New Orleans Times-Picayune op-ed: "Mary Landrieu's residency isn't up to courts, it's up to Congress"

I wrote an op-ed that will appear in Wednesday's New Orleans Times-Picayune and is available online. It begins:

News reports recently surfaced revealing that U.S. Sen. Mary Landrieu is registered to vote at her parents' home in New Orleans, which she also lists as her primary residence. But she also has a home in the District of Columbia and spends a substantial amount of time there. Political opponents question whether she is an inhabitant of Louisiana and have urged elected officials to investigate her qualifications. If she isn't an inhabitant, after all, she fails to meet the Constitution's qualifications for members of the United States Senate.

But the dispute about whether she is an inhabitant is not a question for state election officials or judges to decide ahead of an election. It's a question for the voters on Election Day, and for Congress after the election.

Virgin Islands Supreme Court blocks "unqualified" candidate from ballot

Alicia "Chucky" Hansen didn't file income tax returns for a few elections. She was convicted of a few misdemeanors. She ran for legislative office in the Virgin Islands, won, and was seated. She was re-elected.

But when she tried to run again, the chair of the board of elections filed a petition to block her from obtaining ballot access. He claimed that her tax convictions were "crimes involving moral turpitude," which rendered her ineligible to run for office.

The Supreme Court of the Virgin Islands agreed and blocked Ms. Hansen from obtaining ballot access in Bryan v. Fawkes. (PDF)

The Revised Organic Act at issue provides, "The legislature shall be the sole judge of the elections and qualifications of its members." In one way, this is even more robust a power than that given the United States Congress; here, it uses the word "sole," a word the Court in Nixon v. United States (1993) found to be significant. There, in the context of impeachment, the House had the sole responsibility of impeachment, and the Senate had the sole responsibility of removal; the Court found that these textual commitments to other branches precluded judicial review.

Not so here. The Supreme Court of the Virgin Islands felt comfortable not only allowing the executive election official to adjudicate the qualifications of candidates for ballot access, but also in allowing itself to review that decision-making process, too.

I think this is flawed, and the better argument lies with the one I make in my forthcoming Indiana Law Journal piece, Scrutinizing Federal Electoral Qualifications.

I'll briefly mention some of the more curious arguments:

The Court notes that the 30th (and present) Legislature had no ability to adjudicate the qualifications of candidates for the 31st (next year's) Legislature. That isn't much of an answer at all: it might be the case that no one adjudicates the qualifications of candidates for the 31st Legislature until the voters choose them and they seek to be seated.

The Court explains that the Revised Organic Act gives election officials the power "of directing the administration" of elections, which means that "the power to determine whether a candidate meets the minimum qualifications for office so as to appear on a general election ballot is clearly not exclusive to the legislature." I suppose one could conflate the former power with the latter, but that's far from "clearly" established.

The Court notes that the legislature's power to evaluate the qualifications and returns of its own members is different from the power to review the qualifications of candidates. First, it would pretty much eviscerate the power of the legislature, because, presumably, all candidates on the ballot would be qualified and there wouldn't be anything left to review. Second, and relatedly, it gives the judiciary and the executive branches a power to review these candidates in advance, effectively usurping that power from the legislature.

It tracks a couple of state supreme court decisions that were deeply worried that the ballot might include some unqualified candidates--15 year olds or non-citizens or what not--and leave it to the voters and the legislature to review qualifications.

To insert a bit of snark: heaven forbid that a body other than the judiciary have the last word in interpreting what the law says!

There is, of course, recourse in these cases--simply not judicial recourse.

The Supreme Court in Roudebush v. Hartke (1972) affirmed that such a cramped understanding of the legislature's power cannot hold. There, a dispute arose during a recount in a Senate election. The parties disputed whether the state's election process could even include a recount, and the Court concluded it could. It emphasized, however, that it could only do so as long as it did not thwart Congress's power to review the qualifications, elections, and returns of its members. If Congress had the ability to independently review the recount process after it was complete, then its power was not thwarted.

