‘Judicial Hellholes’: The Best Legal Joke of 2018

This blog originally appeared in Public Justice.

Here’s a good riddle: What do you call a court system that holds a drug manufacturer accountable for causing brain damage to children by failing to warn of its drug’s dangers? There are lots of good answers: Fair. Just. True to America’s principles.

But none of those are funny.

The American Tort Reform Foundation’s answer, however, is hilarious: “Judicial Hellhole #1.”

It’s the best legal joke of the year!

ATRF is devoted to changing the law so corporate wrongdoers can get away with almost anything. The December edition of its annual attack on courts making corporations compensate their victims — Judicial Hellholes 2018-2019 — calls California “Judicial Hellhole #1” because the Supreme Court of California ruled unanimously in T.H. v. Novartis that a brand-name drug manufacturer can be sued when the generic version of its inadequately-labeled drug causes brain damage to children.

That fact alone shows that ATRF’s “Judicial Hellholes” propaganda campaign is laughable. It also confirms that, for corporations valuing profits over people’s lives, accountability is “hell.”

Let’s be clear. The whole idea of courts being called “judicial hellholes” by ATRF is ridiculous. According to the latest publicly-available information, ATRF is funded by pharmaceutical giants, tobacco companies, oil companies, insurance companies, auto manufacturers, and others — the very companies it attacks courts for holding responsible. The entire exercise is absurd. It’s like Al Capone calling J. Edgar Hoover “Public Enemy #1,” the Mafia calling America’s safest neighborhoods “Law Enforcement Hellholes,” or the Joker calling Batman “Arch-Criminal #1.”

ATRF’s attack piece should be published on Opposite Day. It should be covered by the press, if at all, as a farce.

T.H. v. Novartis

What happened in T.H. v. Novartis exposes the absurdity of the “Judicial Hellhole” campaign.  Public Justice was co-counsel for the plaintiffs. (Leslie shared the argument with Ben Siminou.) California’s high court ruled that, because brand-name drug companies write the labels for all versions of their drugs, people injured by mislabeled generic versions of their drugs can sue them. (The generic drug manufacturers are immune under federal law because the brand-name manufacturers control the labels’ wording.) The decision opens the courthouse doors to millions of victims of inadequately-labeled drugs — who would otherwise have no remedy at all.

The lawsuit was filed on behalf of twins injured in utero by a generic version of a brand-name drug called “Brethine,” which their mother took to control preterm labor. Novartis is the brand-name drug company that wrote the label for Brethine. It knew that Brethine (and its generic equivalents) could cause fetal brain damage, but didn’t want to say so on the drug’s label because it was making too much money selling Brethine to pregnant women.

So Novartis didn’t change the label; instead, it sold the rights to the drug to another company for a big profit and walked away. A few years later, the twins’ mother was prescribed Brethine to control her preterm labor. Her prescription was filled with a generic version of the drug, and her children were born with brain damage.

The twins couldn’t sue the generic drug maker because generic drug manufacturers are required, by federal law, to use the label written by the brand-name manufacturer.

Instead, they sued Novartis. They argued that the brand-name company could be held liable because Novartis (a) wrote the label for the drug; (b) knew that manufacturers of generic Brethine were required by law to use Novartis’s label; (c) knew its label was inadequate and failed to warn of its drug’s dangers; and yet (d) chose to prioritize profits over safety by declining to update the label to protect the drug’s market value as a therapy for preterm labor.

The California Supreme Court agreed. It held that brand-name manufacturers have a duty to consumers of generic versions of their drugs — and that Novartis’s sale of its drug to another company didn’t let Novartis off the hook for its failure to update the label when it manufactured the drug.

The decision will make California — and America — safer. The risk of liability creates an incentive for drug companies to change their labels when new risks emerge. But, if drug companies can’t be sued for hiding their drugs’ dangers, all bets are off.

The Big Picture

ATRF knows that, but it’s dedicated to corporate profits, not public safety. It called California “Judicial Hellhole #1” for our case, but its reasons for smearing other places are equally ludicrous. The rest of ATRA’s top five are:

  • Florida, because, most significant, its Supreme Court upheld an $8 million verdict for an asbestos victim with mesothelioma and refused to change state law so judges could bar expert scientific testimony more easily;
  • New York City, primarily because so many consumer class actions are filed there;
  • St. Louis, especially because so many personal injury cases are filed there and a jury found Johnson & Johnson’s talcum powder caused ovarian cancer in 22 women and issued a large verdict; and
  • Louisiana, particularly for hiring contingency-fee lawyers to sue the oil and gas companies for destroying its coastline.

