By Michael Dorf
With the Supreme Court Term winding down, this is a good time for me to issue a caution I have issued before (here). The flood of opinions in June and the need to wrap things up leads commentators to discuss themes in each Term of Court, but the natural unit of analysis for the work of the Supreme Court is not a Term. That's why no casebooks are organized chronologically year by year. Even if we want to think about case law in a temporal way (which can be quite sensible) the natural unit of analysis is something more on the scale of a decade or longer.
With that disclaimer in mind, the juxtaposition of cases decided during the same Term or even on the very same day can provide interesting insights. And so I shall take the coincidence that the Court handed down two seemingly very different cases today to address a common issue that they raise. The first case is Los Angeles v. Patel--by a 5-4 vote allowing a facial challenge under the Fourth Amendment and then invalidating a Los Angeles ordinance requiring hotels and motels to maintain guest records and turn them over on demand to the police, even absent a warrant or probable cause, and without the opportunity for a pre-enforcement challenge. The second is Horne v. Dep't of Agriculture--depending on the issue, either 5-4 or 8-1--finding that the government violated the Takings Clause by appropriating raisins. After what may seem like a long windup, I'll suggest that Justice Sotomayor's approaches in the two cases are in tension with one another.
The Court in Patel holds that the L.A. ordinance is invalid because it provides hoteliers with no pre-enforcement opportunity to challenge an order to turn over a register. When conducting an "administrative search," the government does not need individualized suspicion but some pre-enforcement opportunity for challenge is required. Justice Scalia (joined by CJ Roberts and Justice Thomas) dissents because he thinks that this particular kind of search falls into an exception for closely regulated industries. I'll bracket that merits question to focus instead on the disagreement between the majority in an opinion authored by Justice Sotomayor and the separate dissent of Justice Alito (joined by Justice Thomas) regarding facial challenges.
Los Angeles had argued that facial challenges are categorically forbidden under the Fourth Amendment because the logical focus of the Amendment is each particular search or seizure. The majority rejects this position and all of the dissenters assume that some facial challenges under the Fourth Amendment could succeed. However, Justice Alito accepts the argument of the city that this facial challenge must fail because there exist circumstances in which a search pursuant to the ordinance would be valid. Citing oft-quoted language from United States v. Salerno, Justice Alito thus concludes that the facial challenge must fail.
Justice Sotomayor hints at but doesn't elaborate on an argument that has been advanced in various writings by Dick Fallon and (separately) by me that questions the Salerno language--which says that a facial challenge can only succeed if there is "no set of circumstances" in which the challenged law would be valid. We (and in a different way Nick Rosenkranz) have argued that the Salerno language overstates the difficulty of bringing a facial challenge. Justice Sotomayor appears sympathetic to that criticism (she cites one of Fallon's articles) but she then effectively pivots and says that even if Salerno is taken at face value, the L.A. ordinance still fails because the supposedly valid applications of the ordinance are not really applications at all.
How so? L.A. and Justice Alito in dissent gave examples of circumstances in which, consistent with the Fourth Amendment, a hotelier could be required to turn over the register without any opportunity for pre-compliance review. For example, Justice Alito describes a scenario in which the police have reason to suspect that a criminal has kidnapped a woman and is raping her in a hotel room. Surely then the invocation of the ordinance would not violate the Fourth Amendment, he says. Justice Sotomayor agrees that the exigency would justify a warrantless inspection of the register without any pre-compliance review but she says that in these circumstances the exigency itself, rather than the ordinance, is what satisfies the Fourth Amendment.
Most interestingly, Justice Sotomayor cites a portion of the Court's analysis in Planned Parenthood v. Casey, in which the majority there invalidated a provision of law requiring married women seeking abortions to notify their husbands. The state had argued that the provision was facially valid because most married women voluntarily notify their husbands but the Court said that those applications of the law don't count because voluntary acts are not compelled by law. Similarly in Patel, the Court discounts consent searches and indeed all searches that would be permissible even in the absence of the ordinance. The denominator for evaluating whether the invalid applications of the law sufficiently predominate over the valid ones to result in facial invalidation includes only circumstances where the law has bite.
Now onto Horne. The federal government requires raisin growers and "handlers" to set aside a substantial fraction (47% in one of the years in question) for the government, which then disposes of those raisins as it sees fit, remitting to the growers/handlers the net proceeds if any from subsequent sale of the government's reserve raisins (although in the two relevant years there were no net proceeds). Eight Justices in Horne agreed with the Hornes (growers and handlers of raisins) that by appropriating a substantial fraction of their raisins, the government had affected a Fifth Amendment taking of their property. Five of those Justices (CJ Roberts for the conservatives) thought that this entitled the Hornes to a full rebate of the market value of their raisins, while three Justices (Justice Breyer for the liberals minus Justice Sotomayor) thought the case should be remanded for a calculation of how much if anything was due to the Hornes after subtracting from the market value of the raisins the dollar value in benefits conferred upon the Hornes by the price support accomplished through the quota system. That's an interesting disagreement but I'll put it aside to focus on Justice Sotomayor's disagreement with the rest of the Court.
In his majority opinion (for 8 Justices on this point), the Chief Justice explained that the government program could not be considered a kind of conditional regulation, distinguishing various other programs. For example, he distinguished a 1929 case upholding a requirement that oyster harvesters set aside 10% of their oyster shells for the government on the ground that the oysters in the water belonged to the government, whereas the raisins originated as private property. "Raisins are not like oysters" the Court announces (in what I hope will become an internet meme).
Okay, but are raisins like searches? Justice Sotomayor apparently thinks they are not. Her solo dissent in Horne says that the Hornes did not suffer a per se taking of their raisins because the government did not take every stick in the bundle of rights in those raisins. In particular, the government left them with an important stick: The right to receive pro rata compensation in the event that the government obtains net proceeds from the disposal of the reserve raisins. She also says that the raisins are like oysters in the sense that the government can condition entry into the raisin market on a grower's forking over a fraction of raisins to the government, but I'll put that aside here to focus on the "stick" in the bundle that Justice Sotomayor says the raisin growers retain.
I simply want to note the tension between her approach to raisins and her approach to searches. A consent search does not count in validating the Los Angeles hotel ordinance because the hoteliers by definition don't object to a consent search; the ordinance is thus not really in play. But in Horne one could say that the "stick" retained by the Hornes--the right to the possibility of some pro rata return from the raisins the government takes--also shouldn't count because it's not a stick that the Hornes want. Moreover, by focusing on what the Hornes ostensibly retain, Justice Sotomayor in Horne (in contrast with her opinion in Patel) seems to overlook what they give up. Suppose that the government program stipulated that in years in which the reserve raisins produce net proceeds, each grower will be entitled to half his pro rata share of those proceeds, with the other half going to other government programs. Would that be no taking because the Hornes would still be left with a stick (albeit a shorter one)? In part of her dissent, Justice Sotomayor complains that the majority doesn't offer a non-arbitrary substitute for the no-sticks approach, but her own view of the no-sticks rule is susceptible to the same criticism.
To be clear, I don't want to say that Justice Sotomayor's majority opinion in Patel logically contradicts her dissent in Horne. I do want to say that questions of "what counts"--whether we are talking about abortions, searches, or raisins--are very often presented as matters of logic and arithmetic, but that these cases illustrate that values and policy druthers probably play a large role as well.