Loose Ends from Raich in Taylor v. United States

by Jonathan Keim

On Monday the Supreme Court decided Taylor v. United States, a case addressing proof of jurisdiction under the Commerce Clause. A 7-1 majority, with Justice Alito writing for the Court, ruled that the government is relieved of proving that a specific robbery affects interstate commerce so long as it proves that the robbery was intended to affect drug dealing, which, as the Court held in Gonzales v. Raich (2005), is within Congress’s power to regulate. Justice Thomas was the lone dissenter.

Front and center is the Hobbs Act, which criminalizes robbery and extortion that “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” The Act, which the Department of Justice says was originally passed to attack racketeering in labor-management disputes, constitutes the broadest possible federalization of robbery and extortion that Congress could legislate under its Commerce Clause powers. For this reason, Hobbs Act cases often present interesting questions about the precise scope of federal jurisdiction over particular robberies and extortion. To ensure the success of prosecutions under that statute, the Department of Justice restricts prosecutors, “as a general rule,” to charging Hobbs Act robbery only “in instances involving organized crime, gang activity, or wide-ranging schemes,” which presumably have the strongest relationship to interstate commerce.

The first question before the court, then, is whether the indicted robbery fits within Congress’s Commerce Clause authority, and therefore the Hobbs Act. The majority opinion takes Raich as settled law. Justice Alito writes (citations omitted):

The case now before us requires no more than that we graft our holding in Raich onto the commerce element of the Hobbs Act. The Hobbs Act criminalizes robberies affecting “commerce over which the United States has jurisdiction.” Under Raich, the market for marijuana, including its intrastate aspects, is “commerce over which the United States has jurisdiction.” It therefore follows as a simple matter of logic that a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction.

In keeping with his well-known indifference to stare decisis on constitutional issues, Justice Thomas’s dissent does not accept Raich as given. Instead, he lays out a more concise version of the originalist argument he raised in his Raich dissent. He would construe the Hobbs Act more narrowly, requiring proof in every case that the particular act falls within the powers of Congress (citations and internal quotations omitted):

At the founding, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes. The Commerce Clause, as originally understood, thus empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Robbery is not buying, it is not selling, and it cannot plausibly be described as a commercial transaction (“trade or exchange for value”). [] Because Congress has no freestanding power to punish robbery and because robbery is not itself “Commerce,” Congress may prohibit and punish robbery only to the extent that doing so is “necessary and proper for carrying into Execution” Congress’ power to regulate commerce. To be “necessary,” Congress’ prohibition of robbery must be plainly adapted to regulating interstate commerce. This means that Congress’ robbery prohibition must have an obvious, simple, and direct relation with the regulation of interstate commerce. And for Congress’ robbery prohibition to be “proper,” it cannot be prohibited by the Constitution or inconsistent with its letter and spirit.

Justice Thomas rejects the categorical approach endorsed in Raich, since “[s]weeping in robberies that do not affect interstate commerce comes too close to conferring on Congress a general police power over the Nation.”

On the second question, the standard of proof, the justices’ views track their attitudes toward Raich. The majority opinion adopts Raich’s categorical approach, holding that jurisdiction doesn’t require any more than proof “beyond reasonable doubt that the robber targeted a marijuana dealer’s drugs or illegal proceeds[.]” Since the defendant was trying to rob his victim of an illegal marijuana stash, that element was easily satisfied in this case.

Justice Thomas’s approach, by contrast, would have required proof that the particular robbery affected one of the channels of interstate commerce, instrumentalities of commerce, or persons or things in interstate commerce. These robberies were purely intrastate, so he would have reversed the convictions.

Justice Thomas’s dissent also worries that the majority has effectively expanded Raich. As he points out, there is asymmetry between the substantial-effects rationale of Raich, which held that Congress had a rational basis for determining that marijuana cultivation and possession affected interstate commerce, and the beyond-reasonable-doubt burden in criminal prosecutions. Justice Alito would presumably counter that no mismatch arose in this case, since the victim in this case was proven to be commercially distributing illegal marijuana, not merely cultivating and possessing it for personal use.

