Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Justice Scalia and “Judicial Maximalism.”

January 19th, 2011

If it isn’t judicial minimalism, it must be judicial maximalism! In NASA v. Nelson, Justice Scalia attacked the majority for faux-judicial restraint, and charged them with activism.

Scalia disagrees with this faux-restraint, arguing that “by substituting for one real constitutional question(whether there exists a constitutional right to informa-tional privacy) a different constitutional question (weather NASA background checks would contravene a right to informational privacy if such a right existed), the Court gets to pontificate upon a matter that is none ofitsbusiness: the appropriate balance between security and privacy.” Scalia finds that this is “judicial maximalism.”

A quick search of the ALLFEDS database reveals zero hits. This seems to be the first instance of the word “maximalism” in a judicial opinion. Well done Justice Scalia.

Update: Commenter P.D. alerts me that a search for “maximalis!” yields 8 results. The only opinion that uses maximalism in the same sense that Scalia does is Emily’s List v. Federal Election Com’n, a notable campaign finance case. Judge Kavanaugh had this to say about McConnell v. FEC:

Trying to extrapolate from that case to this one is risky and reason enough to avoid the constitutional bog. Suffice it to say that the Supreme Court majority, the dissenters, and the commentators all have read McConnell as amaximalist opinion.

ABA Journal Article on 2nd Amendment: Despite 2nd Amendment Cases, Firearms Codes Are Moving Targets

December 1st, 2010

Take a look at this lengthy piece in the ABA Journal about gun control laws post-Heller/McDonald, titled Despite 2nd Amendment Cases, Firearms Codes Are Moving Targets. In short, this article argues that notwithstanding Heller and McDonald, virtually all gun control laws are being upheld by the lower courts. Here is the gist of the article:

Proponents hailed Heller and McDonald as setbacks for gun control advocates. They predicted a shift in gun policy throughout the country. But so far it hasn’t happened that way. While there have been challenges throughout the country to local, state and federal gun laws, few have been successful. In fact, critics of the decisions say the cases have failed to provide a concrete framework to help lower courts determine the constitutionality of challenged gun control laws.

At least 260 challenges to state and federal gun laws have been filed since Heller was decided, according to Jonathan E. Lowy, director of the legal action project at the Washington, D.C.-based Brady Center to Prevent Gun Violence. “There have been challenges to virtually every gun control [law],” says Adam Winkler, a constitutional law professor at UCLA. “The one thing that unites most of these cases is that the challenged gun control law is upheld.”

This article echoes what I dubbed the “Epic Failure of Heller and McDonald.”

A few points worth focusing on in this piece, specifically about the weight of the Heller dicta.

Judges, too, have wondered whether the Heller statement should be treated as law or downgraded to obiter dicta. “There is some dispute over whether the language from Heller limiting the scope of the Second Amendment is dicta,” said Judge Anthony J. Scirica of the 3rd U.S. Circuit Court of Appeals at Philadelphia. In July the court upheld the federal law that punishes removal of a gun’s serial number.

Scirica said in United States v. Marzzarella, “Heller did not purport to fully define all the contours of the Second Amendment, … and accordingly, much of the scope of the right remains unsettled.”

In light of the Supreme Court’s failure to provide any guidance, the lower courts–in the words of this article–have been forced to “improvise.” My good friend, UCLA Law Prof Adam Winkler summed it up best:

“Some courts have applied strict scrutiny, some have applied intermediate scrutiny, and many have just avoided the question altogether,” says Winkler. “There has been wide disagreement on the proper standard or tests the courts should apply.”

Nelson Lund–under whom I studied and learned quite a bit about the Second Amendment–counters that it is quite normal for the Supreme Court to let the lower courts percolate, and we should not be concerned:

But Lund advises not to expect any new guidance from the court anytime soon. “The Supreme Court’s practice ordinarily after major decisions like this is to allow the issues to percolate in the lower courts,” he says. “I don’t know of any reason to expect the court to depart from that practice.”

I’m not so quite optimistic.

The article cites and quotes a bit from Duke Law Prof Joseph Blocher who wrote a very interesting article I read some time ago, titled Categoricalism and Balancing in First and Second Amendment Analysis.

