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September 1, 2015

Tribute to a Mentor

On Monday, August 31, Gregory Hobbs will step down as Associate Justice of the Colorado Supreme Court, a position he has held for the past nineteen years. I was extremely fortunate to serve as a law clerk for Justice Hobbs for the 2000–2001 term. On the occasion of his retirement from the bench, I wanted to add my voice to the chorus of praise for this extraordinary public servant.

Justice Hobbs was (is!) a water law expert, a historian, a poet, a keen cultural observer, and a man with his finger on the pulse of the communities he served. More than once during my clerkship, he reminded me that the Court’s authority came with profound responsibility: each decision directly affected lives and livelihoods. There was no place for judicial (or judicial clerk) egotism or haughtiness. At a time when the news cycle and daytime television converged to create a culture celebrating sassy, snarky judges, Justice Hobbs was always a jurist of remarkable care and humility.

But a commitment to judicial humility still left plenty of room for the Justice to make his individual mark. “There is a second story in the footnotes,” he once said to me during my clerkship. He was talking about his majority opinion in Board of County Commissioners v. Vail Associates, Inc., an opus of an opinion that concerned a head-spinning series of exemptions to the general rule allowing counties to impose property taxes. The opinion was a careful parsing of case law and statutory and constitutional text, but it was also a fascinating jaunt into Colorado’s history. There was a second story in the footnotes, taking readers on a ride from 1877 to the turn of the twenty-first century, and folding in references to mining, farming, ranching, and skiing—the things that make Colorado uniquely Colorado.

I think of that opinion whenever I think of Justice Hobbs, because he too is uniquely Colorado, and because his influence on me and my career can, in a sense, be found in the footnotes as well. Well after my clerkship ended, I have come to regard him as a mentor and an example. It comes in the way he conducts himself as a father, grandfather, husband, friend, boss, and jurist. It comes in the humility he has always shown for his judicial position, and the constant recognition that doing what is right by the law is not always easy. It comes in his love of the State of Colorado, its people, and its institutions. It comes in his ability to stand by his principles while remaining willing to reevaluate his positions. It is a rare judge—indeed, a rare person—who can approach his job with such pleasure, dignity and candor day in and day out. The interaction between Justice Hobbs and his clerks, and among the Justices themselves, gave me a deep appreciation for how appellate decisionmaking should work. Those moments still influence me as a law professor today: I spend most of my time teaching, thinking, and writing about how judges decide cases and how judicial behavior influences others in the legal system.

So the text of my time clerking may read, “Law Clerk, Hon. Gregory J. Hobbs, Jr., Colorado Supreme Court, 2000–2001,” but the real story is in the footnotes. The people of Colorado have been blessed to have Justice Hobbs on the Court for almost 20 years. I have been blessed to know him for nearly fifteen years, where his example has been a constant influence. Thank you, GJH.

Jordan M. Singer

Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.”

The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.

Had Kennedy embraced a traditional equal protection analysis—as did the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, the first decision to overturn a same-sex marriage ban—the force of the Chief Justice’s predictions about plural marriage likely would have been blunted. To understand why, we must remember that, despite the fact that it is fundamental, unlike nearly all other individual constitutional rights—both explicit and implicit—the right to marry does not exist unless the state provides for it. In other words, the Constitution does not compel states to offer their citizens the opportunity to enter into the legal relationship known as marriage. But if a state chooses to offer its citizens that opportunity, it cannot discriminate against parties who seek to enter into marriage absent some legitimate basis for doing so.

As numerous federal and state courts have concluded, there is no legitimate basis for excluding same-sex couples from marriage. Though as a historical matter such couples were not eligible for marriage, that is not a valid argument for continuing to prohibit them from marrying when they otherwise satisfy the structural requirements for eligibility. Those requirements contemplate two parties who have consented to be married in the eyes of the law, so that they may both enjoy the particular benefits that this binary legal relationship provides and undertake the particular responsibilities it assigns. Nothing about the inherent nature of those benefits and responsibilities disables same-sex couples from entering into marriage.

The point here is that every state has limited marriage to a union of two—and only two—parties. That binary relationship forms the structural core of the institution of marriage. For a court to hold same-sex couples equally eligible to enter into that relationship no more changed the definition of marriage than would an order foreclosing a state from declining to provide a particular opportunity to otherwise qualified members of the opposite sex. See United States v. Virginia. On the other hand, for a court to order that a state must extend the opportunity to enter into marriage to any combination of parties who desire it would take that court well beyond the judicial role contemplated by current equal protection doctrine.

To illustrate, consider this hypothetical situation: suppose in response to Obergefell the state of Pennsyltucky decided to get out of the marriage business altogether—in other words, suppose the state decided not to offer its citizens the opportunity to enter into any form of civil marriage. Could a court order the state to create that legal relationship, with all of the public and administrative costs associated with managing it? No more than a court could order a state to provide funds to allow aspiring but impoverished political candidates to run for office. It’s equally unlikely a court would order a state that currently offers its citizens the opportunity to enter into binary marriage—which is to say, every state under current law—to admit any number of parties to that relationship. Unlike the relief requested by the plaintiffs in Obergefell, such an order would in fact change the structural definition of marriage.

At bottom, multiple-party relationships simply aren’t the same as two-party relationships. The binary relationship—and not the genders of the parties to it—lies at the heart of marriage as the states have defined it today. Plural marriage may come, but it will be the result of legislative rather than judicial action.

Lawrence Friedman

August 5, 2015

Recent Supreme Court Term: The Supreme Court Openly Challenges Its Own Legacy


One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment.

The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”

As a tool of partisan accountability, the proposal shouldn’t work. Retention elections have been used at the state level for 75 years, and only in very rare instances—California in 1986, Iowa in 2010—have multiple justices on a single court lost retention elections in the wake of a politically controversial ruling. Citizen anger over controversial decisions generally does not translate into judges being kicked off the bench. Put another way, retention voters are assessing something more than mere case outcomes when determining whether to keep a judge in office.

