SCOTUS Takes Up Political Gerrymandering, Round 3

In many politically important cases before the Supreme Court, prognosticators often (correctly) surmise that Justice Kennedy will be the swing vote. However, on Monday the court took up a redistricting case, Gill v. Whitford, where we not only think Justice Kennedy will be the swing vote, he already has been the swing vote on the very same issue before the court and will surely be so again here.

The issue of political gerrymandering has made its way up to the high court on numerous occasions previously. However, the standard for political gerrymandering claims has actually yet to be definitively decided, despite the court’s best efforts on at least two prior occasions.

In Davis v. Bandemer, 478 U. S. 109 (1986), the Supreme Court dealt with the question of whether partisan redistricting could ever give rise to a justiciable equal protection claim. The court, 6-3, held that such claims were indeed justiciable, but could not agree on the appropriate legal standard. So, essentially, we agree that there is a standard, but we can’t agree on what it is yet.

The four-Justice plurality concluded that plaintiffs could win only upon a showing of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” So, intent and effect. The concurring opinion, on behalf of two Justices, agreed with the plurality that a plaintiff should show intent and effect, but believed that the intent of the legislature must have been solely for partisan ends.

Eighteen years later, the court tried again in Vieth v. Jubelirer, 541 U.S. 267 (2004). However, the court fractured there as well and actually took a step backwards. By a vote of 5-4, five justices rejected the plaintiffs’ political gerrymandering claim and also agreed that no discernible, manageable standard existed at all. These five justices rejected every possible standard presented to them, including the standards previously proposed by the plurality and concurring opinions in Davis.

That is where things go haywire. Of those five justices, a four-justice plurality found that no discernible standard could be established and that partisan gerrymandering claims were simply not justiciable. However, Justice Kennedy – the fifth vote against the plaintiffs – found that while no adequate standard had yet been devised, future courts should not be foreclosed from identifying one. The four liberal justices found that an adequate standard already existed.

Essentially, the four conservative justices found that no adequate standard existed or could ever exist, and the four liberal justices thought that there already existed an adequate standard. Then there was Justice Kennedy, all by himself, finding that no adequate standard currently existed, that it might exist in the future, that he didn’t know what it was, and that he was not preventing courts from developing such a standard.

In discussing what type of standard would be appropriate, Justice Kennedy implored courts to exercise “great caution” so as to avoid an “unprecedented intervention in the American political process.” Thus, Kennedy wrote,

“A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”

Kennedy could not identify such a standard at the time. However, “[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”

So, that is where we are now: asking whether Justice Kennedy can be convinced that an appropriate, manageable standard has now been identified. Enter Gill v. Whitford.

The case deals with the Wisconsin State Assembly redistricting plan. Wisconsin is a closely divided swing state. Obama won Wisconsin in 2008 and 2012, and Trump won in 2016; the state has one democratic and one republican senator, and statewide vote totals typically hover around 50/50. However, due to a redistricting plan, “Act 43”, in 2012, 2014 and 2016, Republicans won over 60% of the seats even though the statewide vote remained nearly tied.  The District Court found that Act 43 “was intended to burden the representational rights of Democratic voters.” The three-judge District Court panel then struck down Act 43.

After Act 43 was struck down by the District Court, Wisconsin petitioned for cert to the Supreme Court and also asked for a stay of the District Court’s ruling. The court granted cert on Monday and also granted the stay petition by a 5-4 margin, with Kennedy in the majority along with the other conservatives. Given the court’s breakdown on the stay motion, it seems reasonably clear that the four liberals will be voting to uphold the ruling of the District Court on its merits.  Thus, Kennedy is again in the middle of a deeply divided court.

That gets us to the legal standard adopted by the District Court and now being reviewed by the Supreme Court. The District Court required a plaintiff to demonstrate: 1) discriminatory intent, 2) a large and durable discriminatory effect, and 3) a lack of a legitimate justification. This hinges on intent and effect like the rejected standards of yesteryear, but it also requires a third prong  seemingly tailored to Kennedy’s Vieth concurrence: a lack of a legitimate justification.

This may pass muster because it closely tracks Kennedy’s own words in Vieth and is, as a practical matter, an extraordinarily tough standard for plaintiffs to meet. Under this standard, a legislature’s redistricting plan would be upheld if the state could simply demonstrate a legitimate, non-invidious reason for it. This is similar to but more difficult than even the familiar “rational basis review”, which upholds governmental action against non-suspect classes when it is rationally related to a legitimate governmental purpose. Under both standards, providing the court with a legitimate reason for the conduct is sufficient to withstand judicial scrutiny. In fact, under the proposed rule here, the plaintiffs would then also be required to demonstrate discriminatory intent and effect. 

Based on his history on this issue, Justice Kennedy is not going to endorse an easy standard for plaintiffs in these cases, so proposing one would be pointless.  Indeed, the proposed standard here would uphold all but the most brazen gerrymanders, and that may be the point.

Ultimately, we know that Justice Kennedy wants to thread the needle between the protection of fundamental individual rights and the unnecessary judicial intrusion into the political process. Whether that is done here remains to be seen, but rest assured that it will be Justice Kennedy making that decision on behalf of the court.

