Will the Supreme Court Impose Strict Additional Limits on Congress’s Power to Tax and Spend for the

General Welfare?
The Constitution at a Crossroads

“It would, however, necessitate invalidation of the entire Affordable Care Act.” Brief of State Petitioners in Florida v. Department of Health and Human Services, arguing that the Supreme Court should strike down the Affordable Care Act in its entirety because, according to the states, the Act’s expansion of Medicaid is invalid under the Spending Clause This nation’s system of cooperative federalism –pursuant to which states and local governments work in partnership with the federal government in solving nationwide problems such as health care, environmental degradation and discrimination – is built upon the Constitution’s Spending Clause and rulings by the Supreme Court that allow the federal government to condition generous grants of federal money upon state and local participation in these national efforts. For this reason, the Supreme Court’s decision to review the claim by 26 states that the Patient Protection and Affordable Care Act (ACA) unconstitutionally coerced states into participating in the expansion of the federal/state Medicaid program was an unsettling surprise. In contrast to the claims against the ACA’s mandatory coverage provision, there was no split in lower court rulings on the constitutionality of the Medicaid expansion: not a single lower court judge ruled for the states on this claim. Indeed, no court has ever ruled that any Spending Clause statute runs afoul of the Supreme Court dictum that forms the basis of the states’ claim: “‘in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” 1 So why did the Court decide to review this claim? Could this particular claim of coercion succeed where all others have failed and be the basis of a ruling by the Supreme Court striking down “the entire Affordable Care Act”? The Supreme Court will answer these momentous questions in the next few months. What is clear now is that the states, represented by former Solicitor General Paul Clement, have woven together an argument about coercion that is designed to appeal to the Court’s

South Dakota v. Dole, 483 U.S. 203, 211 (1987) (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 589-90 (1937)).

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conservative majority and to capitalize on a sharp ideological split that has emerged on the Court over the past 15 years about the meaning of constitutional federalism and the scope of federal powers under the Spending Clause. As a result, in addition to being a critical test of the Supreme Court’s jurisprudence under the Commerce Clause, the ACA litigation will likely produce the most important Spending Clause ruling in several decades. Even if the Supreme Court, like every lower court, ultimately rejects the states’ coercion argument in this case, its ruling could make important new law on the ability of the federal government to use the Spending Clause to enlist states in federal-led efforts. With the state challenge to the ACA’s Medicaid expansion pending before the Court, the Spending Clause is very much at a crossroads.

The Text and History of the Spending Clause
Providing Congress with the power to tax and spend was of central importance to the drafters of our Constitution: they had witnessed the disastrous consequences of the Articles of Confederation’s failure to provide for such a power. Under the Articles, Congress had some powers, but was given no means to execute those powers. Congress could not directly tax individuals or legislate upon them; it could raise money only by making requests to the states. This created such an ineffectual central government that, according to George Washington, it nearly cost Americans victory in the Revolutionary War, and he lamented the dire situation in which his soldiers had been placed as a result of Congress’s inability to levy taxes to support the Army. 2 This historical foundation explains why the Spending Clause is the first and one of the most sweeping powers the Constitution confers upon Congress, providing the power “to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” 3 As Alexander Hamilton made clear in the Federalist Papers, the power to tax and spend for the common defense and general welfare is “an indispensible ingredient in every Constitution,” 4 and it was essential for the Constitution to “embrace a provision for the support of the national civil list; for the payment of the national debts contracted, or that may be contracted; and, in general, for all those matters which will call for disbursements out of the national treasury.” 5 While the need for tax revenues was universally recognized by the signers of the Constitution, disputes broke out almost immediately about the precise meaning of the Spending Clause’s text. The most sweeping reading, posed by anti-Federalist opponents of the Constitution, argued that the Spending Clause “amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” 6 Madison made short work of this unduly

See 18 THE WRITINGS OF GEORGE WASHINGTON 453 (John C. Fitzpatrick, ed. 1931) (Letter to Joseph Jones, May 31, 1780). See also WASHINGTON: WRITINGS 393 (John Rhodehamel, ed. 1997) (Circular to State Governments, Oct. 18, 1780); id. at 502-503 (Letter to Lund Washington, March 19, 1783). 3 U.S. CONST., art. I, § 8. 4 THE FEDERALIST PAPERS NO. 30 (Hamilton), at 134 5 Id. 6 THE FEDERALIST PAPERS NO. 41, at 259 (Madison). Crossroads: Spending Clause Page | 2

expansive interpretation of the clause in Federalist 41, asserting that “[n]o stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” 7 A more serious disagreement broke out later between Madison and Hamilton about whether the power to tax and spend for the general national welfare was confined to the enumerated legislative fields delegated to Congress. While not endorsing the sweeping “every power” interpretation advanced by the anti-Federalists, when it came to taxation and spending, Hamilton interpreted the Spending Clause literally as a broad grant of authority to Congress to tax and spend for the general welfare. He declared in his important 1791 Report on Manufacturers that that the phrase “general welfare” was “as comprehensive as any that could have been used,” and it was deliberately chosen because “the constitutional authority of the Union, to appropriate its revenues . . . necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.” 8 Madison resisted this literal interpretation. Most definitively in a series of letters written towards the end of his career, Madison took the position that the Spending Clause was essentially a preamble to the other enumerated powers and not an independent grant of authority. In an 1830 letter to Andrew Stevenson, 9 he described the Spending Clause as “a mere introduction to the enumerated powers, and restricted to them.” The next year, in a letter to James Stephenson, 10 Madison added that “with respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

The Spending Clause from the New Deal to South Dakota v. Dole
The Supreme Court ultimately resolved this disagreement among these two preeminent Founders, and set the basic principles of its Spending Clause jurisprudence, during the New Deal era, when the Court was confronted with important new federal spending programs established to respond to the Great Depression. In the first of these cases, United States v. Butler, 11 the Court determined that Hamilton’s interpretation was the only one that matched the text of the Spending Clause. Noting that this dispute had previously been addressed by Justice Joseph Story, who “in his Commentaries, espouses the
7 8

Id. Alexander Hamilton, Report on Manufactures, December 5, 1791, available at http://presspubs.uchicago.edu/founders/documents/a1_8_1s21.html. 9 James Madison, Supplement to November 27, 1830 Letter to Andrew Stevenson, available at http://presspubs.uchicago.edu/founders/documents/a1_8_1s27.html. 10 Letter from James Madison to James Robertson, April 20, 1831, available at http://en.wikisource.org/wiki/ James_Madison_letter_to_James_ Robertson. 11 297 U.S. 1 (1936) Crossroads: Spending Clause Page | 3

Hamiltonian Position,” 12 the Court in Butler agreed: “We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one.” 13 The problem with Madison’s position, according to Butler, was that it could not be squared with the Constitution’s enacted text: “[t]he necessary implication from the terms of the grant is that the public funds may be appropriated ‘to provide for the general welfare of the United States.’” 14 Madison’s position, on the other hand, would make the Spending Clause “mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers.” 15 Accordingly, Butler held that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” 16 There was no dissent on any of these important points. 17 The Court built upon Butler in two important decisions the following year upholding different components of the Social Security Act of 1935. In Helvering v. Davis, 18 the Court upheld the Act’s most famous component – the taxing of individuals and employers to provide for retirement security benefits for elderly Americans. The Helvering Court began by reaffirming the Butler Court’s resolution of the dispute between Madison and Hamilton, declaring this dispute “settled by decision.” 19 Helvering then established a broadly deferential standard for reviewing congressional decisions about the general welfare, holding that “whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II it is not for us to say. The answer to such inquiries must come from Congress, not the courts.” 20 In Steward Machine v. Davis, 21 the Court upheld the Act’s unemployment compensation program. Unlike the federally-run Social Security program at issue in Helvering, the Act’s unemployment benefits program created a federal/state partnership. The federal government collected taxes from employers and then allocated up to 90% of those revenues back to states with unemployment compensation laws meeting minimum federal standards. The Steward Machine Court rejected the argument that the “tax and the credit in combination are weapons of coercion, destroying or impairing the autonomy of the states.” 22 The Court held that the Social Security Act, rather than harming states, “is an attempt to find a method by which all these public agencies may work together to a common end.” 23
12 13

Id. at 66. Id. 14 Id. at 65. 15 Id. 16 Id. 17 See id. at 80-81 (Stone, J., dissenting). 18 301 U.S. 619 (1937). 19 Id. at 640. 20 Id. at 644. 21 301 U.S. 548 (1937). 22 Id. at 586. 23 Id. at 588. Crossroads: Spending Clause Page | 4

In embracing the federal/state partnership to provide unemployment compensation, the Court in Steward came very close to rejecting altogether the idea that a condition on federal spending could ever be coercive, noting that “every rebate from a tax when conditioned upon conduct is in some measure a temptation” and “to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties.” 24 The Court wondered aloud whether the notion of coercion “can ever be applied with fitness to the relations between state and nation,” and concluded that even if it could, “the point at which pressure turns into compulsion” had not been reached with the Social Security Act. 25 The central holdings of these New Deal era cases -- Butler’s resolution of the Hamilton/ Madison debate in Hamilton’s favor, Helvering’s deference to Congress, Steward Machine’s skepticism about claims of coercion -- remain core principles of Spending Clause doctrine today. Indeed, the Court reaffirmed each of these principles in South Dakota v. Dole, 26 the leading Spending Clause case of the modern era, which was written by Chief Justice William Rehnquist and joined by Justices as ideologically diverse as John Paul Stevens and Antonin Scalia. Building upon Steward Machine and other prior cases, the Dole Court held that “Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning the receipt of federal moneys upon compliance with federal statutory and administrative directives.’” 27 The Dole Court also recognized four limits on the Spending Clause. First, the text of the Constitution expressly limits Congress’s spending power to the pursuit of “the general Welfare.” 28 Second, any conditions Congress places on grants to the States must be clear, thus enabling “the States to exercise their choice knowingly, cognizant of the consequences of their participation.” 29 Third, “conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’” 30 Finally, “other constitutional provisions may provide an independent bar to the conditional grant of federal funds” 31 — Congress may “not ‘induce’ the recipient to ‘engage in activities that would themselves be unconstitutional.’” 32

The Rehnquist Court’s Federalism Revolution and the Spending Clause
The Court’s opinion in South Dakota v. Dole remains the touchstone of its Spending Clause jurisprudence, but the ideological consensus about the Spending Clause embodied in the Dole opinion has broken down considerably. In particular, over the past 15 years, as part of a significant jurisprudential movement by conservatives on the Court toward limiting the powers of the federal government in the name of protecting state sovereignty, the Court’s conservative wing has expressed
24 25

Id. at 589. Id. at 590. 26 483 U.S. 203 (1987). 27 Id. at 206. 28 U.S. CONST. art. I, § 8; Dole, 483 U.S. at 207. 29 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 30 Dole, 483 U.S. at 207 (citation omitted). 31 Id. at 208. 32 United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 203 (2003) (plurality) (quoting Dole, 483 U.S. at 210). Crossroads: Spending Clause Page | 5

concerns about Butler’s reading of the Spending Clause and used those concerns to ratchet up the limits recognized by Dole, particularly the requirement that states have “clear notice” about Spending Clause conditions. This ideological divide is illustrated most clearly in Davis v. Monroe County, 33 a case about whether a school district that received federal funds could be held liable in a private suit for “deliberate indifference” to student-on-student sexual harassment. In an opinion by the Court joined by the Court’s liberal wing, Justice Sandra Day O’Connor held that, in limited circumstances, such a suit was authorized. Applying Dole’s clear notice requirement, the Court ruled that Title IX of the Education Amendments of 1972 “makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender.” 34 Therefore, according to the majority, “funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment . . .” 35 Justice Kennedy responded in a sharply worded dissent, writing also on behalf of Chief Justice Rehnquist and Justices Scalia and Thomas. Kennedy’s dissent began by expressing concern about Butler’s account of the scope of the federal government’s powers under the Commerce Clause: The Court has held that Congress’ power “‘to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.’ ” South Dakota v. Dole, 483 U.S. 203, 207 (1987) (quoting United States v. Butler, 297 U.S. 1, 66 (1936)). As a consequence, Congress can use its Spending Clause power to pursue objectives outside of “Article I’s ‘enumerated legislative fields’” by attaching conditions to the grant of federal funds. 483 U.S., at 207. So understood, the Spending Clause power, if wielded without concern for the federal balance, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the federal government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach. 36 To avoid “obliterate[ing] distinctions between national and local spheres of interest,” Justice Kennedy emphasized the need to rigorously enforce the clear notice requirement recognized in Dole. 37 The clear notice requirement, he opined, “is not based upon some abstract notion of contractual fairness. Rather, it is a concrete safeguard in the federal system. Only if States receive clear notice of the conditions attached to federal funds can they guard against excessive federal intrusion into state affairs and be vigilant in policing the boundaries of federal power.” 38

33 34

526 U.S. 629 (1999). Id. at 650. 35 Id. 36 Id. at 654 (Kennedy, J., dissenting) (emphasis added). 37 Id. 38 Id. at 655. Crossroads: Spending Clause Page | 6

Monroe County was decided during a decade-long period lasting roughly from 1992 to 2002, which has been called the “federalism revolution” of the Supreme Court under Chief Justice William Rehnquist. It is one of the few cases lost by state and local claimants during this time. . In many other cases, Justice O’Connor sided with the conservative wing in taking steps to police “the boundaries of federal power.” These cases included U.S. v. Lopez 39 and U.S. v. Morrison, 40 in which the Court invalidated two federal laws as beyond Congress’s Commerce Clause authority, New York v. United States 41 and Printz v. United States, 42 in which the Court established an “anti-commandeering principle” that prevented the federal government from directing state officials to administer a federal regulatory program, and a long string of cases including College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 43 in which the Court significantly limited the ability of the federal government to trump the sovereign immunity of States under the 11th Amendment. Printz deserves special note among these cases, because it forms a central pillar of the coercion claim against the Affordable Care Act. The states argue that “[i]f Congress were free to use its spending power to coerce States into enforcing the federal government’s dictates, then the spending power would become the exception that swallows the anti-commandeering rule.” 44 Printz is also notable for the effort by Justice Scalia to question anyone (or any opinion) that looks toward the views of Alexander Hamilton when it comes to “matters of federalism.” Calling Hamilton the “most nationalistic of all nationalists,” Scalia in Printz declared that “it was Madison’s view – not Hamilton’s – that prevailed . . .“ 45 Although Justice Scalia did not cite Butler, his implicit critique of the Butler Court for favoring Hamilton’s view of the Spending Clause over Madison’s was apparent enough. The state challengers to the ACA have also relied on Florida Prepaid because, in passing, the Court in that case took language from Steward Machine and Dole – cases that recognized that the point at which “pressure turns into compulsion” may never be “applied with fitness to the relationship between state and nation” – and subtly turned that language into a more definitive-sounding suggestion that there is such a line that the federal government cannot cross. 46

Arlington Central and the Spending Clause in the Roberts Court
With Justice Samuel Alito having succeeded Justice O’Connor (the author of the majority opinion in Monroe County), there is some evidence that the concerns expressed by Justice Kennedy in
39 40

514 U.S. 549 (1995). 529 U.S. 598 (2000). 41 488 U.S. 1041 (1992). 42 521 U.S. 898 (1997). 43 527 U.S. 666 (1999). 44 State Petr. Br. at 21. 45 Printz, 521 U.S. n.9. 46 See Florida Prepaid, 527 U.S. at 687 (1999)(“in cases involving conditions attached to federal funding, we have acknowledged that “the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” quoting South Dakota v. Dole, 483 U.S. 203, 211 (1987), quoting Steward Machine, 301 U.S. at 590). Crossroads: Spending Clause Page | 7

his Monroe County dissent may now be held by a five-justice majority on the Court. In the first and, to date, the only Spending Clause case decided by the Roberts Court, Arlington Central School District v. Murphy, 47 Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Thomas and Kennedy, holding that parents who successfully challenge a school board placement decision under the Individuals with Disabilities Education Act (IDEA) cannot recover the costs of retaining expert witnesses to support their claim. Justice Alito opined that the IDEA failed Dole’s “clear notice” test, despite a congressional Conference Report on the IDEA stating, in part: “the term ‘attorneys’ fees as part of the costs’ include reasonable expenses and fees of expert witnesses. . .” 48 In Justice Alito’s words: “the legislative history is simply not enough. In a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds.” 49 This conclusion brought a blistering dissent from Justice Breyer, who asserted that none of the Court’s prior rulings “suggest[] that every spending detail of a Spending Clause statute must be spelled out with unusual clarity.” 50 Justice Breyer accused the majority of abusing the clear notice test to disregard the clear intent of Congress regarding the meaning of the IDEA and thereby reach “a result no Member of Congress expected or overtly desired.” 51 More generally, Justice Breyer warned that the majority’s application of the clear notice rule was thereby undermining the deference due to Congress established by cases going back to Helvering v. Davis and risked creating “a set of judicial interpretations that can prevent the program, overall, from achieving its basic objectives or that might well reduce a program in its details to incoherence.” 52

Coercion, Commandeering and the ACA Litigation
The foregoing account of the historical evolution of Spending Clause doctrine sets the stage for the constitutional challenge brought by a collection of states against the Affordable Care Act’s expansion of the federal/state partnership under Medicaid. Under Supreme Court case law from Butler to Dole, the claims against the ACA are clear losers, which is why even the most sympathetic lower court judges have rejected them. The states have not even attempted to assert that any of the four limitations on the Spending Clause recognized by the Court in South Dakota v. Dole have been violated. To the contrary, as the states have conceded, the ACA is completely clear in terms of notifying states about what is expected if they wish to continue to participate in the Medicaid program. Nor is there any question that the Act provides a generous financial incentive for the states to continue to
47 48

548 U.S. 291 (2006). H. R. Conf. Rep. 99–687, at 5. 49 Arlington, 548 U.S. at 304. 50 Id. at 317 (Breyer, J., dissenting). 51 Id. at 324. 52 Id. at 318. Crossroads: Spending Clause Page | 8

participate in the federal program – under the Act’s terms, the federal government will start by paying 100 percent of the costs of adding additional low income Americans. In essence, the states’ principle claim is that the ACA offers too generous a deal to the States: one they cannot afford to refuse: There is no plausible argument that a State could afford to turn down such a massive federal inducement, particularly when doing so would mean assuming the full burden of covering its neediest residents’ medical costs, even as billions of federal tax dollars extracted from the State’s residents would continue to fill federal coffers to fund Medicaid in the other 49 States. 53 To succeed in this challenge to the ACA, the states must convince the Court to do what the Court in Steward Machine essentially deemed impossible – draw and enforce a line between appropriate financial pressure and unconstitutional coercion. The states call “a judicially enforceable” coercion doctrine “a constitutional necessity,” fusing together the concern Justice Kennedy expressed in Monroe County about the breadth of the Spending Clause with the “anticommandeering” rule established in Printz to argue that the Court must police coercion so that the spending power does not “become the exception that swallows the anti-commandeering rule.” The United States has responded that “Petitioners challenge to the Act’s Medicaid expansion lacks any support in this Court’s precedents, invites standardless decisionmaking and intractable problems of administration, and is wrong as a matter of constitutional principle.” 54 The U.S. makes powerful arguments in its briefs to support each of these propositions, which prevailed in the lower courts, even among judges who found the ACA’s mandatory coverage provision unconstitutional. Most of these arguments were presented to the Supreme Court in an effort to convince the Court not to review these Spending Clause claims. So the question is whether the Court took these cases anyway simply to hear all the claims against the ACA in a single sitting or whether the conservative wing of the Court is poised and ready to strike out in a bold new direction and impose significant new limitations upon the federal government’s exercise of its Spending Clause authority.

The Spending Clause at a Crossroads
With the Spending Clause challenges to the Affordable Care Act pending before the Supreme Court, the Spending Clause is very much at a crossroads. Even if the Court rejects the states’ argument and reaffirms the Butler/Steward Machine/Dole Spending Clause framework, the ideological fights that have played out in cases like Monroe County and Arlington Central will certainly continue. These statutory fights draw

53 54

State Petr. Br. at 20. Brief for Respondents (Medicaid) at 15, Florida v. DHHS (11-400). Page | 9

Crossroads: Spending Clause

less attention, but, as commentators such as Simon Lazarus have explained, 55 the conservative wing of the Supreme Court has succeeded in significantly narrowing the reach and crippling the enforceability of many important federal laws through the use of sub-constitutional tests such as the “clear notice” rule. The more important question is what happens if a majority of the Court accepts the states’ invitation to impose new curbs on Congress’ spending. If successful, these claims could bring down the Affordable Care Act, to date the most significant legislative accomplishment of the Obama presidency. This would be an enormously significant ruling even if the Court somehow limited its ruling only to that. But that seems unlikely; one of the most powerful points made by the United States is that the expansion of Medicaid under the ACA is essentially indistinguishable from prior expansions of Medicaid and other Spending Clause statutes. A ruling in favor of the States could thus call into question a myriad of conditions on federal spending and a large number of state-administered programs that are federally funded and supervised. 56 In his dissent in Barnes v. Gorman 57 – a Spending Clause case decided between Monroe County and Arlington Central -- Justice John Paul Stevens described Justice Scalia, the author of the majority opinion in Barnes, and his conservative colleagues, as “fearless crusaders” because of their willingness to embrace changes to Spending Clause doctrine that could have “potentially far-reaching consequences that go well beyond the issues briefed and argued in this case.” 58 The resolution of the ACA case will test the accuracy of Justice Stevens’ description. If the Court’s conservative majority accepts the states’ invitation to revisit Spending Clause principles that have been in place since the New Deal, we will in fact be living in a brave new world, where settled understandings about the Spending Clause and the federal balance are settled no more.

Simon Lazarus, Stripping the Gears of National Government: Justice Stevens' Stand Against Judicial Subversion of Progressive Laws and Lawmaking (September 29, 2011). Northwestern University Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1935952. 56 See Brief of David Satcher et al. as Amici Curiae Supporting Respondents, Florida v. DHHS (No. 11-400) at 8-10 (discussing threats to federal spending programs involving education, jails and prisons, child welfare, vocational rehabilitation, and child support enforcement. See also Brief of Senate Majority Leader Harry Reid, House Democratic Leader Nancy Pelosi et al. as Amici Curiae Supporting Respondents, Florida v. DHHS (No. 11-400) at 3435 (mentioning similar threats to federal spending programs including conservative statutes such as the Solomon Amendment, which effectively provides military recruiters with equal access to educational institutions, and the No Taxpayer Funding for Abortion Act, which would cut federal funding for health-benefit plans that cover abortion). 57 536 U.S. 181 (2002) (Stevens, J., dissenting). 58 Id. at 192. Crossroads: Spending Clause Page | 10


Regulating Commerce: Will the Supreme  Court Strike Down the Affordable Care Act’s  Minimum Coverage Provision and other  Economic Regulation? 
The Constitution at a Crossroads                 

Powerful and ingenious minds, taking, as postulates, that the powers expressly  granted to the government of the Union, are to be contracted by construction,  into the narrowest possible compass, and that the original powers of the States  are retained, if any possible construction will retain them, may, by a course of  well digested, but refined and metaphysical reasoning, founded on these  premises, explain away the constitution of our country, and leave it, a  magnificent structure, indeed, to look at, but totally unfit for use.     Chief Justice John Marshall in Gibbons v. Ogden      As this quote from Chief Justice John Marshall in the Supreme Court’s first major  opinion interpreting the Constitution’s Commerce Clause makes clear, the fundamental issue of  the scope of the federal government’s power has been debated since the founding of our  Republic.  It also shows that, throughout our nation’s history, opponents of broad federal  power have relied on a narrow construction of the Constitution in attempts to impose limits  upon Congress’s powers under the Commerce Clause and the Necessary and Proper Clause— threatening, perhaps, to “explain away the constitution of our country, and leave it, a  magnificent structure, indeed, to look at, but totally unfit for use.” 1      The latest skirmish in this debate is the constitutional challenge to the Patient  Protection and Affordable Care Act (ACA), particularly its minimum coverage provision, which  requires Americans who can afford it to either purchase a minimum level of health insurance or  pay a penalty.  To the “powerful and ingenious minds” of the law’s challengers, the ACA is a  novel expansion of federal power that goes beyond what was contemplated or permitted by  the Founders.  To others, 2 the healthcare mandate is a regulation of commerce that is clearly  constitutional under the text of the Commerce and Necessary and Proper Clauses and Supreme 
 Gibbons, 22 U.S. 1, 222 (1824).   See, Testimony of Charles Fried, Before the Senate Committee on the Judiciary Hearing on “The Constitutionality  of the Affordable Care Act,” February 2, 2011.   
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Court interpretations of these texts in early decisions such as Gibbons and McCulloch v.  Maryland.3  Although one conservative commentator initially predicted that “there is a less  than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s  Article I power,”4 the lower courts have split on this question, and now some are predicting that  an ideologically divided Supreme Court will strike the mandate down.        The challengers to the mandate rely heavily upon a series of ideologically‐divided rulings  issued over the past 15 years in which the Court’s conservative bloc articulated new limits on  Congress’s power under the Commerce Clause.  Most significantly, in United States v. Lopez5  and United States v. Morrison,6 the Court invalidated the Gun Free School Zones Act and part of  the Violence Against Women Act, holding that these federal laws did not regulate activities  sufficiently tied to interstate commerce.      While these cases form the basis for the attacks on the Affordable Care Act, two more  recent cases justify the prediction that the health care challenges will be easily disposed of by  the Court.   In Gonzales v. Raich,7 Justices Antonin Scalia and Anthony Kennedy joined their  liberal colleagues to uphold federal regulation of medicinal marijuana, even if grown in a  backyard for personal consumption, in accordance with local law.  In United States v.  Comstock,8 Chief Justice John Roberts and Justices Kennedy and Samuel Alito agreed with the  Court’s liberal wing in holding that the Necessary and Proper Clause permitted Congress to  enact a federal law allowing the government to hold mentally ill, sexually dangerous federal  prisoners beyond the date they would otherwise be released from prison.9  The question left by  Raich and Comstock is whether these cases are accurate reflections or refinements of the views  of these conservative Justices about the scope of federal powers, or more a reflection of the  conservative policy goals – regulating drugs and sexually dangerous criminals – at issue in these  cases.     What is clear, however,  is that with a challenge to the most important legislative  achievement of the Obama presidency pending before the Supreme Court, the Constitution’s  Commerce Clause and its Necessary and Proper Clause are at a crossroads. 

 17 U.S. 316 (1819)   Orin Kerr, What Are the Chances that the Courts Will Strike Down the Individual Mandate?, The Volokh  Conspiracy, available at:    http://volokh.com/2010/03/22/what‐are‐the‐chances‐that‐the‐courts‐will‐strike‐down‐the‐individual‐mandate/    Professor Kerr prognosticates that he expects “a 9‐0 (or possibly 8‐1) vote to uphold the individual mandate.”   5  514 U.S. 549 (1995).  6  529 U.S. 598 (2000).  7  545 U.S. 1 (2005).  8  130 S.Ct. 1949 (2010).   9  130 S.Ct. at 1954; id. at 1965 (Kennedy, J., concurring); id. at 1968 (Alito, J., concurring).   
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The Text and History of the Commerce and Necessary and Proper Clauses 
The debate over the scope of federal power was central to America’s Founding and has  continued throughout our nation’s history.  In 1783, soon after the Revolutionary War was won,  George Washington wrote to Alexander Hamilton that “unless Congress have powers  competent to all general purposes, that the distresses we have encountered, the expences we  have incurred, and the blood we have spilt in the course of an Eight years war, will avail us  nothing.”10  Referring to the failed Articles of Confederation ‐‐ which placed the nation’s  foundations upon a mere “league of friendship” among the thirteen independent states— Washington expressed to Hamilton that “[n]o man in the United States is, or can be more  deeply impressed with the necessity of a reform in our present Confederation than myself.”11    In the summer of 1787, delegates convened in Philadelphia to hold a Constitutional  Convention, and the question of the scope of federal power was a central issue for debate.  On  one side was James Madison and the Virginia Plan, which proposed greatly expanding federal  power.  On the other was William Patterson and the New Jersey Plan, which advocated for a  weaker national government.  James Wilson, one of only six men to have signed both the  Declaration of Independence and the Constitution, explained that under the Virginia Plan, “the  Natl. Legislature is to make laws in all cases at which the separate States are incompetent,”  while under the New Jersey Plan the powers of Congress would not be expanded much beyond  what they were under the Articles of Confederation.12  With the experience of the failed  Articles of Confederation fresh in their minds, the delegates overwhelmingly approved the  Virginia Plan.13  With the principles of the Virginia Plan as a guide, the drafters of the Constitution  created a list of enumerated powers provided to Congress in Article I, Section 8, including the  Commerce Clause and the Necessary and Proper Clause.  The Commerce Clause granted  Congress the “Power . . . To regulate Commerce with foreign Nations, and among the several  States, and with the Indian Tribes.”14  And the Necessary and Proper Clause provided Congress  the “Power . . . To make all Laws which shall be necessary and proper for carrying into  Execution the foregoing Powers, and all other Powers vested by this Constitution in the  Government of the United States.”15    The debate over the appropriate scope of federal power intensified as Anti‐Federalist  opponents of ratification expressed concerns that the proposed Constitution tipped the balance  too far in favor of federal power and closer to the imperial British rule they had fought against  in the Revolutionary War.  The proponents of ratification, led by John Jay, Alexander Hamilton 
 18 The Writings of George Washington 490 (John C. Fitzpatrick, ed. 1931) (Letter to Alexander Hamilton, March  4, 1783) (emphasis in original).  11  Id. at 505.  12  1 The Records of the Federal Convention of 1787 252, 277 (Max Farrand ed., rev. ed. 1966).  13  Id.  at 322.  14  U.S. Const. art. 1, §8, cl. 3.  15  U.S. Const. art. I, §8, cl. 18.  Crossroads: Commerce Power    Page | 3 


and James Madison in The Federalist Papers, answered those arguments with two points.  First,  they laid out the case for the broad powers granted to the federal government, emphasizing  “the importance of their continuing firmly united under one federal government, vested with  sufficient powers for all general and national purposes.”16  Second, they stated that the powers  granted to the federal government under the Constitution were “few and defined,” while the  powers “which are to remain in the State governments are numerous and indefinite.”17    The precise scope of those “few and defined” powers quickly proved controversial, with  two prominent members of President George Washington’s cabinet – Treasury Secretary  Alexander Hamilton and Secretary of State Thomas Jefferson – clashing sharply over whether  the Constitution permitted Congress to establish a national bank.  President Washington sided  with Hamilton and created the bank, leading to the Supreme Court’s unanimous ruling in  McCulloch v. Maryland,18 upholding the creation of the bank against a constitutional challenge.      As did the authors of The Federalist Papers, Chief Justice Marshall recognized in  McCulloch that the federal government is “one of enumerated powers.”  Marshall made this  point even more forcefully in Marbury v. Madison,19 in which he opined that “[t]he powers of  the legislature are defined, and limited; and that those limits may not be mistaken, or  forgotten, the constitution is written.”20  But most of McCulloch is devoted to articulating the  broad scope of those enumerated powers: “‘in order to form a more perfect union,’ it was  deemed necessary to change this alliance into an effective government, possessing great and  sovereign powers.”21 Evoking language from Hamilton’s advisory opinion to Washington, Chief  Justice Marshall upheld the establishment of a national bank under the Necessary and Proper  Clause, stating “[l]et the end be legitimate, let it be within the scope of the constitution, and all  means which are appropriate, which are plainly adapted to that end, which are not prohibited,  but consistent with the letter and spirit of the constitution, are constitutional.”22      Chief Justice Marshall similarly understood the Commerce Clause as providing a broad  grant of authority to Congress, as he expressed in his decision for the Court in Gibbons v.  Ogden.23  Once again, as a starting point, Chief Justice Marshall acknowledged that Congress’s  power was not unlimited, explaining that the enumeration of powers in the Constitution  “presupposes something not enumerated.”24  But again, he emphasized the broad scope of 
 The Federalist Papers, No. 3, at 36 (Jay) (Clinton Rossiter, ed. 1999).   The Federalist Papers No. 45, at 289 (Madison).  18  17 U.S. 316 (1819)  19  1 Cranch 137 (1803).  20  Id. at 176.  21  Id. at 403.    22  Id. at 421.  Hamilton wrote to Washington, “If the end be clearly comprehended within any of the specified  powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision  of the constitution; it may safely be deemed to come within the compass of the national authority.” The Papers of  George Washington Digital Edition (Theodore J. Crackel, ed. 2008) (Letter from Alexander Hamilton to George  Washington, Opinion on the Constitutionality of an Act to Establish a Bank, 1791).  23  22 U.S. 1 (1824).  24  Id. at 195. 
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these enumerated powers.   He rejected a “narrow construction, which would cripple the  government, and render it unequal to the object for which it is declared to be instituted, and to  which the powers given, as fairly understood, render it competent.”25  In Marshall’s view,  “[c]ommerce, undoubtedly, is traffic, but it is something more: it is intercourse.”26  Marshall  emphasized that “[t]he power over commerce . . . was one of the primary objects for which the  people of America adopted their government,” and made clear that “the attempt to restrict it  comes too late.”27  Under Chief Justice Marshall’s expansive view of the Commerce Clause,  “[t]he wisdom and the discretion of Congress . . . and the influence which their constituents  possess at elections, are . . .the sole restraints on which they have relied, to secure them from  its abuse.”28   


