Opinion

Opinion analysis: Court orders do-over on citizenship question in census case (Updated)

June 28, 2019 by admin Leave a Comment

Editor’s Note: This post, originally published at 12:49 p.m., was expanded at 5:48 p.m.

The fate of a question about citizenship on the 2020 census remains up in the air today. Although the Trump administration had hoped that the Supreme Court would clear the way for it to include such a question, the justices instead sent the issue back to the Department of Commerce. In a deeply fractured opinion, Chief Justice John Roberts joined the court’s four liberal justices in ruling that the justification that the government offered at the time for including the citizenship question was just a pretext. The decision left open the possibility that the Trump administration could try again to add the citizenship question, but the clock is ticking: The government has repeatedly told the justices, in urging them to resolve the case quickly, that it needs to finalize the census questionnaire by the end of this month.

Chief Justice Roberts announces opinion in Department of Commerce v. New York (Art Lien)

The dispute began last year, when Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship. Questions about citizenship have been used on the census before, although since 1950 such questions have only been asked on forms that go to some (but not all) households. The government wanted to ask everyone about their citizenship on the 2020 census, Ross explained, to obtain data that would help the Department of Justice to better enforce federal voting-rights laws.

Ross’ announcement drew an immediate legal challenge from New York and other state and local governments, as well as immigrants’ rights groups. The challengers contended that including a question about citizenship on the census will lead to inaccurate results, because households with undocumented or Hispanic immigrants won’t respond. And that, they argued, could lead states with large immigrant populations – which tend to lean Democratic – to lose billions in federal funding and possible even seats in the U.S. House of Representatives.

With the stakes so high, the dispute proved to be a particularly contentious one. The government came to the Supreme Court for the first time last fall, asking the justices to block the depositions of Ross and John Gore, a senior official in the Department of Justice, and to bar the district court from allowing additional fact-finding outside the official record for the decision. The Supreme Court gave the government a partial victory, barring the challengers from deposing Ross but allowing the deposition of Gore and the additional fact-finding.

In November 2018, the justices agreed to weigh in on the clash over evidence. But that case was transformed into a review of the merits of the dispute after a federal district judge in New York blocked the government from including the question. Judge Jesse Furman ruled that, in deciding to include a question about citizenship, Ross had committed a “smorgasbord of classic, clear-cut violations” of the federal law governing administrative agencies.

The government appealed directly to the Supreme Court, urging the justices to take up the case immediately – without requiring the government to first seek relief from a federal appeals court. Time is of the essence, the government told the justices: It needs to know whether it can include the citizenship question by the end of June, so that it can finalize the census questionnaire and start to print the forms.

The justices granted the government’s request in February. In addition to the question of whether Ross’ decision complied with federal laws governing administrative agencies, the justices also asked the federal government and the challengers to brief whether the decision to include the citizenship question violates the Constitution, which requires an “actual Enumeration” of the U.S. population every 10 years. The addition came after a federal judge in California ruled that the use of the citizenship question also violates the “enumeration clause”; the government wanted to avoid a scenario in which it prevailed in the Supreme Court but was nonetheless prohibited from including the citizenship question by a different lower-court ruling on an issue that the Supreme Court hadn’t addressed.

The justices heard oral argument in the case in late April. Although most cases are quiet after oral argument, the oral argument in this one was followed by a series of events worthy of a made-for-TV movie. In late May, the challengers notified the justices about new evidence indicating that Thomas Hofeller, a Republican redistricting strategist, had played a key role in the decision to add the citizenship question to the census, and that the question had been added to provide whites and Republicans with an advantage in future elections. The evidence came from several hard drives that Hofeller’s estranged daughter had found while going through his things after his death last year. Stephanie Hofeller had shared the hard drives with the North Carolina chapter of the watchdog group Common Cause, which is involved in a partisan-gerrymandering case in that state, after she called the group seeking a recommendation for a lawyer for her mother.

The challengers returned to the Supreme Court last week. Emphasizing that the district court had agreed that the new allegations were “serious” but concluded that its hands were tied because the case is now before the justices, the challengers told the Supreme Court that it should either uphold the district court’s ruling or send the case back to the lower court for more fact-finding in light of the new revelations. The challengers argued that if the Trump administration actually wanted to add the citizenship question to give an advantage to whites and Republicans, that would be “the diametric opposite” of what the administration has maintained throughout this lawsuit.

The government pushed back, dismissing the challengers’ allegations as a “conspiracy theory” that was “implausible on its face” and urging the justices to go ahead and decide the case.