Trump Travel Ban, Part Infinity: Yossarian Edition

I wrote earlier this week about how the Ninth Circuit’s ruling on the travel ban would affect the proceedings in the Supreme Court. When discussing the narrowing of the injunction to permit the White House to conduct an internal review of visa screening procedures, I argued that it would now be incumbent on the Trump Administration to promptly commence such a review or else risk blowing up the facial raison d’être for the ban. I still believe that to be true. However, after reading subsequent filings by the parties in the Supreme Court and commentary regarding same, I have realized that the narrowing of the injunction places the White House in a much bigger pickle than I initially believed.

As background, Trump’s stated reason for the original 90 day travel ban and its successor EO was that the White House needed to conduct a review of visa vetting procedures. In a well-reasoned tweetstorm, the indispensable and increasingly omnipresent Steve Vladeck aptly explained the government’s stated reason for the ban: “the travel/entry ban was not an end unto itself, but a means to help carry out the real goal of the EO: new vetting rules.” (Yes, I just quoted a tweet, but that seems perfectly legitimate given the subject matter. The Ninth Circuit says they’re admissible now.)

While the original ban itself was enjoined by the Western District of Washington before it ever began, the review process was not, and the White House remained free to conduct such a review. Once a new travel ban was announced, the District of Hawaii then implemented an injunction which not only blocked the ban but also blocked the review process from occurring as well, roughly 45 days after the first EO’s review was to initially begin. As of the Ninth Circuit’s ruling on Monday, however, the DOJ is now free to proceed with the review. As noted above, the Trump Administration needs to begin this review or else it proves that it was merely pretext for the ban. Indeed, today the DOJ has indicated that it will now conduct the review because of the Ninth Circuit’s narrowing of the Hawaii injunction.

However, Vladeck pointed out that by conducting the review, the Trump Administration undermines the entire purpose for the ban. If the White House is indeed able to conduct this review process now, then why was the ban ever actually necessary? The whole point was to conduct the process that it is now conducting without such a ban being in place.

This point is compounded by the fact that the DOJ has not asked for expedited argument. This means that the 90-day review period will surely have concluded prior to a decision by the court. At that point, what is the point of the travel ban at all? The ban was to facilitate a review process which will have already concluded by the time the court decides the issue.

Hawaii’s counsel yesterday made a similar point: because more than 90 days have passed since the original EO and nearly 90 days since the second EO, this whole case will be moot by the time it gets to the Supreme Court. While I do not think that this argument holds water especially given the Hawaii stay of the review process, the point is clear: the Supreme Court will be deciding the fate of a travel ban which would have – on its face – already concluded had it been allowed to run its course.

This puts the White House in a Catch-22. If it does not conduct the review, then it risks destroying the stated rationale for the ban. If it does conduct the review and the ninety-day period concludes, then the ban is no longer necessary. The one acceptable middle position would have been to seek expedited argument so that the review would be ongoing at the time of argument, but the DOJ elected not to take this tact.

The DOJ could and likely will argue that while it is conducting its review now, said review will not be fully efficient or effective until a shutdown is implemented. But oral argument may not be until October, nine months after the original ban; can the DOJ credibly argue at that point that its ability to conduct a review which would have taken three months under optimal conditions has been so hamstrung that it couldn’t be completed in nine? I don’t think so.

Vladeck does seem to suggest that the DOJ was simply wrong in commencing the review process, which in turn would mean that the Catch-22 I described above wouldn’t really exist. I disagree. The argument that the White House is conducting a review – albeit a hobbled one – is much stronger than simply doing nothing when it is permitted to act. Conducting the review now, immediately after the Ninth Circuit’s narrowing of the injunction, is the one bit of urgency that the DOJ or White House has expressed during this saga. It makes more sense to argue that it had a national security imperative to begin a flawed review immediately rather than waiting for the Supreme Court to enable an unfettered review many months from now. Regardless, neither way is optimal, and that’s my entire point – the DOJ is now in prime “damned if you do, damned if you don’t” territory.

Finally, this situation is one of the White House and DOJ’s own making. Their stated rationale for the ban was the urgent need to conduct a temporary review of vetting procedures, in the name of national security. That rationale probably doomed the ban from the start, because it lit a ninety-day fuse for the destruction of the ban’s stated usefulness. The White House and DOJ also bungled the rollout, failing to actually conduct such a review in the 45 day window it had, and then repeatedly refusing to take steps to expedite the inevitable path to the Supreme Court. The DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited argument, and then asking in mid-June for a delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.

Ultimately, the White House may still win at the end of the day. But if they do, then it seems likely that such a result was preordained from the start, since neither the White House nor the DOJ has done themselves many favors.

-Ryan

Ninth Circuit Affirms Injunction Blocking Trump Travel Ban 2.0

On Monday, a Ninth Circuit panel mostly upheld the preliminary injunction against the Trump travel ban. Notably, the court did three things which were ostensibly designed with an inevitable Supreme Court showdown in mind: 1) it did not reach the constitutional issues, instead relying entirely on statutory grounds; 2) it struck down the ban without relying on Trump’s campaign statements, and 3) it slightly narrowed the scope of the injunction. These are all important, as will be set forth below.