From the Lochner Era to the Roberts Court 
Judicial deference to congressional action under the Commerce Clause was the rule for  America’s first century.  But as Congress began taking a more active role in regulating the  growing American economy during and after the Industrial Revolution, the Court started to  push back, taking a much narrower view of the Commerce Clause.  While this period, known as  the Lochner era, is most often associated with the Supreme Court’s invocation of substantive  Due Process to overturn state labor regulations based on a new found “liberty of contract,”  equally far‐reaching were its decisions overturning federal laws based on a restrictive  understanding of the Commerce Clause.  Creating categorical exceptions in cases such as United  States v. E.C. Knight Co.29 and Carter v. Carter Coal Co.,30 the Court ruled that production,  manufacturing, and mining fell outside Congress’s powers because the Court did not believe  that these activities fell within the definition of commerce.  The Court also invalidated federal  child labor laws and federal wage and hour laws on the ground that Congress could not  regulate activities that had only an indirect effect on interstate commerce.31  The Lochner era ended in 1937, with the Court jettisoning both its substantive Due  Process assault on state labor regulations and its restrictive reading of the Commerce Clause.32   With a shift toward a national economy driven by increasingly rapid technological change, the  Court’s doctrine began to allow for greater federal controls.  The result was a return to the  broad Commerce Clause powers affirmed by Chief Justice Marshall and judicial deference  toward the elected branches. 
 Id. at 188.   Id. at 189.  27  22 U.S. at 190.  28  Id. at 197.  29  156 U.S. 1 (1895).  30  298 U.S. 238 (1936).  31   Hammer  v.  Dagenhart,  247  U.S.  251  (1918)  (federal  child  labor  laws);  A.L.A.  Schechter  Poultry  Corp.  v.  United  States, 295 U.S. 495 (1935) (federal wage and hour laws).    32  See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (upholding state minimum wage laws); NLRB v. Jones &  Laughlin Steel Crop., 301 U.S. 1 (1937) (upholding National Labor Relations Act against Commerce Clause  challenge). 
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The new post‐Lochner doctrine of deference toward Congress’s Commerce Clause  powers reached what some consider its high water mark in Court’s 1942 decision in Wickard v.  Filburn.33  Here, the question was whether Congress could address the national problem of  volatility in the price of wheat by regulating wheat grown on a family farm for private  consumption as part of a broader regulatory scheme.  While the Court conceded that the  impact of the individual family farmer was small, it upheld Congress’s use of its Commerce  Clause power because, in the aggregate, the economic impact of all such activities “is far from  trivial.”34  The Court’s logic was that whether the wheat was introduced to market or used for  private consumption, it would have the effect of suppressing the price of wheat.35  Evoking  Chief Justice Marshall, the Court responded to the criticism that Congress was forcing farmers  into the market in order to stabilize prices by recognizing that “[t]he conflicts of economic  interest between the regulated and those who advantage by it are wisely left under our system  to resolution by the Congress under its more flexible and responsible legislative process,” since  “[s]uch conflicts rarely lend themselves to judicial determination.”36   For more than fifty years after the end of the Lochner era, the Court did not strike down  a single federal law as exceeding Congress’s authority under the Commerce Clause or the  Necessary and Proper Clause.  Then, in the mid‐1990s, a deeply divided Court struck down the  federal Gun Free School Zones Act and part of the Violence Against Women Act (VAWA) as  exceeding Commerce Clause powers.  In United States v. Lopez, a five‐Justice conservative  majority observed that the ban on guns in school zones was “a criminal statute,” that, unlike  the regulation of wheat in Wickard, “is not an essential part of a larger regulation of economic  activity.”37  Declining to expand further the Court’s deference toward Congress, the Court  refused “to pile inference upon inference” in order sustain congressional action, arguing that to  do so would fundamentally blur any “distinction between what is truly national and what is  truly local.”38  Importantly, the Lopez Court did not overrule any prior precedent, citing  approvingly to the entire post‐Lochner line of cases.39  Nonetheless, the Lopez Court clearly  meant to draw a line in the sand, emphasizing that it was unwilling to “convert congressional  authority under the Commerce Clause to a general police power.”40  The Lopez majority  concluded that by enumerating federal power in the Constitution, our founding charter  “withhold[s] from Congress a plenary police power that would authorize enactment of every  type of legislation.”41  In United States v. Morrison, the same five Justices from the Lopez majority struck down  VAWA’s civil remedy provision, noting that gender‐motivated crimes “are not, in any sense of 
33 34

 317 U.S. 111 (1942).   Id. at 128.  35  Id.  36  Id. at 129.  37  514 U.S. 549, 561 (1995).  38  Id. at 567‐68.  39  Id. at 555‐61.  40  Id. at 567.  41  Id. at 566.  Crossroads: Commerce Power    Page | 6 


the phrase, economic activity.”42  The Morrison majority, considering the federal law’s civil  remedy provision, concluded it could think of “no better example of the police power, which  the Founders denied the National Government and reposed in the States.”43  Again, the  majority balked at questioning prior precedent, but reinforced its statement in Lopez that “[t]he  Constitution requires a distinction between what is truly national and what is truly local.”44    The dissenting Justices in Lopez and Morrison believed the Court should give Congress  greater deference in determining whether a regulated activity has a substantial effect on  interstate commerce.45  In the dissenters’ view, the Court’s distinction between economic  activity and non‐economic activity was contrary to prior decisions, which had only emphasized  an activity’s effect on interstate commerce.46  Such “categorical exclusions have proven as  unworkable in practice as they are unsupportable in theory,” according to the dissenters, and  harkened back to the discredited Lochner era.47  To the dissenters, the appropriate safeguard  for federalism in this area was not the courts, but, as Chief Justice Marshall had emphasized,  the political structures established by the Constitution.48  Citing the amici curiae brief from the  36‐State coalition in support of VAWA, the dissent in Morrison observed that it is “not the least  irony of these cases that the States will be forced to enjoy the new federalism whether they  want it or not.”49  Lopez and Morrison were decided during a decade‐long period known as the  “Federalism Revolution” of the Rehnquist Court.  During this period, the Court imposed a  number of other restrictions on the use of the Commerce Clause.  In Seminole Tribe v. Florida,50  the Court held that Congress does not have power under the Commerce Clause to abrogate  state sovereign immunity afforded to the states under the Eleventh Amendment.  In New York  v. United States and Printz v. United States51 the Court struck down federal laws that required  state officials to participate in federal regulatory efforts, holding that the Commerce Clause  could not be used to “commandeer” state and local officials.  Finally, in Solid Waste Agency of  Northern Cook County v. United States52 and Rapanos v. United States,53 the Court twice used 
 Id. at 613.   Id. at 618.  44  Id. at 613, 617.  45  Lopez, 514 U.S. at 616‐17 (Breyer, J., dissenting) (“Courts must give Congress a degree of leeway in determining  the existence of a significant factual connection between the regulated activity and interstate commerce ‐‐ both  because the Constitution delegates the commerce power directly to Congress and because the determination  requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy.”);  Morrison, 529 U.S. at 628 (Souter, J., dissenting) (“The fact of such a substantial effect is not an issue for the courts  in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony  far exceeds ours.”).  46  Lopez, 514 U.S. at 628 (Breyer, J., dissenting).  47  529 U.S. at 639, 642‐44 (Souter, J., dissenting).  48  Id. at 648‐49.  49  Id. at 654.  50  517 U.S. 44 (1996).  51  521 U.S. 898 (1997).  52  531 U.S. 159 (2001).  53  547 U.S. 715 (2006). 
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the principle of constitutional avoidance to limit the scope of the Clean Water Act and thus  avoid Commerce Clause concerns  Fears that Lopez and Morrison would cascade into an even broader judicial review of  federal legislation were somewhat staunched by the Court’s 2005 decision in Gonzales v. Raich,  which upheld Congress’s power to regulate medicinal marijuana grown for personal  consumption, in accordance with local law.54  Six Justices voted to uphold Congress’s use of its  Commerce Clause power, with Justice Anthony Kennedy signing on in full to the majority  opinion and Justice Antonin Scalia concurring separately.  As a starting point, the majority  opinion observed that “[t]he Commerce Clause emerged as the Framers' response to the  central problem giving rise to the Constitution itself: the absence of any federal commerce  power under the Articles of Confederation.”55  Addressing prior precedent, it explained that  “[o]ur case law firmly establishes Congress’ power to regulate purely local activities that are  part of an economic ‘class of activities’ that have a substantial effect on interstate  commerce.”56    Justice Scalia concurred separately in Raich to emphasize that “Congress's regulatory  authority over intrastate activities that are not themselves part of interstate commerce  (including activities that have a substantial effect on interstate commerce) derives from the  Necessary and Proper Clause.”57  Distinguishing Lopez and Morrison, Scalia explained that  “Congress may regulate even noneconomic local activity if that regulation is a necessary part of  a more general regulation of interstate commerce.”58  Citing to McCulloch, Scalia explained that  “the Necessary and Proper Clause . . . empowers Congress to enact laws in effectuation of its  enumerated powers that are not within its authority to enact in isolation.”59  Applying these  principles to the case at hand, Scalia agreed that “Congress could reasonably conclude that its  objective of prohibiting marijuana from the interstate market ‘could be undercut’ if those  activities were excepted from its general scheme of regulation.”60  Dissenting, Justice Sandra  Day O’Connor, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, found  the case “materially indistinguishable from Lopez and Morrison.”61  While Justice Scalia presented a broad understanding of the Necessary and Proper  Clause in Raich, the limits of his view were highlighted by his dissent in United States v.  Comstock,62 in which the Court, by a 7‐2 vote, upheld under the Necessary and Proper Clause a 
 545 U.S. 1 (2005).   Id. at 16.  56  Id. at 17.  57  Id. at 34 (Scalia, J., concurring).  58  Id. at 37.  As Scalia explained, Lopez and Morrison “do not declare noneconomic intrastate activities to be  categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert  control over intrastate activities in connection with a more comprehensive scheme of regulation.” Id. at 38‐9.  59  Id. at 39.  Although, “even when the end is constitutional and legitimate, the means . . . may not be otherwise  ‘prohibited’ and must be ‘consistent with the letter and spirit of the constitution.’” Id. (quoting McCulloch, 17 U.S.  at 421).  60  Id. at 42 (quoting Lopez, 514 U.S. at 561).  61  Id. at 45 (O’Connor, J., dissenting, joined by Rehnquist, C.J., Thomas, J.).   62  130 S.Ct. 1949 (2010).  
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federal law allowing the government to institute civil‐commitment proceedings against  mentally ill, sexually dangerous federal prisoners beyond the date they would otherwise be  released from prison.  In upholding the law, the majority opinion, which Chief Justice Roberts  joined in full, recognized that “the Constitution ‘addresse[s] the ‘choice of means’ ‘primarily . . .  to the judgment of Congress.’”63  Referencing Chief Justice Marshall’s decision in McCulloch, the  majority emphasized how “[t]he Framers demonstrated considerable foresight in drafting a  Constitution capable of such resilience through time.”64    In dissent, Justice Thomas, joined by Justice Scalia, argued for a more narrow  understanding of the Necessary and Proper Clause that would limit its scope to the execution of  Congress’s enumerated powers.  Because in the views of Justices Thomas and Scalia the  challenged federal statute “does not execute any enumerated power,” they would have found  it outside Congress’s power.65  Justice Kennedy, in a separate concurrence, pushed back against  this understanding that “the Necesssary and Proper Clause can be no more than one step  removed from an enumerated power.”66  Instead, “[w]hen the inquiry is whether a federal law  has sufficient links to an enumerated power to be within the scope of federal authority, the  analysis depends not on the number of links in the congressional‐power chain but on the  strength of the chain.”67  Kennedy broke with the majority, however, in his emphasis on the  importance of “whether essential attributes of state sovereignty are compromised by the  assertion of federal power under the Necessary and Proper Clause,” something he would weigh  on the side of concluding that “the power is not one properly within the reach of federal  power.”68 


The Commerce Clause and the Necessary and Proper Clause at a  Crossroads 
  With the challenges to the Affordable Care Act pending before the Supreme Court, the  Commerce Clause and the Necessary and Proper Clause are at a significant crossroads.  While  cases as old as McCulloch and Gibbons and as new as Raich and Comstock strongly support the  constitutionality of the minimum coverage provision, cases from Carter Coal to Morrison also  indicate that a conservative majority on the Court is more than capable of imposing new limits  on the powers of the federal government when it chooses to do so.     
 130 S.Ct. 1949, 1957 (2010) (quoting Burroughs v. United States, 290 U.S. 534, 547‐48 (1934)).   Id. at 1955.  65  Id. at 1974 (Thomas, J., dissenting, joined by Scalia, J.).  Thomas underscored his belief that the Court’s “opinion  breathes new life into” the Necessary and Proper Clause, which he called “the last, best hope of those who defend  ultra vires congressional action.” Id. at 1983 (quoting Printz v. United States, 521 U.S. 898, 923 (1997)).  66  Id. at 1965‐66 (Kennedy, J., concurring); see also id. at 1969‐70 (Alito, J., concurring) (acknowledging legitimacy  of federal power more than one step removed from enumerated power).  67  Id. at 1966.  68  Id. at 1967‐68. 
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The Court’s ruling on the ACA case will be a landmark ruling no matter how it comes  out.  An opinion upholding the Act, joined by one or members of the Court’s conservative bloc,  could go a long way to ending, once and for all, the recurring question of whether the federal  government has the powers required to solve problems, like access to health care, which are  truly national in scope.  A ruling striking down the Act would be a huge step back toward the  Lochner era, with a progressive President at war with a conservative Supreme Court.   Not since  Carter Coal has the Supreme Court struck down any piece of legislation near the scope and  scale of the Affordable Care Act as beyond Congress’s powers under the Commerce Clause and  the Necessary and Proper Clause.      Nearly 200 years ago, Chief Justice Marshall warned about those who would “explain  away the constitution of our country, and leave it, a magnificent structure, indeed, to look at,  but totally unfit for use.”   Given that some of the rulings authored or joined by conservative  members of the Roberts Court support a broad interpretation of federal power, it does not  seem that the conservative bloc consistently holds as a “postulate” that the powers expressly  granted to the federal government are to be given the narrowest possible construction.  That  said, it is unclear whether the conservative Justices who voted in support of federal power in  Raich and Comstock will do so to uphold an exercise of congressional power that does not fit as  well with their policy preferences.  The Affordable Care Act, and many other federal laws, hang  in that balance.  



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Enforcing Civil Rights: Will the Supreme Court Strike Down the Voting Rights Act and Other Landmark Civil Rights Legislation?
The Constitution at a Crossroads

Do decisions that return the country to a pre-Civil War understanding of the nation establish a more perfect Union? Are decisions just that shield not only the states but lesser appendages of the state from paying for the wrongs they commit? Do decisions that leave the elderly and the disabled with inadequate remedies for unequal treatment establish justice? . . . .Do decisions that deny Congress the power to protect the free exercise of religion secure the blessings of liberty? Do decisions that leave women less protected than men achieve any of the Constitution’s ends? ... The[se] results . . . were reached largely . . . by means of doctrinal devices – state sovereign immunity, congruence and proportionality of legislation, and record of evils to be eradicated – that have no footing in the Constitution. Remove these obfuscations, it will be clear that the court’s decisions do not survive the test for serving constitutional purposes. JOHN T., NOONAN, JR.,NARROWING THE NATION’S POWER: THE SUPREME COURT SIDES WITH THE STATES 12 (2002). Three years ago, an ideologically-divided Supreme Court appeared poised on the precipice of a ruling that would strike down a central provision of an iconic civil rights law – the preclearance provision of the Voting Rights Act of 1965 – as beyond Congress’s constitutional authority. Then, the Court blinked, issuing instead an 8-1 ruling disposing of the challenge on narrow statutory grounds. Now with limits on state-imposed threats to voting rights front and center in the run-up to the fall 2012 elections, challenges to the Act are again racing through the court system, setting up a return engagement before the Court, possibly as soon as the October 2012 Term. As the quote above from Judge John Noonan, a conservative appeals court judge appointed by President Ronald Reagan, makes clear, one of the most important and controversial developments in the Supreme Court’s jurisprudence of the last 15 years is a new doctrine, minted by Justice Anthony Kennedy in the 1997 ruling in Boerne v. City of Flores, 1 limiting the power of Congress to protect the

521 U.S. 507 (1997).

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constitutional guarantees of liberty and equality secured by the Fourteenth Amendment. Introduced with little notice or fanfare in Boerne – a case that divided the Court mainly over the meaning of the First Amendment’s Free Exercise Clause – Boerne’s “congruence and proportionality” test has subsequently become a lightening rod, as Justice Kennedy and other conservative Justices on the Court have applied this test with significant rigor in rulings that have narrowed the reach of landmark federal civil rights laws such as the American with Disabilities Act and the Age Discrimination in Employment Act. With a test to an important section of the Family and Medical Leave Act before the Court currently, and with a landmark challenge to the Voting Rights Act on its way to the Court, the constitutional authority of Congress to protect liberty, equality and civil rights is very much at a crossroads.

The Text and History of the Enforcement Power
The three Civil War Amendments – the Thirteenth, Fourteenth, and Fifteenth Amendments – establish the constitutional foundation for Congress to enact federal civil rights legislation, each giving to Congress the power to enforce the Constitution’s new guarantees of liberty, equality, and the right to vote “by appropriate legislation.” 2 In enlarging the constitutional powers of Congress, the Framers of the three Civil War Amendments gave Congress a critical role in ensuring that the new constitutional guarantees would be enjoyed by all Americans. For example, during the debates over the Fourteenth Amendment, the Framers of the Amendment explained that, to ensure that the Constitution’s new guarantees “are to be effectuated and enforced, . . . additional power should be given to Congress . . . . This is to be done by the fifth section of the amendment . . . . Here is a direct affirmative delegation of power to carry out the principles of these guarantees, a power not found in the Constitution.” 3 Thus, the Framers of the Fourteenth Amendment explained that the Enforcement Clause “casts upon Congress the responsibility of seeing to it, for the future, that all sections of the amendment are carried out in good faith, and that no State infringes the rights of persons or property.” 4 The language that the Framers used to define the scope of Congress’ authority under the Civil War Amendments – “appropriate legislation” – reflects a decision to give Congress wide discretion to enact whatever measures it deemed “appropriate” for achieving the purpose of the Amendments. In giving Congress the power to enact “appropriate legislation” to secure the new constitutional guarantees of liberty, equality, and the right to vote, the Framers of the three Civil War Amendments granted Congress the sweeping authority of Article I’s “necessary and proper” powers as interpreted by the Supreme Court in McCulloch v. Maryland, 5 a seminal case well known to the Framers of those Amendments. 6 In adopting a broad understanding of the scope of the enforcement power, the Framers
U.S. Const., Amdt. XIII, §2; Amdt. XIV, § 5; Amdt. XV, §2. th st Cong. Globe, 39 Cong., 1 Sess. 2765-66 (1866). 4 Id. at 2768. 5 17 U.S. (4 Wheat.) 316 (1819). 6 See, e.g., JOHN T. NOONAN, NARROWING THE NATION’S POWER: THE SUPREME COURT SIDES WITH THE STATES 28-31 (2002); Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev 1801, 1810-11 (2010); Evan Caminker, “Appropriate” Means-Ends Constraints on Section 5 Powers, 53 STAN. L. REV. 1127, 1158-66 (2001); Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 822-27 (1999); Michael W. McConnell, Institutions and Interpretation, 111 HARV. L. REV. 153, 178 n.153 (1997). For an extensive discussion of the text and history of the Enforcement Clauses
3 2

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stressed the importance of a broad legislative power to protect constitutional rights – with corresponding deference from the courts to respect this new authority. In the years after Reconstruction, the Supreme Court held that the Enforcement Clause of the Fourteenth Amendment gave Congress broad authority to secure the guarantees of the Fourteenth Amendment from state invasion, echoing the reasoning of McCulloch. “Whatever legislation is appropriate, that is adapted to carry out the objects the amendments have in view, whatever tends . . . to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial and invasion . . . is brought within the domain of congressional power.” 7 Using the enforcement power, Congress has enacted a long list of iconic civil rights legislation vindicating the promises of the Civil War Amendments, including the Civil Rights Act of 1964, the Voting Rights Act of 1965, and, more recently, the Americans with Disabilities Act and the Family and Medical Leave Act.

Boerne and the Congruence and Proportionality Test
In 1997, in its landmark opinion in Boerne, the Supreme Court changed course. Boerne held that the Religious Freedom Restoration Act (“RFRA”) exceeded Congress’ power to enforce the Fourteenth Amendment and, more important, demanded that federal enforcement legislation satisfy a new, searching standard of review, called congruence and proportionality. In fashioning the congruence and proportionality standard in Boerne, Justice Kennedy emphasized that the text of Section 5 limits Congress to the power to “enforce” the guarantees of the Fourteenth Amendment. “Legislation which alters the meaning of the [Fourteenth Amendment] cannot be said to be enforcing [it]. Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” 8 In choosing to give Congress a power to enforce, Justice Kennedy reasoned, the drafters of the Amendment gave Congress remedial authority to redress actual constitutional violations by state and local governments, not the substantive power to elucidate the Constitution’s meaning. 9 Thus, in Justice Kennedy’s view, Congress was required to hew to the Court’s precedents in legislating under the Enforcement Clause. Any other result, the Court reasoned, would allow Congress to change the Constitution’s meaning and overhaul the balance of powers between the states and the federal government. “If Congress could define its own powers by

of the Civil War Amendments, see DAVID H. GANS & DOUGLAS T. KENDALL, THE SHIELD OF NATIONAL PROTECTION: THE TEXT AND HISTORY OF SECTION 5 OF THE FOURTEENTH AMENDMENT (2009). 7 Ex Parte Virginia, 100 U.S. 339, 345-46 (1880); see also South Carolina v. Katzenbach, 383 U.S. 301, 327 (1966) (“The basic test to be applied . . . is the same in all cases concerning the express powers of Congress with relation to the reserved powers of the States. Chief Justice Marshall laid down the classic formulation, 50 years before the Fourteenth Amendment was ratified. . . . The Court has subsequently echoed his language in describing each of the Civil War Amendments.”); Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (“[T]he McCulloch v. Maryland standard is the measure of what constitutes ‘ appropriate legislation’ under § 5 of the Fourteenth Amendment.”). 8 Boerne, 521 U.S. at 519. 9 Id. at 520 (arguing that “the Fourteenth Amendment’s history confirms the remedial, rather than substantive, nature of the Enforcement Clause”). Crossroads: Enforcement Power Page | 3

altering the Fourteenth Amendment’s meaning, no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’” 10 Boerne drew a distinction “between measures that remedy and prevent unconstitutional actions and measures that make a substantive change in the governing law,” 11 reaffirming that when Congress enforces recognized fundamental constitutional rights rather than inventing new ones, “[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not unconstitutional and intrudes into ‘legislative spheres of autonomy previously reserved to the States.’” 12 While the line between remedial and substantive measures “is not easy to discern, and Congress must have wide latitude in determining where it lies,” Justice Kennedy explained that “the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect.” 13 Applying this new test, the Court concluded that RFRA, which provided that government action that substantially burdened the free exercise of religion must meet the test of strict scrutiny, could not be justified as legislation enforcing the Fourteenth Amendment. The Act’s sweeping coverage, Justice Kennedy wrote, “is so out of proportion to a supposed remedial or preventative object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” 14 Rather, as the legislative record clearly reflected, RFRA was an attempt to overturn legislatively the Supreme Court’s prior decision in Employment Division, Dep’t of Human Resources v. Smith, 15 which had narrowed the meaning of the First Amendment, and “attempt a substantive change in constitutional protections.” 16 Boerne’s new interpretation of the scope of Congress’ power to enforce the guarantees of the Fourteenth Amendment went unchallenged on the Court. Instead, the dissenters – Justices Sandra Day O’Connor, Stephen Breyer, and David Souter – took on the Court’s prior interpretation of the Free Exercise Clause in Smith, arguing that, as a matter of First Amendment history, Smith was wrong (or there were serious doubts about its correctness) and should be re-considered or overruled.17 As Justice O’Connor explained, “[i]f the Court were to correct the misinterpretation of the Free Exercise Clause in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty.” 18

Id. at 529 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Id. at 519. 12 Id. at 518 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976)). 13 Id. at 519, 520. 14 Id. at 532. 15 494 U.S. 872 (1990). 16 Boerne, 521 U.S. at 532. 17 Id. at 544-45 (O’Connor, J., dissenting); see also id. at 565-66 (Souter, J., dissenting) (calling for re-argument on the question whether Smith was correctly decided); id. at 566 (Breyer, J., dissenting) (same). 18 Id. at 545 (O’Connor, J., dissenting).


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The Rehnquist Court’s Federalism Revolution: An Ideological Divide Emerges on Congruence and Proportionality
Boerne might have been viewed as an outlier case involving a unique set of circumstances – after all, in enacting RFRA, Congress had by statute attempted to displace the Supreme Court’s interpretation of the Free Exercise Clause and mandate a constitutional standard of review for all future cases – but a majority of the Court did not treat it in this fashion. Rather, in a series of cases deciding between 1999 and 2001, at the height of the Rehnquist Court’s Federalism Revolution, the Court applied Boerne’s newly-minted congruence and proportionality standard with rigor to hold unconstitutional in part a number of federal statutes, including two of the most important modern federal antidiscrimination laws. In these cases, the Court’s liberal Justices recognized the dangers posed by the congruence and proportionality test and issued strongly-worded dissents. In Kimel v. Florida Bd. of Regents, 19 decided in 2000, and Board of Trustees of Univ. of Alabama v. Garrett, 20 decided in 2001, 5-4 conservative majorities held that the Age Discrimination in Employment Act and the employment discrimination provisions of the Americans With Disabilities Act were not valid exercises of congressional power to enforce the Fourteenth Amendment, and were unconstitutional to the extent they allowed individuals to sue state governments for monetary damages. 21 In these cases, the Court, in opinions authored, respectively, by Justice O’Connor and Chief Justice William Rehnquist, reasoned that, because the Court had interpreted the Fourteenth Amendment to permit age discrimination and disability discrimination, so long as it is rationally related to a legitimate government interest, the ADEA’s and ADA’s prohibitions on such discrimination “attempt[ed] to redefine the States’ legal obligations” 22 and “rewrite Fourteenth Amendment law laid down by this Court . . . . Section 5 does not so broadly enlarge congressional authority.” 23 Conducting an extensive, searching review of the congressional record, the majority in both cases concluded that Congress had no basis for concluding that legislation was needed to correct a pattern of unconstitutional discrimination by the states. Four Justices issued strongly worded dissents in each case. Most significantly, in Garrett, the Court’s liberal wing took on the Court’s sweeping use of Boerne to limit landmark antidiscrimination laws. Recognizing the broad sweep of the Fourteenth Amendment’s guarantee of the equal protection of the laws and the broad discretion entrusted to Congress under the Enforcement Clause, Justice Breyer’s dissent argued that “Congress could have reasonably concluded that the [ADA’s] remedy . . .
19 20

528 U.S. 62 (2000). 531 U.S. 356 (2001). 21 In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the Court held that Congress could not subject states to suit for money damages for violating federal statutes enacted pursuant to Congress’ Article I powers. To overcome this principle of state sovereign immunity, Congress needed to point to a grant of authority to Congress at the expense of the states, such as the power granted to Congress in each of the Civil War Amendments. Thus, Seminole Tribe made the scope of Section 5 critical to providing federal damage remedies against state governments. 22 Kimel, 528 U.S. at 88. 23 Garrett, 531 U.S. at 374. Crossroads: Enforcement Power Page | 5

constitutes an ‘appropriate’ way to enforce th[e Constitution’s] basic equal protection requirement.” 24 The rational basis test, he explained, was designed to restrain judges, and should not be invoked to prevent Congress from ensuring that the Fourteenth Amendment’s guarantee of the equal protection of the laws is actually enjoyed by all persons, regardless of disabilities. The four liberal dissenters took the majority to task for ignoring that Section 5 of the Fourteenth Amendment gave Congress “‘the same broad powers expressed in the Necessary and Proper Clause’” to do “whatever ‘tends to enforce submission to [the Amendment’s] prohibitions’ and ‘to secure to all persons . . . the equal protection of the laws.’” 25 There was no basis in law, Justice Breyer argued, for refusing to “follow the longstanding principle of deference to Congress,” and setting aside Congress’ considered, well-supported judgment that the ADA was necessary to prevent “substantial unjustified discrimination against persons with disabilities,” often motivated by “‘stereotypic assumptions’ or purposeful unequal treatment’” in violation of the Fourteenth Amendment’s guarantee of equality. 26 Toward the end of Chief Justice Rehnquist’s tenure, the conservative ideological bloc that produced the federalism revolution began to break down, producing narrow majorities on the Court that have limited Boerne’s reach and have held that Congress has significantly more leeway to enact statutes that prevent or deter constitutionally-suspect discrimination or safeguard substantive fundamental rights secured by the Fourteenth Amendment. In 2003, in Nevada Dep’t of Human Resources v. Hibbs, 27 in a 6-3 ruling authored by Chief Justice Rehnquist himself, the Court held that the Family and Medical Leave Act’s family care provision, granting employees 12 weeks of unpaid leave to care for a family member, was appropriate legislation to prevent and deter gender discrimination by the states in the administration of leave benefits. By granting all persons the right to take leave, the Chief Justice explained, “the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family care giving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.” 28 While Boerne’s congruence and proportionality standard still applied, Chief Justice Rehnquist explained that “it was easier for Congress to show a pattern of state constitutional violations” because of the Fourteenth Amendment’s heightened protection against gender discrimination. 29 In 2004, in Tennessee v. Lane, 30 the Court held, by a 5-4 vote, that the ADA’s prohibition on disability discrimination in the administration of public services was valid legislation enforcing the Fourteenth Amendment, as applied to barriers on access to state courthouses. In an opinion by Justice Stevens, the Court held that because the ADA prohibited discrimination in the exercise of fundamental rights, such as the right of access to the courts, that are “subject to more searching judicial review,” 31 Congress was justified in using prophylactic legislation to respond to a widespread pattern of
24 25 26 27 28 29 30 31

Garrett, 531 U.S. at 377 (Breyer, J., dissenting). Id. at 386 (Breyer, J., dissenting) (citations omitted). Id. at 386, 380, 381 (Breyer, J., dissenting) (citations omitted). 538 U.S. 721 (2003). Id. at 737. Id. at 736. 541 U.S. 509 (2004). Id. at 522-23. Page | 6

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discrimination. “When Congress seeks to remedy or prevent unconstitutional discrimination, § 5 authorizes it to enact prophylactic legislation prohibiting practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause.” 32 Hibbs and Lane provoked strongly worded dissents objecting that the Court had watered down Boerne’s congruence and proportionality test beyond recognition. In Hibbs, Justice Kennedy’s dissent, joined by Justices Antonin Scalia and Clarence Thomas, argued that the Court had failed to adhere to Boerne’s strictures. “Simply noting the problem is not a substitute for evidence which identifies some real discrimination that the family leave rules are designed to prevent.” 33 In Justice Kennedy’s view, “[t]he paucity of evidence to support the case . . . demonstrates that Congress was not trying to responds with a congruent and proportional remedy to a perceived course of unconstitutional conduct. Instead, it enacted a substantive entitlement program of its own.” 34 In Lane, Chief Justice Rehnquist’s dissent, joined by Justice Kennedy and Justice Thomas, argued that the majority should have followed the Court’s three-year-old ruling in Garrett. “The near-total lack of actual constitutional violations in the congressional record is reminiscent of Garrett . . . . Title II can only be understood as a congressional attempt to ‘rewrite the Fourteenth Amendment law laid down by this Court,’ rather than a legitimate effort to remedy or prevent state violations of that Amendment.” 35 The Lane dissenters rejected the majority’s as-applied analysis, viewing it as an attempt “to rig the congruence-and-proportionality test by artificially constricting the scope of the statute to closely mirror a recognized constitutional right.” 36 In a separate dissent in Lane, Justice Scalia argued that Boerne’s congruence and proportionality standard should not be applied at all, calling the test “a standing invitation to judicial arbitrariness . . . that has no demonstrable basis in the text of the Constitution . . . .” 37 In Justice Scalia’s view, all that Section 5 permits is legislation providing for access to courts to enforce the Amendment; it does not permit Congress “to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or ‘remedy’ conduct that does not itself violate any provision of the Fourteenth Amendment. So-called ‘prophylactic legislation’ is reinforcement rather than enforcement.” 38 Out of deference to the Court’s long line of precedents interpreting Section 5 broadly to uphold federal laws aimed at racial discrimination, Justice Scalia announced that he would not apply his new rule in that context, observing that “[g]iving § 5 more expansive scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctively violative of the principal purpose of the Fourteenth Amendment . . . .” 39