In criticizing Heller, Blocher says Scalia used a categorical or formula-driven approach rather than the balancing test that was formerly used. In a 2009 New York University Law Review article, “Categoricalism and Balancing in First and Second Amendment Analysis,” Blocher adds that Scalia failed to identify underlying values to help lower courts understand how to apply the new approach when facing challenges to new laws.

“It’s a huge change in our understanding of the amendment, but not necessarily a huge change in what kinds of gun control laws are constitutional,” says Duke University assistant law professor Joseph Blocher.

“There’s a lot to be fleshed out. The court in Heller almost hits the reset button on the Second Amendment. Now, we need to figure out again what’s OK and what’s not OK.”

Chamber of Commerce v. Whiting: What term will the Court use?

October 3rd, 2010

Last term Justice Sotomayor’s opinion in Mohawk Industries v. Carpenter was notable, noted Adam Liptak, because it “marked the first use of the term ‘undocumented immigrant,'” rather than “illegal immigrant,” which “has appeared in a dozen decisions.”

The Court may get another chance this term to address this issue, in Chamber of Commerce v. Whiting, which uses the term “unauthorized aliens” in the Question Presented:

Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. § 1324a(h)(2).

The Arizona statute in question provides, in part:

An employer shall not intentionally employ an unauthorized alien or knowingly employ an unauthorized alien.

The Federal Immigration Reform and Control Act provides, in part:

In general it is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien

I am curious what term the Justices will use during oral arguments, and what term they will use in the ultimate opinion.

Future Article: Commandeering the State Courts: How Can Exclusive Federal Jurisdiction Statutes Divest State Courts of Subject Matter Jurisdiction?

January 26th, 2010

Previously, I blogged about a very interesting question I’ve been grappling with all day.

How does Congress have the power to enact a statute granting the federal courts exclusive jurisdiction, and thereby divesting the state courts of concurrent jurisdiction.

To put it succinctly, what power authorizes Congress to create exclusive jurisdiction statutes.

Hart & Wechsler lists exclusive jurisdiction statutes a few 28 U.S.C. 1337 (antitrust), 28 U.S.C. 1338 (patent and copyright), and 15 U.S.C. 78aa (securities cases). I’m sure there are more.

On this point in Federalist 82, Hamilton wrote:

“But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth.”

Hamilton seems to clearly think that Congress can create exclusive jurisdiction of acts that “grow out of” enumerated powers, and this would eliminate concurrent jurisdiction. Based on my reading of the Federalist, it seems Congress has the power to designate certain causes of action exclusive if an enumerated power permits Congress to legislate on that item, and this matter was not previously within the general jurisdiction of state courts.

If anyone knows any caselaw to this effect, I am interested.

But what happens if a state court decides to entertain a case based on a federal statute authorizing exclusive jurisdiction.

Example:  A sues B for a violation of federal antitrust law in state court. For whatever reason, B doesn’t remove. The  state court doesn’t dismiss the case for lack of jurisdiction. The case is appealed to the state supreme court, and never dismissed for lack of subject matter jurisdiction. The Supreme Court grants cert.

Asides from Hamilton’s arguments, what precedent would say that a state court cannot hear a federal exclusive question? Why cant a state court decide to also hear it? How can Congress divest the state court of this subject matter jurisdiction?

The likely support is the supremacy clause. State judges are forced to swear an oath to the Constitution, which includes the supremacy clause. These statutes granting exclusive jurisdiction would be considered the Supreme Law of the land, and state judges would be forced to abide by it, thereby pruning these issues from a state court’s subject matter jurisdiction. In this case, the Supremacy Clause would be the opposite of the 10th amendment in the commandeering cases. I never though of the supremacy clause in the context of limiting a state’s subject matter jurisdiction, but that makes enough sense.

But this still assumes that a statute divesting state courts of subject matter jurisdiction would be constitutional? If a statute is unconstitutional, it cannot be considered the Supreme law of the land, and thus state judges would not be required to follow it. Sorry Regis, but the supremacy clause is not the final answer.