These are places where corporations are being — and can be — held accountable. Instead of insulting them and seeking immunity for its corporate backers, ATRF should be pushing its funders to stop hurting people and violating the law.

The brain-injured children seeking justice in T.H. v. Novartis are already in hell.

They deserve a court system that hears and resolves their claims fairly.

That’s what the Supreme Court of California gave them.

And that’s no joke.

Trump’s Travel Ban Two Years Later

January 27, 2019 marked the two-year anniversary of the “Muslim” or “Travel Ban.” Today, this version remains in full effect because of a Supreme Court decision issued last June and an earlier decision by the Court. This post explains the current application of Travel Ban 3.0.

On January 19, 2018, the Supreme Court agreed to hear arguments on the legality of Travel Ban 3.0. In the lower courts, the legal challenges to Travel Ban 3.0 were wide ranging. The challenges were constitutional and statutory. Whereas the Hawaii court focused on the statutory arguments to conclude that Travel Ban 3.0 violates the immigration statute by denying immigrant visas based on nationality, the Maryland court focused on the likelihood that Travel Ban 3.0 violates the Establishment Clause of the First Amendment to the U.S. Constitution.

On December 4, 2017 the Supreme Court issued orders staying the injunctions placed on certain aspects of Travel Ban 3.0 by federal district courts in Hawaii and Maryland pending a decision by the appellate courts and the Supreme Court. On this date, the Court did not make a decision on the legality of the ban. What this means is that Travel Ban 3.0 took full effect on December 4, 2017.

The Government appealed the Maryland and Hawaii decisions. On December 22, 2017, the Ninth Circuit Court of Appeals ruled that the plaintiffs are likely to succeed on the claim that the Proclamation violates the Immigration and Nationality Act. On February 15, 2018, the Fourth Circuit Court of Appeals ruled that the plaintiffs are likely to succeed on the claim that the ban violates the First Amendment of the U.S. Constitution and found that the Proclamation is “unconstitutionally tainted with animus toward Islam.” Both appellate courts limited the injunction to those with bona fide relationships and stayed their decisions pending a decision by the Supreme Court. On April 10, 2018, the White House announced that Chad would be removed from the travel ban after finding that the country met “baseline” security standards.

On June 26, 2018, the Supreme Court of the United States issued an opinion in the case of Trump v. Hawaii. (Travel Ban 3.0). Writing for the five-justice majority, Chief Justice Roberts held [that President Trump’s travel ban does not violate the constitution or the Immigration and Nationality Act (INA)]. The Proclamation remains in full force indefinitely.

The following nationals are covered by Travel Ban 3.0:

  • Libya and Yemen: All immigrants and those entering as tourists or business travelers
  • Iran: All immigrants and nonimmigrants, EXCEPT F, J and M visa holders (extra scrutiny)
  • North Korea and Syria: All immigrants and nonimmigrants
  • Somalia: Immigrants (and nonimmigrants subject to extra scrutiny)
  • Venezuela: Certain nonimmigrants government officials and their family members

The following categories are exempt from Travel Ban 3.0:

  • Lawful permanent residents (green card holders)
  • Foreign nationals admitted or paroled to the United States on or after the effective date
  • Foreign nationals with travel documents that are not visas that are valid before or issued after the effective date
  • Dual nationals traveling on a passport that is not one of the affected countries
  • Those traveling on a diplomatic or related visa
  • Foreign nationals who have already been granted asylum, refugees who have already been granted admittance, and those who have been granted withholding of removal, advanced parole, or protections under the Convention Against Torture

If a person is covered by the ban and does not qualify for an exemption, a consular officer may, on a case-by-case basis and within their discretion, grant a waiver to affected immigrants for certain reasons. The person seeking entry must prove that: 1) denying entry would cause the foreign national undue hardship; 2) entry would not pose a threat to the national security or public safety of the United States; and 3) entry would be in the national interest. According to the Department of State, “As of January 15, 2019, 2,584 applicants were cleared for waivers after a consular officer determined the applicants satisfied all criteria and completed all required processing.  Many of those applicants already have received their visas.” By contrast, critics have challenged the waiver scheme both in the courts of law and in the court of public opinion.