I. Taking The (Statutory) Road Less Travelled

Much of the buzz about the travel ban has dealt with its constitutionality – whether it violates the Establishment Clause of the First Amendment. However, the travel ban has also been challenged on statutory grounds. While the Fourth Circuit’s ruling addressed only the constitutional issues and did not reach the statutory issues (as did the Ninth Circuit panel in the travel ban 1.0 case), the Ninth Circuit’s ruling this week did just the opposite. It was the first appeals court decision on either travel ban to address only the statutory arguments.

This is important because it lets the Supreme Court do three things that it loves to do: let issues “percolate” in the lower courts before taking them, exercise constitutional avoidance, and avoid sweeping devisions with unwanted or unintended consequences.

A. It’s Time For The Percolator

First, the court loves to let lower courts weigh in on big issues first. For some reason, every Supreme Court analyst and their mother refers to this as lower court “percolation”. Essentially, what lower court “percolation” means is that the Supreme Court does not like taking cases until at least one appeals court decides it first. It is quite likely that the Supreme Court would have wanted the thoughts of the lower courts on the statutory issue, but prior to this week no appeals court had decided either travel ban on statutory grounds. That has now changed, the statutory issue has been percolated, and the Supreme Court is now ready for its morning coffee.

B. Avoidance Like the Plague

Second, the court loves to avoid deciding constitutional issues when it can. Similarly, the court typically seeks to avoid controversial or deeply political issues, which it fears may affect its legitimacy. A ruling on statutory grounds would let the Supreme Court avoid a sweeping constitutional ruling and also partially mitigate the inevitable political fallout from its decision. Thus, the Ninth Circuit has provided the Supreme Court with a roadmap to strike down the travel ban while doing so on narrow, more palatable terms.

C. “We Write Some Words…”

Relatedly, the Supreme Court also tends to avoid issuing sweeping opinions with unforeseen or unwanted ramifications beyond the facts at hand. As Justice Breyer stated during oral argument in another case this year, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell – that its rationale will be applied to circumstances well beyond just the facts of the particular case being decided.

A broad ruling on the constitutional issue would then apply to many other contexts, from subsequent presidents’ immigration decisions to equal protection claims generally. Trump’s presidency, obviously, is quite different than most presidencies; the Supreme Court will not want its opinion here to hamstring future presidents in engaging in run-of-the-mill immigration decisions or national security determinations. Essentially, the trick is to strike down the travel ban (if it is so inclined), while limiting the applicability of this ruling to different contexts. That is easier said than done.

II. Trump’s Campaign Statements

The issue of unwanted consequences also arises when discussing Trump’s campaign statements. Unlike the Fourth Circuit, the Ninth Circuit did not rely on Trump’s campaign statements in striking down the travel ban. There is a very real concern that the court’s reliance on Trump’s campaign statements will open the doors to using campaign statements against public officials in all sorts of litigation pertaining to government decision-making. The Supreme Court will be loathe to weaponize campaign statements by political candidates, and it will avoid using Trump’s campaign statements entirely if it can. To that end, the Ninth Circuit omitted such references. Again, this signals to the Supreme Court that it can strike down the ban while staying out of the thorniest part of the thicket.

III. Narrowing the Injunction

Lastly, the Ninth Circuit narrowed the scope of the lower court’s injunction, in that it now permits the White House to conduct an internal review of visa vetting procedures. This review served as the facial reason for the ban, which was to last 90 days (and 120 days for the Syrian refugee program) while the review was conducted.

Today, the clock begins ticking anew. At this point, there is no evidence that such a review ever began in the first place, but the government may have gotten lucky when it was barred from doing so by the District of Hawaii. Now, that excuse melts away, and it will be incumbent on the government to begin that vetting review in earnest. In the Supreme Court, the plaintiffs will certainly argue that if the ban was really about the review process – and not just pretext for banning Muslims – then the review would have begun immediately and would already be concluded. If there is little or no evidence that such a review has taken place at the time of Supreme Court briefing or oral argument, then the government’s stated rationale for the ban will be destroyed.

This aspect of the ruling is also important because keeping the injunction as-is would have certainly given the Supreme Court a good reason to grant certiorari. Barring the President from internally reviewing visa vetting procedures – which does not adversely affect anyone in and of itself – was something that didn’t make much sense. Although the Supreme Court is likely going to grant cert anyway, there is now one fewer reason to do so.

-Ryan

Anything You Tweet Can and Will Be Used Against You In a Court of Law: POTUS TRAVEL BAN EDITION

A few days ago, the DOJ filed its cert petition and petition for stay in the travel ban case. When the petitions were filed, the general consensus seemed to be that the cert petition would certainly be granted and that the petition for stay had a decent (albeit probably unlikely) shot.

And then Trump tweeted.

Trump’s tweets from today were as follows:

People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!

The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.

The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!

In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!

That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!

To understand why today’s tweets were so damaging, we must look to how they affect the biggest sticking points for the respondents. These are (or were): 1) whether or not campaign statements can be used against Trump, and 2) whether the government’s animus from the original ban stains all subsequent versions of it. These two issues created two large fault lines among the judges in the 4th and 9th Circuits at oral argument and in their opinions.

