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Wrt the citizenship case, its pretty clear the Trump admin is doing it because racism. But I feel in a vacuum, any government wanting to know how many people in its boarders are citizens, how many are perm. residents, how many are on temp visas, etc isn't a completely terrible thing.
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Jun 26, 2019 16:03
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Nissin Cup Nudist posted:Wrt the citizenship case, its pretty clear the Trump admin is doing it because racism. But I feel in a vacuum, any government wanting to know how many people in its boarders are citizens, how many are perm. residents, how many are on temp visas, etc isn't a completely terrible thing. Good thing we have proof that this cow isn't spherical, the guy behind this literally said it was to advantage "Republicans and non-Hispanic whites."
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Jun 26, 2019 16:10
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Nissin Cup Nudist posted:Wrt the citizenship case, its pretty clear the Trump admin is doing it because racism. But I feel in a vacuum, any government wanting to know how many people in its boarders are citizens, how many are perm. residents, how many are on temp visas, etc isn't a completely terrible thing. Sure enough, but why gently caress with the census? You know the commerce department runs community surveys all the time right? Surely there must be some way to ascertain the number of citizens without asking about it on the census (which is certainly intended to count people not citizens).
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Jun 26, 2019 16:13
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Ogmius815 posted:Sure enough, but why gently caress with the census? You know the commerce department runs community surveys all the time right? Surely there must be some way to ascertain the number of citizens without asking about it on the census (which is certainly intended to count people not citizens). Yeah, that's the thing. In the abstract asking about citizens could be one good way to do it. However, the census clauses in the constitution as drafted specifies people not citizens (because, you know, 3/5ths) and we know for a fact that the current policy proposal was made for explicitly racist reasons.
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Jun 26, 2019 16:24
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Piell posted:Yeah I read a tweet thread suggesting they'll just send it back down to look at the new info, especially since the plaintiff is saying the real deadline to decide this by is October 31st. gently caress, if Alito is writing it then it's almost certainly not good.
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Jun 26, 2019 16:28
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FAUXTON posted:gently caress, if Alito is writing it then it's almost certainly not good. it's alito or roberts, josh is just projecting what he'd like to happen
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Jun 26, 2019 16:33
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If its Roberts it could be some sort of really bizarre punt.
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Jun 26, 2019 16:34
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FAUXTON posted:gently caress, if Alito is writing it then it's almost certainly not good. Yeah. My guess is that Alito was planning on writing or had even already written a classic "racism is fine because we can't *prove* the intent of the question and there's a technical justification for it" opinion and then that blew up in their face. Still possible he'll ratify it anyway because Alito.
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Jun 26, 2019 16:35
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FAUXTON posted:gently caress, if Alito is writing it then it's almost certainly not good.
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Jun 26, 2019 16:37
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Hieronymous Alloy posted:Yeah. My guess is that Alito was planning on writing or had even already written a classic "racism is fine because we can't *prove* the intent of the question and there's a technical justification for it" opinion and then that blew up in their face. that no longer solves their problem with the imminent equal protection ruling in the challenge in the fourth circuit, though. i'd bet good money it's roberts, this is a tight political needle to thread and alito is a bomb thrower. safest route is to punt this somehow (or dismiss as improvidently granted) and wait to do it in october when you can wrap it all up at once, rather than doing a horribly unpopular thing now and also doing a horribly unpopular thing in october eke out fucked around with this message at 16:42 on Jun 26, 2019 |
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Jun 26, 2019 16:39
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I thought today was scheduled as an opinion day? No opinions or just no Ulmont?
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Jun 26, 2019 16:45
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 Opinions! UNITED STATES v. HAYMOND Holding / Plurality Opinion (Gorsuch): Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government. Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments. After a jury found Andre Haymond guilty of possessing child pornography in violation of federal law, the question turned to sentencing….Because Mr. Haymond had no criminal history and was working to help support his mother who had suffered a stroke, the judge concluded that Mr. Haymond was “not going to get much out of being in prison” and sentenced him to a prison term of 38 months, followed by 10 years of supervised release. After completing his prison sentence, however, Mr. Haymond encountered trouble on supervised release. He sat for multiple polygraph tests in which he denied possessing or viewing child pornography, and each time the test indicated no deception. But when the government conducted an unannounced search of his computers and cellphone, it turned up 59 images that appeared to be child pornography. ... A hearing followed before a district judge acting without a jury, and under a preponderance of the evidence rather than a reasonable doubt standard. In light of expert testimony regarding the manner in which cellphones can “cache” images without the user’s knowledge, the judge found insufficient evidence to show that Mr. Haymond knowingly possessed 46 of the images. At the same time, the judge found it more likely than not that Mr. Haymond knowingly downloaded and possessed the remaining 13 images. ... Under [18 U.S.C.] §3583(k), added to the Act in 2003 and amended in 2006, if a judge finds by a preponderance of the evidence that a defendant on supervised release committed one of several enumerated offenses, including the possession of child pornography, the judge must impose an additional prison term of at least five years and up to life without regard to the length of the prison term authorized for the defendant’s initial crime of conviction. ... [T]he Tenth Circuit concluded that §3583(k) violated the Fifth and Sixth Amendments. The court explained that a jury had convicted Mr. Haymond beyond a reasonable doubt of a crime carrying a prison term of zero to 10 years. Yet now Mr. Haymond faced a new potential prison term of five years to life. Because this new prison term included a new and higher mandatory minimum resting only on facts found by a judge by a preponderance of the evidence, the court held, the statute violated Mr. Haymond’s right to trial by jury. ... [T]he Framers adopted the Sixth Amendment’s promise that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In the Fifth Amendment, they added that no one may be deprived of liberty without “due process of law.” Together, these pillars of the Bill of Rights ensure that the government must prove to a jury every criminal charge beyond a reasonable doubt, an ancient rule that has “extend[ed] down centuries.” But when does a “criminal prosecution” arise implicating the right to trial by jury beyond a reasonable doubt? … Because the Constitution’s guarantees cannot mean less today than they did the day they were adopted, it remains the case today that a jury must find beyond a reasonable doubt every fact “‘which the law makes essential to [a] punishment’” that a judge might later seek to impose. For much of our history, the application of this rule of jury supervision proved pretty straightforward. … More recent legislative innovations have raised harder questions. In Apprendi, for example, a jury convicted the defendant of a gun crime that carried a maximum prison sentence of 10 years. But then a judge sought to impose a longer sentence pursuant to a statute that authorized him to do so if he found, by a preponderance of the evidence, that the defendant had committed the crime with racial bias. Apprendi held this scheme unconstitutional. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum,” this Court explained, “must be submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant. Nor may a State evade this traditional restraint on the judicial power by simply calling the process of finding new facts and imposing a new punishment a judicial “sentencing enhancement.” “[T]he relevant inquiry is one not of form, but of effect—does the required [judicial] finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” … By now, the lesson for our case is clear. Based on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years under §2252(b)(2). But then a judge—acting without a jury and based only on a preponderance of the evidence—found that Mr. Haymond had engaged in additional conduct in violation of the terms of his supervised release. Under §3583(k), that judicial factfinding triggered a new punishment in the form of a prison term of at least five years and up to life. So just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased “the legally prescribed range of allowable sentences” in violation of the Fifth and Sixth Amendments. In this case, that meant Mr. Haymond faced a minimum of five years in prison instead of as little as none. … Mr. Haymond received his new punishment from a judge at a hearing to consider the revocation of his term of supervised release. This procedural distinction makes all the difference, we are told, because the Sixth Amendment’s jury trial promise applies only to “criminal prosecutions,” which end with the issuance of a sentence and do not extend to “postjudgment sentence-administration proceedings.” But we have been down this road before. Our precedents, Apprendi, Blakely, and Alleyne included, have repeatedly rejected efforts to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution a “sentencing enhancement.” Calling part of a criminal prosecution a “sentence modification” imposed at a “postjudgment sentence-administration proceeding” can fare no better. As this Court has repeatedly explained, any “increase in a defendant’s authorized punishment contingent on the finding of a fact” requires a jury and proof beyond a reasonable doubt “no matter” what the government chooses to call the exercise. … At oral argument, the government even conceded that, under its theory, a defendant on supervised release would have no Sixth Amendment right to a jury trial when charged with an infraction carrying the death penalty. We continue to doubt whether even Apprendi’s fiercest critics “would advocate” such an “absurd result.” … [T]he government next turns around and suggests that Mr. Haymond’s sentence for violating the terms of his supervised release was actually fully authorized by the jury’s verdict. … But we have been down this road too. In Apprendi and Alleyne, the jury’s verdict triggered a statute that authorized a judge at sentencing to increase the defendant’s term of imprisonment based on judge-found facts. This Court had no difficulty rejecting that scheme as an impermissible evasion of the historic rule that a jury must find all of the facts necessary to authorize a judicial punishment. And what was true there can be no less true here: A mandatory minimum 5-year sentence that comes into play only as a result of additional judicial factual findings by a preponderance of the evidence cannot stand. … Notice, too, that following the government down this road would lead to the same destination as the last: If the government were right, a jury’s conviction on one crime would (again) permit perpetual supervised release and allow the government to evade the need for another jury trial on any other offense the defendant might commit, no matter how grave the punishment. ... [T]he government and the dissent seem to accept for argument’s sake that “postjudgment sentence-administration proceedings” can implicate the Fifth and Sixth Amendments. But, they contend, §3583(k)’s supervised release revocation procedures are practically identical to historic parole and probation revocation procedures. … Where parole and probation violations generally exposed a defendant only to the remaining prison term authorized for his crime of conviction, as found by a unanimous jury under the reasonable doubt standard, supervised release violations subject to §3583(k) can, at least as applied in cases like ours, expose a defendant to an additional mandatory minimum prison term well beyond that authorized by the jury’s verdict—all based on facts found by a judge by a mere preponderance of the evidence. In fact, §3583(k) differs in this critical respect not only from parole and probation; it also represents a break from the supervised release practices that Congress authorized in §3583(e)(3) and that govern most federal criminal proceedings today. Unlike all those procedures, §3583(k) alone requires a substantial increase in the minimum sentence to which a defendant may be exposed based only on judge-found facts under a preponderance standard. … The judgment of the court of appeals is vacated, and the case is remanded for further proceedings. It is so ordered. Lineup: Gorsuch, joined by Ginsburg, Sotomayor, and Kagan. Concurrence-in-the-Judgment by Breyer. Dissent by Alito, joined by Roberts, Thomas, and Kavanaugh. Other Opinions: Concurrence-in-the-Judgment (Breyer) [NOTE: THIS SHOULD BE THE CONTROLLING OPINION]: I agree with much of the dissent, in particular that the role of the judge in a supervised-release proceeding is consistent with traditional parole. As 18 U. S. C. §3583 makes clear, Congress did not intend the system of supervised release to differ from parole in this respect. And in light of the potentially destabilizing consequences, I would not transplant the Apprendi line of cases to the supervised-release context. Nevertheless, I agree with the plurality that this specific provision of the supervised-release statute, §3583(k), is unconstitutional. Revocation of supervised release is typically understood as “part of the penalty for the initial offense.” … Section 3583(k) is difficult to reconcile with this understanding of supervised release. In particular, three aspects of this provision, considered in combination, lead me to think it is less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach. First, §3583(k) applies only when a defendant commits a discrete set of federal criminal offenses specified in the statute. Second, §3583(k) takes away the judge’s discretion to decide whether violation of a condition of supervised release should result in imprisonment and for how long. Third, §3583(k) limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge’s finding that a defendant has “commit[ted] any” listed “criminal offense.” Taken together, these features of §3583(k) more closely resemble the punishment of new criminal offenses, but without granting a defendant the rights, including the jury right, that attend a new criminal prosecution. … Accordingly, I would hold that §3583(k) is unconstitutional and remand for the Court of Appeals to address the question of remedy. Because this is the course adopted by the plurality, I concur in the judgment. Dissent (Alito): I do not think that there is a constitutional basis for today’s holding, which is set out in JUSTICE BREYER’s opinion, but it is narrow and has saved our jurisprudence from the consequences of the plurality opinion, which is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications. The plurality opinion appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope. What do I mean by this? Many passages in the opinion suggest that the entire system of supervised release, which has been an integral part of the federal criminal justice system for the past 35 years, is fundamentally flawed in ways that cannot be fixed. Under the Sentencing Reform Act of 1984 (SRA), whenever a federal court sentences a criminal defendant to a term of imprisonment, the court may include in the sentence a term of supervised release, and under some circumstances supervised release is mandatory. When a court imposes a term of supervised release, the order must specify the conditions with which the defendant is required to comply, §3583(d), and a judge may revoke supervised release and send a defendant back to prison if the judge finds by a preponderance of the evidence that the defendant violated one of those conditions, §3583(e)(3). Many statements and passages in the plurality opinion strongly suggest that the Sixth Amendment right to a jury trial applies to any supervised-release revocation proceeding. … The intimation in all these statements is clear enough: All supervised-release revocation proceedings must be conducted in compliance with the Sixth Amendment— which means that the defendant is entitled to a jury trial, which means that as a practical matter supervised-release revocation proceedings cannot be held. In 2018, federal district courts completed 1809 criminal jury trials. Admin. Office of U. S. Courts, Judicial Business of the United States Courts (2018) (Table T–1). During that same year, they adjudicated 16,946 revocations of supervised release, ibid. (Table E–7A), and there is simply no way that the federal courts could empanel enough juries to adjudicate all those proceedings, let alone try all those proceedings in accordance with the Sixth Amendment’s Confrontation Clause. So, if every supervised-release revocation proceeding is a criminal prosecution, as the plurality suggests, the whole concept of supervised release will come crashing down. … Today’s decision is based in part on an opinion that is unpardonably vague and suggestive in dangerous ways. It is not grounded on any plausible interpretation of the original meaning of the Sixth Amendment, and it is contradicted by precedents that are unceremoniously overruled. It represents one particular view about crime and punishment that is ascendant in some quarters today but is not required by the Constitution. If the Court eventually takes the trip that this opinion proposes, the consequences will be far reaching and unfortunate. For these reasons, I respectfully dissent. https://www.supremecourt.gov/opinions/18pdf/17-1672_5hek.pdf KISOR v. WILKIE, SECRETARY OF VETERANS AFFAIRS Holding / Majority Opinion (Kagan): This Court has often deferred to agencies’ reasonable readings of genuinely ambiguous regulations. We call that practice Auer deference, or sometimes Seminole Rock deference, after two cases in which we employed it. The only question presented here is whether we should overrule those decisions, discarding the deference they give to agencies. We answer that question no. Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to apply it depends on a range of considerations that we have noted now and again, but compile and further develop today. The deference doctrine we describe is potent in its place, but cabined in its scope. On remand, the Court of Appeals should decide whether it applies to the agency interpretation at issue. … Auer deference is not the answer to every question of interpreting an agency’s rules. Far from it. As we explain in this section, the possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the “power to persuade.” We have thus cautioned that Auer deference is just a “general rule”; it “does not apply in all cases.” And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is “unwarranted.” In particular, that will be so when a court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, “fair[, or] considered judgment.” … First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertainty does not exist, there is no plausible reason for deference….And before concluding that a rule is genuinely ambiguous, a court must exhaust all the “traditional tools” of construction. … If genuine ambiguity remains, moreover, the agency’s reading must still be “reasonable.” In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. … Still, we are not done—for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. … To begin with, the regulatory interpretation must be one actually made by the agency. In other words, it must be the agency’s “authoritative” or “official position,” rather than any more ad hoc statement not reflecting the agency’s views. … Next, the agency’s interpretation must in some way implicate its substantive expertise. Administrative knowledge and experience largely “account [for] the presumption that Congress delegates interpretive lawmaking power to the agency.” … Finally, an agency’s reading of a rule must reflect “fair and considered judgment” to receive Auer deference. That means, we have stated, that a court should decline to defer to a merely “convenient litigating position” or “post hoc rationalizatio[n] advanced” to “defend past agency action against attack.” … The upshot of all this goes something as follows. When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision. But that phrase “when it applies” is important—because it often doesn’t. … Applying the principles outlined in this opinion, we hold that a redo is necessary for two reasons. First, the Federal Circuit jumped the gun in declaring the regulation ambiguous. We have insisted that a court bring all its interpretive tools to bear before finding that to be so. It is not enough to casually remark, as the court did here, that “both parties insist that the plain regulatory language supports their case, and neither party’s position strikes us as unreasonable.” Rather, the court must make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning. The Solicitor General argued in this Court that the Board’s reading is the only reasonable one. Perhaps Kisor will make the converse claim below. Before even considering deference, the court must seriously think through those positions. And second, the Federal Circuit assumed too fast that Auer deference should apply in the event of genuine ambiguity. As we have explained, that is not always true. A court must assess whether the interpretation is of the sort that Congress would want to receive deference. The Solicitor General suggested at oral argument that the answer in this case might be no. He explained that all 100 or so members of the VA Board act individually (rather than in panels) and that their roughly 80,000 annual decisions have no “precedential value.” He thus questioned whether a Board member’s ruling “reflects the considered judgment of the agency as a whole.” We do not know what position the Government will take on that issue below. But the questions the Solicitor General raised are exactly the kind the court must consider in deciding whether to award Auer deference to the Board’s interpretation. We accordingly vacate the judgment below and remand the case for further proceedings. It is so ordered. Lineup: Kagan [Parts I, II-B, III-B, and IV], joined by Roberts, Ginsburg, Breyer, and Sotomayor. Concurrence by Kagan [Parts II-A and III-A], joined by Ginsburg, Breyer, and Sotomayor. Concurrence-in-Part by Roberts. Concurrence-in-the-Judgment by Gorsuch, joined by Thomas and in part by Kavanaugh [Parts I-V] and Alito [Parts I-III]. Concurrence-in-the-Judgment by Kavanaugh, joined by Alito. Other Opinions: Concurrence (Kagan): [Part II-A] Begin with a familiar problem in administrative law: For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting—the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge. The subject matter of a rule “may be so specialized and varying in nature as to be impossible”—or at any rate, impracticable—to capture in its every detail. Or a “problem[] may arise” that the agency, when drafting the rule, “could not [have] reasonably foresee[n].” Whichever the case, the result is to create real uncertainties about a regulation’s meaning. … In each case, interpreting the regulation involves a choice between (or among) more than one reasonable reading. To apply the rule to some unanticipated or unresolved situation, the court must make a judgment call. How should it do so? In answering that question, we have often thought that a court should defer to the agency’s construction of its own regulation. For the last 20 or so years, we have referred to that doctrine as Auer deference, and applied it often. But the name is something of a misnomer. Before the doctrine was called Auer deference, it was called Seminole Rock deference—for the 1945 decision in which we declared that when “the meaning of [a regulation] is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” And Seminole Rock itself was not built on sand. Deference to administrative agencies traces back to the late nineteenth century, and perhaps beyond. We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities. Congress, we have pointed out, routinely delegates to agencies the power to implement statutes by issuing rules. In doing so, Congress knows (how could it not?) that regulations will sometimes contain ambiguities. But Congress almost never explicitly assigns responsibility to deal with that problem, either to agencies or to courts. Hence the need to presume, one way or the other, what Congress would want. And as between those two choices, agencies have gotten the nod. We have adopted the presumption—though it is always rebuttable—that “the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Or otherwise said, we have thought that when granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue. In part, that is because the agency that promulgated a rule is in the “better position [to] reconstruct” its original meaning. Consider that if you don’t know what some text (say, a memo or an e-mail) means, you would probably want to ask the person who wrote it. And for the same reasons, we have thought, Congress would too (though the person is here a collective actor). The agency that “wrote the regulation” will often have direct insight into what that rule was intended to mean. … In still greater measure, the presumption that Congress intended Auer deference stems from the awareness that resolving genuine regulatory ambiguities often “entail[s] the exercise of judgment grounded in policy concerns.” … And Congress, we have thought, knows just that: It is attuned to the comparative advantages of agencies over courts in making such policy judgments. Agencies (unlike courts) have “unique expertise,” often of a scientific or technical nature, relevant to applying a regulation “to complex or changing circumstances.” … Finally, the presumption we use reflects the well-known benefits of uniformity in interpreting genuinely ambiguous rules. We have noted Congress’s frequent “preference for resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation.” … [Part III-A] Kisor first attacks Auer as inconsistent with the judicial review provision of the Administrative Procedure Act (APA)....According to Kisor, Auer violates that edict by thwarting “meaningful judicial review” of agency rules. … To begin with, that argument ignores the many ways, discussed above, that courts exercise independent review over the meaning of agency rules. … And even when a court defers to a regulatory reading, it acts consistently with Section 706. That provision does not specify the standard of review a court should use in “determin[ing] the meaning” of an ambiguous rule. … Kisor next claims that Auer circumvents the APA’s rulemaking requirements. Section 553, as Kisor notes, mandates that an agency use notice-and-comment procedures before issuing legislative rules....[C]onsider, Kisor argues, what happens when a court gives Auer deference to an interpretive rule. The result, he asserts, is to make a rule that has never gone through notice and comment binding on the public. Or put another way, the interpretive rule ends up having the “force and effect of law” without ever paying the procedural cost. But this Court rejected the identical argument just a few years ago, and for good reason. [W]e held that interpretive rules, even when given Auer deference, do not have the force of law. An interpretive rule itself never forms “the basis for an enforcement action”—because, as just noted, such a rule does not impose any “legally binding requirements” on private parties … To supplement his two APA arguments, Kisor turns to policy, leaning on a familiar claim about the incentives Auer creates. According to Kisor, Auer encourages agencies to issue vague and open-ended regulations, confident that they can later impose whatever interpretation of those rules they prefer. … But the claim has notable weaknesses, empirical and theoretical alike. First, it does not survive an encounter with experience. No real evidence—indeed, scarcely an anecdote—backs up the assertion. As two noted scholars (one of whom reviewed thousands of rules during four years of government service) have written: “[W]e are unaware of, and no one has pointed to, any regulation in American history that, because of Auer, was designed vaguely.” … Finally, Kisor goes big, asserting (though fleetingly) that Auer deference violates “separation-of-powers principles.” In his view, those principles prohibit “vest[ing] in a single branch the law-making and law-interpreting functions.” If that objection is to agencies’ usurping the interpretive role of courts, this opinion has already met it head-on. Properly understood and applied, Auer does no such thing. In all the ways we have described, courts retain a firm grip on the interpretive function. Concurrence-in-Part (Roberts) [NOTE: THIS OPINION IS IMPORTANT FOR THIS CASE]: I join Parts I, II–B, III–B, and IV of the Court’s opinion. We took this case to consider whether to overrule Auer v. Robbins, 519 U. S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). For the reasons the Court discusses in Part III–B, I agree that overruling those precedents is not warranted. I also agree with the Court’s treatment in Part II–B of the bounds of Auer deference. I write separately to suggest that the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear. The majority catalogs the prerequisites for, and limitations on, Auer deference: The underlying regulation must be genuinely ambiguous; the agency’s interpretation must be reasonable and must reflect its authoritative, expertise-based, and fair and considered judgment; and the agency must take account of reliance interests and avoid unfair surprise. JUSTICE GORSUCH, meanwhile, lists the reasons that a court might be persuaded to adopt an agency’s interpretation of its own regulation: The agency thoroughly considered the problem, offered a valid rationale, brought its expertise to bear, and interpreted the regulation in a manner consistent with earlier and later pronouncements. Accounting for variations in verbal formulation, those lists have much