Things became even more interesting – and, for the justices, more complicated – earlier this week. On Tuesday, the U.S. Court of Appeals for the 4th Circuit sent another challenge to the use of the citizenship question back to a federal district court in Maryland so that the lower court could consider, in light of the new evidence, whether Ross had added the question because he intended to discriminate against Hispanics. In a concurring opinion, Judge James Wynn suggested that U.S. District Judge George Hazel might want to consider whether to temporarily block the government from including the citizenship question on the census questionnaire. The 4th Circuit’s order led to another flurry of last-minute filings in the Supreme Court. In a letter to the justices on Tuesday afternoon, the federal government again implored the justices to go ahead and resolve the dispute over the citizenship question now, including the question whether Ross had intended to discriminate against Hispanics. The government had addressed this issue in its brief in the Supreme Court, Solicitor General Noel Francisco stressed. And in any event, because the census questionnaire needs to be finalized by the end of June, the 4th Circuit’s order makes it likely that the justices will inevitably have to tackle this question one way or another, so it would be better to do so now in this case, instead of having to do it on an emergency basis in the Maryland case.

The challengers responded on Wednesday afternoon. In a letter from New York Solicitor General Barbara Underwood, they urged the justices to deny what they characterized as the government’s “extraordinary request” to decide the discrimination question now. Except for a “single conclusory paragraph” in the government’s brief, they emphasized, the issue wasn’t briefed or argued in the case in the Supreme Court.

It was no surprise that Chief Justice John Roberts wrote for the court in the case – both because of the magnitude of the ruling and because he had not yet written an opinion for April, when the case was argued. The court’s disposition of the case, however, proved more surprising – and took a few minutes to decipher, given the splintered nature of the decision.

Only the first parts of the ruling were unanimous. The first laid out the facts and procedural history of the case, while in the second part the justices agreed that at least some challengers have a legal right – known as “standing” – to bring their lawsuit. Some of the states in the lawsuit have shown, Roberts recounted, that if households with residents who are not U.S. citizens are undercounted by even two percent, they will lose federal funding. The justices rejected the government’s argument that such losses are too hypothetical, because they would only happen if those households choose not to comply with the legal duty to return their census questionnaires out of fear that the information will be used against them – which, the government says, is not its fault. But this theory isn’t just speculation, Roberts concluded: It “relies instead on the predictable effect of Government action on the decisions of third parties” and is therefore enough to allow the challengers to sue.

The court’s other conservative justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – joined the third part of the Roberts opinion, in which the court concluded that the decision to add the citizenship question did not run afoul of the enumeration clause. Whether the decision bears a “reasonable relationship” to getting an accurate headcount isn’t the right question to ask here, Roberts reasoned. Otherwise, the Census Bureau would never be able to ask any questions about demographics on the census, because none of those have anything to do with the number of people who live in the United States. Instead, Roberts noted, the court should look at the history of the census, and that history shows that all “three branches of Government have understood the Constitution to allow Congress, and by extension the Secretary, to use the census for more than simply counting the population,” and specifically for “information-gathering purposes.” Therefore, Roberts concluded, the enumeration clause “permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire.”

Six justices – all but Alito and Gorsuch – joined the next subsection of Roberts’ opinion, in which the court rejected the government’s contention that the Census Act gives Ross carte blanche – not subject to review by courts – to decide what questions to include on the census questionnaire. The court acknowledged that the Secretary of Commerce has significant latitude in formulating the questionnaire, but it emphasized that his discretion was not “unbounded.” The census is not a subject that has been “traditionally committed” to the discretion of the agency in charge; indeed, the court noted, courts have previously reviewed several challenges arising from decisions relating to the census.

Thomas, Alito, Gorsuch and Kavanaugh signed on to the next two parts of Roberts’ opinion. In the first, the court reversed two parts of the district court’s ruling that overturned Ross’ decision to add the citizenship question. Addressing the district court’s conclusion that the decision wasn’t supported by the evidence before Ross, because the Census Bureau had recommended that the citizenship data be gathered from administrative records instead, Roberts observed that neither approach was perfect, so it was reasonable for Ross to decide to use the citizenship question instead of the administrative records. And it was also reasonable for him to decide that it would be worth it to include the citizenship question even though that might result in a lower response rate from households with residents who are not U.S. citizens, Roberts suggested – particularly because Ross believed that the risk of a lower response rate was “difficult to assess.”

Roberts and his conservative colleagues also reversed the district court’s ruling that Ross’ decision violated provisions of the Census Act that require the Secretary of Commerce to use administrative records, rather than questions on the census, whenever possible and to inform Congress about his plans for the census. The court explained that, even if the provision about the administrative records applies, Ross reasonably concluded that administrative records would not “provide the more complete and accurate data that DOJ sought.” And although Ross did notify Congress about his plan to include the citizenship question, Roberts wrote, there was certainly no harm from any technical violation of the requirement because Ross “fully informed Congress of, and explained, his decision.”

