Eugene Volokh's Blog, page 2574
April 2, 2012
President Obama's Comment About The Health Care Case
In a press conference today with the President of Mexico and the Prime Minister of Canada, President Obama was asked the following question by a reporter:
After last week's arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who've become insured as a result of the law?
President Obama responded, in relevant part:
With respect to health care, I'm actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close case.
. . .
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step.
Taken in context, President Obama's statement strikes me as pretty much what you'd expect a politician to say in such circumstances. He's confident that his side will win because he has the precedents on his side. He's confident his side will win because it would be an example of judicial activism to strike it down, which conservatives are supposed to oppose. One can of course question the President's characterizations. One obvious mischaracterization is Obama's statement that "two very conservative appellate court justices . . . said this wasn't even a close case." Assuming that refers to Judges Sutton and Silberman, I don't think that's a fair characterization of their opinions (especially Sutton's, which struggled openly with the question). And other statements strike me as debatable, too. At the same time, these strike me as the kind of minor mischaracterizations that are so common in political life as to not merit much attention.
Is it strange that a President would discuss a pending Supreme Court case during a press conference? I haven't checked the archives for past examples, but it does seem rather unusual. At the same time, it's also unusual for the Supreme Court to hold six hours of oral argument to consider striking down the signature legislative achievement of a sitting president who is a former professor of constitutional law. As David Bernstein once noted, Obama has "thought a lot about constitutional history." Presumably he has strong views about the mandate litigation. I don't know if it was politically wise to make those comments, but I suppose I can understand why a former con law professor would find it hard to pass up the opportunity.
In his post below, my co-blogger David Kopel excerpts one sentence of the speech — the one in which Obama said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress" — and he interprets it as advocating a new and novel theory of judicial review. According to David, Obama was advocating a remarkable new theory that judicial review does not exist for federal statutes passed with a "strong majority" of members of Congress.
But this strikes me as a rather obvious misinterpretation of what Obama said. If you're not convinced, watch the video of this part of Obama's statement:
Obama was pausing repeatedly and looking for the right word, and the delay in time it took for that sentence to come out makes clear that Obama is making two distinct points in that sentence. The first point is that he's confident that the Supreme Court will not take the unprecedented and extraordinary step of striking down the ACA; and the second point was that the ACA was passed by a strong majority of a democratically elected Congress. Again, one can disagree with these characterizations — the "strong majority" line seems particularly puzzling. And it's a terribly inarticulate sentence, which Obama seems to realize as he's speaking (note the pauses and rather pained facial expressions as he tries to get the sentence out). But I don't think it's remotely plausible to read that passing statement as advocating a new theory of judicial review.
President Obama versus the Constitution
President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, "Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
His factual claims are false. His principle is a direct assault on the Constitution's creation of an independent judicial branch as a check on constitutional violations by the other two branches.
It is certainly not "unprecedented" for the Court to overturn a law passed by "a democratically elected Congress." The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)
President Obama can call legislation enacted by a vote of 219 to 212 a "strong" majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a "strong" majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.
That the Supreme Court would declare as unconstitutional congressional "laws" which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution's advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Because Hamilton was the foremost "big government" advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.
Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court's authority to judge the statutes' constitutionality was not disputed.
It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress's interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a "strong" 50.3% majority of a democratically elected Congress.
As a politician complaining that a Supreme Court which should strike down laws he doesn't like, while simultaneously asserting that a judicial decision against a law he does like is improperly "activist," President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a "strong" majority of Congress are unreviewable, President Obama's word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a "strong" majority of Congress can exempt a statute from judicial review. President Lincoln's First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)
Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.
President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States. You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.
The People gave Congress the enumerated power "To regulate Commerce . . . among the several States." According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.
President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the "strong" majority of 219 out of 435 Representatives.
The Ethics of Advocacy Blogging
Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of "shaping the narrative" about the case, and may not have actually believed what they said. Paul Horwitz of Prawfsblawg suggests that such advocacy blogging (at least by legal academics) is unethical.
