Archive for March, 2012

From J. Harvie Wilkinson, III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance:

Most of us are wired in the belief that, of course, we are right. Judges in particular become vested in their own views with time. No electorate forces us to make adjustments. We are the kings and queens of our realms. All rise as we walk into the courtroom; no one is to interrupt the Honorable Judges as we hold forth in our robes from an elevated perch. This accumulation of tokens of our majesty makes it more difficult to practice restraint and more imperative to have internal checks in place. Especially in constitutional cases, the first question should be not “What do I decide?” but “May I in fact decide?” And in all cases, we must ask: might not the views of others be equal or superior to our own? These are questions that do not arise naturally or produce honest answers frequently. Most of us pose these questions only fitfully and episodically. All of us know we should do so all the time. But the struggle for restraint remains essentially a struggle against nature, and the stakes for self-governance have seldom been so high.


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From Federalist No. 78:

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.

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The Fourth Circuit held today that section 212(h) of the Immigration and Nationality Act “does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility.” Judge Wynn wrote the opinion for the Court in Bracamontes v. Holder, in which Judge Agee joined. Judge Niemeyer concurred in part and dissented in part.

The split between the majority and the dissent focused on whether the statute unambiguously foreclosed the BIA’s interpretation of the relevant statutory provision. Judge Niemeyer’s dissent begins as follows:

While the majority has perhaps set forth a plausible construction of § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), its construction is not the only, or even the most, plausible construction. Indeed, I conclude that the different construction given to § 212(h) by the BIA is not only plausible but is more consistent with the other provisions of the INA. But choosing the best construction is not our task. When a statute yields two plausible constructions, we should defer to the agency, especially when the statute pertains to immigration matters.

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The Supreme Court has had a hard time improving on Chief Justice Marshall’s McCulloch v. Maryland formulation of the doctrinal test for Congress’s power under the Necessary and Proper Clause. At one point in time, the Court even adopted that formulation as its test for the reach of Congress’s power under Section 5 of the Fourteenth Amendment. In City of Boerne v. Flores, however, the Court tried to do better in its Section 5 jurisprudence. That was a mistake. Boerne‘s congruence and proportionality test is a “flabby test” that is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” as Justice Scalia reiterated in a solo concurrence just last week.

Based on this week’s oral arguments on the constitutionality of the “individual mandate,” at least some of the Justices appear willing to formulate a new doctrinal test for what counts as a “Proper” law under the Necessary and Proper Clause. As they were in Boerne, the Justices are on a search for a limiting principle on Congress’s power. In their attempt to not Garciaize the Commerce Clause and the Necessary and Proper Clause, let us hope that they do not Boerne-ize those powers instead.

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During today’s oral arguments about the severability of Section 5000A, neither the Justices nor counsel could come up with a case in which the Court had left standing the rest of a partially unconstitutional statute after “excising” its “heart.”

Justice Scalia pressed Edwin Kneedler, counsel for the federal government, for an example. Kneedler suggested United States v. Booker, but Justice Scalia rejected it as inapt. Mr. Kneedler then stated that “there is no example,” which led Justice Scalia to say: “This is really a case of first impression. I don’t know another case where we have been confronted with this — with this decision. Can you take out the heart of the Act and leave everything else in its place?”

One example that comes to mind, however, is the federal income tax, which the Supreme Court held partially unconstitutional and inseverable in Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895). This was the case later described by Justice Jackson, in The Struggle for Judicial Supremacy, as “a brilliant and smashing victory” for “the opponents of majority rule.” The Court held in Pollock that a tax on income from property was an unconstitutional direct tax. There was no similar constitutional problem with a tax on income from wages and salaries. But the Court held that the income tax was inseverable and therefore entirely unenforceable, not only as to income from property but also as to income from wages and salaries. This was a massive blow to the government. And it is commonly thought that, in Justice Jackson’s words, “the whole Act fell.” But that is incorrect. The income tax was part of a larger Act called the Wilson-Gorman Tariff Act of 1894. In Pollock, the Supreme Court rendered unenforceable sections 27 to 37 of this Act, but not the remainder. It is a judgment call whether the income tax provisions were the “heart” of this Act (just as the relative importance of Section 5000A to the PPACA can be debated as well). But the inclusion of the income tax was important to the overall legislative bargain because it was supposed to raise revenue that would be lost by the lowering of tariff rates. Given the importance of the income tax politically and the high-profile nature of the Supreme Court’s invalidation of it–ultimately leading to the Sixteenth Amendment–perhaps Pollock is the precedent the Court is looking for.