32 33

Id. at 520. Hibbs, 538 U.S. at 746 (Kennedy, J., dissenting). 34 Id. at 754 (Kennedy, J., dissenting). 35 Lane, 541 U.S. at 547, 548 (Rehnquist, C.J., dissenting). 36 Id. at 551 (Rehnquist, C.J., dissenting). 37 Id. at 558 (Scalia, J., dissenting). 38 Id. at 559 (Scalia, J., dissenting). 39 Id. at 561 (Scalia, J., dissenting). Crossroads: Enforcement Power Page | 7

The Enforcement Power and the Roberts Court
As described above, the pendulum on the Boerne’s congruence and proportionality test swung widely from the Court’s demanding application in Kimel and Garrett, to the much more forgiving application in Hibbs and Lane, which reaffirmed that Congress has broad authority to create prophylactic rules to vindicate constitutional protections the Court has already recognized. But there is reason to believe that the Court’s pendulum in this area may be poised to swing back. Chief Justice Rehnquist, who wrote the opinion in Hibbs, and Justice O’Connor, who joined the majority in Hibbs and cast the deciding vote in Lane, have been replaced by Chief Justice John Roberts and Justice Samuel Alito. If these Justices side with Justice Kennedy, who appears to be deeply committed to enforcing a strict version of the congruence and proportionality test he coined in Boerne, and Justices Scalia and Thomas, these cases are likely to be narrowed or overruled. Indeed, in 2009, at oral argument in NAMUDNO v. Holder, 40 the Court’s five conservative Justices seemed poised to strike down one of the most important provisions of the Voting Rights Act of 1965, the Act’s preclearance requirement, which requires certain jurisdictions with a history of racial discrimination in voting to obtain federal permission before altering their voting laws or regulations. Such a ruling would be a dramatic development because the Court has upheld the constitutionality of the Act’s preclearance provision four times 41 and Boerne and the cases that followed it have repeatedly cited the preclearance requirement of the Voting Rights Act as the archetype of valid enforcement legislation. 42 While the Court ultimately decided NAMUDNO on statutory grounds and avoided the constitutional question, the Court’s opinion, written by Chief Justice Roberts, offers something of a road map for how the Court’s conservatives might strike down the Act in the future. While the Chief Justice celebrated the Act’s achievements, much of his opinion suggested that the Act’s “current burdens” could no longer by justified by “current needs.” 43 Viewing the preclearance requirement as an affront to federalism, the Chief Justice’s opinion suggested that the Act may have run its course, citing “considerable evidence that it fails to account for current political conditions.” 44 New challenges are now waiting in the wings. 45

Possible Developments in the Future
The Court’s present doctrine on the scope of congressional power to enforce the guarantees of the Civil War Amendments continues to be very controversial, and may change substantially in the Roberts Court. For the last fifteen years, the Supreme Court has been sharply divided between Justices
129 S. Ct. 2504 (2009). See South Carolina v. Katzenbach, 383 U.S. 301 (1966); Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey County, 525 U.S. 266 (1999). 42 See Boerne, 521 U.S. at 530-34; Garrett, 531 U.S. at 373-74; Hibbs, 538 U.S. at 756-57 (Kennedy, J., dissenting). 43 NAMUDNO, 129 S. Ct. at 2513. 44 Id. at 2512. 45 See Shelby County v. Holder, No. 10-CV-651, 2011 WL 4375001 (D.D.C. Sept. 21, 2011), appeal pending, No. 115256 (D.C. Cir., argued Jan. 19, 2012); LaRoque v. Holder, No 10-CV-651, 2011 WL 6413850 (D.D.C. Dec. 22, 2011), appeal pending, No. 11-5349 (D.C. Cir.).
41 40

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on the left, who have argued that the power of Congress under the Civil War Amendments is wide in scope, giving Congress broad authority to “advance equal-citizenship stature” 46 for all persons, and Justices on the right, who would sharply restrict the power of Congress, permitting Congress to legislate only after creating an exhaustive record showing that the legislation is a tailored response to a pattern of proven constitutional violations by the states. Justice O’Connor, and to a lesser extent Chief Justice Rehnquist, split the difference, giving Congress fairly broad power to add to the constitutional protections recognized by the Supreme Court, while sharply limiting the power of Congress in areas in which the Court had not established robust constitutional protections. With the changes in the Court’s personnel, the Court’s conservatives may choose to apply Boerne’s congruence and proportionality test expansively across the board, establishing new limits on the power to enforce the Civil War Amendments. If so, it would put at risk a broad swath of civil rights legislation, especially the three landmark statutes that have been the focus of so many of the Court’s recent cases, the Voting Rights Act, the Family and Medical Leave Act, and the Americans With Disabilities Act. First, as discussed above, the Roberts Court could strike down the preclearance provision of the Voting Rights Act on the ground that it has outlived its time. Second, the Roberts Court could revisit Hibbs and Lane, either limiting those decisions or overruling them outright. This Term, the Justices are considering a successor to Hibbs, Coleman v. Maryland Court of Appeals, 47 which raises the question whether the self-care provision of the Family and Medical Leave Act is within Congress’ power to enforce the guarantees of the Fourteenth Amendment. In Coleman, the Fourth Circuit distinguished Hibbs, holding that the self-care provision was not appropriate legislation enforcing the Fourteenth Amendment because its connection to preventing sex discrimination by the states was too tenuous to satisfy Boerne’s congruence and proportionality standard. 48 With the lower federal courts reading Lane broadly, 49 there are plenty of vehicles for the conservatives on the Roberts Court to either limit or overrule Lane as an aberration, inconsistent with Garrett. Third, with the addition of another conservative Justice or two, the Roberts Court might even limit the power of Congress to enact laws that prohibit employment, voting and other practices that have a disparate impact on racial minorities or women on the theory that the Constitution only forbids purposeful discrimination, and nothing more. 50 While these measures have generally been upheld as a prophylactic to guard against purposeful discrimination, 51 the Roberts Court might view them as (1)
See Lane, 541 U.S. at 536 (Ginsburg, J., concurring). See Coleman v. Maryland Court of Appeals, No. 10-1016 (argued Jan. 11, 2012). 48 th See Coleman v. Maryland Court of Appeals, 626 F.3d 187, 193-94 (4 Cir. 2010). 49 For example, the federal courts of appeals have extended Lane’s holding to discrimination in access to rd education, even though education is not a fundamental right. See Bowers v. NCAA, 475 F.3d 524, 554-56 (3 Cir. st 2007); Toledo v. Sanchez, 454 F.3d 24, 34-40 (1 Cir. 2006); Constantine v. Rectors and Visitors of George Mason th Univ., 411 F.3d 474, 486-90 (4 Cir. 2005); Association of Disabled Americans v. Florida Int’l Univ., 405 F.3d 954, th 957-59 (11 Cir. 2005). 50 See, e.g. Washington v. Davis, 426 U.S. 229 (1976); Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979). 51 th See, e.g. United States v. Blaine County, Mont., 363 F.3d 897, 903-09 (9 Cir. 2004) (upholding results test in Section 2 of the Voting Rights as valid enforcement legislation); In re Employment Discrimination Litigation Against
47 46

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once useful to prevent discrimination, but now out of date with advances in the nation; and (2) counterproductive to the goal of securing enforcement of the Fourteenth Amendment for all persons by encouraging the use of employment quotas and racial gerrymandering. 52 Having limited the scope of the disparate impact provision of Title VII and the result test of the Voting Rights Act, 53 the Roberts Court might deliver the knockout punch and declare important provisions these iconic statutes beyond the power of Congress.

the State of Alabama, 198 F.3d 1305, 1318-24 (11 Cir. 1999) (upholding disparate impact provision of Title VII of the Civil Rights Act of 1964 as valid enforcement legislation). 52 See Ricci v. DeStefano, 129 S. Ct. 2658, 2682 (2009) (Scalia, J., concurring) (“Title VII's disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is . . . discriminatory.”); LULAC v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part and dissenting in part) (“It is a sordid business, this divvying us up by race.”). 53 See, e.g. Ricci, supra; Bartlett v. Strickland, 129 S. Ct. 1231 (2009). Crossroads: Enforcement Power Page | 10


The First Amendment, Political Speech, and the Future of Campaign Finance Laws
The Constitution at a Crossroads

In 2010, the Supreme Court’s decision in Citizens United v. FEC upended the world of campaign finance law as we know it by recognizing for the first time that the political speech of corporations is entitled to the same constitutional protections as political speech by individuals. Reacting to the decision, President Barack Obama chastised the Court in his 2010 State of the Union Address: “*L+ast week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” He continued, “I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people.” In response, Justice Samuel Alito, sitting in the audience with most of his Supreme Court colleagues, mouthed “Not true,” even as much of Congress gave the President a standing ovation for his criticism of the Court. The visceral interaction between the three branches of government at the 2010 State of the Union Address highlights the uncertainties created by the Court’s deeply divided decision in Citizens United. The five-Justice majority and four-Justice dissent in Citizens United disagreed sharply about fundamental propositions such as whether corporations should receive the same First Amendment rights as living human beings and the scope of the powers of the federal government and the states to root out corruption in our political process. With the Court currently considering whether to strike down Montana’s century-old law limiting corporate political spending, perhaps without oral argument, and with challenges to long-standing federal restrictions on political contributions by corporations and federal contractors hurtling towards the Supreme Court, the Nation’s system of campaign finance law and the Constitution’s protection of corporate political speech are at a crossroads.

The Founders’ Constitution: Freedom of Speech, Corporations, and Corruption
Campaign finance law lies squarely at the intersection of three important aspects of our constitutional history—freedom of speech, the rights of corporations versus the rights of the people, and fear of corruption. Since our Nation’s founding, there has been a “profound national commitment
1200 18 Street, N.W., Suite 1002, Washington, D.C. 20036


to the principle that debate on public issues should be uninhibited, robust, and wide-open.”1 When it comes to the corporate form, it has been long understood that “*a] corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”2 And as George Mason warned his fellow Delegates at the Constitutional Convention in Philadelphia, “if we do not provide against corruption, our government will soon be at an end.”3 The First Amendment specifies that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” While the Founders did not clarify the scope of the First Amendment’s protections during debates on the Amendment, it has been widely recognized since the debates over the Alien and Sedition Act of 1798 that protection of political speech lies at the core of the First Amendment’s guarantee of freedom of speech. The Alien and Sedition Act imposed criminal penalties on false, scandalous, and malicious anti-government speech, and in the famous Virginia Resolution of 1798, James Madison, the father of the First Amendment, made the case that the Act could not be squared with the First Amendment. In arguing against the constitutionality of the Act, James Madison forcefully argued that “the right of freely examining public characters and measures, and of free communication among the people thereon,” has “justly *been+ deemed the only effectual guardian of every other right.”4 In the court of history, Madison’s objection that “the censorial power is in the people over the Government, and not in the Government over the people”5 carried the day. As President, Thomas Jefferson pardoned those who had been convicted and sentenced under the Act, and fines levied under the Act were repaid by an Act of Congress on the ground that the Act violated the Constitution.6 While our Founding-era history demonstrates a fundamental concern that individuals be free to criticize the government, the Founders recognized a fundamental difference between corporations and “We the People” who founded the Nation and created the Constitution. The Founders viewed corporations as legally distinct from natural persons, treating them as powerful artificial entities that needed to be carefully regulated to ensure that they did not abuse the special privileges they alone received. James Madison summed up the Founding-era vision of corporations during the 1st Congress by explaining that “a charter of incorporation . . . creates an artificial person not existing in law,” and confers special “rights and attributes, which could not otherwise be claimed.”7 In contrast, the Declaration of Independence recognized that the people were “endowed . . . with certain unalienable Rights.” Madison’s view was reflected again in Chief Justice John Marshall’s decision in Trustees of Dartmouth College v. Woodward, which explained that a corporation, “*b+eing a mere creature of law, [] possesses only those properties which the charter of creation confer upon it . . . .”8

1 2

New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Trustees of Dartmouth Coll. v. Woodward, 17 U.S. 518, 636 (1819). 3 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 392 (Max Farrand ed. 1966) (“Farrand’s Records”). 4 Virginia Resolution of 1798, 4 ELLIOT'S DEBATES ON THE FEDERAL CONSTITUTION 553-54 (1876). 5 rd nd Annals of Congress, 3 Cong., 2 Sess. 934 (1794). 6 For discussion, see New York Times, 376 U.S. at 276. 7 Annals of Congress, 1st Cong., 3rd Sess. 1949 (1791). 8 Dartmouth College, 17 U.S. at 636. Crossroads: Campaign Finance Page | 2

Finally, the Founders were intensely concerned about corruption of the government, and sought to design the Constitution to give our national government broad powers to prevent corruption or the appearance of corruption.9 James Madison’s notes of the Constitutional Convention record that 15 delegates used the term “corruption” no fewer than 54 times, the vast majority by seven of the most prominent delegates, including Madison, Governeur Morris, George Mason, and James Wilson.10 Alexander Hamilton explained in Federalist No. 68 that in drafting the Constitution, “*n+othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”11 According to James Madison, the desire of the Framers was to ensure that American government would be “dependent on the people alone.”12

Campaign Finance Law from the 1907 Tillman Act to Citizens United
The roots of modern campaign finance law and restrictions on corporate political speech can be traced back to President Theodore Roosevelt. In 1904, during his annual address to Congress, President Roosevelt expressed that “*t+he power of the Government to protect the integrity of the elections of its own officials is inherent,” recommending “the enactment of a law directed against bribery and corruption in Federal elections.”13 The next year, he went further, exhorting in his 1905 annual address to Congress that “*a+ll contributions by corporations to any political committee or for any political purpose should be forbidden by law.”14 In 1906, President Roosevelt again pushed Congress in his annual address to “prohibit in effective fashion all corporations from making contributions for any political purpose, directly or indirectly.”15 Congress responded in 1907 by passing the Tillman Act, which prohibited corporations from contributing money to influence elections. Congress continually strengthened campaign finance laws over the coming decades,16 but it was only in the wake of the Watergate scandal that Congress enacted comprehensive campaign finance reform. In 1974, in amendments to the Federal Election Campaign Act (FECA), Congress imposed extensive limits on campaign fundraising and spending, expanded disclosure requirements, established the presidential public financing program, and created the Federal Elections Commission. In 1976, in Buckley v. Valeo,17 the Supreme Court issued its landmark decision upholding FECA’s contribution limits,18 disclosure requirements,19 and the presidential public financing program,20 while striking down


See, e.g., Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 341, 352 (2009). James D. Savage, Corruption and Virtue at the Constitutional Convention, 56 J. POL. 174, 177 (1994). 11 The Federalist No. 68, at 411 (Clinton Rossiter ed. 2003). 12 The Federalist No. 52, at 323 (Clinton Rossiter ed. 2003). 13 39 Cong. Rec. 17 (1904). 14 40 Cong. Rec. 96 (1905). 15 41 Cong. Rec. 22 (1906). 16 See Federal Corrupt Practices Act of 1925, 43 Stat. 1070; Hatch Act of 1939, 53 Stat. 1147; Labor Management Relations Act of 1947, 61 Stat. 136; Federal Election Campaign Act of 1972, 86 Stat. 3. 17 424 U.S. 1 (1976). 18 Id. at 23-38. 19 Id. at 60-85. 20 Id. at 85-108.

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its expenditure limitations.21 The Buckley Court reasoned that the first three of these regulations were justified by the need to prevent corruption or the appearance of corruption from undermining the integrity of American democracy, but that the restriction on campaign spending trenched too heavily on the First Amendment’s protection of political speech. In the Court’s view, FECA’s strict limits on spending – permitting the expenditure of only $1,000 on a campaign, not even enough to pay for a onepage newspaper advertisement – could not be justified as necessary to prevent corruption. Buckley also established the controversial, but now largely settled, principle that money is a form of speech protected by the First Amendment. As the Court explained, “virtually every means of communicating ideas in today's mass society requires the expenditure of money,” therefore, it follows, “*a+ restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression.”22 Justice Byron White provided the dissenting view that “money is not always equivalent to or used for speech, even in the context of political campaigns . . . . There are . . . many expensive campaign activities that are not themselves communicative or remotely related to speech.”23 Justice John Paul Stevens would later make the point even more succinctly, writing that “Money is property; it is not speech.”24 In 1978, two years after Buckley, in First National Bank of Boston v. Bellotti,25 the Supreme Court for the first time held unconstitutional state efforts to limit political spending by for-profit corporations. In its 5-4 ruling in Bellotti, a divided Court struck down limits on independent expenditures made by corporations in a state ballot measure election, concluding that “*t+he inherent worth of the speech in terms of its capacity for informing the public does not depend on the identity of the source” and that the government’s interest in preventing corruption did not justify a ban on corporate spending concerning the merits of a state ballot measure.26 Nonetheless, the five-Justice majority in Bellotti went out of its way to suggest that “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.”27 The majority’s understanding in Bellotti that corporations might present special dangers under certain circumstances was not altogether different than the dissent’s view that government had an

Id. at 39-59. The Court also held that the method of appointment of the members of the FEC violated the Appointments Clause, and thus that the Commission, as presently constituted, could not constitutionally exercise most of its powers. Id. at 118-43. 22 Id. at 19. 23 Id. at 263 (White, J., concurring in part and dissenting in part). 24 Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 398 (2000) (Stevens, J., concurring) (“Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results. . . . The right to use one's own money to hire gladiators, or to fund “speech by proxy,” certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to say what one pleases.”). 25 435 U.S. 765 (1977). 26 Id. at 777, 788-92. 27 Id. at 787 n.26. Crossroads: Campaign Finance Page | 4

interest in “preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process.”28 Leading the charge for this view was none other than thenJustice William Rehnquist, who quickly established himself as the Court’s leading voice on regulating corporate political speech in order to protect the public interest and combat corruption. Indeed, in FEC v. National Right to Work Committee (NRWC),29 four years after Bellotti, Justice Rehnquist wrote for a unanimous Court that Congress’s “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” upholding FECA’s limitations on corporate solicitation of campaign funds as “a permissible assessment of the dangers posed by those entities to the electoral process.”30 In 1990, in Austin v. Michigan Chamber of Commerce,31 the Court confirmed by a vote of 6-3 that corporations could be treated differently than people when it came to candidate elections. Building off NRWC and other precedents, Austin reaffirmed the government’s anti-corruption interest in regulating “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form,” even as it acknowledged that “*t+he mere fact that *a speaker+ is a corporation does not remove its speech from the ambit of the First Amendment.”32 Citing Bellotti, the Court again recognized that “a legislature might demonstrate a danger of real or apparent corruption posed by *independent+ expenditures when made by corporations to influence candidate elections,” emphasizing that “the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures.”33 Justice Anthony Kennedy and Justice Antonin Scalia, newcomers to the Court, wrote scathing dissenting opinions arguing that, under the First Amendment, corporations no less than individuals had an unlimited right to spend money in all elections.34 In their view, it was unconstitutional censorship to demand that corporations surrender their First Amendment rights simply because they received benefits from the government. Justice Kennedy condemned the Court’s judgment as “repugnant to the First Amendment” and inconsistent with its “central guarantee, the freedom to speak in the electoral process,” while Justice Scalia argued that the Court had lost sight of the “absolutely central truth of the First Amendment” that “government cannot be trusted to assure, through censorship the ‘fairness’ of political debate.”35 In these dissents, Justice Kennedy and Scalia laid the groundwork for the view that would later obtain a majority in Citizens United.

28 29

Id. at 809 (White, J., dissenting), id. at 826 (Rehnquist, J., dissenting). 459 U.S. 197 (1982). 30 Id. at 209-10, 209. 31 494 U.S. 652 (1990). 32 Id. at 652, 657, 660 (1990). 33 Id. at 659-60. 34 Id. at 695 (Kennedy, J., dissenting); id. at 679 (Scalia, J., dissenting). Justice Sandra Day O’Connor, who had voted in the unanimous majority in NRWC, joined Justice Kennedy’s dissent in Austin, an alliance that was short-lived. 35 Id. at 696 (Kennedy, J., dissenting); id. at 680 (Scalia, J., dissenting). Crossroads: Campaign Finance Page | 5

Following Austin, Justice Kennedy and Justice Scalia, now joined by Justice Clarence Thomas, continued to argue for a radical revision of constitutional first principles, arguing that the First Amendment also strictly limited the power of the government to regulate campaign contributions. In 2000, in Nixon v. Shrink Missouri Gov’t PAC,36 the Court, by a 6-3 vote, upheld Missouri’s campaign contribution limits, holding “Buckley to be authority for comparable state regulation” and finding “no reason in logic or evidence to doubt the sufficiency of Buckley to govern this case in support of the Missouri statute.”37 Justice Kennedy dissented, arguing that, with the rise of soft money, Buckley’s acceptance of limits on campaign contributions had to be reconsidered. He lambasted the majority for announcing a rule that “suppresses one of our most essential and prevalent forms of political speech” and “perpetuates and compounds a serious distortion of the First Amendment.”38 In a separate dissent, Justice Thomas, joined by Justice Scalia, argued that “Buckley was in error” and ought to be overruled.39 In their view, “the Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade. Buckley’s ratification of the government’s attempt to wrest this fundamental right from citizens was error.”40 These deep ideological divisions over the meaning of the First Amendment and the authority of the government to ensure the integrity of the political process continued in 2003 in McConnell v. FEC,41 when the Court rejected by a 5-4 vote constitutional challenges to the Bipartisan Campaign Reform Act (“BCRA”), commonly known as “McCain-Feingold,” an effort by Congress to close loop holes in campaign finance law that had emerged after Buckley. In McConnell, Justices O’Connor and Stevens, writing for the five-Justice majority, reaffirmed Buckley’s conclusion that “the prevention of corruption and its appearance constitutes a sufficiently important interest to justify political contribution limits.”42 The majority also rejected the challenge to the regulation of independent expenditures by corporations on the basis of Austin and other precedents, explaining that “*s+ince our decision in Buckley, Congress’ power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law.”43 Justices Kennedy, Thomas, and Scalia disagreed, dissenting both as to the broad scope of Congress’ power to prevent corruption and its appearance and to the continued recognition that corporations do not have the same rights as living persons to spend money to influence elections.44 The dissenters would have dramatically narrowed the government’s authority to prevent corruption, limiting it to cases of quid pro quo corruption, while greatly expanding the rights of corporations, overruling
36 37

528 U.S. 377 (2000). Id. at 382, 397-98. 38 Id. at 405, 406 (Kennedy, J., dissenting). 39 Id. at 410 (Thomas, J., dissenting). 40 Id. at 420 (Thomas, J., dissenting). 41 540 U.S. 93 (2003). 42 Id. at 143. 43 Id. at 203. 44 Id. at 256-60 (Scalia, J., concurring in part and dissenting in part); id. at 264-75 (Thomas, J., concurring in part and dissenting in part); id. at 323-330 (Kennedy, J, concurring in part and dissenting in part). Crossroads: Campaign Finance Page | 6

Austin and giving corporations the right to spend unlimited sums of money on elections. In a dramatic shift, Chief Justice Rehnquist, without explanation, signed on to Justice Kennedy’s call to overrule Austin, breaking from his more than 25 years of unwavering support for the proposition that corporations do not possess the same First Amendment rights as individuals to spend money to influence elections.

Citizens United: Deregulating Campaign Finance Law
On the day the Supreme Court heard reargument in Citizens United v. FEC, Senator John McCain, co-author of BCRA, admonished Chief Justice John Roberts to stand by the promise he had made during his confirmation hearing that he would respect precedent.45 Senator McCain had legitimate cause for concern. Citizens United had initially appeared before the Court as a relatively narrow case—whether a full-length documentary film critical of Hillary Clinton was entitled, under the First Amendment, to an exemption from BCRA’s restrictions on corporate electioneering. After oral argument, however, the Court took the highly unusual step of requesting reargument, asking the parties whether it should overrule McConnell and Austin and strike down BCRA’s restrictions on electioneering communications.46 Reacting to this development, Senator McCain argued that “nothing has happened . . . to warrant the drastic step of overruling [McConnell and Austin+.”47 Something had happened though. Chief Justice Roberts and Justice Samuel Alito had succeeded Chief Justice William Rehnquist and Justice Sandra Day O’Connor. And what a difference a change in Court membership can make. The Citizens United majority, led by Justice Kennedy, made two significant changes in the law. First, by overruling McConnell and Austin, the majority held that corporations have the same constitutional right to speak during elections as “We the People.” Second, it elevated to majority status what Justice O’Connor had pilloried as a “crabbed view of corruption”48 in McConnell – that large corporate independent expenditures supporting a specific candidate simply do not give rise to corruption, or even the appearance of corruption. The first major shift of Citizens United was the majority’s recognition that “the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity.”49 In Justice Kennedy’s view, the government cannot “repress speech by silencing certain voices.”50 To the majority in Citizens United, Austin and other cases “interfere*d+ with the ‘open marketplace’ of ideas protected by the First Amendment.”51 In dissent, Justice Stevens emphasized that Justice Kennedy’s “denunciation of identity-based distinctions may have rhetorical appeal but it obscures reality,” criticizing the majority


Statement of U.S. Senators John McCain and Russ Feingold on the Implications of Supreme Court Case Citizens United v. FEC, September 9, 2009. 46 Justice John Paul Stevens responded to this development in his dissent in Citizens United, explaining that “five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Citizens United v. FEC, 130 S.Ct. 876, 932 (2010) (Stevens, J., dissenting). 47 Statement of Senator McCain, September 9, 2009. 48 McConnell, 540 U.S. at 152. 49 Citizens United, 130 S.Ct. at 903. 50 Id. at 898. 51 Id. at 906. Crossroads: Campaign Finance Page | 7

opinion as “essentially an amalgamation of resuscitated dissents.”52 In the dissent’s view, the majority had lost sight of the fundamental differences between individuals and corporations, faulting the majority for ignoring that corporations “are not themselves members of ‘We the People’ by whom and for whom the Constitution was established” as well as the “distinctive potential of corporations to corrupt the electoral process.”53 Citizens United’s most far-reaching conclusion may be its second – that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” since only “quid pro quo arrangements” with candidates create a potential for actual or apparent corruption.54 Justifying this expansive conclusion in Citizens United, Justice Kennedy explained that “*t+he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt,” and in any case, “*i+ngratiation and access . . . are not corruption.”55 The majority also surmised that “*t+he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”56 Pushing back forcefully, the dissent in Citizens United argued that the majority “ha*s+ no basis for elevating *its+ own optimism into a tenet of constitutional law.”57 To the contrary, “the majority's apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences is at odds with “our constitutional history and the fundamental demands of a democratic society.”58 As Justice Stevens argued, a broad view of the government’s power to stamp out corruption “has deep roots in this Nation’s history. . . . ‘*T+he Framers were obsessed with corruption,’ which they understood to encompass dependency of public officeholders on private interests. . . . When they brought our constitutional order into being, the Framers had their minds trained on a threat to republican self-government that the Court has lost sight of.”59

Public Financing in Arizona Free Enterprise Club
A year after Citizens United, a divided Supreme Court in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett struck down an Arizona public financing law – the Clean Elections Act -- that had been enacted by the people of Arizona through public referendum in reaction to a string of public corruption scandals that shook the state and the Nation.60 In an opinion by Chief Justice Roberts, the same five-Justice majority that decided Citizens United expressed two primary problems with Arizona’s public financing program. First, although the Clean Elections Act did not create any limitations on how
52 53

Id. at 945, 942 (Stevens, J., concurring in part and dissenting in part). Id. at 972, 947 (Stevens, J., concurring in part and dissenting in part). 54 Id. at 909. 55 Id. at 910. 56 Id. 57 Id. at 963 n. 64 (Stevens, J., concurring in part and dissenting in part). 58 Id. at 961, 963 (Stevens, J., concurring in part and dissenting in part). 59 Id. at 963-94 (Stevens, J., concurring in part and dissenting in part) (quoting Teachout, supra, at 348). 60 131 S. Ct. 2806 (2011). The scandal, which became known as AzScam, implicated nearly ten percent of the members of the Arizona legislature for allegedly receiving more than $370,000 in bribes to support efforts to legalize casino gambling. See State v. Walker, 914 P.2d 1320, 1324-29 (Ariz. Ct. App. 1995) (detailing allegations). Crossroads: Campaign Finance Page | 8

much non-participating candidates or independent groups could spend, the majority nonetheless concluded that it “substantially burden*ed+ protected political speech” because the release of supplementary public financing was “triggered” when opponents’ expenditure of private funds exceeded a certain threshold.61 Second, the majority held that Arizona did not have a compelling governmental interest in tailoring its program to balance the need for sufficient public funding to attract candidate participation with a desire to conserve limited public resources, since this only indirectly served an anti-corruption interest.62 Instead, the majority viewed Arizona as attempting to “level the playing field,” which Chief Justice Roberts condemned as an unconstitutional “intrusion by the government into the debate over who should govern . . . .”63 Justice Elena Kagan authored a four-Justice dissent, which expressed disbelief at the “chutzpah” of the plaintiffs’ “novel argument” that “Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance.”64 In Justice Kagan’s view, “Buckley rejected any idea, along the lines the majority proposes, that a subsidy of electoral speech was in truth a restraint.”65 The dissent highlighted how the majority’s insistence on a one-size-fits-all public financing program tied the hands of policymakers seeking to create a program that can be effective and viable across a wide variety of races. “Too small,” Justice Kagan explained, “and the grant will not attract candidates to the program; and with no participating candidates, the program can hardly decrease corruption.”66 “Too large,” she continued, “and the system becomes unsustainable, or at the least an unnecessary drain on public resources.”67 In Justice Kagan’s view, Arizona’s trigger “is just a fine-tuning of the lump-sum program approved in Buckley.”68 Finally, Justice Kagan expressed concern over subjecting the “burden” identified by the majority to “the most stringent review,” a standard far in excess of the one Buckley applied to disclosure requirements or even contribution ceilings,69 suggesting an across-the-board skepticism of campaign finance reform by the Court’s conservatives.

The First Amendment and Political Speech at a Crossroads
Taken seriously, the expansive language of Citizens United suggests few limits on political spending that would not be viewed skeptically by the conservative bloc of the Roberts Court. The Court’s emphasis that the government cannot restrict speech based on the identity of the speaker calls into question the continuing validity of federal and state limits on contributions to candidates by corporations, unions, and perhaps others.70 And if the Court’s conservative majority continues to take a very narrow view of the government’s anti-corruption interest, then other federal restrictions might also
61 62

Arizona Free Enterprise, 131 S.Ct. at 2813. Id. at 2824. 63 Id. at 2826. 64 Id. at 2835 (Kagan, J., dissenting) (emphasis in original). 65 Id. at 2836. 66 Id. at 2842 (Kagan, J., dissenting). 67 Id. 68 Id. 69 Id. at 2839 (Kagan, J., dissenting). Crossroads: Campaign Finance Page | 9

be called into question, such as limitations on so-called “soft money” previously upheld in McConnell,71 or the federal law, enacted at mid-century, limiting federal contractors from making political contributions to influence federal elections.72 Indeed, the Roberts Court might even go further, following the lead of Justices Scalia and Thomas, and overrule Buckley and impose new limitations on the authority of federal and state governments to regulate campaign contributions.73 After Citizens United and Arizona Free Enterprise, only disclosure requirements seem safe from invalidation by the Roberts Court. The impact of Citizens United at the state level has also been significant, with more than a dozen states scurrying to change their laws in order to avoid legal challenges.74 The only state to resist Citizens United, Montana, now appears on a collision course with the Supreme Court after the Montana Supreme Court upheld the state’s century old ban on corporate political spending.75 In a statement attached to the Court’s order staying the Montana decision pending the filing of a petition for writ of certiorari, Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, questioned “whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway.”76 Justice Ginsburg also challenged Justice Kennedy’s view of corruption, stating that “Montana's experience, and experience elsewhere since this Court's decision in Citizens United, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”77 Whether state laws will fall in the wake of Citizens United and whether Justice Kennedy’s narrow view of corruption will continue to prevail are questions that may soon be addressed by the Court.


