Tag: oral argument

Guns and the Commerce Clause: On the Way to the Supreme Court?

Nearly two years ago, I wrote about an intriguing Commerce Clause case involving the Montana Firearms Freedom Act.  To wit, Montana enacted a regulatory regime to cover guns manufactured and kept wholly within state lines that was less restrictive than federal law.  The Montana Shooting Sports Association filed a claim for declaratory judgment to ensure that Montanans could enjoy the benefits of this state legislation without threat of federal prosecution.  The federal district court ruled against the MSSA.

On appeal to the Ninth Circuit, Cato joined the Goldwater Institute on an amicus brief, arguing that federal law doesn’t preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which is a state-specific market distinct from any related national one.

The lawsuit’s importance is not limited to Montana; a majority of states have either passed or introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

Well, after much delay – in part due to the Ninth Circuit’s waiting for Supreme Court instruction on the Commerce Clause in the Obamacare litigation – MSSA v. Holder finally saw oral argument two weeks ago.  The Goldwater Institute’s Nick Dranias, who was the principal author of our joint brief, was able to get 10 minutes of argument time and sent me this report afterwards, which I reprint with his permission:

Drug-Sniffing Dogs Are Sense-Enhancing Technology

The Supreme Court heard oral argument yesterday in Florida v. Jardines, a case that examined whether bringing a drug-sniffing dog to the front door of a home looking for drugs was a Fourth Amendment search.

Having attended the oral argument (transcript; audio forthcoming), my sense is that a majority on the Court thinks dog-sniffs at front doors (absent a warrant) go too far. But few of the justices know why. The one who does is Justice Kagan.

What rationale might the Court use to decide the case? Even after United States v. Jones threw open Fourth Amendment doctrine, the instinct for using “reasonable expectation of privacy” analysis is strong. (I’ve joked that many lawyers think the word “privacy” can’t be uttered without the prefix “reasonable expectation of.”) This is where much of the discussion focused, and Justice Breyer seemed the most firmly committed to its use.

But the insufficiency of “reasonable expectation” doctrine for providing a decision rule was apparent when Breyer teed up Jardines’s counsel to knock the case out of the park. There was much discussion of what one reasonably expects at the front door of a home. Neighbors may come up. Trick-or-treaters may come up. Neighbors may come up with their dogs. The police may come to the door for a “knock and talk.” Neighbors, trick-or-treaters, dogs, and police officers may all come up and discover odors coming from the house. What makes the drug-sniffing dog unexpected?, Justice Breyer asked:

Do in fact policemen, like other people, come up and breathe? Yes. Do we expect it? Yes, we expect people to come up and breathe. But do we expect them to do what happened here? And at that point, I get into the question: What happened here?

Joelis Jardines’s counsel could not say what made the dog unexpected.

Perhaps property law draws the line that excludes government agents with drug-sniffing dogs, while allowing other visitors to come to the door. Not so. Justice Alito in particular pressed Jardines’s counsel for any case that had excluded dogs (drug-sniffing or otherwise) from the implied consent one gives to visitors on the walk and at the front door. The argument is unavailing, this idea that Florida’s property law (put into play by the majority holding in Jones, which relied on property rights) solve this case. Florida property law doesn’t exclude dogs from the implied permission it gives to lawful visitors on residential property.

None of this is to say that the government had it easy. Florida’s counsel had uttered just three sentences when Justice Kennedy informed him that the rule from Illinois v. Caballes would not carry the day. In Caballes, the Court found there to be no search at all when government agents walked a drug-sniffing dog around a car stopped for other reasons. (I attacked what I called the “Jacobsen/Caballes corollary” to the Katz decision in the Cato Institute’s brief to the Court, and also in this Jurist commentary.)

It won’t be the rule from Caballes. So what is the rationale that decides this case?

Justice Scalia was on the scent when he reasoned with the government’s counsel about what might be done with binoculars.

“As I understand the law,” he said, “the police are entitled to use binoculars to look into the house if—if the residents leave the blinds open, right?”

Florida’s counsel agreed.

“But if they can’t see clearly enough from a distance, they’re not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point, are they?”

“They’re not, Your Honor.”

“Why isn’t it the same thing with the dog?”

Justice Kagan knows that it is. And she used Justice Scalia’s reasoning in Kyllo v. United States, the precedent that is on all fours with this case.

She recited from Kyllo: “ ‘We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.’” And she asked Florida’s counsel, “[W]hat part of that language does not apply in this case?”

