Re: Lane v. Tennessee, responses to it
I dunno. Some of the pending prison cases involve failure to accommodate serious medical needs of prisoners, which overlaps pretty closely with Eighth Amendment requirements stemming from Estelle v. Gamble. Which of the medical cases involves something close to an Eighth Amendment violation? Certainly not the one involving the prison that was trying to get the prisoner's medication, but was delayed in getting it? I would be interested in what set of facts in any of the gvr's is squarely covered by the 8th Am. I don't think this Court is likely to extend the 8th Am... Marci ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Lane v. Tennessee, responses to it
Add to the mix of post Lane questions Rendon v. Florida, mentioned in Sam's brief, also gvr'd. Rendon sought on behalf of a class a refund of the fees Florida had charged its disabled motor vehicle owners for handicapped parking placards; Rendon's claim rested on DoJ's Title II regulatory prohibition against charging such fees. Rendon held the override of sovereign immunity unconstitutional, an issue that, in the context of handicapped parking placards, surely remains open after Lane, but also went further than any other pre-Lane case, opining in a footnote that Title II might well be invalid as commerce clause legislation; to avoid reaching that question, Rendon held invalid the DoJ regulation. All of those issues presumably are again before the district court of appeal in Rendon, and because of Florida's peculiar constitutional limits on review by its state supreme court, the district court of appeal is likely to be the state court of last resort. Michael R. Masinter 3305 College Avenue Nova Southeastern UniversityFort Lauderdale, Fl. 33314 Shepard Broad Law Center(954) 262-6151 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel On Fri, 28 May 2004, Samuel Bagenstos wrote: > At 10:51 AM 5/28/2004 -0400, Marty Lederman wrote: > >I agree with much of what Marci adds. Two minor follow-up questions for > >Marci (and others): > > > >1. Any thoughts on Florida Prepaid, in which SOC could have (but did not) > >embrace the same sort of "as-applied" distinction as in Lane? JPS urged > >in dissent that the Court ought to uphold the Patent Act "as applied" to > >willful infringements, which were what was alleged in the case and which > >would be subject to "heightened" scrutiny under section 1. The majority > >ignored the invitation. > > FWIW, I've always thought that the Chief basically answered this question > in the Florida Prepaid footnote that observed that Florida provided > post-deprivation process. The relevant constitutional provision (as > interpreted by the Court there) would not be violated unless there was both > intentional infringement and inadequate post-deprivation process. The > defendant before the Court provided post-deprivation process, and there was > no reason to believe that other states didn't so provide, so there was no > basis for a prophylactic federal statute. I wouldn't endorse the Court's > implicit Section 1 judgment that virtually any post-deprivation process > (even a private bill in the state legislature) is due process, but once one > accepts that judgment it's hard to say there's a basis for upholding the > Patent Remedy Act as applied. > > > > >2. Do you think SOC (i.e., the Court) would uphold title II on Commerce > >grounds as to prisons and/or test-taking? > > > I don't know the answer to these questions, but at least one of the > "test-taking" cases involves a nursing exam administered by a state health > board, which seems like a classic kind of economic regulation subject to > Congress's commerce authority. You could easily see independent 10th > Amendment issues arising from Congress telling states how to engage in such > regulation (though I doubt they'd be decisive), but I would think the > commerce authority for such an application would be pretty clear. (This > assumes that as-applied analysis works for the commerce power in the same > way as it works for the Section 5 power, which I think remains an open -- > or at least complicated -- question given Wickard.) > > > >Samuel R. Bagenstos > > Assistant Professor of Law > Harvard Law School > 1545 Massachusetts Ave. > Cambridge, MA 02138 > (617)495-9299 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Lane v. Tennessee, responses to it
I agree with much of what Marci adds. Two minor follow-up questions for Marci (and others): 1. Any thoughts on Florida Prepaid, in which SOC could have (but did not) embrace the same sort of "as-applied" distinction as in Lane? JPS urged in dissent that the Court ought to uphold the Patent Act "as applied" to willful infringements, which were what was alleged in the case and which would be subject to "heightened" scrutiny under section 1. The majority ignored the invitation. 2. Do you think SOC (i.e., the Court) would uphold title II on Commerce grounds as to prisons and/or test-taking? Marci wrote: I did not find it surprising, but rather vintage Justice O'Connor. She did not "flip" between Garrett and Tennessee v. Lane. The signal difference, and this is one of the most important parts of the decision, is the level of scrutiny required for the right affected. Where a right is worthy of intermediate (gender disc in Hibbs) or strict (access to courts) scrutiny, she is giving Congress rather wide sway--the evidence need not be as specific as the dissent demands in Lane. Had the right in Lane been less weighty, disability by itself, she would have followed the reasoning of Garrett. But where the right only receieves rationality review under the Court's cases--age (Kimel), takings (Florida Prepaid), and disability (Garrett), she is inclined to take