I argue in my forthcoming article that excluding would-be candidates on the basis of qualifications effectively thwarts the legislature's power. After all, there's nothing left to review, because the candidate cannot present herself for the legislature for review--she cannot win the election because she cannot get on the ballot.

Even more dangerous to the legislature's power are the facts of this case. Twice already, Ms. Hansen has presented herself before the voters of the Virgin Islands and to the legislature. Twice, she has been elected and seated. A "crime involving moral turpitude" has a meaning, and perhaps even a meaning that the judiciary would like to reach in other cases similar to this one. (Ultimately, it did so.) But how the legislature interprets that crime is another matter. And as it has concluded that her misdemeanor tax convictions do not disqualify her, then its judgment should be respected.

There is much more to discuss throughout the opinion, but this post is long-winded enough. I highlight these facts to note the judiciary's approval of executive entanglement in the evaluation of the qualifications of prospective members of the legislature--executive interpretations that run contrary to the legislature's own conclusions. And that is significant, indeed.

Fictional Attorney of the Month: Lionel Hutz

Phil Hartman voiced the recurring role of Springfield attorney Lionel Hutz in The Simpsons. A simple man, Hutz represented all the stereotypes of a small-town personal injury attorney--quick to talk and slow to understand. He's literally an ambulance chaser.

In one episode, for instance, he negotiates the terms of the trial with the devil, securing bathroom breaks every half-hour while the devil gets to select the members of the jury. In another, he encourages the Simpson family that despite the medical crisis facing their son, "You can ching, ching, ching, cash in on this tragedy!" When meeting with his client, he confesses, "The state bar forbids me from promising you a big cash settlement. But just between you and me, I promise you a big cash settlement. My fee is fifty percent."

The role was retired upon Mr. Hartman's death in 1998. But the amusing dry delivery and series of humorous courtroom-related scenes qualifies Hutz as the fictional attorney of the month.


The contraceptive mandate and the risk of hyperbole in Supreme Court dissents

From Wheaton College v. Burwell, No. 13A1284, July 3, 2014 (Sotomayor, J., dissenting) (PDF):

If the Government cannot require organizations to attest to their views by way of a simple self-certification form and notify their third-party administrators of their claimed exemption, how can it ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work? The self-certification form is the least intrusive way for the Government to administer the accommodation.

From the Centers for Medicare and Medicaid Services, "Women’s Preventive Services Coverage and Non-Profit Religious Organizations," August 22, 2014:

In August 2014, in light of the Supreme Court’s recent interim order in a case involving Wheaton College, interim final regulations were published to establish another option for an eligible organization to avail itself of the accommodation. Under the interim final regulations, an eligible organization may notify the Department of Health and Human Services (HHS) in writing of its religious objection to contraception coverage. HHS will then notify the insurer for an insured health plan, or the Department of Labor will notify the TPA for a self-insured plan, that the organization objects to providing contraception coverage and that the insurer or TPA is responsible for providing enrollees in the health plan separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. Regardless of whether the eligible organization self-certifies in accordance with the July 2013 final rules, or provides notice to HHS in accordance with the August 2014 IFR, the obligations of insurers and/or TPAs regarding providing or arranging separate payments for contraceptive services are the same, as discussed in this Fact Sheet. The interim final rule solicits comments but is effective on date of publication in the Federal Register.

Fictional Attorney of the Month: John Shepherd

Mr. Shepherd is a "civil, cautious lawyer," Jane Austen explains in her novel Persuasion, and he serves Sir Walter Elliot, a widower who finds himself deeply in debt. Mr. Shepherd is shrewd as a counselor: he defers to Mr. Elliot's neighbor, Lady Russell, to advise him as to the best means of reducing his debt. And Mr. Shepherd carefully prods Sir Elliot to lease his estate to a naval officer, highlighting the attractive qualities of such men and emphasizing the pitfalls of alternatives. It is an excellent display of the art of persuading a recalcitrant client.

