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Instant Analysis: NFIB v. Sebellius (this time with most of the Chief’s Opinion)

July 1st, 2012

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.

First, let me break down the portions of the opinion.

Only parts of Roberts’s opinion are for the entire Court (that is for Roberts, Ginsburg, Breyer, Sotomayor, and Kagan):

The introduction (the stuff that comes before Part I) was for Roberts alone.
Part I (pp. 1-11)was for Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan.
Part II (pp. 11-15) was joined by GInsburg, Breyer, Sotomayor, and Kagan, which rejected the AIA argument.
Part III-C (pp. 33-35) was joined by Ginsburg, Breyer, Sotomayor,and Kagan, and concluded that the mandate may be upheld as within Congress’s Taxing Clause power.

Part III-A (pp. 16-30) was written only for Roberts, concluding that the mandate was not a valid exercise of Congress’s power under the Commerce Clause (16-27) and N&P Clause (27-30). Roberts effectively agrees with pp.4-16 of the joint dissent.
Part III-B (pp. 31-32) was written only for Roberts concluding that the mandate must be construed as imposing a tax if it can be.
Part III-D (pp. 44-45) was written only for Roberts, in response to Ginsburg with respect to construing the mandate as a tax or an unconstitutional regulation of inactivity.

Part IV (pp. 45- 59) was written for Roberts, Breyer, and Kagan, holding that the Medicaid expansion violates the Constitution (pp. 45-58). Ginsburg, joined by Sotomayor, more-or-less agrees with Part IV-B (pp. 55- 58) of Roberts’s opinion, which concludes that Medicaid’s severability clause is the appropriate remedy.

Justice Ginsburg’s lengthy dissent was joined in its entirety by Justice Sotomayor. Breyer and Kagan only joined Parts I, II, III, and IV.

Part I (pp. 2- 12), joined by all four, talks about the importance of ACA, and the problems it was aimed at solving.
Part II (pp. 12-31) joined by all four, rejects the Chief’s Commerce Clause argument.
Part III (pp. 31-36), joined by all four, rejects the Chief’s Necessary & Proper Clause Argument
Part IV (pp. 37), joined by all four, harkens back to Lochner.
Part V (pp. 38-61), joined only by Ginsburg and Sotomayor, rejects the Chief’s Medicaid argument.

The dissent is jointly written by Scalia, Kennedy, Thomas, and Alito, though Kennedy read it from the bench (I checked, O’Connor, Kennedy, and Souter took turns reading from their joint opinion in Planned Parenthood v. Casey. Curious that Nino did not also chime in on the dissent).
Part I (pp. 4-16) focuses on the individual mandate and the commerce clause/N&P Clause.
Part II (pp. 17- 26) focuses on the taxing power.
Part III (pp. 26- 28) focuses on the AIA.
Part IV (pp. 28- 48) focuses on the Medicaid Expansion.
Part V (pp. 48- 64) focuses on severability.
The conclusion (pp.64-65) wraps it up.

Thomas dissented solo to write that he would grant exile to the Constitution in Exile (pp. 1-2).

I got through most of the Chief’s opinion. I’ll do more later.

(more…)

Instant Analysis: NFIB v. Sebelius

June 30th, 2012

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Still another night till I got to read the opinion, and even now I have just broken down the parts. Without further ado.

First, let me break down the portions of the opinion.

Only parts of Roberts’s opinion are for the entire Court (that is for Roberts, Ginsburg, Breyer, Sotomayor, and Kagan):

The introduction (the stuff that comes before Part I) was for Roberts alone.
Part I (pp. 1-11)was for Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan.
Part II (pp. 11-15) was joined by GInsburg, Breyer, Sotomayor, and Kagan, which rejected the AIA argument.
Part III-C (pp. 33-35) was joined by Ginsburg, Breyer, Sotomayor,and Kagan, and concluded that the mandate may be upheld as within Congress’s Taxing Clause power.

Part III-A (pp. 16-30) was written only for Roberts, concluding that the mandate was not a valid exercise of Congress’s power under the Commerce Clause (16-27) and N&P Clause (27-30). Roberts effectively agrees with pp.4-16 of the joint dissent.
Part III-B (pp. 31-32) was written only for Roberts concluding that the mandate must be construed as imposing a tax if it can be.
Part III-D (pp. 44-45) was written only for Roberts, in response to Ginsburg with respect to construing the mandate as a tax or an unconstitutional regulation of inactivity.

Part IV (pp. 45- 59) was written for Roberts, Breyer, and Kagan, holding that the Medicaid expansion violates the Constitution (pp. 45-58). Ginsburg, joined by Sotomayor, more-or-less agrees with Part IV-B (pp. 55- 58) of Roberts’s opinion, which concludes that Medicaid’s severability clause is the appropriate remedy.

Justice Ginsburg’s lengthy dissent was joined in its entirety by Justice Sotomayor. Breyer and Kagan only joined Parts I, II, III, and IV.

