Relevant and even prescient commentary on news, politics and the economy.

AWESOME opinion today by Roberts in Bond v. United States!

I’ve written extensively here at AB about a two-time Supreme Court case called Bond v. United States, first three years ago when the case was heard the first time, then in the last few months as the case was heard there again.  My most recent post on it, from May 15, was called “The Supreme Court’s opinion in Bond v. U.S. will be about separation of powers.  But about separation of WHICH powers?”  I updated that post on May 17 to include an exchange between reader Mike Hansberry and me in the Comments thread to the post.

In that exchange of comments, I outlined exactly what I hoped the Court would do in the case–and how, and why.  I haven’t yet read the opinion and the concurrences in the judgment* and won’t have a chance to until later today, but SCOTUSblog’s Amy Howe and Tom Goldstein summarized it briefly on the live blog of the Court’s actions this morning, and it appears that the opinion, written by Roberts and joined by Kennedy and the four Dem appointees, is exactly what I said in that post and exchange with Hansberry that I hoped–but did not expect; no one did, best as I could tell–that the Court would do and say.  Here’s their summary from the live blog:

  • Here’s Lyle again. The third and final opinion is Bond v. US. The decision holds that Section 229 does not reach Bond’s simple assault. It is by the Chief Justice.
    by Amy Howe 10:11 AM
    Comment
  • The decision of the Third Circuit is reversed. There are no dissents; there are multiple opinions, however. Scalia has concurred in the judgment, joined by Thomas and in part by Alito. Thomas filed an opinion concurring in the judgment in which Scalia joined and Alito joined in part. Alito filed an opinion concurring in the judgment.
    by Amy Howe 10:12 AM
    Comment
  • The Court seems to avoid a major ruling on the Treaty power by limiting the federal criminal statute under which the defendant was charged.
    by tgoldstein 10:13 AM
    Comment
  • The opinion makes clear that the Court does not interpret the scope of the international weapons treaty at issue. The state laws are sufficient to prosecute an assault like the one in this case. There is no indication in the federal law that Congress intended to abandon its traditional reluctance to define as a federal crime conduct controlled as criminal by the states.
    by Amy Howe 10:13 AM
    Comment
  • The separate opinions by the other conservatives likely argue that the Treaty Power should be limited. But the Chief Justice and Justice Kennedy do not join them.
    by tgoldstein 10:13 AM
    Comment
  • A quote from the Court’s opinion: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard.”
    by Amy Howe 10:14 AM
    Comment
  • Here is the opinion in Bond.
    by kborkoski 10:16 AM

The surprise basis for the ruling–an actual honest consideration of what Congress’s purpose was, and the breadth Congress actually intended, in enacting the statute at issue–is similar to a ruling on May 19, in an opinion by Ginsburg, concerning a procedural statute.  This is a very good, new development for the current Court (although the three dissenters in that case, a Copyright Act case, called Petrella v. Metro-Goldwyn-Mayer, were Roberts, Kennedy and Breyer).

The other big news from the Court this morning–and this is VERY big news–is that the Court agreed to hear two cases filed respectively by the Alabama Democratic Conference and the Alabama Legislative Black Caucus, both which lost in the lower federal courts.  Amy Howe writes:

The questions at issue in the Alabama redistricting cases involve packing black voters into districts to concentrate their voting strength. In 13-1138, there is a subpart in the question that the Court agreed to hear about whether these plaintiffs have standing to bring their claims of racial gerrymandering.

And, a few minutes later:

Here’s Lyle [Denniston, at the Court]. We have one grant (technically noting of probable jurisdiction), in the two Alabama redistricting cases, Alabama Democratic Conference v. Alabama (is limited to question one), Alabama Legislative Black Caucus v. Alabama (question two only).

I probably will write a detailed post on Bond, hopefully tomorrow.  I don’t think I’ll have time today.

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*Corrected to say “concurrences in the judgment” rather than “dissents.”  I was really rushed this morning when I inadvertently misstated  that these were dissents, despite Amy Howe’s clear statement that these were concurrences in the judgment, not dissents–a particularly important distinction in this case, and one that highlights the importance of the grounds the majority did choose versus the grounds that they rejected. 6/2 at 8:42

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Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes. Roberts does, too! (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling. Or something.)

