Eugene Volokh's Blog, page 2675
November 8, 2011
Mississippi Measure 31 Passes
Mississippi Measure 31 - the important eminent domain reform initiative — has passed, probably by an overwhelming margin. Although the returns are not yet completely in, the "yes" side has 74% of the vote with almost 65% of precincts reporting. I outlined the case for Measure 31 here.
The overwhelming support for the measure is consistent with results in previous referenda on post–Kelo reform initiatives. No anti–Kelo referendum initiative has ever been defeated except in cases where a ban on Kelo-style "economic development" takings was packaged with some other, much less popular measure (as in the case of California Proposition 98). By contrast, all twelve "clean" anti-Kelo measures have passed, usually by lopsided margins, though a few of them fail to provide genuinely effective protection for property owners. I discuss all the referendum measures enacted up until mid-2009 in this article (see also here for an analysis of a Texas referendum initiative that passed after the article came out).
For reasons I summarized in my last post on Measure 31, reforms adopted by means of citizen-initiated referenda generally provide stronger protection for property rights than those enacted by state legislatures.
UPDATE: I have fixed the incorrect link to the vote tabulation.
UPDATE #2: With 90% of precincts reporting, Measure 31 is winning by a 73–27 margin. That makes it virtually certain that it will not only pass, but do so overwhelmingly.
Kavanaugh on the Case for Not Deciding the Constitutionality of the Mandate
Judge Kavanaugh wrote a separate opinion in the DC Circuit's mandate case that many readers will overlook: It's based on the tax code, and the opinion itself acknowledges that its analysis is dense and difficult. ("The Tax Code is never a walk in the park. . . . I caution the reader that some of the following is not for the faint of heart.") At the same time, Kavanaugh's opinion closes with a very interesting prudential case for not deciding the merits of the mandate, and instead deciding the case on Anti-Injunctive Act grounds (see starting at page 51). Among them, Kavanaugh argues that if the Court doesn't decide the issue now, it may never have to decide the issue because the statute could be easily amended to make the mandate easily constitutional under the taxing power. It's an interesting read, and one that I suspect may get some attention when the case reaches the Supreme Court.
As an aside, it's interesting that the circuit court decisions on the mandate have included three opinions by leading lights of the Federalist Society — Judges Silberman, Sutton, and Kavanaugh — and that none of them voted to strike down the mandate. These three judges are hugely influential in the conservative legal community, and the conservative Justices and clerks on the Court watch their work closely. Although a split is a split, and the Court is extremely likely to take a mandate case, the absence of a vote to strike down the mandate among the opinions from Judges Silberman, Sutton, and Kavanaugh can't be welcome by mandate opponents.
The Supreme Court Plaza on a Sunny Day
Today was a beautiful fall day in Washington, DC, and after the Jones argument I shot this 10-second video of what it's like on the front steps of the Supreme Court after a 10 am oral argument. Note that the people in line are waiting to get a brief glimpse of the 11am argument, which based on the transcript looks like would have been more than enough. The Court police officers shoo away folks who want to stand on the steps of the Court, but they let people hang out on the plaza below. In any event, readers who live in DC or who have been to the Supreme Court know what this is like, but I figured I would post it for those readers who have never paid a visit.
(For the record, a voice calling my name is not generally part of the experience.)
No Hugging in School
A story from last Thursday's Orlando Sentinel (thanks to Robert Dittmer for the pointer):
[Nick Martinez, age 14,] said he quickly hugged the girl, whom he called his best friend, between classes. The principal saw it and hauled them off to the dean for an in-school suspension. The principal even told WKMG Local 6 that the hug was innocent....
The school has a strict no-hugging policy and is the only school in the district where hugging is not allowed. Under the policy, there is no difference between an unwanted hug, like sexual harassment, and a hug between friends....
The principal said there is no plan to change the no-hugging policy.
The DC Circuit Decision Upholding the Individual Mandate
I was going to write a more detailed post on the recent DC Circuit decision upholding the individual mandate. However, co-blogger Randy Barnett has already said much of what I would have wanted to say.
