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.

Did Ginsburg move Kennedy to narrow Alito's Hobby Lobby opinion?

(The contents of this post arose from close readings of the case and discussions with several folks--my thanks for inspiring the examination.)

Justice Alito's majority opinion in Burwell v. Hobby Lobby (PDF) includes two extended analyses that ultimately read as dicta, because the majority opinion refuses to address the issue--and they are both issues from which Justice Kennedy's concurring opinion appears to distance itself. Further, Justice Kennedy's concurring opinion appears to be a direct response to Justice Ginsburg's dissent. So it may be worth asking the question: did Justice Alito once have a much broader opinion, one that was later restrained in two aspects because Justice Kennedy refused to join them after reading Justice Ginsburg's dissent?

Compelling Government Interest

Here's how Justice Alito's majority opinion addresses the compelling government interest (with some citations omitted or abbreviated):

HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro. This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro.

In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.”

The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have nocontraceptive coverage without cost sharing at all.

HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” But the contraceptive mandate is expressly excluded from this subset.

We find it unnecessary to adjudicate this issue.

Well, that's an unusual conclusion! First, a brief note on Justice Alito's history on this issue: when it comes to asserting a "compelling government interest," Justice Alito has been no friend of the government when it has found the ability to carve out exceptions for some reasons, but not religious reasons.

Consider the "police-beard case" he decided on the Third Circuit. The government asserted a compelling interest in having Muslims shave their beards to serve on a municipal police force. But the government had carved out a medical exception to its beard policy. Justice Alito found that there was no compelling government interest where there had been some non-religious exceptions granted.

That's the logic much of this lengthy excerpt assumes. The government has created exceptions to its policy; that, to Justice Alito, seems like thin gruel as a basis for the government to turn around and assert that it really does have a compelling interest when it comes to religious exemptions to its policy. He emphasizes that the "interest" is not just generic ("women's health," etc.), but precise, citing O Centro.

But, curiously, Justice Alito, after several paragraphs of suggestively weighing against the government, turns to say that the Court need not decide the issue.

Justice Kennedy, however, appears to reject any compelling government interest.

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. There are many medical conditions for which pregnancy is contraindicated. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.

Justice Kennedy, then, seems to reject all of the points raised arguendo (and in dicta) by Justice Alito--he does not construe "compelling government interest" narrowly, and he does not view the government's granting of some non-religious exemptions as fatal to a compelling government interest in its refusal to grant religious exemptions.

But Justice Ginsburg notes in her dissent (which Justice Kennedy characterizes as "powerful"):

Perhaps the gravity of the interests at stake has led the Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. [Footnote 23: Although the Court’s opinion makes this assumption grudgingly, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.”]

...

Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court suggests, Congress would not have created these exclusions.

Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., (FMLA, ADEA, ADA, and Title VII).

The ACA’s grandfathering provision, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of coinsurance, deductibles, that sort of thing.” Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” The percentage of employees in grandfathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.”

So, too, why does Justice Ginsburg exert so many paragraphs to refuting an argument that the majority raises arguendo and ultimately assumes without deciding? And why relegate the tip to Justice Kennedy in a quick footnote after speculating what "[p]erhaps" motivated the majority?

Least Restrictive Means

Justice Alito's opinion similarly opines at length that the least restrictive means would be government purchase of the contraceptives in dispute:

The least-restrictive-means standard is exceptionally demanding, see City of Boerne, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See [RFRA] (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest” (emphasis added)).

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA,are designed primarily for emergency use. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely,however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal.

HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” [Footnote 37: here the Court examines burdens that benefit third parties in a lengthy footnote. -ed] But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.

In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test.

Another curious conclusion! Why not? Justice Alito's opinion continues:

HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.”

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. [Footnote 39: the Court notes that the Little Sisters of the Poor case challenges this accommodation in a separate RFRA claim. -ed] At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.

Note first that this conclusion on "least restrictive means" leaves open a question--the means may still violate RFRA for other claims! So, the stronger basis for the majority's opinion--the one that would emphatically not result in any religious objections--is set aside in favor of the potentially more problematic option (in the majority's own terms).

Second, consider what Paul Clement argued at oral argument (PDF) in response to a question from Justice Sotomayor:

JUSTICE SOTOMAYOR: Will your clients claim that filling out the form, if you're saying they would claim an exemption like the churches have already?