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.'”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, yesterday

Late Tuesday afternoon, after I’d read two or three early reports on the argument at the Supreme Court that morning in the Hobby Lobby and Conestoga Wood cases, I posted a piece here titled:

“My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.”

That post harked back to one I’d posted the day before about what to look for in the upcoming argument.  What to look for, I said? Mainly whether “the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.”  I predicted that it would–that the Court “will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.” I wrote:

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My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.

When [U.S. Solicitor General Donald] Verrilli said the Court has never found a right to exercise religion for corporations, Alito wondered if there was something wrong with the corporate form that it would not be accorded religion freedom rights.  Did Verrilli agree, Alito said, with a lower court’s view that the only reason for a corporation to exist was to “maximize profits?”  Verrilli said no, but Alito had made his point.

Argument recap: One hearing, two dramas, Lyle Denniston , SCOTUSblog, reporting on this morning’s Supreme court argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius

That paragraph was one of two in Denniston’s recap that dismayed me, albeit only momentarily. Unquestionably, a threshold issue in these cases is whether or not the proverbial corporate veil–a shorthand legal term that conveys that the very purpose of the state-created corporate structure is a severance of the rights and liabilities of corporations from those of its shareholders–can be “pierced” in order to allow the shareholders in these two closely-held corporations to confer to the corporation their personal legal right of religious exercise under the First Amendment or under a federal statute called the Religious Freedom Restoration Act, the latter which expressly uses the term “person” to identify its beneficiaries.  I addressed this in detail in this post here yesterday.

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Scalia Changes His Mind … About the Purpose of the Equal Protection Clause.

Wow.  It looks, from SCOTUSblog’s Lyle Denniston’s report on the argument this afternoon in Schuette v. Coalition to Defend Affirmative Action, that I was, um … right in saying yesterday and again earlier today that this case is not, at heart, an affirmative action case.  The case is really about when a voter referendum can amend the state constitution to remove a particular issue from the normal political process.

This issue has a name–or, rather, the legal theory that challenges the constitutionality of such state constitutional amendments does.  It’s called the “political process theory,” which was developed in two old Supreme Court cases concerning voter-referendum amendments to a state’s constitution.  (I should have used the name in my earlier two posts, just so that I could now use it as shorthand in this post, but I didn’t.)

In Schuette, the voter referendum amended the state constitution to remove from the normal political process–lobbying legislators, local government officials university regents–the policy issue of race-conscious affirmative action in public university admissions processes.  So the case is about whether a voter initiative–in this case, one heavily funded by an out-of-state rightwing group–can amend the state constitution to remove access to the normal political process by people with a particular viewpoint on a particular issue.  This is the “political process theory” issue.  And according to Lyle Denniston’s report, it’s the issue on which Justice Kennedy–clearly the swing vote in this case–focused almost all of his very extensive questioning at the argument today.

But here’s something else in Denniston’s report that caught my interest:

[A.C.L.U. lawyer Mark] Rosenbaum’s time in argument was difficult enough, especially in the exchanges with Justices Alito and Scalia, but it turned out to be less challenging than the barrage that confronted the other lawyer opposing ”Proposal 2,” Detroit attorney Shanta Driver (who was a last-minute substitute for another lawyer scheduled to be in the argument).

Driver’s opening comments got her immediately into trouble.  She asked the Court to return the Fourteenth Amendment’s guarantee of legal equality “back to its original purpose,” which was to protect minorities.  Justice Scalia took strong offense to that, saying he thought the aim of the Amendment was to guarantee equality to all people.

The lawyer tried to hold her ground, but Scalia kept testing her thesis.   Had the Supreme Court ever issued an opinion saying that the Amendment was only to protect minorities? he asked. Driver conceded that there was no such case.

Okay.  As I mentioned in my post yesterday about Schuette, Scalia, in the argument last spring on the constitutionality of the Defense of Marriage Act, said the purpose of the equal protection clause was to protect the rights of former slaves and their descendents, and therefore does not grant equal protection of the laws to non-African Americans.  He has made that statement elsewhere, I believe, in speeches or interviews.  And he has said that because the purpose of the clause was to confer rights upon former slaves and their descendents, the clause does not apply to prohibit gender discrimination. The clause’s use of the word “people” to state whom its protections covered, notwithstanding.