Part I (pp. 2- 12), joined by all four, talks about the importance of ACA, and the problems it was aimed at solving.
Part II (pp. 12-31) joined by all four, rejects the Chief’s Commerce Clause argument.
Part III (pp. 31-36), joined by all four, rejects the Chief’s Necessary & Proper Clause Argument
Part IV (pp. 37), joined by all four, harkens back to Lochner.
Part V (pp. 38-61), joined only by Ginsburg and Sotomayor, rejects the Chief’s Medicaid argument.

The dissent is jointly written by Scalia, Kennedy, Thomas, and Alito, though Kennedy read it from the bench (I checked, O’Connor, Kennedy, and Souter took turns reading from their joint opinion in Planned Parenthood v. Casey. Curious that Nino did not also chime in on the dissent).
Part I (pp. 4-16) focuses on the individual mandate and the commerce clause/N&P Clause.
Part II (pp. 17- 26) focuses on the taxing power.
Part III (pp. 26- 28) focuses on the AIA.
Part IV (pp. 28- 48) focuses on the Medicaid Expansion.
Part V (pp. 48- 64) focuses on severability.
The conclusion (pp.64-65) wraps it up.

Thomas dissented solo to write that he would grant exile to the Constitution in Exile (pp. 1-2).

I’ll fill in the rest later when I have time.

Chief Justice Owner, Err, John Roberts’s Controlling Opinion

Justice Ginsburg’s Concurring Opinion

Dissent of Justices Kennedy, Scalia, Thomas, and Alito

Dissent of Justice Thomas

Instant Analysis: United States v. Alvarez

June 29th, 2012

Instant Analysis: United States v. Alvarez

I write this analysis at 35,000 feet, somewhere over Pennsylvania, as I continue my flight towards Jolly ‘Ol England.

Today, the Supreme Court per Justice Kennedy found that an act of Congress was “unprecedented,” with “no clear limiting principle,” and violated the Constitution. No, it wasn’t the ACA. It was the Stolen Valor Act. Ripoff.

So there were three opinions. Justice Kennedy wrote the plurality for the Chief, Ginsburg, and Sotomayor. Breyer wrote separately, joined by Kagan. Alito dissented, joined by Scalia and Thomas.

Kennedy Plurality

What prose. This opening paragraph reads like something the Chief wrote. It is not very Kenendy-esque.

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Con-gressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.

Remember when the 10th Circuit decided a case on this point while Alvarez was pending? Yeah. The Court did take note of that.

After certiorari was granted, and in an unrelated case, the United States Court of Appeals for the Tenth Circuit, also in a decision by a divided panel, found the Act consti- tutional. United States v. Strandlof, 667 F.3d 1146 (2012). So there is now a conflict in the Courts of Appeals on the question of the Act’s validity.

The Court noted that this case, in many respects, is a follow-up to Snyder v. Phelps.

This is the second case in two Terms requiring the Court to consider speech that can disparage, or attempt to steal, honor that belongs to those who fought for this Nation in battle. See Snyder v. Phelps, 562 U. S. ___ (2011) (hateful protests directed at the funeral of a serviceman who died in Iraq). Here the statement that the speaker held the Medal was an intended, undoubted lie.

The Court, interestingly tied the compelling interest of honoring the soldiers to the “precepts of the Constitution for which they fought.” This makes me think, a bit, of Stevens’s dissent in Texas v. Johnson (flag burning case) where he came out in the opposite direction with respect to free speech.

And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

After reciting a long list of “content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “‘historic and traditional categories [of expres- sion] long familiar to the bar,’”
the Court notes that “Absent from those few categories where the law allows content-based regulation of speech is any general excep- tion to the First Amendment for false statements.”

The Court also commented on the wide-ranging implications of this statute, which seem to apply anywhere, anytime. And this statute is *UNPRECEDENTED*. Not the ACA. The Stolen Valor Act Case. No doubt this was Kennedy gigging the Chief. Who knows.

Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered con- versations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so en- tirely without regard to whether the lie was made for the purpose of material gain.

Not only is this law unprecedented, there is “no clear limiting principle.” I think the wrong case got the slippery slope argument.

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern- ment authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sus- tained, there could be an endless list of subjects the Na- tional Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the in- terest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give govern- ment a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

And it is Alvarez, and not Jones (GPS case) that gets the citation to 1984!

So Kennedy lists a number of recipients who have received the Medal of Honor. Kinda reminds me of Justice Blackmun’s listing of great baseball players in Flood v. Kuhn.

The Court stressed that “counterspeech” suffices to achieve the government’s interest. Total paen (and citation) to Holmes’s marketplace of ideas theory. And now we know that the marketplace of ideas Includes trolling “online.”

The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refuta- tion, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony,” 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation . . . The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the unin- formed, the enlightened; to the straight-out lie, the simple truth. . . . See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be ap- plied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalien- able rights of the person. And suppression of speech by the government can make exposure of falsity more diffi- cult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orches- trate public discussion through content-based mandates.

Mandates! Inalienable rights of the person! Civic Duty! Classic Tony. And he goes off on a stronger libertarian rant (I think here Justice Breyer must have parted company)

The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradi- tion. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.

And AMK tells Congress they can fix this problem by putting that stuff in the Cloud!