It’s not clear at this point whether Taylor is just an echo of Raich or a harbinger of future Commerce Clause cases. Justice Alito hints obliquely that he’s not a fan of Raich, but doesn’t go much beyond that. We therefore have little insight into whether anyone other than Justice Thomas would be willing to overturn it.

In the end, I suspect that Taylor is best understood as an effort to tie up a loose end from Raich, but it’s always good to have Justice Thomas reminding us that the Commerce Clause doesn’t mean whatever the courts say it does. 

This Day in Liberal Judicial Activism—June 24

by Ed Whelan

1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court! 

U.S. v. Texas Shows Why We Should Thank Republican Senators For Holding the Line on Garland

by Carrie Severino

When Majority Leader Mitch McConnell and his Republican colleagues in the Senate decided not to proceed on a nomination to replace the late Justice Scalia, they raised the stakes in the presidential fight and kept faith with the voters who elected them to push back against an unpopular and increasingly lawless president.  Today, McConnell’s plan resulted in a victory for constitutional limits on the presidency and prevented a unilateral grant of amnesty to millions of illegal immigrants.

Today the Supreme Court announced that it had split 4-4 in U.S. v. Texas, the case challenging President Obama’s attempt to unilaterally rewrite immigration law. That leaves the Fifth Circuit’s opinion in place, which means the DAPA immigration action doesn’t go into effect.

In the case of a split vote, the Court issues no decision, so there is no reasoning to analyze.  If Merrick Garland were sitting on the Court today, the result would have been very different.

One of the hallmarks of Garland’s jurisprudence is his deference to the executive.  It’s what makes senators from West Virginia, Pennsylvania, and McConnell’s own Kentucky so concerned: He is almost certain to green-light the EPA’s war on coal that will come before the Court as early as next term.  It’s what worries business groups: He appears to be firmly in the pocket of the NLRB and Big Labor.  And some people even claim that this deference makes him a moderate, because he often sides with the government in criminal cases. 

But deferring reflexively to one of the branches of government that you’re supposed to be scrutinizing isn’t a sound judicial philosophy.  It’s abdication of the judicial role. And to have someone who is content to let a president or even unelected bureaucrats rewrite the laws passed by our elected representatives in Congress would be a constitutional disaster.

Leader McConnell, Senator Grassley, and all the GOP Senators who have stood firm on this nomination should get much of the credit for today’s decision.  They have upheld their own oaths to support and defend the Constitution, and deserve our thanks.​



Fisher II: SCOTUS Plays Catch-and-Release With Fisher I

by Jonathan Keim

This morning the Supreme Court issued its opinion ending Abigail Fisher’s lawsuit against the University of Texas, holding by a 4-3 vote (Justice Kagan was recused) that the university’s race-oriented affirmative action program did not violate the Equal Protection Clause. Justice Kennedy wrote the majority opinion for himself and the Court’s liberals. Justice Alito wrote the principal dissent for the remaining justices, with Justice Thomas writing a short additional dissent only for himself.  

The case concerns a claim under the Equal Protection Clause brought by Abigail Fisher, who asserted that an affirmative action program run by the University of Texas violated her rights under the Fourteenth Amendment because it gave some applicants higher scores based on race while penalizing others. Fisher’s case first reached the Supreme Court during October Term 2012, when the Court ruled that the university’s program was subject to the “demanding burden of strict scrutiny articulated in Grutter [v. Bollinger] and Regents of Univ. of Cal. V. Bakke[.]” The Court’s opinion then, written by Justice Kennedy, vacated a Fifth Circuit decision for failing to apply the correct standard and improperly upholding the program. Many expected the Court to take the same hard line that it took in Fisher I, rigorously evaluating the proffered justifications for UT’s program and holding the state to its burden. But as Justice Alito wrote in his dissent, “Something strange has happened since our prior decision in this case.”

