for, indefinite detention of immigrants, the searching of homes and private spaces without warrants in search of so-called ‘terrorist activity’, and access to legal records and private documents of US citizens by law enforcement. The aim of the bill was to stop terrorist acts, similar to those done on 9/11, from ever occurring in the US through strategic investigation and surveillance by US law enforcement, but many have criticized it for being overreaching and possibly unconstitutional. 

The Patriot Act has been revised several times. Parts of the Act were supposed to expire in 2005, but supporters have pushed for the Act to be extended, possibly indefinitely. The reach of the Act was increased under the Obama administration when Obama signed the PATRIOTS Sunsets Extension Act of 2011; this was a four year extension of the increased privileges given to intelligence agencies. 

Unconstitutionality of the Patriot Act

In 2007, a federal judge ruled that the Foreign Intelligence Surveillance Act, an act passed to reauthorize sections of the Patriot Act that were set to expire, violated the Fourth Amendment. The lawsuit was brought by Portland attorney Brandon Mayfield, whom the FBI mistakenly linked to terrorist attacks in Madrid. Mayfield claimed that his house and belongings were searched multiple times without a warrant, which violated the Fourth Amendment’s claim that American citizens shouldn’t be objected to ‘unreasonable searches and seizures’. This mixup by the FBI wasn’t the first or the last time US citizens were harassed in the name of stopping terrorism; internal reports from the Justice Department suggested that federal prosecutors and FBI agents had made numerous faulty and ambiguous statements to judges in order to obtain warrants for innocent people.

In 2015 the Obama administration passed the USA Freedom Act in order to prevent violations of Americans’ civil liberties. This law was influenced by the actions of Edward Snowden, an NSA whistleblower and former CIA agent who leaked sensitive documents exposing how the NSA was wiretapping phones and monitoring the data of millions of people. Under the USA Freedom Act, Section 215 of the Patriot Act (the section which allowed the NSA to tap phones on a large scale) was amended to protect Americans’ privacy; now, the NSA had to obtain warrants from a judge in order to seize phone records from phone companies. However, the Patriot Act did still allowed intelligence agencies to seize phone records without warrants in a state of emergency, and it increased the penalties for people suspected of harboring terrorists and enemies of the state. Considering that the US has been in a state of emergency since 9/11, some consider the Act to be a hollow gesture to soothe the privacy concerns of the American public.

Further Problems with the Patriot Act

Under the Patriot Act, the CIA has been accused of harboring hundreds of people suspected of being or aiding terrorists in foreign countries. These people, sometimes called ‘ghost detainees’, are kept from judicial oversight. The CIA has been accused of using the Patriot Act to move innocent people into third-party states in order to extort information, often through torture methods banned in the US. A rather eye-opening report published in 2012 exposed and evaluated many of the methods used by agencies like the CIA and FBI after the wake of the 9/11 attacks. This report, known as Committee Study on the Central Intelligence Agency’s Detention and Interrogation Program, uncovered CIA methods of torture, such as the CIA deliberately providing ambiguous and misleading information to government officials and state prosecutors (as well as US media), obstructing governmental oversight and watchdog organizations, and using “experimental interrogation techniques” on terrorism suspects. 

By moving victims to foreign countries, the CIA tried to avoid criticism for violating the Eighth Amendment, which outlaws cruel and unusual punishment of US residents. Senate reports on the CIA, and department investigations, ultimately concluded that no valuable intelligence was obtained through these covert operations, and that the operations ultimately damaged the reputation of the CIA and the US on an international scale.

The FBI also noted that it could not pinpoint any terrorist attacks that were directly prevented or halted as a result of investigations under the Patriot Act, and that not much valuable intelligence was gained through the mass wiretapping of phones either. 

2019 Renewal of the Patriot Act

In the wake of President Trump’s impeachment hearings, House Democrats voted overwhelmingly in favor of a stopgap funding bill aimed at preventing the government from shutting down for the next four months. In a tiny clause buried within this bill, Congress extended several clauses of the Patriot Act until March 2020. Rep. Justin Amash (I-MI) submitted an amendment to various clauses, but they were rejected by the House Rules Committee. 

Amash criticized Democrats in a November tweet, since when the Patriot Act was first proposed, the opposing votes were overwhelmingly from Democrats. He has also suggested that the Act’s renewal was deliberately hidden from the US media and vastly overshadowed by the attention given to the impeachment hearings. In the next few months, it will be interesting to see how the candidates for the 2020 US presidential election deal with the Patriot Act, as well as whether the Act’s questionable constitutionality will be challenged in court.