In addition, when the Government seeks to regulate protected speech, the restriction must be the “least restric- tive means among available, effective alternatives.” Ash- croft, 542 U. S., at 666. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Con- gressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individ- uals have already created databases similar to this, see Brief for Respondent 25, and at least one data- base of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the De- partment of Defense investigated the feasibility of estab- lishing a database in 2008, the Government “concluded that such a database would be impracticable and insuf- ficiently comprehensive.” Brief for United States 55. Without more explanation, it is difficult to assess the Gov- ernment’s claim, especially when at least one database of Congressional Medal of Honor winners already exists.

And social costs!

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find re- spondent’s statements anything but contemptible, his right to make those statements is protected by the Consti- tution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.

Breyer Concurring Opinion

Breyer, along with Kagan, concurs in judgment only, and rejects a “strict categorical analysis.”

I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at 4– 10. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Govern- ment can achieve its legitimate objectives in less restric- tive ways

Breyer’s entire analysis rests on an ad-hoc balancing of what he calls “speech-related harms” along with many other interests. I could call these social costs, I suppose, though perhaps the thin air up here is diminishing my thinking capacity.

In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifica- tions, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and im- portance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so. Ultimately the Court has had to deter- mine whether the statute works speech-related harm that is out of proportion to its justifications.

Breyer also (aptly) labels strict scrutiny as “near-automatic condemnation” and rational basis review as “near-automatic approval.” This sounds in Marshall’s (or was it Brennan’s–dammit, can’t Google up here) theory that strict scrutiny was strict in theory, but fatal in fact.

But what is most fascinating here is that Kagan joins onto Breyer’s balancing tests. Not what I expected from a former First-Amendment scholar.

Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law. The dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter. Such false factual statements are less likely than are true factual statements to make a valuable contribution to the marketplace of ideas. And the government often has good reasons to prohibit such false speech. See infra, at 5–7 (listing examples of statutes and doctrines regulating false factual speech). But its regulation can nonetheless threaten speech-related harms. Those circumstances lead me to apply what the Court has termed “intermediate scrutiny” here

Breyer reject’s Holmes’s marketpalce of ideas theories. No Oliver Wendell Breyer here. Though, this echoes Breyer’s opinion in Sorrell.

Alito Dissent

Alito continues his reputation as the least-ardent supporter of the First Amendment speech (not exercise) clause. More broadly, Scalia and Roberts switched places with EMA. Scalia authored the majority opinion in EMA. Roberts concurred with Alito. Here, the Chief joins the majority opinion, but Scalia dissents.

By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.

Alito disputes that a database would be feasible, and that “counterspeech” cannot resovle this issue. He also knocks the plurality, and Breyer, for suggesting that Congress try again till it gets it right.

JUSTICE BREYER also proposes narrowing the statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it even- tually passes a law that draws the line in just the right place.

Alito is not concerned about the majority’s slippery slope, and risks of limiting false statements about history or science.

In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect. Tell- ingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.

Alito further rejects the fears of slippery slope as really an attack on over-criminalization.

In any event, if the plurality’s concern is not entirely fanciful, it falls outside the purview of the First Amend- ment. The problem that the plurality foresees—that legislative bodies will enact unnecessary and overly intru- sive criminal laws—applies regardless of whether the laws in question involve speech or nonexpressive conduct. If there is a problem with, let us say, a law making it a criminal offense to falsely claim to have been a high school valedictorian, the problem is not the suppression of speech but the misuse of the criminal law, which should be re- served for conduct that inflicts or threatens truly serious societal harm. The objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.

Instant Analysis: Arizona v. United States (Oral Argument)

April 25th, 2012

The transcript is here. Clement v. Verrilli. Round 2. (someone should make a Hayek-Keynes video for this).

Clement

Clement opens up with a long intro, and focuses that the burden to show preemption is on the federal government, not the state:

A State does not need to point to Federal 3 authorization for its enforcement efforts. Rather, the 4 burden is on the parties seeking to preempt a duly 5 enacted State law to point to some provision in 6 statutory law that does the preempting. Now, the United 7 States can’t really do that here, and the reason is 8 obvious. 9 There are multiple provisions of the Federal 10 immigration law that go out of their way to try to 11 facilitate State and local efforts to communicate with 12 Federal immigration officials in order to ascertain the 13 immigration status of individuals.

Sotomayor’s questions focused not on the fact that a person’s immigration status could be checked after he is detained based on probable cause, but on the length of that detention [Noteworthy, Sotomayor uses the word “illegal alien”–this is the term used in the statute]:

JUSTICE SOTOMAYOR: But I want to get to 22 how — assuming your position, that doing it on 23 a — there’s nothing wrong with doing it as it’s been 24 done in the past. Whenever anyone is detained, a call 25 could be made. What I see as critical is the issue of how long, and under — and when is the officer going to 2 exercise discretion to release the person? . . .

JUSTICE SOTOMAYOR: What happens if — this 13 is the following call — the call to the — to the 14 Federal Government. Yes, he’s an illegal alien. No, we 15 don’t want to detain him. 16 What does the law say, the Arizona law say, 17 with respect to releasing that individual?