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If you’re interested in the severability of Section 5000A from the rest of the PPACA and would like a refreshingly clear-headed take on severability doctrine generally, check out Sense and Severability, the remarks of Tobias Dorsey at the University of Richmond Law Review’s 2011 Allen Chair Symposium, “Everything but the Merits: Analyzing the Procedural Aspects of the Health Care Litigation.” Dorsey’s prediction from last November  seems even more prescient today than when made:

[I]f we get to severability, I see a two-way split much like the two-way split in Booker, with the Chief Justice and Justice Kennedy joining the three more conservative Justices in holding the mandate unconstitutional, and the Chief Justice and Justice Kennedy joining the four more liberal Justices in taking the Solicitor General‘s point of view.


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Perhaps the Solicitor General will have more luck with a different aspect of Printz tomorrow?

One of the more pointed lines of questioning directed toward the Solicitor General regarding the constitutionality of Section 5000A came from Justice Scalia with respect to “Proper” in “Necessary and Proper”:

JUSTICE SCALIA: Wait. That’s — it’s both  “Necessary and Proper.” What you just said addresses  what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to  be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this
is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that


JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the
States and do not belong to the Federal Government. Do  you acknowledge that that’s a principle?

GENERAL VERRILLI: Of course we do, Your Honor.

JUSTICE SCALIA: Okay. That’s what we are talking about here.

Justice Scalia’s expansive invocation of quasi-Printz suggests a distinction that he perceives between HHS v. Florida and Gonzales v. Raich.

There is another aspect of Printz that the Solicitor General will rely on tomorrow with respect to severability. That is the Court’s’ refusal to adjudicate the severability of provisions that only burdened parties not before the court. After holding unconstitutional a provision requiring CLEOs (or Chief Law Enforcement Officers) to perform background checks on firearms purchasers, there remained a severability question whether firearms dealers remained obligated to forward to the CLEO the requisite background information and to wait five days before consummating the sale. These steps seemed a pointless formality after the invalidation of the CLEOs’ obligation to do background checks. But the Court’s opinion refused to address the issue:

These are important questions, but we have no business answering them in these cases. These provisions burden only firearms dealers and purchasers, and no plaintiff in either of those categories is before us here. We decline to speculate regarding the rights and obligations of parties not before the Court.

Relying on this aspect of Printz, the federal government has argued that the Supreme Court has no authority to decide the severability of provisions, even the guaranteed issue and community rating requirements, that do not burden the parties to the case.

Printz aside, I think the federal government is right about this as a matter of first principles. Unfortunately, severability has long been an area where first principles have been ignored. Perhaps tomorrow’s arguments will provide a chance for the Court to come face to face with the many problems of its severability doctrine, including the frankly legislative determinations it authorizes the judiciary to undertake.

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T-Mobile won yesterday in the Fourth Circuit, while New Cingular Wireless lost last week in the same court. Both cases involved challenges to the denial of applications to erect cell towers in localities. Both appeals resulted in affirmances of the relevant district court decision, supporting the appellate court’s description of these kinds of cases as fact-intensive.

Judge Diaz wrote yesterday’s opinion for the court in T-Mobile Northeast LLC v. Newport News, in which Judge King and Judge Gergel (DSC) joined.

Judge Agee wrote the opinion for the court in New Cingular Wireless, PCS, LLC v. Fairfax County Board of Supervisors, in which Judge Davis and Judge Floyd joined.