“Franky’s nose is not technology,” he replied, referring to the dog. “It’s—he’s using—he’s availing himself of God-given senses in the way that dogs have helped mankind for centuries.”

The existence of dogs in human society for centuries might help the government if dogs had been used for drug-detection all this time. And then only if the question was what it is reasonable to expect.

What matters is that a drug-sniffing dog is indeed a form of sense-enhancing technology. Selected for its strong sense of smell, and trained to convey when particular odors are present, a drug-sniffing dog makes perceptible to law enforcement what is otherwise imperceptible.

And that is the very definition of searching. At least as Black’s Law Dictionary has it: “‘Search’ consists of looking for or seeking out that which is otherwise concealed from view.”

Police officers use dogs to search for drugs and other materials in which they are interested but which they cannot see by themselves. A drug-sniffing dog is a cuddly chromatograph.

And just now, quietly, you have seen at work the rationale that the Supreme Court should use to decide Florida v. Jardines. Was it a search to bring a drug-sniffing dog to the front door of a house? The Court should apply the plain meaning of the word “search” to the facts of the case that has come before it. There’s no need for doctrine at all.

Obamacare Argument Post-Mortem

Now that I’ve woken from the first full night’s sleep since the Supreme Court’s three-day Obamacare marathon began, I can share my thoughts on how the argument went, in case you haven’t seen my first and second days’ reports for the Daily Caller:

  1. The Anti-Injunction Act: On an argument day that can best be described as the calm before the storm, it quickly became clear that the Supreme Court would reach the constitutional issues everyone cares about. That is, regardless of how the justices resolve the hyper-technical issue of whether the Anti-Injunction Act is “jurisdictional,” this law – which prevents people from challenging taxes before they’re assessed or collected – does not apply to the Obamacare litigation. There were also hints that the Court was skeptical of the government’s backup merits argument that the individual mandate was justified under the Constitution’s taxing power. Perhaps the only surprising aspect of the hearing was how “cold” the bench was; it’s rare for the justices to allow advocates to speak at length without interruption, but that’s what they generally did today. That’s yet another indication that the Court will get past the AIA appetizer to the constitutional entree.
  2. The individual mandate: From Justice Kennedy’s noting that the government is fundamentally transforming the relationship of the individual to the government, to Chief Justice Roberts’s concern that “all bets are off” if Congress can enact economic mandates, to Justice Alito’s invocation of a hypothetical burial-insurance mandate, to Justice Scalia’s focusing on the “proper” prong of the Necessary and Proper Clause – and grimacing throughout the solicitor general’s argument – it was a good day for those challenging the individual mandate.  Paul Clement and Mike Carvin, who argued for the plaintiffs, did a masterful job on that score, showing again and again the unprecedented and limitless nature of the government’s assertion of federal power.  The solicitor general meanwhile, had a shaky opening and never could quite articulate the limiting principle to the government’s theory that at least four justices (and presumably the silent Justice Thomas) were seeking.  While trying to predict Supreme Court decisions is a fool’s game, the wise should take note that if Tuesday’s argument is any indication, Obamacare is in constitutional trouble.
  3. Severability: The most likely ruling on severability is that all of Obamacare will fall along with its fatally flawed individual mandate.  While such a result would be legally correct, it would still be stunning.  Perhaps even more remarkable is that the severability argument proceeded under the general assumption that the mandate would indeed be struck down.  This was not a mere hypothetical situation about which the justices speculated, but rather a very real, even probable, event.  There’s still a possibility that a “third way” will develop between the government’s position (mandate plus “guaranteed issue” and “community rating”) and that of the challengers (the whole law) – perhaps Titles I and II, as Justices Breyer and Alito mused (and as Cato’s brief detailed) – but the only untenable position would be to sever the mandate completely from a national regulatory scheme that obviously wouldn’t work without it.
  4. Medicaid expansion/coercion: The justices don’t want to reach the factually complicated and legally thorny Medicaid issue.  That may be another marginal factor pushing one or more of them to strike down all of Obamacare under a straightforward severability analysis and leave the “spending clause coercion” issue for another day.  This was perhaps the most difficult of the four issues to predict, and having heard argument doesn’t really make that task easier.  A majority of the Court was troubled by the government’s “your money or your life” stance, but it’s not clear what standard can be applied to distinguish coercion from mere inducements.  Then again, if this isn’t federal coercion of the states, I’m not sure what is.

