Citizens United in Affordable Care Act litigation, Part VII

Following up on Part VI, we now have the Supreme Court's opinion in Burwell v. Hobby Lobby (PDF).

At oral argument (PDF), no one mentioned the Court's decision in Citizens United. That's probably appropriate, because Hobby Lobby turns primarily on a statute (i.e., the Religious Freedom Restoration Act), not the First Amendment. Granted, that statute purported to incorporate (and modify) the Supreme Court's earlier First Amendment jurisprudence--but that wasn't what the justices seemed to focus on. But that's where the justices appeared to have some of the most difficulty: deciding what, exactly, that jurisprudence may have included. (And there is voluminous analysis across the Internet on this.)

Indeed, the only mention of Citizens United arose in a fleeting mention in Justice Ginsburg dissent:

Corporations, Justice Stevens more recently reminded, "have no consciences, no beliefs, no feelings, no thoughts, no desires." Citizens United v. Federal Election Comm'n.

For previous coverage see:

Part I

Part II

Part III

Part IV

Part V

Part VI

(By the way, an interesting note for timing purposes: the Tenth Circuit was the first federal appellate court to reach this issue, last June. Cert was granted, and the case was then scheduled for oral argument on March 25. This June, the Tenth Circuit is the first federal appellate court to reach the issue of the constitutionality of marriage amendments post-Windsor.)

Justice Alito calls law professors part of an "arrogant legal culture"

From Justice Alito's dissent in United States v. Windsor (pp. 14-15, n.7, some citations and internal parentheticals omitted, emphasis added):

The degree to which this question is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make "findings of fact" on such questions as why marriage came to be, what marriage is, and the effect legalizing same-sex marriage would have on opposite-sex marriage.

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom.

And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge's findings—including those on major philosophical questions and predictions about the future—unless they are "clearly erroneous." See Brief for Constitutional Law and Civil Procedure Professors as Amici Curiae in Hollingsworth v. Perry ("[T]he district court’s factual findings are compelling and should be given significant weight"); ("Under any standard of review, this Court should credit and adopt the trial court's findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts"). Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.

Justice Ginsburg and citation to post-oral argument work

In her dissent in Shelby County v. Holder, Justice Ginsburg cites a piece about racial polarization that appeared in the Harvard Law Review Forum (p. 21).

I couldn't help but notice that the article was published after  the oral argument in Shelby County: a draft was released the week of oral argument (which took place February 27, 2013), and the final product published at the Harvard Law Review Forum April 27, 2013.

I then recalled that Justice Ginsburg cited post-oral argument work in National Federation of Independent Business v. Sebelius , last term.  There, argument took place March 27 & 28, 2012. But she cites a blog post by Ezra Klein published May 7, 2012 (p. 7).

I don't know if it's common for the Supreme Court to cite to post-oral argument work (although it's certainly common for the Court to cite to its own post-oral argument opinions), but the fact that I recalled these two instances, and that both by the same justice, struck me as (perhaps) noteworthy.

Quick thoughts on Shelby County v. Holder

The Supreme Court handed down its opinion in Shelby County v. Holder, addressing the constitutionality of Section 4(b)'s coverage formula that subjected a number of states (e.g., Southern states with a long history of Jim Crow laws) to "preclearance" under Section 5 of the Voting Rights Act before they enacted any changes to their election laws or administration. Here are my quick thoughts.

• This result should come as a surprise to literally no one. In 2009, the Supreme Court handed down a decision in Northwest Austin Municipal Utility District Number One v. Holder  in which it unanimously--unanimously--found "serious constitutional questions" about the coverage formula (one justice would have found it outright unconstitutional). Congress, however, did not take this warning seriously (apparently). The decision to strike down the coverage formula was not a surprise.
  
• Some have critiqued that such a result is not "merely" striking down the coverage formula, but that, as Congress is not likely to come up with a new formula, Section 5 is effectively dead. I'll remain cautiously optimistic that Congress will attempt to hash something out; after all, there are things that Congress might include in the law (e.g., "voter integrity"-type laws). Of course, it might not. But I do think it's significant that the Court chose not to address the remedy (i.e., preclearance) as an unconstitutional exercise of power; instead, it is that Congress failed to tailor the law appropriately. (But, admittedly, I may be the only one in the room who thinks Congress may develop a new coverage formula....)
  
• There are many provisions of the Voting Rights Act that remain--most prominently, Section 2 lawsuits and the "bail-in" coverage under Section 3.  The Voting Rights Act wasn't struck down; a provision (admittedly, a rather significant provision) was.
  
