Eugene Volokh's Blog, page 2664
November 28, 2011
Nordyke v. King — the Ninth Circuit's Second Amendment Gun Show Case — Going En Banc Again
That's the news today from the Ninth Circuit. For more decisions in this case, see here; for more on the panel decision that is now going to be reconsidered en banc (and my views on the decision), see this post. Thanks to Gene Hoffman for the pointer.
Careful With the Inferences of Bias
A commenter on the Amish heretic hair-cutting thread writes:
How sexist is everyone — the Amish, the Feds, especially — when stretching to such absurd reaches (scissors transported across state lines) for felony hair assault — to say n-o-t-h-i-n-g of RAPE. Oh, that... It is more than disgusting and even outrageous that beard cutting, is construed as a felony act of "violence"; but, worse, is the focus although women were raped.
This, it seems to me, is a good illustration of the danger with too quickly drawing inferences of bias — whether sex bias, racial bias, political bias, or what have you — from seeming differences in treatment. To show that bias is the proper explanation, one has to explain why other possible reasons for the difference are inadequate.
And here, it turns out, there seem to be some pretty clear non-sexist reasons for why the federal government isn't prosecuting the leader's sex with his followers:
(1) According to the complaint, those who left the religious community where the sex took place did so in 2005. The statute of limitations for federal crimes is generally, to my knowledge, 5 years. This means that the statute of limitations has run by now as to the people who are likely to object. Presumably the leader of the community has continued having sex with other women in the community, but they don't seem to have complained to the authorities, which makes any prosecution understandably less likely (partly because it's not clear that their sex with the leader was nonconsensual, and partly because, even if it was, such crimes are very hard to prosecute if the victim doesn't come forward).
(2) Generally speaking, pressuring someone into sex through the use of one's perceived spiritual authority, or even through the threat of excommunication — which is what the affidavit seems to describe — would not constitute rape in most American jurisdictions. Rape generally requires the use of coercive physical force, or the threat of such force (whether the victim is male or female). Some have argued that this aspect of rape law is sexist, but that's far from clear; and in any event, it would be the fault of federal lawmakers, not of the federal officials enforcing the law.
(3) Federal law doesn't generally criminalize rape, murder, robbery, and other crimes, leaving them to state law. The statute at issue here bans violence against people "because of the actual or perceived race, color, religion, or national origin of any person," which is why the assault is covered. But it seems unlikely that the group leader's sex with his group's married women would be treated as taking place "because of the ... religion" of the women, in the sense of being motivated by the women's religion. It's possible to argue that there was such a motivation, since he wouldn't have had the same influence over women who weren't Amish; but I doubt that courts would accept that, just as I doubt that they would conclude that a priest's molestation of Catholic boys was a religion-based bias crime, even though the Catholic boys were obviously more susceptible to the priest's approaches than non-Catholic boys would be.
So just a reminder: Before concluding that someone's actions were motivated by bias — again, whether based on sex, race, religion, politics, or whatever else — it's important to consider the other possible explanations. And within the legal system, there are often many such explanations, often turning on legal doctrines that laypeople are not fully familiar with.
Student Writing Competition, Hosted at UCLA, on Sexual Orientation and Gender Identity
UCLA hosts the journal Dukeminier Awards: Best Sexual Orientation and Gender Identity Law Review Articles. (Many of our lawyer readers have seen Jesse Dukeminier's work in their property and wills and trusts classes; he was a leading casebook author and scholar in both fields.) The journal mostly reprints articles that it selects from those published in other journals — I had the honor of having one of my articles, Same-Sex Marriage and Slippery Slopes reprinted in the Dukeminier Awards 2006 issue — but it also prints student articles that it selects among those that are submitted directly to it, and throws in a $1000 award to boot. So if you have any articles on the subject that you'd like to submit, please do so; here are the details:
Dukeminier Awards Student Writing Competition ($1,000 cash prize, plus publication)
Submission Deadline: January 2, 2012
The Dukeminier Awards Student Writing Competition annually recognizes the best student note on issues relating to sexual orientation and gender identity in the law. The First Place award is $1,000. The winning note will also be published in the Dukeminier Awards: Best Sexual Orientation and Gender Identity Law Review Articles of 2011. The competition is open to students enrolled in an ABA accredited law school during the 2011–2012 academic year. Students of all backgrounds and identities are encouraged to apply. Entry topics should focus on a cutting-edge legal issue affecting lesbian, gay, bisexual, and/or transgender communities.
