Verdict Legal Analysis and Commentary from Justia Wed, 17 Dec 2014 05:01:10 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Must Texas Issue Confederate Flag License Plates? Wed, 17 Dec 2014 05:01:10 +0000 Continue reading →]]> License PlateThe Supreme Court recently granted review in Walker v. Texas Division, Sons of Confederate Veterans (TSCV), which poses the question whether Texas violated the First Amendment when it denied TSCV’s application for a state-issued license plate with a Confederate battle flag logo.

The case looks different depending on how one understands specialty license plates. Are they private speech? If so, then TSCV should probably win, because government may not censor unpopular, even hurtful and offensive, private viewpoints.

Or maybe state-issued specialty license plates should be regarded as government speech. If so, then surely the government may choose not to endorse the Confederate battle flag, given its association with slavery, segregation, and racism.

There is, however, a third possibility—one that was acknowledged but rejected by the U.S. Court of Appeals for the Fifth Circuit in ruling in favor of TSCV. Perhaps the First Amendment ought to make room for an intermediate category of “mixed” private/government speech. Difficult questions would remain, even under such an approach, but those questions would hew more closely to the facts and values at play in specialty plate cases than either the pure private speech or pure government speech view.

The Texas Specialty Plate Program

Like many other states, Texas offers automobile owners the opportunity to obtain specialty license plates with a distinctive motto and design. The extra fees charged for specialty plates typically raise revenue for states and the organizations to which they refer.

In Texas, drivers can choose from a very wide array of “off-the rack” plates. These include: civic-minded messages like “Be A Blood Donor,” “Conserve Water,” and “Fight Terrorism”; support for professional and college sports teams both within and outside of Texas; notations of veteran status either in general or for particular wars; and many other categories.

Texans dissatisfied with the pre-packaged choices can also request custom-designed specialty plates. The TSCV did just that, seeking approval for a plate bearing the designation “Sons of Confederate Veterans 1896” and an image of the Confederate Battle Flag. After a public hearing and several internal votes, the Texas Department of Transportation rejected the application under a provision of state law authorizing the rejection of “a new specialty license plate if the design might be offensive to any member of the public.”

TSCV sued and lost in the district court, but the court of appeals reversed. Then, entering an area that has generated litigation around the country for over a decade, the Supreme Court agreed to review the case.

The petition for review that the high Court granted poses two questions: First, is a specialty plate private speech or government speech? And second, if specialty plates are private speech, is the Texas denial nonetheless permitted under the First Amendment on the ground that it does not discriminate against any particular viewpoint? The second question is more straightforward than the first, so I will consider them in reverse order.

Viewpoint Discrimination

Texas argues that even if specialty plates are private speech, its denial of the TSCV application was permissible under the First Amendment. Private parties have a free speech right to display Confederate battle flags on purely private property—on flagpoles in front of their homes, on lapel pins, or on bumper stickers, for example. However, a specialty license plate is what the case law calls a government-created forum, subject to greater government control.

Supreme Court precedent recognizes a variety of such fora, each with its own rules about how much government control is permitted. Yet, as the parties agree, in every kind of government forum for private speech, regulations must be “viewpoint neutral.” That is, the government may not favor one side of a question over the other. If it permits pro-life speech it must permit pro-choice speech; if it permits pro-war speech it must permit anti-war speech; and vice-versa.

Texas argued that its denial of the TSCV application was viewpoint neutral because the state has not permitted any speech on the other side of the issue either. The state simply does not issue license plates either for or against Confederate battle flags. Thus, says the state, the denial of the TSCV application is a permissible restriction on the subject matter of speech, not an impermissible restriction based on viewpoint.

That argument failed in the appeals court and it should fail in the Supreme Court. The state denied the TSCV application because it would be offensive to many Texans. Yet offense is almost inherently viewpoint based and is clearly viewpoint based here.

The relevant category is not speech using the Confederate battle flag but speech that conveys the message that is deemed offensive. The Texans who find the flag offensive do so (quite understandably) because of its association with the Confederacy, segregation, and racism. Unless Texas would be prepared to deny pro-Union commemorative license plates, the denial is viewpoint based. And in fact, the off-the-rack plates include pro-Union military plates, including one commemorating the Civil War era Union Army service of African Americans (“Buffalo Soldiers”).

Thus, if the Court concludes that specialty license plates are private speech, it should also conclude that the Texas denial of the TSCV application was unconstitutionally viewpoint based.

The Government Speech Doctrine

But is a state-issued specialty license plate private speech? The leading—indeed, the only—free speech precedent from the Supreme Court concerning license plates is the 1977 decision in Wooley v. Maynard. There, the Justices found that Jehovah’s Witnesses who disagreed with the New Hampshire motto “Live Free Or Die” had a free speech right to tape over it on their state-issued license plates. (New Hampshire did not issue plates without the logo.)

The appeals court in the TSCV case found Wooley highly salient. It noted that the Supreme Court never even considered the possibility that the license plates were government speech rather than private speech. That’s true, but the government speech doctrine largely post-dates Wooley, and so the Court’s failure to address it there is not especially significant.

The government speech doctrine that has developed in the decades since Wooley recognizes the difference between government as regulator and government as speaker. The First Amendment forbids the government from censoring private speech, but when the government itself expresses a viewpoint, it is not engaging in censorship. The government speech doctrine does not rest on the proposition that the government has First Amendment rights of its own. Rather, the government may speak freely because government speech is often an effective form of government action.

For example, campaigns to urge people not to smoke pursue public health objectives; government speech in favor of recycling is a form of environmental and sanitation policy; and government messages urging emergency preparedness promote public safety. In speaking, as in acting, government policy need not remain neutral as between health and illness, cleanliness and dirt, or survival and death.

If the issuance of specialty license plates is government speech, then Texas should win the TSCV case. During the Civil War, the Union government did much more than refuse to speak on behalf of disunion; the Union killed over a hundred thousand U.S. citizens who fought for the Confederacy. Surely the government today need not endorse the flag under which the rebels fought.

Indeed, as I argued in a 2011 article in the Virginia Law Review, in some circumstances the Constitution, through its Equal Protection Clause, may not even permit a state to fly the Confederate battle flag, given its frequent association with slavery, segregation, and racism. At the very least, the Constitution does not require a state to do so.

Government Speech or Private Speech

Would the issuance of specialty license plates to TSCV really be comparable to the state itself flying a Confederate battle flag? The appeals court said no. It applied a test drawn from the concurring opinion of Justice David Souter in the 2009 case of Pleasant Grove City v. Summum: “whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige.”

In Summum, the majority held that “the placement of a permanent monument in a public park is best viewed as a form of government speech.” Applying his “reasonable observer” test, Justice Souter agreed.

The appeals court noted a number of differences between the proposed stone monument in Summum and specialty license plates, including these: the former would have been permanent, whereas the latter can be changed yearly; space for monuments in public parks is limited whereas a specialty plate does not crowd out competing messages; and most importantly, the public would generally understand messages on license plates as the private speech of the drivers.

A New Category of “Mixed” Speech

The appeals court was undoubtedly correct that specialty license plates are more like purely private speech than government acceptance of a stone monument in a public park, but it does not follow that specialty plates are simply private speech.

The real answer to the question whether specialty license plates are private speech or government speech is that they contain elements of both. The automobile owner chooses which, if any, specialty plate to display, but in issuing the plate for official purposes, the state conveys at least some measure of approval of the message it displays.

Approving a specialty license plate differs from permitting a private group to hold a rally on public property, given the state’s necessary role in the creation of the plate. Indeed, it may be just this tacit measure of government approval that leads car owners to seek specialty plates, rather than to be satisfied with a bumper sticker or license plate holder that conveys the same message.

Accordingly, the dissenting judge in the appeals court thought that restrictions on specialty license plates would be better evaluated under a hitherto-unrecognized category for “mixed” government and private speech. University of Miami law professor Caroline Mala Corbin provided a sophisticated argument for and elaboration of this new category in a 2008 article in the NYU Law Review article.

In writing about Tennessee’s policy of issuing pro-life but not pro-choice specialty license plates in 2003, I concluded that specialty license plate programs are better understood as government speech than private speech. However, Corbin’s article persuaded me that one need not choose between pure private speech and pure government speech.

How should courts handle mixed private/government speech? Professor Corbin proposed that when faced with cases falling into this intermediate category courts ought to apply “intermediate scrutiny,” a test drawn from the Supreme Court’s sex equality cases that is also applicable to a different kind of mixed speech: speech mixed with conduct.

That makes sense, but the intermediate scrutiny test does not apply itself. For her part, Professor Corbin proposed that government’s ability to discriminate based on viewpoint in issuing license plates should depend on the reason for such discrimination: Mere government disagreement with a private message—as when Tennessee denied the pro-choice license plates—would not be a strong enough reason, but avoiding actual harm from speech—as when African Americans and others feel victimized by the state’s seeming endorsement of its racist past—would.

Neither the state’s petition nor TSCV’s response asked the Court to recognize a new category of mixed private/government speech, but that probably has more to do with the incentives of litigation than the merits of such a category. TSCV would probably lose the case under a mixed category. Meanwhile, although Texas would win this case, it and other states would be much more constrained in their ability to reject proposed license plates on other grounds.

An intermediate category for mixed private/government speech would not turn hard cases into easy ones, but it would at least prevent judges from pretending that hard cases are easy. That alone is a reason to hope that the Supreme Court recognizes that in a world of pervasive regulation, some speech falls between the cracks of its existing categories.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
]]> 3 0:12:46 Cornell University law professor Michael Dorf discusses a case in which the U.S. Supreme Court recently granted review to consider whether Texas may constitutionally deny an application for a custom state-issued license plate with a Confederate batt[...] Cornell University law professor Michael Dorf discusses a case in which the U.S. Supreme Court recently granted review to consider whether Texas may constitutionally deny an application for a custom state-issued license plate with a Confederate battle flag logo. no no
Who Will Be Snared in the Impeachment Trap? Tue, 16 Dec 2014 05:01:16 +0000 Continue reading →]]> Money and TrapIn the aftermath of the Republicans’ retaking of the Senate in last month’s mid-term elections, leaders of the party in both houses of Congress have vowed that they will “govern responsibly.” In particular, they have promised repeatedly that they will not replay the budgetary brinksmanship that has plagued the country since the Republicans took control of the House four years ago.

At the same time, Republicans are struggling to control the impulse among their most extreme members, who would love nothing better than to impeach the President. Controlling those extremists has become especially difficult, because the President has inflamed the Republican base with his executive order to prioritize prosecutions of immigration cases in a way that all but eliminates the threat of deportation for five million immigrants who are currently living in the United States.

The theme that unites the partisans on the right is that the President is “shredding the Constitution,” ignoring his responsibility to enforce all the laws, not only the ones that he happens to like. It is true, of course, that the separation of powers is as fundamental a principle as one could find in the Constitution, but it is also obvious that Republicans’ objections to supposed presidential overreach are utterly situational. What they loved under George W. Bush they hate under Barack Obama (even though most of the latter’s supposed overreach is a mere shadow of the former’s).

Even so, the constant repetition of the idea that President Obama is selectively enforcing the laws potentially implicates some budgetary choices that will soon be facing the country. The problem is that the Republicans’ strategy could make it impossible for the President not to violate one law or the other, as I will explain below. This, in turn, will make it tempting indeed for Republicans finally to impeach the man whom they hate so much.

If the Republicans do succeed in creating a situation in which the President will necessarily commit one or another constitutional violation, this will raise a further delicate situation for Republicans. Their commitment to prove that they can govern responsibly has been accompanied by efforts among the party’s leaders to tamp down the desire of the true believers (in Congress and among the public) to impeach the President. Yet they might well make it all but impossible to avoid impeaching Mr. Obama, because they are determined to use the budgeting process to extract further concessions from the President on spending and other priorities.

