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Using “Federalism” To Advance Republican Interests


I referenced it briefly last Friday, but I have a column up at the Guardian about the potential for the Roberts Court to push the “federalism revolution” to much more indefensible ends than the Rehnquist Court did.

The potential for upholding SB-1070 is actually the least bad of the three conservative arguments. The “sovereign immunity” line of cases has always been appalling, although limited in their consequences. The case against the constitutionality of the PPACA isn’t quite as legally weak — it at least isn’t contradicted by the text of the Constitution — but it is very weak and this weakness is much worse given that it’s being used against the centerpiece policy of an incumbent administration. But if the case for upholding SB-1070 isn’t as inherently weak, it’s still worth comparing the apparent rejection of the preemption by the conservatives on the Court with their embrace of a much weaker preemption argument in AT&T v. Concepcion. The latter case should serve as a crucial reminder of a crucial principle of American politics — i.e. nobody actually cares about federalism, very much including the Roberts Court if state law gets in the way of business interests.

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  • … was the fact that Chief Justice Roberts immediately announced that the potential for racial profiling not be considered by the court. …

    If this was so wrong why did the government’s lawyer immediately agree that it wasn’t part of his argument?

    • Scott Lemieux

      Because a lawyer’s job is to win the case, not advance the argument she thinks is best in the abstract?

  • Heron

    I can’t wrap my head about how a mandatory arbitration clause in a contract can possibly pass Constitutional muster.

    Amendment 7 clearly states, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved”. Now admittedly I’m a layman, but that seems pretty emphatic. It doesn’t say “may” be preserved, it doesn’t even say “should” be preserved, it says “shall”, as in, “it will be preserved”.

    Can Congress pass laws allowing arbitration as a possible alternative to jury trial? An affirmative is on shaky ground. Article 1, Section 8 lists the scope of Congress’ legislative powers, and while Congress certainly has vast powers to regulate the behavior of citizens, the only power it has regarding how citizens interact with the judiciary is the power “To constitute tribunals inferior to the Supreme Court”, and that is merely the power to establish a court, not to establish rules regarding a citizen’s access to a court. But even if we grant that, under commerce clause powers perhaps, Congress has the ability to allow Arbitration to be an alternative to tort trials, the farthest they can go with normal legislation is to allow it to be an option a subject to the agreement of both parties regarding the specific issue under contention; not allow it as a contractual obligation for basic service. To so allow would be a general regulation of the right to jury trial in civil matters (as well as a license of the judicial power to private corporations, which Congress has no power to grant), which would be a de facto alteration of 7th Amendment protections, which would be an Amendment, and thus not legally possible to pass under the process of normal legislation.

    Congress has two major powers; the legislative power to set basic rules within the bounds of the Constitution, and the Amendment power to alter those Constitutional boundaries. No law passed under normal legislative processes can alter Constitutional protections, and thus any law that does so is unconstitutional and invalid. A law allowing mandated arbitration, thereby violating the 7th, is not normal legislation but instead an Amendment, and thus must be passed through the Amendment process if it is to be legal. State legislatures cannot pass laws allowing for mandatory arbitration either due to section 1 of the 14th Amendment. So, if neither the Federal Congress nor the State Congresses can pass normal legislation that allows for the restriction the 7th Amendment’s guarantee of a trial by jury in civil cases, how can it possibly be legal for contracts to include mandatory arbitration clauses?

    The concept behind such clauses, that a citizen can agree to sign away their rights, is itself problematic. As the Declaration asserts, a citizen’s rights are “inalienable”, which is to say, “unable to be removed”. If a citizen’s rights cannot be legally alienated, then how can a citizen choose to alienate those rights? Quite simply they cannot. They might be restricted over a course of time as punishment for criminal behavior, but they cannot be removed or agreed out of existence.

    • Glenn

      The concept is waiver — the knowing, intelligent decision not to invoke your rights. You are (theoretically) free not to agree to arbitration (by choosing not to enter into the contract that includes such a clause). You seem to be proposing that your jury rights be nonwaivable — but, with all due respect, that doesn’t seem right to say that willing parties cannot agree to forego a trial by jury if they choose to. Especially in civil cases.

      The issue of course is that such contract clauses are typically not really the product of free negotiations among equal parties. What we need is a more robust view of unconscionability and a more realistic view of the market with respect to such clauses.

      • Scott Lemieux

        Also, that part of the Bill of Rights hasn’t been incorporated against the states yet.

        • Heron

          Section 1 of Amendment 14 states No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;. Regardless of whether the SC has “incorporated” it yet or not via case law, from a theoretical stand-point the entire BoR was incorporated once that Amendment was passed. Given the history of US civil rights juris prudence has a slow process of making reality the theory behind the Constitution, I this distinction isn’t insignificant.