Prior topics include legal issues involving the intersection of sexual orientation and/or gender identity with the following themes: parenting, racial and ethnic identities, employment, youth, transgender issues, intersex issues, bisexual erasure, marriage, social movements, sports, international comparative law, administrative law, criminal law, constitutional law, and evidence law. We are also interested in submissions covering novel topics, including those that challenge canonical LGBT literature by highlighting the experiences and writing of marginalized people. Past issues and winning notes can be viewed online at http://williamsinstitute.law.ucla.edu....
Submission Requirements
Entries should follow standard note format, including Bluebook (19th edition) citation form. All entries must be submitted in English. Each entry should be no longer than 40 single-sided pages with one-inch margins. The article text should be 12-point, double-spaced Times New Roman font. The page limit includes footnotes, which should be 10-point, single-spaced Times New Roman font. Entries containing endnotes or including appendices or supplemental material will not be considered.
Entrants may choose to submit their note by either email or regular mail. All entries must be received on or before January 2, 2012. Entrants should not include their name or the name of their school on the competition paper itself. Instead, participants should submit a cover page indicating their name, school, address, email address, and phone number. Entries by email should be in Microsoft Word format and sent to josol@lawnet.ucla.edu with the subject line "Writing Competition Submission." Additional details are attached in PDF format.
Mailed entries should be sent to:
The Dukeminier Awards Writing Competition
The Williams Institute
UCLA School of Law
P.O. Box 951476
Los Angeles, CA 90095–1476
Questions may be sent to the above address or to josol@lawnet.ucla.edu with the subject line "Writing Competition."
This award is named in memory of Jesse J. Dukeminier (1925–2003), who was a member of the UCLA School of Law faculty for forty years. This writing competition is made possible by the Williams Institute at the UCLA School of Law.
Auer Deference on the Docket
Among this morning's cert grants was Christopher v. SmithKline Beecham Corp., in which the Court will have to determine whether pharmaceutical sales representatives are subject to the "outside sales" exemption from the Fair Labor Standards Act's overtime requirements. At first glance, Christopher may seem like a rather pedestrian labor law case. Don't be fooled. Christopher has the potential to be an important administrative law case concerning the extent to which courts should defer to agency interpretations of their own regulations.
The underlying labor law question — whether drug companies must pay pharmaceutical sales representatives overtime — divided the lower courts. The U.S. Court of Appeals for the Second Circuit, in In re Novartis Wage & Hour Litigation, answered "yes," deferring to the Department of Labor's interpretation of its own regulations implementing the FLSA. In Christopher, however, the U.S. Court of Appeals for the Ninth Circuit reached the opposite result, in the process rejecting the Labor Department's interpretation of its own regulations offered in an amicus brief. The two courts divided not only on the overtime question, but also the scope of Auer deference to subsequent agency interpretations of ambiguous regulations. The Second Circuit found the Labor Department's interpretation "controlling," while the Ninth Circuit concluded that (under Gonzales v. Oregon) no such deference is due when an agency's regulation does little more than "parrot" the underlying statutory language.
The split over the applicability of Auer deference was expressly noted in SmithKline's response to the petition for certiorari. Indeed, this split was one of the reasons that SmithKline supported the cert petition. SmithKline's brief stressed that the uncritical application of Auer deference can empower agencies to circumvent the normal process for revising regulatory requirements and evade the limitations on Chevron deference imposed by Christensen and Mead. It further noted the serious questions about Auer deference Justice Scalia raised last term in Talk America v. Michigan Bell. In all likelihood, these concerns contributed to the Court's decision to grant cert.
What the Court will do with Auer deference is anyone's guess. The Court may be content to clarify the limitations on the doctrine hinted at in Gonzales. On the other hand, the Court could take the opportunity to pare back the doctrine to bring it into line with other recent changes in administrative law doctrine, the post–Mead reformulation of Chevron in particular. In any event, for those interested in administrative law, this will definitely be a case worth watching.
November 27, 2011
Thoughts on Messerschmidt v. Millender, A Pending Case on Search Warrants and Qualified Immunity
On December 5th, the Supreme Court will hear oral argument in a Fourth Amendment case, Messerschmidt v. Millender, that concerns the particularity of search warrants and the qualified immunity standard. In this post, I'll explain the facts and issues in the case and then offer my thoughts on how I think the Court should rule.
