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  • July 19, 2016
    Guest Post

    by Bidish Sarmaan attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    Four decades ago, the U.S. Supreme Court implemented a major, nationwide policy that consolidated prosecutorial authority: it granted prosecutors absolute immunity for acts committed in their prosecutorial role. This decision sheathed prosecutors in protective armor while they pursued criminal convictions through an era of crime-related hysteria, and it eroded one of the few mechanisms available to hold prosecutors accountable. Considering the growing call to acknowledge and address an epidemic of prosecutorial misconduct, now is a critical time to reflect on Imbler v. Pachtman and evaluate whether it holds up to modern-day scrutiny.     

    In Imbler, the Supreme Court held that prosecutors are generally entitled to absolute immunity from civil liability under the federal civil rights statute, 42 U.S.C. § 1983, for actions, taken in their role as prosecutors, that may have violated the rights of a criminal defendant. Absolute immunity is exactly what it sounds like—a blanket and unconditional grant of protection from civil liability. A related doctrine, qualified immunity, also protects government officials from liability, but as the Supreme Court explained in Harlow v. Fitzgerald, only if “their conduct does not violate clearly established statutory or constitutional rights . . . .” Put simply, qualified immunity protects government officials who abide by the rules (although the law defines those rules very narrowly). Absolute immunity protects them from civil liability even when they break the rules.

    As some on the Imbler Court worried, courts have applied absolute immunity broadly, even foreclosing civil suits in cases where prosecutors intentionally violate their constitutional obligation to turn over exculpatory evidence to defendants as required by Brady v. Maryland.

    SCOTUS’s Imbler decision has been critiqued over the years. The opinion turned on two key considerations: (1) the Court’s view of immunities “historically accorded the relevant official at common law;” and (2) “considerations of public policy” underlying that historical rule. The Court’s view about the historical role of absolute immunity for prosecutors has largely been debunked by scholars and by none other than Justice Scalia who, in a concurring opinion joined by Justice Thomas, once observed that “[t]here was, of course, no such thing as absolute prosecutorial immunity when §1983 was enacted.”

  • July 18, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on the Constitutional Accountability Center's Text & History Blog.

    Republicans in the U.S. House of Representatives – undaunted despite having come up short for six years with ceaseless efforts to kill or maim the Affordable Care Act – struck again, on Thursday, July 7, and Friday, July 8, with back-to-back hearings in two separate committees. As touted in the headline of their joint press release, the two committees – Ways & Means and Energy & Commerce – sought to “Highlight Obama Admin’s Unprecedented Obstruction to Withhold Facts On Billions In Illegal Obamacare Payments.” 

    The purported occasion for the redundant hearings was the release of a 158 page “investigative report” amplifying House Republicans’ claim that the Administration has funded the ACA “Cost-Sharing Reduction” program without a “constitutionally required appropriation from Congress.”  The cost-sharing reduction (CSR) program currently helps 6.4 million lower income individuals to afford deductibles, co-pays, and co-insurance prerequisites for purchasing health care services and products. Many of these individuals could not afford health care, and therefore might forego buying buy health insurance without it, antithetical to the outcome the ACA was designed to produce.

    The CSR subsidies work in tandem with the ACA tax credit program subsidizing insurance premiums, which the Supreme Court held applicable nationwide one year ago in King v. Burwell, rejecting a high-profile lawsuit by anti-ACA activists. If successful, that lawsuit would have barred the premium assistance tax credits in the 30+ states with exchange marketplaces managed by the federal government, rather than by the state on its own.  

    Much like that failed legal challenge, the committees’ attack on the complementary CSR program, itself the subject of an unprecedented lawsuit by the House Republican majority now pending in the D.C. Circuit Court of Appeals, promotes two persistent partisan objectives: to render the ACA dysfunctional, and to reiterate Republicans’ chestnut that President Obama constantly breaches his legal authority, violating his constitutional obligation to “take care that the laws be faithfully executed.” 

  • July 18, 2016
    Guest Post

    by Stephen I. Vladeck, Professor, University of Texas School of Law 

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    None of the capsule summaries of the Supreme Court’s most recent Term will likely include the Justices’ June 9 ruling in Puerto Rico v. Sanchez Valle—in which a 6-2 majority held that Puerto Rico and the federal government are not separate sovereigns for purposes of the Fifth Amendment’s Double Jeopardy Clause, and so they cannot each prosecute the same person for the same criminal offense. Nor will even the most comprehensive assessments likely so much as mention the Court’s denial of certiorari, four days later, in Tuaua v. United States—in which the D.C. Circuit had held that individuals born in American Samoa are not entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment. But at the end of a Term with bigger headlines, and which may come to be seen more generally as the beginning of a new era, the reasoning in Sanchez Valle and the denial of certiorari in Tuaua highlight the Justices’ continuing unwillingness to revisit one of the more troubling chapters in the Court’s history—the early-twentieth century decisions known as the Insular Cases.

    The Insular Cases refer to dozens of rulings (there’s disagreement as to exactly how many) handed down by the Supreme Court in the first decades of the twentieth century concerning the applicability (or lack thereof) of different constitutional provisions to those residing in the United States’ nascent “insular” possessions—territories such as Puerto Rico, the Philippines and even Panama (never mind that it’s not an island).