Saturday, December 7, 2019

What’s FedSoc Good For?

By Curtis Herbert

The Federalist Society’s recent convention spurred plenty of talk about the organization, with its choice to invite Bill Barr, Mitch McConnell, and Justice Kavanaugh as speakers being the most scrutinized. I think it’s time to squarely evaluate the role of ideologically slanted legal groups: to discuss what they are good for, and what they are not good for. 

I’d first like to address the benefits of groups like the Federalist Society. They provide a place for younger attorneys, law students, and even high schoolers like myself to meet new people, connect with friends, and network. Networking is important, and it is helpful to connect with people who share your beliefs about the law. 

Slanted organizations are also able to facilitate conversations on controversial topics. For example, panels at the American Constitutional Society help to innovate thinking among non-originalists. Advances in living constitutionalism help our public discourse by reframing the intractable originalist vs. non-originalist debate, forcing friends on the other side to respond to new arguments. An ACS-sponsored debate over the importance of stare decisis can advance thinking precisely because it is approached from a non-originalist perspective. There are non-originalists (like Justice Kagan) who are firmly in support of stare decisis, and others who disagree. The same is true of originalists. Rehashing the old debates over stare decisis is unlikely to yield progress. But a debate over whether stare decisis is contemplated by the original meaning of the Constitution can make serious inroads. Likewise, originalist arguments for abortion rights help break narratives and open new avenues of discussion. In an increasingly partisan time, this nuanced dynamic is something that our culture needs. 

On the local level, ideological groups mainly sponsor speakers and debates, introducing students to new points of view and improving old ones. Ideologically opposed groups will often co-sponsor events, working together to foster debate and academic inquiry. In fact, I recently attended an event at the University of Minnesota Law School that was sponsored by the American Constitution Society as well as the Federalist Society. The speaker? Benjamin Wittes, a critic of Donald Trump and his administration’s legal policies. (It was an outstanding event.) That, I think, is where groups like FedSoc and the ACS can really shine.

I think that ideologically slanted legal groups have good things to offer. They should stick to them. The Federalist Society should not be hosting Mitch McConnell. Whatever your views on the Senate Majority Leader, his speech didn’t further any of the benefits of the Federalist Society. The same goes for Attorney General Bill Barr. Instead of being helpful, their speeches were polarizing and out of place in an event mostly about nerdy topics like originalism, stare decisis, and whether Employment Division v. Smith was correctly decided. 

There are good and bad aspects of slanted legal organizations. Recognizing the good does not mean denigrating the bad, or vice versa. Two things can be true at once. Political figures delivering partisan speeches at legal conventions is, at the very least, improper. Intellectual conversations at law schools and networking opportunities for young people are undeniable benefits. The truth of one of these statements need not mean the falsity of the other.

Part of the problem with modern politics is our determination to ignore good things done by people we dislike. I know that we are, all of us, much better than that.

Sunday, December 1, 2019

Rare Gun Rights Case to be Heard Tomorrow

by Anna Salvatore

The Supreme Court doesn’t hear Second Amendment cases often. Last time it did so was in McDonald v. City of Chicago (2008), where it ruled that Americans have a fundamental right to bear arms for self defense. On Monday the justices will define “fundamental” by deciding whether it’s constitutional for New York City to prevent people from transporting their guns to second homes or to out-of-state clubs.

Gun-toting New Yorkers have a powerful advocate in Paul Clement, who in the 1990s became one of the youngest men to ever serve as Solicitor General. He has since argued over fifty cases at the Supreme Court and, in the process, gained such a dazzling reputation that liberals and conservatives alike discuss his oral arguments in hushed voices.

On behalf of the gun-owners, Clement argues that New York’s law infringes their Second Amendment rights, does not satisfy the state’s interest in public safety, and violates the Commerce Clause by preventing them from bringing their weapons to out-of-state gun clubs. You can read his full petition here.

New York City is backed by both the district court and the Second Circuit, which held that the law was a “reasonable… time, place, and manner restriction” on owning guns. The courts noted that the core purpose of the Second Amendment is for self-defense in the home, and that New York does not burden this home-centered right by limiting how people can transport their guns. If a Manhattanite wants a gun in his second home in Albany, he can register a gun to his Albany home.