I. The Facts
Los Angeles police detective Curt Messerschmidt obtained an arrest warrant and search warrant for Jerry Ray Bowen, who was wanted for a domestic assault with a deadly weapon against his girlfriend, Shelly Kelly. Kelly had tried to leave Bowen, and Bowen had responded with extreme violence when Kelly had called the cops to protect her. As the Ninth Circuit explained:
Bowen appeared and screamed, "I told you to never call the cops on me bitch!" Bowen physically assaulted Kelly and attempted to throw her over the top railing of the second story landing of their residence. Bowen grabbed Kelly, bit her, and tried to drag her by the hair back into their residence. When Kelly resisted by bracing herself against the door, Bowen grabbed both of Kelly's arms, but Kelly was able to slip out of her shirt and run to her car. Bowen followed seconds later, now holding "a black sawed off shotgun with a pistol grip." Standing in front of Kelly's car, Bowen pointed the shotgun at Kelly and shouted, "If you try to leave, I'll kill you bitch." Kelly was able to escape by leaning over in her seat and flooring the gas. Bowen jumped out of the way and fired one shot at her, blowing out the front left tire of Kelly's car. Chasing the car on foot, Bowen fired four more times in Kelly's direction, missing her each time.
Detective Messerschmidt had considerable experience investigating gang members, and he conducted an "extensive background search" on Bowen using "departmental records, state computer records, and other police agency records." His investigation revealed that Bowen "has gang ties to the Mona Park Crip gang based on information provided by the victim and the cal-gang data base." (All quotes from the affidavit.) Detective Messerschmidt also knew, but did not include in the affidavit, that Bowen had a previous criminal record and was on summary probation for spousal battery and driving without a license. The detective obtained an arrest warrant and a search warrant to enter Bowen's home, which was a home owned by Bowen's foster mother, Augusta Millender.
The key to the Messerschmidt case is the particularity of the items authorized to be seized in the search warrant. The text of the Fourth Amendment requires that a search warrant must particularly describe the thing to be seized, and Fourth Amendment caselaw requires that there must be probable cause for each of the items to be seized. The items to be seized in the Bowen warrant were the following:
All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.
Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to "Mona Park Crips", including writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the "Mona Park Crips" street gang.
The Detective submitted the warrant for review within both the Sheriff's office and the District Attorney's office, and it was approved by both.
The search warrant was then executed, although the search proved almost entirely a flop. The police encountered twelve people at the home, but Bowen was not among them. The police did recover a shotgun and ammunition, but it was not Bowen's: the shotgun was the personal shotgun of Bowen's foster mother, Augusta Millender, and the ammo was a box of .45 caliber "American Eagle." The only other evidence recovered was a letter from Social Services addressed to Bowen. The police arrested Bowen two weeks later at a hotel, where he was discovered hiding under a bed.
II. The Civil Case
The Millenders who owned the home searched filed suit against the officers who were involved in the search, alleging that the search and seizure violated the Fourth Amendment. The district court ruled that the arrest warrant authorizing the entry in the home and search for Bowen was valid, and that ruling was never appealed. Instead, the remaining litigation concerns the scope of the search warrant. Everyone agrees that the police had probable cause to enter and search the home for the sawed-off shotgun that Bowen used to fire at Kelly. But the Millenders claim that the warrant was constitutionally overbroad for permitting the search for seizure of all firearms and all evidence of gang membership, as well. According to the Millenders, these errors are sufficiently obvious that no reasonable officer could have been unaware of them. As a result, they say, qualified immunity should not apply and the officers should be held personally liable.
The Ninth Circuit ruled en banc that the officers could be held personally liable because the warrant violated the Fourth Amendment and qualified immunity didn't apply. Specifically, the Ninth Circuit held that (1) the warrant was invalid because the probable cause did not extend to all of the items described in the warrant and (2) the officers were not entitled to qualified immunity, because no reasonable officer could have believed that there was probable cause to search for and seize all of the items described in the warrant. The warrant was invalid because there was no probable cause to seize the broad categories listed in the warrant. While there was probable cause to seize Bowen's sawed-off shotgun, that probable cause did not extend to all firearms. And there was no probable cause to seize gang-related material because Bowen's threat against Kelly was not gang-related.