For detailed instructions on how to prepare a waiver request packet, or for assistance, impacted individuals should consult with an immigration attorney. The Middle East Interest Group of the American Immigration Lawyers Association (AILA) has developed a practice pointer for seeking a waiver.

Where can I find more resources?

[1] *Adapted from a Medium Post, By: Shoba Sivaprasad Wadhia, Sirine Shebaya and Abed Ayoub and a Fact Sheet from Penn State Law Center for Immigrants’ Rights Clinic. This document does not constitute legal advice. It was updated at 8:30pm on 1/28/2019.

Protecting Natural Resources Through State Law: Two Examples from California

With intransigence at the federal level on environmental issues, there is a unique opportunity for those seeking to improve the protection of natural resources to focus on state law and state agencies. This blog describes how, in California, two laws that present opportunities to protect natural resources are the Reclamation Act and the Coastal Zone Management Act. 

With the results of the November 2018 midterm elections, and control of the House of Representatives returned to the Democrats, natural resources law is now at a pivotal point.

On the one hand, with Democratic control of the House of Representatives, it is now unlikely that legislative efforts to federally pre-empt state law natural resource protections will succeed. For instance, H.R. 23, which had passed the House of Representatives and was awaiting a vote by the Senate, provided for broad federal pre-emption of California state law that protects fisheries, water quality and instream flows in rivers. Federal pre-emption along the lines proposed in H.R. 23 no longer appears a likely political threat for the next two years.

On the other hand, with Republican control of the Senate and White House still in place, it is also unlikely that legislative efforts to strengthen federal laws protecting natural resources (such as fisheries and water) will succeed prior to the November 2020 elections.

This scenario, where it is unlikely that there will be federal pre-emption of state laws to protect natural resources but also unlikely that federal laws to protect natural resource law will be strengthened, creates a unique opportunity for those seeking to improve protection of natural resources to focus on state law and state agencies. A particular opportunity presents itself under the federal Reclamation Act and the federal Coastal Zone Management Act (CZMA). Two examples from California highlight the potential for more effective deployment of state law and state authority pursuant to the Reclamation Act and CZMA to protect natural resources.

As a first example, the Reclamation Act governs federal water projects constructed and operated by the Bureau of Reclamation, such as the Central Valley Project (CVP) in California. Section 8 of the Reclamation Act requires that the Bureau of Reclamation operate the CVP and other federal water projects in conformity with state water law. As Justice William Rehnquist wrote for a unanimous United States Supreme Court in its 1978 decision in United States v. California, “The history of the relationship between the Federal government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of a purposeful and continued deference to state water law by Congress.”

California has numerous sources of state water law and state fisheries law that protect water quality and fisheries, including California’s Porter-Cologne Act, public trust law as set forth by the California Supreme Court in National Audubon v. Alpine County Superior, the reasonable use provisions of the California Constitution and California Water Code, and Section 5937 of the California Fish and Game Code which require releases of water to maintain fisheries below Bureau of Reclamation dams in good condition. Under these sources of state law, the California State Water Resources Control Board and the California Department of Fish and Wildlife have current authority under the Reclamation Act to require the Bureau of Reclamation to operate the CVP in a manner more protective of water quality and fisheries. It is just a question of California putting its reserved state authority to full use.

As a second example, the federal CZMA provides federal agencies with authority to approve and undertake many projects and policies within the 200-miles exclusive economic zone (EEZ) in the oceans off of coastal states. However, the CZMA also provides, that before approving and undertaking such offshore activities federal agencies must first request a “consistency determination” from the state coastal agencies designated pursuant to the CZMA, to confirm that the proposed federal action is consistent with state coastal policies. In the case of California, these provisions of the CZMA provide the California Coastal Commission with an opportunity to object to and prohibit proposed federal actions related to such activities as off-shore oil drilling, exploration and fracking.

The key to exercising such authority under the CZMA is the adoption of clear and strong state coastal policies related to the offshore activities in question, and the political will to legally challenge the federal government if such “consistency determinations” by coastal states are either bypassed altogether or disregarded. In California, in connection with the federal government’s recent approval of off-shore fracking in the EEZ adjacent to the California coast, the failure to request and obtain a CZMA consistency determination was the subject of the Environmental Defense Fund v. United States Bureau of Ocean Management lawsuit filed in the United States District Court for the Central District of California. In a November 9, 2018 ruling in this case, the federal district court judge granted summary  judgment against the federal government and issued an preliminary injunction holding: “the public interest would not be disserved by issuing an injunction because any interest in proceeding forward with [offshore fracking activity] is outweighed by the interest of the people of the state of California in ensuring that their representatives are afforded their statutory right to review the proposed action for consistency with California’s coastal management plan.”

