Topic: Law and Civil Liberties

King v. Burwell and the Triumph of Selective Contextualism

This Thursday, the Cato Institute will release the 14th edition of the Cato Supreme Court Review, covering the Court’s October 2014 and 2015 terms. The lead article, “King v. Burwell and the Triumph of Selective Contextualism,” is by Jonathan Adler and yours truly. Here’s the abstract:

King v. Burwell presented the question of whether the Patient Protection and Affordable Care Act of 2010 (ACA) authorizes the Internal Revenue Service (IRS) to issue tax credits for the purchase of health insurance through Exchanges established by the federal government. The King plaintiffs alleged an IRS rule purporting to authorize tax credits in federal Exchanges was unlawful because the text of the ACA expressly authorizes tax credits only in Exchanges “established by the State.” The Supreme Court conceded the plain meaning of the operative text, and that Congress defined “State” to exclude the federal government. The Court nevertheless disagreed with the plaintiffs, explaining that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” The Court reached its conclusion by disregarding portions of the ACA’s text and considering only selected elements of the ACA’s structure, context, and purpose. The King majority’s selective contextualism embraced an unexpressed congressional “plan” at the expense of the plan Congress actually enacted.

Our article—which is available now at SSRN—quotes Darth Vader more often than any previous Cato Supreme Court Review article. (Probably.)

Adler and I will also discuss the King ruling on a panel at Cato’s 14th Annual Constitution Day Conference this Thursday, September 17, from 10:45am-12pm. Click here to register.

Kim Davis Also Raised an Establishment Clause Issue

Several Cato scholars, such as Walter Olson and Ilya Shapiro, have commented on the religious liberty and rule-of-law aspects of the Kim Davis case. In addition to their arguments, the Davis case is perhaps the clearest in modern times for a state establishment of religion.

Free Exercise is only half of the constitutional package of First Amendment religious protections. There is also the Establishment Clause, preventing the state or its agents from establishing a religion. It is a blanket anti-theocracy clause that is understood to be applicable to the states by the Fourteenth Amendment. As James Madison said on the House floor in 1789, the Establishment Clause seeks to stop a particular religion or sect from “establish[ing] a religion to which they would compel others to conform” or “enforc[ing] the legal observation of [a particular faith] by law.”

The key, under-explored factor in this case is that Kim Davis claimed “[the Christian] God’s authority” in denying same-sex couples the right to marry. By claiming “God’s authority” as the basis for denying the license—rather than any man-made law—Davis effectively established her religion in the Rowan County Clerk’s office and imposed on the religious liberty of those who hold other (or no) faiths.

People who do not subscribe to Davis’s particular brand of Christianity lose substantive rights guaranteed by the Constitution. That includes the right to civil marriage. Moreover, Davis’s establishment directly impinged on the right to freely practice any faith that accepts same-sex marriage, such as the United Church for Christ.

The right against establishment is just as important a protection for religious freedom as the Free Exercise Clause. Imagine if the Roman Empire had an anti-establishment rule. Christians pre-Constantine would have been able to expand Christianity without the threat of gruesome martyrdom. The right to be free from state-imposed religion is thus an important buttress to the Free Exercise Clause; without it, the state would always have a compelling interest in promoting its preferred religious uniformity at the expense of free exercise. That is a particularly undesirable result for a religiously diverse nation.

Regardless of what one thinks of the decision in Obergefell v. Hodges, same-sex couples have the constitutional right to civil marriage. Absent a constitutional amendment it is incumbent upon government officials to obey Obergefell. If that ruling conflicts with state officials’ consciences, their state duty not to establish their religion and impose it on others through state offices still trumps (when it comes to their official capacity—Ilya Shapiro wrote about the distinction between official and civil disobedience here).

The United States is a government of laws, not gods and men. Davis can quit, do her job, or recuse herself and let her office issue licenses without her participation, but she cannot claim God’s law as public authority to use her office to impinge on others’ rights and expect to be protected under the First Amendment. That is precisely the harm to liberty that the Establishment Clause was designed to prevent.

“Holistic” Review of College Applicants = Using Race in an Arbitrary, Unaccountable Way

Two years ago, the Supreme Court’s 7-1 ruling in Fisher v. UT-Austin (Fisher I) made clear that race-conscious college admissions programs must be subject to strict judicial scrutiny, requiring universities to prove that their consideration of race is precisely tailored to serve a compelling government interest. Because Fisher I came to the justices without a developed factual record, the Court remanded the case for further development.

After the lower court essentially rubber-stamped its previous ruling, Abigail Fisher—the applicant who claims that she was denied admission because she’s white—got a second trip to the Supreme Court, which will finally have to determine whether the University’s “holistic” review process passes constitutional muster. Cato has again filed an amicus brief supporting Fisher.