The Supreme Court upheld federal limits on contributions by corporations in United States v. Beaumont, 539 U.S. 146 (2003), but that case has been under sustained attack since Citizens United. See United States v. Danielczyk, 788 F.Supp.2d 472 (E.D. Va. 2011), opinion clarified on denial of reconsideration, 791 F. Supp. 2d 513, 514 (E.D. Va. 2011) (holding that “if an individual can make direct contributions within FECA's limits, a corporation cannot be banned from doing the same thing,” since “Citizens United held that there is no distinction between an individual and a corporation with respect to political speech,” and concluding that Beaumont’s reasoning was supplanted by Citizens United); but see Thalheimer v. City of San Diego, 645 F.3d 1109, 1124-26 (9th Cir. 2011); Minn. Concerned th Citizens for Life, Inc. v. Swanson, 640 F.3d 304, 316-19 (8th Cir.), reh’g en banc granted, No. 10-3126 (8 Cir. July 12, 2011). The attack on Beaumont relies heavily on the language in Citizens United forbidding speaker-based distinctions, but this Term, the Court retreated from this language by upholding speaker-based distinctions in federal law that prohibit foreign citizens from donating money to candidates, national parties, and outside groups, or making expenditures that expressly advocate for or against a candidate. Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011), aff'd, 132 S. Ct. 1087 (2012). 71 The Supreme Court summarily affirmed a decision of a three-judge panel of the D.C. District Court upholding BCRA’s soft money ban, but Justices Kennedy, Scalia, and Thomas expressed a desire to hear oral argument in the case, suggesting a possible divide among the Justices on this issue. Republican Nat. Comm. v. Fed. Election Comm'n, 698 F. Supp. 2d 150 (D.D.C.), aff'd, 130 S. Ct. 3544 (U.S. 2010). 72 See Wagner v. FEC, No. 11-1841 (JEB) (D.D.C. April 16, 2012) (denying motion for preliminary injunction). 73 See, e.g., Beaumont, 539 U.S. at 164-65 (Thomas, J., dissenting); id. at 163-64 (Kennedy, J., concurring). 74 See National Conference of State Legislatures, Citizens United and the States (Jan. 4, 2011) (available at http://www.ncsl.org/legislatures-elections/elections/citizens-united-and-the-states.aspx). 75 Am. Tradition P’ship, Inc. v. Bullock, 363 Mont. 220 (2011), stayed 132 S. Ct. 1307 (2012). 76 132 S.Ct. 1307. 77 Id. at 1307-08 (quoting Citizens United, 131 U.S. at 909). Crossroads: Campaign Finance Page | 10

It may still be possible to regulate campaign financing in this country consistent with Citizens United, and reformers have pointed to stronger disclosure rules in the proposed DISCLOSE Act, as well as public financing programs like New York City’s, which encourages small donor donations by matching up to $175 of each contribution at a six-to-one ratio.78 But, by holding that corporations have the same right as living persons to spend money on elections and dramatically narrowing the scope of the government’s interest in preventing corruption or the appearance of corruption, Citizens United takes off the table the most direct and prevalent means of ensuring that corporations do not abuse the special privileges they alone receive to dominate the political process. As Justice Stevens argued in dissent, “At bottom, the Court’s opinion is a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”79


Angela Migally and Susan Liss, Small Donor Matching Funds: The NYC Election Experience, 1 (2010) available at http://www.brennancenter.org/content/resource/small_donor_matching_funds_the_nyc_election_experience/.; E.J. Dionne, How to Beat Citizens United, WASH. POST., April 22, 2012 (http://www.washingtonpost.com/opinions/how-to-beat-citizens-united/2012/04/22/gIQAxaGjaT_story.html). But to the degree these programs trigger increased matching based on opponent expenditures it is likely they would face similar constitutional difficulties to Arizona’s program. 79 Citizens United, 130 S. Ct. at 979 (Stevens, J., concurring in part and dissenting in part). Crossroads: Campaign Finance Page | 11

Brown v. Brown: Will the Supreme Court Interpret the Equal Protection Clause to Invalidate Measures Designed to Promote Equal Opportunity and Redress Our Nation’s Long History of Racial Discrimination?
The Constitution at a Crossroads

“Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts . . . have not carried the heavy burden of demonstrating that we should allow this once again . . . .” Chief Justice John Roberts1 “The Equal Protection Clause . . . has always distinguished in practice between state action that excludes and thereby subordinates racial minorities and state action that seeks to bring together people of all races. . . [I]t is a cruel distortion of history to compare Topeka, Kansas in the 1950s to Louisville and Seattle in the modern day . . . .” Justice Stephen Breyer2 Brown v. Board of Education,3 the Supreme Court’s 1954 ruling striking down racial segregation, has been called “the crown jewel of the U.S Reports”4 and the “single most honored opinion in the Supreme Court’s corpus.”5 It is accurate to say that “*n+o federal judicial nominee, and no mainstream national politician today would dare suggest that Brown was wrongly decided.”6 But Brown’s iconic status has only intensified the fight over its meaning and legacy. This fight broke out into the open in 2007 in the Supreme Court’s 5-4 ruling in Parents Involved in Community Schools v. Seattle School District. In Parents Involved, Chief Justice Roberts claimed Brown as supportive of his majority ruling that prevented state and local governments from using race, even in minimal ways, to halt the re1 2

Parents Involved in Community Schools v. Seattle School Dist., 551 U.S. 701, 747 (2007). Id. at 864, 867 (Breyer, J., dissenting). 3 347 U.S. 483 (1954). 4 Pamela S. Karlan, What Can Brown® Do For You?: Neutral Principles and the Struggle Over the Equal Protection Clause, 58 DUKE L.J. 1049, 1060 (2009). 5 JACK M. BALKIN ED., WHAT BROWN SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERTS REWRITE AMERICA’S LANDMARK CIVIL RIGHTS DECISION 3 (2001). 6 Id. 1200 18 Street, N.W., Suite 1002, Washington, D.C. 20036


segregation of public schools. The dissenters, in opinions written by Justice John Paul Stevens and Stephen Breyer, forcefully took issue, accusing the majority of “rewrit*ing+ the history of one of this Court’s most important decisions” and “undermin*ing+ Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality.”7 At its core, this fight is a battle about whether Brown sets a constitutional minimum floor, or more of a maximum limit, in terms of what federal, state, and local governments can do to redress our nation’s long history of racial discrimination and ensure that the Constitution’s promise of equal opportunity is a reality for all Americans regardless of race. In the decades after Brown, under the leadership of Chief Justices Earl Warren and Warren Burger, the Supreme Court upheld and broadly interpreted civil rights statutes such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that built off Brown, as well as race-conscious measures that sought to bring Brown’s promise of racial equality to life.8 But over the last quarter of a century, in a string of bitterly divided rulings – most decided by a 5-4 margin – conservatives on the Rehnquist and Roberts Courts have redefined the meaning of Brown and of the Equal Protection Clause, invoking the constitutional guarantee of equality to strike down virtually every race-conscious government action the Court has reviewed.9 Insisting that an identical form of strict scrutiny applies whenever the government uses race – whether to oppress racial minorities or to assist them – the Court’s rulings have dramatically limited the power of government to redress racial isolation in schools, enact affirmative action programs, and draw legislative districts in which minorities have a fair chance of electing their candidate of choice. Next Term, in Fisher v. University of Texas, the Roberts Court has the opportunity to extend these precedents to strike down the race-conscious admission policy at Texas’ flagship public university. Brown’s command, Chief Justice John Roberts has written, “is to stop discriminating on the basis of race.” 10 In his hands, Brown has become a potent weapon against statutes intended to realize the promise of true racial equality. The Constitution’s Equal Protection Clause, and the meaning of Brown, are at a Crossroads.

Race-Conscious Measures and the History of the Fourteenth Amendment
Conservatives like to call the Constitution generally, and the Equal Protection Clause, in particular, “colorblind,” and it certainly is, at least to an extent. The framers of the Fourteenth Amendment very deliberately rejected limitations on the Equal Protection Clause, sweeping men and women of all races and groups into its coverage. In particular, the Equal Protection Clause was drafted
7 8

Parents Involved, 551 U.S. at 799 (Stevens, J., dissenting); id. at 803-04 (Breyer, J., dissenting). See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); South Carolina v. Katzenbach, 383 U.S. 301 (1966); Griggs v. Duke Power Co., 401 U.S. 424 (1971); Regents of University of California v. Bakke, 438 U.S. 265 (1978); City of Rome v. United States, 446 U.S. 156 (1980); Fullilove v. Klutznick, 448 U.S. 448 (1980); Thornburg v. Gingles, 478 U.S. 30 (1986). 9 See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Hunt, 517 U.S. 899 (1996); Bush v. Vera, 517 U.S. 952 (1996); Gratz v. Bollinger; 539 U.S. 244 (2003); Parents Involved in Community Schools v. Seattle School Dist., 551 U.S. 701 (2007). But see Grutter v. Bollinger, 539 U.S. 306 (2003). 10 Parents Involved, 551 U.S. at 748. Crossroads: Equal Opportunity Page | 2

as a broad, all-encompassing guarantee of equality in order to protect, among other people, newly freed slaves, white union sympathizers residing in the South after the Civil War, and Chinese immigrants in the West from state-sponsored discrimination.11 In choosing this broad language, the Framers of Fourteenth Amendment made certain that every person in this country can invoke the universal guarantee of equality contained in the Equal Protection Clause. As Justice Kennedy summarized this history, “*t+hough in some initial drafts the Fourteenth Amendment was written to prohibit discrimination against ‘persons because of race, color, or previous condition of servitude,’ the Amendment submitted for consideration and later ratified contained more comprehensive terms: ‘No State shall . . . deny to any person the equal protection of the laws.’”12 One of the reasons that the Framers wrote the text as a guarantee of the equal protection of the laws instead of as a prohibition on all forms of racial discrimination was that they did not view efforts to ensure equal opportunity, even race-based efforts, as a violation of the constitutional principle of equality. During debates over the Fourteenth Amendment, the Framers explained that the Equal Protection Clause “abolishes all class legislation,” “does away with the injustice of subjecting one caste of persons to a code not applicable to another,” and “establishes equality before the law,”13 but they did not believe that laws designed to assist minorities seeking to overcome our nation’s long legacy of racial discrimination were in any way legally equivalent to the Black Codes, the South’s effort to oppress the newly freed slaves which inspired the Fourteenth Amendment. On the contrary, they recognized a basic distinction between oppression and assistance, between laws designed to subordinate and laws designed to make equal opportunity a reality for all. At the same time they passed the Fourteenth Amendment, the Framers enacted race-conscious legislation designed to help ensure that the Amendment’s promise of equality would become a reality for African Americans seeking to make the transformation from slavery to citizenship. The Freedmen’s Bureau Acts, as well as a host of other race-conscious legislation enacted during Reconstruction, gave financial and educational benefits to African Americans, who needed the affirmative assistance of the federal government to enjoy meaningfully the Constitution’s new guarantees of freedom and equality.14 Efforts to ensure equal opportunity and redress discrimination were consistent with, not contrary to, the new constitutional guarantee of equality. Building on this understanding, in the 1960s, 1970s, and 1980s – in the wake of Brown and other rulings dismantling Jim Crow’s oppressive regime – federal, state, and local governments enacted affirmative action programs to ensure that equality of opportunity was actually enjoyed by all Americans regardless of race and to attack, root and branch, the vestiges of nearly a century of Jim Crow segregation, during which the nation turned a blind eye to the Fourteenth Amendment’s guarantee of equality. As President Lyndon Johnson explained in a 1965 speech, “*y+ou do not take a person who, for
11 12

See DAVID H. GANS, PERFECTING THE DECLARATION: THE TEXT AND HISTORY OF THE EQUAL PROTECTION CLAUSE 8-9 (2011). J.E.B v. Alabama ex rel. T.B. , 511 U.S. 127, 151 (1994) (Kennedy, J., concurring). For further discussion, see GANS, PERFECTING THE DECLARATION, supra. 13 th st Cong. Globe, 39 Cong., 1 Sess. 2766 (1866). 14 See, e.g., Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 430-32 (1997); Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753 (1985). Crossroads: Equal Opportunity Page | 3

years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.”15 In short, “*i+n order to get beyond racism, we must first take account of race. There is no other way.”16 In the late 1970s and early 1980s, the Court approved the constitutionality of race-conscious remedies as a solution to the present effects of past and continuing racial discrimination, upholding the constitutionality of a federal statute providing that a certain percentage of public works contracts be set-aside for minority groups and blessing the notion that race could be considered by public universities in selecting a diverse group of students for admission.17 The Constitution did not require legislatures to act “in a wholly ‘color blind’ fashion,” 18 but permitted Congress, the body “expressly charged by the Constitution with competence and authority to enforce equal protection guarantees,”19 as well as the states, to “mov*e+ our society toward a state of meaningful equality of opportunity, not an abstract version of equality in which the effects of past discrimination would be forever frozen into our social fabric.”20

From Croson to Grutter: The Rehnquist Court Takes on Affirmative Action and other Race-Conscious Measures
The Supreme Court’s treatment of civil rights legislation and Brown began to shift dramatically in the late 1980s as the Court – then under the leadership of Chief Justice William Rehnquist – launched an aggressive attack on affirmative action and other race-conscious measures. In 1989, in City of Richmond v. J.A. Croson Co., the Court struck down a Richmond affirmative action plan to redress racial discrimination in the local construction industry, holding that strict scrutiny applies to all state and local affirmative action plans. The lead opinion, authored by Justice Sandra Day O’Connor, explained that “racial classifications are suspect” and that, without strict scrutiny, “there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority . . . .”21 In a concurring opinion, Justice Anthony Kennedy argued that “the moral imperative of racial neutrality is the driving force of the Equal Protection Clause” and hence “any racial preference must face the most rigorous scrutiny by the courts.”22 While the majority recognized that state and local governments could enact narrowly-tailored plans to remedy past, proven racial discrimination if the government came forward with a “strong basis in evidence,”23 Justice Antonin Scalia would have gone

Lyndon B. Johnson, Commencement Address at Howard University: “To Fulfill These Rights,” June 4, 1965 (available at http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp). 16 Regents of Univ. of California v. Bakke, 438 U.S. 265, 407 (1978) (Blackmun, J., concurring in part and dissenting in part). 17 See Bakke, supra; Fullilove v. Klutznick, 448 U.S. 448 (1980). 18 Fullilove, 448 U.S. at 482 (plurality opinion of Burger, C.J.); 19 Id. at 483. 20 Id. at 522 (Marshall, J., concurring). 21 Croson, 488 U.S. at 500, 493. 22 Id. at 518, 519 (Kennedy, J., concurring). 23 Id. at 500 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986)). Crossroads: Equal Opportunity Page | 4

even further to restrict state affirmative action plans, holding that states may not use race at all to remedy past discrimination unless it is “necessary to eliminate their own maintenance of a system of unlawful racial classification.”24 The lesson of Brown, he argued, is that “‘discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.’”25 Croson suggested that Congress possessed greater power, pursuant to Section 5 of the Fourteenth Amendment, to formulate affirmative action plans than state or local governments,26 but in 1995, in Adarand Constructors, Inc. v. Pena,27 the Court ruled that strict scrutiny also applies to federal affirmative action plans. While the Court observed that the Fifth Amendment’s Due Process Clause “is not as explicit a guarantee of equal treatment as the Fourteenth Amendment,” Justice O’Connor’s opinion for the Court held that, under past precedent, “the equal protection obligations imposed by the Fifth and Fourteenth Amendment a[re] indistinguishable.”28 By a 5-4 vote, Adarand held that “any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.”29 Once again, Justice Scalia went further than his colleagues, arguing that “government can never have a ‘compelling interest’ in discriminating on the basis of race to ‘make up’ for racial discrimination in the opposite direction . . . . [U]nder our Constitution, there can be no such thing as a creditor or debtor race. That concept is alien to the Constitution’s focus on the individual.”30 Croson and Adarand provoked stinging dissents, arguing that the Court had profoundly erred by invoking the Fourteenth Amendment’s guarantee of the equal protection of the laws to limit the power of state and federal governments to remedy our nation’s long history of discrimination. Justice Thurgood Marshall’s dissent in Croson took the majority to task, arguing that to apply strict scrutiny ignored both “constitutional history and social reality”: “Congress’ concern in passing the Reconstruction Amendments . . . was that States would not adequately respond to racial violence or discrimination against newly freed slaves. To interpret . . . these Amendments as proscribing state remedial responses to these very problems turns the Amendments on their head.”31 In Marshall’s view, Brown and the remedial cases that followed it recognized that “all persons have equal worth and it is permissible, given a sufficient factual predicate and appropriate tailoring, for government to take account of race to eradicate the present effects of race-based subjugation denying that basic equality.”32 Dissenting in Adarand, Justice John Paul Stevens, too, emphasized that the Court had badly erred by ignoring the basic constitutional difference between “oppression and assistance”: “Invidious
24 25

Id. at 524 (Scalia, J., concurring). Id. at 521 (quoting ALEXANDER BICKEL, THE MORALITY OF CONSENT 133 (1975)). 26 Id. at 490 (explaining that, under Section 5 of the Fourteenth Amendment, “Congress may identify and redress the effects of society-wide discrimination”); id. at 521 (Scalia, J., concurring) (distinguishing state affirmative action plans from those enacted “by the Federal Government whose legislative powers concerning matters of race were explicitly enhanced by the Fourteenth Amendment”). 27 515 U.S. 200 (1995). 28 Id. at 213, 217. 29 Id. at 224. 30 Id. at 239 (Scalia, J., concurring). 31 Id. at 558, 559 (Marshall, J., dissenting). 32 Id. at 559 (Marshall, J., dissenting). Crossroads: Equal Opportunity Page | 5

discrimination is an engine of oppression . . . . Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society. No sensible conception of the Government’s constitutional obligation to ‘govern impartially’ should ignore this distinction.”33 The dissenters agreed that legislatures should have the authority to remedy the lingering effects of “a system of racial caste only recently ended,” in order to “help to realize, finally, the ‘equal protection of the laws’ the Fourteenth Amendment has promised since 1868.”34 At the same time the Court was dividing bitterly in affirmative action cases, the Court’s conservative majority extended those precedents, applying Croson’s strict scrutiny standard to strike down majority-minority districts drawn to ensure the representation of African Americans in Congress and fulfill the mandate of the Voting Rights Act. In 1993, in Shaw v. Reno,35 the Court, by a vote of 5-4, held that white voters “may state a claim by alleging that the legislation, though race neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification.”36 Although the district attacked did not classify voters based on race,37 did not, in fact, segregate voters in any manner,38 or result in any dilution of the votes of white citizens,39 Shaw applied strict scrutiny anyway, reasoning that the shape of the district was so irregular that “it could not be explained on grounds other than race.”40 Later 5-4 rulings expanded Shaw’s reach, holding that the Equal Protection Clause requires the strictest judicial scrutiny where “race was the predominant factor motivating the drawing” of a district’s lines.41 Applying these principles, the Court struck down majority-minority districts in North Carolina, Georgia, and Texas, concluding that the districts were impermissibly race-based and could not survive strict scrutiny, even taking into consideration the Voting Rights Act.42 In so doing, the Shaw line of cases created a serious conflict between the commands of the Fourteenth Amendment and the requirements of the Voting Rights Act, which in certain circumstances mandates that legislatures draw majority33

Adarand, 515 U.S. at 243 (Stevens, J., dissenting) (quoting Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976)); see also Gratz 539 U.S. at 301 (Ginsburg, J., dissenting) (“Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated.”). 34 Id. at 273, 274 (Ginsburg, J., dissenting). 35 509 U.S. 630 (1993). 36 Id. at 649. 37 Id. at 646 (“A reapportionment plan does not classify person at all; it classifies tracts of land, or addresses.”). 38 While the majority in Shaw raised the specter of “political apartheid,” id. at 648, in fact, the district at issue in Shaw was quite integrated, comprising a voting age population of 56.6% African Americans and 41.8% whites. See Pamela S. Karlan, All Over the Map: The Supreme Court’s Voting Rights Trilogy, 1993 S. CT. REV. 245, 282. 39 Shaw, 509 U.S. at 641 (“In their complaint, appellants did not claim that the General Assembly’s reapportionment plan unconstitutionally ‘diluted’ white voting strength.”). Indeed, “since whites constituted decisive majorities in 83 percent of the state’s congressional district (10 of 12), although they were only 75 percent of the state’s population,” Karlan, supra, at 276, any claim of vote dilution would have been frivolous. 40 Shaw, 509 U.S. at 644. 41 See Miller v. Johnson, 515 U.S. 900, 918 (1995); Bush v. Vera, 517 U.S. 952, 958-59 (1996) (plurality opinion). 42 See Miller, supra; Bush, supra; Shaw v. Hunt, 517 U.S. 1899 (1996). But see Easley v. Cromartie, 532 U.S. 234 (2001) (5-4 ruling rejecting Shaw challenge on ground that legislature’s predominant motive was politics, not race). Crossroads: Equal Opportunity Page | 6

minority districts to ensure that racial minorities have an equal right to elect representatives of their choosing.43 As Justice Kennedy has written, “*r+ace cannot be the predominant factor in redistricting . . . . Yet considerations that would doom a redistricting plan under the Fourteenth Amendment . . . seem to be what save it under § 5 of the Voting Rights Act.”44 Citing these concerns, the Justices have invoked Shaw to narrow the scope of the Voting Rights Act.45 The dissenters in Shaw argued that there was no basis, either in constitutional first principles or the Court’s precedents, to create a new cause of action for white voters, whose only injury was to be placed in a district designed to increase representation of minority voters. As the lead dissent argued, “the notion that North Carolina’s plan, under which whites remain a voting majority in a disproportionate number of congressional districts, and pursuant to which the State has sent its first black representatives since Reconstruction to the United States Congress, might have violated appellants’ constitutional rights is both a fiction and a departure from settled equal protection principles.”46 The dissenters argued there was no basis for judicial intervention when a legislature increases minority representation in the political process without diluting the votes of others. “Remedying a Voting Rights Act violation does not involve preferential treatment. It . . . attempt[s] to equalize treatment, and to provide minority voters with an effective voice in the political process. The Equal Protection Clause, surely, does not stand in the way.”47 Indeed, as Justice Stevens observed in his separate dissenting opinion, “*i+f it is permissible to draw boundaries to provide adequate representation for rural voters, for union members, for Hasidic Jews, for Polish Americans, or for Republicans, it necessarily follows that it is permissible to do the same thing for members of the very minority group whose history gave birth to the Equal Protection Clause.”48 In later cases, the dissenters argued that Shaw was not entitled to stare decisis, attacking Shaw as inconsistent with fundamental constitutional principles and unworkable in practice, and called for the ruling to be overruled.49


See, e.g.,Thornburg v. Gingles, 478 U.S. 186 (1986); Pamela S. Karlan, Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous Branch Out of the Political Thicket, 82 B.U. L. REV. 667, 678-79 (2002) (“*S+ections two and five of the Voting Rights Act of 1965 as amended represent a national, democratically generated break from tradition that essentially requires race-conscious redistricting because both sections forbid jurisdictions from adopting plans with certain kinds of discriminatory impact, regardless of the jurisdiction’s intent.”) 44 Georgia v. Ashcroft, 539 U.S. 461, 491 (2003) (Kennedy, J., concurring). 45 See LULAC v. Perry, 549 U.S. 399, 446 (2006); Bartlett v. Strickland, 129 S. Ct. 1231, 1247-48 (2009) (plurality opinion); see also Johnson v. DeGrandy, 512 U.S. 997, 1029 (1994) (Kennedy, J., concurring) (“*T+he sorting of persons with intent to divide based on race raises the most serious constitutional questions”). 46 Shaw, 509 U.S. at 659 (White, J., dissenting). 47 Id. at 675 (White, J., dissenting). 48 Id. at 679 (Stevens, J., dissenting). 49 Miller, 515 U.S. at 933 (Stevens, J., dissenting) (calling Shaw’s “refusal to distinguish an enactment that helps a minority group from enactments that cause it harm . . . especially unfortunate at the intersection of race and voting, given that African Americans . . . have struggled so long and hard for inclusion in that most central exercise of democracy”); Bush, 517 U.S. at 1005 (Stevens, J., dissenting) (“Shaw v. Reno struck out into a jurisprudential wilderness that lacks a constitutional core and threatens to create harms more significant than any suffered by the individual plaintiffs challenging these districts.”); id. at 1053 (Souter, J., dissenting) (arguing that Shaw “broke abruptly” with settled constitutional principles “including the very understanding of equal protection as a practical guarantee against harm to some class singled out for disparate treatment”). Crossroads: Equal Opportunity Page | 7

In Adarand, Shaw and other cases, Justice O’Connor wrote for the Court to limit race-conscious remedies, but in 2003, she split from the Court’s conservatives in upholding the use of race in graduate school admissions. In Grutter v. Bollinger,50 yet another bitterly divided 5-4 ruling, the Supreme Court upheld the University of Michigan’s policy of using race as one of many factors in selecting applicants for admission to its law school, following the teachings of Justice Powell’s opinion 25 years earlier in Bakke. In her opinion for the Court, Justice O’Connor concluded that the law school policy satisfied strict scrutiny, reasoning that “student body diversity is a compelling state interest that can justify the use of race in university admissions” so long as it provides “truly individualized consideration” to all applicants and uses race “in a flexible, non-mechanical way.”51 By taking race in account in admissions, Justice O’Connor wrote, universities “help*+ to break down racial stereotypes” in the classroom and ensure “*e+ffective participation by members of all racial and ethnic groups in the civic life of our Nation,” an “essential” goal “if the dream of one Nation, indivisible is to be realized.”52 Using race in the admissions process to ensure a diverse student body furthered, not compromised, the Constitution’s promise of equality. Each of the four dissenters filed a separate dissenting opinion, with Chief Justice Rehnquist’s dissent joined by all four. Justices Scalia and Thomas took the most extreme position, arguing for a rule of absolute colorblindness. In their view, “the Constitution proscribes governmental discrimination on the basis of race”53 because “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”54 Hence, they argued, “racial discrimination is not a permissible solution to the self-inflicted wounds of *Michigan’s+ elitist admissions policy.”55 Justice Kennedy took the narrowest view of the four dissenters, rejecting the colorblindness principle advocated by Justices Scalia and Thomas. Justice Kennedy accepted that “a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual” so long “as the program can meet the test of strict scrutiny by the judiciary.”56 He would have invalidated Michigan’s program under strict scrutiny because, in application, Michigan had sought “to make race an automatic factor and to achieve numerical goals indistinguishable from quotas.”57

The Battle over Brown in the Roberts Court
As many Crossroads chapters demonstrate, the retirement of Justice O’Connor, and the appointment of Chief Justice Roberts and Justice Samuel Alito, have proved pivotal to the evolution of the Court’s cases interpreting the Equal Protection Clause. Since early 2006, when Chief Justice Roberts
50 51

539 U.S. 306 (2003). Id. at 325, 334. In a companion case, Gratz v. Bollinger, 539 U.S. 244 (2003), the Court, again by a 5-4 vote, struck down a separate policy applicable to undergraduate admissions, concluding that it failed the requirement of individualized consideration. Id. at 270-72. 52 Grutter, 539 U.S. at 330, 332. 53 Id. at 349 (Scalia, J., dissenting). 54 Id. at 353 (Thomas, J., dissenting). 55 Id. at 350 (Thomas, J., dissenting); 56 Id. at 387 (Kennedy, J., dissenting). 57 Id. at 389 (Kennedy, J., dissenting). Crossroads: Equal Opportunity Page | 8

and Justice Alito joined the Court, the Court’s conservative majority has created new limits on the authority of governments to promote equal opportunity and redress racial isolation in schools, insisting that the Equal Protection Clause, as well as the Court’s landmark ruling in Brown, preclude any use of race, even to ensure that African Americans and whites attend school together. Both Chief Justice Roberts and Justice Alito have joined Justices Thomas and Scalia in staking out an absolutist, colorblind reading of the Equal Protection Clause. In 2007, in Parents Involved in Community Schools v. Seattle School Dist., Chief Justice Roberts invoked Brown to prevent state and local governments from using race, even in minimal ways, to prevent the re-segregation of public schools. Reaffirming that all racial classifications must be subject to strict scrutiny, without exception, the Chief Justice drew on Brown to explain why school districts could not consider race to prevent racial isolation of African Americans and other minorities in public schools around the nation. “*W+hen it comes to using race to assign children to schools, history will be heard”58: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts . . . have not carried the heavy burden of demonstrating that we should allow this once again . . . . The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”59 Justice Kennedy cast the deciding vote in the 5-4 ruling. He rejected Chief Justice Roberts’ principle of absolute colorblindness as a constitutional rule, calling the Chief Justice’s sweeping reasoning inconsistent “with the history, meaning and reach of the Equal Protection Clause.”60 In line with the history of the Fourteenth Amendment, Justice Kennedy recognized the government’s compelling interest in “reach*ing+ Brown’s objective of equal educational opportunity” and rejected the notion that “the Constitution mandates that state and local authorities must accept the status quo of racial isolation in the schools.” 61 Nevertheless, Justice Kennedy concurred in the judgment invalidating the challenged policies because they used race in what he considered a heavy-handed, balkanizing manner – “reduc*ing+ children to racial chits” – and thus could not satisfy strict scrutiny.62 In dissents authored by Justice Breyer and Justice Stevens, the Court’s four liberal Justices argued that the conservative majority had perverted the meaning of the Equal Protection Clause by striking down “local efforts to bring about the kind of racially integrated education that Brown . . . long ago promised,”63 effectively “rewrit*ing+ the history of one of this Court’s most important decisions.”64 Brown held Jim Crow segregation laws unconstitutional because “they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. . . . [I]t is a cruel distortion of history to compare Topeka, Kansas in the 1950s to Louisville and Seattle in the modern day . . . .”65

58 59 60 61 62 63 64 65

Id. at 746. Id. at 747-48. Id. at 782-83 (Kennedy, J., concurring). Id. at 788 (Kennedy, J., concurring). Id. at 798 (Kennedy, J., concurring). Id. at 803 (Breyer, J., dissenting). Id. at 799 (Stevens, J., dissenting). Id. at 867 (Breyer, J., dissenting). Page | 9

Crossroads: Equal Opportunity

The Equal Protection Clause, the dissenters argued, “has always distinguished in practice between state action that excludes and thereby subordinates racial minorities and state action that seeks to bring together people of all races.”66 The dissenters argued that the challenged government action should be upheld, even under strict scrutiny, as a governmental effort to “overcome a history of segregation” consistent with Brown’s promise of “true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools.”67 In 2009, in Ricci v. DeStefano,68 the Supreme Court, again by a 5-4 vote, held that New Haven had violated the rights of white firefighters in refusing to certify test results, used by the city to promote firefighters, on the ground that the test had a disparate impact on African American firefighters. Incorporating the “strong basis in evidence” standard from the Court’s affirmative action cases into Title VII of the Civil Rights Act of 1964,69 the Ricci Court held that New Haven’s actions to avoid a disparate impact on African American fire fighters was a form of race-based discrimination and that the city could only escape liability if it had a “strong basis in evidence” that the test it used had resulted in an unjustified disparate impact prohibited by Title VII. Finding “no evidence – let alone the strong basis in evidence – that the tests were flawed,” the Court’s five-Justice majority concluded that the city had violated Title VII by rejecting the test “solely because the higher scoring candidates were white.”70 In a concurring opinion, Justice Scalia went even further, strongly suggesting that Title VII’s disparate impact provisions violate the Fourteenth Amendment’s constitutional guarantee of equal protection by licensing racial discrimination, not simply in Ricci, but in all cases. “Title VII’s disparate impact provisions,” Justice Scalia argued, “place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decision based on . . . those racial outcomes. That type of racial decisionmaking is . . . discriminatory.”71 In a bitter dissent, authored by Justice Ruth Bader Ginsburg, the four dissenters lambasted the majority for redefining the meaning of discrimination, equating efforts to avoid a disparate impact with disparate treatment on account of race. Title VII’s prohibition on disparate treatment and disparate impact, she wrote, are “twin pillars” that “advance the same objective: ending workplace discrimination and promoting genuine equal opportunity.”72 Accordingly, the dissenters would have held that “an employer who jettisons a selection device when its disproportionate racial impact becomes apparent” has not discriminated on account of race, so long the employer had “good cause to believe the device would not withstand examination for business necessity.”73 The dissenters rejected the majority’s reliance on affirmative action cases decided under the Equal Protection Clause, explaining that “*o+bservance of Title VII’s disparate impact provision . . . calls for no racial preference . . . . The very purpose of the provision is to ensure that individuals are hired and promoted based on . . . qualifications
66 67 68 69 70 71 72 73

