CONSTITUTIONAL LAW
Cases, History, and Practice
Fourth Edition
2014 Supplement
WILLIAM D. ARAIZA
Professor of Law
Brooklyn Law School
M. ISABEL MEDINA
Ferris Family Distinguished Professor of Law
Loyola University New Orleans College of Law
TABLE OF CONTENTS
(Supplement Material in Bold)
PREFACE ………………………………………………………………………………..v
CHAPTER I: THE JUDICIAL POWER
B.
CONGRESSIONAL CHECKS ON THE JUDICIAL POWER
Note: Bankruptcy Courts and Article III ........................................................................1
C.
SELF-IMPOSED LIMITS ON THE JUDICIAL POWER
1.
The Political Question Doctrine
ZIVOTOFSKY v. CLINTON
....................................................................................3
2.
The Case or Controversy Requirement
b.
Standing
i.
The Basic Requirements
Note: Whose Legal Rights Are Infringed By Structural Violations? .............................17
iii.
Modern Applications
Note …………………….………………………..................................................................18
Note: Standing in the Same-Sex Marriage Cases .............................................................20
Note …………………….………………………..................................................................22
d. Mootness
Note …………………….………………………..................................................................23
CHAPTER II: FEDERAL REGULATORY POWER
B.
THE “NECESSARY AND PROPER” CLAUSE
Note: Introduction to the Federal Health Care Law and National Federation
of Independent Business v. Sebelius .......................................................................26
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS ............27
C.
FEDERAL POWER TO REGULATE THE ECONOMY
4.
A More Limited Commerce Power (?)
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS ............38
Note: The Status of the Commerce Clause Analysis in National Federation .................59
E.
INTERSTATE PRIVILEGES AND IMMUNITIES
Note …………………….………………………..................................................................59
F.
FEDERAL PRE-EMPTION OF STATE LAW
Note: Preemption in the 2010 Term ..................................................................................60
ARIZONA v. UNITED STATES ....................................................................................66
Note: Preemption Cases in the 2012 Term …………………….……………………… ..92
G.
FEDERAL REGULATION OF THE STATES
3.
Constitutional Limits on Judicial Remedies Against States
a.
The Young Doctrine
VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY v. STEWART ..........94
H. OTHER FEERAL REGULATORY POWERS
3. The Treaty Power
Note: Limits on the Treaty Power? ....................................................................................103
I. THE TAXING AND SPENDING POWER AS AN ALTERNATIVE TO REGULATION
1.
The General Scope of the Power
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS ............105
2. The Spending Power as a Means of Influencing State Government Conduct
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS ............111
CHAPTER III: THE DISTRIBUTION OF NATIONAL POWERS
C.
LOCATING THE CONSTITUTIONAL BOUNDARIES OF EXECUTIVE POWER
2. Presidential Immunities
Note …………………….………………………..................................................................129
D.
DEFINING THE RELATIONSHIP BETWEEN CONGRESS AND THE
BUREAUCRACY
Note: “Sailing Close to the Wind” On the Non-Delegation Doctrine .............................131
CHAPTER V: DUE PROCESS
C.
RIGHTS OR LIBERTIES ENTITLED TO HEIGHTENED PROTECTION UNDER
THE DUE PROCESS CLAUSE
Note …………………….………………………..................................................................133
D.
PROCEDURAL DUE PROCESS
TURNER v. ROGERS
……………............................................................................134
Note: A Right to Counsel in Removal Proceedings? .......................................................143
CHAPTER VI: THE EQUAL PROTECTION CLAUSE: EQUALITY
CONCEPTS
D.
RACE-COUNSCIOUS AFFIRMATIVE ACTION
Note …………………….………………………..................................................................144
Note: The Constitutionality of Bans on Government Consideration of Race ...............147
E.
GENDER-BASED DISCRIMINATION
3.
“Real” Differences or Stereotypes?
Note: Derivative Citizenship, Gender Discrimination and Real Differences ...............148
H:
THE FUNDAMENTAL RIGHTS STRAND OF EQUAL PROTECTION – RIGHT TO
MARRY, TRAVEL, VOTING, EDUCATION AND PRIVACY
UNITED STATES v. WINDSOR ....................................................................................149
Note …………………….………………………..................................................................167
CHAPTER VII: CONGRESSIONAL POWER TO ENFORCE THE
FOURTEENTH AMENDMENT
Note …………………….………………………..................................................................168
CHAPTER VIII:
ECONOMIC RIGHTS
B.
THE TAKING CLAUSE
Note …………………….………………………..................................................................171
Note: Takings and Government Induced Flooding .........................................................172
PREFACE TO THE 2014 SUPPLEMENT
After the headlines generated by the last two terms, which featured decisions on the
constitutionality of the Affordable Care Act, an important part of the Voting Rights Act, and the
Defense of Marriage Act, the Supreme Court’s 2013-2014 Term was quieter, at least in the areas
this book covers. This supplement adds just two cases, the merits decision in Bond v. United
States, and Schuette v. Coalition to Defend Affirmative Action. Nevertheless, these cases hold
the potential to become important milestones.
Bond gave a narrow reading to a federal law enacted to implement the United States’
accession to an international treaty on chemical weapons. The Court relied in part on concerns
about the appropriate scope of Congress’s treaty power when it interpreted that law as not
reaching an individual’s use of a small amount of chemicals as part of a private vendetta. While
the result in the case was unanimous, three justices would have gone farther, and imposed
restrictions on Congress’s treaty power, a topic that was generally thought to have been settled
since Missouri v. Holland.
Schuette upheld a Michigan referendum vote amending the state constitution to prohibit
state entities from taking race into account in its decision-making, most notably in state
university admissions decisions. The case did not directly involve the constitutionality of racebased affirmative action. Instead, it considered whether the decision to single out race as a
prohibited criterion for government decisions burdened racial minorities, by enacting a state
constitutional hurdle to use of that criterion, while entities such as state universities remained
free to use other decisional criteria. Such differential structuring of a state’s political process
(constitutionalizing restrictions on the use of some criteria, but leaving others open to debate and
decision at lower levels of government) had been condemned in a series of Supreme Court cases
beginning in 1969. Schuette interpreted those cases narrowly, thus limiting the so-called
“political process doctrine” they stood for.
This supplement is the last one that will be produced. The authors are grateful to those
students and professors who used the book. We hope it facilitated discussion and learning.
v
CHAPTER I: THE JUDICIAL POWER
B.
CONGRESSIONAL CHECKS ON THE JUDICIAL POWER
Page 119: Add after CFTC v. Schor:
Note: Bankruptcy Courts and Article III
In Stern v. Marshall, 180 L.Ed.2d 924 (2011), the Court again took up the question of
Article III-based limits on the jurisdiction of Article I courts, this time in the context of
bankruptcy courts. Federal bankruptcy courts, which are not Article III courts, have often been
the subject of cases raising this question: by their very nature, as tribunals intended to allow a
consolidated resolution of all of the bankrupt party’s affairs, they adjudicate a wide variety of
claims. This practice leads to arguments that those courts are unconstitutionally playing the role
Article III reserved for the federal courts. One bankruptcy court case, Northern Pipeline Constr.
Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), is discussed in the Schor case excerpted in
the casebook. Another such case, Granfinanciera S.A. v. Nordberg, 492 U.S. 33 (1989),
considered an issue closely related to the Article III issue.
Stern grew out of a bitter family dispute between the bankrupt party, Vickie Marshall (a
celebrity better known as Anna Nicole Smith), and Pierce Marshall. Vickie married Pierce’s
father and eventually sued Pierce, alleging that Pierce had interfered in his father’s plans to
provide for Vickie in his will. After the father died, Vickie filed for bankruptcy. Pierce made a
claim against her estate in the bankruptcy court, alleging that Vickie had defamed him in the
press. Vickie counterclaimed, again in the bankruptcy court, alleging tortious interference with
the plans Pierce’s father had to provide for Vickie. The bankruptcy court ruled in Vickie’s favor
on her counterclaim.
Pierce appealed to federal court, arguing that the bankruptcy court could not exercise
jurisdiction over Vickie’s counterclaim. When his appeal reached the Supreme Court, it agreed
with him. Writing for the five-justice majority, Chief Justice Roberts first wrestled with whether
Vickie’s counterclaim constituted a “public right.” After a long discussion of cases dating back
to the Nineteenth Century and including Northern Pipeline, Schor and Granfinanciera, the Court
concluded that her counterclaim “does not fall within any of the varied formulations of the public
1
rights exception [to the prohibition on Article I courts] in this Court’s cases.” He wrote: “It is
not a matter that can be pursued only by the grace of the other branches . . . or one that
historically could have been determined exclusively by those branches. . .”
Chief Justice Roberts continued:
In addition, Vickie’s claimed right . . . does not flow from a federal statutory
scheme . . . . [and] is not completely dependent upon adjudication of a claim
created by federal law . . . . And in contrast to the objecting party in Schor, Pierce
did not truly consent to resolution of Vickie’s claim in the bankruptcy court
proceedings. He had nowhere else to go if he wished to recover from Vickie’s
estate.
Furthermore, the asserted authority to decide Vickie’s claim is not limited to a
particularized area of the law, as in . . . Schor. . . . This is not a situation in which
Congress devised an expert and inexpensive method for dealing with a class of
questions of fact which are particularly suited to examination and determination
by an administrative agency specially assigned to that task. . . .
Chief Justice Roberts then cautioned that the unique context of bankruptcy courts distinguished
this case from those cases (presumably including Schor) where the agency was given the power
to adjudicate claims under a statute the agency was tasked with implementing:
We recognize that there may be instances in which the distinction between public
and private rights – at least as framed by some of our recent cases – fails to
provide concrete guidance as to whether, for example, a particular agency can
adjudicate legal issues under a substantive regulatory scheme. Given the extent to
which this case is so markedly distinct from the agency cases discussing the
public rights exception in the context of such a regime, however, we do not in this
opinion express any view on how the doctrine might apply in that different
context.
Justice Scalia concurred, but expressed concern with what he called “[t]he sheer surfeit of
factors that the Court was required to consider in this case.” He wrote:
Leaving aside certain adjudications by federal administrative agencies, which are
governed (for better or worse) by our landmark decision in Crowell v. Benson,
285 U.S. 22 (1932), in my view an Article III judge is required in all federal
adjudications, unless there is a firmly established historical practice to the
contrary. For that reason – and not because of some intuitive balancing of benefits
and harms – I agree that Article III judges are not required in the context of
territorial courts, courts-martial, or true “public rights” cases.
2
Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, dissented. He relied
heavily on Schor, which he described as a case where the Court:
[T]ook a more pragmatic approach to the constitutional question. It sought to
determine whether, in the particular instance, the challenged delegation of
adjudicatory authority posed a genuine and serious threat that one branch of
Government sought to aggrandize its own constitutionally delegated authority by
encroaching upon a field of authority that the Constitution assigns exclusively to
another branch.
He noted that under Schor “[t]he presence of ‘private rights’ does not automatically
determine the outcome of the question but requires a more ‘searching’ examination of the
relevant factors” from that case. Applying those factors, he concluded that bankruptcy court
adjudication of the claim at issue was constitutional. He conceded that the right at issue was
private. But he noted that bankruptcy court judges “enjoy considerable protection from improper
political influence.” He noted the control Article III courts had over bankruptcy proceedings, in
particular, the power of an Article III district court to withdraw any case from a bankruptcy
court, on the district court’s own motion or the motion of any party, for cause shown. He also
argued that the parties consented to bankruptcy court jurisdiction, arguing that Pierce had
litigation options other than filing in that court. Finally, he noted the importance of allowing
bankruptcy courts to exert maximum control over the bankrupt estate’s litigation, in order to
ensure orderly disposition of the estate’s assets.
C.
SELF-IMPOSED LIMITS ON THE JUDICIAL POWER
1.
The Political Question Doctrine
Page 137: Add at the end of the page:
ZIVOTOFSKY v. CLINTON
182 L.Ed.2d 423 (2012)
Roberts, C.J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg,
and Kagan, JJ., joined. Sotomayor, J., filed an opinion concurring in part and concurring in the
judgment, in which Breyer, J., joined as to Part I. Alito, J., filed an opinion concurring in the
judgment. Breyer, J., filed a dissenting opinion.
Congress enacted a statute providing that Americans born in Jerusalem may elect to have
“Israel” listed as the place of birth on their passports. The State Department declined to follow
that law, citing its longstanding policy of not taking a position on the political status of
3
Jerusalem. When sued by an American who invoked the statute, the Secretary of State argued
that the courts lacked authority to decide the case because it presented a political question. The
Court of Appeals so held.
We disagree. The courts are fully capable of determining whether this statute may be
given effect, or instead must be struck down in light of authority conferred on the Executive by
the Constitution.
I
A
In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003.
Section 214 of the Act is entitled “United States Policy with Respect to Jerusalem as the Capital
of Israel.” . . . The fourth and final provision, § 214(d), is the only one at stake in this case.
Entitled “Record of Place of Birth as Israel for Passport Purposes,” it provides that “[f]or
purposes of the registration of birth, certification of nationality, or issuance of a passport of a
United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the
citizen or the citizen’s legal guardian, record the place of birth as Israel.”
The State Department’s Foreign Affairs Manual states that “[w]here the birthplace of the
applicant is located in territory disputed by another country, the city or area of birth may be
written in the passport.” The manual specifically directs that passport officials should enter
“JERUSALEM” and should “not write Israel or Jordan” when recording the birthplace of a
person born in Jerusalem on a passport.
Section 214(d) sought to override this instruction by allowing citizens born in Jerusalem
to have “Israel” recorded on their passports if they wish. In signing the Foreign Relations
Authorization Act into law, President George W. Bush stated his belief that § 214
“impermissibly interferes with the President’s constitutional authority to conduct the Nation’s
foreign affairs and to supervise the unitary executive branch.” Statement on Signing the Foreign
Relations Authorization Act, Fiscal Year 2003, Public Papers of the Presidents, George W. Bush,
Vol. 2, Sept. 30, 2002, p. 1698 (2005). He added that if the section is “construed as mandatory,”
then it would “interfere with the President’s constitutional authority to formulate the position of
the United States, speak for the Nation in international affairs, and determine the terms on which
recognition is given to foreign states.” He concluded by emphasizing that “U.S. policy regarding
Jerusalem has not changed.” The President made no specific reference to the passport mandate in
§ 214(d).
4
B
Petitioner Menachem Binyamin Zivotofsky was born in Jerusalem on October 17, 2002,
shortly after § 214(d) was enacted. Zivotofsky’s parents were American citizens and he
accordingly was as well, by virtue of congressional enactment. 8 U.S.C. § 1401(c). Zivotofsky’s
mother filed an application for a consular report of birth abroad and a United States passport. She
requested that his place of birth be listed as “Jerusalem, Israel” on both documents. U.S. officials
informed Zivotofsky’s mother that State Department policy prohibits recording “Israel” as
Zivotofsky’s place of birth. Pursuant to that policy, Zivotofsky was issued a passport and
consular report of birth abroad listing only “Jerusalem.”
Zivotofsky’s parents filed a complaint on his behalf against the Secretary of State.
Zivotofsky sought a declaratory judgment and a permanent injunction ordering the Secretary to
identify his place of birth as “Jerusalem, Israel” in the official documents. The District Court
granted the Secretary’s motion to dismiss the complaint on the grounds that Zivotofsky lacked
standing and that his complaint presented a nonjusticiable political question.
The Court of Appeals for the D.C. Circuit reversed, concluding that Zivotofsky did have
standing. . . . It therefore remanded the case to the District Court.
The District Court again found that the case was not justiciable. It explained that
“[r]esolving [Zivotofsky’s] claim on the merits would necessarily require the Court to decide the
political status of Jerusalem.” Concluding that the claim therefore presented a political question,
the District Court dismissed the case for lack of subject matter jurisdiction.
The D.C. Circuit affirmed. It reasoned that the Constitution gives the Executive the
exclusive power to recognize foreign sovereigns, and that the exercise of this power cannot be
reviewed by the courts. Therefore, “deciding whether the Secretary of State must mark a passport
..., as Zivotofsky requests, would necessarily draw [the court] into an area of decisionmaking the
Constitution leaves to the Executive alone.” The D.C. Circuit held that the political question
doctrine prohibits such an intrusion by the courts, and rejected any suggestion that Congress’s
decision to take “a position on the status of Jerusalem” could change the analysis.
Judge Edwards concurred in the judgment, but wrote separately to express his view that
the political question doctrine has no application to this case. . . ..
Zivotofsky petitioned for certiorari, and we granted review.
II
The lower courts concluded that Zivotofsky’s claim presents a political question and
therefore cannot be adjudicated. We disagree.
5
In general, the Judiciary has a responsibility to decide cases properly before it, even those
it “would gladly avoid.” Cohens v. Virginia, 6 Wheat. 264 (1821). Our precedents have
identified a narrow exception to that rule, known as the “political question” doctrine. We have
explained that a controversy “involves a political question . . . where there is ‘a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it.’” Nixon v. United
States, 506 U.S. 224 (1993) [Casebook p.129] (quoting Baker v. Carr, 369 U.S. 186 (1962)
[Casebook p.120]). In such a case, we have held that a court lacks the authority to decide the
dispute before it.
The lower courts ruled that this case involves a political question because deciding
Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of
constitutional power committed to him alone. The District Court understood Zivotofsky to ask
the courts to “decide the political status of Jerusalem.” This misunderstands the issue presented.
Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He
instead seeks to determine whether he may vindicate his statutory right, under § 214(d), to
choose to have Israel recorded on his passport as his place of birth.
For its part, the D.C. Circuit treated the two questions as one and the same. That court
concluded that “[o]nly the Executive—not Congress and not the courts—has the power to define
U.S. policy regarding Israel’s sovereignty over Jerusalem,” and also to “decide how best to
implement that policy.” Because the Department’s passport rule was adopted to implement the
President’s “exclusive and unreviewable constitutional power to keep the United States out of
the debate over the status of Jerusalem,” the validity of that rule was itself a “nonjusticiable
political question” that “the Constitution leaves to the Executive alone.” Indeed, the D.C.
Circuit’s opinion does not even mention § 214(d) until the fifth of its six paragraphs of analysis,
and then only to dismiss it as irrelevant: “That Congress took a position on the status of
Jerusalem and gave Zivotofsky a statutory cause of action ... is of no moment to whether the
judiciary has [the] authority to resolve this dispute....”
The existence of a statutory right, however, is certainly relevant to the Judiciary’s power
to decide Zivotofsky’s claim. The federal courts are not being asked to supplant a foreign policy
decision of the political branches with the courts’ own unmoored determination of what United
States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a
specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s
interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar
judicial exercise.
Moreover, because the parties do not dispute the interpretation of § 214(d), the only real
question for the courts is whether the statute is constitutional. At least since Marbury v. Madison,
1 Cranch 137 (1803) [Casebook p.85], we have recognized that when an Act of Congress is
6
alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the
judicial department to say what the law is.” That duty will sometimes involve the “[r]esolution of
litigation challenging the constitutional authority of one of the three branches,” but courts cannot
avoid their responsibility merely “because the issues have political implications.” INS v. Chadha,
462 U.S. 919 (1983) [Casebook p.599].
In this case, determining the constitutionality of § 214(d) involves deciding whether the
statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law
must be invalidated and Zivotofsky’s case should be dismissed for failure to state a claim. If, on
the other hand, the statute does not trench on the President’s powers, then the Secretary must be
ordered to issue Zivotofsky a passport that complies with § 214(d). Either way, the political
question doctrine is not implicated. “No policy underlying the political question doctrine
suggests that Congress or the Executive ... can decide the constitutionality of a statute; that is a
decision for the courts.” Id.
The Secretary contends that “there is ‘a textually demonstrable constitutional
commitment’” to the President of the sole power to recognize foreign sovereigns and, as a
corollary, to determine whether an American born in Jerusalem may choose to have Israel listed
as his place of birth on his passport. Nixon (quoting Baker). Perhaps. But there is, of course, no
exclusive commitment to the Executive of the power to determine the constitutionality of a
statute. The Judicial Branch appropriately exercises that authority, including in a case such as
this, where the question is whether Congress or the Executive is “aggrandizing its power at the
expense of another branch.” See, e.g., Morrison v. Olson, 487 U.S. 654 (1988) [Casebook p.614]
(upholding a statute’s constitutionality against a charge that it “impermissibly interfere[d] with
the President’s exercise of his constitutionally appointed functions”).
Our precedents have also found the political question doctrine implicated when there is
“‘a lack of judicially discoverable and manageable standards for resolving’” the question before
the court. Nixon (quoting Baker). Framing the issue as the lower courts did, in terms of whether
the Judiciary may decide the political status of Jerusalem, certainly raises those concerns. They
dissipate, however, when the issue is recognized to be the more focused one of the
constitutionality of § 214(d). Indeed, both sides offer detailed legal arguments regarding whether
§ 214(d) is constitutional in light of powers committed to the Executive, and whether Congress’s
own powers with respect to passports must be weighed in analyzing this question.
For example, the Secretary reprises on the merits her argument on the political question
issue, claiming that the Constitution gives the Executive the exclusive power to formulate
recognition policy. She roots her claim in the Constitution’s declaration that the President shall
“receive Ambassadors and other public Ministers.” U.S. Const., Art. II, § 3. According to the
Secretary, “[c]enturies-long Executive Branch practice, congressional acquiescence, and
7
decisions by this Court” confirm that the “receive Ambassadors” clause confers upon the
Executive the exclusive power of recognition.
***
For his part, Zivotofsky argues that, far from being an exercise of the recognition power,
§ 214(d) is instead a “legitimate and permissible” exercise of Congress’s “authority to legislate
on the form and content of a passport.” . . . Zivotofsky suggests that Congress’s authority to
enact § 214(d) derives specifically from its powers over naturalization, U.S. Const., Art. I, § 8,
cl. 4, and foreign commerce, id., § 8, cl. 3. . . .
***
Recitation of these arguments—which sound in familiar principles of constitutional
interpretation—is enough to establish that this case does not “turn on standards that defy judicial
application.” Baker. Resolution of Zivotofsky’s claim demands careful examination of the
textual, structural, and historical evidence put forward by the parties regarding the nature of the
statute and of the passport and recognition powers. This is what courts do. The political question
doctrine poses no bar to judicial review of this case.
***
The judgment of the Court of Appeals for the D.C. Circuit is vacated, and the case is
remanded for further proceedings consistent with this opinion.
Justice Sotomayor, with whom Justice Breyer joins as to Part I, concurring in part and
concurring in the judgment.
As this case illustrates, the proper application of Baker’s six factors has generated
substantial confusion in the lower courts. I concur in the Court’s conclusion that this case does
not present a political question. I write separately, however, because I understand the inquiry
required by the political question doctrine to be more demanding than that suggested by the
Court.
I
The political question doctrine speaks to an amalgam of circumstances in which courts
properly examine whether a particular suit is justiciable – that is, whether the dispute is
appropriate for resolution by courts. The doctrine is “essentially a function of the separation of
powers,” Baker, which recognizes the limits that Article III imposes upon courts and accords
appropriate respect to the other branches’ exercise of their own constitutional powers.
In Baker, this Court identified six circumstances in which an issue might present a
political question: (1) “a textually demonstrable constitutional commitment of the issue to a
8
coordinate political department”; (2) “a lack of judicially discoverable and manageable standards
for resolving it”; (3) “the impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion”; (4) “the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due coordinate branches of
government”; (5) “an unusual need for unquestioning adherence to a political decision already
made”; or (6) “the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.” Baker established that “[u]nless one of these formulations is
inextricable from the case at bar, there should be no dismissal for nonjusticiability.” But Baker
left unanswered when the presence of one or more factors warrants dismissal, as well as the
interrelationship of the six factors and the relative importance of each in determining whether a
case is suitable for adjudication.
In my view, the Baker factors reflect three distinct justifications for withholding
judgment on the merits of a dispute. When a case would require a court to decide an issue whose
resolution is textually committed to a coordinate political department, as envisioned by Baker’s
first factor, abstention is warranted because the court lacks authority to resolve that issue. See,
e.g., Nixon (holding nonjusticiable the Senate’s impeachment procedures in light of Article I’s
commitment to the Senate of the “‘sole Power to try all Impeachments’”); see also Marbury (“By
the constitution of the United States, the president is invested with certain important political
powers, in the exercise of which he is to use his own discretion, and is accountable only to his
country in his political character, and to his own conscience”). In such cases, the Constitution
itself requires that another branch resolve the question presented.
The second and third Baker factors reflect circumstances in which a dispute calls for
decisionmaking beyond courts’ competence. “‘The judicial Power’ created by Article III, § 1, of
the Constitution is not whatever judges choose to do,” but rather the power “to act in the manner
traditional for English and American courts.” Vieth v. Jubelirer, 541 U.S. 267 (2004) [Casebook
Note at p.137] (plurality opinion). That traditional role involves the application of some
manageable and cognizable standard within the competence of the Judiciary to ascertain and
employ to the facts of a concrete case. When a court is given no standard by which to adjudicate
a dispute, or cannot resolve a dispute in the absence of a yet-unmade policy determination
charged to a political branch, resolution of the suit is beyond the judicial role envisioned by
Article III. See, e.g., Gilligan v. Morgan, 413 U.S. 1 (1973) (“[I]t is difficult to conceive of an
area of governmental activity in which the courts have less competence” than “[t]he complex,
subtle, and professional decisions as to the composition, training, equipping, and control of a
military force”); Vieth (“One of the most obvious limitations imposed by [Article III] is that
judicial action must be governed by standard ... ”). This is not to say, of course, that courts are
incapable of interpreting or applying somewhat ambiguous standards using familiar tools of
statutory or constitutional interpretation. But where an issue leaves courts truly rudderless, there
can be “no doubt of [the] validity” of a court’s decision to abstain from judgment. Ibid.
9
The final three Baker factors address circumstances in which prudence may counsel
against a court’s resolution of an issue presented. Courts should be particularly cautious before
forgoing adjudication of a dispute on the basis that judicial intervention risks “embarrassment
from multifarious pronouncements by various departments on one question,” would express a
“lack of the respect due coordinate branches of government,” or because there exists an “unusual
need for unquestioning adherence to a political decision already made.” Baker. We have
repeatedly rejected the view that these thresholds are met whenever a court is called upon to
resolve the constitutionality or propriety of the act of another branch of Government. See, e.g.,
Powell v. McCormack, 395 U.S. 486 (1969) [Casebook p.128]. A court may not refuse to
adjudicate a dispute merely because a decision “may have significant political overtones” or
affect “the conduct of this Nation’s foreign relations.” Nor may courts decline to resolve a
controversy within their traditional competence and proper jurisdiction simply because the
question is difficult, the consequences weighty, or the potential real for conflict with the policy
preferences of the political branches. The exercise of such authority is among the “gravest and
most delicate dut[ies] that this Court is called on to perform,” Blodgett v. Holden, 275 U.S. 142
(1927) (Holmes, J., concurring), but it is the role assigned to courts by the Constitution.
“Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do
is, to exercise our best judgment, and conscientiously to perform our duty.” Cohens.
Rare occasions implicating Baker's final factors, however, may present an “‘unusual
case’” unfit for judicial disposition. Baker (quoting the argument of Daniel Webster in Luther v.
Borden, 7 How. 1 (1849)). Because of the respect due to a coequal and independent department,
for instance, courts properly resist calls to question the good faith with which another branch
attests to the authenticity of its internal acts. See, e.g., Field v. Clark, 143 U.S. 649 (1892)
(deeming “forbidden by the respect due to a coordinate branch of the government” “[j]udicial
action” requiring a belief in a “deliberate conspiracy” by the Senate and House of
Representatives “to defeat an expression of the popular will”). Likewise, we have long
acknowledged that courts are particularly ill suited to intervening in exigent disputes
necessitating unusual need for “attributing finality to the action of the political departments,”
Coleman v. Miller, 307 U.S. 433, or creating acute “risk [of] embarrassment of our government
abroad, or grave disturbance at home,” Baker. See, e.g., Luther (“After the President has acted
and called out the militia, is a Circuit Court of the United States authorized to inquire whether his
decision was right? ... If the judicial power extends so far, the guarantee contained in the
Constitution of the United States is a guarantee of anarchy, and not of order”). Finally, it may be
appropriate for courts to stay their hand in cases implicating delicate questions concerning the
distribution of political authority between coordinate branches until a dispute is ripe, intractable,
and incapable of resolution by the political process. Abstention merely reflects that judicial
intervention in such cases is “legitimate only in the last resort,” and is disfavored relative to the
prospect of accommodation between the political branches.
10
When such unusual cases arise, abstention accommodates considerations inherent in the
separation of powers and the limitations envisioned by Article III, which conferred authority to
federal courts against a common-law backdrop that recognized the propriety of abstention in
exceptional cases. The political questions envisioned by Baker’s final categories find common
ground, therefore, with many longstanding doctrines under which considerations of justiciability
or comity lead courts to abstain from deciding questions whose initial resolution is better suited
to another time, see, e.g., National Park Hospitality Assn. v. Department of Interior, 538 U.S.
803 (2003) (ripeness); United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980)
(mootness); or another forum, see, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) (forum
non conveniens); Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941); (1943)
(abstention in favor of a state forum); United States v. Western Pacific R. Co., 352 U.S. 59
(1956) (primary jurisdiction doctrine). See also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332
(2006) (“The doctrines of mootness, ripeness, and political question all originate in Article III’s
‘case’ or ‘controversy’ language”).
To be sure, it will be the rare case in which Baker’s final factors alone render a case
nonjusticiable. 1 But our long historical tradition recognizes that such exceptional cases arise, and
due regard for the separation of powers and the judicial role envisioned by Article III confirms
that abstention may be an appropriate response.
II
The court below held that this case presented a political question because it thought
petitioner’s suit asked the court to decide an issue “textually committed” to a coordinate
branch—namely, “to review a policy of the State Department implementing the President’s
decision” to keep the United States out of the debate over the status of Jerusalem. Largely for the
reasons set out by the Court, I agree that the Court of Appeals misapprehended the nature of its
task. In two respects, however, my understanding of the political question doctrine might require
a court to engage in further analysis beyond that relied upon by the Court.
First, the Court appropriately recognizes that petitioner’s claim to a statutory right is
“relevant” to the justiciability inquiry required in this case. In order to evaluate whether a case
presents a political question, a court must first identify with precision the issue it is being asked
to decide. Here, petitioner’s suit claims that a federal statute provides him with a right to have
“Israel” listed as his place of birth on his passport and other related documents. To decide that
question, a court must determine whether the statute is constitutional, and therefore mandates the
1
Often when such factors are implicated in a case presenting a political question, other factors identified in Baker
will likewise be apparent. See, e.g., Nixon (“[i]n addition to the textual commitment argument,” finding persuasive
that “opening the door of judicial review” of impeachment procedures would “‘expose the political life of the
country to months, or perhaps years, of chaos’”); Baker (explaining that the Court in Luther v. Borden, found
present features associated with each of the three rationales underlying Baker’s factors)
11
Secretary of State to issue petitioner’s desired passport, or unconstitutional, in which case his suit
is at an end. Resolution of that issue is not one “textually committed” to another branch; to the
contrary, it is committed to this one. In no fashion does the question require a court to review the
wisdom of the President’s policy toward Jerusalem or any other decision committed to the
discretion of a coordinate department. For that reason, I agree that the decision below should be
reversed.
That is not to say, however, that no statute could give rise to a political question. It is not
impossible to imagine a case involving the application or even the constitutionality of an
enactment that would present a nonjusticiable issue. Indeed, this Court refused to determine
whether an Ohio state constitutional provision offended the Republican Guarantee Clause, Art.
IV, § 4, holding that “the question of whether that guarantee of the Constitution has been
disregarded presents no justiciable controversy.” Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565
(1916). A similar result would follow if Congress passed a statute, for instance, purporting to
award financial relief to those improperly “tried” of impeachment offenses. To adjudicate claims
under such a statute would require a court to resolve the very same issue we found nonjusticiable
in Nixon. Such examples are atypical, but they suffice to show that the foreclosure altogether of
political question analysis in statutory cases is unwarranted.
Second, the Court suggests that this case does not implicate the political question
doctrine’s concern with issues exhibiting “‘a lack of judicially discoverable and manageable
standards,’” because the parties’ arguments rely on textual, structural, and historical evidence of
the kind that courts routinely consider. But that was equally true in Nixon, a case in which we
found that “the use of the word ‘try’ in the first sentence of the Impeachment Trial Clause lacks
sufficient precision to afford any judicially manageable standard of review of the Senate’s
actions.” We reached that conclusion even though the parties’ briefs focused upon the text of the
Impeachment Trial Clause, “the Constitution’s drafting history,” “contemporaneous
commentary,” “the unbroken practice of the Senate for 150 years,” contemporary dictionary
meanings, “Hamilton’s Federalist essays,” and the practice in the House of Lords prior to
ratification. Such evidence was no more or less unfamiliar to courts than that on which the
parties rely here.
In my view, it is not whether the evidence upon which litigants rely is common to judicial
consideration that determines whether a case lacks judicially discoverable and manageable
standards. Rather, it is whether that evidence in fact provides a court a basis to adjudicate
meaningfully the issue with which it is presented. The answer will almost always be yes, but if
the parties’ textual, structural, and historical evidence is inapposite or wholly unilluminating,
rendering judicial decision no more than guesswork, a case relying on the ordinary kinds of
arguments offered to courts might well still present justiciability concerns.
12
In this case, however, the Court of Appeals majority found a political question solely on
the basis that this case required resolution of an issue “textually committed” to the Executive
Branch. Because there was no such textual commitment, I respectfully concur in the Court’s
decision to reverse the Court of Appeals.
Justice Alito, concurring in the judgment. [Omitted]
Justice Breyer, dissenting.
I join Part I of Justice Sotomayor’s opinion. As she points out, Baker set forth several
categories of legal questions that the Court had previously held to be “political questions”
inappropriate for judicial determination. Those categories include (1) instances in which the
Constitution clearly commits decisionmaking power to another branch of Government, and (2)
issues lacking judicially manageable standards for resolution. They also include (3) issues that
courts cannot decide without making “an initial policy determination of a kind clearly for
nonjudicial discretion,” (4) issues that a court cannot independently decide “without expressing
lack of the respect due coordinate branches of government,” (5) cases in which there is “an
unusual need for unquestioning adherence to a political decision already made,” and (6) cases in
which there is a potential for “embarrassment from multifarious pronouncements by various
departments on one question.”
As Justice Sotomayor also points out, these categories (and in my view particularly the
last four) embody “circumstances in which prudence may counsel against a court’s resolution of
an issue presented.” Ante; see Nixon (Souter, J., concurring in judgment) (the political-question
doctrine “deriv[es] in large part from prudential concerns about the respect we owe the political
departments”); see also Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.
L.Rev. 1265 (1961) (prudence counsels hesitation where a legal issue is “felt to be so closely
related to a complex of decisions not within the court’s jurisdiction that its resolution by the
court would either be poor in itself or would jeopardize sound decisions in the larger complex”).
Justice Sotomayor adds that the circumstances in which these prudential considerations
lead the Court not to decide a case otherwise properly before it are rare. I agree. But in my view
we nonetheless have before us such a case. Four sets of prudential considerations, taken together,
lead me to that conclusion.
First, the issue before us arises in the field of foreign affairs. . . . The Constitution
primarily delegates the foreign affairs powers “to the political departments of the government,
Executive and Legislative,” not to the Judiciary. Chicago & Southern Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103 (1948); see also Marbury (noting discretionary foreign
affairs functions of Secretary of State as beyond the power of the Judiciary to review). And that
fact is not surprising. Decisionmaking in this area typically is highly political. It is “delicate” and
“complex.” Chicago & Southern Air Lines. It often rests upon information readily available to
13
the Executive Branch and to the intelligence committees of Congress, but not readily available to
the courts. Ibid. It frequently is highly dependent upon what Justice Jackson called “prophecy.”
Ibid. And the creation of wise foreign policy typically lies well beyond the experience or
professional capacity of a judge. Ibid. At the same time, where foreign affairs is at issue, the
practical need for the United States to speak “with one voice and ac[t] as one,” is particularly
important.
The result is a judicial hesitancy to make decisions that have significant foreign policy
implications, as reflected in the fact that many of the cases in which the Court has invoked the
political-question doctrine have arisen in this area, e.g., cases in which the validity of a treaty
depended upon the partner state’s constitutional authority, or upon its continuing existence; cases
concerning the existence of foreign states, governments, belligerents, and insurgents; and cases
concerning the territorial boundaries of foreign states.
Second, if the courts must answer the constitutional question before us, they may well
have to evaluate the foreign policy implications of foreign policy decisions. The constitutional
question focuses upon a statutory provision, § 214(d), that says: The Secretary of State, upon the
request of a U.S. citizen born in Jerusalem (or upon the request of the citizen’s legal guardian),
shall “record” in the citizen’s passport or consular birth report “the place of birth as Israel.” And
the question is whether this statute unconstitutionally seeks to limit the President’s inherent
constitutional authority to make certain kinds of foreign policy decisions. See Clinton v. City of
New York, 524 U.S. 417 (1998) (“[T]his Court has recognized that in the foreign affairs arena,
the President has ‘a degree of discretion and freedom from statutory restriction which would not
be admissible were domestic affairs alone involved’” (quoting United States v. Curtiss–Wright
Export Corp., 299 U.S. 304 (1936) [Casebook Note at p.569]); cf. Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring) [Casebook p.561].
The Secretary of State argues that the President’s constitutional authority to determine
foreign policy includes the power to recognize foreign governments, that this Court has long
recognized that the latter power belongs to the President exclusively, that the power includes the
power to determine claims over disputed territory as well as the policy governing recognition
decisions, and that the statute unconstitutionally limits the President’s exclusive authority to
exercise these powers. See U.S. Const., Art. II, § 2, cl. 2; Art. II, § 3.
Zivotofsky, supported by several Members of Congress, points out that the Constitution
also grants Congress powers related to foreign affairs, such as the powers to declare war, to
regulate foreign commerce, and to regulate naturalization. See Art. I, § 8, cls. 3, 4, 11. They add
that Congress may share some of the recognition power and its attendant power of determining
claims over disputed territory. And they add that Congress may enact laws concerning travel into
this country and concerning the citizenship of children born abroad to U.S. citizens. See
Henderson v. Mayor of New York, 92 U.S. 259 (1876) (travel); Fong Yue Ting v. United States,
14
149 U.S. 698 (1893) (immigration); United States v. Wong Kim Ark, 169 U.S. 649 (1898)
(citizenship) [Casebook p.499]. They argue that these powers include the power to specify the
content of a passport (or consular birth report). And when such a specification takes the form of
statutory law, they say, the Constitution requires the President (through the Secretary of State) to
execute that statute. See Art. II, § 3.
Were the statutory provision undisputedly concerned only with purely administrative
matters (or were its enforcement undisputedly to involve only major foreign policy matters),
judicial efforts to answer the constitutional question might not involve judges in trying to answer
questions of foreign policy. But in the Middle East, administrative matters can have implications
that extend far beyond the purely administrative. Political reactions in that region can prove
uncertain. And in that context it may well turn out that resolution of the constitutional argument
will require a court to decide how far the statute, in practice, reaches beyond the purely
administrative, determining not only whether but also the extent to which enforcement will
interfere with the President’s ability to make significant recognition-related foreign policy
decisions.
Certainly the parties argue as if that were so. Zivotofsky, for example, argues that
replacing “Jerusalem” on his passport with “Israel” will have no serious foreign policy
significance. . . .
At the same time, the Secretary argues that listing Israel on the passports (and consular
birth reports) of Americans born in Jerusalem will have significantly adverse foreign policy
effects. . . .
A judge’s ability to evaluate opposing claims of this kind is minimal. At the same time, a
judicial effort to do so risks inadvertently jeopardizing sound foreign policy decisionmaking by
the other branches of Government. How, for example, is this Court to determine whether, or the
extent to which, the continuation of the adjudication that it now orders will itself have a foreign
policy effect?
Third, the countervailing interests in obtaining judicial resolution of the constitutional
determination are not particularly strong ones. Zivotofsky does not assert the kind of interest,
e.g., an interest in property or bodily integrity, which courts have traditionally sought to protect.
Nor, importantly, does he assert an interest in vindicating a basic right of the kind that the
Constitution grants to individuals and that courts traditionally have protected from invasion by
the other branches of Government. And I emphasize this fact because the need for judicial action
in such cases can trump the foreign policy concerns that I have mentioned. As Professor Jaffe
pointed out many years ago, “Our courts would not refuse to entertain habeas corpus to test the
constitutionality of the imprisonment of an alleged Chinese agent even if it were clear that his
15
imprisonment was closely bound up with our relations to the Chinese government.” 74 Harv.
L.Rev., at 1304.
The interest that Zivotofsky asserts, however, is akin to an ideological interest. And
insofar as an individual suffers an injury that is purely ideological, courts have often refused to
consider the matter, leaving the injured party to look to the political branches for protection. This
is not to say that Zivotofsky’s claim is unimportant or that the injury is not serious or even that it
is purely ideological. It is to point out that those suffering somewhat similar harms have
sometimes had to look to the political branches for resolution of relevant legal issues.
Fourth, insofar as the controversy reflects different foreign policy views among the
political branches of Government, those branches have nonjudicial methods of working out their
differences. The Executive and Legislative Branches frequently work out disagreements through
ongoing contacts and relationships, involving, for example, budget authorizations, confirmation
of personnel, committee hearings, and a host of more informal contacts, which, taken together,
ensure that, in practice, Members of Congress as well as the President play an important role in
the shaping of foreign policy. Indeed, both the Legislative Branch and the Executive Branch
typically understand the need to work each with the other in order to create effective foreign
policy. In that understanding, those related contacts, and the continuous foreign policy-related
relationship lies the possibility of working out the kind of disagreement we see before us.
Moreover, if application of the political-question “doctrine ultimately turns, as Learned Hand put
it, on ‘how importunately the occasion demands an answer,’” Nixon (SOUTER, J., concurring in
judgment) (quoting L. Hand, The Bill of Rights 15 (1958)), the ability of the political branches to
work out their differences minimizes the need for judicial intervention here.
The upshot is that this case is unusual both in its minimal need for judicial intervention
and in its more serious risk that intervention will bring about “embarrassment,” show lack of
“respect” for the other branches, and potentially disrupt sound foreign policy decisionmaking.
For these prudential reasons, I would hold that the political-question doctrine bars further judicial
consideration of this case. And I would affirm the Court of Appeals’ similar conclusion.
With respect, I dissent.
16
2.
The Case or Controversy Requirement
b.
Standing
i.
The Basic Requirements
Page 162: Add after Singleton v. Wulff:
Note: Whose Legal Rights Are Infringed By Structural Violations?
In later chapters you will read about the Constitution’s rules governing federalism, that is,
the rules governing the balance between federal and state power in our system. In Bond v.
United States, 180 L. Ed. 2d 269 (2011), the Court explicitly answered a question that, at most,
had only been implicitly answered in previous cases: for standing purposes, whose legal rights
are infringed when the federal government allegedly violates states’ constitutional autonomy?
Bond involved a federal criminal prosecution of a woman who had allegedly used a
chemical to harm a romantic rival. The federal statute under which she was charged was enacted
in order to implement a chemical weapons treaty ratified by the United States. (As you will learn
in Chapter II, Congress is authorized to enact statutes that implement treaties ratified by the
Senate.) Bond pleaded guilty, but reserved the right to argue that the federal statute exceeded
Congress’s power to enact laws implementing U.S. treaty obligations. The district court denied
her motion. On appeal, the appellate court held that Bond lacked standing to claim that the
statute exceeded Congress’s Article I power to implement treaties.
As relevant for our purposes, the dispute at the Court centered not on whether Bond had
Article III standing, but rather, on whether Bond violated “the prudential rule that a party
‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties.’” Bond (quoting Warth v. Seldin). The Court
unanimously held that Bond satisfied this requirement, because federalism-based limits on
congressional power protected not just states’ autonomy interests, but individuals’ legal interests
as well. Writing for the Court, Justice Kennedy explained as follows:
Federalism has more than one dynamic. . . . The allocation of powers in our
federal system preserves the integrity, dignity, and residual sovereignty of the
States. . . .
But that is not its exclusive sphere of operation. State sovereignty is not just an
end in itself: Rather, federalism secures to citizens the liberties that derive from
this diffusion of sovereign power.
17
Thus, he concluded, “An individual has a direct interest in objecting to laws that upset the
constitutional balance between the National Government and the States when the enforcement of
those laws causes injury that is concrete, particular, and redressable.” He then expanded on this
idea, citing examples where the Court had heard individuals’ challenges to laws alleged to
violate the separation of powers between the various branches of the federal government.
(Chapter I addresses separation of powers issues involving the federal courts; Chapter III will
address similar issues arising between Congress and the President.) He concluded: “If the
constitutional structure of our Government that protects individual liberty is compromised,
individuals who suffer otherwise justiciable injury may object.” The Court remanded the case to
consider the merits of Bond’s federalism argument.
Justice Ginsburg, joined by Justice Breyer concurred. Her short separate opinion began
with the following two sentences: “I join the Court’s opinion and write separately to make the
following observation. Bond, like any other defendant, has a personal right not to be convicted
under a constitutionally invalid law.” She continued:
If a law is invalid as applied to a criminal defendant, the defendant is entitled to
go free.
For this reason, a court has no “prudential” license to decline to consider whether
the statute under which the defendant has been charged lacks constitutional
application to her conduct.
iii.
Modern Applications
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The Court again cut back on Flast in Arizona Christian School Tuition Organization v.
Winn, 179 L.Ed.2d 523 (2011). In Winn the taxpayer-plaintiffs challenged, as violating the First
Amendment’s Establishment Clause, an Arizona law that provided a dollar-for-dollar income tax
credit for contributions to “school tuition organizations” or “STOs.” In order for contributions to
qualify for the tax credit an STO had to allocate at least ninety percent of its annual revenue for
educational scholarships or tuition grants to “qualified schools.” “Qualified schools” were
defined, inter alia, as private schools that did not discriminate on the basis of race, color,
handicap, family status, or national origin. The plaintiffs alleged that “qualified schools”
included religious schools, some of which discriminated on the basis of religion in selecting their
students. The district court held that the plaintiffs lacked standing, and the Ninth Circuit
reversed, concluding that the plaintiffs had standing under Flast.
18
The Supreme Court reversed the appellate court, and held that the plaintiffs lacked
standing. Writing for the five-Justice majority, Justice Kennedy distinguished tax credits of the
sort at issue in Winn and direct government expenditures on religion of the sort that gave rise to
the taxpayer-plaintiffs’ standing in Flast. He recognized that both types of provisions “can have
similar economic consequences.” However, he concluded that “tax credits and governmental
expenditures do not both implicate individual taxpayers in sectarian activities.” According to
Justice Kennedy, “[w]hen the government declines to impose a tax . . . there is no . . . connection
between dissenting taxpayer and alleged establishment” because the government is not extracting
money from an objecting taxpayer and spending that money on supporting religion. Thus, he
concluded, “[t]he STO tax credit is not tantamount to a religious tax or a tithe and does not visit
the injury identified in Flast.”
Justice Kennedy also argued that the plaintiffs could not satisfy the causation and
redressability prongs of standing. He observed that, with extraction of taxes and the use of that
money to support religion, “governmental choices are responsible for the transfer of wealth” to
religious institutions. Thus, challenges to such actions would satisfy causation (and also
redressability, since an injunction against that use of tax revenue would address the plaintiffs’
conscience-based objections). By contrast, under the Arizona law “contributions [to religion]
result from the decisions of private taxpayers regarding their own funds.”
Justice Scalia, joined by Justice Thomas, concurred. As he did in Hein, he called for the
overruling of Flast, which he described as “an anomaly in our jurisprudence, irreconcilable with
the Article III restriction on federal judicial power that our opinions have established.”
However, unlike in Hein, he joined the majority opinion “because it finds respondents lack
standing by applying Flast rather than distinguishing it away on unprincipled grounds.”
Justice Kagan dissented for four justices. She wrote:
Cash grants and targeted tax breaks are means of accomplishing the same
government objective – to provide financial support to select individuals or
organizations. Taxpayers who oppose state aid of [sic] religion have equal reason
to protest whether that aid flows from the one form of subsidy or the other.
She argued that “tax expenditures” (the economic term for preferential tax treatment of
the type in the Arizona law) were indistinguishable from direct government spending, noting that
they were tabulated by government budgeting offices in the same manner as direct spending.
She criticized the majority’s attempt to distinguish the claim in Winn from that in Flast on the
ground that in the former there was no extraction of actual funds from the taxpayer-plaintiffs,
characterizing that analysis as inconsistent with Flast’s holding. She concluded by arguing that
the majority’s decision “devastates taxpayer standing in Establishment Clause cases”:
19
The Court’s opinion . . . offers a roadmap – more truly, just a one-step instruction
– to any government that wishes to insulate its financing of religious activity from
legal challenge. Structure the funding as a tax expenditure, and Flast will not
stand in the way.