But that view of his in the past, I see. At least until the next gay marriage case comes to the court.

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Looks like DOMA will be stricken … if the Court decides the issue at all in this case. [Expanded.and updated.]

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

–Tom Goldstein of SCOTUSblog, on Twitter

And:

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments. At another point, he disagreed with the lawyer’s contention that the law simply creates a single definition for federal purposes. “It’s not really uniformity,” the justice said, because same-sex couples would not have access to federal benefits that traditional couples have.

Justice Kennedy’s point echoed one made by his more liberal colleagues.

Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”

5 Justices Seem Skeptical of Ban on Benefits to Gay Spouses, Adam Liptak and Peter Baker, New York Times

From what Liptak and Baker write, it sounds like Kennedy may vote to strike down DOMA as unconstitutional on equal protection grounds as well as on states-rights grounds, not just on the latter ground.  So it would be a 5-4 decision on that issue, not a 4-4-1 decision in which Kennedy takes no position on the equal protection issue.

That will be important down the road, once the Court does decide to decide the issue of marriage as a constitutional right for same-sex couples, which it looks like they won’t do in the California Prop. 8 case argued yesterday.  

But, for “jurisdictional” reasons, the Court might decide not to decide the constitutional issue in this case.  The Washington Post’s report on today’s argument discusses the procedural issue and what transpired on it during the argument this morning.  A majority could vote to dismiss the case and leave the lower appellate opinion, holding DOMA unconstitutional, intact, if the Obama administration did defend the law in that court; I don’t know whether it did or not.*  I doubt that that is what will happen, though.  I think a majority will say that there is a sufficient “case or controversy” between the plaintiff and the federal government, which enforced DOMA against her even though the administration is not defending the law in court, to permit the federal courts to decide this case. So, despite the House group’s lack of “standing” to be a party in the case, the Court would have jurisdiction to decide the case, as did the lower appellate court.

I explained the “standing” thing here yesterday, in the context the Prop. 8 case.

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UPDATE: Here’s SCOTUSblog’s Lyle Denniston really thorough article reporting on and explaining it all.  Most interesting to me is this:

Justice Kennedy told [attorney Paul] Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.   Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.”   He questioned Congress’s very authority to pass such a broad law.
Wow.  This is not just an equal-protection statement.  This is even more basic.  It is a substantive-due-process-rights statement.  As in: There are constitutional limits to which the government–state or federal–is permitted to interfere in personal and private decisions. That was the ground on which Kennedy and the justices who joined his opinion a decade or so ago held Texas’s criminal anti-sodomy law unconstitutional. 

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*The Obama administration never defended DOMA in the Windsor case, the case argued today. The plaintiff, Edie Windsor, won in the trial-level court, and then in the Second Circuit Court of Appeals.  So if the Supreme Court dismisses the appeal, which was filed by a group of House Republicans, on the ground that that group lacks standing to be a party to the case at any level, that would reinstate the trial-court ruling in Windsor’s favor, but that ruling would have no precedential effect in other cases even within the Second Circuit. But, as I said above, and as Lyle Denniston says, it’s likely that the Court will say that there is an active case and controversy between Windsor and the federal government because the government did enforce DOMA against her until she filed the lawsuit and won in the lower courts.

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Tom Goldstein of SCOTUSblog tweets, during the short break after the first hour of argument in the California Prop 8 case, that …

Breaking: 1st update- #prop8 unlikely to be upheld; either struck down or #scotus won’t decide case. More in 30 mins.
This is the more important of the two gay-marriage cases.  Tomorrow’s argument will be on the constitutionality of the federal Defense of Marriage Act (DOMA), but almost no one (best as I can tell), thinks the Court will uphold the constitutionality of that Act.  The real suspense* is in the Prop 8 case.  So ….

UPDATE: Here’s Tom Goldstein’s post-argument report.

SECOND UPDATE: This one’s from Reuters. It seems to me that the Roberts comment quoted in the article is very significant. In a good way.