MR. CLEMENT: We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

So because of the narrow objection of Hobby Lobby in this case--at least as articulated by their counsel--the bigger problem of the self certify provision is reserved for another day. (But, it is curious that Justice Alito did not cite to this concession at oral argument.)

Justice Kennedy praises this result:

But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases.

The means the Government chose is the imposition of a direct mandate on the employers in these cases. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.

On this record and as explained by the Court, the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.

He then specifies why he would not reach the initial issue raised in Justice Alito's opinion, that of government subsidy:

The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.

It is an intriguing gloss on RFRA--the "least restrictive means," to Justice Kennedy, at least in these terms, suggests that the government may not have to pursue the truly least restrictive means, but, perhaps, a kind of balance of a not-very-restrictive means, so long as the cost is low (i.e., "without imposition of a whole new program or burden on the Government"). (Further, some have already speculated that his approval of this regime suggests he would not be inclined to favor challenges to the self certify framework.)

Justice Ginsburg, like Justice Alito, pursues the "government subsidy" line of argument at length before acknowledging it is merely dicta:

Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Moreover, Title X of the Public Health Service Act “is the nation’s only dedicated source of federal funding for safety net family planning services.”
“Safety net programs like Title X are not designed toabsorb the unmet needs of . . . insured individuals.” Note, too, that Congress declined to write into law thepreferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative.

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.

Ultimately, the Court hedges on its proposal to align for-profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable, counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87.

Again, the bulk of the examination is on the government subsidy means; the self certify issue is almost an afterthought.

--

Now, perhaps all of this is nothing. Perhaps the opinions were naturally written in this way. But given some of the ostensibly superfluous discussions on materials assumed away and not deemed essential to the Court's holdings, it's at least a plausible interpretation that Justice Ginsburg's first dissent moved Justice Kennedy to distance himself from two key portions of the majority's opinion, which then was modified to ensure that there were five outright votes on the salient issues in the case.

And it's very possible, then, that Justice Kennedy's concurring opinion was a part of a bargain to push the majority to bracket two broader issues (finding no compelling government interest because of other exemptions in the overall statutory scheme, and finding that a less restrictive alternative would not be a matter of pending litigation in other RFRA claims). And it's possible that he was driven to that view after Justice Ginsburg circulated her dissent.

So, is this post rampant speculation, or a plausible interpretation?

Vote counting in Hobby Lobby

The complexity of the balancing test in the Religious Freedom Restoration Act, and the numerous factors at play in the Burwell v. Hobby Lobby litigation, has yielded some complexity in addressing what the Court actually found. (PDF here.) It's widely reported as a 5-4 opinion, but it's somewhat more complicated than that. Here's a quick guide to counting the votes.

By a vote of 5-2 (with 2 justices abstaining), the Court found that RFRA applies to closely-held for-profit corporations.

The majority opinion by Justice Alito concludes that RFRA so extends; Justice Ginsburg (joined by Justice Sotomayor) in dissent rejects that view. Justices Breyer and Kagan abstained from this portion of the decision.

By a vote of 9-0 (sort of), the Court found that the religious beliefs of the companies were sincerely held.

Part of this doesn't matter as much, because it seems irrelevant to the dissent in its ultimately analysis where the parties fail all other tests. But the dissenting opinion acknowledges, "I agree with the Court that the Green and Hahn families' religious convictions regarding contraception are sincerely held." (Dissenting slip op. at 21.) It is not clear that the dissent would directly extend those religious beliefs to the corporation, except arguendo, due to two dissenting justices' conclusions that RFRA does not apply to those families' closely-held for-profit corporations. But its language later in that opinion applies to Hobby Lobby and Conestoga Wagon, too. Consider: "I would conclude that the connection between the families' religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable." (Dissenting slip op. at 22-23.)

By a vote of 5-4, the Court found that the "contraceptive mandate" substantially burdened the companies.

This one is pretty easy to parse out of the opinion.

By a vote of 5-0 (with 4 justices assuming arguendo), the Court found that the government had a compelling interest in establishing the "contraceptive mandate."