MR. CLEMENT: But — but if what we’re 5 talking about is simply what happens then for purposes 6 of the Federal immigration consequences, the answer is 7 nothing. The individual at that point is released. . . . Now, I think in that circumstance, it’s very 19 clear what would happen, is an inquiry would be made to 20 the Federal officials that would say, do you want us to 21 transfer this person to your custody or hold this person 22 until you can take custody? And if the answer is no, 23 then that’s the end of it. That individual is released, 24 because there is no independent basis in that situation 25 for the State officer to continue to detain the individual at all.

RBG asks how can the state know if a person is removable–it is often a tricky question:

JUSTICE GINSBURG: But how would the State 3 officer know if the person is removable? I mean, that’s 4 sometimes a complex inquiry. 5 MR. CLEMENT: Well, Justice Ginsburg, I 6 think there’s two answers to that. One is, you’re 7 right, sometimes it’s a complex inquiry, sometimes it’s 8 a straightforward inquiry. It could be murder, it could 9 be a drug crime. But I think the practical answer to 10 the question is by hypothesis there is going to be 11 inquiry made to the Federal immigration authorities, 12 either the Law Enforcement Support Center or a 287(g) 13 officer. And presumably, as a part of that inquiry, 14 they can figure out whether or not this is a removable 15 offense or at least a substantially likely removable 16 offense.

Justice Kennedy asks whether a person could be detained for two weeks in order to make that determination of removeability:

JUSTICE KENNEDY: If it takes two weeks to 18 make that determination, can the alien be held by the 19 State for that whole period of time — 20

MR. CLEMENT: Oh, I don’t — 21

JUSTICE KENNEDY: — just under section 6? 22

MR. CLEMENT: I don’t think so, Your Honor, 23 and I think that, you know, what — in all of these 24 provisions, you have the Fourth Amendment backing up the 25 limits, and I think so —

1 JUSTICE KENNEDY: What — what would be the 2 standard? You’re the attorney for the alien, he — they 3 are going to hold him for two weeks until they figure 4 out whether this is a removable offense, and you say, 5 under the Fourth Amendment, you cannot hold for — what? 6 More than a reasonable time or — 7

MR. CLEMENT: Yes, ultimately, it’s a 8 reasonable inquiry. And I think that under these 9 circumstances what we know from the record here is that 10 generally the immigration status inquiry is something 11 that takes 10 or 11 minutes. I mean, so it’s not — 12 we’re not talking about something — or no more than 10 13 if it’s a 287(g) officer and roughly 11 minutes on 14 average if it’s the Law Enforcement Support Center.

Clement gave a similar response to a Justice Breyer hypo–all inquiries are backed by the Fourth Amendment.

Clement’s colloquy with his former boss, Justice Scalia, highlights why this case isn’t about what everyone thinks it is about–it is not about the 4th Amendment, racial profiling, or immigration law. It is about federal preemption.

JUSTICE SCALIA: Anyway, if this is a 19 problem, is it an immigration law problem? 20 MR. CLEMENT: It — 21

JUSTICE SCALIA: Or is it a Fourth Amendment 22 problem? 23

MR. CLEMENT: Justice Scalia, it is 24 neither — 25

JUSTICE SCALIA: Is the Government’s attack on this that it violates the Fourth Amendment? 2

MR. CLEMENT: No, of course the Federal 3 Government, that also has a lot of immigration arrests 4 that are subject to the Fourth Amendment, is not making 5 a Fourth Amendment claim here. And it’s neither an 6 immigration law concern or something that should be the 7 basis for striking down a statute on its face.

In a bizarre exchange, Breyer asks Clement if it would be OK to make a statement in an opinion (presumably his dissent?)

JUSTICE BREYER: All right. Can I make the 16 following statement in the opinion, and you will say 17 that’s okay. Imagine — this is imaginary. “We 18 interpret” — imagine — “we interpret Section 2(B) as 19 not authorizing or requiring the detention of any 20 individual under 2(B), either at the stop or in prison, 21 for a significantly longer period of time than that 22 person would have been detained in the absence of 2(B).” 23 Can I make that statement in an opinion, and 24 you’ll say, that’s right? 25

MR. CLEMENT: I think what you could say — JUSTICE BREYER: Can I say that? 2

MR. CLEMENT: I don’t think you can say just 3 that. 4 JUSTICE BREYER: No.

MR. CLEMENT: I think you can say something 6 similar, though. I think you probably could say, look, 7 this is a facial challenge. The statute’s never gone 8 into effect. We don’t anticipate that Section 2(B) 9 would elongate in a significant number of cases the 10 detention or the arrest. I think you could say that.

. . . And so I don’t think that this immigration 11 status check is likely to lead to a substantial 12 elongation of the stops or the detentions.

Justice Scalia asks if Arizona has to accept in its borders illegal aliens the feds are not interested in removing. Clement says no?!