Congress to task unless it has clearly shown a need to intervene. Surely that section of the opinion was written to get her vote.For these reasons, I do not think that Congress's power will be upheld with respect to any of the cases gvr'ed in light of Lane on Monday (disability in prison context and in test-taking context). - Original Message - From: <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]> Sent: Friday, May 28, 2004 10:06 AM Subject: Fwd: Re: Lane v. Tennessee, responses to it > Please see below, which I inadvertently sent to Mary only. Regards, Marci> > Marci A. Hamilton> Paul R. Verkuil Chair in Public Law> Benjamin N. Cardozo School of Law> Yeshiva University> 55 Fifth Avenue> New York, NY 10003> (212) 790-0215> (212) 790-0205 (fax)> > ___> To post, send message to [EMAIL PROTECTED]> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Fwd: Re: Lane v. Tennessee, responses to it
Please see below, which I inadvertently sent to Mary only. Regards, Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 (212) 790-0205 (fax) --- Begin Message --- I did not find it surprising, but rather vintage Justice O'Connor. She did not "flip" between Garrett and Tennessee v. Lane. The signal difference, and this is one of the most important parts of the decision, is the level of scrutiny required for the right affected. Where a right is worthy of intermediate (gender disc in Hibbs) or strict (access to courts) scrutiny, she is giving Congress rather wide sway--the evidence need not be as specific as the dissent demands in Lane. Had the right in Lane been less weighty, disability by itself, she would have followed the reasoning of Garrett. But where the right only receieves rationality review under the Court's cases--age (Kimel), takings (Florida Prepaid), and disability (Garrett), she is inclined to take Congress to task unless it has clearly shown a need to intervene. Surely that section of the opinion was written to get her vote. For these reasons, I do not think that Congress's power will be upheld with respect to any of the cases gvr'ed in light of Lane on Monday (disability in prison context and in test-taking context). Marci --- End Message --- ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Lane v. Tennessee
On the "merits" of the Commerce Clause question, my colleague Tom Goldstein (who also was on Lane's brief, with Sam) notes that even this Court almost certainly would find that title II is permissible Commerce Clause legislation as to some of its applications (i.e., at the very least as to those applications in which the state is acting as a "market participant"; cf. also Condon v. Reno). Assuming that's correct (and I think it is), then perhaps the Court would uphold all of title II under the Commerce Clause on the theory that a sufficient percentage of applications are within the Commerce power. But even if the Court were to engage in "as-applied" invalidation of certain applications of statutes under its Commerce Clause doctrine -- and, btw, whether or not it should ever do so is the principal uestion raised in the current petition from the Ninth Circuit's holding in the medical marijuana case -- Tom points out that the applications of title II that are least likely to survive section 5 review (e.g., the now-infamous hockey-rink example) are precisely those that are most likely to fall within the Commerce power. Which might, in turn, explain why SOC is comfortable upholding certain applications of title II under section 5, but not others -- namely, that she'll uphold applications (only?) where necessary to sustain Congress's power to impose substantive obligations, i.e., where the Commerce Clause would be unavailing. - Original Message - From: Marty Lederman To: Law & Religion issues for Law Academics ; [EMAIL PROTECTED] ; Samuel Bagenstos Sent: Friday, May 28, 2004 9:18 AM Subject: Re: Lane v. Tennessee Sorry, I hadn't meant to suggest that Sam overlooked this point. Indeed, I had intended (but simply forgot) to link to Sam's brief, in which this message was sent to SOC loud and clear. See also pages 11-12 of the SG's brief (http://www.usdoj.gov/osg/briefs/2003/3mer/2mer/2002-1667.mer.aa.pdf): Third, unlike Kimel and Garrett, this case implicates concerns beyond abrogation and the ability of individuals to sue the States for money damages. Because both Kimel and Garrett targeted employment discrimination, those decisions only invalidated the statutes abrogation provisions; the substantive prohibitions of those laws remain applicable to the States pursuant to Congresss undoubted power to regulate employment under its Commerce Clause authority, and they can be enforced against state officials under Ex parte Young, 209 U.S. 123 (1908). See Garrett, 531 U.S. at 374 n.9; EEOC v. Wyoming, 460 U.S. 226, 235-243 (1983). While petitioner concedes (Br. 16) that Title IIs substantive provisions are valid Commerce Clause legislation, its state amici (Br. 22, 25) and a number of other States pointedly do not [citing briefs]. Accordingly, unless Title II is appropriate Commerce Clause legislation, the issue presented here draws into question the power of Congress to require both States and local governments, whether through private damages actions, private injunctive actions, or suits by the United States itself, to make their buildings, programs, and public life accessible to a historically marginalized population. - Original Message - From: Samuel Bagenstos To: Marty Lederman ; Law & Religion issues for Law Academics ; [EMAIL PROTECTED] Sent: Friday, May 28, 2004 9:07 AM Subject: Re: Lane v. Tennessee I think there is more to it than Marty says -- I do think this was a clear case of prophylaxis, for many of the same reasons Vik Amar marshalls. But I