In one sense, all blogging that expresses a position on a controversial issue is "shaping the narrative." Whenever I write a post on a disputed issue, whether it be the individual mandate or the politics of The Hunger Games, part of my purpose is to persuade readers that I'm right and competing views wrong. I don't think there is anything unethical about engaging in such efforts at persuasion. Indeed, they are part of what makes blogging – including blogging by academic experts – a useful enterprise.
At the same time, Horwitz is right to suggest that it is wrong for an academic to publicly "assert… with confidence a view that one doesn't really believe, or doesn't believe with that degree of confidence" for the purpose of influencing public opinion. Doing so attaches the veneer of academic respectability to an opinion that isn't actually backed by the scholar's expert judgment.
As I said in my previous post on this subject, I don't think this is what most of the liberal commentators who claimed that the mandate was an easy case actually did. I believe that they meant what they said and said what they meant.
And, for what it is worth, I myself have never said anything in a VC post that I didn't actually believe at the time I said it. Can I definitively prove that? Obviously not. I'm the only one who knows what I really think, and even I don't remember my exact state of mind at the time I wrote every one of the hundreds of blog posts and dozens of op eds I've written over the six years I have blogged for the VC.
However, I will note that I have often said things that weren't helpful to the position I was defending at the time. For example, I would not have initially expressed the view that the individual mandate was covered by Gonzales v. Raich, or later called attention to my change of mind on this point. The former post was written before the mandate litigation began, but at a time when it was becoming clear that lawsuits against the mandate were likely to be filed should it pass. Similarly, I would not have repeatedly predicted that the Supreme Court was more likely to uphold the mandate then strike it down (e.g. – here), or pointed out flaws in some of the lower court decisions striking down the mandate (e.g. – in my analysis of the very first such decision).
The issue on which I have probably had the most involvement in public debate was the controversy over Kelo v. City of New London and its aftermath. In my writings on that subject (most recently here), I pointed out that Kelo was consistent with previous Supreme Court precedent which already allowed the government to condemn property for almost any reason (though I also noted that Kelo could have been decided the other way without completely overruling those earlier precedents). From a "shaping the narrative" point of view, it would have been more effective to portray Kelo as a radical new departure. In my view, however, the case was actually an opportunity for the Court to correct – or at least cut back on – some egregious errors from previous decisions.
I have also foregone making plausible claims that might help my cause, but which I did not believe to be true. For example, some mandate opponents have argued that the federal government's shift away from its Commerce Clause argument to put greater emphasis on the Necessary and Proper Clause and the Tax Clause was a sign of desperation, or at least declining confidence in the commerce argument. I did not believe there was any proof of this (making every plausible argument for your side is just good lawyering), so I didn't say it, even though it might have helped "shape the narrative" in our favor.
The President vs. the Court
At a joint press conference today with President Calderon of Mexico, and Prime Minister Harper of Canada, President Obama was asked whether, in light last week's oral arguments, he was concerned the Supreme Court might strike down the individual mandate or other portions of his health care reform law. According to the White House transcript, he responded:
With respect to health care, I'm actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close case.
I think it's important — because I watched some of the commentary last week — to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions. . . .
And I think it's important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. . . .
I'm confident that this will be upheld because it should be upheld. And, again, that's not just my opinion; that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency.
Gerald Magliocca believes these comments were "foolish" and akin to throwing rocks at tigers.
Is lecturing the Court while the case is under submission the best way to persuade, say, Justice Kennedy? The same Justice Kennedy who wrote Citizens United and was called out by the President at the State of the Union Address? Sometimes "No comment" is the best answer.
President Obama was not always opposed to the Supreme Court "overturning a law that was passed by a strong majority of a democratically elected Congress." In 2008, while running for President, then-Senator Obama praised the Supreme Court's Boumediene decision, which overturned bipartisan national security legislation. According to the June 13, 2008 Los Angeles Times he called the decision "an important step toward reestablishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus" and praised the Court's rejection of President Bush's "attempt to create a legal black hole at Guantanamo."