in common. That is not to say that Auer deference is just the same as the power of persuasion discussed in Skidmore v. Swift & Co., 323 U. S. 134 (1944); there is a difference between holding that a court ought to be persuaded by an agency’s interpretation and holding that it should defer to that interpretation under certain conditions. But it is to say that the cases in which Auer deference is warranted largely overlap with the cases in which it would be unreasonable for a court not to be persuaded by an agency’s interpretation of its own regulation. One further point: Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. I do not regard the Court’s decision today to touch upon the latter question. Concurrence-in-the-Judgment (Gorsuch): [This might as well be a dissent] It should have been easy for the Court to say goodbye to Auer v. Robbins. In disputes involving the relationship between the government and the people, Auer requires judges to accept an executive agency’s interpretation of its own regulations even when that interpretation doesn’t represent the best and fairest reading. This rule creates a “systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.” Nor is Auer’s biased rule the product of some congressional mandate we are powerless to correct: This Court invented it, almost by accident and without any meaningful effort to reconcile it with the Administrative Procedure Act or the Constitution. A legion of academics, lower court judges, and Members of this Court—even Auer’s author—has called on us to abandon Auer. Yet today a bare majority flinches, and Auer lives on. Still, today’s decision is more a stay of execution than a pardon. The Court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis. And yet, far from standing by that precedent, the majority proceeds to impose so many new and nebulous qualifications and limitations on Auer that THE CHIEF JUSTICE claims to see little practical difference between keeping it on life support in this way and overruling it entirely. So the doctrine emerges maimed and enfeebled—in truth, zombified. Respectfully, we owe our colleagues on the lower courts more candid and useful guidance than this. … [T]he seeds of the Auer doctrine were first planted only in 1945, in Bowles v. Seminole Rock & Sand Co.That case involved regulations issued by the Office of Price Administration (OPA), which Congress had tasked with stabilizing the national economy during the Second World War through the use of emergency price controls. It was in that context that the Court declared—for the first time and without citing any authority—that “if the meaning of [the regulation were] in doubt,” the agency’s interpretation would merit “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Yet even then it was far from clear how much weight the Court really placed on the agency’s interpretation. As it had in Eaton, the Court in Seminole Rock began with an extended discussion of “the plain words of the regulation,” which led it to conclude that the text “clearly” supported the government’s position. Only after reaching that conclusion based on its own independent analysis did the Court proceed to add that “[a]ny doubts . . . are removed by reference to the administrative construction.” So confused was all this that readers at the time didn’t perceive Seminole Rock’s dictum as changing anything. Professor Davis observed that the Court’s discussion about giving “controlling weight” to the agency’s interpretation was an unexplained aside that made no difference to the case’s outcome. The dictum, too, was readily explained as reflecting the unusual factual context in which the case arose, involving an emergency government program created to deal with “unique circumstances of war and economic depression.” And the Court decided Seminole Rock the same Term it issued Skidmore, where it reaffirmed the traditional rule that an agency’s views about the law may persuade a court but can never control its judgment. In fact, the Court in Seminole Rock was careful to note that the OPA interpretation before it bore many of the characteristics Skidmore would have recognized as increasing its persuasive force: It had been announced concurrently with the regulation, disseminated widely to the regulated community, and adhered to consistently by the agency. … From the 1960s on, this Court and lower courts began to cite the Seminole Rock dictum with increasing frequency and in a wider variety of circumstances, but still without much explanation. They also increasingly divorced Seminole Rock from Skidmore. Auer represents the apotheosis of this line of cases. In the name of what some now call the Auer doctrine, courts have in recent years “mechanically applied and reflexively treated” Seminole Rock’s dictum “as a constraint upon the careful inquiry that one might ordinarily expect of courts engaged in textual analysis.” Under Auer, judges are forced to subordinate their own views about what the law means to those of a political actor, one who may even be a party to the litigation before the court. After all, if the court agrees that the agency’s reading is the best one, Auer does no real work; the doctrine matters only when a court would conclude that the agency’s interpretation is not the best or fairest reading of the regulation. To be sure, JUSTICE KAGAN paints a very different picture of Auer, asking us to imagine it riding to the rescue only in cases where the scales of justice are evenly balanced between two equally persuasive readings. But that’s a fantasy: “If nature knows of such equipoise in legal arguments, the courts at least do not.” … If that were not troubling enough, Auer has also become “a doctrine of uncertain scope and application.” This Court has never offered meaningful guidance on how to decide whether the agency’s reading is “reasonable” enough to demand judicial deference—and lower courts have drawn that line in wildly different places. Deepening the confusion, this Court and lower courts have, over time, tried to soften Auer’s rigidity by declaring that it “might” not apply in some ill-defined circumstances, such as when the agency’s interpretation “conflicts with a prior interpretation” or reflects a “convenient litigating position” or a “post hoc rationalization” for past agency action. All this has resulted in “widespread confusion” about when and how to apply Auer deference. … When this Court speaks about the rules governing judicial review of federal agency action, we are not (or shouldn’t be) writing on a blank slate or exercising some common-law-making power. We are supposed to be applying the Administrative Procedure Act. The APA is a “seminal” statute that Congress wrote to define the relationship between courts and agencies. Some have even described it as a kind of constitution for our “administrative state.” Yet, remarkably, until today this Court has never made any serious effort to square the Auer doctrine with the APA. Even now, only four Justices make the attempt. And for at least two reasons, their arguments are wholly unpersuasive. … JUSTICE KAGAN seeks to address the glaring inconsistency between our judge-made rule and the controlling statute this way. On her account, the APA tells a reviewing court to “determine the meaning” of regulations, but it does not tell the court “how” to do that. Thus, we are told, reading the regulation for itself and deferring to the agency’s reading are just two equally valid ways for a court to fulfill its statutory duty to “determine the meaning” of the regulation. But the APA isn’t as anemic as that. Its unqualified command requires the court to determine legal questions—including questions about a regulation’s meaning— by its own lights, not by those of political appointees or bureaucrats who may even be self-interested litigants in the case at hand. Nor can there be any doubt that, when Congress wrote the APA, it knew perfectly well how to require judicial deference to an agency when it wished—in fact, Congress repeatedly specified deferential standards for judicial review elsewhere in the statute. … Nor does JUSTICE KAGAN’s reading of §706 offer any logical stopping point. If courts can “determine the meaning” of a regulation by deferring to any “reasonable” agency reading, then why not by deferring to any agency reading? If it were really true that the APA has nothing to say about how courts decide what regulations mean, then it would follow that the APA tolerates a rule that “the agency is always right.” And if you find yourself in a place as absurd as that, you might want to consider whether you’ve taken a wrong turn along the way. … [JUSTICE KAGAN] replies that affording Auer deference to an agency’s interpretation of its own rules never offends the APA because the agency’s interpretation lacks “the force of law” associated with substantive rules. Agency interpretations lack this force, we are told, because a court always retains the power to decide at least whether the interpretation is entitled to deference. But this argument rests on an implausibly narrow understanding of what it means for an agency action to bear the force of law. Under JUSTICE KAGAN’s logic, even a binding substantive rule would lack the force of law because a court retains the power to decide whether the rule is arbitrary and capricious and thus invalid under the APA. But no one believes that. While an agency interpretation, just like a substantive rule, “must meet certain conditions before it gets deference,” “once it does so [Auer makes it] every bit as binding as a substantive rule.” To suggest that Auer does not make an agency’s interpretive guidance “binding o[n] anyone,” ante, at 23, is linguistic hocus-pocus. … Not only is Auer incompatible with the APA; it also sits uneasily with the Constitution. Article III, §1 provides that the “judicial Power of the United States” is vested exclusively in this Court and the lower federal courts. A core component of that judicial power is “‘the duty of interpreting [the laws] and applying them in cases properly brought before the courts.’” As Chief Justice Marshall put it, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” And never, this Court has warned, should the “judicial power . . . be shared with [the] Executive Branch.” Yet that seems to be exactly what Auer requires. … Under Auer, a judge is required to lay aside his independent judgment and declare affirmatively that a regulation means what the agency says it means—and, thus, that the law is what the agency says it is. Then the judge is compelled to exercise his judicial authority to adjust private rights and obligations based on the agency’s (mis)understanding of the law. If Auer were a statute, it would not be an exercise of Congress’s “power (within limits) to tell the courts what classes of cases they may decide,” or what relief they may supply, but a forbidden attempt “to prescribe or superintend how they decide those cases.” And in the absence of any statute like that, this Court surely should not so freely give away to the executive branch its assigned responsibility to interpret the laws. “Abdication of responsibility is not part of the constitutional design.” [Part IV - This part is too far for Alito] Lacking support elsewhere, JUSTICE KAGAN is forced to resort to policy arguments to defend Auer. But even the most sensible policy argument would not empower us to ignore the plain language of the APA or the demands of the Constitution. And as we’ve seen, those documents reflect a very different “policy” judgment by the people and their representatives. Besides, the policy arguments offered today are not just unpersuasive, they are troubling. T ake the first and boldest offering. JUSTICE KAGAN suggests that determining the meaning of a regulation is largely a matter of figuring out what the “person who wrote it . . . intended.”