JUSTICE SCALIA: You’ll concede that the — 10 that the State has to accept within its borders all 11 people who have no right to be there, that the Federal 12 Government has no interest in removing? 13

MR. CLEMENT: No, I don’t accept that, 14 Justice Scalia, but — 15 JUSTICE SCALIA: That’s all the statute — 16 and you call up the Federal Government, and te 17 Federal — yes, he’s an illegal immigrant, but that’s 18 okay with us. 19

MR. CLEMENT: Well — 20

JUSTICE SCALIA: And the State has no power 21 to close its borders to people who have no right to be 22 there? 23

MR. CLEMENT: Well, Justice Scalia, here’s 24 my response, which is all of this discussion, at least 25 as I’ve understood it, has been about 2(B) and to a lesser extent 6. 2 Now, section 3 of the statute does provide 3 an authority under State law to penalize somebody who 4 has violated essentially the Federal registration 5 requirement. So if that’s — as to that provision, 6 there would be a State authority, even under these 7 hypotheticals, to take action with respect to the 8 individual — 9

JUSTICE KENNEDY: I think — 10 MR. CLEMENT: — but not with respect to 11 the Federal — 12 JUSTICE KENNEDY: I think Justice Scalia’s 13 question was the — was the broader one, just as a 14 theoretical matter. Can we say, or do you take the 15 position that a State must accept within its borders a 16 person who is illegally present under Federal law? 17

MR. CLEMENT: Well, and I think — 18

JUSTICE KENNEDY: And that is by reason of 19 his alien — 20

MR. CLEMENT: And I think my answer to that 21 is no. I think the reason my answer is no has more to 22 do with our defense of section 3 and other provisions 23 than it does with respect to the inquiry and arrest 24 authority provisions, 2(B) and 6.

Alito gives a lethal hypo to Clement, and smacks him down:

MR. CLEMENT: Well, if I can just kind of 16 work back for a second. I mean, obviously, it’s a 17 pretty unusual circumstance where somebody produces an 18 out-of-state driver’s license, and that doesn’t dispel 19 reasonable suspicion for the officer; but, I’ll take the 20 hypo — 21

JUSTICE ALITO: Why would it dispel 22 reasonable suspicion if it’s — if the officer knows 23 it’s a state that issues driver’s licenses to aliens who 24 are not lawfully —

MR. CLEMENT: And that might be a situation where that’s the case, and then — then it wouldn’t 2 dispel the reasonable suspicion. But, say, in the 3 average case, I think it would.

Kennedy turned to whether Arizona’s policy ” stands as an obstacle to the accomplishment and execution of the full purposes

9 and objectives of Congress.”

 JUSTICE KENNEDY: But then the government on 19 this section is going to come and say, well, there may 20 be — this must be — this — the enforcement of this 21 statute, as Arizona describes it, will be in 22 considerable tension with our — with our basic 23 approach; isn’t that what I’m going to hear from the 24 government?

MR. CLEMENT: It may be what you’re going to hear, Justice Kennedy, but I don’t think you just take 2 the Federal government for its word on these things. 3 You know, it’s interesting, in DeCanas 4 itself, the SG said that that California statute was 5 preempted. And in DeCanas, this Court didn’t say, well, 6 you know, we’ve got this language from Hines, and we 7 have the SG tell us it’s preempted, that’s good enough 8 for us. They went beyond that, and they looked hard. 9 And what they did is they established that 10 this is an area where the presumption against preemption 11 applies. So, that seems one strike in our favor. 12 We have here a situation where there is an 13 express preemption provision, and it — it only 14 addresses the employer’s side of the ledger. So the 15 express preemption provision clearly doesn’t apply here. 16 So the only thing they have is this inference —

And–in a snipe at Nino–Sotomayor talks about the legislative history:

JUSTICE SOTOMAYOR: Well, for those of us 18 for whom legislative history has some importance, there 19 seems to be quite a bit of legislative history that 20 the — that the idea of punishing employees was raised, 21 discussed and explicitly rejected.

MR. CLEMENT: And here’s why I think, if you consider the 10 legislative history, for those who do, it really 11 supports us, because here’s what Congress confronted. I 12 mean, they started thinking about this problem in 1971. 13 They passed IRCA in 1986.

Justice Kennedy asks about a double-jeopardy challenge where a person is prosecuted for violating the federal and state laws:

JUSTICE KENNEDY: Would double prosecutions 19 be — suppose that an alien were prosecuted under 20 Federal law for violating basically the terms of 3, 21 could the States then prosecute him as well? 22

MR. CLEMENT: I think they could under 23 general double jeopardy principles and the dual 24 sovereignty doctrine. Obviously, if that was a 25 particular concern to you, that might be the basis as an 1 as-applied challenge if somebody was already prosecuted 2 under Federal law.