THIRD (and final, for at least a few hours) UPDATE: Here’s SCOTUSblog’s Lyle Denniston’s take.  He’s my (and many, many others’) go-to guy on all things Supreme. He seems to think that they’ll simply dismiss the Supreme Court case, saying that the petition grant was “improvidently granted,” leaving the Ninth Circuit opinion intact.

That would leave intact the Ninth Circuit ruling–which was that, because California already had been allowing same-sex marriage before Prop. 8 was approved in 2006, in localities that approved it, the state could not suddenly render those marriages null and void.  Doing so would violate the Fourteenth Amendment’s Due Process clause.  And since some gays already were allowed to be married, and their marriages would continue to be recognized by the state, refusing to allow other gays to marry would violate the Fourteenth Amendment’s Equal Protection clause. That’s the ruling that would remain in effect if the Supreme Court rules that the Prop. 8 petitioners have no legal standing to be a party to the case.  

That now seems more likely to me than the other option that would allow them to avoid deciding on whether same-sex marriage is a constitutional right.  That other option would be to rule that “the petitioners”–the group that earlier asked the Ninth Circuit, and then asked the Supreme Court, to “vacate” the lower-court rulings and uphold the constitutionality of Prop. 8–don’t have “standing” to be a party to the lawsuit, because they would have no injury from a court ruling striking down Prop. 8 that is sufficiently direct and significant to meet the Article III standing requirement.  

If they go the “no standing” route, that would leave intact not the Ninth Circuit ruling based on narrow grounds but instead the lower, trial-court judge’s ruling, which was based on much broader grounds.  The effect would be somewhat, but not entirely the same, whichever of these two options they choose.

As I understand it, if they choose the option that leaves the Ninth Circuit opinion in place, that would mean that localities in California would have the option to allow same-sex marriage but would  not be required to allow it, although all government entities throughout the state would have to recognize any same-sex marriage as legal. If they instead choose the option that vacates the Ninth Circuit opinion and restores the lower, trial-court ruling, by ruling that the petitioners have, and had, no legal standing to appeal from the trial-court ruling either in the Ninth Circuit Court of Appeals or in the Supreme Court, that would mean that, for now, in central California, within the trial-court level federal court district where the case was filed and where the trial-court ruling was issued, Prop. 8 would be invalid and all localities within that court district would be required to allow same-sex marriage.

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*Originally, I used the word “action,” but changed it to “suspense” because, if the Court strikes down DOMA as unconstitutional, that would be big, important action. I really meant “suspense,” because I do think the striking of DOMA is highly likely; not much suspense on that. But tomorrow’s argument will give some hint about whether I’m right.

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The difference between Social Security/Medicare and Medicaid under the Spending Clause, in light of the ACA opinion

While the Court’s upholding the mandate is deservedly taking front stage in the media coverage, the Court’s decision to strike down a part of the Medicaid expansion may ultimately have broader jurisdprudential consequence.  That, at least, will be a subject of debate among lawyers and academics in the days and weeks to come.  This is the first time (as far as I know) that the Court has actually found a Spending Clause condition unconstitutionally coercive.  Whether it establishes principles that make many other programs vulnerable is a question that will require further analysis and debate.  Lyle Dennisten will start that analysis in an post later today or tomorrow morning.

— Kevin Russell, Medicaid holding may have broadimplications, SCOTUSblog

I one of the many updates to my initial post this morning, mentioned this exchange between Lyle Denniston and Tom Goldstein (SCOTUSblog’s publisher:

Lyle: The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Tom: I dissent from Lyle’s view that the Commerce Clause ruling is a major blow to social welfare legislation. I think that piece of the decision will be read pretty narrowly.

 I wrote:

I’m almost always in agreement with Lyle’s analyses (as is, I’m sure, Tom Goldstein, who is the blog’s publisher and also a major Supreme Court litigator; Amy Howe, also a lawyer, is Goldstein’s wife).  But, like Goldstein, I disagree with Lyle on this one.  In order for the Court to interpret this opinion as limiting Congress’s authority to enact social welfare legislation, the Court would have to place in question a slew of current, longstanding social welfare programs.  I don’t think that was Roberts’ intent—really, I don’t—and I don’t think the opinion will be viewed that way.  Unless, of course, Romney wins and appoints a wingnut to replace, say, Ginsburg if her health does not hold out.  