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The Fourth Circuit yesterday affirmed the dismissal of contract and tort claims brought by driver Jeremy Mayfield against NASCAR and associates arising out of a positive drug test. Judge Gregory wrote the opinion for the Court in Mayfield v. NASCAR, in which Judge Keenan and Judge Grady (EDVA) joined. The decision upholds the application of a contractual liability waiver and applies Twiqbal to the defamation claim.

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The lead story this evening at TPM bears the headline “John Roberts May Have Tipped His Hand on ‘Obamacare’ Reasoning.” The gist is that the Chief Justice’s dismissal of the challengers’ contention that the insurance requirement and tax penalty in 26 U.S.C. 5000A are inseparable “may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.”

I disagree with this characterization. If anything, the government’s taxing power position looked weaker after today’s arguments than before.

In suggesting that Section 5000A is an integrated whole for purposes of evaluating the applicability of the Anti-Injunction Act, Chief Justice Roberts first described the suit as one to challenge penalties, not taxes, then said that the label makes no difference, and concluded by stating that it makes no sense to separate the punishment from the crime. To the extent such statements suggest a position on the taxing power, it goes against the federal government–particularly the language of punishment and crime. Here’s the interchange:

CHIEF JUSTICE ROBERTS: The whole point -­ the whole point of the suit is to prevent the collection
of penalties.

MR. KATSAS: Of taxes, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, prevent the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense.

MR. KATSAS: It’s entirely separate, and let
me explain to you why.

CHIEF JUSTICE ROBERTS: It’s a command. A mandate is a command. Now, if there is nothing behind the command, it’s sort of, well, what happens if you don’t follow the mandate? And the answer is nothing, it seems very artificial to separate the punishment from the crime.

For balance, the TPM piece quotes challenger-lawyer Randy Barnett, and I think he has it exactly right: “The only thing I think Chief Justice Roberts was expressing resistance to was our argument that the mandate was separate from the penalty for purposes of the [Anti-Injunction Act]. . . . That is only one of the bases on which the AIA does not foreclose consideration on the merits. I don’t think he was signaling anything at all about the constitutionality of the mandate penalty, the subject of tomorrow’s argument. If he was, however, I expect to get a much better sense of that tomorrow so we won’t have to wait long to find out.”

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Various reports on today’s oral arguments about the Anti-Injunction Act attribute a position to Justice Scalia that is the opposite of what he apparently holds with respect to the jurisdictionality of the AIA. These reports take apparently sarcastic comments at face value.

The comments came in an intervention by Justice Scalia apparently aimed at helping the amicus curiae, Robert Long, respond to Justice Sotomayor’s question (following up on Justice Alito’s) about the negative consequences of holding that the AIA is not jurisdictional:

JUSTICE SOTOMAYOR: Assuming we find that this is not jurisdictional, what is the parade of  horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?

One response was that the government could mistakenly forfeit the AIA by failing to raise it. When Justice Sotomayor pressed Long further, Justice Scalia interposed and introduced another argument based on the undesirability of empowering judges to create equitable exceptions that could interfere with tax collection:

JUSTICE SOTOMAYOR: Assumes the lack of  competency of the government, which I don’t, but what other types of cases?

JUSTICE SCALIA: Mr. Long, I don’t think you  are going to come up with any, but I think your response  is you could say that about any jurisdictional rule. If  it’s not jurisdictional, what’s going to happen is you  are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent. So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.

The write-ups of this portion of the argument at Thomson Reuters, SCOTUSBlog, National Law Journal, and Huffington Post report Justice Scalia’s statement as if he were endorsing the view that “there will be no parade of horribles.” Although I did not attend the argument and have not listened to the argument to hear the intonation, I think that is mistaken. It is inconsistent not only with views expressed by Justice Scalia elsewhere (as in the conclusion of his concurrence in Sosa v. Alvarez-Machain), but also with his apparent belief that the AIA is jurisdictional (as revealed in his question about a principle that ousters of jurisdiction are narrowly construed).