certainly wouldn't ignore the notion that Justice O'Connor was afraid that the substantive obligations of Title II would go down if the Court ruled against the plaintiffs on the immunity question. As Marty knows, I was one of the lawyers who represented Lane, and in the introduction to the argument section of our brief before the Court we played up this very angle. To quote the key paragraph:Both the state and its amici reassure the Court that their position does not call into question the ultimate constitutionality of Title II; all that supposedly is at issue is whether Congress can properly impose a damages remedy on states that have violated the statute. See Pet. Br. 15-16; Ala. Br. 25-26. But the reassurances of the state and its amici ring hollow. If this Court rules that Title II cannot be supported by a sufficient Fourteenth Amendment predicate, the statute will provide no basis for any relief--damages or an injunction--unless it can be upheld under Congress's Article I commerce power. In their brief before this Court, the State's amici pointedly refuse to concede that the comme
Re: Lane v. Tennessee
Sorry, I hadn't meant to suggest that Sam overlooked this point. Indeed, I had intended (but simply forgot) to link to Sam's brief, in which this message was sent to SOC loud and clear. See also pages 11-12 of the SG's brief (http://www.usdoj.gov/osg/briefs/2003/3mer/2mer/2002-1667.mer.aa.pdf): Third, unlike Kimel and Garrett, this case implicates concerns beyond abrogation and the ability of individuals to sue the States for money damages. Because both Kimel and Garrett targeted employment discrimination, those decisions only invalidated the statutes abrogation provisions; the substantive prohibitions of those laws remain applicable to the States pursuant to Congresss undoubted power to regulate employment under its Commerce Clause authority, and they can be enforced against state officials under Ex parte Young, 209 U.S. 123 (1908). See Garrett, 531 U.S. at 374 n.9; EEOC v. Wyoming, 460 U.S. 226, 235-243 (1983). While petitioner concedes (Br. 16) that Title IIs substantive provisions are valid Commerce Clause legislation, its state amici (Br. 22, 25) and a number of other States pointedly do not [citing briefs]. Accordingly, unless Title II is appropriate Commerce Clause legislation, the issue presented here draws into question the power of Congress to require both States and local governments, whether through private damages actions, private injunctive actions, or suits by the United States itself, to make their buildings, programs, and public life accessible to a historically marginalized population. - Original Message - From: Samuel Bagenstos To: Marty Lederman ; Law & Religion issues for Law Academics ; [EMAIL PROTECTED] Sent: Friday, May 28, 2004 9:07 AM Subject: Re: Lane v. Tennessee I think there is more to it than Marty says -- I do think this was a clear case of prophylaxis, for many of the same reasons Vik Amar marshalls. But I certainly wouldn't ignore the notion that Justice O'Connor was afraid that the substantive obligations of Title II would go down if the Court ruled against the plaintiffs on the immunity question. As Marty knows, I was one of the lawyers who represented Lane, and in the introduction to the argument section of our brief before the Court we played up this very angle. To quote the key paragraph:Both the state and its amici reassure the Court that their position does not call into question the ultimate constitutionality of Title II; all that supposedly is at issue is whether Congress can properly impose a damages remedy on states that have violated the statute. See Pet. Br. 15-16; Ala. Br. 25-26. But the reassurances of the state and its amici ring hollow. If this Court rules that Title II cannot be supported by a sufficient Fourteenth Amendment predicate, the statute will provide no basis for any relief--damages or an injunction--unless it can be upheld under Congress's Article I commerce power. In their brief before this Court, the State's amici pointedly refuse to concede that the commerce power supports Title II. See Ala. Br. 5 (noting that an injunctive remedy exists for Title II violations only "assuming [Title II] is a valid exercise of Congress's Article I power"); id. 22, 25 (same). And a number of states have recently challenged the Commerce Clause basis for the statute. See Thompson v. Colorado, 278 F.3d 1020, 1025 n.2 (10th Cir. 2001), cert. denied, 535 U.S. 1077 (2002); State v. Rendon, 832 So. 2d 141, 146 n.5 (Fla. Dist. Ct. App. 2002), rvw. denied, 851 So. 2d 729 (Fla. 2003); Meyers v. Texas, No. 02-50452 (5th Cir.) (pending); Doe v. Regier, No. 03-2794 (Fla. Dist. Ct. App.) (pending); McCarthy v. Hale, No. 03-50608 (5th Cir.) (pending). Of particular importance, the applications of Title II that come closest to the core of Congress's Fourteenth Amendment power--those guaranteeing participation in such quintessential activities of self-government as voting, jury service, and the like--are precisely those that are least likely to be sustained under the Commerce Clause. For all intents and purposes, then, petitioner is mounting a facial challenge to the basic constitutionality of Title II.A ruling that Title II exceeds Congress's authority would invalidate the very " 'milestone on the path to a more decent, tolerant, progressive society' " that the State purports to endorse. Pet. Br. 15-16 (quoting Garrett, 531 U.S. at 375 *12 (Kennedy, J., concurring)). Fortunately, Title II fully meets the state's constitutional challenge. * * *.At 08:35 AM 5/28/2004 -0400, Marty Lederman wrote: In addition to Sam's post below, Vik Amar and Michael Rappaport have now posted theories on why Justice O'Connor switched from Garrett to Lane.