The experience with the Reclamation Act and CZMA in California evidence that, under existing federal natural resources laws, there are ample opportunities to rely upon sources of state law to improve protection of natural resources such as water, fisheries and off-shore coastal oceans. With legislative federal pre-emption of such state laws no longer a threat as a result of the November 2018 election results, now is the time for states committed to robust natural resource protection to more fully flex their legal muscle.

 

* Professor of Water Law, Golden Gate University School of Law, and natural resources counsel to the Water and Power Law Group. Professor Kibel is the author of the forthcoming book What Remains of the River: Water Rights Reconciled to Instream Flow.

For an expanded analysis of the ways that state water law can serve as the legal basis for keeping water instream, see Paul Stanton Kibel, California Rushes In: Keeping Water Instream for Fisheries Without Federal Law, 42 William and Mary Environmental Law & Policy Review 477 (2018).

The Federal Government Shutdown is a Thirteenth Amendment Problem

Update 1/25: President Trump announced a temporary end to the shutdown.

Today, the shutdown of the federal government is in its 33rd day. The claims of federal workers deemed “essential” and forced to work without pay have been brought under the expected statute for unpaid wages— the Fair Labor Standards Act of 1938.   On January 14, a federal judge refused to require the government to pay the workers, saying that the decisions of the court will not “be leverage in the internal struggle between the branches.”  Besides a host of reasons why federal courts are loathe to be involved in interbranch disputes, the courts are hesitant to enjoin bad actors if the damages can later be repaired through back pay and penalties at a later date.

But another claim brought by some of the plaintiff federal workers merits greater attention as a way to stop an ongoing constitutional violation — the Thirteenth Amendment to the United States Constitution.  And that provision seems to provide a strong case for the intervention of the federal courts now.

Section One of the Amendment provides that “[n]either slavery nor involuntary servitude .  . . shall exist in the United States or any place subject to their jurisdiction.” An exception, not applicable here, allows forced labor “as a punishment for a crime whereof the party has been duly convicted . . . .”

Most people know that the Thirteenth Amendment in 1865 ended the system of racial slavery that precipitated the Civil War.  What is less known are the ways that the Amendment has been and can be used to invalidate oppressive economic arrangements even when they are entered into voluntarily.

Economic systems like sharecropping and debt bondage that existed before the Civil War and after emancipation which replicated slavery were held unconstitutional under the Thirteenth Amendment regardless of whether they were imposed voluntarily or involuntarily.  Thus, the “voluntary” nature of the work does not end the discussion about whether the work violates the Amendment.

Under federal labor law, private sector workers have the right to strike, but federal workers are legally prevented from doing so. The unsuccessful strike of the Professional Air Traffic Controllers Organization (PATCO) in 1981 reminds workers of the employment consequences of such an action, even though the leverage a strike provides would effectively hasten the end of the shutdown.  That is exactly the kind of unequal floor for free labor that the Thirteenth Amendment was intended to abolish. As Professor James Pope has written, the Amendment set a floor for free labor which is ineffective without the right to strike.  As I argue in a new article, the Thirteenth Amendment and its context provides the legal and historical infrastructure for our modern minimum wage laws.

Courts have been able to avoid interpreting the Thirteenth Amendment because of 20th Century statutes that prohibited race discrimination and unpaid work. Because Congress grounded the power to regulate the economy in the authority to regulate commerce, the Supreme Court has not had to address the scope of Congress’s authority under the Thirteenth Amendment.  Even so, Congress has shown renewed interest in the Amendment by basing legislation prohibiting human trafficking and hate crimes under its power under Section Two to enforce the Thirteenth Amendment “by appropriate legislation.”

The federal workers’ FLSA claims are likely to prevail, as similar litigation during the 2013 government shutdown resulted in legal victories for the workers. Now, six years later, they have yet to recover all of the compensation owed to them.