Spending, Deficits, and Debt: An Economic Non-Problem, But a Political Powder Keg

Currently, the so-called debt ceiling law has been suspended. That is, earlier this year, when the spending and taxing laws implied a necessary increase in federal borrowing, the statutory limit on the federal debt was nearly breached. Rather than (as it has done dozens of times in the last few decades) simply adjust the debt ceiling to accommodate its own spending and taxing decisions, however, Congress simply put the debt ceiling to sleep.

That nap will end on March 15, 2015, at which point the debt ceiling will be reset at the level of debt that exists on that date. From that date forward, the Treasury Department will be forced to use its “extraordinary measures” to prevent the United States from defaulting on its financial obligations for the first time in history. According to some reports, those measures could delay the day of reckoning until as late as August of 2015.

Therefore, unless Congress increases the debt ceiling, or puts it back to sleep—with a full repeal being the only truly responsible choice—we will again face the prospect of a government default sometime in the middle of next year. The omnibus spending law that was just passed over the weekend, along with the existing spending laws on “nondiscretionary items,” combine with the tax laws (including recent tax cuts that further reduce federal revenues going forward) to guarantee that more borrowing will be needed. The difference between revenues and spending will be more than sufficient to require a change in the debt ceiling law.

To be clear, there is nothing wrong with federal borrowing, as a general matter. And in the current situation, the amount of additional federal borrowing going forward is historically low, for at least the next decade. Even in the longer term, the debt level is no longer projected to “explode,” because of the moderation of health care costs. As an economic matter, deficits and debt have become a non-issue.

As a political matter, however, the debt and the deficit are still flash points. Moreover, as I noted above, even though there is nothing about the current path of our borrowing that should raise any alarms, a growing economy (even one that is growing too slowly, as ours is) requires that the dollar amount of debt rise.

This means that, even though there is no good economic reason for Congress’s attentions to be turned to the federal debt and deficits, at some point next year, we will face another moment in which Republicans’ vows to “rein in runaway debt” (as imaginary as that supposed problem is) will crash into the reality that Republicans in Congress have set a political trap for the President.

The Debt Ceiling and the Trilemma’s Return

What happens on the date on which Treasury’s extraordinary measures run out, and the President is faced with what my fellow Verdict columnist Michael Dorf and I have called a “trilemma”? That is, what can the President do, if the law requires him to spend more money than we take in from taxes, and he is prevented by law from borrowing more money?

Professor Dorf and I have argued that the President would then have to choose among nothing but unconstitutional options. He could collect more money in taxes than the law allows, or he could default on spending required by law, or he could issue debt in excess of the debt ceiling. Any of those choices would violate at least one provision of the Constitution, meaning that the President could correctly be deemed to have violated his oath of office.

Our analysis led us to conclude that the President could minimize the constitutional damage by treating the debt ceiling statute as null and void, thus allowing him to borrow the money that would be required to allow him to obey Congress’s orders regarding spending.

No matter whether we are right or wrong, however, it appears that neither Republicans nor Democrats believe that the President would have any choice but to default on some of the nation’s obligations.

Some Republicans argue that the word “default” only applies to failing to pay bondholders, but that is clearly wrong. The country’s spending laws commit the government to pay citizens and businesses specific amounts of money on certain dates. If the President were to obey the debt ceiling by failing to make some of those payments, then we would for the first time become a nation whose government has defaulted on its legal commitments.

The result of failing to increase, suspend, or repeal the debt ceiling would thus be to force the President to violate the Constitution. And even though the conventional wisdom is wrong about which prong of the trilemma the President must choose, in one sense it does not matter, because the Republicans would finally be given the gift for which they have pined for so long: President Obama would have committed what would seem to be a clearly impeachable offense. But will Republicans find that they wish to return the gift?

Again, the Republicans can avoid all of this by simply allowing the debt to rise to the levels that the spending and taxing laws require. That, however, is simply unacceptable to many Republican members of Congress, some of whom have gone so far as to vow that they will never, ever vote to increase the debt ceiling—even though they happily vote to cut taxes and spend money in amounts that require us to borrow more money.

Therefore, it is at least imaginable that Republicans’ commitments regarding the debt ceiling will trump their vows to govern responsibly. What then?

“Picking and Choosing” On Steroids: Budgetary Fundamentalism Puts Republicans In a Corner

As I discussed above, the Republicans broad narrative about the Obama presidency has become a tale of executive overreach. He is accused of “picking and choosing” which laws to enforce, and which to ignore. (Among countless examples of House and Senate Republican leaders repeating this theme, see here, here, here, and here.) The President is accused of being a “dictator,” because he exercises his discretion in ways that Republicans believe exceed his power under the Constitution.

In one sense, this narrative could cut in favor of the President, should he be faced with a trilemma. “Gee,” the President might argue, “I thought these guys hated it when I didn’t enforce the law, and here they are making it impossible for me to do so. Now I have to ‘pick and choose’ between defaulting on our obligations or borrowing more money. Make up your minds, folks!”

Beyond the pure politics of the situation, it is notable that the Republicans’ concern with presidential excess actually resonates strongly with the analysis that Professor Dorf and I have offered.

After all, we have argued from the very beginning that the President is required, when faced with a trilemma, to choose the path that minimizes how much he must override the will of Congress. (We also argue that he must choose the path that is the most easily reversible, but that prong of our analysis is not implicated here.) That means that the President should honor the spending and taxing laws, and set aside the debt ceiling law, when we cannot honor all three.

Why? Consider the spending measure that barely made it through Congress over the weekend. Everyone involved described that law as “less than ideal,” a “compromise,” and so on. In short, it involved a multitude of tradeoffs, some of which angered Republicans, and some of which angered Democrats. Yet the bill passed, because enough members on both sides of the aisle said, in essence, “I don’t like what I gave up to the other side, but that’s more than made up by what I got in return.”

Now suppose that the President ignores the Buchanan-Dorf reasoning and instead begins to default on our legal obligations. As I noted above, some Republicans want him to “pick and choose” for favorable treatment the holders of U.S. Treasury securities, including foreign governments and banks, even if that means failing to pay Americans who are legally owed money by the federal government.

But the ultimate choice would be the President’s. One of the provisions in the new spending bill appropriated more money for various military weapons programs than the White House requested. If the President must pick losers, why would he not say that, because the Pentagon did not even request those weapons, surely they should not be funded? How would Republicans feel then?

The problem is that the Republicans are already on record as saying that the President is a tyrant because he picks and chooses which laws to obey. If he does what they demand, refusing to borrow enough money to meet all of our obligations, he can only do so by picking and choosing who will be paid, and who will not.

Rather than saying, “Well, we gave him no choice but to make these choices,” surely the argument among many Republicans would be, “See, we’ve said all along that he abuses his power. He now refuses to defund the things we hate, and he defaults on the things we like. Tyranny!”

The new wrinkle, therefore, is that the Republicans have spent the last year harping on a political story that all but begs for impeaching the President—especially if he does what they say that he must do. The trilemma, which seemed to be a trap for the President, could trap Republicans instead. Their leaders say that they do not want to tarnish the party with another impeachment battle, yet they may soon create for themselves a situation in which calls for the President’s impeachment would be unstoppable. At that point, the Republicans would suffer, and so would the country.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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The Ferguson, Missouri, Tragedy and the Future of Eyewitness Identification Mon, 15 Dec 2014 05:01:12 +0000 Continue reading →]]> EyewitnessNext to a DNA match, many people probably think that eyewitness identification is most persuasive. Yet, this persuasive evidence is often wrong. It is not wrong because witnesses lie, although some of them may. It is wrong because our memories play tricks with us. The recent tragedy in Ferguson, Missouri, illustrates the problem. We know that a police officer, Darren Wilson, killed Michael Brown, an unarmed 18-year old black man. Wilson said it was self-defense but other witnesses contradicted him. Because the police officer is white and the deceased black, the tragedy was the occasion for many comments about racism. Yet, this episode also illustrates the problems with eyewitness identification.

Robert McCulloch, the St. Louis County Prosecutor, used the grand jury to investigate the incident to determine if the tragedy was a crime. Did Officer Wilson have the “reasonable belief” that he needed to use deadly force to defend himself? McCulloch released the grand jury testimony, and when he did so he warned us of the dangers of eyewitness identification.

Many witnesses to the shooting of Michael Brown made statements inconsistent with other statements they made and also conflicting with the physical evidence. Some were completely refuted by the physical evidence.

As an example, before the results of the private autopsy were released, witnesses on social media during interviews with the media and even during questioning by law enforcement claimed that they saw Officer Wilson stand over Michael Brown and fire many rounds into his back.

Others claim that Officer Wilson shot Mr. Brown in the back as Mr. Brown was running away. However once the autopsy findings were released showing that Michael Brown had not sustained any wound to the back of his body. No additional witnesses made such a claim. And several witnesses adjusted their stories in subsequent statements.

Some even admitted that they did not witness the event at all but merely repeated what they heard in the neighborhood or others or assumed had happened. Fortunately, for the integrity of our investigation, almost all initial witness interviews including those of Officer Wilson were reported.

Was Brown running away from Office Wilson, charging towards him, or staggering? For example, one witness said, “I thought he was trying to charge him at first because the only thing I kept saying was is he crazy?” In contrast, another witness testified, “I didn’t get the impression of a charge because it wasn’t fast enough to be a charge.”

While eyewitness accounts varied, that was not the case with the two two autopsy reports provided to jurors. St. Louis County performed one autopsy and Michael Baden, a nationally known forensic pathologist, performed the other, at the family’s request. Both concluded that Mr. Brown was shot in the head, face, chest area and arms; he was not shot in the back.

Empirical evidence supports the conclusion that eyewitness identification is often unreliable. One study examined eyewitnesses who were intoxicated. One group had a .04 blood alcohol concentration for one group; the second had .07-alcohol concentration; the third group, the control group, was alcohol-free. The typical blood alcohol-driving limit in the United States is .08, so the second group was barely able to drive legally. The experimenters showed each group a staged kidnapping. One week later, the study asked everyone to pick out the kidnappers out of a line-up. All three groups performed about the same, which was slightly better than chance. There were no significant effects of alcohol intoxication with respect to performance. I bet you did not see that coming. It gets worse.

In the more than 250 convictions overturned because of DNA evidence, 73 percent involved cases where the error was attributable to misidentifications by eyewitnesses. In criminal cases, 38 percent of the exonerations involving mistaken identify included multiple eyewitnesses. Exonerations show that misidentification is involved in 27 percent of homicides but in 80 percent of sexual assault cases. That should not be surprising, because experts tell us that memories that are emotionally negative have greater potentiality to be flawed.

The Report by the National Registry of Exonerations concluded that that there were 873 exonerations, entered in the Registry as of March 1, 2012. Of this group, DNA evidence helped exonerate 37 percent; 63 percent were exonerated without the use of DNA. Since 2000, exonerations have averaged 52 a year, or one a week, and 40 percent of them include DNA evidence. The most common causal factors that contributed to the exonerations are (1) perjury or false accusation (51 percent), (2) mistaken eyewitness identification (43 percent), (3) official misconduct (42 percent), (4) false or misleading forensic evidence (24 percent), and (5) false confession (16 percent). As of December 9, 2014, the National Registry reported 1,490 exonerations.

Some courts are starting to take notice. In 2012, the Oregon Supreme Court considered the case of a criminal defendant who seeks to exclude eyewitness identification evidence in a pretrial motion. If the defendant argues that the witness lacks personal knowledge, the opposing side “must offer evidence showing both that the witness had an adequate opportunity to observe or otherwise personally perceive the facts to which the witness will testify, and did, in fact, observe or perceive them, thereby gaining personal knowledge of the facts.”

The National Association of Criminal Defense Lawyers (NACDL) [full disclosure, I have written and filed pro bono briefs for the NACDL] has encouraged the use of “double-blind” lineups. Double-blind tests are routine in the sciences but not in line-ups. With a double-blind sequential lineup procedure, the police show the suspects, one by one, to the witness. That reduces the possibility of a witness picking the person who looks most like the culprit even if that person is not the culprit. Moreover, the “double-blind” procedure means that the police officer who conducts the procedure does not know the identity of the suspect. That prevents the officer from (unconsciously or consciously) providing visual cues to the witness.