Most tellingly to one familiar with Justice Scalia’s writings, however, is that the comment came in response to a question about a “parade of horribles.” A couple decades ago, Justice Scalia referred to the misuse of this phrase as one of the “canards of contemporary legal analysis.” See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case Western L. Rev.581, 590-93 (1989-90). The reasons that he gave then illuminate the comments he made today about the jurisdictionality of the AIA:

The reason I say that the “parade of horribles” put-down appeals to the Emersonian school of jurisprudence is this: Just as one cannot conceive of a parade unless one believes in organization, so also one cannot take seriously a jurisprudential parade of horribles unless one believes in the demands of logic and consistency as the determinants of future judicial decisions. The judge without that belief – the judge who does not operate on the assumption that he must decide the case before him on the basis of a general principle that he is willing to apply consistently in future ‘cases – can simply dismiss the predictions of future mischief by quoting Justice Holmes’s reply to Chief Justice Marshall’s venerable dictum that “the power to tax [is] the power to destroy.” “The power to tax is not the power to destroy,” Holmes said, “while this Court sits.” The notion that predicted evils cannot occur “while this -‘Court sits” is comforting, of course, but hardly a response to how they can be avoided without repudiating the legal principle adopted in the case at hand. I would have thought it a better response to Marshall’s dictum that the power to tax the activities of the federal government cannot constitute the power to destroy the federal government so long as the tax is generally applicable and nondiscriminatory – because it is implausible that the state would destroy its own citizens as well. Instead, however, Holmes simply said “not … while this Court sits,” and excused Marshall’s ignorance with the observation that “[i]n those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree.” (Here Holmes flatters himself and his legal realist disciples. Perhaps it was not as generally recognized, but I am sure Marshall was quite aware of it.) “The question of interference with Government,” Holmes concluded, “is one of reasonableness and degree and it seems to me that the interference in this case is too remote.”

Of course if one is to adopt as the controlling legal principle “reasonableness and degree,” one need fear no parade of horribles. As soon as the result seems “unreasonable,” or goes “too far,” the remaining marchers will be sent home. But what guidance does such a principle provide for the lower courts, and what check is it against the personal preferences of future judges? “Be reasonable and do not go too far” is hardly more informative than “Do justice,” or “Do good and avoid evil.” Once one departs from such platitudes and insists upon an analytical principle that is not value laden, then, and only then, does the parade of horribles become a meaningful threat.

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I’ve finally been able to review the transcript of today’s oral arguments in the healthcare litigation. The federal government’s position on the Anti-Injunction Act appeared to make it through today’s oral arguments with fewer dings than the positions of the amicus curiae and the challengers. The government’s position appears attractive to the Justices because adopting it would enable them to reach the merits without throwing too big of a wrench into the general machinery of tax enforcement. The broader theories advanced by the challengers would pose such a threat, while adopting the amicus curiae’s position would not allow the Supreme Court to reach the merits at this time. The federal government’s position is legally convoluted, but its narrow scope apparently covers many legal blemishes.

The amount of time spent on the jurisdictionality of the provision surprised me. An effect of the apparent division on the Court with respect to that issue may be to render more attractive the federal government’s position that the Act is inapplicable. As the Solicitor General’s response to questioning by Justice Ginsburg revealed, the Court need not decide whether the Anti-Injunction Act is jurisdictional if the Court concludes that it is simply inapplicable to this challenge to Section 5000A.

In part for reasons explored in this post from last October, I was surprised that Chief Justice Roberts characterized Helvering v. Davis as the “biggest hurdle” facing the amicus curiae’s claim that the AIA is jurisdictional. As Justice Breyer and Justice Scalia pointed out in their questioning, Davis was a suit in which the remedy sought was ordering the corporation not to pay the tax. It was not a suit restraining the assessment or collection of a tax even though the United States intervened as a defendant.