Roberts and his conservative colleagues parted ways in the fifth and final – and ultimately dispositive – part of the court’s opinion. The district court had also ruled that Ross’ rationale for including the citizenship question – that the Department of Justice had asked for the data to better enforce federal voting-rights laws – was a pretext for its actual reasoning, and here Roberts, in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, agreed. “The evidence showed,” Roberts wrote, that Ross “was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.” Taking that evidence in its entirety, Roberts determined, “we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the” Voting Rights Act.

Roberts acknowledged that courts should be “deferential” when reviewing an agency’s action, but he countered – citing Judge Henry Friendly, for whom he clerked on the U.S. Court of Appeals for the 2nd Circuit – that “we are not required to exhibit a naiveté from which ordinary citizens are free.” And here, when “the evidence tells a story that does not match the explanation the Secretary gave for his decision,” judicial review calls for “something better than the explanation offered for the action taken in this case.” “In these unusual circumstances,” Roberts concluded, the district court was therefore correct to send the case back to the Department of Commerce for it to provide a better explanation. “Reasoned decisionmaking,” Roberts emphasized, “calls for an explanation for agency action. What was provided here was more of a distraction.”

Justice Clarence Thomas filed an opinion concurring in part and dissenting in part, which was joined by Gorsuch and Kavanaugh. In his view, the Supreme Court’s “only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision.” Because the “Court correctly answers these questions in the affirmative,” Thomas argued, that “ought to end our inquiry.”

Thomas warned that the court’s holding could have much broader implications for administrative law because it “reflects an unprecedented departure” from the court’s normal practice of deferring to discretionary decisions by federal agencies. “It is not difficult,” he posited, “for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives.” “Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes,” he cautioned.

The court’s four liberal justices joined Roberts in agreeing to send the case back to the Department of Commerce, but Justice Stephen Breyer also filed an opinion that was joined by Justice Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. They maintained that, even if Ross’ decision to add the citizenship question wasn’t pretextual, it still violated the federal laws governing administrative agencies because he decided to ask the question even though all of the evidence “indicated that asking the question would produce citizenship data that is less accurate, not more.” His failure to consider what Breyer characterized as “a severe risk of harmful consequences” “risked undermining public confidence in the integrity of our democratic system itself,” Breyer wrote.

Justice Samuel Alito also filed an opinion concurring in part and dissenting in part. He began by lamenting that it “is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision.” There is no dispute, he continued, that “it is important to know how many inhabitants of this country are citizens”; given that, he said, the best way to “gather this information is to ask for it in a census” – as the United Nations recommends. He would have ruled that the decision to add the citizenship question to the census fell within the discretion of the Department of Commerce and could not be challenged at all. He “put the point bluntly,” writing that the federal judiciary has “no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”

The Department of Justice did not tip its hand about its possible next steps. In a statement this afternoon, spokeswoman Kelly Laco indicated that the government was “disappointed” by the ruling but would “continue to defend this Administration’s lawful exercises of executive power.” President Donald Trump had a stronger reaction, tweeting that it seemed “totally ridiculous” that the citizenship question could not be used and indicating that he had asked “the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.” With the government’s June 30 deadline for finalizing the census questionnaire looming, we may know more about the government’s plans soon.

This post was originally published at Howe on the Court.

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Opinion analysis: No role for courts in partisan gerrymandering

June 27, 2019 by admin Leave a Comment

The Supreme Court issued a decision today that could have a significant and long-term effect on elections and legislatures across the country. By a vote of 5-4, the justices ruled that courts should stay out of disputes over partisan gerrymandering – that is, allegations that redistricting maps were drawn to favor one political party at another’s expense. The practice of partisan gerrymandering may be distasteful, the court concluded, but it is a problem that politicians and the political process, rather than courts, should solve.

Chief Justice Roberts announces opinions in Rucho v. Common Cause and Lamone v. Benisek (Art Lien)

The justices have struggled with the issue of partisan gerrymandering for years. Just last year, they sent two partisan-gerrymandering challenges – including an earlier iteration of the Maryland case – back to the lower courts without ruling on whether the maps were in fact the result of partisan gerrymandering. In one case, a challenge to the redistricting plan that Wisconsin’s Republican-controlled legislature drew for the state’s general assembly in 2011, the justices gave the plaintiffs another opportunity to show that they had a legal right, known as standing, to challenge the entire Wisconsin map. And in the Maryland case, the justices explained, the dispute was still in its early stages. Therefore, the question for the Supreme Court was not whether the district court’s decision allowing the state to use the current map for now was wrong, but instead was whether it was so wrong that it was unreasonable – which, the court concluded, it was not.

