One aspect of the brief [...]]]> Is the sky falling?  According to Florida et al., which filed their brief regarding PPACA’s Medicaid expansion today, the answer is a resounding yes.  In many respects, this brief rehashes the coercion arguments made in the district court and Eleventh Circuit.  The states continue to argue that they cannot afford the Medicaid expansion that will occur in 2014 (which I discussed on this blog here, here, and here), even though the federal government will pay 100% of the cost initially; and, they cannot afford not to participate in Medicaid because the costs of their medical welfare populations would be too high.  Thus, the states claim to be coerced into accepting this “onerous” new condition on federal funds.  Again, these arguments are not new. 

One aspect of the brief that was new was the inclusion of the severability arguments through describing the Medicaid expansion within the context of the universal insurance aspirations of PPACA (see especially fn. 18).   The states essentially contend that the minimum coverage requirement (“individual mandate”) gives impoverished Americans no option but to be in Medicaid, which in turn makes it so that the states cannot opt out of Medicaid.  The states further assert that this was Congress’s plan – to coerce the states by giving the poor no other options for obtaining minimum insurance coverage.  The fallacious assumptions underlying this argument are too numerous to unpack at this late hour, but at least two thoughts can start the job: first, New York v. U.S. does not require the federal government to offer alternatives to conditional spending programs (unlike, say, when it exercises commerce authority – the insurance exchanges in PPACA, which are a point of contrast in the brief, are an exercise of Commerce Clause authority, and states can either create them with some federal funding or reject them and the federal government will create the exchanges in the states that choose not to act — all of this fits neatly within the New York architecture).  Second, suffice it to say that the impoverished are not seeking private insurance alternatives to Medicaid.

Medicaid’s history is skewed by the brief more greatly than it was at lower court levels.  For example, the brief ignores the fact that Medicaid has always contained mandatory elements; these mandatory elements were one of the major defining features of the program as it was amended from Kerr-Mills, its predecessor program.  The brief also misrepresents the existence of mandatory eligibility and coverage standards and how they serve the aspirations of the program.  Likewise, the brief either misunderstands or misrepresents the minimum essential coverage requirement, which is actually more flexible for states than the mandatory coverage provisions for other Medicaid populations.  Additionally, the brief appears to misunderstand the statutory clarification that Medicaid provides both care and service (Congress here was responding to lower federal courts that had misconstrued certain language in the Medicaid Act).

Also, decisions such as Arlington, Dole, and Pennhurst that have required clear notice of conditions on spending are cited in the brief to support the states’ position that they have not voluntarily agreed to this condition on spending.  Before this point, the states have not argued that any other Dole element was violated, but the states now seem to indicate that these conditions were not unambiguous and thus the ‘contract’ with the federal government is unconstitutional.  In addition, the states offer a limiting principle that adopting their view of the coercion theory does not threaten other federal spending programs because Medicaid is by far the largest federal spending program (echoes of the federal government’s argument that nothing else is like healthcare).

Bottom line, the states want the Court to revive Butler and to expand the theory of coercion that the Court merely acknowledged in Dole and Steward Machine by relying heavily on Justice Kennedy’s concurrences and dissents that have expressed an interest in such an expansion.  The question is whether a majority of the Court is interested in a new limitation on Congress’s power to spend.

In a Note just published by the Stanford Law Review Online, Daniel J. Hemel discusses a jurisdictional issue that might delay a ruling by the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, and a novel way in which the Solicitor General could bypass that hurdle. In How to Reach the Constitutional Question in the Health Care Cases, he writes:

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the [...]]]>

In a Note just published by the Stanford Law Review Online, Daniel J. Hemel discusses a jurisdictional issue that might delay a ruling by the Supreme Court on the constitutionality of the Patient Protection and Affordable Care Act, and a novel way in which the Solicitor General could bypass that hurdle. In How to Reach the Constitutional Question in the Health Care Cases, he writes:

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. . . . Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar—even if one agrees with the interpretation of the TA-IA adopted by the Fourth Circuit and Judge Kavanaugh. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges.

Read the full Note, How to Reach the Constitutional Question in the Health Care Cases by Daniel J. Hemel, at the Stanford Law Review Online.

Yesterday, U.S. District Court Judge Christina Snyder issued an injunction against California preventing the implementation of the HHS-approved rate reductions because they would cause irreparable harm to [...]]]> After the Supreme Court heard oral arguments in Douglas v. ILC, the Secretary of HHS approved some of California’s deep cuts in Medicaid reimbursement.   The Court requested additional briefing regarding the impact of the rate reduction approval, and the United States responded that the case was not moot because the grant of certiorari was based upon the Supremacy Clause question, not a determination as to the actual sufficiency of the state’s Medicaid payment rates.  As soon as the rate reductions were approved by HHS, the California Hospital Association, the California Medical Association, and other Medi-Cal providers filed additional claims for injunctive relief.  

