Greetings!Well, this week is the Superbowl of Constitutional Law. Or more like New Year's Day for College Football (before the BCS, that is), since there are/will be several important contests decided. Judging by the media I've done today -- NBC, CBS, KABC, NPR (twice), Politico, Bloomberg, Hugh Hewitt Show, etc. -- I gather the constitutional law fan base is growing! Feel free to help it grow further by forwarding this e-mail to anyone you think might be interested. Best to use the "Forward e-mail" link at the very bottom of the message.
First, the orders regarding petitions for writ of certiorari -- the fancy term for whether the Supreme Court will accept a case for review.
The Court declined to take the Mount Soledad War Memorial Cross case, despite our very impassioned request to do so! But as Justice Alito pointed out (scroll all the way down to the bottom of the link), that is not necessarily the end of the road for supporters of keeping a Cross as part of the war memorial. Congress probably can (and likely will) be able to transfer ownership to a private party to avoid the Establishment Clause "violation" found by the Ninth Circuit. So more legal and political wrangling still to come, and ultimately preservation of the Cross in all likelihood. But the Court missed a huge opportunity here to clean up some of its utterly byzantine Establishment Clause jurisprudence and get us back on the right path. Alas, that will now have to wait for another day.
The Court did summarily reverse a decision of the Montana Supreme Court that basically thumbed its nose at the Supreme Court and its decision in Citizens United, which had held just two years ago that corporations and unions could not be barred engaging in political speech via independent expenditures that advocated for/against candidates or ballot measures. This one was not a surprise -- the Court takes pretty seriously that "Supreme" adjective at the front of its name, and the fact that "of the United States" trumps "of Montana" every day of the week, when interpreting the meaning of the federal Constitution.
And it granted review in about a dozen other cases, including several technical statutory cases dealing with the authority of the Environmental Protection Agency. So at least the Justices will have some cases to hear next October and November when they return from their summer recess.
Now for the merits rulings.
The biggie, of course, is Arizona v. United States. Here's an advance look at my commentary on the case, which will be published by Bloomberg News later this evening:
Court Roadmap for Policing Illegal Immigration
June 26 (Bloomberg) -- The Supreme Court handed down a mixed ruling on Arizona's immigration law, upholding by a 5-to-3 majority the lower court's decision barring enforcement of three provisions of the law, but unanimously reversing the Ninth Circuit's decision halting enforcement of the law's most controversial provision.
That section directs Arizona law-enforcement officers to investigate a person's immigration status whenever, during a lawful stop, they have reasonable suspicion that the individual is in the U.S. unlawfully. The provision, Section 2B, specifically prevents a person's race or ethnic background from being considered to determine this reasonable suspicion.
As Justice Samuel Alito noted in his concurring opinion, "The United States' argument that 2B is pre-empted, not by any federal statute or regulation, but simply by the Executive's current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects."
To be sure, the majority opinion, written by Justice Anthony Kennedy, raised some red flags indicating that Section 2B might be enforced in unconstitutional ways and therefore lead to new constitutional challenges. But the opinion serves as a roadmap, both for Arizona and for other states waiting in the wings with immigration-enforcement statutes of their own. It will enable them to exercise their police powers in ways that help protect the lives and property of lawful residents against an onslaught of illegal immigration and deliberate under-enforcement of existing laws by the federal government. That is very good news for the states.
Less good, but not devastating, is the court's decision on three other sections of the Arizona law, known as SB 1070. States can't impose parallel criminal sanctions for failure to carry the immigration papers required by federal law. They can't impose criminal sanctions on employees who seek work that is illegal for them to seek. And they can't make warrantless arrests based on a probable cause that a person has committed an offense subjecting him or her to removal under federal immigration law.
These tools would have bolstered the states' efforts and should have been upheld, based on a proper understanding of state sovereignty and federal pre-emption doctrine. Nevertheless, Arizona's success in defending Section 2B and its success in the lower courts in defending all the other provisions of the law leave it with ample authority to get a handle on the collateral consequences of illegal immigration into the state. It is a state crime, for example, to stop to hire day laborers (many of whom will be illegal immigrants), if doing so impedes traffic. It is a state crime to knowingly employ illegal immigrants. It is a state crime to transport or harbor illegal immigrants. Law enforcement can impound cars used in the transportation of illegal immigrants.
Most significantly, Arizona citizens have a cause of action against any state or local official who fails to cooperate in the enforcement of federal immigration law. The lower courts didn't hold the "anti-sanctuary city" provisions of SB 1070 to be unconstitutional, and those provisions remain on the books and enforceable, unaffected by the Supreme Court's ruling.