. In this way, we’re told, a legally binding regulation isn’t all that different from “a memo or an e-mail”—if you “[w]ant to know what [it] means,” you’d better “[a]sk its author.” But the federal government’s substantive rules are not like memos or e-mails; they are binding edicts that carry the force of law for all citizens. And if the rule of law means anything, it means that we are governed by the public meaning of the words found in statutes and regulations, not by their authors’ private intentions. … Proceeding farther down this doubtful path, JUSTICE KAGAN asserts that resolving ambiguities in a regulation “sounds more in policy than in law” and is thus a task more suited to executive officials than judges. But this claim, too, contradicts a basic premise of our legal order: that we are governed not by the shifting whims of politicians and bureaucrats, but by written laws whose meaning is fixed and ascertainable—if not by all members of the public, then at least by lawyers who can advise them and judges who must apply the law to individual cases guided by the neutral principles found in our traditional tools of interpretation. … Pursuing a more modest tack, JUSTICE KAGAN next suggests that Auer is justified by the respect due agencies’ “technical” expertise. But no one doubts that courts should pay close attention to an expert agency’s views on technical questions in its field….The fact remains, however, that even agency experts “can be wrong; even Homer nodded.” … JUSTICE KAGAN’s final policy argument is that Auer promotes “consistency” and “uniformity” in the interpretation of regulations. If we let courts decide what regulations mean, she warns, they might disagree, and it might take some time for higher courts to resolve those disagreements. But consistency and uniformity are hardly grounds on which Auer’s advocates should wish to fight. The judicial process is how we settle disputes about the meaning of written law, and our judicial system is more than capable of producing a single, uniform, and stable interpretation that will last until the regulation is amended or repealed. [Part V - Also too far for Alito] There are serious questions about whether stare decisis should apply here at all. To be sure, Auer’s narrow holding about the meaning of the regulation at issue in that case may be entitled to stare decisis effect. The same may be true for the specific holdings in other cases where this Court has applied Auer deference. But does stare decisis extend beyond those discrete holdings and bind future Members of this Court to apply Auer’s broader deference framework? It seems doubtful that stare decisis demands that much. We are not dealing with a precedent that purported to settle the meaning of a single statute or regulation or resolve a particular case. The Auer doctrine claims to do much more than that—to prescribe an interpretive methodology governing every future dispute over the meaning of every regulation. In other contexts, we do not regard statements in our opinions about such generally applicable interpretive methods, like the proper weight to afford historical practice in constitutional cases or legislative history in statutory cases, as binding future Justices with the full force of horizontal stare decisis. Why, then, should we regard as binding Auer’s statements about the weight to afford agencies’ interpretations in regulatory cases? … [W]hatever happens, this case hardly promises to be this Court’s last word on Auer. If today’s opinion ends up reducing Auer to the role of a tin god—officious, but ultimately powerless—then a future Court should candidly admit as much and stop requiring litigants and lower courts to pay token homage to it. Alternatively, if Auer proves more resilient, this Court should reassert its responsibility to say what the law is and afford the people the neutral forum for their disputes that they expect and deserve. Concurrence-in-the-Judgment (Kavanaugh): [Also a dissent] I agree with JUSTICE GORSUCH’s conclusion that the Auer deference doctrine should be formally retired. I write separately to emphasize two points. First, I agree with THE CHIEF JUSTICE that “the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear.” … Formally rejecting Auer would have been a more direct approach, but rigorously applying footnote 9 should lead in most cases to the same general destination. Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules. So too here. … Second, I also agree with THE CHIEF JUSTICE that “[i]ssues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress.” Like THE CHIEF JUSTICE, “I do not regard the Court’s decision” not to formally overrule Auer “to touch upon the latter question.” https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf
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Jun 26, 2019 17:00
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TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. RUSSELL F. THOMAS, EXECUTIVE DIRECTOR OF THE TENNESSEE ALCOHOLIC BEVERAGE COMMISSION, ET AL. Holding / Majority Opinion (Alito): The State of Tennessee imposes demanding durationalresidency requirements on all individuals and businesses seeking to obtain or renew a license to operate a liquor store. One provision precludes the renewal of a license unless the applicant has resided in the State for 10 consecutive years. Another provides that a corporation cannot obtain a license unless all of its stockholders are residents. The Court of Appeals for the Sixth Circuit struck down these provisions as blatant violations of the Commerce Clause, and neither petitioner—an association of Tennessee liquor retailers—nor the State itself defends them in this Court. The Sixth Circuit also invalidated a provision requiring applicants for an initial license to have resided in the State for the prior two years, and petitioner does challenge that decision. But while this requirement is less extreme than the others that the Sixth Circuit found to be unconstitutional, we now hold that it also violates the Commerce Clause and is not shielded by §2 of the Twenty-first Amendment. Section 2 was adopted as part of the scheme that ended prohibition on the national level. It gives each State leeway in choosing the alcohol-related public health and safety measures that its citizens find desirable. But §2 is not a license to impose all manner of protectionist restrictions on commerce in alcoholic beverages. Because Tennessee’s 2-year residency requirement for retail license applicants blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional. … Tennessee, like many other States, requires alcoholic beverages distributed in the State to pass through a specified three-tiered system. Acting through the Tennessee Alcoholic Beverage Commission (TABC), the State issues different types of licenses to producers, wholesalers, and retailers of alcoholic beverages. Producers may sell only to licensed wholesalers; wholesalers may sell only to licensed retailers or other wholesalers; and only licensed retailers may sell to consumers. No person may lawfully participate in the sale of alcohol without the appropriate license. … To obtain an initial retail license, an individual must demonstrate that he or she has “been a bona fide resident” of the State for the previous two years. And to renew such a license—which Tennessee law requires after only one year of operation—an individual must show continuous residency in the State for a period of 10 consecutive years. The rule for corporations is also extraordinarily restrictive. A corporation cannot get a retail license unless all of its officers, directors, and owners of capital stock satisfy the durational-residency requirements applicable to individuals. In practice, this means that no corporation whose stock is publicly traded may operate a liquor store in the State. In 2012, the Tennessee attorney general was asked whether the State’s durational-residency requirements violate the Commerce Clause, and his answer was that the requirements constituted “trade restraints and barriers that impermissibly discriminate against interstate commerce.” In light of that opinion, the TABC stopped enforcing the requirements against new applicants. The Tennessee General Assembly responded by amending the relevant laws to include a statement of legislative intent. Citing the alcohol content of the beverages sold in liquor stores, the Assembly found that protection of “the health, safety and welfare” of Tennesseans called for “a higher degree of oversight, control and accountability for individuals involved in the ownership, management and control” of such outlets. After the amendments became law, the attorney general was again asked about the constitutionality of the durational-residency requirements, but his answer was the same as before. Consequently, the TABC continued its practice of nonenforcement. In 2016, respondents Tennessee Fine Wines and Spirits, LLC dba Total Wine Spirits Beer & More (Total Wine) and Affluere Investments, Inc. dba Kimbrough Fine Wine & Spirits (Affluere) applied for licenses to own and operate liquor stores in Tennessee. At the time, neither Total Wine nor Affluere satisfied the durational-residency requirements. Total Wine was formed as a Tennessee limited liability company but is owned by residents of