If the justices had hoped to push off a decision on partisan gerrymandering last term, they weren’t able to do so for long. In October 2018, a federal district court in Maryland held a trial to review the partisan-gerrymandering claims by the plaintiffs in that case, who are Republican voters challenging Maryland’s Sixth Congressional District, which begins in the outer suburbs of Washington, D.C., and stretches north and west to the state’s borders with Pennsylvania and West Virginia. The voters contend that, after the 2010 census, Democratic election officials only needed to make relatively minimal changes to the district. Instead, they emphasize, state officials moved out nearly 70,000 Republicans and moved in 24,000 Democratic voters, transforming the district from one where the Republican incumbent had won by a margin of 28 percent in 2010 to one in which he lost to a Democrat (and current presidential candidate), John Delaney, by a margin of 21 percent. The officials made this change, the voters argue, to retaliate against them for their support of Republicans, which violated the First Amendment.

The district court agreed with the Maryland challengers and ordered the state to draw a new map for the 2020 election. Maryland’s Democratic attorney general appealed the ruling to the Supreme Court last winter.

At just a few months before that, Republican legislators in North Carolina had asked the justices to review a ruling by a federal district court there invalidating the state’s 2016 congressional map, which was drawn by the Republican-controlled legislature. The district court ruled that the map was an unconstitutional partisan gerrymander and blocked the state from using the map after the 2018 election.

In January, the Supreme Court announced that it would take up both the North Carolina and the Maryland appeals, and it heard oral arguments in March. Today a divided court sent both cases back to the lower courts, with instructions to dismiss them because the courts lack the power to consider the challengers’ claims.

In his opinion for the court, Chief Justice John Roberts explained that partisan-gerrymandering claims pose particularly difficult problems for courts because it is well settled that legislatures can consider politics when drawing district maps. The question that courts would have to decide is when the consideration of politics has gone too far and violates the Constitution. But there’s no requirement, Roberts wrote, that a party’s representation in a congressional delegation or state legislature reflect its share of the statewide vote – a concept known as proportional representation.

Instead, Roberts emphasized, what plaintiffs in partisan-gerrymandering cases are asking courts to decide is what level of representation would be fair, and how to draw maps to achieve that level of fairness. There are many different ways to measure fairness, Roberts suggested, and choosing among them “poses basic questions that are political, not legal.” Nothing in the Constitution provides standards to decide what is fair, much less the kind of “limited and precise standards that are clear, manageable, and politically neutral” that courts would need. In the absence of such standards, Roberts concluded, courts should refrain from deciding partisan-gerrymandering cases.

Roberts acknowledged that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust.” But just because courts can’t review partisan-gerrymandering claims, he continued, does not mean that there are no other checks on the problem: Both the states and Congress can take action – for example, by establishing independent redistricting commissions to draw maps.

Justice Kagan dissents in Rucho v. Common Cause and Lamone v. Benisek (Art Lien)

Justice Elena Kagan dissented, in an opinion that was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Reading her dissent from the bench, Kagan emphasized that the Supreme Court had refused for “the first time ever” to “remedy a constitutional violation because it thinks the task beyond judicial capabilities.” Kagan lamented that the “partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights.” The gerrymanders “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” “In giving such gerrymanders a pass from judicial review,” she concluded, “the majority goes tragically wrong.”

Last month the justices put partisan-gerrymandering rulings in Ohio and Michigan on hold until they decided the North Carolina and Maryland cases. The justices could act on those cases as soon as tomorrow, but today’s decision is likely to mean the end of those claims as well.

This post was originally published at Howe on the Court.

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Opinion analysis: Divided court throws out additional jail time for sex offender

June 27, 2019 by admin Leave a Comment

In 2010, Andre Haymond was convicted of possessing child pornography and sentenced to 38 months in prison, followed by 10 years of supervised release. He was also required to register as a sex offender. In 2015, a federal district court sent Haymond back to prison for five more years because he had violated the terms of his supervised release. Haymond argued that the federal law requiring him to return to prison violated his constitutional right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt. Today a divided Supreme Court agreed.

Justice Gorsuch with opinion in U.S. v. Haymond (Art Lien)

Today’s decision dealt with a provision of the Adam Walsh Child Protection and Safety Act, which Congress passed in 2006 to “protect the public from sex offenders and offenders against children.” Justice Neil Gorsuch wrote an opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Gorsuch emphasized that only “a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.” But in this case, he observed, “a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt” – which, in his view, violated both the Fifth Amendment’s guarantee of due process and the Sixth Amendment’s right to a jury trial.