In October 2014, the National Research Council of the Academy of Sciences published a report evaluating eyewitness identification. The authors were—and this is a mouthful—the Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Courts; Committee on Science, Technology, and Law; Policy and Global Affairs; Committee on Law and Justice; Division of Behavioral and Social Sciences and Education; National Research Council. The Report warns us many factors compromise our memory, from the time we initially process the event to the time later when we retrieve it. “Unknown to the individual, memories are forgotten, reconstructed, updated, and distorted.” The Report also recommends adopting “blinded” eyewitness identification procedures.

Police, prosecutors, victims, and the public are all interested in apprehending the guilty. However, a wrongful conviction does nothing to deter wrongful conduct because the wrong person is found guilty. If anything, it can encourage wrongful conduct because the guilty person is still loose. That guilty person still on the loose is the only party with an interest in not improving eyewitness identification.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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The New Torture Report: Expect Little Other Than Talk Fri, 12 Dec 2014 05:01:05 +0000 Continue reading →]]> ReportIn 2004 I published Worse Than Watergate: The Secret Presidency of George W. Bush, explaining how the Bush/Cheney administration had reversed the post-Watergate efforts at a more open and less “imperial” presidency and why the secrecy playing out in the Bush/Cheney presidency was, in fact, worse than what had occurred during Nixon’s presidency with its bungled break-in at the Watergate offices of the Democratic National Committee, and equally bungled cover-up that followed.

None of my examples of how things had become worse was more telling than my concluding chapter, where without a lot of hyperventilation I addressed how Bush and Cheney had secretly orchestrated the use of torture to deal with terrorism, including getting Department of Justice lawyers to give them legal cover for actions that were nothing less than war crimes. Frankly, it does not get any worse than “war crimes,” which people almost universally find barbaric. Nonetheless it was clear in 2004 that those involved with these horrific crimes were going to get away with them. But I concluded with an observation:

… remember that Watergate curtailed the imperial presidency that [Bush and Cheney] have revived, then pushed beyond. But extremism like that of Bush and Cheney, even in defense of liberty, has never played well in this nation. Americans are centrists, not extremists. History unquestionably caught up with Nixon, as it will with Bush and Cheney.

Some six years after their departure from the White House, history did some catching up with Bush and Cheney this week with the release by the U.S. Senate Select Committee on Intelligence’s report on torture entitled: “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program,” (pdf copy of “Torture Report”). The report further confirms these activities were war crimes, and far worse than previously thought.

Sadly, still nothing will likely be done about the abuses set forth in this report because Republicans have effectively politicized the report, and the Obama Administration does not have the political inclination to enforce American and international laws, not to mention about half of the country no longer finds the idea of torturing terrorists and those suspected of terrorism abhorrent or offensive. But should any of the key figures involved in these war crimes leave the United States, any of a number of countries might be inclined to pursue and prosecute them. Let me explain.

Politicalizing the Senate’s Report on Torture

Only a few people are seriously in favor of the use of torture, and willing to publicly admit it. In reacting to the Senate’s report former Vice President Dick Cheney still embraces all that was done on his watch, and claims the Senate’s report is “full of crap.” And James Mitchell, the psychologist who helped the CIA design the system outlined in the Senate’s Torture Report appears to still be a believer in torture, in openly acknowledging his role to The Guardian when the Senate’s report first leaked, and he is now slamming the report that has been released. Rather than embrace torture, Republicans on the Senate Committee on Intelligence simply refused to participate in the study of the CIA’s detention and interrogation program.

At the outset, Republicans wanted this study. In March 2009, the Senate’s Committee on Intelligence voted overwhelmingly (14-1) to undertake the investigation of the CIA’s detention and interrogation program. But five months into this project the Republicans wanted out and decided that when Attorney General Holder began a Justice Department investigation to withdraw from participating in the committee’s study. According to the minority views of six (of seven) Republicans on the committee (pdf copy), the Justice Department’s investigation “precluded a comprehensive review of the [CIA’s program], since many of the relevant witnesses would likely decline to be interviewed by the [Senate’s] Committee.” This is about as thin an excuse as can be offered. Note the Republicans withdrew before any witness had declined to be interviewed, only because they might. This excuse also ignores the fact that had the Republicans requested, the entire committee could have immunized any witnesses it wanted and compelled their testimony.

When the initial study was completed, on December 13, 2012, and because Republicans had not participated, all but one GOP member of the committee voted against approving the report. It was, in fact, approved 9-6. This committee has eight Democrats (Chair Dianne Feinstein (CA), John D. Rockefeller IV (WVA), Ron Wyden (OR), Barbara Mikulski (MD), Mark Udall (CO), Mark Warner (VA), Martin Heinrich (NM), Angus King (ME)) and seven Republicans (Saxby Chambliss (GA), Richard Burr (NC), James Risch (ID), Daniel Coats (IN), Marco Rubio (FL), Susan Collins (ME) and Tom Coburn (OK)). Likely it was Susan Collins who crossed over to approve the report, since she refused to join the six other Republicans who filed minority views. But Republicans did not all vote to block sending the report to President Obama with a request to declassify it for public release, a move approved by the committee with an 11-3 vote. (It would take some twenty months to agree with the CIA and Obama White House what could and could not be declassified and publicly released.)

The study itself runs 6,682 pages. The majority’s executive summary released on December 3, 2014, runs 525 pages. The executive summary of the minority views, the Republicans objections, run 167 pages. The Republicans on the Intelligence Committee claim that they found the evidence showed exactly the opposite of what the Democrats found. As reported by Politico, Republicans said: “We have no doubt that the CIA’s detention program saved lives and played a vital role in weakening Al Qaeda while the program was in operation.” Republicans claimed the report contains “faulty analysis, serious inaccuracies, and misrepresentations of fact” to create a series of false conclusions about the counterterrorism program’s effectiveness and the CIA’s interactions with Congress and the White House.

While the GOP report fails to address most of the study, and they admit the CIA program had a few “flaws,” they conclude that the CIA’s torture program worked, providing valuable intelligence information, although they provide no solid evidence of these facts. The GOP also makes clear they are not endorsing the CIA’s activities, yet they believe the report is purely political. Republicans appear confident that very few people will ever read this report. But anyone who takes the time to do so, will find their criticism ranges from petty to selective nitpicking. Given the fact that the Obama administration has no interest in doing anything about these illegal abuses of power, it is not clear why Republicans have bothered to say anything.

President Obama Torture Politics

“We tortured some folks,” President Obama admitted in reacting to the Senate’s report. He noted, “When we engaged in some of these enhanced interrogation techniques, techniques that I believe and I think any fair-minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.” This is about as blunt has Obama has been in acknowledging that torture was undertaken by the Bush/Cheney presidency.

Notwithstanding the fact it is illegal to torture under both American and international law, and the fact President Obama banned the use of torture during his presidency, he said he understood why it had occurred. “In the immediate aftermath of 9/11, we did some things that were wrong—we did a whole lot of things that were right, but we did some things that were contrary to our values,” Obama said. “I understand why it happened. It’s important when we look back to recall how afraid people were.”

According to the minority views of the Senate Intelligence Committee, the Department of Justice ended its three-year criminal investigation into the Bush/Cheney administration uses of torture on August 30, 2012. No one was charged with doing anything improper. This was no surprise, for presidential candidate Obama hedged during his campaign on this issue, only promising to investigate. It has long been clear that given his inexperience in national security matters, Obama does little independent thinking in this area. As I wrote some time ago in this space: “In a sentence: Obama, like many presidents, is now a captive of the national-security community. The professionals in the National Security Council, the Defense Department, the State Department, the Justice Department, Homeland Security, the CIA director, the FBI director, the director of national intelligence, etc., etc. did not want to prosecute their peers for torture.” So there were no prosecutions.

This is also consistent with the attitude of about half of America. In the aftermath of 9/11, Americans have become less concerned about using torture on our perceived enemies. American public opinion is about evenly divided that it is okay versus not okay to torture. So Obama’s disinclination to prosecute anyone for these conspicuous violations of law would appear to trouble only about half of the American public, and most of them those who supported Obama.

The President and those involved in a government-wide conspiracy to use torture have only one serious problem. The United States has promised the rest of the world it would prosecute war criminals, and it is not doing so.

Others Who Can Prosecute War Criminals

I have no idea if any of the following key official players in the scheme to torture detainees have left the United States for a vacation since leaving office (listed alphabetically): David Addington (former assistant to Cheney), Judge Jay Bybee (former assistant attorney general), Dick Cheney (former vice president), Donald Rumsfeld (former Secretary of Defense), George Tenet (former CIA director), and John Yoo (former Justice Department attorney). Based on conversations with international law experts, I do know that any one of them could be targeted by a number of foreign countries—to be precise any of the 122 countries that have given the International Criminal Court (ICC) jurisdiction—for prosecution as a war criminal should they leave the United States. In addition, theoretically the United Nations could put any of these people on trial.

But, as both the New York Times and The Washington Post have pointed out in recent articles, while it is possible these people could be prosecuted, it is not likely. Only the ICC seems to even be thinking about it. According to the Times, the ICC’s chief prosecutor, Fatou Bensouda, has confirmed that she is “assessing available information” on the use of “enhanced interrogation techniques.” But experts on this relatively new court do not believe it would or could successfully take on former officials of the United States for torture.

In short, no one should hold their breath awaiting prosecution of any Americans involved in committing torture. Nor should anyone have any hope that this latest report of the Senate Intelligence Committee will change anything. Rather no one should be surprised when our enemies continue “waterboarding” and start “rectal feeding“ Americans they take captive around the world. That will be the more lasting impact of the decision by Bush and Cheney to use torture.

John W. Dean, a Justia columnist, is a former counsel to the president.
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2014 in Review: The Ups and Downs of Child Protection Thu, 11 Dec 2014 05:01:44 +0000 Continue reading →]]> shutterstock_156116570This year has been an interesting year if for no other reason than that child protection issues are now front and center in the media, and there have been developments (some forward, some backward) at the state, federal, and global levels. Why is this a big deal? The short answer is that until about 12 years ago, there was mostly silence about child protection. The public did not know about the widespread child sex abuse being covered up by bishops, or children dying from treatable medical ailments, or short statutes of limitations that virtually guaranteed no child abuse victim would be able to obtain justice. At the same time, the institutions and individuals that created the conditions for abuse kept their secrets indefinitely, or at least until they could be certain they were protected from repercussions.

Children can’t vote and they have paid a price for it. Now, governments, legislators, and many others are working hard to find a way to protect children from dangers including child pornography, trafficking, medical neglect, and sex abuse. The great neglected are becoming the cared for, one step at a time. But there are also new risks for children, which require even more vigilance and which are a reminder that the protection of children requires consistent attention, not merely occasional nods in their direction.

On balance, 2014 confirms that a lot of activity does not necessarily mean good results. Yet, the very fact of the commotion educates the public and lawmakers for later developments. The following is only a summary of what happened in 2014, because inclusion of every development would require more than a column can accommodate.

2014 State Developments Related to the Protection of Children

Statutes of Limitations (SOLs). For information on each state discussed below (and the rest of them), check out

  • New York. This is a true case of some states moving forward, while a handful like New York are stuck in antiquated laws that only help perpetrators and institutions that cover up for them. New York yet again stayed firmly mired in the five worst states in the country for victims’ access to justice. The Republican senate has failed to act, and Gov. Andrew Cuomo has ignored the issue.
  • The California legislature passed a significant extension on the civil SOL and eliminated the criminal SOL. Like last year, Gov. Jerry Brown vetoed the civil extension. The criminal elimination is worthwhile nonetheless.
  • For the first time, Georgia considered significant improvement in its SOL. Nothing happened. A new bill has been introduced for the 2015 session.
  • Hawaii. This state led the pack with the first-ever two-year extension of a window (which revives previously expired SOLs for a set period of time), making their window the longest in history: a total of four years. This move proves that a window does not cause a state to sink into the ocean and is so obviously important to the common good (survivors, institutions, and the public alike).

