For the last few weeks, I’ve been detailing the ongoing developments in the Supreme Court’s qualified immunity docket. About three weeks ago, I described how the Court had scheduled thirteen different qualified immunity petitions for its May 15th conference, including several petitions calling for qualified immunity to be reconsidered entirely. But then last week, I noted that the Court had unexpectedly “rescheduled” ten out of those thirteen cases, leaving only three for consideration on May 15th. Well, today the Court issued orders from last week’s conference, and there are two major developments.
First, the bad news: The Court denied cert in the three cases that it considered last week — Kelsay v. Ernst, Jessop v. City of Fresno, and Clarkston v. White — without comment from any of the Justices. This is disappointing, because the Kelsay and Jessop cases in particular involved especially egregious applications of qualified immunity that were crying out for correction, if not summary reversal. In Kelsay, the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” And in Jessop, the Ninth Circuit granted immunity to police officers who were alleged to have stolen $225,000 in cash and rare coins while executing a search warrant, just for their personal enrichment. By denying cert in these cases, the Supreme Court ensured that these victims would be left without redress for their injuries, and that the police who committed such flagrant misconduct will avoid any liability for their misdeeds.
Second, the good news: The Court also rescheduled the remaining ten qualified immunity petitions for consideration at its conference this Thursday, May 21st. This means that, barring additional rescheduling, we should get orders on these petitions on Tuesday, May 26th (the day after Memorial Day). Most notably, the cases set for consideration this week include Baxter v. Bracey, Zadeh v. Robinson, and Corbitt v. Vickers, which are the three petitions explicitly calling for qualified immunity to be reconsidered entirely. Thus, the fact that the Justices denied the three petitions today doesn’t necessarily mean they aren’t still interested in revisiting qualified immunity. If anything, the fact that the Court rescheduled the biggest three cases may indicate that the Justices are more interested in addressing this larger question, rather than taking a narrower approach.
Ultimately, it’s hard to say with confidence exactly why the Court decided to approach all of these petitions in the way that it did. I still don’t have a great explanation for why the Court chose to carve out Kelsay, Jessop, and Clarkston for earlier resolution than the other cases. And given the number of unexpected reschedulings we’ve already seen, it’s entirely possible the Court decides to push back some or all of these cases yet again. But for now, it looks like this Thursday is the day the Justices will finally confront the question of whether qualified immunity itself should be reconsidered — and next Tuesday is the day we’ll learn what they decided.
As Yogi Berra famously said, “it’s tough to make predictions, especially about qualified immunity.” Or something like that. Two weeks ago, I discussed how the Supreme Court had scheduled thirteen different cert petitions for its May 15th conference. Several of these petitions had been fully briefed and ready for resolution since last October, so it looked like the Court was finally gearing up to confront the fundamental question of whether qualified immunity should be reconsidered entirely.
George Will further discussed that development this week, describing how qualified immunity “has essentially nullified accountability for law enforcement and other government officers” and urging the Supreme Court to “rethink the mistakes it made regarding qualified immunity.” He also noted how the Cato‐led cross‐ideological amicus briefs filed in several of the major cases “represent an astonishing ideological diversity” and “have helped to bring qualified immunity’s consequences to the attention of the court.”
But it looks like the Court may be preparing to punt on this question yet again. In the last few days, the Court has rescheduled ten of the thirteen cases that were originally set to go to conference today. (“Rescheduled” here is a bit of a misnomer, because the Court hasn’t yet indicated when they’ll actually consider these petitions — it’s more like an indefinite postponement.) The cases that got rescheduled include all three petitions that explicitly ask the Court to reconsider qualified immunity, and in which Cato organized or filed cross‐ideological amicus briefs — those three cases are Baxter v. Bracey, Zadeh v. Robinson, and Corbitt v. Vickers. Thus, it looks like we’ll have to wait a little longer to learn whether the Court intends to take up this question.