Gorsuch also took pains to make clear that he was not saying that a jury will be needed whenever prosecutors are seeking to revoke a defendant’s supervised release. His opinion, he stressed, was limited to this specific statute, which he described as “an unusual provision enacted little more than a decade ago.” Gorsuch acknowledged that requiring a jury for supervised-release revocation proceedings will be “inconvenient for the government.” “Yet like much else in our Constitution,” he maintained, “the jury system isn’t designed to promote efficiency but to protect liberty.”

Justice Stephen Breyer agreed with Gorsuch on the result in the case, but not with his reasoning. In most cases, Breyer contended, the revocation of supervised release is generally understood as “part of the penalty for the initial offense.” When supervised release is violated, he continued, the punishment is for the failure to follow the conditions that the court imposed, rather than for the conduct that prompted the court to revoke the defendant’s supervised release. But in Haymond’s case, Breyer emphasized, the revocation of supervised release is more like a punishment for a new offense – for which the defendant would be entitled to a jury. For that reason, Breyer agreed with Gorsuch that the statute in this case is unconstitutional and that Haymond’s case should be sent back to the lower court for it to decide what to do next.

Justice Samuel Alito dissented, in an opinion that was joined by Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh. Alito was not particularly enthusiastic about Breyer’s opinion, which he described as providing the court’s holding in the case, but he seemed to regard it as preferable to Gorsuch’s opinion, which he characterized as “not based on the original meaning of the Sixth Amendment,” “irreconcilable with precedent” and replete with “rhetoric with potentially revolutionary implications.”

Although Gorsuch did not say so explicitly, Alito warned ominously, Gorsuch’s opinion implied that all supervised-release revocation proceedings will require a jury trial. With nearly 17,000 supervised-release revocation proceedings last year, Alito pointed out, “there is simply no way that the federal courts could empanel enough juries to adjudicate all those proceedings.” “So if every supervised-release revocation proceeding is a criminal prosecution,” Alito posited, “the whole concept of supervised release will come crashing down.”

This post was originally published at Howe on the Court.

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Opinion analysis: Justices leave agency deference doctrine in place – with limits (Updated)

June 26, 2019 by admin Leave a Comment

Editor’s Note: This post, originally published at 11:49 a.m., was expanded at 1:26 p.m.

A divided Supreme Court issued a major opinion on administrative law today. The justices declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as “Auer deference.” But in an opinion by Justice Elena Kagan, the court made clear that the doctrine has limits, and it will not apply in every scenario in which an agency is interpreting its own rules. That was not enough, however, for Justice Neil Gorsuch, who complained that today’s ruling had left the doctrine a “paper tiger” and warned that the court would almost certainly have to address the issue again soon.

Justice Kagan with opinion in Kisor v. Wilkie (Art Lien)

The Auer deference doctrine – named after the 1997 case Auer v. Robbins – is also sometimes called Seminole Rock deference, after the 1945 case Bowles v. Seminole Rock & Sand Co. It rests on the idea that agencies have more expertise in the subject covered by a law than courts do and are therefore better suited to interpret both gaps in a federal law and their own regulations. Supporters of the doctrine also believe that the doctrine provides predictability and consistency: Courts are more likely to uphold regulations, they say, because judges only have to determine whether the agency’s interpretation is reasonable, not whether it is the best interpretation. But opposition to the doctrine has grown in recent years, particularly among conservatives and business groups, who believe that it gave federal agencies too much power.

This high-stakes legal issue came to the Supreme Court in the fairly unremarkable case of James Kisor, a Vietnam veteran who applied for benefits for his post-traumatic-stress disorder. The Department of Veterans Affairs agreed with Kisor that he suffers from PTSD but rejected his request for benefits dating back to 1983. When Kisor appealed the VA’s decision to the U.S. Court of Appeals for the Federal Circuit, the court of appeals deferred to the VA’s interpretation of its own regulation and sided with the agency.

Last year Kisor asked the Supreme Court to weigh in, and today the Supreme Court gave him a partial victory. It declined to overrule the Auer doctrine, as he had asked, but it sent his case back to the Federal Circuit for it to take another look.

In her opinion for the court, Kagan stressed that courts should not reflexively defer to an agency’s interpretation of its own regulation. Instead, she explained, deference should be given only if the agency’s regulation is genuinely ambiguous. If it isn’t ambiguous, she continued, the “regulation then must means what it means—and the court must give it effect, as the court would any law.” And she suggested that courts must try hard to resolve any ambiguities that it thinks it sees in a regulation: She acknowledged that “regulations can sometimes make the eyes glaze over,” but emphasized that “hard interpretative conundrums, even relating to complex rules, can often be solved.”

Even when a regulation is genuinely ambiguous, Kagan continued, that is not enough for deference. First, she indicated, the agency’s interpretation must also be reasonable – which, she warned, is “a requirement an agency can fail.” And the interpretation must also reflect the agency’s official position in an area of its expertise. “The upshot of all this,” Kagan concluded, is that, when it applies, “Auer deference gives an agency significant leeway to say what its own rules mean.” “But,” she cautioned, “that phrase ‘when it applies’ is important—because it often doesn’t.”