This may seem surprising, given that politicians routinely try to rally their bases in reaction to Supreme Court decisions they disfavor. (Consider the left’s reaction to Citizens United or Heller, or the right’s reaction to Sebelius or Obergefell.) But ordinary voters don’t think like politicians. As I have documented here and here, to everyday citizens, a judge’s perceived commitment to a fair legal process is far more important than specific case outcomes. Voters will forgive a judge with whose rulings they disagree as long as those rulings appear to have been reached fairly and with respect for the court’s (often circumscribed) institutional role. Voters are less forgiving, however, when a judge appears to have intruded into the domain of the legislature, acted obnoxiously, or reached a decision that lacks a solid legal grounding.

Senator Cruz is a smart man, and he must know that voters assess judges differently than they do legislators or executives. So I doubt he is using retention merely as a conduit for channeling partisan anger. Quite the opposite: he appears to be counting on voters to assess the Justices on their commitment to procedural fairness and institutional humility, and to find that commitment lacking.

Unfortunately, in this regard the Supreme Court has not helped its own cause. The series of befuddling opinions in Obergefell v. Hodges nicely illustrates the problem. Justice Kennedy’s majority opinion on same-sex marriage was laden with soaring, poetic rhetoric about the profundity of marriage and the entitlement of all people to “equal dignity in the eyes of the law.” One is apt to agree with these sentiments as a matter of policy or even morality. But a constitutional exegesis demands something more. The Obergefell majority never cleanly and clearly explained why it was the province of the Supreme Court to accomplish what Congress and state legislatures might have (eventually) done themselves. Indeed, Obergefell was arguably far less grounded in the constitutional text than either of the equivalent efforts on same-sex marriage offered by the Iowa Supreme Court and Massachusetts Supreme Judicial Court years earlier. In doing so, the majority opened the door to criticisms that the Court had overstepped its institutional bounds.

The dissenting opinions subsequently pulled that door right off its hinges. The Chief Justice lamented, “The majority’s decision is an act of will, not legal judgment…. Just who do we think we are?” He went on: “Five lawyers have closed the debate and enacted their own view of marriage as a matter of constitutional law.” Justice Scalia went further, charging that the majority opinion “lack[ed] even a thin veneer of law” and ruling a “system of government that makes the People subordinate to a committee of nine unelected lawyers.” Justice Alito picked up the same theme, warning that the Constitution forbids “five unelected Justices from imposing their personal vision of liberty upon the American people.” Only Justice Thomas constrained his dissenting opinion to a legalist discussion about constitutional meaning.

As a debate over national policy or constitutional philosophy, the five Obergefell opinions make fascinating and important reading. As a vehicle for increasing, or even sustaining, the institutional legitimacy of the court, however, they are collectively a train wreck. Anyone who reads the majority opinion and suspects the court of moderately overstepping its institutional role will, upon reading the dissents, find a far more grievous critique. The Court, we are told, undermined the core of American democracy through unelected lawyers and (in Justice Scalia’s inimitable words) “judicial Putsch.” Even if one agrees with the outcome of the case (and I count myself among them), the internecine squabbling over institutional overreach is deeply unsettling. The majority could have worked harder to formulate an opinion that sounded less like public policy, and the dissenters could have made their points with far more responsible rhetorical flourish. No wonder Senator Cruz felt that the public might be ready for retention elections.

Thanks to the court’s self-flagellation, the Cruz proposal cannot be treated as mere pandering to his right-leaning base. Public respect for the judiciary is near a 15-year low, and allegations by the Justices that their own colleagues do not respect the rule of law cannot help. Those who want to see the Court regain its lost institutional legitimacy can only hope that the Justices recognize the damage that comes from their public dysfunction, and collectively work to repair it.

Jordan M. Singer

Recent Supreme Court Term: King v. Burwell


“The issue in this case is whether the Act’s [the Affordable Care Act] tax credits are available in States that have a Federal Exchange rather than a State Exchange.” King v. Burwell, 576 U.S. __ (2015) (p. 5). The Affordable Care Act (ACA) requires each state to create its own health insurance Exchange, however, if a state refuses to do so, then the Secretary of Health and Human Services (HHS) is authorized to “establish and operate such Exchange within the State.” Sec. 18041(c)(1).” (p. 5). Only sixteen States and the District of Columbia created their own Exchanges, while thirty-four States utilize the federal Exchange administered by the Department of Health and Human Services. (p. 6).

The tax credits, which are authorized by IRC sec. 36B, are allowed to “applicable taxpayers” who obtain health insurance through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care act….” (p. 5). The IRS addressed the availability of tax credits to individuals acquiring health insurance through an HHS Exchange by adopting the definition of “Exchange” as used in an HHS regulation, 45 CFR sec. 155.20, which provided that taxpayers are eligible for a tax credit if they are enrolled in an Exchange which serves the individual market, “regardless of whether the Exchange is established and operated by a State… or by HHS….” (p. 6).

In prior proceedings, the U.S. District Court for the Eastern District of Virginia granted the Defendants’ Motion to Dismiss, 997 F.Supp.2d 415 (2014), and the District Court judgment was affirmed by the U.S. Court of Appeals for the 4th Circuit, 759 F.3d 358 (2014).