• In the opinion itself, Chief Justice Roberts relies fairly heavily on Northwest Austin --much to Justice Ginsburg's chagrin in dissent. She calls its language "dictum" in places and rejects that  the "serious constitutional questions" raised there implied an answer. In Chief Justice Roberts's quest for unanimity in that case, it appears he got the upper hand.
  
• This case was a facial challenge. I find this one of the hardest aspects of the case. If Shelby County were solely challenging Section 5, it would be easier under the Court's precedents to find that there was adequate evidence in Congress for coverage to exist "as applied" to Shelby County. Indeed, I think, based on precedent, Justice Ginsburg has the upper hand (pp. 23-30).
  But that entire portion of Justice Ginsburg's opinion refers to Section 5, and only invokes Section 4 at 29 of that 8-page part of the dissent. Footnote 9 is instructive: "[T]he Court asserts that Shelby County may prevail on its facial challenge to [Section] 4's coverage formula because it is subject to [Section] 5's preclearance requirement by virtue of that formula. . . . This misses the reality that Congress decided to subject Alabama to preclearance based on evidence of continuing constitutional violations in that State."
  This, I think, is the weakest case on the facial challenge front--and probably why the only meaningful discussion of Section 4 in this portion of the dissent is dropped in a footnote. The majority emphasis that Congress uncritically left its coverage formula in place. It may well be that a new coverage formula would include Alabama, but the dispute is whether Congress "decided" much of anything at this point.
  This is also why, I think, Chief Justice Roberts's emphasis on Section 4 is more than semantics. If he were examining Section 5, he would have a much harder case to make. But he emphasizes Section 4's coverage formula instead.
  One may still believe that Congress had adequate evidence presented that the existing coverage formula in Section 4 was correct. But I think the emphasis on Section 4 makes the facial challenge a harder case.
  
• The majority and the dissent seem to agree that coverage of Arizona and Alaska, which have not had any successful Section 2 suits during a 24-year stretch, may  (this is some speculation) exclude them from coverage (majority at 8; dissent at 29).
  
• Chief Justice Roberts (perhaps taking a cue from his predecessor) is notoriously cagey about which provision of the Constitution he is interpreting (he suggests rather blandly "[b]oth the Fourteenth and Fifteenth Amendments," n.1)  and the standard of review (he refuses to cite City of Boerne v. Flores  or the "congruence and proportionality" test, but finds the formula "irrational"--it looks like it'll stick with rational basis review to avoid the harder problems post-Boerne).
  
• But there is a revitalized Tenth Amendment in the case: the Court cites Bond v. United States  (slip op. at 9) and emphasizes the Tenth Amendment citation in Georgia v. Ashcroft  (slip op. at 10). 
• The majority comes back, time and again, to "things have changed dramatically," "no longer such a disparity," "history did not end in 1965," and the like. In perhaps its strongest claim on the Fifteenth Amendment, "The Amendment is not designed to punish for the past; its purpose is to ensure a better future."
  
• Much of this opinion was telegraphed in Northwest Austin . It's hard to come up with novel things to say for those who've read it, and re-read it, these last four years.... 
• The dissent's strongest argument (in my view) is its examination of Section 2 challenges in covered and noncovered jurisdictions (19-23). It emphasizes that Section 2 challenges are significantly more successful in covered than noncovered jurisdictions, which suggests the covered jurisdictions have lasting problems.  The majority suggests that this "record" played "no role in shaping the statutory formula before us today"--but that, I think, undermines what one ordinary views as "rational basis" review; that is, the Court can come up with reasons even if Congress didn't include them in the record.
  

To emphasize a point raised earlier, will Congress develop a new Section 4 coverage formula so that Section 5 will live again? The predictions say no. But it's in this area that I'll continue to remain cautiously optimistic. There may be political horse-trading, and the coverage formula may be significant different (and almost assuredly smaller). But before declaring the death of Section 5, let's give Congress a couple of weeks to see if anyone intends on raising a serious alternative. Supporters of the Voting Rights Act may be pleasantly surprised.

Is a federal ban on alien voting unconstitutional?

As a part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 18 U.S.C. 611(a) reads, "It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner," unless they are voting for non-federal officials on a different ballot.

In Inter Tribal, the Court found that the power to prescribe and enforce the qualifications of voters resides in the states, and that the federal government has no role (at least under the Elections Clause).

So what happens to this provision? There has been some speculation that the Court's opinion about the state's power over voter qualifications, and Congress's lack thereof, would be limited to the context of the Elections Clause, and that other sources of power (e.g., the Reconstruction Amendments) might offer an alternative basis for Congress to regulate voter qualifications.

And after the opinion, there was much concern, from commentators concerned about the impact if Congress may one day want to enfranchise felons (a prospect I find a highly dubious political likelihood), to a question about the sustainability of the Uniformed and Overseas Citizens Absentee Voting Act.