Page 182: Insert before Friends of the Earth v. Laidlaw Environmental Services:
Note: Standing in the Same-Sex Marriage Cases
In addition to raising difficult individual rights issues (see Chapter VI of this
Supplement), the same-sex marriage cases decided in the 2012 term raised intricate issues about
standing that sharply divided the Court. The standing decisions in these cases turned largely on
the question of whether litigants defending restrictions on same-sex marriage possessed a
concrete interest in the outcome of the litigation. Both cases featured tangled procedural
histories that have to be explained in some detail in order to understanding the standing issues
they raised.
1.
Hollingsworth: One of the cases, Holligsworth v. Perry, 2013 U.S. LEXIS 4919,
concerned a challenge to California’s ban on same-sex marriage. In 2008, the California
Supreme Court held that the state’s ban on same-sex marriage violated the state constitution’s
equal protection provision. (This state law provision is independent and distinct from the
Fourteenth Amendment. See the note at page 97 of the Casebook on the “adequate and
independent state law ground” doctrine.) The state supreme court’s decision prompted
opponents of same-sex marriage to place on the November 2008 ballot an initiative, Proposition
8, which would restrict marriage to opposite sex couples. California voters adopted Proposition
8 in the 2008 election.
After Proposition 8 went into effect two same-sex couples challenged it in federal court,
as violating their federal constitutional rights. While the defendant-state officials continued to
deny marriage licenses to same-sex couples, they refused to defend Proposition 8 in court. At
that point proponents of Proposition 8 intervened in the case in order to defend it. The district
court held a bench trial, and in 2010 declared Proposition 8 unconstitutional. (See the note at
page 791 of the casebook.) The state officials refused to appeal that decision, but the proponents
did. The appellate court, however, was unsure whether the proponents had standing to appeal.
That uncertainty led the court to “certify” to the California Supreme Court the question whether,
under California law, the proponents had a particularized interest in the Proposition 8’s
constitutionality, or whether, again under state law, the proponents were authorized to assert
Proposition 8’s constitutionality in litigation. (“Certification” is a procedural mechanism
whereby a federal court can ask a state supreme court to clarify an unclear matter of state law;
the theory is that this process respects the state court’s position as the ultimate expositor of state
20
law.) The California Supreme Court issued an opinion concluding that the official proponents of
a successful initiative are authorized under state law to defend the initiative’s validity when state
officials decline to do so. Based on that decision, the federal appellate court held that the
proponents of Proposition 8 had standing to appeal the district court’s decision. It thus reached
the merits, and affirmed the district court decision. The proponents again appealed.
On a 5-4 vote the Supreme Court held that the proponents did not have Article III
standing, either to appeal to the appellate court or to the Supreme Court. Writing for the
majority, Chief Justice Roberts concluded that the proponents lacked “a direct stake” in the
outcome of their appeal. Instead, he said, “[t]heir only interest in having the District Court order
reversed was to vindicate the constitutional validity of a generally applicable California law.”
Thus, he concluded, the proponents had stated merely a generalized grievance, which does not
suffice as injury for Article III purposes.
Justice Kennedy, joined by Justices Thomas, Alito and Sotomayor, dissented. Justice
Kennedy argued that the majority’s conclusion disrespected California’s initiative process, by
denying to initiative proponents the ability to defend a successful ballot measure in the face of
state officials’ refusal to perform that role. He noted that the entire point of the initiative process
was to bypass elected officials, and concluded that the denial of the proponents’ standing
frustrated the sovereign choice California had made to adopt such a process. He found support
for this argument in the California Supreme Court decision that state law authorized the official
proponents of an initiative to defend the initiative in the face of officials’ refusal to do so,
concluding that that decision reflected the people of California’s desire to ensure the integrity of
the initiative process in the face of official resistance.
2.
Windsor: United States v. Windsor considered a challenge to Section 3 of the 1996
Defense of Marriage Act (“DOMA”), a provision that prohibited federal recognition of same-sex
marriages even when the couple was validly married under the laws of their state. The effect of
Section 3 was that couples validly married under their state’s law would nevertheless be denied
recognition of their marriage for federal purposes, such as eligibility for Social Security survivor
benefits or the right to file a federal tax return as a married couple.
Windsor considered the case of two New York women who married in Canada then returned
to New York, where their marriage was recognized. (At that time New York did not itself
perform same-sex marriages, but it did recognize other jurisdictions’ same-sex marriages.)
When one of the women died the survivor was assessed a sizable federal estate tax to which she
would not have been subject if the federal government had recognized her marriage. She paid
the tax then sued for a refund, arguing that Section 3 of DOMA was unconstitutional.
The Court reached the merits of the case and ultimately ruled in Windsor’s favor. That part
of the case is presented in Chapter VI. However, before reaching the merits the Court had to
overcome a standing issue caused by the unusual alignment of the litigants. While Windsor’s
21
lawsuit was pending in federal district court the Attorney General, acting in response to the
President’s decision, informed Congress that the Department of Justice would no longer defend
Section 3’s constitutionality. However, he also explained that the United States would continue
to enforce it, in order to provide Congress with an opportunity to participate in the litigation of
the issue. In response, the Bipartisan Legal Advisory Group (BLAG) of the House of
Representatives, a group on whom the full House had bestowed authority “to speak for and
articulate[] the institutional position of the house” in Windsor, voted to intervene in the litigation
to defend Section 3. Ultimately, the district court ruled that Section 3 was unconstitutional.
Both the United States and BLAG appealed, and the appellate court affirmed the district court’s
holding that Section 3 was unconstitutional. Both the United States and BLAG petitioned for
Supreme Court review.
Thus, as the case reached the Court the question was whether either petitioner had standing to
appeal. The Court ruled 5-4 that the United States had standing. Speaking for the majority,
Justice Kennedy concluded that the fact that a ruling favorable to Windsor would require the
federal government to refund her tax payment gave the government a stake in the outcome that
satisfied Article III’s injury requirement. The Court recognized that a court might still decline to
find standing for prudential reasons even if Article III standing existed, and that this case might
raise such a prudential concern because the ostensible defendant – the United States – conceded
the unconstitutionality of the statute it was enforcing. However, it concluded that BLAG’s
participation in the litigation and its effective defense of Section 3 dispensed with this issue.
Chief Justice Roberts dissented, arguing that on the merits Section 3 was constitutional. He
also expressed agreements with Justice Scalia’s view that no petitioner had standing to appeal.
Justice Scalia, joined in relevant part by Chief Justice Roberts and in full by Justice Thomas, also
dissented. In the part of his opinion joined by both the Chief Justice and Justice Thomas, he
argued that neither the United States nor BLAG had standing. He argued that any injury the
United States suffered would not be redressed by the relief it requested – the affirmance of the
lower court decision striking down Section 3 and ordering a refund of Windsor’s tax payment.
Justice Scalia also argued that holding that BLAG had standing would allow the courts to
become the arbiters of political clashes between Congress and the President whenever the former
believed that the latter was mis-administering the law.
Justice Alito, joined in part by Justice Thomas, also dissented. In the part of his opinion
speaking only for himself, Justice Alito argued that, while the United States did not have
standing to appeal, BLAG did. He concluded that precedents supported the conclusion that “[i]n
a narrow category of cases in which a court strikes down an Act of Congress and the Executive
declines to defend the Act, Congress . . . has standing to defend the undefended statute.”
22
Page 196: Add after item 4 in Note: Standing and Large-Scale Regulatory Issues:
In 2013 the Court continued considering standing issues in the context of broad,
programmatic government action, but of a very different type than in Massachusetts. In Clapper
v. Amnesty International, 185 L.Ed.2d 264 (2013), the Court considered a challenge to one of the
government’s statutorily-authorized foreign intelligence programs authorizing the interception of
electronic communications with entities who are not U.S. persons and are located outside the
United States. The plaintiffs in Clapper were not the targets of the intercepts, but rather
American lawyers and civil rights activists who worked with foreign entities located outside the
U.S. who might be targets. The plaintiffs claimed that they were injured because they might
communicate with the foreign entities while the latters’ communications were being tapped, and
hence would suffer a loss of privacy. They also argued that they were injured because,
regardless of whether their communications were in fact intercepted, the likelihood of
interception caused them to take steps, such as abandoning electronic communications in favor
of face-to-face meetings, that cost time and money. The district court found that the plaintiffs
lacked standing, but the appellate court reversed.
Splitting 5-4, the Court in turn reversed the appellate court and rejected the plaintiffs’
standing claims. Writing for the majority, Justice Alito first rejected the plaintiffs’ claims that
they were likely to be injured by the prospect of government interception of their interlocutors’
communications. The Court described this harm as “speculative.” It noted that the plaintiffs’
claim required a chain of assumptions: that the government in fact would seek to intercept the
conversation, that it would do so pursuant to the statutory scheme the plaintiffs challenged
(rather than other intelligence-gathering authorizations the plaintiffs did not challenge), that the
special national security court set up by the statute would approve the government’s request, that
the government would succeed in intercepting the communications, and that the plaintiffs’
communications would be among those intercepted. According to Justice Alito, the speculative
nature of this chain of events defeated any claim that the alleged threatened injury was “certainly
impending,” the standard the Court identified as the appropriate one for claims of future injury.
The Court then rejected the plaintiffs’ second standing argument. It concluded that
plaintiffs could not “manufacture standing” by taking costly actions (such as abandoning
electronic communications in favor of face-to-face meetings) to evade hypothetical future harm
of the sort the Court described in the first part of its analysis. He distinguished cases relied on by
the plaintiffs (and the dissent) where such current evasive action imposes costs that itself
constituted injury, concluding that in those cases the plaintiffs were unquestionably being
currently affected, thus connecting their costly evasive actions to their injury claim.
Dissenting for four justices, Justice Breyer argued that the plaintiffs had adequately stated
a claim of threatened injury sufficient to satisfy Article III’s requirements. Citing the plaintiffs’
activities as lawyers for foreign persons accused of terrorism and as human rights advocates, he
23
concluded that the plaintiffs had engaged in electronic communications the law authorized the
government to intercept, the government had a strong motive to intercept those communications,
had done so in the past, and had the capacity to continue doing so. Thus, he concluded that the
plaintiffs had shown “a high probability” that the government would intercept “at least some of”
their communications. He noted that the caselaw did not support the majority’s “certainly
impending” formula for evaluating claims of threatened future injury. He also argued, again in
contradiction to the majority, that the plaintiffs’ current actions taken to avoid intercepted
communications injured the plaintiffs in a way earlier cases had found adequate to satisfy the
injury requirement.
d. Mootness
Page 217: Add after Friends of the Earth v. Laidlaw Environmental Services:
In Friends of the Earth the Court described as “stringent” the standard for judging that a
party’s voluntary conduct had mooted a case. In a 2013 case, the Court found this standard
satisfied. In Already, LLC v. Nike, Inc., 184 L.Ed.2d 553 (2013), Nike, a well-known producer
of athletic footwear, brought a trademark infringement suit against Already, alleging that the
defendant had infringed on Nike’s trademarks for certain of its shoe designs. While the litigation
was pending, Nike issued a covenant not to sue, pledging not to sue Already under any claim that
Already was infringing on Nike’s trademarks by selling “colorable imitations” of Nike’s
products. Nike then moved to dismiss its lawsuit with prejudice, claiming that its covenant
mooted the suit. The lower courts agreed with Nike and granted its motion, and Already
appealed to the Supreme Court.
The Supreme Court unanimously agreed that the suit was moot. Writing for all nine
justices, Chief Justice Roberts cited the Friends of the Earth standard, but held that Nike’s
covenant not to sue had satisfied it, by comprehensively agreeing not to raise infringement
claims against Already. He also noted that Already had not claimed that it was planning on
introducing a shoe that might infringe Nike’s trademark but would not be covered by Nike’s
covenant.
The Court also rejected Already’s claims of other injuries that it asserted survived the
issuance of Nike’s covenant, concluding that those injuries did not suffice to establish Article III
injury. It rejected the argument that some of Already’s investors had stated an unwillingness to
invest further until Nike’s trademark was struck down by a court, concluding (citing Lujan v.
Defenders of Wildlife, excerpted at page 169 of the casebook) that such injury was too
speculative to satisfy Article III’s requirements. The Court also rejected Already’s argument that
it was injured by the very fact of Nike’s trademark, which Already argued made it more difficult
to compete with Nike. The Court rejected this “sweeping” and “boundless” injury claim.
24
Justice Kennedy, joined by Justices Thomas, Alito and Sotomayor, joined the Chief
Justice’s opinion, but also wrote separately to stress that covenants such as Nike’s in this case
“ought not to be taken as an automatic means [for an infringement plaintiff] to abandon the suit
without incurring the risk of an ensuring adverse adjudication.”
***
In Chafin v. Chafin, 185 L.Ed.2d 1 (2013), the Court considered whether an international
child custody dispute was mooted by the departure of the child to Scotland. In Chafin a foreigncitizen mother removed the child from the United States after receiving a favorable court order
from a federal district court, pursuant to legislation implementing an international convention on
child abduction. She then received a court order in Scotland confirming the mother’s custody
and the child’s Scottish residency. The father appealed the district court order, but the appellate
court dismissed the appeal as moot, concluding that it was “powerless” to grant relief.
The Supreme Court unanimously disagreed, and found that the case still presented a live
controversy. Again writing for the Court, Chief Justice Roberts rejected the mother’s argument
that the case was mooted by the legislation’s stripping of authority from American courts in such
situations, describing her argument as one on the merits rather than the continued existence of a
case or controversy. He conceded that the Scottish court decision made enforcement of any
order favorable to the father more uncertain, but noted that many live controversies featured
uncertain prospects for the enforcement of a court order – for example, when an insolvent
defendant is ordered to pay damages. He also noted that the parties had a live claim concerning
the father’s appeal of an order requiring him to pay court costs and travel expenses.
Justice Ginsburg, joined by Justices Scalia and Breyer, concurred, to stress the
importance of expeditious handling of such disputes, given their impact on the children involved.
25
CHAPTER II: FEDERAL REGULATORY POWER
B.
THE “NECESSARY AND PROPER” CLAUSE
Page 244: Add before Part C:
Note: Introduction to the Federal Health Care Law and
National Federation of Independent Business v. Sebelius
By far the seminal case of the Court’s October 2011 term was National Federation of
Independent Business v. Sebelius, 183 L. Ed. 2d 450 (2012), in which the Court upheld most of
the federal health care law, the Patient Protection and Affordable Care Act of 2010. In addition
to being a remarkably important public event – news programs reported on the decision live, as it
was being announced on the last day of the Court’s term – the opinions in National Federation
raise the prospect of important doctrinal innovations across a whole host of federal power issues,
ranging from Congress’s power to regulate interstate commerce, its power to tax and spend (in
particular, its power to offer financial grants to states that come conditioned on states’ taking
certain regulatory actions), and, as you have been learning, its power to enact laws “necessary
and proper for carrying into Execution” Congress’s other powers. U.S. Const. Art. I, § 8, cl. 18.
Whether National Federation leads to lasting changes in constitutional doctrine remains to be
seen. As you progress through this chapter you will learn about each of these doctrines, and what
the justices say about them in National Federation.
The authors of this Supplement have taken the opinions in National Federation and, after
editing them, placed their discussion of each of these issues in the appropriate place in Chapter
II. In other words, the opinions’ discussion of the Necessary and Proper Clause issue is placed at
the end of the casebook’s presentation of prior Necessary and Proper Clause decisions, their
discussion of the Commerce Clause issue is placed after the book’s discussion of prior
Commerce Clause decisions, and so on for each of the other areas the National Federation
opinions address. What follows below is a statement from Chief Justice Roberts’ opinion
describing the facts of the case, as well as each opinion’s analysis of the Necessary and Proper
Clause issue. The excerpt below begins with the Chief Justice’s summary of the constitutional
issues involved. While not directly relevant to the Necessary and Proper Clause discussion, that
summary provides an overview of the basic questions at stake in the case.
26
Beyond the substance of its analysis, two aspects of National Federation require
mentioning. First, the dissenting opinion of Justices Scalia, Kennedy, Thomas and Alito is styled
as a joint opinion. Thus, it should be taken as the personal views of each of those justices, rather
than as the views of a single author, with which joining justices agreed. (Note, however, that
Justice Thomas, one of the authors of the joint opinion, also wrote an opinion solely for himself.)
Second, it is important to appreciate the ambiguities about which parts of the opinions
you will read constitute holdings of the Court. One part of Chief Justice Roberts’ opinion,
concluding that the individual mandate constitutes a valid tax, was joined by four justices. It is
an unambiguous holding for a majority of the Court. The status of other discussions in the
opinions are more ambiguous. In particular, there is ambiguity about the status of the justices’
discussion of the Commerce and Necessary and Proper Clauses. The part of the Chief Justice’s
opinion finding the individual mandate to exceed Congress’s power under those clauses was
joined by no other justice. However, the four dissenters agreed that the mandate exceeded
Congress’s power under those clauses. A Note after the Commerce Clause discussion of this
case considers whether these two opinions, when combined, create a holding on those issues, or
whether Chief Justice Roberts’ discussion of them constitutes dicta, with the result that there is
no majority holding.
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS
183 L. Ed. 2d 450 (2012) *
Chief Justice Roberts announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which Justice
Breyer and Justice Kagan join, and an opinion with respect to Parts III–A, III–B, and III–D.
Today we resolve constitutional challenges to two provisions of the Patient Protection
and Affordable Care Act of 2010: the individual mandate, which requires individuals to purchase
a health insurance policy providing a minimum level of coverage; and the Medicaid expansion,
which gives funds to the States on the condition that they provide specified health care to all
citizens whose income falls below a certain threshold. We do not consider whether the Act
embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only
whether Congress has the power under the Constitution to enact the challenged provisions.
In our federal system, the National Government possesses only limited powers; the States
and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed
that “the question respecting the extent of the powers actually granted” to the Federal
Government “is perpetually arising, and will probably continue to arise, as long as our system
*
[Ed. Note: For the Justices’ discussion of the Commerce Power, the Taxing Power and the Spending Power, see,
respectively, pages 38, 105 and 111 of this Supplement.]
27
shall exist.” McCulloch v. Maryland, 4 Wheat. 316 (1819). In this case we must again determine
whether the Constitution grants Congress powers it now asserts, but which many States and
individuals believe it does not possess. Resolving this controversy requires us to examine both
the limits of the Government’s power, and our own limited role in policing those boundaries.
The Federal Government “is acknowledged by all to be one of enumerated powers.” Ibid.
That is, rather than granting general authority to perform all the conceivable functions of
government, the Constitution lists, or enumerates, the Federal Government’s powers. Congress
may, for example, “coin Money,” “establish Post Offices,” and “raise and support Armies.” Art.
I, § 8, cls. 5, 7, 12. The enumeration of powers is also a limitation of powers, because “[t]he
enumeration presupposes something not enumerated.” Gibbons v. Ogden, 9 Wheat. 1 (1824).
The Constitution’s express conferral of some powers makes clear that it does not grant others.
And the Federal Government “can exercise only the powers granted to it.” McCulloch.
***
The same does not apply to the States, because the Constitution is not the source of their
power. The Constitution may restrict state governments—as it does, for example, by forbidding
them to deny any person the equal protection of the laws. But where such prohibitions do not
apply, state governments do not need constitutional authorization to act. The States thus can and
do perform many of the vital functions of modern government—punishing street crime, running
public schools, and zoning property for development, to name but a few—even though the
Constitution’s text does not authorize any government to do so. Our cases refer to this general
power of governing, possessed by the States but not by the Federal Government, as the “police
power.” See, e.g., United States v. Morrison, 529 U.S. 598 (2000).
“State sovereignty is not just an end in itself: Rather, federalism secures to citizens the
liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U.S.
144 (1992). Because the police power is controlled by 50 different States instead of one national
sovereign, the facets of governing that touch on citizens’ daily lives are normally administered
by smaller governments closer to the governed. The Framers thus ensured that powers which “in
the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held
by governments more local and more accountable than a distant federal bureaucracy. The
independent power of the States also serves as a check on the power of the Federal Government:
“By denying any one government complete jurisdiction over all the concerns of public life,
federalism protects the liberty of the individual from arbitrary power.”
This case concerns two powers that the Constitution does grant the Federal Government,
but which must be read carefully to avoid creating a general federal authority akin to the police
power. The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” Art. I, § 8, cl. 3. Our precedents read that
to mean that Congress may regulate “the channels of interstate commerce,” “persons or things in
interstate commerce,” and “those activities that substantially affect interstate commerce.”
Morrison. The power over activities that substantially affect interstate commerce can be
expansive. That power has been held to authorize federal regulation of such seemingly local
matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s
28
extortionate collections from a neighborhood butcher shop. See Wickard v. Filburn, 317 U.S.
111 (1942); Perez v. United States, 402 U.S. 146 (1971).
Congress may also “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts
and provide for the common Defence and general Welfare of the United States.” U.S. Const.,
Art. I, § 8, cl. 1. Put simply, Congress may tax and spend. This grant gives the Federal
Government considerable influence even in areas where it cannot directly regulate. The Federal
Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.
And in exercising its spending power, Congress may offer funds to the States, and may condition
those offers on compliance with specified conditions. These offers may well induce the States to
adopt policies that the Federal Government itself could not impose. See, e.g., South Dakota v.
Dole, 483 U.S. 203 (1987) (conditioning federal highway funds on States raising their drinking
age to 21).
The reach of the Federal Government’s enumerated powers is broader still because the
Constitution authorizes Congress to “make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers.” Art. I, § 8, cl. 18. We have long read this
provision to give Congress great latitude in exercising its powers: “Let the end be legitimate, let
it be within the scope of the constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional.” McCulloch.
Our permissive reading of these powers is explained in part by a general reticence to
invalidate the acts of the Nation’s elected leaders. “Proper respect for a coordinate branch of the
government” requires that we strike down an Act of Congress only if “the lack of constitutional
authority to pass [the] act in question is clearly demonstrated.” Members of this Court are vested
with the authority to interpret the law; we possess neither the expertise nor the prerogative to
make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can
be thrown out of office if the people disagree with them. It is not our job to protect the people
from the consequences of their political choices.
Our deference in matters of policy cannot, however, become abdication in matters of law.
“The powers of the legislature are defined and limited; and that those limits may not be
mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137 (1803).
Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints
on federal power that the Constitution carefully constructed. “The peculiar circumstances of the
moment may render a measure more or less wise, but cannot render it more or less
constitutional.” And there can be no question that it is the responsibility of this Court to enforce
the limits on federal power by striking down acts of Congress that transgress those limits.
Marbury.
The questions before us must be considered against the background of these basic
principles.
29
I
In 2010, Congress enacted the Patient Protection and Affordable Care Act. The Act aims
to increase the number of Americans covered by health insurance and decrease the cost of health
care. The Act’s 10 titles stretch over 900 pages and contain hundreds of provisions. This case
concerns constitutional challenges to two key provisions, commonly referred to as the individual
mandate and the Medicaid expansion.
The individual mandate requires most Americans to maintain “minimum essential” health
insurance coverage. The mandate does not apply to some individuals, such as prisoners and
undocumented aliens. Many individuals will receive the required coverage through their
employer, or from a government program such as Medicaid or Medicare. But for individuals who
are not exempt and do not receive health insurance through a third party, the means of satisfying
the requirement is to purchase insurance from a private company.
Beginning in 2014, those who do not comply with the mandate must make a “[s]hared
responsibility payment” to the Federal Government. That payment, which the Act describes as a
“penalty,” is calculated as a percentage of household income, subject to a floor based on a
specified dollar amount and a ceiling based on the average annual premium the individual would
have to pay for qualifying private health insurance. In 2016, for example, the penalty will be 2.5
percent of an individual’s household income, but no less than $695 and no more than the average
yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g.,
prescription drugs and hospitalization). The Act provides that the penalty will be paid to the
Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the
same manner” as tax penalties, such as the penalty for claiming too large an income tax refund.
The Act, however, bars the IRS from using several of its normal enforcement tools, such as
criminal prosecutions and levies. And some individuals who are subject to the mandate are
nonetheless exempt from the penalty—for example, those with income below a certain threshold
and members of Indian tribes.
On the day the President signed the Act into law, Florida and 12 other States filed a
complaint in the Federal District Court for the Northern District of Florida. Those plaintiffs—
who are both respondents and petitioners here, depending on the issue—were subsequently
joined by 13 more States, several individuals, and the National Federation of Independent
Business. The plaintiffs alleged, among other things, that the individual mandate provisions of
the Act exceeded Congress’s powers under Article I of the Constitution. The District Court
agreed, holding that Congress lacked constitutional power to enact the individual mandate. The
District Court determined that the individual mandate could not be severed from the remainder of
the Act, and therefore struck down the Act in its entirety.
The Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part. The
court affirmed the District Court’s holding that the individual mandate exceeds Congress’s
power. The panel unanimously agreed that the individual mandate did not impose a tax, and thus
could not be authorized by Congress’s power to “lay and collect Taxes.” A majority also held
that the individual mandate was not supported by Congress’s power to “regulate Commerce . . .
among the several States.” According to the majority, the Commerce Clause does not empower
30
the Federal Government to order individuals to engage in commerce, and the Government’s
efforts to cast the individual mandate in a different light were unpersuasive. Judge Marcus
dissented, reasoning that the individual mandate regulates economic activity that has a clear
effect on interstate commerce.
Having held the individual mandate to be unconstitutional, the majority examined
whether that provision could be severed from the remainder of the Act. The majority determined
that, contrary to the District Court’s view, it could. The court thus struck down only the
individual mandate, leaving the Act’s other provisions intact.
Other Courts of Appeals have also heard challenges to the individual mandate. The Sixth
Circuit and the D.C. Circuit upheld the mandate as a valid exercise of Congress’s commerce
power. The Fourth Circuit [concluded that a threshold issue] prevents courts from considering
the merits of that question.
The second provision of the Affordable Care Act directly challenged here is the Medicaid
expansion. Enacted in 1965, Medicaid offers federal funding to States to assist pregnant women,
children, needy families, the blind, the elderly, and the disabled in obtaining medical care. In
order to receive that funding, States must comply with federal criteria governing matters such as
who receives care and what services are provided at what cost. By 1982 every State had chosen
to participate in Medicaid. Federal funds received through the Medicaid program have become a
substantial part of state budgets, now constituting over 10 percent of most States’ total revenue.
The Affordable Care Act expands the scope of the Medicaid program and increases the
number of individuals the States must cover. For example, the Act requires state programs to
provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level,
whereas many States now cover adults with children only if their income is considerably lower,
and do not cover childless adults at all. The Act increases federal funding to cover the States’
costs in expanding Medicaid coverage, although States will bear a portion of the costs on their
own. If a State does not comply with the Act’s new coverage requirements, it may lose not only
the federal funding for those requirements, but all of its federal Medicaid funds.
Along with their challenge to the individual mandate, the state plaintiffs in the Eleventh
Circuit argued that the Medicaid expansion exceeds Congress’s constitutional powers. The Court
of Appeals unanimously held that the Medicaid expansion is a valid exercise of Congress’s
power under the Spending Clause. And the court rejected the States’ claim that the threatened
loss of all federal Medicaid funding violates the Tenth Amendment by coercing them into
complying with the Medicaid expansion.
We granted certiorari to review the judgment of the Court of Appeals for the Eleventh
Circuit with respect to both the individual mandate and the Medicaid expansion.
***
31
III
[In Part III-A-1 of his opinion, Chief Justice Roberts concluded that the individual mandate
could not be supported under the Commerce Clause. This part of his opinion is excerpted later in
this Supplement.]
2
The Government next contends that Congress has the power under the Necessary and
Proper Clause to enact the individual mandate because the mandate is an “integral part of a
comprehensive scheme of economic regulation”—the guaranteed-issue and community-rating
insurance reforms. Under this argument, it is not necessary to consider the effect that an
individual’s inactivity may have on interstate commerce; it is enough that Congress regulate
commercial activity in a way that requires regulation of inactivity to be effective.
The power to “make all Laws which shall be necessary and proper for carrying into
Execution” the powers enumerated in the Constitution, Art. I, § 8, cl. 18, vests Congress with
authority to enact provisions “incidental to the [enumerated] power, and conducive to its
beneficial exercise,” McCulloch. Although the Clause gives Congress authority to “legislate on
that vast mass of incidental powers which must be involved in the constitution,” it does not
license the exercise of any “great substantive and independent power[s]” beyond those
specifically enumerated. Id. Instead, the Clause is “‘merely a declaration, for the removal of all
uncertainty, that the means of carrying into execution those [powers] otherwise granted are
included in the grant.’” Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (quoting
VI Writings of James Madison 383 (G. Hunt ed. 1906)).
As our jurisprudence under the Necessary and Proper Clause has developed, we have
been very deferential to Congress’s determination that a regulation is “necessary.” We have thus
upheld laws that are “‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial
exercise.’” United States v. Comstock, 560 U.S. ___ (2012) (quoting McCulloch). But we have
also carried out our responsibility to declare unconstitutional those laws that undermine the
structure of government established by the Constitution. Such laws, which are not “consist[ent]
with the letter and spirit of the constitution,” McCulloch, are not “proper [means] for carrying
into Execution” Congress’s enumerated powers. Rather, they are, “in the words of The
Federalist, ‘merely acts of usurpation’ which ‘deserve to be treated as such.’ ” Printz v. United
States, 521 U.S. 898 (1997); see also Comstock (Kennedy, J., concurring in judgment) (“It is of
fundamental importance to consider whether essential attributes of state sovereignty are
compromised by the assertion of federal power under the Necessary and Proper Clause . . .”).
Applying these principles, the individual mandate cannot be sustained under the
Necessary and Proper Clause as an essential component of the insurance reforms. Each of our
prior cases upholding laws under that Clause involved exercises of authority derivative of, and in
service to, a granted power. For example, we have upheld provisions permitting continued
confinement of those already in federal custody when they could not be safely released,
Comstock; criminalizing bribes involving organizations receiving federal funds, Sabri v. United
States, 541 U.S. 600 (2004); and tolling state statutes of limitations while cases are pending in
federal court, Jinks v. Richland County, 538 U.S. 456 (2003). The individual mandate, by
32
contrast, vests Congress with the extraordinary ability to create the necessary predicate to the
exercise of an enumerated power.
This is in no way an authority that is “narrow in scope,” Comstock, or “incidental” to the
exercise of the commerce power, McCulloch. Rather, such a conception of the Necessary and
Proper Clause would work a substantial expansion of federal authority. No longer would
Congress be limited to regulating under the Commerce Clause those who by some preexisting
activity bring themselves within the sphere of federal regulation. Instead, Congress could reach
beyond the natural limit of its authority and draw within its regulatory scope those who
otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act’s
insurance reforms, such an expansion of federal power is not a “proper” means for making those
reforms effective.
The Government relies primarily on our decision in Gonzalez v. Raich, 545 U.S. 1
(2005). In Raich, we considered “comprehensive legislation to regulate the interstate market” in
marijuana. Certain individuals sought an exemption from that regulation on the ground that they
engaged in only intrastate possession and consumption. We denied any exemption, on the ground
that marijuana is a fungible commodity, so that any marijuana could be readily diverted into the
interstate market. Congress’s attempt to regulate the interstate market for marijuana would
therefore have been substantially undercut if it could not also regulate intrastate possession and
consumption. Accordingly, we recognized that “Congress was acting well within its authority”
under the Necessary and Proper Clause even though its “regulation ensnare[d] some purely
intrastate activity.” Raich thus did not involve the exercise of any “great substantive and
independent power,” McCulloch, of the sort at issue here. Instead, it concerned only the
constitutionality of “individual applications of a concededly valid statutory scheme.” Raich
(emphasis added).
Just as the individual mandate cannot be sustained as a law regulating the substantial
effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and
proper” component of the insurance reforms. The commerce power thus does not authorize the
mandate. Accord, post (joint opinion of Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).
Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and Justice
Kagan join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part,
and dissenting in part.
I agree with The Chief Justice . . . that the minimum coverage provision is a proper
exercise of Congress’ taxing power. I therefore join Parts I, II, and III–C of The Chief Justice’s
opinion. Unlike The Chief Justice, however, I would hold, alternatively, that the Commerce
Clause authorizes Congress to enact the minimum coverage provision. I would also hold that the
Spending Clause permits the Medicaid expansion exactly as Congress enacted it.
***
33
III
A
For the reasons explained above, the minimum coverage provision is valid Commerce
Clause legislation. See supra, Part II. When viewed as a component of the entire ACA, the
provision’s constitutionality becomes even plainer.
The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of
its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich (Scalia, J.,
concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce
Clause challenge without a showing that every single facet of the program is independently and
directly related to a valid congressional goal.” “It is enough that the challenged provisions are an
integral part of the regulatory program and that the regulatory scheme when considered as a
whole satisfies this test.”
Recall that one of Congress’ goals in enacting the Affordable Care Act was to eliminate
the insurance industry’s practice of charging higher prices or denying coverage to individuals
with preexisting medical conditions. The commerce power allows Congress to ban this practice,
a point no one disputes.
Congress knew, however, that simply barring insurance companies from relying on an
applicant’s medical history would not work in practice. Without the individual mandate,
Congress learned, guaranteed-issue and community-rating requirements would trigger an
adverse-selection death-spiral in the health-insurance market: Insurance premiums would
skyrocket, the number of uninsured would increase, and insurance companies would exit the
market. When complemented by an insurance mandate, on the other hand, guaranteed issue and
community rating would work as intended, increasing access to insurance and reducing
uncompensated care. The minimum coverage provision is thus an “essential par[t] of a larger
regulation of economic activity”; without the provision, “the regulatory scheme [w]ould be
undercut.” Raich. Put differently, the minimum coverage provision, together with the
guaranteed-issue and community-rating requirements, is “ ‘reasonably adapted’ to the attainment
of a legitimate end under the commerce power”: the elimination of pricing and sales practices
that take an applicant’s medical history into account. See id. (Scalia, J., concurring in judgment).
B
Asserting that the Necessary and Proper Clause does not authorize the minimum
coverage provision, The Chief Justice focuses on the word “proper.” A mandate to purchase
health insurance is not “proper” legislation, The Chief Justice urges, because the command
“undermine[s] the structure of government established by the Constitution.” If long on rhetoric,
The Chief Justice’s argument is short on substance.
The Chief Justice cites only two cases in which this Court concluded that a federal statute
impermissibly transgressed the Constitution’s boundary between state and federal authority:
Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144
34
(1992). The statutes at issue in both cases, however, compelled state officials to act on the
Federal Government’s behalf. . . .
The minimum coverage provision, in contrast, acts “directly upon individuals, without
employing the States as intermediaries.” . . .
Lacking case law support for his holding, The Chief Justice nevertheless declares the
minimum coverage provision not “proper” because it is less “narrow in scope” than other laws
this Court has upheld under the Necessary and Proper Clause. Ante (citing Comstock; Sabri;
Jinks). The Chief Justice’s reliance on cases in which this Court has affirmed Congress’ “broad
authority to enact federal legislation” under the Necessary and Proper Clause, is underwhelming.
Nor does The Chief Justice pause to explain why the power to direct either the purchase
of health insurance or, alternatively, the payment of a penalty collectible as a tax is more farreaching than other implied powers this Court has found meet under the Necessary and Proper
Clause. These powers include the power to enact criminal laws, see, e.g., United States v. Fox,
95 U.S. 670 (1878); the power to imprison, including civil imprisonment, see, e.g., Comstock;
and the power to create a national bank, see McCulloch. 10
In failing to explain why the individual mandate threatens our constitutional order, The
Chief Justice disserves future courts. How is a judge to decide, when ruling on the
constitutionality of a federal statute, whether Congress employed an “independent power,” ante ,
or merely a “derivative” one, ante. Whether the power used is “substantive,” ante, or just
“incidental,” ante? The instruction The Chief Justice, in effect, provides lower courts: You will
know it when you see it.
It is more than exaggeration to suggest that the minimum coverage provision improperly
intrudes on “essential attributes of state sovereignty.” Ibid. First, the Affordable Care Act does
not operate “in [an] are[a] such as criminal law enforcement or education where States
historically have been sovereign.” United States v. Lopez, 514 U.S. 549 (1995) . . . . [The]
Federal Government plays a lead role in the health-care sector, both as a direct payer and as a
regulator.
Second, and perhaps most important, the minimum coverage provision, along with other
provisions of the ACA, addresses the very sort of interstate problem that made the commerce
power essential in our federal system. The crisis created by the large number of U.S. residents
who lack health insurance is one of national dimension that States are “separately incompetent”
to handle. Far from trampling on States’ sovereignty, the ACA attempts a federal solution for the
very reason that the States, acting separately, cannot meet the need. Notably, the ACA serves the
general welfare of the people of the United States while retaining a prominent role for the
States. 11
10
Indeed, Congress regularly and uncontroversially requires individuals who are “doing nothing,” see ante, to take
action. Examples include federal requirements to report for jury duty, to register for selective service, to purchase
firearms and gear in anticipation of service in the Militia, to turn gold currency over to the Federal Government in
exchange for paper currency, see Nortz v. United States, 294 U.S. 317 (1935); and to file a tax return.
11
In a separate argument, the joint dissenters contend that the minimum coverage provision is not necessary and
35
***
Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.
***
I
The Individual Mandate
***
A
***
At the outer edge of the commerce power, this Court has insisted on careful scrutiny of
regulations that do not act directly on an interstate market or its participants. In New York, we
held that Congress could not, in an effort to regulate the disposal of radioactive waste produced
in several different industries, order the States to take title to that waste. In Printz, we held that
Congress could not, in an effort to regulate the distribution of firearms in the interstate market,
compel state law-enforcement officials to perform background checks. In Lopez, we held that
Congress could not, as a means of fostering an educated interstate labor market through the
protection of schools, ban the possession of a firearm within a school zone. And in Morrison, we
held that Congress could not, in an effort to ensure the full participation of women in the
interstate economy, subject private individuals and companies to suit for gender-motivated
violent torts. The lesson of these cases is that the Commerce Clause, even when supplemented by
the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the
ends Congress seeks by the regulation of commerce. And the last two of these cases show that
the scope of the Necessary and Proper Clause is exceeded not only when the congressional
action directly violates the sovereignty of the States but also when it violates the background
principle of enumerated (and hence limited) federal power.
The case upon which the Government principally relies to sustain the Individual Mandate
under the Necessary and Proper Clause is Raich. That case held that Congress could, in an effort
to restrain the interstate market in marijuana, ban the local cultivation and possession of that
drug. Raich is no precedent for what Congress has done here. That case’s prohibition of growing
(cf. Wickard), and of possession (cf. innumerable federal statutes) did not represent the
expansion of the federal power to direct into a broad new field. The mandating of economic
activity does, and since it is a field so limitless that it converts the Commerce Clause into a
general authority to direct the economy, that mandating is not “consist[ent] with the letter and
proper because it was not the “only . . . way” Congress could have made the guaranteed-issue and community-rating
reforms work. . . .
But even assuming there were “practicable” alternatives to the minimum coverage provision, “we long ago
rejected the view that the Necessary and Proper Clause demands that an Act of Congress be ‘absolutely necessary’
to the exercise of an enumerated power.” Jinks (quoting McCulloch). Rather, the statutory provision at issue need
only be “conducive” and “[reasonably] adapted” to the goal Congress seeks to achieve. Jinks. The minimum
coverage provision meets this requirement.
36
spirit of the constitution.” McCulloch.
Moreover, Raich is far different from the Individual Mandate in another respect. The
Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only
practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively
enforced. See also Shreveport Rate Cases, 234 U. S. 342 (1914) (Necessary and Proper Clause
allows regulations of intrastate transactions if necessary to the regulation of an interstate market).
Intrastate marijuana could no more be distinguished from interstate marijuana than, for example,
endangered-species trophies obtained before the species was federally protected can be
distinguished from trophies obtained afterwards—which made it necessary and proper to prohibit
the sale of all such trophies, see Andrus v. Allard, 444 U. S. 51 (1979).
With the present statute, by contrast, there are many ways other than this unprecedented
Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and
ensuring the profitability of insurers could be achieved. For instance, those who did not purchase
insurance could be subjected to a surcharge when they do enter the health insurance system. Or
they could be denied a full income tax credit given to those who do purchase the insurance.
The Government was invited, at oral argument, to suggest what federal controls over
private conduct (other than those explicitly prohibited by the Bill of Rights or other
constitutional controls) could not be justified as necessary and proper for the carrying out of a
general regulatory scheme. It was unable to name any. As we said at the outset, whereas the
precise scope of the Commerce Clause and the Necessary and Proper Clause is uncertain, the
proposition that the Federal Government cannot do everything is a fundamental precept. See
Lopez (“[I]f we were to accept the Government’s arguments, we are hard pressed to posit any
activity by an individual that Congress is without power to regulate”). Section 5000A [the
individual mandate provision] is defeated by that proposition.
Justice Thomas, dissenting. [Omitted].
***
_____________________
In 2013 the Court applied Comstock to uphold the constitutionality, under the Necessary
and Proper clause, of the Sexual Offender Registration and Notification Act (SORNA), as
applied to a convicted federal sex offender who had completed his military prison sentence
before SORNA was enacted. United States v. Kebodeaux, 2013 U.S. LEXIS 4715. Writing for
five justices, Justice Kennedy explained that, at the time of his offense and conviction, the
offender was subject to the requirements of a separate federal sex offender law whose
requirements were merely “modified” by SORNA, and which itself was clearly constitutional
under the clause. Turning to the constitutional analysis of SORNA itself, the Court, relying on
factors present in Comstock (although not citing Comstock as their source), the Court noted the
following: the breadth of the Necessary and Proper clause, the fact that SORNA only made “few
changes” to the pre-existing federal sex offender law, the reasonableness of the law in light of
37
legitimate federal interests in keeping track of sex offenders convicted under federal law, and its
accounting for state interests.
Chief Justice Roberts and Justice Alito each concurred in the judgment separately. The
Chief Justice wrote to express his concern that the majority’s discussion of the general benefits
of SORNA might suggest a general federal police power basis for SORNA – a foundation he
argued was inconsistent with the enumerated nature of federal regulatory power. Justice Alito,
largely reprising his insistence in Comstock that “[t]he Necessary and Proper Clause empowers
Congress to enact only those laws that ‘carr[y] into Execution’ one or more of the federal powers
enumerated in the Constitution,” concluded that SORNA was “necessary and proper to execute
Congress’ power ‘[t]o make Rules for the Government and Regulation of the land and naval
Forces.” (Alito, J., concurring in the judgment) (quoting Art. I § 8, cl. 14).
Justice Scalia dissented, finding it both “dubious” that the previous statute, modified by
SORNA, “was itself a valid exercise of any federal power,” and “obviously untrue” that SORNA
was designed to carry that earlier statute into execution. Justice Thomas, joined in part by
Justice Scalia, also dissented. Justice Thomas argued that SORNA did not execute any
enumerated federal power. In particular, he argued that it did not execute the federal power to
make rules for governing the armed forces, since the offender had already completed his military
prison sentence when SORNA was enacted.
C.
FEDERAL POWER TO REGULATE THE ECONOMY
4.
A More Limited Commerce Power (?)
Page 514: Add at the bottom of the page:
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS
183 L. Ed. 2d 450 (2012) *
Chief Justice Roberts announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which Justice
Breyer and Justice Kagan join, and an opinion with respect to Parts III–A, III–B, and III–D.
***
*
[Ed. Note: For the facts of the case and the Justices’ discussion of the Necessary and Proper Clause, the Taxing
Power and the Spending Power, see, respectively, pages 27, 105, and 111 of this Supplement.]
38
III
The Government advances two theories for the proposition that Congress had
constitutional authority to enact the individual mandate. First, the Government argues that
Congress had the power to enact the mandate under the Commerce Clause. Under that theory,
Congress may order individuals to buy health insurance because the failure to do so affects
interstate commerce, and could undercut the Affordable Care Act’s other reforms. Second, the
Government argues that if the commerce power does not support the mandate, we should
nonetheless uphold it as an exercise of Congress’s power to tax. According to the Government,
even if Congress lacks the power to direct individuals to buy insurance, the only effect of the
individual mandate is to raise taxes on those who do not do so, and thus the law may be upheld
as a tax.
A
The Government’s first argument is that the individual mandate is a valid exercise of
Congress’s power under the Commerce Clause and the Necessary and Proper Clause. According
to the Government, the health care market is characterized by a significant cost-shifting problem.
Everyone will eventually need health care at a time and to an extent they cannot predict, but if
they do not have insurance, they often will not be able to pay for it. Because state and federal
laws nonetheless require hospitals to provide a certain degree of care to individuals without
regard to their ability to pay, hospitals end up receiving compensation for only a portion of the
services they provide. To recoup the losses, hospitals pass on the cost to insurers through higher
rates, and insurers, in turn, pass on the cost to policy holders in the form of higher premiums.
Congress estimated that the cost of uncompensated care raises family health insurance
premiums, on average, by over $1,000 per year.
In the Affordable Care Act, Congress addressed the problem of those who cannot obtain
insurance coverage because of preexisting conditions or other health issues. It did so through the
Act’s “guaranteed-issue” and “community-rating” provisions. These provisions together prohibit
insurance companies from denying coverage to those with such conditions or charging unhealthy
individuals higher premiums than healthy individuals.
The guaranteed-issue and community-rating reforms do not, however, address the issue
of healthy individuals who choose not to purchase insurance to cover potential health care needs.
In fact, the reforms sharply exacerbate that problem, by providing an incentive for individuals to
delay purchasing health insurance until they become sick, relying on the promise of guaranteed
and affordable coverage. The reforms also threaten to impose massive new costs on insurers,
who are required to accept unhealthy individuals but prohibited from charging them rates
necessary to pay for their coverage. This will lead insurers to significantly increase premiums on
everyone. See Brief for America’s Health Insurance Plans et al. as Amici Curiae.
The individual mandate was Congress’s solution to these problems. By requiring that
individuals purchase health insurance, the mandate prevents cost-shifting by those who would
otherwise go without it. In addition, the mandate forces into the insurance risk pool more healthy
individuals, whose premiums on average will be higher than their health care expenses. This
39
allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require
them to accept. The Government claims that Congress has power under the Commerce and
Necessary and Proper Clauses to enact this solution.
1
The Government contends that the individual mandate is within Congress’s power
because the failure to purchase insurance “has a substantial and deleterious effect on interstate
commerce” by creating the cost-shifting problem. The path of our Commerce Clause decisions
has not always run smooth, see United States v. Lopez, 514 U.S. 549 (1995), but it is now well
established that Congress has broad authority under the Clause. We have recognized, for
example, that “[t]he power of Congress over interstate commerce is not confined to the
regulation of commerce among the states,” but extends to activities that “have a substantial effect
on interstate commerce.” United States v. Darby, 312 U.S. 100 (1941). Congress’s power,
moreover, is not limited to regulation of an activity that by itself substantially affects interstate
commerce, but also extends to activities that do so only when aggregated with similar activities
of others. See Wickard v. Fillburn, 317 U.S. 111 (1942).
Given its expansive scope, it is no surprise that Congress has employed the commerce
power in a wide variety of ways to address the pressing needs of the time. But Congress has
never attempted to rely on that power to compel individuals not engaged in commerce to
purchase an unwanted product. 3 Legislative novelty is not necessarily fatal; there is a first time
for everything. But sometimes “the most telling indication of [a] severe constitutional problem . .
. is the lack of historical precedent” for Congress’s action. Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U.S. –––– (2010). At the very least, we should “pause
to consider the implications of the Government’s arguments” when confronted with such new
conceptions of federal power. Lopez.
The Constitution grants Congress the power to “regulate Commerce.” Art. I, § 8, cl. 3
(emphasis added). The power to regulate commerce presupposes the existence of commercial
activity to be regulated. If the power to “regulate” something included the power to create it,
many of the provisions in the Constitution would be superfluous. . . . If the power to regulate the
armed forces or the value of money included the power to bring the subject of the regulation into
existence, the specific grant of such powers would have been unnecessary. The language of the
Constitution reflects the natural understanding that the power to regulate assumes there is already
something to be regulated. See Gibbons (“[T]he enlightened patriots who framed our
constitution, and the people who adopted it, must be understood to have employed words in their
natural sense, and to have intended what they have said”). 4
3
The examples of other congressional mandates cited by Justice Ginsburg are not to the contrary. Each of those
mandates—to report for jury duty, to register for the draft, to purchase firearms in anticipation of militia service, to
exchange gold currency for paper currency, and to file a tax return—are based on constitutional provisions other
than the Commerce Clause.
4
Justice Ginsburg suggests that “at the time the Constitution was framed, to ‘regulate’ meant, among other things, to
require action.” Post (citing Seven–Sky v. Holder, 661 F.3d 1 (C.A.D.C.2011)). But to reach this conclusion, the case
cited by Justice Ginsburg relied on a dictionary in which “[t]o order; to command” was the fifth-alternative
definition of “to direct,” which was itself the second-alternative definition of “to regulate.” See Seven–Sky (citing S.
