My White Whale

Studying the law is demanding.  meaningfulhumblingrewardingwearying.  complex.  Learning from some of the most famous, respected, and brilliant professors and practitioners on the planet can be surreal.  For many of these folks, any and all lulls in activity can be filled with the law.  Seriously.  One professors told my class that he cracked the Sixth Amendment while sitting in traffic.  Certain professors have a gift for making otherwise opaque concepts or complex theories into simple and unavoidable conclusions.  Yet when these legal theories encounter legal doctrines, the results can be frustrating. For me, the Third Circuit’s opinion in United States v. Katzin yesterday nicely highlights this dissonance.

In Katzin, the Third Circuit considered a question left open by the 2012 United States Supreme Court opinion in United States v. Jones:[1] whether the police may attach a GPS device to an automobile and use the device to track the car’s location with probable cause but lacking an official warrant.  After the FBI and local police in Pennsylvania, Maryland, Delaware, and New Jersey (collectively, “the police”) observed Harry Katzin and his brothers in the vicinity of recently robbed pharmacies, the police placed a GPS tracker on his van.  The police observed the van’s movements and eventually apprehended the defendants with stolen merchandise which the government sought to admit into evidence at the ensuing trial.

The Third Circuit affirmed the District Court’s decision to exclude the evidence because it resulted from an unconstitutional search.  Supreme Court precedent requires a warrant for this search.  But taking the Fourth Amendment seriously–as I was taught–the Third Circuit not only got the holding wrong, but asked the wrong question to get there.

Rewind: In the second semester of 1L, I found myself studying criminal procedure with the quippy and brilliant Akhil Reed Amar.  If you haven’t read him yet, I highly recommend it.  Even if you’re uninterested in Constitutional analysis or textualism, his style is something to be admired.  (Particularly this article on Double Jeopardy).  Substantively, his interpretation of the Fourth Amendment is truly convincing, especially to my impressionable 1L self.  So when we moved from his interpretation (namely that the two sentences of the Fourth Amendment are wholly distinct pieces, and warrantless search is not per se unreasonable) to the case law, I was mystified that more jurists did not agree with my Professor.  ‘Amar’s interpretation is so clear,’ I thought, ‘why can’t the case law simply shift to this more elegant solution?’

Fast forward two years to when I am reading Katzin, asking the same question.

The Third Circuit had a two pronged discussion of  whether a warrant was required to attach a GPS monitor to Katzin’s van.  First, the court held that although the police had probable cause, “a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.”  And second, GPS tracking does not fall into the automobile exception to the warrant requirement.  Thus, the warrant requirement reigns supreme.

The warrant requirement.  I was taught to cringe at this phrase as much as I cringe at the phrase “Separate but Equal.”[2]

As Professor Amar points out, “[T]he Fourth Amendment text most emphatically [does] not require warrants. . . .  The Warrant Clause says only when warrants may not issue, not when they may, or must. . . . In every state constitution prior to the federal Bill [of Rights], ‘the warrant is treated as an enemy, not a friend.’ No state convention proposes a warrant requirement for the federal Bill of Rights. And in early drafts of the federal Fourth, it is the loose warrant, not the warrantless intrusion, that is explicitly labeled ‘unreasonable.'” (footnotes omitted).  There is a probable cause requirement for the issuance of warrants, but the Fourth Amendment does not mandate that a magistrate sanction every search and seizure ex ante via a warrant.  Yet despite the elegance of Amar’s argument, and the trend of cutting back on the warrant requirement,[3] the warrant requirement is the law, and Professor Amar’s view is not.

After holding that the lack of warrant made the GPS tracking unreasonable, the Third Circuit went on (with Judge Van Antwerpen dissenting on this point) to exclude the apparently ill-gotten evidence under the Fourth Amendment’s exclusionary rule.  This rule was manufactured by the Supreme Court and applied against the States to deter Fourth Amendment violations.  The dissolution of this unnecessary and inefficient exclusionary rule is another of Professor Amar’s crusades.  “The exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens. Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated,” he writes.  This goal, however, requires more systematic change,[4] so I have more sympathy for the reluctance of courts to do away with it entirely.

Most Roundtable Guests likely have many personal stories of frustration (please share them in the comments below!).  Practitioners among you may have had to eschew personal views before a judge or other adjudicative body.  As a law student, it can be frustrating when older theories outweigh more elegant approaches simply due to the precedential ossification of time.  On the other hand, having an idea of where I think the law ought to go creates a sense of purpose and duty.  So studying the law is…complex.

[1] In the simplest terms, the Court held in Jones that monitoring a car’s location through an external GPS device constituted a “search” under the Fourth Amendment due to the physical intrusion of the device.