So where do I think Justice Kennedy's majority opinion went astray? In striking down the three provisions of the Arizona law that it did, it bucked a recent trend of the court with respect to its pre-emption doctrine. There is no question that, in exercising its powers over naturalization and immigration, Congress can expressly pre-empt various state laws that would conflict with the federal law. But there was no express pre-emption provision in federal law that prohibited Arizona's efforts.
Justice Kennedy thus had to resort to various implied pre-emption doctrines, about which the court has grown increasingly suspicious. Field pre-emption, for example, has in the past recognized that when Congress so comprehensively occupies an entire field of the law, we can infer that it intended to displace any state authority over the subject. And "policy" pre-emption yields the view that states can't act if, in the court's judgment, they are undermining unspoken policy goals of the congressional statutory plan.
Both doctrines require the justices to engage in the highly speculative enterprise of what Congress might have intended by its silence, and, as I said, the court has grown increasingly suspicious of the very legitimacy of that enterprise.
Not so with Justice Kennedy's opinion, which embraces both doctrines. Congress's decision not to impose federal criminal sanctions was viewed as a deliberate decision to bar states from imposing state criminal sanctions. But, as the dissenting justices pointed out, it is an equally plausible inference that Congress simply wished to leave the matter of whether to impose state criminal sanctions to the states.
Normally, any such ambiguity would be interpreted to the benefit of the states, because in other areas of the law, the Supreme Court has been pretty adamant that the displacement of state sovereign authority can only be done with the clear and unambiguous determination of Congress. In other words, there is normally a presumption against pre-emption.
That presumption will no longer apply as vigorously in the immigration context in areas where the federal government has extensively regulated. That is unfortunate, but not debilitating, because the states retain a good number of tools that they can use to deal with the consequences of illegal immigration within their borders.
By the way, if you want to see my earlier commentary on the case, predicting that Section 2 would be upheld but that the provisions making it a state law crime for illegal immigrants to seek employment (federal law targets only the employer) were on shaky ground, it is available here. And you can read our brief in the case, filed on behalf of several members of Congress, here. Finally, many thanks to all of you who weighed in on the NPR poll taken during my appearance this morning on Airtalk with Larry Mantle. Before my request to our faithful subscribers was sent, the position that the Court should have upheld all of Arizona's law was losing, 26% to 52%, to the view that the whole law should have been struck down. After you all weighed in, we jumped into a commanding lead, 71% to 21%. Here are the "Before" and "After" graphs.
Well done, everyone!
Juvenile Life Without Parole Cases
The other big case handed down today was actually two cases, Miller v. Alabama and Jackson v. Hobbs. Both involved 14-year-olds convicted of capital murder and sentenced to mandatory life without parole, in accord with the laws of Alabama and Arkansas, respectively. In a 5-4 opinion by Justice Kagan (with Justice Kennedy joining the 4 more liberal members of the bench), the Court held that the "mandatory" aspect of the sentence prevented consideration of the defendant's age and other circumstances that might make a life without parole sentence unconstitutionally disproportionate, in violation of the 8th Amendment's cruel and unusual punishment prohibition. Chief Justice Roberts and Justices Thomas and Alito all filed pretty strong dissents, and Justice Scalia joined all three! Essentially, the dissenters contend (rightly, in my view) that a sentence authorized and imposed by most states hardly qualifies as "unusual", as the 8th Amendment requires. How severe a sentence to impose on juvenile murders is, they argued, ultimately a policy judgement for the legislatures, not for the Court. But alas, a "majority" of justices apparently trumps a majority of state legislatures on that policy question. This will no doubt be hailed as further evidence that the Court is evolving toward a more just, more decent society. But as the Chief pointed out in his dissent, "decency is not the same as leniency. A decent society protects the innocent from violence. A mature society may determine that this requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency. As judges we have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty." And what of those victims? Miller and his accomplice, for example, followed a man back to his trailer after the man had purchased drugs from Miller's mother. The two teenage boys smoked marijuana and drank with the man until the man passed out. Miller then stole his wallet and removed $300, but the man woke up when Miller was trying to put the empty wallet back in the man's pocket. The two "boys" then proceeded to beat the man to near death with a baseball bat, then left him for dead. They later returned to burn down the trailer, burning the man to death. Methinks the Chief had the better argument as to where "decency" in this case lies.
Final Decisions on Thursday
That leaves United States v. Alvarez, the "stolen valor" case, for the final day of the term, now set for Thursday. Oh, and that little case involving a constitutional challenge to the 2700+-page law passed back in 2010, the Patient Protection and Affordable Care Act (aka Obamacare). I suspect we'll have some commentary on that one on Thursday! Stay tuned.
John C. Eastman
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