Category Archives: Political Thought

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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What is so Terrifying About the Right to Counsel?

An article in the New York Times yesterday gave me considerable pause. The sort of pause that makes you blink, choke on your coffee,  and cough miserably before re-reading the paragraph. Evidently, the United States government has captured another alleged Al-Qaeda conspirator to the 1998 Kenyan Embassy bombings. Captured and warehoused in a naval brig floating along the Mediterranean Sea without an attorney, Abu Anas al-Libi is described by the Times as “an intelligence goldmine.”
Abu Anas is charged by way of federal indictment alleging conspiracy with Osama Bin Laden to attack American interests in Saudi Arabia, Yemen, and Somalia as well as the 1998 Kenya bombings. These facts are important. Abu Anas is not, it would appear, a prisoner of war, but rather an accused person awaiting trial. This custodial status implicates two important and dove-tailing constitutional principles. In one sense, Abu Anas’ position as a suspect in a criminal investigation implicates his Fifth Amendment right to counsel and privilege against self-incrimination. Pursuant to Miranda, Mr. al-Libi should at least be aware of this fact. In the other, Mr. al-Libi is already charged with a criminal offense, which means that critical stages of the proceedings against him should already be underway – but they are not.
This basic calculus assumes, which is particularly dangerous in this day and age, that al-Libi is held criminally and not as an enemy combatant under the authorization for the use of force set out in 2001. If he is detained under the latter category, there is still some ground for concern. Article 22 of the Third Geneva Convention excludes sea imprisonment for any period of time. I find it highly dubious, however, that the government can in good faith detain a man as an enemy combatant when he awaits trial on a federal indictment for crimes committed against the United States before the authorization for the use of force took effect.
Keeping this distinction in mind, I will focus this post principally upon the criminal justice issues this case presents. In particular, I am deeply troubled by the extensive use of the “public safety” exception to the Miranda requirement that is now in vogue amongst federal law enforcement (You may remember the use of this term recently during the Boston Marathon bombing investigation).
The methodology that will be used to extract intelligence data has already been “tested” on another government detainee – Ahmed Abdulkadir Warsame. In that investigation, the F.B.I. interrogation experts subjected the suspect to months of boat-confined interrogation before sending in a “clean” team of F.B.I. investigators, who were not privy to the prior team’s interrogation, to mirandize the defendant and extract a court-admissible confession. This method seeks to stretch the public safety exception well beyond its breaking point and then sweep away the taint of illegality by bringing a new set of eyes onto the investigation. This author’s reading of precedent finds this approach to be wanting.
Before we delve further, let us examine the public safety exception to the Miranda requirement. The seminal case on the issue – New York v. Quarles -involved a known informant alerting the police that a particular suspect raped her. She further notified law enforcement that the suspect carried a gun and that he had just entered a supermarket with his firearm. When the police confronted the suspect, they drew their weapons and asked him were they could find the gun. New York v. Quarles, 467 U.S. 649 (1984). Thus, in a moment of spontaneity, where the “kaleidoscopic” nature of events necessitates action for the protection of the public, the requirements of Miranda do not apply.
The Quarles opinion was not without its dissenters. Justices Marshall, Brennan, and Stevens all expressed the opinion that such an exception might swallow the rule, and in so doing encourage the exact type of police practice Miranda sought to abolish:

It would strain credulity to contend that Officer Kraft’s questioning of respondent Quarles was not coercive. In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: “Where is the gun?” . . . Officer Kraft’s abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. . . .

