Monthly Archives: March 2017

Gorsuch and TransAm Trucking

indexThis week, the nation bore witness to Neil Gorsuch’s  Supreme Court confirmation hearings. The hearings had little to do with the qualifications of Judge Gorsuch, whose past experience both as a judge and an attorney plainly qualify him for the bench. Instead, the hearings focused on his judicial philosophy, and deeper questions about the role of the judicial branch of government outlined in Article III of the United States Constitution.

The line of demarcation was drawn across the pages of Gorsuch’s dissenting opinion in TransAm Trucking v. ARB, U.S. Dept. of Labor, 883 F.3d 1206 (10th Cir 2016). The nominee’s opposition, most notably Senator Al Franken, expressed concerns about how the Judge’s narrow reading of 49 U.S.C. § 31105 would have supported the termination of a truck driver who elected to abandon his 18-wheeler trailer rather than freeze to death per the instructions of his employer.

Admittedly, Judge Gorsuch’s opinion does offer a whiff of a time honored legal criticism:

In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread. ~ Anatole France.

In his dissent from the Tenth Circuit’s decision to decline review, and thus uphold, the administrative law judge’s ruling that the trucker’s termination was unlawful, Judge Gorsuch wrote that the majority stretched its application of the law to achieve the result it wanted rather than the result the statute demanded. The statute at issue reads, in pertinent part:

A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because

. . .

(B) the employee refuses to operate a vehicle because—


the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or


the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;
49 U.S.C. § 31105 (a)(1)(B). In this case, the trailer’s brakes were frozen. It was cold beyond comprehension outside. The truck was out almost completely of gas, and the auxiliary cab heater was broken. The trucker showed signs of hypothermia. He elected to abandon his cargo and drive the truck to a safe location, in spite of his instructions from the dispatcher to remain with his trailer for a repair. He was terminated from TransAm Trucking as a result of his actions. He tried his lawsuit before an Administrative Law Judge, a non-article III court tasked with resolving administrative agency disputes, in this case, OSHA & the U.S. Department of Labor. The administrative judge found in favor of the trucker, and TransAm appealed to the Tenth Circuit. The majority declined to grant review of the company’s appeal. In so holding, the majority found the word “operate” in the statute quoted above to be ambiguous, so as to justify executive, administrative interpretation of congress’ words when interpreting the law. Chevron, USA Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 843 (1984) (holding that an administrative agency’s interpretation of a statute is entitled to deference when “the statute is silent or ambiguous” and the administrative agency’s interpretation is a reasonable one).
Judge Gorsuch’s dissent also focuses on the word “operate,” and is critical of the majority’s reliance on Chevron:
But, respectfully, it seems to me Chevron is a curious place to turn for support given that the Department never argued the statute is ambiguous, never contended that its interpretation was due Chevron step two deference, and never even cited Chevron. In fact, the only party to mention Chevron in this case was TransAm, and then only in a footnote in its brief and then only as part of an argument that the statute is not ambiguous. We don’t normally make arguments for litigants (least of all administrative agencies), and I see no reason to make a wholly uninvited foray into step two of Chevronland.
TransAm Trucking Inc., 883 F.3d at 1216 (Gorsuch, J. dissenting).

To Gorsuch’s way of thinking, the word “operate” is unambiguous. It is easily defined. Someone who operated a vehicle is not entitled to sue under a theory that they were punished for not operating a vehicle. To many, this author included, such reasoning seems unfair. TransAm’s conduct in instructing its driver to risk death beside its cargo stinks of corporate greed. But it is important to remember that the law, particularly appellate law, is not just about the litigant in front of the court. Cases like TransAm trucking will be cited by lawyers representing plaintiffs, civil defendants, criminal defendants, relators, and petitioners for decades to come. In our system, the precedent of the circuit courts of appeals and the Supreme Court of the United States are not mere history lessons to be taught in civics class. They become the law itself.

