Greetings, Court fans!
The Court returned from recess with a flurry of activity, issuing three decisions Tuesday, an additional two decisions Wednesday, and an extensive order list. (If you watched the President’s address Tuesday, you know that Justice Ginsburg returned as well, looking amazingly well just weeks after surgery.) I’ll break things up, bringing you three decisions today and the remaining decisions and order list shortly.
In Ysursa v. Pocatello Education Association (07-869), a divided Court addressed the sometimes blurry line between when a State abridges freedom of speech (subject to “strict scrutiny,” and thus usually prohibited under the First Amendment), and when it merely declines to affirmatively support speech (subject to the lenient “rational basis” test, and thus usually permitted). Prior to 2003, Idaho law allowed employees to use payroll deductions to pay for general union dues and union political activities. In 2003, however, Idaho enacted the Voluntary Contributions Act (“VCA”), which prohibited payroll deductions (so-called “checkoffs”) for any political activities. The upshot: employees could no longer use checkoffs to pay for union political activities. The plaintiff association of public employee labor unions claimed this prohibition was an unlawful abridgement of free speech. The District Court upheld the VCA as applied to State employees because, under Regan v. Taxation with Representation of Washington , the State was not required to affirmatively assist the unions’ political speech by providing at its own expense payroll deductions to fund such speech. But the court struck down the VCA to the extent that it applied to private employees and municipal employees. In the latter case, the court reasoned that the State was no longer declining to facilitate speech through its own payroll system, but was obstructing local governments’ payroll systems. On appeal, neither party challenged the court’s decision with respect to private or state-level employees, leaving only the ban on municipal employees. The Ninth Circuit affirmed, finding that the ban, as applied to municipal employee checkoffs for union political activities, was unconstitutional.
Chief Justice Roberts penned the majority opinion, reversing. He saw the issue as clear cut: under Regan, the State is not required to affirmatively enable speech, and it may decline to do so as long as it has a rational basis. Here, the State’s interest in carrying out public business without the appearance of a partisan political activity taint was more than sufficient. This rationale applied equally to municipalities, which were simply political subdivisions of the State – subordinate units of government created by the State to carry out delegated functions.
In a succinct partial concurrence, Justice Ginsburg agreed that the Constitution compels no distinction between state and local governmental entities. Justice Breyer concurred in part and dissented in part. He would have analyzed the VCA under intermediate scrutiny, balancing the speech-related harms with the governmental interests invoked. Stevens vigorously dissented from the “facile” majority opinion, arguing that the VCA’s restriction was designed solely to make it more difficult for unions to finance political speech, and this discriminatory purpose required the VCA’s invalidation (he also thought that there could be a legitimate distinction between states and municipalities). Rounding out the lot, Souter (not to be left out) offered his own dissent. The “elephant in the room,” he thought, was that the legislation was not “viewpoint neutral,” but intended only to restrict union speech. (Not a bad point given that the ban was located in a statute dealing with unions and was intended to apply to private employers as well, indicating that Idaho was not merely concerned with the state facilitating political speech.) Still, because of the positions the parties had taken by the time the case reached the Court (i.e., that the VCA was OK as applied to state employees), he felt that it was not a good case in which to refine First Amendment doctrine, and would have dismissed cert as improperly granted.
Next up is Carcieri v. Salazar (No. 07-526), a federal Indian law case unlikely to be relevant to anyone’s day-to-day practice – unless you happen to be litigating the word “now” (in which case it could come in quite handy). Carcieri tells the tale of the Narragansett Indian Tribe of Rhode Island, which, like many tribes, fought and died in colonial wars, suffered through epidemics, lost its land in crooked deals, and struggled throughout the 20th Century to regain what it had lost, ultimately obtaining 1800 acres of land from Rhode Island in 1978 and achieving federal recognition in 1983. In this latest chapter, the Narragansett Tribe sought to place a thirty-one acre parcel intended for a housing project in trust with the Secretary of the Interior, who is empowered under § 465 of the Indian Reorganization Act (IRA) to acquire land and hold it in trust “for the purpose of providing land for Indians.” (This would allow the Tribe to avoid compliance with local regulations relating to construction on the land.) Rhode Island, its Governor, and the town of Charlestown opposed the Tribe.
Section 479 of the IRA defines the term “Indian” to include, inter alia, all persons of Indian descent who are members of any recognized Indian tribe “now under Federal jurisdiction.” The question presented was whether “now” meant “right now,” as in the time the Secretary invoked the statute, or “now,” as in 1934, the date when the IRA was enacted. The First Circuit found the statute ambiguous and deferred under Chevron to the Secretary’s construction of the provision as applying to the Narragansett Tribe because it now has federal recognition, even if it did not have such recognition in 1934. Justice Thomas, writing for a 6-3 majority, applied “settled” principles of statutory construction – plain text, context, and cross-textual analysis – and reversed, holding that the clear language of the statute meant “in 1934.” Not surprisingly, Thomas jumped at the opportunity to draw upon his extensive library of historic Webster’s New International Dictionaries. (In case you don’t have a copy on your shelf, the 1934 version defines “now” as “[a]t the present time; at this moment; at the time of speaking.”). Thomas also completely ignored the legislative history of the IRA – again not surprising. But, interestingly, Thomas approvingly quoted the “executive history” of the IRA; namely, a 1936 letter written by the Commissioner of Indian Affairs construing the provision to apply only to a tribe that “was under Federal jurisdiction as at the date of the Act.” (Note that Scalia joined this part of the opinion even though he typically declines to join any discussion of legislative history, even if it appears in a footnote.) Thomas used this letter both to affirm the majority reading of the plain text, and to admonish the Secretary’s current interpretation as being at odds with the Executive Branch’s original construction of the statute.