Texas’s program allows application readers to take race into account when assigning applicants a “personal achievement score.” But there’s no oversight of readers’ use of race in assigning these scores, with the result that the university can’t explain how (or how often) race plays a role in admissions decisions. All we’re left with is an opaque, arbitrary, and unaccountable program supported only by the talismanic use of the word “holistic” to evade scrutiny.

But invoking that word should not be the end of judicial review. The Court’s equal-protection precedents establish four distinct requirements that a university employing a race-conscious admissions process must satisfy to demonstrate that its plan is narrowly tailored. The University of Texas has satisfied none of them.

First, the university can’t show that its program is necessary to achieve diversity because it can’t show how or when race affects application decisions. (Moreover, about 80 percent of its freshman class is admitted under the race-neutral Top Ten Percent Law—the top 10 percent of students from each Texas public high school are automatically admitted—which the university hasn’t shown to be insufficient to produce the desired diversity.)

Second, Texas can’t show that its chosen means properly “fit” its ends because it hasn’t offered any evidence that would enable a court to evaluate whether the use of race is narrowly tailored to achieve its purported “qualitative diversity” goal.

Third, the university can’t show that the program provides individualized consideration to every applicant—which the Supreme Court demanded in its 2003 Grutter v. Bollinger decision. This requirement ensures that colleges don’t make race the “defining feature” of the application process, but the black-box nature of Texas’s admissions policy makes it impossible to ascertain whether race amounts to a thumb or a brick on the scale.

Finally, UT-Austin’s program frustrates accountability and transparency because the school wields “holistic review” as a shield to obscure the role of race in admissions and frustrate scrutiny, judicial or otherwise. This opaqueness may create more racial hostility than it remedies. Further, holistic review can serve as a cover for the illegitimate or unnecessary use of race, as statistics from a variety of American universities indicate. Even the Harvard Plan that Justice Powell in Regents of the University of California v. Bakke (1978) assumed would withstand strict scrutiny has a less-than-illustrious history, beginning with its origin as a less-controversial alternative to explicitly capping the number of Jewish students admitted. More recently, evidence suggests that Harvard’s holistic review has facilitated forbidden racial balancing with regard to lowering the number of Asian admittees.

Accordingly, the Supreme Court should review the holistic review regime at the University of Texas with an eye toward curtailing the improper use of race in university admissions nationwide.

For more on our arguments, see this SCOTUSblog essay.

Religious Accommodation, FADA, and the Culture War

I write at Politico Europe

Charee Stanley, an American flight attendant and recent convert to Islam, just filed a discrimination complaint against her employer, ExpressJet, because it won’t excuse her from serving alcohol to passengers. Stanley’s backers at the Michigan chapter of the Council on American-Islamic Relations (CAIR) say that for a time Stanley worked out an arrangement for other attendants to handle liquor serving duties, but it broke down.

Stanley’s scruples about screwpulls instantly drew the attention of culture warriors, who after a whole week spent bickering about defiant Kentucky clerk Kim Davis — in terms of online controversy, practically a Thirty Years’ War — pivoted deftly to the Stanley case and away from Davis’s refusal to license same-sex marriage as her job requires her to….

Here’s the thing: The EEOC has already sided with Muslim employees who wish to avoid handling alcohol. In 2013 the commission sued the Star Transport Co. in Illinois for failing to provide a reasonable accommodation to two Muslim truck drivers when it dismissed them for refusing to haul booze, a case that appears still to be pending.

More here. With religious accommodation in the workplace so much in the news, I’ve recently written four pieces on the subject, including my post last week in this space about the Kim Davis case (see also Ilya Shapiro’s). I’ve also written a lengthy essay on EEOC v. Abercrombie & Fitch, the hijab-accommodation case, for the forthcoming Cato Supreme Court Review, which I’ll be discussing at Cato’s Constitution Day next week (September 17). Previously in this space I’ve related issues such as government accommodation of religiously-based adoption and foster care agencies, and the wars under state anti-discrimination laws over cake-baking and related wedding services.

Finally, at Newsweek, just out, I’ve written an extended analysis of the problems with what is called the First Amendment Defense Act (FADA), a current social-conservative priority:

FADA as currently drafted isn’t really an accommodation law. It’s an our-guys-win law. It says that even if the government has set you up as the monopoly provider of some service or gatekeeper for some permission, you may use that monopoly or gatekeeper status against same-sex couples and their interests with entire impunity.

Should Republicans really be rushing to endorse this bill?

Dale Carpenter at Volokh Conspiracy has further thoughts on the potential constitutional infirmities of the bill, along with kind words for my article. 

NACDL Report Highlights Failings of Indigent Defense System; Let’s Try a Freer Market

A new report from the National Association of Criminal Defense Lawyers highlights the myriad inadequacies in the current system of federal indigent defense. 