Here is a 2014, 50-state comparison of civil SOLs for child sex abuse victims.

Light Shown on Evangelical Colleges, Sex Assault, and Incest. Bob Jones University and Patrick Henry College had sex abuse and assault scandals in 2014, with BJU officials telling victims to keep it to themselves for the protection of the faith. Sad for the survivors made feel like their suffering did not matter, but there is an upside. Such public scandals are actually the precursor to reform, so this is not all bad news.

Some Evangelicals Moving Toward the Protection of LGBT. Along with the Catholic bishops, evangelical Christians have led the battle against same-sex marriage, and against other rights of LGBT individuals. Chinks in the armor started to show several years ago when students emerged from the shadows and this year when a leader broke ranks and pledged to fight LGBT discrimination.

The Deaths of Children in Faith-healing Communities. Faith-healing communities are dangerous to children. One former member of a faith-healing sect told me that she had been to 135 funerals for children by the time she was 30.

Oregon has been an epicenter of large numbers of child deaths due to faith, most in the Followers of Christ Church and the Church of the First Born. The state has incrementally increased the legal accountability of faith-healing parents to ensure their children do not die, and prosecutors have stepped up. The good news for children is that there were jury convictions against faith-healing parents in 2014, which raises deterrence and sends a message that the deaths of children from medically treatable ailments even in insular groups are unacceptable.

Idaho has witnessed an influx of faith-healing believers and the attendant child deaths that follow. The issue became so worrisome that legislation was proposed to increase legal options for prosecutors in such cases. It was blocked.

State Religious Freedom Restoration Acts (RFRAs). The worst news for child protection in the religious context has been the fevered push by religious organizations, largely prompted by the goal of permitting believers to refuse to do business with LGBT individuals. But these laws also create an opening for faith-healing parents to avoid liability and criminal accountability for the death or disability of their children. From the perspective of children being beaten, sexually assaulted, suffering statutory rape, or suffering on their way to death from easily treated ailments, a state RFRA is more of a Religious Act of Tyranny (RAT).

Bill Cosby. There was also a moment of public education when over 20 women came forward with similar charges of rape through being drugged or intoxicated. In the wake of a woman who was a child when the abuse occurred, the short SOLs for rape became a standard discussion in the media and in ordinary discussions. The country was also treated to the usual modus operandi: child and women rape cases involving the powerful (whether celebrities, organizations, religious leaders, or sports teams and leagues), are subjected to scorched earth legal practices, including the use of the SOLs in cases where over 20 rapes have been alleged nationwide. We also witnessed the big change on these issues as the prosecutors in LA are seeking to meet with Cosby despite the fact so far all cases alleged have missed the criminal SOLs.

2014 Federal Developments Related to the Protection of Children

The federal arena was not a particularly successful venue for child advocates.

Restitution for Child Pornography. In Paroline v. United States, the Supreme Court addressed the following “Question Presented”:

In determining restitution in child pornography cases pursuant to 18 U.S.C. 2259(b)(3), is the award of restitution limited to losses proximately caused by the defendant’s criminal actions or may a defendant be required to pay restitution for all losses, regardless of whether his criminal acts proximately caused the loss?

In other words, does federal law permit a victim of child pornography to obtain restitution from one perpetrator, whether viewer, possessor, or creator, and force one defendant to pay all of the restitution potentially due from all. In Paroline, the question was whether a possessor of two images could be liable for all of the damages produced by the most widely distributed child pornography images in history.

The Court said, “No,” and advocates immediately went to Capitol Hill to lobby to level the playing field between child pornography victims and the child pornography marketplace. There are good ideas out there, but nothing from Congress yet.

Milwaukee Archdiocese Bankruptcy in Federal Court. The apparently never-ending Milwaukee Archdiocese bankruptcy, which was filed when there were only a few sex abuse cases, but ballooned to over 550 survivors, has hit one snag after another. Last week, a group of priests, survivors, and advocates sent an open letter to Pope Francis, asking him to do something about the way the Archdiocese has treated the victims of priests in the parish.

The President and all members of Congress failed to acknowledge the fact of clergy sex abuse and the role religion has played in creating the conditions for abuse. Congress and the President continued their 12-year tradition of never uttering the term “clergy sex abuse,” let alone acknowledging its existence. Apparently they believe only the Australian federal government should hold churches responsible for the protection of children from horrendous actions by trusted religious leaders, which I discuss below. Our national leaders sadly have chosen the path of political least resistance, rather than justice and the protection of children. It will be interesting to see whether the presidential candidates and their parties take up child safety as a platform plank. It was a lot easier to ignore the issue 12 years ago. They ignore it now at their peril.

2014 Global Developments Related to the Protection of Children

The global developments were awe-inspiring. 2014 was the first year a child ever won a Nobel Prize, Malala Yousafzai, and it was for the educational rights of children. At the urging of the Survivors Network of those Abused by Priests (SNAP), the United Nations Committee on Children condemned the Holy See for its failure to protect children in very strong language. The Australian Royal Commission has made headlines with its investigation into abuse in all religious entities. It has been a national catharsis, but the results are also deeply disturbing. Australia leads the world in frankly addressing child sex abuse in the religious context and in educating its public (and the world) in the ways many respected faiths endanger children.

On the horrific side, Boko Haram’s kidnapping hundreds of school girls and raping them or giving them away to other men is tragic, to put it mildly.

To sum up, there are some good reasons to celebrate 2014 but no justification to slow down the fight for child protection.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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Imagine Life in the First World: Reforming the Ideology of American Justice Thu, 11 Dec 2014 05:00:49 +0000 Continue reading →]]> American Flag DawnIn a recent Verdict column, I argued that Michael Brown’s death was the predictable product of an ideology that consistently pits a frightened “us” against an imagined “them.” The column received a fair amount of attention, as these things go, most of it thoughtful and constructive. But a few people reached out in frustration. When it comes to criminal justice, they asked, what choice do we have? If not this, what?

The search for alternatives has more recently taken on even greater urgency. Though I was not surprised by the result of the grand jury deliberations in Ferguson, I thought the system had at least enough humility to police its outer limits. But if an officer, surrounded by a fistful of armed colleagues, can kill an unarmed, non-violent African American man on video and in broad daylight on the streets of the largest city in the country by applying an unauthorized chokehold for the apparently unpardonable sin of selling unlicensed cigarettes, and not be indicted for anything, then I must be mistaken. (It obviously makes no difference that the officer insists it was not a chokehold, despite appearances to the contrary. That’s why we have trials.)

So in this column I hope to begin a discussion about alternatives. My approach is deliberately deductive, beginning from first principles that I hope enjoy broad support rather than particular policies that might be ripe for reform. I am also necessarily provisional, since this is a column and not a book. But conversations have to begin somewhere.

First, however, to spare readers from the unpleasant feeling that they have wandered into the middle of a movie, let me summarize my earlier column.

The Ideology of American Justice

Imagine two very different worlds. In the first, everyone is presumptively innocent and equal, free to go about their affairs unmolested by the State to the maximum extent possible. In the second, society consists of “us” and “them,” and the most pressing concern is to protect the former from the latter. Crime exists in both, but in a world of Venn Diagrams, the criminal justice system created by the first world overlaps very little with the system created by the second.

In the first world, we restrain the constable to liberate the people. We are parsimonious with the State’s power to search, seize, prosecute, and punish, and condition the police to view members of society as genuinely equal, in fact as well as law, and admonish them to ignore irrelevant differences.

To be sure, mistakes of a particular sort are inevitable in this world—the guilty sometimes go unpunished. But the people tolerate these errors as the price of personal liberty and equality.

In the second world, however, we unleash the constable and direct him to protect some from others. We are profligate with the State’s power to control perceived threats, and condition officers to view some people as suspicious in order to incapacitate wrongdoers before mayhem strikes.

At the same time, laws in the second world proliferate as an instrument of social control, since each new law gives the State an additional weapon in the always-escalating campaign to protect us. The people encourage the police to make liberal and frequent use of these laws, and to devote extra resources to ensnare as many of “them” as possible.

In the second world, mistakes of a different sort are inevitable—innocent people sometimes suffer terribly, and some who are guilty often suffer far more than is justified by a neutral moral code. But the people tolerate these errors as the price of protection.

For a few years, the Supreme Court guided the United States toward the first world. But since the late 1960s, all three branches of the federal government and all fifty states have tacked sharply toward the opposite shore. Politicians and judges have steadily enlarged the government’s power to monitor, search, stop, arrest, prosecute, imprison, and execute those who fall outside the magic circle that separates us from them.

It is this philosophy that militarized the police, destroyed so many communities, disenfranchised so many citizens, strapped us with over-criminalization, and built so many prisons, filling them far beyond capacity with a disproportionate number of black and brown men and women. And of most immediate relevance, it is this mindset that conditioned a cluster of New York’s finest to view the non-violent Eric Garner as a mortal threat. Lest there be any doubt, we live in the second world.

A New Vision of Justice: Life in the First World

Now consider a possible alternative. In the first world, we detect the persistent influence of four core beliefs. To begin with, people are perennially wary of coercive authority, for fear that it will burst through its restraints. Likewise, they are committed to as much personal liberty as possible, which teaches them to be indifferent to individual behavior that has no effect on others. They are also scrupulously solicitous for the welfare of rich and poor communities alike, as well as all who live within them. And finally, while they are willing to depart from these principles if necessary, they are apt to do so sparingly, and only after open debate.

A genuine and thoroughgoing attachment to these beliefs has yielded a set of questions against which the people in the first world measure nearly any criminal justice policy. Consider, for instance, the debate over police body cameras. The evidence is quite strong that cameras like these lead to a dramatic reduction in police violence. Yet some police unions complain they violate the officer’s privacy. This choice is easy in the first world: the interest in community welfare readily combines with a wariness of coercive authority to trump the officer’s asserted interest in privacy. In the first world, officers wear body cameras.

The same analysis allows people in the first world to resolve various questions about police enforcement strategies. For instance, in the first world, people are exceedingly skeptical about policy choices justified solely by the promise of more arrests. For that reason, they eschew the sort of incentives created during the War on Drugs, when the federal government began to measure the success of local police departments by the number of drug arrests they made. This led officers to focus on African American users, who more often consumed drugs on the streets and in open-air markets, rather than white users, who use drugs in greater numbers but who tend to remain behind closed doors. In the first world, this policy betrays the commitment to restrain the constable, and to treat rich and poor communities alike. (Notably, the Obama Administration just announced plans to reform the War on Drug grant programs and remove this very incentive.)

At the same time, people in the first world are more apt to resist the siren of moral panic, those episodic convulsions when society becomes convinced that yet another group threatens its very existence. Moralists have always announced these panics with the same tired wail: “Unless we rise up in opposition to X,” they warn, “society will perish.” X has been the Catholic, the Jew, the Italian, the Communist, the Mexican, the Muslim, but most of all it has been the African American.

But X has also been the drug addict, the juvenile “super-predator,” the gang-banger, the crack whore, and the welfare queen. No enforcement strategy is too aggressive, no prosecution tactic too extreme, no sentence too long, no condition of confinement too severe if it spares us from these and equivalent marauders. In the first world, the people are suspicious of these proclamations. They hear in them an illicit appeal to the unrestrained exercise of coercive authority for the illegitimate purpose of dividing “us” from “them.”

Of course, these examples are merely illustrative. We could no doubt think of many other laws and practices employed in our world that violate one or more of the organizing principles of life in the first world. Yet aggregating examples is not nearly as important as grasping what it means to adopt an entirely different ideology of justice.

Life in the first world would supply a moral philosophy—a set of predispositions, biases, and expectations—that would eventually harden into fixed policies. Only at first would we find it necessary to follow the flow chart as we ponder whether to adopt or reject new criminal justice policies: does the proposed policy adequately restrain coercive authority, give maximum berth to personal liberty, and treat rich and poor communities alike?