Essentially, as I explained in my initial post, the case likely comes down to a test set forth by the Supreme Court decades ago in a case called Kleindienst v. Mandel and recently reiterated in a  very recent concurring opinion by swing vote Justice Anthony Kennedy in Kerry v. Din. That test requires that government’s immigration decisions be upheld as long as the government can present a “a facially legitimate and bona fide” reason for its decision. There is mostly no question that the travel ban is facially legitimate. The issue then comes to whether the travel ban was done in good faith (bona fide) or out of a bad faith religious animus. That is where Trump’s tweets come in.

To that end, and as I explained above, the dissenting judges in the circuit courts hit hardest on the following points: 1) Trump’s campaign statements should not count, and his actual post-oath-of-office record was not blatantly anti-Muslim, and 2) under the state’s logic, it once bias infects one version of an executive order, there is nothing that an administration could ever do to cure that bias, no matter how objectively legitimate the content of an amended EO. These are two good points, and they force the respondents to attack the EO in its current incarnation and using only Trump’s statements as president. As one of the 4th Circuit dissenting opinions stated, “The Supreme Court has repeatedly warned against judicial psychoanalysis of a drafter’s heart of hearts.” Without the campaign statements, and given the typical levels of executive deference in these contexts, it was a bit difficult to actually pin any of Trump’s statements that specifically and explicitly imbued an anti-muslim bias into the amended travel ban. Rather, the dissenters argued, the court was simply psychoanalyzing Trump’s heart of hearts, and this was improper.

But now those points are gone. Trump’s tweets exhibit his bias as president. Moreover, he makes it clear that he still maintains the bias from the first ban, which he obviously prefers and which was apparently jettisoned by the DOJ, not by Trump himself. Trump still holds the same mindset from the original ban and still wishes to accomplish the same ends. There is no longer a viable argument by the DOJ that the new ban was issued in good faith or that it represented Trump turning a corner. No, it’s clear that Trump signed the new EO kicking and screaming, and that both of the bans were motivated by a politically incorrect intent to ban people from Muslim countries. In other words, this completely undercuts the two best arguments made by the DOJ and the dissenting circuit judges.

Lastly, Trump’s tweets are so damaging because they make him seem dangerously unhinged. They not only threaten the legitimacy of the executive branch, but also that of the Supreme Court if it fails to check Trump’s powers. Although the courts normally grant a high level of deference to the president in the national security and immigration contexts, Trump’s behavior places his presidency – and, in turn, the court’s role in checking its power – in unchartered territory. As Lawfare’s Benjamin Wittes and (today) Jack Goldsmith have stated, Trump no longer enjoys the “presumption of normalcy”, and this certainly applies to the courts. Thus, the Supreme Court may be willing to intercede when it normally would be loathe to do so.

Ultimately, Chief Justice Roberts’ Rules of Order go out the window when faced with the Mad King screaming for wildfire.

  

-Ryan

WHERE THE RUBBER MEETS THE ROSARY: The Supreme Court Hears Trinity Lutheran Church v. Comer

Does a playground for two-year-olds advance a religious purpose just because it is run by a church? Is the government justified in denying funding to a church to build that playground, even when the government would provide funding for the exact same playground if it were built by a secular organization? The case of Trinity Lutheran Church v. Comer, being heard this week at the Supreme Court, addresses these questions. In other words, when is a playground more than just a playground?

Used tire scraps – which can be recycled and turned into soft, safe surfaces for playgrounds – are instead routinely discarded in landfills. This not only creates unnecessary waste, it also means that playgrounds are instead covered in cement and other hard, unsafe surfaces for kids. In an effort to kill two birds with one stone, the state of Missouri created the Scrap Tire Grant Program (STGP), a program designed to reimburse non-profit who purchase used tire scraps for their playgrounds. Trinity Lutheran Church, which also runs a religious preschool and daycare center, applied to the STGP to obtain reimbursement for this very purpose.

Despite Trinity’s application ranking fifth among the forty-four applicants for a grant – high enough where the application was surely to be approved – the state of Missouri rejected Trinity’s bid. It did so solely on the basis that the Missouri Constitution forbids public funding of religious organizations. Trinity sued, claiming violations of the First Amendment’s Free Exercise clause and the Fourteenth Amendment’s Equal Protection clause, but it lost in both the district and circuit courts (the panel split 2-1). Cert was granted, and the Supreme Court hears argument this Wednesday, April 19th.

No one disputes that the funds would be used for a seemingly secular purpose: a playground. In fact, it is a playground that children of the community at large also use after school hours and on weekends. However, the government essentially states that it can exclude the church from eligibility entirely because of the Establishment Clause concerns implicated by government funding of religious organizations, even if the conduct at issue by the church is not overtly religious in nature.

This case essentially presents a battle between 1) a state’s freedom to protect its citizens against Establishment Clause concerns and 2) religious organizations’ rights under the U.S. Constitution.  One one hand, the religious liberty side says that religious groups are not seeking special treatment and instead simply do not want to become “second-class citizens” under the law. On the other hand, Missouri argues that every state needs room to protect its citizens from  religious encroachment, in order to preserve the separation between church and state. Both sides have interesting points, and the case essentially presents two favorite conservative causes, state’s rights and religious liberty, and puts them at odds with one another.