Justice Roberts, who was joined by Justices Kennedy, Ginsberg, Breyer, Sotomayor, and Kagan, wrote the majority opinion, and held that tax credits for health insurance under IRC sec. 36B applied to individuals acquiring coverage on federal health insurance exchanges under the Affordable Care Act (ACA), even though sec. 36B states that the credits apply to insurance plans that are enrolled in through “an Exchange established by the State under [42 U.S.C. sec. 18031].” Justice Roberts’ reasoning was based on the ambiguity reflected in sec. 36B when it was interpreted in connection with other provisions of the ACA, and the manner in which those ambiguities were either consistent or inconsistent with Congress’ intent that the ACA expand health care coverage, and lower the cost of health insurance as a means of facilitating that expansion of coverage. The Congressional intent to expand health insurance coverage through the ACA would have been undermined if the sec. 36B tax credits were not applicable to individuals enrolled in health insurance plans through the federal exchanges.

Justice Roberts discussed the history of health reform in the United States and how states which instituted guaranteed issue, which required insurers to cover persons regardless of health status, and community rating, which restricted insurers from taking health status into account in setting premiums, ultimately led to “adverse selection,” which occurred when a person would only seek insurance once they became sick or in need of health care coverage. Because insurers were required to cover persons regardless of health status and could not take health status into account in setting premiums for specific insureds, they were forced to raise rates for all insureds in order to account for the higher health costs, increasing the cost of coverage and reducing the numbers of individuals who could afford coverage. Justice Roberts wrote that “This led to an economic “death spiral.” As premiums rose higher and higher, and the number of people buying insurance sank lower and lower, insurers began to leave the market entirely.” (p. 2).

Congress, relying on the Massachusetts health reform effort in 2006, included in the ACA a guaranteed issue and community rating component, but also included an individual mandate requiring most individuals to maintain health insurance coverage (either employer-provided, private coverage, or government-subsidized coverage), or pay a penalty. For individuals whose household income is between 100% and 400% of the federal poverty level income amount, they are eligible for a tax credit pursuant to IRC sec. 36B. The tax credit lowers the cost of health insurance for working class and middle class taxpayers, while the mandate brings into the health insurance pool more young and healthy persons (who would otherwise not obtain coverage) whose premiums subsidize the cost of coverage for sick and older persons under the ACA. ( p.4).

Justice Roberts, in discussing Congress’ awareness of the necessity of the individual mandate and the tax credit to the reform effort, writes: “These three reforms are closely intertwined. As noted, Congress found that the guaranteed issue and community rating requirements would not work without the coverage requirement. Sec. 18091(2)(I). And the coverage requirement would not work without the tax credits. “The reason is that, without the tax credits, the cost of buying insurance would exceed eight percent of income for a large number of individuals, which would exempt them from the coverage requirement. Given the relationship between these three reforms, the Act provided that they should take effect on the same day—January 1, 2014….” (p. 5).

Justice Roberts determined that due to the “economic and political significance” of the tax credits and their central role in the statutory scheme Congress created under the ACA, “It is especially unlikely that Congress would have delegated” to the IRS the authority to resolve any ambiguities with the tax credit under its regulatory authority without expressly doing so. He concludes that it is the Court’s, and not the IRS’s duty to determine the correct interpretation of sec. 36B. (p 8).

Justice Roberts’ analysis first finds that the authority granted to the Secretary of HHS to “establish and operate such Exchange within the State,” pursuant to sec. 18041(c)(1) of the ACA, shows that the HHS exchanges and the state Exchanges under sec. 18031 “are equivalent” by virtue of HHS establishing “such Exchange” under 18041, or, that HHS is to establish “the same Exchange that the State was directed to establish under Section 18031.” (p. 9–10).

Justice Roberts then analyzes sec. 36B in context with other provisions of the ACA (sec. 18032 defining “qualified individual” and sec. 300gg-91(d)(21) defining “Exchange”) and determines that a federal Exchange may be considered as one “established by the State” in order for the federal Exchange to function consistently with those other provisions within the statutory scheme of the ACA, resulting in ambiguity in the interpretation of sec. 36B within the context of the ACA’s statutory scheme, as compared to a literal interpretation of “established by the State” under sec. 36B. (p. 10–13).

Applying the principle of statutory interpretation that “the words of a statute must be read in their context with a view to their place in the overall statutory scheme,” Justice Roberts concludes that a strict interpretation of sec. 36B must be rejected because “it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.” (p. 9, 15).

Justice Roberts holds that the sec. 36B tax credits are allowed for health insurance purchased on “any Exchange created under the Act.”

Justice Scalia wrote the dissenting opinion and was joined by Justices Thomas and Alito. Justice Scalia applies a literal interpretation of sec. 36B and concludes that the tax credits only apply to Exchanges established by the States, therefore, no tax credits are allowed for health insurance purchased on a federal Exchange. (p. 2).

In contrast to Justice Roberts’ broad-based ambiguity analysis, which relies on his interpretation of sec. 36B in the context of the purpose and design of the ACA and his conclusion that a literal interpretation of the statute would conflict with the ACA’s design and purpose, Justice Scalia focuses solely on the language of the statute itself in determining whether there is any ambiguity, and finding no ambiguity in the statutory language, concludes that there is no reason to consider the ACA’s purpose and design for the purpose of interpreting sec. 36B. (p. 13).

Justice Scalia suggests that the design of the ACA was intended to incentivize states to create and operate their own exchanges and that limiting the 36B tax credits to health insurance plans purchased on a state exchange was one means of encouraging states to create their own exchanges. (p. 15-16). In light of that suggestion, he finds that interpreting sec. 36B to allow tax credits for health insurance purchased on a federal Exchange eliminates any need on the part of the state to create its own Exchange since the tax credit will be available on a federal Exchange. (p. 16).

Justice Scalia also states that the majority, rather than interpreting sec. 36B is actually rewriting the statute, which is a duty belonging to Congress.

Discussion

This case, at its most basic level, is a statutory interpretation dispute. The lower courts which decided this case came to the same judgment as the Supreme Court, but each with slightly different reasoning.