Id. at 864 (Breyer, J., dissenting). Id. at 835, 867 (Breyer, J., dissenting). 129 S. Ct. 2658 (2009). Id. at 2675 (explaining that “constitutional principles can provide helpful guidance in the statutory context”). Id. at 2681, 2674. Ricci, 129 S. Ct. at 2682 (Scalia, J., concurring). Id. at 2699 (Ginsburg, J., dissenting). Id. Page | 10

Crossroads: Equal Opportunity

that do not screen out members of any race.”74 On the merits, the dissenters would have dismissed Ricci’s suit, finding abundant evidence that New Haven had refused to certify the test results because of the disparate impact of the flawed test.75

Possible Developments in the Future
As this review of the Court’s cases makes clear, there is now on the Court a very solid majority for striking down affirmative action policies and other race-conscious measures as a violation of the constitutional guarantee of the equal protection of the laws. Four Justices, including the Chief Justice, embrace a principle of colorblindness, making them reliable votes to strike down virtually any use of race by the government. While Justice Kennedy has refused to go that far, he has consistently taken the view that “the moral imperative of racial neutrality is the driving force of the Equal Protection Clause”76 and voted to strike down every affirmative action program or other governmental use of race he has reviewed during his tenure on the Court. Thus, in the years to come, the Roberts Court stands poised to impose new limits on the power of state and federal governments to use race to redress our nation’s long history of racial discrimination and ensure equal opportunity for all persons regardless of race. Still, much depends on how much daylight exists between Chief Justice Roberts’ sweeping view that Brown requires absolute colorblindness and Justice Kennedy’s position that there is some room under the Equal Protection Clause for government to “seek to reach Brown’s objective of equal educational opportunity.”77 First, the Court could overrule Grutter, the only case decided in recent years that upheld an affirmative action program against an equal protection challenge. Against the long line of cases that apply strict scrutiny, Grutter stands out as a sore thumb, the only case in which the Court concluded that the government had demonstrated that its use of race satisfied strict scrutiny. Next Term, the Justices will hear Fisher v. University of Texas, in which the United States Court of Appeals for the Fifth Circuit applied Grutter to uphold the University of Texas’ use of race in undergraduate admissions. Fisher will give the Court’s conservatives a vehicle for further limiting the use of race in making admissions decisions and possibly even overruling Grutter. With three Grutter dissenters still on the Court, joined by Chief Justice Roberts and Justice Alito, Fisher could produce a landmark opinion limiting affirmative action in undergraduate admissions. The key question, of course, is where Justice Kennedy will come out, given that his dissent in Grutter and his separate concurring opinion in Parents Involved accepted a compelling interest in achieving racial diversity in order to ensure that “all people have equal opportunity regardless of their race.”78 In Parents Involved, Justice Kennedy observed that the “Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal
74 75

Id. at 2701 (Ginsburg, J., dissenting). Id. at 2703 (Ginsburg, J., dissenting) (finding that “New Haven had ample cause to believe its selection process was flawed and not justified by business necessity”). 76 Croson, 488 U.S. at 518 (Kennedy, J., concurring). 77 Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring). 78 Id. Crossroads: Equal Opportunity Page | 11

opportunity for all its children.”79 If Justice Kennedy heeds these words, he may vote to uphold the Texas policy at issue in Fisher on the ground that the University’s policy represents a tailored effort to redress racial isolation that both respects the equality of all persons while taking modest steps to break down the lingering vestiges of our long history of racial discrimination. Indeed, Justice Kennedy could vote to overrule Grutter’s version of strict scrutiny as too deferential but still hold that the Texas policy properly ensures individualized consideration of all prospective students and comports with the demands of strict scrutiny. Second, even if Justice Kennedy breaks with the conservatives in Fisher, he is likely to join them in other areas, such as the meaning and scope of the Voting Rights Act. Justice Kennedy has already explained his belief that there is now a deep tension between the racial neutrality required by the Equal Protection Clause and the requirements of the Voting Rights Act, which in certain circumstances requires state and local governments to take race into account in drawing district lines to ensure that racial minorities have an equal opportunity to elect candidates of their choice. The Court could resolve this tension by severely limiting the Act’s results test and holding that the Act does not require states to redraw their district lines absent a showing that racial minorities were subject to purposeful racial discrimination that diluted their right to vote.80 Alternatively, the Court could go even further and strike down the preclearance requirement of the Voting Rights Act as impermissibly race-based, citing Justice Kennedy’s concern that “considerations of race that would doom a redistricting plan under the Fourteenth Amendment . . . seem to be what save it under § 5.”81 Third, with the addition of another conservative Justice or two, the Roberts Court might adopt the reasoning of Justice Scalia’s Ricci concurrence and hold that federal laws that prohibit employment, voting and other practices that have a disparate impact on racial minorities are impermissibly racebased and violate the constitutional guarantee of equal protection, requiring governments to “evaluate

79 80

Id. at 797 (Kennedy, J., concurring). Compare LULAC v. Perry, 548 U.S. 399, 440 (2006) (opinion of the Court authored by Kennedy, J.) (finding violation of the Voting Rights Act where “the State took away the Latinos’ opportunity because Latinos were about to exercise it. This bears all the mark of intentional discrimination that could give rise to an equal protection violation”) with Bartlett v. Strickland, 129 S. Ct. 1231, 1247 (2009) (plurality opinion of Kennedy, J.) (holding that states were not required under the Act to draw cross-over districts, in which minorities could join with white voters to elect candidates of their choice, because “*i+f §2 were interpreted to require cross-over districts throughout the Nation, ‘it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions.’”) (quoting LULAC, 548 U.S. at 446). Indeed, some lower courts have already read the th Act’s results test to make proof of racial bias critical. See Nipper v. Smith, 39 F.3d 1494, 1515 (11 Cir. 1994) (en banc) (“*S+ection 2 prohibits those voting systems that have the effect of allowing a community motivated by racial bias to exclude a minority from participation in the political process. Therefore, if the evidence shows . . . that the community is not motivated by racial bias in its voting patterns, then a case of vote dilution has not been made st out.”); Uno v. City of Holyoke, 72 F.3d 973, 981 (1 Cir. 1995) (holding that “plaintiffs cannot prevail on a VRA §2 claim if there is significantly probative evidence that whites voted as a bloc for reasons unrelated to racial th animus”); see also Farrakhan v. Gregoire, 623 F.3d 990, 993 (9 Cir. 2010) (en banc) (holding that a plaintiff challenging a felon disenfranchisement statute under the VRA based on racial discrimination in the criminal justice system must establish that “the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent”) (emphasis in original). 81 Georgia v. Ashcroft, 539 U.S. 461, 491-92 (2003) (Kennedy, J., concurring). Crossroads: Equal Opportunity Page | 12

the racial outcomes of their policies, and to make decision based on . . . those racial outcomes.”82 These statutes have long been recognized as critically important safeguards against purposeful discrimination,83 but, to Justice Scalia and other conservative Justices, these historic civil rights measures do not protect equality, they flout it.84 Under the Roberts Court, the notion of a colorblind Constitution – offered by the first Justice Harlan in his dissent in Plessy v. Ferguson85 to explain why enforced racial segregation violates the Constitution – may be used to strike down or limit the very civil rights statutes that have helped the nation end the vestiges of Jim Crow and more than a century of racial discrimination. Chief Justice Roberts is nearing his goal of ending all forms of race-conscious legislation. The question is whether this is bringing us closer to achieving the promise of Brown or moving us further away.

82 83

Ricci, 129 S. Ct. at 2682 (Scalia, J., concurring). See Griggs v. Duke Power Co., 401 U.S. 424 (1971); Thornburg v. Gingles, 478 U.S. 30 (1986). 84 See Holder v. Hall, 512 U.S. 974, 905-06 (1994) (Thomas, J., concurring) (“The assumptions upon which our vote dilution decisions have been based should be repugnant to any nation that strives for the ideal of a color-blind Constitution.”); LULAC, 548 U.S. at 511 (Roberts, C.J., concurring in part and dissenting in part) (“It is a sordid business, this divvying us up by race.”). 85 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Crossroads: Equal Opportunity Page | 13

Protecting Commercial Speech and Personal Privacy in the Internet Age: Is the Court Lochnerizing the First Amendment?
The Constitution at a Crossroads

[I]n a democracy, the economic is subordinate to the political, a lesson that our ancestors learned long ago, and that our descendants will undoubtedly have to relearn many years hence. Justice William Rehnquist1 In an earlier chapter of Crossroads, we considered the sharp divide on the Supreme Court concerning the First Amendment rights of corporations to spend unlimited amounts of money to influence elections and the explosive impact the Court’s 2010 ruling in Citizens United v. Federal Election Commission2 is having on campaign finance laws. This chapter examines recent developments in the law of commercial speech, in particular, the Court’s 2011 decision Sorrell v. IMS Health, Inc.,3 which announced a substantial expansion in the protections that the First Amendment affords to the commercial speech of corporations. In bitter dissents in Citizens United and Sorrell, Justice John Paul Stevens and Justice Stephen Breyer argued that the Court was perverting the First Amendment by giving corporate speakers the same rights as individuals (in Citizens United), and by moving to provide commercial speech with the same protection as political speech (in Sorrell). Both of these dissents warn that the Court may be moving the country back to the Lochner era,4 a time when conservative majorities used trumped up constitutional arguments to impose constitutional obstacles to economic regulation by federal, state, and local governments. The Court’s treatment of commercial speech has followed a remarkable trajectory over the past 70 years. In 1942, the Court unanimously ruled that commercial speech was not protected at all under the First Amendment. Since then, the Court has expanded the protection given to commercial speech, while recognizing that governments have substantial latitude to regulate commercial advertising and that commercial speakers may be subject to numerous forms of government regulation that would be unconstitutional as applied to political speech. This expansion has been supported by both liberal and conservative Justices, who have united around the view that commercial speech is entitled to the

Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 599 (1980) (Rehnquist, J., dissenting). 2 130 S.Ct. 876 (2010). 3 131 S.Ct. 2653 (2011). 4 See Lochner v. New York, 198 U.S. 45 (1905). 1200 18 Street, N.W., Suite 1002, Washington, D.C. 20036


protection of intermediate scrutiny, a standard that has led the Court to strike down some state regulations while upholding others. But in Sorrell, the Court’s 6-3 opinion substantially expanded the protection due to commercial speech, broadening the scope of what is considered “speech” in the commercial area and increasing the appropriate level of scrutiny for laws that burden such speech. In Sorrell, the Court’s five conservative Justices, joined by Justice Sonia Sotomayor, held that forms of marketing research such as data mining are “speech” protected by the First Amendment and moved toward providing commercial speech the same level of heightened protection long accorded to political speech. In dissent, Justice Breyer, joined by Justices Elena Kagan and Ruth Bader Ginsburg, warned that the majority was pushing the nation back toward Lochner. The Sorrell ruling imposes a heavy burden on the government to justify protections for personal privacy in an internet age, when companies such as Amazon and Google possess enormously valuable and enormously sensitive information about every one of us. With a majority on the Supreme Court appearing to move toward applying strict scrutiny to regulation of commercial speech, a wide variety of regulatory actions that affect speech within the Court’s ambit, and important constitutional challenges to federal regulation of tobacco advertising moving through the lower federal courts, the First Amendment’s protection of commercial speech is at a crossroads.

Commercial Speech and the First Amendment from Valentine to the Roberts Court
More than two centuries ago, the Framers of the Constitution wrote broad protection for freedom of speech into our founding document, providing that “Congress shall make no law abridging the freedom of speech.” For most of our history, the notion that the First Amendment gave special protection to corporations to advertise their wares in the manner they chose was a nonstarter, a reflection of the “pervasive legal regulation of business advertising”5 and the undoubted and substantial power of state and federal governments to regulate the sale of commercial goods and services. The Supreme Court first tackled the First Amendment’s application to commercial speech in 1942, shortly after the New Deal Court ended the Lochner era and the Court opined that it had no constitutional warrant to overturn legislative judgments that regulation of corporations and other businesses was necessary to serve the public welfare. In Valentine v. Chrestensen, a unanimous Court upheld a New York law prohibiting the distribution of commercial or business related handbills, holding that: the Constitution imposes no . . . restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful


See Thomas H. Jackson & John Calvin Jeffries, Jr., Economic Due Process and the First Amendment, 65 VA. L. REV. 1, 4 (1979). Crossroads: Commercial Speech Page | 2

occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment.6 In 1976, after three decades of rulings that expansively interpreted the reach of the First Amendment in other contexts, the Supreme Court reconsidered Valentine’s highly deferential approach to the regulation of commercial speech. Asking pointedly “whether there is a First Amendment exception for ‘commercial speech,’” the Court rejected such an exception in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.7 Striking down a Virginia law prohibiting pharmacists from advertising the price of prescription drugs, the Court held that “commercial speech, like other varieties, is protected” by the First Amendment.8 Nonetheless, the Court recognized that “*i+n concluding that commercial speech enjoys First Amendment protection, we have not held that it is wholly undifferentiable from other forms. There are commonsense differences between speech that does ‘no more than propose a commercial transaction,’ and other varieties.”9 As a result, when it comes to commercial speech, “a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.”10 The sole remaining defender of Valentine’s approach to commercial speech was then-Justice William Rehnquist. Consistent with his views on the regulation of corporate political speech,11 Rehnquist’s dissent criticized the majority for “elevat*ing+ commercial intercourse between a seller hawking his wares and a buyer seeking to strike a bargain to the same plane as has been previously reserved for the free marketplace of ideas.”12 In Justice Rehnquist’s view, “nothing in the United States Constitution . . . requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession.”13 Four years later, in 1980, the Court gave substance to Virginia Pharmacy’s protection of commercial speech by developing an intermediate standard of review applicable to laws regulating commercial speech. In Central Hudson Gas and Electric Corp. v. Public Service Commission of New York,14 the Court announced a new four-step analysis and applied it to strike down a regulation of the New York Public Service Commission banning advertising to promote the use of electricity. At the outset, the Court recognized that not all commercial speech is protected by the First Amendment. Because the “First Amendment’s concern for commercial speech is based on the informational function of advertising . . ., there can be can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban

6 7

Valentine v. Chrestensen, 316 U.S. 52, 54 (1942). 425 U.S. 748 (1976). 8 Id. at 770. 9 Id. at 772 n.24 (quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973)). 10 Id. 11 See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 822-28 (1978) (Rehnquist, J., dissenting); Federal Election Commission v. National Right to Work Committee, 459 U.S. 197 (1982). 12 Id. at 781 (Rehnquist, J., dissenting). 13 Id. at 784. 14 447 U.S. 557 (1980). Crossroads: Commercial Speech Page | 3

forms of communication more likely to deceive the public than inform it.”15 Reflecting the “lesser protection *due+ to commercial speech than to other constitutionally guaranteed expression,”16 the Court articulated a four-part test, considering “whether the expression . . . concern[s] lawful activity and *is not+ misleading” and hence is “protected by the First Amendment,” and, if so, “whether the asserted governmental interest is substantial,” “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than necessary to serve that interest.”17 Justice Rehnquist once again dissented, cautioning that the majority failed “to give due deference to th[e] subordinate position of commercial speech.”18 “In so doing,” he explained, the Court “returns to the bygone era of Lochner v. New York in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies.”19 “*B+y labeling economic regulation of business conduct as a restraint on ‘free speech,’” Justice Rehnquist believed the majority had “gone far to resurrect the discredited doctrine of cases such as Lochner.”20 Over the last thirty-two years, Central Hudson has provided substantial protection for truthful, non-misleading commercial speech, even as the Court has continued to recognize the “subordinate position [of such speech] in the scale of First Amendment values.”21 The Justices have held, time and again, that the government’s “burden is not satisfied by mere speculation or conjecture; rather, a government body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will alleviate them to a material degree.”22 Relying on this principle, the Court has on many occasions invalidated regulations of commercial speech, finding that the government had failed to make the case that the particular government regulation of commercial speech was properly tailored to serve a substantial interest.23 As these cases attest, both liberal and conservative Justices alike have recognized that the Central Hudson framework provides considerable protection for commercial speech, while still taking into account the substantial interests of the federal and state governments in regulating commercial transactions and providing “needed leeway in a field (commercial speech) ‘traditionally subject to government regulation.’”24 While Central Hudson has been criticized both on and off the Court for offering inadequate protection of commercial

15 16

Id. at 563. Id. 17 Id. at 566. 18 Id. at 589 (Rehnquist, J., dissenting). 19 Id. at 589 (Rehnquist, J., dissenting). 20 Id. at 591 (Rehnquist, J., dissenting). 21 Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 477 (1989) (quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978)). 22 Edenfield v. Fane, 507 U.S. 761, 770-71 (1993). 23 See, e.g., Thompson v. Western States Medical Center, 535 U.S. 357 (2002); Lorillard Tobacco Co v. Reilly, 533 U.S. 525 (2001); Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173 (1999); Rubin v. Coors Brewing, 516 U.S. 476 (1995); Edenfield, supra. 24 Fox, 492 U.S. at 481 (quoting Ohralik, 436 U.S. at 455-56). Crossroads: Commercial Speech Page | 4

speech, the Court has continued to apply Central Hudson to invalidate regulations of commercial speech.25 Further, in applying Central Hudson, the Justices have sharpened the First Amendment analysis applicable in commercial speech cases, explaining that “the mere fact that messages propose commercial transactions does not in and of itself dictate the constitutional analysis that should apply to decisions to suppress them.”26 While the Court has continued to recognize that a State’s interests is greatest when “a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information,” its recent cases have expressed serious doubts about state regulation that “rest*s+ solely on the offensive assumption that the public will respond ‘irrationally’ to the truth” since “*t+he First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.”27 The Court has respected both sides of this balance, striking down some regulations as impermissibly paternalist while upholding others as necessary for consumer protection.28 On today’s Court, no one agrees with Valentine that the First Amendment does not protect commercial speech at all. All nine Justices agree that commercial speech is entitled to some constitutional protection, and a number of Justices have called for a substantial expansion of the protection the First Amendment affords to commercial speech. For example, Justice Clarence Thomas has long taken the position that truthful, non-misleading commercial speech should receive the same level of scrutiny as political speech, rejecting the notion that there is any “philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial speech.’”29 Justice Thomas would reject the Central Hudson framework and apply strict scrutiny “when the government seeks to restrict truthful speech in order to suppress the idea it conveys . . . whether or not the speech in question may be labeled ‘commercial.’” 30 “Whatever the power of the state to regulate commercial speech,” Justice Thomas has argued, “it may not use that power to limit the content of commercial speech . . . ‘for reasons unrelated to the preservation of a fair bargaining process.’ Such contentdiscriminatory regulation – like all other content-based regulation of speech – must be subjected to strict scrutiny.”31 Justice Kennedy and Justice Scalia, too, have expressed “continuing concerns that the

25 26

See Thompson, 535 U.S. at 367-68; Lorillard, 533 U.S. at 554-555; Greater New Orleans, 527 U.S. at 184. 44 Liquormart, Inc., v. Rhode Island, 517 U.S. 484, 501 (1996) (plurality opinion). 27 Id. at 501, 503 (plurality opinion); see also id. at 523-526 (Thomas, J., concurring). 28 Compare Thompson, 535 U.S. at 374 (“We have previously rejected the notion that the Government has an interest in preventing dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with that information.”)and 44 Liquor Mart, supra (striking down ban on advertising the retail price of alcoholic beverages) with Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) (upholding Bar rule prohibiting personal injury lawyers from sending targeted direct mail solicitations to victims within 30 days of an accident) and Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324 (2010) (rejecting First Amendment challenge by bankruptcy attorneys to rule requiring them to disclose that they are debt-relief agencies). 29 44 Liquormart, 517 U.S. at 523 (Thomas, J., concurring). 30 Lorillard, 533 U.S. at 572 (Thomas, J., concurring). 31 Id. at 577 (Thomas, J., concurring). Crossroads: Commercial Speech Page | 5

[Central Hudson] test gives insufficient protection to truthful, nonmisleading commercial speech,”32 but they have yet to join Justice Thomas’ call for strict scrutiny.

Sorrell v. IMS Health Inc. -- Lochnerizing the Court’s Commercial Speech Doctrine?
For many years, Central Hudson remained settled law, even as Justice Thomas and others criticized it. But, under the leadership of Chief Justice John Roberts, who in 2005 succeeded Chief Justice Rehnquist, the original dissenter from the Court’s commercial speech cases, the Supreme Court has begun to break from Central Hudson. In Sorrell v. IMS Health Inc.,33 the Court struck down a Vermont statute limiting the ability of pharmaceutical manufacturers to purchase and use for marketing purposes government-collected data regarding the prescribing practices of individual doctors as a violation of the First Amendment and called for a new standard of review – heightened scrutiny – to judge the validity of content-based regulations of commercial speech. In an opinion authored by Justice Anthony Kennedy, and joined by the Court’s other conservatives and by Justice Sotomayor, Sorrell changed the law in two important ways. First, the Court expanded the scope of protected commercial speech, finding a violation of the First Amendment even though the Vermont law only regulated the use of data collected under a government mandate and did not impose any limits on the speech of pharmaceutical companies. Second, and perhaps even more important, the Court held that the Vermont law was subject to heightened scrutiny because it was a content-based and speaker-based regulation of commercial speech, making a break from Central Hudson’s intermediate level of scrutiny toward a new, more demanding test. Justice Breyer, joined by Justices Ginsburg and Kagan, authored a bitter dissent, arguing that the Court had distorted the meaning of the First Amendment by striking down an effort “inextricably related to a lawful governmental effort to regulate a commercial enterprise,” and had “reawaken[ed] Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulations is at issue.”34 Justice Kennedy’s opinion for the Court began its analysis not with the familiar Central Hudson framework, but instead with the premise that the Vermont law “enacts content- and speaker-based restrictions on the sale, disclosure and use of prescriber-identifying information” and hence “burdens disfavored speech by disfavored speakers.”35 Justice Kennedy dismissed the argument that the Vermont statute did not burden speech, but only regulated access to data, by making the point that “Vermont's statute could be compared with a law prohibiting trade magazines from purchasing or using ink.”36 In the majority’s view, “even assuming . . . that prescriber-identifying information is a mere commodity,” the statute’s restriction on access to that commodity was a “content- and speaker-based burden on protected expression” that was designed to stifle the effectiveness of marketing by pharmaceutical

32 33

Id. at 571-72 (Kennedy, J., concurring). 131 S.Ct. 2653 (2011). 34 Id. at 2673, 2685 (Breyer, J., dissenting). 35 Id. at 2663. 36 Id. at 2667. Crossroads: Commercial Speech Page | 6

companies and, hence, required heightened judicial scrutiny.37 Thus, as Duke Law Professor Jedediah Purdy observed, “most of what the Vermont decision protects is not verbal expression . . . but simply the sale of data. Sorrell moves towards constitutionalizing an open market in information, at least where the data will inform marketing decisions . . . .”38 In dissent, Justice Breyer criticized the majority’s opinion precisely along these lines, arguing that the majority had distorted the meaning of the First Amendment in expanding the scope of protection from commercial speech to data. Justice Breyer reasoned that “Vermont's statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product,” but instead simply “deprives pharmaceutical and data-mining companies of data, collected pursuant to the government's regulatory mandate, that could help pharmaceutical companies create better sales messages.”39 In Justice Breyer’s view, the majority’s finding of a constitutional violation was out of line with the First Amendment and the entire body of Supreme Court precedent interpreting it. “[T]his Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate.”40 Justice Kennedy and Justice Breyer also bitterly divided on the standard of review applicable to the Vermont regulation. Echoing the language of his opinion in Citizens United, Justice Kennedy’s opinion for the Court held that “heightened judicial scrutiny is warranted” because Vermont’s law “on its face burdens disfavored speech by disfavored speakers,” portraying the law as an attempt “to tilt public debate in a preferred direction.”41 Justice Kennedy found that “Vermont's law enacts content-and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information,” by limiting the ability of pharmaceutical companies to use this data for marketing purposes, even as it allowed others to make use of the information.42 As noted above, rather than turning to the established Central Hudson commercial speech framework, Justice Kennedy’s opinion applied the Court’s First Amendment precedents requiring heightened scrutiny for laws that discriminate on the basis of content. While Justice Kennedy’s opinion argued that the Vermont statute was invalid either under Central Hudson’s “special commercial speech inquiry or a stricter form of judicial scrutiny,”43 there is little doubt that Sorrell took a big step away from Central Hudson by demanding that content- and speaker-based regulations of commercial speech be subject to “heightened scrutiny.” In dissent, Justice Breyer argued that the majority’s call for heightened scrutiny was inconsistent with binding precedent, which had never before required this sort of “greater scrutiny when regulatory activity affects commercial speech,” and would “open a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices,” since much commercial speech regulation “necessarily draws
37 38

Id. Jedediah Purdy, The Roberts Court v. America, 23 DEMOCRACY J. 46, 51 (Winter 2012). 39 Sorrell, 131 S. Ct. at 2673, 2675 (Breyer, J., dissenting). 40 Id. at 2677 (Breyer, J., dissenting) (emphasis in original). 41 Id. at 2663-64, 2671. 42 Id. at 2663. 43 Id. at 2667. Crossroads: Commercial Speech Page | 7

distinctions on the basis of content.”44 In short, Justice Breyer argued, “to require ‘heightened scrutiny’ on this basis is to require its application early and often when the State seeks to regulate industry. . . . *G+iven the sheer quantity of regulatory initiatives that touch on commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty.”45 Justice Breyer firmly rejected that approach. “Since ordinary regulatory programs can affect speech, particularly commercial speech, in myriad ways,” Breyer explained, “to apply a ‘heightened’ First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threatening to distort or undermine legitimate legislative objectives.”46 Rather than “risk . . . a ‘retur*n+ to the bygone era of Lochner v. New York, in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies,’”47 the dissenters would have upheld Vermont’s regulation under Central Hudson, concluding that the limited burden imposed was amply justified by the government’s interest in the protection of public health and the privacy of records.

The Future of Commercial Speech After Sorrell
The opinions in Sorrell illustrate that we are on the cusp of possibly sweeping changes in the Supreme Court’s commercial speech doctrine. After decades in which commercial speech was recognized to have a subordinate status in the First Amendment pantheon, Justice Kennedy’s opinion in Sorrell suggests that a majority of the Court may well be ready to displace Central Hudson’s intermediate scrutiny standard and invoke the rigorous standards that the Court has applied, outside the context of commercial speech, in striking down content- and speaker-based regulations of speech. As one observer noted, in the wake of Sorrell, “*t+he prospect of enhanced judicial scrutiny casts a shadow over regulation of health information, including food, drugs, alcohol, and tobacco – almost all of which is speaker and viewpoint-based.”48 At this critical juncture, moving through the lower federal courts are a set of cases challenging the Family Smoking Prevention and Tobacco Control Act, a 2009 measure passed by Congress and signed into law by President Obama, designed to toughen federal regulation of tobacco advertising and promotion. The Act, among other things, requires tobacco manufacturers to reserve a significant portion of tobacco packaging for the display of health warnings (including graphic images designed to illustrate the dangers of smoking), limits tobacco print advertising to use of black text on a white background, and prohibits tobacco manufacturers from conveying the impression that tobacco products are approved or safer by virtue of being regulated by the FDA. So far, the lower federal courts have been split on the
44 45

Id. at 2677, 2685, 2677 (Breyer, J., dissenting). Id. at 2678, 2679 (Breyer, J., dissenting). 46 Id. at 2675. 47 Id. (quoting Central Hudson, 447 U.S. at 589 (Rehnquist, J., dissenting)). 48 See Lawrence Gostin, Marketing Pharmaceuticals: A Constitutional Right to Sell Prescriber-Identified Data, 307 JAMA 787, 787 (Feb. 2012). Crossroads: Commercial Speech Page | 8

Act’s constitutionality. In March of this year, in Discount Tobacco City & Lottery, Inc. v. United States,49 a divided panel of the Sixth Circuit upheld the vast majority of the Act’s provisions under Central Hudson, rejecting the plaintiff’s argument that strict scrutiny should apply. Meanwhile, in R.J. Reynolds v. United States Food & Drug Admin.,50 a district court in Washington D.C. invalidated the new graphic warnings, agreeing with the dissent in Discount Tobacco. Should the D.C. Circuit agree, the case will almost certainly prompt Supreme Court review and set the stage for an important new clash over the First Amendment’s constraints on the power of the government to require tobacco manufacturers to disclose the undisputed risks that tobacco products pose to the American public. The challenge to the federal government’s effort to impose tougher standards on the tobacco industy may be just the tip of the iceberg. Sorrell’s demand that courts apply heightened scrutiny to content- and speaker-based regulations of speech as well as data relevant to commercial speech might not only call into question federal tobacco regulation, but also federal drug labeling and federal securities laws that impose content-based restrictions on commercial speech.51 For example, in enforcing the Federal Food, Drug and Cosmetic Act, the FDA prohibits drug manufacturers from advertising and promoting uses of their drugs not approved by the FDA, while federal securities law prohibits anyone from writing about a security in return for compensation, unless that compensation is fully disclosed.52 Even more important, Sorrell’s expansive understanding of the reach of the First Amendment suggests that restrictions on the sale of data will also be subject to heightened scrutiny, imposing a heavy burden of justification on the government to protect the privacy of “personal medical information in the possession of health care providers, financial information in the possession of financial institutions, purchasing histories in the possession of retailers, including online retailers, such as Amazon.com, search information in the possession of search engines such as Google . . . and any number of other forms of personal data which individuals voluntarily share with private sector firms.” 53 Indeed, Justice Kennedy is already on record expressing skepticism of federal regulation of credit report data, suggesting that federal regulation that prevents credit reporting agencies from selling the names and addresses of individuals to marketers runs afoul of the First Amendment.54 In short, the Supreme Court’s protection of commercial speech is on a collision course with government efforts to protect personal privacy in the internet age. There are few issues as resonant to the lives of 21 st Century Americans as the Court’s resolution of these legal challenges.

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674 F.3d 509 (6 Cir. 2012). 2012 WL 653828, No. 11-1482 (D.D.C. Feb., 29, 2012). 51 Sorrell, 131 S. Ct. at 2677-78 (Breyer, J., dissenting) (discussing areas where federal and state laws impose content-based regulation of commercial speech); see also Richard Samp, Sorrell v. IMS Health: Protecting Free Speech or Resurrecting Lochner? 2011 Cato Sup. Ct. Rev. 129, 140-43 (2011) (discussing federal regulation of prescription drugs and securities as two areas where “Sorrell . . . calls into question the constitutionality of speech restrictions”). 52 See Samp, supra, at 140-43 (discussing these two examples). 53 Asutosh Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy 16-17 (Feb. 2012) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1974611). 54 Trans Union LLC v. FTC, 536 U.S. 915 (2002) (Kennedy, J., dissenting from denial of certiorari). Crossroads: Commercial Speech Page | 9


[Type text]

Where Will the Second Amendment Revolution Lead?
The Constitution at a Crossroads

Twenty-five years ago, it would have been outlandish to predict that the Supreme Court would recognize that the Second Amendment guarantees an individual right to bear arms. The Reagan Justice Department’s version of Crossroads1 did not mention the Second Amendment, and in 1991, no less of an authority than Warren E. Burger, the moderately conservative former Chief Justice of the United States, stated in an interview that the Second Amendment “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.”2 Burger’s view, that the Second Amendment’s right to bear arms could not be separated from militia service, was shared by other prominent conservatives, including failed Reagan Supreme Court nominee Robert Bork, who in 1989 argued that the Second Amendment works “to guarantee the right of states to form militias, not for individuals to bear arms.”3 But what Burger viewed to be a “fraud,” and what Bork viewed as a mistaken view of the Constitution’s original meaning, is now the law of the land, courtesy of the Supreme Court’s controversial and deeply divided 5-4 decision in District of Columbia v. Heller.4 It is startling how much the ground has shifted. Twenty years ago, conservatives were debunking the idea that the Second Amendment protected an individual right. By February 2008, a month before Heller was argued, even progressive candidates such as Barack Obama were loudly and proudly stating the view that “there is an individual right to bear arms.”5 In Heller, the Supreme Court held for the first time that the more than two centuries old Second Amendment “conferred an individual


Office of Legal Policy, U.S. Dep't of Justice, Report to the Attorney General, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation 180 (1988). 2 Warren E. Burger, The Right To Bear Arms, PARADE MAGAZINE, Jan. 14, 1990, at 4. 3 Claudia Luther, Bork Says State Gun Laws Constitutional, L.A. TIMES, Mar. 15, 1989, at B5; see also Miriam Bensimhorn, Advocates: Point and Counterpoint, Laurence Tribe and Robert Bork Debate the Framers' Spacious Terms, LIFE, Fall 1991 (Special Issue), at 96, 98 (“[T]he National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is people's right to bear arms in a militia. The NRA thinks that it protects their right to have Teflon-coated bullets. But that's not the original understanding.” (quoting Robert Bork)). 4 554 U.S. 570 (2008). 5 Nedra Pickler, Obama Supports Individual Gun Rights, ASSOCIATED PRESS, Feb. 15, 2008. 1200 18 Street, N.W., Suite 1002, Washington, D.C. 20036


right to keep and bear arms.”6 In 2010, the Supreme Court recognized 5-4 in McDonald v. City of Chicago that this right was incorporated against the States through the Fourteenth Amendment.7 The question now is where this Second Amendment revolution leads. While President Obama, the National Rifle Association, and a majority of the Supreme Court may all agree there is an individual right to bear arms, there remains much debate about the contours of that right. So far, the Supreme Court has raised more questions than it has answered. It remains unclear exactly what the right protects or how the Court will balance the protection of Second Amendment rights against the government’s interest in crime prevention and public safety through the regulation of firearms. The answer to these questions will determine whether hundreds of gun control laws at the federal, state, and local levels are preserved or struck down by the Court. But there is another intriguing dynamic at play in the Second Amendment arena. In the wake of Heller and McDonald, it is clear that the recognition of an individual right to bear arms has expanded the constituency of Americans who take constitutional rights seriously, with both liberals and libertarian conservatives clamoring for robust protection of different parts of the Bill of Rights and disagreeing only about what parts deserve what level of protection. As a result, the Second Amendment revolution has at least some potential to lead to a more robust protection of constitutional rights across the board, in a “rising tide lifts all boats” kind of way. On the other hand, there is also the possibility that the Court may limit the application of Second Amendment rights in ways that could erode constitutional rights in other important areas or create special rules that apply only in the Second Amendment context. All that can be said at this point is that the Supreme Court has moved the Second Amendment to a crossroads, and that all Americans have an important interest in where the law in this area heads over the next twenty years.