Thus, not surprisingly, the case makes for strange bedfellows. The ACLU and certain religious groups are both supporting the government, while many other religious groups of varying faiths are supporting a Lutheran church receiving government funding, which in other contexts might produce outrage by other religious groups. Moreover, one religious liberty scholar supporting Trinity Church even cited Romer v. Evans, a landmark gay rights case, as one of the grounds on which the church could win.

That scholar is Mark Rienzi, professor at Catholic University and Senior Counsel at the Beckett Fund for Religious Liberty. Rienzi and the Beckett Fund are frequently involved in religious liberty cases at the Supreme Court, they wrote an amicus brief for Trinity Church in this case, and Mark graciously agreed to speak with me about this case.

Rienzi essentially asserts that this is a classic discrimination claim – the church is being denied a benefit solely because of its status as a religious organization, and the state admits it. That, to Rienzi, is a lot like other discrimination cases, such as Romer, where the Supreme Court struck down on Equal Protection grounds Colorado’s constitutional amendment preventing the state from recognizing homosexuality as a protected class. As Rienzi stated in our conversation:

“The high level principle is the government can’t exclude you from equal participation based on your status. The core of Romer was that principle. The government can’t exclude you from equal participation based on your status and yet that’s precisely what the state of Missouri is admitting it’s doing to religious groups [in Trinity]. And that that just seems obviously impermissible.”

To be sure, Rienzi also believes that Romer is just one of the ways in which the church can win, and that it also has a strong Free Exercise claim. But, the comparison between religious liberty and gay rights certainly caught my eye.

Ultimately, the most persuasive argument I heard from Rienzi was his comparison to FEMA’s response after Hurricane Sandy. When entire town blocks were destroyed, FEMA did not exclude synagogues and churches from its rebuilding efforts, but rather it helped rebuild these religious organizations just like any other entities that were damaged. As Rienzi stated to me:

“Hurricane Sandy in some towns wiped out the whole block. It wipes out the candy store and the library and the synagogue and something else. And FEMA is going in with grant money to help everybody pump the water out and repair their places. One view of the world says, ‘Oh, you can help the candy store. And you can help the library, it’s a public thing. And you can help the movie theater. But skip the synagogue and go to the next one.’

FEMA, to their credit, came around to the correct answer, which is ‘No, we’re not helping the synagogue in any special treatment for religion kind of way. We’re helping the synagogue because it’s one of the things on the block that got wiped out. We’re helping everything on the block that got wiped out.’ That sort of equal treatment for religion – not treating religion as something that needs to be segregated or mistreated, but instead as something that can participate on equal terms with everything else – that’s what the constitution requires and that’s what Missouri’s getting wrong here.”

That analogy underscores the fundamental point being made: just because an organization is religious does not mean that providing it with government funding will inherently erode the wall between church and state. We aren’t dealing with government funding of new prayer books, we are dealing with tire scraps for a preschool playground. As I said above, sometimes a playground is just a playground.

The case is essentially the polar opposite of a prior free exercise case, Employment Division v. Smith, 494 U.S. 872 (1990). There, when an Oregon man was denied unemployment compensation due to his religious use of peyote, the Supreme Court held that neutral laws of general applicability do not violate the Free Exercise clause, even when they incidentally restrict religious conduct. Thus, the peyote ban was constitutional.

The Trinity case is basically the exact opposite – here, the religious organization is engaging in neutral conduct (getting tire scraps for a playground), yet the government is treating it differently solely on the basis of religion. It remains to be seen whether the Court will in turn apply strict  scrutiny or will instead – like in Smith – opt to apply a much lower standard.

Moreover, the case is complicated by a last minute decision by the State of Missouri – under a new administration – to reverse course and grant STGP eligibility for religious organizations. This decision, issued on Friday, only five days before oral argument, does not appear to moot the issues, but it does potentially undercut the government’s argument that the exclusion of religious organizations is necessary to preserve the wall between church and state in Missouri.

How this case falls is obviously anyone’s guess, but it will likely turn on how well Trinity Church can craft a workable rule in its favor. If Trinity were to win, where would the line be drawn? Could governments bar funding for overtly religious conduct but not purely secular conduct? Could governments ban funding for chapel benches but not playground benches? Could it ban funding for matzah but not wonder bread? I think that Trinity has a very compelling argument in the playground context, but crafting a general rule is clearly the thorniest aspect of their position. To that end, Missouri certainly has the easier argument: a bright-line rule banning government funding of religious organizations is simple, it is workable, and it avoids having lower courts sorting out its Malbec from its Manischewitz.

Ultimately, only god knows how this one will end.

Thank you again to Mark Rienzi for speaking with me about this case. I really appreciate it.

Lee v. U.S.: Plea Bargains, Deportation, and Very, Very Strange Bedfellows

Present political situation aside, America is pretty awesome. To quote our first treasury secretary, it’s the land “where even orphan immigrants can leave their fingerprints and rise up.” And that is why the case of Lee v. U.S. is so interesting: it asks, when faced with overwhelming odds of conviction and automatic deportation, is it ever rational for a criminally-charged lawful permanent resident to risk trial in a Hail Mary attempt to avoid deportation? According to Petitioner Jae Lee, the answer is yes. The U.S. government, however, disagrees. The case will be argued at the Supreme Court this week.