But these concerns arise from areas where Congress has, or may, extend (or protect) the right to vote to certain groups when a state may disenfranchise them. The provision of IIRIRA does just the opposite--it disenfranchises a group that a state may want to enfranchise.

Granted, all fifty states at the moment disenfranchise noncitizens in statewide elections, but some allow noncitizen voting in local elections, and some localities have embraced noncitizen voting. 

If, however, an individual is prosecuted or deported under this provision, would Inter Tribal suggest the law is unconstitutional? 

I suppose one could make the argument that Congress's broad power over immigration would be the source of that power. But I do think it's telling that Congress restricted itself to regulating only federal elections. It is perhaps a concession that Congress believed it was acting within its more limited power to regulate elections, not in the broader area of immigration.

And if that's the case, I wonder if the judicial "conservatives" (more inclined to empower states to determine voter qualifications) and the judicial "liberals" (more inclined to remove rules restricting the right to vote) would join an opinion in a future case to strike down this provision. It's worth considering in the years ahead.

UPDATE 2020: A lot has happened since this little blog post! See this 2017 piece in the Loyola Law Review for an extended critique on the ban. Others have urged me to reconsider the scope of Congress’s immigration power, which they argue can extend to regulate the activities of non-citizens in the United States even in relation to voting. Still others have suggested that the federal government could enforce state-related voting rules in federal elections, akin to its power under the Enforcement Acts. Regardless, I came back to lightly edit this post and update it given a number of federal criminal charges filed under Section 611(a) in North Carolina.

The state's power to enforce voting qualifications

There is a great deal of skepticism over yesterday's decision in Arizona v. Inter Tribal Council (PDF). And in fairly thought-provoking pieces from Rick Hasen, Lyle Denniston, Marty Lederman, Joey Fishkin, and Josh Douglas, the positives and negatives are highlighted (with the emphasis on the negatives--that's what legal commentary is best at!).

But I want to draw a distinction between state's power to prescribe voter qualifications and the state's power to enforce voter qualifications. It's an important distinction that, I think, has been largely elided in the discussion, and it's one that is not obvious from the Court's opinion (at least, upon first blush). And, in fact, it's subtly summarized in this statement from the Court (slip op. at 15): "Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications."

Consider, for instance, Crawford v. Marion County Election Board (PDF), which upheld Indiana's voter identification law. The Court emphasized the distinction between prescribing and enforcing voter qualifications: while a poll tax, for instance, was not a legitimate basis to determine who was "qualified" to vote, "evenhanded restrictions that protect the integrity and reliability of the electoral process itself" are permitted (slip op. at 6, internal citation omitted). The Court in Crawford  goes on to examine this case as a routine attempt by the state to enforce its existing power to allow only eligible voters to vote.

So perhaps at one level Inter Tribal  is simply in line with Crawford  (even if it doesn't cite Crawford): there is no dispute that citizenship (like age, residence, sanity, felon status, and other traits subject to some constitutional floors) can be a basis for voter qualifications, but this case is about something other than qualifications. Inter Tribal is about NVRA paperwork; Crawford is about enforcement via voter identification.

But here's the progression I wonder if one can derive from Inter Tribal , and, again, I think, it's somewhat subtle.

1. "Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them."  (Slip op. at 13.)

2.  "Prescribing voting qualifications, therefore, 'forms no part of the power to be conferred upon the national government' by the Elections Clause . . . ." (Slip op. at 14.)

3. "Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications." (Slip op. at 15.)

4.  "[T]he statute provides another means by which Arizona may obtain information needed for enforcement." (Slip op. at 15.)

Note that the Court wraps up the power to enforce voter qualifications with the power to prescribe  voter qualifications. And while Crawford  dealt with a state's power to enforce voter qualifications, the implication in Inter Tribal  is that it is outside the scope of the power of the federal government  to interfere not just with the state's prescription of voter qualifications--that is its fairly frank statement in n.9 of the opinion and its gloss of Oregon v. Mitchell . It is also that it is outside the scope of the power of the federal government to interfere with the state's enforcement of voter qualifications . Indeed, the only saving mechanism here is that there is "another means" for Arizona to enforce its citizenship requirement, an administrative appeal.

In case you're still not convinced, n.10 is also significant: if a court cannot compel the Election Assistance Commission to act on Arizona's request, "Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form" (emphasis added).

I think the "might" in that sentence is not that there "might" be a constitutional right; instead, it is that Arizona "might" have established, factually, that a "mere oath" will not suffice (slip op. at 17). Consistent with the earlier progression I described, I wonder if the Court now assumes that there is a "constitutional right" of the state to not simply proscribe  voter qualifications, but to enforce  them absent federal interference.