And indeed, something strange did happen: The Court moved the goalposts closer to the University of Austin. Fisher’s counsel had pointed out at oral argument that under strict scrutiny, the burden of proof is on the government entity involved in racial discrimination, so any factual holes in the government’s justification must be construed against the government. But the Court’s opinion hinges its analysis on Fisher’s failure to challenge a race-neutral program, called the Top Ten Percent Plan, that runs alongside UT’s race-conscious program and accounts for nearly three quarters of the incoming students. This, the Court said in the understatement of the week, “complicates this Court’s review”:

In particular, it has led to a record that is almost devoid of information about the students who secured admission to the University through the Plan. The Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review.

Normally, a gap in the record would be solved through a remand for further fact-finding or (at this late stage in the litigation) construed against the government that bears the burden. But the Court goes full-Kennedy in the other direction, explaining that it would have been so gosh-darn hard for UT to get the necessary evidence (even though UT officials destroyed records) and anyway UT was trying its best and anyway the case has dragged on too long. It’s not clear why any of this matters, but the majority found it compelling. (Was the Court announcing a new doctrine of “your case is too old so we’re reversing the burden of proof?” Who knows? Let’s see what the lower courts make of it.)   

Kennedy still can’t shake his concerns about UT, though, so he adds this odd exhortation (citations omitted):

That does not diminish, however, the University’s continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances. The University engages in periodic reassessment of the constitutionality, and efficacy, of its admissions program. Going forward, that assessment must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admissions plan.

As the University examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values. Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest. The University’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the University must shape its admissions policy to satisfy strict scrutiny in the years to come. Here, however, the Court is necessarily limited to the narrow question before it: whether, drawing all reasonable inferences in her favor, petitioner has shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected.

In other words, “Next plaintiff!”

After shifting the burden back to the plaintiff, the majority goes on to declare that the values promoted by the affirmative action program – “the destruction of stereotypes,” “promotion of cross-racial understanding,” “preparation of a student body for an increasingly diverse workforce and society,” and “cultivation of a set of leaders with legitimacy in the eyes of the citizenry” – are sufficiently “concrete and precise” to satisfy strict scrutiny.  These are laudable goals, to be sure, but “concrete” or “precise?” Good grief. Of course, with this setup, the “strict scrutiny” that follows is not so strict.

Justice Thomas’s brief opinion reiterates his view that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” Justice Alito’s dissent is long, but worth reading in its entirety. Much of his opinion is devoted to showing the inconsistencies between the majority opinion, Fisher I, and prior case law, and his searching analysis of the facts, unlike the majority’s, actually deserves the label “strict scrutiny.”

His dissent also points out the selective concern for different racial groups (citations and internal quotations omitted):

While both the majority and the Fifth Circuit rely on UT’s classroom study, they completely ignore its finding that Hispanics are better represented than Asian-Americans in UT classrooms. In fact, they act almost as if Asian-American students do not exist. Only the District Court acknowledged the impact of UT’s policy on Asian-American students. But it brushed aside this impact, concluding—astoundingly—that UT can pick and choose which racial and ethnic groups it would like to favor. According to the District Court, “nothing in Grutter requires a university to give equal preference to every minority group,” and UT is allowed “to exercise its discretion in determining which minority groups should benefit from the consideration of race.”

This reasoning, which the majority implicitly accepts by blessing UT’s reliance on the classroom study, places the Court on the tortuous path of deciding which races to favor. And the Court’s willingness to allow this “discrimination against individuals of Asian descent in UT admissions is particularly troubling, in light of the long history of discrimination against Asian Americans, especially in education. In sum, while the Court repeatedly refers to the preferences as favoring “minorities,” it must be emphasized that the discriminatory policies upheld today operate to exclude Asian-American students, who have not made UT’s list of favored groups.

On the upside, the Court’s opinion doesn’t foreclose further Equal Protection claims against universities for racially discriminatory affirmative action programs. It could even be construed as requesting more. On the downside, the Court gratuitously spiked one plaintiff’s cause of action for all the wrong reasons. I can’t improve on Justice Alito’s summation:

What is not at stake is whether UT or any other university may adopt an admissions plan that results in a student body with a broad representation of students from all racial and ethnic groups. UT previously had a race-neutral plan that it claimed had “effectively compensated for the loss of affirmative action,” and UT could have taken other steps that would have increased the diversity of its admitted students without taking race or ethnic background into account.