So far this seems like a straightforward case, albeit an unusually provocative one due to its connection with firearms. And yet — and yet! — there are debates among law professors about whether the Supreme Court is allowed to hear the gun owners’ lawsuit against New York City. To understand why, we have to refer to Article III, Section 2, Clause 1 of the Constitution, which says that

“The judicial power shall extend to…. controversies… between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” 

This clause limits judges to hearing controversies, a statement that makes sense if you think about the separation of powers. Judges would have dangerous influence if they could issue binding legal opinions whenever they wanted about anything they wanted, so the Constitution limits them to hearing cases where a plaintiff can show she has suffered an injury. If her injury is traceable to another person’s actions, it is the judge’s job to decide whether the actions were permissible.

Judges usually can’t hear cases without a live controversy; for example, they can’t hear your challenge to a war’s constitutionality if the war is over. Many professors argue that the same “war is over” situation exists in New York State Rifle and Pistol Association v. City of New York because, soon after the Supreme Court agreed to hear the case, New York City passed a law allowing gun owners to transport their firearms to second homes and out of state. The gun-owners received the relief they wanted, their injury no longer exists, and now their case is longer reviewable by the Supreme Court. Right?

Well, not quite. Even if the defendant chooses to stop imposing an injury, thus ending the controversy, the case only becomes moot (or “unreviewable”) if the defendant proves it is “absolutely certain” that his harmful conduct won’t resume.

There are debates about whether this rule applies with equal strength to governments as it does to private actors. There are questions about whether New York has shown, adequately, that it will not continue attacking its citizens’ Second Amendment rights once litigation ends. And then if the Supreme Court decides that it can hear this case, there are the tantalizing constitutional arguments I mentioned earlier.

We’ll have a clearer idea of what the justices are thinking tomorrow at 11:00 a.m.

Friday, November 22, 2019

Analysis: Allen v. Cooper

by Jason Frey

“I invite you to embark on a journey with me through pirate ship excavation, robust case law, and state sovereign immunity.” At least, I’m pretty sure that’s what Blackbeard said to his crew before running aground off the coast of North Carolina. And even if he didn’t, let’s pretend for the sake of this article that he did. What I do know is that Allen v. Cooper grapples with some of the toughest legal questions I’ve ever seen. 

In 1787, the Framers wrote seven articles of the Constitution. The first detailed the powers, responsibilities, and limitations of Congress. Specifically, Article 1, Section 8, Clause 8 (AKA the Intellectual Property Clause) empowered Congress to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries.” This sentence birthed copyright and patent law in America and gave Congress the power to legislate on these issues. In Cooper v. Allen, the Intellectual Property Clause conflicts with the 11th Amendment, which ensures that states cannot be sued except in very limited circumstances. One final law to remember is the Copyright Remedy Clarification Act of 1990, which says that “Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune… from suit in Federal Court by any person… for a violation of any of the exclusive rights of a copyright owner.” With these doctrines in mind, it is time to analyze Allen v. Cooper.

In 1717, Edward Teach (a.k.a. the infamous pirate, Blackbeard) captures a ship, renames her Queen Anne’s Revenge, and sails toward the southeastern coast of what will become the United States of America. A year later, he runs aground near Beaufort Inlet, North Carolina and abandons the ship. Centuries pass, and in 1996 a private salvage company called Intersal, Inc. discovers the shipwreck and hires Nautilus Productions to document the wreck. Frederick Allen, who owns Nautilus, registers copyrights for videos and photographs collected over almost two decades, which are approved and licensed to the production company. Then in 2013, North Carolina’s Department of Natural and Cultural Resources publicly posts some of the copyrighted documentation online. A legal skirmish ensues, and North Carolina pays $15,000 to Nautilus and promises not to infringe the copyright again. But the state lies; it does infringe the copyright again.