Here’s what I think will happen: 

But first, I need to point out that Medicaid, unlike Social Security and Medicare, are programs structured as partnerships between the respective states and the federal government, each paying some portion of the cost, and that Medicaid has always contained a provision that makes state participation voluntary and that allows states to remove themselves from the program if they want to.  Social Security and Medicare, by contrast, are solely federally-funded and federally-run programs. 

The 26 states that challenged the ACA’s Medicaid provision argued that a provision in the Medicaid section of the ACA allows the federal government to withdraw all federal funds for a state’s entire Medicaid program—that is, the money it already is receiving—if a state opts out of the Medicaid-expansion part of the ACA.  The states argued that this was too coercive and therefore violates principles of state sovereignty.  Seven justices—the four dissenters, Roberts, Breyer and Kagan—agreed with that claim, and so they ruled that, while the federal government can put conditions on its funding of the new expansion, and can withdraw the money for that expansion if a state doesn’t comply with the conditions, the federal government can’twithdraw funding also for the earlier parts of Medicaid that the state already was receiving.
Sooo …. this ruling certainly (in my opinion) appears to have no effect whatsoever on any program funded entirely through, and administered by, the federal government.  And i tappears to have no effect on any social welfare program that is a partnership between states and the federal government as long as there is no threat by the federal government to withdraw funds already being given to the state for something else, in order to get the state to agree to participate in the new partnership, or in the new part of the part of the partnership.

I just don’t see how this restricts in any significant way Congress’s ability to enact social welfare programs.  I think that ruling is really very narrow.

As an aside, I want to mention the four dissents who wanted to strike down the entire ACA tried to at least persuade Roberts that the entire Medicaid-expansion part of the statute simply because that one provision in that part of the Act was ruled unconstitutional—even though, as Roberts points out, the Act includes what’s known as a “severability” provision providing that if any particular section of the Act is ruled unconstitutional, the section should be severed from the remainder of the statute, and the remainder should remain in force.  This let’s-see-if-we-can-get-the-tail-to-wag-the-dog-and-win-on-this-part-at-least tack of the minority was so transparently inappropriate that Roberts, in responding to it in his opinion, seems downright offended by it.  Good for him.  

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As Goes Obamacare, So Goes Romneycare … and State Laws Requiring Auto Insurance?

I’ve written repeatedly now on AB that the challenge to the constitutionality of the ACA’s minimum-coverage provision (a.k.a., the individual-mandate provision) is not really a Commerce Clause challenge but instead a challenge under the Fifth Amendment’s due process clause, under what is known as the “substantive due process” constitutional law doctrine.  The Fifth Amendment’s due process clause limits what the federal government can do vis-à-vis individuals.  A clause in the Fourteenth Amendment is nearly identical, and identical in substance, to the Fifth Amendment’s due process clause, except that it limits what state governments can do vis-à-vis individuals.  

SCOTUSblog’s Lyle Denniston’s early report suggests that I was right.  The outcome of the case, he predicts, will depend on whether Kennedy believes that the Court can uphold the mandate provision without opening the door to unlimited congressional mandating of purchase specific things, not because Congress lacks that power under the Commerce Clause but instead because it violates liberties protected under the Fifth Amendment’s due process clause. Denniston does not mention the Fifth Amendment, but, whether or not the justices themselves did specifically, that is the upshot.

The “substantive due process” doctrine holds that there are certain incursions into personal autonomy and certain impositions on individual liberty beyond which the Constitution allows the government to go.  It is this doctrine by which the Court has stricken down such laws as state laws barring the sale and use of contraceptives, state laws prohibiting abortion under all circumstances (Roe v. Wade),  and state laws criminalizing sodomy.

But based on Denniston’s early report about the nature of Kennedy’s concerns, I don’t see how, absent an utterly artificial Commerce Clause-based ruling, a ruling that the mandate unconstitutionally infringes upon person choice, upon personal liberty, would not also mean that Massachusetts’s “Romneycare” law, and state laws that  require drivers to purchase auto insurance, would be constitutionally permissible. 