Maryland, and Affluere was owned and controlled by two individuals who, by the time their application was considered, had only recently moved to the State. TABC staff recommended approval of the applications, but petitioner Tennessee Wine and Spirits Retailers Association (the Association)—a trade association of in-state liquor stores—threatened to sue the TABC if it granted them.The TABC’s executive director (a respondent here) filed a declaratory judgment action in state court to settle the question of the residency requirements’ constitutionality. … We granted certiorari, 585 U. S. ___ (2018), in light of the disagreement among the Courts of Appeals about how to reconcile our modern Twenty-first Amendment and dormant Commerce Clause precedents. The Court of Appeals held that Tennessee’s 2-year residency requirement violates the Commerce Clause, which provides that “[t]he Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” “Although the Clause is framed as a positive grant of power to Congress,” we have long held that this Clause also prohibits state laws that unduly restrict interstate commerce. “This ‘negative’ aspect of the Commerce Clause” prevents the States from adopting protectionist measures and thus preserves a national market for goods and services. This interpretation, generally known as “the dormant Commerce Clause,” has a long and complicated history. … In recent years, some Members of the Court have authored vigorous and thoughtful critiques of this interpretation. But the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitution would surely find surprising. That is so because removing state trade barriers was a principal reason for the adoption of the Constitution. Under the Articles of Confederation, States notoriously obstructed the interstate shipment of goods. “Interference with the arteries of commerce was cutting off the very lifeblood of the nation.” The Annapolis Convention of 1786 was convened to address this critical problem, and it culminated in a call for the Philadelphia Convention that framed the Constitution in the summer of 1787. … In light of this background, it would be strange if the Constitution contained no provision curbing state protectionism, and at this point in the Court’s history, no provision other than the Commerce Clause could easily do the job. ... In light of this history and our established case law, we reiterate that the Commerce Clause by its own force restricts state protectionism. Under our dormant Commerce Clause cases, if a state law discriminates against out-of-state goods or nonresident economic actors, the law can be sustained only on a showing that it is narrowly tailored to “‘advanc[e] a legitimate local purpose.’” Tennessee’s 2-year durational-residency requirement plainly favors Tennesseans over nonresidents, and neither the Association nor the dissent below defends that requirement under the standard that would be triggered if the requirement applied to a person wishing to operate a retail store that sells a commodity other than alcohol. See 883 F. 3d, at 626. Instead, their arguments are based on §2 of the Twenty-first Amendment, to which we will now turn. Section 2 of the Twenty-first Amendment provides as follows: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Although the interpretation of any provision of the Constitution must begin with a consideration of the literal meaning of that particular provision, reading §2 to prohibit the transportation or importation of alcoholic beverages in violation of any state law would lead to absurd results that the provision cannot have been meant to produce. Under the established rule that a later adopted provision takes precedence over an earlier, conflicting provision of equal stature, such a reading of §2 would mean that the provision would trump any irreconcilable provision of the original Constitution, the Bill of Rights, the Fourteenth Amendment, and every other constitutional provision predating ratification of the Twenty-first Amendment in 1933. This would mean, among other things, that a state law prohibiting the importation of alcohol for sale to persons of a particular race, religion, or sex would be immunized from challenge under the Equal Protection Clause. Similarly, if a state law prohibited the importation of alcohol for sale by proprietors who had expressed an unpopular point of view on an important public issue, the First Amendment would provide no protection. If a State imposed a duty on the importation of foreign wine or spirits, the Import-Export Clause would have to give way. If a state law retroactively made it a crime to have bought or sold imported alcohol under specified conditions, the Ex Post Facto Clause would provide no barrier to conviction. The list goes on. Despite the ostensibly broad text of §2, no one now contends that the provision must be interpreted in this way. Instead, we have held that §2 must be viewed as one part of a unified constitutional scheme. … In effect, the Court’s interpretation of the dormant Commerce Clause conferred favored status on out-of-state alcohol, and that hamstrung the dry States’ efforts to enforce local prohibition laws. Representatives of those States and temperance advocates thus turned to Congress, which passed two laws to solve the problem. The first of these was the Wilson Act, enacted in 1890….[T]he Wilson Act did not attempt to ban all interstate shipment of alcohol. Its goal was more modest: to leave it up to each State to decide whether to admit alcohol. Its critical provision specified that all alcoholic beverages “transported into any State or Territory” were subject “upon arrival” to the same restrictions imposed by the State “in the exercise of its police powers” over alcohol produced in the State. Thus, the Wilson Act mandated equal treatment for alcohol produced within and outside a State, not favorable treatment for local products. And the only state laws that it attempted to shield were those enacted by a State “in the exercise of its police powers,” which, as we have seen, applied only to bona fide health and safety measures. Despite Congress’s clear aim, the Wilson Act failed to relieve the dry States’ predicament. In Rhodes v. Iowa, 170 U. S. 412 (1898), and Vance v. W. A. Vandercook Co., the Court read the Act’s reference to the “arrival” of alcohol in a State to mean delivery to the consignee, not arrival within the State’s borders. The upshot was that residents of dry States could continue to order and receive imported alcohol. In 1913, Congress tried to patch this hole by passing the Webb-Kenyon Act. The aim of the Webb-Kenyon Act was to give each State a measure of regulatory authority over the importation of alcohol, but this created a drafting problem. There were those who thought that a federal law giving the States this authority would amount to an unconstitutional delegation of Congress’s legislative power over interstate commerce. So the Act was framed not as a measure conferring power on the States but as one prohibiting conduct that violated state law. The Act provided that the shipment of alcohol into a State for use in any manner, “either in the original package or otherwise,” “in violation of any law of such State,” was prohibited. This formulation is significant for present purposes because it would provide a model for §2 of the Twenty-first Amendment. The Webb-Kenyon Act attempted to fix the hole in the Wilson Act and thus to “eliminate the regulatory advantage . . . afforded imported liquor,” but its wording, unlike the Wilson Act’s, did not explicitly mandate equal treatment for imported and domestically produced alcohol. And it referred to “any law of such State,” whereas the Wilson Act referred to “the laws of such State or Territory enacted in the exercise of its police powers.” But despite these differences, Granholm held, over a strenuous dissent, that the Webb-Kenyon Act did not purport to authorize States to enact protectionist measures. … As we have previously noted, the text of §2 “closely follow[ed]” the operative language of the Webb-Kenyon Act, and this naturally suggests that §2 was meant to have a similar meaning. The decision to follow that unusual formulation is especially revealing since the drafters of §2, unlike those who framed the Webb-Kenyon Act, had no need to worry that a more straightforward wording might trigger a constitutional challenge. Accordingly, we have inferred that §2 was meant to “constitutionaliz[e]” the basic understanding of the extent of the States’ power to regulate alcohol that prevailed before Prohibition.And as recognized during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations. … Although our later cases have recognized that §2 cannot be given an interpretation that overrides all previously adopted constitutional provisions, the Court’s earliest cases interpreting §2 seemed to feint in that direction. … With subsequent cases, however, the Court saw that §2 cannot be read that way, and it therefore scrutinized state alcohol laws for compliance with many constitutional provisions. The Court also held that §2 does not entirely supersede Congress’s power to regulate commerce. Instead, after evaluating competing federal and state interests, the Court has ruled against state alcohol laws that conflicted with federal regulation of the export of alcohol, federal antitrust law, and federal regulation of the airwaves. … Although some Justices have argued that §2 shields all state alcohol regulation—including discriminatory laws— from any application of dormant Commerce Clause doctrine, the Court’s modern §2 precedents have repeatedly rejected that view. We have examined whether state alcohol laws that burden interstate commerce serve a State’s legitimate §2 interests. And protectionism, we have stressed, is not such an interest. … Having concluded that §2 does not confer limitless authority to regulate the alcohol trade, we now apply the §2 analysis dictated by the provision’s history and our precedents. … Since the 2-year residency requirement discriminates on its face against nonresidents, it could not be sustained if it applied across the board to all those seeking to operate any retail business in the State. But because of §2, we engage in a different inquiry. Recognizing that §2 was adopted to give each State the authority to address alcohol-related public health and safety issues in accordance with the preferences of its citizens, we ask whether the challenged requirement can be justified as a public health or safety measure or on some other legitimate nonprotectionist ground. Section 2 