Mr. Shepherd's motives, however, are not wholly pure. He foists his once-married daughter, Mrs. Clay, upon the Elliots in the hope that she would gain the confidence Sir Elliot's eldest daughter and perhaps even wed Sir Elliot himself. As Sir Elliot has only daughters, it would jeopardize their estate if he remarried and had a son. And it would ensure that Mr. Shepherd's interests, not Sir Elliot's, were paramount in these considerations. Mr. Shepherd calls into question whether he is truly serving his client's interests, or merely serving his own.

He may not be a paragon of virtue, but his sly role as an attorney is notable, underdiscussed, and good enough for the Fictional Attorney of the Month.

BREAKING: Over four dissents, 10th Circuit denies en banc hearing in Guarantee Clause case

This post has been updated.

The Tenth Circuit has denied the petition for rehearing en banc in Kerr v. Hickenlooper, the case that found the Guarantee Clause justiciable. The PDF is here. Four judges dissented in three opinions. Rick Hasen calls it "potentially a huge case."

I wrote about this case in JURIST last March, and I've blogged about the case, the Tenth Circuit's decision, and the en banc petition. It inspired Elizabeth Price Foley and David Rivkin to write that it may invigorate legal challenges to the scope of President Obama's executive power, carried out at the moment by Speaker of the House John Boehner. Michael Ramsay had two posts earlier about the issue, too.

Briefly, Colorado voters in 1992 passed a Taxpayer Bill of Rights that requires all tax increases be approved by a popular vote of the people. Some legislators sued, claiming that the law deprived them of their legislative power. The district court, affirmed by the Tenth Circuit, found that the parties had standing to sue and that the Guarantee Clause claim was justiciable, and that the case should go to trial.

Judges Hartz, Tymkovich, Gorsuch and Holmes all voted for rehearing--all four of George W. Bush's nominees to the Tenth Circuit. They penned three dissents.

Judge Hartz emphasized that the Supreme Court's decision in Pacific States Telephone & Telegraph Company v. Oregon was essentially indistinguishable, and that existing Court precedent finds the Guarantee Clause nonjusticiable. He writes, "But I am at a loss to find a principled basis on which to hold that the challenge in Pacific States was a political question while the challenge here is not." He explained that some, like Professor Lawrence Tribe, have disputed the validity of that case, but it is precedent that binds the Tenth Circuit.

Judge Tymkovich, joined by Judge Holmes, emphasized that the doctrine of legislative standing and the nonjusticiability of the Guarantee Clause were important issues that the panel got wrong. He explains, "The net result of the panel's decision ratifying standing is that just about any policy provision codified in the state constitution would be subject to legislative standing and attack on the theory of vote dilution"--including marijuana laws, school funding, casino gambling proceeds, and so on.

Judge Gorsuch had a different, fundamental problem:

Where are the judicially manageable standards for deciding this case? The burden of showing such standards exist usually presents a plaintiff with little trouble. Most cases in federal court — whether arising under congressional legislation or the common law or sounding in equity — come with ample principles and precedents for us to apply in a reasoned way, even if those principles and precedents don’t always dictate a single right answer. But in our case the plaintiffs make a rather novel claim: they contend that Colorado’s government is not a republican one — and so violates the Guarantee Clause — because tax increases proposed by the legislature must also be approved by the public. Where are the legal principles for deciding a claim like that?