Kennedy likes to wax eloquent, as he did last year in an opinion in a case called Bond v. United States, about how divisions of power among various governments—by which he means state governments vs. the federal one—protect individuals from tyranny. (He’s usually less interested in constitutional checks than on balances to state power—especially to state-court power—but that’s another subject.)  In Bond, he said, rightly, in my opinion, that a person indicted under a federal criminal law has legal “standing” (the legal right) to argue that the federal statute unconstitutionally infringed upon an area of criminal law reserved solely for the states to address, because the federal statute impinged (literally, in that case) her personal freedom.  So if the problem with the insurance mandate is that it exceeds Congress’s authority under the Commerce Clause, then a ruling that the ACA, a federal statute, is unconstitutional would not affect state statutes.
But that’s a separate issue from whether the mandate is an unconstitutional violation of personal liberty irrespective of whether or not the Commerce Clause power would allow Congress to enact the law.  And under the Court’s longtime Commerce Clause jurisprudence, Congress does have the authority to legislate the mandate to buy health insurance, given the impact on the healthcare market of the uninsureds’ usage of health care.  A ruling to the contrary would be transparently artificial. Which probably won’t matter to Kennedy.

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This will be cross-posted later today to the Firedoglake blog.

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‘Jurisdiction’

To the general public, all that matters are the headlines, reflecting the bottom line.  The universal consensus among reporters who attended the 90-minute Supreme Court argument yesterday on whether an 1867 law called the Anti-Injunction Act bars the Court from considering challenges to the constitutionality of ACA’s individual-mandate provision was that the justices will decide the constitutionality of the mandate provision despite the AIA.  

But law geeks like me know that what also matters is how they conclude that the court has “jurisdiction”—legal authority—to decide the constitutionality of the mandate provision. That’s because federal judges are incessantly, and often spontaneously, throwing lawsuits out court, claiming that they lack jurisdiction to hear the case—a trend begun in the 1980s and accelerated exponentially, explicitly and by malignant (as opposed to benign) neglect to reverse lower appellate court rulings, by the conservative legal movement to which a majority of the Roberts and Rehnquist courts adhere. 

A key part of the conservative-movement’s federal-courts-have no-jurisdiction-to-hear-any-constitutional-claims-except-the-ones-that-conservatives-want-them-to-hear jurisprudence is that federal-court jurisdiction either exists or it doesn’t, and if it doesn’t it can’t be waived by the parties.  So even if neither party claims a lack of federal jurisdiction, the judge, judges or justices in each case must raise the issue themselves if they believe jurisdiction may be lacking. Under the Constitution, Congress decides what types of cases the federal courts have jurisdiction to hear, by enacting “jurisdictional” statutes that either grant or remove federal-court jurisdiction in specific categories of cases, subject only to requirements or prohibitions in other parts of the Constitution.  (Actually, the Supreme Court has created several legal “doctrines” out of whole cloth that remove federal-court jurisdiction in various cases, but I’ll leave that for another day.)

The AIA  provides that “no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person.”  The ACA’s individual-mandate provision does not become effective until 2014 and the penalty for failure to obtain the minimum insurance will not be assed until April 2015, through income tax filings.  Early on in the ACA litigation, the Obama administration claimed that the ACA penalty was a tax and that the AIA therefore removes federal-court jurisdiction to hear the challenge to its constitutionality until 2015, but it soon retracted that claim and now argues that the penalty is, well, just a penalty, not a tax, and that therefore the AIA doesn’t remove federal-court jurisdiction to decide the constitutionality of the mandate and penalty for non-compliance with the mandate until 2015; the Court can decide the issue now.  

Three of the four lower federal appellate court panels that have issued rulings in ACA litigation, including the one in the case that the Court is hearing this week that ruled the mandate unconstitutional, agreed. The Supreme Court, in deciding to hear the AIA claim anyway, appointed a private lawyer to argue that the AIA does apply here, because the Justice Department joined the ACA’s challengers in saying that it doesn’t.