Curiously, however, the Court did not reschedule the cert petitions in Kelsay v. Ernst, Jessop v. City of Fresno, or Clarkston v. White, which means those petitions will go to conference today. It’s honestly hard to say why the Court would want to make a decision about the petitions in these three cases, but not any of the others. The petitions in Kelsay and Jessop both raise important questions about clarifying and reining in the worst excesses of the “clearly established law” standard, but then, so do the petitions in some of the other cases that got rescheduled. It’s possible that the Court wants to start with some of the narrower QI questions, short of reconsidering the doctrine entirely, and prefers one or more of these three cases as vehicles. Or it’s possible that, for whatever reason, the Court is confident about denying cert in these three cases, but wants to continue the other cases at a future date. It’s also possible that there’s no real rhyme or reason to this decision, and the Court might simply “relist” one or more of these three cases, which would have the same practical effect going forward as rescheduling them.
In short, we really can’t say with confidence why the Court made the scheduling decisions it did this week, nor is it at all clear what will come out of next Monday’s orders with respect to these three cases. But two things do remain certain: first, the Court is paying very close attention to its qualified immunity docket, and second, qualified immunity is desperately in need of reconsideration.
The Supreme Court yesterday released a unanimous opinion in United States v. Sineneng‐Smith. If you go by the briefs and arguments, the case concerned a First Amendment challenge to a criminal ban on the solicitation or encouragement of illegal immigration. Cato filed a brief arguing that the statute was unconstitutional. The Court, however, did not reference our argument, or that of either party for that matter. Instead, the Court vacated the lower court’s ruling, which found the statute unconstitutional, based on the “party presentation” rule.
The party presentation rule requires that courts only decide issues squarely presented by the parties, here Evelyn Sineneng‐Smith and the United States. While Ms. Sineneng‐Smith argued at trial and on appeal that her conviction violated the First Amendment, she did not specifically make an “overbreadth” challenge — that even if the statute covers her behavior, it goes too far and could punish protected speech, like a lawyer advising a client or even think tank scholar advocating for policy reform.
After hearing her case, the U.S. Court of Appeals for the Ninth Circuit raised the overbreadth issue by itself, asking several immigrant‐rights groups to brief and argue it as amici curiae. Then the court accepted that argument, as did Ms. Sineneng‐Smith when the Supreme Court took the case. The government in turn argued squarely against the overbreadth argument, without suggesting that the Ninth Circuit was procedurally wrong.
While it may be ironic that the Court decided the case on the party‐presentation principle, without that principle being presented by either party, it is not unheard of and isn’t necessarily a bad thing — even if we’re disappointed that the decision wipes out a good First Amendment ruling. The party presentation principle is part of a species of procedural rules limiting court jurisdiction, preventing courts from overstepping their own authority by inventing controversies that the parties don’t ask them to resolve.
Of course, the Court didn’t explain how or why it reached this result without even asking about this potential jurisdictional defect at oral argument or calling for further briefing. It could be that the justices were intractably splintered on the merits of the case and didn’t want to release an opinion with no majority rationale.
Regardless, yesterday’s decision emphasizes that courts may not act on their own to determine legal answers to questions not presented to them — unless it’s the rare case where an issue arises that’s necessary to reach in order to resolve the original controversy. Justice Ruth Bader Ginsburg’s opinion adds a two‐page appendix detailing such special cases in recent years, where the court has called for further briefing (only asking amici to argue when the original party has abandoned its position or otherwise is unwilling to defend a lower court ruling).
In sum, Sineneng‐Smith did not provide the expected clarity on the scope of First Amendment protection for advising potentially unlawful activity, but it could become a powerful arrow in the quivers of attorneys seeking en banc or Supreme Court review of adventurous circuit panels.
Dilution is a scientific term for dissolving a substance and weakening it by spreading it out, like dropping salt into water. Voter dilution spreads a geographically close minority group out through a political unit to lessen the strength of the votes of its members.
