//  9/28/17  //  Commentary

Some of the cases from the Supreme Court’s past term raised questions about the worth of the government’s word—that is, what to make of the words that the government had used in previous litigation. Some of the cases this term involve the same question, so it’s worth surveying how the Court answered the question last term.

Because more than a handful of the cases from last term presented a variation on the worth of the government’s word, I’ll cover the cases in two posts.  In the first group of cases, the question was what a court, or an opposing litigant, should make of the government’s prior statement about the law. That is, if the government had said, in case number one, that “the doctrine means one thing,” should the court be additionally skeptical if, in case number two, the government says that the doctrine means something else?  Or if, in case number one, the government had said “if you find Law A unconstitutional, then Law B would necessarily be unconstitutional,” what should the court make of the fact that, after Law A was held unconstitutional, the government was arguing that Law B is nonetheless constitutional?

Beckles v. United States.  As anyone who has met me, read my Twitter feed, or heard me on First Mondays can attest, I am “interested” in the Supreme Court’s decision in Johnson v. United States, and the resentencing implications of that decision. The Supreme Court’s decision in Beckles v. United States was one of the follow on cases to Johnson.

Johnson held ACCA’s residual clause unconstitutionally vague. The first question in Beckles was whether the residual clause in the U.S. Sentencing Guidelines is also unconstitutionally vague.  That provision is worded identically to ACCA’s residual clause and also interpreted the same way.

The government had been conceding in the lower courts, and also conceded in the Supreme Court, that the Sentencing Guideline’s residual clause was unconstitutionally vague in light of Johnson. Because the government was unwilling to defend that portion of the judgment below, the Court appointed an amicus (Adam Mortara) to argue the Sentencing Guideline’s residual clause was not unconstitutionally vague. 

But the government’s concession that the residual clause is invalid is not the relevant “government’s word” for purposes of this post. This post focuses on the “government’s word” in previous cases, which also came up in Beckles. In Beckles, the petitioner (the prisoner) attempted to use the government’s arguments in some prior litigation as leverage against the government with respect to the second question in Beckles—whether a rule invalidating the Guideline would apply retroactively to cases on collateral review.  In Beckles, while the government agreed with the petitioner that the Sentencing Guideline’s residual clause was unconstitutionally vague, the government maintained that a rule invalidating the Guideline’s residual clause would not apply retroactively to cases on collateral review.

In prior litigation, however, the government had argued that an earlier Supreme Court decision that had interpreted the ACCA’s residual clause (Begay v. United States) “applies retroactively to ACCA cases, Mandatory Guidelines cases, and Advisory Guidelines cases alike.”  The petitioner in Beckles attempted to leverage the government’s litigating posture in that Begay-related case as support for the petitioner’s retroactivity argument in Beckles. In fact, that was (essentially, until the reply brief) the petitioner’s only argument with respect to retroactivity in Beckles—that the government had said that decisions apply retroactively to ACCA and Guideline cases alike, and that the government’s statement was correct.

Relying on the government’s statements in prior cases may have been tempting for the petitioner given the Supreme Court’s decision last term in Welch v. United States. Welch had held that the rule announced in Johnson (the rule invalidating ACCA’s residual clause) applied retroactively to cases on collateral review.  The petitioner in Beckles attempted to use that decision together with the government’s concession in prior cases to construct his argument. 

His argument went something like this:

Step #1: In Johnson, the Supreme Court invalidated ACCA’s residual clause.

Step #2: The Guideline’s residual clause is the same as ACCA’s; therefore Johnson also invalidated the Guideline’s residual clause.

Step #3: In Welch, the Supreme Court had held the rule announced in Johnson was retroactive.

Step #4: The government has said that decisions apply retroactively to ACCA cases and guideline cases. Therefore, Johnson’s invalidation of the Guideline is also retroactive.

The Court never had to address whether the rule invalidating the Guideline applied retroactively to cases on collateral review because it ultimately held that the Guideline is not invalid. That makes it harder to assess whether the petitioner’s strategy was an effective one, given that the Court never had to reach retroactivity. 

There are, however, reasons to suspect it was not. The petitioner’s argument on retroactivity obscured a key issue for both the Guideline’s invalidity, and the retroactivity of any rule invalidating the Guideline—namely, the degree to which the Guidelines, and the career offender Guideline in particular, affect a defendant’s sentence.  The more a Guideline affects a defendant’s sentence, the more the Guideline looks like a statute that fixes a sentencing range, like a mandatory minimum or maximum, which are subject to the vagueness doctrine after Johnson.