Like Randy, I am skeptical that Justices Kennedy or Scalia will be willing to endorse the D.C. Circuit's conclusion that there are no limits to Congress' power to impose mandates under the Commerce Clause. Both of these justices have emphasized the need to enforce limits on the scope of federal power. If the Court does uphold the individual mandate, it will be on the basis of one or more of the various arguments claiming that health care is a special case.
Here are two additional points that go a little beyond Randy's analysis.
First, Judge Silberman's majority opinion is wrong to suggest that a long line of Supreme Court decisions that defined the scope of Congress' Commerce Clause power in terms of "activity" or "economic" activity "were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question" of whether economic activity could be regulated. Several of those decisions clearly use the term "activity" as part of a doctrinal test, not merely a description of facts. In Gonzales v. Raich, the Court noted that the statutes invalidated in Lopez and Morrison were ruled unconstitutional because they "did not regulate any economic activity," whereas the law in Raich was sustained because it did regulate "quintessentially economic" activity. That certainly looks like more than just "description" to me. Even more importantly, in several cases the Supreme Court could have saved itself a lot of analytical trouble if it could uphold Commerce Clause statutes simply by claiming that they regulate inactivity with economic effects. For example, In Katzenbach v. McClung, the Court ruled that Congress could forbid racial discrimination restaurant that served almost exclusively local customers on the somewhat circuitous basis that the restaurant purchased some of its food supplies out of state, and its discrimination against African-Americans affected the volume of those purchases. If inactivity that affects interstate commerce were enough, the Court could have avoided these gymnastics and simply said that McClung's restaurant had had an impact on interstate commerce because he could instead have established some other business that was more connected to interstate commerce than the restaurant itself was.
Second, it is interesting that Judge Harry Edwards, in his concurring opinion, seems uncomfortable with Judge Silberman's conclusion that Congress has virtually unlimited power to impose mandates. He emphasizes that "Congress's authority to legislate under the Commerce Clause is not without limits. If nothing else, there are boundaries that emanate from the Necessary and Proper Clause... which serve as principled limitations on Congress's authority under the Commerce Clause."
Edwards is right to stress the need for limits on the Commerce power. But it is somewhat strange to look to the Necessary and Proper Clause for them. After all, the whole point of the Necessary and Proper Clause is to give Congress additional power that goes beyond what it has under its other enumerated powers by themselves. Edwards claims that his view is supported by Justice Scalia's concurring opinion in Raich. But Scalia's key argument in that case was precisely that the Necessary and Proper Clause could be used to reach activity that Congress could not regulate under "the Commerce Clause alone." Unlike the majority opinion, Scalia did not believe that the Commerce Clause by itself gave Congress the power to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market.
UPDATE: In criticizing Judge Silberman's interpretation of the precedents on "economic activity," I don't mean to suggest that those cases definitively ruled that Congress cannot use the Commerce power to regulate inactivity. They did not do that. At the same time, "activity" did define the limit of what the Court ruled that Congress could regulate in those cases. Permitting regulation of inactivity would require a lower court to go farther than the Supreme Court has gone.
UPDATE #2: I have revised this post to correct a few grammatical and phrasing errors.
Next up: The Supreme Court
Well, we now have the last Circuit Court of Appeals decision to digest before hearing later this week or next whether the Supreme Court will take up the challenge and what question will be presented to the Court. Assuming it does, there will then be merits briefs and oral argument. But first, some brief and and very preliminary reactions to today's decision.
(1) It is another divided decision, which is now the pattern. Whether upholding or striking down the individual mandate, the Court of Appeals judges are all over the map. This is not indicative of a case dictated by previous decisions that has a predetermined outcome.