At 13 years old, Jae Lee moved from South Korea with his parents. For whatever reason, while he maintained legal permanent residency, he never obtained his U.S. citizenship. Lee developed a drug problem and in 2009 was arrested and charged with possession of ecstasy with an intent to distribute.

When contemplating a potential plea bargain, Lee made clear to his attorney that his primary priority was avoiding deportation, even at the expense of a shorter sentence. His attorney incorrectly advised him that if he took the plea offered by the government of pleading guilty to possession with intent to distribute in exchange for a shorter sentence, he would not and could not be deported. In reality, deportation was a mandatory penalty for the crime for which he had just been convicted, and deportation proceedings were promptly instituted.

Lee appealed on the basis that he received ineffective assistance of counsel. Under the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), a defendant asserting a claim of ineffective assistance of counsel must not just prove that his attorney’s representation was “deficient”, but also that the defendant was “prejudiced” as a result. The parties agree that the first element is met; indeed, the Supreme Court ruled in Padilla v. Kentucky, 559 U.S. 356, that a lawyer provides ineffective counsel when he fails to tell a client that pleading guilty will subject the defendant to deportation.

The case thus centers on the second element: was Jae Lee actually prejudiced as a result of his attorney’s plainly deficient advice? Despite the gut reaction being “obviously”, the Sixth Circuit said no, basing their decision on the aforementioned Padilla case, which stated that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”

The Sixth Circuit reasoned that it would not have been objectively rational to reject the offered plea because Lee had no real chance of avoiding deportation due to overwhelming evidence of his guilt, and because there was no real prospect of pleading down to a non-deportable offense. According to the Sixth Circuit, “being denied the chance to throw a Hail Mary at trial does not by itself amount to prejudice.” Lee, on the other hand, essentially argues that with nothing to lose deportation-wise, it would have been perfectly rational to “risk it” at trial. Thus, by depriving Lee of this option, Lee was prejudiced. It bears mentioning that circuit courts are deeply split on this very issue, with the Third, Seventh, Ninth and Eleventh Circuits finding for defendants in Lee’s situation, and the Second, Fourth, Fifth and Sixth (both here and in a prior decision) Circuit Courts finding against similarly-situated defendants.

At issue is not just Lee’s fate, but also the Court’s view of the state of plea bargaining in this country. To that end, the case makes for strange alliances and bedfellows. Liberal criminal justice reformers criticize the system as a plea bargaining mill, where under 5 percent of cases go to trial and the other 95% defendants plea rather than risking trial. This criticism of plea bargaining underscores Jae Lee’s argument and was discussed in amicus briefing in Lee’s favor. Representing Lee, however, is not the ACLU or a liberal interest group, but rather John J. Bursch, the conservative former Michigan Solicitor General who had been floated as a possible Trump pick for Solicitor General, and who has argued before the Supreme Court ten times. The most notable of these appearance was in Obergefell v. Hodges, when he argued on behalf of the states against gay marriage. In another case before the high court, Lafler v. Cooper, 566 U.S. __ (2012), during his stint as Michigan’s Solicitor General, Bursch argued against a criminal defendant’s ineffective assistance claim under Strickland. Suffice it to say, representing a likely-guilty drug-dealing immigrant against the government’s attempts to deport him is not a typical situation for him. In fact, twenty states – all of which were won by Trump, including Bursch’s home state of Michigan – filed an Amicus Brief against Lee and for the U.S. government. That Lee is represented by Bursch instantly provides conservative gravitas and legitimacy to his argument.

On the other side, we have the United States government, paradoxically arguing that remaining in America is not great enough to risk jail time for. That is obviously an over-simplification of their position, but hits at the gravamen of Lee’s argument – that it is sometimes rational for an immigrant to risk trial and extended jail time in order to maintain a sliver of hope of remaining in this country.

In a perfectly logical way, the government’s position makes sense – Lee cannot prove prejudice because he cannot show that his attorney’s ineffectiveness plausibly led to a worse outcome, since Lee’s conviction and deportation were almost certain to occur. But it’s the “almost” part of “almost certain” that is key. Like all citizens, Lee has a constitutional right to a jury trial and a presumption of innocence, and that was taken from him directly because of his attorney’s deficiency. However unlikely, Lee could have won – at least on the deportation-mandatory “intent to distribute” charge. Lee also may have obtained a more favorable plea on lesser, non-deportable charges later in the proceedings.

Going to trial to maintain that sliver of hope is objectively reasonable, even at the risk of a longer jail sentence. For an immigrant, remaining “in the United States may be more important than any potential jail sentence.” Padilla, at 368. Not just to Jae Lee, but to other immigrants as well. Lee’s attorney, Bursch – who personally argued against gay marriage in the Supreme Court – persuasively provides the example of a legal immigrant from Nigeria who is LGBT and would face potential death if returned to his home country. To that defendant, taking his chances at trial is certainly objectively rational. Bursch then cites to an article listing ten countries where homosexuality is punishable by death. This argument serves as the piece de resistance of Lee’s brief, and it is even more stunning considering the source.