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A Fourth Circuit panel consisting of Judge Niemeyer, Judge King, and Judge Agee heard oral arguments yesterday in two First Amendment challenges brought by pregnancy resource centers in Maryland. I attended both arguments. From the content and tenor of the proceedings, it seems very likely that the court will affirm the two district courts whose rulings were at issue, both of which held that ordinances compelling speech by pregnancy resource centers violate the First Amendment.


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Some say that the challengers to the individual mandate can win even if they lose on the merits. That is, they can win the broader battle for public opinion even if they lose in the Supreme Court. I think that’s right. This kind of win is a common goal of public impact litigation. But the strategy thus far pursued by the mandate challengers differs from the strategy one often sees in such litigation. A typical strategy focuses on real people and the effect of the challenged rule on them. Not so the individual mandate challenges.

In a recent post at The Volokh Conspiracy (“Public Opinion, the Individual Mandate, and  the Supreme Court”), Ilya Somin compares the potential backlash that could be generated by a Supreme Court decision upholding the constitutionality of the mandate with the backlash generated by the Kelo case. The Supreme Court held in Kelo that government can use its power of eminent domain to take the property of an individual for use in a private party’s redevelopment efforts. The idea was that this would serve a “public use” by generating more tax revenue. One of the strategies of the challengers in Kelo was to highlight the plight of a particular individual, Susette Kelo, showing how the government was going to affect her life by taking her house away.

Contrast this strategy with that pursued by the individual mandate challengers. They have focused on the deprivation of liberty inherent in being ordered by the federal government to enter into, and stay in, an economic relationship with another private party. But this focus has not involved real people. Perhaps understandably, the mandate challengers have thus far chosen not to focus on the plight of particular individuals. Some may have read news stories about Kaj Ahlburg, one of the original plaintiffs, and others may have read stories about Mary Brown, another one of the original plaintiffs. But nobody knows much about Dana Grimes and David Klemencic, who were added to the case at the Supreme Court level. The reality is that, after two years of litigation, we don’t know much about any of the individual mandate challengers.

It could be that the more we find out about their personal circumstances, the less plausible their challenge to the mandate becomes. What has been learned thus far has benefitted the federal government. Most notably, a story in the Wall Street Journal highlighted the personal circumstances of Mary Brown, who filed for bankruptcy and included unpaid medical bills in her list of outstanding debts. Seizing on this fact, the federal government pointed out in a brief filed with the Supreme Court that the likelihood of an individual having significant unpaid medical bills is much lower if that person has private insurance to cover their significant medical expenditures. This story shows how  learning about a particular individual challenger’s circumstances could allow one to construct a story about how it is plausible for a given individual to run up medical bills that would exceed his or her ability to pay. Such a story would give credence to the government’s argument that mandatory insurance is a reasonable means of preventing or combatting the cost shifting that takes place when unpaid medical care is delivered.

By reflecting on this litigation strategy of minimizing the individual circumstances of particular people and highlighting the deprivation of liberty at a very abstract level, one can begin to see the wisdom of the approach to adjudication adopted by Judge Sutton in the Sixth Circuit. Judge Sutton argued that the appropriate way to analyze the constitutionality of the requirement to obtain and maintain a particular level of insurance coverage would be to look at the application of that requirement to particular people, rather than to assess it in the abstract, or as a “facial” matter. Judge Sutton further argued that it would be inappropriate to invalidate the mandate across the board, especially in a pre-enforcement setting, when its application to various classes of people would undoubtedly fall within Congress’s powers as construed by the Supreme Court.

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I had the privilege this morning to participate as a panelist in the Politico Pro Health Care Breakfast Briefing. My fellow panelists were Walter Dellinger, Tom Goldstein, Neal Katyal, and Nina Totenberg. I enjoyed the morning and think we covered a lot of ground.

