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I freely admit that I find the 8th Amendment uninteresting. At least five Justices have made up their mind that the death penalty needs to be eliminated, but because they don’t want to do it all at once, they are systematically, step-by-step, making it harder and harder to execute someone. We all know where this one is going. Justice Scalia’s dissent in Montgomery v. Louisiana makes this process really, really personal.

In short, the Court rules that the Constitution requires that Miller–invalidating Juvenile LWOP in certain circumstances–must be applied retroactively for post-conviction relief of a murder conviction. (I will come back later to the discussion between Scalia and Kennedy on the constitutional issue.

Using language that harkens to his Obergefell dissent, Scalia specifically refers to the five Justices in the majority (In Obergefell he demoted them to “lawyers.”)

So for the five decades Montgomery has spent in prison, not one of this Court’s precedents called into question the legality of his sen- tence—until the People’s “standards of decency,” as per- ceived by five Justices, “evolved” yet again in Miller.

The final paragraph of Scalia’s dissent targets Kennedy, directly, for the sophistry I laid out at the beginning of the post.

This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment.

Further, Roper’s decision invalidating the death penalty for juvenile offenders was premised on the availability of life without parole.

After all, one of the justifications the Court gave for decreeing an end to the death penalty for murders (no matter how many) committed by a juvenile was that life with-out parole was a severe enough punishment. See Roper, 543 U. S., at 572.

The same person–let’s call him Tony–wrote Roper, Miller, and now Montgomery.

How could the majority—in an opinion written by the very author of Roper—now say that punishment is also unconstitutional? The Court expressly refused to say so in Miller. 567 U. S., at ___ (slip op., at 17).

Here was AMK’s explanation in Miller three years ago about why it would not impose a “categorical” bar:

By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not con- sider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.

Scalia continues:

So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility.

That is the M.O. of death penalty abolitionists. Make it constitutional, but a “practical impossibility.” Scalia, channeling his Italian heritage, ends with a bang.

And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.” Ante, at 21. Mission accomplished.

Let’s hope Justice Kennedy has EZ-Pass in case he ever travels on the New Jersey Turnpike.

On of the planks of the Affordable Care Act’s efforts to control health costs is to allow employers to penalize employees who do not participate in certain wellness programs. What is the penalty? Higher premiums:

Workers increasingly are being told by their companies to undergo health screenings and enroll in wellness programs, as a way to curb insurance costs. Many employees now face stiff financial penalties — often in the form of higher premiums — if they do not have their cholesterol checked or join programs to lose weight or better manage diabetes.

The penalty can be as high as 30% of the cost of the premium.

Under the Affordable Care Act, businesses can use financial incentives of up to 30 percent of the yearly cost of coverage, which could easily amount to several thousand dollars. While few employers have incentives of that size, about one in 20 large employers offering screenings has incentives of at least $1,000, according to the Kaiser survey. A smaller fraction require screening before an employee can enroll in coverage. Over all, the amounts for not participating have been increasing, said Karen Pollitz, a senior fellow at Kaiser.

The E.E.O.C.’s challenges have given employers pause as they try to square the Americans With Disabilities Act with the Affordable Care Act and other laws. “It’s becoming more and more difficult even for the lawyers to keep up with the patchwork regulatory approach to these rules,” said Edward Fensholt, a lawyer who heads compliance services for Lockton Companies, an insurance broker based in Kansas City, Mo.

The EEOC has challenged this in court, as a violation of the ADA. A federal judge in Wisconsin rejected this claim. The Times reports this has created a fissure between EEOC and the White House:

While most large employers offer wellness programs, companies and workers alike may find the rules difficult to navigate. The Affordable Care Act allows employers to impose hefty penalties on individuals who do not participate. Nearly half of the large employers offering screenings and wellness programs use some sort of financial incentive to persuade employees to comply, according to a recent analysis by the Kaiser Family Foundation.

But the E.E.O.C. seems to have adopted a different standard, and its proposed regulations do not mesh neatly with the health law. The agency appears to be facing pressure from the White House and Republicans to make sure it does not derail corporate efforts to rein in health care costs.