This is entirely consistent with Justice Thomas's understanding in his dissent (see, e.g., slip op. at 6-8, citing the majority approvingly that "the power to establish voting requirements is of little value without the power to enforce those requirements" and expanding upon it). He has a robust view of that power, too: "Arizona sets citizenship as a qualification to vote,and it wishes to verify citizenship, as it is authorized to do under Article 1, §2. It matters not whether the United States has specified one way in which it believes Arizona might be able to verify citizenship; Arizona has the independent constitutional authority to verify citizenship in the way it deems necessary." (Slip op. at 15.) And, "Given States’ exclusive authority to set voter qualifications and to determine whether those qualifications are met, I would hold that Arizona may request whatever additional information it requires to verify voter eligibility." (Slip op. at 16.)

In the end, we may see a powerful new precedent that would dramatically curtail any federal interference with not just state prescription of voter qualifications, but state enforcement  of voter qualifications. But time will tell.

Quick thoughts on Arizona v. Inter Tribal Council

The Supreme Court handed down its decision in Arizona v. Inter Tribal Council of Arizona, Inc. today. By a vote of 7-2, the Court, in an opinion authored by Justice Scalia, struck down Arizona's proof-of-citizenship requirement as conflicting with the National Voter Registration Act of 1993. Justice Scalia wrote for the majority, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy concurred in part and concurred in the judgment. Justices Thomas and Alito each filed dissenting opinions. Here are a few quick thoughts after reading the opinion.

• The opinion at II.A has a very robust view of the Elections Clause, and what Congress may regulate when it comes to  "Times, Places and Manner." I don't know that it will save, say, the Voting Rights Act from a facial challenge, but it's worth noting that a solid majority of the Court views Congress's role in this area as fairly broad.
• Justice Scalia's majority opinion takes the opportunity (slip op. at 10-12) to address the "presumption against pre-emption," which the opinion characterizes as "sometimes invoked in our Supremacy Clause cases." The majority notes, "We have never mentioned such a principle in our Elections Clause cases." Accordingly, the majority rejects such a presumption in such cases because of the "different[]" power of the Elections Clause, a power that confers "none other than the power to pre-empt," and that the "federalism concerns underlying the presumption . . . are somewhat weaker here."
  This part of the opinion garners 6 votes, as Justice Kennedy concurs separately to express disapproval of the Court's rejection of the presumption. He doesn't view the Elections Clause as unique and wants greater vigilance in protecting the states. He emphasizes that "a court must not lightly infer a congressional directive to negate the States' otherwise proper exercise of their sovereign power."
  Of note is that Kennedy expresses a fairly robust view of federalism in ttis concurrence. Also of note is that, perhaps, Justice Scalia disapproves more broadly of the "presumption" against pre-emption, and he viewed this case, because of a distinguishable clause of the Constitution addressed for the first time (as he characterized it), as an opportunity halt the expansion of that presumption.
  
• Justice Thomas's dissent views this matter as primarily one of constitutional qualifications. That power is reserved to the states, and he marches through a broad section of founding documents and history to emphasize this point. As Arizona has the power to decide whether citizens have the right to vote, then Arizona should have the power to enforce that decision. The majority opinion largely shies away from addressing Justice Thomas's views head-on, instead addressing, in general in Part III and specifically at n.9, that the statute does not preclude Arizona from enforcing the qualifications of its voters, but simply that the means chosen cannot be used because of the conflict with the Act.
  
• The majority, however, does emphasize that the matter of prescribing voting qualifications is left to the states. The opinion at n.8 brings clarity to Oregon v. Mitchell, a fractured opinion about Congress's power to compel states to allow 18-year-olds to vote. It notes that a majority of the Court in that case "took the position that the Elections Clause did not confer upon Congress the power to regulate voter qualifications in federal elections."
  
• Justice Alito's dissent attempts to avoid the harder constitutional questions by construing the Act in a more narrow fashion. Preemption aside, the "better reading of the Act would be that Arizona is free to require those who use the federal form to supplement their applications with proof of citizenship." (Slip op. at 7.)
  
• Finally, after 13 long years languishing in the U.S. Reports, Bush v. Gore , 531 U.S. 98 (2000) (per curiam) gets its first citation in the Supreme Court. Justice Thomas cites the case in n.2 of his dissent. He notes that the Act applies to "all federal elections, even presidential elections," and the problems of Congress regulating state selection of presidential electors when that power is "plenary," citing Bush v. Gore. It will probably be underdiscussed, but there's now a citation for Bush v. Gore in the Supreme Court.