Justice Roberts’ opinion applies a broad and policy-based analysis of both the legislative intent and design of the ACA in order to determine not only how the health insurance Exchanges were intended to operate, but also as a means of determining which interpretation of sec. 36B was most consistent with Congress’ purpose and design for the ACA.

Justice Scalia applied a more limited analysis, focusing solely on the statutory language of sec. 36B, and finding no ambiguity in the statute itself, determined that there was no need to analyze the purpose and the design of the ACA in interpreting the statutory language.

Justice Scalia’s criticism that the Court is rewriting the statute, not interpreting it, is very interesting. I think that your conclusion as to whether the Court is interpreting sec. 36B, or rewriting it, depends upon whether you agree with Justice Roberts’ or Justice Scalia’s approach in determining and analyzing statutory ambiguity. In light of the complex design and interlocking provisions of the ACA, and the need to analyze sec. 36B in the context of those aspects of the law in order to fully comprehend how it fit within the statutory scheme, Justice Roberts, as well as the lower courts, decided the case correctly.

Wilton B. Hyman

July 24, 2015

Recent Supreme Court Term: Obergefell v. Hodges: Equality and Constitutional Interpretation


On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges. The Court held unconstitutional, by a 5-4 vote, state laws that limit marriage to heterosexual couples. According to the Court, these limits violate both the Due Process and Equal Protection clauses of the 14th Amendment.

Justice Kennedy’s opinion for the Court focuses on the crucial role that marriage, as a component of the liberty protected by the Due Process clause, plays both in individuals’ lives and in structuring society.  Denying same sex-couples the opportunity to marry not only affects what type of society we live in, but also impoverishes the lives of a particular group of people in society. According to the Court, individuals define themselves through marriage. In addition, through marriage they access other “freedoms, such as expression, intimacy, and spirituality.” (p. 13) Marriage is also a means for individuals to achieve the “highest ideals of love, fidelity, devotion, sacrifice, and family.” (p. 28) Furthermore, children in same-sex families are injured by having to endure the stigma of familial inferiority as a result of the non-recognition of their parents’ marriages. (p. 15)

Each of the four dissents objects to the majority’s conclusion that there is a violation of the Due Process clause. The dissenting justices argue that Justice Kennedy’s reasons for finding that same-sex couples have a protected fundamental right to marry are matters of policy and that the state legislatures, not the U.S. Supreme Court, should decide what policies are best for the people and society overall. The Chief Justice’s dissent, for example, does not deny that there is a fundamental right to marry; instead the Chief Justice argues that this fundamental right applies only to heterosexual couples because “the core definition of marriage … [is]the union of a man and a woman.” (pp. 8 and 16.) This “core” meaning of the fundamental right of marriage is “deeply rooted in this Nation’s history and tradition.” Constraints on the definition of constitutionally protected rights keep the courts from legislating.

The majority and the dissents all recognize that the terms “liberty” and “marriage” must be interpreted. Unconstrained interpretation is problematic because it is difficult to distinguish from the act of legislating. Nonetheless, courts must interpret the words of a text, including a constitution. To be legitimate within our system, judicial interpretations must be bounded by an accepted and acceptable structure. The Court and the dissents disagree on what this structure is.

The Chief Justice’s dissent searches for a “core” meaning of marriage as a means of avoiding excessive interpretation. However, as the Court notes, the institution of marriage has changed dramatically over time. Different “core” meanings can be identified at different moments in time, space, and society. As Justice Kennedy wrote in his opinion for the Court, the doctrine of coverture was critical to the meaning of marriage in the early 19th century. At the time, a married woman’s husband could have determined where she would live, whether she could enter any particular contract, and how to employ any assets she may have owned upon marriage. He could also decide whether to force sexual relations on her and under what circumstances to discipline her physically or otherwise. In short, the central feature of her marriage might have been her subordination to her husband, not the fact that he was sexually male. The Chief Justice’s definition of marriage as based on heterosexuality is a choice among many central definitions of marriage.

The Court’s definition of marriage relies on a different set of concepts to constrain its interpretation: individual autonomy, intimacy and expression; the fundamental role that marriage plays in promoting child development and in structuring society; and the importance of equality as also articulated in the 14th Amendment.

For many decades, equality has had a critical function in identifying the proper role for courts in interpreting the constitutionality of majoritarian legislation. In our democratic system the courts protect minorities from oppression by the majority. (p. 24) See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) As the Court’s opinion notes, the ideas behind the Equal Protection clause reinforce the liberties protected by Due Process; restricting marriage to heterosexuals would have the effect of “diminish[ing] the personhood” of members of same-sex couples. (p. 19) Similarly, in U.S. v. Windsor, the Court highlighted the humiliation and financial harm to children in same-sex families when their parents’ marriages are not recognized by the federal government. This role of protecting minorities against harm done by the majority has been central to the role of the Court.

Since they cannot avoid interpretation, courts must identify the principles to guide their interpretations. In Obergefell, the Court chose protection of the members of a minority group against the demeaning life the legislative majority would have allowed them, a life determined by 19th century understandings of marriage.

The process of identifying the parameters for constitutional interpretation is one of the most important functions of courts and lawyers. The fact that it is subject to vigorous debate and is likely to continue to be so is healthy for our democracy.

Judith G. Greenberg

Recent Supreme Court Term: Zivotofsky v. Kerry


In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches.

Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.

Enter Congress, which in 2002 passed Section 214 of the Foreign Relations Authorization Act titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” As this title suggests, Section 214 directed the Secretary of State to register the place of birth as Israel on registration of birth documents, certification of nationality, and passports for any U.S. citizen born in Jerusalem upon the request of the citizen or the citizen’s legal guardian. Section 214 was clearly intended to countermand the directives of the executive with respect to citizens born in Jerusalem.