Heller, McDonald and the Recognition of an Individual Right to Bear Arms
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”8 Among the provisions of the Bill of Rights, the Second Amendment stands out because of its explanatory preamble, which tells us why the Framers believed the right to keep and bear arms should not be infringed. The question this text has posed since the Amendment was ratified in 1791 is what bite the Amendment has outside of the state militia context. As Chief Justice Burger’s comments indicate, for 216 years, the Supreme Court’s answer to that question was “very little.” The Court’s ruling in District of Columbia v. Heller changed this landscape dramatically. Justice Antonin Scalia led a five-Justice conservative majority to hold that “the District’s ban on handgun possession in the home violates the Second Amendment,” recognizing for the first time that the Second

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554 U.S. at 595. 130 S. Ct. 3020, 3025 (2010). 8 U.S. CONST. amend. II.

Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”9 Justice Scalia reached this conclusion by minimizing the importance of the Amendment’s opening preamble that references militias, instead focusing his attention on what he called the Amendment’s “operative clause.” After engaging in a free-ranging historical inquiry that considered common law sources predating the Second Amendment, contemporaneous understandings, and post-ratification practice at both the federal and state level, Justice Scalia concluded that the Second Amendment guaranteed an individual right to “keep and bear Arms.”10 Four Justices, led by Justice John Paul Stevens, dissented in Heller, arguing that the majority’s decision was contrary to “[t]he text of the Amendment, its history, and our [precedent].”11 Justice Stevens emphasized the militia-focused purpose of the Second Amendment, as revealed by the text of its opening clause and the Amendment’s drafting history.12 And he was unpersuaded that the majority’s historical examination was sufficient to justify stepping away from the Court’s prior precedent to place new-found limitations on democratically enacted gun laws.13 Two years after Heller, in McDonald v. City of Chicago, a similarly divided Court concluded that “the Second Amendment right is fully applicable to the States.”14 Led by Justice Samuel Alito, a fiveJustice majority in McDonald held that the Second Amendment was incorporated against the States by the Fourteenth Amendment, finding it “clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”15 Leading the dissenters in McDonald, Justice Stevens countered that “[t]he so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century.”16 The majority in McDonald brushed aside the authority relied upon by Justice Stevens as being of little relevance since it “preceded the era in which the Court began the process of ‘selective incorporation’ under the Due Process Clause.”17


554 U.S. at 570, 635. Id. at 579-619. 11 Id. at 637 (Stevens, J., dissenting). 12 Id. at 640-662 (Stevens, J., dissenting). 13 Id. at 662-680 (Stevens, J., dissenting). 14 130 S. Ct. at 3025. 15 Id. at 3042. A plurality of the Court concluded that “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment,” id. at 3050, with Justice Clarence Thomas arguing in his concurring opinion that incorporation through the Fourteenth Amendment’s Privileges or Immunities Clause “is a more straightforward path . . . that is more faithful to the Fourteenth Amendment’s text and history.” Id. at 3058-59 (Thomas, J., concurring). 16 Id. at 3088 (Stevens, J., dissenting). In 1876, the Supreme Court stated in United States v. Cruikshank that the Second Amendment was “one of the amendments that has no other effect than to restrict the powers of the national government.” 92 U.S. 542, 553 (1875). A decade later, in Presser v. Illinois, the Court again reiterated that the Second Amendment is “a limitation only upon the power of Congress and the National government, and not upon that of the States.” 116 U.S. 252, 264-65 (1886). And the Court’s 1894 decision in Miller v. Texas declared it “well settled that the restrictions of [the Second Amendment] operate only upon the federal power, and have no reference whatever to proceedings in state courts.” 153 U.S. 535, 538 (1894). 17 Id. at 3031.

Crossroads: Second Amendment

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Heller and McDonald Leave Unresolved the Substance of an Individual Right to Bear Arms
In two years, Heller and McDonald changed Second Amendment law faster and more significantly than had any cases in the previous 216 years combined, but these two cases created more questions than they answered. Heller’s specific holding—that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense—is relatively narrow. In many ways the true test will be determining the nature and scope of the right to bear arms and how judges should decide when a burden on that right exceeds constitutional limits. In fact, the Court in Heller expressly acknowledged that its decision left “many applications of the right to keep and bear arms in doubt,” since, as the “first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.”18 Until the Supreme Court provides further guidance, lower courts must navigate Heller’s dicta and use their own judgment to determine, first, whether a particular law falls within the ambit of the Second Amendment at all, and, second, how to scrutinize laws that do burden Second Amendment rights.

Will the Scope of the Right to Bear Arms Be Viewed Restrictively or Expansively?
The Heller opinion addressed the question of what the right to bear arms encompasses in a somewhat scattershot fashion. As a starting point, Justice Scalia explained that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation,” but he emphasized that the Second Amendment does not “protect the right of citizens to carry arms for any sort of confrontation.”19 According to Justice Scalia, “the right secured by the Second Amendment is not unlimited,” that is, it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”20 Drilling down on what the Second Amendment protects, Justice Scalia concluded that “self defense . . . was the central component of the right itself,”21 leaving the right’s importance for “[a] well regulated Militia” as a secondary consideration at best. Through this lens, Justice Scalia viewed the Court’s prior decision in United States v. Miller—the precedent relied most heavily upon by the dissenters22—as standing only for the narrow proposition “that the Second Amendment does not
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554 U.S. at 635. Id. at 592, 595 (emphasis in original). 20 Id. at 626. 21 Id. at 599 (emphasis in original). 22 Id. at 637-39 (Stevens, J., dissenting). As Justice Stevens highlighted, Miller held that “possession or use of a [weapon]” must have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” in order to implicate the rights guaranteed by the Second Amendment. Id. at 637 (quoting Miller, 307 U.S. 174, 178 (1939)). As Justice Stevens also pointed out, the Supreme Court reaffirmed Miller in 1980, stating in Lewis v. United States that a federal firearm statute prohibiting felons from possessing a firearm did not “trench upon any constitutionally protected liberties” under the Second Amendment. Id. at 638 n.3 (quoting Lewis, 445 U.S. 55, 73

protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”23 That is, only certain types of “Arms” receive any protection at all under the Second Amendment. Understanding “the inherent right of self-defense” as “central to the Second Amendment right,” Justice Scalia concluded that because “handguns are the most popular weapon chosen by Americans for self-defense in the home, . . . a complete prohibition of their use is invalid.”24 What other boundaries exist on the Second Amendment right? As one example, the Court noted that prohibitions on carrying concealed weapons had repeatedly been held lawful under state Supreme Court decisions applying state analogues to the Second Amendment.25 In addition, the Court observed that its opinion should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”26 The Court also highlighted the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” to suggest the Second Amendment may only protect “the sorts of lawful weapons . . . possessed at home” by ordinary people.27 Finally, the Court noted that “these presumptively lawful regulatory measures” are identified “only as examples” and should not be viewed “to be exhaustive.”28 Thus, Heller suggested that a number of common gun regulations were consistent with the right to bear arms, but did not explain why or provide the lower courts much in the way of an analytic framework for assessing the constitutionality of gun regulations. Indeed, the Court in Heller and McDonald almost seemed to go out of its way to avoid addressing how lower courts should analyze challenges to gun regulations, something that has left the lower courts divided in disarray.29 The
(1980)). Prior to Heller, as Justice Stevens explained, nine federal Courts of Appeals, relying on Miller, dismissed the notion that the Second Amendment guaranteed an individual right to bear arms disconnected from militia service. See id. at 638 n.2 (listing cases). Only the D.C. Circuit, in the case leading to Heller, and the Fifth Circuit had reached contrary conclusions, with the law challenged in the Fifth Circuit ultimately being upheld as a “reasonable” restriction on the individual right to bear arms. Parker v. District of Columbia, 478 F.3d 370, 401 (D.C. Cir. 2007); United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001) (upholding law limiting firearm possession to persons subject to a domestic violence order). 23 Id. at 624-25. 24 Id. at 629. 25 Id. at 626. 26 Id. at 626-27. 27 Id. at 627. 28 Id.at 627 n. 26. 29 For example, since Heller, ten Circuit Courts of Appeal have considered the constitutionality of 18 U.S.C. § 922(g), which restricts firearm possession by felons, undocumented aliens, and other specific classes of persons. Although uniform in upholding the constitutionality of these laws, these courts have been deeply divided over why laws that make it unlawful for certain classes of people to possess firearms should be upheld. The Third, Fifth, and Ninth Circuits have upheld such laws based on the conclusion that the persons regulated by these laws fall outside the scope of the Second Amendment altogether. United States v. Barton, 633 F.3d 168, 175 (3d Cir. 2011) (concluding that felons fall outside the scope of the Second Amendment); United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011) (same for undocumented aliens); United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010), cert. denied, 131 S. Ct. 294 (U.S. 2010) (same for felons). Crossroads: Second Amendment Page | 5

standard of review applicable in Second Amendment challenges is one of the most important questions now being confronted in the lower courts.

How Will Courts Scrutinize Laws that Burden Second Amendment Rights?
As noted above, determining whether the “right of the people to keep and bear Arms” has been “infringed” is only the first step of a court’s analysis. Equally if not more important is the second step: determining whether a law that burdens Second Amendment rights is nonetheless constitutionally permissible because of the importance of the government interests at stake. Courts have traditionally used differing levels of scrutiny, from rational basis to strict scrutiny, to determine whether a law burdening a constitutionally protected interest can be justified by the government’s interest in adopting the law. In Heller, the Court expressly left for another day the question of what level of scrutiny should be applied to burdens on the right to bear arms.30 And although the Court in McDonald recognized the right to bear arms as a fundamental right for purposes of incorporation, McDonald, like Heller, did not specify the precise level of scrutiny to be given laws that burden this right.31 In Heller, after determining that a ban on handguns kept and used for the protection of one’s home burdens Second Amendment rights, Justice Scalia’s opinion for the Court concluded that “[u]nder any of the standards of scrutiny that [the Court] ha[s] applied to enumerated constitutional rights,” such a “prohibition on an entire class of ‘arms’ . . . would fail constitutional muster.”32 In a footnote, Justice Scalia explained that the challenged law “would pass rational-basis scrutiny,” but clarified that he believed rational basis scrutiny inappropriate “to evaluate the extent to which a legislature may regulate a specific, enumerated right.”33 Justice Scalia also seemed to reject the “interest-balancing” approach that Justice Stephen Breyer proposed in a separate dissent, which “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests.”34 In doing so, Justice Scalia noted that “[c]onstitutional rights

The First, Fourth, Seventh, and Tenth Circuits have recognized that such laws burden Second Amendment interests, but have nonetheless upheld them based on the importance of the government’s interest in preventing these persons from possessing firearms. United States v. Booker, 644 F.3d 12, 25 (1st Cir. 2011) (concluding that domestic violence misdemeanants are within scope of Second Amendment); United States v. Chester, 628 F.3d 673, 681, 683 (4th Cir. 2010) (same); United States v. Skoien, 614 F.3d 638, 642-44 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674 (U.S. 2011) (same); United States v. Reese, 627 F.3d 792, 803 (10th Cir. 2010) cert. denied, 131 S. Ct. 2476 (2011) (same for persons subject to a domestic violence restraining order). And the Sixth, Eighth, and Eleventh Circuits have upheld such laws without any significant analysis by interpreting Heller as having established certain categorical safe harbor exceptions to the Second Amendment. United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010), cert. denied, 131 S. Ct. 322 (2010) (finding safe harbor exception for felon gun ban); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010), cert. denied, 131 S. Ct. 1027 (2011) (same for habitual drug users gun ban); United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010) (same for domestic violence misdemeanants gun ban). 30 554 U.S. at 628-29. 31 130 S.Ct. at 3036-38. 32 554 U.S. at 628-29. 33 Id. at 628 n. 27. 34 Id. at 634 (quoting id. at 689-90 (Breyer, J., dissenting)).

are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad,”35 suggesting the possibility of a disjuncture between the historic right to bear arms and modern gun regulations. Justice Scalia’s majority opinion also expressed doubts that an infringement of the right to bear arms could be cured by providing adequate and reasonable alternatives.36 McDonald did little to clear up confusion as to the appropriate standard of review. While the Court recognized that the right to bear arms was “fundamental” for purposes of incorporation, it, too, did not opine about the proper standard of review in Second Amendment cases. Instead, the Court went out of its way to provide “assurances” to the States that the Second Amendment “does not imperil every law regulating firearms,” reiterating the list of possible exceptions it had earlier emphasized in Heller.37 In the same breath, though, the Court nonetheless acknowledged that incorporation of the Second Amendment “will to some extent limit the legislative freedom of the States.”38 If the Supreme Court left a roadmap for lower courts to follow, it is not clear at all what the starting point should be, where the courts should go, what route they should take to get there, or what rules they should follow along the way. This is problematic because, as well-known conservative Judge J. Harvie Wilkinson III cautioned in a recent Fourth Circuit opinion, “[t]his is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.”39 Post-Heller, lower federal courts have generally applied some form of “intermediate” scrutiny that gives weight to the important public safety considerations associated with firearms.40 For example, the D.C. Circuit has applied intermediate scrutiny to the District of Columbia’s updated registration requirements and prohibition on semi-automatic rifles and large-capacity magazines,41 although in dissent Judge Brett Kavanaugh expressed his view that, if anything, strict scrutiny should apply.42 A few district courts have reviewed Second Amendment challenges under strict scrutiny,43 while others have

35 36

Id. at 634-35. Id. at 629 (“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.”). 37 130 S.Ct. at 3047. 38 Id. at 3047, 3050. 39 United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (upholding against a Second Amendment challenge the application of a regulation prohibiting possession of a loaded handgun in a motor vehicle within a national park area). 40 See, e.g., United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010); United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011); United States v. Williams, 616 F.3d 685 (7th Cir. 2010); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010); United States v. Reese, 627 F.3d 792 (10th Cir. 2010). 41 Heller v. District of Columbia, 670 F.3d 1244, 1256-57, 1261-62 (D.C. Cir. 2011). 42 Id. at 1284 (Kavanaugh, J., dissenting). Judge Kavanaugh’s preferred approach though would be to “assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Id. at 1271. 43 See, e.g., United States v. Bay, 2:09-CR-83 TS, 2009 WL 3818382 (D. Utah Nov. 13, 2009) (applying strict scrutiny but nonetheless concluding “that keeping guns out of the hands of convicted felons in order to protect society as a whole is a compelling government interest.”) Crossroads: Second Amendment Page | 7

expressed doubts that “intermediate scrutiny seems excessive.”44 And at least two Circuits have suggested an association between level of scrutiny and the degree of burden on the Second Amendment interest.45 Also potentially relevant to the emerging standard of review is the experience of state courts, given that 43 States recognize an individual right to bear arms under their own state constitutions,46 and many state constitutions contain language remarkably similar to the Second Amendment.47 State courts have been uniform in their conclusions that state laws burdening the right to bear arms should be subject to a “reasonable regulation test” that “should not be mistaken for a rational basis test,”48 but is clearly less demanding than strict scrutiny.49 While the a “reasonable regulation” test is not a common one in federal constitutional doctrine, the lower courts as well as the Supreme Court may find the longstanding practices of the states in interpreting language similar to the Second Amendment to be highly significant. All of this leaves the future constitutionality of laws regulating ownership and possession of firearms in a state of uncertainty and flux. If the Supreme Court ultimately decides that it should follow the lead of state courts interpreting state Second Amendment analogues,50 it is possible that the newly recognized federal individual right to bear arms may have little effect on most state and federal firearm regulations currently on the books. If the Court instead establishes a higher standard, akin to strict scrutiny, the Court’s Second Amendment jurisprudence could ultimately call into question a broad range of gun laws in states across the nation.

The Second Amendment Revolution and Our Broader Constitutional Order

44 45

United States v. Laurent, 11-CR-322, 2011 WL 6004606 (E.D.N.Y. Dec. 2, 2011). Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011) (concluding that “the rigor of . . . judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right,” while striking down Chicago firing-range training ordinance); Nordyke v. King, 644 F.3d 776, 784 (9th Cir. 2011) (suggesting a “substantial burden framework”), reh’r en banc granted 664 F.3d 774 (9th Cir. 2011). 46 See Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 205 (2006). Since Professor Volokh’s article in 2006, Kansas has amended its Constitution to recognize an individual right to bear arms. Kan. Const. Bill of Rights § 4. Virginia has interpreted its state constitutional right to bear arms as coextensive with developments to the federal right recognized in Heller. DiGiacinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365, 369 (Va. 2011). Hawaii has yet to expressly characterize whether its right to bear arms is individual, although its constitutional language is essentially identical to the Second Amendment. State v. Mendoza, 920 P.2d 357, 367 (Haw. 1996). Only Massachusetts has expressly stated that its right to bear arms does not guarantee an individual right. Com. v. Davis, 343 N.E.2d 847 (Mass. 1976). The constitutions of six States -California, Iowa, Maryland, Minnesota, New Jersey, and New York, --have no provision concerning the right to bear arms. 46 Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683, 686 n.12, 715-25 (2007). 47 See, e.g., R.I. CONST. art. I, § 22 (“The right of the people to keep and bear arms shall not be infringed.”). 48 State v. Cole, 665 N.W.2d 328, 338 (Wis. 2003). 49 See Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683, 686 n.12 (2007). 50 See Joseph Blocher, Reverse Incorporation of State Constitutional Law, 84 S. CAL. L. REV. 323, 380-84 (2011).

While both Heller and McDonald divided the Supreme Court 5-4 along ideological lines, the reactions and fault lines on the opinions outside the Court have been far less homogeneous. The Second Amendment revolution got critical academic support from liberal law professors including Sanford Levinson51 and critical public support in 2008 from then-candidate Barack Obama. In McDonald, Constitutional Accountability Center filed a brief on behalf of preeminent law professors across the political spectrum arguing for incorporation of the Second Amendment right recognized in Heller. Meanwhile, prominent conservatives including Robert Bork and, more recently, Judge Wilkinson, have expressed serious reservations about where the revolution would lead.52 This ideological juxtaposition reflects the reality that the fight in Heller and McDonald, is, at bottom, a fight about rights. While the Supreme Court’s decisions in Heller and McDonald leave an uncertain future for the regulation of firearms, they have, at the same time, helped create a broader and more ideologically diverse constituency for the Constitution’s protection of individual substantive rights.53 McDonald is a perfect illustration of this point, with the conservatives abandoning their usual hostility to substantive due process to hold that the right to bear arms is a substantive liberty protected from state abridgement by the Due Process Clause. In the future, one could imagine that the Court’s conservative majority would be more responsive to the rights of criminal defendants when those criminal defendants happen to be gun owners, which is often the case given the many federal criminal laws pertaining to gun ownership and trafficking.54 So, for example, it is at least conceivable that the Court would look more favorably on a Fourth Amendment search and seizure claim when it is brought by a “mom and pop gun shop,”55 rather than by a drug dealer. On the other hand, there is a risk that as the Court determines the contours of the Second Amendment it might reach conclusions that have negative consequences for the scope of other
51 52

See Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989). Judge Wilkinson has admonished that Heller “represents a failure . . . to adhere to a conservative judicial methodology in reaching its decision,” that “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253, 254 (2009). Judge Wilkinson identifies “four major shortcomings” in Heller: “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.” Id. Calling Heller an “act of judicial aggrandizement,” he argues it “discarded the tenets of judicial restraint,” violating the principle that “when the channels of democracy are functioning properly, judges should be modest in their ambitions and overrule the results of the democratic process only where the constitution unambiguously commands it.” Id. at 254-56. 53 To be sure, as a number of Crossroads chapters bear out, the right to bear arms is not the only area where conservatives are actively moving the law by expanding the scope of constitutional rights. See, e.g. Citizens United v. FEC, 130 S.Ct. 876 (2010); Sorrell v. IMS Health, Inc., 131 S.Ct. 2653 (2011); Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701(2007). For more on this, see Crossroads Chapters 4, 5, and 6. Heller and McDonald, nevertheless, remain distinctive since these cases turn not merely on the permissibility of some species of state regulation, but on the more fundamental question of whether the Constitution protects an individual right to bear arms at all. 54 This is one of the areas where ideological lines are already scrambled on the Court, with an unlikely combination of Justices, including Justices Antonin Scalia and Clarence Thomas, promoting an expansive, right-protecting view of the Sixth Amendment. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004). 55 Szajer v. City of Los Angeles, 632 F.3d 607, 608 (9th Cir. 2011) cert. denied, 132 S. Ct. 98 (U.S. 2011). Crossroads: Second Amendment Page | 9

constitutional protections. In other words, it is possible that questions concerning the scope of the Second Amendment right will bleed into and dilute the protection afforded by other constitutional protections. For example, both the Second Amendment and the Fourth Amendment’s guarantee against unreasonable searches and seizures protect the right of “the people.” If the Court interprets the phrase “the people” as restricting the scope of the Second Amendment’s protection to a subset of persons within the United States, this restrictive view may be read into rights protected under the Fourth Amendment, and perhaps into other areas of the Constitution as well.56 *** The Supreme Court in Heller and McDonald opened the door for federal courts to review whether firearm regulations unconstitutionally infringe on the newly recognized federal individual right to bear arms. But whether the opening is a crack or a chasm is far from certain. It also remains to be seen whether the Second Amendment revival will lead to a more expansive, or more restrictive, approach by the Court to other parts of the Bill of Rights. The only things that are clear at this point are that the Court’s recent Second Amendment rulings have unsettled constitutional law and changed the nature of the debate over the Bill of Rights.


A restrictive definition of “the people” is perhaps implied by the Heller majority. 554 U.S. at 580-1. But a restrictive reading of “the people” seems to stand in opposition to Justice Anthony Kennedy’s concurring opinion in Verdugo-Urquidez, which provided the fifth vote for the conclusion that the Fourth Amendment did not apply extra-territorially in Mexico. According to Justice Kennedy, the phrase “the right of the people” “may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.” 494 U.S. 259, 276 (1990) (Kennedy, J., concurring). In Justice Kennedy’s view, “reference to ‘the people’ in the Fourth Amendment” cannot be viewed as “a source of restricting its protections.” Id. Where Justice Kennedy stands today is uncertain, since he signed onto the majority opinion in Heller in full without providing a concurrence clarifying his views.

The Meaning of Equal: Does the Constitution Prohibit Discrimination on the Basis of Gender and Sexual Orientation?
The Constitution at a Crossroads

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”1 Justice Antonin Scalia “What [the framers of the 14th Amendment] were getting at, basically, and you will find this popping up again and again in the legislative record, they were against caste. They did not want the United States to have any classes or castes that would identify people by their birth status.”2 Justice Ruth Bader Ginsburg As these two recent statements by sitting Justices indicate, the Supreme Court is bitterly divided along ideological lines over the meaning of the Fourteenth Amendment’s guarantee to all persons of the “equal protection of the laws.” Conservatives, most notably Justice Antonin Scalia, view the Equal Protection Clause as mainly, if not exclusively, about eliminating discrimination on the basis of race; 3 hence, they often vote to permit other forms of discrimination. The Court’s liberal Justices, frequently led by Justice Ruth Bader Ginsburg, view the Clause as more broadly prohibiting all forms of invidious discrimination that has the effect of creating favored or disfavored classes or castes. This disagreement about the meaning of the Equal Protection Clause has resulted in sharply divided rulings over whether the Equal Protection Clause limits state-sponsored discrimination on the basis of sex and sexual orientation. In these cases, Justice Anthony Kennedy has often, but not always, sided with the Court’s liberal wing, providing a viable but somewhat uncertain foundation for protection against discrimination on the basis of sex and sexual orientation.


See The Originalist, California Lawyer (January 2011) (available at http://www.callawyer.com/clstory.cfm?pubdt=NaN&eid=913358&evid=1). 2 See Nicole Flatow, Justice Ginsburg’s Take on Originalism (Nov. 22, 2011) (available at http://www.acslaw.org/acsblog/justice-ginsburg%E2%80%99s-take-on-originalism). 3 See Chapter 5 (“Brown v. Brown”). 1200 18 Street, N.W., Suite 1002, Washington, D.C. 20036


This area of the law has been surprisingly quiet in the last decade, but is now getting very heated very quickly, as cases raising questions of marriage equality for gay men and lesbians race through the lower federal courts. This past February, Ted Olson and David Boies convinced a divided panel of the U.S. Court of Appeals for the Ninth Circuit in Perry v. Brown4 that Proposition 8, which amended the California Constitution to deny gay men and lesbians the right to marry the person of their choice, violated the Equal Protection Clause because it stripped them of a right based on animus and prejudice and was not rationally related to any legitimate governmental interest. “Proposition 8,” the Ninth Circuit concluded, “serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”5 On May 31, 2012, in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. United States Dep’t of Health & Human Services, the First Circuit unanimously held that the provisions of the federal Defense of Marriage Act (“DOMA”) that deny federal marriage benefits to married same-sex couples violate the “equal protection” component implied in the Due Process Clause of the Fifth Amendment. The panel’s opinion, authored by well-respected conservative jurist Michael Boudin, applied what might be called rational basis review with bite, following a long line of equal protection cases that have focused on the “case-specific nature of the discrepant treatment, the burden imposed, and the infirmity of the justification.”6 Rather than invoke a higher tier of judicial scrutiny, as urged by the Obama Justice Department, Judge Boudin explained that equal protection principles prohibit federal and state governments from discriminating against a “historically disadvantaged or unpopular” group for reasons that are “thin, unsupported or impermissible.” 7 With Perry’s challenge to Proposition 8 and Gill’s challenge to the federal provisions of DOMA closer than ever to Supreme Court review, and with the Justices deeply divided about the meaning of the equal protection guarantee, the Constitution’s promise of equality for all persons is at a crossroads.

The Text and History of the Equal Protection Clause
Proposed in 1866 and ratified in 1868, the Equal Protection Clause prohibits a state from “denying to any person within its jurisdiction the equal protection of the laws.” This broad protection of equality was no accident. The Framers of the Fourteenth Amendment wrote the Equal Protection Clause to bring the Constitution back in line with the fundamental principle of equality set out in the Declaration of Independence, which had been perverted by the institution of slavery.8 While protecting the newly freed slaves was certainly a priority, the Joint Committee of Congress that drafted the Fourteenth Amendment rejected numerous proposals that would have limited the Fourteenth
4 5

671 F.3d 1052 (9 Cir. 2012). Id. at 1063. 6 st Massachusetts v. United States Dep’t of Health & Human Servs., Nos. 10-2204, 2207, 2214, slip op. at 17 (1 Cir. May 31, 2012). 7 Id. at 16. 8 th st Cong. Globe, 39 Cong., 1 Sess. 2961 (1866) (arguing that the guarantees of due process and equal protection “were essentially declared in the Declaration of Independence”). Crossroads: Equal Protection Page | 2


Amendment’s equality guarantee to a prohibition on laws that discriminated on account of race, preferring a universal guarantee of equality that protected all persons residing in the United States.9 Indeed, the Reconstruction Framers insisted on this universal coverage because states were flagrantly violating the equal rights not only of the newly freed slaves, but also white Union sympathizers in the South and Chinese immigrants in the West. From the very beginning, the Equal Protection Clause was understood as a universal guarantee of equality that “abolishes all class legislation,” “does away with the injustice of subjecting one caste of persons to a code not applicable to another,” and “establishes equality before the law.”10 While the Framers of the Fourteenth Amendment clearly and deliberately wrote the broadest possible textual protection of equality into our Constitution, they themselves were not entirely willing to live up to this soaring promise of equal protection for all. In fact, Section 2 of the Fourteenth Amendment put an imprimatur of sorts on sex discrimination, imposing a penalty of reduced congressional representation only on states that denied the right to vote to any of its male citizens. The clear implication of this constitutional language was that states were free to deny the vote to women. Taking advantage of this textual schizophrenia, the Reconstruction-era Supreme Court interpreted the Fourteenth Amendment’s guarantee of equal protection to be primarily – if not exclusively – concerned with racial discrimination. Just a few short years after the ratification of the Fourteenth Amendment, a narrow majority of the Supreme Court observed that “the one pervading purpose” of the Fourteenth Amendment was “the protection of the newly made freeman citizen from the oppressions of those who formerly exercised unlimited dominion over him,” and “doubt[ed] very much whether any action of the State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of [the Equal Protection Clause+.”11 In 1880, in Strauder v. West Virginia,12 the Justices struck down efforts to exclude African American men from the right to serve on a jury, calling their exclusion “practically a brand on them, affixed by law, an assertion of their inferiority,” but suggested in dicta that states may “confine the selection *of jurors+ to males . . . .”13 Of course, the constitutional struggle for equality for all persons did not end in 1868. In later Amendments, including the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, the American people strengthened the Constitution’s protection of equality. Most important, the Nineteenth Amendment, ratified in 1920, gave women the right to vote and thereby effectively repealed the portions of the Fourteenth Amendment that permitted discrimination against women in voting rights.14 In approving the Nineteenth Amendment, the nation decisively rejected “the old conception of

See BENJAMIN B. KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION 46, 50, 83 (1914). th st Cong. Globe, 39 Cong., 1 Sess. 2766 (1866). The discussion in this paragraph draws on DAVID GANS, PERFECTING THE DECLARATION: THE TEXT AND HISTORY OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT (2011). 11 Slaughter-House Cases, 83 U.S. 36, 71, 81 (1873). 12 100 U.S. 303 (1880). 13 Id. at 308, 310. 14 See PERFECTING THE DECLARATION, supra, at 33-34, 36; see also Stephen G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 Tex. L. Rev. 1, 66-96 (2011); Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947 (2002).