          • Heron

            bah; bad editing on my part :/

            That should be Given the history of US civil rights juris prudence has been a slow process of making reality the theory behind the Constitution, I think this distinction isn’t insignificant.

      • Heron

        Admittedly, waiver is pretty firmly established (even implied waiver given the state of Miranda juris prudence) so this is less a practically than a theoretical argument on my part, and even beyond that, this is purely my personal reasoning on the issue which doesn’t hold any legal weight to speak of. But for me the Constitutionality of waivers involves what could he called their “specificity” and the “autonomy” of each party’s entry into it.
        Let’s deal with specificity first. A waiver, to take a common legal definition, is an intentional relinquishment or abandonment of a known right or privilege. To quote the first jurist commenting on this that I came across in the internet, Justice Riner of the Wyoming Supreme Court in New Hampshire Fire Insurance Co v Boler: “A waiver exists only where one with full knowledge of a material fact does or forbears to do something inconsistent with the existence of the right or of his intention to rely on that right”. Admittedly, I couldn’t find the decision itself (no LexisNexis for me, sadly), so there could be important context to this quote that I haven’t seen, but for this discussion these will be the definitions I use. So for a waiver to lawfully exist under this definition, a party must possess “full knowledge of material facts[sic]”, and undertake an action that lays aside a right or exhibits a denial of a reliance upon that right. What is a “material fact”? According to lectlaw.com, “…A fact of circumstance which would be important to the decision made” the lack of knowledge of which would significantly change a decision. How does this relate to specificity? Put simply, a party cannot possess material facts about the future due to causality. A general waiver like mandatory arbitration asks precisely that one party make a decision about all their possible future legal behavior regarding all possible conflicts with a counter-party without knowledge of the material facts behind the specific conflicts that may arise. As such, general waivers seem to me to violate the legal concept of waivers, thereby making themselves invalid. To put it another way, the mandatory arbitration clause does not have specific force over the contract within which it is contained and which all signatories can be assumed to possess material knowledge of. Rather, it has force over the resolution of potential violations of the contract in the future. The “material facts” pertinent to the waiver, which the signatories must possess for it to be valid, are the “material facts” of that future incident, not those of the contract itself, rendering the waiver illegitimate.
        In certain relationships the waiver need not be immediate due to the nature of the relationship itself making the waiver “reasonable” and “germane”. For instance, a non-disclosure agreement for a CIA employee would still be “specific” in that it bars the employee from discussing classified information publicly and that the employee can reasonably be expected to realize they will be dealing with classified information in such employment. Similarly, a member of the US military signing away their right to seek civil damages for battlefield injuries can be reasonably assumed to have knowledge of the dangerous nature of his profession, and in that his contract specifically bans civil suits only for combat and combat-related injuries, it can be said to be specific in scope as well as the boundaries of the waiver are clear, even though dealing with potential future occurrences. Mandatory Arbitration, due to its generality, fails to meet this standard. It is not limited to certain, clear, specific violations that might arise, but to any future civil litigation. It does not deal with any occurrences which a reasonable person can expect to arise in a business relationship, but precisely those abusive behaviors a business contract is meant to prevent. Just as a customer or employee cannot have knowledge of material facts in the future of their business relationship with a corporate party, neither can it be argued that consumers or employees can be reasonably assumed to expect legal conflict with their employer or contractual counter-party when they enter into a contract specifically to prevent such abuses. So not only do these agreements fail to meet the legal definition of a waiver regarding the “knowledge test” of material facts, but also because the purpose for the waiver (in the case litigation of abuse) is not what any reasonable individual would consider a “normal” aspect of the relationship they are entering into.
        Regarding autonomy, for a waiver to be legitimate it must be clear that both parties entered into it without coercion. A good example of this is the waiving of the rights expressed in Miranda warnings; if a suspect is said to have waived those rights, explicitly or implicitly, but coercion from the police can be shown to have influenced that act, then typically whatever confession results from it is considered null. In the case of Mandatory Arbitration clauses in contracts, one party clearly holds the power of coercion over the other. One party has a service or job, the other party wants that service or job (or in extreme cases, wants to retain that service or job which they already possess), and the original party uses that desire to extract the waiver of right from the second party. Comparing this to the Miranda example this would be as if the police withheld access to the bathroom until a confession was provided or with-held access to a telephone until the same. I admit that the comparison isn’t perfect given that the second party is often entering willingly into the relationship rather than being held against their will, but the coercion is clear regardless. More theoretically, there is the one-sided nature of such contracts, which undermines the mutual autonomy upon which the right of contract is based. If one party can change the contract at will and present it as a “take it or leave it” fait accompli to the other party, then in a real sense the two don’t have a contract at all.