The Court framed the clear conflict between the President and Congress in broad terms: 1. Whether the President has the exclusive power to grant formal recognition to a foreign sovereign? 2. If he has that power, can Congress command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition? In an opinion by Justice Kennedy the Court answered yes to the first question and no to the second.

The Court began its analysis by referring to Justice Jackson’s taxonomy in Youngstown Sheet and Tube Co. v. Sawyer, noting that this is a case where the President’s power is at its “lowest ebb” because he is acting in direct contravention of Congress, and thus he can rely solely on the powers the Constitution grants to him alone. However, the Constitution is silent as to whether or which branch has exclusive authority to recognize another sovereign. In fact, the Constitution does not mention the term “recognition” at all.

Unable to rely on the text, Justice Kennedy opts for a structural and, ultimately, a pragmatic approach to answer these questions. He notes that the Reception Clause in Article II directs the President to receive ambassadors and other public ministers. According to Justice Kennedy, that sounds a lot like recognition authority. Justice Kennedy goes on to list a number of other foreign affairs powers the Constitution vests in the President, such as making treaties and appointing ambassadors and other public ministers. Even though these treaty-making and appointments powers require senatorial consent, it is enough for Justice Kennedy that each is dependent on Presidential power. It is the President who must initiate the process. From this arguably thin reed, Justice Kennedy concludes that the President has the power to grant formal recognition to a foreign sovereign.

Justice Kennedy’s pragmatism is in full view as he goes on to address the second question, whether Congress can command the President and his Secretary of State to contradict his earlier recognition. Here the Court answers no; the President’s power is exclusive. This, according to the Court, is for the simple and obvious reason that the Nation must speak with one voice on the matter of recognizing a foreign sovereign. If the President is to be effective in negotiations over a formal recognition determination, it must be evident that he speaks for the Nation.

The conservative wing of the Court dissented in Zivotofsky. In the most scathing criticism, Justice Scalia questions whether the President’s recognition power is exclusive, but more to the point, he contends Section 214 has nothing to do with recognition of foreign sovereigns. Section 214, Justice Scalia argues, performs the much more prosaic function of allowing citizens some say in what their Government says about another country’s boarders in citizenship documents. Because citizenship documents are matters within Congress’s control, Congress has the authority to direct what those documents say.

It remains to be seen if this case will have longer-term impacts beyond its rather narrow facts. However, because the Court does not wade into this area very often, it is likely that courts, advocates, and commentators will turn to this case in support of various arguments over presidential and congressional authority. Some particular points of note are that that in this case the President argued for a much broader grant of authority. Citing to the 1936 case United States v. Curtiss-Wright, the Secretary of State contended that the President has exclusive authority to conduct diplomatic relations along with the “bulk of foreign-affairs powers.” The Court declined to read Curtiss-Wright so broadly, suggesting that too oft-cited language from that case that the President is the “sole organ of the federal government in the field of international affairs” is dicta.

Also interesting is that a majority of the Court did find express and exclusive executive power absent any clear language in the Constitution. The means by which the Court found this power in the constitutional structure and the Court’s pragmatic view of how a government must function is likely to provide a road-map for future foreign affairs and national security cases where the demarcation between the President’s and Congress’s power is vague.

Finally, in reaching its decision the Court noted that the President needs exclusive recognition power in order to be effective. If the Court believes that effectiveness is the touchstone of exclusive executive authority granted by the Constitution, than Zivotofsky is truly a blockbuster case and one that the executive will cite for generations to come in order to maximize its authority. I suspect that the Court will be forced to clarify and perhaps narrow this rationale in some future case, but time will tell.

Victor M. Hansen

Recent Supreme Court Term: Los Angeles v. Patel


Students in constitutional law come to learn what seasoned constitutional lawyers know: many cases implicating the Constitution do not turn on the document’s text. Which is not to say the text isn’t important, just that, in certain areas of constitutional law, the doctrinal tests the court has devised to implement textual commands often take precedence over the words themselves. Consider the Fourth Amendment, as demonstrated by the recent decision in Los Angeles v. Patel, involving the scope of protection afforded business records.

The case concerned a challenge to a Los Angeles ordinance that compelled hotel operators to keep records containing specified information provided by guests, and to make these records available to police officers “for inspection” on demand. The law made the failure to make the records available for inspection punishable by up to six months in jail and a $1,000 fine.

Writing for the majority, Justice Sotomayor concluded the law was unconstitutional under the Court’s Fourth Amendment jurisprudence. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and states that “no Warrants shall issue, but upon probable cause.” The Court has long interpreted this provision to mean that, absent a warrant based upon probable cause as determined by a neutral decisionmaker, a search will be deemed unreasonable. There is an exception to this rule for administrative searches, such as those contemplated by the Los Angeles law.

For an administrative search to be constitutional, Sotomayor explained, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Absent this opportunity, searches under the ordinance potentially could exceed statutory limits or become tools for harassment. An opportunity to obtain such review is a minimal protection—there would be no need for probable cause to search—and, Sotomayor concluded, could be provided without “imposing onerous burdens on those charged with an administrative scheme’s enforcement.” She also noted that searches authorized by the Los Angeles law did not fall within the narrow category that involve closely regulated businesses, in which the government need not afford any opportunity to object to the search.

In dissent, Justice Scalia would have none of it. He argued that “[t]he Court reaches its wrongheaded conclusion not simply by misapplying … precedent, but by mistaking … precedent for the Fourth Amendment itself.” The only constitutional question, in his view, was “whether the challenged search [was] reasonable.” He concluded, “the limited warrantless searches authorized by Los Angeles’s ordinance [were] reasonable under the circumstances” because, in large part, hotels are “closely regulated businesses.”

Scalia’s approach to the Fourth Amendment begs a question: what does it mean for a search to be constitutionally reasonable?