In time, these questions would recede from conscious articulation and be replaced by confident declarations that certain criminal justice practices are simply un-American. Eventually, we would no more accept the idea that the police might roll through town in a tank and arm themselves with the weapons of war than we would accept trial by voodoo, and would find further explication completely unnecessary.

And this brings us to the most important transformation of all. In time, the unthinking determination to multiply laws, expand coercive power, and devise ever-more repressive mechanisms of control, would wither away. We would no longer reach reflexively for the criminal law to help us corral “them” into steel pens, for at last we would come to see, there is no them. There is only us.

Joseph Margulies is a Visiting Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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The Supreme Court Considers “True Threats” and the First Amendment Wed, 10 Dec 2014 05:01:45 +0000 Elonis v. United States, in which the Court will consider what constitutes a “true threat.” Specifically, Colb considers whether the First Amendment right of free speech prevents criminalization of threatening speech only if the speaker intended to bring about fear of bodily harm or death, or if it is enough that a reasonable person uttering those words would have anticipated they would be interpreted as such a threat. Continue reading →]]> Constitution GavelLast week, the U.S. Supreme Court heard argument in Elonis v. United States, a case that asks what a “true threat” is. In prior cases, the high Court has said that true threats may be criminally punished, notwithstanding the First Amendment protection for the freedom of speech. In Elonis, the question is whether the person who utters a true threat must subjectively intend to bring about fear of bodily harm or death or whether it is enough that a reasonable person uttering the words in the context would foresee that his words would be interpreted as such a threat.

In the case before the Court, the question breaks down into two parts: (1) Did Congress require intent in the statute under which Anthony Elonis was prosecuted and convicted, 18 U.S.C. §875(c); and (2) Regardless of what the statute provides, does the First Amendment right of free speech require that only a person intending to cause fear with his threatening utterances be subject to criminal penalties? In this column, I will examine the second, constitutional, question in light of the reason that we exclude true threats from protection for speech under the First Amendment.

True Threats

As commentators and Supreme Court Justices alike have noted, the phrase “true threats” is quite misleading. One might imagine, upon hearing the phrase without explanation, that in order to be criminally penalized, a threat must be “true” or “accurate” and that, accordingly, threats that never come to fruition remain lawful and protected under the First Amendment. Neither the Supreme Court nor any of the parties in Elonis, however, understands the phrase this narrowly. We know from prior cases that a threat need not be carried out to be criminally cognizable.

A true threat is a threatening utterance, i.e., a statement that is not just hyperbole, not just a joke, and not a comparably non-threatening threat-like statement. One example of something that would not count as a true threat would be the Elvis Costello song “My Aim is True,” which might sound, out of context, like a threat to kill a woman named Allison, but is in fact just a song.

The petitioner, Anthony Douglas Elonis, was prosecuted and convicted of threatening his estranged wife, the state and local police, a kindergarten class, and an FBI agent. Here are some of his utterances on Facebook on the basis of which he was prosecuted:

After his wife obtained a protective order against him, Elonis posted:

Fold up your PFA [protective order] and put it in your pocket
Is it thick enough to stop a bullet?

And if worse comes to worse
I’ve got enough explosives
To take care of the state police and the sheriff’s

The day after that communication, he posted the following:

That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
To initiate the most heinous school shooting ever
And hell hath no fury like a crazy man in a
Kindergarten class
The only question is … which one?

After a visit from the FBI, Elonis posted this:

You know your shit’s ridiculous
When you have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch
Pull my knife, flick my wrist, and slit her throat
So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives expert
While you’re at it
Cause little did y’all know, I was strapped wit’
A bomb

The jury was instructed that in order to convict, it would have to conclude that a reasonable person uttering the statements that Elonis made in context could have foreseen that his words would cause fear. Elonis claims that the jury should instead have been required to find, as a prerequisite to conviction, that Elonis had subjectively intended for his words to cause fear.

In the Supreme Court’s last case addressing the question of true threats, Virginia v. Black, it used some language that supports Elonis’s position. It said that “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” (emphasis added) The Justices also rejected a jury instruction that would have allowed the jurors to infer an intent to intimidate solely on the basis of the fact that the defendant burned a cross.

This language and ruling suggest that perhaps a prosecution for a true threat must, to be constitutionally permissible, include an instruction requiring the jury to find a subjective intent in the defendant to intimidate. This conclusion, however, does not necessarily follow from Black, since the statute in Black specifically required an intent to intimidate, and the Court’s language might therefore have indicated only that where a statute requires proof of intent as an element of the crime, the jury must not be invited to infer such required intent from an action that, while often intended to intimidate, can—on occasion—be intended to do something else (such as express solidarity with the white supremacist movement) and importantly, might—in context—not be reasonably understood as threatening. In Elonis, by contrast, the statute arguably does not require proof of intent, while the instruction given did, unlike the instruction in Black, require the jury to look at context—and not the bare communication alone—to determine whether a communication was or was not a threat.

Because Black is distinguishable from Elonis, even those Justices who are strongly committed to stare decisis (the importance of the Court following its own precedents) are free to decide Elonis in accordance with their present reactions to the arguments in this case.

What Is the Difference, for Harm Prevention Purposes?

In thinking about what the best definition of true threat would be, we might begin by evaluating why we have a true threat exception to protected speech in the first place and how well the “intent” vs. “reasonably foreseeable effect” distinction maps onto the answer to that question.

True threats are subject to criminal prohibition because they have harmful effects on their targets, even when the threats are not actually carried out. If someone were to call John Doe on the telephone and say that he plans to blow up Doe’s child’s school today, then Doe would probably feel extremely scared, keep his child home from school, and maybe also notify the school office of the threat and thereby motivate the school to close for the day, pending a bomb squad clearance of the school grounds. Even if the caller has no plans of setting off any explosives, then, the result of his “speech” is to generate terror, to keep children out of school for a day, and to cost both money and attentional resources to ensure the safety of the school. All of these effects are very destructive and an unacceptable price to pay for the caller’s exercise of his freedom to call Doe and utter the words, “I am blowing up your child’s school today.”

Often, when we prohibit criminal conduct because it is harmful, we do not require what is called “specific intent,” that is, an intent to bring about the consequences that in fact followed from the conduct. If you close your eyes and shoot a gun out a window toward the ground and kill someone, you can be guilty of homicide (and perhaps even of murder) even if you did not intend to cause anyone to die. It is enough that you intended to shoot the gun out a window, given the reality that there are people outside.

On the other hand, when we prohibit inchoate criminal conduct—conduct the harmful impact of which does not come to fruition—we often do require specific intent. To prove attempted murder, for example, it is generally necessary to prove that the actor actually intended, by his actions, to bring about the death of another.

One reason one might think that specific intent (to generate fear) is a necessary part of proving a true threat is that threats in some ways “feel” like inchoate criminal conduct. Like shooting at someone and missing, it might seem that the harm was averted but that we are still willing to punish the actor if his behavior was intended to cause harm, both because his intentions signify his future dangerousness and because an intent to cause harm makes him a more culpable person, deserving of punishment even if he did not happen to succeed in his objectives. If one who communicates threats is engaged in an inchoate crime, if his threat has not been carried out, then maybe the same logic should apply: unless he intended his conduct as a threat, he either is not dangerous or is not sufficiently culpable to be worthy of punishment.

But the conception of a threat as an inchoate crime is inaccurate. A threat is not a failed attempt at doing something bad; it is the bad thing itself. Making a threat disrupts other people’s lives by generating intense fear that is destructive in and of itself and that also causes people to take costly and otherwise harmful measures to protect themselves. What makes it wrong to threaten people, then, has little to do with identifying dangerous or culpable actors and has a lot to do with punishing those who actually inflict the harm that threats inflict on others. As Vikram David Amar and Alan E. Brownstein explained in their excellent column on the subject of this case, “threats wound by their very utterance.”

Once we understand that a threat is essentially a bad act rather than a failed attempt at completing a different bad act (i.e. the threatened behavior), it makes little sense to have responsibility turn on what the actor’s real purpose was in uttering the words that he or she uttered. One could certainly rank the threatening words as more or less culpable, depending on the speaker’s intentions, just as we rank intentional murder more seriously than negligent homicide. But some criminal responsibility—and the corresponding exception to the First Amendment protection for free speech—ought to match up with the harmfulness of the conduct.

Provided that the speaker intentionally and actually uttered the words that he uttered, a basic legal requirement that neither side disputes, he ought to be held accountable for making a threat if a reasonable person saying those same words in the context in which he said them would foresee the impact of the words in generating fear.

What Is the Difference, for “Chilling Effect” Purposes?

In thinking about what the best definition of a true threat would be, an evaluation of harms is only part of the calculus. A second part considers how a criminal prohibition might result in self-censorship. One argument for requiring intent on the part of the speaker of true threats is a concern about chilling legitimate protected speech.

If a speaker can be guilty of uttering actionable true threats without having meant to threaten anyone, based merely on what a reasonable person would have foreseen, then some or perhaps many speakers will refrain from saying potentially valuable things on social media (or elsewhere) that could be taken the wrong way or misunderstood. By instead requiring the prosecution to prove that the speaker really intended to scare his targets, the law would help guard the speech of those who mean no harm and who might worry that they do not think exactly like the elusive “reasonable person.”

As a general matter, the worry about chilling effects is an important one. Whenever the Court recognizes an exception to the freedom of speech (whether for “fighting words,” actionable “defamation,” “incitement,” “obscenity,” or true threats), there is a risk that people who have valuable ideas to communicate will silence themselves out of fear that their words will come under one of the permissibly-prohibited categories. Just the other day, I listened to a podcast in which the host said something like “when people say such stupid and offensive things, I feel like I just want to take a hatchet to all of them.”

Immediately after uttering these words, the podcast host added something along the lines of, “I’m probably going to end up getting arrested or having an FBI file because of what I just said.” In his case, the podcast host was, of course, not chilled from speaking, but he did immediately thereafter feel the force of the First Amendment exceptions for threatening speech, notwithstanding the fact that what he said, especially given the context, would not fall within any of the unprotected categories. Next time, he might just say nothing, to be on the safe side.

It is unclear, however, that requiring proof of “intent” would diminish any of the potential chilling effect that the true threat exception to the First Amendment already has on protected speech. Consider a very astute question posed by Justice Sotomayor during oral argument. She asked, “[I]sn’t the jury acting like a reasonable person in looking at the words and the circumstances and saying, did he intend this or didn’t he?…. I mean, how is that different from what you intend? If you know if a reasonable person is going to read these words this way, aren’t they going to assume that’s what the defendant intended?”

Stated differently, a jury cannot directly view the contents of a defendant’s mind to determine whether he did or did not actually intend to cause fear. Instead, a jury must necessarily ask what, given the circumstances, someone in the defendant’s shoes would have meant to convey in uttering those words. This is how we generally interpret intent—we look to an individual’s behavior, and we then ask ourselves what someone behaving in that way would have been trying to say or do.

To the extent that a particular speaker deviates from the norm and has intentions that differ from those of most people acting as he does, the speaker cannot simply relax about the impact of his words and assure himself that he knows that he does not intend to cause fear in anyone. Each juror will necessarily be making the judgment of what he intended from her own point of view.

A perfect illustration of how little the “intent” requirement would do to mitigate any potential chilling effect is the answer that Elonis’s attorney, John P. Elwood, gave to one of Justice Kennedy’s questions at oral argument: “On the facts of this case on remand, could the government proceed on this evidence with your instruction? Would there be enough to go to the jury with your preferred instruction?” Elwood’s response was, “I believe there would be enough to go to a jury. We think that this is a triable case….”