The Ninth Circuit's reasoning for why qualified immunity did not attach was that the error in the warrant was "glaring," and therefore that any reasonable officer should have spotted it:
[T]he warrant in this case suffered a "glaring deficiency." Groh, 540 U.S. at 564. Neither it nor the affidavit established probable cause that the broad categories of firearms, firearm-related material, and gang-related material described in the warrant were contraband or evidence of a crime. Moreover, a reasonable officer in the deputies' position would have been well aware of this deficiency. The affidavit indicated exactly what item was evidence of a crime, the black sawed-off shot– gun with a pistol grip, and reasonable officers would know they could not undertake a general, exploratory search for unrelated items unless they had additional probable cause for those items.
The officers then petitioned for certiorari. Notably, the officers did not ask the Court to evaluate whether the warrant was valid. Instead, they asked the Justices to assess whether qualified immunity should apply, and they then added a second question presented: Should the standard for qualified immunity "be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?"
The Court re-listed the case a few times, suggesting a possible dissent from denial of certiorari or a summary reversal. Instead, the Court granted the petition and scheduled the case for oral argument.
III. How I Think the Court Should Rule
I think the Supreme Court should reverse the Ninth Circuit because the Ninth Circuit misapplied the well-established qualified immunity standard. The error in the warrant was hardly glaring: It was actually a rather subtle error. So I think the Court should reverse and hold that qualified immunity should attach. At the same time, I don't think the Court should depart from the well-established qualified immunity standard in this case.
Let's start with the nature of the possible error in the warrant. The Ninth Circuit and many of the briefs describe the error as one of probable cause: The briefs debate whether a reasonable officer should have known that there was probable cause as to all the items described in the warrant. But this is generally considered a question of particularity, not probable cause: The question is whether the warrant was as specific as it should have been. Put another way, everyone agrees that there was probable cause to issue the warrant. The nature of the disagreement is a more technical one: whether the warrant should have authorized the search for and seizure of the broad class of items it did, or whether it should have only authorized a search for a narrower class, or just the one shotgun that Bowen used — and, for the qualified immunity issue, whether the error was so glaring that any reasonable officer should have spotted it.
The briefs and materials I found online don't include the full affidavit — they just talk about it — and it's a little hard to be precise about the quality of the warrant based on the second-hand reports of the affidavit. (With warrants, as with most things, it helps to have the original sources.) Based on the lower-court opinion and the brief, it sounds to me like the warrant was a little sloppy but the errors were hardly glaring. Detective Messerschmidt had a case of a gang member with a gun who tried to kill someone, and he swore out a valid arrest warrant to arrest him. The Detective also obtained a separate search warrant to search the home incident to the arrest, as he was required to do by Steagald v. United States. When the Detective drafted the warrant, he did what a lot of detectives would do in that scenario: He took standard language to use in warrants to get guns and gang-related information (what those in law enforcement call "go-by"s, as they are standard language to "go by"), and he put them in the warrant. It's pretty standard stuff, and I'm not surprised that it looked okay to the Detective's bosses and the Deputy DA.
The Detective's error was sloppiness in the affidavit, it seems to me: He forgot to tie the pieces together. As best I can tell, he just didn't fully appreciate the difference between a typical gang-member-with-a-gun case and a case of a shooting and perhaps an attempted murder by someone who happens to be a gang member. Those differences required tweaking the search warrant affidavit so the "go-by" warrant language made sense. For example, the Detective should have said more in the affidavit about Bowen's criminal past: Bowen was indeed a felon, so possession of any firearm was a crime. He should have added that. Plus, he should have said more in the affidavit about why the evidence of gang-related information would be evidence of a crime; While it would be evidence of some crimes, it wouldn't be evidence of the shooting/attempted-murder that was used to justify Bowen's arrest. The affidavit should have made that clear.
While these are errors, in my view they're relatively subtle errors. They're the kind of errors that a reasonable police officer might make in good faith, not the kind of glaring errors that are supposed to lead to personal liability. So for that reason, I think the Supreme Court should reverse and hold that qualified immunity attaches.
IV. Why the Court Should Not Depart from Existing Qualified Immunity Doctrine — But Should Feel Free to Depart from Groh v. Ramirez.
The second "Question Presented" in this case asks if the Court should reconsider or clarify its good-faith/qualified immunity standard. Interestingly, that question gets very little attention in the briefs. The Petitioners who asked the Court to decide the question only mention it in their Reply brief, and even then only very briefly at the very end (see pages 24–27). The amicus brief by the United States just ignores it. So while the grant on this issue clearly spooked the Respondents, who spend a lot of time in their brief trying to make sure the Court won't change good-faith/qualified immunity doctrine — a serious concern with this Court, which seems eager to take ever-narrower views of Fourth Amendment remedies — it seems to me relatively unlikely that this will be much of a focus.