Judge Gorsuch’s concern is a palpable one. There are too many laws. No member of the House of Representatives or the Senate even knows the substance of 1/10th of the laws on the books. To ensure the continuation in administration of these esoteric laws, congress delegates its authority to the executive branch of government. These administrative agencies, in effect, become the tyrants of small fiefdoms – wielding the power to write, interpret, and enforce regulations they come up with largely shielded from any public scrutiny. Sometimes, they use this power for good and sometimes their exercise of power works grave injustices. In both instances, they use their power like they did for Alphonse Madden, the truck driver in TransAm. They take a statute that necessitates an undesired outcome and promulgate interpretive regulations and rulings that change the outcome, without regard to any law of statutory construction or interpretation. This is the crux of Chevron, which permits such executive vigilantism so long as the administrative agency’s interpretation is not unreasonable. For those whose time fussing with the law is limited, please consult this crude example:

Congress enacts a law that caffeine in food and drinks sold or manufactured in interstate commerce should be “carefully regulated to protect the public health and to better inform consumer purchases.” This law is then placed within the purview of the Food and Drug Administration by way of congressional delegation, authorizing the FDA to promulgate regulations to achieve the ends of congress. In researching the issue, the FDA concludes that caffeine is dangerous, and should be heavily regulated and omitted from most of its current food and drink applications. It passes a regulation that concludes that doses of caffeine in food over x% are inherently unsafe, and ties the inclusion of caffeine in food above that dosage to the “tampering” language of 18 U.S.C. 1365 or some other FDA related criminal offense. Assuming that the research and interpretations required for this scenario to play out are “reasonable” interpretations of congress’ new law, the FDA’s conduct here criminalized caffeine without a single vote from a publicly elected official agreeing to it. When the law is challenged, Chevron’s “reasonableness” inquiry – what Gorsuch calls Part Two of Chevron could very well save the regulation.

There is value in holding congress to the words it prints on paper. The expectation that it is the judge’s job to cure unjust results is to pass the buck away from our elected representatives. It is in this lens that I view Senator Franken’s indignation during the confirmation hearing. The questions of a man who has no regard for what his vote in congress truly means, or the lives it can effect. Rather than justify a rejection of his nomination, Judge Gorsuch’s approach in TransAm telegraphs to the American People that he will hold congress accountable for its ineptitude. That is something we should all be grateful for, particularly if we want to keep this Republic alive in the 21st Century.

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A Right Without a Remedy

WEB_GPSEdLate in 2016, the Supreme Court of the United States held that a detaining a man without a warrant and without reasonable suspicion or probable cause did not require the exclusion of evidence seized on his person because an outstanding municipal warrant “attenuated” the search of the man from his unlawful detention. Utah v. Strieff, 136 S. Ct. 2056, 2064 (2016) (“We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible [at trial] because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”) (emphasis supplied). This principle is known as the “attenuation doctrine.” Hudson v. Michigan, 126 S. Ct. 2159 (2006). The test for whether or not a court should apply the attenuation doctrine to forgive a violation of the Fourth Amendment asks judges to consider (1) the temporal proximity between the initial unlawful detention and the search; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. When considering this last factor, evidently, the mere fact that an officer lacked probable cause or reasonable suspicion is not enough for the misconduct to be “flagrant.” Strieff, 136 S. Ct. at 2064 (citing Kaupp v. Texas, 123 S. Ct. 1843 (2003)).

What you need to know about Strieff is that there are, literally, millions of municipal warrants floating in the ether of the United States criminal justice system. These are warrants for arrest instructing officers across the land to pick up people who didn’t pay their traffic fines, failed to appear for a court setting, did appear at the court setting but didn’t communicate that fact to the judge correctly, etc. Quite often, the people with municipal warrants are not what you’d consider “hardened criminals.” Practically everyone has had a municipal warrant for their arrest at some point in their life, or came vert close to having one issued. As with most aspects of the criminal justice system, the people most likely to have unresolved warrants are poor.