[2] At least as applied from Plessy through Brown v. Board of Education.

[3] See, e.g., Terry v. Ohio.

[4] Professor Amar would rely on civil remedies to enforce the Fourth Amendment.  But, as he acknowledges, this would require changes to the current adjudication of § 1983 and Bivens suits:

“[Courts] need only interpret section 1983 to mean what it says—strict government-entity liability—and exercise their traditional remedial powers against federal officialdom. . . .  The deeply rooted power of judges to infer damage remedies for violations of constitutional norms was of course a strong theme of Justice Harlan’s careful and traditional concurring opinion in Bivens. . . .  Such actions enforce, rather than offend, the sovereignty of the People over officialdom.”

The First Monday in October

This October has certainly been unique thus far.  Between the Obamacare exchanges opening, the capture of Anas al-Libi in Libya, and the proposed secession of North Colorado, and of course the one-week-and-counting government shutdown, the United States citizens and their government are defying traditions this month.

Except at 1 First St. NE, Washington D.C.

Roundtable readers are likely aware that yesterday, like every “First Monday in October” since 1917, the nine Supreme Court Justices held their first oral arguments of the October 2013 Term.  Yesterday, they heard oral argument in Chadbourne & Park LLP v. Troice and Madigan v. Levin, and today’s docket was for Burt v. Titlow and McCutcheon v. FEC.  From now on, your Constitutional Law class will become increasingly obsolete.

There are many detailed Supreme Court previews, like USA Today’s, The Heritage Foundation’s, and the Federalist Society’s, our sister organization.  More generally, however, it seems that October Term 2013 won’t feature headline-grabbing decisions like NFIB v. Sebelius, or Hollingsworth v. Perry to the same degree as the past two years.  And we may not see an OT13 Running of the Interns.  But this term is not lacking in momentous Constitutional decisions.  In McCutcheon v. FEC, for example, the Court could obliterate an erstwhile tenet of political speech, that Congress can limit overall donations to political campaigns.  In NLRB v. Canning (argument date not set), the Nine will have to interpret the Recess Appointments Clause (Article II.3), which they have never done before according to a quick Westlaw search.

Despite this potential, the Court has been reluctant to hand down expansive, precedent-setting cases. Take NFIB v. Sebelius, for example, to listen to pundits, President Barack Obama’s signature legislation was upheld in its entirety.  But by carefully counting the votes in the Chief’s opinion and Justice Ruth Bader Ginsburg’s dissent concurrence, only Obamacare’s Individual Mandate was clearly upheld.  The rest of the law, and whether the Commerce Clause has grown, shrunk, or stayed the same remains an open question of law.  Or consider Hollingsworth v. Perry, if your understanding of the case derived from Facebook posts, you might have thought that the Supreme Court had declared same sex marriage legal throughout the nation, but the case was clearly much narrower.  Such incremental Constitutional law may be the hallmark of the Roberts Court, and this Term may be no different.  Indeed, SCOTUSblog reporter Lyle Deniston already discounts the possibility of the McCutcheon case producing a large constitutional holding based on today’s oral argument.  Still, this case could reopen the doors on political speech and allow every citizen to make his case as loudly and effectively as Oprah.

That is… as long as the Court stays open. The Court will eventually run out of money to keep its doors open during this shutdown—in fact, it will run out of money on October 15 when its “rainy day” fund is drained.  No matter what you think of the nine Justices, the Supreme Court, if not the federal judiciary is a cornerstone of democracy and the rule of law.  Whatever the outcome between the Democrats and Republicans on the Hill, let us hope that the Courts aren’t shuttered as well.




United States v. North Carolina

By Jonathan H. Levy

With Americans beginning to feel the effects of the latest government shutdown, it might seem that money drives our government.  But cash is closer to the car’s gasoline than its driver: gasoline powers the engine, but especially today, it is clear that the car, gasoline, and engine are useless without Messrs. Reid and Boehner in the driver’s seat, negotiating with each other.  This Shutdown Tuesday, I’m thinking about those drivers and the lawsuit Attorney General Eric Holder filed Monday in Greensboro, North Carolina, challenging the Tar Heel state’s Voter Information Verification Act, signed into law by Governor Pat McCrory on August 12, 2013.

When researching the suit, captioned United States v. North Carolina, I was initially surprised that not one article I read cited or linked to the actual law.  I once had a wise boss who, the morning of the NFIB v. Sebelius decision, told me to say nothing about the decision until I had read it.  In his immortal words, “Reading helps you know what you’re talking about.”  Obviously, I was not working for CNN or Fox.  I don’t want to rant about the importance of the text in statutory interpretation, nor do I allege that those authors I read did not actually read the law.  But the media ought to disseminate information and then comment upon it—in that order. The internet makes citations so easy that when one editorializes about a thing, he should encourage readers to judge the thing for themselves. I’ve already cited to the Act above but it’s so easy, I’ll do it again: Voter Information Verification Act.