40
Our precedent also reflects this understanding. As expansive as our cases construing the
scope of the commerce power have been, they all have one thing in common: They uniformly
describe the power as reaching “activity.” It is nearly impossible to avoid the word when quoting
them. See, e.g., Lopez (“Where economic activity substantially affects interstate commerce,
legislation regulating that activity will be sustained”); Perez v. U.S., 402 U.S. 146 (1971)
(“Where the class of activities is regulated and that class is within the reach of federal power, the
courts have no power to excise, as trivial, individual instances of the class” (emphasis in
original)); Wickard (“[E]ven if appellee’s activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce”); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937) (“Although activities may be intrastate in character when separately considered, if they
have such a close and substantial relation to interstate commerce that their control is essential or
appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied
the power to exercise that control”).
The individual mandate, however, does not regulate existing commercial activity. It
instead compels individuals to become active in commerce by purchasing a product, on the
ground that their failure to do so affects interstate commerce. Construing the Commerce Clause
to permit Congress to regulate individuals precisely because they are doing nothing would open
a new and potentially vast domain to congressional authority. Every day individuals do not do an
infinite number of things. In some cases they decide not to do something; in others they simply
fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction
on commerce would bring countless decisions an individual could potentially make within the
scope of federal regulation, and—under the Government’s theory—empower Congress to make
those decisions for him.
***
Wickard has long been regarded as “perhaps the most far reaching example of Commerce
Clause authority over intrastate activity,” Lopez, but the Government’s theory in this case would
go much further. Under Wickard it is within Congress’s power to regulate the market for wheat
by supporting its price. But price can be supported by increasing demand as well as by
decreasing supply. . . . Congress can therefore command that those not buying wheat do so, just
as it argues here that it may command that those not buying health insurance do so. The farmer
in Wickard was at least actively engaged in the production of wheat, and the Government could
regulate that activity because of its effect on commerce. The Government’s theory here would
effectively override that limitation, by establishing that individuals may be regulated under the
Commerce Clause whenever enough of them are not doing something the Government would
have them do.
Indeed, the Government’s logic would justify a mandatory purchase to solve almost any
problem. To consider a different example in the health care market, many Americans do not eat a
Johnson, Dictionary of the English Language (4th ed. 1773)). It is unlikely that the Framers had such an obscure
meaning in mind when they used the word “regulate.” Far more commonly, “[t]o regulate” meant “[t]o adjust by
rule or method,” which presupposes something to adjust. Johnson; see also Gibbons (defining the commerce power
as the power “to prescribe the rule by which commerce is to be governed”).
41
balanced diet. That group makes up a larger percentage of the total population than those without
health insurance. The failure of that group to have a healthy diet increases health care costs, to a
greater extent than the failure of the uninsured to purchase insurance. Those increased costs are
borne in part by other Americans who must pay more, just as the uninsured shift costs to the
insured. Congress addressed the insurance problem by ordering everyone to buy insurance.
Under the Government’s theory, Congress could address the diet problem by ordering everyone
to buy vegetables.
People, for reasons of their own, often fail to do things that would be good for them or
good for society. Those failures—joined with the similar failures of others—can readily have a
substantial effect on interstate commerce. Under the Government’s logic, that authorizes
Congress to use its commerce power to compel citizens to act as the Government would have
them act.
That is not the country the Framers of our Constitution envisioned. . . . While Congress’s
authority under the Commerce Clause has of course expanded with the growth of the national
economy, our cases have “always recognized that the power to regulate commerce, though broad
indeed, has limits.” Maryland v. Wirtz, 392 U.S. 183 (1968). The Government’s theory would
erode those limits . . . . Congress already enjoys vast power to regulate much of what we do.
Accepting the Government’s theory would give Congress the same license to regulate what we
do not do, fundamentally changing the relation between the citizen and the Federal
Government. 6
To an economist, perhaps, there is no difference between activity and inactivity; both
have measurable economic effects on commerce. But the distinction between doing something
and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not
metaphysical philosophers. As we have explained, “the framers of the Constitution were not
mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of
political life as they understood them, putting into form the government they were creating, and
prescribing in language clear and intelligible the powers that government was to take.” The
Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years
both our decisions and Congress’s actions have reflected this understanding. There is no reason
to depart from that understanding now.
The Government sees things differently. It argues that because sickness and injury are
unpredictable but unavoidable, “the uninsured as a class are active in the market for health care,
which they regularly seek and obtain.” Brief for United States. The individual mandate “merely
regulates how individuals finance and pay for that active participation—requiring that they do so
through insurance, rather than through attempted self-insurance with the back-stop of shifting
costs to others.” Ibid.
6
In an attempt to recast the individual mandate as a regulation of commercial activity, Justice Ginsburg suggests
that “[a]n individual who opts not to purchase insurance from a private insurer can be seen as actively selecting
another form of insurance: self-insurance.” Post. But “self-insurance” is, in this context, nothing more than a
description of the failure to purchase insurance. Individuals are no more “activ[e] in the self-insurance market” when
they fail to purchase insurance, ibid., than they are active in the “rest” market when doing nothing.
42
The Government repeats the phrase “active in the market for health care” throughout its
brief, but that concept has no constitutional significance. An individual who bought a car two
years ago and may buy another in the future is not “active in the car market” in any pertinent
sense. . . .
The individual mandate’s regulation of the uninsured as a class is, in fact, particularly
divorced from any link to existing commercial activity. The mandate primarily affects healthy,
often young adults who are less likely to need significant health care and have other priorities for
spending their money. . . . If the individual mandate is targeted at a class, it is a class whose
commercial inactivity rather than activity is its defining feature.
The Government, however, claims that this does not matter. The Government regards it
as sufficient to trigger Congress’s authority that almost all those who are uninsured will, at some
unknown point in the future, engage in a health care transaction. . . .
The proposition that Congress may dictate the conduct of an individual today because of
prophesied future activity finds no support in our precedent. We have said that Congress can
anticipate the effects on commerce of an economic activity. See, e.g., Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241 (1964) (prohibiting discrimination by hotel operators);
Katzenbach v. McClung, 379 U.S. 294 (1964) (prohibiting discrimination by restaurant owners).
But we have never permitted Congress to anticipate that activity itself in order to regulate
individuals not currently engaged in commerce. Each one of our cases, including those cited by
Justice Ginsburg, involved preexisting economic activity. See, e.g., Wickard (producing wheat);
Raich (growing marijuana).
Everyone will likely participate in the markets for food, clothing, transportation, shelter,
or energy; that does not authorize Congress to direct them to purchase particular products in
those or other markets today. The Commerce Clause is not a general license to regulate an
individual from cradle to grave, simply because he will predictably engage in particular
transactions. Any police power to regulate individuals as such, as opposed to their activities,
remains vested in the States.
The Government argues that the individual mandate can be sustained as a sort of
exception to this rule, because health insurance is a unique product. According to the
Government, upholding the individual mandate would not justify mandatory purchases of items
such as cars or broccoli because, as the Government puts it, “[h]ealth insurance is not purchased
for its own sake like a car or broccoli; it is a means of financing health-care consumption and
covering universal risks.” But cars and broccoli are no more purchased for their “own sake” than
health insurance. They are purchased to cover the need for transportation and food.
The Government says that health insurance and health care financing are “inherently
integrated.” But that does not mean the compelled purchase of the first is properly regarded as a
regulation of the second. . . . And for most of those targeted by the mandate, significant health
care needs will be years, or even decades, away. The proximity and degree of connection
between the mandate and the subsequent commercial activity is too lacking to justify an
exception of the sort urged by the Government. The individual mandate forces individuals into
commerce precisely because they elected to refrain from commercial activity. Such a law cannot
43
be sustained under a clause authorizing Congress to “regulate Commerce.”
***
Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and Justice
Kagan join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part,
and dissenting in part.
I agree with The Chief Justice that . . . the minimum coverage provision is a proper
exercise of Congress’ taxing power. . . . Unlike The Chief Justice, however, I would hold,
alternatively, that the Commerce Clause authorizes Congress to enact the minimum coverage
provision. . . .
I
The provision of health care is today a concern of national dimension, just as the
provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security Act,
Congress installed a federal system to provide monthly benefits to retired wage earners and,
eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme
for health care. Congress chose, instead, to preserve a central role for private insurers and state
governments. According to The Chief Justice, the Commerce Clause does not permit that
preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.
Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s
course in the economic and social welfare realm. Darby (overruling Hammer v. Dagenhart, 247
U.S. 251 (1918), and recognizing that “regulations of commerce which do not infringe some
constitutional prohibition are within the plenary power conferred on Congress by the Commerce
Clause”); Jones & Laughlin (1937) (“[The commerce] power is plenary and may be exerted to
protect interstate commerce no matter what the source of the dangers which threaten it.”). The
Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court
routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who
labor to sustain it. It is a reading that should not have staying power.
A
In enacting the Patient Protection and Affordable Care Act (ACA), Congress
comprehensively reformed the national market for health-care products and services. By any
measure, that market is immense. . . .
The health-care market’s size is not its only distinctive feature. Unlike the market for
almost any other product or service, the market for medical care is one in which all individuals
inevitably participate. Virtually every person residing in the United States, sooner or later, will
visit a doctor or other health-care professional. . . .
When individuals make those visits, they face another reality of the current market for
medical care: its high cost. . . . A single hospital stay, for instance, typically costs upwards of
$10,000. Treatments for many serious, though not uncommon, conditions similarly cost a
44
substantial sum.
Although every U.S. domiciliary will incur significant medical expenses during his or her
lifetime, the time when care will be needed is often unpredictable. . . .
***
Not all U.S. residents, however, have health insurance. In 2009, approximately 50 million
people were uninsured, either by choice or, more likely, because they could not afford private
insurance and did not qualify for government aid. . . . Over 60% of those without insurance visit
a doctor’s office or emergency room in a given year.
B
The large number of individuals without health insurance, Congress found, heavily
burdens the national health-care market. As just noted, the cost of emergency care or treatment
for a serious illness generally exceeds what an individual can afford to pay on her own. Unlike
markets for most products, however, the inability to pay for care does not mean that an uninsured
individual will receive no care. Federal and state law, as well as professional obligations and
embedded social norms, require hospitals and physicians to provide care when it is most needed,
regardless of the patient’s ability to pay.
As a consequence, medical-care providers deliver significant amounts of care to the
uninsured for which the providers receive no payment. . . .
Health-care providers do not absorb these bad debts. Instead, they raise their prices,
passing along the cost of uncompensated care to those who do pay reliably: the government and
private insurance companies. In response, private insurers increase their premiums, shifting the
cost of the elevated bills from providers onto those who carry insurance. The net result: Those
with health insurance subsidize the medical care of those without it. As economists would
describe what happens, the uninsured “free ride” on those who pay for health insurance.
***
The failure of individuals to acquire insurance has other deleterious effects on the healthcare market. Because those without insurance generally lack access to preventative care, they do
not receive treatment for conditions—like hypertension and diabetes—that can be successfully
and affordably treated if diagnosed early on. When sickness finally drives the uninsured to seek
care, once treatable conditions have escalated into grave health problems, requiring more costly
and extensive intervention. . . .
C
States cannot resolve the problem of the uninsured on their own. Like Social Security
benefits, a universal health-care system, if adopted by an individual State, would be “bait to the
needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose.” An
influx of unhealthy individuals into a State with universal health care would result in increased
45
spending on medical services. To cover the increased costs, a State would have to raise taxes,
and private health-insurance companies would have to increase premiums. Higher taxes and
increased insurance costs would, in turn, encourage businesses and healthy individuals to leave
the State.
***
D
Aware that a national solution was required, Congress could have taken over the healthinsurance market by establishing a tax-and-spend federal program like Social Security. Such a
program, commonly referred to as a single-payer system (where the sole payer is the Federal
Government), would have left little, if any, room for private enterprise or the States. Instead of
going this route, Congress enacted the ACA, a solution that retains a robust role for private
insurers and state governments. To make its chosen approach work, however, Congress had to
use some new tools, including a requirement that most individuals obtain private health
insurance coverage. As explained below, by employing these tools, Congress was able to achieve
a practical, altogether reasonable, solution.
A central aim of the ACA is to reduce the number of uninsured U.S. residents. The
minimum coverage provision advances this objective by giving potential recipients of health care
a financial incentive to acquire insurance. Per the minimum coverage provision, an individual
must either obtain insurance or pay a toll constructed as a tax penalty.
The minimum coverage provision serves a further purpose vital to Congress’ plan to
reduce the number of uninsured. Congress knew that encouraging individuals to purchase
insurance would not suffice to solve the problem, because most of the uninsured are not
uninsured by choice. Of particular concern to Congress were people who, though desperately in
need of insurance, often cannot acquire it: persons who suffer from preexisting medical
conditions.
***
To ensure that individuals with medical histories have access to affordable insurance,
Congress devised a three-part solution. First, Congress imposed a “guaranteed issue”
requirement, which bars insurers from denying coverage to any person on account of that
person’s medical condition or history. Second, Congress required insurers to use “community
rating” to price their insurance policies. Community rating, in effect, bars insurance companies
from charging higher premiums to those with preexisting conditions.
***
Congress comprehended that guaranteed-issue and community-rating laws alone will not
work. When insurance companies are required to insure the sick at affordable prices, individuals
can wait until they become ill to buy insurance. Pretty soon, those in need of immediate medical
care—i.e., those who cost insurers the most—become the insurance companies’ main customers.
This “adverse selection” problem leaves insurers with two choices: They can either raise
46
premiums dramatically to cover their ever-increasing costs or they can exit the market. In the
seven States that tried guaranteed-issue and community-rating requirements without a minimum
coverage provision, that is precisely what insurance companies did. . . .
Massachusetts, Congress was told, cracked the adverse selection problem. By requiring
most residents to obtain insurance, the Commonwealth ensured that insurers would not be left
with only the sick as customers. As a result, federal lawmakers observed, Massachusetts
succeeded where other States had failed. In coupling the minimum coverage provision with
guaranteed-issue and community-rating prescriptions, Congress followed Massachusetts’ lead.
***
II
A
The Commerce Clause, it is widely acknowledged, “was the Framers’ response to the
central problem that gave rise to the Constitution itself.” Under the Articles of Confederation, the
Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved
unworkable, because the individual States, understandably focused on their own economic
interests, often failed to take actions critical to the success of the Nation as a whole.
What was needed was a “national Government . . . armed with a positive & compleat
authority in all cases where uniform measures are necessary.” See Letter from James Madison to
Edmund Randolph (Apr. 8, 1787), in 9 Papers of James Madison (R. Rutland ed. 1975). The
Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the
authority to enact economic legislation “in all Cases for the general Interests of the Union, and
also in those Cases to which the States are separately incompetent.” 2 Records of the Federal
Convention of 1787, pp. 131–132, ¶ 8 (M. Farrand rev. 1966). See also North American Co. v.
SEC, 327 U.S. 686 (1946) (“[The commerce power] is an affirmative power commensurate with
the national needs.”).
The Framers understood that the “general Interests of the Union” would change over
time, in ways they could not anticipate. Accordingly, they recognized that the Constitution was
of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat.
316 (1819), and that its provisions included broad concepts, to be “explained by the context or by
the facts of the case.”. “Nothing . . . can be more fallacious,” Alexander Hamilton emphasized,
“than to infer the extent of any power, proper to be lodged in the national government, from . . .
its immediate necessities. There ought to be a CAPACITY to provide for future contingencies[,]
as they may happen; and as these are illimitable in their nature, it is impossible safely to limit
that capacity.” The Federalist No. 34 (John Harvard Library ed. 2009).
B
Consistent with the Framers’ intent, we have repeatedly emphasized that Congress’
authority under the Commerce Clause is dependent upon “practical” considerations, including
“actual experience.” Jones & Laughlin; see Wickard; Lopez (Kennedy, J., concurring)
(emphasizing “the Court’s definitive commitment to the practical conception of the commerce
power”). We afford Congress the leeway “to undertake to solve national problems directly and
47
realistically.” American Power & Light Co. v. SEC, 329 U.S. 90 (1946).
Until today, this Court’s pragmatic approach to judging whether Congress validly
exercised its commerce power was guided by two familiar principles. First, Congress has the
power to regulate economic activities “that substantially affect interstate commerce.” This
capacious power extends even to local activities that, viewed in the aggregate, have a substantial
impact on interstate commerce.
Second, we owe a large measure of respect to Congress when it frames and enacts
economic and social legislation. See Raich. See also; Hodel v. Indiana, 452 U.S. 3140 (1981)
(“This [C]ourt will certainly not substitute its judgment for that of Congress unless the relation of
the subject to interstate commerce and its effect upon it are clearly non-existent.”). When
appraising such legislation, we ask only (1) whether Congress had a “rational basis” for
concluding that the regulated activity substantially affects interstate commerce, and (2) whether
there is a “reasonable connection between the regulatory means selected and the asserted ends.”
Id. See also Raich; Lopez; McClung; Heart of Atlanta Motel; United States v. Carolene
Products Co., 304 U.S. 144 (1938). In answering these questions, we presume the statute under
review is constitutional and may strike it down only on a “plain showing” that Congress acted
irrationally. United States v. Morrison, 529 U.S. 598 (2000).
C
Straightforward application of these principles would require the Court to hold that the
minimum coverage provision is proper Commerce Clause legislation. Beyond dispute, Congress
had a rational basis for concluding that the uninsured, as a class, substantially affect interstate
commerce. . . .
Not only do those without insurance consume a large amount of health care each year;
critically, as earlier explained, their inability to pay for a significant portion of that consumption
drives up market prices, foists costs on other consumers, and reduces market efficiency and
stability. Given these far-reaching effects on interstate commerce, the decision to forgo insurance
is hardly inconsequential or equivalent to “doing nothing,” ante; it is, instead, an economic
decision Congress has the authority to address under the Commerce Clause.
The minimum coverage provision, furthermore, bears a “reasonable connection” to
Congress’ goal of protecting the health-care market from the disruption caused by individuals
who fail to obtain insurance. By requiring those who do not carry insurance to pay a toll, the
minimum coverage provision gives individuals a strong incentive to insure. This incentive,
Congress had good reason to believe, would reduce the number of uninsured and,
correspondingly, mitigate the adverse impact the uninsured have on the national health-care
market.
Congress also acted reasonably in requiring uninsured individuals, whether sick or
healthy, either to obtain insurance or to pay the specified penalty. As earlier observed, because
every person is at risk of needing care at any moment, all those who lack insurance, regardless of
their current health status, adversely affect the price of health care and health insurance.
Moreover, an insurance-purchase requirement limited to those in need of immediate care simply
48
could not work. Insurance companies would either charge these individuals prohibitively
expensive premiums, or, if community-rating regulations were in place, close up shop.
“[W]here we find that the legislators . . . have a rational basis for finding a chosen
regulatory scheme necessary to the protection of commerce, our investigation is at an end.”
McClung. Congress’ enactment of the minimum coverage provision, which addresses a specific
interstate problem in a practical, experience-informed manner, easily meets this criterion.
D
Rather than evaluating the constitutionality of the minimum coverage provision in the
manner established by our precedents, The Chief Justice relies on a newly minted constitutional
doctrine. The commerce power does not, The Chief Justice announces, permit Congress to
“compe[l] individuals to become active in commerce by purchasing a product.”
1
a
The Chief Justice’s novel constraint on Congress’ commerce power gains no force from
our precedent and for that reason alone warrants disapprobation. But even assuming, for the
moment, that Congress lacks authority under the Commerce Clause to “compel individuals not
engaged in commerce to purchase an unwanted product,” ante such a limitation would be
inapplicable here. Everyone will, at some point, consume health-care products and services.
Thus, if The Chief Justice is correct that an insurance-purchase requirement can be applied only
to those who “actively” consume health care, the minimum coverage provision fits the bill.
The Chief Justice does not dispute that all U.S. residents participate in the market for
health services over the course of their lives. But, The Chief Justice insists, the uninsured cannot
be considered active in the market for health care, because “[t]he proximity and degree of
connection between the [uninsured today] and [their] subsequent commercial activity is too
lacking.”
This argument has multiple flaws. First, more than 60% of those without insurance visit a
hospital or doctor’s office each year. Nearly 90% will within five years. An uninsured’s
consumption of health care is thus quite proximate: It is virtually certain to occur in the next five
years and more likely than not to occur this year.
Equally evident, Congress has no way of separating those uninsured individuals who will
need emergency medical care today (surely their consumption of medical care is sufficiently
imminent) from those who will not need medical services for years to come. . . . To capture
individuals who unexpectedly will obtain medical care in the very near future, then, Congress
needed to include individuals who will not go to a doctor anytime soon. Congress, our decisions
instruct, has authority to cast its net that wide. See Perez (“[W]hen it is necessary in order to
prevent an evil to make the law embrace more than the precise thing to be prevented it may do
49
so.”. 5
Second, it is Congress’ role, not the Court’s, to delineate the boundaries of the market the
Legislature seeks to regulate. The Chief Justice defines the health-care market as including only
those transactions that will occur either in the next instant or within some (unspecified)
proximity to the next instant. But Congress could reasonably have viewed the market from a
long-term perspective, encompassing all transactions virtually certain to occur over the next
decade, not just those occurring here and now.
Third, contrary to The Chief Justice’s contention, our precedent does indeed support
“[t]he proposition that Congress may dictate the conduct of an individual today because of
prophesied future activity.” Ante. In Wickard, the Court upheld a penalty the Federal
Government imposed on a farmer who grew more wheat than he was permitted to grow under
the Agricultural Adjustment Act of 1938(AAA). He could not be penalized, the farmer argued,
as he was growing the wheat for home consumption, not for sale on the open market. The Court
rejected this argument. Wheat intended for home consumption, the Court noted, “overhangs the
market, and if induced by rising prices, tends to flow into the market and check price increases
[intended by the AAA].”
Similar reasoning supported the Court’s judgment in Raich, which upheld Congress’
authority to regulate marijuana grown for personal use. Homegrown marijuana substantially
affects the interstate market for marijuana, we observed, for “the high demand in the interstate
market will [likely] draw such marijuana into that market.”
Our decisions thus acknowledge Congress’ authority, under the Commerce Clause, to
direct the conduct of an individual today (the farmer in Wickard, stopped from growing excess
wheat; the plaintiff in Raich, ordered to cease cultivating marijuana) because of a prophesied
future transaction (the eventual sale of that wheat or marijuana in the interstate market).
Congress’ actions are even more rational in this case, where the future activity (the consumption
of medical care) is certain to occur, the sole uncertainty being the time the activity will take
place.
Maintaining that the uninsured are not active in the health-care market, The Chief Justice
draws an analogy to the car market. An individual “is not ‘active in the car market,’” The Chief
Justice observes, simply because he or she may someday buy a car. Ante. The analogy is inapt.
The inevitable yet unpredictable need for medical care and the guarantee that emergency care
will be provided when required are conditions nonexistent in other markets. That is so of the
market for cars, and of the market for broccoli as well. Although an individual might buy a car or
a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually
wants a car or has a craving for broccoli, she will be obliged to pay at the counter before
receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another
consumer forced to pay an inflated price. See Thomas More Law Center v. Obama, 651 F.3d 529
5
Echoing The Chief Justice, the joint dissenters urge that the minimum coverage provision impermissibly regulates
young people who “have no intention of purchasing [medical care]” and are too far “removed from the [health-care]
market.” This criticism ignores the reality that a healthy young person may be a day away from needing health care.
...
50
(C.A.6 2011) (Sutton, J., concurring in part) (“Regulating how citizens pay for what they already
receive (health care), never quite know when they will need, and in the case of severe illnesses or
emergencies generally will not be able to afford, has few (if any) parallels in modern life.”).
Upholding the minimum coverage provision on the ground that all are participants or will be
participants in the health-care market would therefore carry no implication that Congress may
justify under the Commerce Clause a mandate to buy other products and services.
Nor is it accurate to say that the minimum coverage provision “compel[s] individuals . . .
to purchase an unwanted product,” ante, or “suite of products,” post (joint opinion of Scalia,
Kennedy, Thomas, and Alito, JJ.). If unwanted today, medical service secured by insurance may
be desperately needed tomorrow. Virtually everyone, I reiterate, consumes health care at some
point in his or her life. Health insurance is a means of paying for this care, nothing more. In
requiring individuals to obtain insurance, Congress is therefore not mandating the purchase of a
discrete, unwanted product. Rather, Congress is merely defining the terms on which individuals
pay for an interstate good they consume . . . .
The Chief Justice also calls the minimum coverage provision an illegitimate effort to
make young, healthy individuals subsidize insurance premiums paid by the less hale and hardy.
This complaint, too, is spurious. Under the current health-care system, healthy persons who lack
insurance receive a benefit for which they do not pay: They are assured that, if they need it,
emergency medical care will be available, although they cannot afford it. . . . By requiring the
healthy uninsured to obtain insurance or pay a penalty structured as a tax, the minimum coverage
provision ends the free ride these individuals currently enjoy.
***
b
In any event, The Chief Justice’s limitation of the commerce power to the regulation of
those actively engaged in commerce finds no home in the text of the Constitution or our
decisions. Article I, § 8, of the Constitution grants Congress the power “[t]o regulate Commerce .
. . among the several States.” Nothing in this language implies that Congress’ commerce power
is limited to regulating those actively engaged in commercial transactions. Indeed, as the D.C.
Circuit observed, “[a]t the time the Constitution was [framed], to ‘regulate’ meant,” among other
things, “to require action.” See Seven–Sky v. Holder, 661 F.3d 1 (2011).
***
Nor does our case law toe the activity versus inactivity line. In Wickard, for example, we
upheld the penalty imposed on a farmer who grew too much wheat, even though the regulation
had the effect of compelling farmers to purchase wheat in the open market. “[F]orcing some
farmers into the market to buy what they could provide for themselves” was, the Court held, a
valid means of regulating commerce. . . .
In concluding that the Commerce Clause does not permit Congress to regulate
commercial “inactivity,” and therefore does not allow Congress to adopt the practical solution it
devised for the health-care problem, The Chief Justice views the Clause as a “technical legal
51
conception,” precisely what our case law tells us not to do. Wickard. This Court’s former
endeavors to impose categorical limits on the commerce power have not fared well. In several
pre-New Deal cases, the Court attempted to cabin Congress’ Commerce Clause authority by
distinguishing “commerce” from activity once conceived to be noncommercial, notably,
“production,” “mining,” and “manufacturing.” See, e.g., United States v. E.C. Knight Co., 156
U.S. 1 (1895) [Casebook p. 252] (“Commerce succeeds to manufacture, and is not a part of it.”);
Carter v. Carter Coal Co., 298 U.S. 238 (1936) (“Mining brings the subject matter of commerce
into existence. Commerce disposes of it.”). The Court also sought to distinguish activities having
a “direct” effect on interstate commerce, and for that reason, subject to federal regulation, from
those having only an “indirect” effect, and therefore not amenable to federal control. See, e.g.,
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (“[T]he distinction
between direct and indirect effects of intrastate transactions upon interstate commerce must be
recognized as a fundamental one.”).
These line-drawing exercises were untenable, and the Court long ago abandoned them. . .
. Failing to learn from this history, The Chief Justice plows ahead with his formalistic distinction
between those who are “active in commerce,” ante, and those who are not.
It is not hard to show the difficulty courts (and Congress) would encounter in
distinguishing statutes that regulate “activity” from those that regulate “inactivity.” . . . Take this
case as an example. An individual who opts not to purchase insurance from a private insurer can
be seen as actively selecting another form of insurance: self-insurance. See Thomas More Law
Center (Sutton, J., concurring in part) (“No one is inactive when deciding how to pay for health
care, as self-insurance and private insurance are two forms of action for addressing the same
risk.”). The minimum coverage provision could therefore be described as regulating activists in
the self-insurance market. 7 Wickard is another example. Did the statute there at issue target
activity (the growing of too much wheat) or inactivity (the farmer’s failure to purchase wheat in
the marketplace)? If anything, the Court’s analysis suggested the latter.
At bottom, The Chief Justice’s and the joint dissenters’ “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 [is] more
redolent of Due Process Clause arguments.” Plaintiffs have abandoned any argument pinned to
substantive due process, however . . . .
2
Underlying The Chief Justice’s view that the Commerce Clause must be confined to the
regulation of active participants in a commercial market is a fear that the commerce power would
otherwise know no limits. . . . This concern is unfounded.
First, The Chief Justice could certainly uphold the individual mandate without giving
7
The Chief Justice’s characterization of individuals who choose not to purchase private insurance as “doing
nothing,” is similarly questionable. A person who self-insures opts against prepayment for a product the person will
in time consume. When aggregated, exercise of that option has a substantial impact on the health-care market.
52
Congress carte blanche to enact any and all purchase mandates. As several times noted, the
unique attributes of the health-care market render everyone active in that market and give rise to
a significant free-riding problem that does not occur in other markets.
Nor would the commerce power be unbridled, absent The Chief Justice’s “activity”
limitation. Congress would remain unable to regulate noneconomic conduct that has only an
attenuated effect on interstate commerce and is traditionally left to state law. See Lopez;
Morrison. . . .
An individual’s decision to self-insure, I have explained, is an economic act with the
requisite connection to interstate commerce. Other choices individuals make are unlikely to fit
the same or similar description. As an example of the type of regulation he fears, The Chief
Justice cites a Government mandate to purchase green vegetables. . . . Congress, The Chief
Justice posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy
diet, like the failure to purchase health insurance, imposes costs on others.
Consider the chain of inferences the Court would have to accept to conclude that a
vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne
by lithe Americans. The Court would have to believe that individuals forced to buy vegetables
would then eat them (instead of throwing or giving them away), would prepare the vegetables in
a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would
not allow other factors (such as lack of exercise or little sleep) to trump the improved diet. Such
“pil[ing of] inference upon inference” is just what the Court refused to do in Lopez and
Morrison.
***
Supplementing these legal restraints is a formidable check on congressional power: the
democratic process. See Raich; Wickard (repeating Chief Justice Marshall’s “warning that
effective restraints on [the commerce power’s] exercise must proceed from political rather than
judicial processes”) (citing Gibbons). As the controversy surrounding the passage of the
Affordable Care Act attests, purchase mandates are likely to engender political resistance. This
prospect is borne out by the behavior of state legislators. Despite their possession of
unquestioned authority to impose mandates, state governments have rarely done so.
When contemplated in its extreme, almost any power looks dangerous. The commerce
power, hypothetically, would enable Congress to prohibit the purchase and home production of
all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no
one would offer the “hypothetical and unreal possibilit[y]” of a vegetarian state as a credible
reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief
Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny
Congress the power to pass the individual mandate. But see, e.g., post (joint opinion of Scalia,
Kennedy, Thomas, and Alito, JJ.) (asserting, outlandishly, that if the minimum coverage
provision is sustained, then Congress could make “breathing in and out the basis for federal
prescription”).
53
3
To bolster his argument that the minimum coverage provision is not valid Commerce
Clause legislation, The Chief Justice emphasizes the provision’s novelty. While an insurancepurchase mandate may be novel, The Chief Justice’s argument certainly is not. “[I]n almost
every instance of the exercise of the [commerce] power differences are asserted from previous
exercises of it and made a ground of attack.” See, e.g., Brief for Petitioner in Perez
(“unprecedented exercise of power”); Supplemental Brief for Appellees in McClung (“novel
assertion of federal power”); Brief for Appellee in Wickard (“complete departure”). For decades,
the Court has declined to override legislation because of its novelty, and for good reason. As our
national economy grows and changes, we have recognized, Congress must adapt to the changing
“economic and financial realities.” Hindering Congress’ ability to do so is shortsighted; if history
is any guide, today’s constriction of the Commerce Clause will not endure.
Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.
Congress has set out to remedy the problem that the best health care is beyond the reach
of many Americans who cannot afford it. It can assuredly do that, by exercising the powers
accorded to it under the Constitution. The question in this case, however, is whether the complex
structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act
or ACA) go beyond those powers. We conclude that they do.
This case is in one respect difficult: it presents two questions of first impression. The first
of those is whether failure to engage in economic activity (the purchase of health insurance) is
subject to regulation under the Commerce Clause. Failure to act does result in an effect on
commerce, and hence might be said to come under this Court’s “affecting commerce” criterion
of Commerce Clause jurisprudence. But in none of its decisions has this Court extended the
Clause that far. . . .
The case is easy and straightforward, however, in another respect. What is absolutely
clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791,
and by innumerable cases of ours in the 220 years since, is that there are structural limits upon
federal power—upon what it can prescribe with respect to private conduct, and upon what it can
impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce
Clause . . . they cannot be such as will enable the Federal Government to regulate all private
conduct . . . .
That clear principle carries the day here. The striking case of Wickard v. Fillburn, which
held that the economic activity of growing wheat, even for one’s own consumption, affected
commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of
expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow
wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce
and therefore can be federally regulated, is to make mere breathing in and out the basis for
federal prescription and to extend federal power to virtually all human activity.
***
The Act before us here exceeds federal power . . . in mandating the purchase of health
54
insurance . . . . These parts of the Act are central to its design and operation, and all the Act’s
other provisions would not have been enacted without them. In our view it must follow that the
entire statute is inoperative.
I
The Individual Mandate
. . . The Individual Mandate . . . commands that every “applicable individual shall for
each month beginning after 2013 ensure that the individual, and any dependent of the individual
who is an applicable individual, is covered under minimum essential coverage.” If this provision
“regulates” anything, it is the failure to maintain minimum essential coverage. One might argue
that it regulates that failure by requiring it to be accompanied by payment of a penalty. But that
failure—that abstention from commerce—is not “Commerce.” To be sure, purchasing insurance
is “Commerce”; but one does not regulate commerce that does not exist by compelling its
existence.
In Gibbons, Chief Justice Marshall wrote that the power to regulate commerce is the
power “to prescribe the rule by which commerce is to be governed.” That understanding is
consistent with the original meaning of “regulate” at the time of the Constitution’s ratification,
when “to regulate” meant “[t]o adjust by rule, method or established mode,” 2 N. Webster, An
American Dictionary of the English Language (1828). It can mean to direct the manner of
something but not to direct that something come into being. There is no instance in which this
Court or Congress (or anyone else, to our knowledge) has used “regulate” in that peculiar
fashion. If the word bore that meaning, Congress’ authority “[t]o make Rules for the Government
and Regulation of the land and naval Forces,” U.S. Const., Art. I, § 8, cl. 14, would have made
superfluous the later provision for authority “[t]o raise and support Armies,” id., § 8, cl. 12, and
“[t]o provide and maintain a Navy,” id., § 8, cl. 13.
We do not doubt that the buying and selling of health insurance contracts is commerce
generally subject to federal regulation. But when Congress provides that (nearly) all citizens
must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,” or “direct[ing]
according to rule;” it directs the creation of commerce.
In response, the Government offers two theories as to why the Individual Mandate is
nevertheless constitutional. Neither theory suffices to sustain its validity.
A
First, the Government submits that § 5000A [the individual mandate provision] is
“integral to the Affordable Care Act’s insurance reforms” and “necessary to make effective the
Act’s core reforms.” . . .
***
The Government presents the Individual Mandate as a unique feature of a complicated
55
regulatory scheme governing many parties with countervailing incentives that must be carefully
balanced. Congress has imposed an extensive set of regulations on the health insurance industry,
and compliance with those regulations will likely cost the industry a great deal. If the industry
does not respond by increasing premiums, it is not likely to survive. And if the industry does
increase premiums, then there is a serious risk that its products—insurance plans—will become
economically undesirable for many and prohibitively expensive for the rest.
This is not a dilemma unique to regulation of the health-insurance industry. Government
regulation typically imposes costs on the regulated industry—especially regulation that prohibits
economic behavior in which most market participants are already engaging . . . . Thus, Congress
might protect the imperiled industry by prohibiting low-cost competition, or by according it
preferential tax treatment, or even by granting it a direct subsidy.
Here, however, Congress has impressed into service third parties, healthy individuals
who could be but are not customers of the relevant industry, to offset the undesirable
consequences of the regulation. . . . If Congress can reach out and command even those furthest
removed from an interstate market to participate in the market, then the Commerce Clause
becomes a font of unlimited power . . . .
***
B
The Government’s second theory in support of the Individual Mandate is that § 5000A is
valid because it is actually a “regulat[ion of] activities having a substantial relation to interstate
commerce, ... i.e., ... activities that substantially affect interstate commerce.” This argument
takes a few different forms, but the basic idea is that § 5000A regulates “the way in which
individuals finance their participation in the health-care market.” . . .
The primary problem with this argument is that § 5000A does not apply only to persons
who purchase all, or most, or even any, of the health care services or goods that the mandated
insurance covers. Indeed, the main objection many have to the Mandate is that they have no
intention of purchasing most or even any of such goods or services and thus no need to buy
insurance for those purchases. The Government responds that the health-care market involves
“essentially universal participation.” The principal difficulty with this response is that it is, in the
only relevant sense, not true. It is true enough that everyone consumes “health care,” if the term
is taken to include the purchase of a bottle of aspirin. But the health care “market” that is the
object of the Individual Mandate not only includes but principally consists of goods and services
that the young people primarily affected by the Mandate do not purchase. They are quite simply
not participants in that market, and cannot be made so (and thereby subjected to regulation) by
the simple device of defining participants to include all those who will, later in their lifetime,
probably purchase the goods or services covered by the mandated insurance. 2 Such a definition
2
Justice Ginsburg is therefore right to note that Congress is “not mandating the purchase of a discrete, unwanted
product.” Instead, it is mandating the purchase of an unwanted suite of products—e.g., physician office visits,
emergency room visits, hospital room and board, physical therapy, durable medical equipment, mental health care,
and substance abuse detoxification.
56
of market participants is unprecedented, and were it to be a premise for the exercise of national
power, it would have no principled limits.
In a variation on this attempted exercise of federal power, the Government points out that
Congress in this Act has purported to regulate “economic and financial decision[s] to forego
[sic] health insurance coverage and [to] attempt to self-insure” . . . . But as the discussion above
makes clear, the decision to forgo participation in an interstate market is not itself commercial
activity (or indeed any activity at all) within Congress’ power to regulate. It is true that, at the
end of the day, it is inevitable that each American will affect commerce and become a part of it,
even if not by choice. But if every person comes within the Commerce Clause power of
Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a
limited Government power is at an end.
Wickard has been regarded as the most expansive assertion of the commerce power in our
history. A close second is Perez, which upheld a statute criminalizing the eminently local activity
of loan-sharking. Both of those cases, however, involved commercial activity. To go beyond that,
and to say that the failure to grow wheat or the refusal to make loans affects commerce, so that
growing and lending can be federally compelled, is to extend federal power to virtually
everything. . . .
C
A few respectful responses to Justice Ginsburg’s dissent on the issue of the Mandate are
in order. That dissent duly recites the test of Commerce Clause power that our opinions have
applied, but disregards the premise the test contains. It is true enough that Congress needs only a
“‘rational basis’ for concluding that the regulated activity substantially affects interstate
commerce,” ante (emphasis added). But it must be activity affecting commerce that is regulated,
and not merely the failure to engage in commerce. And one is not now purchasing the health care
covered by the insurance mandate simply because one is likely to be purchasing it in the future.
Our test’s premise of regulated activity is not invented out of whole cloth, but rests upon the
Constitution’s requirement that it be commerce which is regulated. If all inactivity affecting
commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that
there is really no difference between action and inaction, a proposition that has never
recommended itself, neither to the law nor to common sense. To say, for example, that the
inaction here consists of activity in “the self-insurance market,” seems to us wordplay. By parity
of reasoning the failure to buy a car can be called participation in the non-private-cartransportation market. Commerce becomes everything.
The dissent claims that we “fai[l] to explain why the individual mandate threatens our
constitutional order.” But we have done so. It threatens that order because it gives such an
expansive meaning to the Commerce Clause that all private conduct (including failure to act)
becomes subject to federal control, effectively destroying the Constitution’s division of
governmental powers. . . .
The dissent’s exposition of the wonderful things the Federal Government has achieved
through exercise of its assigned powers, such as “the provision of old-age and survivors’
57
benefits” in the Social Security Act, is quite beside the point. The issue here is whether the
federal government can impose the Individual Mandate through the Commerce Clause. And the
relevant history is not that Congress has achieved wide and wonderful results through the proper
exercise of its assigned powers in the past, but that it has never before used the Commerce
Clause to compel entry into commerce. The dissent treats the Constitution as though it is an
enumeration of those problems that the Federal Government can address—among which, it finds,
is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically
“the problem of the uninsured,” ante. The Constitution is not that. It enumerates not federally
soluble problems, but federally available powers. The Federal Government can address whatever
problems it wants but can bring to their solution only those powers that the Constitution confers,
among which is the power to regulate commerce. None of our cases say anything else. Article I
contains no whatever-it-takes-to-solve-a-national-problem power.
The dissent dismisses the conclusion that the power to compel entry into the healthinsurance market would include the power to compel entry into the new-car or broccoli markets.
The latter purchasers, it says, “will be obliged to pay at the counter before receiving the vehicle
or nourishment,” whereas those refusing to purchase health-insurance will ultimately get treated
anyway, at others’ expense. “[T]he unique attributes of the health-care market . . . give rise to a
significant free-riding problem that does not occur in other markets.” And “a vegetable-purchase
mandate” (or a car-purchase mandate) is not “likely to have a substantial effect on the healthcare costs” borne by other Americans. Those differences make a very good argument by the
dissent’s own lights, since they show that the failure to purchase health insurance, unlike the
failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the
dissent’s view) included among the unenumerated “problems” that the Constitution authorizes
the Federal Government to solve. But those differences do not show that the failure to enter the
health-insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress
can “regulate.” . . .
***
Justice Thomas, dissenting.
I dissent for the reasons stated in our joint opinion, but I write separately to say a word
about the Commerce Clause. The joint dissent and The Chief Justice correctly apply our
precedents to conclude that the Individual Mandate is beyond the power granted to Congress
under the Commerce Clause and the Necessary and Proper Clause. Under those precedents,
Congress may regulate “economic activity [that] substantially affects interstate commerce.” I
adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce
Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s
early Commerce Clause cases.” Morrison (Thomas, J., concurring); see also Lopez (Thomas, J.,
concurring); Raich (Thomas, J., dissenting). As I have explained, the Court’s continued use of
that test “has encouraged the Federal Government to persist in its view that the Commerce
Clause has virtually no limits.” Morrison. The Government’s unprecedented claim in this suit
that it may regulate not only economic activity but also inactivity that substantially affects
interstate commerce is a case in point.
58
Note: The Status of the Commerce Clause Analysis in National Federation
In National Federation five justices expressed the view that the individual mandate
exceeded Congress’s power to regulate interstate commerce, even when adding to the mix
Congress’s power under the Necessary and Proper Clause. Does that mean that these justices’
views constitute one of the holdings of the case? Consider the definition of “dictum” (sometimes
called “obiter dictum”): “A judicial comment made while delivering a judicial opinion, but one
that is unnecessary to the decision in the case and therefore not precedential (although it may be
considered persuasive.” Black’s Law Dictionary 1102 (9th ed. 2004) (defining “obiter dictum”).
In light of the fact that Chief Justice Roberts ultimately voted to uphold the individual
mandate as a tax, was his analysis of the Commerce Clause issue one “made while delivering a
judicial opinion, but . . . unnecessary to the decision in the case and therefore not precedential”?
Justice Ginsburg thought so:
The Chief Justice states that he must evaluate the constitutionality of the
minimum coverage provision under the Commerce Clause because the provision
“reads more naturally as a command to buy insurance than as a tax.” The Chief
Justice ultimately concludes, however, that interpreting the provision as a tax is a
“fairly possible” construction. That being so, I see no reason to undertake a
Commerce Clause analysis that is not outcome determinative.
Chief Justice Roberts answered as follows:
Justice Ginsburg questions the necessity of rejecting the Government's commerce
power argument, given that § 5000A can be upheld under the taxing power. But
the statute reads more naturally as a command to buy insurance than as a tax, and
I would uphold it as a command if the Constitution allowed it. It is only because
the Commerce Clause does not authorize such a command that it is necessary to
reach the taxing power question. And it is only because we have a duty to
construe a statute to save it, if fairly possible, that § 5000A can be interpreted as a
tax. Without deciding the Commerce Clause question, I would find no basis to
adopt such a saving construction.
If you were advising a client, what would you say about this question?
E.
INTERSTATE PRIVILEGES AND IMMUNITIES
Page 386: Add after Supreme Court of New Hampshire v. Piper:
In 2013 the Court considered whether a state violated the Article IV Privileges and
Immunities Clause by denying out-of-staters the right to request documents under a state
Freedom of Information Act (FOIA). In McBurney v. Young, 185 L.Ed.2d 758 (2013), the Court
unanimously held that such discrimination did not violate the Clause. Justice Alito, writing for
59
all nine justices, rejected a variety of arguments made by the plaintiffs, citizens of Rhode Island
and California, against Virginia’s restriction of state-law FOIA rights to Virginians. Responding
to their claim that the law abridged their ability to practice their profession of obtaining state
records on behalf of clients, he recognized that the law might have “the incidental effect of
preventing citizens of other states from making a profit by trading on information contained in
state records.” But Justice Alito reasoned that this type of discrimination did not abridge an outof-stater’s “ability to engage in a common calling in the sense prohibited by [the Clause].”
Rather, he explained that the Clause merely prohibited state attempts to advantage local interests
at the expense of out-of-state competition – a motive he said was lacking in this case. Justice
Alito also rejected the plaintiffs’ claims that the law abridged their rights to own property in the
state and to access state courts, noting that the state both made property records available to outof-staters through other means and allowed out-of-state litigants to access records through
standard procedures such as discovery. Finally, the Court rejected the argument that unequal
access to public records itself violated the Clause, concluding that such access did not constitute
the sort of fundamental right protected by the Clause. Justice Thomas joined the opinion, and
concurred on a separate point.
F.
FEDERAL PRE-EMPTION OF STATE LAW
Page 412: Add after the Note on The Continued Battle Over the Presumption Against
Preemption:
Note: Preemption in the 2010 Term
1. In the October 2010 Term the Court decided three preemption cases dealing with
important regulatory areas where at least some authority is shared between the federal
government and the states.
2. In Williamson v. Mazda Motor of America, 179 L.Ed.2d 75 (2011), the Court
considered the preemptive effect on a state-law tort suit of a regulation issued by the federal
agency responsible auto safety. The National Traffic and Motor Safety Vehicle Act of 1966
authorizes a federal agency to promulgate auto safety regulations. It also provides that
“compliance with” any such regulation “does not exempt any person from any liability under
common law.”
In Williamson a federal regulation allowed auto makers to install only lap seat belts in
certain auto seats. After a fatal auto accident a plaintiff sued the auto maker, alleging that the
auto maker should have installed lap-and-shoulder belts rather than the simple lap belt which the
60
victim was wearing. The manufacturer argued that the federal regulation preempted any state
tort law that might find it liable for failing to do more. The state appellate court agreed.
The Court unanimously disagreed with the lower court and rejected the manufacturer’s
preemption claim. Writing for seven justices Justice Breyer began by distinguishing a case
relied on by the lower court, Geier v. American Honda Motor Co., 529 U.S. 861 (2000), where
the Court had held a different portion of an earlier version of the same regulation preempted the
state law. The Court explained that the regulation in Geier – which gave auto makers the choice
between installing airbags or other passive restraints – was intended to give manufacturers a
choice between different restraint systems.
According to Justice Breyer, providing
manufacturers that discretion was an important part of the policy underlying the regulatory
scheme. For example, the agency had expressed concern that a rule requiring airbags would
engender public resistance. The Court thus concluded in Geier that a state court’s imposition of
liability for a manufacturer’s decision to install one system rather than another would frustrate
that federal policy.
Justice Breyer then contrasted the seat belt rule at issue in Williamson. He reviewed the
regulatory history of the seat belt rule, and concluded that the agency had required only lap belts
simply because it did not consider more elaborate systems to be cost-effective. According to the
Court, “that fact – the fact that [the agency] made a negative judgment about cost effectiveness –
cannot by itself show that [the agency] sought to forbid common-law tort suits in which a judge
or jury might reach a different conclusion.” The Court noted that the costs of such systems were
falling. It also refused to allow “the mere existence of such a cost-effectiveness judgment” to bar
tort liability, in light of the statute’s non-preemption provision. Thus, the Court concluded, the
tort suit in Williamson did not risk frustrating the policy objectives of the federal law, as had the
suit in Geier.
Justice Sotomayor concurred “to emphasize the Court’s rejection of an overreading of
Geier that ha[d] developed since that opinion was issued.” She explained that:
The mere fact that an agency regulation allows manufacturers a choice between
[compliance] options is insufficient to justify implied pre-emption; courts should
only find pre-emption where evidence exists that an agency has a regulatory
objective . . . whose achievement depends on manufacturers having a choice
between options.
Justice Thomas concurred only in the judgment. He relied on the statute’s express
provision allowing common law suits to go forward. He criticized the majority’s reliance on the
theory that the tort suit did not frustrate the purposes or objectives of the federal law, calling such
an inquiry “utterly unconstrained” and deriding it as requiring “psychoanalysis of the
regulators.” Justice Kagan did not participate in the case.