The constitutional text, of course, does not define reasonableness. And so—as noted above—the Court has held a search as reasonable if it is supported by a warrant based upon probable cause. This is the default rule.

But this is not the only way to implement the reasonableness requirement. Professor Tom Clancy has concluded that the Framers likely understood “reasonableness” to require government agents to have a reason to search a particular person or place. (See The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEMPHIS. L. REV. 483 (1995)). This is in contrast to the regime authorized under the Los Angeles ordinance, which permitted law enforcement to search hotel records arbitrarily—and, as the Court noted, as “a pretext to harass business owners.”

We should prefer an approach to reasonableness that will not work to diminish the scope of the Fourth Amendment’s commitment to privacy. An understanding that search regimes need only be reasonable, in a rational-basis way—as suggested in Scalia’s dissenting opinion—eventually will undermine that commitment. For the scope of this kind of reasonableness could be quite elastic—if arbitrary records searches are reasonable in the context of hotels, why not in the context of any business where members of the public may congregate? Or any business, like hotels, that is subject to generally applicable regulations?

At bottom, there is an important difference between viewing a rule as essentially reasonable simply because it serves a legitimate government interest—in Patel, deterring criminals from operating on hotel premises—and viewing it as essentially unreasonable because, regardless of its salutary purpose, it allows police to search indiscriminately. Judges are understandably reluctant to critically review legislative rules under the former approach, while the latter gives them an objective and consistent basis upon which to ensure that the constitutional protection of privacy is not diminished to a point of irrelevance.

Regulation of hotels is important and the deterrence of criminal activity arguably more so. Under the Fourth Amendment, courts should not allow privacy interests—including those of businesses—to be sacrificed in an effort to achieve either.

Lawrence Friedman

May 5, 2015

Why You Should be Interested in Trusts and Estates Law

Suppose that S, scion of a prominent wealthy family but a bit of a ne’er do well, drunkenly and negligently wrecks his car, causing severe injury to innocent victim, V. V sues and wins a judgment against S, who is the beneficiary of a trust worth millions of dollars. Is V likely to collect on this judgment?

Not against the trust. Although S continues to benefit from the trust, the document that created it contains a “spendthrift clause.” Under the widely adopted Uniform Trust Code (UTC), a few simple words in the trust document numinously protect its corpus from claims of almost all third parties, including tort victims.

Should you be interested in trusts and estates law? Recently, two prominent economists weighed in on a similar query with regard to economics. Ha-Joon Chang’s 2014 book, Economics: The User’s Guide,  encouraged his readers to develop some facility with economic questions, the answers to most of which depend on the application of moral values and political views. His point was that when non-economists fail to engage economic questions, we get solutions skewed to the political biases of a handful of economists.

Likewise, French economist Thomas Piketty warned  that “the distribution of wealth is too important an issue to be left to economists, sociologists, historians, and philosophers.” Instead, he urged, everyone should be interested and involved. Piketty reported that inherited wealth accounted for at least 50–60% of total private capital in the United States in the late twentieth century and accounts for a much larger share today.

As in economics, moral and political values decide many questions about our laws governing inheritance. And if inheritance stands to play an increasing role in who gets what, as Piketty claims it will, questions of inheritance are crucial in determining how our resources are allocated.

Upton Sinclair wrote that it’s “difficult to get a man to understand something, when his salary depends on his not understanding it.”  Contemporary psychological studies confirm that what is now called “motivated reasoning” pervades our decision-making process. Rare is the person who adopts a political perspective or moral view that runs counter to his or her own livelihood. Trusts and estates lawyers make their living helping families hold onto their wealth across generations, meaning they are likely to be biased on questions regarding inheritance. Their vested interest runs towards ensuring entrenchment, rather than disbursement, of wealth. And they have outsized influence on the substance of inheritance law because they are motivated to give it their attention.

Let’s revisit S, the wealthy young man who negligently injured V. After V wins her judgment, Lawyer L defends S’s trust interest against V’s attempt to levy against it, but remains unpaid after billing S many times for his legal work. Fed up, L goes to court and gets a judgment against S for his fees. Is L likely to collect against the assets of the trust? Yes, because while the UTC shields the assets of the trust from almost all creditors’ claims, making it impenetrable by V, it opens the door to “a judgment creditor who has provided services for the protection of a beneficiary’s interest in the trust.”  Meanwhile, V remains uncompensated for her injuries.

Kent Schenkel

April 22, 2015

Creeping Doctrines / Shifting Fees


Too often the catch-all term “intellectual property”— useful in describing practitioner specialty areas, law school courses, and text books, among other things— serves a subtly insidious function. It suggests that those discrete bodies of law which it encompasses—roughly, copyright, trademark, patent, and trade secret law—have fundamental commonality. Not only, it implies, do those legal areas overlap, but more critically that those overlaps somehow count for more than any divergences.

This has a real effect on the development of the law. Courts are quick to presume that a rule applicable to one area of intellectual property ought to apply to all. The burden, it seems, is on one challenging such an extension to show why a given area of law, say trademark law, is distinct enough from another, such as patent law, so that a rule for one should not apply to another. The courts, for instance, over the past decade worked to extend a rule from a 2006 patent case that denies prevailing patent infringement plaintiffs entitlement to injunctive relief (eBay Inc v. MercExchange) to copyright and trademark law. We are now seeing that process inexorably repeat itself with respect to statutory fee-shifting.

To be sure, there is a clear, natural and forceful argument as to why the fee-shifting rules for patent law ought to be the same as those in trademark law. To start with, federal trademark law’s Lanham Act and the U.S. Patent Act contain identical statutory fee-shifting language. Namely, “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” When the Lanham Act was amended in the 1970s to add this provision, moreover, the Senate committee proposing the change made clear that it was intending to make trademark law more like patent law (which had operated under such language since the 1950s).