Kagan added that the principle of stare decisis – the idea that courts should not overrule their prior cases unless there is a good reason to do so – weighs “strongly” against overruling the Auer doctrine. This is particularly true, she observed, because the doctrine isn’t just one case, but “a long line of precedents—each one reaffirming the rest and going back 75 years or more.” And overruling the doctrine now would inject “so much instability into so many areas of the law,” Kagan suggested, because Auer deference is so widespread.

And in any event, Kagan noted, because this is not a constitutional issue, Congress is free to pass a law that would overrule Auer. “Instead,” she observed, “for approaching a century, it has let our deference regime work side-by-side with” federal administrative laws “delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. And it has done so even after Members of this Court began to raise questions about the doctrine.”

Having outlined these limits on Auer deference, the court sent Kisor’s case back to the Federal Circuit for it to take another look at whether the doctrine should apply there. Kagan suggested that the lower court both “jumped the gun in declaring the regulation ambiguous” and “assumed too fast that Auer deference should apply in the event of genuine ambiguity.”

Justice Neil Gorsuch agreed with the decision to send Kisor’s case back to the Federal Circuit, but he – in a ruling joined in full by Justice Clarence Thomas and in part by Justices Samuel Alito and Brett Kavanaugh – was sharply critical of the court’s decision not to overrule Auer, which he described as “more a stay of execution than a pardon.” He made clear that he would “stop this business of making up excuses for judges to abdicate their job of interpreting the law and simply allow the court of appeals to afford Mr. Kisor its best independent judgment of the law’s meaning.”

Gorsuch characterized the Auer doctrine as “really little more than an accident” that “began as an unexplained aside in a decision about emergency price controls at the height of the Second World War.” The doctrine “sat on the shelf, little noticed, for years,” Gorsuch continued, and only recently came into being as “the reflexive rule of deference to regulatory agencies we know today.”

The doctrine, Gorsuch suggested, is deeply flawed. Among other things, it conflicts with the obligations of courts under the Administrative Procedure Act, which “instructs reviewing courts to ‘decide all relevant questions of law’ and ‘set aside agency action’” that does not comply with the law, and it “sits uneasily with the Constitution,” which gives courts the power to interpret the laws.

It is not at all clear that the principle of stare decisis applies to Auer deference, Gorsuch posited, because the court is not “dealing with a precedent that purported to settle the meaning of a single statute or regulation or resolve a particular case.” Instead, Gorsuch reasoned, the Auer doctrine “claims to do much more than that—to prescribe an interpretative method governing every future dispute over the meaning of every regulation.” But even if the principle of stare decisis does apply, Gorsuch continued, there are still good reasons to overrule Auer, because it is flawed and has not provided a workable standard.

Chief Justice John Roberts agreed with the court’s decision not to overrule Auer and its discussion of the limits on Auer deference going forward. However, both Roberts and Justice Brett Kavanaugh (who, like Gorsuch, agreed only with the result in the case) wrote separately to emphasize that, although Kagan and Gorsuch disagree on whether to keep Auer in place, their approaches “should lead in most cases to the same general destination.” If, Kavanaugh wrote, a court tries hard to resolve any ambiguities in a statute, it “will almost always reach a conclusion about the best interpretation of the regulation at issue” and won’t need to defer to the agency’s interpretation. Roberts and Kavanaugh also took pains to make clear that today’s decision is limited to Auer deference and does not affect the doctrine known as Chevron deference, which generally requires courts to defer to an agency’s interpretation of ambiguous statutes enacted by Congress.

This post was originally published at Howe on the Court.

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Opinion analysis: Long-time prohibition on registration of scandalous and immoral trademarks is struck down

June 25, 2019 by admin Leave a Comment

In a 6-3 ruling, the Supreme Court today struck down a provision of the Lanham Act that prohibited trademark registration for marks deemed “immoral” or “scandalous.” This is a win for Eric Brunetti, whose trademark for a streetwear brand, FUCT, had been rejected on these grounds. The case follows the court’s 2017 decision in Matal v. Tam, which invalidated a ban on registration for disparaging trademarks on the same basis; the disparagement bar had allowed trademark owners to register a mark that was positive about a person, but denied registration to derogatory marks.

Justice Kagan with opinion in Iancu v. Brunetti (Art Lien)

Writing for the majority, Justice Elena Kagan found that the “immoral or scandalous” bar discriminated on the basis of viewpoint and violated the First Amendment: “It distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint discriminatory application.” Justices Ruth Bader Ginsburg, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined the majority opinion.