Everyone, certainly including me, assumed that the outcome of this “jurisdictional” issue—of whether or not the AIA barred the Court’s consideration of the challenges until 2015—would depend upon whether the Court thinks the penalty is a penalty or instead a tax.  And that may prove accurate.  But, stunningly (in my opinion), the Court, at the urging of Roberts, might instead say that it doesn’t matter whether the penalty is actually a tax, because the government has waived the jurisdictional claim. “It’s a case quite similar to this in which the constitutionality of the Social Security Act was at issue, and the government waived its right to insist upon the application of this [Anti-Injunction] Act,” Roberts said, referring to Helvering v. Davis, the 1937 case in which the Court upheld the Social Security Act.  “So,” Roberts asked, “are you asking us to overrule the Davis case?” 

Hmmm.  I thought they already had done that.

SCOTUSblog’s incomparable Lyle Denniston provides invaluablereportage and analysis of the different options that emerged from yesterday’s argument on how the Court will remove the AIA as a bar to deciding the constitutionality of the mandate provision. 

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This will be cross-posted later today to the Firedoglake blog.

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UPDATE On Kiobel v. Royal Dutch Petroleum. And How It Could Impact ‘Court-Stripping’ Jurisprudence.*

Last Wednesday, the day after oral argument at the Supreme Court in a case called Kiobel v. Royal Dutch Petroleum, both Linda and I posted about the case.  Linda’s post I believe was written shortly before the argument although posted afterward.  Mine was written after the argument and discussed news reports about what occurred.  The title of Linda’s post was “The Supreme Court’s corporate monsters–if money buys them “free speech” rights, can it help them avoid giving others human rights?” The title of mine was “International Law, As Established At Nuremberg*: The ACTUAL Grounds On Which the Supreme Court Will Rule For Shell Oil’s Parent Company In Kiobel v. Royal Dutch Petroleum.”  (I added the asterisk and the related footnote later that night, to make clear that the part of the title that preceded the colon was intended as a sarcastic reference to a statement made by the oil company’s counsel during oral argument, a statement I discussed in the post.)

To refresh your memory—it was barely more than a week ago, but in the intervening time, we’ve all been somewhat distracted by more important things, such as whether slightly-increased private healthcare premiums caused by the inclusion of contraceptives coverage really is public welfare paid by “taxpayers” and therefore women who receive the benefit are prostitutes—my post began by explaining the supposed issue in the case.  I wrote:
In her post earlier today on Kiobel v. Royal Dutch Petroleum, the sort-of-CitizensUnited-like case argued yesterday in the Supreme Court, Linda discusses the issue that was supposed to be the one that the Court would decide, because, well, that was the issue that the lower appellate court, the Second Circuit Court of Appeals, decided.  The issue is whether under the Alien Tort Statute, which was enacted in 1789 and allows “aliens” to file civil lawsuits in the U.S. for violations of the “law of nations,” allows aliens to sue corporations, or instead only individuals, for violations of human rights as defined under clearly-established international law.

The Second Circuit court said it doesn’t, and, as the excerpt from that opinion that Linda posts shows, the appellate panel used as its justification the judges’ own moral judgment that since individuals (i.e., the corporation’s top executives) make the corporate decisions to leverage the corporation’s resources to accomplish these heinous acts, only those individuals, and not the ill-used corporation itself, should be suable.  And that therefore, only those individuals, and not the ill-used corporation itself, will be suable in U. S. federal courts under the ATS.

This notwithstanding that the statute itself says nothing at all about who can be sued under it; it states only what acts the actor can be sued for.  And notwithstanding that the Second Circuit panel’s stated grounds for the ruling, if not necessarily the result (the dismissal of the lawsuit), conflict with the Supreme Court’s ruling two years ago in Citizens United v. FEC.  Which parlayed the First Amendment free-speech right of individuals into a right of corporate CEOs to leverage those rights of its individual human shareholders into a First Amendment speech right of the CEO to use corporate funds to advance his or her political preferences.

I noted that Anthony Kennedy, author of the Citizens United opinion, reportedly indicated that he agreed with the oil company’s statement in its brief that international law does not recognize corporate liability.  Case closed, as far as he was concerned.  But several of the justices disagreed—most emphatically Stephen Breyer and Elena Kagan, but Alito seemed to, too. 