Scholar-Bloggers as Secret Advocates
Over at Prawfs, Paul Horwitz has a provocative post criticizing lawprofs who have commented on the health care cases as advocates without saying so — and specifically, lawprofs who have been formally writing as scholars but really writing as advocates with a goal of "shaping the narrative" of opinion on the constitutional challenge to the mandate:
[T]here is . . . something wrong about yoking one's reputation as a scholar and expert to the non-scholarly end of "shaping the narrative." I'm not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.
Does that mean no scholar is permitted to try to "shape the narrative" through blogging and other commentary, or that there's something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one's obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; "shaping the narrative" is no defense to asserting with confidence a view that one doesn't really believe, or doesn't believe with that degree of confidence. But one can always make clear, implicitly or explicitly, "This is my view of what the law should be, not what it clearly is under current law," that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.
I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet's posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don't see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.
Again, that doesn't mean legal scholars can't act as advocates. But if they can't do so openly–if they think it would somehow undermine the effectiveness of what they're writing if they preface their claim with, "Of course I'm writing this as an advocate and not a scholar; if I were writing this with my expertise or authority as a scholar one the line, I would say something different"–then I would suggest that they are, in fact, doing something wrong.
I have similar concerns, for the same reason I agree with Paul with the Dick Fallon view of law professor amicus briefs. Taking on different roles is fine, but clear labeling to demarcate those roles is important. Of course, it doesn't change the strength of the argument that individuals are making: Arguments stand or fall on their own. And I realize that the instinct among many legal academics to blend scholarly roles and advocacy roles is often strong one, both on the left and the right, that may be impossible to dislodge. But that blending of roles does create tensions, I think.
One counterargument is that perhaps Paul and I are naive, and it is understood that of course law professors publicly commenting on a high profile case are engaging in spin for their side. That's certainly possible. That might explain why some have described my views as "pro-mandate" when I oppose the mandate: Perhaps my earlier effort to describe how I see the precedents fall are necessarily construed as secret advocacy in favor of the mandate.
District Court Upholds Illinois Total Ban on Carrying Guns
Illinois basically bans private citizens from carrying guns outside the home in any way that's useful for immediate self-defense. Shepard v. Madigan (S.D. Ill. Mar. 30, 2012), has just upheld this ban; other courts, in California, Illinois, Maryland, and Massachusetts have done the same, though the federal district courts in Maryland and North Carolina, as well as an appellate court in Puerto Rico have held the opposite.
The district court reasoned that even a total ban on carrying guns for self-defense outside the home should be judged under "intermediate scrutiny," and the ban passes because "[t]he State of Illinois has determined that, for purposes of protection of its residents, a citizen's interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm."
Two thoughts about the decision:
1. The court doesn't discuss whether — as the Maryland federal district court recently suggested — intermediate scrutiny can only be satisfied by regulations of the carrying of guns outside the home, rather than by total prohibitions. To quote, the Maryland district court,
A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered "reasonably adapted" to a government interest, no matter how substantial that interest may be. Maryland's goal of "minimizing the proliferation of handguns among those who do not have a demonstrated need for them" is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.
2. The court also says that, as to "laws that impact the right to bear arms outside the home," "the Seventh Circuit has determined that intermediate scrutiny would apply. See, Ezell, 651 F.3d at 703-04 (collecting cases applying intermediate standard in the Third, Fourth, and Tenth Circuits)." But I don't see how that is a correct reading of Ezell v. City of Chicago (7th Cir. 2011). The cited passage from Ezell does say,
For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights; the answer to the Second Amendment "infringement" question depends on the government's ability to satisfy whatever standard of means-end scrutiny is held to apply.
The approach outlined here does not undermine Skoien, 614 F.3d at 639-43, or United States v. Williams, 616 F.3d 685, 691-93 (7th Cir.2010), both of which touched on the historical "scope" question before applying a form of intermediate scrutiny. And this general framework has been followed by the Third, Fourth, and Tenth Circuits in other Second Amendment cases.
But, as the Ezell court noted, "Intermediate scrutiny was appropriate in Skoien because the claim was not made by a 'law-abiding, responsible citizen' as in Heller, 554 U.S. at 635, 128 S.Ct. 2783; nor did the case involve the central self-defense component of the right, Skoien, 614 F.3d at 645.