The complaint speaks in racially charged language, noting for example, that no African-Americans voted for the legislation.  But thankfully, the complaint does not equate voter ID laws to poll taxes, as Mr. Holder claimed last year.  Such forbearance, however, does not indicate a strong foundation.

The Department of Justice’s complaint claims the Act has a discriminatory intent and purpose.  The Act’s leading section, codified in Article 14A of Chapter 163 of North Carolina’s General Statutes requires in-person voters to present one of several forms of valid identification.  Ripley Rand, United States Attorney for the Middle District of North Carolina, and Jocelyn Samuels, Acting Assistant Attorney General, Civil Rights Division, who signed the complaint, argue that because in 2010, black North Carolinians had “higher rates of poverty” than whites with less access to a DMV able to issue proper identification, the bill discriminates in effect and by design.  This allegation is half-hearted.  First, Justice offered a report by the State Board of Elections (“SBOE”) showing that about five percent of registered voters had no proper identification from the DMV.  The Complaint, however, omits an important qualification: that the SBOE does not account for people who lack DMV identification, but possess another valid form.  The original report clearly states this qualification, but Justice strategically omits it.  Thus, the Complaint speaks of a worst-case scenario.  But even so, the numbers do not clearly show discrimination.  For example, 14.3% of non-Hispanic black households in North Carolina lacked access to a vehicle, as compared to 4.3% of non-Hispanic white households.  It is therefore factually accurate to say that access to vehicles is disproportionate, but query whether this difference is statistically significant.

Next, the Complaint mentions in passing that the exhaustive list of valid identification is unnecessarily narrow and excludes, for example, utility bills and student identification from a North Carolina college.  Nevertheless, if the Act’s purpose is to match a face with a name, a utility bill is obviously insufficient, and student identification is overinclusive because international students, not eligible to vote, would carry such a card.

The rest of the Complaint deals with the restrictions on early voting, the elimination of preregistration, and the elimination of same-day registration.  Rand and Samuels again point to statistics about how African-Americans disproportionately use these erstwhile provisions.

According to the Justice Department, this disproportionate treatment amounts to discrimination because the North Carolina General Assembly heard and ignored testimony about such a disparate impact.  Set against a background of North Carolina’s racial discrimination and the fact that the legislature explicitly waited for the Shelby County v. Holder decision to pass the Act the uneven effect conclusively proves discrimination in violation of the Fourteenth and Fifteenth Amendments says the Justice Department.  The allegations thus rest on nothing but statistical conjecture.

Finally, it should be noted that the Department of Justice challenges these law under the Voting Rights Act—the very same Act some feared was gutted in the Shelby County decision.  Whether or not the specific allegations in United States v. North Carolina have merit, it is clear that Attorney General Holder has power to enforce the Voting Rights Act and ensure the widest franchise possible.

Preferencing based on race is reprehensible in all its forms.  But the basis of an allegation of racial discrimination cannot be res ipsa loquitor, much less ipse dixit.  Let us challenge our leaders to provide more proof before spending taxpayer dollars on such frivolous lawsuits.  Let us use our hard-won civil rights legislation to help eradicate discrimination to the extent required by humanity.  With such rights firmly secured, let us soon elect some drivers willing to serve us and cooperate with one another.


On Tyranny

Remember when 100,000 Philadelphians destroyed Broad Street after the 2008 Phillies beat the Rays in five games? That was basically the mood in my apartment last night when I learned that the FAA was going to relax the regulations on the use of electronic devices during taxi, takeoff and landing. “Finally,” I thought, “The despotic FAA’s draconian rule tyrannically forbidding me to play Angry Birds Space read the JLPP Kindle edition during taxi, takeoff, and landing is as dead as the Stamp Act! Sic Semper Tyrannis!”

My elation turned sour when I actually read the New York Times article and remembered that the easing must still traverse the federal government’s bureaucracy, or at least a portion of it. In fact, as The New York Times reports, the rule will likely be relaxed next year, if the FAA takes up the recommendations due to be submitted by an advisory committee this month (which were originally supposed to be submitted in July). But OK, OK, they’re still relaxing the rule. This is still great news!