The current impact on the shut-out workers has been immediate and severe, and cannot be fully remedied with back wages and interest received years from now.  The ongoing constitutional violation can be stated plainly.  While the federal workers are “voluntarily” working, the coercive nature of working without pay and being prevented from going on strike cannot be understated.  While it is true that some workers are so essential that they may be required to work, the definition of what is essential is highly political and should be applied sparingly.  Look no further than the Internal Revenue Service workers forced to process refunds so the political impact on the Trump Administration will be lessened.  At a minimum, a judge should scrutinize closely the Administration’s claims that such workers are essential to “protecting life and property.”

The jurisprudential future of the Thirteenth Amendment is not yet written.  I am working with scholars including Lea VanderVelde and Rebecca Zietlow on a project to bring to bear the Thirteenth Amendment into discussions of contemporary economic problems like this one.  Historians will continue to debate the full impact of the Amendment on economic subordination.

Current debates about prison labor explore the contemporary meanings of the Thirteenth Amendment’s clause quoted above excepting servitude “as a punishment for crime.”  Litigators continue to assert these claims in courts.  Irrespective of the outcomes of these legal and historical debates, most Americans find something morally wrong about forcing people to work without pay.  Under this popular interpretation of “involuntary servitude,” then, the workers should have already won their case.  It remains to be seen whether courts will ultimately be responsive to the Thirteenth Amendment’s potential to prevent ongoing oppressive labor conditions.

On Wisconsin: Suing In State Court To Overturn Republicans’ Lame-Duck Sore-Loser Legislation

On January 10 of this new year, three organizations and three individual plaintiffs in Wisconsin sued the state’s Elections Commission’s individual members and interim administrator, and the newly installed Democratic governor, Tony Evers (apparently as a necessary party). The target of the lawsuit is legislation passed - and 82 state-office appointments confirmed - by the Republican-majority state legislature, largely on party lines, in a lame-duck session in December, shortly after voters elected Democrats as governor, attorney general, and treasurer.

The organizational plaintiffs are the League of Women Voters of Wisconsin (LWVW), Disability Rights Wisconsin (DRW), and Black Leaders Organizing for Communities (BLOC). The individual plaintiffs are an employee of a woman-owned business and two other taxpayers who spent the largest parts of their careers as state-government lawyers, for, respectively, the Wisconsin Department of Natural Resources and the Wisconsin Attorney General.

The LWVW summarizes the lawsuit: “The plaintiffs allege that the Legislature unconstitutionally convened an ‘extraordinary session’ during which it passed three bills that expand the Legislature’s powers at the expense of the executive branch of government, thereby causing the plaintiffs irreparable harm.” The plaintiffs contend that the legislation at issue, inter alia, reduces the powers of the newly elected governor and attorney general, hamstrings state agencies, reduces opportunities for early voting, and reinforces voter ID requirements.

The complaint is here. The memorandum in support of the plaintiffs’ request for a temporary injunction is here.

(Note: On January 17, in a separate pending federal lawsuit, One Wisconsin Institute, et al., v. Thomsen, et al., 15 Civ 342, District Judge James D. Peterson entered an order enjoining enforcement of the new legislation’s provisions concerning “...(1) limits on the time for in-person absentee voting; (2) restrictions on the use of student identification cards for voting; and (3) a time limit on the validity of temporary identification cards issued under the ID Petition Process.” Judge Peterson found these new legislative provisions “...clearly inconsistent with the injunctions that the court has issued…” in 2016 concerning similar voter-unfriendly provisions passed by the Republican-controlled Wisconsin legislature. The interplay, if any, between the ongoing federal suit and the new state-court suit remains to be determined.)

Per the complaint (at 3-4), the Wisconsin suit is primarily grounded in these interrelated facts and legal contentions:

Shortly after a statewide election in which Wisconsin voters elected new candidates to replace incumbent-candidates for the statewide offices of Governor, Attorney General, and Treasurer, the Legislature, acting at the direction of the Assembly Committee on Assembly Organization and the Senate Committee on Senate Organization (“Organizing Committees”), convened the December 2018 Extraordinary Session to consider proposals limiting the powers of the Governor- and Attorney General-elect.

The Legislature lacked legal authority to convene the December 2018 Extraordinary Session. Neither the Wisconsin Constitution nor any statute authorizes the Legislature, let alone a small subset of each chamber acting at the direction of its respective Organizing Committee, to convene itself in an “extraordinary session.” Both Organizing Committees purported to act pursuant to Joint Rule 81(2)(a). But the Legislature’s Joint Rules, adopted by a joint resolution of the Legislature, do not have the force of law. [Case-citation omitted.]