61
3. The Court considered preemption of another type of state-law tort suit in Pliva, Inc. v.
Mensing, 180 L.Ed.2d 924 (2011). In Pliva, individuals who had suffered adverse side effects
from a generic version of a drug sued the manufacturers on the theory that the manufacturers
should have provided better warnings of possible side effects. The manufacturers alleged that
the complex body of federal drug law prevented enhanced warnings. In particular, they argued
that generic drug labels were governed by the labels the federal Food and Drug Administration
(FDA) established for the name-brand versions of those drugs. In other words, if the FDA
required particular safety information on the label of the name-brand drug, then the generic
version of the drug had to have the same information. Thus, the generic manufacturers argued, it
was physically impossible for them to comply with both the federal regulatory scheme and a
state tort law duty to provide enhanced warnings.
By a 5-4 vote, the Court agreed, and held the tort lawsuits to be preempted. Writing for
the majority, Justice Thomas argued that even if it was possible for the generics manufacturers to
ask the FDA to approve a more informative label, they would still be liable under the failure to
warn theory. More generally, he rejected the argument that the manufacturers could have sought
regulatory or statutory changes that would have allowed them to comply with tort law’s duty to
warn. He concluded that accepting such an argument would render “physical impossibility”
preemption illusory, since under the plaintiffs’ theory it would always be “possible” to lobby the
federal government to change its requirements to make them consistent with state law
requirements. He concluded: “it is enough to hold that when a party cannot satisfy its state
duties without the Federal Government’s special permission and assistance, which is dependent
on the exercise of judgment by a federal agency, that party cannot independently satisfy those
state duties for preemption purposes.”
In a part of his opinion that spoke for only four Justices, Justice Thomas again returned to
the presumption against preemption. (See Casebook p.411). He described the concluding phrase
of the Supremacy Clause – “any [state law] to the Contrary notwithstanding” – as a non obstante
provision, i.e., a provision that “instructed courts not to apply the general presumption against
implied repeals.” He thus stated that this wording “suggests that courts should not strain to find
ways to reconcile federal law with seemingly conflicting state law.” Rather, he concluded, “[t]he
non obstante provision of the Supremacy Clause indicates that a court need look no further than
the ordinary meaning of federal law, and should not distort federal law to accommodate
conflicting state law.” Justice Kennedy, who joined the rest of Justice Thomas’s opinion, did not
join this discussion.
Justice Sotomayor dissented for Justices Ginsburg, Breyer and Kagan. She began by
stating what she described as “[t]wo principles [that] guide all pre-emption analysis. First, the
purpose of Congress is the ultimate touchstone in every pre-emption case. Second, in all pre62
emption cases, and particularly in those in which Congress has legislated . . . in a field which the
States have traditionally occupied, . . . we start with the assumption that the historic police
powers of the States were not to be superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.” She then described impossibility preemption as “a demanding
defense” to a claim of violation of state law.
Applying these understandings, Justice Sotomayor concluded that the manufacturers’
failure to invoke FDA procedures for changing their labels meant that they had “demonstrated
only a hypothetical or potential conflict,” rather than actual impossibility. She conceded that the
manufacturers could have shown impossibility if, for example, they had proposed a label change
to the FDA but that it had rejected their proposal. She described the federal law’s provision for
such label changes as “a mechanism for complying with state law,” which in turn gave the
“presumption against preemption . . . particular force.” She also criticized the plurality’s non
obstante analysis, arguing that it conflicted with the presumption against preemption that she
described earlier as a basic principle of the Court’s preemption jurisprudence.
4. Finally, in Chamber of Commerce of the United States v. Whiting, 179 L.Ed.2d 1031
(2011), the Court considered whether federal immigration law preempted an Arizona law dealing
with the employment of undocumented workers. The Arizona law provided for the revocation of
the business licenses of businesses that knowingly employed undocumented workers. It also
required all Arizona employers to use the federal government’s “E-Verify” system to check
potential employees’ work authorization status. The relevant federal immigration law expressly
preempted “any State or local law imposing civil or criminal sanctions (other than through
licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment,
unauthorized aliens.”
By a vote of 5-4 the Court upheld the Arizona law in its entirety. With regard to its
provision for the revocation of business licenses, the majority, speaking through Chief Justice
Roberts, concluded that the statute fell within the federal law’s allowance of state “licensing and
similar laws,” thus defeating the plaintiffs’ express preemption claim. It held that the state law’s
definition of “license” “largely parrots” the definition of the same word in an important federal
statute, the Administrative Procedure Act (APA). It also concluded that the state law’s inclusion
of particular documents within the definition of “license” comported with the APA’s and
dictionary definitions of that word.
Writing now for four Justices, Chief Justice Roberts rejected the plaintiffs’ argument that
federal immigration law impliedly preempted the Arizona law. He argued that the Arizona law
“tracks [the federal law’s] provisions in all material respects.” Further, he concluded that the
Arizona law did not obstruct federal purposes. For example, he noted that federal and state antidiscrimination law continues to promote the immigration law’s objective of balancing
63
immigration enforcement with discouraging racial discrimination in employment. He concluded
this part of the opinion as follows:
Implied preemption analysis does not justify a free-wheeling judicial inquiry into
whether a statute is in tension with federal objectives; such an endeavor would
undercut the principle that it is Congress rather than the courts that preempts state
law. Our precedents “establish that a high threshold must be met if a state law is
to be pre-empted for conflicting with the purposes of a federal Act.” That
threshold is not met here.
Justice Thomas, who joined the rest of the majority, did not join this discussion.
Again writing for a majority, the Chief Justice also upheld the state law’s requirement
that all employers use the federal E-Verify system to determine whether an employee is
authorized to work in the country. The plaintiff argued that mandatory use of E-Verify
conflicted with the federal purpose of “develop[ing] a reliable and non-burdensome system of
work-authorization verification.”
The Court rejected that argument. Chief Justice Roberts noted that the relevant part of
the statute did not constrain state action at all, but simply imposed restrictions on federal
immigration officials requiring use of E-Verify. He concluded that the state law’s required use
of E-Verify did not frustrate the federal purpose of ensuring reliable verification of work
authorization status. He observed that the federal government had encouraged use of E-Verify.
Justice Breyer dissented for himself and Justice Ginsburg. With regard to the express
preemption argument, he argued that the majority had read the term “license” too broadly and
out of context. He argued that the majority’s broad definition disrupted the federal law’s attempt
to balance a number of goals, including efficient immigration and enforcement and nondiscrimination in employment, by allowing the state to impose the severe penalty of revocation
of a business license as a sanction for violating the law. He argued:
[T]he Arizona statute will impose additional burdens upon lawful employers and
consequently lead those employers to erect ever stronger safeguards against the
hiring of unauthorized aliens – without counterbalancing protection against
unlawful discrimination. And by defining “licensing” so broadly . . . Arizona’s
statute creates these effects statewide.
He concluded that the history of the federal immigration law suggested that the “licensing and
similar laws” carve-out from the preemption provision was best read as referring to employmentrelated licensing systems – that is, systems that license firms who recruit or refer workers for
employment.
64
With regard to the state law’s mandated use of the E-Verify system, Justice Breyer
argued that Congress understood this system as a pilot program, subject to error; thus, he
concluded, Congress insisted that participation be voluntary.
Justice Sotomayor dissented separately. She argued that the preemption carve-out “can
only be understood to preserve States’ authority to impose licensing sanctions after a final
federal determination that a person has violated [the federal law]. Because the [state law] instead
creates a separate state mechanism for Arizona state courts to determine whether a person has
employed an unauthorized alien, I would hold that it falls outside [the carve-out] and is preempted.” In support of this conclusion she argued that Congress intended uniform application of
immigration laws, a goal she said would be frustrated if, as under the Arizona law, state officials
also could make determinations about work authorization status.
With regard to the E-Verify system, she agreed with “much” of Justice Breyer’s
reasoning. She argued that, “[b]y requiring Arizona employers to use E-Verify, Arizona has
effectively made a decision for Congress regarding use of a federal resource, in contravention of
the significant policy objectives motivating Congress’ decision to make participation in the EVerify program voluntary.” She also distinguished Williamson v. Mazda Motor of America
(Item 2 of this Note, above):
As we have recently recognized, that a state law makes mandatory something that
federal law makes voluntary does not mean, in and of itself, that the state law
stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress. Williamson.
This case, however, is readily distinguishable from cases like Williamson, in
which state law regulates relationships between private parties. Here, the Arizona
Act directly regulates the relationship between the Federal Government and
private parties by mandating use of a federally created and administered resource.
This case thus implicates the uniquely federal interest in managing use of a
federal resource.
Justice Kagan did not participate in the case.
***
The dispute over state-law restrictions on illegal immigrants has remained a flashpoint in
American politics. In 2010 Arizona enacted what became known as SB 1070, a law that, as
explained in the case below, imposed significant burdens on undocumented workers and made
them susceptible to arrest by state police. Civil rights groups have sued, alleging that SB 1070
violates the civil rights of persons who might be stopped or otherwise burdened based on their
65
ethnic appearance. In the following case, brought by the federal government, the claim was that
federal immigration law pre-empted the state law’s provisions.
ARIZONA v. UNITED STATES
183 L. Ed. 2d 351 (2012)
Kennedy, J., delivered the opinion of the Court, in which Roberts, C.J., and Ginsburg, Breyer,
and Sotomayor, J.J., joined. Scalia, J., Thomas, J., and Alito., J., filed opinions concurring in
part and dissenting in part. Kagan, J., took no part in the consideration or decision of the case.
To address pressing issues related to the large number of aliens within its borders who do
not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called
the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as
S.B. 1070, the version introduced in the state senate. Its stated purpose is to “discourage and
deter the unlawful entry and presence of aliens and economic activity by persons unlawfully
present in the United States.” The law’s provisions establish an official state policy of “attrition
through enforcement.” The question before the Court is whether federal law preempts and
renders invalid four separate provisions of the state law.
I
The United States filed this suit against Arizona, seeking to enjoin S.B. 1070 as
preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3
makes failure to comply with federal alien-registration requirements a state misdemeanor.
Section 5, in relevant part, makes it a misdemeanor for an unauthorized alien to seek or engage
in work in the State; this provision is referred to as § 5(C). Two other provisions give specific
arrest authority and investigative duties with respect to certain aliens to state and local law
enforcement officers. Section 6 authorizes officers to arrest without a warrant a person “the
officer has probable cause to believe . . . has committed any public offense that makes the person
removable from the United States.” Section 2(B) provides that officers who conduct a stop,
detention, or arrest must in some circumstances make efforts to verify the person’s immigration
status with the Federal Government.
The United States District Court for the District of Arizona issued a preliminary
injunction preventing the four provisions at issue from taking effect. The Court of Appeals for
the Ninth Circuit affirmed. . . . The Court of Appeals was unanimous in its conclusion that §§ 3
and 5(C) were likely preempted. Judge Bea dissented from the decision to uphold the
preliminary injunction against §§ 2(B) and 6. This Court granted certiorari to resolve important
questions concerning the interaction of state and federal power with respect to the law of
immigration and alien status.
66
II
A
The Government of the United States has broad, undoubted power over the subject of
immigration and the status of aliens. See Toll v. Moreno, 458 U.S. 1 (1982). This authority rests,
in part, on the National Government’s constitutional power to “establish an uniform Rule of
Naturalization,” U.S. Const., Art. I, § 8, cl. 4, and its inherent power as sovereign to control and
conduct relations with foreign nations, see Toll (citing United States v. Curtiss–Wright Export
Corp., 299 U.S. 304 (1936) [Casebook Note at p.569]).
The federal power to determine immigration policy is well settled. Immigration policy
can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as
the perceptions and expectations of aliens in this country who seek the full protection of its laws.
Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of
American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae.
It is fundamental that foreign countries concerned about the status, safety, and security of
their nationals in the United States must be able to confer and communicate on this subject with
one national sovereign, not the 50 separate States. See Chy Lung v. Freeman, 92 U.S. 275
(1876); see also The Federalist No. 3 (C. Rossiter ed. 2003) (J. Jay) (observing that federal
power would be necessary in part because “bordering States . . . under the impulse of sudden
irritation, and a quick sense of apparent interest or injury” might take action that would
undermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and
delicate of all international relationships ... has to do with the protection of the just rights of a
country’s own nationals when those nationals are in another country.” Hines v. Davidowitz, 312
U.S. 52 (1941).
Federal governance of immigration and alien status is extensive and complex. Congress
has specified categories of aliens who may not be admitted to the United States. Unlawful entry
and unlawful reentry into the country are federal offenses. Once here, aliens are required to
register with the Federal Government and to carry proof of status on their person. Failure to do
so is a federal misdemeanor. Federal law also authorizes States to deny noncitizens a range of
public benefits, and it imposes sanctions on employers who hire unauthorized workers.
Congress has specified which aliens may be removed from the United States and the
procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry,
have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a
civil, not criminal, matter. A principal feature of the removal system is the broad discretion
exercised by immigration officials. Federal officials, as an initial matter, must decide whether it
makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum
and other discretionary relief allowing them to remain in the country or at least to leave without
formal removal.
Discretion in the enforcement of immigration law embraces immediate human concerns.
Unauthorized workers trying to support their families, for example, likely pose less danger than
alien smugglers or aliens who commit a serious crime. The equities of an individual case may
67
turn on many factors, including whether the alien has children born in the United States, long ties
to the community, or a record of distinguished military service. Some discretionary decisions
involve policy choices that bear on this Nation’s international relations. . . . The dynamic nature
of relations with other countries requires the Executive Branch to ensure that enforcement
policies are consistent with this Nation’s foreign policy with respect to these and other realities.
Agencies in the Department of Homeland Security play a major role in enforcing the
country’s immigration laws. United States Customs and Border Protection (CBP) is responsible
for determining the admissibility of aliens and securing the country’s borders. In 2010, CBP’s
Border Patrol apprehended almost half a million people. Immigration and Customs Enforcement
(ICE), a second agency, “conducts criminal investigations involving the enforcement of
immigration-related statutes.” ICE also operates the Law Enforcement Support Center. LESC, as
the Center is known, provides immigration status information to federal, state, and local officials
around the clock. ICE officers are responsible “for the identification, apprehension, and removal
of illegal aliens from the United States.” Hundreds of thousands of aliens are removed by the
Federal Government every year.
B
The pervasiveness of federal regulation does not diminish the importance of immigration
policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds
of thousands of deportable aliens are apprehended in Arizona each year. . . . And in the State’s
most populous county, these aliens are reported to be responsible for a disproportionate share of
serious crime.
***
III
Federalism, central to the constitutional design, adopts the principle that both the
National and State Governments have elements of sovereignty the other is bound to respect.
From the existence of two sovereigns follows the possibility that laws can be in conflict or at
cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this
principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade
Council, 530 U.S. 363 (2000); Gibbons v. Ogden, 9 Wheat. 1 (1824) [Casebook p.245]. There is
no doubt that Congress may withdraw specified powers from the States by enacting a statute
containing an express preemption provision. See, e.g., Chamber of Commerce of United States of
America v. Whiting, 563 U.S. –––– (2011) [supra. this Supplement].
State law must also give way to federal law in at least two other circumstances. First, the
States are precluded from regulating conduct in a field that Congress, acting within its proper
authority, has determined must be regulated by its exclusive governance. See Gade v. National
Solid Wastes Management Assn., 505 U.S. 88 (1992) [Casebook p.387]. The intent to displace
state law altogether can be inferred from a framework of regulation “so pervasive . . . that
68
Congress left no room for the States to supplement it” or where there is a “federal interest . . . so
dominant that the federal system will be assumed to preclude enforcement of state laws on the
same subject.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).
Second, state laws are preempted when they conflict with federal law. This includes cases
where “compliance with both federal and state regulations is a physical impossibility,” and those
instances where the challenged state law “stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress,” Hines; see also Crosby (“What is a
sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a
whole and identifying its purpose and intended effects”). In preemption analysis, courts should
assume that “the historic police powers of the States” are not superseded “unless that was the
clear and manifest purpose of Congress.” Rice.
The four challenged provisions of the state law each must be examined under these
preemption principles.
IV
A
Section 3
Section 3 of S.B. 1070 creates a new state misdemeanor. It forbids the “willful failure to
complete or carry an alien registration document . . . in violation of 8 United States Code section
1304(e) or 1306(a).” In effect, § 3 adds a state-law penalty for conduct proscribed by federal
law. The United States contends that this state enforcement mechanism intrudes on the field of
alien registration, a field in which Congress has left no room for States to regulate.
The Court discussed federal alien-registration requirements in Hines.. In 1940, as
international conflict spread, Congress added to federal immigration law a “complete system for
alien registration.” The new federal law struck a careful balance. It punished an alien’s willful
failure to register but did not require aliens to carry identification cards. There were also limits
on the sharing of registration records and fingerprints. The Court found that Congress intended
the federal plan for registration to be a “single integrated and all-embracing system.” Because
this “complete scheme . . . for the registration of aliens” touched on foreign relations, it did not
allow the States to “curtail or complement” federal law or to “enforce additional or auxiliary
regulations.” As a consequence, the Court ruled that Pennsylvania could not enforce its own
alien-registration program.
The present regime of federal regulation is not identical to the statutory framework
considered in Hines, but it remains comprehensive. Federal law now includes a requirement that
aliens carry proof of registration. Other aspects, however, have stayed the same. Aliens who
remain in the country for more than 30 days must apply for registration and be fingerprinted.
Detailed information is required, and any change of address has to be reported to the Federal
Government. The statute continues to provide penalties for the willful failure to register.
The framework enacted by Congress leads to the conclusion here, as it did in Hines, that
the Federal Government has occupied the field of alien registration. The federal statutory
directives provide a full set of standards governing alien registration, including the punishment
for noncompliance. It was designed as a “‘harmonious whole.’” Hines. Where Congress occupies
69
an entire field, as it has in the field of alien registration, even complementary state regulation is
impermissible. Field preemption reflects a congressional decision to foreclose any state
regulation in the area, even if it is parallel to federal standards.
Federal law makes a single sovereign responsible for maintaining a comprehensive and
unified system to keep track of aliens within the Nation’s borders. If § 3 of the Arizona statute
were valid, every State could give itself independent authority to prosecute federal registration
violations, “diminish[ing] the [Federal Government]’s control over enforcement” and
“detract[ing] from the ‘integrated scheme of regulation’ created by Congress.” Even if a State
may make violation of federal law a crime in some instances, it cannot do so in a field (like the
field of alien registration) that has been occupied by federal law.
Arizona contends that § 3 can survive preemption because the provision has the same aim
as federal law and adopts its substantive standards. This argument not only ignores the basic
premise of field preemption—that States may not enter, in any respect, an area the Federal
Government has reserved for itself—but also is unpersuasive on its own terms. Permitting the
State to impose its own penalties for the federal offenses here would conflict with the careful
framework Congress adopted. Were § 3 to come into force, the State would have the power to
bring criminal charges against individuals for violating a federal law even in circumstances
where federal officials in charge of the comprehensive scheme determine that prosecution would
frustrate federal policies.
There is a further intrusion upon the federal scheme. Even where federal authorities
believe prosecution is appropriate, there is an inconsistency between § 3 and federal law with
respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor
that may be punished by a fine, imprisonment, or a term of probation. State law, by contrast,
rules out probation as a possible sentence (and also eliminates the possibility of a pardon). This
state framework of sanctions creates a conflict with the plan Congress put in place.
These specific conflicts between state and federal law simply underscore the reason for
field preemption. As it did in Hines, the Court now concludes that, with respect to the subject of
alien registration, Congress intended to preclude States from “complement[ing] the federal law,
or enforc[ing] additional or auxiliary regulations.” Section 3 is preempted by federal law.
B
Section 5(C)
Unlike § 3, which replicates federal statutory requirements, § 5(C) enacts a state criminal
prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for
“an unauthorized alien to knowingly apply for work, solicit work in a public place or perform
work as an employee or independent contractor” in Arizona. Violations can be punished by a
$2,500 fine and incarceration for up to six months. The United States contends that the provision
upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must
be preempted as an obstacle to the federal plan of regulation and control.
When there was no comprehensive federal program regulating the employment of
unauthorized aliens, this Court found that a State had authority to pass its own laws on the
70
subject. In 1971, for example, California passed a law imposing civil penalties on the
employment of aliens who were “not entitled to lawful residence in the United States if such
employment would have an adverse effect on lawful resident workers.” The law was upheld
against a preemption challenge in De Canas v. Bica, 424 U.S. 351 (1976). De Canas recognized
that “States possess broad authority under their police powers to regulate the employment
relationship to protect workers within the State.” At that point, however, the Federal Government
had expressed no more than “a peripheral concern with [the] employment of illegal entrants.”
Current federal law is substantially different from the regime that prevailed when De
Canas was decided. Congress enacted IRCA as a comprehensive framework for “combating the
employment of illegal aliens.” . . .
This comprehensive framework does not impose federal criminal sanctions on the
employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal
law some civil penalties are imposed instead. . . .
The legislative background of IRCA underscores the fact that Congress made a deliberate
choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized
employment. A commission established by Congress to study immigration policy and to make
recommendations concluded these penalties would be “unnecessary and unworkable.” . . . In the
end, IRCA’s framework reflects a considered judgment that making criminals out of aliens
engaged in unauthorized work—aliens who already face the possibility of employer exploitation
because of their removable status—would be inconsistent with federal policy and objectives.
IRCA’s express preemption provision, which in most instances bars States from imposing
penalties on employers of unauthorized aliens, is silent about whether additional penalties may
be imposed against the employees themselves. But the existence of an “express pre-emption
provisio[n] does not bar the ordinary working of conflict pre-emption principles” or impose a
“special burden” that would make it more difficult to establish the preemption of laws falling
outside the clause. Geier v. American Honda Motor Co. 529 U.S. 861 (2000) [supra. this
Supplement].
The ordinary principles of preemption include the well-settled proposition that a state law
is preempted where it “stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Hines. Under § 5(C) of S.B. 1070, Arizona law would
interfere with the careful balance struck by Congress with respect to unauthorized employment
of aliens. Although § 5(C) attempts to achieve one of the same goals as federal law—the
deterrence of unlawful employment—it involves a conflict in the method of enforcement. The
Court has recognized that a “[c]onflict in technique can be fully as disruptive to the system
Congress enacted as conflict in overt policy.” The correct instruction to draw from the text,
structure, and history of IRCA is that Congress decided it would be inappropriate to impose
criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a
state law to the contrary is an obstacle to the regulatory system Congress chose. Section 5(C) is
preempted by federal law.
71
C
Section 6
Section 6 of S.B. 1070 provides that a state officer, “without a warrant, may arrest a
person if the officer has probable cause to believe . . . [the person] has committed any public
offense that makes [him] removable from the United States.” The United States argues that
arrests authorized by this statute would be an obstacle to the removal system Congress created.
As a general rule, it is not a crime for a removable alien to remain present in the United
States. If the police stop someone based on nothing more than possible removability, the usual
predicate for an arrest is absent. . . .
The federal statutory structure instructs when it is appropriate to arrest an alien during the
removal process. For example, the Attorney General can exercise discretion to issue a warrant
for an alien’s arrest and detention “pending a decision on whether the alien is to be removed
from the United States.” And if an alien is ordered removed after a hearing, the Attorney General
will issue a warrant. In both instances, the warrants are executed by federal officers who have
received training in the enforcement of immigration law. If no federal warrant has been issued,
those officers have more limited authority. . . .
Section 6 attempts to provide state officers even greater authority to arrest aliens on the
basis of possible removability than Congress has given to trained federal immigration officers.
Under state law, officers who believe an alien is removable by reason of some “public offense”
would have the power to conduct an arrest on that basis regardless of whether a federal warrant
has issued . . . . This state authority could be exercised without any input from the Federal
Government about whether an arrest is warranted in a particular case. This would allow the State
to achieve its own immigration policy. The result could be unnecessary harassment of some
aliens (for instance, a veteran, college student, or someone assisting with a criminal
investigation) whom federal officials determine should not be removed.
This is not the system Congress created. Federal law specifies limited circumstances in
which state officers may perform the functions of an immigration officer. A principal example is
when the Attorney General has granted that authority to specific officers in a formal agreement
with a state or local government. Officers covered by these agreements are subject to the
Attorney General’s direction and supervision. . . .
By authorizing state officers to decide whether an alien should be detained for being
removable, § 6 violates the principle that the removal process is entrusted to the discretion of the
Federal Government. A decision on removability requires a determination whether it is
appropriate to allow a foreign national to continue living in the United States. Decisions of this
nature touch on foreign relations and must be made with one voice.
In defense of § 6, Arizona notes a federal statute permitting state officers to “cooperate
with the Attorney General in the identification, apprehension, detention, or removal of aliens not
lawfully present in the United States.” There may be some ambiguity as to what constitutes
72
cooperation under the federal law; but no coherent understanding of the term would incorporate
the unilateral decision of state officers to arrest an alien for being removable absent any request,
approval, or other instruction from the Federal Government. . . .
Congress has put in place a system in which state officers may not make warrantless
arrests of aliens based on possible removability except in specific, limited circumstances. By
nonetheless authorizing state and local officers to engage in these enforcement activities as a
general matter, § 6 creates an obstacle to the full purposes and objectives of Congress. See
Hines. Section 6 is preempted by federal law.
D
Section 2(B)
Section 2(B) of S.B. 1070 requires state officers to make a “reasonable attempt . . . to
determine the immigration status” of any person they stop, detain, or arrest on some other
legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully
present in the United States.” The law also provides that “[a]ny person who is arrested shall have
the person’s immigration status determined before the person is released.” The accepted way to
perform these status checks is to contact ICE, which maintains a database of immigration
records.
Three limits are built into the state provision. First, a detainee is presumed not to be an
alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license
or similar identification. Second, officers “may not consider race, color or national origin . . .
except to the extent permitted by the United States [and] Arizona Constitution[s].” Third, the
provisions must be “implemented in a manner consistent with federal law regulating
immigration, protecting the civil rights of all persons and respecting the privileges and
immunities of United States citizens.”
The United States and its amici contend that, even with these limits, the State’s
verification requirements pose an obstacle to the framework Congress put in place. The first
concern is the mandatory nature of the status checks. The second is the possibility of prolonged
detention while the checks are being performed.
1
Consultation between federal and state officials is an important feature of the
immigration system. Congress has made clear that no formal agreement or special training needs
to be in place for state officers to “communicate with the [Federal Government] regarding the
immigration status of any individual, including reporting knowledge that a particular alien is not
lawfully present in the United States.” And Congress has obligated ICE to respond to any request
made by state officials for verification of a person’s citizenship or immigration status. ICE’s Law
Enforcement Support Center operates “24 hours a day, seven days a week, 365 days a year” and
provides, among other things, “immigration status, identity information and real-time assistance
73
to local, state and federal law enforcement agencies.”
The United States argues that making status verification mandatory interferes with the
federal immigration scheme. It is true that § 2(B) does not allow state officers to consider federal
enforcement priorities in deciding whether to contact ICE about someone they have detained.
In other words, the officers must make an inquiry even in cases where it seems unlikely
that the Attorney General would have the alien removed. This might be the case, for example,
when an alien is an elderly veteran with significant and longstanding ties to the community.
Congress has done nothing to suggest it is inappropriate to communicate with ICE in these
situations, however. Indeed, it has encouraged the sharing of information about possible
immigration violations. A federal statute regulating the public benefits provided to qualified
aliens in fact instructs that “no State or local government entity may be prohibited, or in any way
restricted, from sending to or receiving from [ICE] information regarding the immigration status,
lawful or unlawful, of an alien in the United States.” The federal scheme thus leaves room for a
policy requiring state officials to contact ICE as a routine matter. Cf. Whiting (rejecting argument
that federal law preempted Arizona’s requirement that employers determine whether employees
were eligible to work through the federal E–Verify system where the Federal Government had
encouraged its use).
2
Some who support the challenge to § 2(B) argue that, in practice, state officers will be
required to delay the release of some detainees for no reason other than to verify their
immigration status. Detaining individuals solely to verify their immigration status would raise
constitutional concerns. And it would disrupt the federal framework to put state officers in the
position of holding aliens in custody for possible unlawful presence without federal direction and
supervision. Cf. Part IV–C, supra (concluding that Arizona may not authorize warrantless arrests
on the basis of removability). The program put in place by Congress does not allow state or local
officers to adopt this enforcement mechanism.
But § 2(B) could be read to avoid these concerns. To take one example, a person might
be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence
of § 2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with
ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state
courts may conclude that, unless the person continues to be suspected of some crime for which
he may be detained by state officers, it would not be reasonable to prolong the stop for the
immigration inquiry.
To take another example, a person might be held pending release on a charge of driving
under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the
jaywalker) would appear to be subject to the categorical requirement in the second sentence of §
2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined
before [he] is released.” State courts may read this as an instruction to initiate a status check
every time someone is arrested, or in some subset of those cases, rather than as a command to
hold the person until the check is complete no matter the circumstances. Even if the law is read
74
as an instruction to complete a check while the person is in custody, moreover, it is not clear at
this stage and on this record that the verification process would result in prolonged detention.
However the law is interpreted, if § 2(B) only requires state officers to conduct a status check
during the course of an authorized, lawful detention or after a detainee has been released, the
provision likely would survive preemption—at least absent some showing that it has other
consequences that are adverse to federal law and its objectives. There is no need in this case to
address whether reasonable suspicion of illegal entry or another immigration crime would be a
legitimate basis for prolonging a detention, or whether this too would be preempted by federal
law.
The nature and timing of this case counsel caution in evaluating the validity of § 2(B).
The Federal Government has brought suit against a sovereign State to challenge the provision
even before the law has gone into effect. There is a basic uncertainty about what the law means
and how it will be enforced. At this stage, without the benefit of a definitive interpretation from
the state courts, it would be inappropriate to assume § 2(B) will be construed in a way that
creates a conflict with federal law. Cf. Fox v. Washington, 236 U.S. 273 (1915) (“So far as
statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they
should be so construed; and it is to be presumed that state laws will be construed in that way by
the state courts”). As a result, the United States cannot prevail in its current challenge. This
opinion does not foreclose other preemption and constitutional challenges to the law as
interpreted and applied after it goes into effect.
V
***
The National Government has significant power to regulate immigration. With power
comes responsibility, and the sound exercise of national power over immigration depends on the
Nation’s meeting its responsibility to base its laws on a political will informed by searching,
thoughtful, rational civic discourse. Arizona may have understandable frustrations with the
problems caused by illegal immigration while that process continues, but the State may not
pursue policies that undermine federal law.
***
The United States has established that §§ 3, 5(C), and 6 of S.B. 1070 are preempted. It
was improper, however, to enjoin § 2(B) before the state courts had an opportunity to construe it
and without some showing that enforcement of the provision in fact conflicts with federal
immigration law and its objectives.
***
Justice Kagan took no part in the consideration or decision of this case.
Justice Scalia, concurring in part and dissenting in part.
The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata
75
River & Cherry Creek Ditch Co., 304 U.S. 92 (1938). Today’s opinion, approving virtually all of
the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s
law, deprives States of what most would consider the defining characteristic of sovereignty: the
power to exclude from the sovereign’s territory people who have no right to be there. Neither the
Constitution itself nor even any law passed by Congress supports this result. I dissent.
I
As a sovereign, Arizona has the inherent power to exclude persons from its territory,
subject only to those limitations expressed in the Constitution or constitutionally imposed by
Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de
Vattel’s seminal 1758 treatise on the Law of Nations stated:
“The sovereign may forbid the entrance of his territory either to foreigners in general, or in
particular cases, or to certain persons, or for certain particular purposes, according as he may
think it advantageous to the state. There is nothing in all this, that does not flow from the rights
of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever
dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II,
ch. VII, § 94 (B. Kapossy & R. Whatmore eds.2008).
There is no doubt that “before the adoption of the constitution of the United States” each
State had the authority to “prevent [itself] from being burdened by an influx of persons.” Mayor
of New York v. Miln, 11 Pet. 102 (1837). And the Constitution did not strip the States of that
authority. To the contrary, two of the Constitution’s provisions were designed to enable the
States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James
Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900);
accord, The Federalist No. 42 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confederation
had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives
from justice excepted, shall be entitled to all privileges and immunities of free citizens in the
several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could
obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another.
To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he
Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several
States.” Art. IV, § 2, cl. 1 (emphasis added). But if one State had particularly lax citizenship
standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States.
This problem was solved “by authorizing the general government to establish a uniform rule of
naturalization throughout the United States.” The Federalist No. 42; see Art. I, § 8, cl. 4. In other
words, the naturalization power was given to Congress not to abrogate States’ power to exclude
those they did not want, but to vindicate it.
Two other provisions of the Constitution are an acknowledgment of the States’ sovereign
interest in protecting their borders. Article I provides that “[n]o State shall, without the Consent
of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely
necessary for executing its inspection Laws.” Art. I, § 10, cl. 2 (emphasis added). This assumed
what everyone assumed: that the States could exclude from their territory dangerous or
unwholesome goods. A later portion of the same section provides that “[n]o State shall, without
76
the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent
Danger as will not admit of delay.” Art. I, § 10, cl. 3 (emphasis added). This limits the States’
sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their
territory.
Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years
of the Republic, the States enacted numerous laws restricting the immigration of certain classes
of aliens . . . .
In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over
whether, under the Constitution, the States had exclusive authority to enact such immigration
laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment
jurisprudence, but one of the Alien Acts also aroused controversy at the time:
“Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled, That it shall be lawful for the President of the United States at any time
during the continuance of this act, to order all such aliens as he shall judge dangerous to the
peace and safety of the United States, or shall have reasonable grounds to suspect are
concerned in any treasonable or secret machinations against the government thereof, to depart
out of the territory of the United States . . . .” An Act concerning Aliens, 1 Stat. 570, 570–571.
The Kentucky and Virginia Resolutions, written in denunciation of these Acts, insisted
that the power to exclude unwanted aliens rested solely in the States. . . .
In Mayor of New York v. Miln, this Court considered a New York statute that required the
commander of any ship arriving in New York from abroad to disclose “the name, place of birth,
and last legal settlement, age and occupation . . . of all passengers . . . with the intention of
proceeding to the said city.” After discussing the sovereign authority to regulate the entrance of
foreigners described by De Vattel, the Court said:
“The power . . . of New York to pass this law having undeniably existed at the formation of the
constitution, the simply [sic] inquiry is, whether by that instrument it was taken from the states,
and granted to congress; for if it were not, it yet remains with them.”
And the Court held that it remains.
II
One would conclude from the foregoing that after the adoption of the Constitution there
was some doubt about the power of the Federal Government to control immigration, but no
doubt about the power of the States to do so. Since the founding era (though not immediately),
doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for
immigration policy has shifted from the States to the Federal Government. . . . Of course, it
hardly bears mention that Federal immigration law is now extensive.
I accept that as a valid exercise of federal power—not because of the Naturalization
Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of
77
sovereignty no less for the United States than for the States. . . .
In light of the predominance of federal immigration restrictions in modern times, it is
easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their
sovereign prerogative to do so. I accept as a given that State regulation is excluded by the
Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal
regulation—when, for example, it admits those whom federal regulation would exclude, or
excludes those whom federal regulation would admit.
Possibility (1) need not be considered here: there is no federal law prohibiting the States’
sovereign power to exclude (assuming federal authority to enact such a law). The mere existence
of federal action in the immigration area—and the so-called field preemption arising from that
action, upon which the Court’s opinion so heavily relies—cannot be regarded as such a
prohibition. We are not talking here about a federal law prohibiting the States from regulating
bubble-gum advertising, or even the construction of nuclear plants. We are talking about a
federal law going to the core of state sovereignty: the power to exclude. Like elimination of the
States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign
power to exclude requires that “Congress ... unequivocally expres[s] its intent to abrogate,”
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) [Casebook p.474]. Implicit “field
preemption” will not do.
Nor can federal power over illegal immigration be deemed exclusive because of what the
Court’s opinion solicitously calls “foreign countries’ concern[s] about the status, safety, and
security of their nationals in the United States.” The Constitution gives all those on our shores
the protections of the Bill of Rights—but just as those rights are not expanded for foreign
nationals because of their countries’ views (some countries, for example, have recently
discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the
States abridged to accommodate foreign countries’ views. Even in its international relations, the
Federal Government must live with the inconvenient fact that it is a Union of independent States,
who have their own sovereign powers. . . .
What this case comes down to, then, is whether the Arizona law conflicts with federal
immigration law—whether it excludes those whom federal law would admit, or admits those
whom federal law would exclude. It does not purport to do so. It applies only to aliens who
neither possess a privilege to be present under federal law nor have been removed pursuant to the
Federal Government’s inherent authority. I proceed to consider the challenged provisions in
detail.
§ 2(B)
The Government has conceded that “even before Section 2 was enacted, state and local
officers had state-law authority to inquire of DHS [the Department of Homeland Security] about
a suspect’s unlawful status and otherwise cooperate with federal immigration officers.” That
concession, in my view, obviates the need for further inquiry. The Government’s conflict-preemption claim calls on us “to determine whether, under the circumstances of this particular case,
[the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes
78
and objectives of Congress.” Hines (emphasis added). It is impossible to make such a finding
without a factual record concerning the manner in which Arizona is implementing these
provisions—something the Government’s pre-enforcement challenge has pretermitted. . . .
The Court therefore properly rejects the Government’s challenge, recognizing that, “[a]t
this stage, without the benefit of a definitive interpretation from the state courts, it would be
inappropriate to assume § 2B will be construed in a way that creates a conflict with federal law.”
Before reaching that conclusion, however, the Court goes to great length to assuage fears that
“state officers will be required to delay the release of some detainees for no reason other than to
verify their immigration status.” Of course, any investigatory detention, including one under §
2(B), may become an “unreasonable . . . seizur[e],” U.S. Const., Amdt. IV, if it lasts too long.
But that has nothing to do with this case, in which the Government claims that § 2(B) is preempted by federal immigration law, not that anyone’s Fourth Amendment rights have been
violated. And I know of no reason why a protracted detention that does not violate the Fourth
Amendment would contradict or conflict with any federal immigration law.
§6
This provision of S.B. 1070 expands the statutory list of offenses for which an Arizona
police officer may make an arrest without a warrant. If an officer has probable cause to believe
that an individual is “removable” by reason of a public offense, then a warrant is not required to
make an arrest. The Government’s primary contention is that § 6 is pre-empted by federal
immigration law because it allows state officials to make arrests “without regard to federal
priorities.” The Court’s opinion focuses on limits that Congress has placed on federal officials’
authority to arrest removable aliens and the possibility that state officials will make arrests “to
achieve [Arizona’s] own immigration policy” and “without any input from the Federal
Government.”
Of course on this pre-enforcement record there is no reason to assume that Arizona
officials will ignore federal immigration policy (unless it be the questionable policy of not
wanting to identify illegal aliens who have committed offenses that make them removable). As
Arizona points out, federal law expressly provides that state officers may “cooperate with the
Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully
present in the United States,” and “cooperation” requires neither identical efforts nor prior
federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system
that Congress has created, for state officials to arrest a removable alien, contact federal
immigration authorities, and follow their lead on what to do next. And it is an assault on logic to
say that identifying a removable alien and holding him for federal determination of whether he
should be removed “violates the principle that the removal process is entrusted to the discretion
of the Federal Government.” The State’s detention does not represent commencement of the
removal process unless the Federal Government makes it so.
But that is not the most important point. The most important point is that, as we have
discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous
enforcement policy—so long as that does not conflict with federal law. The Court says, as
though the point is utterly dispositive, that “it is not a crime for a removable alien to remain
79
present in the United States.” It is not a federal crime, to be sure. But there is no reason Arizona
cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain
present in Arizona.
The Court quotes 8 U.S.C. § 1226(a), which provides that, “[o]n a warrant issued by the
Attorney General, an alien may be arrested and detained pending a decision on whether the alien
is to be removed from the United States.” . . . But statutory limitations upon the actions of federal
officers in enforcing the United States’ power to protect its borders do not on their face apply to
the actions of state officers in enforcing the State’s power to protect its borders. There is no more
reason to read these provisions as implying that state officials are subject to similar limitations
than there is to read them as implying that only federal officials may arrest removable aliens.
And in any event neither implication would constitute the sort of clear elimination of the States’
sovereign power that our cases demand.
The Court raises concerns about “unnecessary harassment of some aliens . . . whom
federal officials determine should not be removed.” But we have no license to assume, without
any support in the record, that Arizona officials would use their arrest authority under § 6 to
harass anyone. And it makes no difference that federal officials might “determine [that some
unlawfully present aliens] should not be removed.” They may well determine not to remove from
the United States aliens who have no right to be here; but unless and until these aliens have been
given the right to remain, Arizona is entitled to arrest them and at least bring them to federal
officials’ attention, which is all that § 6 necessarily entails. (In my view, the State can go further
than this, and punish them for their unlawful entry and presence in Arizona.)
The Government complains that state officials might not heed “federal priorities.” Indeed
they might not, particularly if those priorities include willful blindness or deliberate inattention to
the presence of removable aliens in Arizona. The State’s whole complaint—the reason this law
was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are
too lax. The State has the sovereign power to protect its borders more rigorously if it wishes,
absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement
does not constitute such a prohibition.
§3
It is beyond question that a State may make violation of federal law a violation of state
law as well. We have held that to be so even when the interest protected is a distinctively federal
interest, such as protection of the dignity of the national flag, see Halter v. Nebraska, 205 U.S.
34 (1907), or protection of the Federal Government’s ability to recruit soldiers, Gilbert v.
Minnesota, 254 U.S. 325 (1920). Much more is that so when, as here, the State is protecting its
own interest, the integrity of its borders. . . .
The Court’s opinion relies upon Hines. But that case did not, as the Court believes,
establish a “field preemption” that implicitly eliminates the States’ sovereign power to exclude
those whom federal law excludes. It held that the States are not permitted to establish “additional
or auxiliary” registration requirements for aliens. But § 3 does not establish additional or
auxiliary registration requirements. It merely makes a violation of state law the very same failure
80
to register and failure to carry evidence of registration that are violations of federal law. Hines
does not prevent the State from relying on the federal registration system as “an available aid in
the enforcement of a number of statutes of the state applicable to aliens whose constitutional
validity has not been questioned.” Id. (Stone, J., dissenting). One such statute is Arizona’s law
forbidding illegal aliens to collect unemployment benefits, To enforce that and other laws that
validly turn on alien status, Arizona has, in Justice Stone’s words, an interest in knowing “the
number and whereabouts of aliens within the state” and in having “a means of their
identification.” And it can punish the aliens’ failure to comply with the provisions of federal law
that make that knowledge and identification possible.
***
The Court points out, however, that in some respects the state law exceeds the
punishments prescribed by federal law: It rules out probation and pardon, which are available
under federal law. The answer is that it makes no difference. Illegal immigrants who violate § 3
violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from
excluding those whom federal law admits. It is quite something else to say that a violation of
Arizona law cannot be punished more severely than a violation of federal law. . . . The sale of
illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks
that the state penalties cannot exceed the federal. As I have discussed, moreover, “field
preemption” cannot establish a prohibition of additional state penalties in the area of
immigration.
Finally, the Government also suggests that § 3 poses an obstacle to the administration of
federal immigration law, but “there is no conflict in terms, and no possibility of such conflict, [if]
the state statute makes federal law its own.”
It holds no fear for me, as it does for the Court, that “[w]ere § 3 to come into force, the
State would have the power to bring criminal charges against individuals for violating a federal
law even in circumstances where federal officials in charge of the comprehensive scheme
determine that prosecution would frustrate federal policies.” That seems to me entirely
appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its
own power, and the implementation of its own policies of excluding those who do not belong
there. What I do fear—and what Arizona and the States that support it fear—is that “federal
policies” of nonenforcement will leave the States helpless before those evil effects of illegal
immigration that the Court’s opinion dutifully recites in its prologue but leaves unremedied in its
disposition.
§ 5(C)
Here, the Court rightly starts with DeCanas which involved a California law providing
that “‘[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in
the United States if such employment would have an adverse effect on lawful resident workers.’”
This Court concluded that the California law was not pre-empted, as Congress had neither
occupied the field of “regulation of employment of illegal aliens” nor expressed “the clear and
manifest purpose” of displacing such state regulation. Thus, at the time De Canas was decided, §
81
5(C) would have been indubitably lawful.
The only relevant change is that Congress has since enacted its own restrictions on
employers who hire illegal aliens, in legislation that also includes some civil (but no criminal)
penalties on illegal aliens who accept unlawful employment. The Court concludes from this
(reasonably enough) “that Congress made a deliberate choice not to impose criminal penalties on
aliens who seek, or engage in, unauthorized employment.” But that is not the same as a
deliberate choice to prohibit the States from imposing criminal penalties. Congress’s intent with
regard to exclusion of state law need not be guessed at, but is found in the law’s express preemption provision, which excludes “any State or local law imposing civil or criminal sanctions
(other than through licensing and similar laws) upon those who employ, or recruit or refer for a
fee for employment, unauthorized aliens,” § 1324a(h)(2) (emphasis added). Common sense,
reflected in the canon expressio unius est exclusio alterius, suggests that the specification of preemption for laws punishing “those who employ” implies the lack of pre-emption for other laws,
including laws punishing “those who seek or accept employment.”
The Court has no credible response to this. It quotes our jurisprudence to the effect that
an “express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption
principles.” Ante (quoting Geier v. American Honda Motor Co.). True enough—conflict
preemption principles. It then goes on say that since “Congress decided it would be inappropriate
to impose criminal penalties on aliens who seek or engage in unauthorized employment,” “[i]t
follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.”
For “‘[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated
field without controls, then the pre-emptive inference can be drawn.’” All that is a classic
description not of conflict pre-emption but of field pre-emption, which (concededly) does not
occur beyond the terms of an express pre-emption provision.
The Court concludes that § 5(C) “would interfere with the careful balance struck by
Congress” (another field pre-emption notion, by the way) but that is easy to say and impossible
to demonstrate. The Court relies primarily on the fact that “[p]roposals to make unauthorized
work a criminal offense were debated and discussed during the long process of drafting [the
Immigration Reform and Control Act of 1986 (IRCA)],” “[b]ut Congress rejected them.” There
is no more reason to believe that this rejection was expressive of a desire that there be no
sanctions on employees, than expressive of a desire that such sanctions be left to the States. To
tell the truth, it was most likely expressive of what inaction ordinarily expresses: nothing at all. .
..
***
The brief for the Government in this case asserted that “the Executive Branch’s ability to
exercise discretion and set priorities is particularly important because of the need to allocate
scarce enforcement resources wisely.” Of course there is no reason why the Federal Executive’s
need to allocate its scarce enforcement resources should disable Arizona from devoting its
resources to illegal immigration in Arizona that in its view the Federal Executive has given short
shrift. . . .
Must Arizona’s ability to protect its borders yield to the reality that Congress has
82
provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise
targeting of that funding?
But leave that aside. It has become clear that federal enforcement priorities—in the sense
of priorities based on the need to allocate “scarce enforcement resources”—is not the problem
here. After this case was argued and while it was under consideration, the Secretary of Homeland
Security announced a program exempting from immigration enforcement some 1.4 million
illegal immigrants under the age of 30. If an individual unlawfully present in the United States
“• came to the United States under the age of sixteen;
“• has continuously resided in the United States for at least five years . . .,
“• is currently in school, has graduated from high school, has obtained a general
education development certificate, or is an honorably discharged veteran . . .,
“• has not been convicted of a [serious crime]; and
“• is not above the age of thirty,”
then U.S. immigration officials have been directed to “defe[r] action” against such individual
“for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources
can hardly be the justification for this, since the considerable administrative cost of conducting
as many as 1.4 million background checks, and ruling on the biennial requests for dispensation
that the nonenforcement program envisions, will necessarily be deducted from immigration
enforcement. The President said at a news conference that the new program is “the right thing to
do” in light of Congress’s failure to pass the Administration’s proposed revision of the
Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does,
that Arizona contradicts federal law by enforcing applications of the Immigration Act that the
President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable horror—“[i]f § 3 of the Arizona
statute were valid, every State could give itself independent authority to prosecute federal
registration violations”—seems to me not so horrible and even less looming. But there has come
to pass, and is with us today, the specter that Arizona and the States that support it predicted: A
Federal Government that does not want to enforce the immigration laws as written, and leaves
the States’ borders unprotected against immigrants whom those laws would exclude. So the issue
is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce
the Nation’s immigration laws?
A good way of answering that question is to ask: Would the States conceivably have
entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment
surely fails that test. . . . Through ratification of the fundamental charter that the Convention
produced, the States ceded much of their sovereignty to the Federal Government. But much of it
remained jealously guarded—as reflected in the innumerable proposals that never left
Independence Hall. Now, imagine a provision—perhaps inserted right after Art. I, § 8, cl. 4, the
Naturalization Clause—which included among the enumerated powers of Congress “To establish
Limitations upon Immigration that will be exclusive and that will be enforced only to the extent
the President deems appropriate.” The delegates to the Grand Convention would have rushed to
the exits.