North Carolina’s most recent violation of the copyright sparked a lawsuit over whether it could be sued for violating Allen’s copyright under the Copyright Remedy Clarification Act. Allen petitioned the Supreme Court, asking the Justices to uphold the Act. He concedes that on this issue, the circuit courts are unanimous: they have decided the Act is unconstitutional. Even so, Allen notes that United States v. Edge Broad. Co. (1993) allows the Supreme Court to review “because the court below,” in this case the Fourth Circuit, “declared a federal statute unconstitutional and applied reasoning that was questionable.” Allen also argues that his case is timely because states have been increasingly willing to infringe copyrights, with “a list of lawsuits filed in another case [identifying] 154 lawsuits against state actors for copyright infringement between 2000 and 2017.” He concludes that the Fourth Circuit’s decision should be overturned because even though the Act decreases state sovereign immunity, it is has a firm basis in Congress’s Article One powers and Congress’s duty to enforce the 14th Amendment. 

Although Seminole Tribe of Florida v. Florida (1996) said that Congress can’t abolish states’ sovereign immunity with its Article One powers, Allen describes this opinion as a confusing overreach. Seminole Tribe dealt with sovereign immunity, but only in the context of the Indian Gaming Regulatory Act. Plus, Allen reasons that another case dealing with sovereign immunity, Florida Prepaid Post-Secondary Education Expense Board v. College Savings Bank, upheld an “assumption” that was not a real legal holding. Notably, Florida Prepaid established a case in which Section 5 of the Fourteenth Amendment permitted Congress to abrogate state sovereign immunity only if a party was being deprived of due process, if there was a pattern of violations, and if there was no other adequate remedy. That is what Allen tries to display in the petition and what Congress’ records have shown in creating the CRCA (which I will analyze later). 

Finally, the petitioner addresses the elephant in the room (or pirate ship on the rocks, if you will): Central Va. Community College v. Katz. In this ruling, Congress was given authority under the Bankruptcy Clause of Article One to abolish states’ sovereign immunity. The Court decided there that subordinating state sovereignty is integral to the history of the Bankruptcy Clause. In other words, this provision was ratified with the intention of abolishing immunity, so the structure of American government itself carries this exception. Allen argues that this same dynamic also exists with the Copyright Clause.

North Carolina’s reply mainly countered Allen’s claims that his case was a good vehicle and that Seminole Tribe was an overreach. First, the reply alleges that “in particular, this Court has routinely denied review where, as here, a statute’s unconstitutionality flows directly from a previous decision of this Court.” In other words, the CRCA has always been declared unconstitutional and similar Court cases have concurred with the reasoning, so the Supreme Court should not agree to review it. Next, the reply supported Florida Prepaid’s opinion that Article One cannot abolish sovereign immunity. Finally, Cooper argues that the 14th Amendment doesn’t apply in this case because Congress did not have it “in mind when it passed the statute,” a requirement for this type of abrogation. He also claims that Congress violated the requirement from Nevada Department of Human Resources v. Hibbs that a Section 5 abrogation must be “congruent and proportional” to the scale of the constitutional problem, which apparently the CRCA wasn’t.

In Federalist No. 81, Alexander Hamilton writes that “States do not retain sovereign immunity if ‘surrender of this immunity [is] in the plan of the convention.’” Allen tries to prove in his brief that there similar historical grounding for the Intellectual Property Clause, so he looks to the text’s plain meaning and context. By the wording of the Intellectual Property Clause, Congress has the power to “[secure] … the exclusive right” to use unique materials, which has a double meaning of both restricting the ownership of the materials and making Congress’ legislation applicable to any sovereign actor. The latter point is supported by the government’s structure of federalism, which grants exclusive abilities to Congress for any enumerated power. Allen adds that, according to James Madison, “monopolies over intellectual property were justified because the creation of such works benefit the community as a whole, with the monopoly granted for only a ‘limited Time,’ as warranted to ‘promote Progress.’” Clearly the Framers intended to abolish sovereign immunity here, protecting Congress’ legislation and creators’ integrity. 

North Carolina filed its brief in response, with its strongest argument being that “state sovereign immunity is a central feature of ‘our constitutional structure’” (Franchise Tax Bd, 2019). The state also rebuts Allen’s historical argument, recognizing that the Founders’ writings do not “allow abrogation merely because a law [the CRCA] is derived from a ‘national power’ to enact uniform rules.” Governor Cooper then relies heavily on Florida Prepaid and Seminole Tribe, which seems kind of trivial considering the petitioner is directly calling for the reversal of these precedents. I understand where he’s coming from, but when his opponent isn’t making any pretense about wanting these precedents overturned, I feel like Cooper needs a stronger theoretical basis for his arguments. Something that is really strong, though, is his analysis of other precedents. He contends that Florida Prepaid was not an irrelevant opinion dealing with Native Americans’ hunting laws, but a useful one showing that Congress has “coextensive power” over patents and copyrights. He also rejects the petitioner’s reading of Article One because Wheaton v. Peters limited the meaning of the word “secure” as it is used in the Intellectual Property Clause, and Goldstein v. California held that no exclusive right for Congress exists to protect copyrights. 