That answer means that the “intent” requirement would not, even on the petitioner’s account, keep Elonis’s case away from a jury. And this is actually not surprising, because it will often be the case that if the evidence supports a finding that a speaker’s words would foreseeably generate fear, given the circumstances surrounding the making of the statement, then it will follow as well that the evidence supports a finding that the speaker subjectively intended those reasonably foreseeable consequences of his actions. It will thus ordinarily be a jury question whether a set of facts that supports a conviction under the “no-subjective-intent-necessary” standard embraced by the Third Circuit (and almost all of the other circuits to have considered the question) does or does not also support a conviction under the “subjective-intent-must-be-proved” standard pressed by the petitioner. And the jurors themselves will, in many cases, use the same mental process to answer both questions, namely, asking what a person uttering the particular defendant’s statements under the circumstances would mean for their impact to be. Indeed, when the target of a true threat becomes scared, it is because she has answered this question affirmatively, via a similar mental process.

In Elonis’s case, it will therefore likely make little difference to the ultimate outcome whether the law requires “intent” or whether it is enough that a reasonable speaker under the circumstances would foresee the fear that his words would generate. When people say things in circumstances in which a reasonable speaker in their position would foresee terrified victims at the other end, most of us—jurors and victims alike—will conclude that the speakers meant for that result to follow. In some sense, the constitutional question in this case may therefore be much ado about nothing.

Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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Tightening the Reins on Single-Sex Classes in Public Schools Tue, 09 Dec 2014 05:01:41 +0000 Continue reading →]]> Coeducational SchoolThe Department of Education’s Office for Civil Rights (OCR) just issued a much-needed clarification of its prior guidance on the legality of single-sex classes within public schools. A clarification of a guidance of a law may seem like the epitome of bureaucratic mumbo jumbo, but, in this case, the clarification was needed to halt a runaway train—single-sex classes being implemented in public schools around the country in clear violation of existing law and designed in ways more likely to create gender inequality than eradicate it.

Title IX and Single-Sex Education: Complicated and Changing Terrain

Title IX of the Education Amendments of 1972 prohibits schools that receive any federal funding from discriminating on the basis of sex. As a practical matter, this law applies to all public schools, as well as to most private colleges and universities. This core provision is supplemented by administrative regulations that explain the law’s application to athletics, pregnancy, harassment, etc. The regulations also explain its application to single-sex education.

Under these regulations, private elementary and secondary schools can operate single-sex programs, without regard to the opportunities available to students of the other sex. Under the original regulations, however, public schools faced greater restrictions in single-sex education (both classes and entire schools) under Title IX, because they need to independently comply with the sex equality mandates of the Equal Protection Clause.

Public school districts could operate single-sex elementary and secondary schools only if they made a “comparable” school available to students of the excluded sex. OCR interpreted this regulation to require that the comparable school also be a single-sex school. So a school district could operate identical all-male and all-female schools, but could not offer particular programs in one, but not the other, nor operate a single-sex school for only one sex. A district could offer a single-sex school for only one sex if doing so was designed to compensate for past discrimination against students of that sex—a so-called affirmative action rationale.

The restrictions on single-sex classes within coeducational public schools, were even more stringent. Coeducational public schools could not offer single-sex classes, except for those involving participation in contact sports, and those primarily relating to human sexuality. Only if a single-sex class was designed to make up for prior discrimination against students of one sex could it be offered in any other subject.

Loosening of the Reins: The 2006 Education Regulations

In 2006, the Department of Education adopted new federal regulations designed to carry out George W. Bush’s desire to increase single-sex educational opportunities in public schools. Hundreds of single-sex classes and schools sprung up quickly after these regulations were adopted.

The 2006 regulations departed from the original ones most significantly by opening up the door generally to single-sex classes and extracurricular activities. Under the 2006 standard, a public elementary or secondary school can restrict classes or activities to one sex in order to meet one of two important objectives: (A) “To improve educational achievement of its students, through [an] overall established policy to provide diverse educational opportunities; or (B) To meet the particular, identified educational needs of its students.” (The former is generally called the “diversity objective,” while the latter is called the “needs objective.”) With respect to either objective, the “single-sex nature” of the program must be “substantially related to achieving that objective.”

If serving a valid objective, single-sex classes or activities are limited in only three ways: School districts must administer them in an evenhanded manner, student enrollment must be completely voluntary, and all students must be provided a “substantially equal coeducational class or extracurricular activity.”

Schools were supposed to police their own compliance with these requirements. The regulations called for periodic self-evaluations to “ensure [single-sex programs] are based upon genuine justifications and do not rely on overly broad generalizations about the different talents, capacities, or preferences of either sex.”

Single-Sex Classes in Public Schools = Stereotypes Run Amok

When the 2006 regulations were adopted, many voiced concerns that the more lenient standards would throw open the door not just to single-sex classes, but also to free traffic in the gender stereotypes that Title IX was designed to eradicate. There was also a fear that single-sex education had few, if any, proven positive benefits to offset the harm from proliferating stereotypes. Those fears, it turns out, were certainly well taken.

An ACLU investigation revealed widespread violations of the law—and even more widespread reliance on the faux science and stereotypes that schools were cautioned to avoid. (Its preliminary findings are here.) Several schools were sued and ordered to eliminate the single-sex classes they had implemented, given that they openly violated even the lenient 2006 regulations. A public middle school in West Virginia, for example, was ordered to cease its single-sex classes because they were mandatory, rather than voluntary as the regulations require.

The ACLU found, after initial research in 21 school districts, that “many public school districts misapprehend the [new regulations] relating to single-sex classes and have instituted programs based on sex-stereotyped instruction.” Certainly one surprising aspect of these findings, which are discussed in more detail here, is that many schools failed to comply even with the clear, objective requirements like voluntariness and the requirement of self-evaluation. And most failed to articulate the required predicate—that they had a valid objective for segregating students by sex. School districts seemed to adopt single-sex classes simply because they were suddenly permitted to—not because they identified any problem such classes would solve.

And along the way to remedying a problem that might not have existed in the first place, many of the schools were at least potentially causing harm. The ACLU also found that “[v]irtually all” of the programs studied “were premised on the theory that ‘hardwired’ physiological and developmental differences between boys and girls necessitated the use of different teaching methods in sex-separated classrooms.” This methodology is based in many cases on the work of Leonard Sax and Michael Gurian, both of whom have argued that biological differences between boys and girls dictate different educational responses. To take just one example, Gurian “has claimed that boys are better than girls in math because their bodies receive daily surges of testosterone, while girls have similar skills only ‘a few days a month’ when they experience ‘increased estrogen during the menstrual cycle.’”

A Much-Needed Course Correction: The December 2014 Clarification

In light of the concerns raised by the ACLU and others, and the successful lawsuits against public schools, OCR issued a clarification of the existing regulations. This document, available here, does not change the regulations themselves; it merely answers questions about the rules in the hopes that schools will be better equipped to assess their own compliance. By publicizing and explaining the rules, the clarification will also make it more likely that parents and students will more easily be able to challenge violations in their home districts—and when and if OCR conducts an audit or investigates a complaint, the agency will be better able to spot and remedy violations. The paragraphs below highlight some of the most important issues tackled in the clarification.

Justification for Single-Sex Classes or Activities: Each individual class or activity from which members of one sex are excluded must be justified either under the “diversity objective” or the “needs objective”. Thus, while a school may have a valid objective served by single-sex classes in one subject, it must articulate an independent objective for single-sex classes in any other subject. Also, a school must establish its valid objective before offering the single-sex class. During an audit or investigation, OCR will ask for proof of the documented, real reason for the offering, rather than a post hoc rationalization.

Diversity Objective: The clarification states that a single-sex format cannot be the only “diversity” in the educational curriculum. Rather, a school citing this objective must point to other diverse offerings or teaching styles in order to defend a single-sex class under this rubric. It gives (and approves) the example of a school that seeks to improve college preparedness by offering a variety of electives and specialized curricular options—and some single-sex Advanced Placement classes.

Needs Objective: To justify single-sex classes based on need, a school must identify a particular educational need, “evidenced by limited or deficient educational achievement,” and show that the single-sex offering is substantially related to remedying the deficiency. These offerings can be used to remedy learning as well as social deficits—e.g., a single-sex extracurricular program designed to reduce a known problem of dating violence. Administrative convenience can “never justify the offering of single-sex classes,” the clarification states. Moreover, there must be a substantially equal co-educational option to every single-sex class offered. (Whether a class is substantially equal depends on a variety of enumerated factors.)

Substantial Relationship to the Important Objective: On this score, the clarification presses schools to do legwork that few, if any, have done before adopting single-sex offerings. Schools must provide direct evidence, before changing the curriculum, that single-sex offerings are likely to remedy the cited problem and do not “rely on overbroad generalizations about the different talents, capacities, or preferences of either sex.” It suggests collecting data from comparator schools that have used similar offerings to remedy similar problems—and using all non-gender-related strategies first before resorting to single-sex classes. The clarification recommends reliance on evidence-based research showing that the strategy the school proposes is likely to work. It emphasizes the need for research that is designed to draw causal (as opposed to merely correlative) inferences. Finally, OCR states that the claim that a certain teaching strategy is more effective for one sex than the other does not by itself, even if true, justify single-sex offerings. The evidence must show also that such a strategy works better (or works only) in a single-sex setting. In other words, if it were proven that boys benefit from a certain learning style more than girls, it must also be shown that the benefit can only be captured if girls are excluded from the room while it is being invoked.

Evenhandedness: Even if single-sex classes serve a valid objective, they must also be evenhanded. The clarification states first that this means single-sex offerings for one sex must be offset by single-sex offerings for the other. If curricular diversity is the cited objective, the “diversity” must be equally available to both sexes. The classes do not necessarily have to be offered in the same subjects, but a school must base its choices on pre-enrollment information collected from parents and students. If “need” is the cited objective, schools must target the offerings precisely—if both sexes need a single-sex math class, both must get it. If only one needs it, the other one cannot have it imposed, but must get something in another subject.

Voluntariness: The longstanding rule that single-sex classes must be voluntary seems very clear. And yet, it is routinely violated. The clarification states that enrollment in a single-sex class must be “completely voluntary” and urges schools to collect affirmative consent from parents before enrollment. It provides further that schools cannot require students to “opt out” of a single-sex class—a known technique for coercing inclusion—but must ask them to “opt in” instead. It must also equalize the registration process for single-sex and coeducational classes, so as not to subtly influence a student’s decision. OCR also encourages dissemination of significant pre-enrollment information so parents and students can make informed decisions about whether to enroll in single-sex classes.

Periodic Evaluations: The clarification provides substantial advice on how to conduct the required biannual self-evaluations. It urges schools to examine not only offerings, but also teaching methods to ensure teachers do not employ sex stereotyped methods. For example, if teachers have learned that boys are born with less sensitive hearing than girls, they might follow Joseph Saks’s suggestion to talk loudly to boys in the classroom to boys, but quietly and gently to girls. However, teachers could not rely on this discovery, even if true, unless there was also scientific evidence that different teaching methods (e.g., loud talking) were more effective for boys than girls. As the clarification explains, the “leap from the biological differences to the use of a particular method or strategy for students of one sex, without the support of evidence regarding the educational effectiveness of the method or strategy for one sex over the other, resulted in an overly broad generalization (that loud talking would improve boys’ ability to learn).” Teachers could still talk more loudly to boys than girls, but to do it in a single-sex setting requires more targeted evidence.

Transgender Students: Buried at the end of the clarification, OCR states that transgender students are to be evaluated, enrolled, and so on, based on their gender identity (as opposed to birth or anatomical sex).


OCR’s clarification rightly responds to the questionable and likely harmful implementation of single-sex classes and activities in public schools. The 2006 regulations were focused on increasing the number of these offerings without focusing on the need for them or the harm they might entail. This clarification is a potent reminder that public schools must heed not only the mandates of Title IX, but also the Equal Protection principles that have all but dispensed with the separate-but-equal notion in the gender context. And single-sex offerings, at least as deployed in most instances, fly directly in the face of our modern notions of equality. Schools that continue to violate the existing regulations with regard to single-sex classes do so at their peril.