Nobody (including me) predicted victory for the challengers. Walter Dellinger predicted (and Neal Katyal agreed) that the Court would uphold the mandate’s constitutionality, that it would not be 5-4, and that Chief Justice Roberts would probably write for the Court. Tom Goldstein also predicted victory for the federal government, but thought that we might see a per curiam opinion. Nina Totenberg predicted that Justice Scalia would vote to hold the minimum coverage provision unconstitutional, but declined to speculate about the outcome overall. I declined to speculate about particular Justices, but expressed the view that the Court would vote to uphold the mandate’s constitutionality if it reached the merits of that issue. As many others have observed, the provision’s challengers go in with what looks to be a 4-1 deficit. The likelihood that they will run the table on the remaining four Justices seems low, especially in light of how the litigation played out in the lower courts. That said, “the experts” were wrong about Lopez and Morrison. Time will tell.

The main issue on which I may have viewed things differently from the other panelists was on the Anti-Injunction Act. While I believe it is more likely than not that the Court will reach the merits of the individual mandate, I think that the textual arguments for the Anti-Injunction Act’s applicability are strong and that the possibility of a majority voting to find the AIA applicable is greater than 20%. My recollection is that at least some of the others (particularly Nina Totenberg and Neal Katyal) thought that the Court would be much more likely to favor prompt review out of a belief that the country needs an answer from the Supreme Court now.

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The Fourth Circuit’s unanimous opinion today in United States v. Castillo-Pena presents an interesting fact pattern for appreciating the line between questions of fact and questions of law.

The case was a prosecution under 18 U.S.C. § 911 for falsely claiming U.S. citizenship. An immigration agent who interviewed Castillo-Pena described his claim to have a valid Puerto Rican birth certificate. The agent further testified, “I told him, well, if you would like to make a statement that you are a U.S. citizen, we can do that, and he said yes, I would like to.” The agent then took out a piece of paper, and Castillo-Pena apparently changed his mind, stating that he didn’t want to sign anything without a lawyer present. When prosecuted for falsely claiming U.S. citizenship, Castillo-Pena asserted that “when [the immigration agent] asked him whether he would like to make a statement that he was a U.S. citizens, and he responded ‘yes, I would like to,’ this did not constitute a false representation of U.S. citizenship, but rather a statement of future intent to make a claim of citizenship.” The Fourth Circuit concluded that “whether Castillo-Pena’s answer constituted a present claim of citizenship . . . was a dispute appropriately evaluated by the jury as trier of fact.”

Judge Wilkinson wrote the opinion for the court, in which Judge Duncan and Judge Agee joined.

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Over at SCOTUSBlog, Lyle Denniston has a superb preview of the Anti-Injunction Act issues at stake in day one of the health care arguments.

I have previously argued that there is a straightforward argument for the Anti-Injunction Act’s application to bar the current challenges, and that Congress’s failure to enact an exception should count against the challengers’ and the government’s policy arguments for prompt review. The basic point is that Congress does not think it important enough to act to ensure prompt review, and the Supreme Court should not bend the Anti-Injunction Act to reach the same result.

I have also previously argued (in a piece that NYU L. Rev. published in 2010 but that I posted to SSRN only recently) that severability doctrine is in disarray and that a modified version of the pre-severability-doctrine understanding of partial unconstitutionality can help get constitutional adjudication back into shape.

There is a connection in the litigation between the judicial role that follows from failure to apply the Anti-Injunction Act and the difficulties that will confront the Supreme Court if it needs to decide the severability of the minimum essential coverage provision.

When it applies, the Anti-Injunction Act channels judicial involvement to a post-enforcement setting. The constitutional question at issue in a post-enforcement setting is whether the statutory provision giving rise to an obligation to pay an exaction–26 U.S.C. 5000A–is constitutional. If an individual succeeds in demonstrating that the provision is unconstitutional, it does not follow that any other provision of the PPACA is no longer enforceable. The Court need not ask, much less answer, the severability question in such a setting.