The petitioner’s other main argument is that Congress validly exercised its 14th Amendment power in enacting the CRCA. To use Section 5, Congress must first have suspected that there was a serious due process violation that resulted in a pattern of grievances. The main reason that the 14th Amendment argument was rejected in Florida Prepaid was that there was no clear pattern of violations by states; in addition, patent violations tend to be less intentional than copyright infringements because inventors can arrive at the same conclusion by coincidence, whereas a copyright infringement is direct use of someone else’s materials. In this case, the US Copyright Office conducted a year-long investigation into copyright infringements committed by states, concluding that there was a need for the CRCA to protect creative integrity. After deciding there was a due process violation, Congress could then satisfy the two other criteria set out by Hibbs: 1) the Senate discerned that there was a “clearly widespread” and “clearly increasing” pattern of violations, with hearings highlighting the impairment of creative incentives, and 2) injunctive relief, one of the only remedies to this issue before the CRCA, provided no meaningful restitution. 

On the other hand, Cooper believes that the 14th Amendment does not validate the CRCA mainly because Congress did not focus on “intentional” infringement that violated Constitutional rights. The inability to identify widespread misconduct would fail the “scope” part of the Hibbs test for abrogation. And yes, it’s true that at the time of the hearings there weren’t hundreds of cases of infringement, but an increasing number of more than a handful of cases per year is nonetheless concerning. Also, the original report from CRCA hearings in the House clearly states Congress’ intention on page 112, arguing “the current legal situation poses a serious threat to copyright owners who market their works to states and state entities. Copyright owners are currently deprived of access to the most effective deterrent to the unauthorized use of protected property — damage lawsuits.” It seems to me like a compelling statement for the scope of infringement. Cooper then attempts to color the CRCA as a disproportionate remedy by listing other potential solutions: contract breach suits, specific torts, and injunctions. All of these are subject to state laws and specific conditions, while none of them provide as meaningful a remedy as a suit against the state. Finally, the respondent contends that future concern isn’t good enough reason for Congress to validly pass the CRCA since there wasn’t enough evidence at the time for abolishing immunity. I would just point to Ralph Oman’s amicus brief. Oman was the Register of Copyrights during the CRCA investigation and wrote in support of the petitioner, detailing the numerous ways in which Congress did their due diligence to investigate the extent of copyright infringement by states.

I spent hours agonizing over this case and emerged with two convictions: 1) that Allen won the Amendment 14, Section 5 abrogation argument, and 2) that no matter the other parts of this ruling, Seminole Tribe must be limited. The former is based on all the evidence and analysis above, plus my own opinion that without the ability to sue states for what is the vast majority of the time intentional infringement, there is really no other meaningful remedy besides an injunction, which offers no monetary compensation anyway. The latter conviction grew out of my admiration for the clarity of the Plan-of-Convention waiver. When deciding Seminole Tribe and subsequently Florida Prepaid, the Court made a decision without historical context, which led to an over-broad precedent that damaged creative incentives. As for the Article One rationale, I believe that Cooper’s ability to deeply analyze the plain text and other precedent cases won him that argument. Allen seemed to miss a lot of supporting evidence about Congress’ enumerated powers and the US structure of federalism which would have helped his case. 

However, my ideas on the whole matter are most in line with the amicus brief from the New York City Bar Association, which explores whether states surrendered their immunity at the ratification of Article 1, Section 8, Clause 8. This brief answers that yes, states did surrender their immunity because of both the plain text meaning of “exclusive right” and the historical context of national uniformity. They also introduce compelling arguments that states had no claim to sovereign immunity before ratification. 

I doubt Blackbeard’s bucket list included inspiring one of the largest copyright debates in American history, yet here we are.

Sunday, November 10, 2019

The Week Ahead

by Anna Salvatore

The Supreme Court will hear three particularly important cases this week.