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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How Federalism Cuts Against the Challengers in King v. Burwell: Part Two in a Two-Part Series Mon, 08 Dec 2014 05:01:21 +0000 King v. Burwell. In this second of a two-part series, Amar addresses some counterarguments to his thesis that federalism principles bolster the federal government’s position in that case. Continue reading →]]> SCOTUS at DuskIn Part One of this two-part series, I contended that the reading of the Obamacare statute offered by the plaintiffs in the important King v. Burwell case pending in front of the Supreme Court was problematic for reasons grounded in federalism. In particular, I argued that even if the plantiffs’ reading—that Congress, by using the phrase “established by the State” in certain places in the Act, intended that citizens of states that did not set up exchanges would not be eligible for federal tax credit health insurance subsidies—reflected the best overall interpretation of the statute, such a reading could not be accepted because it fails the requirement that Congress speak in a “clear voice” if it wants to condition the receipt of federal moneys on things that participating states must do. In the space below, I discuss possible counterarguments to my thesis, and also explain why I believe the federalism perspective I discuss adds an important element to the federal government’s position in the King case.

Should the Clear-Voice Requirement Apply When There Is Only One Condition?

Perhaps the most forceful counterargument to my thesis is that the “clear voice” requirement on which I rely should not apply when the alleged congressional spending condition in question is the only condition in the picture, as distinguished from the more common instances in which everyone agrees that Congress imposed some conditions on states for the receipt of federal funds, but the question is whether one or more additional conditions were stated clearly enough by Congress. Why should this difference arguably matter? Because when everyone agrees Congress has clearly imposed some conditions, and participating states have already satisfied those conditions, participating states can be said to have already done something for the federal government. If those states are then confronted with additional, arguably unclear requirements they must also satisfy, the terms of the bargain seem to be changed. Since the Supreme Court has observed, first in the seminal case of Pennhurst State School & Hospital v. Halderman, that “[l]egislation enacted pursuant to the spending power is much in the nature of a contract,” when states take actions to satisfy some federal conditions, they could be said to have transferred “consideration” to the federal government (in the form of helping the federal government accomplish whatever policies are furthered by the conditions the states have met.) By contrast, if there is one and only one condition (and its clarity is in doubt), no states can be said to have given any consideration to the federal government in any respect.

But if the presence of consideration were necessary, a state faced with a statute that created a clear condition on federal funding alongside an arguable and in any event unclear condition would be unable, prior to the state’s having done anything to satisfy the clear condition, to obtain a judicial declaration that the unclear condition is not valid on account of its lack of clarity. At most, a state could get a court to declare whether the unclear condition was in fact an actual condition. Yet I believe that a court in this situation would apply the “plain voice” requirement to free the state from having to satisfy any unclear conditions.

And remember too that the Court has said that conditional spending is “much in the nature” of a contract, not that it is a contract itself. And there is another doctrine, known as “promissory estoppel,” that is “much in the nature” of a contract but that does not require consideration, and instead focuses on the reliance placed on a promise. Consider the following hypothetical. Congress promises a state $X of funding to be used for highway construction for each of the next three years. In Year Two, Congress’s budget has provided for the expenditure, but now someone urges that there is the non-obvious requirement in the original statute that states that receive the funding raise their legal drinking age to 25. Could a state be allowed to object to this unforeseeable condition even though the state (up to this point) has not given the federal government anything beyond spending the federally disbursed money as directed? I think the answer is yes, because a state could have relied on the federal promise of funding in deciding how to budget its own state funds for roadwork. Or in deciding what roadway safety laws to enact or reject. And if this is true for road funding, the same would have to be true for money earmarked for healthcare. So if Congress promised three years’ worth of federal funding to states for Medicaid (without requiring states to spend any matching funds during this period), and passed laws authorizing the federal expenditures, no one could try in Year Two to assert an unclear condition and apply it to the states, even if it were the only condition anyone had ever suggested was in the statute.

Now it is true, of course, that the states that accepted these (highway or healthcare) funds might not have actually relied on the federal promises when they built their own budgets or policies, and that these states would in fact be no worse off if an unclear condition were to be imposed after the statute was adopted than they would have been if the condition had been clearly expressed by Congress at the outset. But the same is true for the conditional spending mechanism struck down by the Court in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius, which I discussed extensively in Part One. When the Court there invalidated the Medicaid expansion provisions of Obamacare and said that states were not clearly on notice of the possibility of the conditions involved in the expansion when Congress first offered the states Medicaid money decades ago, the Court did not say, or even suggest, that had states actually been told way back when of a possible subsequent expansion that any states would have been likely to turn down the funding at the outset (even before the expansion condition was imposed). And, in fact, no one could suggest that states would have been likely to do that.

This tells us a couple of related things. First, the “clear voice” requirement is not about actual reliance, but rather even the mere hypothetical possibility of reliance on federal assertions. The “clear voice” requirement is a kind of a prophylaxis designed to avoid detrimental reliance before it occurs. And, like all prophylactic devices, it applies even to situations in which the evil to be avoided would not come to pass in any event. Second, and related, the “clear voice” requirement seems largely about showing respect for states by giving them all the information clearly up front to facilitate informed decision making, even if in the real world the decisions by states in such high stakes take-it-or-leave-it settings would not be likely to be affected much by additional clarity. In fact, this is precisely how the Court explained the “clear voice” requirement in Pennhurst, where the majority explicitly observed that “the crucial inquiry is not whether a state would knowingly [have acted differently if the condition had been clearly stated] but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice.” In the context of Obamacare, if the setting up of a state exchange was in fact a condition for a state to receive federal tax credit subsidies, respect for states required Congress to say this “clearly [enough] that we can fairly say that the State could make an informed choice” about whether to set up an exchange or not.

Does It Matter Whether Federal Money Ever Enters State Coffers?

But what about the fact that the federal subsidies under Obamacare are going not necessarily into state coffers, but rather directly to the healthcare consumers? Does this feature automatically remove the case from the conditional spending doctrinal category? At least in the context of the King plaintiffs’ reading of Obamacare, I think not. The key facts are that, under their reading, tax subsidies are available to individuals as citizens of a particular state qua citizens of that particular state, and subsidy eligibility turns on the actions of that person’s particular state government to set up an exchange or not. To see the point, imagine that Medicaid moneys were given not to state governments (conditioned upon the states expending matching funds and doing other things), but instead were given to the individual citizen beneficiaries, but only in those states that had expended matching funds and satisfied other conditions. I think the “clear voice” requirement should still apply. It is true that an individual’s eligibility for federal tax benefits can sometimes depend on the particularities of state law in the place of one’s residence, and that perhaps not all such interrelatedness between federal and state law triggers the a “clear voice” requirement. But when Congress intends (as the King plaintiffs assert Congress did in Obamacare) to give a state the direct choice of doing something the federal government wants it to do, in return for which the federal government will provide billions of dollars’ worth of federal subsidies targeted towards the eligible persons in that state, the state must be able to see that choice easily.

Nor is the situation altered by the fact that the federal subsidies may take the form of tax credits rather than moneys actually disbursed. In fact, the federal government may advance money to Obamacare subsidy beneficiaries (in the form of payments to health care insurers) prior to an individual filing her federal tax return, but even if that were not the case, there should be no difference between a credit and a dollar disbursement; both kinds of programs are enacted pursuant to Congress’s power to “tax” and to “spend” for the “general welfare,” and are thus laws “enacted pursuant to the spending power,” to use the Court’s phrase. Indeed, go back to Medicaid. If, instead of affirmatively doling out money to states conditioned upon their doing certain things, Congress credited states (that satisfied certain conditions) with respect to fees or payments those states otherwise owed the federal government, the “clear voice” requirement would surely apply as to the conditions that would generate the credits. (It is true that the Court under the Establishment Clause of the First Amendment has distinguished tax credits from expenditures, but its reasoning there was limited to certain peculiarities of Establishment Clause jurisprudence.)

Does The Federalism Argument Add Much to Other Arguments Already in the Case?

Finally, I think it important to reflect on why this federalism “clear voice” requirement could prove especially important in the King case. For starters, this is an argument that was not really addressed by the two judges of the D.C. Circuit who (last summer) ruled in favor of the reading of Obamacare advanced by the King plaintiffs, so we don’t know whether judges who are otherwise inclined to agree with the King plaintiffs would be unpersuaded by the “clear voice” line of argument. Indeed, even the Fourth Circuit that rejected the King plaintiffs’ reading did not rule on this argument (though a form of this argument was made in the State of Virginia’s amicus brief), so if observers believe (as many do) the Supreme Court’s grant of review in King means that there are at least four Justices who were unpersuaded by the Fourth Circuit ruling, having an argument that was not addressed in the Fourth Circuit opinion is a good thing for the federal government.

The Fourth Circuit did rely on a related, but importantly different, kind of requirement of statutory unambiguity—the so-called Chevron doctrine (named after the 1984 Chevron, USA, Inc. v. Natural Resources Defense Council case)—under which federal courts defer to an administrative agency’s interpretation of an ambiguous statutory term, so long as the administrative interpretation is reasonable. But there are many reasons why one could reject Chevron deference in King and yet apply the “clear voice” requirement of Pennhurst. First, and most technically, Chevron deference applies only if Congress can be said to have delegated to the agency in question (here, the IRS) the authority to interpret the relevant provisions in the statute. Different Justices seem to require different levels of clarity in that initial delegation, and the 2013 Arlington v. FCC case (about which I wrote a Justia column) exposed unlikely rifts between ordinarily like-minded Justices on just how far Chevron should be extended. In particular, Chief Justice Roberts, joined by Justices Kennedy and Alito, declined to read Chevron broadly, largely because of fears that the federal executive had become too powerful and that giving federal agencies broad interpretive authority is particularly dangerous. In the context of Obamacare, there may be disputes about whether the Chevron framework should be applicable.

Second, even if the Chevron doctrine governs, under it federal courts must give effect to the “unambiguously expressed intent of Congress”; deference to the agency comes into play only after it is determined that Congress has not expressed such an unambiguous intent. Now it may seem that “unambiguous intent,” and “clear voice” capture the same idea, but I don’t think that the two concepts in these two settings are identical. In other words, it is possible to say that Congress’s intent was expressed unambiguously such that Chevron deference doesn’t apply, and yet still say that Congress hasn’t spoken in a sufficiently clear voice to satisfy the Pennhurst standard. In particular, many courts (including the Supreme Court) have used legislative history behind a statute, and also the way a statutory term may have been used in earlier statutes, to determine whether Congress’s intent with respect a particular statute was expressed unambiguously for Chevron purposes. But I can’t see how those extra-statutory sources could be used to decide whether Congress has spoken in a “clear voice” to put states on adequate notice in the conditional spending realm. On top of that, a provision whose meaning takes too much work for states to discern, even within the four corners of a single convoluted statute, might not be expressed by Congress in a “clear voice,” even if in the end Congress’s will is discernable to a high degree of confidence.

Relatedly, and more generally, Chevron is about separation of powers—the relationship between Congress, the federal judiciary and the federal executive. That is why the initial inquiry under Chevron is how much Congress delegated to the federal agency and how certain we can be about “the intent of Congress.” By contrast, the “clear voice” rule is about federalism—the relationship between the federal government and state governments. That is why, in conditional spending cases, the Court says that “[w]e must view [a federal statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [federal] funds. . . . ” In conditional spending settings, we care less about how firm we are in our conviction of what Congress wanted, and more about what states would have necessarily understood.