Crossroads: Equal Protection

Page | 3

the place of woman,” concluding that a woman was no longer to be “ruled by a male head” and have “her place in the world . . . determined by the place held by this head . . . .”15 With the ratification of the Nineteenth Amendment, the sweeping text of the Equal Protection Clause stands alone, free from the stain created by Section 2 of the Fourteenth Amendment. The arc of our constitutional progress towards greater equality makes it difficult to argue that the Equal Protection Clause does not protect women and other historically disadvantaged persons from state-sponsored discrimination. Indeed, even Justice Scalia tried to disavow his remarks about sex discrimination when pressed by Senator Dianne Feinstein at a recent Senate Judiciary Committee hearing.16 The more pressing, and persistently divisive, question is what level of protection is afforded by the Clause outside of the context of discrimination on the basis of race. In the 1970s and 1980s, the Supreme Court, led by Justice William Brennan, established the now-familiar three tiers of equal protection scrutiny under which laws that discriminate on account of race, national origin, and alienage are subject to strict scrutiny,17 laws that discriminate on account of gender and “illegitimacy” are subject to intermediate scrutiny,18 and the vast bulk of social and economic legislation, as well as laws that discriminate on account of age and disability,19 are subject to rational basis review. Justice Brennan’s tiered model for equal protection analysis met with two very distinct challenges. On the left, Justice John Paul Stevens argued that too much focus on the tiers of scrutiny obscured the text of the Equal Protection Clause’s protection of equality for all persons. As he observed, “*t+here is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases.”20 On the right, then-Justice William Rehnquist argued that there was no basis in text, history, or precedent to justify heightened scrutiny outside the context of racial discrimination and that the Court’s new framework was so “diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation.”21 Nevertheless, the three tiers of equal protection scrutiny have survived and, today, are deeply embedded in the Court’s cases. While this three-tiered approach remains a starting point for equal protection analysis, the Court’s current membership rarely agrees on how to apply this framework. Led by Justice Ruth Bader Ginsburg, the Court’s liberal wing has pushed for a demanding review of legislation that discriminates on the basis of gender, requiring the government to establish an “exceedingly persuasive justification” for laws that deny equal rights to men and women. The Court’s conservative wing, led by Justice Scalia, has
15 16

56 Cong. Rec. 788 (1918). See David H. Gans, Justice Scalia’s Flip-Flop (Oct. 7, 2011) (available at http://theusconstitution.org/texthistory/3189). 17 See Graham v. Richardson, 403 U.S. 365, 371-72 (1971); Sugarman, 413 U.S. at 642. 18 See Craig v. Boren, 429 U.S. 190, 197 (1976); Clark v. Jeter, 486 U.S. 456, 461 (1988). 19 See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976); City of Cleburne, Tex v. Cleburne Living Center, Inc.,473 U.S. 432, 442-47 (1985). 20 Craig, 429 U.S. at 211-12 (Stevens, J., concurring). 21 Id. at 221 (Rehnquist, J., dissenting). Crossroads: Equal Protection Page | 4

insisted that societal traditions and views on morality are sufficient justification for many gender-based distinctions and just about any distinction based on sexual orientation. At the Court’s center, Justice Kennedy has started to stake out something of a third way in cases involving sexual orientation, focusing less on the three tiers of scrutiny and more on the broad protection of equality for all persons in the constitutional text. In this respect, Justice Kennedy’s approach owes much to Justice Stevens’ “one Equal Protection Clause” analysis.

Equal Protection Jurisprudence and Discrimination on the Basis of Gender
The story of the Court’s recent jurisprudence on equal protection and gender begins with the 1994 case, J.E.B. v. Alabama ex rel. T.B.,22 in which the Court ruled by a vote of 6-3 that Alabama prosecutors violated the Equal Protection Clause when they exercised their peremptory challenges to remove a number of jurors based on their gender, concluding that “gender, like race, is an unconstitutional proxy for juror competence and impartiality.”23 Justice Harry Blackmun’s opinion for the Court concluded that the Alabama prosecutors had failed to offer an “exceptionally persuasive justification” for their use of gender-based challenges, finding that they had done no more than rely on the “same stereotypes that justified the wholesale exclusion of women from juries and the ballot box.”24 Writing for the three dissenters, Justice Scalia argued that the majority had badly erred by limiting a litigant’s established right to use a peremptory challenge, thereby “imperil[ing] a practice that has been considered an essential part of fair jury trial since the dawn of the common law. The Constitution neither requires nor permits this vandalizing of our people’s traditions.”25 In a separate dissent, Chief Justice Rehnquist echoed the Reconstruction-era Court, arguing that the Constitution treats gender-based peremptory strikes differently from race-based ones because “race lies at the core of the commands of the Fourteenth Amendment” and “there are sufficient differences between race and gender discrimination.”26 The Chief Justice explained that “*t+he two sexes differ, both biologically and, to a diminishing extent, in experience. It is not merely ‘stereotyping’ to say that these differences may produce a difference in outlook . . . . [U]se of peremptory challenges on the basis of sex is generally not the sort of derogatory and invidious act which peremptory challenges directed at black jurors may be.”27 In 1996, in United States v. Virginia,28 the Court’s majority and Justice Scalia continued to go toeto-toe on the meaning of the equal protection guarantee. There, in an opinion by Justice Ginsburg, the Court held by a vote of 7-1 that the exclusion of women from the Virginia Military Institute violated the Equal Protection Clause.29 While the Court recognized that “*p+hysical differences between men and

22 23 24 25 26 27 28 29

511 U.S. 127 (1994). Id. at 129. Id. at 137, 139. Id. at 163 (Scalia, J., dissenting). Id. at 155, 154 (Rehnquist, C.J., dissenting). Id. at 156 (Rehnquist, C.J., dissenting). 518 U.S. 515 (1996). Justice Thomas recused himself from participation in the case. Page | 5

Crossroads: Equal Protection

women . . . are enduring,” it held that “‘*i+nherent differences between men and women . . . remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.”30 Applying the same, demanding version of intermediate scrutiny as the Court had applied in J.E.B., Justice Ginsburg’s opinion found that Virginia failed to offer an “exceedingly persuasive justification” for excluding women from VMI,31 explaining that “*h+owever ‘liberally’ *Virginia’s+ plan serves the State’s sons, it makes no provision for her daughters. That is not equal protection.”32 Justice Scalia dissented, arguing that the Court had no warrant in the Constitution to “shut*+ down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.”33 Criticizing the Court for setting aside “the long tradition, enduring down to the present, of men’s military colleges,” Justice Scalia urged that “the function of the Court is to preserve our society’s values regarding . . . equal protection, not to revise them . . . . [W]hatever abstract tests we may choose to devise, they cannot supersede – and indeed ought to be crafted to reflect – those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.”34 In displacing these longstanding traditions, Justice Scalia charged, the Court had insisted on a new, super-strict version of intermediate scrutiny when the proper standard should really be rational basis review.35 Since Virginia, the Justices have only tinkered around the edges of gender discrimination doctrine. In 2001, in Nguyen v. INS,36 the Justices voted 5-4 to uphold a federal statute that discriminated against U.S. citizen fathers, making it harder for them to transmit their citizenship to a nonmarital child born outside the United States. In an opinion by Justice Kennedy, the Court held that the statute survived heightened scrutiny. Observing that “*f+athers and mothers are not similarly situated with regard to proof of biological parenthood,” Justice Kennedy reasoned that the statute’s requirements were permissible efforts “to ensure an acceptable documentation of paternity” and thus “establish the blood link between the father and child required as a predicate to the child’s acquisition of citizenship.”37 Justice Kennedy explained that it was “not a stereotype” to “recogni[ze] that [at] the moment of birth . . . the mother’s knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of the unwed father.”38

30 31

Id. at 533. Id. at 534. 32 Id. at 540. 33 Id. at 566 (Scalia, J., dissenting). 34 Id. at 566, 568 (Scalia, J., dissenting). 35 Id. at 574-75 (Scalia, J., dissenting) (arguing that “if the question of the applicable standard of review for sexbased classifications were to be regarded as an appropriate subject for reconsideration, the stronger argument would be not for elevating the standard to strict scrutiny, but for reducing it to rational-basis review”). 36 533 U.S. 33 (2001). The Court had reviewed the constitutionality of the statute for the first time in Miller v. Albright, 523 U.S. 420 (1998), but a majority of the Court failed to resolve the issue. 37 Nguyen, 533 U.S. at 63. 38 Id. at 68. Crossroads: Equal Protection Page | 6

Justice Sandra Day O’Connor authored a dissenting opinion, joined by Justice Ginsburg, Justice Stephen Breyer and Justice David Souter. She argued that the majority had diluted intermediate scrutiny, calling the ruling a “deviation from the line of cases in which we have vigilantly applied heightened scrutiny to determine whether a constitutional violation has occurred.”39 The dissenters would have invalidated the statute because, first, the interests served by the statute could have been readily achieved by gender-neutral means, and, second, because the statute was “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children.” 40 In the dissenters’ view, the majority had seriously departed from settled equal protection principles by ignoring “the stereotypical notion that mothers must care for these children,” thereby “condon*ing+ ‘the very stereotype the law condemns.’”41 Last Term, the Court considered Flores-Villar v. United States,42 an appeal from a Ninth Circuit ruling upholding the constitutionality of a related provision of the federal citizenship statute at issue in Nguyen, which imposed a discriminatory residency requirement on unmarried U.S. citizen fathers seeking to pass their citizenship on to their children born outside the United States. Affirming the Ninth Circuit’s decision by a vote of 4-4 without a formal opinion—Justice Elena Kagan did not participate—the ruling demonstrates that the Roberts Court remains deeply divided over the meaning of the equal protection guarantee. Although the summary affirmance does not disclose how the Justices voted, most Court watchers believe that Justice Kennedy, the author of the Nguyen opinion, sided with the Court’s liberal wing in Flores-Villar, indicating that in gender discrimination law, like many other areas, as Justice Kennedy goes, so goes the Court.

Equal Protection Doctrine and Discrimination on the Basis of Sexual Orientation
Justice Kennedy not only wields the deciding vote on the Supreme Court in equal protection cases, he also seems intent to move the Court away from the “tiers of scrutiny” framework toward a more focused examination of whether laws improperly discriminate against individual Americans. Justice Kennedy began articulating these views in J.E.B, in which he wrote an important concurring opinion, emphasizing that constitutional text and history supported the Court’s holding. Justice Kennedy observed that the Framers of the Fourteenth Amendment rejected an equality guarantee that proscribed only racial discrimination in favor of a broad guarantee written in “more comprehensive terms,”43 extending the guarantee of the equal protection of the laws to all individuals, both women and men. “The neutral phrasing of the Equal Protection Clause,” Justice Kennedy explained, “extending its guarantee to ‘any person,’ reveals its concern with rights of individuals . . . . ‘At the heart of the

39 40

Id. at 74, 97 (O’Connor, J., dissenting). Id. at 92 (O’Connor, J., dissenting). 41 Id. (quoting J.E.B., 511 U.S. at 138). 42 131 S. Ct. 2312 (2011). 43 J.E.B v. Alabama ex rel. T.B., 511 U.S. 127, 151 (1994) (Kennedy, J., concurring). Crossroads: Equal Protection Page | 7

Constitution’s guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial *or+ sexual . . . class.’”44 Two years later, in Romer v. Evans,45 Justice Kennedy authored the Court’s 6-3 ruling holding that Colorado’s Amendment 2, which prohibited state or local government action to protect gay men and lesbians from discrimination, violated the Equal Protection Clause. Calling Amendment 2’s discrimination against gay men and lesbians a broad “disqualification of a class of persons from the right to seek the protection of the law,”46 Justice Kennedy explained that Equal Protection Clause requires “the law’s neutrality where the rights of persons are at stake” and forbids the government from discriminating against individuals out of “animosity toward the class of persons affected.”47 Applying these first principles, the Court concluded that Amendment 2 was a patent denial of equal protection, “a status-based enactment” that denies equal rights under the law to gay men and lesbians “to make them unequal to everyone else.”48 Importantly in Romer, Justice Kennedy’s opinion for the Court did not hold that discrimination on account of sexual orientation is a constitutionally suspect classification requiring strict scrutiny (as in race discrimination cases) or intermediate scrutiny (as in gender discrimination cases). The Court in fact has never articulated the standard of review applicable to laws that discriminate on account of sexual orientation, and Justice Kennedy sidestepped the question in Romer. Instead, Justice Kennedy‘s majority opinion held that Amendment 2 could not survive rational basis review, making consideration of a higher level of scrutiny unnecessary. While rational basis scrutiny is deferential, Justice Kennedy concluded that even the most minimal level of equal protection scrutiny does not permit “‘indiscriminate imposition of inequalities’ . . . born of animosity to the class of persons affected.”49 In striking the law under rational basis review, Justice Kennedy took a page from the playbook of John Paul Stevens, who had long argued that the focus should be on the meaning of equal rather than on expanding the judicially-created tiers of scrutiny. Justice Scalia again wrote for the dissenters. In an opinion joined by Justice Clarence Thomas and Chief Justice Rehnquist, Justice Scalia argued that Amendment 2 did not violate the Equal Protection Clause because the government has a legitimate interest in “preserv*ing+ traditional sexual mores against the efforts of a politically powerful minority to revise those mores . . . .”50 The Court, he argued, was wrong to treat Amendment 2 as a form of invidious discrimination designed to harm gay men and lesbians. Except to “those who think the Constitution changes to suit current fashions,” Scalia argued, Amendment 2 was a constitutionally permissible effort to “prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradoans,” in line with our “centuries-old” history of “moral


Id. at 152-53 (Kennedy, J., concurring) (quoting Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602 (1990) (O’Connor, J., dissenting). 45 517 U.S. 620 (1996). 46 Id. at 633. 47 Id. at 623, 633-34. 48 Id. at 635. 49 Id. at 633, 634 (quoting Sweatt v. Painter, 339 U.S. 629, 635 (1950)). 50 Id. at 636 (Scalia, J., dissenting). Crossroads: Equal Protection Page | 8

disapproval of homosexual conduct.”51 In short, Justice Scalia argued, “*s+ince the Constitution says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions of state constitutions.”52 In his view, “*n+o principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here.”53 In his dissent, Justice Scalia likened the efforts of Coloradoans to respond to the growing political power of gay men and lesbians to 19th Century state constitutional amendments that banned polygamy “in order to preserve . . . sexual morality . . . against the efforts of a geographically concentrated and politically powerful minority to undermine it.”54 In Justice Scalia’s view, state governments had no less broad authority to express moral outrage at homosexuality.

Possible Developments in the Future
As this review makes clear, the Justices of the Supreme Court have been deeply divided over the meaning of the equal protection guarantee in cases involving discrimination on account of sex and sexual orientation. A majority of the Court in J.E.B., Virginia, and Romer has held that the text of the Equal Protection Clause means what it says: it is a broad guarantee of equality covering every person residing in the United States, prohibiting states from denying women and gay men and lesbians equal rights and opportunities and treating them as second-class persons, whether based on stereotypical thinking, prejudice, or animus. Each of these opinions was authored or joined by Justice Kennedy, who today holds the balance of power on the Court in cases presenting these issues. Dissenting in each of these cases, Justice Scalia argued that the Equal Protection Clause should be read to preserve longstanding practices of the American people and preserve “traditional” notions of morality. Outside the context of race, Justice Scalia argued, the Equal Protection Clause protects traditional practices of the states, even those that discriminate on the basis of gender and sexual orientation. These cases, of course, were decided fifteen or more years ago, but there is no reason to think these fault lines have disappeared. Indeed, as Flores-Villar indicates, the Justices still remain deeply polarized about the meaning of the constitutional guarantee of equality. Against this backdrop, the Court is poised in the coming years to weigh in on the most important equality fight of this generation, the struggle by gay men and lesbians for marriage equality. Two huge cases are waiting in the wings: (1) Perry v. Brown, the challenge to California’s Proposition 8, led by the powerhouse team of Olson and Boies; and (2) the companion cases of Gill v. Office of Personnel Management and Massachusetts v. United States Dep’t of Health & Human Services, challenging the provisions of DOMA that deny federal marriage benefits to married same-sex couples. In these cases, the federal courts of appeal tracked Justice Kennedy’s “third way” in striking down the discriminatory marriage laws, concluding that these enactments denied gay men and lesbians the equal protection of the laws by denying them equal rights without any legitimate reason. The panel opinions – written
51 52 53 54

Id. at 640-41, 653, 644 (Scalia, J., dissenting). Id. at 636 (Scalia, J., dissenting). Id. at 644 (Scalia, J., dissenting). Id. at 648 (Scalia, J., dissenting). Page | 9

Crossroads: Equal Protection

respectively by liberal lion Stephen Reinhardt and conservative jurist Michael Boudin – closely followed Justice Kennedy’s approach, engaging in a focused examination of whether the particular laws improperly discriminate against individual Americans, and struck the laws under rational basis review, rather than announce a tougher standard of review for state-sponsored discrimination on the basis of sexual orientation. The question now is whether Justice Kennedy would view these rulings as appropriately following from Romer, should either case reach the Court. There is good reason to think that he would. The logic of Justice Kennedy’s opinions in J.E.B. and Romer point in the direction of a holding striking down Proposition 8 and the federal portion of DOMA as a violation of the constitutional guarantee of equality under the law and equality of rights. In J.E.B., as discussed above, Justice Kennedy affirmed the text’s broad protection of equality, noting that the Framers of the Fourteenth Amendment rejected an equality guarantee that proscribed only racial discrimination in favor of a broad guarantee written in “more comprehensive terms” applying to all persons.55 “The neutral phrasing of the Equal Protection Clause,” he explained, “reveals its concern with the rights of individuals,” requiring the government to obey “the simple command” to “’treat citizens as individuals, not as simply components of a racial [or] sexual . . . class.’”56 In Romer, Justice Kennedy affirmed that, under the text, “the Constitution ‘neither knows nor tolerates classes among citizens,’” requiring “the law’s neutrality where the rights of persons are at stake.”57 He recognized that, under the Equal Protection Clause, states may not deny to gay men and lesbians rights basic to “ordinary civic life in a free society,” in order “to make them unequal to everyone else.”58 If Justice Kennedy is guided by these precepts, he may well end up authoring a sharply divided opinion affirming either the First Circuit’s opinion in Gill or the Ninth Circuit’s opinion in Perry and possibly going further and recognizing marriage equality as a matter of fundamental constitutional right. To be sure, other opinions authored by Justice Kennedy are more equivocal. His opinion in Nguyen, discussed above, indicates his willingness to side with the Court’s conservative wing in equal protection cases and uphold certain distinctions on the basis of gender. Perhaps even more important, in terms of Perry, Justice Kennedy’s opinion for the Court in Lawrence v. Texas,59 which struck down a Texas criminal sodomy statute under the Due Process Clause of the Fourteenth Amendment, expressly reserved the question of marriage equality, observing that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”60 However Justice Kennedy reconciles his own opinions in J.E.B., Romer, Nguyen, and Lawrence, he will have to contend with arguments, likely to be made by Justice Scalia, that the Constitution says nothing about same-sex marriage. Based on his past dissenting opinions, Justice Scalia is likely to take the view that a ruling striking down state discriminatory marriage laws has no basis in the Constitution
55 56

J.E.B., 511 U.S. at 151 (Kennedy, J., concurring). Id. at 153 (Kennedy, J., concurring) (quoting Metro Broadcasting, Inc v. FCC, 497 U.S. 547, 602 (1990) (O’Connor, J., dissenting). 57 Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). 58 Id. at 631, 635. 59 539 U.S. 558 (2003). 60 Id. at 578. Crossroads: Equal Protection Page | 10

and would be inconsistent with the long-established understanding of the Equal Protection Clause and badly out of harmony with the established understanding of marriage and morality going back centuries. In short, the stakes in these cases could not be higher, raising the fundamental question whether the Constitution, in fact, protects the equality of all persons or permits state-sponsored discrimination against gay and lesbian persons. In landmark equal protection cases decided over the last 60 years, the Supreme Court has held that the Constitution broadly guarantees equality to all persons and prohibits states from treating African Americans, women, and gay men and lesbians as inferior persons. The question now, with Perry and Gill getting closer to the Supreme Court, is whether the Justices will follow these basic equal protection principles or make an exception to them.

Crossroads: Equal Protection

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Will the Supreme Court Continue to Chip Away At, or Overrule, the Constitution’s Protection of Reproductive Choice?
The Constitution at a Crossroads

“We don’t have to see a Roe v. Wade overturned in the Supreme Court to end it. . . . We want to. But if we chip away and chip away, we’ll find out that Roe really has no impact. And that’s what we are doing.” Pat Mahoney, Christian Defense Coalition No issue has divided the Supreme Court more sharply, along ideological lines, than the question whether the Constitution protects a fundamental right to reproductive choice. In the nearly forty years since the Court decided Roe v. Wade,1 the Justices have vehemently disagreed about whether the Constitution protects fundamental rights not explicitly enumerated in the text of the Constitution, about whether a woman’s right to reproductive choice is one of the fundamental rights that states must respect, and about how courts should review state laws restricting that right. In 1992, after being repeatedly urged year after year by the Justice Department under Presidents Ronald Reagan and George H.W. Bush to overrule Roe, the Supreme Court, in its 5-4 ruling in Planned Parenthood v. Casey,2 substantially reaffirmed the ruling, relying in large measure on the doctrine of stare decisis. Surprising virtually everyone, Justice Kennedy, who had joined the anti-Roe bloc in decisions upholding restrictive laws in 1989, 1990, and 1991,3 became the fifth vote to reaffirm Roe’s protection of a right to reproductive freedom. Since Casey, Justice Kennedy has drifted back to the right on this issue, joining the Court’s conservative Justices in a pair of decisions concerning the constitutionality of federal and state laws banning so-called “partial birth” abortions.4 In these cases, Justice Kennedy – alone among Roe’s supporters – gave a narrow construction to constitutional protection for reproductive freedom and a broad one to the authority of states to enact laws that promote the potential life of the fetus. Today, almost two decades after Casey, Roe still hangs on by a thread, with supporters of a woman’s right to reproductive freedom dependent on the vote of Justice Kennedy, who has only once –

1 2

410 U.S. 113 (1973). 505 U.S. 833 (1992). 3 See Webster v. Reprod. Health Servs., 492 U.S. 490 (1989); Ohio v. Akron Ctr. For Reproductive Health, 497 U.S. 502 (1990); Hodgson v. Minnesota, 497 U.S. 417 (1990); Rust v. Sullivan, 500 U.S. 173 (1991). 4 Gonzales v. Carhart, 550 U.S. 124 (2007) (opinion of the Court authored by Kennedy, J.); Stenberg v. Carhart, 530 U.S. 914, 956-79 (2000) (Kennedy, J., dissenting). 1200 18 Street, N.W., Suite 1002, Washington, D.C. 20036


in Casey itself – voted to strike down a restrictive state law.5 During the last several years, the Justices have been silent on these issues, but in the wake of the 2010 elections, state after state has passed new restrictions, requiring a woman to view a sonogram of the fetus, receive potentially misleading medical information about the risks of abortion, and, in one state, even submit to an interview and counseling by members of an anti-abortion crisis pregnancy center.6 Other states have gone ever further, banning all abortions after twenty weeks of pregnancy.7 Over the next decade, Supreme Court decisions that address the constitutionality of these measures will give the Court’s conservatives further opportunities to chip away at a woman’s right to reproductive choice, possibly even setting the stage for a future showdown over Roe itself.

The Great Debate over the Constitution’s Protection of Substantive Liberty
There is little doubt, in the words of Chief Justice Roberts during his confirmation hearings that, under the Constitution, liberty is “protected not simply procedurally, but as a substantive matter as well.”8 In drafting the Fourteenth Amendment, the framers explained that the Amendment would “forever disable every one of the* + *States+ from passing laws trenching upon . . . fundamental rights and privileges.”9 The list of substantive fundamental rights the Fourteenth Amendment was designed to protect began with the Bill of Rights, but it did not end there. The framers regularly affirmed a long list of fundamental rights – such as the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights.10 These were core rights of personal liberty and personal security; it did not matter that they were not enumerated elsewhere in the Constitution. While the framers of the Fourteenth Amendment designed the Privileges or Immunities Clause to be the “natural textual home for . . . unenumerated rights,”11 the Supreme Court gutted that Clause in its 1873 decision in the SlaughterHouse Cases12 and, ever since, the Court has turned to the Amendment’s Due Process Clause to protect substantive fundamental rights.13

5 6

Casey, 505 U.S. at 887-898 (striking down husband-notification provision). For a description of the new laws, see Dahlia Lithwick, The Death of Roe v. Wade, SLATE, April 19, 2011. 7 See Erik Eckholm, Several States Forbid Abortion After 20 Weeks, N.Y TIMES, June 26, 2011. 8 th Confirmation Hearing on the Nomination of John G. Roberts , Jr. to be Chief Justice of the United States, 109 st Cong., 1 Sess., Sen. Hrg. 109-158, at 147 (2005). 9 th st Cong. Globe, 39 Cong., 1 Sess. 2766 (1866). 10 See DAVID H. GANS & DOUGLAS T. KENDALL, THE GEM OF THE CONSTITUTION: THE TEXT AND HISTORY OF THE PRIVILEGES OR IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT 7-8 (2008). 11 Michael J. Gerhardt, The Ripple Effects of Slaughter-House: A Critique of the Negative Rights View of the Constitution, 43 VAND. L. REV. 409 (1990). For discussion of the text and history of the Privileges or Immunities Clause, see GANS & KENDALL, THE GEM OF THE CONSTITUTION, supra. 12 83 U.S. (16 Wall.) 36 (1873). 13 See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1926); Griswold v. Connecticut, 381 U.S. 465 (1965); Loving v. Virginia, 388 U.S. 1 (1967). Crossroads: Reproductive Freedom Page | 2

In Roe, Casey, and many other cases, the Supreme Court has reaffirmed that the Due Process Clause of the Fourteenth Amendment – now sometimes called “the Liberty Clause”14 – secures to all persons “a realm of personal liberty that the government may not enter.” 15 In Casey, in a joint opinion authored by Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, a 5-4 majority of the Court reasoned that the Constitution’s protection of substantive liberty safeguards the right of selfdetermination and autonomy concerning “personal decisions relating to marriage, procreation, contraception, family relationships, and education. . . . These matters, involving the most intimate and personal choices a person may make in a life time, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”16 Casey recognized that women’s reproductive freedom was critical to their equal citizenship. If women were to be self-governing citizens, the State could not “insist upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.”17 Thus, as Justice Ruth Bader Ginsburg put it more recently, “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life course, and thus to enjoy equal citizenship stature.”18 The dissenters in Roe, Casey, and other reproductive freedom cases firmly rejected the notion that the Due Process Clause should be read to protect the right to reproductive freedom. Roe, Casey and others rulings in this area, they charged, were “a new mode of constitutional adjudication that relies not on text and traditional practices to determine the law but upon what the Court calls ‘reasoned judgment,’ which turns out to be nothing but philosophical predilection and moral intuition.”19 There was no basis, they argued, for extending constitutional protection to a right that has no grounding in the traditions of the American people, and was proscribed by the states for many years. As Chief Justice Rehnquist explained in his Casey dissent, “[a]t the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 states and 8 Territories had statutes banning or limiting abortion. By the turn of the century virtually every State had a law prohibiting or restricting abortion on its books. . . 21 of the restrictive laws in effect in 1868 were still in effect in 1973 when Roe was decided . . . . On this record, it can scarcely be said that any deeply rooted tradition . . . supported classification of the right to abortion as ‘fundamental’ under the Due Process Clause . . . .”20


See McDonald v. City of Chicago, 130 S. Ct. 3020, 3091-92 (2010) (Stevens, J., dissenting); Confirmation Hearing on the Nomination of Elena Kagan to be Associate Justice of the Supreme Court (June 29, 2010) (available at http://www.washingtonpost.com/wp-srv/politics/documents/KAGANHEARINGSDAY2.pdf). 15 Casey, 505 U.S. at 847. 16 Id. at 851. 17 Id. at 852. 18 Gonzales, 550 U.S. at 172 (Ginsburg, J., dissenting). 19 Casey, 505 U.S. at 1000 (Scalia, J., concurring in part and dissenting in part). 20 Id. at 952 (Rehnquist, C.J., concurring in part in dissenting in part); id. at 980 (Scalia, J., concurring in part and dissenting in part) (arguing that “the longstanding traditions of American society permit *abortion+ to be legally proscribed”). Crossroads: Reproductive Freedom Page | 3

Further, the dissenters argued that the right to terminate a pregnancy was different from other substantive constitutional rights the Court had recognized. “One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of the fetus.”21 “The whole argument of abortion opponents,” Justice Scalia observed, “is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with . . . is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment.”22 Thus, the dissenters concluded that Roe and the entire line of cases following it should be overruled and “we should get out of this area where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”23

The Emerging Undue Burden Standard
By a 5-4 vote, a narrow majority of the Court in Casey rejected these arguments for overturning Roe, and crafted the “undue burden” standard to govern challenges to restrictive abortion laws. While Justices Kennedy, O’Connor, and Souter joined Justice Harry Blackmun and Justice John Paul Stevens in reaffirming “Roe’s essential holding,”24 the joint opinion departed from Roe in significant measure by giving states broad leeway to enact regulations to promote the state’s interest in the potential life of the fetus throughout pregnancy. Under Casey’s undue burden standard, states may not impose regulations with “the purpose or effect of placing a substantial obstacle in the path of the woman seeking an abortion of an nonviable fetus,”25 but they “may take measures to ensure that the woman’s choice is informed,” including giving truthful, non-misleading information designed to “persuade the woman to choose childbirth over abortion.”26 As the joint opinion put it, “*w+hat is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.”27 As Justice Kennedy later wrote, “Casey . . . struck a balance” giving “the State, from the inception of pregnancy . . . its own regulatory interest in protecting the life of the fetus that may become a child . . . .”28 Citing this balance, Justice Kennedy has consistently sided with the Court’s conservatives in rejecting challenges to abortion regulations.29 Today, the contours of Casey’s undue burden standard are still uncertain. In the last decade, the Court has granted plenary review of cases involving abortion restrictions only twice, in both instances reviewing the constitutionality of laws prohibiting so-called “partial birth” abortions, a method
21 22

Id. at 952 (Rehnquist, C.J., concurring in part and dissenting in part). Id. at 982 (Scalia, J., concurring in part and dissenting in part) (emphasis in original). 23 Id. at 1002 (Scalia, J., concurring in part and dissenting in part). 24 Casey, 505 U.S. at 846. 25 Id. at 877. 26 Id. at 878. 27 Id. 28 Gonzales, 550 U.S. at 146, 158. 29 See, e.g. Webster v. Reprod. Health Servs., 492 U.S. 490 (1989); Rust v. Sullivan, 500 U.S. 173 (1991); Stenberg v. Carhart, 530 U.S. 914, 956-79 (2000) (Kennedy, J., dissenting); Gonzales v. Carhart, 550 U.S. 124 (2007). Crossroads: Reproductive Freedom Page | 4

of abortion used after the first trimester of pregnancy.30 Notably, these laws criminalized “partial birth” abortions even when the prohibited procedure was the one best suited to safeguard the health of the woman. In a pair of sharply divided 5-4 rulings, the Court in 2000 struck down a Nebraska law in Stenberg v. Carhart and then, in 2007, following Justice O’Connor’s retirement and Justice Alito’s confirmation to succeed her, upheld a similar federal ban in Gonzales v. Carhart, with Justice Alito siding with the Stenberg dissenters.31 While the opinion of the Court in Gonzales tried its best to distinguish Stenberg, insisting that the federal ban was narrower than the Nebraska law, Justice Kennedy’s opinion for the Court’s conservative majority effectively overruled the 2000 ruling and rejected its reasoning.32 As the four dissenting Justices observed, “the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of ‘the rule of law’ and the ‘principles of stare decisis.’”33 In Gonzales, Justice Kennedy’s opinion for the Court held that the Partial-Birth Abortion Ban Act (“the Act”) was a constitutionally permissible effort to protect potential life without impinging on the woman’s liberty, consistent with the balance struck in Casey. “Whatever one’s views concerning the Casey joint opinion, it is evident that a premise central to its conclusion – that the government has a legitimate and substantial interest in preserving and promoting fetal life – would be repudiated” were the Court to strike down the federal ban.34 The Court’s five-Justice conservative majority reasoned that the government had ample power to forbid physicians from performing “partial birth” abortions, procedures that Congress singled out as especially gruesome and ethically suspect,35 and that could be particularly emotionally damaging to women who came to regret their decision to have an abortion.36 While recognizing that Casey had reaffirmed that an abortion regulation must contain an exception to protect a woman’s health, Justice Kennedy refused to “interpret*+ Casey’s requirement of a health exception so that it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer,” explaining that the “law need not give abortion doctors unfettered choice in the course of their medical practice . . . .”37 Given the alternative methods of abortion available, Justice Kennedy concluded that the Act did not impose an undue burden. In a sharply worded dissent, Justice Ginsburg, joined by Justices Breyer, Souter, and Stevens, argued that “the Act and the Court’s defense of it, cannot be understood as anything other than an