Yesterday, U.S. District Court Judge Christina Snyder issued an injunction against California preventing the implementation of the HHS-approved rate reductions because they would cause irreparable harm to hospitals’ skilled nursing units (among other problems).  The new injunction keeps the issues in Douglas alive, whether as a matter of payment rate adequacy or as a matter of private enforcement of state violations of the Supremacy Clause.  Thus, even though HHS approved Medi-Cal rate reductions, the conflicts in Douglas have not been resolved. 

There is also a fascinating real-time separation of powers quandry in this case, which is highlighted by the injunction that was just issued.  Federal courts perceive states’ failure to abide by the mandate of the Equal Access provision, but HHS, whose job it is to ensure state compliance, turns a blind eye to state decisions that will limit access to medical care.  In the meantime, Congress does not modify the Equal Access provision to contain stronger language or a clearer private right of action, it merely relies on implied private enforcement actions (see the amicus brief of Members of Congress).  And HHS has issued paltry draft regulations to facilitate enforcement of the Equal Access provision, but the draft regulations do not guide CMS’s enforcement efforts so much as they provide some standards for states to self-report with little federal oversight.  It seems that federal courts are acting because the legislative branch either can’t or won’t, and because the executive branch either can’t or won’t ensure that this federal law is followed.  This makes the Obama Adminstration’s deference to state decisions all the stranger in Douglas, and courts’ patience with Equal Access litigation a bit more understandable.  It also helps to explain the sort of underlying tone of confusion at oral arguments.  The Court is left with the unenviable task of cutting this Gordian knot of inter-branch disfunction.

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones [...]]]>

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public.

Read the full article, The Drone as Privacy Catalyst by M. Ryan Calo, at the Stanford Law Review Online.

The Rehnquist Court excluded the Spending Clause from its federalism revolution inasmuch as that would have meant limiting the power to spend by the Tenth Amendment.  When Chief Justice Rehnquist authored South Dakota v. Dole, the evidence is that he believed it was an easy and relatively inconsequential case.  For those sane enough not to engage in the reading of tea leaves that is deciphering the [...]]]> I had intended to address Douglas next, as it is a nice gateway for discussing Florida v. HHS, but a defense of the coercion argument just published in the New England Journal of Medicine Online inspired me to address the latter first.  I will begin by discussing why I think the Court granted the petition for certiorari then turn to the Medicaid coercion question. 

The Rehnquist Court excluded the Spending Clause from its federalism revolution inasmuch as that would have meant limiting the power to spend by the Tenth Amendment.  When Chief Justice Rehnquist authored South Dakota v. Dole, the evidence is that he believed it was an easy and relatively inconsequential case.  For those sane enough not to engage in the reading of tea leaves that is deciphering the spending power, a quick review.  Dole articulates typical Rehnquist categories for evaluating the constitutionality of conditions placed on federal spending:  the spending must be for the general welfare; the conditions must be clear and unambiguous (as modified by Arlington Central School District Board of Education v. Murphy); the conditions must have a nexus with the federal spending (“germaneness”); and the conditions cannot themselves be unconstitutional.  After providing this test, Rehnquist noted that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’”  No theory or constitutional provision was cited, but the opinion indicated that coercion would depend on the amount of money or percentage of money withheld if the state violates the conditions.  It seems that the Court meant that coercion would be a Tenth Amendment, state sovereignty problem.  But, Dole also explicitly stated that the Tenth Amendment was not implicated in the bar on unconstitutional conditions.  So, while Dole provides the test for conditional spending, it is undertheorized and a bit self-contradictory.  Nevertheless, the Rehnquist Court reiterated that the Spending Clause is not limited by the Tenth Amendment in New York v. U.S. and held to that position in subsequent cases, disappointing many who believed spending to be the next front in judicially-enforced federalism.

The Roberts Court has given hints now as to its approach to spending as well as federalism, and members of the Court have signaled interest in revisiting both topics.  For example, Justice Kennedy’s concurrence in Comstock stated: “The limits upon the spending power have not been much discussed, but if the relevant standard is parallel to the Commerce Clause cases, then the limits and the analytic approach in those precedents should be respected.”  Justice Kennedy also addressed broader federalism concerns in that concurrence, which were given free rein in his opinion for the Court in Bond v. U.S. as well.  Likewise, Justice Alito’s opinion in Arlington was written as a spending power decision rather than a limited statutory interpretation, which I have written elsewhere resulted in a narrower clear statement rule for the second element of the Dole test.