But I went on to say that I expected from what transpired that the Court wouldn’t decide that issue at all and would instead decide the case on entirely separate grounds asserted by Samuel Alito during the argument but not addressed earlier in the case.  Alito questioned whether the statute applies as against anyone, corporation or individual, when, as in that case, the acts alleged occurred outside the United States, by someone or some entity not based in the United States, against people who have no connection to the United States.  I predicted that a majority led by Alito would say it does not.

It now looks like I was right.

On Monday afternoon, the Court issued a surprise order in the case, asking that the parties brief the following issue:
Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

The briefing won’t be completed until June 29, and so the Court will decide the case next term, not during the term that ends by July 1. 

The defendant in Kiobel did not claim that the statute provides federal-court jurisdiction (the legal authority to hear the case) only for cases alleging violations of international law that occurred within the United States—probably because the words of the statute suggest otherwise, and because in a 2004 case filed under that statute, in which the acts at issue occurred outside the United States , the Supreme Court gave no indication that it does.  But as SCOTUSblog’s Lyle Denniston noted, the defendant in another current ATS case does.  That defendant lost in the appellate court, and filed a petition asking the Supreme Court to consider the issue in that case.  The justices considered the petition last Friday and took no action on that petition.  Instead, they inserted the issue into Kiobel, in an order described variously by commenters as surprising, unusual, and stunning

The injection of this issue into Kiobel enables the justices to avoid ruling on whether the statute, enacted the same year that the Constitution was ratified, applies only to allow suits against individuals and not against violations corporations under whose auspices the human rights violations occurred. 

The one-sentence statute says: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  The law of nations does not allow corporations to have atrocities committed under their auspices, whatever yoga-like linguistics contortions Justice Kennedy’s mind or law clerks performed that caused him to suggest otherwise at the argument.

But neither do the statute’s words suggest that it does not apply to (as the Court put it in its briefing order) violations of the law of nations occurring within the territory of a sovereign other than the United States.  If the statute adopts international law only to identify what torts—what actions—can be the subject of a suit in the country, and not to identify who (or what) can be sued, then it shouldn’t matter that (according to Kennedy at oral argument, quoting from a brief supporting the oil company) this country appears to be the only one in the world to “exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”  But it will, although possibly circuitously.
“What business does a case like this have in the courts of the United States?” Alito asked.  None, a majority of the Court is likely to say, and not because the defendant is a corporation but instead because the atrocities alleged occurred in Nigeria rather than in the United States.  But since the statute itself doesn’t say that, the majority of justices will have to either interpret it as implying that it does or say that the statute must be interpreted in that matter in order to avoid striking it down as unconstitutional, because (they’ll say) Congress lacks the authority to give the federal courts jurisdiction to hear cases about wrongs committed outside the territorial United States. 

Which would be a novel ruling, but one that, as Denniston points out, Alito seemed to suggest by asking: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?” 

Article III is the section of the Constitution that created the judicial branch.  It’s also the part of the Constitution that says that Congress, which Article I created, has the authority to grant the federal courts jurisdiction (legal authority) to hear certain types of cases.*  In enacting the ATS, Congress granted the federal district courts the authority to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

But there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it. 

There are other parts of the Constitution, such as Article II, which created the executive branch, that may limit Congress’s authority to create federal-court jurisdiction.  This is what Alito appears to have in mind.*

And conversely, there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it. 

Or at least it would seem so.  The political right is incessantly trying to remove federal-court jurisdiction to hear cases that they claim violate states’ rights to violate individuals’ rights—a tactic called “court-stripping.”  And one that, with the aggressive assistance of the current Supreme Court, has been phenomenally successful in effectively suspending (read: eliminating) the right of federal-court habeas corpus review by persons convicted of crimes in state court. “Phenomenally” is no overstatement, either.  It’s truly a phenomenon, and one that needs its own post.

Court-stripping and the reverse—I’ll call it court-mandating—are issues that the Supreme Court normally avoids like the plague, best as I can tell.  But if nothing else good comes from Kiobel—and it certainly looks like nothing else will—a Supreme Court acknowledgment that there are constitutional limits to Congress’s authority to determine federal-court jurisdiction might be the consolation prize.  But only if that limitation is viewed as a two-way street.

*This post originally referred to Article I (establishing Congress) as Article II, and referred to Article II (establishing the executive branch) as Article I.  Ooops.

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