Lane v. Tennessee
In addition to Sam's post below, Vik Amar and Michael Rappaport have now posted theories on why Justice O'Connor switched from Garrett to Lane. Amar: http://writ.news.findlaw.com/amar/20040527.html Rappaport: http://therightcoast.blogspot.com/2004_05_01_therightcoast_archive.html#108568378079272331 While there is much to be said for all of these (and other) explanations of the decision, I'm surprised that no one has yet mentioned what was, in my view, the pink elephant sitting in the middle of the room -- namely, that if SOC decided that title II could not be enacted pursuant to section 5, that holding would not simply lead to invalidation of Congress's abrogation of state sovereign immunity (as in Garrett, Kimel and Florida Prepaid), but would also almost certainly mean invalidation of the substantive obligations that title II imposes on the states, because it is extremely unlike that this Court (including SOC) would hold that title II is defensible under the Commerce Clause. SOC cares about preserving the state fisc against what she sees as onerous litigation burdens; but I suspect she's not hostile to the underlying obligations imposed on states in any of the titles of the ADA. - Original Message - From: Sam Bagenstos To: Marty Lederman ; [EMAIL PROTECTED] ; Law & Religion issues for Law Academics ; [EMAIL PROTECTED] Sent: Tuesday, May 18, 2004 10:31 AM Subject: Re: Scalia disavows Boerne I'm of course with Marty in thinking that Justice Scalia's Lane dissent is hardly the most important news from the Court yesterday, but I'm intrigued by it anyway. (I like "how low can he go.") Three (perhaps cynical) points:1. Justice Scalia says he joined Boerne "with some misgiving" and is only abandoning it now because experience has shown that the C&P test leads to "judicial arbitrariness and policy-driven decisionmaking" and brings the Court "into constant conflict with a coequal branch of government." Yet Justice Scalia certainly knows how to express misgiving when he wants to, and he never expressed any misgiving about the C&P test in any opinion until this case. It's hard to take seriously the idea that Justice Scalia just figured out that the C&P test brings the Court into constant conflict with Congress -- that was clear in Boerne. And Justice Scalia's new test (no prophylaxis outside of the race context) would seem to create a greater Court-imposed restraint on Congress. So what has Justice Scalia just discovered? That C&P cases are "arbitrary" and "policy-driven" -- by which he seems to mean that he can't trust his colleagues to vote consistently to limit congressional power. Although Justice Scalia tries rhetorically to assert a kind of principled high-ground here, I find it kind of interesting that he's deciding to "stick to his principles" only after he found that the "unprincipled" approach he previously supported didn't work out as expected by getting him the results he wanted.2. It looks like Justice Scalia was kind of boxed in here. Given his over-the-top defense of the Salerno principle in cases like Romer and Morales, he couldn't really go with the Chief in saying that the C&P analysis looks to the statute on its face. (It's hard to make a truly convincing argument that facial challenges are OK here but not there.) And given the powerful constitutional rights at issue in the narrow courthouse-access context of Lane, and the significant record (which is only touched on in the Court's opinion) of inaccessible courthouses, if there was ever a case for prophylaxis this would be it. So that left Justice Scalia with only the option of saying no prophylaxis ever. In other words, this is a case where the C&P test couldn't get to the Congress-limiting result -- not because of arbitrariness but because it's just a core case of prophylaxis.3. But is anyone really convinced by Justice Scalia's ultimate position? No prophylaxis, except where race discrimination is in view? As a textual matter, Section 5 of course makes no distinction between race discrimination and any other conduct that violates the "provisions of this article." Justice Scalia just relies on stare decisis to draw the distinction. But of course none of the relevant cases actually draw the distinction. He's just saying that the Court has upheld prophylactic Section 5 legislation only in the race discrimination context. Except for Hibbs, which was too recent and wrong for the Court to have to follow. Oh yeah, and James Everard's Breweries, which involved the almost identically worded enforcement clause of the Eighteenth Amendment. So Justice Scalia has to jump over at least two cases to get to his stare-decisis-motivated amendment to the text of Section 5's enforcement clause. And then he adds the new "requirement th