(2) The decision tracked oral argument as I described it here. Judge Kavanaugh clearly telegraphed his enchantment with the Antitax Injunction Act. Judge Edwards clearly telegraphed his view that little needed to be said to find that the ACA is constitutional (as he said very little art argument or in his concurrence). And, although I hoped against hope that Judge Silberman was not telegraphing his position when he strongly asserted that the "logic" of Wickard v. Filburn authorized economic mandates, sure enough he stuck to that position. (I have already blogged here about why I think Judge Silberman is misreading the actual opinion in Wickard.)
(3) With respect, I beg to differ with my co-blogger Stuart's post below. Should the Affordable Care be upheld, Judge Silberman's opinion in no way will provide a template for a majority opinion by any justice, but especially not one by Justice Scalia. Like Judge Sutton's concurrence in the Sixth Circuit, this opinion has all the hallmarks of a decision its author knows full well is not the last word in the case. Like Judge Sutton, Judge Silberman is punting to the Supreme Court. I am not claiming that he does not believe in the correctness of his decision. I believe that he believes. I am merely claiming that he would never be content with this being the final word on the subject of the scope of Congress's power. And he knows it won't be.
There are at least two key passages that Justice Scalia would never write:
We acknowledge some discomfort with the Government's failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.
This is a remarkably blithe acceptance of a claim of a practically unlimited congressional power that belies Chief Justice Marshall's injunction in Marbury v. Madison 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." Recall it was Justice Scalia who asked Solicitor General Drew Days during oral argument in Lopez to identify the limit on the government's claim of power under its reading of the Commerce Clause. Like the government's attorney here, Days was unable to provide any limit. That was not a winning answer. Therefore, I am confident that, before upholding this power Justice Scalia would need to satisfy his "discomfort" with so "troubling" a "difficulty." Whatever limiting principle he would craft, it would not be this one:
It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.
It most certainly does not "suffice" to identify a factually "unique" circumstance without identifying an administrable constitutional principle that can be applied in future cases. As Judges Dubina and Hull wrote in their jointly-authored Eleventh Circuit opinion:
We are at a loss as to how such fact-based criteria can serve as the sort of "judicially enforceable" limitations on the commerce power that the Supreme Court has repeatedly emphasized as necessary to that enumerated power.... Were we to adopt the "limiting principles" proffered by the government, courts would sit in judgment over every economic mandate issued by Congress, determining whether the level of participation in the underlying market, the amount of cost-shifting, the unpredictability of need, or the strength of the moral imperative were enough to justify the mandate.... Ultimately, the government's struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none.
Justice Scalia knows that, because the Court defers to Congress on such factual predicates, this is really no limiting principle at all.
Then there is the second key passage that I simply cannot imagine being written by Justice Scalia, should he decide to uphold what Judge Silberman concedes (his discussion of Wickard notwithstanding) is an unprecedented claim of power:
The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.
Although no one has asserted any such "right," the proposition that there is a liberty left over or "reserved" after the delegation of powers to the federal government is simply the implication of the enumerated powers scheme, an implication made express by the Tenth Amendment, which secures the reserved powers of both the states and the people. Taken literally, this sentence by Judge Silberman implies that the Tenth Amendment "yields" to the unenumerated "imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins." Indeed, it is this "imperative" that underlies the logic of Judge Silberman's entire opinion, which is just the "logic" he finds in Wickard.
However Judge Scalia votes in this case, I would be shocked if he endorses this proposition. (Indeed, Justice Scalia apparently thought that Justice Stevens's majority opinion in Raich was too broad, so he concurred only with the result. And, while Justice Kennedy did sign onto that opinion, he later affirmed in both Comstock and Bond his view that the Commerce Clause does have justiciable limits.)
The right to be freefrom federal regulation is not absolute, and yields to theimperative that Congress be free to forge national solutions tonational problems, no matter how local–or seeminglypassive–their individual origins.In short, Judge Silberman's opinion decision ultimately rests on his claim that Congress has an unlimited power "to forge national solutions" to whatever it deems to be a "national problem," which is why the stakes of this legal challenge are so high. Fortunately, his will not be the last word on these constitutional challenges.