NACDL identifies “Seven Fundamentals of a Robust Federal Indigent Defense System,” including a system insulated from judicial interference, adequate funding, sufficient training and expertise among indigent defense lawyers, and greater transparency, and finds each of them to be lacking under current circumstances.

The nuts and bolts of how the current system fails to adhere to those fundamentals can be found in the full report here.

Notably, one reform that is entirely absent from the report is the introduction of client choice and free market competition into the indigent defense system. 

As the NACDL report itself notes:

Short of warfare, there is no more awesome use of governmental power than the power to prosecute.  A criminal prosecution can result in life-altering consequences, including the loss of reputation, property, liberty, and even life itself.  For this reason, the founders of this nation recognized that no person should stand alone against a criminal prosecution.

Given the stakes, it seems bizarre that those individuals who have the entire weight of the state brought to bear against their liberty should depend on that very same state to choose the person to represent them.  It’s certainly true that public defenders tend to be undercompensated and buried under incomprehensible caseloads; but it’s just as true that a public defender system fails to respect the agency of the people who have the most at stake.

The introduction of defense vouchers, which would allow indigent defendants to choose their own lawyers rather than have that all-important decision made at random by a judge or public defender, was the subject of a Cato Policy Analysis in 2010 by David Friedman and Stephen Schulhofer. It would allow defendants a say in their representation and force lawyers to compete to serve them. In doing so, it would come closer to ensuring those fundamental principles of indigent defense than any entirely government-run system is likely to.

The voucher idea is not just a theory; a version of it has now been implemented in Comal County, Texas, which you can read about in more detail here.

When the government takes the immense step of putting someone’s life or liberty in jeopardy, why shouldn’t that person have at least some choice in who will defend them?

Hillary Clinton: “I Am Going To Make Some Employers Go To Jail”

“I’m going to make sure that some employers go to jail for wage theft and all the other abuses that they engage in,” said presidential hopeful Hillary Clinton at a Labor Day rally in Illinois.

Wage theft” is an elastic sort of epithet. These days, it gets used to describe employer practices ranging from the offering of unpaid internships – a practice, it should be noted, that Hillary Clinton has engaged in herself – to not paying employees overtime when they send or read work-related email after hours.  Last year, union advocates in the press widely accused an contractor of “wage theft” in a dispute over whether employees should be on the clock while undergoing physical security checks. The Supreme Court ruled 9-0 that the practice was not a labor law violation in the first place, let alone “theft.” 

Of course there are cases where employers (often of the fly-by-night sort) defraud workers of promised pay. The law has long, and rightly, treated this class of cases with severity. The effect of the suddenly prevalent “wage theft” phrasing — indeed, I would go so far as to say its purpose — is to blur the lines between those cases and the countless disputes that arise under the Fair Labor Standards Act and similar laws over employee classification, portal-to-portal compensation, tip pooling, donning and doffing time, and so forth. Because the FLSA and similar laws are vague and hard to interpret, and have repeatedly been clarified only after-the-fact by court interpretations (when courts manage to agree with each other), anticipating what is lawful is often a matter of guesswork. In typical situations, established employers delivered as promised on the compensation deal that workers had come to expect, and workers similarly stayed on the job with eyes wide open, but it is argued after the fact that the intricacies of the New Deal-era FLSA required the offering of a different deal.

This is bait and switch terminology and there is no reason to give it a pass. Reporters should ask Hillary Clinton which cases, specifically, she has in mind when she talks of jailing employers, and whether that includes cases in which managers were obliged to guess what the law required of them (adapted from Overlawyered.)


Workers Shouldn’t Have to Jump through Hoops to not Fund Union Political Activity

If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights—and the Supreme Court has been unanimous on that point for decades—then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year?

There is none, argues Cato’s amicus brief in Friedrichs v. California Teachers Association. As the Court recounted in Knox v. SEIU (2012), “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” But as a matter of principle, opt-out plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights.

Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all—by default, it gets the money.

For example, a teacher who learns partway through the year that her payments to the union are being used to fund speech that she finds abhorrent—and the union here lobbies on controversial issues like abortion, gun control, and immigration reform—is still compelled by the government to continue funding that speech until the next opt-out period.

Unions, of course, favor opt-out precisely because it allows them to take advantage of inertia on the part of would-be dissenters who fail to object affirmatively. But that is no basis to countenance the wholesale violation of public employees’ First Amendment rights. Courts “do not presume acquiescence in the loss of fundamental rights,” and application of that principle here will spell the end of abusive opt-out regimes.

The Supreme Court will hear argument in Friedrichs in the middle of the upcoming term, likely in January. For more on the case and our argument, see this SCOTUSblog essay.