On Tuesday it will examine President Trump’s decision to terminate DACA, an Obama-era program that has allowed 800,000 undocumented young adults to remain and work in the United States. The University of California argues that Trump’s decision violated the Administrative Procedure Act because it was “arbitrary and capricious,” while the government argues that it has absolute discretion to enforce (or not enforce) its immigration laws.

Also on Tuesday, the Justices hear a complicated case called Hernandez v. Mesa. Amy Howe explains its facts on SCOTUSblog: “In June 2010, 15-year-old Sergio Hernandez was playing on the Mexican side of the U.S.-Mexico border when a U.S. Border Patrol agent, Jesus Mesa, fired shots across the border, hitting Hernandez in the face and killing him. Next week Hernandez’s family will be at the Supreme Court for the second time, seeking to hold Mesa responsible for their son’s death.” Here the justices are trying to determine whether non-citizens have constitutional rights on foreign soil.

The third case, Comcast v. National Association of African American-Owned Media, is about how to apply the Civil Rights Act to contracts. The dispute began when an African American media group accused Comcast of racial discrimination for refusing to broadcast its T.V. channels. According to the African-American owners, they only needed to show that racial discrimination was a “motivating factor” in Comcast’s decision in order to win their lawsuit. According to Comcast, though, the African-American owners had to definitively prove that Comcast’s decision would have been different if not for their race. The Supreme Court will decide which standard is correct for race discrimination suits. Twenty billions dollars is on the line.

Other news and links:

• There’s a new book out about Justice Sotomayor called Being Brown: Sonia Sotomayor and the Latino Question.
  • Overview from Barnes and Noble: Being Brown “tells the story of the country’s first Latina Supreme Court Associate Justice’s rise to the pinnacle of American public life at a moment of profound demographic and political transformation. While Sotomayor’s confirmation appeared to signal the greater acceptance and inclusion of Latinos—the nation’s largest “minority majority”—the uncritical embrace of her status as a “possibility model” and icon paradoxically erased the fact that her success was due to civil rights policies and safeguards that no longer existed.”
• The Second Circuit recently ruled that President Trump’s accounting firm has has to release eight years of his tax returns to a grand jury. His lawyer, Jay Sekulow, says that they will appeal the case to the Supreme Court by November 14. (Axios)
• A couple of weeks ago, a picture appeared on social media of Justices Alito and Kavanaugh meeting with the head of an anti-LGBT group called the National Organization for Marriage. Masha Gessen writes for The New Yorker about why this meeting was problematic. Take Back the Court, a liberal activist group, is calling on Alito and Kavanaugh to recuse from the three LGBT cases pending before the Court. You can read the full letter here. 

Saturday, November 9, 2019

Kansas v. Glover Oral Argument Analysis

by Anna Salvatore

The justices heard five cases this week: one about the consequences for non-citizens who break the law, another about Americans whose intellectual property is infringed by states, and still another about streams of sewage trickling from a Maui plant to the Pacific Ocean, with the question being whether the Clean Water Act requires a permit for pollutants that are transported by groundwater. 

Today I’m focusing on Kansas v. Glover, a case argued on Monday about whether police officers can stop a car because its registered owner is unlicensed. 

The dispute began in April 2016, when a Kansas police officer ran a registration check on a Chevrolet pickup. The officer discovered that the man who owned the truck, Charles Glover Jr., had had his license revoked. The officer assumed that the man currently driving the pickup was Mr. Glover, so he stopped the vehicle, learned he was was correct, and charged Mr. Glover with repeatedly violating Kansas’s traffic laws. The question here is when, exactly, it’s reasonable for police officers to assume that the vehicle’s unlicensed owner is the one driving. After all, millions of cars in America are registered to more than one person. If Glover’s Chevrolet pickup was also registered to his daughter, then Kansas officers might have stopped his licensed daughter instead.

According to the state of Kansas, officers can assume that a car’s unlicensed owner is driving if there’s no evidence to the contrary. Let’s say that the officer can’t identify any details about the Chevrolet’s driver. The windows are tinted, the sky is dark, and he can’t see whether the driver is a man, woman, or a Beverly Hills chihuahua. Despite his visual ignorance, if the officer knows the owner of the car is unlicensed, then he can assume the owner is the one driving.

Glover argues that officers need more evidence than that to assume the unlicensed owner is driving. The evidence doesn’t have to be rock-solid — perhaps the officer sees a middle-aged man in the driver’s seat and feels vindicated that it’s Glover — but there should generally be more evidence than “the owner of this car is unlicensed” to justify a stop.