The only way to logically read Strieff is that someone with an outstanding warrant does not have the protections of  Fourth Amendment. Conventionally, if you are detained because of arbitrary circumstance – you’re a different race than the officer pulling you over; the officer doesn’t like you because you didn’t donate to the Sheriff’s office  Christmas charity drive, you drive the same kind of car as the officer’s ex-wife – anything that the officer finds in your car or on your person can’t be used as evidence against you. In the law, this is called the “exclusionary rule.” But under Strieff, if you have an outstanding traffic warrant – never mind that the officer didn’t know that when he detained you, or that it has nothing to do with what you’re being pulled over or investigated for – the evidence gets to be considered by the jury at your trial. No, not your trial for the speeding ticket you had a warrant for. The one for the new possession of marijuana charge you’re going to be booked for when the officer finishes arresting you.

To many, including counsel for Mr. Strieff before the Supreme Court, this reasoning is terrifying. Given that there are millions of unresolved traffic warrants, officers now have no reason not to pull you over arbitrarily; there is a decent chance if you’re living in an impoverished zip code  that they’ll be able to use the warrants to cover up their wrongdoing. Not to worry, says the Supreme Court! The police would never overstep their authority like that, in the mind of Justice Thomas; if they do start engaging in this kind of dragnet policing, they’ll be sued:

Second, Strieff argues that, because of prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think this outcome is unlikely. Such wanton conduct would expose police to civil liability.

Let’s actually consider that premised for a moment. By and large, police officers are indemnified; they will not be personally liable for their misconduct no matter what happens in civil court. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). Police departments can be sued, pursuant to 42 U.S.C. 1983, but to do so the plaintiff must overcome the doctrine of Qualified Immunity. This principle, which acts as a defense to Section 1983 suits across the county, is largely an animal of judicial interpretation. Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012) (“‘The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Pearson v. Callahan, 129 S. Ct. 808 (2009)). It protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

The validity of this doctrine is often questioned and criticized. I strongly encourage you to familiarize yourself with the literature on the subject. But more importantly for our purposes, Justice Thomas’ remark about civil liability seems to place America at a crossroads. We have watched, for thirty years, the applicability and relevance of the exclusionary rule shrink as law enforcement arrest more and more people. The prevailing trends in the Fourth Amendment have rendered it meaningless for many accused citizens. Seemingly, if this trend continues, something should exist to take up the slack. Civil liability is not an adequate alternative to the exclusionary rule, but it is at least a tangible way to enforce civil rights and hold violators accountable. But if Justice Thomas’ remarks are to have any meaning, the principles underpinning the doctrine of qualified immunity must be rejected, and heavily overhauled. In Justice Thomas’ own opinion, he notes that the lack of probable cause or reasonable suspicion is not enough for a fourth amendment violation to satisfy the “flagrant misconduct” prong of the attenuation doctrine. How, one wonders, is an action not flagrant enough to overcome this flimsy exception to the exclusionary rule going to be adequately flagrant to constitute a violation of “clearly established statutory or constitutional rights” to overcome qualified immunity. Under the present state of the law, it cannot.

The doctrine of qualified immunity, to my way of thinking, is far too old-world-Europe in its formulation. The very notion that, in the United States of America, there is a “sovereign” entitled to unfettered administration free of the worries and harassment associated with being sued is antithetical to democratic liberty. We don’t have a king sitting atop an unassailable pedestal. This is a country with state mottoes like “thus always to Tyrants.” The only reason not to “hold the police accountable” in civil court is to have a robust exclusionary rule to protect us from their overreach. Since opinions like Strieff undermine our confidence in this approach daily, it is incumbent on the courts and the legislature, in equal measure, to at least allow us some alternative method of bringing the beast that is law enforcement to heel.

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FISA in the time of Cholera


I recently came across a Yale Law Journal Note from 2003 entitled Leaving FISA Behind: The need to return to warrantless foreign intelligence surveillance. It is brilliantly researched and worth the read for the footnotes alone. I utterly disagree with its underlying sentiment, although not necessarily the mandate of its title.