No one seemed to like the statute in its current form, although the justices expressed some discomfort with getting rid of it entirely, both during oral argument and in the Supreme Court’s divided opinions. For its part, the government argued that if the statute were upheld, it would interpret the provision more narrowly going forward. The government agreed that the statute as it has been interpreted incorporates viewpoint bias, yet suggested that the “immoral or scandalous” bar is capable of being limited in a way that would remove such bias — for example, by narrowing it to marks that are offensive or shocking because of their mode of expression, independent of viewpoint. The majority rejected this argument, noting that although the court may interpret ambiguous statutory language to avoid serious constitutional doubts, this provision was not ambiguous: “To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.”

Justice Stephen Breyer wrote a divided opinion, concurring in the court’s holding that the bar on registering “immoral” marks violates the First Amendment holding but dissenting from that holding as applied to “scandalous” marks. He reasoned that this portion of statute passes First Amendment muster because the harm to the First Amendment interests is proportional in light of relevant regulatory objectives. Under his analysis, the First Amendment harm is limited because trademark owners can still use offensive trademarks, just not register them, and the government has a reasonable interest in not promoting or associating with highly vulgar or obscene speech.

Breyer also joined Justice Sonia Sotomayor’s divided opinion. Sotomayor was particularly concerned about outcomes from the decision, including a likely “rush to register” offensive marks and the “Government’s powerlessness to say no.” To avoid these problems, Sotomayor proposed separating “scandalous” and “immoral,” eliminating the “immoral” prong, and construing “scandalous” narrowly. In Sotomayor’s view, the majority opinion collapsed the two concepts. Standing alone, the term “scandalous” need not be understood to reach marks that offend because of the ideas they convey; it can be read more narrowly to bar only marks that offend because of their mode of expression — marks that are obscene, vulgar or profane.

Multiple justices explicitly raised or alluded to the possibility that Congress could move forward with a more carefully focused statute that does not discriminate on the basis of viewpoint. In a concurrence, Justice Samuel Alito noted that the Supreme Court’s role is limited and it cannot substitute a new statute in place of this one as it is written. In particular, his concurrence explicitly stated that new legislation could preclude registration of marks that contain terms that “play no real part in the expression of ideas.” Chief Justice John Roberts also focused on narrower statutory language in his divided opinion. Roberts commented that the government is not required to “give aid and comfort to those using obscene, vulgar, and profane modes of expression.” And in his opinion, Breyer asserted that the statute would not discriminate based on viewpoint if it prohibited registration of only highly vulgar or obscene words.

In light of the decision in Tam, today’s outcome seemed the most likely one. To hold otherwise could have produced an anomalous situation in which the only types of “offensive” trademarks that could be registered are ones that disparage particular individuals or groups of people. And although Alito lamented that the “registration of such marks serves only to further coarsen our popular culture,” whether or not Congress steps in at this point remains to be seen.

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Opinion analysis: Punitive damages not available under general maritime law in personal-injury unseaworthiness action

June 25, 2019 by admin Leave a Comment

In a decision implicating two of its recent admiralty precedents and its role in fashioning general maritime law more generally, the Supreme Court today held 6-3 that a seaman cannot recover punitive damages for injuries allegedly caused by the unseaworthiness of a vessel to which he was assigned.

Justice Samuel Alito rested his majority opinion largely on the absence of a “historical basis for allowing punitive damages in unseaworthiness actions” and “to promote uniformity with the way courts have applied parallel statutory causes of action.” That formulation allowed Alito to reconcile the two precedents, the 2009 decision in Atlantic Sounding Co. v. Townsend and the 1990 opinion in Miles v. Apex Marine Corp. In the process, Alito, who had written a forceful dissent in Atlantic Sounding, was joined in today’s opinion by Justice Clarence Thomas, the author of the majority opinion in Atlantic Sounding, even though Justice Ruth Bader Ginsburg, who had joined Thomas then, argued in dissent that the logic of Thomas’ majority opinion dictated a contrary result.

The Supreme Court had held 5-4 in Atlantic Sounding that punitive damages are available to a seaman for an employer’s willful and wanton disregard of its obligation to pay maintenance and cure, a strict remedy essentially affording a very limited allowance for some living and medical expenses. Christopher Batterton argued in this case that Atlantic Sounding supports allowing recovery of exemplary damages for personal injuries due to a vessel owner’s willful and wanton failure to provide a vessel reasonably fit for its intended purpose, the test for the unseaworthiness action the general maritime law provides.