Judge Silberman on the Individual Mandate
I thought readers might be interested in the key passages from the DC Circuit's majority opinion, authored by Judge Silberman, upholding the individual mandate under the Commerce Clause:
The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants' argument. No Supreme Court case has ever held or implied that Congress's Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.
The Framers, in using the term "commerce among the states," obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction. See Lopez, 514 U.S. at 553–61; id. at 568–75 (Kennedy, J., concurring). Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. See United States v. Morrison, 529 U.S. 598, 610, 615–19 (2000); Lopez, 514 U.S. at 558–61, 566–67. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior–if only decisions whether or not to purchase health care insurance or to seek medical care–that does substantially affect interstate commerce.
To be sure, a number of the Supreme Court's Commerce Clause cases have used the word "activity" to describe behavior that was either regarded as within or without Congress's authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether "inactivity" can also be regulated. See Florida, 648 F.3d at 1286. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .
Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity." For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. Thomas More, 651 F.3d at 560–61 (Sutton, J., concurring). The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between "indirect" and "direct" effects on interstate commerce–because they were similarly unworkable. See Wickard, 317 U.S. at 119–20; see also Lopez, 514 U.S. at 569–71 (Kennedy, J., concurring).
Appellants have sought to avoid this logic by asserting that even if one could be obliged to buy insurance when one sought medical care, one cannot be obliged to keep it. Although that argument, as we have noted, avoids the facial challenge objection, it strikes us as rather unpersuasive on the merits. Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services–as rather useless as that would be–is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.
Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickard doesn't encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device's lack of historical pedigree as evidence that the device may exceed Congress's constitutional bounds. But appellants' proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. Florida, 648 F.3d at 1285–88. Moreover, the novelty cuts another way. We are obliged–and this might well be our most important consideration–to presume that acts of Congress are constitutional. Morrison, 529 U.S. at 607. Appellants have not made a clear showing to the contrary.
Appellants' view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause.
Judge Silberman's view is pretty much what I've been arguing since the mandate challenges were first filed, so it's no surprise that I find this a persuasive reading of existing Supreme Court precedent. Of course, the Supreme Court is highly likely to review this issue soon, and the Justices are not bound by the implications of their prior precedents — or even the precedents themselves.
Silberman's Majority Opinion as Template?
The D.C. upheld the constitutionality of the health care act today (Silberman and Edwards reached the merits and voted to uphold; Kavanaugh found no jurisdiction and did not reach the merits). Silberman's opinion reads to me like the opinion I would expect from Justice Scalia upholding the act — notably, that one can distinguish activity from inactivity, but such a distinction is novel and not grounded in doctrine; and that "Appellants' view ... expresses a concern for individual liberty that seems more redolent of Due Process arguments." Indeed, I will make a bold and perhaps foolish prediction: if Scalia is assigned the majority in the health care act case, my guess is that it will bear a considerable resemblance to the Silberman opinion. Let me add that I think Scalia or Kennedy is the most likely author of the majority in the case. And, yes, I do think Scalia (and Kennedy, for that matter) will vote to uphold the act.
Sometimes a Cigar Is Just a Cigar — at Least Where Illinois "Drug Paraphernalia" Law Is Concerned
So holds People v. Carreon (Ill. App. Ct. Oct. 31, 2011). Carreon was convicted of possession of cannabis and possession of drug paraphernalia; the alleged paraphernalia was a cigar used to smoke the cannabis. Not so, held the court (paragraph break added):
Section 2(d) of the Drug Paraphernalia Control Act (Act) (720 ILCS 600/2(d) (West 2008)) defines drug paraphernalia as "all equipment, products and materials of any kind *** intended to be used unlawfully in *** ingesting, inhaling or otherwise introducing into the human body cannabis or a controlled substance." Section 4 of the Act (720 ILCS 600/4 (West 2008)) exempts certain items from the definition of drug paraphernalia. Of relevance here is section 4(b), which exempts the following:
"Items historically and customarily used in connection with the *** ingesting, or inhaling of tobacco or any other lawful substance. Items exempt under this subsection include, but are not limited to, garden hoes, rakes, sickles, baggies, tobacco pipes, and cigarette-rolling papers." 720 ILCS 600/4(b) (West 2008).