If so, I think that's a good thing. There are a number of puzzles with existing qualified immunity doctrine — among them, how and whether an originalist Justice can adhere to such a deferential standard — but I don't see any justification for expanding the immunity the doctrine presently allows.
One caveat to my prediction is the puzzling case of Groh v. Ramirez, 540 U.S. 551 (2004). Groh involved a typographical error in a warrant that was discovered after the warrant was executed: It turns out that the officer who obtained the warrant inadvertently filled in the property to be searched in the space on the warrant form where the officer was supposed to list the items to be seized. Writing for a bare majority, Justice Stevens concluded in a remarkably spare fashion that qualified immunity did not apply. A reasonable officer should have spotted the error, Justice Stevens reasoned, because every officer should know that warrants have to be particular. As Justice Kennedy's very persuasive dissent pointed out, however, this was just the wrong question: The issue was whether a reasonable officer could miss the typo, not whether an officer who spotted the typo could think the warrant was constitutional.
Groh has been widely criticized by academic commentators, and I personally think it was just wrongly decided for the reasons Justice Kennedy explained (and commentators have since echoed). Given that Groh is an outlier in qualified immunity doctrine, it is possible that the current Court might use Messerschmidt to construe Groh very narrowly (as lower courts generally have done), or even perhaps to criticize or overrule it, all in an effort to clarify the qualified immunity standard. It's hard to know if this might happen, but note that both the author of the 5-vote majority opinion (Stevens) and the 5th vote in that case (O'Connor) have since retired.
(Cross-posted at SCOTUSblog)
Religious Fundamentalists Attack Alleged Heretics and Heretics' Backers
The allegations are in this FBI affidavit; here is the summary, from Prof. Howard Friedman (Religion Clause):
The Cleveland Plain Dealer reports that authorities [Wednesday] arrested Samuel Mullet, Sr., the Bishop of a break-away Amish group, known as the Bergholz clan, as well as three of his sons and three other followers, on charges of forcibly cutting the beards of 4 Amish men who were members of a different Amish community. The FBI Affidavit in support of a criminal complaint ... says that Mullet controlled all aspects of his followers lives, forced extreme punishments on them and cleansed married women [clan members] of the devil by sexual intimacy with them. After 8 families moved away from the Bergholz community in 2005 because of religious disagreements, Mullet excommunicated them. However a special committee of bishops from other communities determined that Mullet's excommunications were invalid. The 4 victims of the beard cuttings were involved with the bishop's committee, or aided break-away families, or, in one case, was one of the excommunicated members (and the father of one of those charged in the case)....
The Affidavit seeks a criminal complaint charging the 7 defendants with conspiracy to violate the federal Hate Crimes Prevention Act (18 USC Sec. 249). The federal Hate Crimes statute permits federal prosecution only if the crime involves one or more specified links to interstate commerce. One of those links is that the defendant employed a dangerous weapon that has traveled in interstate commerce. The FBI affidavit states that the attacks were carried out with "hair clippers and 8″ scissors manufactured in the state of New York."
And from the Plain Dealer article:
"You've got Amish all over the state of Ohio, Pennsylvania and Indiana that are concerned," said Jefferson County Sheriff Fred Abdalla. "We've received hundreds and hundreds of calls from people living in fear. They are buying Mace. Some are sitting with shotguns. They're putting locks on their doors — because of Sam Mullet."
Plus this:
The hair and beard cuttings, bizarre in today's culture, are meant to degrade Amish men, who grow their beards after marriage based on their religious beliefs. In some of the attacks, Mullet's followers used a camera to capture the images of the cut beards, a further attempt to insult the victims, authorities said.
These are not your Harrison Ford's Amish.
Takings Issues in the AIG Bailout Litigation
Starr International, a firm headed by former AIG CEO Hank Greenberg, has recently sued the federal government, claiming that some provisions of the 2008 AIG bailout violated AIG shareholders' constitutional rights (Starr was a major AIG shareholder at the time of the bailout). One of the claims Starr has advanced is that the takeover violated the Takings Clause of the Fifth Amendment by taking various shareholder rights without paying compensation. This claim raises several interesting issues, but on balance I doubt that it will succeed.