gives the States regulatory authority that they would not otherwise enjoy, but as we pointed out in Granholm, “mere speculation” or “unsupported assertions” are insufficient to sustain a law that would otherwise violate the Commerce Clause. Where the predominant effect of a law is protectionism, not the protection of public health or safety, it is not shielded by §2. The provision at issue here expressly discriminates against nonresidents and has at best a highly attenuated relationship to public health or safety. During the course of this litigation, the Association relied almost entirely on the argument that Tennessee’s residency requirements are simply “not subject to Commerce Clause challenge,” and the State itself mounted no independent defense. As a result, the record is devoid of any “concrete evidence” showing that the 2-year residency requirement actually promotes public health or safety; nor is there evidence that nondiscriminatory alternatives would be insufficient to further those interests. In this Court, the Association has attempted to defend the 2-year residency requirement on public health and safety grounds, but this argument is implausible on its face. … Similarly unpersuasive is the Association’s claim that the 2-year requirement gives the State a better opportunity to determine an applicant’s fitness to sell alcohol and guards against “undesirable nonresidents” moving into the State for the purpose of operating a liquor store. The State can thoroughly investigate applicants without requiring them to reside in the State for two years before obtaining a license. Tennessee law already calls for criminal background checks on all applicants, see Tenn. Code Ann. §57–3–208, and more searching checks could be demanded if necessary. As the Fifth Circuit observed in a similar case, “[i]f [the State] desires to scrutinize its applicants thoroughly, as is its right, it can devise nondiscriminatory means short of saddling applicants with the ‘burden’ of residing” in the State. … Like the other discriminatory residency requirements that the Association is unwilling to defend, the predominant effect of the 2-year residency requirement is simply to protect the Association’s members from out-of-state competition. We therefore hold that this provision violates the Commerce Clause and is not saved by the Twenty-first Amendment. The judgment of the Court of Appeals for the Sixth Circuit is affirmed. It is so ordered. Lineup: Alito, joined by Roberts, Ginsburg, Breyer, Sotomayo, Kagan, and Kavanaugh. Dissent by Gorsuch, joined by Thomas. Other Opinions: Dissent (Gorsuch): Alcohol occupies a complicated place in this country’s history. Some of the founders were enthusiasts; Benjamin Franklin thought wine was “proof that God loves us.” Many in the Prohibition era were decidedly less enamored; they saw “liquor [a]s a lawlessness unto itself.” Over time, the people have adopted two separate constitutional Amendments to adjust and then readjust alcohol’s role in our society. But through it all, one thing has always held true: States may impose residency requirements on those who seek to sell alcohol within their borders to ensure that retailers comply with local laws and norms. In fact, States have enacted residency requirements for at least 150 years, and the Tennessee law at issue before us has stood since 1939. Today and for the first time, the Court claims to have discovered a duty and power to strike down laws like these as unconstitutional. Respectfully, I do not see it. … Of course, §2 does not immunize state laws from all constitutional claims. Everyone agrees that state laws must still comply with, say, the First Amendment or the Equal Protection Clause. Ante, at 11–12. But the challenge before us isn’t based on any constitutional provision like that. Instead, we are asked to decide whether Tennessee’s residency requirement impermissibly discriminates against out-of-state residents and recent arrivals in violation of the “dormant Commerce Clause” doctrine. And that doctrine is a peculiar one. Unlike most constitutional rights, the dormant Commerce Clause doctrine cannot be found in the text of any constitutional provision but is (at best) an implication from one. Under its banner, this Court has sometimes asserted the power to strike down state laws that discriminate against nonresidents on the ground that they usurp the authority to regulate interstate commerce that the Constitution assigns in Article I to Congress. But precisely because the Constitution assigns Congress the power to regulate interstate commerce, that body is free to rebut any implication of unconstitutionality that might otherwise arise under the dormant Commerce Clause doctrine by authorizing States to adopt laws favoring in-state residents. And that’s exactly what happened here. In the Webb-Kenyon Act of 1913, Congress gave the States wide latitude to restrict the sale of alcohol within their borders. Not only is that law still on the books today, §2 of the Twenty-first Amendment closely “followed the wording of the 1913 Webb-Kenyon Act.” Accordingly, the people who adopted the Amendment naturally would have understood it to constitutionalize an “exception to the normal operation of the [dormant] Commerce Clause.” After all, what Congress can do by statute “surely the people may do . . . through the process of amending our Constitution.” So in this area, at least, we should not be in the business of imposing our own judge-made “dormant Commerce Clause” limitations on state powers. … Like it or not, those who adopted the Twenty-first Amendment took the view that reasonable people can disagree about the costs and benefits of free trade in alcohol. They left us with clear instructions that the free-trade rules this Court has devised for “cabbages and candlesticks” should not be applied to alcohol. Under the terms of the compromise they hammered out, the regulation of alcohol wasn’t left to the imagination of a committee of nine sitting in Washington, D. C., but to the judgment of the people themselves and their local elected representatives. State governments were supposed to serve as “laborator[ies]” of democracy, with “broad power to regulate liquor under §2”. If the people wish to alter this arrangement, that is their sovereign right. But until then, I would enforce the Twenty-first Amendment as they wrote and originally understood it. https://www.supremecourt.gov/opinions/18pdf/18-96_5i36.pdf
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Jun 26, 2019 17:00
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Ogmius815 posted:I thought today was scheduled as an opinion day? No opinions or just no Ulmont? There were 191 pages of opinions to summarize and I've been on the phone for 45 minutes.
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Jun 26, 2019 17:08
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Look at the dang ol Scotusblog, people!
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Jun 26, 2019 17:10
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Hieronymous Alloy posted:Yeah, that's the thing. In the abstract asking about citizens could be one good way to do it. Yes, and it also specifies that the reason for this is apportionment in Congress, which completely counters even the nominal argument they were making in favor of the citizenship question. So even if it wasn't being done for racist reasons it would still be unconstitutional IMO.
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Jun 26, 2019 17:13
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So: Auer technically still in place, but now we all admit that in the vocabulary of a federal judge, "deference" is just another word for "please, listen" Dormant Commerce Clause not invalidated Alito almost realizes that our whole system of criminal law is probably unconstitutional
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Jun 26, 2019 17:15
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eke out posted:that no longer solves their problem with the imminent equal protection ruling in the challenge in the fourth circuit, though. I could still see Roberts doing a 5-4 sanctioning of racism, and that's why I'm still worried, for either now or October. I'd lose my mind trying to read his justification for why the Constitution says citizens when it blatantly says people, though.
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Jun 26, 2019 17:18
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quote:Mr. Haymond encountered trouble on supervised release. He sat for multiple polygraph tests in which he denied possessing or viewing child pornography, and each time the test indicated no deception. But when the government conducted an unannounced search of his computers and cellphone, it turned up 59 images that appeared to be child pornography. It's almost like polygraph tests... might be bullshit?  Am I right in reading Haymond as more proof that Gorsuch will more or less always take the anti-government option, even if it means breaking ranks with the rest of the conservatives on the court?
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Jun 26, 2019 17:21
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So Auer nominally survives, but is now such a pain in the rear end to apply that it may as well not have.
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Jun 26, 2019 17:28
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We got confirmation that tomorrow is the last day of the term. I can see the gerrymandering case being overshadowed by the census one, but if both go down in a bad way it’s going to pretty much cement Republican rule indefinitely right?
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Jun 26, 2019 17:38
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FlamingLiberal posted:We got confirmation that tomorrow is the last day of the term. I can see the gerrymandering case being overshadowed by the census one, but if both go down in a bad way it’s going to pretty much cement Republican rule indefinitely right? This was all what it was for, so yes.
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Jun 26, 2019 17:46
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Sydin posted:Am I right in reading Haymond as more proof that Gorsuch will more or less always take the anti-government option, even if it means breaking ranks with the rest of the conservatives on the court? Yes. Ogmius815 posted:So Auer nominally survives, but is now such a pain in the rear end to apply that it may as well not have. Auer's new name is Skidmore.
