• 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).

  • July 13, 2016

    by Jim Thompson

    Partisan Justice, a new ACS study conducted by independent researchers at Emory University School of Law, finds that the upward spiral of big money fundraising and aggressive politics in state judicial elections pressures judges to become partisan actors who favor their own party in deciding election disputes.

    In Huffington Post, Zeba Blay reflects on the year since Sandra Bland’s senseless death, concluding that the #SayHerName campaign, which seeks to bring attention to the black women who have died after police encounters, is as important as ever.

    Kenneth Jost at Jost on Justice says police departments must “make meaningful changes in their policies and practices to protect and serve all, without regard to race.”

    In a huge victory for same-sex couples, the Court of Appeals of Maryland last Thursday ruled “that non-biological and non-adoptive parents who help raise children are eligible for recognition as ‘de facto’ parents with full parental rights,” reports Lou Chibbaro Washington Blade

  • July 12, 2016
    Guest Post

    by Katherine A. Macfarlane, Associate Professor of Law, University of Idaho College of Law, @KatAMacfarlane

    *A longer version of this essay is forthcoming in the Yale Law Journal Forum

    Utah v. Strieff declined to apply the exclusionary rule to evidence seized during an arrest that followed an unconstitutional stop. Strieff will impact civil rights plaintiffs’ ability to recover damages pursuant to 42 U.S.C. § 1983 for both unconstitutional stops and the law enforcement conduct that follows such stops. Section 1983 damages for the kind of unconstitutional stop at issue in Strieff will likely be nominal. The Court assumed that Section 1983 actions were suitable replacements for the exclusionary rule’s deterrent effect. But, actions that result in nominal damages are inadequate proxies for the kind of disincentive the exclusionary rule provides.  

    The defendant in Strieff was stopped by narcotics detective Douglas Fackrell after Strieff exited a home Fackrell was surveilling for drug dealing. Following the stop, Fackrell learned that Strieff was subject to an arrest warrant. Strieff was arrested, and meth and drug paraphernalia were found on his person. The Court declined to exclude the evidence seized incident to Strieff’s arrest. Though Fackrell’s original stop was unlawful, it was “sufficiently attenuated” by the arrest warrant. Justice Sotomayor dissented, arguing that the evidence should have been excluded. She emphasized that though Streiff was white, suspicionless stops disproportionately victimize people of color. Justice Kagan’s dissent explained that before Strieff, an officer who lacked reasonable suspicion for a stop might have paused to consider the risk of rendering relevant evidence inadmissible. Now, that same officer has no reason to hesitate. Strieff himself argued that without the exclusionary rule’s ability to prevent suspicionless stops, “police will engage in dragnet searches,” stopping people for no reason to discover outstanding arrest warrants. The Court rejected this argument, concluding that the civil liability imposed by Section 1983 deters any such action. 

    The existence of Section 1983 civil liability does not necessarily deter unconstitutional stops or dragnet searches for arrest warrants. 

    Strieff will limit the damages available to individuals who suffer unconstitutional stops. Before Strieff, an unconstitutional stop would typically lead to exclusion of drugs found incident to the arrest that followed the stop. Without key drug evidence, prosecuting someone like Strieff for drug possession was futile. But following Strieff, defense counsel will not be able to exclude evidence like the drugs found on Strieff. If the incriminating evidence is admitted, a conviction becomes more likely. Strieff himself conditionally pleaded guilty to possession while reserving his right to appeal his suppression motion denial.