...the Constitution authorizes the Legislature “to meet” in only two circumstances: “at such time as shall be provided by law” and when “convened by the governor in a special session.” Art. IV, § 11. Because the December 2018 Extraordinary Session does not fall within either category, the Legislature exceeded its constitutional authority by convening the session. Thus, it follows that all legislative business conducted during the December 2018 Extraordinary Session is ultra vires and, therefore, unenforceable.

In short, this is a threshold-illegality argument: no matter the content of the lame-duck litigation, it is void ab initio by virtue of the process that produced it.

The lawsuit seeks two forms of relief from these actions: (1) a declaratory judgment that the statutory amendments and confirmations are “without legal effect” and (2) an injunction to bar application, implementation, or enforcement of the lame-duck legislation and confirmations of nominees.

The plaintiffs’ legislative-process argument seems to be supported by provisions of Wisconsin’s constitution that govern meetings of the legislature.

Legislative meeting authority: Meeting of legislature. SECTION 11. The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened. [Legislative history omitted. Emphasis added.]

Gubernatorial meeting authority: Powers and duties. SECTION 4. The governor ...shall have power to convene the legislature on extraordinary occasions... [Legislative history omitted. Emphasis added.]

So, if plaintiffs have the law right and establish that the legislative session was not convened pursuant to law or convened by the governor as a special/extraordinary session, then the legislative action would appear to be ultra vires.

(This invites an intriguing question: why didn’t the outgoing Republican governor Scott Walker convene an extraordinary session to preemptively moot this kind of lawsuit?)

In some respects, this is a high-risk/high-reward litigation strategy:

  • First, whether plaintiffs ultimately prevail or lose in the state supreme court on the process issue, they could settle this legal question for all other legislation enacted in lame-duck sessions by a Wisconsin legislature.
  • Second, if plaintiffs lose, they will be stuck with the content of the laws unless they can find other legal bases on which to challenge their substantive provisions. If they lose on the threshold issue but are permitted to amend their complaint, they will have to flesh out further the harms of the legislation in terms of other legal defects. They already do that to an extent in the complaint by setting out injuries each plaintiff will suffer from the legislation, but this seems a harder, more fact-intensive path to success.
  • Third, if plaintiffs lose on the process issue, statewide elected officers with few or no constitutionally defined specific powers thus could become - upon assuming office - puppets of hostile lame-duck legislatures.

As to the last point, this is a potential outcome of the Wisconsin litigation: for example, the powers-and-duties provision of the Wisconsin constitution for the treasurer and attorney general appears to assign to the legislature all authority to delineate this officer’s duties.

Treasurer and attorney general; duties, compensation. SECTION 3. The powers, duties and compensation of the treasurer and attorney general shall be prescribed by law.

[Amendment history omitted. Emphasis added.)

For further discussion, two features of the lawsuit are significantly noteworthy: (1) it was filed in state court (in Dane County, where Madison, the state capitol, is located), and (2) the suit is entirely and only premised on state-constitutional grounds. Plaintiffs eschewed filing in federal court or including any claim sounding in federal constitutional or statutory law, such as § 1983 of the U.S. Civil Rights of 1871 (42 U.S.C. § 1983) or the Americans With Disabilities Act, which might offer a statutory basis for claims by the DRW on behalf of its stakeholders, who claim harm, inter alia, from lame-duck legislative changes affecting Medicaid in Wisconsin.

The Wisconsin plaintiffs’ choice of forum and legal premises echoes the decision by voting-rights advocates in Pennsylvania in 2017 to litigate in state court - and only on state-law grounds - Republican-led legislative gerrymandering of Pennsylvania's congressional districts. The Pennsylvania plaintiffs’ decision to litigate in state court on state law was empirically defensible. Even though lower federal courts have rejected partisan gerrymandering, the U.S. Supreme Court has never invalidated a legislative districting scheme solely on the partisan advantage or disadvantage ensuing from the districting plan.

The Pennsylvania case played out well for the plaintiffs. Eventually, the case reached the Pennsylvania supreme court, which ruled for the plaintiffs. And, for want of agreement between the governor and the state legislature on a replacement districting map, the state supreme court re-drew the state’s congressional boundaries, aligning them more with Democratic preferences. The U.S. Supreme Court declined to take the case.