Additionally, even though the Court seems to dislike hearing both spending and healthcare cases, it already has heard Douglas this term, so spending, federalism, and Medicaid are fresh in the justices’ minds.  And, what could be a better vehicle for considering coercion than the largest grant-in-aid program that also constitutes the second largest portion of states’ budgets?  (Education is first.)  Further, numerous lower federal courts have attempted to construe coercion, but none have struck down federal legislation under the doctrine, making the issue ripe for the Court’s consideration.

Despite the idea of coercion arising repeatedly in federalism cases over the last thirty-ish years, its contours are unknown.  At what point is the money being offered too much? And is the offer really the issue, or is the problem the amount or percent of money a state stands to lose if it does not comply with the conditions?  (Dole indicated the latter, as South Dakota was not coerced because it would lose only 5% of its federal highway funding if it refused to comply with the minimum drinking age that the federal government sought to impose.)  Can coercion only apply to an existing conditional spending program that a state could not leave because it has become dependent on the program?  Or is there some federal program that would offer so much money that no state could turn it down, even at the outset, such that the new program would be coercive?  If it is the former, then clear statement rules also need to be revisited, because they seem to assume some kind of regular restatement of the rules of the program to which a state actively agrees.  That simply does not occur in a long-standing program like Medicaid, making me think that clear statement rules are almost meaningless in that context.  Additionally, states inherently relinquish some sovereignty when they agree to the terms of a cooperative federalism program, highlighting tensions between dual sovereignty and cooperative federalism.

So, what is the upshot for the Medicaid expansion?  [more after the jump]

As I wrote last week, PPACA makes anyone under the age of 65 and earning less than 133% of the federal poverty level eligible to enroll in Medicaid.  Additionally, even though the federal government typically covers 50 to 83 cents on the Medicaid dollar, a match that varies by state per capita income and a few other factors, the federal government will pay 100% for the new population, which phases down to 90 cents on the dollar by 2020.  The states do not quarrel with the philosophical change in the program, and they do not claim that any other element of the Dole test is violated; instead, they claim that the expansion is impermissibly coercive because it will be too expensive for the states, and they stand to lose all of their Medicaid funding if they refuse to enroll the newly eligible population.  From a  Dole perspective, this argument is smart, as it covers the most obvious interpretations of coercion. 

But, from a Medicaid perspective, the argument is not persuasive for at least five reasons.  First, the federal government has always mandated the fundamental elements of Medicaid, the baselines of who is eligible and what services they must receive, while allowing states options that expand on the baselines.  At least twice before baseline Medicaid eligibility has been drastically expanded in this way, and the states remained in the program.  Second, the federal government is totally funding the expansion initially, then primarily funding it after the start up period.  Notably, a number of states have argued that they will benefit greatly from the Medicaid expansion, and they do not want to see it eliminated.    Third, the states have a number of years to plan administratively and fiscally for the expansion.  Even in 2014 they will only have to pay some of the administrative costs of the newly eligible (the federal government pays at least 50% of state administrative expenses in Medicaid in addition to matching medical expenditures).  States have time to leave Medicaid if they choose.  Fourth, though Florida et al. essentially argue they are locked-in to participating in Medicaid, and it is true that most states could not afford to run their own welfare medicine programs, it is not a direct line to concluding that states are coerced into participating in Medicaid.  Perhaps it simply means that Medicaid fills a need.  Fifth, spending legislation is the law of the land, just like any federal law, by virtue of the Supremacy Clause.  Telling the federal government that it cannot set the terms of its own duly enacted conditional spending statute would be a dangerous step toward reversing our understanding of the power to spend as its own enumerated power, which was endorsed by Hamilton.

The coercion issue is being taken seriously and is likely to be decided with an eye toward reinforcing the federalism ideals recently articulated in Bond.  I would not be surprised if a majority of justices are willing to expand the fifth element of Dole but then declare this particular act by Congress not to be unconstitutional – much like the 11th Circuit did.  So many major public programs ride on conditional spending structures, all stakeholders will potentially be affected by this decision. 

If you’ve read this far, thanks for sticking with me.  I’ll get back to my tea leaves now…

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial [...]]]> JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

Both the priest’s and the nun’s lawsuits depend on whether they were fired for discriminatory or nondiscriminatory reasons. As Judge Posner has explained, “the question in a discrimination case is not whether the employer’s stated nondiscriminatory ground for the action of which the plaintiff is complaining is correct but whether it is the true ground of the employer’s action rather than being a pretext for a decision based on some other, undisclosed ground. … If it is the true ground and not a pretext, the case is over.”