But people who share a minority characteristic are not assumed to be a monolith, so the Supreme Court has set specific guidelines to determine whether an at‐large voting system, for example, actually dilutes the voice of racial minorities. Thornburg v. Gingles (1986) held that, for dilution challenges to at‐large voting systems under the federal Voting Rights Act (VRA), a challenger must show that (1) the group is “politically cohesive” in addition to being a minority, (2) the group is large enough and compact enough that it would form the majority in a single voting district, and (3) that the majority group votes in a bloc that usually defeats the minority group’s preferred candidate. Bartlett v. Strickland (2009) reinforced that framework, leaving us with an interpretation of the VRA that protects individuals’ rights to vote but does not create proportional representation for groups.
California passed its own Voting Rights Act to eliminate the geographical requirement. Under the CVRA, challenges to at‐large voting merely need only show that polarized voting occurs on majority‐minority lines—and then the at‐large election must be replaced with a district map that ensures minority representation. For geographically dispersed groups, this mapping implicitly requires gerrymandering based on the minority characteristic. Additionally, cities must pay a challenger’s legal fees if they lose one of these challenges, unless they immediately abandon at‐large voting after being informed that a group intends to sue.
But in California voter dilution exists any time a minority group tends to disagree with the majority on electoral matters; like finding a glass of sea water, the salt may be diluted but no dilution occurred. The City of Poway, like dozens of California municipalities, was threatened with a vote dilution lawsuit under the CVRA and abandoned its at‐large electoral system of selecting city council members that it had used since its founding in 1980.
Don Higginson, a Poway voter, challenged the new district map, and the constitutionality of the CVRA. The district court dismissed his complaint and the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal. He now seeks Supreme Court review. The Cato Institute joined the Pacific Legal Foundation and four other organizations on an amicus brief in support of Higginson’s petition, arguing that the CVRA’s dilution provisions violate the Equal Protection Clause of the Fourteenth Amendment and go beyond the limits of what Supreme Court precedent allows in terms of the use of race in drawing election districts.
Administrative agencies don’t materialize from thin air. All agencies exercise regulatory authority only to the extent empowered by an act of Congress or the Constitution itself.
Yet for decades, the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) has operated a comprehensive enforcement regime, without any basis in the law.
It started in 1965, when President Lyndon Johnson ordered that all government contracts include a set of anti‐discrimination provisions—collectively, an equal‐opportunity clause. Since then, the OFCCP leveraged this tenuous foundation into a full‐blown regulatory scheme, complete with the power to award monetary damages.
In recent years, OFCCP has wielded its power in increasingly aggressive ways. For example, the agency’s onerous and burdensome demands for information often exceed the value of the underlying government contract. Given the absence of statutory constraints—OFCCP is making this up as it goes along—the agency’s evident overreach is perhaps unsurprising.
In the third‐to‐last day of the Obama administration, OFCCP filed a bizarre complaint against Oracle, claiming that the company owed $400 million for assorted racial discrimination. The agency lacked a single employee complaint or lawsuit.
Three years later, Oracle is still fighting the charges in OFCCP’s Kafkaeque program. Enough is enough.
Oracle recently sued in a federal district court, arguing that the entire scheme is beyond the law. On Friday, Cato joined an amicus brief submitted in support of Oracle. The brief is also joined by the U.S. Chamber of Commerce and National Federation of Independent Business—it’s rare when big and small business get together on something—and Washington Legal Foundation. We argue that (1) OFCCP’s scheme is far beyond any statutory authority, and (2) striking it down wouldn’t undermine enforcement of anti‐discrimination laws.
States and cities have closed innumerable firms and ordered their workers and suppliers into idleness in response to the dangers of COVID-19 transmission. A month ago I posted about some legal questions raised as a result:
Are these takings of property for public use? If so, would the Supreme Court rule that they require just compensation under the Fifth Amendment’s Taking Clause? If not, is there nonetheless a case for some such compensation, such as emergency rescue payments, as rough justice?
I quoted two liberty‐minded law professors on the subject. Cato adjunct scholar Ilya Somin wrote that on current Supreme Court precedent, which generally refuses to acknowledge most government regulatory action as a taking for Fifth Amendment purposes, courts would probably not award compensation for most shutdown losses. But both Somin and Keith Whittington went on to argue that the state of the law aside, there may be a moral case for compensating those who have been asked to forgo their livelihoods in response to a public safety emergency.