Id. at 684 – 85 (Marshall, J. dissenting). What further strains credulity is that an exception drawn to confront the imminent threat of a firearm in a supermarket immediately possessed by a suspected rapist could be extrapolated to justify the many-months-long detention of a man without counsel for crimes he allegedly committed in 1998. Unless the government can establish that al-Libi knows the passcode to a ticking time bomb threatening American lives, it seems highly doubtful that anyone but the presidential sycophants in the Justice Department believe that such interrogation practices passes constitutional muster.
In fact, it would appear that even the aforementioned sycophants are worried. Hence the F.B.I. “cleanup crew” mentioned earlier. Although the Supreme Court has infamously permitted the use of interrogation in the non-custodial context when the suspect is free to leave or is not being directly questioned, it has carefully never permitted the use of “wave” interrogation methods where the detained suspect is first questioned sans-Miranda and is then later mirandized to cure the illegality of the initial question time. Oregon v. Mathiason, 429 U.S. 492, 499 fn. 5 (Marshall, J. dissenting) (“I trust today’s decision does not suggest that police officers can circumvent Miranda by deliberately postponing the official “arrest” and the giving of Miranda warnings until the necessary incriminating statements have been obtained.”). Such a practice is inherently suspect. People do not, as a general rule, understand the difference between a custodial interrogation and any other type of police questioning. If a suspect “spills the beans” to the cop without being informed of his Miranda rights, does he truly understand that he has no obligation to tell the second questioning cop anything? Now, lets extrapolate this reasoning to a Navy brig, after many months of questioning. Do I even need to elaborate on the coercive nature of such an environment?
Finally, there is the “critical stages of the proceedings” question I presented earlier. Mr. al-Libi is not a generic, perpetrator’s-identity-unknown suspect leaning against the street corner. He is already facing an indictment. This means that, if he were a U.S. citizen charged with Murder, Possession of a Controlled Substance, or Reckless Driving, he would be entitled to magistration and bond (or at least a determination of bond eligibility because we are in Federal Court where there “are no [favorable] rules [governing bond] and the points don’t matter”). The high Court has ruled time and again that these pre-trial proceedings trigger the Sixth Amendment right to counsel, and not merely the more prophylactic right to counsel secured by Miranda’s interpretation of the Fifth Amendment.
Ultimately, the President cannot avoid the age old “have your cake and eat it too” quandary. If the government truly needs Mr. al-Libi’s mind for military intelligence reasons, they must accept that such a price will cost them a criminal prosecution. The U.S. Attorney’s Office is not unfamiliar with this problem – transactional immunity is commonly available when the government is put to the choice of subpoenaing one grand jury target to bolster the prosecution of another. This scenario does not readily present any meaningful differences. The Government defends its position on the basis that the Guantanamo era needs to come to an end. No one agrees with that generality more than me. Nevertheless, rather than play a game of chess with the finer points of constitutional law and criminal procedure, the Government should be asking broader questions: Do we have the right to detain people indefinitely? Are we willing to sacrifice our own values for the sake of military security? Are we the just arbiters of “terrorist” criminal conduct in the first instance?

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Sexual Politics

The homosexual movement won a critical victory in the United States Court of Appeals for the Ninth Circuit. As this timely issue marches its way to the United States Supreme Court, the hour is meet for a serious consideration of what victory in this area of civil liberties truly means.

Before we delve further, allow me to enumerate what this post does not purport to do. It is not a commentary on the ethics of sexual liberation or alternative sexual lifestyles. That’s a topic for another blog in another corner of the philosophy department. This post only endeavors to examine the impacts, positive and negative, of the homosexual rights movement on the individual freedom of human beings.

The law of equal protection looks at people in terms of “classes.” The entire body of equal protection law, from The Slaughter House Cases and the induction of the 14th Amendment to the present day seeks to foster the growth of a racially, ethnically, and sexually blind society through the creation of distinctions. Often these distinctions find their basis in immutable characteristics. Sometimes not. Whether homosexuality falls into the “immutable” category has been one of the hottest points of contention in the long battle towards sexual equality. See Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J. dissenting) (“The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “ ‘bare … desire to harm’ ” homosexuals . . . but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”).

In part to better fit within the equal protection lexicon, the homosexuality movement has clung to the scientific evidence tending to suggest a genetic predisposition to a sexual orientation. There is no reason to dispute this evidence. Nevertheless, it is somewhat of a sacrifice to rest on the laurels of predisposition in order to obtain freedoms rightfully the province of all the human race. The gay marriage issue has been, for the majority interests in this dialectic, an exercise of power. The power to exclude and the power to discriminate. The power of the “moral high ground”. These structures seek to oppress those culturally unlike themselves — an age old human fascination. But ultimately, and most abhorrently in the mind of this Author, the present legal and social structure seeks to suppress legal (although possibly malum prohibitum) personal choices. True democracy is made of sterner stuff.

In Jean-Paul Sartre’s Being and Nothingness, he argues that a man is not a homosexual the same way that he is red-headed or African American. He may have a genetic predisposition towards a certain class of sexual behaviors, but he still has free will, and thus the ability to act in a near infinite number of ways. The entire endeavor to categorize human beings into sexual categories has a dehumanizing effect – every single one of our gay and straight brothers and sisters are so much more than their sexual proclivity. It attempts to invalidate our choices. A human being’s choices should concentrate on the ethics of the choice, the well reasoned choice. They should not, save in those instances most crucial to human interaction — laws against murder, rape, etc. — become packaged into categories and shelved under the appropriate legislative heading.

I extend my congratulations to the attorneys, parties, and persons benefitting from the Ninth Circuit’s Ruling. As things progress, remember the costs of this small liberty. You may gain the right to marry, but at the expense of being appropriated into a category, sapped of individuality. The task of future court battles and future discussions is to direct the discourse away from such insidious ends.

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