A similar distinction between what is true and what the individual believes to be true is also a crucial component of First Amendment analysis. Under a long line of Supreme Court cases beginning with Ballard v. United States, courts and juries are free to decide whether an individual’s religious beliefs are sincerely held but not whether they are true. Soldiers are routinely subjected to court analysis of whether their religious beliefs are sincerely held before they receive conscientious objector status. Unemployment compensation benefits may be withheld or granted based on whether an applicant’s religion is sincerely held. Prisoners’ religious beliefs are regularly subjected to sincerity review when they request accommodations of their religious practices. Plaintiffs must hold a sincere religious belief in order to win a religious discrimination lawsuit under Title VII. Legislators are usually subjected to a court determination whether they acted with a secular purpose; the Establishment Clause invalidates their legislation if they acted with a religious purpose or a sham secular purpose.

In the employment discrimination context, it should be appropriate for courts to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge, i.e., whether the priest was fired in retaliation and the nun denied tenure on the basis of gender. Courts should be able to determine the sincerity of the employer’s motivation without intruding upon religious truth. Was it disabilities or religion that motivated the firing? Race or religion? Gender or religion? Age or religion? And so forth.

Justice Antonin Scalia parsed pretexts when he asked the church’s lawyer if a sham is different from a pretext. Scalia asked if the church’s position

would allow the government courts to probe behind the church’s assertion that this person is a minister? You would allow that, right? But once it is determined that the person is a minister, you would not allow the government to decide whether the firing was a pretext?”

The church’s lawyer, Douglas Laycock, said yes to probing the church’s sham assertion that this person is a minister and no to deciding whether the firing was a pretext.

But the question of who is a minister is much more theological than determining whether a firing was pretextual.  Perhaps it is the justifications for the ministerial exception that are a sham?

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese [...]]]> Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

The serious problem with Alito’s question and Laycock’s answer is that we do not know the facts of Weishuhn or most cases dismissed under the ministerial exception. Ministerial exception cases are dismissed without trial; the facts are never developed. In Weishuhn the Michigan Court of Appeals spent the bulk of its opinion reviewing the facts of the workplace that determined whether schoolteacher Weishuhn was a minister. Indeed, the Michigan opinions merely record that Weishuhn was fired “[a]fter a series of employment-related incidents, none of which involved the subject of religion.” To find more facts about the case, you have to search other court documents and Michigan news accounts.

Like any plaintiff, Weishuhn could lose her case on the facts. But the ministerial exception doesn’t allow her a day in court to win or lose her lawsuit. It dismisses her lawsuit before it can be litigated.

What is the answer to Justice Alito’s question? Justice Alito should be “rightly concerned about” the numerous retaliation cases similar to Hosanna-Tabor in which ministers alleged they were fired or demoted for registering employment complaints with the EEOC. Or the hostile work environment, sexual harassment and disabilities lawsuits that did not make it to court. Other cases are factually closer to Alito’s question. State and federal courts have relied on the ministerial exception to dismiss cases in which a Catholic school principal lost her job after complaining to church authorities that her priest-supervisor had assaulted and battered her; a minister reported his bishops’ conversion of church funds and failure to pay income taxes to state authorities; two church staff members consulted with an attorney about their employer’s possible violations of sex discrimination laws; a university chaplain complained about her school’s sexual harassment policy; another university chaplain reported student complaints of faculty sexual harassment to administrators; and a minister told church authorities that her stepfather, a fellow minister, had sexually abused her as a child.

In each case we do not know who would win or lose. What we do know is that the ministerial exception kept the plaintiffs from having their day in court, or as Justice Kennedy said soon after Laycock answered Alito’s question, “you’re asking for an exemption so these issues can’t even be tried.”

That is how the ministerial exception has worked since its inception.

__________________________________________

            Leslie Griffin holds the Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center and is author of Law and Religion: Cases and Materials (Foundation 2d ed. 2010).

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue [...]]]> Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?

Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.

In Hosanna-Tabor, Assistant Solicitor General Leondra Kruger tried valiantly to focus the Court’s attention on the government’s strong interest in enforcing the antiretaliation laws. She explained that the Court would have to apply a balancing test between the government’s interest and the Lutheran Church’s religious beliefs in order to determine whether Hosanna-Tabor should be required to obey the antidiscrimination laws.