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Jun 26, 2019 18:00
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FlamingLiberal posted:We got confirmation that tomorrow is the last day of the term. I can see the gerrymandering case being overshadowed by the census one, but if both go down in a bad way it’s going to pretty much cement Republican rule indefinitely right? The house is currently majority Democrat so gerrymandering certainly isn't some impenetrable barrier. It just provides a structural advantage to Republicans in some states (and there are a few where it benefits Democrats, too). Worst case is the status quo, best case is that structural advantage for Republicans goes away. The census question would most likely remove seats from California and Texas. The exact split is hard to know but it would most likely net out to +1-2 R districts. Obviously that's lovely and bad, but it's not some insurmountable advantage either. Overall its A Bad Thing if these are not overturned, but it's not going to cement 1000 year Republican reign either. Seph fucked around with this message at 18:10 on Jun 26, 2019 |
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Jun 26, 2019 18:07
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Seph posted:The house is currently majority Democrat so gerrymandering certainly isn't some impenetrable barrier. The federal house, maybe, but there are a number of state houses that are extremely unrepresentative and would be fixed if it's struck down.
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Jun 26, 2019 18:15
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Ogmius815 posted:So Auer nominally survives, but is now such a pain in the rear end to apply that it may as well not have. I'm not sure I understand what all the maneuvering around Auer was for. Correct me if I'm wrong but what I got from it was: Kagan + liberal justices: The lower courts were overzealous in their application of Auer, but that doesn't mean it's a bad standard. Here's a good way to apply it. Gorsuch + conservative justices: Auer is bullshit but because a majority won't kill it and Kagan's new application is narrow enough it pretty much kills Auer anyway, we'll concur with the judgement Roberts: If you really think about it, Gorsuch and Kagan are basically saying the same thing (they're absolutely not). So... why not just kill Auer when it sounds like all the conservatives were on board with doing so? Does Roberts' concurrence imply he wasn't willing to sign on for that?
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Jun 26, 2019 18:15
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Seph posted:The house is currently majority Democrat so gerrymandering certainly isn't some impenetrable barrier. It just provides a structural advantage to Republicans in some states (and there are a few where it benefits Democrats, too). Worst case is the status quo, best case is that structural advantage for Republicans goes away.
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Jun 26, 2019 18:17
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Sydin posted:I'm not sure I understand what all the maneuvering around Auer was for. Correct me if I'm wrong but what I got from it was: Beats me. Someone with a stronger administrative law background might know more. But if I had to speculate I’d say that t might be a sign that Roberts is not entirely down for a complete Gorsuch-led overhaul of administrative law and instead just wants to edge a little bit toward increased judicial scrutiny of the administrative state.
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Jun 26, 2019 18:38
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Ogmius815 posted:Beats me. Someone with a stronger administrative law background might know more. But if I had to speculate I’d say that t might be a sign that Roberts is not entirely down for a complete Gorsuch-led overhaul of administrative law and instead just wants to edge a little bit toward increased judicial scrutiny of the administrative state. If the goal is to weaken the administrative state, and explicitly overturning Auer / Chevron looks bad and generates headlines, while allowing it to nominally remain in effect does not generate the same headlines but similarly weakens the administrative state, then .. . mission accomplished Framing it this way is classic Roberts. Achieves his goals with minimal splashback potential.
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Jun 26, 2019 18:42
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/What the hell is that Auer lineup Mismash of everyone circlejerking each other Why should Breyer opinion in Haymond be the controlling opinion
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Jun 26, 2019 18:49
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Nissin Cup Nudist posted:Why should Breyer opinion in Haymond be the controlling opinion Because no opinion commanded a majority of the Court and Breyer's is the narrowest. Marks v. United States, 430 U.S. 193, 194 (1977) posted:When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds"
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Jun 26, 2019 18:54
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Hieronymous Alloy posted:If the goal is to weaken the administrative state, and explicitly overturning Auer / Chevron looks bad and generates headlines, while allowing it to nominally remain in effect does not generate the same headlines but similarly weakens the administrative state, then .. . mission accomplished So it's Roberts doing his "the court isn't partisan honest guys" shtick, got it.
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Jun 26, 2019 18:56
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haveblue posted:The federal house, maybe, but there are a number of state houses that are extremely unrepresentative and would be fixed if it's struck down. Like Wisconsin Republicans getting 46% of the votes, losing every statewide office, but retaining 64% of the state legislature seats.
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Jun 26, 2019 18:57
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Nissin Cup Nudist posted:Wrt the citizenship case, its pretty clear the Trump admin is doing it because racism. But I feel in a vacuum, any government wanting to know how many people in its boarders are citizens, how many are perm. residents, how many are on temp visas, etc isn't a completely terrible thing. It's also going to be upheld because the SCOTUS has 5 openly racists justices on it. Everyone knows the GOP want this question added to skew numbers and help Gerrymander the House more in their favor. If Alito's writing for the majority it's going to be real bad. I can't see him authoring a punt. Nucleic Acids posted:I could still see Roberts doing a 5-4 sanctioning of racism, and that's why I'm still worried, for either now or October. I'd lose my mind trying to read his justification for why the Constitution says citizens when it blatantly says people, though. He pretty clearly sanctioned racism with the VRA-gutting decision since that allowed the ready-and-waiting voter suppression poo poo to get fully unleashed in states the GOP controlled. haveblue posted:The federal house, maybe, but there are a number of state houses that are extremely unrepresentative and would be fixed if it's struck down. And the dominio effect of this could result in some currently light-red US Senate seats flipping to Dems because people who currently are kept from voting due to one bullshit action or another would be able to vote, and most would vote Dem which is why the GOP actively works to keep them from voting. Ideally we'd have nationwide requirements for non-partisan redistricting but I have zero faith in the SCOTUS conservatives to accept such a thing since it'd devastate their party's control over multiple states and further boost the Dem's House majority.
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Jun 26, 2019 18:57
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Nissin Cup Nudist posted:Wrt the citizenship case, its pretty clear the Trump admin is doing it because racism. But I feel in a vacuum, any government wanting to know how many people in its boarders are citizens, how many are perm. residents, how many are on temp visas, etc isn't a completely terrible thing. Sydin posted:I'm not sure I understand what all the maneuvering around Auer was for. Correct me if I'm wrong but what I got from it was: Dead Reckoning fucked around with this message at 20:33 on Jun 26, 2019 |
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Jun 26, 2019 20:30
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Clearly if the president hasn’t been impeached he’s not a criminal so can be treated as normal.
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Jun 26, 2019 20:38
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hobbesmaster posted:Clearly if the president hasn’t been impeached he’s not a criminal so can be treated as normal.
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Jun 26, 2019 20:44
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Right I just hope they directly call out congress for being cowards.
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Jun 26, 2019 20:46
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Sydin posted:So it's Roberts doing his "the court isn't partisan honest guys" shtick, got it. It also might be Roberts doing his “I’ll give you the small win so I can get the big one later.” Auer deference isn’t as big a concern for the conservative legal wing because an agency can always change its rules if the interpretation gets overridden in court; Chevron is the bigger fish to kill and roast on a fire.
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Jun 26, 2019 23:06
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Kalman posted:It also might be Roberts doing his “I’ll give you the small win so I can get the big one later.” Auer's a shield for conservatives too, as they tear down decades of agency precedent in the guise of "we get absolute deference when interpreting our own regulations." For instance, they did this constantly while they threw every mechanism immigration judges once had to grant leniency into the trashcan. If you're going to kill Auer, you might as well wait until the other party is in charge of the Executive -- until then, it remains useful. Anyways this administration has been all the proof I needed that Auer's fundamentally hosed and may allow more harm than good, overall. I think Kagan's opinion is pretty solid and could strike a balance that isn't total poo poo, but I have the bad feeling it'll only survive a couple years. eke out fucked around with this message at 23:19 on Jun 26, 2019 |
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Jun 26, 2019 23:17
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