Verrilli

The SG didn’t even get to his argument before he was interrupted:

GENERAL VERRILLI: Mr. Chief Justice, and 8 may it please the Court: 9 CHIEF JUSTICE ROBERTS: Before you get into 10 what the case is about, I’d like to clear up at the 11 outset what it’s not about. No part of your argument 12 has to do with racial or ethnic profiling, does it? I 13 saw none of that in your brief. 14

GENERAL VERRILLI: That’s correct. 15

CHIEF JUSTICE ROBERTS: Okay. So this is 16 not a case about ethnic profiling. 17

GENERAL VERRILLI: We’re not making any 18 allegation about racial or ethnic profiling in the case. Mr. Clement is working hard this morning to 20 portray SB 1070 as an aid to Federal immigration 21 enforcement. But the very first provision of the 22 statute declares that Arizona is pursuing its own policy 23 of attrition through enforcement and that the provisions 24 of this law are designed to work together to drive 25 unlawfully present aliens out of the State. That is something Arizona cannot do because 2 the Constitution vests exclusive —

Sotomayor returns to Scalia’s question about whether Arizona has the power to exclude (the most essential stick, no?):

JUSTICE SOTOMAYOR: General, could you 4 answer Justice Scalia’s earlier question to your 5 adversary? He asked whether it would be the 6 Government’s position that Arizona doesn’t have the 7 power to exclude or remove — to exclude from its 8 borders a person who’s here illegally. 9

GENERAL VERRILLI: That is our position, 10 Your Honor. It is our position because the Constitution 11 vests exclusive authority over immigration matters with 12 the national government.

Scalia snips back and talks about the sovereignty of the state:

JUSTICE SCALIA: All that means, it gives 14 authority over naturalization, which we’ve expanded to 15 immigration. But all that means is that the Government 16 can set forth the rules concerning who belongs in this 17 country. But if, in fact, somebody who does not belong 18 in this country is in Arizona, Arizona has no power? 19 What does sovereignty mean if it does not include the 20 ability to defend your borders? 21

GENERAL VERRILLI: Your Honor, the Framers 22 vested in the national government the authority over 23 immigration because they understood that the way this 24 nation treats citizens of other countries is a vital 25 aspect of our foreign relations. The national government, and not an individual State — 2

JUSTICE SCALIA: But it’s still up to the 3 national government. Arizona is not trying to kick out 4 anybody that the Federal government has not already said 5 do not belong here. And the Constitution provides — 6 even — even with respect to the Commerce Clause — “No 7 State shall without the consent of Congress lay any 8 imposts or duties on imports or exports except,” it 9 says, “what may be absolutely necessary for executing 10 its inspection laws.” 11 The Constitution recognizes that there is 12 such a thing as State borders and the States can police 13 their borders, even to the point of inspecting incoming 14 shipments to exclude diseased material.

The Chief honed in on the SG’s argument that it is OK for the police, in an ad hoc fashion, to ask the feds about a person’s immigration status, but not in some kind of systematic fashion:

CHIEF JUSTICE ROBERTS: It seems an odd argument to say the Federal 14 agency has to answer the state’s question, but the state 15 can’t ask it. 16

GENERAL VERRILLI: Well, we’re not saying 17 the state can’t ask it in any individual case. We 18 recognize that section — 19

CHIEF JUSTICE ROBERTS: You think there are 20 individual cases in which the state can call the Federal 21 Government and say: Is this person here illegally? 22 GENERAL VERRILLI: Yes, certainly, but that 23 doesn’t make — 24

CHIEF JUSTICE ROBERTS: Okay. So doesn’t 25 that defeat the facial challenge to the Act?

GENERAL VERRILLI: No. I don’t think so, 2 Mr. Chief Justice, because the — I think the problem 3 here is in that — is in every circumstance as a result 4 of section 2(B) of the law, backed by the penalties of 5 section 2(H), the state official must pursue the 6 priorities that the state has set, irrespective of 7 whether they are helpful to or in conflict with the 8 Federal priorities. . . .

GENERAL VERRILLI: Well, if there’s a — if 8 there’s a state policy locked into law by statute, 9 locked into law by regulation, then we have a problem. 10 If it’s not

JUSTICE ALITO: That’s what I can’t 15 understand because your argument — you seem to be 16 saying that what’s wrong with the Arizona law is that 17 the Arizona legislature is trying to control what its 18 employees are doing, and they have to be free to 19 disregard the desires of the Arizona legislature, for 20 whom they work, and follow the priorities of the Federal 21 Government, for whom they don’t work.

Even Sotomayor had difficulty following this argument:

JUSTICE SOTOMAYOR: I’m sorry. I’m a little 12 confused. General, I’m terribly confused by your 13 answer. Okay? And I don’t know that you’re focusing in 14 on what I believe my colleagues are trying to get to.

Then the argument turned to what is really at issue–racial profiling:

GENERAL VERRILLI: I think there are three. 8 The first is the — the Hines problem of harassment. 9 Now, we are not making an allegation of 10 racial profiling; nevertheless, there are already tens 11 of thousands of stops that result in inquiries in 12 Arizona, even in the absence of S.B. 1070. It stands to 13 reason that the legislature thought that that wasn’t 14 sufficient and there needed to be more. 15 And given that you have a population in 16 Arizona of 2 million Latinos, of whom only 400,000 at 17 most are there unlawfully — 18

JUSTICE SCALIA: Sounds like racial 19 profiling to me. 20 GENERAL VERRILLI: And they’re — and given 21 that what we’re talking about is the status of being 22 unlawfully present — 23

JUSTICE SOTOMAYOR: Do you have the 24 statistics as to how many arrests there are and how 25 many — and what the — percentage of calls before the Official – Subject to Final Review Alderson Reporting Company 46 1 statute? 2 GENERAL VERRILLI: There is some evidence in 3 the record, Your Honor. It’s the — the Palmatier 4 declaration, which is in the Joint Appendix, was the — 5 he was the fellow who used the run the Law Enforcement 6 Support Center, which answers the inquiries. That — 7 that declaration indicates that in fiscal year 2009, 8 there were 80,000 inquiries and — 9