General post-argument reaction: All of my pre-argument intuitions were confirmed, and then some:  The Court will easily get past the AIA, probably strike down the individual mandate, more likely than not taking with it all or most of the rest of the law (including the Medicaid expansion).  Still, it was breathtaking to be in the courtroom to see the Chief Justice and Justices Scalia, Kennedy, and Alito all on the same page.  (For example, when Justice Kennedy’s first question during yesterday’s hearing was, “Can you create commerce in order to regulate it?” – a question hostile to the government – my heart began racing.)  Much as I’d love to think that my briefs helped get them there even a little bit, ultimately it’s the strength of the constitutional claims and the weakness of the government’s positions that prevailed – or will prevail if the opinions that come down in three months follow along the lines set by this week’s arguments.  They may not of course – trying to predict the Supreme Court isn’t a science—but I’m coming out of this week feeling very good.

Finally, for links to all of Cato’s briefs and my last series of op-eds on the Obamacare litigation, see Monday’s blog post.

The Court Tackles a Hard Case: Implications for ObamaCare?

The Supreme Court hears oral argument today in an important pre-emption case, Bruesewitz v. Wyeth, which asks whether the National Vaccine Injury Compensation Act of 1986 pre-empts state law “design defect” suits brought against vaccine manufacturers. I’ve discussed this complex case more fully in an op-ed at the Daily Caller, but in a nutshell, Congress passed the Act to address the risks inherent in vaccinations through a federal no-fault ”Vaccine Court” rather than through the vagaries of state tort law. It did so because the inability to make vaccines entirely safe, plus uncertainty surrounding causation, coupled with the penchant of state juries to discount those issues in favor of sympathetic plaintiffs, had rendered most manufacturers unwilling to produce needed vaccines at reasonable costs.  

In drafting the statute, however, Congress left things unclear, to put it charitably. Thus, the Court will have to make sense of this language:

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine… if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.

Although the Act allows victims to sue over manufacturing defects, conduct that would subject a manufacturer to punitive damages, and a manufacturer’s failure to exercise due care, nowhere does it define “unavoidable”—and there’s the nub of the matter. In the case before the Court, a three-judge Third Circuit panel decided unanimously for Wyeth, as did the district court. But in another case five months earlier, a nine-member Georgia Supreme Court, facing similar facts, decided unanimously for the plaintiff.

And behind it all is the question whether Congress should have pre-empted state law in the first place. It probably should have here, but that’s a close call. And the implications for ObamaCare are not absent in this case, which could be a portent of the complex and uncertain litigation that lies ahead if the scheme is not repealed. As I say at the outset of my post, hard cases make bad law, but bad law too makes hard cases, and this is one. Does anyone think that ObamaCare is anything but bad law? We’ll know once we figure out “what’s in it,” as the lady said.

How Is Sotomayor Doing?

I was one of those who opposed the nomination of Sonia Sotomayor to the Supreme Court, mainly because the pick was based on race and gender rather than merit and she was disingenuous and obfuscatory at her confirmation hearings. Well, the Court still hasn’t decided any cases argued with Justice Sotomayor on the bench – and the first term isn’t always indicative of the kind of jurist a new justice will be – but we do have some early statistics about her performance.

It turns out that, unlike her next most junior colleague, Justice Alito – who hung back early in his tenure while learning the rhythms of the Court – Justice Sotomayor has not been a shrinking violet in her questioning of advocates. Indeed, according to a National Law Journal tally, during the 13 November arguments that just concluded, she asked 146 questions (or 11.2 per case), which is even ahead of where Chief Justice Roberts was at this point in his career.  And, because Sotomayor speaks more often than her more reserved predecessor, Justice Souter, she has made a “hot” bench even hotter.

By another indicator, however, Sotomayor ranks at the bottom of the Supreme Court table: Apparently her questioning has not yet generated a single laugh (as measured by such indications in the argument transcript).  Not surprisingly, Justice Scalia leads in that department – as he long has, both in absolute and per-question terms – with the Chief being the only other justice in double figures.  Joining Sotomayor with a goose-egg so far this year are Justices Ginsburg and Thomas (who hasn’t asked a question since 2006).  If you’re curious about last year’s final standings, see here.

For what it’s worth, all this accords with the sense I’ve gotten from the handful of times I’ve been to the Court for oral argument so far this term. To my mind, Sotomayor is still acting as a Court of Appeals judge – or maybe even a district judge – asking simpler questions about the factual record or procedural history rather than the broader issues the Court tends to grapple with.  And therefore I’ll go out on a counterintuitive limb here to predict that, as Sotomayor settles into her new role, her questioning will become less frequent but more substantive.