    • Tcaalaw

      I can’t wrap my head about how a mandatory arbitration clause in a contract can possibly pass Constitutional muster.

      You are aware that there’s 200+ years of SCOTUS jurisprudence saying that people can contractually waive most constitutional rights, correct?

      • Tcaalaw

        Sorry, Glenn hadn’t posted yet when I started writing. That’ll teach me to go get a cup of coffee before finishing a comment.

  • DrDick

    As a general rule of modern political action, all Republican positions and policy proposals are intended solely to advance the power and control of the Republican Party. They simply do not care about anything else besides power, personal wealth, and ruling (NOT governing).

  • timb

    Scott, have you ever had a chance to read the book Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes

    One of things Professor Magliocca points out is that the Court always represents the past generation’s political viewpoint on the new coalition’s governing philosophy.

    So, whereas the Warren and Burger Courts represented a liberal consensus, the early Rehnquist court served as a check on the growing conservative ascendancy (not a great check it must be noted, since the Court, like the Senate, is inherently conservative in attitude).

    The Roberts Court is a check on the new coalition and will use its powers in a political way which disgusts me, but which is unsurprising.

    It’s a fine book

  • JurisDepravis

    Mr. Lemieux,

    Generally I enjoy reading your pieces, as you’ve got a sense of humor and usually a unique perspective. That said, your argument pertaining to sovereign immunity inapplicable to lawsuits against states by their own citizens is off base.

    Since 1890, in the case of Hans v. Louisiana, the Supreme Court has interpreted the 11th Amendment to apply to lawsuits against states by their own citizens. In the context of the drafting of the 11th Amendment, the only way that a lawsuit could get into federal court was via diversity of citizenship. The federal question statute did not exist yet. Thus, there would be no reason to put verbage into the Amendment banning an (at-the-time) impossible lawsuit. Furthermore, Hans v. Louisiana was about a creditor to the CSA attempting to recoup payment on a war bond used to finance the insurrection that was the Civil War.

    As I said, your pieces are generally informative and entertaining. I tend to agree with many of your critiques regarding the Roberts court. However, your critique of the modern interpretation of the 11th Amendment is off base and detracts from your credibility, as the 11th Amendment has been interpreted to apply to lawsuits against states by their own citizenry for well over 100 years.

    • R Johnston

      Uh, no. Federal question cases get to go to federal court, and sovereign immunity against a state’s own citizens on such matters directly contradicts the text of the 11th Amendment. There is no justification at all beyond manifest illiteracy for keeping federal question cases involving a state party on one side and a citizen of that state on the other out of federal court on 11th Amendment grounds.

      • JurisDepravis

        Federal Question jurisdiction was briefly enacted in 1801, but promptly repealed. It was not re-enacted until after the Civil War. Look up the history of 28 U.S.C. 1331 to see when it was passed if you don’t believe me. Not that wikipedia is the best source in the world, but there is no pay wall. Here is a link.


        I agree that it directly contradicts the text of the Amendment. The amendment was poorly drafted, as a response to Chisholm v. Georgia. Nonetheless, the precedent I cited was still good law. I am not arguing for the wisdom of the precedent, but I am arguing that if you’re going to make a full-frontal assault on the Roberts court, or even the Rehnquist or Burger court, perhaps you should assault something they actually DID.

        Application of the 11th Amendment to suits against states by their own citizens has been in place since 1890. That means that even the beloved Warren court upheld it.

        You’re correct that TODAY federal question cases get to go to federal court. Any first-year law student can tell you that. However, that doesn’t end the discussion. Precedent matters.

        I’m sorry you dislike the precedent. That doesn’t mean that the Roberts court is inherently evil. There are plenty of other reasons to indict the Roberts court as evil. Using this one merely undercuts the credibility of the other (legitimate and sound) reasons for so doing.

    • Hogan

      Follow the links.

    • Scott Lemieux

      Hans 1)was wrong, and 2)because of Ex Parte Young was largely irrelevant until Seominole Tribe.

      • JurisDepravis


        I remain agnostic as to whether Hans was young or otherwise. Personally, however, I have a hard time believing that you would side w/ Hans on the merits in that case.

        That said, Ex Parte Young enabled a party to sue a state for prospective relief only so long as the plaintiff maintained the legal fiction that he was merely suing a particular official of the state.

        As to Seminole Tribe, check me if I’m wrong but the big takeaway from that is that Congress can’t use its commerce powers to abrogate state sovereign immunity; it can only use its 14th Amendment enforcement powers.

        Am I missing something here?

        • JurisDepravis

          Bad editing . . . I remain agnostic as to whether Hans was WRONG or not.

          Also, Ex Parte Young enabled a suit for prospective, injunctive relief.

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