But the petitioner’s argument on retroactivity had him parsing phrases from the Court’s retroactivity cases rather than hammering the Court with statistics about the Guidelines, and the Court’s recent cases (like Peugh v. United States and Molina-Martinez v. United States) that had recognized the Guidelines’ effect on defendants’ sentences. Peugh held that because of the Guidelines’ effect on sentences, the Guidelines is subject to the constitutional prohibition on Ex Post Facto laws, which safeguards many of the same interests as the vagueness doctrine. Focusing on how the Guidelines affect sentences could have (potentially) distinguished the constitutionally questionable “advisory” Guidelines system from the concededly constitutionally valid indeterminate sentencing system.

Sessions v. Dimaya 

The weight of the government’s word also came up in the other Johnson follow-on case of October Term 2016, Sessions v. Dimaya. (This case will also be part of October Term 2017, since the Court kicked it to the next term for re-argument.) Johnson had held ACCA’s residual clause unconstitutionally vague. ACCA’s residual clause defined a violent felony as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The question in Dimaya was whether, in light of Johnson, another provision of the U.S. Code was also unconstitutionally vague—18 U.S.C. 16(b), as incorporated into 8 U.S.C. 1101(a)(43)(F).

The respondent’s brief in Dimaya opened with a reference to the government’s briefing in Johnson, when the government had argued that if ACCA’s residual clause was unconstitutionally vague, other provisions, including 16(b), would be as well. 

This was the introduction to the respondent’s brief in Dimaya:

In Johnson v. United States, the Government cautioned this Court that if it were to strike the ACCA residual clause as unconstitutionally vague, the § 16 residual clause would be “equally susceptible” to challenge. Supp. Br. for the United States at 22, Johnson v. United States, 135 S. Ct. 2551 (2015) (No. 13-7120) (“Gov’t Johnson Br.”). As the Government correctly explained then, “[l]ike the ACCA, Section 16 requires a court to identify the ordinary case of the commission of the offense and to make a commonsense judgment about the risk of confrontations and other violent en- counters.” Id. at 22-23. This Court ultimately concluded that those “[t]wo features” were what “con- spire[d] to make [the ACCA residual clause] unconstitutionally vague.” Johnson, 135 S.Ct. at 2557. That means that the § 16 residual clause is in- valid as well.

That point also appeared in the respondent’s opening statement at oral argument:

“[A]s Justice Ginsburg points out, the government correctly, back in Johnson, said that those two factors are in existence here in Section 16(b), and that the residual clause here was, quote, 'equally susceptible to challenge.'"

Dimaya ended with a whimper—reargument in the coming term.  We’ll learn then what the Justices (including Justices) might make of the government’s positions on section 16(b).

So what are we to make of the fact that the government’s word, at least on points of law, did not seem to mean all that much? These two cases are anecdotes, of course; and they shouldn’t be read to suggest that there might be some rule about when the government’s word on a point of law matters.

In fact, the Court appeared to rely on the government’s “change” in litigating positions in Perry v. Merit Systems Protection Board.  Perry held that a litigant should seek review in the district court over an MSPB decision that concluded the MSPB lacked jurisdiction over a litigant’s claims. And in rejecting the government’s position, Perry noted that the government had changed positions (several times)—see page 8 and note 13 of the opinion.

We’ll see more of this issue in the future—it will continue this term in Sessions v. Dimaya. And it may also come up in other cases as well.  Sam Bagenstos has flagged how the Department of Justice has changed course on its interpretation of the National Voter Registration Act, for example. 

There’s even a similar issue in the entry ban litigation (which will likely come up in any litigation regarding the latest entry ban). DOJ has been arguing that federal courts may not consider “campaign statements” when the courts assess whether a purportedly facially neutral action was targeted at particular religions. But as Jim Oleske described (and Hawaii pointed out), DOJ argued otherwise in a case from the 1990s involving alleged discrimination against Orthodox Jews.  There, DOJ urged courts to consider campaign statements, which it maintained were “directly relevant” to the question of intent.

One of the cases the Supreme Court is set to hear this term, Wilson v. Sellers, also involves a change in position by the government (a state government, in this case). In Wilson, the State of Georgia originally sided with the petitioner (a prisoner convicted in Georgia state court).  For that reason, the Court appointed an amicus to defend the 11th Circuit’s judgment when it granted the petitioner’s certiorari petition. But Georgia switched positions (again; it had done so before), so the Georgia Attorney General’s Office will be briefing and arguing the case.

So what will the Court make of the government’s words this term? If Beckles and Dimaya are indicative, the answer may be not much—even though the DOJ’s conflicting positions are certainly embarrassing for DOJ.

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