Since then there have been a couple of updates. Earlier this month the Pennsylvania Supreme Court ruled against several businesses that had argued (among several other theories) that being ordered to close was a compensable taking under the U.S. and Pennsylvania constitutions. Three dissenting justices held that the claims deserved more procedural consideration but did not endorse the application of a takings theory. Prof. Somin has more, noting that this outcome is to be expected under the current state of precedent. In recent days, Somin and business law professor F. E. Guerra‐Pujol have had an exchange of views on whether the state of current law is really as discouraging for claimants as Somin believes. (For what it’s worth, I’d side with Somin.)
By coincidence, thanks to a casual reference in a piece by the Poynter news organization, I can report that interest in what you might call the moral argument for shutdown compensation go back at least a century. In 1906 the legislature of Massachusetts enacted a law to assure some support for laborers kept from their employ by public health orders in time of epidemic:
Section 95. If a disease dangerous to the public health breaks out in a town, or if a person is infected or lately has been infected therewith, the board of health shall immediately provide such hospital or place of reception and such nurses and other assistance and necessaries as is judged best for his accommodation and for the safety of the inhabitants, and the same shall be subject to the regulations of the board. The board may cause any sick or infected person to be removed to such hospital or place, if it can be done without danger to his health; otherwise the house or place in which he remains shall be considered as a hospital, and all persons residing in or in any way connected therewith shall be subject to the regulations of the board, and, if necessary, persons in the neighborhood may be removed. When the board of health of a town shall deem it necessary, in the interest of the public health, to require a resident wage earner to remain within such house or place or otherwise to interfere with the following of his employment, he shall receive from such town during the period of his restraint compensation to the extent of three fourths of his regular wages; provided, that the amount so received shall not exceed two dollars for each working day. [emphasis added]
By the standards of that time, two dollars a day is not as ungenerous a substitute wage as it may seem from our remove; if this guide to 1904–1905 wages is accurate, it would have sufficed to replace three‐quarters or more of wages in all but the most highly skilled of Massachusetts industrial trades.
Nothing in the policy world is ever as new as it may seem, including measures to tide over the workforce whose livelihood has been interrupted by an epidemic.
COVID-19 is wreaking havoc on American jobs. State shutdowns and social distancing have resulted in 26 million people being laid off and furloughed.
Policymakers in some states are starting to loosen business restrictions and are hoping for a strong jobs recovery. But a quick rebound in jobs will be undermined by government policies. The federal government has expanded unemployment benefits, which will discourage job seeking.
And many state governments impose high minimum wages that will deter cash‐strapped businesses from hiring. The federal minimum wage is $7.25 per hour, but 29 states impose higher minimums. Some cities have even higher wage floors, such as New York City at $15 per hour.
Minimum wage laws create a barrier to job opportunities for lower‐skilled workers. Today’s recession centers on industries that employ millions of such workers, making minimum wage laws more damaging than usual. Businesses suffering from lower revenues, higher debt, and more uncertainly won’t be able to afford the wages they used to pay.
Ryan Bourne and I examine the economic crisis and minimum wages in a new op‐ed at The Hill.
The chart below shows the per‐hour minimum wage rates by state. The rate is either the federal rate or the state rate if it is higher than the federal one, which is the case in 29 states.
Dozens of local governments—in Arizona, California, Colorado, Illinois, Minnesota, Maryland, New Mexico, and Washington state—impose their own rates that are higher than the state rates. Local minimum wages include: Chicago ($13.00), Denver ($12.85), Los Angeles ($13.25), San Jose ($15.25), San Francisco ($15.59), and Seattle ($15.75).
State and local policymakers should revisit their recent and scheduled minimum wage increases because the mandates will kill job opportunities as the economy struggles to rebound. News reports indicate a rethinking of scheduled increases in some places.