FISA is a statutory mechanism, designed by congress, to entrench the footnoted warrant exception for national security espoused in Katz v. United States, 389 U.S. 347 (1967). By virtue of the FISA laws, domestic surveillance conducted for national security reasons involving foreign powers or their agents is reviewed by a 21st century star chamber, a tribunal of three that meets in secret within the DOJ in D.C. and determines whether or not to issue a FISA warrant with only pro forma appellate review. The standard is a watered-down version of probable cause. The court’s actions are functionally isolated from criminal discovery, and are generally unknowable. Because of these peculiarities, it is difficult to even trust the government when it represents that no FISA material was utilized in apprehending or prosecuting a defendant. After all, that is what you’d say if you’re tasked with protecting the reasoning of a secret tribunal and the existence of a secret warrant.

The article’s conclusions are necessarily naive. The article predates Edward Snowden, the Darkest of the Iraq war scandals, the abuses of the CIA in Guantanamo and black sites, changes to the text of the Patriot Act in 2015, and the election of Donald Trump. I feel that the author’s first conclusion – that the authorization of these questions should return to Article III courts – is perfectly valid. Such a shift would end a practice that, I feel, violates the right to an open court, and improve the chances of meaningful judicial review of Fourth Amendment challenges in the courts. The author’s second conclusion, however, I cannot endorse. Given the “red tape” and “procedural hurdles” that Article III warrant applications typically require, the author suggests that such surveillance be conducted without a warrant, subject only to a reasonableness inquiry. While she is correct that the warrant requirement has eroded beyond recognition, it is foolish to believe that the answer should be to lessen the burden on the government moving forward. Yes, the Freedom Act made some useful modifications to the FISA rules, but these modifications were largely half measures. For example, Section 301 of the Freedom Act prevents the use of evidence obtained by means of “deficient” procedures from being received in a trial, but the question of deficiency is still largely not subject to review outside of the FISA court system. Although this system is more transparent now than it was in 2003, it lacks the robustness of true appellate review.

Better to end FISA entirely, as the author suggests, and subject all foreign surveillance to the same strictures as Title III wiretaps.

Leaving FISA Behind: The Need to Return to Warrantless Foreign Intelligence Surveillance

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To Perceive; To Communicate.

lotus-2.jpegYou perceive a tree on a hill obscured partially by mist. I, standing on the opposite side of the hill and with the sun to my back, barely perceive the mist at all, and see the comfort of a sorrowful autumn. Returning inside of the cottage behind you, you smell the acerbic flavor of tobacco and recoil in disgust. I, reflecting on the death of a loved one, savor the burning in my lungs as I drag on a cigarette in the common room. Reading an article, you internally lament a political position, drawing the lines of demarcation in your mind as you parse the text for meaning. I, reading the same newspaper, draw different lines, as if reading entirely different words. Conversations, some of critical import to the affairs of business, liberty, or morality can often be perceived as transpiring in separate languages the way the parties to the conversation carry on.

When we communicate, even when we internally process images and phenomenon around us, commonality is assumed. Yet experience has taught me that experience is anything but common. The way we see the world, and the personal history we bring to our dialogues about the world threaten to seize everything. In the East, there is an account of the Buddha’s transcendence, and thus his encounter with death. Death presented himself as a beautiful woman, the most beautiful woman that ever existed or would exist in any potential future. Pardoning the syncretism, we can almost imagine Sankara whispering “not this, not this” into the Buddha’s ear as the Sage wrenched himself away from the woman’s embrace. Scorned, Death manifested itself instead as a horrifying beast which stared at the Buddha with ravenous hunger. The Buddha stood his ground, and by way of doing so arrived at the truth. In this myth we encounter the concept of the sublime, something both immeasurably beautiful and utterly terrifying.  Being a moral parable, the tale implicitly suggests a singular answer, a universal truth. Christ’s remarks about the “resurrection and the light” suggest the same, as do the Koran or the Brahman of the Vedas. Upon these bedrock religious precepts many resort to the notion that the same concept – truth vis-à-vis universality – is, in-itself universal. In reality, it seems possible that the one concept fails to translate to the other, perhaps necessarily so.

Whatever objective universals exist are beyond our ability to know on any quantifiable level. We dwell in a different world, one governed by our perceptions. In that mire, we cannot escape our own judgments, our prioritization of the issues presented. We can consciously amend the priority, even focus upon separate aspects of the question. But whether we perceive the optical illusion of the dancer swinging left or swinging right, we still can do nothing but perceive and, through perceiving, redirect our illusion.