The majority opinion of Justice Alito assumes without deciding that there is a compelling government interest in providing contraceptive access to women. (Part V-A.) Justice Kennedy's concurring opinion accepts the government's interest, and Justice Ginsburg's dissenting opinion (joined by Justices Breyer, Sotomayor, and Kagan) notes it in a footnote. (Dissenting slip op. at 24-25.) And the four dissenting justices found such an interest.

By a vote of 5-4, the Court found that the "contraceptive mandate" was not narrowly tailored.

This one, too, is pretty easy to parse out of the opinion.

McCutcheon in non-election law litigation

In McCullen v. Coakley (PDF), the Supreme Court found that a Massachusetts law prohibiting congregating within 35 feet of abortion clinics to be in violation of the First Amendment's guarantee of the freedom of speech. The Court referred to its recent opinion in McCutcheon v. Federal Election Commission (PDF).

The basis? One of process. Chief Justice Roberts wrote the plurality in McCutcheon, in which he refused to decide which level of scrutiny to use, concluding that the campaign finance restriction at issue failed either proposed test. He also wrote the majority in McCullen, in which there was a question about which test should apply:

The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission. But the distinction between that one and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon--the standard that was assumed to apply--would have required overruling a precedent. There is no similar reason to forgo the ordinary order of operations in this case.

Justice Scalia, who joined the plurality in McCutcheon, was not convinced in his opinion concurring in the judgment in McCullen:

Just a few months past, the Court found it unnecessary to "parse the differences . . . between two [available] standards" where a statute challenged on First Amendment grounds "fail[s] even under the [less demanding] test." McCutcheon. What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not.[fn.2] By engaging in constitutional dictum here (and reaching the wrong result), the majority can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review. With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in . . . the majority's opinion.

[fn.2]: The Court claims that McCutcheon declined to consider the more rigorous standard of review because applying it "would have required overruling a precedent." That hardly distinguishes the present case, since, as discussed later in text, the conclusion that this legislation escapes strict scrutiny does violence to a great swath of our First Amendment jurisprudence.

The unnecessariness of Noel Canning

When President Barack Obama filled a few vacancies on January 4, 2012, through a purported exercise of the recess appointments power, it reflected a few things.

Had he filled those vacancies just 24 hours earlier, between congressional sessions, they almost assuredly would never have faced a viable legal challenge. But if he'd done that, the interim appointment would have lasted just one year instead of two. So it reflected a deliberate choice--one of overreach.

Had the Senate not had a filibuster rule in place, one that required 60 votes to invoke cloture on a nominee, then the President's nominees likely would have been confirmed. Indeed, a few months after this event, the Senate deemed to amend its rules to require just 51 votes to invoke cloture in a number of situations. Presumably such a principle would have applied to his CFPB and NLRB nominees.

Had the President brokered a compromise, found acceptable nominees (indeed, contemporaneous reports suggested even some Democratic politicians balked at the nominees), or engaged in myriad political alternatives, in addition to the options listed above.

He chose none of them. Instead, he tried to get a two-year recess appointment from a few nominees. Litigation ensued. Now the opinion has come down in Noel Canning (PDF), analyzed elsewhere.

The entire case could have been avoided with any of the above steps--some quite modest--being taken. But they weren't.

And the holding in Noel Canning, in classic Breyerian form, adopts a narrow results that essentially preserves the status quo: perhaps the Constitution means certain things about when vacancies happen and the nature of what a recess is, but, instead, the better result is to undo this isolated act of executive aggrandizement and preserve things essentially as they've existed, in a kind of political inter-branch chess match, until the most recent dispute. (Indeed, given how the Senate has moved to hasten the ease of executive appointments by its cloture rules, it seems little might be left of such inter-branch disputes.)

This sturm und drang was wholly unnecessary--it was wholly avoidable. Which is perhaps why it was so easy for the Court to find unanimity in reaching its (narrow) result in this case.

BREAKING: Federal appeals court weighs in on same-sex marriage

The Eighth Circuit has concluded that Nebraska's same-sex marriage amendment should be subject to rational basis review and that the state's refusal to recognize same-sex marriages does not violate the Equal Protection Clause.

It decided this in 2006 (PDF).