Yet Miles had held that the estate and survivors of a deceased Jones Act seaman could not recover for nonpecuniary loss under the general maritime-law unseaworthiness doctrine because such relief was unavailable under the Jones Act, a statute that provides a seaman a negligence remedy against his or her employer, modeled on the Federal Employers Liability Act applicable to railroad workers. The Dutra Group argued that the logic of Miles precludes allowing a seaman to recover punitive damages under a general maritime-law unseaworthiness action because the Jones Act and FELA were thought to bar such recovery.

Alito found that “the overwhelming historical evidence” suggests that exemplary damages were unavailable in an unseaworthiness action for personal injuries. The absence of such recovery in “traditional maritime law cases” was “practically dispositive.” The “overwhelming historical evidence” precluded creating “a novel remedy” unless necessary to preserve “uniformity with Congress’s clearly expressed policies,” a formulation drawn from Miles.

The majority also thought the uniformity consideration led to the same result as its historical inquiry. Consistent with his Atlantic Sounding dissent, Alito concluded that long-standing Supreme Court and lower court precedent precluded recovery of punitive damages under FELA and the Jones Act. In Atlantic Sounding, Thomas had relied on “historical evidence” that punitive damages had been available in maintenance-and-cure cases, but the absence of such proof regarding unseaworthiness cases made it unnecessary for the court to revisit the long-standing interpretation of these federal statutes. The situation accordingly did not call on the court to fashion a novel remedy “to maintain uniformity with Congress’s clearly expressed policies.”

Alito was unpersuaded by multiple public-policy arguments raised by Batterton. The Supreme Court’s “overriding objective” in maritime cases is “to pursue the policy expressed in congressional enactments.” Because the Supreme Court had created “unseaworthiness in its current strict-liability form” following the Jones Act, “it would exceed our current role to introduce novel remedies contradictory to those Congress has provided in similar areas.” The need for uniformity between maritime common law and maritime statutory law is particularly compelling because unseaworthiness, more than maintenance and cure, resembles and duplicates the Jones Act. Punitive damages are a needed incentive to deter an employer from abandoning an ill or injured seaman in a distant port, but vessel owners have other incentives to avoid unseaworthy conditions. Allowing punitive damages in injury cases would also create various anomalies and would disadvantage American shippers.

Finally, Alito rejected the argument that the doctrine that seamen deserve “special solicitude” justifies a punitive-damages remedy. Alito reasoned that in view of changes in the respective maritime-law roles of the Supreme Court and the political branches and in the position of seamen, “the special solicitude to sailors has only a small role to play in contemporary maritime law,” a statement that seemed at odds with the court’s invocation of that doctrine to “reinforce[]” its decision in Justice Brett Kavanaugh’s majority opinion in Air & Liquid Systems Corp. v. Devries just over three months ago. Chief Justice John Roberts and Justices Elena Kagan and Kavanaugh joined both majority opinions, which seem to assign different weight to the “special solicitude” doctrine.

Ginsburg’s dissent, which Justices Stephen Breyer and Sonia Sotomayor joined, started from the premise that punitive damages are normally available in maritime cases, and accordingly viewed the court’s decision as an exception that followed Miles instead of Atlantic Sounding. She distinguished Miles as involving the more narrow situation in which a judge-made cause of action was created as a gap-filler. In her view, Atlantic Sounding provides the appropriate approach. The court reasoned in that case that punitive damages had a long common-law pedigree whose general applicability was not undermined by anything in maritime law. Contrary to Alito’s claim that Atlantic Sounding relied on evidence of the availability of punitive damages in maintenance and cure cases, Ginsburg cited Alito’s Atlantic Sounding dissent for the proposition that little such authority existed. Nor did Congress preclude punitive damages under the Jones Act, a question Atlantic Sounding had reserved. The Jones Act had expanded, not contracted, a seaman’s remedies and had not barred punitive damages in unseaworthiness actions. The general availability of punitive damages in maritime matters should govern here, too.

Both opinions, as had Kavanaugh’s earlier Air & Liquid Systems Corp. majority opinion, explicitly or implicitly reaffirm the court’s role in fashioning federal common law in an admiralty context. Alito’s majority opinion endorses the approach Justice Sandra Day O’Connor took in Miles in suggesting that the court’s formulation of general maritime law will be somewhat constrained by legislative policies in areas in which Congress has been active.

The decision produced a somewhat unusual alignment, as Alito’s opinion was joined by Roberts, Thomas, Kagan, Justice Neil Gorsuch and Kavanaugh. Ginsburg and Breyer had been part of the five-justice majority in Atlantic Sounding, but significantly, Thomas, who wrote that opinion, silently joined Alito’s majority opinion in this case. At oral argument, Kagan had focused on how the justices might reconcile their general maritime-law-making role with the Jones Act and she may have found appealing a resolution that expressed deference to congressional policies and perceived doctrine, especially given her recent protests against the court’s overturning long-standing precedents.

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