After conversations with Natalie, Adam, and commenter Steve Rappaport, beyond the Supremacy Clause, I have a few possible thoughts on the Constitutional basis of this power:

  1. The patent/copyright statute is perhaps the strongest case, as Article I, Section 8 gives congress the power to provide for protection of patents. But, that does not mean the federal courts should have exclusive jurisdiction. I think that grant merely gives Congress the power to create statutes regulating IP law. But, perhaps it is necessary and proper for congress to divest concurrent jurisdiction in the state courts to achieve this enumerated power. I don’t buy this argument. While Congress can create postal roads through Art I. Sec. 8,  I don’t see how they can ban Lysander Spooner and others from creating their own postal routes. So I get how Congress has the power to give federal courts that jurisdiction. But, where does Congress have the power to divest state courts of this jurisdiction?
  2. I also considered the commandeering line of cases, which held that under the 10th Amendment, the federal government cannot commandeer, or force state officials to do something. Under this principle, are state judges considered in the same vein as state executive officials? Would constraining subject matter jurisdiction be equivalent to forcing state officials to conduct background checks for firearm purchases?
  3. Commerce Clause. Certainly, under a post 1936 expansive interpretation of commerce, Congress make laws regulating (just about) anything. This would cover antitrust, securities, and nearly all other acts Congress could pass. But I still don’t see how this power gives Congress the power to eliminate concurrent jurisdiction.

I will hopefully develop this idea further.

From a practical perspective, I’m not sure what tactical advantages a litigant would obtain by pursuing an exclusive federal jurisdiction case in state court. But that doesn’t matter for purposes of my fecund legal imagination.

Update:  A few additional thoughts to consider.

Last term, SCOTUS decided Haywood v. Drown.

The case called upon the Court to determine whether the New York Court of Appeals correctly held that New York Correction Law § 24 —which, for federal § 1983 suits against corrections officials, divests New York state courts of general jurisdiction of jurisdiction to hear the claim and transfers the claim to the State’s Court of Claims in an action against New York itself— does not violate the Supremacy Clause of the Constitution. In a narrow five-four split, the Court agreed with the petitioners, reversed the New York Court of Appeals, and held that § 24, as applied to § 1983 claims, violates the Supremacy Clause.Justice Stevens, writing for the Court, explained that the Supremacy Clause creates a “presumption of concurrency” that can only be defeated when (1) Congress ousts state courts of jurisdiction and, relying upon Howlett v. Rose, (2) when a “state court refused jurisdiction because of a neutral state rule regarding the administration of the courts.” Describing the latter situation, Stevens emphasized that “although States retain substantial leeway to establish the contours of their judicial systems, they lack the authority to nullify a federal right or cause of action they believe inconsistent with their local policies.” It was principally on this basis that § 24 violated the Supremacy Clause: it reflected the State’s judgment that these types of suits are by and large frivolous and vexatious. This determination, however runs contrary to Congress’s determination—reflected in its enactment of § 1983—that all persons who violate federal rights under the color of law be held liable for damages.

This somewhat bears on this issue. Justice Thomas’ dissent is also instructive:

In a lengthy dissent, Justice Thomas, writing largely for himself, emphasizes a key theme: nothing in the Constitution requires state courts to hear federal claims. Instead, States have “unfettered authority to determine whether their local courts may entertain a federal cause of action”; “[o]nce a State exercises its sovereign prerogative to deprive its courts of subject-matter-jurisdiction over a federal cause of action, it is the end of the matter as far as the Constitution is concerned.” Justice Thomas’s argument relies on the key premise, on which the majority oscillates, that Correction Law § 24 is not an immunity provision at all, but is instead solely a jurisdictional provision.

In fn. 8, Justice Thomas hits on a related question:

8Because 42 U. S. C. §1983 does not pre-empt NYCLA §24, there is no need to reach the more difficult question of whether Congress has the delegated authority under the Constitution to require state courtsto entertain a federal cause of action. Compare Printz v. United States, 521 U. S. 898, 907 (1997) (suggesting that Congress’ authority in thisregard was “perhaps implicit in one of the provisions of the Constitution [Article III, §1], and was explicit in another [Article VI, cl. 2]”); Prakash, Field Office Federalism, 79 Va. L. Rev. 1957, 2032 (1993) (“Asa matter of original understanding, the Founding Generation understood that state courts could be commandeered to enforce federal law”),with Prigg v. Pennsylvania, 16 Pet. 539, 615 (1842) (concluding thatstate courts could not “be compelled to enforce” the 1793 Fugitive Slave Act); Collins 45 (concluding as an original matter that “states did nothave to accept unwanted federal civil and criminal judicial business,and that Congress could not compel them to do so”).