One could be forgiven for not knowing that this case, Citizens for Equal Protection v. Bruning, exists. Much commentary today evaluates the "race" to be the first court of appeals to address the issue, as circuits like the Fourth and Tenth have heard oral argument and consider similar cases. Some pundits have wondered aloud whether federal courts would simply be unanimous in their holdings on marriage amendments and that the Supreme Court might never need to weigh in. Indeed, not a single federal case decided since United States v. Windsor (PDF) and Hollingsworth v. Perry (PDF) has cited the existing law in the Eighth Circuit. (The court also concluded that the law was not a bill of attainder and that the law did not violate the First Amendment.)

The Ninth Circuit distinguished Bruning in Perry v. Brown, concluding that California's same-sex marriage amendment left intact other laws concerning same-sex couples' family formation and childrearing, unlike Nebraska's; and that Nebraska's law did not revoke an existing benefit, unlike California's. (The Supreme Court later vacated Perry in Hollingsworth.) And a dissenting judge in the Second Circuit discussed Bruning in the Windsor opinion.

(A few other courts have cited the opinion for some of its other discussion, including its Eleventh Amendment analysis.)

It might be the case that this Eighth Circuit case has not garnered the attention of any of the federal courts addressing same-sex marriage litigation because it has been a different circuit, and its opinion serves only as persuasive (instead of mandatory) authority. But the lower courts certainly are in tune with how other district courts have handled same-sex marriage litigation, regularly citing other federal district courts, and it would seem that a federal appellate court weighing in on the issue with a non-vacated opinion might be the kind of law one would similarly expect to be cited, even if to be distinguished.

Or, it might be that because the Eighth Circuit did not address an Due Process Clause claim, only an Equal Protection Clause claim, its relevance is less. But many federal district courts addressing same-sex marriage also address Equal Protection Clause claims--particularly given the uncertainty about which clause or clauses of the Constitution the Supreme Court relied on in its opinion in Windsor. And it still addresses the government's rational basis arguments, which may be relevant for a Due Process Clause claim.

Or, it might be the case that things have changed significantly in eight years, either due to political factors or due to the Supreme Court's opinions in cases like Windsor. But one would expect that at least some district courts might cite the opinion, then distinguish it by pointing to changed circumstances. (This has been the typical route for courts explaining why the Supreme Court's decision in Baker v. Nelson (1972) is not applicable.)

So, will any federal district court cite Bruning? Any appellate court? Even merely to distinguish it?

Or, perhaps, is the Eighth Circuit case the exact set-up for a circuit split that might force the Supreme Court to address the issue in future litigation, depending on how other appellate courts handle the matter?

Only time will tell.

I admit, perhaps it's a bit deceptive to say that it's "BREAKING" news. But, confession time: was the Eighth Circuit's eight-year-old case law news to you?

A dramatically wrong Eighth Circuit case on qualified immunity

Imagine that there is a law on the books criminalizing some behavior. It can be any law. Pick one. This law was enacted by the state legislature. It remains on the books. It has never been challenged. A local police officer arrests someone for violating that law.

If the law were potentially constitutionally problematic, we would expect the arrestee to challenge the statute and move for dismissal of the charges. Then one of two things might happen: the prosecutor might exercise discretion and drop any pending charges, or the prosecutor might continue with the charges and allow a judge to determine the constitutionality of the criminal statute.

Good so far?

Not so in the Eighth Circuit.

A basic misunderstanding of the doctrine of qualified immunity imperils the rule of law everywhere, inviting law enforcement officers to independently evaluate existing laws on the books and threaten them with lawsuits if they decide to enforce a law a court later finds unconstitutional.

Missouri had a flag-burning statute on the books (PDF). The statute had never been challenged. A police officer, acting on advice from another officer, obtained a warrant from a judge and arrested a man for burning a flag, a man who claimed he did so because “he hated the United States because it was the country’s fault that he could not find a job.” The prosecutor looked at the Supreme Court's decision in Texas v. Johnson and United States v. Eichman, decided to drop the charges.

Granted, Texas’s statute bears similarities to Missouri’s statute. But Texas v. Johnson certainly did not purport to settle the matter for all fifty states.

It has been of some amusement to legal academics, whose commentary reads something like, “Oh, those backwater Show-Me Staters near the boot heel. Don’t they know the totality of the contours of First Amendment law?” But perhaps one could be forgiven for thinking that, as a matter of common sense, burning the flag is not protected by the Free Speech Clause. As of 1989, forty-eight states and the federal government had flag desecration statutes. Some still have them today. And some flag desecration (the kind that doesn’t involve expressive conduct) may still be criminalized.