Federalism and separation of powers push different buttons for folks. On and off the Court, many observers today seem to be (legitimately or not) concerned about broad assertions of federal executive authority. Recall that Chief Justice Roberts and Justices Kennedy and Alito have recently (in the Arlington case) expressed qualms about the breadth of Chevron precisely because they fear federal executive power. Chief Justice Roberts wrote that administrative agencies today “as a practical matter . . . exercise legislative power, . . . executive power . . . and judicial power. . .” and that the “accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan [, but rather] a central feature of modern American government.” These Justices (and it’s hard to imagine the federal government prevailing in King without winning over at least one of them) may be more receptive (as all three were in the Medicaid expansion setting in 2012) to arguments that are grounded in the distinctive respect owed states, and the Simon-says-like rules we should employ to make sure states aren’t duped or misled into making decisions without being able to be aware of the consequences.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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Why the Federalism Teachings from the 2012 Obamacare Case Weaken the Challengers’ Case in King v. Burwell Fri, 05 Dec 2014 05:01:46 +0000 National Federation of Independent Business v. Sebelius—upholding Obamacare as a proper exercise of Congress’s tax powers and striking down a significant expansion of Medicaid—weakens the case of subsequent challengers to Obamacare in King v. Burwell. Continue reading →]]> American Health CareIn an essay for this website a few weeks ago, my fellow columnist and friend Mike Dorf wrote about how the Obamacare statute (Act) might be in danger in the King v. Burwell case pending at the Supreme Court today because of things various Justices felt and said in the 2012 Obamacare case, National Federation of Independent Business v. Sebelius (National Federation). Mike focused particularly on the views expressed by four dissenting Justices in 2012 that the so-called individual mandate exceeded Congress’s powers and that the whole Obamacare statute was constitutionally invalid. I agree with Mike that the National Federation case is very relevant to the current dispute, but I see important ways in which Obamacare is less vulnerable, rather than more vulnerable, to the statutory challenge brought today because of what was said and done at the Court two years ago.

Background on the King v. Burwell and National Federation Cases

As Mike ably explained, the King v. Burwell lawsuit currently in front of the Justices asks whether a provision in the Obamacare law that permits federal tax credits to be given to qualified persons who purchase health insurance on an exchange “established by the State” also permits tax credits for individuals who purchase insurance on the so-called federal exchange that was set up (pursuant to the Act’s provisions) by the federal government in those states that chose not to set up exchanges themselves. According to the plaintiffs in King, federal tax credits are not available under the Act to citizens of states that did not set up Obamacare exchanges, because Congress wanted tax-credit eligibility to operate as an incentive for states to set up exchanges so that the federal government wouldn’t have to undertake the work.

Although the question is one of statutory construction, rather than constitutional authority, it has momentous implications; if federal tax credit subsidies are not available on the federal exchange, then a great many uninsured folks will remain uncovered, and a great many healthy individuals will be left out of the insurance market pools that experts say must be large and robust for Obamacare to work.

The question in King primarily comes down to the statutory meaning of the term “established by the State,” in the context of a large and complicated statute that uses this and similar terms in many different places, and that also directs the federal government, in those states that decline to erect exchanges, to set up “such” exchanges itself. I agree with Mike that the best reading of the complicated, interlocking statute—as a whole and in light of sensible canons of statutory construction—indicates that subsidies are available on federal exchanges, and that at the very least the Obama Administration is reasonable in embracing and acting on such an interpretation.

As Mike points out, however, Obamacare has many detractors, both on and off the courts, and some Justices may be looking for ways to avoid giving workable effect to the ambitious statute. Specifically, Mike analyzes the possibility that the four Justices who dissented in the 2012 National Federation case (Justices Scalia, Kennedy, Thomas, and Alito) might, notwithstanding the principle of stare decisis, stick to their 2012 stance—that the individual mandate runs afoul of the Tenth Amendment and the whole statute must be jettisoned—and continue to reject any application of Obamacare.

The scenario Mike posits is certainly plausible; stare decisis principles are pretty malleable and seem to be frequently ignored by many if not all of the Justices (albeit in different cases) in disputes involving the Tenth Amendment and other constitutional questions. Nonetheless, I am more sanguine than Mike about whether the four 2012 dissenters will brush aside stare decisis cautions and use their 2012 views to block Obamacare today, for two reasons.

First, a crucial bloc of the Supreme Court (with Justice Kennedy being a key member) in the famous 1992 Planned Parenthood v. Casey case involving the continuing vitality of Roe v. Wade, observed that when the Court, in the absence of “the most compelling reason,” overrules a “watershed” decision “under [political] fire,” it runs the risk of “subvert[ing] the Court’s own legitimacy beyond any serious question.” The National Federation ruling was a “watershed” moment for the Court, Obamacare remains “under [heavy] fire,” and a Supreme Court U-turn on Congress’s power to enact the law could be understood by many as a concession to the political pressure. Indeed, any 5-4 ruling next summer gutting Obamacare would no doubt be viewed by a wide swath of Americans first and foremost as a Republican-appointed Supreme Court doing the bidding for Republicans who don’t have the votes in Congress to repeal the divisive law.

Interestingly, this “don’t overrule under fire because to do so will damage institutional legitimacy” argument has more force here than it did even in Casey, because Roe itself was a decision that many analysts believed had the effect of undermining the Court’s legitimacy—insofar as Justice Blackmun’s majority opinion in Roe wasn’t tightly grounded in distinctively constitutional arguments—so that leaving Roe intact was not without legitimacy costs. Whatever one thinks of the National Federation ruling upholding Congress’s power to enact Obamacare, that ruling—because it deferred to rather than overrode the elected branches—has not opened the Court to the same kind of charge of sitting as an “unelected super-legislature” that Roe has.

My second reason for thinking the National Federation dissenters may have a somewhat tough time relying on their 2012 stance has to do with technical differences in stare decisis between constitutional interpretation cases and statutory construction decisions. Stare decisis is a rather flexible constraint in constitutional matters, whereas the Court has made clear that the bar for overruling a past decision that was construing a federal statute is particularly high (presumably because Congress can fix erroneous judicial constructions of statutes more easily than it can correct wrong-headed readings of the Constitution). As Mike pointed out, in the National Federation case, the dissenters thought that the mandate was unconstitutional, and “also thought that the entire law had to fall with the mandate.” That latter question—known in the business as “severability”—turned on how interlinked all the parts of the Act were, and whether any of the law could stand if the “pillar” (as the dissenters called it) of the mandate were invalidated.

The question of interrelationship between the various parts of Obamacare is ultimately a question of how best to read the statute and Congress’s intent. Five Justices in 2012 rejected the dissenters’ “pillar” reading, and although these five didn’t speak explicitly to the relationship between individual mandate in particular and the rest of the law, the majority certainly read the interrelatedness of the overall statute and Congress’s intent differently from how the joint dissenters did. So even if the four 2012 dissenters felt unbound by the National Federation Court’s ruling on whether the mandate exceeds federal authority, they would also (in order to block Obamacare because of the mandate today) have to explain why they should not obey the 2012 majority’s statutory interpretation on the question of severability. It would not be impossible for the 2012 dissenters to make some arguments here, but such arguments might look result-oriented when they minimize the effect of statutory stare decisis, ordinarily an uncontroversial topic.

How the National Federation Case Bolsters Obamacare Against the Current Challengers

There is another aspect of the National Federation case, an aspect on which seven Justices (including the joint dissenters) agreed, that bolsters rather than weakens Obamacare against its current challengers. I refer here to the Medicaid expansion part of the 2012 decision, in particular the Court’s holding that Congress could not “surprise[e]” states by enforcing terms of a Medicaid bargain that were not “unambiguously” declared when the Medicaid deal was offered to states decades ago. Because the statutory provision entitling Congress to make alterations or amendments to Medicaid could “reasonably” be “assume[d]” by states to mean that Congress can make “adjustments” but not “transform[ations], states were protected against substantial retroactive conditions Congress sought to attach.

National Federation is just the latest in a line of case in which the Court has noted that “legislation enacted pursuant to the spending power [when the federal government is offering money to states to promote the general welfare] is much in the nature of a contract,” and that the legitimacy of deals offered to states:

rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly. . .

The theory behind this requirement that Congress speak “unambiguously” and with a “clear voice” seems pretty straightforward (even though the Court has not spent a lot of ink elaborating it): Because states are worthy of special respect as important partners in our federal system, we want to minimize the risk that states accept or forgo federal moneys without an accurate sense of the consequences of their actions.

How does this play out in King? Well, even if the challengers are correct that the best reading of the phrase “established by the State,” in the context of a complicated 900-page statute, means that Congress did not intend for citizens of states that did not set up exchanges to be able to obtain the tax credits, it’s hard to believe that the statute puts states on clear notice of that consequence. The statute never explicitly says (in so many words) that a state that does not set up an exchange gives up tax credits for its residents. And this Congressional message—if it be a message—seems not to have been effectively communicated. After all, various judges in the D.C. and Fourth Circuits don’t read the statute the way the King challengers do. The I.R.S. hasn’t read the statute the way the challengers do. One of the architects of the challenge (who was presumably familiar with the big aspects of the law shortly after its enactment) is reported to have said he was “surprised” when he discovered the reading that he now embraces. Key members of Congress did not publicly communicate the reading of the statute the challengers assert at the time of enactment. I am aware of no journalist who offered that interpretation of the statute at the time it was passed and presented to the states.

And, most importantly, states do not seem to have said or done things that suggest they actually understood the statute the way the challengers do, at the time decisions were made about whether to set up an exchange in each state. (If there are states that took actions indicating they understood “the deal,” such actions should be highlighted.) The absence of state conduct suggesting awareness is particularly powerful, because as to the Medicaid expansion provisions that were litigated in National Federation, governors in states that declined the expansion did feel obligated to defend to their voters the decision to turn down federal money. No such explanations seem to have been offered by governors or legislators in states that decided not to set up exchanges about why turning down federal money was the right thing to do notwithstanding the cost. And one would certainly expect a lot of explanation if states understood they were giving up tax credits for their citizens.

Even the joint dissenters in National Federation, in describing the way exchanges would work, seemed not to see the deal the King plaintiffs say Congress offered. The dissenters observed that, in order to accomplish its statutory goal of near-universal coverage, “Congress provided a backup scheme” for those states that did not set up exchanges: “If a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” The implication in this passage is that the Federal Government’s exchange would operate, as regards the goal of making insurance coverage more available, just as a state-established exchange would.

It is of course possible that the statute is “unambiguous” and “clear” in offering the deal the challengers assert, and that most everyone simply missed that clarity for months leading up to and following from the law’s enactment. That judges and Justices, and journalists, and law professors, and members of Congress, and governors and state legislators all failed to see this plain aspect of the statute does not mean that it is not there. To the extent that the Court’s doctrine does not require actual, subjective knowledge by states (a true meeting of the minds) as to what is expected of them, but rather only an easy ability to ascertain what the expectations are (a question Supreme Court cases don’t fully answer, as far as I am aware), then the fact that many reasonable people didn’t notice something doesn’t mean there wasn’t notice.

But even if the test focuses only on objective clarity—a plain statement of the contract terms so that states can know what they are getting into or turning down—it’s hard to see how the challengers’ reading of Obamacare can prevail. Can anyone really credibly argue that states were put on more clear notice of the loss of tax-credits by the use of the term “established by the State” alongside the federal power to create “such” exchanges in the context of an interlocking and convoluted statute than they were that Congress might make major changes to future Medicaid eligibility when Congress explicitly reserved for itself the power to “alter, amend or repeal any provision” of the Medicaid program (the term at issue in National Federation)? The challengers’ reading of the statute (even assuming it is the best overall reading) is clearly visible only in the way Waldo’s whereabouts are plain and clear after your child circles him with a highlighter on the page for you. If the deal Congress offered to states (according to the Obamacare challengers) was clearly presented in the statute, then we will have effectively overruled the “clear voice” requirement altogether, which is something a Court that is supposed to care about federalism should be loath to do.

In Part Two of this series, to be posted next Monday, I take up counterarguments and additional questions raised by this federalism defense of federal exchange tax credits, including: (1) Why this federalism argument might be particularly important; (2) Why this federalism argument doesn’t involve the same inquiry as so-called Chevron deference to administrative agency interpretation; and (3) Why federal tax credits to individual state citizens should be treated the same, for these purposes, as federal moneys given over to state coffers.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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