What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve “the educational benefits of diversity,” without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives. Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable—and remarkably wrong.

Well said. 

Disappointing Decision in Fisher

by Roger Clegg

The Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions. The vote was 4-3, with Justice Kennedy writing the majority opinion,  joined by Justices Breyer, Ginsburg, and Sotomayor (Justice Kagan was recused). Justice Alito wrote a powerful, 51-page dissent, which he read from the bench.

Needless to say, the decision is disappointing, for all the reasons that Justice Alito explains. The discrimination that is upheld is untenable in our increasingly multiracial, multiethnic society — indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic, and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.

Still, today’s decision is a narrow one. 

As the Court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.”  A big reason for this, of course, is the school’s use of a Top Ten Percent plan, which was not challenged. Rather surprisingly, by the way, Justice Kennedy seems to suggest that perhaps it should have been. 

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race. And race is, the Court says, only a factor of a factor of a factor at UT; was considered contextually; does not automatically help members of any group; and could in theory help the members of any group, including whites and Asian Americans.

Now, this may all be false as a matter of what really happens at the University of Texas, but other schools are now obliged to jump through the hoops that the Court says UT jumped through. More broadly, any school’s use of racial preferences must pass “strict scrutiny” and bear the burden of proving that a nonracial approach would not promote its interest in the “educational benefits of diversity” about as well.

And so the Court’s decision leaves plenty of room for future challenges to racial-preference policies at other schools, and at UT itself for that matter. It’s interesting that in the run-up to the decision, there was much discussion among liberals that maybe indeed there are better approaches to student admissions that UT’s. Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all Justice Kennedy’s hoops are being jumped through.

So the challenges to racial preferences will continue; cases against Harvard and the University of North Carolina–Chapel Hill that had been on hold will now proceed. The struggle goes on.

SCOTUS Affirms Affirmative Action and Injunction Against Executive Amnesty

by Jonathan Keim

As Ed Whelan noted earlier, this morning the Supreme Court handed down its decision in Fisher v. University of Texas (Fisher II) and a summary affirmance in United States v. Texas. The first decision upholds the University of Texas’s race-oriented affirmative action program by a 4-3 vote, with Justice Kennedy writing for the liberal majority and Justice Alito writing a 50-page dissent. Justice Alito’s opinion starts strong: “Something strange has happened since our prior decision in this case.” We’ll have some highlights from Fisher II in a bit.

The decision in United States v. Texas was a 4-4 tie, leaving intact a district court’s injunction prohibiting the Obama Administration from carrying out its immigration nonenforcement plan. This allows the case to move forward to a trial on the merits. 


by Ed Whelan

Just a note that I’m away on vacation for a week, so I don’t expect to blog promptly about any of the Court’s rulings today (which include, thanks to Justice Kennedy, a victory for racial preferences in Fisher and a per curiam affirmance-by-an-equally-divided-vote of the Fifth Circuit’s ruling against the Obama administration’s immigration directive). Ditto for upcoming rulings.

Lee Bollinger’s Hail Mary

by Roger Clegg

In a last ditch effort to sway the Supreme Court his way in Fisher v. University of Texas, Columbia president Lee Bollinger has an essay in the New York Times.  It makes three points, which can be briefly stated and refuted: 

As the book Mismatch and others have documented, while the number of African Americans and Latinos admitted to a couple of California universities may have gone down in the wake of banning racial preferences there, the number of students who have graduated in the University of California system has gone up dramatically.

Exposure to different viewpoints can be an educational positive, but it doesn’t justify something as ugly as racial discrimination, with all its costs, and in all events  there is no reason to use race as a proxy for having a different viewpoint. 

As for using racial discrimination to achieve racial balancing, this is nothing more than the “discrimination for its own sake” that Justice Powell explicitly rejected decades ago in his Bakke opinion.