Section 4 of the Act further provides specific factors that should be considered in determining whether an item is exempt from the Act. The factors relevant to the issue before us are "the general, usual, customary, and historical use to which the item involved has been put" and "the existence and scope of legitimate uses for the object in the community." 720 ILCS 600/4(d)(1), (d)(8) (West 2008)....
[I]t is readily apparent that the legislature intended to exclude from the definition of drug paraphernalia any item traditionally used to ingest tobacco. Cigars, like cigarettes, are a traditional means of ingesting tobacco. In fact, cigars are designed and sold specifically for the ingestion of tobacco. This reason alone is sufficient to conclude that the legislature did not intend to include cigars in the definition of drug paraphernalia.
In addition, however, the similarities between cigars and cigarette-rolling papers support a conclusion that cigars should not be included in the definition of drug paraphernalia. As the State points out in its brief, the cigar in this case was likely modified from its original form (there was no evidence presented in the trial court that, other than the addition of cannabis, the cigar was modified) to allow defendant to wrap cannabis in the cigar. When used this way, the cigar acts as nothing more than a large cigarette-rolling paper, and the legislature specifically excluded cigarette-rolling papers from the definition of drug paraphernalia (720 ILCS 600/4(b) (West 2008)).
Although it is certainly true that the cigar in this case was used to ingest cannabis (evidenced by the traces of cannabis found in the cigar), cigarette-rolling papers can also be, and likely often are, used to ingest cannabis. That fact, however, did not prevent their exclusion from the definition of drug paraphernalia under the Act, because they are historically and customarily used for the legal ingestion of tobacco. Likewise, although sometimes used to ingest cannabis, cigars are historically and customarily used for the legal ingestion of tobacco. Accordingly, we hold that cigars are not included in the definition of drug paraphernalia under the Act, and defendant's conviction of possession of drug paraphernalia must be reversed.
Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case
I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I'm going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.
1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. The Justices pushed Michael Dreeben (arguing for the United States) on the consequences of his argument: If the Government was right, they noted, then the government can install a GPS device on all the Justices' cars and watch them, too, along with everybody else. They pushed Steve Leckar (arguing for Jones) on the difficulty of identifing a clear Fourth Amendment principle to distinguish visual surveillance from GPS surveillance. The votes were hard to count, but if you had to summarize a reaction of the Court as a whole, I would say that the Justices were looking to find a principle to regulate GPS surveillance but unconvinced (at least as of the argument) that there was a legal way to get there without opening up a Pandora's Box of unsettling lots of long settled practices.
2) The Justice who most clearly showed his cards was Justice Scalia. Justice Scalia made clear that he would overrule Katz v. United States; make common law of trespass the test for what is a search; and say that the installation of the device was a search because it was a technical trespass. Even if Katz can't be overturned, Scalia indicated, at the very least the common law of trespass should be a floor of Fourth Amendment protection: Katz should be allowed to go beyond the original Fourth Amendment but not erode it. Cf. Kyllo v. United States. At the same time, Justice Scalia made equally clear that he thought the use of the device after installation was not a Fourth Amendment problem. What is invasive and scary isn't a search, Scalia emphasized, and the kind of line-drawing as to when use of a GPS device should be allowed is quintessentially a legislative question. So Scalia is on board for saying that installation of the device is a search, but no more. (As an aside, it's not at all clear that the original public meaning of the Fourth Amendment operated on a common law of trespass principle. Warren Court opinions liked to describe pre-Warren Court decisions as adopting such a principle, and that has led many to believe that the Fourth Amendment underwent a transition in the 1960s from protecting property to protecting privacy. But if you go back and read the cases, that narrative — pushed most strongly by justice Brennan in Warden v. Hayden — is plainly inaccurate. The early cases usually rejected common law trespass as a principle, much as post–Katz cases do. More on that in a future post.)