JUSTICE SCALIA: What does this have to do 10 with Federal immigration law? I mean, it may have to do 11 with racial harassment, but I thought you weren’t 12 relying on that. 13

GENERAL VERRILLI: The — 14

JUSTICE SCALIA: Are you objecting to 15 harassing the — the people who have no business being 16 here? Is that — surely you’re not concerned about 17 harassing them. They have been stopped anyway, and all 18 you’re doing is calling up to see if they are illegal 19 immigrants or not. 20 So you must be talking about other people 21 who have nothing to do with — with our immigration 22 laws. Okay? Citizens and — and other people, right?

Tea Party Rally in One First Street?

The Chief summed up his view pithily:

CJ: It seems to me that the Federal Government 3 just doesn’t want to know who is here illegally or not. 4

GENERAL VERRILLI: No, I — I don’t think 5 that’s right. I think we want to be able to cooperate 6 and focus on our priorities.

And the SG made a law clerk funny, that didn’t get any laughs:

I mean, I think it’s as though, if I can use 7 an analogy, if you ask one of your law clerks to bring 8 you the most important preemption cases from the last 10 9 years, and they rolled in the last — the last hundred 10 volumes of the U.S. Reports and said, well, they are in 11 there. That — that doesn’t make it — 12

CHIEF JUSTICE ROBERTS: What if they just 13 rolled in Whiting? 14 (Laughter.) 15 CHIEF JUSTICE ROBERTS: That’s a pretty good 16 one.

And the most dreaded words when arguments aren’t going well and your time is up:

Excuse me. I see my —
21 CHIEF JUSTICE ROBERTS: No, keep going.

This bit was interesting. There is no way for the Feds to verify a person is actually a citizen if they do not possess a Passport:

Today, if you use the names Sonya Sotomayor, 4 they would probably figure out I was a citizen. But 5 let’s assume it’s John Doe, who lives in Grand Rapids. 6 So they are legal. Is there a citizen database? 7

GENERAL VERRILLI: The citizen problem is 8 actually a significant problem. There isn’t a citizen 9 database. If you — 10

JUSTICE SOTOMAYOR: I’m sorry, there is or 11 there isn’t? 12

GENERAL VERRILLI: There is not. If you 13 have a passport, there is a database if you look 14 “passports.” So you could be discovered that way. But 15 otherwise there is no reliable way in the database to 16 verify that you are a citizen unless you are in the 17 passport database. So you have lots of circumstances in 18 which people who are citizens are going to come up no 19 match. There’s no — there is nothing suggesting in the 20 databases that they have an immigration problem of any 21 kind, but there’s nothing to — 22

JUSTICE SOTOMAYOR: So if you run out of 23 your house without your driver’s license or 24 identification and you walk into a park that’s closed 25 and you’re arrested, you — they make the call to this agency. You could sit there forever while they — 2

GENERAL VERRILLI: Yes, and I — 3

JUSTICE SOTOMAYOR: Figure out if you’re — 4

GENERAL VERRILLI: While I’m at it, there is

Oy Nino made a deportation joke. Seriously.

JUSTICE SCALIA: Well, can’t you avoid that 25 particular foreign relations problem by simply deporting 1 these people? Look, free them from the jails — 2

GENERAL VERRILLI: I really think — 3

JUSTICE SCALIA: And send them back to the 4 countries that are — that are objecting. 5

GENERAL VERRILLI: This is a — 6 JUSTICE SCALIA: What’s the problem with 7 that? . . .

JUSTICE SCALIA: So we have to — we have to 5 enforce our laws in a manner that will please Mexico. 6 Is that what you’re saying? 7

GENERAL VERRILLI: No, Your Honor, but what 8 it does — no, Your Honor, I’m not saying that — 9

JUSTICE SCALIA: Sounded like what you were 10 saying.

Phew, its done.

CHIEF JUSTICE ROBERTS: Thank you, 8 Mr. Clement, General Verrilli. Well argued on both 9 sides. Thank you.

 

 

 

Instant Analysis: Florence v. Freeholders of County of Burlington

April 2nd, 2012

Strip searches are constitutional. It’s a Jersey Thing. This was a 5-4, except Thomas did not join Part IV regarding cases where an inmate is *not* transferred to the general population

Justice Kennedy Majority/Plurality Opinion

So here, the Court is not expert enough to micromanage a prison.

The case turns in part on the extent to which this Court has sufficient expertise and information in the record tomandate, under the Constitution, the specific restrictionsand limitations sought by those who challenge the visualsearch procedures at issue. In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or un-justified response to problems of jail security. That necessary showing has not been made in this case. . . . The difficulties of operating a detention center must not be underestimated by the courts. Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”

I won’t even bother trying to reconcile this with Kennedy’s opinion in Brown v. Plata that told California that it had to release 40,000 prisoners due to overcrowding. The most dangerous prisoners can be let out, but the inmates in prison for most trivial offenses can have a prison guard peer into their anuses and genitalia. Got it.