Then again…

Doesn’t the FAA seem a bit late to the party? In 2006, the Discovery Channel aired Mythbusters, Season 4, Episode 6: “Cell Phones on Planes.” For those not familiar with the show, pyrophilic hosts Adam Savage and Jamie Hyneman use science to prove or disprove “myths” from urban legends, popular culture, or common knowledge. In “Cell Phones on Planes,” Savage and Hyneman simulated the effect of cell phone use at commercial flight altitudes and determined that there would be no effect on airline safety. The team did issue the caveat that such high altitude use of cell phones would affect cell phone tower functioning, and thus was regulated by the FCC. Still the point stands that it has been a while since many—if not most of us—learned that the use of electronic devices on commercial airplanes does not hinder the pilot’s ability to fly the plane. Yet the regulation has remained on the books, and its vigorous enforcement caused my friend to admit that it gave him hope because “if they’re enforcing that stupid rule, that must mean they are enforcing the more important ones, too.’”

Odd syllogism, and flawed assumption aside, we should question why we agree to turn our iPads off whenever the flight attendants ask us to do so. How can we effect change when we have no ability to vote the bums out of office? Yes, it is only a 20-minute inconvenience. Yes, it appears that the FAA will release the reins of “tyranny.” But when Apple releases a new iPhone every year, how can we expect the federal government to keep up? Really—how do we develop Constitutional agencies that are nimble enough to change with the times? Isn’t a benefit of the “headless fourth branch” that it can sometimes act with the speed of the executive?

Comments welcome!

Constitution Day

Jonathan Levy, Communications Editor
Jonathan H. Levy, Communications Editor

Jewish holidays are remarkably diverse. On Yom Kippur, which we celebrated this past Saturday, we fast, don’t wear leather shoes, or have sex. During Sukkot, which begins tomorrow night, we eat, work, and live in small huts. During Passover, we refrain from all leavened foodstuffs. On Shabbat, we don’t turn on lights, carry money, or tie knots. Almost every Jewish ritual, however, revolves about one essential element: the Torah. The Torah is the foundational legal document of the Jewish people. Although it goes into remarkable detail on the rights, duties, privileges, and obligations that Jewish men, women, and children owe to one another and to G-d, it has still sparked thousands of pages of commentary. The Torah and its steadily dripping interpretations have cut deep gorges in humanity, separating Christians from Muslims from Jews. And the canyons cut between factions of Judaism are no less deep.

Americans also have a hotly contested foundational text, and on this day in 1787, representatives from all parts of a nascent country devised that “experiment in self-government.” Though it says little about individual rights, the original document meticulously describes how the branches of the federal government interact with the States, the People, and one another. Like those of the Torah, interpretations of the Constitution abound, and have deeply divided the American people. So much clarification is required that no less a legal fountainhead than Justice Ruth Bader Ginsburg told the Egyptian people that our Constitution should not serve as a model for modern constitutions. Also like the Torah, the Constitution has endured for several generations—although admittedly, the former may be fifteen times older.

The two documents diverge in (at least) one significant respect: while the People may change the Constitution explicitly (and perhaps implicitly), as a Divinely inspired/authored document, the Torah is essentially frozen.  That is, if G-d wrote or inspired the Torah, humans may interpret it, but we have no authority to supplement, abrogate, or rewrite it. Some Jews accept this fact and adhere to as much of the law as is possible. Other Jews believe the Torah requires continuing interpretation to comport with modern realities. Still other Jews, however, simply ignore vast swaths of the Torah when it becomes inconvenient. “Even though I’m not supposed to spend money on Shabbat,” they think, “Transformers 14 is coming out today, and I have to go see it!” In my experience, those who harbor each of these beliefs generally have good and valid reasons for so doing.

In secular America, the People have fundamentally changed the way the federal government works 27 times. The process is not easy, and it is rarely quick—but such a burden makes sense when altering a foundational text. The procedure is sufficiently difficult people generally agree a change is required. In this time of intense politicization, however, a simple majority vote seems overwhelming, let alone the heightened strictures of Article V of the United States Constitution. With no clear path to Amendment, will the Constitution ossify into an unalterable law like the Torah? And if it does harden, how long before some of us begin to ignore it altogether?

September 17 is not only the 226th anniversary of the signing of the Constitution, but it also marks the 151st anniversary of the bloodiest day in American history. In 1862, 100,000 soldiers met on a luscious field near Antietam Creek in Maryland, and by the end of the day, 23,000 men would lay dead or wounded. Each of those 100,000 soldiers, Union or Confederate, was willing to give his life to defend a legal document. They were prepared to make—and 4,000 of them did make—the ultimate sacrifice to prove that that document retained its meaning. On this Constitution Day, let us remember that the words of the Constitution have meaning, that that meaning deserves to be defended, and that the Framers gave us a republic—if we can keep it.