    Although the Insular Cases cannot easily be summarized, the basic framework they articulated was to distinguish between how the Constitution applied in “incorporated” territories (i.e., territories “destined for statehood”) versus “unincorporated” territories—and to only apply the entire Constitution to the former. Whether specific provisions applied in the “unincorporated” territories turned on case-by-case assessments of whether the constitutional provision at issue was sufficiently “fundamental”—although, to be clear, the answer was usually “no.” Thus, constitutional protections ranging from the right to uniform import and export prices to the right to a jury trial in criminal cases were held inapplicable to many—if not most—of the United States’ new possessions, five of which (American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico and the U.S. Virgin Islands) continue to fly an American flag to this day.

  • July 15, 2016
    Guest Post

    by Gregg Ivers, Professor of Government, American University @Givers1023

    For much of white America, the phrase Black Lives Matter elicits thoughts of confusion, anger and resentment. Confusion, anger and resentment over the perception that the phrase, Black Lives Matter, somehow suggests that Black Lives Matter more than All Other Lives – meaning White Lives. All Lives Matter, so goes the rebuttal of some white folks, and Black Lives do not Matter any more or less than the lives of any other American citizen. Another demand for special treatment. Another demand that black folks get their own house in order rather than drawing attention to police brutality directed against unarmed black men, much of which, after we “place things in context,” somehow, after “careful review,” is almost always “justified.”

    Among the many problems with this line of reasoning, there is one that stands out:

    White America, you’re right . . . Black Lives have always Mattered. For almost four centuries, Black Lives have Mattered a great, great deal to white Americans. We would be a very different country without them. But just not in the way you would like to acknowledge.

    Black Lives Mattered so much to the British that colonized North America that they brought their first black slaves to Jamestown, Virginia, in 1619, just a dozen years after they arrived. By 1860, shortly before the outbreak of the Civil War, there were approximately 4 million African slaves in the United States. Black Lives Mattered when white America needed black men to do the brute physical work one would associate with animals and later machines. Black Lives Mattered so much to Southern planters that, after tobacco reached its peak as a cash crop in the Upper South, about a million slaves were sold to the owners of cotton plantations in the Deep South, and forced to migrate to Georgia, Alabama, Mississippi and Louisiana, where the hell that awaited them was even more unimaginable than it had been in the tobacco producing states. The Lives of Black Women Mattered even more than black men. Black women gave birth to even more slaves, whether they wanted to or not, and functioned as sexual slaves to white men who, for reasons that only Sigmund Freud might understand, degraded their existence and yet had no problem raping and pillaging them as they pleased. A young male black slave was valued for the physical labor he could provide and nothing more. A young female black slave, especially a pretty one, was doomed to an existence that no civilized person would want to think about. And so we didn’t.

    After the Civil War, Black Lives Mattered so much that the South, after the federal government reached an agreement with the Southern states to abandon Reconstruction and return the region to white rule, reinstituted a system of Neo-Slavery called Jim Crow. So valuable was the labor of black men and women that Southern planters, industrialists, politicians, law enforcement and para-military terrorist organizations like the Ku Klux Klan conspired to create a system of peonage and convict labor to dredge the swamps, pick the cotton, split the sugar cane, take care of the children, cook and clean for white folks, make the turpentine, crack the rocks, build the roads to take them to the glorious buildings that neo-slave labor largely built that rose up by the early 20th century and do anything else respectable white people believed was beneath them – and at the lowest possible cost. This system, in which blacks had no say, did not fall apart until the 1960s.

  • July 15, 2016
    Guest Post

    by Jennifer Daskal, Assistant Professor of Law, American University Washington College of Law. Follow her on Twitter @jendaskal.

    *This post originally appeared at Just Security

    As readers no doubt already know, the Second Circuit today issued a surprise ruling in the Microsoft Ireland warrant case – siding with Microsoft. The result: location of data controls, at least for purposes of warrant jurisdiction. U.S.-issued warrants can no longer be relied on to compel the production of stored communications (such as emails) located outside the United States’ territorial jurisdiction. Rather, the United States must make a diplomatic request for extraterritorially located data via a Mutual Legal Assistance Treaty (or other avenue if no such treaty is in place)—and then wait for the foreign partner to respond. This is the case even if the target of the investigation is a U.S. citizen and the provider that controls the data can access it from the United States. (It's an issue I've written about extensively herehere, and here.)

    It seems almost certain that the government will appeal the ruling. But a lot less certain that the Supreme Court will take certiorari. In the meantime, we can expect, and hope for, much more executive branch engagement with Congress on the issue.

    Here’s three quick takeaways to keep in mind.

    #1: Read Judge Lynch’s concurring opinion. He gets it exactly right in all key respects. First, this is not a privacy case, although it does have important privacy implications. The government, after all, is proceeding by a warrant issued based on probable cause. No one would think this is a privacy violation if the data were stored in Redding, Washington. It thus does not become a privacy violation because the data is stored in Ireland. Second, nothing in the text or legislative history of the statute suggests that Congress considered or intended the possibility that SCA warrants would have transnational reach; particularly given the Supreme Court's recent reaffirmation of the presumption against extraterritorially, they should not. Third, this is a wholly unsatisfactory result, even if correct as a matter of statutory interpretation and the application of Supreme Court doctrine. It means that U.S. law enforcement can no longer compel, via a lawfully obtained warrant, a U.S.-based provider to turn over the emails of a U.S. citizen being investigated in connection with a N.Y.C. murder if his or her data happens to be stored on a server outside the United States territory. Rather, it must make a diplomatic request for the data in whatever place the data happens to be stored.  And then wait--perhaps months or longer-- for a response. This makes little sense. Fourth, Congress should engage. (More on this in point #3 below).