Nick Bagley has more here.

42 U.S.C. s. 1988 provides has discretion to “allow the prevailing party, other than the United States, a reason- able attorney’s fee” in a civil rights lawsuit filed under 42 U. S. C. §1983. In Hughes v. Rowe, the Court interpreted that provision such that a prevailing defendant can recover fees only if “the plaintiff ’s action was frivolous, unreasonable, or without foundation.”

In May, the Idaho Supreme Court considered a 1983 suit, and rejected the Plaintiffs argument that “attorney fees cannot be awarded under this statute unless the action was frivolous, unreasonable, or without foundation at the time the complaint was filed.” The Idaho Supreme Court concluded that it was not bound by Hughes because the “frivolous” limitation was not in the statute, but was added by SCOTUS as a gloss.

The statute does not contain any such limitation. It permits the award of attorney fees to the prevailing party in the discretion of the court. In Hughes v. Rowe, 449 U.S. 5 (1980), the Supreme Court held that attorney fees could not be awarded to a prevailing defendant in a case brought pursuant to 42 U.S.C. section 1983 unless the plaintiff’s action was frivolous, unreasonable, or without foundation. Id. at 14. However, Hughes and Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), upon which it was based, were appeals from cases in federal district courts. Although the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute. Therefore, in cases filed in the Idaho state courts seeking to recover under 42 U.S.C. section 1988, the court has discretion in deciding to award attorney fees to the prevailing party, whether the prevailing party is the plaintiff or the defendant.

The plaintiff filed a cert petition in October. According to the Brief in Opposition, the “The Idaho Supreme Court went on to state sua sponte” this conclusion. The BIO confessed error on this point:

If the sole question presented on the petition for a writ of certiorari is, as framed by Petitioner, “whether the Idaho Supreme Court correctly concluded that Hughes and Christiansburg do not bind state courts because this Court ‘does not have authority to limit the discretion of state courts where such limitation is not contained in the stat- ute,’ ” the inquiry can end here and summary disposi- tion may be appropriate. Respondents are unable to locate any authority or case law to support that assertion of the Idaho Supreme Court. 

Today, the Court GVR’d the case in a terse, but tense two-page decision that relies on Martin v. Hunter’s Lessee. You don’t see that every day! Here is the key analysis:

Section 1988 is a federal statute. “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.” Nitro-Lift Technologies, L. L. C. v. Howard, 568 U. S. ___, ___ (2012) (per curiam) (slip op., at 5) (quoting Rivers v. Roadway Express, Inc., 511 U. S. 298, 312 (1994) (internal quotation marks omitted)). And for good reason. As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court’s rulings on federal law, “the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mis- chiefs that would attend such a state of things would be truly deplorable.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816).

The Idaho Supreme Court, like any other state or fed- eral court, is bound by this Court’s interpretation of federal law. The state court erred in concluding otherwise. The judgment of the Idaho Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

The Supreme Court of Idaho is bound by the Supreme Court of the United States because the Supreme Court of the United State says so. Note that although the Cert Petition leads off with the Supremacy Clause, the Per Curiam decision wisely doesn’t even mention it. Why? Because the Supreme Clause says nothing about the Supreme Court (as I spent 5 minutes drilling into my students last week). It provides.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

It does not say that the Supreme Court is the final expositor of the supreme law of the land. That is a role the Court has assumed for itself. State and federal Judges are bound to the Constitution, not to the Supreme Court. Those aren’t the same thing.

It is a common mistake to conflate the day. For example Justice Breyer erred last month when he wrote that lower courts are bound by SCOTUS because of the supremacy clause. The author of today’s Per Curiam opinion–I am going to guess the Chief assigned this institutional decision to himself–did not make such a foundational mistake.

And by the way, it wasn’t Marbury v. Madison that established this principle of SCOTUS supremacy. Nor was it Martin v. Hunter’s Lessee, although it can be inferred from that case. It was Cooper v. Aaron that first announced this principle. Note that Cooper v. Aaaron didn’t even cite Martin, for good reason–it didn’t provide the rule of decision.