Look at how the question is phrased–the answer is not surprising:

The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the moreinvasive search procedures at issue absent reasonablesuspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Block, 468 U. S., at 584–585 (internal quotation marks omitted). Petitioner has not met this standard, and the record provides full justifications for the procedures used.

We got “undoubted security imperatives” v. mere “assertions.” And, challengers bears the burden, while the prison receives “deference.”

So AMK makes the point that offenders for minor crimes can be the most dangerous:

The record provides evidence that the seriousness of anoffense is a poor predictor of who has contraband and that it would be difficult in practice to determine whetherindividual detainees fall within the proposed exemption. People detained for minor offenses can turn out to be the most devious and dangerous criminals. Cf. Clements v. Logan, 454 U. S. 1304, 1305 (1981) (Rehnquist, J., in chambers) (deputy at a detention center shot by misdemeanant who had not been strip searched). Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Johnston, Suspect Won’t Answer Any Questions, N. Y. Times, Apr. 25, 1995, p. A1. Police stopped serial killer Joel Rifkin for the same reason.McQuiston, Confession Used to Portray Rifkin as Methodical Killer, N. Y. Times, Apr. 26, 1994, p. B6. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93. The Terrorists: Hijacker Got a Speeding Ticket, N. Y. Times, Jan. 8, 2002, p. A12. Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search ofeveryone who will be admitted to their facilities.

How is *any* of this in the record?

CT did not join Part IV:

This case does not require the Court to rule on the typesof searches that would be reasonable in instances where, for example, a detainee will be held without assignment tothe general jail population and without substantial contactwith other detainees. . . . before the Court, however, do not present the opportunity to consider a narrow exception of the sort JUSTICE ALITO describes, post, at 2–3 (concurring opinion), which might restrict whether an arrestee whose detention has not yet been reviewed by a magistrate or other judicial officer,and who can be held in available facilities removed from the general population, may be subjected to the types of searches at issue here.

So I gather CT would have gone even further, and held that such searches are appropriate even if the prisoner is not to be sent into general population. But, as he is wont to do, Thomas does not concur separately to tell us what is on his mind.’

And amazingly, the word “dignity” appears nowhere in AMK’s opinion (Breyer uses it in dissent). In fact, he poopoos the concerns:

Petitioner’s amici raise concerns about instances of officers engaging in intentional humiliation and other abusive practices. See Brief for Sister Bernie Galvin et al. as Amici Curiae; see also Hudson, 468 U. S., at 528 (“[I]ntentional harassment of even the most hardenedcriminals cannot be tolerated by a civilized society”); Bell, 441 U. S., at 560. There also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees. These issues are not implicated on thefacts of this case, however, and it is unnecessary to con- sider them here.

Roberts, concurring

The Chief concurs (curiously?) to leave the door open to possible exceptions to the rule:

I join the opinion of the Court. As with JUSTICE ALITO, however, it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces. . . . The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions, toensure that we “not embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944) (Frankfurter, J.).

Imagine that JGR assigns an opinion to AMK, and the Chief concurs to say the majority isn’t balanced enough in favor of prisoner rights.

Alito, concurring

Alito also joins to narrow the scope of the opinion:

nothold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time oftheir initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

So in other words, if the person is not dangerous, he should not be humiliated.

Breyer, dissenting

So much for Sotomayor writing the majority opinion. She didn’t even write the dissent, which makes me think that she never had it assigned to her.

In contrast, rather than opening up with an ode to judicial deference to experts, Breyer (of all people!) focus on the humiliating nature of strip searchers:

In my view, such a search of an individual arrested for aminor offense that does not involve drugs or violence—saya traffic offense, a regulatory offense, an essentially civilmatter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believethat the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.

Breyer focuses on the safety cost to the individual’s dignity. Kennedy focuses on the liberty cost to the prison’s order and security.

I doubt that we seriously disagreeabout the nature of the strip search or about the seriousaffront to human dignity and to individual privacy that it presents. The basic question before us is whether sucha search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.

This dissent is somewhat unique as it tracks so carefully where it agrees with, and departs with the majority:

Nonetheless, the “particular” invasion of interests, Bell, 441 U. S., at 559, must be “‘reasonably related’” to the justifying “penological interest” and the need must not be “‘exaggerated.’” Turner, supra, at 87. It is at this point that I must part company with the majority. I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of thosearrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strongreasons to believe they are not justified.

Here, the prison officials bear the burden of justifying their policy.

Indeed, neither the majority’s opinion nor the briefs setforth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard. . . .

The majority is left with the word of prison officials insupport of its contrary proposition. And though that wordis important, it cannot be sufficient.

And, of course, Breyer cites experts!

Second, there is the plethora of recommendations of professional bodies, such as correctional associations, that have studied and thoughtfully considered the matter. The American Correctional Association (ACA)—an association that informs our view of “what is obtainable and what is acceptable in corrections philosophy,” Brown v. Plata, 563 U. S. ___, ___ (2011) (slip op., at 43)—has promulgated a standard that forbids suspicionless strip searches.