This apparently deliberate act of statutory duplication has led two appellate courts recently to conclude, with relative ease, that the two provisions should be interpreted in the same way. More specifically, both suggested (one in a holding last fall and one in dicta a little over two weeks ago) that the U.S. Supreme Court’s recent clarification of the meaning of the statutory language in the Patent Act in Octane Fitness, LLC v. INCO Health & Fitness, Inc., ought to apply with equal force to the Lanham Act. See, respectively, Fair Wind Sailing, Inc. v. Dempster and Slep-Tone Entertainment Corp. v. Karaoke Kandy Store, Inc. The Supreme Court itself appeared to telegraph the propriety of such as result when it cited, in its Octane opinion, a trademark case and noted the “identical” nature of the two provisions.

The issue, though, is hardly as straightforward as these courts make it seem. There remain strong contrary arguments against conflating the two standards. Although it is of course a rule of statutory interpretation that similar language should be construed in a similar way, “pari passu,” that rule is usually coupled with the limitation that it applies to statutes enacted “for the same purpose.” The primary purposes of the Lanham Act are to make consumer purchasing decisions easier and safer by insuring the integrity of brand information in the marketplace and to protect brand good-will from misappropriation (i.e., to protect consumers and brands). The primary purpose of the Patent Act, by stark contrast, is to encourage the creation and disclosure of new inventions by granting exclusive rights for limited times to inventors (i.e., to incentivize innovative activity). As a direct consequence of these differing purposes, for well over a century the U.S. Supreme Court has held that the foundational Patent and Copyright Clause of the U.S. Constitution, Article I, Section 8, Clause 8, does not apply to trademark law.

Second, Octane was decided in an atmosphere steeped in the purported problem of patent trolls—those much-maligned entities alleged to assert frivolous patent claims without actually making or selling patented products, while often engaging in litigation misconduct. In rejecting the stingy objective baselessness and frivolity standards previously used by the Federal Circuit for awarding attorney’s fees, the Octane decision opened the door to more opportunities for prevailing defendants to receive attorney’s fees. This should, in the words of Octane, deter a patent plaintiff from bringing a borderline case that “stands out from others with respect to the substantive strength of a party’s litigating position” or litigating them in an “unreasonable manner.” Octane itself, for instance, was a case where a prevailing defendant claimed a right to attorney’s fees against a losing patent-owning plaintiff that had asserted a weak patent infringement claim.

Trademark law, though, has had nothing close to the “troll” problems faced by patent or even copyright law because it contains built-in checks against trolling. A trademark infringement plaintiff must actually use its trademark to have rights in it, and must show a likelihood of confusion in a real marketplace to prevail on its claim.

Consistent with this view, the (remarkably terse) legislative history of the fee-shifting amendments to the Lanham Act makes clear that they were designed firstly to aid prevailing plaintiffs seeking attorney’s fees against counterfeiting defendants. In fact, the Senate Report contains a definition of “exceptional cases” that defines the term using language only relevant to losing defendants (“i.e., in infringement cases where the acts of infringement can be characterized as ‘malicious,’ ‘fraudulent,’ ‘deliberate,’ or ‘willful.’”). Although the statutory language clearly applies to prevailing parties of either stripe, this legislative emphasis on preventing counterfeiting by trademark defendants at a minimum counsels against knee-jerk extensions of a rule designed to reign in patent plaintiffs.

All of this is not meant to suggest that there aren’t good reasons for applying the Octane standard to trademark cases. Some might even suggest that general civil litigation in the U.S. would benefit from giving district courts more discretion to award attorney’s fees to all prevailing parties. But it does counsel against an all-to-easy rush to superimpose patent or copyright law rules onto trademark law. All three may be forms of “intellectual property,” but hopefully courts considering the issue (such as the United States District Court for the Northern District of Ohio as it picks up the Slep-Tone case on remand) will not make the mistake of presuming that what is good law for one must be so for the others.

Peter Karol









April 21, 2015

Memory Battles and National Human Rights Trials

This post originally appeared on the IntLawGrrls blog, available here.

I teach transitional justice at New England Law | Boston, and this past week I began the unit on national human rights trials. This topic is one of my favorites due largely to my experience observing national human rights trials like that of former Peruvian President Alberto Fujimori and former Guatemalan leader José Efraín Ríos Montt. Fujimori is currently serving a twenty-five year sentence in Peru for his role in serious human rights crimes during the 1990s while president; while Ríos Montt has been under house arrest awaiting the resumption of his trial since 2013, when the Guatemalan Constitutional Court pointed to procedural errors as a reason to annul his conviction for crimes against humanity and genocide for his role in massacres of indigenous communities in 1982–83.

While observing both trials, I was fascinated by the media coverage of these proceedings and how the local coverage of these historical trials impacted public debates outside of the courtroom. My own research and writing on this topic seeks to respond to the fact that, generally speaking, we often forget the important role of media in transmitting the content of human rights trials although it can dramatically influence the overall transitional justice process.

In my recent article, “Memory Battles: Guatemala’s Public Debates and the Genocide Trial of José Efraín Ríos Montt,” I conducted a systematic evaluation of news reports and opinion pieces from local news outlets to study the nuances of Guatemala’s debate over whether or not the country had suffered a genocide. What I discovered was a “memory battle” about interpretations of the past war. Based on these findings, I challenge the idea that transitional justice mechanisms will naturally lead to a collective memory that results in a widespread societal condemnation of human rights violations. Instead, I draw from the field of memory studies to debunk the assumption that there is a smooth path towards a national narrative about atrocity. Different societal actors accompany the transitional justice process, actively and purposefully seeking to use judicial and non-judicial justice mechanisms to construct public memories that fit within their own interpretations and political agendas resulting in many contested versions of the past.

