Wednesday, July 25, 2018

From Defensive Crouch Liberal Constitutionalism to Litigation Jujitsu

by Michael Dorf

In a couple of recent essays, I explored avenues by which liberals might be able to limit the damage in the coming era of reactionary Supreme Court jurisprudence. Borrowing a term coined by Mark Tushnet, I proposed reinvigorating "defensive crouch liberal constitutionalism." Part 1 (which appeared both on Dorf on Law and on Take Care) explored opportunities to make conservative arguments based on original meaning with a focus on the emergence of a Fourth Amendment jurisprudence keyed to property more than privacy. Part 2 (which also appeared both on Dorf on Law and on Take Care) described how, in a post-Roe v. Wade future, Justice Clarence Thomas might cast a decisive fifth vote to invalidate a federal abortion ban based on his view of the limits of the Commerce Clause.

In an essay on the Volokh Conspiracy on Monday, Ilya Somin added an important caveat to that last point: As Justice Thomas has previously made clear, he will only consider voting to overrule past precedents based on evidence of original meaning where counsel raise the argument. Prof. Somin thus echoes my advice to pro-choice lawyers to be sure to raise the federalism claim should the time come, not to sit back and wait for Justice Thomas or anyone else to do the work for them.

That point in turn has led me to think that while "defensive crouch" may have been an appropriate metaphor for the range of positions Prof. Tushnet was describing when he used the term back in 2016, it is not quite right as a description of what I have been proposing. One uses a defensive crouch to defend ground one occupies, and certainly that is part of what liberal lawyers must try to do. But I am also advocating using conservative jurisprudence affirmatively. Here jujitsu--in which one uses one's adversary's strength against him by redirecting it--seems a better metaphor. (Everything I know about the variations on this martial art form from Japan and/or Brazil comes from a few minutes of Googling, so if you want to write in a comment that I have it wrong, that's fine. If there's a better metaphor for using your opponent's strength against him, I'll consider yet another rebranding. Now back to the substance:)

In the balance of this essay I'll provide three examples of litigation jujitsu, involving, respectively: (1) commercial speech and the labeling of plant-based milk; (2) commandeering and sanctuary cities; and (3) the Sixteenth Amendment and SALT deductibility.

1) Commercial speech. My latest Verdict column discusses the recent announcement by FDA Commissioner Scott Gottlieb of the initiation of an administrative procedure aimed at barring the labeling of plant-based milk -- such as soy milk, almond milk, and rice milk -- with the word "milk." I explain that the move comes in response to dairy industry lobbying and while cloaked in the mantle of consumer protection and health, it serves neither.

Of course, the fact that a law or regulation does not serve the public interest does not render the law unconstitutional, so long as one can imagine circumstances under which lawmakers had a "rational basis" for adopting it. Indeed, the leading SCOTUS case in the area upheld a ban on so-called "filled milk."

However, I go on to explain that if the government does not ban a product, it cannot limit the speech of the sellers of the product without satisfying heightened scrutiny. After following a few twists and turns, I conclude that there is a decent chance that a free speech challenge to a regulation adopting Commissioner Gottlieb's proposal or a pending Senate bill that would do much the same thing could succeed. In so doing, I rely on commercial speech cases that, in my view, grant too much protection to commercial speech--especially a 2012 DC Circuit ruling that invalidated mandatory graphic warnings on cigarette packages. In other words, I invoke commercial speech decisions that I regard as wrong to attack what I regard as corrupt ends. Jujitsu.

Commercial speech and the First Amendment will be growth areas in the coming years. Writing in the NY Times last month, Adam Liptak described "How Conservatives Weaponized the First Amendment." Liptak is right. Existing and emerging First Amendment doctrines pose threats to antidiscrimination law, to unionization, to reproductive choice, to fair elections, and more. Overall, the First Amendment as construed by the Roberts Court exerts a baleful influence.

Nonetheless, in the short run, liberals and progressives can and should use First Amendment arguments on offense--to protect whistleblowers, to protect liberal gazillionaires and unions in their directing of campaign funds, to protect civil rights activists seeking to record interactions with the police, and more.

2) Anti-commandeering. When it was first announced in 1992 with regard to state legislators and when it was extended to state and local executive officials in 1995, the "anti-commandeering" doctrine--which forbids the federal government from issuing commands to state officials--divided the Supreme Court on ideological grounds. Since then, as illustrated by this past Term's decision in the sports betting case, the liberal wing of the Court has come to accept it.

Yet whether the anti-commandeering doctrine is a generally conservative doctrine that liberals have come to accept or a generally neutral one, liberal lawyers would be well advised to take advantage of it. And indeed, they have, especially in litigation by local governments that have refused to voluntarily do the bidding of the federal government in rounding up undocumented immigrants. How that litigation will ultimately end up may depend on whether Congress tweaks the law to convert what has been an executive policy into permissible conditional spending, but in the meantime, the anti-commandeering doctrine can be a powerful tool for liberal states or liberal enclaves within conservative states to resist repressive federal policies.