83
As is often the case, discussion of the dry legalities that are the proper object of our
attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of
the country’s illegal immigration problem. Its citizens feel themselves under siege by large
numbers of illegal immigrants who invade their property, strain their social services, and even
place their lives in jeopardy. Federal officials have been unable to remedy the problem, and
indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated
400,000 illegal immigrants—including not just children but men and women under 30—are now
assured immunity from enforcement, and will be able to compete openly with Arizona citizens
for employment.
Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in
complete compliance with it. The laws under challenge here do not extend or revise federal
immigration restrictions, but merely enforce those restrictions more effectively. If securing its
territory in this fashion is not within the power of Arizona, we should cease referring to it as a
sovereign State. I dissent.
Justice Thomas, concurring in part and dissenting in part.
I agree with Justice Scalia that federal immigration law does not pre-empt any of the
challenged provisions of S.B. 1070. I reach that conclusion, however, for the simple reason that
there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the
four provisions of Arizona law at issue here. Wyeth v. Levine, 555 U.S. 555 (2009) (Thomas, J.,
concurring in judgment) (“Pre-emption analysis should not be a freewheeling judicial inquiry
into whether a state statute is in tension with federal objectives, but an inquiry into whether the
ordinary meanings of state and federal law conflict”).
Section 2(B) of S.B. 1070 provides that, when Arizona law enforcement officers
reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlawfully
present, “a reasonable attempt shall be made, when practicable, to determine the immigration
status of the person” pursuant to the verification procedure established by Congress . . . . Nothing
in the text of that or any other federal statute prohibits Arizona from directing its officers to
make immigration-related inquiries in these situations. . . .
Section 6 of S.B. 1070 authorizes Arizona law enforcement officers to make warrantless
arrests when there is probable cause to believe that an arrestee has committed a public offense
that renders him removable under federal immigration law. States, as sovereigns, have inherent
authority to conduct arrests for violations of federal law, unless and until Congress removes that
authority. Here, no federal statute purports to withdraw that authority. . . .
Section 3 of S.B. 1070 makes it a crime under Arizona law for an unlawfully present
alien to willfully fail to complete or carry an alien registration document in violation of 8 U.S.C.
§ 1304(e) and § 1306(a). Section 3 simply incorporates federal registration standards. Unlike the
Court, I would not hold that Congress pre-empted the field of enforcing those standards. “[O]ur
recent cases have frequently rejected field pre-emption in the absence of statutory language
expressly requiring it.” Here, nothing in the text of the relevant federal statutes indicates that
Congress intended enforcement of its registration requirements to be exclusively the province of
the Federal Government. . . .
84
Section 5(C) of S.B. 1070 prohibits unlawfully present aliens from knowingly applying
for, soliciting, or performing work in Arizona. Section 5(C) operates only on individuals whom
Congress has already declared ineligible to work in the United States. Nothing in the text of the
federal immigration laws prohibits States from imposing their own criminal penalties on such
individuals. Federal law expressly pre-empts States from “imposing civil or criminal sanctions
(other than through licensing and similar laws) upon those who employ, or recruit or refer for a
fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2) (emphasis added). But it
leaves States free to impose criminal sanctions on the employees themselves.
Despite the lack of any conflict between the ordinary meaning of the Arizona law and
that of the federal laws at issue here, the Court holds that various provisions of the Arizona law
are pre-empted because they “stan[d] as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.” Hines. I have explained that the “purposes and
objectives” theory of implied pre-emption is inconsistent with the Constitution because it invites
courts to engage in freewheeling speculation about congressional purpose that roams well
beyond statutory text. See Wyeth (opinion concurring in judgment); see also Williamson v.
Mazda Motor of America, Inc., 562 U.S. –––– (2011) (opinion concurring in judgment) [supra.
this Supplement]. Under the Supremacy Clause, pre-emptive effect is to be given to
congressionally enacted laws, not to judicially divined legislative purposes. See Wyeth (Thomas,
J., concurring in judgment). Thus, even assuming the existence of some tension between
Arizona’s law and the supposed “purposes and objectives” of Congress, I would not hold that
any of the provisions of the Arizona law at issue here are pre-empted on that basis.
Justice Alito, concurring in part and dissenting in part.
***
I agree with the Court that § 2(B) is not pre-empted. That provision does not authorize or
require Arizona law enforcement officers to do anything they are not already allowed to do under
existing federal law. The United States’ argument that § 2(B) is pre-empted, not by any federal
statute or regulation, but simply by the Executive’s current enforcement policy is an astounding
assertion of federal executive power that the Court rightly rejects.
I also agree with the Court that § 3 is pre-empted by virtue of our decision in Hines. Our
conclusion in that case that Congress had enacted an “all-embracing system” of alien registration
and that States cannot “enforce additional or auxiliary regulations,” forecloses Arizona’s attempt
here to impose additional, state-law penalties for violations of the federal registration scheme.
While I agree with the Court on § 2(B) and § 3, I part ways on § 5(C) and § 6. The
Court’s holding on § 5(C) is inconsistent with De Canas, which held that employment
regulation, even of aliens unlawfully present in the country, is an area of traditional state
concern. Because state police powers are implicated here, our precedents require us to presume
that federal law does not displace state law unless Congress’ intent to do so is clear and manifest.
I do not believe Congress has spoken with the requisite clarity to justify invalidation of § 5(C).
Nor do I believe that § 6 is invalid. Like § 2(B), § 6 adds virtually nothing to the authority that
Arizona law enforcement officers already exercise. And whatever little authority they have
85
gained is consistent with federal law.
Section 2(B)
A
Although § 2(B) of the Arizona law has occasioned much controversy, it adds nothing to
the authority that Arizona law enforcement officers, like officers in all other States, already
possess under federal law. For that reason, I agree with the Court that § 2(B) is not pre-empted.
Section 2(B) quite clearly does not expand the authority of Arizona officers to make stops
or arrests. It is triggered only when a “lawful stop, detention or arrest [is] made . . . in the
enforcement of any other [state or local] law or ordinance.” Ariz.Rev.Stat. Ann. § 11–1051(B)
(emphasis added). Section 2(B) thus comes into play only when an officer has reasonable
suspicion or probable cause to believe that a person has committed a nonimmigration offense.
Arizona officers plainly possessed this authority before § 2(B) took effect.
Section 2(B) also does not expand the authority of Arizona officers to inquire about the
immigration status of persons who are lawfully detained. When a person is stopped or arrested
and “reasonable suspicion exists that the person is an alien and is unlawfully present in the
United States,” § 2(B) instructs Arizona officers to make a “reasonable attempt,” “when
practicable,” to ascertain that person’s immigration status. Even before the Arizona Legislature
enacted § 2(B), federal law permitted state and local officers to make such inquiries. . . . Through
§ 2(B), Arizona has taken Congress up on that invitation.
The United States does not deny that officers may, at their own discretion, inquire about
the immigration status of persons whom they lawfully detain. Instead, the United States argues
that § 2(B) is pre-empted because it impedes federal-state cooperation by mandating that officers
verify the immigration status of every detained person if there is reason to believe that the person
is unlawfully present in the country. The United States claims that § 2(B)’s mandate runs
contrary to federal law in that it “precludes officers from taking [the Federal Government’s]
priorities and discretion into account.” . . .
The underlying premise of the United States’ argument seems to be that state and local
officers, when left to their own devices, generally take federal enforcement priorities into
account. But there is no reason to think that this premise is true. And even if it were, it would not
follow that § 2(B)’s blanket mandate is at odds with federal law. Nothing in the relevant federal
statutes requires state and local officers to consider the Federal Government’s priorities before
requesting verification of a person’s immigration status. . . . Because no federal statute requires
such consideration, § 2(B) does not conflict with federal law.
***
The United States’ attack on § 2(B) is quite remarkable. The United States suggests that a
state law may be pre-empted, not because it conflicts with a federal statute or regulation, but
because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities,
86
however, are not law. They are nothing more than agency policy. . . . If § 2(B) were pre-empted
at the present time because it is out of sync with the Federal Government’s current priorities,
would it be unpre-empted at some time in the future if the agency’s priorities changed?
. . . If accepted, the United States’ pre-emption argument would give the Executive
unprecedented power to invalidate state laws that do not meet with its approval, even if the state
laws are otherwise consistent with federal statutes and duly promulgated regulations. This
argument, to say the least, is fundamentally at odds with our federal system.
B
It has been suggested that § 2(B) will cause some persons who are lawfully stopped to be
detained in violation of their constitutional rights while a prolonged investigation of their
immigration status is undertaken. But nothing on the face of the law suggests that it will be
enforced in a way that violates the Fourth Amendment or any other provision of the Constitution.
...
***
We have held that a detention based on reasonable suspicion that the detainee committed
a particular crime “can become unlawful if it is prolonged beyond the time reasonably required
to complete that mission.” But if during the course of a stop an officer acquires suspicion that a
detainee committed a different crime, the detention may be extended for a reasonable time to
verify or dispel that suspicion. . . .
If properly implemented, § 2(B) should not lead to federal constitutional violations, but
there is no denying that enforcement of § 2(B) will multiply the occasions on which sensitive
Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of
most objections to § 2(B). Close and difficult questions will inevitably arise as to whether an
officer had reasonable suspicion to believe that a person who is stopped for some other reason
entered the country illegally, and there is a risk that citizens, lawful permanent residents, and
others who are lawfully present in the country will be detained. To mitigate this risk, Arizona
could issue guidance to officers detailing the circumstances that typically give rise to reasonable
suspicion of unlawful presence. . . .
Section 3
I agree that § 3 is pre-empted because, like the Court, I read the opinion in Hines to
require that result. Although there is some ambiguity in Hines, the Court largely spoke in the
language of field pre-emption. . . . If we credit our holding in Hines that Congress has enacted “a
single integrated and all-embracing system” of alien registration and that States cannot
“complement” that system or “enforce additional or auxiliary regulations,” then Arizona’s
attempt to impose additional, state-law penalties for violations of federal registration
requirements must be invalidated.
87
Section 5(C)
While I agree that § 3 is pre-empted, I disagree with the Court’s decision to strike down §
5(C). I do so in large measure because the Court fails to give the same solicitude to our decision
in DeCanas as it is willing to give our decision in Hines. In De Canas, the Court upheld against a
pre-emption challenge a state law imposing fines on employers that hired aliens who were
unlawfully present in the United States. The Court explained that the mere fact that “aliens are
the subject of a state statute does not render it a regulation of immigration.” The Court
emphasized instead that “States possess broad authority under their police powers to regulate the
employment relationship to protect workers within the State.” In light of that broad authority, the
Court declared that “[o]nly a demonstration that complete ouster of state power . . . was ‘the
clear and manifest purpose of Congress’ would justify” the conclusion that “state regulation
designed to protect vital state interests must give way to paramount federal legislation.”
The Court now tells us that times have changed. Since De Canas, Congress has enacted
“a comprehensive framework for combating the employment of illegal aliens,” and even though
aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can
suffer civil penalties. Undoubtedly, federal regulation in this area is more pervasive today. But
our task remains unchanged: to determine whether the federal scheme discloses a clear and
manifest congressional intent to displace state law.
The Court gives short shrift to our presumption against pre-emption. Having no express
statement of congressional intent to support its analysis, the Court infers from stale legislative
history and from the comprehensiveness of the federal scheme that “Congress made a deliberate
choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized
employment.” Because § 5(C) imposes such penalties, the Court concludes that it stands as an
obstacle to the method of enforcement chosen by Congress.
The one thing that is clear from the federal scheme is that Congress chose not to impose
federal criminal penalties on aliens who seek or obtain unauthorized work. But that does not
mean that Congress also chose to pre-empt state criminal penalties. The inference is plausible,
but far from necessary. . . .
Not only is there little evidence that Congress intended to pre-empt state laws like § 5(C),
there is some evidence that Congress intended the opposite result. In making it unlawful for
employers to hire unauthorized aliens, Congress made it clear that “any State or local law
imposing civil or criminal sanctions (other than through licensing and similar laws)” upon
employers was pre-empted. Noticeably absent is any similar directive pre-empting state or local
laws targeting aliens who seek or obtain unauthorized employment. Given that Congress
expressly pre-empted certain state and local laws pertaining to employers but remained silent
about laws pertaining to employees, one could infer that Congress intended to preserve state and
local authority to regulate the employee side of the equation. At the very least, it raises serious
doubts about whether Congress intended to pre-empt such authority.
***
. . . In any event, the point I wish to emphasize is that inferences can be drawn either way.
88
There are no necessary inferences that point decisively for or against pre-emption. Therefore, if
we take seriously that state employment regulation is a traditional state concern and can be preempted only on a showing of “clear and manifest” congressional intent as required by De Canas,
then § 5(C) must survive. “Our precedents establish that a high threshold must be met if a state
law is to be pre-empted for conflicting with the purposes of a federal Act.” Whiting. I do not
believe the United States has surmounted that barrier here.
Section 6
I also disagree with the Court’s decision that § 6 is pre-empted. This provision adds little
to the authority that Arizona officers already possess, and whatever additional authority it
confers is consistent with federal law. Section 6 amended an Arizona statute that authorizes
warrantless arrests. Before § 6 was added, that statute already permitted arrests without a warrant
for felonies, misdemeanors committed in the arresting officer’s presence, petty offenses, and
certain traffic-related criminal violations. Largely duplicating the authority already conferred by
these prior subsections, § 6 added a new subsection that authorizes officers to make warrantless
arrests on probable cause that the arrestee has committed a “public offense” for which the
arrestee is removable from the United States. A “public offense” is defined as conduct that is
punishable by imprisonment or a fine according to the law of the State where the conduct
occurred and that would be punishable under Arizona law had the conduct occurred in Arizona.
In what way, if any, does § 6 enlarge the arrest authority of Arizona officers? It has been
suggested that § 6 confers new authority in the following three circumstances: (1) where the
arrestee committed but has not been charged with committing an offense in another State; (2)
where the officer has probable cause to believe the arrestee committed an offense for which he
was previously arrested but not prosecuted; and (3) where the arrestee committed but has already
served the sentence for a removable offense. These are exceedingly narrow categories, involving
circumstances that will rarely arise. But such cases are possible, and therefore we must decide
whether there are circumstances under which federal law precludes a state officer from making
an arrest based on probable cause that the arrestee committed a removable offense.
A
The idea that state and local officers may carry out arrests in the service of federal law is
not unprecedented. . . . Therefore, given the premise, which I understand both the United States
and the Court to accept, that state and local officers do have inherent authority to make arrests in
aid of federal law, we must ask whether Congress has done anything to curtail or pre-empt that
authority in this particular case.
Neither the United States nor the Court goes so far as to say that state and local officers
have no power to arrest criminal aliens based on their removability. To do so would fly in the
face of 8 U.S.C. § 1357(g)(10). Under §§ 1357(g)(1)-(9), the Federal Government may enter into
formal agreements with States and municipalities under which their officers may perform certain
duties of a federal immigration officer. But § 1357(g)(10)(B) makes clear that States and
municipalities need not enter into those agreements “otherwise to cooperate . . . in the
identification, apprehension, detention, or removal of aliens not lawfully present in the United
89
States.” It goes without saying that state and local officers could not provide meaningful
cooperation in the apprehension, detention, and ultimate removal of criminal aliens without some
power to make arrests.
Although § 1357(g)(10) contemplates state and local authority to apprehend criminal
aliens for the purpose of removal, the Court rejects out of hand any possibility that officers could
exercise that authority without federal direction. Despite acknowledging that there is “ambiguity
as to what constitutes cooperation,” the Court says that “no coherent understanding of the term
would incorporate the unilateral decision of state officers to arrest an alien for being removable
absent any request, approval, or other instruction from the Federal Government.” The Court
adopts an unnecessarily stunted view of cooperation. No one would say that a state or local
officer has failed to cooperate by making an on-the-spot arrest to enforce federal law.
Unsolicited aid is not necessarily uncooperative.
***
That Congress generally requires the Executive to take custody of criminal aliens casts
considerable doubt on the Court’s concern that § 6 is an obstacle to the Federal Government’s
exercise of discretion. The Court claims that the authority conferred by § 6 “could be exercised
without any input from the Federal Government about whether an arrest is warranted in a
particular case” and that this “would allow the State to achieve its own immigration policy,”
resulting in the “unnecessary harassment of some aliens . . . whom federal officials determine
should not be removed.” But § 1226(c)(1) belies the Court’s fear. In many, if not most, cases
involving aliens who are removable for having committed criminal offenses, Congress has left
the Executive no discretion but to take the alien into custody. State and local officers do not
frustrate the removal process by arresting criminal aliens. The Executive retains complete
discretion over whether those aliens are ultimately removed. And once the Federal Government
makes a determination that a particular criminal alien will not be removed, then Arizona officers
are presumably no longer authorized under § 6 to arrest the alien.
To be sure, not all offenses for which officers have authority to arrest under § 6 are
covered by § 1226(c)(1). As for aliens who have committed those offenses, Congress has given
the Executive discretion under § 1226(a) over whether to arrest and detain them pending a
decision on removal. But the mere fact that the Executive has enforcement discretion cannot
mean that the exercise of state police powers in support of federal law is automatically preempted. If that were true, then state and local officers could never make arrests to enforce any
federal statute because the Executive always has at least some general discretion over the
enforcement of federal law as a practical matter. . . .
***
B
Finally, the Court tells us that § 6 conflicts with federal law because it provides state and
local officers with “even greater authority to arrest aliens on the basis of possible removability
than Congress has given to trained federal immigration officers.” The Court points to 8 U.S.C. §
90
1357(a)(2), which empowers “authorized” officers and employees of ICE to make arrests
without a federal warrant if “the alien so arrested is in the United States in violation of any
[immigration] law or regulation and is likely to escape before a warrant can be obtained for his
arrest.” Because § 6 would allow Arizona officers to make arrests “regardless of whether a
federal warrant has issued or the alien is likely to escape,” the Court concludes that § 6 is an
obstacle to the accomplishment of Congress’ objectives. But § 6 is an obstacle only to the extent
it conflicts with Congress’ clear and manifest intent to preclude state and local officers from
making arrests except where a federal warrant has issued or the arrestee is likely to escape. By
granting warrantless arrest authority to federal officers, Congress has not manifested an
unmistakable intent to strip state and local officers of their warrantless arrest authority under
state law.
***
____________________________
In 2013 the Court decided an important case about voter identification and re-ignited the
battle over the presumption against pre-emption (see casebook, page 411) by holding that a
federal voter registration law pre-empted an Arizona law imposing more stringent requirements.
The dispute in Arizona v. Inter-Tribal Council of Arizona, 2013 LEXIS 4544, concerned the
National Voter Registration Act of 1993 (the “NVRA,” or “Act”)’s requirement that states
“accept and use” a uniform federal form to register voters for federal elections. The federal form
simply required the applicant to state, under penalty of perjury, that he is a U.S. citizen. By
contrast, the Arizona law challenged by the plaintiffs required applicants to provide more
thorough proof of citizenship.
By a 7-2 majority the Court held that the states’ statutory duty to “accept and use” the
federal form precluded it from imposing requirements beyond those in that form. The Court,
speaking through Justice Scalia, reasoned that the NVRA’s use of the term “accept and use” in
this context implied a requirement that states find compliance with the form adequate for
registration purposes. The Court recognized that Article I, Section 2 of the Constitution
empowers states to decide who is eligible to vote in elections in that state – including elections
for federal office. However, it read the NVRA as respecting that state autonomy by permitting a
state to request the federal government to include in the federal form information a state needs to
determine eligibility to vote under the state’s rules.
In finding the NVRA to pre-empt the Arizona law, the Court refused to apply the
presumption against pre-emption. It reasoned that that presumption was inapposite in the case of
election laws, because the Constitution explicitly authorized Congress to “make or alter” state
election regulations regarding the “Times, Places and Manner” of federal elections. See Article
I, Section 4, cl. 1. Thus, according to the Court, “[w]hen Congress legislates with regard to
[time, place and manner electoral rules] it necessarily displaces some element of a pre-existing
legal regime erected by the States. Because the power the Elections Clause confers is none other
than the power to pre-empt, the reasonable assumption is that the statutory text accurately
communicates the scope of Congress’s pre-emptive intent.” (emphasis in original).
91
Justice Kennedy concurred in part and concurred in the judgment. However, he
disagreed with the Court’s carving out of a special presumption-against-pre-emption rule for
election legislation, a development he described as lacking a “sound basis.” He said: “If the
Court is skeptical of the basic idea of a presumption against pre-emption as a helpful instrument
of construction in express pre-emption cases, it should say so and apply that skepticism across
the board.”
Justice Thomas dissented. He argued that the Court’s reading of the NVRA would create
“a serious constitutional issue,” given the Constitution’s grant to states of the power to prescribe
the qualifications of voters. For that reason he would have read the NVRA narrowly, as
requiring states “to accept and use the [federal] form as part of its voter registration process,
leaving the State free to request whatever additional information it determines is necessary to
ensure that voters meet the qualifications [the State] has the constitutional authority to establish.”
Justice Alito also dissented. He stated that he “would begin by applying a presumption against
pre-emption of the Arizona law,” in light of the Constitution’s default grant of authority to the
states to specify the “Times, Places and Manner” of federal elections. In light of that
presumption, he would have read the NVRA as allowing Arizona to supplement the federal
form’s information requirements.
Note: Preemption Cases in the 2012 Term
In the October 2012 term the Court again decided several preemption cases, two of which
were especially notable for their contribution to preemption doctrine.
One of these cases concerned a high-profile dispute about voter identification and reignited the battle over the presumption against pre-emption (see casebook, page 411) by holding
that a federal voter registration law pre-empted an Arizona law imposing more stringent
requirements. The dispute in Arizona v. Inter-Tribal Council of Arizona, 2013 LEXIS 4544,
concerned the National Voter Registration Act of 1993 (the “NVRA,” or “Act”)’s requirement
that states “accept and use” a uniform federal form to register voters for federal elections. The
federal form simply required the applicant to state, under penalty of perjury, that he is a U.S.
citizen. By contrast, the Arizona law challenged by the plaintiffs required applicants to provide
more thorough proof of citizenship.
By a 7-2 majority the Court held that the states’ statutory duty to “accept and use” the
federal form precluded it from imposing requirements beyond those in that form. The Court,
speaking through Justice Scalia, reasoned that the NVRA’s use of the term “accept and use” in
this context implied a requirement that states find compliance with the form adequate for
registration purposes. The Court recognized that Article I, Section 2 of the Constitution
empowers states to decide who is eligible to vote in elections in that state – including elections
for federal office. However, it read the NVRA as respecting that state autonomy by permitting a
state to request the federal government to include in the federal form information a state needs to
determine eligibility to vote under the state’s rules.
92
In finding the NVRA to preempt the Arizona law, the Court refused to apply the
presumption against preemption. It reasoned that that presumption was inapposite in the case of
election laws, because the Constitution explicitly authorized Congress to “make or alter” state
election regulations regarding the “Times, Places and Manner” of federal elections. See Article
I, Section 4, cl. 1. Thus, according to the Court, “[w]hen Congress legislates with regard to
[time, place and manner electoral rules] it necessarily displaces some element of a pre-existing
legal regime erected by the States. Because the power the Elections Clause confers is none other
than the power to preempt, the reasonable assumption is that the statutory text accurately
communicates the scope of Congress’s preemptive intent.” (emphasis in original).
Justice Kennedy concurred in part and concurred in the judgment. However, he
disagreed with the Court’s carving out of a special presumption-against- preemption rule for
election legislation, a development he described as lacking a “sound basis.” He said: “If the
Court is skeptical of the basic idea of a presumption against pre-emption as a helpful instrument
of construction in express pre-emption cases, it should say so and apply that skepticism across
the board.”
Justice Thomas dissented. He argued that the Court’s reading of the NVRA would create
“a serious constitutional issue,” given the Constitution’s grant to states of the power to prescribe
the qualifications of voters. For that reason he would have read the NVRA narrowly, as
requiring states “to accept and use the [federal] form as part of its voter registration process,
leaving the State free to request whatever additional information it determines is necessary to
ensure that voters meet the qualifications [the State] has the constitutional authority to establish.”
Justice Alito also dissented. He stated that he “would begin by applying a presumption against
pre-emption of the Arizona law,” in light of the Constitution’s default grant of authority to the
states to specify the “Times, Places and Manner” of federal elections. In light of that
presumption, he would have read the NVRA as allowing Arizona to supplement the federal
form’s information requirements.
The second case, Mutual Pharmaceutical Co. v. Bartlett, 2013 U.S. LEXIS 4702,
concerned the recurring issue of when federal regulatory law preempted state common law tort
causes of action. In particular, it reprised much of the disagreement present two terms earlier in
Pliva, Inc. v. Mensing, 180 L.Ed.2d 924 (2011) about the scope of preemption doctrine’s
“impossibility” prong.
See Note: Preemption in the 2010 Term (earlier in this Supplement)
(discussing Pliva). In Bartlett a user of a generic drug whose composition and label were
approved by the FDA sued the manufacturer on a New Hampshire common law design defect
theory after the drug had severely injured her. By a 5-4 vote the Supreme Court held the suit
preempted under the “impossibility” prong of preemption doctrine. Writing for the majority,
Justice Alito explained that, under New Hampshire tort law, design-defect liability turned
heavily on both whether changes in the product’s design could have reduced the danger, and the
existence of a warning about the danger. However, he noted that federal law prevented a generic
drug from having a different composition than the name-brand drug, and that, at any rate, the
simple structure of the drug at issue precluded a redesign. With regard to warnings, he explained
that federal law prevented generic drugs from featuring warnings different from those approved
for the brand-name version. Thus, he concluded that it was impossible for the manufacturer of
the generic to comply both with federal law and state tort requirements. Justice Alito rejected
93
the lower court’s contention that the manufacturer could simply have chosen to exit the New
Hampshire market, concluding that the Court in Pliva had rejected that conception of
“impossibility” preemption.
Justice Breyer (joined by Justice Kagan) and Justice Sotomayor (joined by Justice
Ginsburg) both wrote dissents. Both dissenting opinions cited the choices the manufacturer had
to either pay damages to injured parties or exit the market, arguing that those options defeated an
“impossibility” preemption claim. Both also recognized that a manufacturer in these
circumstances could still try to prove preemption based on the state law’s obstruction of the
federal law’s policy goals, although both Justices Breyer and Sotomayor rejected that argument
in this case.
G.
FEDERAL REGULATION OF THE STATES
3.
Constitutional Limits on Judicial Remedies Against States
a. The Young Doctrine
Page 470: Add after Idaho v. Coeur d’Alene Tribe:
In 2011 the Court considered whether Young relief was available when one
instrumentality of a state sued another in federal court.
VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY v. STEWART
179 L.Ed.2d 675 (2011)
Scalia, J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, Breyer, and
Sotomayor, JJ., joined. Kennedy, J., filed a concurring opinion, in which Thomas, J., joined.
Robrts, C.J., filed a dissenting opinion, in which Alito, J., joined. Kagan, J., took no part in the
consideration or decision of the case.
We consider whether Ex parte Young allows a federal court to hear a lawsuit for
prospective relief against state officials brought by another agency of the same State.
I
A
The Developmental Disabilities Assistance and Bill of Rights Act of 2000 offers States
federal money to improve community services, such as medical care and job training, for
individuals with developmental disabilities. As a condition of that funding, a State must establish
a protection and advocacy (P & A) system “to protect and advocate the rights of individuals with
developmental disabilities.” The P & A system receives separate federal funds, paid to it directly.
A second federal law, the Protection and Advocacy for Individuals with Mental Illness Act
94
(PAIMI Act), increases that separate funding and extends the mission of P & A systems to
include the mentally ill. At present, every State accepts funds under these statutes.
Under the DD and PAIMI Acts, a P & A system must have certain powers. The system
“shall ... have the authority to investigate incidents of abuse and neglect ... if the incidents are
reported to the system or if there is probable cause to believe that the incidents occurred.”
Subject to certain statutory requirements, it must be given access to “all records” of individuals
who may have been abused, as well as “other records that are relevant to conducting an
investigation.” The Acts also require that a P & A system have authority to “pursue legal,
administrative, and other appropriate remedies or approaches to ensure the protection of” its
charges. And in addition to pressing its own rights, a P & A system may “pursue administrative,
legal, and other remedies on behalf of” those it protects.
A participating State is free to appoint either a state agency or a private nonprofit entity
as its P & A system. But in either case, the designated entity must have certain structural features
that ensure its independence from the State's government. . . .
Virginia is one of just eight States that have designated a government entity as their P &
A system. . . .
***
B
In 2006, VOPA opened an investigation into the deaths of two patients and injuries to a
third at state-run mental hospitals. It asked respondents—state officials in charge of those
institutions—to produce any records related to risk-management or mortality reviews conducted
by the hospitals with respect to those patients. Respondents refused, asserting that the records
were protected by a state-law privilege shielding medical peer-review materials from disclosure.
VOPA then brought this action in the United States District Court for the Eastern District
of Virginia, alleging that the DD and PAIMI Acts entitled it to the peer-review records,
notwithstanding any state-law privilege that might apply. It sought a declaration that respondents'
refusal to produce the records violated the DD and PAIMI Acts, along with an injunction
requiring respondents to provide access to the records and refrain in the future from interfering
with VOPA's right of access to them. Respondents moved to dismiss the action on the grounds
that they are immune from suit under the Eleventh Amendment. The District Court denied the
motion. In its view, the suit was permitted by the doctrine of Ex parte Young, which normally
allows federal courts to award prospective relief against state officials for violations of federal
law.
The Court of Appeals reversed. . . .
We granted certiorari.
95
II
A
Sovereign immunity is the privilege of the sovereign not to be sued without its consent.
The language of the Eleventh Amendment only eliminates the basis for our judgment in the
famous case of Chisholm v. Georgia, which involved a suit against a State by a noncitizen of the
State. Since Hans v. Louisiana, however, we have understood the Eleventh Amendment to
confirm the structural understanding that States entered the Union with their sovereign immunity
intact, unlimited by Article III's jurisdictional grant. Our cases hold that the States have retained
their traditional immunity from suit, “except as altered by the plan of the Convention or certain
constitutional amendments.” Alden v. Maine, 527 U.S. 706 (1999). A State may waive its
sovereign immunity at its pleasure, College Savings Bank v. Florida Prepaid Postsecondary Ed.
Expense Bd., and in some circumstances Congress may abrogate it by appropriate legislation. 2
But absent waiver or valid abrogation, federal courts may not entertain a private person's suit
against a State.
B
In Ex parte Young we established an important limit on the sovereign-immunity
principle. That case involved a challenge to a Minnesota law reducing the freight rates that
railroads could charge. A railroad shareholder claimed that the new rates were unconstitutionally
confiscatory, and obtained a federal injunction against Edward Young, the Attorney General of
Minnesota, forbidding him in his official capacity to enforce the state law. When Young violated
the injunction by initiating an enforcement action in state court, the Circuit Court held him in
contempt and committed him to federal custody. In his habeas corpus application in this Court,
Young challenged his confinement by arguing that Minnesota's sovereign immunity deprived the
federal court of jurisdiction to enjoin him from performing his official duties.
We disagreed. We explained that because an unconstitutional legislative enactment is
“void,” a state official who enforces that law “comes into conflict with the superior authority of
[the] Constitution,” and therefore is “stripped of his official or representative character and is
subjected in his person to the consequences of his individual conduct. The State has no power to
impart to him any immunity from responsibility to the supreme authority of the United States.”
This doctrine has existed alongside our sovereign-immunity jurisprudence for more than
a century, accepted as necessary to “permit the federal courts to vindicate federal rights.”
Pennhurst State School & Hosp. v. Halderman. It rests on the premise—less delicately called a
“fiction,” id.—that when a federal court commands a state official to do nothing more than
refrain from violating federal law, he is not the State for sovereign-immunity purposes. The
doctrine is limited to that precise situation, and does not apply “when the state is the real,
substantial party in interest,” as when the “judgment sought would expend itself on the public
treasury or domain, or interfere with public administration.”
2
We have recognized that Congress may abrogate a State's immunity when it acts under § 5 of the Fourteenth
Amendment, Seminole Tribe of Fla. v. Florida, but not when it acts under its original Article I authority to regulate
commerce, id.
96
C
This case requires us to decide how to apply the Ex parte Young doctrine to a suit brought
by an independent state agency claiming to possess federal rights. Although we have never
encountered such a suit before, we are satisfied that entertaining VOPA's action is consistent
with our precedents and does not offend the distinctive interests protected by sovereign
immunity.
1
In Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635 (2002), we held that
“[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to
suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective.’” Id.
(quoting Idaho v. Coeur d'Alene Tribe of Idaho (O’Connor, J., concurring in part and concurring
in judgment)). There is no doubt VOPA's suit satisfies that straightforward inquiry. It alleges that
respondents' refusal to produce the requested medical records violates federal law; and it seeks
an injunction requiring the production of the records, which would prospectively abate the
alleged violation. Respondents concede that were VOPA a private organization rather than a
state agency, the doctrine would permit this action to proceed. 3
We see no reason for a different result here. Although respondents argue that VOPA's
status as a state agency changes the calculus, there is no warrant in our cases for making the
validity of an Ex parte Young action turn on the identity of the plaintiff. To be sure, we have
been willing to police abuses of the doctrine that threaten to evade sovereign immunity. . . . But
(as the dissent concedes) the limits we have recognized reflect the principle that the “general
criterion for determining when a suit is in fact against the sovereign is the effect of the relief
sought,” Pennhurst, not who is bringing the lawsuit. Thus, Ex parte Young cannot be used to
obtain an injunction requiring the payment of funds from the State's treasury, see Edelman v.
Jordan; or an order for specific performance of a State's contract, see id..
Coeur d'Alene Tribe, on which respondents heavily rely, is an application of this
principle. There we refused to allow an Indian Tribe to use Ex parte Young to obtain injunctive
and declaratory relief establishing its exclusive right to the use and enjoyment of certain
submerged lands in Idaho and the invalidity of all state statutes and regulations governing that
land. We determined that the suit was “the functional equivalent of a quiet title suit against
3
The dissent is mistaken when it claims that applying the Verizon Maryland test would mean two of our cases were
“wrongly decided.” We discuss the first of those cases, Coeur d'Alene Tribe, below. As for the second, Seminole
Tribe, it is inapposite. The reason we refused to permit suit to proceed in that case was that the Indian Gaming
Regulatory Act created an alternative remedial scheme that would be undermined by permitting Ex parte Young
suits; Congress, we said, had foreclosed recourse to the doctrine.
Respondents now argue—for the first time in this litigation—that the DD and PAIMI Acts have the same
effect here. We reject that suggestion. The fact that the Federal Government can exercise oversight of a federal
spending program and even withhold or withdraw funds—which are the chief statutory features respondents point
to—does not demonstrate that Congress has “displayed an intent not to provide the ‘more complete and more
immediate relief’ that would otherwise be available under Ex parte Young.” Verizon Maryland (quoting Seminole
Tribe).
97
Idaho,” would “extinguish ... the State's control over a vast reach of lands and waters long
deemed by the State to be an integral part of its territory,” and thus was barred by sovereign
immunity.
Respondents have advanced no argument that the relief sought in this case threatens any
similar invasion of Virginia's sovereignty. Indeed, they concede that the very injunction VOPA
requests could properly be awarded by a federal court at the instance of a private P & A system.
2
Respondents and the dissent argue that entertaining VOPA's lawsuit in a federal forum
would nevertheless infringe Virginia's sovereign interests because it diminishes the dignity of a
State for a federal court to adjudicate a dispute between its components. As an initial matter, we
do not understand how a State's stature could be diminished to any greater degree when its own
agency polices its officers' compliance with their federal obligations, than when a private person
hales those officers into federal court for that same purpose—something everyone agrees is
proper. And in this case, of course, VOPA's power to sue state officials is a consequence of
Virginia's own decision to establish a public, rather than a private, P & A system. We fail to
perceive what Eleventh Amendment indignity is visited on the Commonwealth when, by
operation of its own laws, VOPA is admitted to federal court as a plaintiff.
But even if it were true that the State's dignity were offended in some way by the
maintenance of this action in federal court, that would not prove respondents' case. Denial of
sovereign immunity, to be sure, offends the dignity of a State; but not every offense to the
dignity of a State constitutes a denial of sovereign immunity. The specific indignity against
which sovereign immunity protects is the insult to a State of being haled into court without its
consent. That effectively occurs, our cases reasonably conclude, when (for example) the object
of the suit against a state officer is to reach funds in the state treasury or acquire state lands; it
does not occur just because the suit happens to be brought by another state agency. Respondents'
asserted dignitary harm is simply unconnected to the sovereign-immunity interest.
The dissent complains that applying Ex parte Young to this lawsuit divides Virginia
against itself, since the opposing parties are both creatures of the Commonwealth. Even if that
were a distinctive consequence of letting this suit proceed in federal court, it would have nothing
to do with the concern of sovereign-immunity—whether the suit is against an unconsenting
State, rather than against its officers. . . .
We do not doubt, of course, that there are limits on the Federal Government's power to
affect the internal operations of a State. See, e.g., Printz v. United States, 521 U.S. 898 (1997)
(Congress may not commandeer state officers). But those limits must be found in some textual
provision or structural premise of the Constitution. Additional limits cannot be smuggled in
under the Eleventh Amendment by barring a suit in federal court that does not violate the State's
sovereign immunity.
3
A weightier objection, perhaps, is the relative novelty of this lawsuit. Respondents rightly
98
observe that federal courts have not often encountered lawsuits brought by state agencies against
other state officials. That does give us pause. Lack of historical precedent can indicate a
constitutional infirmity, see, e.g., Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 177 L.Ed.2d 706 (2010), and our sovereign-immunity decisions have traditionally
warned against “ ‘anomalous and unheard-of proceedings or suits,’ ” Alden (quoting Hans).
Novelty, however, is often the consequence of past constitutional doubts, but we have no
reason to believe that is the case here. . . .
***
We reverse the judgment of the Court of Appeals and remand the case for further
proceedings consistent with this opinion.
Justice Kagan took no part in the consideration or decision of this case.
Justice Kennedy, with whom Justice Thomas joins, concurring.
***
In this case, in my view, the Virginia Office for Protection and Advocacy may rely on
Young, despite the somewhat striking novelty of permitting a state agency to sue officials of the
same State in federal court. In the posture of the case as it comes before the Court, it must be
assumed that VOPA has a federal right to the records it seeks, and so the extension of Young
would vindicate the Supremacy Clause. To be balanced against this important interest is the need
to preserve “the dignity and respect afforded a State, which the immunity is designed to protect.”
Coeur d'Alene. Permitting a state agency like VOPA to sue officials of the same State does
implicate the State's important sovereign interest in using its own courts to control the
distribution of power among its own agents. But the affront to the State's dignity is diminished to
some extent when it is noted that if the State had elected the alternate course of designating a
private protection and advocacy system it then would have avoided any risk of internal conflict
while still participating in the federal program. The availability of that alternate course does not,
in my view, weigh much in favor of the validity of the underlying federal scheme, but the only
question here is the reach of the Young exception.
***
Chief Justice Roberts, with whom Justice Alito joins, dissenting.
Today the Court holds that a state agency may sue officials acting on behalf of the State
in federal court. This has never happened before. In order to reach this unsettling result, the
Court extends the fiction of Ex parte Young—what we have called an “empty formalism”—well
beyond the circumstances of that case. Because I cannot subscribe to such a substantial and novel
expansion of what we have also called “a narrow exception” to a State's sovereign immunity, I
99
respectfully dissent.
I
A
***
Because of the key role state sovereign immunity plays in our federal system, the Court
has recognized only a few exceptions to that immunity. The sole one relevant here is the “narrow
exception,” Seminole Tribe of Fla. v. Florida, established by our decision in Ex parte Young. . . .
As we have often observed, Ex parte Young rests on the “obvious fiction,” Coeur d'Alene Tribe,
that such a suit is not really against the State, but rather against an individual who has been
“stripped of his official or representative character” because of his unlawful conduct, Ex parte
Young. 1
While we have consistently acknowledged the important role Ex parte Young plays in
“promot[ing] the vindication of federal rights,” we have been cautious not to give that decision
“an expansive interpretation.” Pennhurst. Indeed, the history of our Ex parte Young
jurisprudence has largely been focused on ensuring that this narrow exception is “narrowly
construed,” Pennhurst. We have, for example, held that the fiction of Ex parte Young does not
extend to suits where the plaintiff seeks retroactive relief, Edelman v. Jordan; where the claimed
violations are based on state law, Pennhurst; where the federal law violation is no longer
“ongoing,” Green v. Mansour, 474 U.S. 64 (1985); “where Congress has prescribed a detailed
remedial scheme for the enforcement against a State” of the claimed federal right, Seminole
Tribe; and where “special sovereignty interests” are implicated, Coeur d'Alene Tribe.
We recently stated that when “determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry
into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Verizon. But not every plaintiff who complies with these
prerequisites will be able to bring suit under Ex parte Young. Indeed, in Verizon itself the Court
went beyond its so-called straightforward inquiry in considering whether Ex parte Young
applied. After deciding the plaintiffs “clearly satisfie[d]” the “straightforward inquiry,” the Court
went on to examine whether Congress had created a detailed remedial scheme like the one in
Seminole Tribe. Only after determining that Congress had not done so did the Court conclude
that the suit could go forward under Ex parte Young.
If Verizon's formulation set forth the only requirements for bringing an action under Ex
parte Young, two of our recent precedents were wrongly decided. In Seminole Tribe, the Court
acknowledged that it had often “found federal jurisdiction over a suit against a state official
when that suit seeks only prospective injunctive relief in order to end a continuing violation of
federal law.” The Court held, however, that the “situation presented” there was “sufficiently
different from that giving rise to the traditional Ex parte Young action so as to preclude the
1
Ex parte Young also rests on the “well-recognized irony that an official's unconstitutional conduct constitutes state
action under the Fourteenth Amendment but not the Eleventh Amendment.” Pennhurst.
100
availability of that doctrine.” Ibid. 2
In Coeur d'Alene Tribe, the Court recognized that an “allegation of an ongoing violation
of federal law where the requested relief is prospective is ordinarily sufficient to invoke the
Young fiction.” (emphasis added). The Court held, however, that the action could not proceed
under Ex parte Young because it implicated “special sovereignty interests”—in that case, the
State's property rights in certain submerged lands.
As we explained in Papasan v. Allain, 478 U.S. 265 (1986), there are “certain types of
cases that formally meet the Young requirements of a state official acting inconsistently with
federal law but that stretch that case too far and would upset the balance of federal and state
interests that it embodies.” This is one of those cases.
In refusing to extend Ex parte Young to claims that involve “special sovereignty
interests,” the Court in Coeur d'Alene Tribe warned against a rote application of the Ex parte
Young fiction:
“To interpret Young to permit a federal-court action to proceed in every case
where prospective declaratory and injunctive relief is sought against an officer,
named in his individual capacity, would be to adhere to an empty formalism . . . .”
B
. . . If this were a “traditional Ex parte Young action,” Seminole Tribe, petitioner might
very well be able to pursue its claims under that case. This, however, is anything but a traditional
case—and petitioner is anything but a typical Ex parte Young plaintiff.
Unlike the plaintiffs in Ex parte Young—and, for that matter, unlike any other plaintiff
that has ever sought to invoke Ex parte Young before this Court—petitioner is a state agency
seeking to sue officials of the same State in federal court. The Court is troubled by this novelty,
but not enough. This is especially true in light of the “presumption” we articulated more than 120
years ago in Hans v. Louisiana, that States are immune from suits that would have been
“anomalous and unheard of when the Constitution was adopted.” Hans.
***
The Court speculates that these suits have not previously arisen because the necessary
conditions—state agencies pursuing a federal right free of internal state veto—are themselves
novel. Even if true, that simply highlights the fact that this case is not suitable for mere rote
application of Ex parte Young.
2
While I agree that in Seminole Tribe “we refused to permit suit to proceed” under Ex parte Young because
Congress “had foreclosed recourse to the doctrine,” that simply confirms my point that the availability of Young
depends on more than just whether Verizon’s prescribed inquiry is satisfied. In short, Seminole Tribe makes clear
that a plaintiff who files a “complaint alleg[ing] an ongoing violation of federal law and seeks relief properly
characterized as prospective,” Verizon, may nonetheless be barred from pursuing an action under Young.
101
In addition to its novel character, petitioner's complaint “conflicts directly with the
principles of federalism that underlie the Eleventh Amendment.” Pennhurst. In Alden, we held
that state sovereign immunity prohibited Congress from authorizing “private suits against
nonconsenting States in their own courts.” We explained that such power would permit one
branch of state government, the “State's own courts,” “to coerce the other branches of the State”
and “to turn the State against itself.”
Here the Court goes further: this suit features a state agency on one side, and state
executive officials on the other. The objection in Alden was that the Federal Government could
force the State to defend itself before itself. Here extending Young forces the State to defend
itself against itself in federal court.
***
The Court is wrong to suggest that Virginia has no sovereign interest in determining
where such disputes will be resolved. It is one thing for a State to decide that its components may
sue one another in its own courts (as Virginia did here); it is quite another thing for such a
dispute to be resolved in federal court against the State's wishes. For this reason . . . examples of
other suits pitting state entities against one another are inapposite. In each of those hypotheticals,
the State consented to having a particular forum resolve its internal conflict. That is not true
here. 3
In sum, the “special sovereignty interests” implicated here make this case “sufficiently
different from that giving rise to the traditional Ex parte Young action so as to preclude the
availability of that doctrine.” Seminole Tribe. I would cling to reality and not extend the fiction
of Ex parte Young to cover petitioner's suit.
II
The Court offers several justifications for its expansion of Ex parte Young. None is
persuasive.
The Court first contends that whether the Ex parte Young fiction should be applied turns
only on the “relief sought” in a case. The Court is correct that several of our prior cases have
focused on the nature of the relief requested. See, e.g., Edelman. That may well be because “the
difference between the type of relief barred by the Eleventh Amendment and that permitted
under Ex parte Young will not in many instances be that between day and night.” Id. But the
Court is wrong to draw a negative implication from those cases and categorically conclude that
there can be no other basis for determining whether to extend Ex parte Young 's fiction.
3
Sovereign immunity principles would of course not prohibit this Court from reviewing the federal questions
presented by this suit if it had been filed in state court.. We have held that “it is inherent in the constitutional plan
that when a state court takes cognizance of a case, the State assents to appellate review by this Court of the federal
issues raised in the case whoever may be the parties to the original suit, whether private persons, or the state itself.”
McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18
(1990) (internal quotation marks and citation omitted). By contrast, there is nothing “inherent in the constitutional
plan” that warrants lower federal courts handling intrastate disputes absent a State's consent.
102
The thrust of the Court's argument appears to be that, because the relief sought here is no
different from that which could be sought in a suit by a private protection and advocacy system,
the doctrine of Ex parte Young should also apply to a suit brought by a state system. But private
entities are different from public ones: They are private. When private litigants are involved, the
State is not turned against itself.
Contrary to the Court's suggestion, there is indeed a real difference between a suit against
the State brought by a private party and one brought by a state agency. It is the difference
between eating and cannibalism; between murder and patricide. While the ultimate results may
be the same—a full stomach and a dead body—it is the means of getting there that attracts
notice. I would think it more an affront to someone's dignity to be sued by a brother than to be
sued by a stranger. While neither may be welcomed, that does not mean they would be equally
received.
***
Because I believe the Court's novel expansion of Ex parte Young is inconsistent with the
federal system established by our Constitution, I respectfully dissent.
H.
OTHER FEERAL REGULATORY POWERS
3.
The Treaty Power
Page 529: Add at the end of the page:
Note: Limits on the Treaty Power?
After Missouri v. Holland the question of Congress’s power to implement treaties was
generally thought to have been settled. However, in 2014 the Court gave serious consideration
to a claim that Congress had exceeded that power.
Bond v. United States, 189 L.Ed.2d 1 (2014), involved an alleged attempt by Bond to
harm her romantic rival by sprinkling a small amount of a dangerous chemical on areas she knew
her rival would touch, with the intent of injuring the rival. Federal prosecutors then charged her
with violating the federal statute implementing a chemical weapons treaty the Senate had
ratified. In response, Bond alleged that the statute violated the Tenth Amendment and exceeded
congressional power to implement treaties. In an earlier decision in this litigation, the Court
decided that Bond had standing to raise this claim, and remanded the case to the lower courts for
consideration of the merits. Bond v. United States, 180 L.Ed.2d 269 (2011) (discussed earlier in
103
this Supplement). On remand the lower court eventually rejected Bond’s constitutional claim.
When the case returned to the Court, the majority ruled for Bond, but did so on the theory
that the statute implementing the treaty did not reach her alleged conduct. Writing for a sixJustice majority, Chief Justice Roberts explained that the “improbably broad reach” of the
statute’s definition of “chemical weapon” and the “deeply serious consequences” for federalism
of accepting such a broad definition required the Court “to refer to basic principles of
federalism” when construing that law. In light of those considerations – in particular, the fact
that the government’s reading would create “a massive federal anti-poisoning regime that
reaches the simplest of assaults” – the Court construed the statute narrowly so as to not include
the purely local, non-warfare or terrorism-related, assault which Bond was charged with
committing.