Several justices immediately and repeatedly challenged that argument, insisting that Kruger’s position favored Catholic theology over Lutheranism. No one, including Kruger, argues that the Roman Catholic Church can be forced to ordain women. Once Kruger conceded that point, some justices could not be distracted from the potential Lutheran v. Catholic battle that would erupt without a broad ministerial exception:

JUSTICE ALITO:  … are you not implicitly making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts? I don’t see any distinction between — I can’t reconcile your position on those two issues without coming to the conclusion that you think that the Catholic doctrine is older, stronger and entitled to more respect than the Lutheran doctrine.

CHIEF JUSTICE ROBERTS: You’re making — you’re making a judgment about how important a particular religious belief is to a church. You’re saying — this may just be the same question Justice Alito asked — but you’re saying: We don’t believe the Lutheran Church when it says that this is an important and central tenet of our faith.

On the other hand, the — the belief of the Catholic Church that priests should be male only, you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic.

JUSTICE SCALIA: I think that’s saying nothing different than what the Chief Justice suggests, that you think the one is more — is more important to — to Catholics than the other is to Lutherans.

Although Justice Breyer understood that Kruger was focused on the strength of the government’s interest and not on the nuances of Lutheran and Catholic theology, he was self-describedly “stuck” because he couldn’t figure out why “going to court is a more fundamental interest than a woman obtaining the job she wants.” Breyer had a point; Kruger’s position that the government’s interest in antiretaliation law is stronger than its interest in antidiscrimination law is not evidently based in constitutional or statutory law. All she could say is that “the contours of the First Amendment doctrine at issue here will depend on a balancing of interests.”

That balancing is the whole problem with the ministerial exception. It leaves courts choosing which religions are acceptable and unacceptable based on vague balancing tests. The Baptists, the Shiloh True Light Church of Christ, the Quakers and (potentially) the Lutherans should be angry if their beliefs are subordinated to the government’s interests while Catholic beliefs prevail.

Petitioner Hosanna-Tabor would solve this problem by exempting religions from all the laws whenever religions assert ministerial performance is involved. Justice Scalia’s questions suggested the Establishment Clause requires that outcome. That solution is exactly backwards. The starting point should be a rule that requires religions to obey the law. The Establishment Clause should be violated by a rule that lets courts determine which theologies override government interests and which do not.

The Court should be wary of issuing an opinion holding that religions are free to disobey the law.

____________________________________________

Leslie Griffin holds the Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center and is author of Law and Religion: Cases and Materials (Foundation Press 2d ed. 2010).

Mercifully, the basic facts are fairly simple. Mississippi last redrew its district lines in 2002. In February of this year, the State received census data showing that its current state legislative districts clearly violate one person, one vote. Despite having this data, the Mississippi legislature adjourned without revising the legislative district lines. Mississippi has legislative elections scheduled for this year (a primary in August followed by a general election in November). For this [...]]]> The decennial redistricting cycle always creates some interesting litigation. While it is still quite early in the cycle, one of the more interesting opinions issued thus far is Mississippi NAACP v. Barbour. Barbour involves the equal protection principle of one person, one vote that requires state legislative districts to have roughly equal population numbers.

Mercifully, the basic facts are fairly simple. Mississippi last redrew its district lines in 2002. In February of this year, the State received census data showing that its current state legislative districts clearly violate one person, one vote. Despite having this data, the Mississippi legislature adjourned without revising the legislative district lines. Mississippi has legislative elections scheduled for this year (a primary in August followed by a general election in November). For this reason, the Barbour plaintiffs rather sensibly went to the district court and asked for relief that would require the elections this year to be held from districts that complied with one person, one vote.

If you had presented me with this situation in a law school hypothetical, I would have said the answer would seem to be fairly clear: on these facts, Mississippi needs to have a redistricting plan that complies with one person, one vote before it holds elections this year. It should come as no surprise, then, that three federal judges think the exact opposite and have decided to allow Mississippi’s legislative elections to go forward based on a plan that everyone agrees violates one person, one vote.

The three federal judges reached this decision in Barbour by creating what amounts to a 10-year safe harbor for one person, one vote challenges to state legislative redistricting plans. In essence, these three federal judges read the landmark redistricting case of Reynolds v. Sims as holding that redistricting once every 10 years is enough. Because Mississippi redistricted in 2002 and it’s only 2011, that falls within the 10-year safe harbor window and, thus, presents no constitutional violation that needs to be remedied prior to this year’s legislative elections.

The opinion is odd from a precedential perspective. To the best of my knowledge, no court has ever created a 10-year safe harbor for a state legislative redistricting plan, and the precedent the Barbour court cites for its 10-year rule is weak (and that’s being charitable). Moreover, the trend in one person, one vote cases is away from establishing “safe harbors.” The 2004 decision of Larios v. Cox (that was summarily affirmed by the Supreme Court) seemed to eliminate a safe harbor previously thought to have been granted to state legislators under one person, one vote.