3) Sixteenth Amendment. When Congress enacted changes to the tax code late last year, it lowered taxes substantially for corporations and high-earning individuals, temporarily lowered taxes for ordinary workers, and eliminated the deductibility of state and local taxes (SALT), thus effectively raising taxes for upper-middle-class taxpayers in mostly Democratic-voting states. At the time, I suggested that the elimination of SALT deductibility might violate either the First Amendment (as punishing people for voting for Democrats) or a principle of equal sovereignty of the states. That latter suggestion relied on a jujitsu maneuver, as the equal sovereignty principle was announced in the Supreme Court's 2013 decision gutting the pre-clearance requirement of the Voting Rights Act. Nonetheless, I was not optimistic about either ground as a basis for a civil lawsuit.

Undeterred, last week the states of New York, New Jersey, Maryland, and Connecticut filed suit against the Secretary of the Treasury, alleging that the change in the tax law is unconstitutional. The complaint does not rely on either of the two theories I floated. Instead, it contends that the elimination of SALT deductibility exceeds the power of Congress under the Sixteenth Amendment or any other power.

The states' complaint recounts the history of the Sixteenth Amendment's adoption and concludes that it was ratified only upon the assumption and assurances of SALT deductibility so that the states would not lose their sovereign control of their tax base. I have not studied the primary sources in sufficient detail to know how accurate that is as a characterization of the history, but the argument meets with an immediate objection: Whatever the subjective understanding of the people who proposed and ratified the Sixteenth Amendment, its text is sweeping. It doesn't say anything about necessary deductions.

To meet that objection, the brief engages in some litigation jujitsu. It cites the anti-commandeering cases as examples of the Supreme Court reading historical understandings into the Constitution. There is no anti-commandeering clause of the Constitution, but that has not stopped the Court from describing the anti-commandeering doctrine as rooted in the "historical practice and understanding" as well as "the structure" of the Constitution.

That is a nice piece of jujitsu, but the lawyers for the states could have gone further. An even better parallel would have been the Supreme Court's state sovereign immunity doctrine, which goes well beyond the text of the Eleventh Amendment to find an unenumerated principle based on what the People were described as having taken for granted when they ratified both the original Constitution and the Eleventh Amendment.

The SALT lawsuit strikes me as a long shot, in part because it is not clear that the states have standing. Yes, they will undoubtedly feel a shortfall over the long run, but the immediately injured parties are state taxpayers, who could not sue the Secretary of the Treasury directly but instead would have to first pay the tax and then sue for a refund in tax court. Thus, on procedural grounds, these lawsuits might be dismissed as an effort to circumvent a jurisdictional limit.

That said, and despite the omission of the comparison to state sovereign immunity (which might be remedied in an amended complaint), I commend the state attorneys for their pro-active use of "conservative" arguments for progressive ends. Jujitsu!

* * *
As a general proposition, Audre Lorde's aphorism "the master's tools will never dismantle the master's house" is wrong. Nathan Robinson gets it about right when he says that "the master’s tools seem like the ideal way to demolish his house. If the master has kerosene and a lighter in his shed, his house will not be long for this world. If he’s got a wrecking ball, well, there goes the house." Etc. Yet as Robinson goes on to explain, Lorde did not mean the aphorism as a universal truth, but more as a metaphor, as something like two wrongs don't make a right.

My mini-series on defensive crouch liberal constitutionalism and now litigation jujitsu makes Lorde's question salient and provokes others. Is it hypocritical to rely on doctrines one thinks wrong to advance particular goals one thinks right? Always? Never? Sometimes, and if so when and when not?

Are both defensive crouch liberal constitutionalism and litigation jujitsu ultimately suckers' games, because legal doctrine is always sufficiently malleable that when the stakes are high enough, the conservative justices will disavow a liberal result that was seemingly ordained under principles they previously espoused? If new loopholes and exceptions will arise and prior categorical statements will be qualified, is the game worth playing?

To answer these questions would require more expertise in psychology than in constitutional law. At this point, I think the best we can do is to deploy defensive crouch liberal constitutionalism and litigation jujitsu where feasible and hope for the best. Meanwhile, it is important to remember that constitutional law is mostly an epiphenomenon of politics and so to keep our eyes on the real prize.

2 comments:

t jones said...

To answer your last two questions: It's a dangerous game to use arguments you believe are wrong, particularly when dealing with unprincipled opponents who can be counted to throw those arguments back at you in defense of their next outrage. And, yes it's a sucker's game to hope that logical arguments, e.g., using Thomas's or Alito's previous reasoning to support a "liberal outcome" this time, will get them to decide a case consistently with those words rather than consistently with their policy objectives.

Joe said...

tjones is so cynical.

Like the Supreme Court would never selectively strike down limits on crisis pregnancy centers while finding an unprincipled way to uphold state mandated anti-abortion messages.