The pre-enforcement setting is much different, in a way that underwrites an avowedly legislative conception of judicial review. The challengers ask the Supreme Court to excise the minimum essential coverage provision and then decide whether the rest of the PPACA should continue to be enforceable. The pre-enforcement setting obscures the judicial nature of the “judicial review” sought, risking collapse into constitutional review of the statute more generally, rather than a properly judicial act of deciding what law governs in the course of resolving a case or controversy. In fact, the challengers have gone so far as to assert that they are challenging the requirement to have insurance entirely apart from the penalty attendant upon failure to comply with the requirement. That sounds an awful lot like constitutional court abstract review rather than federal court concrete review.

By underwriting a departure from the concrete review of the anticipated application of a particular statutory provision to a particular person, the pre-enforcement setting of HHS v. Florida transforms the expected judicial function into one of a thumbs-up or thumbs-down on the legislation considered in itself. If the Supreme Court can consider the legislation in itself, the limitation of its constitutional ruling to the minimum essential coverage provision itself looks somewhat arbitrary. Might as well contemplate enjoining the application of other provisions like guaranteed issue and community rating, right?

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The opening of Justice Scalia’s opinion concurring in the judgment today in Coleman v. Court of Appeals of Maryland:

The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the  varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in  turn is because that flabby test is “a standing invitation to  judicial arbitrariness and policy-driven decisionmaking,”  Tennessee v. Lane, 541 U. S. 509, 557–558 (2004) (SCALIA,  J., dissenting). Moreover, in the process of applying (or  seeming to apply) the test, we must scour the legislative record in search of evidence that supports the congressional action. See ante, at 6–11; post, at 16–20 (opinion  of GINSBURG, J.). This grading of Congress’s homework  is a task we are ill suited to perform and ill advised to undertake.


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The Fourth Circuit decided today in Ignacio v. United States that the Federal Tort Claims Act waives the immunity of the United States for intentional torts committed by law enforcement officials, regardless of whether the official was engaged in a law enforcement activity when he committed the intentional tort. Judge Floyd wrote the opinion for the court, which was joined in by Judge Shedd and Judge Diaz. Judge Diaz also authored a separate concurrent. According to the opinions, the decision creates a circuit split with the Third and Ninth Circuits. See Orsay v. United States, 289 F.3d 1125, 1134 (9th Cir. 2002); Pooler v.  United States, 787 F.2d 868, 871-72 (3d Cir. 1986).

The case arises out of a dispute on December 2, 2009 between a Pentagon police officer (Lane) and a contract security officer (Ignacio) who were assigned together to the same security checkpoint for Pentagon employees. The two disagreed over the caliber of an M-16 round. “Initially, their disagreement led only to a bet. It escalated, however, on December 15, when they were again stationed at a security checkpoint for Pentagon employees. Lane allegedly told Ignacio that he would ‘hurt him after work’ and then pretended to punch him in the face.” This led to workplace discipline and, eventually, a lawsuit. The United States sought summary judgment on the basis of an exception from the FTCA’s waiver of sovereign immunity.

The FTCA (i) waives the sovereign immunity of the United States for certain torts committed by federal employees, (ii) excepts certain intentional torts from this waiver, and (iii) then excepts from this exception intentional torts committed by investigative or law enforcement officers. See 28 U.S.C. 2680(h). This exception from an exception from the waiver of sovereign immunity is known as the “law enforcement proviso.” Other circuits interpreting this proviso have limited its application to torts committed by investigative or law enforcement officers in the course of investigative or law enforcement efforts. Applying that interpretation, the district court (Judge O’Grady, EDVA) granted summary judgment to the United States.

In reversing and remanding, the Fourth Circuit faulted the other circuits for “relent[ing] to secondary modes of interpretation without first establishing the ambiguity of the statutory text.”  According to Judge Floyd, the text of the proviso is clear and contains no limitation of the sort read in by the other circuits.

In his separate concurrence, Judge Diaz acknowledges that the interpretation adopted by the court “leads to the anomalous situation in which the federal government could be liable for the actions of a law enforcement officer but would be immune from liability for the same conduct committed by another federal employee under the same circumstances.” This result “can be criticized as inconsistent and unreasonable,” but it is not  “so absurd as to allow us to alter the meaning–as other courts have–of an otherwise unambiguous statute.”