The more liberal justices seemed to agree with Glover during Monday’s oral argument, for they thought extra evidence was often needed for officers to have reasonable suspicion. The conservative justices were harder to read.

Justice Kagan pointed to her 2013 opinion in Florida v. Harris, which said that courts must look to the totality of the circumstances when evaluating whether an officer has probable cause for a traffic stop. In other words, courts can look at the experience of the police officer, the performance history of his bomb-sniffing dog, the weather, the behavior of the driver, and any other relevant information in the context of the stop. Why should we “throw out the totality of the circumstances analysis,” asked Justice Kagan, and say that Mr. Glover’s lack of a license entirely justifies his traffic stop? 

The Assistant to the Solicitor General, Michael R. Huston, sort of responded to Kagan’s question, claiming that officers must have suspicion based on common sense in order to stop people. But the justices were curious about how statistics enter into common sense: Justice Kavanaugh wondered whether the fact that 50% of teenagers text while driving is enough for an officer to stop a teenager driver. Huston said no, but didn’t have much time to elaborate.

A few of the justices were concerned by the officer in this case, Deputy Mehrer, saying that he “assumed” Mr. Glover was driving the car. The officer didn’t cite evidence for his assumption, said Justice Gorsuch, so how can courts possibly decide whether he was correct?

Representing Mr. Glover, former DOJ lawyer Sarah Harrington responded that officers must have evidence for their reasonable suspicion beyond knowing the car’s owner is unlicensed. Consider suppression hearings, where judges decides whether evidence from traffic stops can be used at trial. Even if the officer testifies vaguely at the hearing that, “In my experience, the unlicensed owner is often driving,” the stopped driver can cross-examine him. The driver can ask if geography affected the officer’s decision — if, for example, rural Kansas is known for unlicensed owners flaunting the law; if drivers in the area tend to have their licenses revoked for bad behavior or merely for missing their fee payments; if the driver here behaved suspiciously near the police officer; and so on. In this way the driver can uncover the totality of the circumstances, and the judge can decide whether the stop was reasonable.

Justice Gorsuch worried that adopting Harrington’s rule would lead to hollow formalism: If officers only have to say “In my experience” instead of “I assumed,” said Gorsuch, then can’t officers defend any unreasonable stop? Harrington responded that the cross-examination at the hearing would reveal whether the stop was serious.

The interesting question is whether officers should be required to take the stand at these hearings. Fourth Amendment scholar Orin Kerr shared his thoughts on the Volokh Conspiracy blog:

For what it’s worth, my own intuitions tend to make the general question something for judges but the experience with special cases something up to witnesses.  If that’s right, I would think that the officer’s testimony shouldn’t be required in a case like Glover, but that there will be Glover cases where it would be relevant.

Here’s my thinking.  If we want to get a ballpark sense of whether an intuition is justified, the ballpark sense is probably something best generalized by courts.  I would think it would be a relatively uncommon case in which the officer’s training and experience can shed substantial light on the generalized answer.  Relying on the officer’s training seems particularly unhelpful because it’s presumably circular.

I would think that an officer’s testimony about his experience will be pretty limited in most cases.  As the Chief Justice noted, some officers will be new.  Others will have no strong recollections of the correlation between a positive database hit and the owner driving.  And none will be well-equipped to offer a statistical analysis of the inference anyway, such as whether the factors that went into their past experience were relevant to this case.

With that said, I would also think that the officer’s experience is certainly relevant in some Glover cases.  Officer experience can be important when an officer has a lot of experience with a recurring fact pattern. For example, an officer who does undercover buys often may know how drug deals work, and that may give the officer knowledge of what lessons to draw from something he sees during a drug buy that someone without that experience would lack. The idea is that the officer can tell us about a world we don’t know, serving as a sort of expert to guide us.

I think the Supreme Court will rule in Kansas v. Glover that courts must look at the “totality of circumstances” when evaluating stops based on reasonable suspicion. This approach would follow Florida v. Harris.

In some areas of the country, where it is common for unlicensed car owners to drive, then the very fact of an unlicensed owner will be sufficient to justify a stop. In some areas it won’t. I don’t expect the Court to create a bright-line rule that will sharply limit when officers can stop drivers, but to stick with the broad totality analysis and to perhaps break new ground by requiring officers to testify in suppression hearings.