Indeed, the 10-year safe harbor rule doesn’t make much practical sense. Imagine this scenario—for partisan reasons, Democrats in California decide to redistrict in 2008 using 2000 Census numbers. According to the holding of Barbour, California would not have to redistrict again until 2018. Lest one think that this is a hypothetical that could never happen, just last year, Republicans in Marion County, Indiana (Indianapolis) were actively considering redistricting in 2010 using 2000 Census numbers.

The Barbour case is really about federal judges not wanting to get involved in the redistricting process, and I wonder if the lack of involvement has to do with the partisan affiliation of the judges involved. All three of the judges in Barbour are Republican appointees. This puts them in a tight spot. If they draw a plan that favors Republicans, they will be criticized for doing so. If they draw a plan that does not favor Republicans, they will take heat from their Republican brethren. These judges are probably in a lose-lose situation.

But federal judges get paid (and life tenure) to make such hard decisions. If given the opportunity, the Supreme Court should take up this case (which goes to that court on direct appeal) and ensure that Mississippi’s elections this year are held from districts that comply with one person, one vote.

As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.

One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments [...]]]> Thanks to Gerard for the introduction and to all the folks at Concurring Opinions for providing me with this blogging outlet.

As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.

One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments to get approval for their redistricting plans from the federal government, the Obama Administration will have a lot of influence over how the Voting Rights Act gets enforced this time around.

In some ways, the Obama Administration has a tough job ahead if it. From a legal perspective, the Obama Administration has to be careful about what the federal courts might do with the Voting Rights Act if the Obama administration becomes too active for a conservative court. Indeed, in an opinion issued a couple of years ago, the Supreme Court telegraphed its skepticism about the constitutionality of the portions of the Act that allow for federal oversight over state and local election rules. From a political perspective, the Obama Administration might be under pressure to use every tool available to help its natural political allies—the civil rights groups and minority voters—achieve the goal of creating more districts that give minority voters control over who gets elected.

What will the Obama Administration do? One can only speculate, but my guess is that there may be a divergence between how the Obama Administration enforces the Voting Rights Act at the state level and how the Obama administration enforces the Act at the local level. At the state level, I suspect the Obama Administration will be relatively hands-off—primarily signing off on whatever state plans come their way. Indeed, it wouldn’t surprise me if the Obama Administration was less interventionist in statewide redistricting plans this decade than the “W” Bush Administration was in the post-2000 redistricting cycle. On the local level, though, the Obama Administration is likely to be much more active in enforcing the Act and in pushing for the creation of more districts controlled by minority voters.

Why might the Obama Administration treat state and local redistricting plans differently? First, as a practical matter, federal disapproval of a state redistricting plan is more likely to generate the sort of litigation that could result in a very negative result for the Voting Rights Act. Local governments are less likely to take on the litigation giant known as DOJ than state governments are. Second, the conventional wisdom involving enforcement of the Voting Rights Act on the statewide and congressional level is that rigorous enforcement that creates more districts controlled by minority voters is harmful to the interests of the Democratic Party as a whole. If this is the dominant thinking among the political types in the Obama Administration then there will be a political incentive to lay off enforcement at the statewide level. Third, there will be a political incentive to more strongly enforce the Voting Rights Act at the local level because there is not the same sense that strong enforcement on the local level leads to negative consequences for the Democratic Party and because strong enforcement of the Voting Rights Act is something that Obama’s core constituency prefers.

The upshot is that we now have two very different conceptions of habeas corpus at Guantanamo: one as a meaningful judicial check on executive power; the other as a legal proceeding in which the judiciary remains powerless to remedy unlawful executive action.

In Boumediene, the Supreme Court held that Congress’s effort to strip Guantanamo detainees of the right to habeas corpus violated the Constitution’s Suspension Clause and ordered the [...]]]> Yesterday’s New York Times editorial, “A Right without a Remedy,” finally shines a spotlight on what anyone familiar with the Guantanamo detainee habeas corpus litigation already knows: the steady erosion of the Supreme Court’s 2008 decision in Boumediene v. Bush, and the open disdain for that decision exhibited by several D.C. Circuit judges, most notably A. Raymond Randolph.

The upshot is that we now have two very different conceptions of habeas corpus at Guantanamo: one as a meaningful judicial check on executive power; the other as a legal proceeding in which the judiciary remains powerless to remedy unlawful executive action.