This situation presents a paradox for transitional justice advocates: on the one hand, tolerating expression of different interpretations and opinions of the past promotes the ideals of democracy. However, when versions of the past justify or explain away atrocity, they challenge the political project of building a culture of rights and the rule of law. I decided to examine how this paradox plays out when a transitional justice project includes national criminal trials given that most scholarship focuses more directly on the relationship between truth commissions and memory. I found that, up until now, scholars often wrote about memory and trials based on theoretical speculations as opposed to empirical research. This narrow focus can best be explained by the fact that transitional justice evolved as a response to the inability or unwillingness to conduct criminal trials, a trend that has begun to change only in the last decade with a rise in national human rights trials especially in Latin America.

I conclude my article by arguing that a country’s long-term interpretation of its past, and its agenda for the future, depends on which camp of memory-makers in a transitional justice setting wins this memory battle. It is my position that a collective memory is the first step towards cultivating its collective consciousness, which leads to a conscience that can influence how its members buy into this culture of rights, accountability, equality, and other essential attributes to sustainable peace. Importantly, it is often the nature of the memory making process itself, as opposed to a final memory product that predicts the outcome of memory surrounding national human rights trials.

Based on my close study of the media and memory-making in transitional justice settings, I strongly recommend that any new transitional justice project should consciously contemplate the role of memory production in its design and implementation.

Lisa J. Laplante

April 2, 2015

Texas v. United States

Judicial opinions are written to persuade. Perhaps this is the reason why Judge Hanen’s opinion in Texas v. United States resorts to truncated arguments, neglecting to discuss the opposing position. Furthermore, nowhere in the opinion does the judge indicate the devastating effect that the opinion will have on the people involved. Instead of focusing on the families that are at risk of being ripped apart through deportation as a result of his decision, Judge Hanen portrays the battle as an abstract political one between states that “bear the brunt of illegal immigration” while the (incompetent?) “powers that be” in the capitol are “rubberstamp[ing]” applications to avoid deportation or giving them only a “pro forma review.” No matter how long an opinion is—and this one is more than 120 pages long—it will sound polemical instead of persuasive if it does not recognize the other side’s arguments.

Among other things, Judge Hanen’s opinion holds illegal the decision by Jeh Johnson, Secretary of the Department of Homeland Security, to limit removal actions against some parents of citizens and permanent residents. The United States had claimed that this decision was not subject to judicial review under the federal Administrative Procedure Act on the grounds that it was a discretionary prosecutorial decision. Judge Hanen disagreed, holding that it was reviewable because, among other things, the statute used the term “shall” in relation to deportation instead of “may.” The judge’s handling of this one small point—the interpretation of “shall” in the statute—is illustrative of his failure to voice the United States’ argument in any but the weakest way. Similarly, his reluctance, in discussing this point, to recognize what is at stake for the families involved may show his fear that doing so would make the reader less sympathetic to his position.

This is certainly not the first time that a court has had to interpret a statutory instruction expressed through the word “shall.” The United States Supreme Court took up the issue in Town of Castle Rock v. Gonzales, holding that the statute there, which said that the local police department “shall arrest” those who violated domestic violence restraining orders, gave the local police discretion as to whether to arrest or not. Judge Hanen’s failure to deal with this case or with similar cases shows his effort to persuade through blunt assertion instead of through legal analysis.

Justice Scalia, writing for the Court in Castle Rock, denied that a mandatory arrest statute requires the police to make arrests for domestic violence restraining order violations. Instead, he said, “We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory.” (Emphasis in the original). He followed this with a lengthy discussion showing that police discretion to arrest has long “coexisted” with statutory mandatory arrest language. He also questioned how mandatory arrest would work in a setting, like plaintiff Gonzales’s, in which the person violating the restraining order is not present. Scalia’s point is that the statute cannot mean what it says because it would not be workable in that form. Furthermore, he engaged directly with the dissenting Justices’ position that other states have found mandatory arrest statutes in the context of domestic violence to be “more mandatory” than in other contexts.

In contrast, Judge Hanen in Texas v. United States paid only very quick lip service to the fact that some interpret “shall” as “may” before concluding that “shall” in the applicable statute is “imperative” and deprives the Department of the “right to do something that is clearly contrary to Congress’ intent.” There is no mention of Castle Rock or of any other similar case, except for one low-level Board of Immigration Appeals (BIA) decision. The implication is that this position is not worth considering. This is confusing since immediately prior to this conclusion, he wrote that “DHS does have the discretion . . . to determine how it will effectuate its statutory duty and use its resources where they will do the most to achieve the goals expressed by Congress.” Given this, one would have thought the interpretation of “shall” would be a more complicated problem for him. What comes through to the reader from Judge Hanen’s very brief analysis is that he is upset that the government has announced that it will not enforce the removal laws against “a class of millions of individuals” despite the unmentioned fact that it is continuing to enforce them—at what many consider to be the highest rate ever—against others.

Similarly, Justice Scalia in his opinion in Castle Rock recognized the powerful effect that his reading of the statute would have on powerless members of our society. It took him several paragraphs to recount the story of the abduction and murder of Gonzales’s children by her ex-husband who violated a restraining order; Scalia also detailed the police’s delaying tactics and refusal to do anything about the violation. This opinion, too, is written to persuade, but the sympathetic portrayal of the harm done by the failure to arrest helps to convince the reader that Scalia was aware of the horrific pain inflicted. In contrast, the reader of Texas v. United States does not have any reason to believe that Judge Hanen understood the devastating pain that could be inflicted by tearing families apart. His lack of empathy for the victims of his approach makes the opinion sound even more one-sided than it might otherwise.

It is this anxiety to persuade through a one-sided approach and the unwillingness to admit to the harm done by the decision’s result that hopefully will be remedied on appeal, regardless of the ultimate outcome.

Judith G. Greenberg