And Williams similar involved a challenge brought by someone who wasn't a "law-abiding, responsible citizen" (indeed, Williams was a convicted felon). So in context, the Ezell passage quoting above is simply (1) noting that Skoien and Williams are consistent with the notion that some "standard of means-end scrutiny" must be chosen in each kind of case, and (2) mentioning that this doesn't undermine the decision in Skoien and Williams to choose intermediate scrutiny. The court is not, I think, silently concluding that "intermediate scrutiny" is the proper test even as to claims that are "made by a 'law-abiding, responsible citizen.'"
Indeed, Ezell concluded that,
Here, in contrast, the plaintiffs are the "law-abiding, responsible citizens" whose Second Amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right. The City's firing-range ban is not merely regulatory; it prohibits the "law-abiding, responsible citizens" of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense. That the City conditions gun possession on range training is an additional reason to closely scrutinize the range ban. All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite "strict scrutiny." To be appropriately respectful of the individual rights at issue in this case, the City bears the burden of establishing a strong public-interest justification for its ban on range training: The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public's interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.
I'm not claiming that Ezell clearly selected "a more rigorous" standard than intermediate scrutiny for law-abiding-citizen Second Amendment claims — it may be that its selection of that standard is limited to restrictions that interfere with gun possession in the home. (The Ezell plaintiffs "claim[ed] that the range ban impermissibly burdens the core Second Amendment right to possess firearms at home for protection because the Ordinance conditions lawful possession on range training but makes it impossible to satisfy this condition anywhere in the city.") But I am saying that Ezell did not select "intermediate scrutiny" as the general standard for law-abiding citizen Second Amendment claims outside the home, and the district court was mistaken in concluding that Ezell did so. Rather, the district court should have recognized that the issue had not been decided by the Seventh Circuit, and the court should have accepted the responsibility for itself making the choice, rather than asserting that the choice was made for it.
Louisiana Legislature Considering Strengthening the State Right to Keep and Bear Arms Provision
The provision now reads, "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person"; SB 303 would propose a constitutional amendment that would instead say,
The right of each citizen to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction shall be subject to strict scrutiny.
For more on what "strict scrutiny" might mean in this context, and on other possible constitutional tests, see Eugene Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA Law Review 1443 (2009). Thanks to Bill Rafferty (Gavel to Gavel) for the pointer.
Ninth Circuit Rejects Constitutional Challenge to California's Anti-Race/Sex-Preferences Initiative (Prop. 209)
Coalition to Defend Affirmative Action v. Brown (9th Cir. Apr. 2, 2012) has just rejected a constitutional challenge to California's ban on race and sex preferences and discrimination in public employment, education, and contracting; the panel followed as binding precedent Coalition for Economic Equality v. Wilson (9th Cir. 1997), which rejected a similar challenge, and rejected the plaintiffs' proposed distinctions between the two cases. A Sixth Circuit decision, Coalition to Defend Affirmative Action v. Regents (6th Cir. 2011), had struck down a similar Michigan law on the same grounds urged by the plaintiffs here; that decision, though, has been vacated and is now being reheard en banc by the Sixth Circuit. For more on the underlying legal arguments, please see the 1997 Ninth Circuit decision and the Sixth Circuit panel opinion.
I should note that I was one of the legal advisors to the Prop. 209 campaign, and helped draft the initiative (which is now Cal. Const. art. I, § 31). Congratulations to my friends at the Pacific Legal Foundation on the victory.
New Draft Article, "The Mosaic Theory of the Fourth Amendment"
I have just posted a new draft article, The Mosaic Theory of the Fourth Amendment, which is forthcoming in the Michigan Law Review. Here's the abstract:
In the Supreme Court's recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.
This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.
I have a few weeks to work on the article before I submit a version to editors to begin the formal editing process, so comments are very welcome. (That's especially true because this article was written in the brief window after Jones was handed down before the March submission season, so it is less set than most articles might be at this stage.) There is no need to catch typos or anything like that, as the editors will look for that, but thoughts on the substantive argument are very welcome.
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