In Boumediene, the Supreme Court held that Congress’s effort to strip Guantanamo detainees of the right to habeas corpus violated the Constitution’s Suspension Clause and ordered the district courts to conduct prompt hearings into whether the petitioners were being lawfully held. Since then, district courts in Washington, D.C., have issued merits decisions in 59 habeas cases, finding no legal basis for the detention in 38 of them.

The D.C. Circuit, however, has taken increasingly narrow view of district court’s power to inquire into the government’s evidence, reversing or vacating and remanding habeas grants in three cases and affirming habeas denials in four of six cases (the other two denials were vacated and remanded). To date, the Circuit has not affirmed a district court grant of habeas nor outright reversed a district court denial.  Along the way, Randolph, along with Circuit Judge Janice Rogers Brown, have suggested that the government might satisfy its burden merely under a “some evidence” standard, as opposed to the higher, preponderance of the evidence standard the Department of Justice is advocating.

But it is Randolph’s evisceration of the judiciary’s remedial power that presents the most direct conflict with Boumediene. In Kiyemba v. Obama, Randolph held that district judges have no authority to order the release of a prisoner from Guantanamo even when there is no basis for the detention, no evidence he presents a danger to the U.S., and no other country to which he might go. Randolph thus reversed the district judge’s ruling ordering the release of the petitioners—seventeen Uighur refugees from China—into the United States when the government failed to justify their detention or resettle them elsewhere.

Randolph has minced no words in his contempt for Boumediene. In a speech last year, he compared the Boumediene justices to the characters in The Great Gatsby, “careless people, who smashed things up . . . and let other people clean up the mess they had made.”

Randolph previously wrote the lower court opinion in all three Supreme Court Guantanamo habeas decisions: Rasul v. Bush; Hamdan v. Rumsfeld; and Boumediene. The Court reversed him all three times.

In October 2009, the Supreme Court granted certiorari in Kiyemba. Prior to oral argument, however, the Obama administration secured offers of resettlement for all of the petitioners and resettled a number of them. The Court vacated the D.C. Circuit opinion and remanded to the appeals court to reconsider the case in light of these new developments. Three months later, Randolph reinstated his prior ruling that courts had no role to play in the release of detainees from Guantanamo.

The five remaining Kiyemba petitioners at Guantanamo are back again before the Court; their new certiorari petition is scheduled for conference on March 18. The posture of their cases—all have received offers of resettlement, although none has any such option today—makes certiorari difficult because it suggests that there is a viable alternative to their continued detention at Guantanamo, which was not the case when the D.C. Circuit first issued its opinion in Kiyemba. Additionally, those Justices who might otherwise be inclined to grant certiorari realize that Justice Kagan’s recusal eliminates a potential fifth vote needed for the petitioners to prevail on the merits.

Kiyemba, however, remains an affront to Boumediene regardless of what happens to the Uighurs because the holding is that it does not matter whether there is an available option: judges can never order release in any circumstance, and can do nothing other than accept the jailor’s representation that it is attempting a diplomatic solution.

Clearly Kiyemba was written not simply to control the Uighur cases but to control every habeas case, depriving district courts of any power to order or facilitate a judicial remedy. District court grants of habeas corpus thus read more like advisory opinions than judicial orders, imploring the government to use its best efforts to secure the petitioner’s release.  Additionally, detainees whom the government has administratively “cleared for release”–but whom it maintains are lawfully detained–cannot get habeas hearings because the district court can provide no remedy beyond urging diplomatic efforts.

The irony is that the D.C. Circuit has taken a landmark Supreme Court decision about constraining executive power and turned it on its head by restoring executive control over who leaves Guantanamo, and when. Sooner or later, the Court is bound to take notice.

My colleague Bryan Wildenthal, who teaches constitutional law, disagrees, writing that:

The article mistakenly claims, in discussing whether the Obama, Administration is “likely” to appeal the injunction, that: “The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.”

This statement erroneously confuses the issue of an appeal with the general practice (not a binding requirement) that the Justice Department usually defends federal laws against [...]]]> In good news for LGBT rights, a federal court recently enjoined enforcement of the military’s “don’t ask, don’t tell” policy. However, the government may appeal the decision; a recent New York Times article notes that “The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.”

My colleague Bryan Wildenthal, who teaches constitutional law, disagrees, writing that:

The article mistakenly claims, in discussing whether the Obama, Administration is “likely” to appeal the injunction, that: “The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.”

This statement erroneously confuses the issue of an appeal with the general practice (not a binding requirement) that the Justice Department usually defends federal laws against court challenges. The Department has already fulfilled any claimed duty it may have had to defend the law in this case. The government is under no duty whatsoever to appeal a judicial decision following a full and fair trial. The government makes strategic decisions all  the time about whether to appeal adverse rulings; it need not do so if it concludes a ruling was sound or an appeal would be a waste of time and resources. Both are true here.