The state-court path might work out just as well for the Wisconsin plaintiffs. Optimism about state-based civil-rights litigation ought to be tempered, however, by matters relevant wherever civil-rights/civil-liberties plaintiffs consider whether to pursue state court litigation because they’re wary of winding up in a rightward-tilting U.S. Supreme Court.

First, in a given state, are there state-constitutional and -statutory provisions that civil-rights plaintiffs can deploy in litigation grounded only in state law? This kind of litigation is going to be very state-specific. State constitutions and statutes vary substantially, and the facts grounding claim(s) based in state-law will be state-specific.

Second, does the state supreme court lean in any particular partisan direction, and, if it does lean, which way is it moving while the litigation progresses? Realistically, the composite political bias of elected state supreme courts is likely to be an important tactical consideration for civil-rights plaintiffs who want to avoid a U.S. Supreme Court that has become less receptive during the Trump administration to civil-rights claims.

The Pennsylvania gerrymandering plaintiffs eventually arrived in a state supreme court with a 5-2 Democratic majority. If not actually partisan in judicial decision-making, it’s not unreasonable to assume that the Pennsylvania court was more favorably disposed to Democratically aligned civil-rights plaintiffs than might be a Republican-dominated court. In contrast, in Wisconsin, even though the Wisconsin supreme court’s justices are elected on “non-partisan” ballots, the court apparently has a 4-3 conservative majority.

(“Non-partisan judicial election” seems to be an acute misnomer in Wisconsin: In the 2018 election for one Wisconsin supreme court justice, “Both candidates and their supporters turned the race, which is technically nonpartisan, into a political referendum. [The Democrats’ preferred candidate] ran early ads that accused President Trump of ‘attack[ing] our civil rights and our values,’ while [the Republicans’ preferred candidate] portrayed himself as a ‘rule of law’ conservative endorsed by the National Rifle Association.” And, in that judicial election, more than $2.5 million was spent on television ads in the race by election day.)

Perhaps plaintiffs are betting that the state supreme court will be more receptive to their claims when their case actually reaches it. One Wisconsin supreme court seat is at play in an April 2019 election; one of the candidates is endorsed by Republicans and was formerly chief legal counsel to Governor Scott Walker, the other is endorsed by Democrats. In the last court election in April 2018, a Democratic-aligned candidate prevailed by a 56-44 majority.

The best case for the Wisconsin plaintiffs after the April 2019 election thus would seem to be a politically middle-ish state supreme court. The court, however, might be more actively hostile to the plaintiffs’ claims, politically speaking, if the Republican-supported candidate prevails. Even if the candidate aligned with Democratic constituencies wins, the court will still be more conservative than not.

Third, are progressive voters in a given state vigorously engaged with the state’s judicial-selection and legislative-election processes? Whether a state-court judiciary is elected or appointed, this kind of state-based civil rights litigation can only succeed where the courts are receptive to state-law civil rights claims. Long before any specific civil-rights complaint is filed in state court on state-law grounds, civil-rights stakeholders must engage actively in state judicial selection. Regardless, sore-loser lame-duck legislation might best be prevented by electing legislative majorities that won’t enact it.

Over the recent history of the U.S., litigation in federal courts has been an effective tool for expanding and insuring civil rights. Opposing that trend, the anti-regulatory and theocratically inclined blocs of the Republican coalition mobilized effectively in the last 30-plus years to gain the upper hand in the federal courts and - perhaps more importantly - many state legislatures, pulling rightward state and federal legislative and judicial decision-making.

Progressives have only recently taken on this same task with notable vigor. Notwithstanding recent victories (at the state level and Congressional level in 2017 and 2018), it’s going to be a long, slow climb to break the conservative grip on federal and state lawmaking processes.

The state-court litigation in Wisconsin is an exemplar of one element of a comprehensive progressive legal and political strategy. And the Wisconsin plaintiffs might prevail.

While promising, however, state-court litigation won’t succeed everywhere. A progressive legal agenda grounded in state-level policy-making might benefit more substantially - and more durably - from robust public involvement with state legislative elections and judicial selection.

The Shutdown and a Conscientious Legislator's Guide to Checks and Balances

Whatever one’s views on immigration policy or border security, the refusal of Republican legislators to join Democrats in re-opening the government before negotiating with President Trump is intensifying a genuine constitutional crisis. They are not only enabling the President’s breach of his oath to take care the laws be faithfully executed. They are surrendering Congress’s preeminent role in controlling the constitutional appropriations process.