That Bursch is the one making this argument may actually be the thing that wins the day for Lee. It would be very easy for Chief Justice Roberts and other conservatives in the “calling balls and strikes” crowd to write Lee’s case off as an unfortunate but straightforward application of existing precedent. But Bursch’s involvement complicates things, and it may create a subconscious permission structure for at least some of the conservatives (i.e. Roberts and Kennedy) to find for Lee. Again, this isn’t the Southern Poverty Law Center making this argument, it is a prominent conservative appellate lawyer who has spent his career representing governments and defending conservative positions.

Ultimately, Chief Justice Roberts and Justice Kennedy will likely be the deciding votes, and it remains to be seen whether they or the other justices will be swayed by Lee’s logic. But it certainly appears to me to be an instance when risking near-certain conviction at trial would be objectively favorable to a plea to reduce prison time.

County of Los Angeles v. Mendez: The Ninth Circuit Going Rogue or Applying Conservative Legal Principles? (Wait, What?)

The case of Los Angeles v. Mendez, scheduled for oral argument this week, asks whether law enforcement officers can be held liable when they reasonably used force on a citizen, but nonetheless unreasonably created the scenario which gave rise to the need to use force in the first place. This case creates an interesting intersection of Fourth Amendment excessive force doctrine, search and seizure jurisprudence, tort law, protection of privacy in the home, and even the right to bear arms, and may present a rare case when conservative legal principles functionally expand police shooting liability.

I. HACK-A-SHACK

In Mendez, two Los Angeles Sheriff’s Deputies entered a residential property without a warrant. They then encountered a shack located in the backyard of the residential property, in which Plaintiffs Angel Mendez and his then-girlfriend (now-wife) Jennifer Lynn Garcia were living at the time.  Mendez heard the officers searching the backyard, but the defendants did not identify themselves as officers. The officers barged into the shack, unannounced. At this point, Mendez, who happened to be holding a BB gun to ward off rats and other pests in the shack, began to sit up. One of the officers, upon seeing Mendez with a gun, yelled “gun!”, and both officers then fired upon Mendez and Garcia, injuring them.

It is established that the law enforcement officers in question did not use excessive force in shooting Plaintiffs Mendez and Garcia after they saw Mendez holding a firearm (which turned out to be a BB gun) and beginning to sit up. However, the twist lies in the fact that while the officers acted reasonably in shooting the plaintiffs, said officers may have nonetheless violated Plaintiffs’ constitutional rights by acting in a manner which provoked or caused the armed confrontation between themselves and Plaintiffs.

II. EXCESSIVE FORCE 101

Excessive force cases are decided based on whether the force was reasonable, at the time of the shooting, from the perspective of the officer. Graham v. Connor, 490 U.S. 386 (1989). This issue of perspective is critical. Thus, regardless of the civilian’s actual intentions (or even the civilian’s actual conduct), if the officer reasonably perceived that he/she faced imminent risk of deadly harm, then the officer is legally permitted to shoot the civilian in question. Again, the reasonableness of the civilian’s conduct or intentions is irrelevant, as long as the officer reasonably believed that force was necessary.

 

III. NINTH CIRCUIT PROVOCATION DOCTRINE

At trial, the court found that the officers had not committed excessive force. However, the court did find the officers liable under a “provocation” theory, which has been adopted only in the Ninth Circuit. Under this doctrine, an officer may be held responsible for an otherwise reasonable use of force when the officer intentionally or recklessly provoked the violent confrontation in which the force was used, and the provocation was itself an independent Fourth Amendment violation. The Ninth Circuit upheld the jury’s verdict under its “provocation” doctrine, and also framed the Plaintiffs’ injuries as being reasonably foreseeable based on the initial unreasonable entry into the home:

“Under these principles, the situation in this case, where Mendez was holding a gun when the officers barged into the shack unannounced, was reasonably foreseeable. The deputies are therefore liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment.”

Mendez v. County of Los Angeles, 815 F.3d 1178 (9th Cir. 2016)

IV. CONSTITUTIONAL FRAMING

The case presents an interesting issue of framing. The Court has been very reluctant to expand theories of liability in Fourth Amendment police shooting cases and has frequently granted qualified immunity in novel law enforcement excessive force situations, ruling that the unconstitutional nature of the officers’ conduct was not clearly established. See, e.g., White v. Pauly, __ U.S. ___ (2017); Mullenix v. Luna, 577 U. S. ___, (2015); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015); Plumhoff v. Rickard, 572 U.S. ___ (2014).  

Thus, the idea of adopting a new “provocation” theory in excessive force cases, which exists only in the traditionally-liberal Ninth Circuit, may not seem appealing to the Court. However, even members of the conservative wing of the Supreme Court may be willing to acknowledge that when officers unconstitutionally enter a civilian’s home, those officers are liable for  harms proximately caused by that violation. That is where this case gets interesting – although the court may not want to create a “new” theory of liability, it may not have any issue applying the long-established concept of proximate cause to this particular context. In fact, certain conservative principles may form the basis for a ruling for the plaintiff here.