3) Other justices gave a more mixed reaction to Justice Scalia's idea of regulating the installation of the device as a search under the technical trespass doctrine. Justices Alito and Kagan seemed particularly skeptical. Both pointed out that this solution wouldn't necessarily work in the long run: If technology advanced and the government created a new surveillance tool that could obtain the same information without a technical trespass, then the government would have the same power as before. Alito and Kagan also both pressed Leckar on whether it would be a search or seizure to attach an inert device to a suspect's car (that is, a device with no monitoring system). Leckar conceded that this would be a different case, which drew a comment from Justice Kagan that Leckar was really focused on the use of the GPS device, not the installation.
4) Justice Breyer's reaction was about as far from Scalia's as you could get. Justice Breyer didn't buy the technical trespass doctrine, and he wanted to bypass the question of what is a "search" or "seizure" and just ask what is "reasonable." Breyer seemed to think that the earlier decisions like Karo and Knotts had been about that, as well, which was mistaken: Those cases were primarily about what is a "search," not when a search is reasonable. (It's true that the test for what is a search is whether the government conduct violated a "reasonable expectation of privacy," but that's a term of art used interchangeably with the phrase "legitimate expectation of privacy" — the word "reasonable" in that term of art is very different from the general balancing test of reasonableness that applies once a search or seizure has been identified.) Anyway, Breyer was therefore looking for some sort of way to say when GPS monitoring was reasonable and desirable, rather than what was a constitutional search or seizure. I don't think he really found an answer that satisfied him on either side.
5) Justice Sotomayor and Ginsburg were both very worried about the Big Brother implication of using GPS devices: I counted 5 or so references to Orwell's 1984. At the same time, both were struggling to identify exactly what the constitutional rule was that would regulate GPS monitoring. Merely watching a suspect in a city street was obviously not a search or seizure. Does that change if you switch to video cameras? Lots of cameras? Beepers? GPS devices? Where do you draw the line? Counsel for Jones suggested that the Court could say that this case was a search or seizure but leave open the other cases, but the Justices wanted clearer answers than that. And there was some frustration at the inability to draw constitutional lines from the defendant's side: At one point Justice Sotomayor responded to one of the defense's proposed lines by proclaiming, "What an unworkable rule tethered to no principle!"
6) The "mosaic theory" adopted by the D.C. Circuit didn't seem to go anywhere with the Justices. I think the only Justice who mentioned it during Dreeben's argument was Chief Justice Roberts. Roberts' question was straight out of the defense-side briefs, arguing that GPS surveillance over a long period allowed the government to assemble a mosaic, and was much cheaper and easier for the government than the beeper surveillance in Knotts. At the same time, I couldn't tell if Roberts was asking those questions just to see Dreeben's response or because he genuinely was sympathetic to the defense side. The mosaic theory came up a bit during Leckar's argument, but the Justices were mostly very skeptical: As Justice Scalia proclaimed, echoing Judge Sentelle below in his dissent from denial of rehearing en banc, "100 times zero is still zero." Leckar took the hint and didn't press the mosaic theory much during his argument.
7) One of the major questionsin the case is how the Justices view the prospect of future statutory regulation. It was clear that a lot of the Justices were deeply worried about the 1984 scenario, and were looking to find a sensible way to regulate GPS surveillance with a constitutional rule if it's necessary to avoid 1984. Arguing for the government, one of Dreeben's responses was that these were just the kind of problems that Congress could deal with: If everyone is spooked by the possibility of GPS surveillance, then that is all the more reason for the elected branches to act. It was hard to know exactly what the Justices thought of this: They know they can't control if Congress acts. If they decide that the Fourth Amendment doesn't apply because they expect statutory regulation to deal with this, what happens if they are wrong? I tend to think that it's very likely that Congress would act pretty swiftly to regulate GPS surveillance for the reasons explained in this article, but it's an question of guessing what the future might look like and I suspect different Justices will look at it differently.
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