Over forty years ago, Paul Brest, a prominent constitutional scholar who went on to become dean of Stanford Law School, wrote a short, but powerful law review article entitled, “The Conscientious Legislator's Guide to Constitutional Interpretation.” Brest made two key points. One is that Members of Congress should regard themselves as duty-bound to make an independent evaluation of the constitutionality of any proposed legislation on which they are voting. The second is that, in making that evaluation, a conscientious legislator should not simply predict how a court would respond. Courts often allow statutes to stand based on deference to legislative judgment or difficulties in determining legislative motive. For example, cutting back on government programs might be constitutional if intended as good-faith economic measures, but not if the cutbacks are designed specifically to hurt minority voters. Courts are reluctant, however, to second-guess legislative motive for fear of intruding on Congress’s legitimate legislative powers. But conscientious legislators need not defer to themselves, so to speak. Members know perfectly well, in most cases, what the real purpose of a bill is: whether it is really aimed at harming some minority or constitutionally protected interest, or if its operation is so far from achieving its supposed objective that it should not be regarded as sufficiently rational to pass constitutional muster.

Brest’s insight is not limited to a Member’s evaluation of legislation. It is no less important that Members be constitutionally vigilant before allowing their body or its leadership to either usurp the powers of other branches of government or to abdicate its own. It was on this basis that I argued in 2016 that the Senate’s refusal to take up the nomination of Judge Merrick Garland to succeed Justice Antonin Scalia was unconstitutional. The Senate’s stonewalling presumed a role for that body in the constitutional appointments process that went far beyond anything the Framers intended. Senate intransigence prevented President Obama, who had been elected to a second term of four years, not three, from performing his own assigned function with regard to a Supreme Court vacancy. I wrote: “Should presidents or legislators work to undermine each other’s constitutionally assigned functions . . ., it is hard to see how they are not violating their respective oaths.” Oath breaking is a constitutional violation, even though no federal court would regard itself as empowered to order the Senate to hold confirmation hearings, much less to vote on a nomination.

There is likewise no federal court available in 2019 to order Congress to reopen the government and end the longest shutdown in U.S. history. But Congress’s refusal to do so is just as dangerous to the constitutional framework, as is President Trump’s strong-arm strategy. The willingness of Republican Senators to abet that strategy is an abject abdication of the legislative power.

Presidents are constitutionally obligated to “take care that the laws be faithfully executed.” Courts have not given “faithful execution” any clear or precise definition. There is general agreement, however, that the clause was intended to prevent the executive from suspending laws. The idea is borrowed directly from the English Bill of Rights. And there is no definition of “faithful” that would countenance suspending the execution of the law solely to force Congress’s hand in appropriating funds to support a presidential campaign promise. Every part of the government that is currently shut down was chartered by Congress to carry out a statutory mission. The tasks currently compromised involve law enforcement, airport security, food safety, environmental protection, and the management of national parks. Trump’s intransigence is not motivated by the prospect of performing any of these tasks yet more effectively. He is suspending the law in order to browbeat Congress on funding his border wall.

The Senate could bring his unseemly spectacle to a halt by voting to approve House legislation reopening the government, largely on terms that the GOP Senate already approved in 2018. But Majority Leader Mitch McConnell—with the mostly silent support of the Republican Senate majority—has adopted the Garland nomination approach. There will be no vote on the House bills, he says, because the President opposes them. The Senate’s obsequiousness effectively surrenders to a president the power to determine appropriations. There should be veto-proof majorities in both Houses to put government back to work.

The power of the purse is Congress’s most pivotal authority in the constitutional scheme of checks and balances. Congress would abdicate that power should it concede a president’s right to demand funding for a campaign promise as a precondition for funding wholly unrelated parts of the government. Negotiating with an extortionist is to invite more extortion.

In his 1975 article, Paul Brest did not address “the practical problems that confront a legislator whose constitutional obligations conflict with the political demands of his office.” “Perhaps it is naïve,” Brest acknowledged, “to assume that the Constitution will often prevail when political interests are threatened.” But his point still holds: “One can reasonably demand . . . that the lawmaking process take explicit account of constitutional values threatened by pending legislation.” It is no less reasonable to demand that Congress consider the constitutional implications of prostrating itself before a president’s demand for money. The only constitutionally responsible stance is, “Open the government, and then we’ll talk.”