In light of the result and apparent circuit split, the United States may be interested in seeking additional review. Given the panel composition and outcome, the likelihood of obtaining a different ruling en banc is very low. If the Department of Justice determines that the issue is sufficiently important to seek certiorari, this case very well could end up before the Supreme Court. There are unresolved factual disputes about whether the Pentagon police officer was acting within the scope of his employment under Virginia law (a necessary predicate to liability under the FTCA), which could counsel against a grant of certiorari. Because sovereign immunity protects not simply against liability but also against having to answer in court at all, however, that consideration may carry less weight in this case.

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The Fourth Circuit’s lengthy opinion yesterday in New Cingular Wireless v. Finley addresses several arcane but seemingly important aspects of telecommunications law. There are some interesting appellate practice aspects of the opinion as well.

Prior to oral argument, the panel solicited supplemental briefing from the parties on necessary party and ripeness issues. The briefs must have been pretty good, for the court thought the issues not even close enough to address:

Prior to oral argument, we requested supplemental briefing addressing whether AT&T North Carolina, the third-party transit provider, is a necessary or indispens[a]ble party, as well as whether this matter is ripe for decision “given that the transit providers apparently have yet to incur any transit charges.” Because we find these issues to be not as close as we once thought they might be given the benefit of supplemental briefing and argument, we elect not to address them here.

Given the firms that were on the briefing, the cost of these supplemental briefs was certainly in the five figures. A disposition like this points up a difficulty for a panel that believes there to be important issues that have been unaddressed by the briefing. If the panel waits until oral argument, questions about unaddressed issues may not receive satisfactory answers because the lawyers are not prepared to address them. In that circumstance, post-argument supplemental briefs would be necessary and some time is lost from argument of the other issues. But if the lawyers can satisfactorily address the questions at oral argument about unbriefed issues, then it is possible to avoid the cost of preparing briefs. To avoid that cost, however, the panel and the lawyers risk losing time for argument about the issues that have been briefed.

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If the title of this post means something to you, then you might find of interest the Fourth Circuit’s opinion today in New Cingular Wireless PCS, LLC v. Finley. Judge Davis wrote the opinion for the Court, which was joined in by Judge Agee and Judge Keenan.

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Howard Bashman and Doug Berman have noted yesterday’s 7-7 denial by the Fourth Circuit of en banc review in an ACCA case–United States v. Foster, previously covered here. (My posting has been light, as I have been at what our pilot from RVA called the House of the Mouse.) Apart from ACCA, the opinions and votes regarding en banc rehearing are of interest for what they reveal of the dynamics on the Fourth Circuit:


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Cardinal Dolan, describing the Bishops’ reaction to some of the events surrounding the contraceptives mandate:

We got our Irish up when leaders in government seemed to be assigning an authoritative voice to Catholic groups that are not the bishops. If you want an authoritative voice, go to the bishops.

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A split panel of the Fourth Circuit today affirmed the conviction of William White, the white supremacist “Commander” of the American National Socialist Workers’ Party, for threatening to injure or intimidate in violation of federal law. Judge Niemeyer wrote the opinion for the court in United States v. White. Judge Duncan joined in Judge Niemeyer’s opinion for the court and also authored a separate concurrence. Judge Floyd dissented.

The principal issue in the appeal is the appropriate mens rea for a “true threat” not entitled to First Amendment protection. White urged the Fourth Circuit to follow the Ninth Circuit’s decision in United States v. Cassel, 408 F.3d 622 (9th Cir. 2005), by adopting a specific-intent-to-threaten requirement. The Fourth Circuit held that prior circuit precedent foreclosed that approach, and the Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003), was not a superseding contrary decision that required reexamination of circuit precedent.

The opinions feature extensive First Amendment analysis and include citations not only Supreme Court and Circuit Court of Appeals decisions, but also a student law review note, an article by Eugene Volokh, and an article by Frederick Schauer, among other authorities.

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