Three justices rejected the majority’s statutory interpretation and thus reached the
constitutional question. In three separate opinions, Justices Scalia, Thomas, and Alito expressed
concern about the scope of Congress’s power to enter into treaties and to enact implementing
legislation. Justice Scalia mounted a broad attack on Holland, describing its broad grant of
federal power as “unreasoned and citation-less.” He expressed concern that Holland’s rule
would allow the federal government to evade any limits on its legislative power simply by
entering into and ratifying a treaty governing the subject-matter it wished to regulate. Justice
Thomas, joined by Justices Scalia and Alito, suggested that the treaty power was limited to
matters governing “intercourse with other nations” rather than “purely domestic affairs.” In his
opinion, Justice Alito applied Justice Thomas’s approach to the particular treaty at issue in Bond.
He recognized that chemical weapons, as “a matter of great international concern,” meant that
“the heart” of the chemical weapons treaty “clearly represents a valid exercise of the treaty
power.” However, he argued that the treaty exceeded the scope of that power “insofar as [the
treaty] may be read to obligate the United States to enact domestic legislation criminalizing
conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the
States.”
104
I. THE TAXING AND SPENDING POWER AS AN ALTERNATIVE TO
REGULATION
1. The General Scope of the Power
Page 544: Add after Sonzinsky v. United States:
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS
183 L.Ed. 2d 450 (2012) *
Chief Justice Roberts announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which Justice
Breyer and Justice Kagan join, and an opinion with respect to Parts III–A, III–B, and III–D.
***
III.
***
C
The exaction the Affordable Care Act imposes on those without health insurance looks
like a tax in many respects. The “[s]hared responsibility payment,” as the statute entitles it, is
paid into the Treasury by “taxpayer[s]” when they file their tax returns. It does not apply to
individuals who do not pay federal income taxes because their household income is less than the
filing threshold in the Internal Revenue Code. For taxpayers who do owe the payment, its
amount is determined by such familiar factors as taxable income, number of dependents, and
joint filing status. The requirement to pay is found in the Internal Revenue Code and enforced by
the IRS, which . . . must assess and collect it “in the same manner as taxes.” This process yields
the essential feature of any tax: it produces at least some revenue for the Government. United
States v. Kahriger, 345 U.S. 22 (1953). Indeed, the payment is expected to raise about $4 billion
per year by 2017.
It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But . . .
that label . . . does not determine whether the payment may be viewed as an exercise of
Congress’s taxing power.
***
We have . . . held that exactions not labeled taxes nonetheless were authorized by
Congress’s power to tax. In . . . New York v. United States [505 U.S. 144 (1992)] we upheld as a
tax a “surcharge” on out-of-state nuclear waste shipments, a portion of which was paid to the
Federal Treasury. We thus ask whether the shared responsibility payment falls within Congress’s
*
[Ed. Note: For the facts of the case and the Justices’ discussion of the Necessary and Proper Clause, the
Commerce Power and the Spending Power, see, respectively, pages 27, 38, and 111 of this Supplement.]
105
taxing power, “[d]isregarding the designation of the exaction, and viewing its substance and
application.”
Our cases confirm this functional approach. For example, in Bailey v. Drexel Furniture,
259 U.S. 20 (1922) we focused on three practical characteristics of the so-called tax on
employing child laborers that convinced us the “tax” was actually a penalty. First, the tax
imposed an exceedingly heavy burden—10 percent of a company’s net income—on those who
employed children, no matter how small their infraction. Second, it imposed that exaction only
on those who knowingly employed underage laborers. Such scienter requirements are typical of
punitive statutes, because Congress often wishes to punish only those who intentionally break the
law. Third, this “tax” was enforced in part by the Department of Labor, an agency responsible
for punishing violations of labor laws, not collecting revenue.
The same analysis here suggests that the shared responsibility payment may for
constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount
due will be far less than the price of insurance, and, by statute, it can never be more. It may often
be a reasonable financial decision to make the payment rather than purchase insurance, unlike
the “prohibitory” financial punishment in Drexel Furniture. Second, the individual mandate
contains no scienter requirement. Third, the payment is collected solely by the IRS through the
normal means of taxation—except that the Service is not allowed to use those means most
suggestive of a punitive sanction, such as criminal prosecution. The reasons the Court in Drexel
Furniture held that what was called a “tax” there was a penalty support the conclusion that what
is called a “penalty” here may be viewed as a tax.
None of this is to say that the payment is not intended to affect individual conduct.
Although the payment will raise considerable revenue, it is plainly designed to expand health
insurance coverage. But taxes that seek to influence conduct are nothing new. . . . Today, federal
and state taxes can compose more than half the retail price of cigarettes, not just to raise more
money, but to encourage people to quit smoking. And we have upheld such obviously regulatory
measures as taxes on selling marijuana and sawed-off shotguns. See United States v. Sanchez,
340 U.S. 42(1950); Sonzinsky v. United States, 300 U.S. 506 (1937). Indeed, “[e]very tax is in
some measure regulatory. To some extent it interposes an economic impediment to the activity
taxed as compared with others not taxed.” Sonzinsky. That § 5000A [the individual mandate]
seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a
valid exercise of the taxing power.
In distinguishing penalties from taxes, this Court has explained that “if the concept of
penalty means anything, it means punishment for an unlawful act or omission.” While the
individual mandate clearly aims to induce the purchase of health insurance, it need not be read to
declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal
consequences to not buying health insurance, beyond requiring a payment to the IRS. The
Government agrees with that reading, confirming that if someone chooses to pay rather than
obtain health insurance, they have fully complied with the law.
***
The plaintiffs contend that Congress’s choice of language—stating that individuals
106
“shall” obtain insurance or pay a “penalty”—requires reading § 5000A as punishing unlawful
conduct, even if that interpretation would render the law unconstitutional. We have rejected a
similar argument before. In New York we examined a statute providing that “‘[e]ach State shall
be responsible for providing . . . for the disposal of . . . low-level radioactive waste.’” A State
that shipped its waste to another State was exposed to surcharges by the receiving State, a
portion of which would be paid over to the Federal Government. And a State that did not adhere
to the statutory scheme faced “[p]enalties for failure to comply,” including increases in the
surcharge. New York urged us to read the statute as a federal command that the state legislature
enact legislation to dispose of its waste, which would have violated the Constitution. To avoid
that outcome, we interpreted the statute to impose only “a series of incentives” for the State to
take responsibility for its waste. We then sustained the charge paid to the Federal Government as
an exercise of the taxing power. We see no insurmountable obstacle to a similar approach here.
The joint dissenters argue that we cannot uphold § 5000A as a tax because Congress did
not “frame” it as such. In effect, they contend that even if the Constitution permits Congress to
do exactly what we interpret this statute to do, the law must be struck down because Congress
used the wrong labels. . . .
Our precedent demonstrates that Congress had the power to impose the exaction in §
5000A under the taxing power, and that § 5000A need not be read to do more than impose a tax.
That is sufficient to sustain it. The “question of the constitutionality of action taken by Congress
does not depend on recitals of the power which it undertakes to exercise.”
***
There may, however, be a more fundamental objection to a tax on those who lack health
insurance. Even if only a tax, the payment under § 5000A(b) remains a burden that the Federal
Government imposes for an omission, not an act. If it is troubling to interpret the Commerce
Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should
be similarly troubling to permit Congress to impose a tax for not doing something.
Three considerations allay this concern. First, and most importantly, it is abundantly clear
the Constitution does not guarantee that individuals may avoid taxation through inactivity. A
capitation, after all, is a tax that everyone must pay simply for existing, and capitations are
expressly contemplated by the Constitution. The Court today holds that our Constitution protects
us from federal regulation under the Commerce Clause so long as we abstain from the regulated
activity. But from its creation, the Constitution has made no such promise with respect to taxes.
***
Second, Congress’s ability to use its taxing power to influence conduct is not without
limits. A few of our cases policed these limits aggressively, invalidating punitive exactions
obviously designed to regulate behavior otherwise regarded at the time as beyond federal
authority. See, e.g., United States v. Butler, 297 U.S. 1 (1936). More often and more recently we
have declined to closely examine the regulatory motive or effect of revenue-raising measures.
We have nonetheless maintained that “‘there comes a time in the extension of the penalizing
features of the so-called tax when it loses its character as such and becomes a mere penalty with
the characteristics of regulation and punishment.’”
107
We have already explained that the shared responsibility payment’s practical
characteristics pass muster as a tax under our narrowest interpretations of the taxing power.
Because the tax at hand is within even those strict limits, we need not here decide the precise
point at which an exaction becomes so punitive that the taxing power does not authorize it. . . .
Third, although the breadth of Congress’s power to tax is greater than its power to
regulate commerce, the taxing power does not give Congress the same degree of control over
individual behavior. Once we recognize that Congress may regulate a particular decision under
the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may
simply command individuals to do as it directs. An individual who disobeys may be subjected to
criminal sanctions. . . .
By contrast, Congress’s authority under the taxing power is limited to requiring an
individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the
Government has no power to compel or punish individuals subject to it. We do not make light of
the severe burden that taxation—especially taxation motivated by a regulatory purpose—can
impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or
not do a certain act, so long as he is willing to pay a tax levied on that choice.
***
Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and Justice
Kagan join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part,
and dissenting in part.
I agree with The Chief Justice . . . that the minimum coverage provision is a proper
exercise of Congress’ taxing power. I therefore join Parts I, II, and III–C of The Chief Justice’s
opinion. Unlike The Chief Justice, however, I would hold, alternatively, that the Commerce
Clause authorizes Congress to enact the minimum coverage provision. . . .
***
Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.
***
II
The Taxing Power
As far as [the individual mandate] is concerned, we would stop there. Congress has
attempted to regulate beyond the scope of its Commerce Clause authority, and § 5000A [the
mandate provision] is therefore invalid. The Government contends, however, as expressed in the
caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS
INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” The phrase
“independently authorized” suggests the existence of a creature never hitherto seen in the United
States Reports: A penalty for constitutional purposes that is also a tax for constitutional
purposes. In all our cases the two are mutually exclusive. The provision challenged under the
Constitution is either a penalty or else a tax. . Thus, what the Government’s caption should have
108
read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A
MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating
the tax argument of the Government and of those who support it: The issue is not whether
Congress had the power to frame the minimum-coverage provision as a tax, but whether it did
so.
In answering that question we must, if “fairly possible,” construe the provision to be a tax
rather than a mandate-with-penalty, since that would render it constitutional rather than
unconstitutional . . . . But we cannot rewrite the statute to be what it is not. . . . In this case, there
is simply no way, “without doing violence to the fair meaning of the words used,” to escape what
Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by
a penalty.
Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced
contribution to provide for the support of government; a penalty . . . is an exaction imposed by
statute as punishment for an unlawful act.’” In a few cases, this Court has held that a “tax”
imposed upon private conduct was so onerous as to be in effect a penalty. But we have never
held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a
tax. We have never held that any exaction imposed for violation of the law is an exercise of
Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the
statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then
imposes a monetary penalty as the “principal consequence on those who transgress its standard,”
it creates a regulatory penalty, not a tax. Child Labor Tax Case [Bailey v. Drexel Furniture].
So the question is, quite simply, whether the exaction here is imposed for violation of the
law. It unquestionably is. The minimum-coverage provision is found in 26 U.S.C. § 5000A,
entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It
commands that every “applicable individual shall . . . ensure that the individual . . . is covered
under minimum essential coverage.” Ibid. (emphasis added). . . . And several of Congress’
legislative “findings” with regard to § 5000A confirm that it sets forth a legal requirement and
constitutes the assertion of regulatory power, not mere taxing power.
***
Quite separately, the fact that Congress (in its own words) “imposed . . . a penalty,” for
failure to buy insurance is alone sufficient to render that failure unlawful. It is one of the canons
of interpretation that a statute that penalizes an act makes it unlawful . . . .
***
In the face of all these indications of a regulatory requirement accompanied by a penalty,
the Solicitor General assures us that “neither the Treasury Department nor the Department of
Health and Human Services interprets Section 5000A as imposing a legal obligation,” and that
“[i]f [those subject to the Act] pay the tax penalty, they’re in compliance with the law.” These
self-serving litigating positions are entitled to no weight. . . .
Against the mountain of evidence that the minimum coverage requirement is what the
statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—
109
a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes
that “[t]he minimum coverage provision amends the Internal Revenue Code to provide that a
non-exempted individual . . . will owe a monetary penalty, in addition to the income tax itself,”
and that “[t]he [Internal Revenue Service (IRS) ] will assess and collect the penalty in the same
manner as assessable penalties under the Internal Revenue Code.” The manner of collection
could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not. . . .
Moreover, while the penalty is assessed and collected by the IRS, § 5000A is administered both
by that agency and by the Department of Health and Human Services (and also the Secretary of
Veteran Affairs), which is responsible for defining its substantive scope—a feature that would be
quite extraordinary for taxes.
The Government points out that “[t]he amount of the penalty will be calculated as a
percentage of household income for federal income tax purposes, subject to a floor and [a]
ca[p],” and that individuals who earn so little money that they “are not required to file income
tax returns for the taxable year are not subject to the penalty” . . . . But varying a penalty
according to ability to pay is an utterly familiar practice.
The last of the feeble arguments in favor of petitioners that we will address is the
contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no
scienter requirement. The presence of such a requirement suggests a penalty—though one can
imagine a tax imposed only on willful action; but the absence of such a requirement does not
suggest a tax. Penalties for absolute-liability offenses are commonplace. . . .
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act,
its operative core, rather than where a tax would be found—in Title IX, containing the Act’s
“Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable” that Congress
imposed a regulatory penalty, not a tax.
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to
interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have
never been popular, and in part for that reason, the Constitution requires tax increases to
originate in the House of Representatives. That is to say, they must originate in the legislative
body most accountable to the people, where legislators must weigh the need for the tax against
the terrible price they might pay at their next election, which is never more than two years off.
The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the
ground that the Chamber that is more accountable to the people should have the primary role in
raising revenue.” We have no doubt that Congress knew precisely what it was doing when it
rejected an earlier version of this legislation that imposed a tax instead of a requirement-withpenalty. Imposing a tax through judicial legislation inverts the constitutional scheme, and places
the power to tax in the branch of government least accountable to the citizenry.
***
Justice Thomas, dissenting [Omitted].
110
2. The Spending Power as a Means of Influencing State Government
Conduct
Page 549: Add at the bottom of the page:
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS
183 L.Ed. 2d 450 (2012) *
Chief Justice Roberts announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which Justice
Breyer and Justice Kagan join, and an opinion with respect to Parts III–A, III–B, and III–D.
IV
A
The States also contend that the Medicaid expansion exceeds Congress’s authority under
the Spending Clause. They claim that Congress is coercing the States to adopt the changes it
wants by threatening to withhold all of a State’s Medicaid grants, unless the State accepts the
new expanded funding and complies with the conditions that come with it. This, they argue,
violates the basic principle that the “Federal Government may not compel the States to enact or
administer a federal regulatory program.” New York v. United States, 505 U.S. 144 (1992).
There is no doubt that the Act dramatically increases state obligations under Medicaid.
The current Medicaid program requires States to cover only certain discrete categories of needy
individuals—pregnant women, children, needy families, the blind, the elderly, and the disabled.
There is no mandatory coverage for most childless adults, and the States typically do not offer
any such coverage. The States also enjoy considerable flexibility with respect to the coverage
levels for parents of needy families. . . .
The Medicaid provisions of the Affordable Care Act, in contrast, require States to expand
their Medicaid programs by 2014 to cover all individuals under the age of 65 with incomes
below 133 percent of the federal poverty line. The Act also establishes a new “[e]ssential health
benefits” package, which States must provide to all new Medicaid recipients—a level sufficient
to satisfy a recipient’s obligations under the individual mandate. The Affordable Care Act
provides that the Federal Government will pay 100 percent of the costs of covering these newly
eligible individuals through 2016. In the following years, the federal payment level gradually
decreases, to a minimum of 90 percent. . . .
The Spending Clause grants Congress the power “to pay the Debts and provide for the . .
*
[Ed. Note: For the facts of the case and the Justices’ discussion of the Necessary and Proper Clause, the
Commerce Power and the Taxing Power, see, respectively, pages 27, 38, and 105 of this Supplement.]
111
. general Welfare of the United States.” U.S. Const., Art. I, § 8, cl. 1. We have long recognized
that Congress may use this power to grant federal funds to the States, and may condition such a
grant upon the States’ “taking certain actions that Congress could not require them to take.” Such
measures “encourage a State to regulate in a particular way, [and] influenc[e] a State’s policy
choices.” New York. The conditions imposed by Congress ensure that the funds are used by the
States to “provide for the . . . general Welfare” in the manner Congress intended.
At the same time, our cases have recognized limits on Congress’s power under the
Spending Clause to secure state compliance with federal objectives. “We have repeatedly
characterized . . . Spending Clause legislation as ‘much in the nature of a contract.’” The
legitimacy of Congress’s exercise of the spending power “thus rests on whether the State
voluntarily and knowingly accepts the terms of the ‘contract.’ Respecting this limitation is
critical to ensuring that Spending Clause legislation does not undermine the status of the States
as independent sovereigns in our federal system. That system “rests on what might at first seem a
counter-intuitive insight, that ‘freedom is enhanced by the creation of two governments, not
one.’” For this reason, “the Constitution has never been understood to confer upon Congress the
ability to require the States to govern according to Congress’ instructions.” New York. Otherwise
the two-government system established by the Framers would give way to a system that vests
power in one central government, and individual liberty would suffer.
That insight has led this Court to strike down federal legislation that commandeers a
State’s legislative or administrative apparatus for federal purposes. See, e.g., Printz v. U.S., 521
U.S. 898 (1997); New York. It has also led us to scrutinize Spending Clause legislation to ensure
that Congress is not using financial inducements to exert a “power akin to undue influence.”
Steward Machine Co. v. Davis, 301 U.S. 548 (1937). Congress may use its spending power to
create incentives for States to act in accordance with federal policies. But when “pressure turns
into compulsion,” the legislation runs contrary to our system of federalism. “[T]he Constitution
simply does not give Congress the authority to require the States to regulate.” New York. That is
true whether Congress directly commands a State to regulate or indirectly coerces a State to
adopt a federal regulatory system as its own.
Permitting the Federal Government to force the States to implement a federal program
would threaten the political accountability key to our federal system. “[W]here the Federal
Government directs the States to regulate, it may be state officials who will bear the brunt of
public disapproval, while the federal officials who devised the regulatory program may remain
insulated from the electoral ramifications of their decision.” Spending Clause programs do not
pose this danger when a State has a legitimate choice whether to accept the federal conditions in
exchange for federal funds. In such a situation, state officials can fairly be held politically
accountable for choosing to accept or refuse the federal offer. But when the State has no choice,
the Federal Government can achieve its objectives without accountability, just as in New York
and Printz. Indeed, this danger is heightened when Congress acts under the Spending Clause,
because Congress can use that power to implement federal policy it could not impose directly
under its enumerated powers.
***
. . . [Congress] may attach appropriate conditions to federal taxing and spending
112
programs to preserve its control over the use of federal funds. In the typical case we look to the
States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal
blandishments when they do not want to embrace the federal policies as their own. The States are
separate and independent sovereigns. Sometimes they have to act like it.
The States, however, argue that the Medicaid expansion is far from the typical case. They
object that Congress has “crossed the line distinguishing encouragement from coercion,” in the
way it has structured the funding: Instead of simply refusing to grant the new funds to States that
will not accept the new conditions, Congress has also threatened to withhold those States’
existing Medicaid funds. The States claim that this threat serves no purpose other than to force
unwilling States to sign up for the dramatic expansion in health care coverage effected by the
Act.
Given the nature of the threat and the programs at issue here, we must agree. We have
upheld Congress’s authority to condition the receipt of funds on the States’ complying with
restrictions on the use of those funds, because that is the means by which Congress ensures that
the funds are spent according to its view of the “general Welfare.” Conditions that do not here
govern the use of the funds, however, cannot be justified on that basis. When, for example, such
conditions take the form of threats to terminate other significant independent grants, the
conditions are properly viewed as a means of pressuring the States to accept policy changes.
In South Dakota v. Dole, we considered a challenge to a federal law that threatened to
withhold five percent of a State’s federal highway funds if the State did not raise its drinking age
to 21. The Court found that the condition was “directly related to one of the main purposes for
which highway funds are expended—safe interstate travel.” At the same time, the condition was
not a restriction on how the highway funds—set aside for specific highway improvement and
maintenance efforts—were to be used.
We accordingly asked whether “the financial inducement offered by Congress” was “so
coercive as to pass the point at which ‘pressure turns into compulsion.’” By “financial
inducement” the Court meant the threat of losing five percent of highway funds; no new money
was offered to the States to raise their drinking ages. We found that the inducement was not
impermissibly coercive, because Congress was offering only “relatively mild encouragement to
the States.” We observed that “all South Dakota would lose if she adheres to her chosen course
as to a suitable minimum drinking age is 5%” of her highway funds. . In fact, the federal funds at
stake constituted less than half of one percent of South Dakota’s budget at the time. In
consequence, “we conclude[d] that [the] encouragement to state action [was] a valid use of the
spending power.” Whether to accept the drinking age change “remain[ed] the prerogative of the
States not merely in theory but in fact.”
In this case, the financial “inducement” Congress has chosen is much more than
“relatively mild encouragement”—it is a gun to the head. Section 1396c of the Medicaid Act
provides that if a State’s Medicaid plan does not comply with the Act’s requirements, the
Secretary of Health and Human Services may declare that “further payments will not be made to
the State.” A State that opts out of the Affordable Care Act’s expansion in health care coverage
thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding,
113
but all of it. Medicaid spending accounts for over 20 percent of the average State’s total budget,
with federal funds covering 50 to 83 percent of those costs. . . . It is easy to see how the Dole
Court could conclude that the threatened loss of less than half of one percent of South Dakota’s
budget left that State with a “prerogative” to reject Congress’s desired policy, “not merely in
theory but in fact.” The threatened loss of over 10 percent of a State’s overall budget, in contrast,
is economic dragooning that leaves the States with no real option but to acquiesce in the
Medicaid expansion.
Justice Ginsburg claims that Dole is distinguishable because here “Congress has not
threatened to withhold funds earmarked for any other program.” But that begs the question: The
States contend that the expansion is in reality a new program and that Congress is forcing them
to accept it by threatening the funds for the existing Medicaid program. We cannot agree that
existing Medicaid and the expansion dictated by the Affordable Care Act are all one program
simply because “Congress styled” them as such. If the expansion is not properly viewed as a
modification of the existing Medicaid program, Congress’s decision to so title it is irrelevant.
Here, the Government claims that the Medicaid expansion is properly viewed merely as a
modification of the existing program because the States agreed that Congress could change the
terms of Medicaid when they signed on in the first place. The Government observes that the
Social Security Act, which includes the original Medicaid provisions, contains a clause expressly
reserving “[t]he right to alter, amend, or repeal any provision” of that statute. So it does. But “if
Congress intends to impose a condition on the grant of federal moneys, it must do so
unambiguously.” A State confronted with statutory language reserving the right to “alter” or
“amend” the pertinent provisions of the Social Security Act might reasonably assume that
Congress was entitled to make adjustments to the Medicaid program as it developed. . . .
The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The
original program was designed to cover medical services for four particular categories of the
needy: the disabled, the blind, the elderly, and needy families with dependent children. . . . Under
the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs
of the entire nonelderly population with income below 133 percent of the poverty level. It is no
longer a program to care for the neediest among us, but rather an element of a comprehensive
national plan to provide universal health insurance coverage. 14
***
Justice Ginsburg claims that in fact this expansion is no different from the previous
changes to Medicaid, such that “a State would be hard put to complain that it lacked fair notice.”
But the prior change she discusses—presumably the most dramatic alteration she could find—
14
Justice Ginsburg suggests that the States can have no objection to the Medicaid expansion, because “Congress
could have repealed Medicaid [and,] [t]hereafter, . . . could have enacted Medicaid II, a new program combining the
pre–2010 coverage with the expanded coverage required by the ACA.” But it would certainly not be that easy.
Practical constraints would plainly inhibit, if not preclude, the Federal Government from repealing the existing
program and putting every feature of Medicaid on the table for political reconsideration. Such a massive undertaking
would hardly be “ritualistic.” . . .
114
does not come close to working the transformation the expansion accomplishes. She highlights
an amendment requiring States to cover pregnant women and increasing the number of eligible
children. But this modification can hardly be described as a major change in a program that—
from its inception—provided health care for “families with dependent children.” Previous
Medicaid amendments simply do not fall into the same category as the one at stake here.
The Court in Steward Machine did not attempt to “fix the outermost line” where
persuasion gives way to coercion. . . . We have no need to fix a line either. It is enough for today
that wherever that line may be, this statute is surely beyond it. . . .
B
Nothing in our opinion precludes Congress from offering funds under the Affordable
Care Act to expand the availability of health care, and requiring that States accepting such funds
comply with the conditions on their use. What Congress is not free to do is to penalize States that
choose not to participate in that new program by taking away their existing Medicaid funding.
Section 1396c gives the Secretary of Health and Human Services the authority to do just that. It
allows her to withhold all “further [Medicaid] payments . . . to the State” if she determines that
the State is out of compliance with any Medicaid requirement, including those contained in the
expansion. In light of the Court’s holding, the Secretary cannot apply § 1396c to withdraw
existing Medicaid funds for failure to comply with the requirements set out in the expansion.
That fully remedies the constitutional violation we have identified. The chapter of the
United States Code that contains § 1396c includes a severability clause confirming that we need
go no further. . . . Today’s holding does not affect the continued application of § 1396c to the
existing Medicaid program. Nor does it affect the Secretary’s ability to withdraw funds provided
under the Affordable Care Act if a State that has chosen to participate in the expansion fails to
comply with the requirements of that Act.
This is not to say, as the joint dissent suggests, that we are “rewriting the Medicaid
Expansion.” Instead, we determine, first, that § 1396c is unconstitutional when applied to
withdraw existing Medicaid funds from States that decline to comply with the expansion. We
then follow Congress’s explicit textual instruction to leave unaffected “the remainder of the
chapter, and the application of [the challenged] provision to other persons or circumstances.” §
1303. When we invalidate an application of a statute because that application is unconstitutional,
we are not “rewriting” the statute; we are merely enforcing the Constitution.
***
Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and Justice
Kagan join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part,
and dissenting in part.
I agree with The Chief Justice . . . that the minimum coverage provision is a proper
exercise of Congress’ taxing power. I therefore join Parts I, II, and III–C of The Chief Justice’s
opinion. Unlike The Chief Justice, however, I would hold, alternatively, that the Commerce
Clause authorizes Congress to enact the minimum coverage provision. I would also hold that the
115
Spending Clause permits the Medicaid expansion exactly as Congress enacted it.
***
V
Through Medicaid, Congress has offered the States an opportunity to furnish health care
to the poor with the aid of federal financing. To receive federal Medicaid funds, States must
provide health benefits to specified categories of needy persons, including pregnant women,
children, parents, and adults with disabilities. Guaranteed eligibility varies by category: for some
it is tied to the federal poverty level (incomes up to 100% or 133%); for others it depends on
criteria such as eligibility for designated state or federal assistance programs. The ACA enlarges
the population of needy people States must cover to include adults under age 65 with incomes up
to 133% of the federal poverty level. The spending power conferred by the Constitution, the
Court has never doubted, permits Congress to define the contours of programs financed with
federal funds. And to expand coverage, Congress could have recalled the existing legislation, and
replaced it with a new law making Medicaid as embracive of the poor as Congress chose.
The question posed by the 2010 Medicaid expansion, then, is essentially this: To cover a
notably larger population, must Congress take the repeal/reenact route, or may it achieve the
same result by amending existing law? The answer should be that Congress may expand by
amendment the classes of needy persons entitled to Medicaid benefits. A ritualistic requirement
that Congress repeal and reenact spending legislation in order to enlarge the population served by
a federally funded program would advance no constitutional principle and would scarcely serve
the interests of federalism. To the contrary, such a requirement would rigidify Congress' efforts
to empower States by partnering with them in the implementation of federal programs.
Medicaid is a prototypical example of federal-state cooperation in serving the Nation’s
general welfare. Rather than authorizing a federal agency to administer a uniform national
health-care system for the poor, Congress offered States the opportunity to tailor Medicaid grants
to their particular needs, so long as they remain within bounds set by federal law. In shaping
Medicaid, Congress did not endeavor to fix permanently the terms participating states must meet;
instead, Congress reserved the “right to alter, amend, or repeal” any provision of the Medicaid
Act. States, for their part, agreed to amend their own Medicaid plans consistent with changes
from time to time made in the federal law. And from 1965 to the present, States have regularly
conformed to Congress’ alterations of the Medicaid Act.
The Chief Justice acknowledges that Congress may “condition the receipt of [federal]
funds on the States’ complying with restrictions on the use of those funds,” but nevertheless
concludes that the 2010 expansion is unduly coercive. His conclusion rests on three premises,
each of them essential to his theory. First, the Medicaid expansion is, in The Chief Justice’s
view, a new grant program, not an addition to the Medicaid program existing before the ACA’s
enactment. Congress, The Chief Justice maintains, has threatened States with the loss of funds
from an old program in an effort to get them to adopt a new one. Second, the expansion was
unforeseeable by the States when they first signed on to Medicaid. Third, the threatened loss of
funding is so large that the States have no real choice but to participate in the Medicaid
expansion. The Chief Justice therefore—for the first time ever—finds an exercise of Congress’
spending power unconstitutionally coercive.
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Medicaid, as amended by the ACA, however, is not two spending programs; it is a single
program with a constant aim—to enable poor persons to receive basic health care when they
need it. Given past expansions, plus express statutory warning that Congress may change the
requirements participating States must meet, there can be no tenable claim that the ACA fails for
lack of notice. Moreover, States have no entitlement to receive any Medicaid funds; they enjoy
only the opportunity to accept funds on Congress’ terms. Future Congresses are not bound by
their predecessors’ dispositions; they have authority to spend federal revenue as they see fit. The
Federal Government, therefore, is not, as The Chief Justice charges, threatening States with the
loss of “existing” funds from one spending program in order to induce them to opt into another
program. Congress is simply requiring States to do what States have long been required to do to
receive Medicaid funding: comply with the conditions Congress prescribes for participation.
A majority of the Court, however, buys the argument that prospective withholding of
funds formerly available exceeds Congress’ spending power. Given that holding, I entirely agree
with The Chief Justice as to the appropriate remedy. It is to bar the withholding found
impermissible—not, as the joint dissenters would have it, to scrap the expansion altogether. The
dissenters’ view that the ACA must fall in its entirety is a radical departure from the Court’s
normal course. When a constitutional infirmity mars a statute, the Court ordinarily removes the
infirmity. It undertakes a salvage operation; it does not demolish the legislation. See, e.g.,
Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) (Court's normal course is to declare a
statute invalid “to the extent that it reaches too far, but otherwise [to leave the statute] intact”).
That course is plainly in order where, as in this case, Congress has expressly instructed courts to
leave untouched every provision not found invalid. See 42 U.S.C. § 1303. Because The Chief
Justice finds the withholding—not the granting—of federal funds incompatible with the
Spending Clause, Congress' extension of Medicaid remains available to any State that affirms its
willingness to participate.
A
Expansion has been characteristic of the Medicaid program. . . .
Since 1965, Congress has amended the Medicaid program on more than 50 occasions,
sometimes quite sizably. Most relevant here, between 1988 and 1990, Congress required
participating States to include among their beneficiaries pregnant women with family incomes up
to 133% of the federal poverty level, children up to age 6 at the same income levels, and children
ages 6 to 18 with family incomes up to 100% of the poverty level. These amendments added
millions to the Medicaid-eligible population.
***
B
***
Congress’ authority to condition the use of federal funds is not confined to spending
programs as first launched. The legislature may, and often does, amend the law, imposing new
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conditions grant recipients henceforth must meet in order to continue receiving funds.
Yes, there are federalism-based limits on the use of Congress’ conditional spending
power. In the leading decision in this area, Dole, the Court identified four criteria. The conditions
placed on federal grants to States must (a) promote the “general welfare,” (b) “unambiguously”
inform States what is demanded of them, (c) be germane “to the federal interest in particular
national projects or programs,” and (d) not “induce the States to engage in activities that would
themselves be unconstitutional.”
The Court in Dole mentioned, but did not adopt, a further limitation, one hypothetically
raised a half-century earlier: In “some circumstances,” Congress might be prohibited from
offering a “financial inducement . . . so coercive as to pass the point at which ‘pressure turns into
compulsion.’ ” Id. (quoting Steward Machine). Prior to today’s decision, however, the Court has
never ruled that the terms of any grant crossed the indistinct line between temptation and
coercion.
***
This case does not present the concerns that led the Court in Dole even to consider the
prospect of coercion. In Dole, the condition—set 21 as the minimum drinking age—did not tell
the States how to use funds Congress provided for highway construction. Further, in view of the
Twenty–First Amendment, it was an open question whether Congress could directly impose a
national minimum drinking age.
The ACA, in contrast, relates solely to the federally funded Medicaid program; if States
choose not to comply, Congress has not threatened to withhold funds earmarked for any other
program. Nor does the ACA use Medicaid funding to induce States to take action Congress itself
could not undertake. The Federal Government undoubtedly could operate its own health-care
program for poor persons, just as it operates Medicare for seniors’ health care.
That is what makes this such a simple case, and the Court’s decision so unsettling.
Congress, aiming to assist the needy, has appropriated federal money to subsidize state healthinsurance programs that meet federal standards. The principal standard the ACA sets is that the
state program cover adults earning no more than 133% of the federal poverty line. Enforcing that
prescription ensures that federal funds will be spent on health care for the poor in furtherance of
Congress’ present perception of the general welfare.
C
The Chief Justice asserts that the Medicaid expansion creates a “new health care
program.” Moreover, States could “hardly anticipate” that Congress would “transform [the
program] so dramatically.” Therefore, The Chief Justice maintains, Congress’ threat to withhold
“old” Medicaid funds based on a State’s refusal to participate in the “new” program is a “threa[t]
to terminate [an]other . . . independent gran[t].” And because the threat to withhold a large
amount of funds from one program “leaves the States with no real option but to acquiesce [in a
newly created program],” The Chief Justice concludes, the Medicaid expansion is
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unconstitutionally coercive.
1
The starting premise on which The Chief Justice’s coercion analysis rests is that the ACA
did not really “extend” Medicaid; instead, Congress created an entirely new program to co-exist
with the old. The Chief Justice calls the ACA new, but in truth, it simply reaches more of
America’s poor than Congress originally covered.
Medicaid was created to enable States to provide medical assistance to “needy persons.”
By bringing health care within the reach of a larger population of Americans unable to afford it,
the Medicaid expansion is an extension of that basic aim.
***
Congress styled and clearly viewed the Medicaid expansion as an amendment to the
Medicaid Act, not as a “new” health-care program. To the four categories of beneficiaries for
whom coverage became mandatory in 1965, and the three mandatory classes added in the late
1980's, the ACA adds an eighth: individuals under 65 with incomes not exceeding 133% of the
federal poverty level. The expansion is effectuated by § 2001 of the ACA, aptly titled: “Medicaid
Coverage for the Lowest Income Populations.” That section amends Title 42, Chapter 7,
Subchapter XIX: Grants to States for Medical Assistance Programs. Commonly known as the
Medicaid Act, Subchapter XIX filled some 278 pages in 2006. Section 2001 of the ACA would
add approximately three pages.
Congress has broad authority to construct or adjust spending programs to meet its
contemporary understanding of “the general Welfare.” Courts owe a large measure of respect to
Congress’ characterization of the grant programs it establishes. See Steward Machine. Even if
courts were inclined to second-guess Congress’ conception of the character of its legislation,
how would reviewing judges divine whether an Act of Congress, purporting to amend a law, is in
reality not an amendment, but a new creation? At what point does an extension become so large
that it “transforms” the basic law?
Endeavoring to show that Congress created a new program, The Chief Justice cites three
aspects of the expansion. First, he asserts that, in covering those earning no more than 133% of
the federal poverty line, the Medicaid expansion, unlike pre-ACA Medicaid, does not “care for
the neediest among us.” What makes that so? Single adults earning no more than $14,856 per
year—133% of the current federal poverty level—surely rank among the Nation’s poor.
Second, according to The Chief Justice, “Congress mandated that newly eligible persons
receive a level of coverage that is less comprehensive than the traditional Medicaid benefit
package.” That less comprehensive benefit package, however, is not an innovation introduced by
the ACA; since 2006, States have been free to use it for many of their Medicaid beneficiaries. . . .
Third, The Chief Justice correctly notes that the reimbursement rate for participating
States is different regarding individuals who became Medicaid-eligible through the ACA. But
the rate differs only in its generosity to participating States. Under pre-ACA Medicaid, the
119
Federal Government pays up to 83% of the costs of coverage for current enrollees; under the
ACA, the federal contribution starts at 100% and will eventually settle at 90%. Even if one
agreed that a change of as little as 7 percentage points carries constitutional significance, is it not
passing strange to suggest that the purported incursion on state sovereignty might have been
averted, or at least mitigated, had Congress offered States less money to carry out the same
obligations?
Consider also that Congress could have repealed Medicaid. Thereafter, Congress could
have enacted Medicaid II, a new program combining the pre–2010 coverage with the expanded
coverage required by the ACA. By what right does a court stop Congress from building up
without first tearing down?
2
The Chief Justice finds the Medicaid expansion vulnerable because it took participating
States by surprise. “A State could hardly anticipate that Congres[s]” would endeavor to
“transform [the Medicaid program] so dramatically,” he states. For the notion that States must be
able to foresee, when they sign up, alterations Congress might make later on, The Chief Justice
cites only one case: Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981).
In Pennhurst, residents of a state-run, federally funded institution for the mentally
disabled complained of abusive treatment and inhumane conditions in alleged violation of the
Developmentally Disabled Assistance and Bill of Rights Act. We held that the State was not
answerable in damages for violating conditions it did not “voluntarily and knowingly accep[t].”
Inspecting the statutory language and legislative history, we found that the Act did not
“unambiguously” impose the requirement on which the plaintiffs relied: that they receive
appropriate treatment in the least restrictive environment. . Satisfied that Congress had not
clearly conditioned the States’ receipt of federal funds on the States’ provision of such treatment,
we declined to read such a requirement into the Act. Congress’ spending power, we concluded,
“does not include surprising participating States with post-acceptance or ‘retroactive’
conditions.”
Pennhurst thus instructs that “if Congress intends to impose a condition on the grant of
federal moneys, it must do so unambiguously.” That requirement is met in this case. Section
2001 does not take effect until 2014. The ACA makes perfectly clear what will be required of
States that accept Medicaid funding after that date: They must extend eligibility to adults with
incomes no more than 133% of the federal poverty line.
The Chief Justice appears to find in Pennhurst a requirement that, when spending
legislation is first passed, or when States first enlist in the federal program, Congress must
provide clear notice of conditions it might later impose. If I understand his point correctly, it was
incumbent on Congress, in 1965, to warn the States clearly of the size and shape potential
changes to Medicaid might take. And absent such notice, sizable changes could not be made
mandatory. Our decisions do not support such a requirement.
***
120
As these decisions show, Pennhurst’s rule demands that conditions on federal funds be
unambiguously clear at the time a State receives and uses the money—not at the time, perhaps
years earlier, when Congress passed the law establishing the program.
In any event, from the start, the Medicaid Act put States on notice that the program could
be changed: “The right to alter, amend, or repeal any provision of [Medicaid],” the statute has
read since 1965, “is hereby reserved to the Congress.” 42 U.S.C. § 1304. The “effect of these
few simple words” has long been settled. See National Railroad Passenger Corporation v.
Atchison, T. & S.F.R. Co., 470 U.S. 451 (1985). By reserving the right to “alter, amend, [or]
repeal” a spending program, Congress “has given special notice of its intention to retain . . . full
and complete power to make such alterations and amendments . . . as come within the just scope
of legislative power.” Id.
***
The Chief Justice nevertheless would rewrite § 1304 to countenance only the “right to
alter somewhat,” or “amend, but not too much.” . . .
***
The Chief Justice insists that the most recent expansion, in contrast to its predecessors,
“accomplishes a shift in kind, not merely degree.” But why was Medicaid altered only in degree,
not in kind, when Congress required States to cover millions of children and pregnant women? . .
. In short, given § 1304, this Court’s construction of § 1304’s language . . . and the enlargement
of Medicaid in the years since 1965, a State would be hard put to complain that it lacked fair
notice when, in 2010, Congress altered Medicaid to embrace a larger portion of the Nation’s
poor.
3
The Chief Justice ultimately asks whether “the financial inducement offered by Congress
. . . pass[ed] the point at which pressure turns into compulsion.” The financial inducement
Congress employed here, he concludes, crosses that threshold: The threatened withholding of
“existing Medicaid funds” is “a gun to the head” that forces States to acquiesce.
The Chief Justice sees no need to “fix the outermost line,” Steward Machine, “where
persuasion gives way to coercion.” Neither do the joint dissenters. . . .
When future Spending Clause challenges arrive, as they likely will in the wake of today’s
decision, how will litigants and judges assess whether “a State has a legitimate choice whether to
accept the federal conditions in exchange for federal funds”? Are courts to measure the number
of dollars the Federal Government might withhold for noncompliance? The portion of the State’s
budget at stake? And which State’s—or States’—budget is determinative: the lead plaintiff, all
challenging States (26 in this case, many with quite different fiscal situations), or some national
median? Does it matter that Florida, unlike most States, imposes no state income tax, and
therefore might be able to replace foregone federal funds with new state revenue? Or that the
coercion state officials in fact fear is punishment at the ballot box for turning down a politically
121
popular federal grant?
The coercion inquiry, therefore, appears to involve political judgments that defy judicial
calculation. See Baker v. Carr, 369 U.S. 186 (1962). . . .
At bottom, my colleagues' position is that the States' reliance on federal funds limits
Congress' authority to alter its spending programs. This gets things backwards: Congress, not the
States, is tasked with spending federal money in service of the general welfare. And each
successive Congress is empowered to appropriate funds as it sees fit. When the 110th Congress
reached a conclusion about Medicaid funds that differed from its predecessors' view, it abridged
no State's right to “existing,” or “pre-existing,” funds. For, in fact, there are no such funds. There
is only money States anticipate receiving from future Congresses.
D
. . . The Chief Justice . . . holds that the Constitution precludes the Secretary from
withholding “existing” Medicaid funds based on States’ refusal to comply with the expanded
Medicaid program. For the foregoing reasons, I disagree that any such withholding would violate
the Spending Clause. . . .
But in view of The Chief Justice’s disposition, I agree with him that the Medicaid Act’s
severability clause determines the appropriate remedy. That clause provides that “[i]f any
provision of [the Medicaid Act], or the application thereof to any person or circumstance, is held
invalid, the remainder of the chapter, and the application of such provision to other persons or
circumstances shall not be affected thereby.”
The Court does not strike down any provision of the ACA. It prohibits only the
“application” of the Secretary’s authority to withhold Medicaid funds from States that decline to
conform their Medicaid plans to the ACA’s requirements. Thus the ACA’s authorization of
funds to finance the expansion remains intact, and the Secretary’s authority to withhold funds for
reasons other than noncompliance with the expansion remains unaffected.
***
Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.
***
IV
The Medicaid Expansion
***
The ACA does not legally compel the States to participate in the expanded Medicaid
program, but the Act authorizes a severe sanction for any State that refuses to go along:
122
termination of all the State’s Medicaid funding. For the average State, the annual federal
Medicaid subsidy is equal to more than one-fifth of the State’s expenditures. A State forced out
of the program would not only lose this huge sum but would almost certainly find it necessary to
increase its own health-care expenditures substantially, requiring either a drastic reduction in
funding for other programs or a large increase in state taxes. And these new taxes would come on
top of the federal taxes already paid by the State’s citizens to fund the Medicaid program in other
States.
The States challenging the constitutionality of the ACA’s Medicaid Expansion contend
that, for these practical reasons, the Act really does not give them any choice at all. As proof of
this, they point to the goal and the structure of the ACA. The goal of the Act is to provide nearuniversal medical coverage, and without 100% State participation in the Medicaid program,
attainment of this goal would be thwarted. . . .
In light of the ACA’s goal of near-universal coverage, petitioners argue, if Congress had
thought that anything less than 100% state participation was a realistic possibility, Congress
would have provided a backup scheme. But no such scheme is to be found anywhere in the more
than 900 pages of the Act. This shows, they maintain, that Congress was certain that the ACA’s
Medicaid offer was one that no State could refuse.
In response to this argument, the Government contends that any congressional
assumption about uniform state participation was based on the simple fact that the offer of
federal funds associated with the expanded coverage is such a generous gift that no State would
want to turn it down.
To evaluate these arguments, we consider the extent of the Federal Government’s power
to spend money and to attach conditions to money granted to the States.
A
No one has ever doubted that the Constitution authorizes the Federal Government to
spend money, but for many years the scope of this power was unsettled. The Constitution grants
Congress the power to collect taxes “to . . . provide for the . . . general Welfare of the United
States” . . .
***
B
One way in which Congress may spend to promote the general welfare is by making
grants to the States. . . .
When Congress makes grants to the States, it customarily attaches conditions, and this
Court has long held that the Constitution generally permits Congress to do this.
123
C
This practice of attaching conditions to federal funds greatly increases federal power.
This formidable power, if not checked in any way, would present a grave threat to the
system of federalism created by our Constitution. If Congress’ “Spending Clause power to
pursue objectives outside of Article I’s enumerated legislative fields,” is “limited only by
Congress’ notion of the general welfare, the reality, given the vast financial resources of the
Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the
barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people,
subject to no restrictions save such as are self-imposed.’” . . .
Recognizing this potential for abuse, our cases have long held that the power to attach
conditions to grants to the States has limits. For one thing, any such conditions must be
unambiguous so that a State at least knows what it is getting into. Conditions must also be
related “to the federal interest in particular national projects or programs,” and the conditional
grant of federal funds may not “induce the States to engage in activities that would themselves be
unconstitutional.” Finally, while Congress may seek to induce States to accept conditional
grants, Congress may not cross the “point at which pressure turns into compulsion, and ceases to
be inducement.”
***
Coercing States to accept conditions risks the destruction of the “unique role of the States
in our system.” “[T]he Constitution has never been understood to confer upon Congress the
ability to require the States to govern according to Congress’ instructions.” Congress may not
“simply commandeer the legislative processes of the States by directly compelling them to enact
and enforce a federal regulatory program.” Congress effectively engages in this impermissible
compulsion when state participation in a federal spending program is coerced, so that the States’
choice whether to enact or administer a federal regulatory program is rendered illusory.
Where all Congress has done is to “encourag[e] state regulation rather than compe[l] it,
state governments remain responsive to the local electorate’s preferences; state officials remain
accountable to the people. [But] where the Federal Government compels States to regulate, the
accountability of both state and federal officials is diminished.” New York.
***
Once it is recognized that spending-power legislation cannot coerce state participation,
two questions remain: (1) What is the meaning of coercion in this context? (2) Is the ACA’s
expanded Medicaid coverage coercive? We now turn to those questions.
D
1
The answer to the first of these questions—the meaning of coercion in the present
context—is straightforward. As we have explained, the legitimacy of attaching conditions to
124
federal grants to the States depends on the voluntariness of the States’ choice to accept or decline
the offered package. . . . And as our decision in South Dakota v. Dole makes clear, theoretical
voluntariness is not enough.
In South Dakota v. Dole, we considered whether the spending power permitted Congress
to condition 5% of the State’s federal highway funds on the State’s adoption of a minimum
drinking age of 21 years. South Dakota argued that the program was impermissibly coercive, but
we disagreed, reasoning that “Congress ha[d] directed only that a State desiring to establish a
minimum drinking age lower than 21 lose a relatively small percentage of certain federal
highway funds.” . . . Thus, the decision whether to comply with the federal condition
“remain[ed] the prerogative of the States not merely in theory but in fact,” and so the program at
issue did not exceed Congress’ power. Id. (emphasis added).
The question whether a law enacted under the spending power is coercive in fact will
sometimes be difficult, but where Congress has plainly “crossed the line distinguishing
encouragement from coercion” a federal program that coopts the States’ political processes must
be declared unconstitutional. . . .
2
The Federal Government’s argument in this case at best pays lip service to the
anticoercion principle. The Federal Government suggests that it is sufficient if States are “free,
as a matter of law, to turn down” federal funds. According to the Federal Government, neither
the amount of the offered federal funds nor the amount of the federal taxes extracted from the
taxpayers of a State to pay for the program in question is relevant in determining whether there is
impermissible coercion.