Where are the legal principles for deciding a claim like that? The plaintiffs don’t say. They don’t suggest, for example, that the Clause requires all decisions about legislation to be made by elected representatives rather than the public. Neither do they contend that the Clause is offended only when all legislative decisions are made by direct democracy. If the Constitution could be said to contain one or the other of these rules — either forbidding any experiment with direct democracy or forbidding only the total loss of a representative legislature — we might have a principled basis for deciding the case. The former rule of decision might require judgment for the plaintiffs; the latter, for the defendants. But the plaintiffs in our case disclaim either such standard. They seem to acknowledge that some direct democracy is consistent with republican government, insisting only and instead that the kind here runs afoul of the Constitution.
And this is where we run into trouble. To date, the plaintiffs have declined to advance any test for determining when a state constitutional provision requiring direct democracy on one subject (here, taxes) does or doesn’t offend the Clause. No doubt, the task the plaintiffs face is a formidable one: they enter a field in which the Supreme Court has already dismissed for lack of judicially manageable standards a case challenging a state constitutional provision that allowed citizens to overturn by direct vote any state legislative enactment (not just enactments raising taxes). The plaintiffs enter a field, too, where the Supreme Court has more recently chosen to derive a multi-part justiciability test from its preexisting Guarantee Clause jurisprudence — in the process expressly reaffirming the idea that the Clause lacks judicially manageable standards for cases like ours.

The case seems likely to head to the Supreme Court. Whether it's the best vehicle to address the Guarantee Clause is another question--there's still the legislative standing issue that needs to be surmounted. But the case, as it stands, leaves much litigation to the imagination of enterprising legislators.

Paul Clement enters pending Arizona redistricting litigation

I've previously blogged about what the Constitution means when it uses the word "legislature" in the context of the Times, Places and Manner Clause, and the Arizona state legislature's challenge to the ballot proposition that shifted the authority to draw congressional districts from the legislature to an independent commission. A three-judge panel rejected the Arizona state legislature's argument by a 2-1 vote.

Yesterday, the Arizona state legislature filed its reply brief (available via Scribd). Of note: former United States Solicitor General Paul Clement of Bancroft PLLC is now the counsel of record. Bringing in someone of his caliber suggests an increase in the stakes--and perhaps even an increase in the likelihood the Supreme Court will consider the merits of the case.

Justin Levitt's All About Redistricting, Ballot Access News, and SCOTUSBlog all have some coverage of the pending Arizona State Legislature v. Arizona Independent Redistricting Commission litigation. The Supreme Court will likely decide in late September whether to hear the case.

Extraterrestrial exposure quarantine laws and Apollo 11

President Richard Nixon greets Apollo 11 astronauts Neil Armstrong, Michael Collins, and Buzz Aldrin during their quarantine, July 24, 1969, via NASA.

This month marks the 45th anniversary of the Apollo 11 mission, the first manned lunar landing. But less discussed about this historical incident is the quarantine that took place after the astronauts landed.

The astronauts were quarantined from their splashdown on July 24, 1969 until their release on the evening of August 10--18 days of isolation to ensure that they did not bring back any contaminants from the moon.

The quarantine procedures were set forth in 14 C.F.R. § 1211 (now long since amended) in a part entitled "Extraterrestrial Exposure." The scope of the regulation:

This part establishes: (a) NASA policy, responsibility and authority to guard the Earth against any harmful contamination or adverse changes in its environment resulting from personnel, spacecraft and other property returning to the Earth after landing on or coming within the atmospheric envelope of a celestial body; and (b) security requirements, restrictions and safeguards that are necessary in the interest of national security.

It authorizes NASA to establish quarantine procedures and standards to evaluate who should be quarantined and when it is safe to release a person from quarantine.

The regulation was filed on July 15, 1969 (45 years ago today), and appeared in the Federal Register at 34 Fed. Reg. 11975 on July 16, 1969--the day of the Apollo 11 launch. It's perhaps no surprise, then, that it includes this effective date:

Effective date. In light of the Apollo 11 space mission and the need to guard the Earth against extraterrestrial contamination, it is hereby determined that compliance with section 553 of Title 5 of the United States Code is impracticable and contrary to the public interest; therefore, the provisions of this Part 1211 are effective upon publication in the FEDERAL REGISTER.

You can read the entire regulation here, via Scribd.