Elsewhere CT writes:

Indeed, the majority’s novel approach breaks the promise that the States still enjoy “‘great latitude . . . to establish the structure and jurisdiction of their own courts.’” Ante, at 10 (quoting Howlett, 496 U. S., at 372). It cannot be that New York has forsaken the right to withdraw aparticular class of claims from its courts’ purview simplybecause it has created courts of general jurisdiction thatwould otherwise have the power to hear suits for damages against correction officers. The Supremacy Clause doesnot fossilize the jurisdiction of state courts in their originalform. Under this Court’s precedent, States remain free toalter the structure of their judicial system even if thatmeans certain federal causes of action will no longer be heard in state court, so long as States do so on nondiscriminatory terms. See Printz, 521 U. S., at 906, n. 1. (explaining that “the States obviously regulate the ‘ordinary jurisdiction’ of their courts”); Johnson v. Fankell, 520 U. S. 911, 922, n. 13 (1997) (“We have made it quite clear that it is a matter for each State to decide how to structure its judicial system”). Today’s decision thus represents a dramatic and unwarranted expansion of this Court’s precedent.

In, Minneapolis & St. Louis R. Co. v. Bombolis, 241 US 211 (1916), a case Stevens cites in Haywood at *6.

“Moreover the proposition is in conflict with an essential principle upon which our dual constitutional system of government rests, that is, that lawful rights of the citizen, whether arising from a legitimate exercise of state or national power, unless excepted by express constitutional limitation or by valid legislation to that effect, are concurrently subject to be enforced in the courts of the State or nation when such rights come within the general scope of the jurisdiction conferred upon such courts by the authority, State or nation, creating them.”

From Printz v. US:

The dissent is wrong in suggesting, post, at 13, n. 9, that the Second Employers’ Liability Cases, 223 U.S. 1 (1912), eliminate the possibility that the duties imposed on state courts and their clerks in connection with naturalization proceedings were contingent on the State’s voluntary assumption of the task of adjudicating citizenship applications. The Second Employers’ Liability Cases stand for the proposition that a state court must entertain a claim arising under federal law “when its ordinary jurisdiction as prescribed by local law is appropriate to the occasion and is invoked in conformity with those laws.” Id., at 56-57. This does not necessarily conflict with Holmgren and Jones, as the States obviously regulate the “ordinary jurisdiction” of their courts.

Another interesting precedent is the Telephone Consumer Protection Act of 1991.  TCPA, in which Congress created, via federal law, a cause of action that would appear, by the statute’s plain language to be enforceable ONLY in state courts. The caselaw on this subject is a total mishmash. One precedent a friend pointed me towards is  Bonime v. Avaya 547 F.3d 497  C.A.2 (N.Y.),2008.

And on the necessary and proper argumetn wtih respect to the courts (in this case federal), see Jinks v. Richland County:

We agree with petitioner and amicus United States, however, that §1367(d) is necessary and proper for carrying into execution Congress’s power “[t]o constitute Tribunals inferior to the supreme Court,” U.S. Const., Art. I, §8, cl. 9, and to assure that those tribunals may fairly and efficiently exercise “[t]he judicial Power of the United States,” Art. III, §1. As to “necessity”: The federal courts can assuredly exist and function in the absence of §1367(d), but we long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be “ ‘absolutely necessary’ ” to the exercise of an enumerated power. See McCulloch v. Maryland, 4 Wheat. 316, 414—415 (1819). Rather, it suffices that §1367(d) is “conducive to the due administration of justice” in federal court,2 and is “plainly adapted” to that end, id., at 417, 421. Section 1367(d) is conducive to the administration of justice because it provides an alternative to the unsatisfactory options that federal judges faced when they decided whether to retain jurisdiction over supplemental state-law claims that might be time barred in state court. In the pre-§1367(d) world, they had three basic choices: First, they could condition dismissal of the state-law claim on the defendant’s waiver of any statute-of-limitations defense in state court.

Lots of thoughts for me to sort through. More to come.

From Yellow Freight System v. Donnelly, the Court held that the federal courts do not have exclusive jurisdiction over Title VII claims:

Under our “system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.” Tafflin, 493 U.S., at 458 ; see Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477 -478 (1981); Claflin v. Houseman, 93 U.S. 130, 136 -137 (1876). To give federal courts exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their presumptively concurrent jurisdiction. Tafflin, 493 U.S., at 459 -460.