If the Obama Administration chooses to needlessly prolong this litigation by fighting to reinstate the gay ban it claims to oppose, it should and will be held accountable for such an inexplicable waste of taxpayer resources and such an outrageous attack on the rights of gay Americans who only wish to serve our country.

This sounds right to me. The administration has already given this flawed policy all the defense that it deserves. By choosing not to appeal the lower court’s ruling, the administration would finally close an unfortunate chapter, and in the process send a message of support for the rights of all Americans, including the LGBT servicemen and women who risk their lives to serve their country.

This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when [...]]]>

This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when a dominant firm refuses to share its intellectual property, even at monopoly prices.

Professor Carter Dillard then discussed the circumstances in which it may be morally permissible, and possibly even legally permissible, for a state to intervene and prohibit procreation.

Rounding out the summer was Professor Clay Calvert’s article looking at journalists’ use of open record laws and death-related privacy rights.  Calvert questions whether journalists have a responsibility beyond simply reporting dying words and graphic images.  He concludes that, at the very least, journalists should listen to the impact their reporting has on surviving family members.

The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia.  The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).

The constitutional challenges focus on the so-called individual mandate, taking effect [...]]]> The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.  U.S. Const. Art. I, § 8.

The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia.  The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).

The constitutional challenges focus on the so-called individual mandate, taking effect in 2014, which will require that most people either own health insurance or pay a penalty.  Legally, the arguments against the legislation lack merit.  As I have argued elsewhere, under contemporary Commerce Clause doctrine, Congress can impose the individual mandate as part of its comprehensive regulation of the interstate market in health insurance.  Further, the provision is structured as a tax on those who fail to purchase insurance, thus falling within Congress’s even broader taxing authority.

Rhetorically, however, the opponents’ arguments may have some appeal.  How, the critics insist, can Congress’s constitutional authority to regulate interstate commerce extend to regulating the non-commercial activity of doing nothing (i.e., not buying insurance)?  Doing nothing is not commerce, the law’s opponents proclaim.  Can you make a federal case out of taking a nap?

The answer to this rhetoric comes from the Court’s great rhetorician, Justice Antonin Scalia.

The same argument was deployed in Gonzales v. Raich in 2005, the case challenging the federal regulation of medical marijuana.  The question there was whether Congress could criminalize growing marijuana for home use.  By a 6-3 vote, the Court answered yes.  In a separate opinion, concurring in the judgment, Justice Scalia reaffirmed a long line of Supreme Court authority upholding the regulation of activity without regard to whether it was commercial.  In defense of these cases, Scalia, the self-professed textualist, asserted that the real source of authority was the Necessary and Proper Clause of the Constitution, rather than the Commerce Clause alone.  This analysis led Scalia to the powerful conclusion that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

In Justice Scalia’s conception, the ugly duckling of the Commerce Clause turns out to be the beautiful swan of the Necessary and Proper Clause.  Of course, it is the same bird, but the public relations makeover may be significant.

In Raich, Justice Scalia was writing for himself.  In United States v. Comstock, seven other Justices endorsed broad conceptions of the Necessary and Proper Clause.  Comstock addressed whether the federal government had the constitutional authority to detain mentally ill, sexually dangerous federal prisoners, even after their sentences ended.  In a 7-2 vote, with only Justices Scalia and Thomas dissenting, the Court upheld the program.  (The Court ducked any due process challenges to the scheme and focused solely on the foundation for the affirmative exercise of federal power.)

What was the source of federal authority in Comstock?  You got it, the Necessary and Proper Clause.  The five Justices who signed on to the majority opinion by Justice Breyer (Justices Stevens, Ginsburg, Sotomayor, and Roberts) took a very broad view of Congress’s power under this Clause.  Justices Kennedy and Alito each wrote separate opinions, concurring in the judgment, to offer only slightly narrower readings of the Clause.  While Justice Scalia dissented, he did not express any reservations about his position in Raich.

Comstock hardly resolves the health care issues, but it continues to chart a course toward a rhetorically appealing way to explain this exercise of federal authority.  As proponents and critics of health care reform both assert, the individual mandate is necessary for the legislation to succeed in guaranteeing insurance for everyone throughout the nation.  That is why opponents attack the mandate, but that it also why it is constitutional.

By the way, can the federal government regulate taking a nap?  How about if the one who slumbers is a pilot flying an airplane?  Sometimes doing nothing has just as big an impact as doing something.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests [...]]]> In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of ”renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.