In two other cases, the Court issued per curiam summary reversals that broke no new legal ground, upholding challenged state laws under the Court’s prior precedents. See Lambert v. Wicklund, 520 U.S. 292 (1997) (upholding Montana’s parental notification requirement with judicial bypass); Mazurek v. Armstrong, 520 U.S. 968 (1997) (upholding Montana statute requiring that abortions be performed by licensed physicians). 31 Stenberg v. Carhart, 530 U.S. 914 (2000); Gonzales v. Carhart, 550 U.S. 124 (2007). Justice O’Connor provided the fifth vote to strike down the Nebraska statute in Stenberg; following her retirement, Justice Alito voted with the dissenters in Stenberg to uphold the federal ban on so-called “partial birth” abortions. 32 Compare Stenberg v. Carhart, 530 U.S. 914 (2000) with Gonzales v. Carhart, 550 U.S. 124 (2007). On stealth overruling, see Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 GEO. L.J. 1 (2010). 33 Gonzales, 550 U.S. at 191 (Ginsburg, J., dissenting). 34 Id. at 145. 35 Id. at 158 (calling the procedure “laden with the power to devalue human life”). 36 Id. at 159-60. 37 Id. at 158, 163. Crossroads: Reproductive Freedom Page | 5

effort to chip away at a right declared again and again by this Court – and with increasing comprehension of its centrality to women’s lives.”38 By upholding the federal ban, Justice Ginsburg explained, “the Court deprives women of the right to make an autonomous choice, even at the expense of their safety” and “for the first time since Roe . . . blesses a prohibition with no exception safeguarding a woman’s health.”39 Justice Ginsburg found the suggestion that the Act furthered any interest in protecting potential life baseless, explaining that the “law saves not a single fetus from destruction for it targets only a method of performing abortion.”40

Possible Developments in the Future
The most dramatic potential future development in the area of reproductive freedom would be if the Court again reviewed and this time overturned “Roe’s essential holding” that the Constitution protects a fundamental right to reproductive choice. This seems unlikely with the current make-up of the Court and, in particular, given Justice Kennedy’s ruling in Casey and his subsequent opinion in Lawrence v. Texas,41 which relied heavily on Casey in protecting a right to intimate sexual conduct. But it certainly is possible that the Court would overturn Roe if Justice Kennedy or one of the Court’s more liberal justices were replaced by the nominee of a conservative President. The more immediate battleground over reproductive choice will almost certainly be the new restrictive state laws, many enacted throughout the country in 2011. These laws push the envelope on the authority Casey gave to the states to ensure that the woman’s decision is informed, some requiring doctors to deliver to women an anti-abortion message, while others require women to view a sonogram of the fetus, or submit to counseling by an anti-abortion crisis pregnancy center. Still others blatantly challenge current Supreme Court precedent, banning abortions after twenty weeks of pregnancy, without any medical evidence that a fetus is viable at that point. In Arizona, Gov. Jan Brewer signed into law a ban that went even further, effectively prohibiting abortion at eighteen weeks by dating a woman’s pregnancy by the first day of her last menstrual period, which occurs two weeks before conception.42 The challenges to these laws, now making their way through the lower federal courts,43 will give the conservative majority of the Roberts Court plenty of opportunities to continue chipping away at women’s right of reproductive freedom.
38 39

Id. at 191 (Ginsburg, J., dissenting). Id. at 184, 171 (Ginsburg, J., dissenting). 40 Id. at 181 (Ginsburg, J., dissenting). 41 539 U.S. 558 (2003). 42 See Amanda Peterson Beadle, Why Arizona’s New Anti-Abortion Bill Is Worse Than It Seems (Mar. 30, 2012) (available at http://thinkprogress.org/health/2012/03/30/455643/why-arizonas-new-anti-abortion-bill-is-worsethan-it-seems/). 43 th See, e.g. Planned Parenthood Minnesota v. Rounds, 653 F.3d 662 (8 Cir.) (striking requirement that physician th inform a woman of increased suicide risk from obtaining abortion), reh’g en banc granted, 662 F.3d 1072 (8 Cir. th 2011); Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5 Cir. 2012) (reversing preliminary injunction against Texas sonogram statute); Stuart v. Huff, 2011 WL 6330668, No. 1:11CV804 (M.D.N.C. Dec. 19, 2011) (preliminarily enjoining North Carolina statute requiring a physician, before performing an abortion, to show the woman an ultrasound of her fetus and describe the images seen on the ultrasound); Planned Parenthood Minnesota v. Daugaard, 799 F.Supp.2d 1048 (D.S.D. 2011) (preliminarily enjoining South Dakota statute requiring woman to submit to counseling by crisis pregnancy center). Crossroads: Reproductive Freedom Page | 6

For example, the Court could uphold the some or all of the new abortion counseling laws on the basis of the precedents in Casey and Gonzales, reasoning that that state has wide latitude to dissuade a woman from terminating the life of the fetus, including by requiring her to be told of all of the conceivable risks of the procedure, by requiring that she view a sonogram of the fetus, or by requiring that she consult with a third party who can offer a different perspective on the decision.44 Indeed, in Gonzales, Justice Kennedy already accepted the idea that “some women come to regret their choice to abort the infant life they once created and sustained,” necessitating a substantial role for states “in ensuring *that+ so grave a choice is well informed.”45 In the cases seeking to invalidate these recent laws, plaintiffs have challenged them not merely as creating undue burdens on women, but also as a violation of the physician’s First Amendment right to be free from government-mandated speech, seeking to take advantage of the fact that the Roberts Court has aggressively expanded First Amendment rights in other areas such as campaign finance law and commercial speech.46 Were the Court to apply Sorrell v. IMS Health and conclude that these new abortion regulations must be subject to “heightened scrutiny” because they enact “speaker- and content-based burden on protected expression,”47 that go well beyond the requirements of informed consent and established medical practice, it is likely that these new measures would be invalidated.48 But so far, the Supreme Court has refused to place any First Amendment checks on the authority of the states to regulate abortion, noting in Casey that the “physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable and licensing and regulation by the State.”49 In Gonzales, the Court’s conservative majority rejected the idea that physicians had constitutional rights to practice medicine that trumped state regulation to the contrary, explaining that “the State has a significant role to play in regulating the medical profession” and that “the law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other members of the medical community.”50 These statements suggest that First Amendment claims may not fare any better than undue burden claims in the Roberts Court. It is even possible that the conservative Justices on the Roberts Court would uphold the new twenty-week bans on abortion, perhaps citing legislative findings that current medical technology shows that, at twenty weeks, a fetus is capable of feeling pain, though not viable outside the womb. Upholding these recent state bans on abortion after twenty weeks, of course, would require Justice Kennedy to join in overruling the Court’s holdings in Roe, Casey, and other cases that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on . .
44 45

See Texas Medical Providers, 667 F.3d at 574-76 (relying heavily on Casey and Gonzales). Gonzales, 550 U.S. at 159. 46 See, e.g Citizens United v. FEC, 130 S. Ct. 876 (2010); Sorrell v. IMS Health. Inc., 131 S. Ct. 2653 (2011). For discussion, see Crossroads Chapter 4 (“The First Amendment, Political Speech, and the Future of Campaign Finance Laws”) & Chapter 6 (“Protecting Commercial Speech and Privacy in the Internet Age”). 47 Sorrell, 131 S. Ct. at 2667. 48 See Stuart, 2011 WL 6330668 at **2-6 (applying strict scrutiny in preliminarily enjoining requiring physician to display to a woman seeking an abortion an ultrasound of the fetus). 49 Casey, 505 U.S. at 884. 50 Gonzales, 550 U.S. at 157, 163. Crossroads: Reproductive Freedom Page | 7

. abortions,”51 a step he may be reluctant to take. But Justice Kennedy has already demonstrated a willingness to narrow Roe considerably and might be persuaded to depart from Roe’s viability line on the ground that that states should have the authority to balance the interests of the woman and the fetus in a way that respects the woman’s right up until the point that the fetus may feel pain from the procedure. No less than at viability, Justice Kennedy might reason, “a woman who fails to act” after twenty weeks of pregnancy “has consented to the State’s intervention on behalf of the developing child.”52 If the composition of the Court changes and moves the Court in a more conservative direction, conservative state legislatures would likely respond by passing a new wave of restrictive laws, some possibly going so far as to ban abortion outright. With another conservative Justice on the bench, the Roberts Court would be in a position to significantly scale back constitutional protection for a woman’s right to reproductive freedom, if not reconsider Roe and Casey. To date, the Roberts Court has appeared content to avoid most questions on the hot-button topic of reproductive rights. The Court has only granted review of one abortion case since John Roberts was confirmed as Chief Justice – Gonzales v. Carhart – and in that case, Justice Kennedy had already staked out his position that the government may prohibit the type of abortion procedure labeled a “partial birth” abortion. But this relative quiet on this divisive front is unlikely to continue. New state laws will almost force the current Court to address new questions under Casey’s undue burden test, and changes in the Court’s composition, should they occur, could again put the essential holding of Roe very much in play.

51 52

Casey, 505 U.S. at 860. Id. at 870. Page | 8

Crossroads: Reproductive Freedom

Federalism and Immigration: Will the Court  Choose Federal Uniformity or States’ Rights  in Immigration Law? 
The Constitution at a Crossroads 

During the oral arguments in Arizona v. United States, the challenge to Arizona’s aggressive  immigration enforcement law, the Supreme Court’s Justices displayed a keen interest in the tension  between state sovereignty and the federal government’s authority to set uniform naturalization and  immigration law.  The following exchange between Justice Antonin Scalia and Solicitor General Donald B.  Verrilli, Jr., is a prime example of this immigration‐federalism debate:  JUSTICE SCALIA: [T]he government can set forth the rules concerning who belongs in this country.  But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power?  What does sovereignty mean if it does not include the ability to defend your borders?  GENERAL VERRILLI:  Your Honor, the Framers vested in the national government the authority over  immigration because they understood that the way this nation treats citizens of other countries is a  vital aspect of our foreign relations.1   * * *  JUSTICE SCALIA: . . . . [But] [t]he Constitution recognizes that there is such a thing as state borders,  and the states can police their borders . . . .  GENERAL VERRILLI: But they cannot do what Arizona is seeking to do here, Your Honor, which is to  elevate one consideration above all others. Arizona is pursuing a policy that—that maximizes the  apprehension of unlawfully present aliens, so they can be jailed as criminals in Arizona, unless the  Federal government agrees to direct its enforcement resources to remove the people that Arizona  has identified.2  The constitutional objectives of state sovereignty and federal uniformity—and the clash  between these objectives—have grown increasingly important in immigration law.  Recently, a number  of states, notably Arizona3 and Alabama,4 have enacted immigration laws that threaten to encourage 

 Arizona v. United States, No. 11‐182, tr. at 35 (April 25, 2011).   Id. at 36.  3  Support Our Law Enforcement and Safe Neighborhoods Act, S.B. 1070, amended by H.B. 2162 (Ariz. 2010).  4  Alabama Taxpayer and Citizen Protection Act of 2011, Ala. Laws 535, et seq. (2011).  See also Ga. Code §§ 16‐5‐ 46, 17‐5‐100 (2011); S.C. Code §§ 16‐9‐460, 23‐6‐60 (2011); Miss. Code § 71‐11‐3(c)(i) (2011). 
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racial profiling and discrimination by law enforcement officers, landlords, and businesses, as well as  result in the unlawful detention of U.S. citizens “suspected” of being undocumented.  The states,  however, assert that they are merely stepping in to do what the federal government has failed to  accomplish—namely, deter and arrest unlawful migrants—and that these “attrition through  enforcement” policies mirror federal standards.  More broadly, these states argue that our  Constitution’s system of federalism preserves an inherent state authority to enforce immigration laws  and police their own borders.  This spate of aggressive state immigration laws will require the Supreme  Court to clarify the federal government’s authority over immigration law, on the one hand, and the  powers preserved for the states on the other.    Indeed, the Court is at this moment considering these issues as it crafts its decision, likely to be  handed down very soon, in Arizona’s appeal from the injunction against key provisions of Arizona’s  “show me your papers” law, SB 1070, issued by a federal district court and upheld by the U.S. Court of  Appeals for the Ninth Circuit.5  The Roberts Court has been ideologically split over the content and  contours of immigrants’ rights, as well as the balance of power between the states and the federal  government on immigration issues.  The Court recently upheld the Legal Arizona Worker’s Act in  Chamber of Commerce v. Whiting,6 with the conservative Justices voting in favor of upholding the Act,  and the more liberal Justices dissenting.7  While Whiting is a relatively narrow ruling based on specific  statutory language, conservatives see a broader story emerging.8  Kris Kobach, co‐author of the anti‐ immigrant laws in Arizona and Alabama, has claimed that, “[a]lthough the Supreme Court’s decision in  Whiting did not directly address Arizona’s SB 1070, it greatly boosts the prospects of success not only for  that law, but also for immigration‐enforcement bills in a number of states.”9  In the wake of oral  arguments in the SB 1070 case, opponents of “attrition through enforcement” laws are concerned that  Kobach may be right.10    With the Arizona case, the Court has the opportunity not only to substantially affect the  conditions under which immigrants live in the United States, but also to significantly reshape the way  principles of federalism and preemption apply in the immigration context.  The Constitution’s  federal/state balance of power in the context of immigration law is at a crossroads. 

Text and History: Immigration and Citizenship 
Through several provisions, the Constitution delegates the power to regulate immigration and  naturalization to the federal government.  First, the Constitution provides that “Congress shall have 

 United States v. Arizona, 641 F.3d 339 (9th Cir. 2011).   131 S. Ct. 1968 (2011).  7  The vote was 5‐3; Justice Elena Kagan recused.  8  Kris Kobach, Law and Border, National Review, July 4, 2011, available at  http://www.nationalreview.com/articles/271090/law‐and‐border‐kris‐w‐kobach?pg=2  9  Id.  10  See, e.g., Adam Liptak, Justices Seem Sympathetic to Central Part of Arizona Law, April 25, 2012, available at  http://www.nytimes.com/2012/04/26/us/considering‐arizona‐immigration‐law‐justices‐are‐again‐in‐political‐ storm.html?_r=1&ref=arizonaimmigrationlawsb1070 


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Power To . . . . establish an uniform Rule of Naturalization . . . throughout the United States.”11  As James  Madison explained, this provision was included in the Constitution to improve upon the flawed Articles  of Confederation:  

The dissimilarity in the rules of naturalization has long been remarked as a fault  in our system, and as laying a foundation for intricate and delicate questions. . . .  The  new  Constitution  has  accordingly,  with  great  propriety,  made  provision  against them, and all others proceeding from the defect of the Confederation on  this head, by authorizing the general government to establish a uniform rule of  naturalization throughout the United States.12  Significantly, Alexander Hamilton specifically used the federal power over immigration and  naturalization to illustrate a constitutional authority granted to the federal government that would be  “repugnant” and “contradictory” if exercised by a state.13  Referring specifically to the “clause which  declares that Congress shall have power ‘to establish an UNIFORM RULE of naturalization throughout  the United States,’” Hamilton explained that “[t]his must necessarily be exclusive; because if each State  had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.”14  Furthermore, because immigration laws affect foreign nationals within U.S. borders, they are  also a component of foreign affairs.  Congress has authority to “regulate Commerce with foreign  Nations” under the Commerce Clause,15 and the federal government has broad power under the Foreign  Affairs Clauses.16  As the Supreme Court has held, “the supremacy of the national power in the general  field of foreign affairs, including power over immigration, naturalization and deportation, is made clear  by the Constitution,” its history, and precedent.17  From our Constitution’s very beginnings, then, it was 

 U.S. CONST. art. I., § 8, cl. 4.   Federalist No. 42, 265‐66, 267 (James Madison).  See also THE  RECORDS  OF  THE  FEDERAL  CONVENTION  OF  1787 (Max  Farrand, ed.) (1911), Aug. 9, 1787 (statement of James Madison) (acknowledging that “the [National Legislature] is  to have the right of regulating naturalization”); id., Aug. 13, 1787 (statement of Alexander Hamilton) (“The right of  determining the rule of naturalization will then leave a discretion [sic] to the Legislature on this subject which will  answer every purpose.”).  13  Federalist No. 32, at 194.  See also Hines v. Davidowitz, 312 U.S. 52, 68 & n.22 (1941) (distinguishing between the  more robust preemption of state regulation regarding the rights and liberties of aliens, where power has been  exclusively granted to the federal government under the Constitution, and state regulation in areas “where the  Constitution does not of itself prohibit state action, as in matters related to interstate commerce,” such as “state  pure food laws regulating the labels on cans”).  14  Federalist No. 32, 195 (emphasis in original).  15  U.S. CONST. art. I, § 8, cl. 3.  16  These Clauses include the power to declare war, found in Article I, Section 8, Clause 11, the Senate’s power to  advise and consent to the appointment of ambassadors, found in Article II, Section 2, Clause 2, and, finally, the  presidential power to make treaties with the advice and consent of the Senate, found in Article II, Section 2, Clause  2.  17  Hines, 312 U.S. at 62 & n.9 (noting how “[t]he importance of national power in all matters relating to foreign  affairs and the inherent danger of state action in this field are clearly developed in Federalist papers No. 3, 4, 5, 42  and 80”).   
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Crossroads: Immigration 


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understood that the federal government’s power over immigration would preempt efforts by the states  to regulate immigration and naturalization.18  Of course, our constitutional structure of government also holds fast to the idea that, as James  Madison explained, “[t]he powers reserved to the several States will extend to all the objects, which, in  the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal  order, improvement, and prosperity of the State.”19  This residual sovereignty in the states preserves  state authority over the public health and safety of the states’ citizens, unless the federal government  has displaced state authority pursuant to the Supremacy Clause.  Indeed, in the absence of a strong  federal presence in the immigration field, some states directly regulated immigration and citizenship  within their borders during the early years of the nation.20  However, the changes made to the Constitution by the Fourteenth Amendment underscored  the federal government’s exclusive power over immigration, naturalization, and citizenship.  Drafted in  1866 and ratified in 1868, the Fourteenth Amendment made national and state citizenship a right of all  persons born or naturalized in the United States and extended to all persons residing in the United  States guarantees of equal protection of the laws and due process of law.  Operating in tandem with the  Naturalization Clause, the Fourteenth Amendment took away the power of states to decide whether  persons—either native or foreign‐born—would become citizens.21    While the Fourteenth Amendment clarified that the states had no power over citizenship, the  debate over how the Constitution’s principles of federalism interact with expressly delegated  immigration authority has continued.  Even in areas where the Constitution clearly delegates authority  to the federal government, supporters of the recent wave of state immigration laws point to evidence  that the drafters of our Constitution expected local law enforcement officers to carry out federal law— even if the states do not have the constitutional authority over the substance of the law.  For example,  Madison suggested in Federalist 45 that federal tax collection “will generally be made by the officers, 

 While the Constitution refers to “naturalization,” not immigration specifically, the Supreme Court has long  recognized that the Naturalization Clause also gives Congress exclusive authority to enact the “specialized  regulation of the conduct of an alien before naturalization,” and that “the supremacy of the national power in the  general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by  the Constitution.”  Hines, 312 U.S. at 62.  Justice Scalia acknowledged during the argument over Arizona’s SB 1070  that the Constitution’s reference to “naturalization” has been interpreted to encompass immigration policy more  generally.  Arizona, tr. at 35.  19  Federalist No. 45, 292‐93.  20  See Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996).  21  Other aspects of the Fourteenth Amendment further extended Congress’s power over immigration at the  expense of the states.  The Fourteenth Amendment specifically grants Congress the power to enforce its  guarantees.  U.S. CONST. amend. XIV, § 5 (“The Congress shall have the power to enforce, by appropriate  legislation, the provisions of this article.”).  Within two years of the Amendment’s ratification, Congress used its  enforcement power to protect the constitutional rights of resident aliens, rejecting charges that Congress was  improperly “strik[ing] entirely at the police power of the States over the subject of immigration.”  Cong. Globe, 41st  Cong., 2nd Sess. 1536 (1870) (Sen. Casserly).  States could not use their police power “to rob” immigrants “of their  ordinary civil rights.”  Cong. Globe, 41st Cong., 2nd Sess. 3658 (1870).  See also In re Ah Fong, 1 F. Cas. 213, 218  (C.C.D. Cal. 1874) (holding California statute regulating arrival of Chinese immigrants preempted by the federal  Enforcement Act of 1870) (opinion of Field, J.).  Crossroads: Immigration    Page | 4 


and according to the rules, appointed by the several States.”  States even played a role in immigration  law during the early years of our nation, with the federal government relying on state courts to “record  applications for citizenship” and “to register aliens seeking naturalization.”22  The federal government,  however, reads the Constitution as prohibiting states from second‐guessing Congress’s chosen method  of how—and through whom—it implements its delegated powers.23   

Federal Power, Immigrants’ Rights, and the Supreme Court 
In several early cases, the Supreme Court recognized the exclusive authority of the federal  government on matters of immigration and naturalization.   In Chirac v. Chirac, 24 for example, Chief  Justice John Marshall declared that “the power of naturalization is exclusively in Congress,” and held  that a federal treaty between France and the United States defining the property rights of French  immigrants residing in the United States preempted a Maryland law to the contrary.  Six decades later,  in Chy Lung v. Freeman, a unanimous Court affirmed that “[t]he passage of laws which concern the  admission of citizens and subjects of foreign nations to our shores belong to Congress, not the States.”25   In the Court’s view, this specifically delegated federal authority, together with guarantees of the  Fourteenth Amendment, sharply limit the authority of states to “deny [aliens] entrance and abode.”26   While Chy Lung was unanimous, in other cases a minority of Justices rejected this broad view of  congressional power and insisted that each of the states “had the sole and exclusive right to judge for  herself whether any evil was to be apprehended from the introduction of alien passengers from foreign  countries” and “had a right to exclude them if she thought proper to do so.”27    This tension between Justices who seek to preserve federal uniformity in the area of  immigration and naturalization, and those who are just as, if not more, concerned with protecting state  sovereignty, continues to this day.  In modern cases, this tension has mainly played out in cases dealing  with how the Court’s rules for preemption of state law are applied in the immigration context.  Justices  favoring federal uniformity have argued for broad preemption of state immigration laws and imposed a  burden on the states to show that state laws are harmonious with federal laws in this area.  Justices  favoring state sovereignty have insisted that it is the federal government’s burden to show that state  laws are incompatible with federal statutes.  For example, in 1941, in Hines v. Davidowitz, the Supreme Court struck down a Pennsylvania  statute that required aliens to register with the state, carry a state identification card, and pay a nominal  annual fee.  Writing for a six‐Justice majority, Justice Hugo Black stated that “specialized regulation of  the conduct of an alien before naturalization is a matter which Congress must consider in discharging its  constitutional duty ‘To establish an Uniform Rule of Naturalization . . . .’”28  The Court concluded that 

22 23

 Printz v. United States, 521 U.S. 898, 905‐06 (1997) (discussing laws).   Brief for the United States, Arizona v. United States, at 24.  24  Chirac v. Chirac, 15 U.S. 259, 269 (1817).  25   Chy Lung v. Freeman, 92 U.S. 275, 280 (1876).  26  Truax v. Raich, 239 U.S. 33, 42 (1915).  27   Passenger Cases, 48 U.S. 283, 468 (1849) (Taney, C.J., dissenting).  28  312 U.S. 52, 66 (1941).    Crossroads: Immigration    Page | 5 


“the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and  continuously existing concurrent power of state and nation, but that whatever power a state may have  is subordinate to supreme national law.”  Dissenting in Hines, Justice Harlan Stone argued that the Court  had erred by broadly interpreting federal immigration law to preempt state regulation in this area and  by failing to recognize that “after entry, an alien resident within a state . . . is subject to the police  powers of the state . . . .”29  Stone argued that the Court should have followed “the long established  principle of constitutional interpretation that an exercise by the state of its police power . . . is  superseded only where the repugnance or conflict is so ‘direct and positive’ that the two acts cannot ‘be  fairly reconciled or consistently stand together.’”30    In his opinion for a unanimous Court in the 1976 case DeCanas v. Bica,31 Justice William Brennan  attempted to stitch together the various threads of the majority and dissent in Hines.  The Court  reiterated that the “[p]ower to regulate immigration is unquestionably exclusively a federal power,”32  which includes authority over who “shall be admitted,” the “period they may remain,” “regulation of  their conduct before naturalization,” and the “conditions of their naturalization.”33  At the same time,  however, the Court explained that it “has never held that every state enactment which in any way deals  with aliens is a regulation of immigration and thus per se pre‐empted.”34  Reconciling these competing  state‐federal interests, the DeCanas Court noted that Congress had not enacted legislation addressing  sanctions against employers who knowingly hire unauthorized migrants, and thus upheld California’s  statute imposing such sanctions as “harmonious with federal regulation.”35   The “harmony” on the Court in DeCanas did not last long.  Six years later, in Toll v. Moreno, the  Court struck down a Maryland policy that denied in‐state tuition benefits to certain classes of aliens  resident in the state.  Justice Brennan, again writing for the majority, reaffirmed the “preeminent role of  the Federal Government with respect to the regulation of aliens within our borders,” and found that a  discriminatory state tuition policy was preempted in the absence of evidence that “Congress ever  contemplated that a State . . . might impose discriminatory tuition charges and fees solely on account of  the federal immigration classification.”36  In a long and spirited dissent, then‐Justice William Rehnquist,  joined by Chief Justice Warren Burger, criticized the majority for failing to apply a “presumption against  preemption” and observed that “neither Congress’ unexercised constitutional power over immigration  and naturalization, nor its exercise of that power in passing the INA, precludes the States from enforcing  laws and regulations that prove burdensome to aliens.”37   The majority and dissenting opinions in Toll define the contours of the ideological dispute over  the federal/state balance in immigration law that is playing out in United States v. Arizona today.  In Toll, 

29 30

  Hines, 312 U.S. at 76 (Stone, J., dissenting).    Id. at 80 (Stone, J., dissenting) (quoting Sinnot v. Davenport, 63 U.S. 227, 243 (1859)).  31   424 U.S. 351 (1976).  32  Id. at 354.  33  Id. at 358 n.6 (quoting Takahashi, 334 U.S. 410, 419 (1948).  34  Id. at 355.  35  Id. at 356.  36  458 U.S. 1, 10, 17 (1982).  37   Toll, 458 U.S. at 27 (Rehnquist, J., dissenting).  Crossroads: Immigration    Page | 6 


Justice Brennan’s majority opinion explained that DeCanas was the rare example of a statute that  survived the broad rule of preemption of state regulation because “Congress intended that the States be  allowed” to regulate the employment of illegal aliens.38  In dissent, Justice Rehnquist read DeCanas  broadly, arguing that it supported his view that the “federal power over immigration and naturalization”  does not “preclude[e] the States from enforcing laws and regulations that prove burdensome to  aliens.”39   The question now is whether the Roberts Court will maintain the strong and exclusive federal  power over immigration or move the law in line with then‐Justice Rehnquist’s arguments in dissent,  holding that states have inherent power to protect their own borders and that federal courts should be  hesitant to strike down state regulation as preempted by federal immigration law. 

The Arizona Cases and the Roberts Court 
One year ago, in Chamber of Commerce v. Whiting,40 an ideologically divided 5‐3 majority of the  Roberts Court—Justice Elena Kagan recused—rejected claims by business and civil rights groups that  Arizona’s 2007 Legal Arizona Workers Act (LAWA) intrudes upon federal immigration policy regarding  aliens’ employment.  While Whiting addressed a fairly narrow statutory question and did not fully  address the broader constitutional questions about the respective roles of the federal and state  governments with respect to immigration, the decision was closely watched for clues about how the  Court would address the wider ranging attempts by states, including Arizona, to deal with perceived  problems associated with illegal immigration.  The clues given by the Court’s majority were not  encouraging to opponents of these state laws.    Whiting involved the meaning of the express preemption provision of the Immigration Reform  and Control Act (IRCA), which prohibits state and local governments from enforcing “any law” that  imposes punishment on those who hire unlawful aliens, but allows state and local governments to  impose sanctions by “licensing and similar laws.”  The Whiting majority opinion, authored by Chief  Justice John Roberts and joined by Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas (in part),  and Samuel Alito, read IRCA’s “licensing” exception broadly and LAWA’s sanctions narrowly, finding that  Arizona’s law imposing more onerous penalties than federal law does for hiring unlawful aliens “fall[s]  squarely” within IRCA’s “licensing” exception.  In the majority’s view, by narrowly drafting LAWA to  closely follow federal law, “Arizona has taken the route least likely to cause tension with federal law.”41  The dissenting opinions, authored by Justices Stephen Breyer (joined by Justice Ruth Bader  Ginsburg) and Sonia Sotomayor, disagreed.  They interpreted LAWA as conflicting with the federal  regime for controlling employment of unauthorized migrants.  As Justice Breyer wrote, Arizona’s law  would “undermin[e] Congress’s efforts (1) to protect lawful workers from national‐origin‐based 

38 39

  Toll, 458 U.S. at 13 n.18.    Id. at 27 (Rehnquist, J., dissenting).  40  131 S. Ct. 1968 (2011).  41  Id. at 1987.  Crossroads: Immigration    Page | 7 


discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.”42  In  her separate dissent, Justice Sotomayor invoked Congress’s express goal of “uniform enforcement of the  immigration laws of the United States,”43 and observed that it was implausible that “Congress intended  for the 50 States and countless localities to implement their own distinct enforcement and adjudication  procedures for deciding whether employers have employed unauthorized aliens.”44   This Term, the Court is revisiting these issues in a far more significant case, Arizona v. United  States, which stems from Arizona’s controversial SB 1070 law.  SB 1070 requires local law enforcement  officers to verify the immigration status of any person whom they stop or detain whenever “reasonable  suspicion” exists that the person might be illegally present in the United States, makes it a crime to be in  the state without immigrant registration papers, makes it a crime for an undocumented immigrant to  seek employment in Arizona, and authorizes police to make a warrantless arrest if they encounter  someone they believe has committed a crime that could lead to deportation.  These provisions were  blocked from going into effect by a federal district court in Arizona because they were likely to be  preempted by federal law, and the Ninth Circuit upheld the injunction.  In the Supreme Court, Arizona has sweepingly asserted that “Arizona officials have inherent  authority to enforce federal law.”45  Taking a page from Justice Rehnquist’s dissent in Toll, Arizona has  argued that the Court should apply the presumption against preemption to uphold Arizona’s regulation,  making the point that SB 1070 and its focus on “attrition through enforcement” is “parallel” to federal  law, and does not conflict “with any identifiable federal statute.”46  This argument was made again and  again by former George W. Bush Solicitor General Paul Clement during oral argument:  in SB 1070,  Arizona adopted the federal standards as its own, and is merely enforcing federal law.  Hence, Arizona  argues that a clear and direct conflict between state and federal law—a key ingredient of any  preemption claim—is missing.  Arguing for the United States, Solicitor General Donald Verrilli countered this argument by  detailing the ways in which Arizona’s decision to enact its own immigration policy runs up against  federal immigration law and frustrates the Executive discretion that is necessary to balance the myriad  concerns of immigration law, such as foreign affairs, deployment of limited resources, and humanitarian  concerns.  The United States also emphasized, in its briefs and at oral argument, the Constitution’s text,  history, and structure.  Pushing back on Arizona’s argument that states have a role to play in protecting  their borders, the Solicitor General argued that the Constitution unmistakably gives the federal  government exclusive power to regulate immigration and consider the foreign policy implications of  how the nation treats non‐citizens within its borders.  General Verrilli argued that the enjoined  provisions of SB 1070 were trumped by federal law under doctrines of field and conflict preemption. 

42 43

 Id. (Breyer, J., dissenting).   Id. at 2003 (Sotomayor, J., dissenting) (quoting IRCA, § 115, 100 Stat. 3384) (internal quotation marks and  alteration omitted).  44  Id.  45  Brief of Petitioners, Arizona v. United States, at 23.  46  Id. at 26.  Crossroads: Immigration    Page | 8 


The Court’s ruling in Arizona v. United States is expected before the end of June, and it could  have a profound impact on how principles of federalism apply in the immigration context.  A majority on  the Court has never embraced the concept of inherent state authority to enforce immigration law or a  presumption against preemption in the immigration context.   Should it do so now, such a change in the  baseline rules would effectively allow states, including Arizona, to choose how to enforce immigration  law within their borders, unless and until Congress acted to overturn these state policy choices.  While  such congressional action is certainly possible, gridlock seems more likely in Congress on this issue for  the foreseeable future, leaving states free to pursue policies such as Arizona’s goal of achieving  “attrition through enforcement.”  In its Arizona ruling, the Court could make the federal government  work much harder to ensure that its myriad, weighty interests in immigration law and policy—from  foreign affairs to due process—are respected in the states.  In a long line of rulings going back to the 19th Century, the Supreme Court has consistently held  that the federal power over immigration and naturalization is plenary and exclusive, and that the role of  states must be significantly limited to ensure a uniform federal policy.  If the Court reverses course in  Arizona, the Constitution’s balance of power between federal and state governments on immigration  policy, and the rights of immigrants within our borders, could be in for a major shift.  


Crossroads: Immigration 


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