Arizona v. United States


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High Court’s Radicals Hold Fast on Citizens United

• June 28, 2012 • 11:25 am

While Arizona v. United States got most of the attention in Monday’s news cycle, the Supreme Court’s summary reversal in American Tradition Partnership, Inc. v. Bullock did not go unnoticed. Fans of campaign finance, the First Amendment, politics, and freedom will recall that in Western Tradition Partnership, Inc. v. Attorney General of Montana the Montana Supreme Court bought into the argument of the state’s attorney general that the people of Montana are so uniquely corrupt and corruptible that Citizens United v. Federal Election Commission, upholding the right of corporations to make independent expenditures in campaigns, doesn’t apply in Montana.

This argument quite appropriately got the back of the Court’s hand – a per curiam, single paragraph opinion holding that “there can be no serious doubt” that Citizens United controlled the outcome. What remains interesting to me, however, is both the radicalism and now the apparent lawlessness of the four dissenting justices.

Let’s start with the radicalism of the dissenters’ position. In Citizens United, the group Citizens United sought to advertise and air a documentary movie about Hillary Clinton. At oral argument, the government argued that under the Constitution, it had the right to ban the distribution of books that contained even one line of political advocacy; internet communications; or the publication of a pamphlet, if financed at all by a corporation or union. While some have argued that the government abandoned this extreme position on re-argument, that is not so: then-Solicitor General Kagan stated quite clearly at the second oral argument, “We went back, we considered the matter carefully, and the government’s view is that … [the statute] does cover full-length books.” She added that there could be an as applied challenge to such a case, and that the government had no intention of pursuing books, but when questioned about pamphlets, said, “a pamphlet would be different.”

After those two arguments, the Court ruled that the mere fact that speech came from a corporation did not disqualify it from constitutional protection, and that corporations had a right to engage in independent expenditures relative to a political campaign. In an interminably long dissent written by Justice Stevens, the Court’s minority argued that, among other things, the decision went too far. In particular, Steven suggested that the majority might have found that a movie was not covered by the statute; or that the statute did not apply to Citizens United, as a non-profit corporation. But as the dissenters made clear in a footnote, “[o]ur reading of the Constitution would not lead us to strike down any statutes … in this case, and we therefore have no occasion to practice constitutional avoidance.” Since it is almost impossible to name any books or movies in the modern world which are not in some way produced or distributed by a corporation, this is a remarkable assertion of the government’s right to broadly censor speech. Yet in American Tradition Partnership, four justices – with Kagan having replaced Stevens – specifically dissented “for the reasons expressed in Justice Stevens’ dissent” in Citizens United.

The second element that interested me is that the dissenters did not simply vote against the summary reversal, they voted to deny certiorari. Writing for the dissenters, Judge Breyer admits that the case is an important one that the Court should hear. But Breyer then writes, “I do not see a significant possibility of reconsideration [of Citizens United]. Consequently, I vote instead to deny the petition.” Few doubt that justices can be strategic in deciding whether to vote to hear a case. But rarely are they so nakedly partisan.

Finally, there is the remarkable willingness to let stand a Montana decision that is clearly precluded by the Supremacy Clause. When the Court first stayed the Montana decision, Justice Ginsburg – joined by Justice Breyer – joined the stay order, suggesting that the Court should reconsider Citizens United but noting that “lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.” Clearly, they considered the Montana decision in direct derogation of Citizens United. Now both justices have signed on to an opinion suggesting that the Court should let the Montana decision stand. The only reason, apparently, is that they don’t like the controlling decision of the Court, and know that they can’t get it reversed. We can be pretty sure that the justices would never adopt such a standard were Texas to pass a law identical to those struck down Arizona v. United States, on the grounds that immigration so uniquely problematic in Texas that they get some special dispensation.

Podcasts


Arizona v. United States – Post-Decision SCOTUScast

June 28, 2012

On June 25, 2012, the Supreme Court  announced its decision in Arizona v. United States.  The question in this case was whether certain provisions of Arizona Senate Bill 1070 involving immigration activities and offenses are preempted by federal immigration laws.

The federal government challenged four provisions of SB 1070.  In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-3 that three of these four provisions–Sections 3, 5(C), and 6–were preempted by federal law.  With respect to the fourth provision, Section 2, the Court held that the federal government had not yet demonstrated a sufficient basis for preemption.  The Chief Justice, as well as Justices Ginsburg, Breyer, and Sotomayor joined the majority opinion.  Justices Scalia, Thomas, and Alito filed opinions concurring in part and dissenting in part.  Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Margaret Stock, who is Counsel to Lane Powell PC, and John Eastman, who is the Henry Salvatori Professor of Law and Community Service at Chapman University School of Law, and Founding Director of the Center for Constitutional Jurisprudence.

Other News & Analysis


Arizona Immigration Law Faces Supreme Court Test

April 22, 2012

Author: Jess Bravin and Miriam Jordan
Source: Wall Street Journal

Arizona’s campaign to push out illegal immigrants heads to the Supreme Court this week, in the second major challenge to federal power the justices have taken up in less than a month.

The Obama administration argues a 2010 Arizona measure aimed at fighting illegal immigration conflicts with federal law. The state law requires police to check the immigration status of people they stop if suspicious of their right be in the U.S.

It also makes it a crime for immigrants without work permits to seek employment.

Appeals court upholds Arizona’s voter ID requirement

April 17, 2012

Source: Daily Caller

An appeals court upheld a requirement in a 2004 Arizona law that voters show identification before they can cast ballots.

The court says there wasn’t evidence that the mandate disparately affected Latinos as the challengers of rules had alleged.

A 12-member panel of the 9th Circuit Court of Appeals says in a ruling Tuesday that there was evidence Arizona has racially polarized voting and a history of discrimination against Latinos.