Update: Howard Wasserman writes that the Court may have been sending a signal to the Supreme Court of Alabama:

Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.

The Washburn Law Journal held a symposium on Professor Hiroshi Motomura’s lecture on immigration law. The title of Hiroshi’s book, Immigration Outside The Law, served as a fitting point for my response, Immigration Inside The Law. The first sentence of the essay explains the general lessons I’ve gleaned over the last year. “To many scholars, paradoxically, practical immigration law has little to do with actual immigration law.”

One of the points I develop, is that however extreme the 2014 OLC Opinion justifying DAPA was, it was moderate in comparison to the views of the Professoriate, who believed the President had the power to also grant deferred actions to the parents of the Dreamers. This was a bridge too far even for the Obama Administration–a point Charlie Savage makes eloquently in his book.

In my essay, I discuss how four law professors in particular urged the Obama Administration even further–this letter was not released to the public, but was leaked to NBC News.

Not cited in the lecture is a November 3, 2014 letter Motomura sent to President Obama, which was also signed by fellow law professors Shoba Sivaprasad Wadhia, Stephen Legomsky, and Michael Olivas.18 Consistent with his prior writings, he explicitly endorsed statutory and constitutional rationales that Congress practically does not matter.

The professors wrote to the President that “there is no legal requirement that the executive branch limit deferred action or any other exercise of prosecutorial discretion to individuals whose dependents are lawfully present in the United States.”19 It makes no difference that, in the words of OLC, Congress had expressed a concern in the INA for “uniting the immediate families of individuals who have permanent legal ties to the United States.”20 Under the professors’ views, it was irrelevant if the individual had immediate family members—let alone dependents—who were citizens of LPRs. This was a bridge too far for the Obama Administration: “[e]xtending deferred action to the parents of DACA recipients would therefore expand family-based immigration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies.”21

The professors explained quite candidly that “any other criteria for deferred action or other exercises of prosecutorial discretion—are policy choices, not legal constraints.”22

However, the Obama Administration openly rebutted this professorial proffer, even over the objection of a law professor who was working within USCIS.

The decision to publish the OLC Opinion, rather than limit it to “oral” advice—as was the case with the 2012 DAPA decision—was critical in rebutting the professor’s positions. In POWER WARS, Charlie Savage reports that White House Counsel Neil “Eggleston argued that showing that [OLC Chief Karl] Thompson had said some steps they had considered would not be lawful would show that they had really thought about it and obeyed legal limits.”29 Lucas Guttentag, who was on leave from Stanford Law School as Senior Counsel to U.S. Citizen and Immigration Services,30 reportedly argued against memorializing this memo, “saying it would preclude the executive branch from having the option of choosing to help [the parents of DACA beneficiaries] in the future.”31 Guttentag, in line with Motomura and others, “believed that [OLC] had drawn the line too narrowly by focusing unduly on whether someone had a child who is an American citizen, to the exclusion of other grounds in the law that an immigrant could use to gain legal status.”32 But the White House rejected this scholarly consensus. As Savage recounts, Eggleston said “[t]his is the high-water mark. There is never going to be anything more after this.”33 By putting the opinion into writing, the Obama Administration was setting in stone limits on the scope of immigration enforcement, based on the laws of Congress, that repudiated the capacious understandings advanced by the professoriate. This approach fits in with the modus operandi of the Obama Presidency with respect to executive power— rather than defining a broad conception of Article II, the Administration’s lawyers determined that a specific exercise of executive power is appropriate under “certain circumstances,” implicitly suggesting that it would not be appropriate in all other circumstances.34

As Charlie Savage has explained, there were a number of things the Obama White House didn’t do, citing legal constraints. Not expanding deferred action to the parents of the Dreamers was a significant decision. (I still think the rest of DAPA is unconstitutional, but that is a different story).

On Friday, I was a guest on the Mike Slater Show on AM 760 KFMB in San Diego to discuss the Supreme Court’s grant in U.S. v. Texas. I was on for the first 30 minutes of the program.