This argument ignores reality. When a heavy federal tax is levied to support a federal
program that offers large grants to the States, States may, as a practical matter, be unable to
refuse to participate in the federal program and to substitute a state alternative. Even if a State
believes that the federal program is ineffective and inefficient, withdrawal would likely force the
State to impose a huge tax increase on its residents, and this new state tax would come on top of
the federal taxes already paid by residents to support subsidies to participating States.
***
E
Whether federal spending legislation crosses the line from enticement to coercion is often
difficult to determine, and courts should not conclude that legislation is unconstitutional on this
ground unless the coercive nature of an offer is unmistakably clear. In this case, however, there
can be no doubt. In structuring the ACA, Congress unambiguously signaled its belief that every
State would have no real choice but to go along with the Medicaid Expansion. If the anticoercion
rule does not apply in this case, then there is no such rule.
125
1
***
The States devote a larger percentage of their budgets to Medicaid than to any other item.
Federal funds account for anywhere from 50% to 83% of each State’s total Medicaid
expenditures; most States receive more than $1 billion in federal Medicaid funding . . . .
The Court of Appeals concluded that the States failed to establish coercion in this case in
part because the “states have the power to tax and raise revenue, and therefore can create and
fund programs of their own if they do not like Congress’s terms.” But the sheer size of this
federal spending program in relation to state expenditures means that a State would be very hard
pressed to compensate for the loss of federal funds by cutting other spending or raising
additional revenue. Arizona, for example, commits 12% of its state expenditures to Medicaid,
and relies on the Federal Government to provide the rest: $5.6 billion, equaling roughly one-third
of Arizona’s annual state expenditures of $17 billion. Therefore, if Arizona lost federal Medicaid
funding, the State would have to commit an additional 33% of all its state expenditures to fund
an equivalent state program along the lines of pre-expansion Medicaid. This means that the State
would have to allocate 45% of its annual expenditures for that one purpose.
The States are far less reliant on federal funding for any other program. . . .
***
For these reasons, the offer that the ACA makes to the States—go along with a dramatic
expansion of Medicaid or potentially lose all federal Medicaid funding—is quite unlike anything
that we have seen in a prior spending-power case. In South Dakota v. Dole, the total amount that
the States would have lost if every single State had refused to comply with the 21–year–old
drinking age was approximately $614.7 million—or about 0.19% of all state expenditures
combined. South Dakota stood to lose, at most, funding that amounted to less than 1% of its
annual state expenditures. Under the ACA, by contrast, the Federal Government has threatened
to withhold 42.3% of all federal outlays to the states, or approximately $233 billion. South
Dakota stands to lose federal funding equaling 28.9% of its annual state expenditures.
Withholding $614.7 million, equaling only 0.19% of all state expenditures combined, is aptly
characterized as “relatively mild encouragement,” but threatening to withhold $233 billion,
equaling 21.86% of all state expenditures combined, is a different matter.
2
What the statistics suggest is confirmed by the goal and structure of the ACA. In crafting
the ACA, Congress clearly expressed its informed view that no State could possibly refuse the
offer that the ACA extends.
The stated goal of the ACA is near-universal health care coverage. . . . If any State—not
to mention all of the 26 States that brought this suit—chose to decline the federal [Medicaid
expansion] offer, there would be a gaping hole in the ACA’s coverage.
126
***
If Congress had thought that States might actually refuse to go along with the expansion
of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable
groups in our society, those previously eligible for Medicaid, would not be left out in the cold.
But nowhere in the over 900–page Act is such a scheme to be found. . . . If Congress had
contemplated that some of these citizens would be left without Medicaid coverage as a result of a
State’s withdrawal or expulsion from the program, Congress surely would have made them
eligible for the tax subsidies provided [in the statute for other groups].
These features of the ACA convey an unmistakable message: Congress never dreamed
that any State would refuse to go along with the expansion of Medicaid. Congress well
understood that refusal was not a practical option.
The Federal Government does not dispute the inference that Congress anticipated 100%
state participation, but it argues that this assumption was based on the fact that ACA’s offer was
an “exceedingly generous” gift. . . .
This characterization of the ACA’s offer raises obvious questions. If that offer is
“exceedingly generous,” as the Federal Government maintains, why have more than half the
States brought this lawsuit, contending that the offer is coercive? And why did Congress find it
necessary to threaten that any State refusing to accept this “exceedingly generous” gift would
risk losing all Medicaid funds? Congress could have made just the new funding provided under
the ACA contingent on acceptance of the terms of the Medicaid Expansion. . . .
Congress’ decision to do otherwise here reflects its understanding that the ACA offer is
not an “exceedingly generous” gift that no State in its right mind would decline. Instead,
acceptance of the offer will impose very substantial costs on participating States. It is true that
the Federal Government will bear most of the initial costs associated with the Medicaid
Expansion, first paying 100% of the costs of covering newly eligible individuals between 2014
and 2016. But that is just part of the picture. Participating States will be forced to shoulder
substantial costs as well, because after 2019 the Federal Government will cover only 90% of the
costs associated with the Expansion, with state spending projected to increase by at least $20
billion by 2020 as a consequence. After 2019, state spending is expected to increase at a faster
rate; the CBO estimates new state spending at $60 billion through 2021. And these costs may
increase in the future because of the very real possibility that the Federal Government will
change funding terms and reduce the percentage of funds it will cover. This would leave the
States to bear an increasingly large percentage of the bill. Finally, after 2015, the States will
have to pick up the tab for 50% of all administrative costs associated with implementing the new
program, costs that could approach $12 billion between fiscal years 2014 and 2020.
In sum, it is perfectly clear from the goal and structure of the ACA that the offer of the
Medicaid Expansion was one that Congress understood no State could refuse. The Medicaid
Expansion therefore exceeds Congress’ spending power and cannot be implemented.
127
F
Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress,
is unconstitutional. See Part IV–A to IV–E, supra ; Part IV–A, ante (opinion of Roberts, C.J.,
joined by Breyer and Kagan, JJ.). Because the Medicaid Expansion is unconstitutional, the
question of remedy arises. The most natural remedy would be to invalidate the Medicaid
Expansion. However, the Government proposes—in two cursory sentences at the very end of its
brief—preserving the Expansion. Under its proposal, States would receive the additional
Medicaid funds if they expand eligibility, but States would keep their pre-existing Medicaid
funds if they do not expand eligibility. We cannot accept the Government’s suggestion.
The reality that States were given no real choice but to expand Medicaid was not an
accident. Congress assumed States would have no choice, and the ACA depends on States’
having no choice, because its Mandate requires low-income individuals to obtain insurance many
of them can afford only through the Medicaid Expansion. Furthermore, a State’s withdrawal
might subject everyone in the State to much higher insurance premiums. That is because the
Medicaid Expansion will no longer offset the cost to the insurance industry imposed by the
ACA’s insurance regulations and taxes . . . . To make the Medicaid Expansion optional despite
the ACA’s structure and design “‘would be to make a new law, not to enforce an old one. This is
no part of our duty.’”
***
Justice Thomas, dissenting [Omitted].
128
CHAPTER III: THE DISTRIBUTION OF NATIONAL POWERS
C. LOCATING THE CONSTITUTIONAL BOUNDARIES OF EXECUTIVE
POWER
2. Presidential Immunities
Page 583: Add as Item 4 to Note:
The Court has since explained that “qualified immunity shields . . . officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was “clearly established” at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 179 L. Ed. 2d 1149 (2011). Al-Kidd applied these principles.
The facts of the case also reflect a difficulty in their application.
In al-Kidd an American citizen filed suit against the then-Attorney General, alleging that
the Attorney General had violated his constitutional rights by abusing the detention power under
the federal material witness statute. (That statute authorizes arrest of witnesses whose testimony
might otherwise be lost, for example, because of flight.) Al-Kidd alleged that the Attorney
General had ordered federal prosecutors and law enforcement personnel to detain persons under
the statute even though he had no intention of ever calling them as witnesses, as a way of
detaining persons suspected of terrorism but against whom there was insufficient evidence.
Ashcroft pleaded qualified immunity as a defense, which the Court of Appeals rejected.
A unanimous Supreme Court reversed the appellate court. Writing for five justices,
Justice Scalia explained the “clearly established right” requirement as follows: “We do not
require a case directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” So understood, he chided the Court of Appeals for
finding such a clearly established right based on unsupported dictum from a footnote in a district
court opinion, irrelevant cases, and broad language about the underlying purpose of the Fourth
Amendment. On the last point, Justice Scalia noted that the Court has “repeatedly told courts . . .
not to define clearly established law at a high level of generality.” He concluded as follows,
referring to the eight Court of Appeals judges who had called for en banc rehearing of the
appellate panel’s decision in this case:
Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions. When properly
applied, it protects all but the plainly incompetent or those who knowingly violate
129
the law. Ashcroft deserves neither label, not least because eight Court of Appeals
judges agreed with his judgment in a case of first impression.
Justice Kennedy concurred. In a part of his opinion joined by no other justice, he raised the
problem of how an official occupying a “national office” can determine whether a right is clearly
established, given that federal appellate courts often disagree with each other on the correct
interpretation of a legal provision:
The official with responsibilities in many jurisdictions may face ambiguous and
sometimes inconsistent sources of decisional law. While it may be clear that one
Court of Appeals has approved a certain course of conduct, other Courts of
Appeals may have disapproved it, or at least reserved the issue.
To resolve this problem, Justice Kennedy wrote the following:
When faced with inconsistent legal rules in different jurisdictions, national
officeholders should be given some deference for qualified immunity purposes, at
least if they implement policies consistent with the governing law of the
jurisdiction where the action is taken. . . .
A national officeholder intent on retaining qualified immunity need not abide by
the most stringent standard adopted anywhere in the United States. And the
national officeholder need not guess at when a relatively small set of appellate
precedents have established a binding legal rule. If national officeholders were
subject to personal liability whenever they confronted disagreement among
appellate courts, those officers would be deterred from full use of their legal
authority. The consequences of that deterrence must counsel caution by the
Judicial Branch, particularly in the area of national security.
Justice Kennedy concluded:
[N]ationwide security operations should not have to grind to a halt even when an
appellate court finds those operations unconstitutional. The doctrine of qualified
immunity does not so constrain national officeholders entrusted with urgent
responsibilities.
Justice Ginsburg, joined by Justices Breyer and Sotomayor, concurred in the judgment,
agreeing with the Court’s qualified immunity holding but questioning its analysis of the
underlying Fourth Amendment issue. Justice Sotomayor, joined by Justices Ginsburg and
Breyer, concurred in the judgment. She also agreed with the Court’s qualified immunity
holding, but she criticized the Court’s decision to analyze the underlying Fourth Amendment
issue, describing it as unnecessary to resolve the case. Justice Kagan did not participate.
130
D.
DEFINING THE RELATIONSHIP BETWEEN CONGRESS AND
THE BUREAUCRACY
Page 599: Add after Whitman v. American Trucking:
Note: “Sailing Close to the Wind” On the Non-Delegation Doctrine
The first item in the note immediately preceding the Whitman case [Casebook p. 593]
provided an example of the Court construing a statute narrowly in order to avoid a reading that
raised a non-delegation issue. In Reynolds v. United States, 181 L.Ed.2d 935 (2012), the nondelegation concern helped convince two justices to favor one reading of a statute over another.
Reynolds concerned the interpretation of a federal law requiring sex offenders to update
their registration with state authorizes when they travel. The statute defined “sex offender” to
include offenders who were convicted before the date the statute became effective. But the
statute also said that the Attorney General “shall have the authority to specify the applicability of
the [registration] requirements” to such pre-statute offenders. 42 U.S.C. § 16913(d). The
Attorney General promulgated a regulation setting forth registration procedures for such
offenders.
Reynolds, one such pre-statute offender, upon failing to comply with those procedures,
sued. Among other things, he claimed that § 16913(d) violated the non-delegation doctrine by
delegating legislative power to the Attorney General. The appellate court eventually ruled
against Reynolds without reaching that claim, concluding that the statute automatically applied
to such offenders without the Attorney General having to take any allegedly legislative action.
The Supreme Court reversed. Writing for seven justices, Justice Breyer concluded that,
as a matter of statutory interpretation, the provision in question was best read as not applying to
pre-statute offenders until the Attorney General so specified. The majority opinion did not
discuss the non-delegation claim, presumably because the lower appellate court had not passed
on it. The Court remanded the case to the lower courts, where, presumably, Reynolds would be
free to renew that claim.
Justice Scalia, joined by Justice Ginsburg, dissented. He too focused mainly on the
statutory interpretation issue, concluding that the provision was better read as “conferring on the
Attorney General an authority to make exceptions to the otherwise applicable registration
requirements.” But in addition he observed that the majority’s reading, which gave the Attorney
General the authority to decide to whom a criminal statute applied, raised a non-delegation
concern:
131
[It] is not entirely clear to me that Congress can constitutionally leave it to the
Attorney General to decide—with no statutory standard whatever governing his
discretion—whether a criminal statute will or will not apply to certain individuals.
That seems to me sailing close to the wind with regard to the principle that
legislative powers are nondelegable, see Whitman v. American Trucking Assns.,
Inc., 531 U.S. 457 (2001) [Casebook p. 594], and “[i]t is our settled policy to
avoid an interpretation of a federal statute that engenders constitutional issues if a
reasonable alternative interpretation poses no constitutional question.” Construing
the Act to give the Attorney General the power to reduce congressionally imposed
requirements fits that bill, because such a power is little more than a formalized
version of the time-honored practice of prosecutorial discretion.
132
CHAPTER V: DUE PROCESS
C.
RIGHTS OR LIBERTIES ENTITLED TO
PROTECTION UNDER THE DUE PROCESS CLAUSE
HEIGHTENED
Page 792: Add after Note: A Right to Marry a Person of the Same Sex:
This past term the Court considered Perry but did not reach the merits of the case.
Hollingsworth v. Perry, 2013 U.S. Lexis 4919. The appellate court had affirmed the district
court’s holding but on alternate grounds, after deciding a standing challenge, raised by the
plaintiffs who had won before the district court. The appellate court reasoned that Proposition 8
violated the Equal Protection Clause because it withdrew from same-sex couples the right to
have their committed relationships recognized with the designation of “marriage,” previously
guaranteed by the state constitution, while leaving in place the rights and responsibilities that
were identical to those of married spouses. The court stated that the measure did not further the
interests advanced for its enactment, because it had no effect “on the rights of same-sex couples
to raise children or on the procreative practices of other couples.” Perry v. Brown, 671 F. 3d
1052 (9th Cir. 2012). The court concluded that “Proposition 8 serves no purpose, and has no
effect, other than to lessen the status and human dignity of gays and lesbians in California, and to
officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
Citing to Romer v. Evans, the court nonetheless based its ruling on the “unique and strictly
limited effect of Proposition 8,” which was to take away an “important and legally significant
designation.”
The Supreme Court declined to decide the case on its merits, holding, instead, that the
appellees lacked standing. The Court’s ruling vacated the appellate court’s decision and left the
district court’s decision intact. See this supplement’s entry for page 182, on standing, under
Chapter I.
In United States v. Windsor, 2013 U.S. LEXIS 4921, the Court struck down a provision
in a federal statute, the Defense of Marriage Act, that prohibited the federal government from
recognizing same-sex marriages for purposes of federal law. Justice Kennedy’s opinion, joined
by Justices Ginsburg, Breyer, Sotomayor and Kagan, concluded that the statute reflected animus
towards same-sex marriages and, thus, could not survive constitutional scrutiny. The opinion,
however, rests both on Lawrence v. Texas and Romer v. Evans.
Windsor generated three strong dissents by Chief Justice Roberts, Justice Scalia and
Justice Alito. Justice Thomas joined Justice Scalia’s dissent in full, and Justice Alito’s dissent in
part.
You can read the opinion and dissents in the supplement in Chapter VI, section H, the
entry for Casebook, page 1251.
133
D.
PROCEDURAL DUE PROCESS
Page 936: Add after Notes and Questions:
In Turner v. Rogers, 180 L. Ed. 2d 452 (2011), the Court applied the Mathews v. Eldridge
factors to determine whether an indigent noncustodial parent facing incarceration in a civil
contempt proceeding for failing to pay child support was entitled to court-appointed counsel.
Turner, the noncustodial parent, had been ordered to pay $51.73 per week to the custodial parent.
He had been held to be in contempt five times and had been jailed for up to six months prior to
the contempt order before the Court. In the case before the Court, Turner had served a year in
prison after being found to be in contempt for failure to pay $5,728.76 in child support at a brief
hearing. Neither parent was represented by counsel at the hearing.
Justice Breyer, writing for a five-justice majority, held that the Due Process Clause did
not guarantee a right to court-appointed counsel in child support contempt proceedings, where
the parent entitled to receive the support was not represented by counsel. However, the Court
stated, more procedures than those provided by the court below were necessary if courtappointed counsel was not made available.
Justice Thomas, joined by Justice Scalia, and in part by Chief Justice Roberts and Justice
Alito, dissented. He reasoned that to read the Due Process Clause to provide protection in this
context rendered the Sixth Amendment right to counsel superfluous. Moreover, he rejected the
majority’s holding that additional procedural safeguards were required because the issue had not
been raised by the parties but in the amicus brief filed by the U.S. Government.
In explaining its decision, the Court reviewed prior cases on the right to court-appointed
counsel in civil proceedings.
TURNER v. ROGERS
180 L. Ed. 2d 452 (2011)
Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor and
Kagan, J.J. joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in
which Roberts, C.J. and Alito, J.J. joined as to Parts I-B and II.
***
We must decide whether the Due Process Clause grants an indigent defendant, such as Turner,
a right to state-appointed counsel at a civil contempt proceeding, which may lead to his
incarceration. This Court’s precedents provide no definitive answer to that question. This Court
134
has long held that the Sixth Amendment grants an indigent defendant the right to state-appointed
counsel in a criminal case. Gideon v. Wainwright, 372 U. S. 335 (1963). And we have held that
this same rule applies to criminal contempt proceedings (other than summary proceedings).
But the Sixth Amendment does not govern civil cases. Civil contempt differs from criminal
contempt in that it seeks only to “coerc[e] the defendant to do” what a court had previously
ordered him to do. A court may not impose punishment “in a civil contempt proceeding when it is
clearly established that the alleged contemnor is unable to comply with the terms of the order.”
Hicks v. Feiock, 485 U. S. 624, n. 9 (1988). And once a civil contemnor complies with the
underlying order, he is purged of the contempt and is free.
Consequently, the Court has made clear (in a case not involving the right to counsel) that,
where civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State
to provide fewer procedural protections than in a criminal case. Id. at 637–641 (State may place
the burden of proving inability to pay on the defendant).
This Court has decided only a handful of cases that more directly concern a right to counsel in
civil matters. And the application of those decisions to the present case is not clear. On the one
hand, the Court has held that the Fourteenth Amendment requires the State to pay for
representation by counsel in a civil “juvenile delinquency” proceeding (which could lead to
incarceration). In re Gault, 387 U. S. 1, 35–42 (1967). Moreover, in Vitek v. Jones, 445 U. S. 480,
496–497 (1980), a plurality of four Members of this Court would have held that the Fourteenth
Amendment requires representation by counsel in a proceeding to transfer a prison inmate to a
state hospital for the mentally ill. Further, in Lassiter v. Department of Social Servs. Of Durham
Cty., 452 U. S. 18 (1981), a case that focused upon civil proceedings leading to loss of parental
rights, the Court wrote that the
“pre-eminent generalization that emerges from this Court’s precedents on an
indigent’s right to appointed counsel is that such a right has been recognized to
exist only where the litigant may lose his physical liberty if he loses the
litigation.” Id. at 25.
And the Court then drew from these precedents “the presumption that an indigent litigant has a
right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Id.
at 26–27.
On the other hand, the Court has held that a criminal offender facing revocation of probation
and imprisonment does not ordinarily have a right to counsel at a probation revocation hearing.
Gagnon v. Scarpelli, 411 U. S. 778 (1973); see also Middendorf v. Henry, 425 U. S. 25 (1976)
(no due process right to counsel in summary court-martial proceedings). And, at the same time,
Gault, Vitek, and Lassiter are readily distinguishable. The civil juvenile delinquency proceeding
135
at issue in Gault was “little different” from, and “comparable in seriousness” to, a criminal
prosecution. In Vitek, the controlling opinion found no right to counsel. 445 U. S. at 499–500
(Powell, J., concurring in part) (assistance of mental health professionals sufficient). And the
Court’s statements in Lassiter constitute part of its rationale for denying a right to counsel in that
case. We believe those statements are best read as pointing out that the Court previously had
found a right to counsel “only” in cases involving incarceration, not that a right to counsel exists
in all such cases (a position that would have been difficult to reconcile with Gagnon).
***
We here consider an indigent’s right to paid counsel at such a contempt proceeding. It is a civil
proceeding. And we consequently determine the “specific dictates of due process” by examining
the “distinct factors” that this Court has previously found useful in deciding what specific
safeguards the Constitution’s Due Process Clause requires in order to make a civil proceeding
fundamentally fair. Mathews v. Eldridge, 424 U. S. 319, 335 (1976) (considering fairness of an
administrative proceeding). As relevant here those factors include (1) the nature of “the private
interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that
interest with and without “additional or substitute procedural safeguards,” and (3) the nature and
magnitude of any countervailing interest in not providing “additional or substitute procedural
requirement[s].” Ibid.
The “private interest that will be affected” argues strongly for the right to counsel that Turner
advocates. That interest consists of an indigent defendant’s loss of personal liberty through
imprisonment. The interest in securing that freedom, the freedom “from bodily restraint,” lies “at
the core of the liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U. S. 71,
80 (1992). And we have made clear that its threatened loss through legal proceedings demands
“due process protection.” Addington v. Texas, 441 U. S. 418, 425 (1979).
Given the importance of the interest at stake, it is obviously important to assure accurate
decisionmaking in respect to the key “ability to pay” question. Moreover, the fact that ability to
comply marks a dividing line between civil and criminal contempt . . . reinforces the need for
accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as
civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural
protections (including counsel) that the Constitution would demand in a criminal proceeding. See,
e.g., Dixon, 509 U. S., at 696 (proof beyond a reasonable doubt, protection from double
jeopardy); Codispoti v. Pennsylvania, 418 U. S. 506, 512–513, 517 (1974) (jury trial where the
result is more than six months’ imprisonment). And since 70% of child support arrears
nationwide are owed by parents with either no reported income or income of $10,000 per year or
less, the issue of ability to pay may arise fairly often. See E. Sorensen, L. Sousa, & S. Schaner,
Assessing Child Support Arrears in Nine Large States and the Nation 22 (2007) (prepared by The
136
Urban Institute), online at http://aspe.hhs.gov/hsp/07/assessing-CS-debt/report.pdf (as visited
June 16, 2011, and available in Clerk of Court’s case file); id., at 23 (“research suggests that
many obligors who do not have reported quarterly wages have relatively limited resources”);
Patterson, Civil Contempt and the Indigent Child Support Obligor: The Silent Return of Debtor’s
Prison, 18 Cornell J. L. & Pub. Pol’y 95, 117 (2008). See also, e.g., McBride v. McBride, 334
N. C. 124, 131, n. 4, 431 S. E. 2d 14, 19, n. 4 (1993) (surveying North Carolina contempt orders
and finding that the “failure of trial courts to make a determination of a contemnor’s ability to
comply is not altogether infrequent”).
On the other hand, the Due Process Clause does not always require the provision of counsel in
civil proceedings where incarceration is threatened. And in determining whether the Clause
requires a right to counsel here, we must take account of opposing interests, as well as consider
the probable value of “additional or substitute procedural safeguards.” Mathews, supra at 335.
Doing so, we find three related considerations that, when taken together, argue strongly
against the Due Process Clause requiring the State to provide indigents with counsel in every
proceeding of the kind before us.
First, the critical question likely at issue in these cases concerns, as we have said, the
defendant’s ability to pay. That question is often closely related to the question of the defendant’s
indigence. But when the right procedures are in place, indigence can be a question that in many—
but not all—cases is sufficiently straightforward to warrant determination prior to providing a
defendant with counsel, even in a criminal case. Federal law, for example, requires a criminal
defendant to provide information showing that he is indigent, and therefore entitled to statefunded counsel, before he can receive that assistance. See 18 U. S. C. §3006A(b).
Second, sometimes, as here, the person opposing the defendant at the hearing is not the
government represented by counsel but the custodial parent un represented by counsel. See Dept.
of Health and Human Services, Office of Child Support Enforcement, Understanding Child
Support Debt: A Guide to Exploring Child Support Debt in Your State 5, 6 (2004) (51% of
nationwide arrears, and 58% in South Carolina, are not owed to the government). The custodial
parent, perhaps a woman with custody of one or more children, may be relatively poor,
unemployed, and unable to afford counsel. Yet she may have encouraged the court to enforce its
order through contempt. Cf. Tr. Contempt Proceedings (Sept. 14, 2005), App. 44a–45a (Rogers
asks court, in light of pattern of nonpayment, to confine Turner). She may be able to provide the
court with significant information. Cf. id. (Rogers describes where Turner lived and worked).
And the proceeding is ultimately for her benefit.
A requirement that the State provide counsel to the noncustodial parent in these cases could
create an asymmetry of representation that would “alter significantly the nature of the
137
proceeding.” Gagnon, supra, at 787. Doing so could mean a degree of formality or delay that
would unduly slow payment to those immediately in need. And, perhaps more important for
present purposes, doing so could make the proceedings less fair overall, increasing the risk of a
decision that would erroneously deprive a family of the support it is entitled to receive. The needs
of such families play an important role in our analysis.
Third, as the Solicitor General points out, there is available a set of “substitute procedural
safeguards,” Mathews, 424 U. S. at 335, which, if employed together, can significantly reduce the
risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of
the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1)
notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2)
the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at
the hearing for the defendant to respond to statements and questions about his financial status,
(e.g., those triggered by his responses on the form); and (4) an express finding by the court that
the defendant has the ability to pay. See Tr. Of Oral Arg. 26–27; Brief for United States as
Amicus Curiae 23–25. In presenting these alternatives, the Government draws upon considerable
experience in helping to manage statutorily mandated federal-state efforts to enforce child support
orders. It does not claim that they are the only possible alternatives, and this Court’s cases
suggest, for example, that sometimes assistance other than purely legal assistance (here, say, that
of a neutral social worker) can prove constitutionally sufficient. But the Government does claim
that these alternatives can assure the “fundamental fairness” of the proceeding even where the
State does not pay for counsel for an indigent defendant.
While recognizing the strength of Turner’s arguments, we ultimately believe that the three
considerations we have just discussed must carry the day. In our view, a categorical right to
counsel in proceedings of the kind before us would carry with it disadvantages (in the form of
unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority
over the alternatives that we have mentioned. We consequently hold that the Due Process Clause
does not automatically require the provision of counsel at civil contempt proceedings to an
indigent individual who is subject to a child support order, even if that individual faces
incarceration (for up to a year). In particular, that Clause does not require the provision of counsel
where the opposing parent or other custodian (to whom support funds are owed) is not
represented by counsel and the State provides alternative procedural safeguards equivalent to
those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to
present, and to dispute, relevant information, and court findings).
We do not address civil contempt proceedings where the underlying child support payment is
owed to the State, for example, for reimbursement of welfare funds paid to the parent with
custody. Those proceedings more closely resemble debt-collection proceedings. The government
is likely to have counsel or some other competent representative. Cf. Johnson v. Zerbst, 304 U. S.
138
458, 462–463 (1938) (“[T]he average defendant does not have the professional legal skill to
protect himself when brought before a tribunal with power to take his life or liberty, wherein the
prosecution is presented by experienced and learned counsel ” (emphasis added)). And this kind
of proceeding is not before us. Neither do we address what due process requires in an unusually
complex case where a defendant “can fairly be represented only by a trained advocate.” Gagnon,
411 U. S. at 788.
IV
The record indicates that Turner received neither counsel nor the benefit of alternative
procedures like those we have described. He did not receive clear notice that his ability to pay
would constitute the critical question in his civil contempt proceeding. No one provided him with
a form (or the equivalent) designed to elicit information about his financial circumstances. The
court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding”
section of the contempt order blank. The court nonetheless found Turner in contempt and ordered
him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process
Clause.
We vacate the judgment of the South Carolina Supreme Court and remand the case for further
proceedings not inconsistent with this opinion.
Justice Thomas, with whom Justice Scalia joins, and with whom The Chief Justice and Justice
Alito join as to Parts I–B and II, dissenting.
The Due Process Clause of the Fourteenth Amendment does not provide a right to
appointed counsel for indigent defendants facing incarceration in civil contempt proceedings.
Therefore, I would affirm. Although the Court agrees that appointed counsel was not required in
this case, it nevertheless vacates the judgment of the South Carolina Supreme Court on a
different ground, which the parties have never raised. Solely at the invitation of the United States
as amicus curiae, the majority decides that Turner’s contempt proceeding violated due process
because it did not include “alternative procedural safeguards.” Consistent with this Court’s longstanding practice, I would not reach that question.
I
The only question raised in this case is whether the Due Process Clause of the Fourteenth
Amendment creates a right to appointed counsel for all indigent defendants facing incarceration
in civil contempt proceedings. It does not.
A
Under an original understanding of the Constitution, there is no basis for concluding that
the guarantee of due process secures a right to appointed counsel in civil contempt proceedings. .
139
..
***
B
Even under the Court’s modern interpretation of the Constitution, the Due Process Clause
does not provide a right to appointed counsel for all indigent defendants facing incarceration in
civil contempt proceedings. Such a reading would render the Sixth Amendment right to
counsel—as it is currently understood—superfluous. Moreover, it appears that even cases
applying the Court’s modern interpretation of due process have not understood it to categorically
require appointed counsel in circumstances outside those otherwise covered by the Sixth
Amendment.
1
Under the Court’s current jurisprudence, the Sixth Amendment entitles indigent defendants
to appointed counsel in felony cases and other criminal cases resulting in a sentence of
imprisonment. Turner concedes that, even under these cases, the Sixth Amendment does not
entitle him to appointed counsel . . . . He argues instead that “the right to the assistance of
counsel for persons facing incarceration arises not only from the Sixth Amendment, but also
from the requirement of fundamental fairness under the Due Process Clause of the Fourteenth
Amendment.” Brief for Petitioner 28. In his view, this Court has relied on due process to
“rejec[t] formalistic distinctions between criminal and civil proceedings, instead concluding that
incarceration or other confinement triggers the right to counsel.”
But if the Due Process Clause created a right to appointed counsel in all proceedings with
the potential for detention, then the Sixth Amendment right to appointed counsel would be
unnecessary. Under Turner’s theory, every instance in which the Sixth Amendment guarantees a
right to appointed counsel is covered also by the Due Process Clause. The Sixth Amendment,
however, is the only constitutional provision that even mentions the assistance of counsel; the
Due Process Clause says nothing about counsel. Ordinarily, we do not read a general provision
to render a specific one superfluous. . . . The fact that one constitutional provision expressly
provides a right to appointed counsel in specific circumstances indicates that the Constitution
does not also sub silentio provide that right far more broadly in another, more general, provision.
...
2
Moreover, contrary to Turner’s assertions, the holdings in this Court’s due process
decisions regarding the right to counsel are actually quite narrow. The Court has never found in
the Due Process Clause a categorical right to appointed counsel outside of criminal prosecutions
or proceedings “functionally akin to a criminal trial.” Gagnon v. Scarpelli, 411 U. S. 778, 789, n.
12 (1973). This is consistent with the conclusion that the Due Process Clause does not expand
140
the right to counsel beyond the boundaries set by the Sixth Amendment.
After countless factors weighed, mores evaluated, and practices surveyed, the Court has
not determined that due process principles of fundamental fairness categorically require counsel
in any context outside criminal proceedings. Even when the defendant’s liberty is at stake, the
Court has not concluded that fundamental fairness requires that counsel always be appointed if
the proceeding is not criminal. Indeed, the only circumstance in which the Court has found that
due process categorically requires appointed counsel is juvenile delinquency proceedings, which
the Court has described as “functionally akin to a criminal trial.”
Despite language in its opinions that suggests it could find otherwise, the Court’s
consistent judgment has been that fundamental fairness does not categorically require appointed
counsel in any context outside of criminal proceedings. The majority is correct, therefore, that
the Court’s precedent does not require appointed counsel in the absence of a deprivation of
liberty. But a more complete description of this Court’s cases is that even when liberty is at
stake, the Court has required appointed counsel in a category of cases only where it would have
found the Sixth Amendment required it—in criminal prosecutions.
II
The majority agrees that the Constitution does not entitle Turner to appointed counsel. But
at the invitation of the Federal Government as amicus curiae, the majority holds that his
contempt hearing violated the Due Process Clause for an entirely different reason, which the
parties have never raised: The family court’s procedures “were in adequate to ensure an accurate
determination of [Turner’s] present ability to pay.” Brief for United States as Amicus Curiae 19. .
. . I would not reach this issue.
There are good reasons not to consider new issues raised for the first and only time in an
amicus brief. As here, the new issue may be outside the question presented. See Pet. For Cert. I
(“Whether . . . an indigent defendant has no constitutional right to appointed counsel at a civil
con- tempt proceeding that results in his incarceration”) . . . . As here, the new issue may not
have been addressed by, or even presented to, the state court. As here, the parties may not have
preserved the issue, leaving the record undeveloped. As here, the parties may not address the
new issue in this Court, leaving its boundaries untested. Finally, as here, a party may even
oppose the position taken by its allegedly supportive amicus. See Tr. Of Oral Arg. 7–12, 14–15
(Turner’s counsel rejecting the Government’s argument that any procedures short of a
categorical right to appointed counsel could satisfy due process); Reply Brief for Petitioner 14–
15.
141
Accordingly, it is the wise and settled general practice of this Court not to consider an issue
in the first instance, much less one raised only by an amicus. . . .
The majority errs in moving beyond the question that was litigated below, decided by the
state courts, petitioned to this Court, and argued by the parties here, to resolve a
question raised exclusively in the Federal Government’s amicus brief. . . .
. . . The Federal Government’s interest in States’ child support enforcement efforts may
give the Government a valuable perspective, but it does not overcome the strong reasons behind
the Court’s practice of not considering new issues, raised and addressed only by an amicus, for
the first time in this Court.
III
For the reasons explained in the previous two sections, I would not engage in the
majority’s balancing analysis. But there is yet another reason not to undertake the Mathews v.
Eldridge balancing test here. That test weighs an individual’s interest against that of the
Government. It does not account for the interests of the child and custodial parent, who is usually
the child’s mother. But their interests are the very reason for the child support obligation and the
civil contempt proceedings that enforce it.
When fathers fail in their duty to pay child support, children suffer. Nonpayment or
inadequate payment can press children and mothers into poverty.
The interests of children and mothers who depend on child support are notoriously difficult
to protect. Less than half of all custodial parents receive the full amount of child support ordered;
24 percent of those owed support receive nothing at all. In South Carolina alone, more than
139,000 non-custodial parents defaulted on their child support obligations during 2008, and at
year end parents owed $1.17 billion in total arrears.
That some fathers subject to a child support agreement report little or no income “does not
mean they do not have the ability to pay any child support.” Rather, many “deadbeat dads” “opt
to work in the underground economy” to “shield their earnings from child support enforcement
efforts.” Mich. Sup. Ct., Task Force Report: The Underground Economy 10 (2010) (hereinafter
Underground Economy). To avoid attempts to garnish their wages or otherwise enforce the
support obligation, “deadbeats” quit their jobs, jump from job to job, become self-employed,
work under the table, or engage in illegal activity.
Because of the difficulties in collecting payment through traditional enforcement
142
mechanisms, many States also use civil contempt proceedings to coerce “deadbeats” into paying
what they owe. The States that use civil contempt with the threat of detention find it a “highly
effective” tool for collecting child support when nothing else works. . . .
. . . Although I think that the majority’s analytical framework does not account for the
interests that children and mothers have in effective and flexible methods to secure payment, I do
not pass on the wisdom of the majority’s preferred procedures. Nor do I address the wisdom of
the State’s decision to use certain methods of enforcement. Whether “deadbeat dads” should be
threatened with incarceration is a policy judgment for state and federal lawmakers, as is the
entire question of government involvement in the area of child support. This and other
repercussions of the shift away from the nuclear family are ultimately the business of the
policymaking branches.
***
Note: A Right to Counsel in Removal Proceedings?
The Supreme Court treats deportation or removal hearings as civil in nature. Detention
pending removal or deportation is permitted to ensure that the person appears at the removal
hearing and to ensure that if they are ordered removed from the United States the removal is
carried out. As a practical matter, the government detains thousands of noncitizens throughout
the country, often in state prison facilities, pending removal hearings.
The federal statute that stipulates the process for removal hearings grants noncitizens
facing removal a statutory right to counsel but not at government expense. Noncitizens facing
deportation are not accorded the right to counsel at government expense, regardless of the length
of time they have resided in the United States or the strength of their ties to the United States;
regardless of whether they were admitted as permanent residents or whether they entered the
country without inspection; and regardless whether they are making a claim for asylum because
they fear being returned to a country that will torture or persecute them. In many cases they are
subject to mandatory detention during the course of their removal proceedings. In 2007, 42
percent of noncitizens in removal hearings were detained.
Most noncitizens in removal hearings are unrepresented by counsel because they cannot
afford to hire counsel and cannot find one to represent them pro bono. For fiscal year 2007 the
Department of Justice reported that counsel represented less than half of persons whose removals
were completed that year. Does Turner have any application in the removal context? How may
Turner be distinguished from deportations? What kind of cases might justify an argument that a
noncitizen is entitled to counsel at government’s expense in a removal hearing?
143
CHAPTER VI: THE
EQUALITY CONCEPTS
D.
EQUAL
PROTECTION
CLAUSE:
RACE-COUNSCIOUS AFFIRMATIVE ACTION
Page 1106: Add at the end of the Note: What Constitutes a Narrowly Tailored Admissions
Policy:
In Fisher v. University of Texas at Austin, 2013 U.S. LEXIS 4701, the Court applied
Grutter (Casebook, page 1081) and Gratz (Casebook, page 1103) to vacate an appellate court’s
decision that the University of Texas’s use of race as one factor in its undergraduate admissions
program did not violate the Equal Protection Clause. Justice Kennedy, joined by Chief Justice
Roberts and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, concluded that the appellate
court had not properly applied strict scrutiny to the plan, as required by Grutter, Gratz, and
Regents of Univ. of California v. Bakke (Casebook, page 1057). The admissions process at the
University of Texas before the Court, used three methods of admitting students: the Academic
Index, a computation based on the student’s high school class rank, standardized test scores, and
the extent to which the applicant exceeded UT’s required high school curriculum; the Top Ten
Percent law, granting automatic admission to all students in the top 10% of their class at high
schools in Texas that comply with certain standards; and the Personal Achievement Index, used
with the Academic Index, designed to increase minority enrollment by considered the overall
individual contribution of each candidate, as well as their race and ethnicity, as a component of
each candidate’s Personal Achievement Index score. Race was not assigned an explicit
numerical value, but, the majority noted, “it is undisputed that race is a meaningful factor.” As
the Court explained:
Once applications have been scored, they are plotted on a grid with the Academic
Index on the x-axis and the Personal Achievement Index on the y-axis. On that
grid students are assigned to so-called cells based on their individual scores. All
students in the cells falling above a certain line are admitted. All students below
the line are not. Each college—such as Liberal Arts or Engineering—admits
students separately. So a student is considered initially for her first-choice college,
then for her second choice, and finally for general admission as an undeclared
major.
144
The University, as well as the Court, treated the Top Ten Percent Law as a race-neutral
admissions policy because although the intent of the law was to increase diversity at the
University of Texas system, the program did not consider race or ethnicity at all in making
admissions decisions. The University had adopted the consideration of race in the “Personal
Achievement Index’ program after the Grutter decision, the appellate court’s opinion in Fisher
explained, because it determined that 90% of its undergraduate smaller classes (between 5 and
24 students) “had one or zero African-American students; 45% had one or zero Asian-American
students and 43% had one or zero Hispanic students.” Further, UT’s survey of undergraduates
about diversity on campus and in the classroom revealed that “[m]inority students reported
feeling isolated, and a majority of all students felt there was ‘insufficient minority representation’
in classrooms for ‘the full benefits of diversity to occur.’” The appellate court interpreted
Grutter to allow deference to the University’s determination that it needed classroom diversity to
achieve its educational mission. Further, the appellate court reasoned, the policy used by UT in
the personal achievement score relied on race only as one of many factors, none of which were
considered individually or given separate numerical values, and considered race as a part of the
holistic review approved by the Court in Grutter. In turn, the personal achievement score was
only a part of the total Personal Achievement Index. Thus the court had concluded, the
University had demonstrated “serious, good faith consideration” before deciding that it had not
achieved a critical mass of students and needed to resort to race-conscious measures. “Rather
than second-guess the merits of the University’s decision, a task we are ill-equipped to perform,
we instead scrutinize the University’s decisionmaking process to ensure that its decision to adopt
a race-conscious admissions policy followed from the good faith consideration Grutter requires.”
Justice Kennedy’s opinion agreed with the appellate court that Grutter allowed the
reviewing court to defer to the University’s decision that diversity was essential to its education
mission, but emphasized that no deference was owed the University in determining whether the
method chosen to achieve diversity was sufficiently narrowly tailored. The Court’s opinion
rejected the appellate court’s view that courts could properly presume good faith on the
University’s part, and require persons challenging race-conscious admissions programs that did
not employ explicit quotas to rebut the presumption. Instead, the Court emphasized, it was the
University’s burden to prove that its race conscious admissions plan was narrowly tailored. The
Court vacated the appellate court’s opinion and remanded, noting as follows:
Unlike Grutter, which was decided after trial, this case arises from cross-motions
for summary judgment. In this case, as in similar cases, in determining whether
summary judgment in favor of the University would be appropriate, the Court of
Appeals must assess whether the University has offered sufficient evidence that
would prove that its admissions program is narrowly tailored to obtain the
educational benefits of diversity. Whether this record—and not “simple . . .
145
assurances of good intention,” Croson —is sufficient is a question for the Court of
Appeals in the first instance.
Strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’” Adarand; see also
Grutter. But the opposite is also true. Strict scrutiny must not be strict in theory
but feeble in fact. In order for judicial review to be meaningful, a university must
make a showing that its plan is narrowly tailored to achieve the only interest that
this Court has approved in this context: the benefits of a student body diversity
that “encompasses a . . . broa[d] array of qualifications and characteristics of
which racial or ethnic origin is but a single though important element.”
Bakke.
Justice Kagan took no part in the consideration or decision orf the case.
Justice Scalia concurred and noted that petitioner had not requested that Grutter be
overruled, and thus joined the Court’s opinion in full.
Justice Thomas concurred and joined the majority opinion, agreeing that the appellate
court had not applied strict scrutiny. He wrote separately to explain that he would overrule
Grutter and hold that a state’s use of race in higher education admissions decisions is
categorically prohibited by the Equal Protection Clause.
Justice Ginsburg dissented on the grounds that the appellate court had correctly applied
Grutter. Justice Ginsburg emphasized that the majority’s approach to the narrowly tailored
inquiry was flawed: race neutral alternatives that are the result of race consciousness are not
really race neutral. “[O]nly an ostrich could regard the supposedly neutral alternatives [the Top
Ten Percent Plan] as race unconscious.” She noted that the percentage plan was designed to
accomplish racial and ethnic diversity because the legislature realized Texas had many racially
segregated neighborhoods and schools. To Justice Ginsburg, government “need not be blind to
the lingering effects of ‘an overtly discrimination past,’, the legacy of ‘centuries of lawsanctioned inequality.” She noted, “[a]mong constitutionally permissible options, I remain
convinced, ‘those that candidly disclose their consideration of race [are] preferable to those that
conceal it.’” She concluded that the policy satisfied Grutter because it “flexibly considers race
only as a ‘factor of a factor of a factor of a factor’ in the calculus; followed a yearlong review
through which the University reached the reasonable, good-faith judgment that supposedly raceneutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits
of student-body diversity; and is subject to periodic review to ensure that the consideration of
race remains necessary and proper to achieve the University’s educational objectives.”
146
Note: The Constitutionality of Bans on Government Consideration of Race
Constitutional cases considering government use of race usually involve challenges to
government race consciousness. However, in Schuette v. BAMN, 188 L.Ed.2d. 613 (2014), the
Court considered the constitutionality of a state’s decision to ban the use of race in its decision
making. Schuette upheld an amendment to the Michigan Constitution barring public institutions
from considering race in employment, education, and contracting. The plaintiffs, including
students, faculty and prospective applicants to Michigan public universities, sued the state,
arguing that the amendment violated the equal protection clause.
Justice Kennedy, writing for a three-justice plurality, concluded that federal courts lacked
the authority to set aside state laws prohibiting racial preferences, because the Constitution
commits this policy determination to the states. He rejected the plaintiffs’ and the lower court’s
reliance on earlier Supreme Court cases that found equal protection violations when states
restructured their governments to restrict the ability of local government entities to engage in
race-conscious action or otherwise legislate on racial issues. Chief Justice Roberts, who joined
the plurality opinion, also wrote separately to respond to the dissent.
Justice Breyer wrote an opinion concurring in the judgment that also distinguished those
earlier cases, but on a narrower ground. Justice Scalia, joined by Justice Thomas, also concurred
only in the judgment. His opinion agreed with the dissent that those cases could not be
distinguished, but, unlike the dissent, he called for their overruling.
Justice Sotomayor, joined by Justice Ginsburg, dissented. Justice Sotomayor found the
case governed by the earlier decisions the plurality distinguished. She rejected the Court’s view
that it lacked authority to invalidate the amendment, reasoning that “our role as judges includes
policing the process of self-government and stepping in when necessary to secure the
constitutional guarantee of equal protection.” Relying on those earlier cases, she would have
found that Michigan voters had “changed the basic rules of the political process in the state in a
manner that uniquely disadvantaged racial minorities.” Justice Kagan did not participate in the
case.
147
E.
GENDER-BASED DISCRIMINATION
3.
“Real” Differences or Stereotypes?
Page 1187: Add after Nguyen v. INS:
Note: Derivative Citizenship, Gender Discrimination and Real Differences
This past term the Court again considered the statutory framework that distinguishes
between nonmarital U.S. citizen-fathers and nonmarital U.S. citizen-mothers in determining
whether their children born abroad derive U.S. citizenship. In Flores-Villar v. United States, 180
L.Ed.2d 222 (2011), an equally-divided Court affirmed per curiam a judgment by the Ninth
Circuit that the statutory provision at issue in the case did not constitute unconstitutional gender
discrimination under Nguyen. With Justice Kagan recusing herself, the Court split four to four
on the case.
The provision at issue made it impossible for the nonmarital U.S. citizen-father to pass
U.S. citizenship on to his child. Flores-Villar, the son, challenged the provision as invalid under
the equal protection guarantee of the Due Process Clause, as a defense when he was indicted for
illegal re-entry into the United States. The statute provided that nonmarital U.S. citizen-fathers
(as well as mixed-marriage parents of either sex-mixed marriages referring to marriages between
a U.S. citizen and a noncitizen) had to have resided in the United States for more than ten years
after the child’s birth, five of which had to have occurred after the father was 14 years old in
order to transmit citizenship to their born-abroad children. The father in Flores-Villar, however,
had been 16 at the time of the child’s birth. Thus, it was physically impossible for him to satisfy
the required physical presence (five years after age 14) for the child to derive citizenship. In
contrast, nonmarital mothers were required under the statute to have been present in the U.S. for
a period of only one year. Flores-Villar, the nonmarital son of U.S. citizen-father who did not
satisfy the residency requirement to pass on citizenship to his son, argued that the difference in
treatment could not be justified as reflecting a real difference between mothers and fathers,
unlike the difference in the Nguyen case. Aggressive federal enforcement of immigration laws
has generated substantial litigation over derivative citizenship; the statutory framework is
complicated and individuals facing criminal charges or removal proceedings often may not
realize that they are, under the statute, U.S. citizens. The issue is likely to return to the Court.
At oral argument, counsel for Flores-Villar argued as follows:
In Nguyen, the Court approved the imposition of the legitimation
requirement only upon fathers on nonmarital children born abroad. That was
based on biological differences between men and women. It provided proof of
parentage and proof of an opportunity to make a relationship with the child that
adhered in birth as to the mother.
148
But here, the residential requirements that are at issue here have no
biological basis. They set up barriers to the transmission of citizenship by
younger fathers, but not younger mothers, and they are based upon gender
stereotypes that women, not men, would care … for nonmarital children.
An amicus brief filed on behalf of the American Civil Liberties Union Foundation noted
that:
… The Petitioner’s father is just one of millions of American fathers who are
primary caretakers of their children. In 2007, there were 5.2 million households
with children headed by males with no spouse present, representing a two million
household increase from 1995. A 1996 federal study found that approximately
18% of children five years old or younger had fathers as primary caregivers, and
fathers with less than a high school education were primary caregivers to 27% of
preschool age children. In 2008, about 1.8 million paternities were established
and acknowledged in the United States. (citations omitted)
The government defended the statutory provision that made it easier for nonmarital
mothers to pass on derivative citizenship to their children on the grounds that it was a benefit to
deal with the problem of statelessness. Persons who are stateless are deemed not to be citizens of
any country.