Justice Breyer joined the majority, but felt compelled to file a separate concurrence to add three “qualifications” to the Court’s opinion. First, he questioned the notion that the phrase “now under Federal jurisdiction” was subject to only one interpretation (though he ultimately concluded that there was no reason to defer to the Secretary). Second, he looked to the legislative history of the IRA and concluded that this supported the majority’s interpretation (demonstrating that the principles of statutory construction are not necessarily as “settled” as Justice Thomas would have them). Third, he attempted to allay the reader’s fears of the consequences of the majority holding, by noting that just because a tribe was officially recognized after 1934 does not necessarily mean that it was not under Federal jurisdiction in 1934. Nonetheless, Breyer was comfortable concluding that the Narragansett could not make any such argument. Justice Souter, joined by Justice Ginsburg, concurred in part and dissented in part, agreeing with everything in Breyer’s concurrence except for this last point, advocating instead for a remand of the case so that the Narragansett could attempt to prove they were, in fact, under Federal jurisdiction in 1934 despite their lack of Federal recognition. Justice Stevens filed a separate dissent claiming that everyone else completely missed the boat by focusing on the word “now” in § 479 instead of the term “Indians” in § 465, and by focusing on the part of § 479 governing individual Indians instead of the part governing Indian tribes. Stevens believed “Indians” in § 465 should be read to empower the Secretary to hold land in trust both for individual Indians and Indian tribes. Individual Indians would have to demonstrate eligibility through blood lines or membership in a tribe “now under Federal jurisdiction,” while Indian tribes like the Narragansett fell under a different portion of § 479 (and its implementing regulations) that only required Federal recognition without temporal limitation. Stevens saw his interpretation of the INA as more closely aligned with the “settled” principle of statutory construction that Indian statutes are to be construed liberally in favor of the Indians.
Finally, in United States v. Hayes (07-608), the Court grappled with the meaning of Congress’s 1996 amendment to the Gun Control Act (“GCA”), which extended the Act’s prohibition on possession of a firearm by convicted felons to those convicted of a “misdemeanor crime of domestic violence,” defined as “an offense that – (i) is a misdemeanor . . .; and (ii) has, as an element , the use or attempted use of physical force. . ., committed by a current or former spouse [etc.]. . .” Hayes was convicted for misdemeanor battery under West Virginia law. While the indictment alleged that the victim of the battery was Hayes’ wife, the state was not required to prove the fact of a domestic relationship as an element of the generic battery crime. Hayes thus claimed that his battery conviction didn’t count for purposes of the GCA since, in his view, the predicate misdemeanor must include – as an element of the crime – a domestic relationship between the defendant and the victim. The Fourth Circuit agreed, unlike the nine others before it, all of which had held that the domestic relationship could simply be charged and proven at trial.
The Court reversed, 7-2, in an opinion by Justice Ginsburg. Parsing the statute, the majority concluded that a “misdemeanor crime of domestic violence” was a misdemeanor offense (1) that “has, as an element, the use or attempted use of force”, and is (2) “committed by” a person in a domestic relationship with the victim. By concluding that “committed by” modified “offense,” rather than “use of force,” the majority was able to conclude that only the “use of force” requirement had to be an “element” of the predicate crime. The domestic relationship could simply be proven at trial beyond a reasonable doubt. This interpretation was buttressed by the fact that Congress enacted the provision to close a loophole in the GCA that had existed because crimes of domestic violence often do not result in felony convictions. Since the majority of states do not have specific domestic violence statutes on the books, the provision would have been a “dead letter” in those states; a result Congress surely did not intend. In dissent, the Chief, joined by Scalia, argued that the text of the statute was ambiguous. The majority’s interpretation ignored the “rule of the last antecedent,” which says that a clause should be read to modify that which immediately precedes it. Under this rule, “committed by” modifies the “use of force,” and thus cannot be separate from the requirement that it be an “element” of the predicate statute. The dissent acknowledged that its interpretation might not be watertight, but, at the very least, the statute was ambiguous and the Court should therefore have applied the rule of lenity. The dissent also noted that the majority’s decision contradicted the categorical approach to proving predicate offenses under the Armed Career Criminal Act, which was reaffirmed as recently as this Term.
I’ll be back shortly to bring you the remaining decisions and order list. Until then, thanks for reading!
Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400