Foucault would categorize these observations as “problematizations of truth.Maurice Merlau-Ponty suggested these discrepancies go to the heart of the object-subject dilemma, the question of how there can be “for us” an object “in-itself.” Ironically, academic thought has increasingly drawn parallels between Merleau-Ponty’s work and that of Eastern thought, particularly Zen Buddhism, bringing the problem, seemingly, full circle.

Irrespective of how we perceive, however, the greater question is how we communicate what we perceive. Not very well.

A man is shot. A man is shot in an alley. A man is shot in an alley in the Bronx. A black man is shot in an alley in the Bronx. A black man is shot by a policeman in an alley in the Bronx. A black man was shot by a white policeman in the Bronx. A black man, minding his own business, with no criminal record was shot by a white policeman in the Bronx. A black man, visiting the United States on a tourist visa from Great Britain, got lost in the Bronx. Turning a corner into what turned out to be an alley, he was confronted by a while policeman who shot him. A black man, visiting the United States on a tourist visa from Great Britain, got lost in the Bronx. Turning a corner into what turned out to be an alley, he was confronted by a while policeman who had elected to kill himself moments before. Pulling back the hammer on his service revolver, the image of a figure suddenly appearing startled him; the weapon discharged accidentally, the black man is shot.

This simple exercise reflects the way in which words matter, but it further illustrates so many preconceived notions about how those additional words and details change our internal judgments that it becomes almost meaningless to parse it. As an English speaker, we can sense how each of these sentences in sequence adds something to the story -plot, context, causality – but in truth, even these concepts presuppose that we share understanding of how those notions affect our world, values, and sense of ethics. On the other hand, if we strip away of every last scrap of perceptive judgment, deprive  them of any noun, adjective, or adverb we’d rely upon to convey the meaning of the sentence, we’d be left with nothing other than the concept of being. An object. Man, dead body, doesn’t particularly matter. As linguist George Lakoff noted:

[T]here can be no objectively correct description of reality from a God’s eye point of view. This does not, of course, mean that there is no objective reality—only that we have no privileged access to it from an external viewpoint.

How then are we to communicate reliably? In one sense, perhaps we aren’t intended to. Language is, like most of reality, largely an illusion of convenience. As I write, I am attempting to persuade someone like myself; I write from the perspective of being my own audience. If I can satisfy myself that the material I put to paper is intelligible, then I am satisfied. In essence, I am doing nothing other than structuring my own thoughts, my own priorities and judgments. The concept of writing to a readership, like art, posits an absurd assumption that others will be able to gaze into my mental impressions by means of the words I have selected. Like art, the readership is free to reject, accept, or even misappropriate the material in its absorption.

These concepts, all of them, may appear to endorse relativism. Far from it. There is a reason why civilizations around the globe have often prized deeds over words. The pen may be mightier than the sword, but only when we acknowledge, as we must, that the pen’s might lies in its efficacy to affect the mind of the reader. The sword plunged into the surface of the ocean will not pierce the heart of a fish lying in its depths. A word on a page cannot infest the mind of a reader that denies it consent. If we are to convey meaning at all, apart from the utterly superficial – i.e. Lucky Strikes, “it’s toasted!” – it must be by eschewing broad appeal for the individual encounter. Again, coming full circle, communicating perception seems to depend primarily on perception – asking the internal question again, and again, as to whether the recipient has understanding. The answer will invariably be “no.”

We often consider human history as a ladder of advancement, but there is no such thing as human advancement. The entirety of human achievement and suffering is reinvented in every perception we have and every communication we broadcast. That sublime visage stares at us all, waiting for us to find it. Rather than retreating to relativism; we awake to encounter the constant need to live life responsibly, never ceasing to  assess our perceptions, communicate them, and make the appropriate judgments about the objects in our eyes. It’s absurd because it is, conceptually, impossible. Nevertheless, it is our only nature; we can do nothing else.




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