Does the difference at issue in this case lack a biological basis? Does it rest on outdated
stereotypes about mothers and fathers?
H: THE
FUNDAMENTAL
RIGHTS
STRAND
OF
EQUAL
PROTECTION – RIGHT TO MARRY, TRAVEL, VOTING, EDUCATION
AND PRIVACY
Page 1251: After Zablocki v. Redhail:
UNITED STATES v. WINDSOR
2013 U.S. LEXIS 4921
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and
KAGAN, JJ., joined. ROBERTS, C.J., filed a dissenting opinion. SCALIA, J., filed a dissenting
opinion, in which THOMAS, J., joined, and in which ROBERTS, C.J., joined as to Part I. ALITO, J.,
filed a dissenting opinion, in which THOMAS, J., joined as to Parts II and III.
149
JUSTICE KENNEDY delivered the opinion of the Court.
Two women then resident in New York were married in a lawful ceremony in Ontario,
Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When
Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax
exemption for surviving spouses. She was barred from doing so, however, by a federal law, the
Defense of Marriage Act, which excludes a same-sex partner from the definition of "spouse" as
that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the
constitutionality of this provision. The United States District Court and the Court of Appeals
ruled that this portion of the statute is unconstitutional and ordered the United States to pay
Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor's
favor.
I
In 1996, as some States were beginning to consider the concept of same-sex marriage, and
before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA).
DOMA contains two operative sections: Section 2, which has not been challenged here, allows
States to refuse to recognize same-sex marriages performed under the laws of other States.
Section 3 is at issue here. It amends the Dictionary Act in Title 1, §7, of the United States
Code to provide a federal definition of "marriage" and "spouse." Section 3 of DOMA provides as
follows:
"In determining the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the United
States, the word 'marriage' means only a legal union between one man and one
woman as husband and wife, and the word 'spouse' refers only to a person of the
opposite sex who is a husband or a wife."
The definitional provision does not by its terms forbid States from enacting laws permitting
same-sex marriages or civil unions or providing state benefits to residents in that status. The
enactment's comprehensive definition of marriage for purposes of all federal statutes and other
regulations or directives covered by its terms, however, does control over 1,000 federal laws in
which marital or spousal status is addressed as a matter of federal law.
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term
relationship. Windsor and Spyer registered as domestic partners when New York City gave that
right to same-sex couples in 1993. Concerned about Spyer's health, the couple made the 2007
trip to Canada for their marriage, but they continued to reside in New York City. The State of
New York deems their Ontario marriage to be a valid one.
150
Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA denies
federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from
the federal estate tax, which excludes from taxation "any interest in property which passes or has
passed from the decedent to his surviving spouse." Windsor paid $363,053 in estate taxes and
sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA,
Windsor was not a "surviving spouse." Windsor commenced this refund suit in the United States
District Court for the Southern District of New York. She contended that DOMA violates the
guarantee of equal protection, as applied to the Federal Government through the Fifth
Amendment.
While the tax refund suit was pending, the Attorney General of the United States notified the
Speaker of the House of Representatives, that the Department of Justice would no longer defend
the constitutionality of DOMA's §3. … [T]he Attorney General informed Congress that "the
President has concluded that given a number of factors, including a documented history of
discrimination, classifications based on sexual orientation should be subject to a heightened
standard of scrutiny." The Department of Justice has submitted many [of these] letters over the
years refusing to defend laws it deems unconstitutional ….
Although "the President . . . instructed the Department not to defend the statute in Windsor,"
he also decided "that Section 3 will continue to be enforced by the Executive Branch" and that
the United States had an "interest in providing Congress a full and fair opportunity to participate
in the litigation of those cases." The stated rationale for this dual-track procedure (determination
of unconstitutionality coupled with ongoing enforcement) was to "recogniz[e] the judiciary as
the final arbiter of the constitutional claims raised."
In response to the notice from the Attorney General, the Bipartisan Legal Advisory Group
(BLAG) of the House of Representatives voted to intervene in the litigation to defend the
constitutionality of §3 of DOMA. The Department of Justice did not oppose limited intervention
by BLAG. The District Court denied BLAG's motion to enter the suit as of right, on the rationale
that the United States already was represented by the Department of Justice. The District Court,
however, did grant intervention by BLAG as an interested party.
On the merits of the tax refund suit, the District Court ruled against the United States. It held
that §3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with interest.
Both the Justice Department and BLAG filed notices of appeal, and the Solicitor General filed a
petition for certiorari before judgment. Before this Court acted on the petition, the Court of
Appeals for the Second Circuit affirmed the District Court's judgment. It applied heightened
scrutiny to classifications based on sexual orientation, as both the Department and Windsor had
urged. The United States has not complied with the judgment. Windsor has not received her
refund, and the Executive Branch continues to enforce §3 of DOMA.
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***
III
When at first Windsor and Spyer longed to marry, neither New York nor any other State
granted them that right. After waiting some years, in 2007 they traveled to Ontario to be married
there. It seems fair to conclude that, until recent years, many citizens had not even considered the
possibility that two persons of the same sex might aspire to occupy the same status and dignity as
that of a man and woman in lawful marriage. For marriage between a man and a woman no
doubt had been thought of by most people as essential to the very definition of that term and to
its role and function throughout the history of civilization. That belief, for many who long have
held it, became even more urgent, more cherished when challenged. For others, however, came
the beginnings of a new perspective, a new insight. Accordingly some States concluded that
same-sex marriage ought to be given recognition and validity in the law for those same-sex
couples who wish to define themselves by their commitment to each other. The limitation of
lawful marriage to heterosexual couples, which for centuries had been deemed both necessary
and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
Slowly at first and then in rapid course, the laws of New York came to acknowledge the
urgency of this issue for same-sex couples who wanted to affirm their commitment to one
another before their children, their family, their friends, and their community. And so New York
recognized same-sex marriages performed elsewhere; and then it later amended its own marriage
laws to permit same-sex marriage. New York, in common with, as of this writing, 11 other States
and the District of Columbia, decided that same-sex couples should have the right to marry and
so live with pride in themselves and their union and in a status of equality with all other married
persons. After a statewide deliberative process that enabled its citizens to discuss and weigh
arguments for and against same-sex marriage, New York acted to enlarge the definition of
marriage to correct what its citizens and elected representatives perceived to be an injustice that
they had not earlier known or understood.
Against this background of lawful same-sex marriage in some States, the design, purpose,
and effect of DOMA should be considered as the beginning point in deciding whether it is valid
under the Constitution. By history and tradition the definition and regulation of marriage, as will
be discussed in more detail, has been treated as being within the authority and realm of the
separate States. Yet it is further established that Congress, in enacting discrete statutes, can make
determinations that bear on marital rights and privileges. … Congress has the power both to
ensure efficiency in the administration of its programs and to choose what larger goals and
policies to pursue.
Other precedents involving congressional statutes which affect marriages and family status
further illustrate this point. In addressing the interaction of state domestic relations and federal
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immigration law Congress determined that marriages "entered into for the purpose of procuring
an alien's admission [to the United States] as an immigrant" will not qualify the noncitizen for
that status, even if the noncitizen's marriage is valid and proper for state-law purposes. …
Though these discrete examples establish the constitutionality of limited federal laws that
regulate the meaning of marriage in order to further federal policy, DOMA has a far greater
reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of
federal regulations. And its operation is directed to a class of persons that the laws of New York,
and of 11 other States, have sought to protect.
In order to assess the validity of that intervention it is necessary to discuss the extent of the
state power and authority over marriage as a matter of history and tradition. State laws defining
and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g.,
Loving v. Virginia; but, subject to those guarantees, "regulation of domestic relations" is "an area
that has long been regarded as a virtually exclusive province of the States."
***
Against this background DOMA rejects the long-established precept that the incidents,
benefits, and obligations of marriage are uniform for all married couples within each State,
though they may vary, subject to constitutional guarantees, from one State to the next. Despite
these considerations, it is unnecessary to decide whether this federal intrusion on state power is a
violation of the Constitution because it disrupts the federal balance. The State's power in defining
the marital relation is of central relevance in this case quite apart from principles of federalism.
Here the State's decision to give this class of persons the right to marry conferred upon them a
dignity and status of immense import. When the State used its historic and essential authority to
define the marital relation in this way, its role and its power in making the decision enhanced the
recognition, dignity, and protection of the class in their own community. DOMA, because of its
reach and extent, departs from this history and tradition of reliance on state law to define
marriage. "'[D]is-criminations of an unusual character especially suggest careful consideration to
determine whether they are obnoxious to the constitutional provision.'" Romer v. Evans.
The Federal Government uses this state-defined class for the opposite purpose—to impose
restrictions and disabilities. That result requires this Court now to address whether the resulting
injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth
Amendment. What the State of New York treats as alike the federal law deems unlike by a law
designed to injure the same class the State seeks to protect.
In acting first to recognize and then to allow same-sex marriages, New York was responding
"to the initiative of those who [sought] a voice in shaping the destiny of their own times." These
actions were without doubt a proper exercise of its sovereign authority within our federal system,
all in the way that the Framers of the Constitution intended. The dynamics of state government in
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the federal system are to allow the formation of consensus respecting the way the members of a
discrete community treat each other in their daily contact and constant interaction with each
other.
The States' interest in defining and regulating the marital relation, subject to constitutional
guarantees, stems from the understanding that marriage is more than a routine classification for
purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult
persons of the same sex may not be punished by the State, and it can form "but one element in a
personal bond that is more enduring." Lawrence v. Texas, 539 U. S. 558, 567 (2003). By its
recognition of the validity of same-sex marriages performed in other jurisdictions and then by
authorizing same-sex unions and same-sex marriages, New York sought to give further
protection and dignity to that bond. For same-sex couples who wished to be married, the State
acted to give their lawful conduct a lawful status. This status is a far-reaching legal
acknowledgment of the intimate relationship between two people, a relationship deemed by the
State worthy of dignity in the community equal with all other marriages. It reflects both the
community's considered perspective on the historical roots of the institution of marriage and its
evolving understanding of the meaning of equality.
IV
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic
due process and equal protection principles applicable to the Federal Government. See U.S.
Const., Amdt 4; Bolling v. Sharpe, 347 U.S. 497 (1954). The Constitution's guarantee of
equality "must at the very least mean that a bare congressional desire to harm a politically
unpopular group cannot" justify disparate treatment of that group. Department of Agriculture v.
Moreno, 413 U.S. 528 (1973). In determining whether a law is motived by an improper animus
or purpose, "'[d]iscriminations of an unusual character'" especially require careful consideration.
Supra, (quoting Romer v. Evans). DOMA cannot survive under these principles. The
responsibility of the States for the regulation of domestic relations is an important indicator of
the substantial societal impact the State's classifications have in the daily lives and customs of its
people. DOMA's unusual deviation from the usual tradition of recognizing and accepting state
definitions of marriage here operates to deprive same-sex couples of the benefits and
responsibilities that come with the federal recognition of their marriages. This is strong evidence
of a law having the purpose and effect of disapproval of that class. The avowed purpose and
practical effect of the law here in question are to impose a disadvantage, a separate status, and so
a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority
of the States.
The history of DOMA's enactment and its own text demonstrate that interference with the
equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their
sovereign power, was more than an incidental effect of the federal statute. It was its essence. The
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House Report announced its conclusion that "it is both appropriate and necessary for Congress to
do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is
appropriately entitled the 'Defense of Marriage Act.' The effort to redefine 'marriage' to extend to
homosexual couples is a truly radical proposal that would fundamentally alter the institution of
marriage." The House concluded that DOMA expresses "both moral disapproval of
homosexuality, and a moral conviction that heterosexuality better comports with traditional
(especially Judeo-Christian) morality." The stated purpose of the law was to promote an "interest
in protecting the traditional moral teachings reflected in heterosexual-only marriage laws." Were
there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of
Marriage.
The arguments put forward by BLAG are just as candid about the congressional purpose to
influence or interfere with state sovereign choices about who may be married. As the title and
dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage
laws and to restrict the freedom and choice of couples married under those laws if they are
enacted. The congressional goal was "to put a thumb on the scales and influence a state's
decision as to how to shape its own marriage laws." The Act's demonstrated purpose is to ensure
that if any State decides to recognize same-sex marriages, those unions will be treated as secondclass marriages for purposes of federal law. This raises a most serious question under the
Constitution's Fifth Amendment.
DOMA's operation in practice confirms this purpose. When New York adopted a law to
permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective
through a system-wide enactment with no identified connection to any particular area of federal
law. DOMA writes inequality into the entire United States Code. The particular case at hand
concerns the estate tax, but DOMA is more than a simple determination of what should or should
not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal
regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal
sanctions, copyright, and veterans' benefits.
DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them
unequal. The principal purpose is to impose inequality, not for other reasons like governmental
efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person.
And DOMA contrives to deprive some couples married under the laws of their State, but not
other couples, of both rights and responsibilities. By creating two contradictory marriage regimes
within the same State, DOMA forces same-sex couples to live as married for the purpose of state
law but unmarried for the purpose of federal law, thus diminishing the stability and predictability
of basic personal relations the State has found it proper to acknowledge and protect. By this
dynamic DOMA undermines both the public and private significance of state-sanctioned samesex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are
unworthy of federal recognition. This places same-sex couples in an unstable position of being in
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a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices
the Constitution protects, see Lawrence, and whose relationship the State has sought to dignify.
And it humiliates tens of thousands of children now being raised by same-sex couples. The law
in question makes it even more difficult for the children to understand the integrity and closeness
of their own family and its concord with other families in their community and in their daily
lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of government
decree, in visible and public ways. By its great reach, DOMA touches many aspects of married
and family life, from the mundane to the profound. It prevents same-sex married couples from
obtaining government healthcare benefits they would otherwise receive. It deprives them of the
Bankruptcy Code's special protections for domestic-support obligations. It forces them to follow
a complicated procedure to file their state and federal taxes jointly. It prohibits them from being
buried together in veterans' cemeteries.
***
DOMA also brings financial harm to children of same-sex couples. It raises the cost of health
care for families by taxing health benefits provided by employers to their workers' same-sex
spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and
parent, benefits that are an integral part of family security. See Social Security Administration,
Social Security Survivors Benefits 5 (2012) (benefits available to a surviving spouse caring for
the couple's child).
***
The power the Constitution grants it also restrains. And though Congress has great authority
to design laws to fit its own conception of sound national policy, it cannot deny the liberty
protected by the Due Process Clause of the Fifth Amendment.
What has been explained to this point should more than suffice to establish that the principal
purpose and the necessary effect of this law are to demean those persons who are in a lawful
same-sex marriage. This requires the Court to hold, as it now does, that DOMA is
unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment
of the Constitution.
The liberty protected by the Fifth Amendment's Due Process Clause contains within it the
prohibition against denying to any person the equal protection of the laws. While the Fifth
Amendment itself withdraws from Government the power to degrade or demean in the way this
law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth
Amendment right all the more specific and all the better understood and preserved.
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The class to which DOMA directs its restrictions and restraints are those persons who are
joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons
deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes
a disability on the class by refusing to acknowledge a status the State finds to be dignified and
proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex
couples interact, including their own children, that their marriage is less worthy than the
marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the
purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought
to protect in personhood and dignity. By seeking to displace this protection and treating those
persons as living in marriages less respected than others, the federal statute is in violation of the
Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
***
CHIEF JUSTICE ROBERTS, dissenting.
I agree with JUSTICE SCALIA that this Court lacks jurisdiction to review the decisions of
the courts below. On the merits of the constitutional dispute the Court decides to decide, I also
agree with JUSTICE SCALIA that Congress acted constitutionally in passing the Defense of
Marriage Act (DOMA). Interests in uniformity and stability amply justified Congress's decision
to retain the definition of marriage that, at that point, had been adopted by every State in our
Nation, and every nation in the world.
The majority sees a more sinister motive, pointing out that the Federal Government has
generally (though not uniformly) deferred to state definitions of marriage in the past. That is true,
of course, but none of those prior state-by-state variations had involved differences over
something—as the majority puts it — "thought of by most people as essential to the very
definition of [marriage] and to its role and function throughout the history of civilization." That
the Federal Government treated this fundamental question differently than it treated variations
over consanguinity or minimum age is hardly surprising — and hardly enough to support a
conclusion that the "principal purpose," of the 342 Representatives and 85 Senators who voted
for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of
legislative history and the banal title of the Act to which the majority points suffice to make such
a showing. At least without some more convincing evidence that the Act's principal purpose was
to codify malice, and that it furthered no legitimate government interests, I would not tar the
political branches with the brush of bigotry.
But while I disagree with the result to which the majority's analysis leads it in this case, I
think it more important to point out that its analysis leads no further. The Court does not have
before it, and the logic of its opinion does not decide, the distinct question whether the States, in
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the exercise of their "historic and essential authority to define the marital relation," may continue
to utilize the traditional definition of marriage.
The majority goes out of its way to make this explicit in the penultimate sentence of its
opinion. It states that "[t]his opinion and its holding are confined to those lawful marriages," —
referring to same-sex marriages that a State has already recognized as a result of the local
"community's considered perspective on the historical roots of the institution of marriage and its
evolving understanding of the meaning of equality." JUSTICE SCALIA believes this is a "'bald,
unreasoned disclaime[r].'" In my view, though, the disclaimer is a logical and necessary
consequence of the argument the majority has chosen to adopt. The dominant theme of the
majority opinion is that the Federal Government's intrusion into an area "central to state domestic
relations law applicable to its residents and citizens" is sufficiently "unusual" to set off alarm
bells. I think the majority goes off course, as I have said, but it is undeniable that its judgment is
based on federalism.
The majority extensively chronicles DOMA's departure from the normal allocation of
responsibility between State and Federal Governments, emphasizing that DOMA "rejects the
long-established precept that the incidents, benefits, and obligations of marriage are uniform for
all married couples within each State." But there is no such departure when one State adopts or
keeps a definition of marriage that differs from that of its neighbor, for it is entirely expected that
state definitions would "vary, subject to constitutional guarantees, from one State to the next."
Thus, while "[t]he State's power in defining the marital relation is of central relevance" to the
majority's decision to strike down DOMA here, that power will come into play on the other side
of the board in future cases about the constitutionality of state marriage definitions. So too will
the concerns for state diversity and sovereignty that weigh against DOMA's constitutionality in
this case.
It is not just this central feature of the majority's analysis that is unique to DOMA, but many
considerations on the periphery as well. For example, the majority focuses on the legislative
history and title of this particular Act; those statute-specific considerations will, of course, be
irrelevant in future cases about different statutes. The majority emphasizes that DOMA was a
"systemwide enactment with no identified connection to any particular area of federal law," but a
State's definition of marriage "is the foundation of the State's broader authority to regulate the
subject of domestic relations with respect to the '[p]rotection of offspring, property interests, and
the enforcement of marital responsibilities.'" And the federal decision undermined (in the
majority's view) the "dignity [already] conferred by the States in the exercise of their sovereign
power," whereas a State's decision whether to expand the definition of marriage from its
traditional contours involves no similar concern.
We may in the future have to resolve challenges to state marriage definitions affecting samesex couples. That issue, however, is not before us in this case …. I write only to highlight the
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limits of the majority's holding and reasoning today, lest its opinion be taken to resolve not only
a question that I believe is not properly before us—DOMA's constitutionality—but also a
question that all agree, and the Court explicitly acknowledges, is not at issue.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and with whom THE CHIEF
JUSTICE joins as to Part I, dissenting.
This case is about power in several respects. It is about the power of our people to govern
themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the
latter, with the predictable consequence of diminishing the former. We have no power to decide
this case. And even if we did, we have no power under the Constitution to invalidate this
democratically adopted legislation. The Court's errors on both points spring forth from the same
diseased root: an exalted conception of the role of this institution in America.
***
There are many remarkable things about the majority's merits holding. The first is how
rootless and shifting its justifications are. For example, the opinion starts with seven full pages
about the traditional power of States to define domestic relations — initially fooling many
readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that
"it is unnecessary to decide whether this federal intrusion on state power is a violation of the
Constitution," and that "[t]he State's power in defining the marital relation is of central relevance
in this case quite apart from principles of federalism" because "the State's decision to give this
class of persons the right to marry conferred upon them a dignity and status of immense import."
But no one questions the power of the States to define marriage (with the concomitant conferral
of dignity and status), so what is the point of devoting seven pages to describing how long and
well established that power is? Even after the opinion has formally disclaimed reliance upon
principles of federalism, mentions of "the usual tradition of recognizing and accepting state
definitions of marriage" continue. What to make of this? The opinion never explains. My guess
is that the majority, while reluctant to suggest that defining the meaning of "marriage" in federal
statutes is unsupported by any of the Federal Government's enumerated powers, nonetheless
needs some rhetorical basis to support its pretense that today's prohibition of laws excluding
same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to
be dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion's references to "the Constitution's guarantee of equality."
Near the end of the opinion, we are told that although the "equal protection guarantee of the
Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific
and all the better understood and preserved" — what can that mean? — "the Fifth Amendment
itself withdraws from Government the power to degrade or demean in the way this law does."
The only possible interpretation of this statement is that the Equal Protection Clause, even the
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Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today's
holding. But the portion of the majority opinion that explains why DOMA is unconstitutional
(Part IV) begins by citing Bolling v. Sharpe, Department of Agriculture v. Moreno, and Romer v.
Evans — all of which are equal-protection cases. And those three cases are the only authorities
that the Court cites in Part IV about the Constitution's meaning, except for its citation of
Lawrence v. Texas (not an equal-protection case) to support its passing assertion that the
Constitution protects the "moral and sexual choices" of same-sex couples.
Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The
opinion does not resolve and indeed does not even mention what had been the central question in
this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man
and a woman are reviewed for more than mere rationality. That is the issue that divided the
parties and the court below …. In accord with my previously expressed skepticism about the
Court's "tiers of scrutiny" approach, I would review this classification only for its rationality. As
nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its
central propositions are taken from rational-basis cases like Moreno. But the Court certainly does
not apply anything that resembles that deferential framework.
The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and
need not justify its holding under either, because it says that DOMA is unconstitutional as "a
deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution;"
that it violates "basic due process" principles; and that it inflicts an "injury and indignity" of a
kind that denies "an essential part of the liberty protected by the Fifth Amendment." The
majority never utters the dread words "substantive due process," perhaps sensing the disrepute
into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does
not argue that same-sex marriage is "deeply rooted in this Nation's history and tradition," a claim
that would of course be quite absurd. So would the further suggestion (also necessary, under our
substantive-due-process precedents) that a world in which DOMA exists is one bereft of
"'ordered liberty.'"
Some might conclude that this loaf could have used a while longer in the oven. But that
would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a
bad recipe. The sum of all the Court's nonspecific hand-waving is that this law is invalid (maybe
on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some
amorphous federalism component playing a role) because it is motivated by a "'bare . . . desire to
harm'" couples in same-sex marriages. It is this proposition with which I will therefore engage.
B
As I have observed before, the Constitution does not forbid the government to enforce
traditional moral and sexual norms. I will not swell the U. S. Reports with restatements of that
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point. It is enough to say that the Constitution neither requires nor forbids our society to approve
of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce,
polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed
same-sex sex), there are many perfectly valid — indeed, downright boring — justifying
rationales for this legislation. Their existence ought to be the end of this case. For they give the
lie to the Court's conclusion that only those with hateful hearts could have voted "aye" on this
Act. And more importantly, they serve to make the contents of the legislators' hearts quite
irrelevant: "It is a familiar principle of constitutional law that this Court will not strike down an
otherwise constitutional statute on the basis of an alleged illicit legislative motive." Or at least it
was a familiar principle. By holding to the contrary, the majority has declared open season on
any law that (in the opinion of the law's opponents and any panel of like-minded federal judges)
can be characterized as mean-spirited.
***
The penultimate sentence of the majority's opinion is a naked declaration that "[t]his opinion
and its holding are confined" to those couples "joined in same-sex marriages made lawful by the
State." I have heard such "bald, unreasoned disclaimer[s]" before. When the Court declared a
constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at
all to do with "whether the government must give formal recognition to any relationship that
homosexual persons seek to enter." Lawrence. Now we are told that DOMA is invalid because it
"demeans the couple, whose moral and sexual choices the Constitution protects," —with an
accompanying citation of Lawrence. It takes real cheek for today's majority to assure us, as it is
going out the door, that a constitutional requirement to give formal recognition to same-sex
marriage is not at issue here—when what has preceded that assurance is a lecture on how
superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful
moral judgment against it. I promise you this: The only thing that will "confine" the Court's
holding is its sense of what it can get away with.
***
By formally declaring anyone opposed to same-sex marriage an enemy of human decency,
the majority arms well every challenger to a state law restricting marriage to its traditional
definition. Henceforth those challengers will lead with this Court's declaration that there is "no
legitimate purpose" served by such a law, and will claim that the traditional definition has "the
purpose and effect to disparage and to injure" the "personhood and dignity" of same-sex couples.
The majority's limiting assurance will be meaningless in the face of language like that, as the
majority well knows. That is why the language is there. The result will be a judicial distortion of
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our society's debate over marriage — a debate that can seem in need of our clumsy "help" only to
a member of this institution.
***
In the majority's telling, this story is black-and-white: Hate your neighbor or come along with
us. The truth is more complicated. It is hard to admit that one's political opponents are not
monsters, especially in a struggle like this one, and the challenge in the end proves more than
today's Court can handle. Too bad. A reminder that disagreement over something so fundamental
as marriage can still be politically legitimate would have been a fit task for what in earlier times
was called the judicial temperament. We might have covered ourselves with honor today, by
promising all sides of this debate that it was theirs to settle and that we would respect their
resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today's decision, and some will despair
at it; that is the nature of a controversy that matters so much to so many. But the Court has
cheated both sides, robbing the winners of an honest victory, and the losers of the peace that
comes from a fair defeat. We owed both of them better. I dissent.
JUSTICE ALITO, with whom JUSTICE THOMAS joins as to Parts II and III, dissenting.
Our Nation is engaged in a heated debate about same-sex marriage. That debate is, at bottom,
about the nature of the institution of marriage. Respondent Edith Windsor, supported by the
United States, asks this Court to intervene in that debate, and although she couches her argument
in different terms, what she seeks is a holding that enshrines in the Constitution a particular
understanding of marriage under which the sex of the partners makes no difference. The
Constitution, however, does not dictate that choice. It leaves the choice to the people, acting
through their elected representatives at both the federal and state levels. I would therefore hold
that Congress did not violate Windsor's constitutional rights by enacting §3 of the Defense of
Marriage Act (DOMA) ….
***
Same-sex marriage presents a highly emotional and important question of public policy —
but not a difficult question of constitutional law. The Constitution does not guarantee the right to
enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue.
The Court has sometimes found the Due Process Clauses to have a substantive component
that guarantees liberties beyond the absence of physical restraint. And the Court's holding that
"DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth
Amendment of the Constitution," suggests that substantive due process may partially underlie the
Court's decision today. But it is well established that any "substantive" component to the Due
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Process Clause protects only "those fundamental rights and liberties which are, objectively,
'deeply rooted in this Nation's history and tradition,'" as well as "'implicit in the concept of
ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'"
It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation's
history and tradition. In this country, no State permitted same-sex marriage until the
Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex
couples violated the State Constitution. See Goodridge v. Department of Public Health. Nor is
the right to same-sex marriage deeply rooted in the traditions of other nations. No country
allowed same-sex couples to marry until the Netherlands did so in 2000.
What Windsor and the United States seek, therefore, is not the protection of a deeply rooted
right but the recognition of a very new right, and they seek this innovation not from a legislative
body elected by the people, but from unelected judges. Faced with such a request, judges have
cause for both caution and humility.
The family is an ancient and universal human institution. Family structure reflects the
characteristics of a civilization, and changes in family structure and in the popular understanding
of marriage and the family can have profound effects. Past changes in the understanding of
marriage — for example, the gradual ascendance of the idea that romantic love is a prerequisite
to marriage — have had far-reaching consequences. But the process by which such consequences
come about is complex, involving the interaction of numerous factors, and tends to occur over an
extended period of time.
We can expect something similar to take place if same-sex marriage becomes widely
accepted. The long-term consequences of this change are not now known and are unlikely to be
ascertainable for some time to come. There are those who think that allowing same-sex marriage
will seriously undermine the institution of marriage. Others think that recognition of same-sex
marriage will fortify a now-shaky institution.
At present, no one — including social scientists, philosophers, and historians — can predict
with any certainty what the long-term ramifications of widespread acceptance of same-sex
marriage will be. And judges are certainly not equipped to make such an assessment. The
Members of this Court have the authority and the responsibility to interpret and apply the
Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a
person of the same sex, it would be our duty to enforce that right. But the Constitution simply
does not speak to the issue of same-sex marriage. In our system of government, ultimate
sovereignty rests with the people, and the people have the right to control their own destiny. Any
change on a question so fundamental should be made by the people through their elected
officials.
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III
Perhaps because they cannot show that same-sex marriage is a fundamental right under our
Constitution, Windsor and the United States couch their arguments in equal protection terms.
They argue that §3 of DOMA discriminates on the basis of sexual orientation, that classifications
based on sexual orientation should trigger a form of "heightened" scrutiny, and that §3 cannot
survive such scrutiny. They further maintain that the governmental interests that §3 purports to
serve are not sufficiently important and that it has not been adequately shown that §3 serves
those interests very well. The Court's holding, too, seems to rest on "the equal protection
guarantee of the Fourteenth Amendment," — although the Court is careful not to adopt most of
Windsor's and the United States' argument.
In my view, the approach that Windsor and the United States advocate is misguided. Our
equal protection framework, upon which Windsor and the United States rely, is a judicial
construct that provides a useful mechanism for analyzing a certain universe of equal protection
cases. But that framework is ill suited for use in evaluating the constitutionality of laws based on
the traditional understanding of marriage, which fundamentally turn on what marriage is.
Underlying our equal protection jurisprudence is the central notion that "[a] classification
'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair
and substantial relation to the object of the legislation, so that all persons similarly circumstanced
shall be treated alike.'" Reed v. Reed, 404 U. S. 71, 76 (1971) (quoting F. S. Royter Guano Co. v.
Virginia, 253 U. S. 412, 415 (1920)). The modern tiers of scrutiny — on which Windsor and the
United States rely so heavily — are a heuristic to help judges determine when classifications
have that "fair and substantial relation to the object of the legislation." Reed.
So, for example, those classifications subject to strict scrutiny — i.e., classifications that
must be "narrowly tailored" to achieve a "compelling" government interest, Parents Involved in
Community Schools v. Seattle School Dist. No. 1 — are those that are "so seldom relevant to the
achievement of any legitimate state interest that laws grounded in such considerations are
deemed to reflect prejudice and antipathy." Cleburne v. Cleburne Living Center, Inc.
In contrast, those characteristics subject to so-called intermediate scrutiny — i.e., those
classifications that must be "'substantially related'" to the achievement of "important
governmental objective[s]," United States v. Virginia, 518 U. S. 515, 524 (1996); id., at 567
(SCALIA, J., dissenting) — are those that are sometimes relevant considerations to be taken into
account by legislators, but "generally provid[e] no sensible ground for different treatment,"
Cleburne. For example, the Court has held that statutory rape laws that criminalize sexual
intercourse with a woman under the age of 18 years, but place no similar liability on partners of
underage men, are grounded in the very real distinction that "young men and young women are
not similarly situated with respect to the problems and the risks of sexual intercourse." Michael
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M. v. Superior Court, Sonoma Cty. The plurality reasoned that "[o]nly women may become
pregnant, and they suffer disproportionately the profound physical, emotional, and psychological
consequences of sexual activity." In other contexts, however, the Court has found that
classifications based on gender are "arbitrary," Reed, and based on "outmoded notions of the
relative capabilities of men and women," as when a State provides that a man must always be
preferred to an equally qualified woman when both seek to administer the estate of a deceased
party.
Finally, so-called rational-basis review applies to classifications based on "distinguishing
characteristics relevant to interests the State has the authority to implement." Cleburne. We have
long recognized that "the equal protection of the laws must coexist with the practical necessity
that most legislation classifies for one purpose or another, with resulting disadvantages to various
groups or persons." Romer v. Evans. As a result, in rational-basis cases, where the court does not
view the classification at issue as "inherently suspect," "the courts have been very reluctant, as
they should be in our federal system and with our respect for the separation of powers, to closely
scrutinize legislative choices as to whether, how, and to what extent those interests should be
pursued."
In asking the Court to determine that §3 of DOMA is subject to and violates heightened
scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of
the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome
is to the ability to administer an estate. That is a striking request and one that unelected judges
should pause before granting. Acceptance of the argument would cast all those who cling to
traditional beliefs about the nature of marriage in the role of bigots or superstitious fools.
By asking the Court to strike down DOMA as not satisfying some form of heightened
scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate
between two competing views of marriage.
The first and older view, which I will call the "traditional" or "conjugal" view, sees marriage
as an intrinsically opposite-sex institution. BLAG notes that virtually every culture, including
many not influenced by the Abrahamic religions, has limited marriage to people of the opposite
sex. And BLAG attempts to explain this phenomenon by arguing that the institution of marriage
was created for the purpose of channeling heterosexual intercourse into a structure that supports
child rearing. Others explain the basis for the institution in more philosophical terms. They argue
that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that
is intrinsically ordered to producing new life, even if it does not always do so. While modern
cultural changes have weakened the link between marriage and procreation in the popular mind,
there is no doubt that, throughout human history and across many cultures, marriage has been
viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation
and biological kinship.
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The other, newer view is what I will call the "consent-based" vision of marriage, a vision that
primarily defines marriage as the solemnization of mutual commitment — marked by strong
emotional attachment and sexual attraction — between two persons. At least as it applies to
heterosexual couples, this view of marriage now plays a very prominent role in the popular
understanding of the institution. Indeed, our popular culture is infused with this understanding of
marriage. Proponents of same-sex marriage argue that because gender differentiation is not
relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank
discrimination.
The Constitution does not codify either of these views of marriage (although I suspect it
would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to
find Americans who did not take the traditional view for granted). The silence of the
Constitution on this question should be enough to end the matter as far as the judiciary is
concerned. Yet, Windsor and the United States implicitly ask us to endorse the consent-based
view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to
decide a question that philosophers, historians, social scientists, and theologians are better
qualified to explore. Because our constitutional order assigns the resolution of questions of this
nature to the people, I would not presume to enshrine either vision of marriage in our
constitutional jurisprudence.
Legislatures, however, have little choice but to decide between the two views. We have long
made clear that neither the political branches of the Federal Government nor state governments
are required to be neutral between competing visions of the good, provided that the vision of the
good that they adopt is not countermanded by the Constitution. Accordingly, both Congress and
the States are entitled to enact laws recognizing either of the two understandings of marriage.
And given the size of government and the degree to which it now regulates daily life, it seems
unlikely that either Congress or the States could maintain complete neutrality even if they tried
assiduously to do so.
Rather than fully embracing the arguments made by Windsor and the United States, the
Court strikes down §3 of DOMA as a classification not properly supported by its objectives. The
Court reaches this conclusion in part because it believes that ß3 encroaches upon the States'
sovereign prerogative to define marriage. … Indeed, the Court's ultimate conclusion is that
DOMA falls afoul of the Fifth Amendment because it "singles out a class of persons deemed by
a State entitled to recognition and protection to enhance their own liberty" and "imposes a
disability on the class by refusing to acknowledge a status the State finds to be dignified and
proper."
To the extent that the Court takes the position that the question of same-sex marriage should
be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will
ultimately permit the people of each State to decide this question for themselves. Unless the
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Court is willing to allow this to occur, the whiffs of federalism in the today's opinion of the Court
will soon be scattered to the wind.
***
Page 1270: at end of Note: One-Person One-Vote and the Voting Rights Act of 1965:
This past term the Court struck down a section of the Voting Rights Act of 1965 that
required certain states to obtain clearance from the Department of Justice before changing voting
districts or voting requirements. The Voting Rights Act of 1965 was enacted to address
entrenched racial discrimination in voting fashioned by states during the Jim Crow era to defeat
the mandate of the Fifteenth Amendment, often by adopting race-neutral mechanisms that would
result in the disenfranchisement of racial minorities. Section 5 of the Act required States,
identified through section 4 of the Act, to obtain federal permission before enacting any laws
related to voting. Section 4 of the Act, the particular provision struck down by a five-justice
majority, identified the states, and the formula used to identify the states, that would be subject to
the preclearance requirement of Section 5.
In Shelby County v. Holder, 2013 U.S. LEXIS 4917, the Court held that Section 4 of the
Voting Rights Act was unconstitutional because conditions in the country had changed since
1965, when the Act was first adopted, and Congress, in reauthorizing the Act in 2006, had not
fashioned a formula that acknowledged the change in conditions. Chief Justice Roberts, in an
opinion joined by Justices Scalia, Kennedy, Thomas and Alito, considered the Act
“extraordinary measures to address an extraordinary problem.” Although he conceded that
“voting discrimination still exists,” he cautioned, “[t]here is no denying … that the conditions
that originally justified these measures no longer characterize voting in the covered
jurisdictions.” After reviewing voting data for the states covered by Section 4, he concluded
that conditions had improved dramatically, and that the formula that made sense in 1965, was no
longer constitutionally viable today.
Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, dissented on the
grounds that the majority’s ruling ignored the Fifteen Amendment and the substantial record
before Congress showing continued state attempts to discriminate on the basis of race in voting
and districting decisionmaking. The case is discussed further in Chapter VII.
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CHAPTER VII: CONGRESSIONAL POWER TO ENFORCE THE
FOURTEENTH AMENDMENT
Page 1331: Add as Item 5 to Note: The Enforcement Clause After Garrett and Hibbs:
5.
The Court’s intimations in Northwest Austin that the Voting Rights Act might
exceed Congress’s enforcement power suggests cracks in the earlier template for understanding
the Enforcement Clause – a template in which legislation enforcing rights that enjoy more
judicial protection receives more deferential judicial review. (See Item 1 of this Note for a
restatement of that earlier understanding.) More evidence for this development was provided in
Coleman v. Court of Appeals of Maryland, 182 L.Ed2d 296 (2012). Coleman dealt with another
provision of the Family and Medical Leave Act (FMLA), the statute at issue in Nevada Dept of
Human Resources v. Hibbs (excerpted at page 1320 of the Casebook). Hibbs upheld the familycare provision of the FMLA, which provided employees with time off to care for sick family
members.
By contrast, Coleman considered whether Congress appropriately used its
enforcement power in enacting the so-called “self-care” provision of the FMLA, which provided
employees with time off when the employee himself was ill.
By a 5-4 vote the Court held that the self-care provision exceeded Congress’s power
under the Enforcement Clause. (All parties agreed that it was valid under the Commerce Clause,
but that power does not authorize suits seeking retrospective relief against non-consenting states.
Constitutional limits on Congress’s power to abrogate state immunity are discussed at pages 438497 of the Casebook.) Writing for a four-justice plurality, Justice Kennedy concluded that the
self-care provision was not a congruent and proportional response to sex discrimination in the
workplace. He observed that most states had sick-leave and disability-leave plans, and
concluded that “Congress did not document any pattern of States excluding pregnancy-related
illnesses” from those policies or otherwise administering them in a sex-based manner. He
expressed doubt about the argument that the self-care provision helped equalize the sick amount
of time men and women took, a balance that was otherwise upset by the fact that women must
take time off for pregnancy. He also found insufficient evidence that the self-care provision was
a necessary adjunct to the statute’s family-leave provision. Chief Justice Roberts and Justices
Thomas and Alito joined Justice Kennedy’s opinion.
Justice Thomas also wrote a separate concurrence. He wrote separately to repeat his
view that Hibbs was wrongly decided, and that the self-care provision at issue in Coleman was
“even further removed” from “a demonstrated pattern of unconstitutional discrimination by the
States.” Justice Scalia concurred only in the judgment. He repeated his view from Tennessee v.
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Lane (Item 2 of this Note) that the congruence and proportionality standard should be
abandoned, and that, except for race discrimination, Congress’s enforcement power should be
limited “to the regulation of conduct that itself violates the Fourteenth Amendment.”
Justice Ginsburg, joined in all relevant parts by Justices Breyer, Sotomayor and Kagan,
dissented. She argued that the FMLA’s self-care provision was an integral part of the statute’s
overall structure. She reviewed the history of the legislation and concluded that it demonstrated
a concern, supported by evidence presented to Congress, that provisions providing special leaves
for pregnancy encouraged employers to discriminate against women in hiring. Justice Ginsburg
discounted as “missing the point” the plurality’s conclusion that Congress lacked widespread
evidence of state discrimination in the administration of medical leave. Rather, she suggested,
the key observation was that “existing sick-leave plans were inadequate to ensure that women
were not fired when they needed to take time out to recover their strength and stamina after
childbirth.” She acknowledged that an earlier case, Geduldig v. Aiello, 417 U.S. 484 (1974),
held that pregnancy discrimination did not constitute sex discrimination. But she called for a reexamination of that precedent. She also argued that the self-care provision should be upheld
even assuming Geduldig’s vitality: “Congress . . . had good reason to conclude that the self-care
provision – which men would no doubt use – would counter employers’ impressions that the
FMLA would otherwise install female leave. Providing for self-care would thus reduce
employers’ corresponding incentive to discriminate against women in hiring and promotion.”
6.
In 2013 the Court returned to the question of the constitutionality of Congress’s
2006 reauthorization of the Voting Rights Act (“VRA”), the issue the Court avoided in the 2009
Northwest Austin case. (See Casebook page 1331 for a discussion of Northwest Austin.) In
Shelby County v. Holder, 2013 U.S. LEXIS 4917, the Court, by a 5-4 vote, struck down the
formula by which states were determined to be subject to the VRA’s preclearance requirements.
(“Preclearance” is the requirement that states and their subdivisions obtain prior federal approval
for electoral changes, to ensure that those changes do not impair minority voting rights.) The
Court, speaking through Chief Justice Roberts, noted that the coverage formula had not been
altered since an earlier reauthorization in the 1970’s, with the result that states remained subject
to the statute despite witnessing large improvements in minority voter registration, turnout and
office-holding. It also noted that the statute’s coverage formula continued to operate as if states
were divided between those with low rates of minority political participation and those with
higher rates, when in fact that division no longer characterized the nation.
The VRA implicated Congress’s power to enforce both the Fourteenth and the Fifteenth
Amendments. In Shelby County the Court stated that the earlier decision in Northwest Austin
“guide[d] [its] review under both Amendments.” However, that earlier case did not specify
whether the proper standard was the congruence and proportionality standard announced in City
of Boerne v. Flores (Casebook page 1294) for review of legislation enforcing the Fourteenth
Amendment or the rational basis standard established decades ago for review of legislation
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enforcing the Fifteenth Amendment. However, the Court did describe Congress’s decision to
continue relying on the older coverage formula as “irrational.”
Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, dissented. She
argued that the Court had failed to consider the voluminous data Congress had gathered
documenting the persistence of voting rights violations in the covered states. She argued that
these violations had become more subtle over time, and thus were not reflected in the
registration, turnout and office-holding rates relied on by the majority. She also pointed to the
disparity between covered and non-covered jurisdictions in terms of successful VRA lawsuits,
and the increase in federal objections to preclearance requests, as evidence of the continued
appropriateness of the statute’s coverage formula.
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CHAPTER VIII:
B.
ECONOMIC RIGHTS
THE TAKING CLAUSE
Page 1368: At the end of Note: Regulatory Takings and Property Development:
In Koontz v. St. Johns River Water Management Dist., 2013 U.S. LEXIS 4918, the Court
extended the Nollan and Dolan requirements that conditions on land-use permits must have a
nexus and rough proportionality to the effects of the proposed land use to cases involving permit
denials and to conditions that involve the payment of money. The case involved property near
Orlando, Florida that was designated wetlands, and running adjacent to one of the area’s major
thoroughfares. Wetlands are heavily regulated under state law, and when the landowner decided
to develop the northern 3.7 acre section of the property, he applied for a permit. His permit
proposal offered to mitigate the effects of his construction by foreclosing future development of
the larger, 11 acre southern section of his land by deeding a conservation easement to the state.
The state considered this inadequate and offered two alternatives to the landowner: either reduce
the size of development to 1 acre and deed to the state a conservation easement on the remaining
acres (and change design elements of the planned construction); or fund improvements to stateowned land several miles away. The landowner decided both alternatives were excessive and
sued. The Florida Supreme Court determined that since the state denied the permit, Nollan and
Dolan did not apply. Moreover, the court reasoned, Nollan and Dolan involved a demand for an
interest in real property, rather than a demand for money.
The Court reversed the state supreme court in an opinion authored by Justice Alito and
joined by Chief Justice Robert, Justices Scalia, Thomas, and Kennedy, that decided the case as
one involving unconstitutional conditions doctrine. The Court, all Justices in agreement,
reasoned that the distinction between permit denials and permits that are approved with
conditions was not recognized in the context of unconstitutional conditions and did not justify
avoiding the Nollan and Dolan rules. The majority explained: “Extortionate demands for
property in the land use permitting context run afoul of the Takings Clause not because they take
property but because they impermissibly burden the right not to have property taken without just
compensation.” Moreover, the majority refused to recognize a categorical exception in takings
doctrine, when governments required the payment of money as a condition to developing land.
The test used for regulatory takings was not the appropriate method of analysis for this kind of
condition. “Instead,” the Court reasoned, “petitioner’s claim rests on the more limited
proposition that when the government commands the relinquishment of funds linked to a
specific, identifiable property interest, such as a bank account or parcel of real property, a ‘per se
[takings] approach’ is the proper mode of analysis under the Court’s precedent.” The Court was
untroubled by state concerns that treating monetary exactions as subject to takings analysis
would pose difficulties for states taxing powers.
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Justice Kagan wrote a dissenting opinion, joined by Justices Ginsburg, Breyer and
Sotomayor, and agreed with the majority that Nollan and Dolan apply to the denial of a permit
until the owner meets the condition, but disagreed that the nexus and proportionality
requirements applied to a condition that required the expenditure or payment of money. The
dissent stressed that long-standing constitutional doctrine treated demands for payment to the
government or to spend money on the government’s behalf, as not normally constituting a taking
requiring just compensation. The majority’s application of the heightened Nollan and Dolan
standard to a condition that was a simple demand for payment, in the absence of a traditional
taking, was misplaced, and threatened state and local fee permitting systems. Moreover, the
dissent noted, the majority’s approach would make distinguishing between taxes and monetary
exactions that may constitute takings excessively difficult.
Note: Takings and Government Induced Flooding
Cases involving water management continue to blur the distinction between physical
occupation takings and regulatory takings. In a previous case dating back to the nineteenth
century, the Court had recognized that government-induced flooding may constitute a takings.
Pumpelly v. Green Bay Co., 13 Wall 166 (1872) involved a takings challenge to the construction
of a dam that permanently submerged the owner’s land. Subsequently, in United States v. Cress,
243 U.S. 316 (1917), again involving a dam, the Court recognized that seasonally recurring
flooding that caused “intermittent but inevitably recurring overflows” could constitute a taking.
This past term, the Court made clear that even temporary government induced flooding
may constitute a taking requiring compensation. Arkansas Game and Fish Commission v.
United States, 184 L. Ed. 2d 417 (2012), involved a dispute between a state commission charged
with managing a state wildlife area running along the banks of the Black River in Arkansas, and
the U.S. Army Corps of Engineers with control over the Clearwater Dam, located upstream of
the wildlife and forest area. During the 1990s the Corps changed its water release schedule,
causing flooding that although temporary caused substantial change to the terrain, including
damage to forests, which the lower court concluded, required costly reclamation measures. The
lower court ruled in favor of the Commission but on appeal, the Court of Federal Claims
recognized a categorical exemption for government induced flooding that is temporary in nature,
relying on Cress and Sanguinetti v. United States, 264 U.S. 146 (1924).
In a unanimous opinion by Justice Ginsburg, the Court rejected an automatic exception
for government induced flooding that is temporary in nature. The Court rejected the
Government’s argument that Sanguinetti required a different result, treating the case as resting
on its facts, rather than as standing for a categorical rule that temporary flooding never gave rise
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to a rakings. Sanguinetti had involved a “flood of unprecedented severity” that caused a canal to
overflow onto the claimant’s land; its outcome, the Court noted, “rested on settled principles of
foreseeability and causation.” The Court concluded that there was “no solid grounding in
precedent for setting flooding apart from all other government intrusions on property.” The
Court emphasized, instead, that time (whether the flooding is temporary or permanent) is only
one factor in the takings inquiry, in addition to foreseeability, the character of the land at issue,
the owner’s reasonable investment-backed expectations regarding the land’s use, dependent to an
extent on state law, and the severity of the interference with the landowner’s property. The
Court reversed the appellate court and remanded the case for proceedings consistent with its
opinion.
Justice Kagan took no part in the consideration or decision of the case.
173