Federal courts have long recognized that the Takings Clause applies to intangible property, including shareholder rights. However, Greenberg and Starr must still overcome several other difficult hurdles. First, there can be no taking if the property owner agreed to give up his or her rights to the government voluntarily. In this case, the bailout was approved by AIG's board. As I understand it, Starr claiming that the board exceeded its legal authority. If they lose that part of their argument, there can be no taking.
If the transfer of rights is held to be involuntary, Starr could easily win if it could show that the takeover destroyed 100% of the value of their rights, as the Court ruled in Lucas v. South Carolina Coastal Council. However, it seems to me unlikely that they can prove any such thing, since the stockholders shares were not completely taken away. Assuming there was no 100% loss of value, the case would be analyzed under the three-factor Penn Central test, which considers 1) the economic impact of the government action on property, 2) the extent to which the government action undermined "investment-backed expectations," and 3) the character of the government action. Application of the Penn Central test is often imprecise and murky. The bottom line, however, is that the government usually wins, as I discuss in greater detail in this article. I'm no fan of Penn Central myself, both because it is vague and because it provides insufficient protection for property rights. But it seems unlikely that the Court will use this case as the vehicle for changing the test. There is, however, uncertainty about the application of the test to this case, since — as far as I know — federal courts have never applied the test to anything remotely resembling the AIG bailout.
Finally, if Starr proves that there was no voluntary transfer of rights and prevail under Penn Central, they will face one last major challenge: proving that they are entitled to a more than nominal amount of compensation. The standard rule is that a taking entitles the owner to "fair market value" compensation for the loss of their rights. But prior to the bailout, AIG was on the verge of bankruptcy. Therefore, any shareholder rights may have had little or no market value at that point. The rule is that the "fair market value" must be assessed as it existed prior to the taking. So courts will not take account of any additional value added by the bailout. However, I'm no expert on either AIG's assets in particular or the valuation of stockholder rights more generally. So it's possible that these rights had greater value than is apparent to me. Experts in corporate law and finance are welcome to weigh in on this point.
NLRB on the Brink
This Wednesday, the National Labor Relations board is scheduled to vote on a controversial proposed rule to streamline and accelerate the union election process. The Board is acting now because it could lose a quorum when the recess appointment of Craig Becker expires at the end of the year. Only three of the NLRB's five spots are filled, and (under New Process Steel v. NLRB) there must be three active board members to adopt a new rule.
NLRB Board Member Brian Hayes, the lone Republican currently on the Board, opposes the new rule and believes the Board is moving too quickly — and cutting procedural corners — to approve the new rule. As he detailed in a letter to Rep. John Kline, Chairman of the House Committee on Education and the Workforce, Hayes claims he will not be allowed to review the rule and draft a proposed dissent before the rule is published and that this "would contravene longstanding board tradition and the Board's own internal operating rules." According to Hayes, the Board traditionally allows a potentially dissenting member 90 days to review a rule or decision and draft a dissent prior to publication and only overturns existing case precedent (as this rule would) if at least three NLRB board members support the move. NLRB Chairman Mark Pearce responded with a letter of his own alleging that Hayes' account was "inaccurate and misleading." (Rep. George Miller (D-CA) added a letter of his own, requesting information from Hayes about his complaints and communications with outside parties.)
Last week, the NYT reported that Hayes could refuse to attend the NLRB's meeting on Wednesday, or even resign, in order to deprive the majority of a quorum to adopt the rule. (See also this WSJ editorial on the dispute and threat to resign.) It's unclear whether a failure to attend Wednesday's meeting would be sufficient to stop the NLRB's majority from going ahead with the new rule. Resigning from the Board would do more than block this rule, however. It would also prevent the Board from taking action on any matter whatsoever — something which will happen in any event when Becker's recess appointment expires.
The NLRB is often the site of partisan infighting. Democratic appointees tend to support unions and Republican appointees do not. Still, this level of partisan division — and mutual mistrust — seems worse than usual. As GWU law professor Charles Craver told the NYT this was the worst he'd seen in 40 years — and the worst may be yet to come. Stay tuned.
An Originalist Argument for the Unconstitutionality of Sex Discrimination
It is generally accepted that the Supreme Court's sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment. Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination by state entities. Nor did the original public meaning of Section One embody a rule that would prevent state governments from engaging in sex discrimination.
In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court's sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment. Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular. Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court's decision in the VMI case.
This article is Lawrence Solum's "Download of the Week," and with good reason, as it is sure to prompt significant discussion and debate. As Solum would say, "Download it while it's hot!"
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