Alas, the First Amendment is not the stuff of common sense, and certainly not the stuff of popular opinion, but of law. And as a matter of law, the Supreme Court has interpreted the Free Speech Clause to protect the expressive conduct of burning the flag to make a political point.

Should it be known to a prosecutor, or a judge? Probably. To a law enforcement officer? There is the trickier part--but one the Eighth Circuit had no difficulty analyzing in a dramatic statement. The court informs law enforcement officers that they have an obligation to ignore a duly-enacted law, one that has never been formally challenged, based upon their independent conclusion that the law is unconstitutional under existing Supreme Court precedent.

The history of qualified immunity is not the cleanest. It traces back to the 1970s as the Court grappled with its existing precedent under a series of older cases that prohibited parties from suing states for monetary damages for constitutional violations. After the Kent State riots, the Court authorized suits against state officials in limited cases--that is, the officials' immunity from lawsuit was "qualified." As the Court explained, "[A] qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct."

These cases tend to be "excessive force" cases under the Fourth Amendment, for good reason: usually, they arise when a law enforcement official is arresting someone or processing someone in custody, and there arises a dispute as to whether the official acted within the permissible range of discretion of exceeded it unnecessarily. It arises when police officers search a home without a warrant and asks whether they were justified in doing so. And it arises in other contexts, including First Amendment or Due Process Claims.

But the law must also be "clearly established" for an officer to lose qualified immunity-that is, "'the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.'"

With that brief background, what of this case?

This case is not one in which the law enforcement officer is acting in his discretionary capacity--he is not making an employment decision, or using force to stop a fleeing suspect, or any of the other typical qualified immunity cases.

Instead, it is a case where there is a law, on the books, previously unchallenged in any judicial forum, and the law enforcement officer is enforcing that law.

The Eighth Circuit said that the law enforcement officer should not have enforced that law and could be sued for monetary damages for doing so.

Of course, isn't this a particularly egregious violation of "clearly established" precedent from the Supreme Court? Well, not exactly. Texas v. Johnson was a flag-burning case, yes, but it was an "as-applied" challenge--that is, flag burning statutes are not inherently (facially) unconstitutional, but only unconstitutional in limited circumstances. In that 1989 case, it was unconstitutional when it was applied solely to political speech.

In this case, for the officer at the time, were there other factors that might affect the analysis? That a neighbor call the police, suggesting a feud? That there was originally a litter ticket issues, suggesting a non-speech-oriented basis for the citation? We don't know. The parties concede that the citation ultimately issued was done so in violation of the First Amendment--but only after the prosecutor reviewed the charges and the relevant case law.

Instead, the Eighth Circuit would demand that the law enforcement officer make an ex ante decision about validity of a law and voluntarily refuse to enforce it--or face lawsuit.

The ramifications could be dramatic.

Imagine a state with a campaign finance law on its books that has aggregate contribution limits similar to those in McCutcheon v. FEC. May it enforce those laws? Or should local clerks independently abandon them, absent judicial review, for fear that complying with laws on the books may open them up to lawsuits?

The same scenario could hold true for a host of cases in the future--same-sex marriage statutes, death penalty statutes, and the like.

It might be the case that a court ducks by saying it was not "clearly established." But in a case like McCutcheon--which, even more so than Texas v. Johnson, was a facial challenge to a federal campaign finance law--it's hard to escape the applicability of precedent going forward.

In part, this is an overstatement of what the Supreme Court does. It handles the cases of individual litigants, perhaps disputing an individual statute. But to translate that quickly to a sweeping pronouncement of dozens of laws nationally implicating millions of Americans is not what it is doing. Stare decisis may suggest a future result; but that suggestion is not the kind of thing that ought to hold a law enforcement officer with the task of performing judicial review.

In closing, it might be that I hyperbolize slightly in this post, that I overuse adverbs, or that I'm the one, in fact, dramatically wrong. But given the unanimity of views laughing at the local Missouri law enforcement officials, I thought it would be valuable to highlight what I view as a very real problem with this qualified immunity analysis, and suggest that perhaps we don't want law enforcement officials to abandon their duty to enforce the law simply because the Supreme Court, in another case in another state in a similar situation, has spoken.