For example, conservative Justices have been especially protective against government intrusion into one’s home. As the late Justice Scalia wrote in Kyllo v. United States, a case barring the police from using thermal imaging to “view” inside one’s home without a warrant, “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” 533 U.S. 27 (2001)(emphasis added). That case produced the idiosyncratic majority of Justices Scalia, Thomas, Ginsburg, Breyer, and Souter (three of whom are still on the bench), and entrenched the Court’s heightened protection of the home in Fourth Amendment jurisprudence.

Further, the conservative justices have been very willing to protect the right to bear arms in one’s home, which was of course what Mendez was doing which caused the officers to shoot him in the first place. In D.C. v. Heller, another Scalia opinion, the Court held with a 5-4 all-conservative majority that the Second Amendment protects the right to own a firearm in one’s home. The Second Amendment critically protects the right the bear arms in “the home, where the need for defense of self, family, and property is most acute.” 554 U.S. 570 (2008). The Court concluded, “[i]n sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment…”

Here, Mendez was possessing a weapon in his own home, which is constitutionally-permissible behavior. As a direct result of his engaging in protected behavior, and not much else on his part, Mendez was shot by police. Thus, if the officers win, this case would essentially punish Mendez for engaging in constitutionally permissible behavior and would let the officers off the hook for committing and unconstitutional search of Mendez’s home. The conservative justices may see this as an opportunity to stealthily strengthen the right to bear arms, and it’s very plausible that they will not throw away their shot.

V. PROXIMATE CAUSE

Lastly, the Supreme Court need not “expand” police liability to find for the plaintiffs, as it can instead view this case as one of proximate cause, as certain circuit courts have done.

It has long been held that causation is a necessary element of a constitutional claim. See Monroe v. Pape, 365 U.S. 167, 187 (1961) (Section 1983 is “read against the background of tort liability that makes a man responsible for the natural consequences of his actions.”). Some circuit courts have taken the next step of analyzing this particular factual scenario – an unreasonable search which leads to an otherwise reasonable use of force – in the framework of proximate cause. 

 In certiorari briefing before the Supreme Court, Mendez pointed to a decision by Justice Alito when he served as a Judge in the Third Circuit, Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995),  which adopted such a framework. In Bodine, a similar situation occurred where law enforcement officers conducted an unconstitutional search of a home which then led to a deadly confrontation. Justice Alito made clear that an officer’s liability for unlawful conduct is to be determined by “basic principles of tort law,” including principles of proximate cause. As a result, police officers who illegally enter a suspect’s home “would not be liable for harm produced by a ‘superseding cause”, but “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” The court held that if the jury were to determine “that the troopers’ entry was unlawful, it will be necessary to determine how much of the injury suffered by Bodine was proximately or legally caused by the illegal entry.” The court also recognized that while the illegal entry and excessive force claims are separate, “[t]he harm proximately caused by these two torts may overlap.” However, critically, then-Judge Alito made clear that liability  would “not necessarily include all harm resulting from the otherwise reasonable use of force to carry out the detention.” (emphasis added).

 Moreover, the Tenth Circuit has previously applied a proximate cause framework in a similar case in 2016; when an officer shot a plaintiff after unlawfully entering his home, the court stated that “because a reasonable jury could determine that the unlawful entry was the proximate cause of the fatal shooting of [Plaintiff], we need not decide whether [Defendant officer] used excessive force when he confronted [Plaintiff].” Attocknie v. Smith, 798 F.3d 1252 (10th Cir. 2015), cert. denied, 136 S. Ct. 2008 (2016). The Supreme Court denied cert there, meaning that it may in fact be willing to apply the proximate cause framework in cases similar to Mendez.

For what it’s worth, the Tenth Circuit applied this framework in a more recent but much more factually-convoluted case, Pauly v. White, and the Supreme Court summarily reversed it (seemingly on other grounds) earlier this year. Notably, while the plaintiffs cited Pauly in their certiorari briefing, they omitted it in their merits brief. The effect of Pauly on the Mendez case is unclear, however, especially since the Supreme Court previously denied certiorari on the much more straight-forward Attocknie case.

Regardless, the Supreme Court can easily view this claim within the rubric of proximate cause, rather than “inventing” a new theory of liability, and thus the Ninth Circuit’s decision seems less like a rogue decision and more like a reasonable expression of existing constitutional principles.

VI. FINAL THOUGHTS

The Supreme Court could go a lot of ways with this one, from (in no order): 1) outright rejecting the provocation doctrine, 2) adopting the provocation doctrine (still within the realm of possibility depending on Justice Kennedy’s views), 3) applying a proximate cause standard and finding for the plaintiffs, 4) adopting the proximate cause framework but nonetheless finding that Mendez’s conduct was a superseding cause, 5) applying the proximate cause standard but remanding for consideration of whether Mendez’s conduct was a superseding cause, or even 6) adopting either of the above frameworks but granting the officers qualified immunity by finding  that the right at issue was not clearly established. It bears mentioning that the court has been very willing to summarily reverse in excessive force cases on qualified immunity grounds, but that it has not done so here.

Thus, while I cannot predict the outcome of this case, we must resist the urge to divide the court along ideological lines. There is simply more here than just another police shooting, and much more to the Ninth Circuit’s ruling than the “liberal overreach” of which it is often accused.